Smith v. Cate et al
Filing
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ORDER Dismissing Complaint, with Leave to File Amended Complaint within Thirty Days, signed by Magistrate Judge Gary S. Austin on 11/17/11. (Attachments: # 1 Amended Complaint form)(Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RODNEY SMITH,
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Plaintiff,
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CASE NO. 1:10-cv-01088 AWI GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS
v.
MATTHEW CATE, et al.,
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(ECF No. 1)
Defendants.
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Screening Order
I.
Screening Requirement
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant
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to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.
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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a).
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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the
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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading
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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330
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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements
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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257
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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
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II.
Plaintiff’s Claims
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The events at issue in this action occurred at Pleasant Valley State Prison (PVSP) in
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Coalinga, where Plaintiff was housed at the time. Plaintiff is currently housed at Kern Valley State
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Prison in Delano. Plaintiff names as defendants the following individuals employed by the
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California Department of Corrections and Rehabilitation (CDCR): Matthew Cate, Secretary of
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Corrections and Rehabilitation; Former Secretary James Tilton; James Yates, Warden at PVSP; F.
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Igbinosa, Chief Medical Officer at PVSP.
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Plaintiff was received into CDCR custody in 1986. Plaintiff was “perfectly healthy,” and was
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not suffering from any diseases. (Compl. ¶ 27.) In August of 2006, Plaintiff was transferred to
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PVSP. In November of 2007, Plaintiff suffered from flu-like symptoms such as sore throat,
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persistent cough, chills and night sweats. These symptoms persisted for a month, then stopped. In
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February of 2008, Plaintiff requested to be tested for valley fever. Plaintiff had a chest x-ray, which
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showed no signs of lung problems. A blood test for valley fever came back negative.
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On June 13, 2008, Plaintiff was seen at the PVSP medical clinic. Although an x-ray did not
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indicate any signs of lung problems, Plaintiff was prescribed Fluconazole and Vitamin C, the
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standard treatment for valley fever. On August 6, 2008, and December 30, 2008, Plaintiff tested
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positive for valley fever. Plaintiff alleges that x-rays taken in March and November 2009 and March
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2010 revealed a lesion in the base of his right lung, which did not appear until after Plaintiff
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contracted valley fever. Plaintiff alleges “that to this day, Plaintiff cannot perform any strenuous
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exercise without experiencing shortness of breath and occasional chest pain.” (Compl. ¶ 33.)
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A.
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Plaintiff alleges that he would not have contracted valley fever had he not been transferred
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to PVSP. “[T]o the extent that Plaintiff is attempting to pursue an Eighth Amendment claim for the
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mere fact that he was confined in a location where Valley Fever spores existed which caused him
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to contract Valley Fever, he is advised that no courts have held that exposure to Valley Fever spores
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presents an excessive risk to inmate health.” King v. Avenal State Prison, 2009 WL 546212, *4
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(E.D. Cal., Mar 4, 2009); see also Tholmer v. Yates, 2009 WL 174162, *3 (E.D. Cal. Jan. 26,
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2009).“[T]o the extent that Plaintiff is attempting to pursue an Eighth Amendment claim for the mere
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fact that he was confined in a location where Valley Fever spores existed which caused him to
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contract Valley Fever, he is advised that no courts have held that exposure to Valley Fever spores
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presents an excessive risk to inmate health.” King v. Avenal State Prison, 2009 WL 546212, *4
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(E.D. Cal., Mar 4, 2009); see also Tholmer v. Yates, 2009 WL 174162, *3 (E.D. Cal. Jan. 26, 2009).
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Defendants cannot, therefore, be held liable for subjecting Plaintiff to dangerous conditions, or for
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a failure to protect Plaintiff.
Valley Fever
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B.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096
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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part
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test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by
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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or
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the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was
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deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059
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(9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th
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Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a
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purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused
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by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Where a prisoner is alleging a delay
Eighth Amendment Medical Care Claim
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in receiving medical treatment, the delay must have led to further harm in order for the prisoner to
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make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely
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v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).
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In order to hold any of the named defendants liable under the Eighth Amendment, Plaintiff
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must alleges some facts indicating that they knew of and disregarded a serious risk to Plaintiff’s
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health. As noted, Defendants can not be held liable merely because Plaintiff was housed at PVSP.
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Plaintiff must allege some facts indicating that the medical response to his condition was deliberately
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indifferent as that term is defined above. Plaintiff has not alleged any such facts. This claim should
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therefore be dismissed.
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III.
Conclusion and Order
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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon
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which relief may be granted under section 1983. The Court will provide Plaintiff with the
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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.
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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not
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change the nature of this suit by adding new, unrelated claims in his amended complaint. George,
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507 F.3d at 607 (no “buckshot” complaints).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each
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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,
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Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must be
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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.
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Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted).
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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,
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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567
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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded
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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an original
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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing
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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at
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1474.
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;
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The Clerk’s Office shall send to Plaintiff a complaint form;
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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
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amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended
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complaint and any attempt to do so will result in an order striking the amended
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complaint; and
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5.
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If Plaintiff fails to file an amended complaint, the Court will recommend that this
action be dismissed, with prejudice, for failure to state a claim.
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IT IS SO ORDERED.
Dated:
6i0kij
November 17, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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