United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND (ECF No. 12)
Michael J. Seng, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action brought
pursuant to 42 U.S.C. § 1983. Plaintiff has declined
Magistrate Judge jurisdiction. (ECF No. 7.) No other parties
November 28, 2016, this Court dismissed Plaintiff's
complaint with leave to amend. (ECF No. 9.) Plaintiff's
first amended complaint is now before the Court for
screening. (ECF No. 12.)
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).
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)).
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).
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.
times relevant to this suit, Plaintiff was housed at Pleasant
Valley State Prison (“PVSP”) in Coalinga,
California. He names the following Defendants: Edmund G.
Brown, Governor of California; Timothy Lockwood, Chief
Regulation and Policy Manager for the California Department
of Corrections and Rehabilitation (“CDCR”);
Jeffrey Beard, CDCR Secretary; Matthew Cate, former CDCR
Secretary; and Does 1-10, health professionals for the CDCR.
Each Defendant is sued in his or her individual and official
Background Information Related to Valley Fever
information contained herein is drawn from Plaintiff's
first amended complaint; Plaintiff does not state the source
of his information. However, Plaintiff's facts are
largely verified by the Centers for Disease Control and
located in the San Joaquin Valley of California, where there
exists a severe risk of exposure to the coccidioidomycosis
virus, commonly referred to as “Valley Fever” or
“cocci.” Valley Fever is contracted through the
inhalation of a fungus called Coccidioides Immitis, which
naturally occurs in the soil. Once the spores of the fungus
are inhaled, they lodge themselves in the victim's
respiratory system. From there, the virus can spread
throughout other tissues and organs, resulting in
“disseminated Valley Fever.” The majority of
those individuals infected display minor symptoms that
resolve themselves within a few weeks. About 1-5% of those
infected, however, will develop disseminated Valley Fever, a
serious infection that is progressive, painful, and
debilitating, and if left untreated may lead to meningitis
and death. Once an individual has been affected by
disseminated Valley Fever, there is no cure besides excision
of the affected tissue and bone. Certain medications may
manage symptoms, but they are costly and must be taken daily
Hispanics, African-Americans, and American Indians, as well
as individuals with a compromised immune system, face an
increased risk of infection with Valley Fever. They are also
more likely to develop disseminated Valley Fever. There are
several preventative measures that may be taken to help
combat the spread of the cocci fungus spores, such as
landscaping, paving, soil stabilization, restricting
construction and excavation, limiting outdoor time in windy
conditions, and wearing face masks when outside. Experts also
recommend screening out at-risk inmates and transferring them
out of San Joaquin Valley prisons.
Documentation of the ...