The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM ECF No. 12 OBJECTIONS DUE WITHIN FOURTEEN DAYS
Plaintiff Craig Cooper ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint in Fresno County Superior Court on October 5, 2011. On January 5, 2012, Defendants Felix Igbinosa and James Yates removed the action to this Court. On January 24, 2012, Plaintiff filed his First Amended Complaint. On October 18, 2012, the Court screened Plaintiff's First Amended Complaint and dismissed it for failure to state a claim, with leave to amend. ECF No. 11. On November 19, 2012, Plaintiff filed his Second Amended Complaint. ECF No. 12.
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 or malicious," 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. Id. § 1915A(b)(1),(2). 2
A complaint must contain "a short and plain statement of the claim showing that the pleader 3 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 6 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 7 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 8 allegations are accepted as true, legal conclusions are not. Id. 9
II. Summary of Second Amended Complaint
Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants warden James Yates and chief medical officer Felix Igbinosa.
Plaintiff alleges the following. From 2001 through 2005, the soil at PVSP was disturbed by CDCR for the construction of a segregation unit and a mental health hospital. Approximately 80 inmates in 2003, 66 inmates in 2004, 187 inmates in 2005, and 1145 inmates in 2006 contracted valley fever, a potentially fatal disease.
Defendants Yates and Igbinosa were aware of the presence of valley fever in the PVSP area. During the fall of 2005, Defendant Igbinosa noted an increase in the number of inmates that contracted valley fever, and contacted the California Department of Health Services to assist with an investigation.
In June or July of 2006, Plaintiff went to medical on B-yard. The doctor gave Plaintiff pills and cough syrup, and signed Plaintiff up for x-rays. A week later, as soon as the technician finished x-raying Plaintiff, he told correctional officers to call for an ambulance because Plaintiff could not return to the yard. Plaintiff was hospitalized for weeks, suffering from chronic breathing problems, acute coughing, severe weight loss, and chest and heart problems. Plaintiff now permanently uses an inhaler.
Plaintiff contends a violation of the Eighth amendment and negligence. Plaintiff requests as relief compensatory and punitive damages.
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not 4 mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation 5 omitted). "[A] prison official violates ...