Johnson v. Kramer
Filing
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FINDINGS and RECOMMENDATIONS, Recommending That This Case Be Dismissed, With Prejudice, for Failure to State a Claim 12 , signed by Magistrate Judge Gary S. Austin on 3/22/17: 30-Day Objection Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LAMAR JOHNSON,
1:15-cv-01338-LJO-GSA-PC
Plaintiff,
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v.
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NORM KRAMER, et al.,
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Defendants.
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(ECF No. 12.)
OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS
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I.
BACKGROUND
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Lamar Johnson (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. On January 8, 2015, Plaintiff and a
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co-plaintiff, William Stafford, filed the Complaint commencing this action. (ECF No. 1.) On
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September 2, 2015, the court dismissed the Complaint for failure to state a claim, severed
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Plaintiffs’ claims, and directed the Clerk to open a new case for Plaintiff. (ECF No. 2.)
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Plaintiff was ordered to file an amended complaint in his new case. (Id.)
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On October 13, 2015, Plaintiff filed the First Amended Complaint. (ECF No. 8.) On
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June 24, 2016, the court dismissed the First Amended Complaint for failure to state a claim,
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with leave to amend. (ECF No. 11.)
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On July 21, 2016, Plaintiff filed the Second Amended Complaint, which is now before
the court for screening. (ECF No. 12.)
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II.
SCREENING REQUIREMENT
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The in forma pauperis statute provides that “the court shall dismiss the case at any time
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if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief
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may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “Rule 8(a)’s simplified pleading standard
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applies to all civil actions, with limited exceptions,” none of which applies to section 1983
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actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). A
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complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the
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defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
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Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but “[t]hreadbare
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recitals of the elements of a cause of action, supported by mere conclusory statements, do not
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suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not
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required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681
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(9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are
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accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678. However, “the liberal
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pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490
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U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply
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essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union
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Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266,
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268 (9th Cir. 1982)).
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III.
SUMMARY OF SECOND AMENDED COMPLAINT
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Plaintiff is a civilly detained patient held under the Sexually Violent Predator Act at
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Coalinga State Hospital (CSH) in Coalinga, California, in the custody of the California
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Department of State Hospitals (CDSH), where the events at issue in the Second Amended
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Complaint allegedly occurred. Plaintiff names one defendant, Pam Ahlin (“Defendant”).
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Plaintiff makes the following allegations. Plaintiff, an African-American male, has
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resided at CSH since 2011. Plaintiff is housed at CSH for the purpose of receiving psychiatric
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care and treatment for a mental disorder. CSH is located in Fresno County, an area known to
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harbor the fungus Coccidiodomycosis in the soil, which can cause the disease known as Valley
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Fever in individuals residing, visiting, or even passing through an endemic area.
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Defendant Pam Ahlin is and was the Executive Director of CSH, and she is now the
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Executive Director of CDSH. At all times relevant to Plaintiff’s complaint defendant Ahlin
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was in the seat of authority in Sacramento. Defendant Ahlin arranged for Plaintiff to be sent to
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CSH for involuntary mental health treatment.
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Plaintiff holds Defendant responsible for placing him in danger of exposure to Valley
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Fever, with intent to harm. Plaintiff alleges that Defendant had direct and specific scientific
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and medical health knowledge of the dangers of Valley Fever from studies done at nearby
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Pleasant Valley State Prison. CSH’s policies, practice, and the acts of Defendant constitute
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deliberate indifference to Plaintiff’s constitutional and statutory rights to be free of exposure to
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Valley Fever and to be protected against windblown spores. Valley Fever is a serious threat to
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the health of African-Americans. As the result of negligence in Defendant’s decision-making,
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Plaintiff is held in an environment that could potentially cause him to experience a permanent
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crippling physical injury if he becomes infected. Plaintiff is not responsible for his placement
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in the dangerous and threatening environment that harbors Valley Fever spores.
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Plaintiff requests monetary damages, declaratory relief, injunctive relief, costs of suit,
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and attorney’s fees.
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IV.
PLAINTIFF’S CLAIMS
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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or
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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
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2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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As a civil detainee, Plaintiff is entitled to treatment more considerate than that afforded
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pretrial detainees or convicted criminals. Jones v. Blanas, 393 F.3d 918, 931-32 (9th Cir.
