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Richard Cruz v. James Tilton

January 29, 2013

RICHARD CRUZ,
PLAINTIFF,
v.
JAMES TILTON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM (ECF No. 14) CLERK SHALL CLOSE THE CASE SCREENING ORDER

I. PROCEDURAL HISTORY

On June 16, 2011, Plaintiff Richard Cruz, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 4.)

On April 24, 2012, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 5.) Plaintiff's First Amended Complaint (ECF No. 14) is now before the Court for screening.

II. SCREENING REQUIREMENT

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

The First Amended Complaint identifies the following individuals as Defendants in this action: (1) James Tilton, Secretary, California Department of Corrections; (2) Scott Kernan, Warden, New Folsom (Folsom); (3) James Yates, Warden, Pleasant Valley State Prison (PVSP); (4) Felix Igbinosa, M.D., Chief Medical Officer, PVSP; and (5) Gordon Thurston, M.D.

Plaintiff alleges the following:

On March 10, 2005, Defendant Kernan transferred Plaintiff from Folsom to PVSP. The decision to transfer Plaintiff was unilateral, no one from the classification committee was consulted and Plaintiff had not been screened in advance for susceptibility to Valley Fever. (Compl. at 2, 3.) Plaintiff had not previously lived in an area where Valley Fever was prevalent. (Id. at 2, 5, 6.)

The Director of Corrections, the Warden of PVSP, and the Chief Medical Officer at PVSP had all been notified by the Centers for Disease Control (CDC), prior to Plaintiff's arrival at PVSP, that inmates who had not previously been exposed to Valley Fever were at an increased risk to the disease. (Id. at 3.) The CDC was asked to study Valley Fever at Taft Federal Prison and recommend ways to reduce contraction rates. (Id. at 4.) According to a Valley Fever specialist speaking to Valley Fever's viability as a biological weapon, as quoted in a Hanford Sentinel article, the disease "would have the greatest impact among those with no built-up immunity." (Id. at 3, 4.) Plaintiff was not screened for susceptibility to Valley Fever upon his arrival to PVSP. (Id. at 3.)

By September 20, 2005 Plaintiff had been admitted to Coalinga Regional Medical Center. Defendant Thurston discharged Plaintiff after guessing that Plaintiff was "faking" his symptoms. In his discharge summary, Thurston stated that Plaintiff had been admitted "'because of headaches, weakness, nausea, and vomiting. A CAT scan of the brain was found to be normal.'" (Id. at 4.)

On September 22, 2005, Plaintiff was admitted to a different local hospital for a "'protracted headache with fever.'" (Id.) Plaintiff was diagnosed with ...


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