United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND Doc. 10.)
GARY S. AUSTIN, Magistrate Judge.
Vernon Lee Jones ("Plaintiff") is a former state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 3, 2013. (Doc. 1.) The court screened the Complaint under 28 U.S.C. § 1915A and entered an order on May 8, 2014, requiring Plaintiff to either file an amended complaint or notify the court of his willingness to proceed only with the claims found cognizable by the court. (Doc. 9.) On May 23, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 10.)
II. 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 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. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint is required to 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
The events at issue in the First Amended Complaint allegedly occurred at Avenal State Prison (ASP) in Avenal, California, when Plaintiff was incarcerated there. Plaintiff names as defendants Warden James Hartley and Doe Defendants #1-10. Plaintiff's factual allegations follow, in their entirety.
"On 3/12/08, Plaintiff, who is black, was transferred to ASP. Since 2006, ASP has known that segments of the inmate population were at greater risk for contracting valley fever. Prisoners are dying because they are in a toxic environment, which causes serious illness and death on a regular basis; and the defendants had done virtually nothing until the federal court ordered them to get the black inmates out of ASP and Pleasant Valley prisons. Both prisons pose a public health emergency. Defendant Hartley knew about the risks of Plaintiff contracting valley fever at the time he ordered the watering of the grass at ASP to cease. Only after Plaintiff and others contracted valley fever did Defendant Hartley resume watering the grass. Defendant Hartley knew that watering the lawns helped to alleviate the dust problem, and it would help to minimize the risks of contracting valley fever for inmates and staff.
Defendant Warden Hartley and Does 1-10 demonstrated deliberate indifference to Plaintiff's health by increasing the risk of exposure to valley fever when he ordered the watering of the lawns to cease. As a result, Defendant Hartley failed to protect. Plaintiff has indeed suffered injury, as Plaintiff was diagnosed with valley fever in March 1009 at a level (titer) of 1:8. (Also see Fresno Bee, Tuesday, April 30, 2013, re article on Valley Fever, Public Health Emergency.)"
(First Amended Complaint, Doc. 10 at 3-4 ¶IV.) Plaintiff requests monetary damages, costs of suit, and attorney's fees.
IV. PLAINTIFF'S CLAIMS
The Civil Rights Act under which this action was ...