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2004). Plaintiff’s right to constitutionally adequate conditions of confinement is protected by
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the substantive component of the Due Process Clause. Youngberg v. Romeo, 457 U.S. 307,
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315, 102 S.Ct. 2452 (1982).
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A.
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The court’s prior screening order found that Plaintiff’s First Amended Complaint failed
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to state a claim, because Plaintiff’s allegations were largely speculative and he failed to allege
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facts showing that any Defendant knew of a substantial risk of serious harm to Plaintiff and
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failed to prevent it.
Prior Screening Order
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Plaintiff’s Second Amended Complaint suffers from the same deficiencies. Plaintiff
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names one defendant, Pam Ahlin, in doing so he fails to describe any personal acts by
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Defendant showing that she knew Plaintiff was at risk of serious harm and consciously
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disregarded the risk, causing Plaintiff harm. As in the First Amended Complaint, Plaintiff
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speculates in the Second Amended Complaint that Defendant knew about the risks of Valley
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Fever because of studies at Pleasant Valley State Prison. Plaintiff again alleges that Defendant
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placed Plaintiff at CSH knowing that he was at substantial risk of serious harm to his health and
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yet failed to put preventative measures in place to reduce the risk of disease at CSH. These
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conclusory statements fail to state any claims against Defendant. Plaintiff has not set forth
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facts in the Second Amended Complaint demonstrating that Defendant personally violated his
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rights.
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B.
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As explained above, section 1983 provides a cause of action for the violation of
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Plaintiff’s constitutional or other federal rights by persons acting under color of state law.
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Nurre, 580 F.3d at 1092; Long, 442 F.3d at 1185; Jones, 297 F.3d at 934. To state a claim,
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Plaintiff must demonstrate that each defendant personally participated in the deprivation of his
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rights. Iqbal, 556 U.S. at 676-77, 129 S.Ct. at 1949; Simmons v. Navajo County, Ariz., 609
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F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.
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2009); Jones, 297 F.3d at 934. Therefore, Plaintiff must link the named defendants to the
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participation in the violation at issue.
Linkage
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Liability may not be imposed on supervisory personnel under the theory of respondeat
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superior, Iqbal, 556 U.S. at 676-77; Simmons, 609 F.3d at 1020-21; Ewing, 588 F.3d at 1235;
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Jones, 297 F.3d at 934, and supervisory personnel may only be held liable if they “participated
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in or directed the violations, or knew of the violations and failed to act to prevent them,”
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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-
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08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012); Corales v. Bennett, 567 F.3d 554, 570
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(9th Cir. 2009). Some culpable action or inaction must be attributable to Defendant and while
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the creation or enforcement of, or acquiescence in, an unconstitutional policy, as alleged here,
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may support a claim, the policy must have been the moving force behind the violation. Starr,
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652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. County
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of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991).
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Defendant Ahlin holds a supervisory position.
Plaintiff has not alleged facts
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demonstrating that Defendant “participated in or directed the violations, or knew of the
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violations and failed to act to prevent them.” Insofar as he cites a policy and/or custom,
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Plaintiff has not demonstrated that any policy or custom was the moving force behind the
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violation. Moreover, Plaintiff alleges conclusory, speculative allegations and has not set forth
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facts upon which the requisite liability may be based. Therefore, Plaintiff fails to state a claim
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against Defendant Ahlin, and Defendant Ahlin should be dismissed from this action.
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C.
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The substantive component of the Due Process Clause protects civil detainees from
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unconstitutional conditions of confinement and ensures a plaintiff’s right to personal safety
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while in a state detention facility. Youngberg, 457 U.S. at 315. Such individuals are “entitled
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to more considerate treatment and conditions of confinement than criminals whose conditions
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of confinement are designed to punish.” Id., 457 U.S. at 321-22.
Fourteenth Amendment
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Plaintiff fails to raise a claim that adequately supports a violation of his rights under the
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Fourteenth Amendment. “Where a particular amendment provides an explicit textual source of
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constitutional protection against a particular sort of government behavior, that Amendment, not
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the more generalized notion of substantive due process, must be the guide for analyzing a
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plaintiff’s claims.” Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal
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quotations, and brackets omitted) overruled on other grounds by Unitherm Food Systems, Inc.
