The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION DENYING DEFENDANTS' MOTION TO DISMISS ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND FAILURE TO STATE A CLAIM (ECF No. 6, 12) OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS
Plaintiff Ron Fekrat, a former federal prisoner at the Taft Correctional Institution ("TCI") initiated this action on October 10, 2012 in Kings County Superior Court.*fn1 (Notice or Removal, ECF No. 1, Ex. A.) In it he seeks money damages from Defendant, The Geo Group, Inc., ("GEO"), an operator of TCI under contract with the United States. He asserts general negligence and premises liability for failure to provide safe and habitable prison based on his contraction of Valley Fever*fn2 at TCI.
Defendant GEO, along with Defendant Management and Training Corporation, ("MTC"), an operator of TCI pursuant to contract with the United States, removed the matter to this Court on November 26, 2012, based upon diversity jurisdiction under 28 U.S.C. § 1441(b). (Notice of Removal at ¶¶ 3-4.)
Defendant GEO filed a Motion to Dismiss this action on December 3, 2012, asserting Plaintiff failed to (1) exhaust administrative remedies and (2) state a claim. (Notice of Mot. and Mot. to Dismiss., ECF No. 6, at 1:28-2:4.)
Plaintiff filed Opposition to the Motion to Dismiss on December 20, 2012. (Opp'n to Mot., ECF No. 8.) Defendant GEO filed a Reply on December 27, 2012. (Reply to Opp'n, ECF No. 11.) On December 28, 2012, Defendant MTC joined in the Motion to Dismiss but only as to the failure to exhaust administrative remedies defense. (Notice Joinder Mot. Dismiss., ECF No. 12.)
On January 3, 2013, the District Judge referred the Motion to Dismiss to the undersigned for of findings and recommendation. (Order of Referral, ECF No. 13.)
The Motion to Dismiss is now before the Court.
Plaintiff was incarcerated at TCI in Kern County, California, from June 1, 2010 through November 11, 2010. He had no prior exposure to Valley Fever. Valley Fever is a serious infectious disease contracted by inhalation of an airborne fungus endemic in the soil of Kern County.
Defendant GEO operated TCI during Plaintiff's confinement there. GEO had notice of the risk of harm from Valley Fever. GEO had a duty to provide Plaintiff with safe and habitable place of incarceration and warn him of risks. GEO breached this duty by failing to warn Planitiff of the risk of Valley Fever and failing to protect him from it. GEO's breach of duty caused Plaintiff to contract Valley Fever in October 2010. He now suffers pain and faces a lifetime of medical supervision, treatment, and, in all likelihood, medication.
Plaintiff was released from federal custody on or about September 14, 2012.
A. Failure to State a Claim
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, the Court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh ...