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Davis v. Kelso

United States District Court, E.D. California

October 3, 2014

CHARLES T. DAVIS, Plaintiff,
v.
CLARK J. KELSO, et al., Defendants.

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND FINDING CERTAIN CLAIMS COGNIZABLE [ECF No. 68]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Charles T. Davis is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Now pending before the Court is Plaintiff's second amended complaint, filed January 8, 2014.

I.

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 or malicious, " that "fails to state a claim on which relief may be granted, " or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

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)(2). 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 Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal , 556 U.S. at 676-677; Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal , 556 U.S. at 678-79; Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal , 556 U.S. at 678; Moss , 572 F.3d at 969.

II.

COMPLAINT ALLEGATIONS

Plaintiff names Receiver Clark J. Kelso, Secretary of the California Department of Corrections and Rehabilitation (CDCR) Matthew Cate, Warden James A. Yates, Chief Medical Officer Felix Igbinosa, as Defendants.

Plaintiff alleges that he was transferred to Pleasant Valley State Prison (PVSP) without any prior warning that it was within the "endemic area" containing Valley Fever[1] and that he should take precautions. Plaintiff is African-American and suffers from a "chronic" medical condition and claims that PVSP was informed that it needed to move inmates, such as Plaintiff, away from the endemic area.

Plaintiff contends the Grand Jury Reports (GJR) sent to Defendants Kelso, Yates, and Cate, expressly stated that African Americans are at a higher risk of Valley Fever compared to other nationalities. The GJR also found that inmates with diabetes have a 95% risk of contracting Valley Fever or that the risk is three times greater than non-chronic inmates.

Because Plaintiff was not warned of Valley Fever prior to his transfer to PVSP, or upon reception, he immediately filed a prison appeal to Warden James A. Yates and Felix Igbinosa requesting a transfer to prevent contracting Valley Fever. Plaintiff exhausted the administrative appeal process to the third level of review and his request was disregarded ...


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