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v. Swift-Eckrick, Inc., 546 U.S. 394 (2006); County of Sacramento v. Lewis, 523 U.S. 833, 842
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(1998).
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constitutional protection.” Patel, 103 F.3d at 874. Therefore, the Eighth Amendment, rather
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than the Due Process Clause of the Fourteenth Amendment, governs Plaintiff’s claims.
In this case, the Eighth Amendment “provides [the] explicit textual source of
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D.
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Under the Eighth Amendment, “prison officials are . . . prohibited from being
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deliberately indifferent to policies and practices that expose inmates to a substantial risk of
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serious harm.” Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir. 2014); see also Helling v.
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McKinney, 509 U.S. 25, 35 (1993); Farmer v. Brennan, 511 U.S. 825, 847 (1994) (prison
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official violates Eighth Amendment if he or she knows of a substantial risk of serious harm to
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an inmate and fails to take reasonable measures to avoid the harm). “Deliberate indifference
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occurs when ‘[an] official acted or failed to act despite his knowledge of a substantial risk of
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serious harm.’” Solis v. Cnty. of Los Angeles, 514 F.3d 946, 957 (9th Cir. 2008). A prisoner
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may state “a cause of action under the Eighth Amendment by alleging that [prison officials]
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have, with deliberate indifference, exposed him to [environmental conditions] that pose an
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unreasonable risk of serious damage to his future health.” Helling, 509 U.S. at 35.
Eighth Amendment
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“The second step, showing ‘deliberate indifference,’ involves a two part inquiry.”
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Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). “First, the inmate must show that the
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prison officials were aware of a ‘substantial risk of serious harm’ to an inmate’s health or
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safety.” Id. (quoting Farmer, 511 U.S. at 837). “This part of [the] inquiry may be satisfied if
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the inmate shows that the risk posed by the deprivation is obvious.” Id. (citation omitted).
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“Second, the inmate must show that the prison officials had no ‘reasonable’ justification for the
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deprivation, in spite of that risk.” Id. (citing Farmer, 511 U.S. at 844 (“[P]rison officials who
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actually knew of a substantial risk to inmate health or safety may be found free from liability if
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they responded reasonably.”) (footnote omitted).
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As explained above, Plaintiff has failed to sufficiently allege that Defendant knew of a
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substantial risk of serious harm and failed to prevent it.
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Defendant had direct and specific scientific and medical health knowledge of the dangers of
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Valley Fever, he has not provided any factual allegations for the court to infer that Defendant
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received documents or other information and was aware of the contents. Even if Plaintiff could
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prove knowledge, he would need to plausibly allege that Defendant exhibited deliberate
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indifference in taking, or failing to take, action. See Lua v. Smith, 2015 WL 1565370 (E.D.
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Cal. 2015). Plaintiff has not done so. Therefore, Plaintiff fails to state a claim for Eighth
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Amendment deliberate indifference against Defendant.
While Plaintiff contends that
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While the Court recognizes that the exact circumstances required to state a claim under
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the Eighth Amendment based on Valley Fever exposure are not clear, it is well settled that
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exposure to, and contraction of, Valley Fever while housed at an endemic institution are not, by
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themselves, sufficient to state a claim under the Eighth Amendment. In other words, the
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premise that the location of CSH is so inherently dangerous due to the presence of Valley Fever
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cannot support a constitutional violation. See Hines v. Youssef, 2015 WL 164215, at *4 (E.D.
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Cal. 2015) (rejecting African-American asthmatic prisoner’s Eighth Amendment claim arising
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from exposure to and contraction of Valley Fever); accord Williams v. Biter, 2015 WL
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1830770, at *3 (E.D. Cal. 2015). This premise is unacceptable where free citizens residing in
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the surrounding areas tolerate this increased risk, regardless of race or medical condition. “An
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individual who lives out of custody . . . anywhere in the Southern San Joaquin Valley is at
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relatively high risk exposure to Coccidioides immitis spores,” and “[u]nless there is something
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about a prisoner’s conditions of confinement that raises the risk of exposure substantially above
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the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is
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involuntarily exposed to a risk society would not tolerate.” Hines, at *4; see also Smith v. State
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of California, Case No. 1:13-cv-0869-AWI-SKO (PC), 2016 WL 398766, *1 (E.D. Cal. Feb. 2,
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2016); see also Cunningham v. Kramer, Case No. 1:15-cv-01362-AWI-MJS (PC), 2016 WL
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1545303 (E.D. Cal. Apr. 15, 2016) (discussing history of case law in Valley Fever cases).
