Westbrook v. Cate et al

Filing 13

FINDINGS and RECOMMENDATIONS Recommending that this Action be Dismissed for Failure to State a Claim 12 , signed by Magistrate Judge Jennifer L. Thurston on 12/12/11. Referred to Judge O'Neill; 21-Day Deadline.(Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERTRUM JAM WESTBROOK,

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Case No. 1:10-cv-01089 LJO JLT (PC)

Plaintiff,

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT THIS ACTION
BE DISMISSED FOR FAILURE TO STATE
A CLAIM

vs.

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MATTHEW CATE, et al.,

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Defendants.

(Doc. 12)
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/

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action

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pursuant to 42 U.S.C. § 1983. By order filed October 20, 2011, the Court screened Plaintiff’s complaint

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and dismissed it with leave to amend. (Doc. 10.) Now pending before the Court is Plaintiff’s amended

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complaint filed November 21, 2011. (Doc. 12.)

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I.

SCREENING REQUIREMENT

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The Court is required to review a case in which a prisoner seeks redress from a governmental

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entity or officer. 28 U.S.C. § 1915A(a). The Court must review the complaint and dismiss any portion

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thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks

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monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). If the Court

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determines the complaint fails to state a claim, leave to amend should be granted to the extent that the

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deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th

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Cir. 2000) (en banc).
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The Civil Rights Act under which this action was filed provides a cause of action against any

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“person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United

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States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws [of the United States.]” 42 U.S.C. § 1983. To prove

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a violation of § 1983, a plaintiff must establish that (1) the defendant deprived him of a constitutional

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or federal right, and (2) the defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988); Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). “A person deprives another of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in

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another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the

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deprivation of which [the plaintiff complains].” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993)

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(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). In other words, there must be an actual

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causal connection between the actions of each defendant and the alleged deprivation. See Rizzo v.

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Goode, 423 U.S. 362, 370-71 (1976).

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim

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showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . .

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. claim is and the grounds upon which it rests[.]’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a plaintiff’s obligation to

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provide the grounds of entitlement to relief under Rule 8(a)(2) requires more than “naked assertions,”

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“labels and conclusions,” or “formulaic recitation[s] of the elements of a cause of action.” Twombly,

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550 U.S. at 555-57. The complaint “must contain sufficient factual matter, accepted as true, to ‘state

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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d

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868, 883 (2009) (quoting Twombly, 550 U.S. at 570) (emphasis added).

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II.

SUMMARY OF AMENDED COMPLAINT

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Plaintiff is currently housed at Pleasant Valley State Prison (“PVSP”) in Coalinga, California.

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In his complaint, Plaintiff identifies the following defendants to this action: Secretary of the California

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Department of Corrections (“CDCR”), Matthew Cate, Warden James Yates, and Chief Medical Officer

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Felix Igbinosa. (Doc. 12).

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In his complaint for damages, Plaintiff alleges as follows: Plaintiff was transferred to PVSP on
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May 24, 2008. By this time, CDCR officials were aware of the existence of an increased risk of Valley

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Fever, in the area surrounding PVSP, as the area has been designated as a “hyperendemic” area. (Doc.

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12 at 1, 4.) Between 2001 and 2005, the California Department of Mental Health constructed Coalinga

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State Hospital which is located in close proximity to PVSP which contributed to this problem. As a

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result of the construction, the rate of contracting the Valley Fever infection peaked in 2006. (Id. at 5.)

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In 2005, PVSP requested the California Department of Health Services (“CDHS”) investigate a Valley

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Fever outbreak occurring at PVSP. (Id.) The CDHS found that the construction of the state hospital and

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the population growth of Coalinga, were likely causes for the increased rate of contracting Valley Fever

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at PVSP. (Id.) The CDHS recommended that: (1) information regarding the disease be provided to

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inmates and staff; (2) high risk inmates be relocated; (3) the prison plant additional ground cover; and

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(4) inmates be allowed to stay indoors on windy days and prior to digging that the ground be watered.

