Jones v. Schwartznegger et al

Filing 5

ORDER DISMISSING CASE WITH LEAVE TO AMEND,signed by Magistrate Judge Barbara A. McAuliffe on 06/14/2016. First Amended Complaint due (30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD DAVID JONES, JR.,

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Plaintiff,
v.
SCHWARZENEGGER, et al.,

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Defendants.
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) 1:16-cv-00469-DAD-BAM
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) ORDER DISMISSING COMPLAINT WITH
) LEAVE TO AMEND
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Plaintiff Edward David Jones, Jr. (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, initiated this civil action on April 4, 2016. Plaintiff’s complaint is currently

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before the Court for screening. Doc. 1.

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Screening Requirement

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The Court is required to screen complaints brought by prisoners seeking redress from 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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Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious,

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if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a

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defendant who is immune from such relief.

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

28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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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, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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While persons proceeding pro se actions are still entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor, the pleading standard is now higher,

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening,

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Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the

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Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal,

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556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009).

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss,

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572 F.3d at 969.

The sheer possibility that a defendant acted

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Summary of Plaintiff’s Allegations

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Plaintiff brings this suit on behalf of his deceased mother.

Plaintiff alleges that

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defendants, including the California Department of Corrections and Rehabilitation and certain of

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its employees, are responsible for his mother’s death following her exposure to

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coccidioidomycosis (Valley Fever) spores while visiting Plaintiff in prison.

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Plaintiff alleges that on or about November 28, 2010, his mother, Geneva Jones, visited him at

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Corcoran State Prison, which reportedly is located in an area where Valley Fever is endemic.

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Within 96 hours of her visit, Ms. Jones died. Plaintiff attributes her death to alleged exposure to

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Valley Fever at the prison.

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Specifically,

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Discussion

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A. Representative Suit

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As a general matter, Plaintiff may not prosecute an action on behalf of his deceased

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mother. Generally, pro se plaintiffs are prohibited from pursuing claims on behalf of others in a

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representative capacity. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008); Roll v.

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California Dep’t of Corr. and Rehab., No. 1:08cv1716 LJO DLB, 2008 WL 5385968, *3 (E.D.

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Cal. Dec. 24, 2008) (prisoner could not represent decedent’s estate in pro se). Rather, “in an

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action brought by a pro se litigant, the real party in interest must be the person who ‘by

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substantive law has the right to be enforced.’” Id. (quoting C.E. Pope Equity Trust v. United

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States, 818 F.2d 696, 697 (9th Cir. 1987). Here, it is clear that Plaintiff is not the real party in

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interest as he is attempting to bring claims on behalf of his mother, the decedent.

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B. Claim Preclusion

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Although not entirely clear, it appears that Plaintiff may have pursued claims regarding

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his mother’s death in state court. Doc. 1 at 5, 23-24. If so, the instant action may be barred by

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California’s res judicata, or claim preclusion, doctrine. Claim preclusion in California applies if

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(1) the second lawsuit involves the same “cause of action” as the first, (2) the first lawsuit

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resulted in a final judgment on the merits, and (3) the party claim preclusion is being asserted

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against was a party, or in privity with a party, to the first lawsuit. Bernhard v. Bank of Am. Nat.

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Trust & Sav. Ass'n, 19 Cal.2d 807, 812 (1942); Planning & Conservation League v. Castaic Lake

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Water Agency, 180 Cal.App.4th 210, 226 (2009).

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California courts employ the primary rights theory to determine what constitutes the same

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cause of action for claim preclusion purposes, and under this theory, a cause of action is (1) a

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primary right possessed by the plaintiff, (2) a corresponding primary duty devolving upon the

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defendant, and (3) a harm done by the defendant which consists in a breach of such primary right

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and duty. Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (citing City of Martinez v.

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Texaco Trading & Transp., Inc., 353 F.3d 758, 762 (9th Cir. 2003)). If two actions involve the

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same injury to the plaintiff and the same wrong by the defendant, then the same primary right is

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at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks
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different forms of relief and/or adds new facts supporting recovery. Id. (citing Eichman v.

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Fotomat Corp., 147 Cal.App.3d 1170, 1174, 197 Cal.Rptr. 612 (1983)). If Plaintiff pursued

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claims against defendants in state court concerning his mother’s death after alleged exposure to

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Valley Fever at Corcoran State Prison, then he may not pursue those claims in the instant action.

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Any amended complaint should clarify whether or not Plaintiff has pursued similar claims in

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state court.

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C. Federal Rule of Civil Procedure 8

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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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As noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

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not. Id.; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.

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In this instance, Plaintiff’s complaint is not short or plain. He fails to clearly delineate

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the claims he is pursuing and he fails to identify which, if any, claims are brought on his own

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behalf. Indeed, Plaintiff’s complaint exceeds 170 pages, parts of which are difficult to read or

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understand. If Plaintiff amends his complaint, any such amended complaint should state the

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facts briefly and succinctly and identify the claims he is attempting to bring in this action.

