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Foster v. Brazelton

United States District Court, E.D. California

November 7, 2014

ANDRA FOSTER, Plaintiff,
v.
P.D. BRAZELTON, et al., Defendants.

FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF FIRST AMENDED COMPLAINT, WITHOUT LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 16]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Andra Foster 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 first amended complaint, filed November 3, 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 P.D. Brazelton, J. Lorenco, Doctor Luoung T. Nguyen, G. Chavez, D. Lovell, Cano, J. Clark Kelso, and Igbinosa, as Defendants.

On or about May or June 2011, Plaintiff sent Warden Brazelton a copy of the Memorandums dated August 3, 2006, and November 20, 2007, relating the policy of placement of inmates at high risk for contraction of Valley Fever.

Plaintiff informed Warden Brazelton and counselor J. Lorenco that Plaintiff fit the criteria set forth by the Director of Division of Adult Institution as he suffers from Asthma and according to the policy, he is a high risk of contracting Valley Fever and must be transferred out of Pleasant Valley State Prison (PVSP).

Warden Brazelton and Lorenco refused Plaintiff's verbal and letter request to be reclassified and transferred out of PVSP. Because Plaintiff was not reclassified ...


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