Whitney v. Walker et al
Filing
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ORDER GRANTING Defendants' Motion to Dismiss for Failure to State a Claim and DISMISSING Action 31 , signed by Magistrate Judge Dennis L. Beck on 2/25/13: This action is DISMISSED with prejudice; All other pending motions are denied as moot; and The Clerk of the Court is DIRECTED to close this action. (CASE CLOSED ) (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOEL P. WHITNEY,
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Plaintiff,
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v.
Case No. 1:10-cv-01963-DLB PC
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM AND DISMISSING
ACTION
J. WALKER, et al.,
ECF No. 31
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Defendants.
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I.
Background
Plaintiff Joel P. Whitney (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s
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Third Amended Complaint, filed November 17, 2011, against Defendants Walker, Greenman,
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McElroy, Boparai, Malogi, Campbell, Nay, Blackwell, Chapnick, and Zamora for deliberate
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indifference in violation of the Eighth Amendment.
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On June 14, 2012, Defendants Walker, Boparai, Chapnick, Malogi, McElroy, Zamora, Nay,
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and Campbell filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
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Procedure for Plaintiff’s failure to state a claim upon which relief may be granted. ECF No. 31.1 On
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July 5, 2012, Plaintiff filed his opposition. ECF No. 33. On July 13, 2012, Defendants filed their
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reply. ECF No. 34. The matter is submitted pursuant to Local Rule 230(l).
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Defendants Greeman and Blackwell have not been served in this action. Defendant Campbell joined the
motion on September 13, 2012. ECF No. 36.
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II.
Legal Standard
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The focus of any Rule 12(b)(6) dismissal . . . is the complaint.” Schneider v. California
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Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for
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failure to state a claim, the court must accept as true the allegations of the complaint in question,
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Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the
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light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor.
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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The federal system is one of notice pleading.
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Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).
Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim
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showing that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter,
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accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at
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555). While factual allegations are accepted as true, legal conclusions are not. Id.
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III.
Summary of Third Amended Complaint
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Plaintiff is incarcerated at Avenal State Prison (“ASP”) in Avenal, California, where the
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events giving rise to this action occurred. Plaintiff names as Defendants: J. Walker, Chief of the
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California Prison Health Care Services, Office of Third Level Appeals; L. D. Zamora, Chief of the
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California Prison Health Care Services; Ellen Greenman, Chief Medical Officer at ASP; Donald B.
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McElroy, Chief Executive Officer, Health Care Services at ASP; M. Boparai, Chief Physician and
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Surgeon at ASP; S. Malogi, R.N. & Healthcare Advocate at ASP; Gospha Campbell, medical doctor
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at ASP; J. Nay, healthcare appeals coordinator at ASP; and Robert Chapnick, Chief Medical
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Executive at ASP.
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Plaintiff alleges the following. In November 2007, CDCR officials issued a memorandum
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(“Valley Fever Memo”) to all Wardens, Health Care Managers, Chief Medical Officers, and Nursing
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Directors, among others, at CDCR institutions statewide. The Valley Fever Memo observed that in
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2005, two prisons in California’s San Joaquin Valley had experienced significant increases in the
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number of inmate-patients presenting with coccidioidomycosis (“valley fever”), with deaths
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attributed to the disease. The Valley Fever Memo listed eight prisons, including ASP, in the area of
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greatest risk for exposure to valley fever, and it gave directions for identifying and transferring
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certain inmates at these eight prisons because of their heightened risk of developing health problems
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related to the disease.
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Plaintiff arrived at ASP on November 5, 2007. On January 15, 2009, physician assistant Safi
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signed a lab report indicating a PSA level of 6.29 in Plaintiff’s blood, indicating possible cancer. On
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January 21, 2009, Defendant Campbell requested and signed a Physician Request for Services Form
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for Plaintiff to be seen by Dr. Gene Hori for possible cancer. On May 22, 2009, Dr. Hori diagnosed
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Plaintiff with prostatic carcinoma and sent his findings to ASP medical department. Dr. Hori
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referred Plaintiff to Dr. Longo for radiation treatment for his cancer.
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On October 2, 2009, Dr. Longo notified Dr. Hori that he had completed the treatment. On
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December 21, 2009, Plaintiff went to Facility IV Medical Clinic at ASP complaining of chest pain.
