United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING (1) SEVERANCE
AND TRANSFER OF CERTAIN CLAIMS AND DEFENDANTS AND (2)
DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (ECF No.
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE
Derrick Jesus Oden, Sr. (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983. On
June 1, 2015, the Court dismissed Plaintiff's second
amended complaint with leave to amend. Plaintiff's third
amend complaint, filed on September 16, 2015, is currently
before the Court for screening. (ECF No. 22).
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks 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)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
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, 129 S.Ct. at 1949 (quotation marks omitted); Moss
v. United States Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is currently housed at California State Prison, Lancaster
(“Lancaster”). Plaintiff has named the following
defendants: (1) Scott Kernan, Director of Corrections; (2)
Lancaster Warden Howls; (3) North Kern Warden Kelly
Harrington; (4) Brian Lee, CSR; (5) Chief Medical Officer,
North Kern; (6) J. Acebedo, North Kern Counselor; (7) C.
Wofford, Chief Deputy Warden, Lancaster; (8) R. Knowles,
Facility Captain, Lancaster; (9) R. Butler, Correctional
Counselor, Lancaster; (10) Facility Physician, North Kern;
(11) S. Swaim, Correctional Counselor, North Kern; (12) R.
Thomas, B-Facility Captain, North Kern Prison; (13) C.
Nungaray, Counselor, Lancaster; and (14) L. Parker, CSPR,
alleges: On July 14, 2008, Dr. T. Bzoskie and Dr. S.
Mostatania medically evaluated Plaintiff, and documented on
CDCR 125-C-1 Reception Center Medical Clearance Restriction
Information Chrono (“Chrono”) that Plaintiff was
“high risk” for Valley Fever because (1) he was
African American; and (2) he suffered from asthma.
14, 2009, Plaintiff appeared before the Lancaster
Classification Committee (“Committee”) for
Program Review. Plaintiff's case file was before the
Committee for consideration. Plaintiff alleges that the
Lancaster defendants acted with deliberate indifference to
Plaintiff's risk of contracting Valley Fever when they
chose to transfer him to the Kern County area knowing that
this county was high risk for contracting Valley Fever. When
Plaintiff mentioned his Chrono to the Committee and his risk
of being transferred to the Kern County area, the Committee
assured Plaintiff that he would be transferred to a prison in
Kern County and if he tried to challenge the system then
things would only get worse.
29, 2009, Defendant Brian Lee reviewed Plaintiff's case
for transfer and endorsed him to KVSP-IV, which is a Kern
County prison in Delano. When Plaintiff's case was
brought before Defendant Lee, the Chrono was a part of
Plaintiff's case custody file. The “high
risk” caution in his Chrono was disregarded by
Defendant Lee. The Chrono also was disregarded by Defendant
L. Parker, who reviews inmate transfers.
alleges that Defendant Howls was the Lancaster Warden at the
time Plaintiff was put up for transfer to Kern County.
Plaintiff further alleges that Defendant Howls was
responsible for policies and procedures affecting the safe
housing and proper medical care for prisoners. Plaintiff also
alleges that the Director of Corrections is equally entrusted
with those responsibilities, but failed in the duty to
oversee the appropriate housing of inmates in the custody of
the California Department of Corrections and Rehabilitation.
24, 2009, Plaintiff was transferred to Kern Valley State
Prison (“KVSP”) and appeared before a
classification committee. At that time, Plaintiff advised
Defendants J. Acebedo, S. Swaim and R. Thomas that he was a
documented high risk for Valley Fever and should not be