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(Id.)

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In November 20, 2007, in a memo which was forwarded to Defendants, the CDCR State Medical

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Director Dr. Winslow acknowledged the “significant increases” in the rates at which PVSP inmates were

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contracting the disease and ordered PVSP to begin implementing the CDHS’s controls and additionally

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ordered PVSP officials to provide protective masks to inmates, if requested by the inmate. (Doc. 12 at

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5.) Despite Dr Winslow’s memo, Defendants did not implement the required protections. (Id. at 6.) The

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failure of Defendant Cate and Yates to implement protections has been condemned by the Fresno County

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Grand Jury on multiple occasions. (Id.)

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Upon Plaintiff’s arrival at PVSP on May 24, 2008, Plaintiff noticed a large dirt mound located

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between PVSP and the Coalinga State Hospital, apparently left after completion of construction of the

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hospital in 2005. (Doc. 12 at 6.) Plaintiff saw clouds of dust blowing from this dirt mound towards

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PVSP. (Id.) On May 31, 2008, Plaintiff asked a nurse for a protective mask but the nurse denied the

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mask and stated that Plaintiff did not meet the criteria established by a policy developed by Defendant

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Igbinosa. (Id.) Defendant Igbinosa had implemented a policy restricting the issuances of masks to only

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those inmates meeting certain criteria. (Id. at 6.)

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As a result of Defendants’ conduct, Plaintiff contends that in July of 2009, he first experienced

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what he initially believed to be “flu” like symptoms, however he was later diagnosed with Valley Fever.
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(Doc. 12 at 6-7.) Plaintiff contends that since that time, he has continued to suffer from a deterioration

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of his respiratory ability and health. (Id. at 8-9.). Plaintiff alleges a claim of deliberate indifference

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against all three Defendants. In terms of relief, Plaintiff seeks compensatory and punitive damages as

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well as injunctive relief. (Id. at 11.).

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III.

DISCUSSION

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A.

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Plaintiff has attempted to allege an Eighth Amendment claim. The Eighth Amendment protects

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prisoners from inhumane methods of punishment and from inhumane conditions of confinement.

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Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make

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out a conditions of confinement claim, and only those deprivations denying the minimal civilized

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measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation.

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Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). Prisoners may state a

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cause of action under the Eighth Amendment by alleging that prison officials, with deliberate

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indifference, exposed Plaintiff to a serious, communicable disease that poses “an unreasonable risk of

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serious damage to [the prisoner's] future health.” Helling v. McKinney, 509 U.S. 25, 35 (1993).

Eighth Amendment Claim

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In order to demonstrate a claim as to any of the three Defendants, Plaintiff is required to show

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that Defendants: (1) acted under color of state law, and (2) committed conduct which deprived Plaintiff

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of a federal right. Leer v. Murphy, 844 F.2d 628, 632–633 (9th Cir. 1988). “A person deprives another

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of a constitutional right, where that person ‘does an affirmative act, participates in another’s affirmative

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acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation

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of which complaint is made.’” Id. at 988 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

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“[T]he ‘requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which the actor

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knows or reasonably should know would cause others to inflict the constitutional injury.’” Id. (quoting

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Johnson at 743-44).

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B.

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“[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 contract

Valley Fever

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Valley Fever, he is advised that no courts have held that exposure to Valley Fever spores presents an

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excessive risk to inmate health.” King v. Avenal State Prison, 2009 U.S. Dist. LEXIS 20182, 2009 WL

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546212, *4 (E.D. Cal., Mar 4, 2009); see also Tholmer v. Yates, 2009 U.S. Dist. LEXIS 8204, 2009 WL

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174162, *3 (E.D. Cal. Jan. 26, 2009)(“To the extent Plaintiff seeks to raise an Eighth Amendment

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challenge to the general conditions of confinement at PVSP, Plaintiff fails to come forward with

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evidence that Yates is responsible for the conditions of which Plaintiff complaints.”) Defendants cannot,

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therefore, be held liable for subjecting Plaintiff to dangerous conditions, or for a failure to protect

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Plaintiff from exposure to Valley Fever spores.

