Smith v. Kramer

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF FIRST AMENDED COMPLAINT, WITH PREJUDICE, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 10]

         Plaintiff Herman Joseph Smith is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff declined United States magistrate judge jurisdiction, therefore, this action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         Currently before the Court is Plaintiff's first amended complaint, filed July 5, 2016. (ECF No. 10.)

         I. SCREENING REQUIREMENT

         The Court is required to screen complaints brought by persons proceeding in pro per. 28 U.S.C. § 1915A(a). Plaintiff's amended complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).

         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).

         While persons proceeding pro se are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, 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 is a civil detainee housed at Coalinga State Hospital and brings this action against Cliff Allenby, Executive Director of the California Department State Hospital.

         Plaintiff is an African-American male who is civilly detained under the Sexually Violent Predator Act (SVPA). Plaintiff has resided at Coalinga State Hospital since 2008.

         Defendant has failed to exercise reasonable care and provide medical treatment as required by the law. Defendant had direct and specific scientific and medical knowledge of the danger disease of Coccidiodomycosis (also known as Valley Fever) at Coalinga State Hospital, and refuses to take any responsibility for the placement of Plaintiff in an environment that is dangerous to his health.

         Defendant deliberately denies patients, such as Plaintiff, protective measures and accommodations to protect against Valley Fever. As a proximate cause of Defendant's decision making, Plaintiff is held in an environment that could potentially cause him to experience a permanent crippling physical injury if he is infected with Valley Fever. Plaintiff claims that his treatment at the hospital is conducted with negligence, recklessness, and deliberate indifference toward his health and safety as a civilly dependent adult. As a proximate result of the negligence of Defendant's decision making, Plaintiff is held in an environment that could potentially cause him to experience a permanent crippling physical injury if he is infected.

         Specifically, the ventilation system is defective because it does not provide clean air to circulate to the housing areas. Over the years, Defendant's maintenance service has failed to conduct regular inspections as to how often the system is cleaned and repaired. Defendant has failed to provide dusk masks to prevent infection.

         III. DISCUSSION

         A. Exposure ...