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Escareno v. Sherman

United States District Court, E.D. California

October 17, 2019

ROBERT ANTHONY ESCARENO, Plaintiff,
v.
STU SHERMAN, Defendant.

          ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION (ECF No. 1.)

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Robert Anthony Escareno (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.

         I. 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).

         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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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 (quotation marks omitted); Moss v. U.S. Secret Serv., 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 (quotation marks omitted); Moss, 572 F.3d at 969.

         II. Plaintiff's Allegations

         A. Plaintiff's Section 1983 Action

         Plaintiff is currently housed at the California Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California, where the events in the complaint are alleged to have occurred. Plaintiff names Warden Stu Sherman as the sole defendant.

         Plaintiff asserts a single claim for cruel and unusual punishment in violation of the Eighth Amendment and alleges as follows: CSATF has a serious and longstanding problem in its Facility A Dining Hall. Water continuously leaks from the ceiling during rain, causing saturated ceiling tiles to disintegrate and mold to form along the walls and ceiling area. Plaintiff asserts that there is no dispute about this fact and references an attached order regarding a Petition for Writ of Habeas Corpus from Kings County Superior Court Judge Donna Tarter dated June 4, 2019.

         Plaintiff further alleges that mold in particular has been a longstanding problem in the Facility A Dining Hall. In February 2017, the California Department of Public Health conducted an environmental health survey at CSATF. The report found, among other things, that the Facility A Dining Hall had “[s]ignificant deterioration of ceiling tiles, ” as well as evidence of water intrusion. The Facility A Dining Hall had “evidence of mold-like-substances.” (ECF No. 1 at 3.) In July 2017, the Office of Appeals Examiners investigating staff also observed mold in the “B” section of the Facility A Dining Hall.

         Plaintiff also alleges that beginning in February 2018, Plaintiff began to experience coughing, red, itchy, watery eyes, a stuff nose and sore throat. Those conditions flared-up when Plaintiff entered the dining hall to consume his meals twice a day. Plaintiff was seen by Nurse Practitioner (“NP”) Ernest Ziegler on April 9, 2018. Plaintiff described to NP Ziegler how every time he enters the dining hall, he experiences the same symptoms. NP Ziegler prescribed Plaintiff nasal spray and eye drops and told Plaintiff that he would have a follow-up appointment with a doctor for “mold spore management.” (Id. at 4.)

         On February 11, 2019, Plaintiff's primary treating physician, Dr. Ryan Kim, testified at an evidentiary hearing before Superior Court Judge Donna Tarter that “daily exposure to the inside of a building with extensive leaks from water contaminated with mold & bird feces poses a risk of illness.” (Id.) Dr. Kim further testified that exposure to mold would aggravate seasonal allergy symptoms, which Plaintiff has had since 2015. Since Plaintiff started experiencing mold spore allergy symptoms and seasonal allergy symptoms while in the dining hall, Plaintiff, approximately 30 different times, had to forego his evening meals because he did not want to deal with worsening symptoms during the night when he was sleeping.

         Plaintiff asserts that as a result of Defendant Sherman forcing him to consume his meals in an environment with massive water intrusion, which caused and created the moldy condition, Plaintiff contracted a mold spore allergy and his seasonal allergies were aggravated by the moldy conditions in the dining hall. Additionally, on 30 different occasions, Plaintiff had to go to ...


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