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Plaintiff was transported to Bakersfield Memorial Hospital, where two wedges of the upper left lobe
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of Plaintiff’s lung were removed. A biopsy indicated that the lesion had been caused by a serious
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infection from valley fever. Plaintiff submitted a 602 inmate appeal on January 20, 2010 regarding
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his concerns of reinfection with ASP. Defendants Campbell, Nay, Malogi, Boparai, Greenman,
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McElroy, and Walker denied Plaintiff’s appeal, stating that chest x-rays were negative for valley
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fever and a medical transfer was not medically indicated. On May 4, 2010, Defendant Campbell
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diagnosed Plaintiff with moderate to severe Chronic Obstructive Pulmonary Disease (“COPD”).
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Plaintiff now uses several asthma inhalers.
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Plaintiff filed a second inmate appeal, contending that he should be transferred to another
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facility because of his COPD and because ASP suffers from dust storms that sometimes cause
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painful asthma attacks. Defendants Blackwell, Malogi, Boparai, Nay, Chapnick, McElroy and
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Zamora denied this appeal, finding that a medical transfer would not be adequate medical treatment.
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Plaintiff referred to and included as exhibits Plaintiff’s inmate appeals and his relevant
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medical records. On January 20, 2010, Plaintiff filed an inmate grievance, seeking a transfer from
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ASP to an institution located outside the “valley fever hyperendemic” (i.e., the area of greatest
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concern). Defendants Boparai and Malogi denied the grievance at the first level of review.
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After noting that Plaintiff had been examined by his treating physician, who determined that (i)
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Plaintiff had no active valley fever, (ii) his laboratory results were negative for leucopenia, and (iii)
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his chest x-ray results were negative for valley fever, Defendants Boparai and Malogi explained that
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Plaintiff’s request for a transfer from ASP was “medically not indicated.”
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Plaintiff appealed the denial of his grievance to the second level of review. Defendants
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McElroy and Nay denied Plaintiff’s appeal for the reasons provided at the first level of review. In
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addition, the Second-Level Appeal Response observed that under the terms of the Valley Fever
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Memo, inmates like Plaintiff who had already been infected did not qualify for transfer out of the
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valley fever hyperendemic, as such a transfer was no longer medically appropriate. Finally, Plaintiff
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appealed to the Director’s Level of review, where Defendant Walker denied Plaintiff’s grievance for
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the reasons stated in the first- and second-level appeal responses.
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IV.
Analysis
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A.
Legal Standard
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The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution does not
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mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation
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omitted). A prisoner’s claim of inadequate medical care does not rise to the level of an Eighth
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Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal civilized
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measure of life’s necessities,’” and (2) “the prison official ‘acted with deliberate indifference in
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doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296
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F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an
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objective and a subjective prong. First, the alleged deprivation must be, in objective terms,
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“sufficiently serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298
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(1991)). Second, the prison official must “know[] of and disregard[] an excessive risk to inmate
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health or safety . . . .” Id. at 837.
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“Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under this
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standard, the prison official must not only ‘be aware of the facts from which the inference could be
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drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’”
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Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the
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risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the
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risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
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Defendants contend that Plaintiff fails to state a claim as to Plaintiff’s alleged injury from
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contracting valley fever, and subsequently remaining at ASP despite being diagnosed with COPD.
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The Court will examine each claim in turn.2
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B.
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Plaintiff contends that Defendants knew that Plaintiff had a weakened immune system and
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was receiving cancer treatment, but failed to remove Plaintiff from ASP. Plaintiff then contracted
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valley fever. Defendants contend that they were not aware of any possible harm until after Plaintiff
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filed his inmate grievance. Defendants submit in support citations to Plaintiff’s exhibits, which were
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incorporated by reference in Plaintiff’s Third Amended Complaint. Defendants contend that the
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exhibits demonstrate no knowledge of any substantial risk of serious harm by any of the Defendants
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responding to Plaintiff’s January 2010 inmate grievance.3
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Claim One
The submitted exhibits indicate that Defendants Nay, Malogi, Boparai, Greenman, McElroy,
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and Walker were apprised of Plaintiff’s prior medical history at the time Plaintiff filed his inmate
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appeal. In order to demonstrate deliberate indifference, Plaintiff must allege facts which indicate
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that Defendants knew of and disregarded an excessive risk of serious harm to Plaintiff’s health.