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Likewise, Plaintiff’s complaint is deficient because it fails to demonstrate that either Cate or

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Yates knowingly disregard a substantial risk to Plaintiff’s health. Mere negligence on the part of the

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prison official is not sufficient to establish liability, but rather, the official’s conduct must have been

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deliberate. Farmer v. Brennan, 511 U.S. 825, 835 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.

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1998). According to Plaintiff’s complaint, the nearby construction which had increased the risk of

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contracting Valley Fever was completed in 2005.1 Thus, though Plaintiff alleges that Defendant Cate

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and Yates were aware that nearby construction occurring from 2001 through 2005 would increase the

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risk of infection and failed to take appropriate steps to mitigate this risk, the construction was completed

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three years prior to Plaintiff’s arrival at PVSP, and almost four years before Plaintiff first displayed

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symptoms from the infection. Even assuming Defendants failed to take appropriate measures to mitigate

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the risk of contracting Valley Fever, the construction of the hospital in the past, at most, demonstrates

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only a remote risk of harm.

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Alternatively, Plaintiff alleges that he requested a protective mask but the request was denied

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because he did not meet the criteria identified by Igbinosa in his policy. Thus, Plaintiff attempts to

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impose liability on Igbinosa on a theory of supervisory liability. To state a claim for relief under § 1983

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for supervisory liability, Plaintiff must allege some facts indicating that the defendant either personally

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participated in the alleged deprivation of constitutional rights, knew of the violations and failed to act

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to prevent them, or promulgated or “implement[ed] a policy so deficient that the policy ‘itself is a

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Plaintiff fails to allege how a dirt mound that had remained in place for three years poses a greater risk of containing
Valley Fever spores than the surrounding soil.

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repudiation of constitutional rights’ and is ‘the moving force of the constitutional violation.’” Hansen

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v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989).

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Though Plaintiff has alleged that Igbinosa implemented a more restrictive mask policy than that

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enacted by the CDCR, Plaintiff has not alleged sufficient facts to demonstrate that Igbinosa was aware

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of and deliberately disregard a risk of harm to Plaintiff’s health. Thus, instead of supporting Plaintiff’s

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claim, the factual allegations demonstrate that Igbinosa gave consideration as to whom would receive

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a protective mask based on criteria that he had predetermined to be medically appropriate. The fact that

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Plaintiff contracted the disease despite that he was not identified as an at-risk inmate, does not suggest

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Defendant Igbinosa was deliberately indifferent to his peculiar risk of harm. Farmer, supra, 511 U.S.

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at 835.

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In sum, Plaintiff has not sufficiently plead facts that support a finding that any of the Defendants
knew of and disregarded an excessive risk to Plaintiff’s health.

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B.

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The Court will not grant Plaintiff leave to amend because it is apparent that the deficiencies

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identified in this order cannot be cured. See Noll v. Carlson, 809 F.2d 1446, 1448–49 (9th Cir.1987)

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(“A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that

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the deficiencies of the complaint could not be cured by amendment.”) (internal quotations omitted).

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Likewise, though the Court has provided Plaintiff leave to amend one time already, he has failed to

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substantively address any of the defects previously noted by the Court.

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IV.

No leave to amend

CONCLUSION

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Accordingly, it is HEREBY RECOMMENDED that:

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This action be DISMISSED for Plaintiff’s failure to state a cognizable claim;

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This case be CLOSED.

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These findings and recommendations are submitted to the United States District Judge assigned

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to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21) days after being

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served with these findings and recommendations, Plaintiff may file and serve written objections with

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the Court. A document containing objections should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated: December 12, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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