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Lua v. Smith

United States District Court, E.D. California

April 8, 2015

HUGO LUA, Plaintiff,
v.
O. SMITH, et al., Defendants.

FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF NO. 15) FOURTEEN (14) DAY OBJECTION DEADLINE.

MICHAEL J. SENG, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 6.)

Plaintiff's Complaint (ECF No. 1.) was dismissed for failure to state a claim, but he was given leave to amend (ECF No. 7.). Plaintiff's First Amended Complaint (ECF No. 11.) also was dismissed with leave to amend. (ECF No. 12.) Plaintiff's Second Amended Complaint is now before the Court for screening. (ECF No. 15.)

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, malicious, " or 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 on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

II. PLEADING STANDARD

Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) ( quoting 42 U.S.C. § 1983). Section 1983 "is not itself a source of substantive rights, ' but merely provides a method for vindicating federal rights conferred elsewhere.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).

To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution and laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Ketchum v. Cnty. of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987).

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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id.

III. PLAINTIFF'S ALLEGATIONS

Plaintiff identifies the following officials at Kern Valley State Prison (KVSP) as Defendants: (1) O. Smith, Facility Captain and Institutional Classification Committee ("ICC") Chairperson; (2) H. Haro, Correctional Counselor II; (3) A. Haddock, Licensed Clinical Social Worker - Mental Health; (4) R. Sherrill, Correctional Counselor I; (5) D. Davey, Chief Deputy Warden, and (6) M. Seaman, Correctional Counselor II.

Plaintiff's allegations can be summarized essentially as follows:

On July 18, 2013, Plaintiff transferred into KVSP, a facility within a geographic area where Valley Fever[1] is endemic. An ICC hearing was convened on July 31, 2013. Plaintiff informed the ICC that he had contracted Valley Fever in 2005 and his symptoms were currently under control. However, Plaintiff requested that he be transferred to a facility outside the endemic zone because he had a weakened immune system, was diagnosed with Hepatitis-C, and while most people who contract Valley Fever develop immunity, individuals with weakened immune systems can be re-infected.

Despite informing Defendants of his above concerns, they denied his request for transfer based on his security level and on grounds that he did not meet established criteria for ...


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