Smith v. Schwarzenegger et al

Filing 90

ORDER Granting 87 Request for Clarification, signed by District Judge Susan R. Bolton on 7/23/13. 20-Day Deadline. (Verduzco, M)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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Michael Lenoir Smith,
Plaintiff,

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vs.

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Arnold Schwarzenegger, et al.,
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Defendants.
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No. CV 1-07-1547-SRB
ORDER

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At issue are Defendant Martinez’s Notice of Motion and Motion to Dismiss Plaintiff’s

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Fourth Amended Complaint (“MTD”), and Defendants’ Request for Clarification Regarding

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Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction (“Req. for

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Clarification”). (Doc. 86, MTD; Doc. 87, Req. for Clarification).

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I.

BACKGROUND

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Plaintiff, proceeding pro se, is an inmate incarcerated in the custody of the California

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State Prison, Corcoran. Plaintiff has filed a Fourth Amended Complaint asserting a violation

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of civil rights under 42 U.S.C. § 1983. (Doc. 64, Civil Rights Complaint by a Prisoner,

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Fourth Am. Compl.) Plaintiff has asserted a single claim alleging a violation of the Eighth

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Amendment based on his incarceration at the Pleasant Valley State Prison Complex, a

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California prison facility with a known valley fever epidemic. (Fourth Am. Compl. at 5.)1

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Plaintiff alleges that he has now contracted valley fever but cannot take the valley fever

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medication because he has hepatitis C. (Id. at 10.) Plaintiff alleges that Defendant prison

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officials were aware of the severe risk to his health by housing him in the facility but acted

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with deliberate indifferent to his medical needs by failing to transfer him. (Id. at 10-12, 14.)

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Named Defendants included “John Doe, Appeals Coordinator,” at the Pleasant Valley

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facility. (Id. at 3, 14.) This “John Doe”defendant has been identified as H. Martinez. (Doc.

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70, Order at 2.) Plaintiff alleges that he submitted a grievance complaining that he was being

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exposed to valley fever and requested a transfer but his grievance was “screened out” by the

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Appeals Coordinator for the stated reason that “you cannot grieve an issue that has not

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occurred.” (Fourth Am. Compl. at 5, 8.) Plaintiff alleges that Martinez, as Appeals

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Coordinator, violated his duty to process Plaintiff’s administrative prison grievance, causing

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Plaintiff to contract valley fever and foreclosing his right to a higher level of review. (Id. at

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8,14.)

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II.

LEGAL STANDARDS AND ANALYSIS

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A.

Defendant Martinez’s Motion to Dismiss

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Defendant Martinez contends that Plaintiff’s claim against him should be dismissed

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for failure to state a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure. (MTD at 3-4.) Defendant argues that the claim fails to assert the violation of a

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constitutional right. (Id.)

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However, the Court has already screened Plaintiff’s Fourth Amended Complaint

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pursuant to 28 U.S.C. § 1915A, which uses the same standard as Rule 12(b)(6), Resnick v.

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and found that it states a claim against the

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Defendant John Doe Appeals Coordinator, now identified as Defendant Martinez. (Doc. 65,

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Order at 6 (“Plaintiff has alleged his claim with enough specificity to require an answer with

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The referenced page numbers of the Fourth Amended Complaint are the page
numbers inserted as a result of the electronic filing of the document.
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respect to Defendant Appeals Coordinator”).) Pro se pleadings are held to a less stringent

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standard than pleadings prepared by an attorney. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

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2010). The Court has entered an Order substituting Defendant Appeals Coordinator H.

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Martinez for Defendant Appeals Coordinator John Doe and requiring Defendant Martinez

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to answer the Fourth Amended Complaint. (Doc. 70, Order at 2.) Defendant Martinez’s

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Motion to Dismiss is denied.

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B.

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Defendants Cate, Martinez and Yates request clarification on whether they are

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required to file an opposition to Plaintiff’s Declaration in Support of Plaintiff’s Motion for

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a Temporary Restraining Order and Preliminary Injunction. (Req. for Clarification at 1-2.)

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Defendants state that they typically are not required to oppose such motions in the Eastern

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District of California unless directed to do so by the Court. (Id.) The Court will require

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Defendants to respond to Plaintiff’s Declaration in Support of Plaintiff’s Motion for a

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Temporary Restraining Order and Preliminary Injunction filed on May 13, 2013. (Doc. 85,

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Pl.’s Mot. for TRO and Prelim. Inj.)

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Defendants’ Request for Clarification

IT IS ORDERED denying Defendant Martinez’s Motion to Dismiss Plaintiff’s
Fourth Amended Complaint (Doc. 86).

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IT IS FURTHER ORDERED granting Defendants’ Request for Clarification

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Regarding Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction

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(Doc. 87). Defendants shall file a response to Plaintiff’s Declaration in Support of Plaintiff’s

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Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. 85) within

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twenty (20) days.

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DATED this 23rd day of July, 2013.

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