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D. Eighth Amendment

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To the extent Plaintiff is attempting to bring suit alleging a violation of his Eighth

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Amendment rights due to his placement at prison in an area where Valley Fever is endemic, he

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has fails to state a cognizable federal claim. To constitute cruel and unusual punishment in

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violation of the Eight Amendment, prison conditions must involve “the wanton and unnecessary

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infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner’s claim does not

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rise to the level of an Eighth Amendment violation unless (1) “the prison official deprived the

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prisoner of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official
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‘acted with deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

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Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002) (citation omitted)). A

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prison official does not act in a deliberately indifferent manner unless the official “knows of and

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disregards and excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834

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(1994).

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Until recently, courts in this district have found that mere confinement in a location

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where Valley Fever is prevalent fails to pose an excessive risk of harm. Jones v. Hartley, No.

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1:13-cv-01590-AWI-GSA-PC, 2015 WL 1276708, *4 (E.D. Cal. Mar. 19, 2015) (“no courts

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have found that exposure to valley fever spores at the level experienced by the community at

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large presents an ‘excessive risk’ to inmate health”); Williams v. CDCR, No. 1:14-cv-01912-JLT

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(PC), 2015 WL 6669816, at *3 (E.D. Cal. Oct. 29, 2015) (“Unless there is something about a

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prisoner's conditions of confinement that raise the risk of exposure substantially above the risk

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experienced by the surrounding community, it cannot be said that the prisoner is forcibly and

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knowingly exposed to a risk the society would not tolerate to meet the objective component of a

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claim under the Eighth Amendment.”); Montano v. Adams, No. 1:15-cv-0452 DLB PC, 2016

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WL 310175, at *3 (E.D. Cal. Jan. 26, 2016) (inmate cannot state a claim under the Eighth

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Amendment based solely on the exposure to and contraction of Valley Fever); Hines v. Yousseff,

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No. 1:13–cv–00357–AWI–JLT, 2015 WL 164215, *5 (E.D. Cal. Jan.13, 2015) (“Unless there is

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something about a prisoner’s conditions of confinement that raises the risk of exposure

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substantially above the risk experienced by the surrounding communities, it cannot be reasoned

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that the prisoner is involuntarily exposed to a risk that society would not tolerate.”); but c.f.

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Beagle v. Schwarzeneger, 107 F.Supp.3d 1056, 1067 (E.D. Cal. 2014) (finding that mere

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exposure to valley fever is sufficient to state a claim); Jackson v. Davey, No. 1:14-cv-1311-LJO-

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MJS (PC), 2015 WL 3402992, at *5 (E.D. Cal. 2015) (“Plaintiff no longer needs to allege

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particularly susceptibility to valley fever; mere exposure is sufficient to state a claim.”).

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Here, Plaintiff fails to allege facts to indicate that the risk of exposure to Valley Fever at

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Corcoran State Prison is any higher than the surrounding community. “An individual who lives

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out of custody . . . anywhere in the Southern San Joaquin Valley is at relatively high risk for
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exposure to Coccidioides immitis spores. Unless there is something about a prisoner’s conditions

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of confinement that raises the risk of exposure substantially above the risk experienced by the

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surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a

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risk the society would not tolerate.” Hines, 2015 WL 164215, at *4. Therefore, merely being

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confined in an area in which Valley Fever spores are present does not state a claim under the

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Eighth Amendment.

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E. State Law Claims

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Although not entirely clear, Plaintiff appears to assert state law claims.

However,

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Plaintiff has not pled a cognizable federal claim. Pursuant to 28 U.S.C. § 1367(a), in any civil

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action in which the district court has original jurisdiction, the district court “shall have

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supplemental jurisdiction over all other claims that are so related to claims in the action within

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such original jurisdiction that they form part of the same case or controversy under Article III of

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the United States Constitution,” except as provided in subsections (b) and (c). The Supreme

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Court has cautioned that “if the federal claims are dismissed before trial, . . . the state claims

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should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726

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(1966).

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Here, Plaintiff fails to state a claim for relief on his claim of an Eighth Amendment

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violation. 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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The Court will not address Plaintiff’s state law claims unless and until he states a cognizable

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claim for relief under federal law.

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CONCLUSION AND RECOMMENDATION

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Plaintiff’s complaint fails to state a cognizable federal claim. However, as Plaintiff is

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proceeding pro se, the Court will provide him with the opportunity to file a first amended

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complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the

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nature of this suit by adding new, unrelated claims in her amended complaint. George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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the named defendant did that led to the deprivation of Plaintiff’s rights, Iqbal, 556 U.S. at 678-

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79, 129 S.Ct. at 1948-49.

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[sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555

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(citations omitted).

Although accepted as true, the “[f]actual allegations must be

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s first

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amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s complaint is dismissed for failure to state a cognizable claim;

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2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a first

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amended complaint; and

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3. If Plaintiff fails to file a first amended complaint in compliance with this order, the

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Court will recommend that this action be dismissed with prejudice for failure to state

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a claim and for failure to obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 14, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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