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Therefore, merely being confined in an area in which Valley Fever spores are present
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does not state a claim under the Eighth Amendment. Here, Plaintiff fails to allege facts to
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indicate that the risk of exposure to Valley Fever at Coalinga State Hospital is any higher than
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the surrounding community. Therefore, Plaintiff fails to state a claim for his exposure to
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Valley Fever.
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E.
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Plaintiff does not state the basis for his Fourth Amendment claim and the Court can
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Fourth Amendment
discern no such basis. Accordingly, this claim should be dismissed.
F.
Federal Tort Claims Act
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Plaintiff states that he “invokes the pendent jurisdiction under the Federal Tort Claims
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Act.” (ECF No. 12 at 7.) “The FTCA is a limited waiver of sovereign immunity, authorizing
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suit against the United States for tortious performance of governmental functions in limited
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cases,” Bibeau v. Pacific Northwest Research Found., Inc., 339 F.3d 942, 945 (9th Cir. 2003),
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and the waiver “is strictly construed in favor of the sovereign . . . ,” FDIC v. Craft, 157 F.3d
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697, 707 (9th Cir. 1998). “The United States is the only proper defendant in a [Federal Tort
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Claims Act] action.” Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (citing Woods
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v. United States, 720 F.2d 1451, 1452 n.1 (9th Cir. 1983)).
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In addition, a suit may not be instituted against the United States under the FTCA unless
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the claim is first presented to the appropriate federal agency and one of the following
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conditions is met: the claim is finally denied, or six months have passed without a final
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resolution having been made. 28 U.S.C. § 2675(a). The claim presentation requirement is a
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jurisdictional prerequisite to bringing suit and must be affirmatively alleged in the complaint.
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Gillispie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980).
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Plaintiff fails to allege that he presented a claim to the appropriate federal agency.
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Moreover, Plaintiff has not named the United States as a defendant. Therefore, Plaintiff fails to
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state a claim under the Federal Torts Claim Act.
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G.
State Law Claims
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Plaintiff brings claims for negligence, which is a state tort, and for violation of various
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state statutes and other state laws. Violation of state tort law, state regulations, rules and
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policies of the CDCR, or other state law is not sufficient to state a claim for relief under § 1983.
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Section 1983 does not provide a cause of action for violations of state law. See Galen v. Cnty.
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of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a claim under § 1983, there must
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be a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693
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(1976); also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Gonzaga
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University v. Doe, 536 U.S. 273, 279 (2002).
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Although the court may exercise supplemental jurisdiction over state law claims,
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Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. ' 1367.
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Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original
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jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the
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action within such original jurisdiction that they form part of the same case or controversy
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under Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power exists
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under § 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is
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discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district
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court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . .
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the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
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1367(c)(3). The Supreme Court has cautioned that “if the federal claims are dismissed before
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trial, . . . the state claims should be dismissed as well.” United Mine Workers of America v.
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Gibbs, 383 U.S. 715, 726 (1966).
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Here, because the court finds that Plaintiff has not stated any federal claims in the
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Second Amended Complaint, the Court shall not exercise supplemental jurisdiction over his
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state law claims. Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013) (citing
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28 U.S.C. § 1367(c)(3)). Therefore, Plaintiff’s state law claims should be dismissed.
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V.
CONCLUSION AND ORDER
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The court finds that Plaintiff’s Second Amended Complaint fails to state a claim upon
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which relief may be granted under section 1983. The court previously granted Plaintiff leave to
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amend the complaint, with ample guidance by the court.
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complaints without stating any claims upon which relief may be granted under § 1983. The
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court finds that the deficiencies outlined above are not capable of being cured by amendment,
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and therefore further leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii);
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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
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Therefore, IT IS HEREBY RECOMMENDED that:
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Plaintiff has now filed three
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Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action be
dismissed with prejudice for failure to state a claim upon which relief may be
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granted under § 1983; and
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3.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may
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file written objections with the court. The document should be captioned “Objections to
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Magistrate Judge=s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.
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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
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(9th Cir. 1991)).
The Clerk be directed to close this case
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IT IS SO ORDERED.
Dated:
March 22, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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