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Jordan v. Hung

United States District Court, E.D. California

May 23, 2018

LARRY JORDAN, Plaintiff,
v.
H. HUNG, et al., Defendants.

          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

         Plaintiff 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).

         Screening Requirement

         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.

         Summary of Plaintiff's Allegations

         Plaintiff 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.

         Plaintiff 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.

         Upon 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.

         Plaintiff 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.

         In 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.

         Plaintiff 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).

         Plaintiff 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.

         On 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 allegedly occurred.

         On 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 ...


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