United States District Court, E.D. California
ORDER ORDER THAT PLAINTIFF: (1) NOTIFY THE COURT THAT HE IS
WILLING TO PROCEED ONLY ON THE CLAIM SANCTIONED BY THIS ORDER
AND VOLUNTARILY DISMISS ALL OTHER CLAIMS AND DEFENDANTS; OR
(2) NOTIFY THE COURT THAT HE WISHES TO STAND ON HIS
COMPLAINT, SUBJECT TO DISMISSAL OF CLAIMS AND DEFENDANTS
CONSISTENT WITH THIS ORDER ECF NO. 17
Eric Stratford is a former state prisoner proceeding without
counsel in this civil rights action brought under 42 U.S.C.
§ 1983. Plaintiff's first amended complaint,
ECF No. 17, is before the court for screening under 28 U.S.C.
§ 1915A. I find that plaintiff has stated an Eighth
Amendment claim against defendant Schwarzenegger, but no
other claims. Plaintiff must choose between (1) proceeding
only on the claims against Schwarzenegger and voluntarily
dismissing other claims and defendants; and (2) standing on
the current complaint subject to dismissal of claims and
defendants consistent with this order.
SCREENING AND PLEADING REQUIREMENTS
district court is required to screen a prisoner's
complaint seeking relief against a governmental entity,
officer, or employee. See 28 U.S.C. § 1915A(a).
The court must identify any cognizable claims and dismiss any
portion of a complaint that is frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. See 28 U.S.C. §§ 1915A(b)(1), (2).
complaint must contain a short and plain statement that
plaintiff is entitled to relief, Fed.R.Civ.P. 8(a)(2), and
provide “enough facts to state a claim to relief that
is plausible on its face, ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plausibility
standard does not require detailed allegations, but legal
conclusions do not suffice. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). If the allegations “do not
permit the court to infer more than the mere possibility of
misconduct, ” the complaint states no claim.
Id. at 679. The complaint need not identify “a
precise legal theory.” Kobold v. Good Samaritan
Reg'l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016)
(quoting Skinner v. Switzer, 562 U.S. 521, 530
(2011)). Instead, what plaintiff must state is a
“claim”-a set of “allegations that give
rise to an enforceable right to relief.” Nagrampa
v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir.
2006) (en banc) (citations omitted).
court must construe a pro se litigant's complaint
liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam). The court may dismiss a pro se
litigant's complaint only “if it appears beyond
doubt that the plaintiff can prove no set of facts in support
of her claim which would entitle him to relief.”
Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th
Cir. 2017) (quoting Nordstrom v. Ryan, 762 F.3d 903,
908 (9th Cir. 2014)).
THE COMPLAINT 
names eleven defendants: the California Department of
Corrections and Rehabilitation (“CDCR”);
California Governor Jerry Brown; California Governor Arnold
Schwarzenegger; Susan Hubbard, director of adult prisons;
CDCR Secretary Matthew Cate; CDCR unit chief Tanya Rothchild;
CDCR executive secretary Deborah Hysen; CDCR medical officer
Dwight Winslow; James A. Yates, warden of the Pleasant Valley
State Prison; and Dr. Felix Igbinosa, a medical officer at
Pleasant Valley. ECF No. 17 at 3-4. Plaintiff alleges that he
contracted valley fever in December 2007 and has, as a
result, suffered a variety of injuries in violation the
Eighth Amendment. Stratford alleges that valley fever spores
entered his right lung and that he now suffers from
pneumonia-like symptoms and anxiety related to his condition.
See id. at 11. Plaintiff seeks declaratory,
injunctive, and monetary relief. See Id. at 22-23.
Threshold Requirements Under 42 U.S.C. § 1983
1983 allows a private citizen to sue for the deprivation of a
right secured by federal law. See 42 U.S.C. §
1983; Manuel v. City of Joliet, Ill., 137 S.Ct. 911,
916 (2017). To state a claim under § 1983, a plaintiff
must allege that a “person, ” while acting under
color of state law, personally participated in the
deprivation of a right secured by federal law. See Soo
Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). A
defendant personally participates in a deprivation “if
he does an affirmative act, participates in another's
affirmative acts or omits to perform an act which he is
legally required to do that causes the deprivation of which
complaint is made.” Atayde v. Napa State
Hosp., 255 F.Supp.3d 978, 988 (E.D. Cal. 2017) (quoting
Lacey v. Maricopa County, 693 F.3d 896, 915 (9th
Cir. 2012)). Vague and conclusory allegations of personal
involvement in an alleged deprivation do not suffice.
complaint does not adequately link the acts or omissions of
most named defendants to the harm he claims to have suffered.
Most of the defendants are either unmentioned or mentioned
only in passing in Straford's description of relevant
events. Leaving defendants unmentioned-or mentioning them
only glancingly to note that they “were aware, or
should have been aware” of increased valley fever
risks, see, for example, ECF No. 17 at 10 and 17-is
insufficient to state a claim under 42 U.S.C. § 1983,
see Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir.
2019) (noting, in the context of valley fever claims under
§ 1983, that “inmates must show that each
defendant personally played a role in violating the
Constitution” (emphasis added)). In addition, the CDCR
is not a “person” for the purposes of 42 U.S.C.
§ 1983 and is not subject to this suit. See Howlett
v. Rose, 496 U.S. 356, 365 (1990); Coleman v.
California Dep't of Corr. & Rehab., No. 06-2606,
2009 WL 648987, at *3 (C.D. Cal. Mar. 10, 2009) (“There
is no dispute that the California Department of Corrections
and Rehabilitation is a state agency. As such, it is not
amenable to suit under § 1983.”).
complaint does satisfy the threshold requirements for one
defendant: Governor Schwarzenegger. Stratford's complaint
contains sufficiently detailed allegations of Governor
Schwarzenegger's acts and omissions such that they can be
linked the deprivation of a right. Several recent cases,
while ultimately concluding that defendants were entitled to
qualified immunity, have proceeded on a similar threshold
theory. See Hines, 914 F.3d 1218; Smith v.
Schwarzenegger, 137 F.Supp.3d 1233 (E.D. Cal. 2015).
Eighth Amendment ...