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Oden v. State

United States District Court, E.D. California

May 22, 2017

DERRICK JESUS ODEN, SR., Plaintiff,
v.
STATE OF CALIFORNIA, Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING (1) SEVERANCE AND TRANSFER OF CERTAIN CLAIMS AND DEFENDANTS AND (2) DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (ECF No. 22)

          Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE

         I. Procedural Background

         Plaintiff 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).

         II. Screening Requirement and Standard

         The 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).

         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, 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).

         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, 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.

         III. Plaintiff's Allegations

         Plaintiff 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, Lancaster.

         Plaintiff 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.

         On May 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.

         On May 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.

         Plaintiff 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.

         On June 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 ...


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