United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM
(ECF No. 18) FOURTEEN-DAY DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Larry Jordan (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff has
consented to the jurisdiction of the Magistrate Judge. (ECF
No. 4.) Plaintiff's second amended complaint, filed on
January 16, 2018, is currently before the Court for
screening. (ECF No. 18).
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.
of Plaintiff's Allegations
is currently housed at Folsom State Prison. The events in the
complaint are alleged to have occurred while Plaintiff was
housed at Pleasant Valley State Prison (“PVSP”).
Plaintiff names the following defendants: (1) Dr. H. Hung;
(2) Dr. R. Peterson; and (3) Dr. J. Neubarth.
alleges: The area of Pleasant Valley State Prison was once
used by the U.S. Army, which moved women from the areas
because they soon contracted Valley Fever. It was well known
by Health Care Staff and CDCR that the Army and women in the
areas contracted Valley Fever. The public has a choice to
live in the area, but inmates do not have a choice.
Plaintiff's arrival at PVSP, he was screened by health
care staff and at that time defendants were required to
inform plaintiff about the health risk of being housed at
PVSP and how to protect himself from Valley Fever.
alleges that his assigned primary care doctors at PVSP were
Defendants Drs. Hung, Neubarth and Peterson and were required
to provide medical care, including care to prevent illness,
and education to Plaintiff of risks to his health. Drs. Hung,
Neubarth and Peterson knew or should have known that
Plaintiff was in jeopardy of contracting Valley Fever, due to
his ethnicity and did not do anything to protect Plaintiff.
Drs. Hung, Neubarth and Peterson subjected Plaintiff to cruel
and unusual punishment by failing to warn or protect him from
contracting Valley Fever.
2000, Plaintiff was housed at PVSP. Plaintiff, who is African
American, soon developed a cough and flu-like symptoms that
would not go away. Plaintiff saw defendants for treatment and
his condition worsened. Plaintiff was finally tested for
Valley Fever, and it was discovered that Plaintiff had
contracted this illness. Once it was determined that
Plaintiff had contracted Valley Fever, defendants started
treating Plaintiff with medication. Plaintiff alleges that at
no time did any prison staff, including the named defendants,
inform or warn him about Valley Fever or ways to protect him
from contracting the illness. Plaintiff also was never told
that because of ethnicity he was at a higher risk of
contracting this illness. Plaintiff was told “you are
just one of the inmates who caught this illness and it's
no bodies [sic] fault.” (Doc. 18 at p. 8). Plaintiff
alleges that Drs. Hung, Neubarth, and Peterson knew or should
have known that Plaintiff was at a high risk of contracting
Valley Fever and should have told him and failed to protect
Plaintiff about the dangers of Valley Fever.
is now incarcerated at Folsom State Prison. In 2014,
Plaintiff started to see African American inmates that he
knew from his stay at Pleasant Valley State Prison. Plaintiff
started to hear rumors about CDC being sued for failing to
protect inmates against Valley Fever. As weeks and months
passed, Plaintiff started to see larger numbers of African
American inmates arriving from Pleasant Valley State Prison
and Avenal State Prison. When Plaintiff inquired why they
left, Plaintiff was told that “they are excluding
African Americans from Avenal and Pleasant Valley.”
(ECF No. 12 at p. 10).
soon became aware of a medical report written by Dr. Joe
Goldenson, along with several newspaper clippings, claiming
that the Department of Corrections knew of the high risk
Valley Fever posed for African Americans, but continued to
house said inmates at Avenal State Prison and Pleasant Valley
State Prison in total disregard for their health. Plaintiff
also learned from the report that Avenal State Prison and
Pleasant Valley State Prison were told to prevent inmates
from contracting Valley Fever, to educate and screen inmates
for the illness and to landscape the prison's grounds to
stop and/or hinder inmates from contracting Valley Fever, but
they did not do so. After investigating the issue, Plaintiff
soon realized that someone at Pleasant Valley State Prison
had subjected him to cruel and unusual punishment by being
deliberately indifferent to health and safety.
December 24, 2013, Plaintiff filed an inmate appeal
concerning allegations that Pleasant Valley State Prison
failed to protect him from contracting Valley Fever.
Plaintiff alleges that staff knew or should have known that
Plaintiff was at higher risk of contracting Valley Fever
based on his ethnicity, but they failed to educate him on how
to prevent contracting Valley Fever. Plaintiff sent his
appeal to Pleasant Valley State Prison, where the violation
December 31, 2013, Appeals Coordinator J. Morgan rejected
Plaintiff's appeal. Defendant Morgan allegedly claimed
that Plaintiff's appeal concerning staff failing to
protect him was a health care ...