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Feliciano v. Igbinosa

United States District Court, E.D. California

April 28, 2017

VALENTIN FELICIANO, Plaintiff,
v.
IGBINOSA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS TO DISMISS SECOND AMENDED COMPLAINT WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (Doc. 25)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         I. Findings

         A. Procedural History

         Plaintiff's initial Complaint in this action complained of events that occurred from roughly 2011 through 2014, while he was housed at Pleasant Valley State Prison, when he contracted Valley Fever for which he received inadequate medical care. (Doc. 1-2.) Plaintiff was provided the pleading requirements and legal standards for his delineated claims and has twice been given opportunity to amend his allegations. (Docs. 11, 21.) Despite this, Plaintiff fails to state factual allegations specific to his delineated claims and does not link any of the individuals named as defendants to any factual allegations in the Second Amended Complaint. (Doc. 25.) Further, Plaintiff exceeded the scope of leave to amend which was previously granted (Doc. 11, p. 10) by adding allegations dating as far back as January 8, 2004, which are barred by the statute of limitations (Doc. 25, p. 4). Accordingly, the action should be DISMISSED with prejudice.

         B. 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, 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); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has not alleged imminent danger of serious physical injury does not qualify to proceed in forma pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

         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).

         To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or 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); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

         C. Summary of the Second Amended Complaint

         Plaintiff complains of incidents that apparently occurred at PVSP, though he is currently housed at the Correctional Training Facility in Soledad, California. Plaintiff names Drs. Igbinosa, Darren Bright, Paul Brazelton, Peter Lamb, Ifemoa Ogbehi, and Luomg Nguyen as the defendants in this action and seeks monetary damages.

         In his first claim, for deliberate indifference to a known serious risk under the Eighth Amendment, Plaintiff alleges that at PVSP, though he was regularly exposed to wind blowing up dust, he did not always receive a mask to wear, which caused him to contract Valley Fever. On January 8, 2004, Plaintiff was transferred to CTF. (Doc. 25, pp. 3-4.) In his second claim, for deliberate indifference to his serious medical condition, Plaintiff alleges that at CTF, he was not properly diagnosed with Valley Fever and when it was diagnosed, he did not receive proper medical attention. (Id., pp. 4-5.)

         It is recommended that this action be dismissed with prejudice. Plaintiff has exceeded leave to amend granted by adding a claim that is clearly barred by the statute of limitations. Further, despite repeated opportunity and direction, Plaintiff fails to link any of the persons named as defendants to his allegations.

         C. Pleading Requirements

         1. Federal Rule of ...


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