Barker v. Hartley et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 1/29/2015. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 1:14 cv 00381 LJO GSA PC

ANTHONY BARKER,

ORDER DISMISSING COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE
AN AMENDED COMPLAINT

vs.

JAMES HARTLEY, et al.,
Defendants

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AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

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Screening Requirement
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule
302 pursuant to 28 U.S.C. § 636(b)(1).

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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).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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II.

Plaintiff’s Claims
Plaintiff, an inmate in the custody of the California Department of Corrections and

Rehabilitation (CDCR) at the California Institute for Men at Chino, brings this civil rights action
against correctional officials employed by the CDCR at Corcoran State Prison and Avenal State
Prison. Plaintiff names the following individual defendants: Former CDCR Director Susan
Hubbard; Correctional Counselor T. May; Dr. A. Duenas; Capt. Brightwell; Dr. M. Bhopari; Dr.
Farooqui; Correctional Counselor Wright.
Plaintiff alleges that in April 2009, he was housed at Avenal State Prison. Plaintiff
alleges that he was forced to exercise outside, exposing him to blowing dust and wind. Plaintiff
alleges that he was exposed to blowing dust despite a memorandum authored by Defendant
Susan Hubbard in 2007 directing CDCR officials to screen certain inmates for susceptibility to

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Valley Fever. Plaintiff, an African American, fell into that category. Plaintiff also alleges that

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despite warnings to halt construction, Defendant Warden Hartley proceeded with construction at

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Avenal in the area of Facility C where Plaintiff was housed at the time. Plaintiff was eventually

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diagnosed with Valley Fever. Plaintiff alleges that he asked Defendant Dr. Duenas for a specific

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treatment regimen for his Valley Fever, which was denied.

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A.

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

Valley Fever

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman,

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452 U.S. 337, 347 (1981). A prisoner‟s claim does not rise to the level of an Eighth Amendment

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violation unless (1) “the prison official deprived the prisoner of the „minimal civilized measure

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of life‟s necessities,‟” and (2) “the prison official „acted with deliberate indifference in doing so.‟”

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Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d

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732, 744 (9th Cir. 2002) (citation omitted)). A prison official does not act in a deliberately

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indifferent manner unless the official “knows of and disregards an excessive risk to inmate health

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or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Courts have yet to find that exposure

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to valley fever spores presents an excessive risk to inmate health.

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Even if exposure to valley fever spores did present an excessive risk to inmate health,
“[d]eliberate 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

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be drawn that a substantial risk of serious harm exists,‟ but that person „must also draw the

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inference.‟” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “„If a prison official should have

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been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no
matter how severe the risk.‟” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175,
1188 (9th Cir. 2002)).
Further, the courts of this district have found such claims to be insufficient. “[T]o the
extent that Plaintiff is attempting to pursue an Eighth Amendment claim for the mere fact that he
was confined in a location where Valley Fever spores existed which caused him to contract

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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)(“To the extent Plaintiff seeks to raise an Eighth Amendment challenge to the general

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conditions of confinement at PVSP, Plaintiff fails to come forward with evidence that Yates is

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responsible for the conditions of which Plaintiff complaints.”) More recently, in addressing a

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claim that CDCR officials are responsible for the contraction of valley fever by knowingly

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housing an African American inmate with a history of asthma in an endemic area, it has been

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held that “unless there is something about a prisoner‟s conditions of confinement that raises the

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risk of exposure substantially above the risk experienced by the surrounding communities, it

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cannot be reasoned that the prisoner is involuntarily exposed to a risk that society would not

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tolerate.” Hines v. Yousseff, 2015 WL 164215, *5 (E.D. Cal. Jan. 13, 2015). Plaintiff cannot

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therefore state a claim for relief simply because he was housed in an endemic area. Plaintiff may,

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however, state a claim for relief for deliberate indifference to his serious medical needs.

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Plaintiff is advised that the allegations in this case indicate, at most, a disagreement with

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the course of his treatment. Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989). Mere difference of

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opinion between a prisoner and prison medical staff as to appropriate medical care does not give
rise to a section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th Cir. 2000); Franklin v. Oregon,
662 F.2d 1337, 1344 (9th Cir. 1981). Plaintiff has not alleged any facts suggesting that
Defendants were deliberately indifferent to his serious medical needs. The complaint must
therefore be dismissed. Plaintiff will, however, be granted leave to file an amended complaint.

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Plaintiff need not, however, set forth legal arguments in support of his claims. In order to
hold an individual defendant liable, Plaintiff must name the individual defendant, describe where
that defendant is employed and in what capacity, and explain how that defendant acted under
color of state law. Plaintiff should state clearly, in his or her own words, what happened.
Plaintiff must describe what each defendant, by name, did to violate the particular right described
by Plaintiff. Plaintiff has failed to do so here.
III.

Conclusion and Order
The Court has screened Plaintiff‟s complaint and finds that it does not state any claims

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upon 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

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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he

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may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint. George, 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

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each named defendant did that led to the deprivation of Plaintiff‟s constitutional or other federal

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rights, Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must

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be [sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 554 (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,

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567 (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

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original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d
at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord
Forsyth, 114 F.3d at 1474.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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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

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an amended complaint;
4.

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Plaintiff may not add any new, unrelated claims to this action via his amended
complaint and any attempt to do so will result in an order striking the amended

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Plaintiff‟s complaint is dismissed, with leave to amend, for failure to state a

complaint; and
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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.

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Dated:

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/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE

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January 29, 2015