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Farmer, 511 U.S. at 837. The exhibits incorporated by reference in Plaintiff’s Third Amended
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Complaint do not demonstrate that Defendants Nay, Malogi, Boparai, Greenman, McElroy, and
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Walker knew that Plaintiff had been diagnosed with cancer or had a weakened immune system and
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should thus be transferred from ASP.4
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Plaintiff does not state a claim against Defendant Campbell. Though Plaintiff contends that
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Defendant Campbell referred Plaintiff to Dr. Hori for possible prostate cancer, the submitted exhibits
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do not indicate that Defendant Campbell was aware that Plaintiff had cancer until January 21, 2010,
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Plaintiff contends that because the Court has screened his Third Amended Complaint pursuant to 28 U.S.C. §
1915A(a), Defendants’ motion is improperly brought. However, Defendants are not precluded from filing a 12(b)(6)
motion even if the Court had screened Plaintiff’s complaint for sufficiency of the pleadings to state a claim.
Additionally, the Court may revisit any order prior to final judgment. Fed. R. Civ. P. 54(b).
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There does not appear to be a dispute as to the objective prong of Plaintiff’s Eighth Amendment claim.
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Though Defendant Greenman has not appeared in this action, Defendants’ arguments apply as well.
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after Plaintiff had allegedly already contracted valley fever. Pl.’s Third Am. Compl., Ex. A-2.
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Plaintiff’s exhibit, cited in support of his claim, indicates that Defendant Campbell, like Defendants
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Nay, Malogi, Boparai, Greenman, McElroy, and Walker, were not aware that Plaintiff had cancer
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until after Plaintiff had contracted valley fever. Thus, even liberally construing Plaintiff’s complaint
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pursuant to Iqbal, Plaintiff has not alleged sufficient facts to indicate that Defendant Campbell knew
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of and disregarded an excessive risk of serious harm to Plaintiff’s health.
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C.
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Plaintiff contends that he has COPD and that his continued presence at ASP, which is in an
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Claim Two
area known to be hyperendemic valley fever, constitutes an excessive risk of serious harm to
Plaintiff’s health.
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Based on the criteria set forth by CDCR regarding medical transfers for inmates with certain
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conditions, medical transfers from ASP are only for inmates who have COPD and require ongoing
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intermittent or continuous oxygen therapy. Pl.’s Third Am. Compl., Ex. E. Defendants Blackwell,
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Malogi, Boparai, Nay, Chapnick, McElroy and Zamora denied Plaintiff’s inmate appeal requesting a
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transfer, finding that it would not be medically necessary. Defendant Zamora in denying Plaintiff’s
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appeal at the third level of review informed Plaintiff that medical transfers were limited to inmates
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who had COPD and required intermittent or continuous oxygen therapy. Pl.’s Third Am. Compl.,
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Ex. I. Defendant Zamora found that Plaintiff was not receiving intermittent or continuous oxygen
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therapy and thus did not qualify for a transfer.
Even liberally construing Plaintiff’s pleadings, Plaintiff does not state an Eighth Amendment
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claim. Defendants denied Plaintiff’s inmate appeal for transfer based on CDCR’s criteria for
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transfers set forth in the Valley Fever Memo. Based on the submitted exhibits, Plaintiff was
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prescribed medication for his COPD. By requesting a medical transfer, Plaintiff is essentially
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requesting specific treatment, which amounts at most to a difference of opinion between Plaintiff
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and the medical staff at ASP, which is not sufficient to state a claim. Jackson v. McIntosh, 90 F.3d
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330, 332 (9th Cir. 1996).5
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Though Defendant Blackwell has not been served, the same analysis applies here. Plaintiff alleges at most a
difference of opinion, which fails to state an Eighth Amendment claim.
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D.
Dismissal of Action
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Plaintiff fails to state an Eighth Amendment claim against any Defendants. Plaintiff was
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provided several opportunities to amend his complaint to state a claim, but was unable to do so. The
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Court does not find that Plaintiff will be able to cure the deficiencies in his pleadings, and will thus
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dismiss this action with prejudice. Lopez v. Smith, 203 F.3d 1122, 1130 (2000) (en banc).
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V.
Conclusion and Order
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Based on the foregoing, it is HEREBY ORDERED that:
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1. Defendants’ Motion to Dismiss, filed June 14, 2012, is granted;
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2. This action is dismissed with prejudice for failure to state a claim upon which relief may
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be granted;
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3. All other pending motions are denied as moot; and
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4. The Clerk of the Court is directed to close this action.
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IT IS SO ORDERED.
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Dated:
/s/ Dennis
February 25, 2013
L. Beck
UNITED STATES MAGISTRATE JUDGE
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