United States District Court, E.D. California
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 ...