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Joel P. Whitney v. J. Walker

February 25, 2013


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


I. Background

Plaintiff Joel P. Whitney ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's Third Amended Complaint, filed November 17, 2011, against Defendants Walker, Greenman, McElroy, Boparai, Malogi, Campbell, Nay, Blackwell, Chapnick, and Zamora for deliberate indifference in violation of the Eighth Amendment.

On June 14, 2012, Defendants Walker, Boparai, Chapnick, Malogi, McElroy, Zamora, Nay, and Campbell filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for Plaintiff's failure to state a claim upon which relief may be granted. ECF No. 31.*fn1 On July 5, 2012, Plaintiff filed his opposition. ECF No. 33. On July 13, 2012, Defendants filed their 7 reply. ECF No. 34.

The matter is submitted pursuant to Local Rule 230(l).

II. Legal Standard

The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for 4 failure to state a claim, the court must accept as true the allegations of the complaint in question, 5 Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the 6 light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. 7 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The federal system is one of notice pleading. 8

Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002). 9 Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . ." Fed. R. Civ. P. 8(a). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

III. Summary of Third Amended Complaint

Plaintiff is incarcerated at Avenal State Prison ("ASP") in Avenal, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: J. Walker, Chief of the California Prison Health Care Services, Office of Third Level Appeals; L. D. Zamora, Chief of the California Prison Health Care Services; Ellen Greenman, Chief Medical Officer at ASP; Donald B. McElroy, Chief Executive Officer, Health Care Services at ASP; M. Boparai, Chief Physician and Surgeon at ASP; S. Malogi, R.N. & Healthcare Advocate at ASP; Gospha Campbell, medical doctor at ASP; J. Nay, healthcare appeals coordinator at ASP; and Robert Chapnick, Chief Medical Executive at ASP.

Plaintiff alleges the following. In November 2007, CDCR officials issued a memorandum ("Valley Fever Memo") to all Wardens, Health Care Managers, Chief Medical Officers, and Nursing 7

Directors, among others, at CDCR institutions statewide. The Valley Fever Memo observed that in 2005, two prisons in California's San Joaquin Valley had experienced significant increases in the number of inmate-patients presenting with coccidioidomycosis ("valley fever"), with deaths 2 attributed to the disease. The Valley Fever Memo listed eight prisons, including ASP, in the area of 3 greatest risk for exposure to valley fever, and it gave directions for identifying and transferring 4 certain inmates at these eight prisons because of their heightened risk of developing health problems 5 related to the disease. 6

Plaintiff arrived at ASP on November 5, 2007. On January 15, 2009, physician assistant Safi signed a lab report indicating a PSA level of 6.29 in Plaintiff's blood, indicating possible cancer.

On January 21, 2009, Defendant Campbell requested and signed a Physician Request for Services Form 9 for Plaintiff to be seen by Dr. Gene Hori for possible cancer. On May 22, 2009, Dr. Hori diagnosed Plaintiff with prostatic carcinoma and sent his findings to ASP medical department. Dr. Hori referred Plaintiff to Dr. Longo for radiation treatment for his cancer.

On October 2, 2009, Dr. Longo notified Dr. Hori that he had completed the treatment. On December 21, 2009, Plaintiff went to Facility IV Medical Clinic at ASP complaining of chest pain. Plaintiff was transported to Bakersfield Memorial Hospital, where two wedges of the upper left lobe of Plaintiff's lung were removed. A biopsy indicated that the lesion had been caused by a serious infection from valley fever. Plaintiff submitted a 602 inmate appeal on January 20, 2010 regarding his concerns of reinfection with ASP. Defendants Campbell, Nay, Malogi, Boparai, Greenman, McElroy, and Walker denied Plaintiff's appeal, stating that chest x-rays were negative for valley fever and a medical transfer was not medically ...

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