Honesto v. Brown

• Decision Date: 01 March 2017
• Docket Number: No. 2:15-cv-0076 AC P,2:15-cv-0076 AC P
• Parties: PETER HONESTO, Plaintiff, v. GOVERNOR JERRY BROWN, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

PETER HONESTO, Plaintiff, v. GOVERNOR JERRY BROWN, et al., Defendants.

No. 2:15-cv-0076 AC P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 1, 2017

ORDER and FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner currently incarcerated at Chuckawalla Valley State Prison in Blythe (Riverside County), under the authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, and request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Rule 302(c).

For the reasons set forth below, the court grants petitioner's request to proceed in forma pauperis; screens plaintiff's complaint pursuant to 28 U.S.C. § 1915A; notifies plaintiff of the deficiencies in his complaint; and dismisses the complaint with leave to file a First Amended Complaint. The court grants in part and denies in part plaintiff's motion to submit additional evidence and add parties. Finally, the undersigned recommends to the district judge that plaintiff's request for preliminary injunctive relief be denied.

II. In Forma Pauperis Application

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff's request to proceed in forma pauperis, ECF No. 6, will be granted.

Plaintiff is still required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

III. Legal Standards For Screening Prisoner Complaints Under 28 U.S.C. § 1915A

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an arguable legal and factual basis.

A district court must construe a pro se pleading liberally to determine if it states a potentially cognizable claim. The court must explain to the plaintiff any deficiencies in hiscomplaint and accord plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. Rule 8 of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (citation and internal quotation and punctuation marks omitted).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

IV. Screening Plaintiff's Complaint Under 28 U.S.C. § 1915A

A. Plaintiff's Allegations

Plaintiff filed his complaint while incarcerated at the California Institution for Men (CIM), in Chino (San Bernardino County),¹ challenging conditions of his confinement when previously incarcerated at Avenal State Prison in Kings County. Plaintiff avers that he is disabled, "with a permanent head injury and hearing impairment." ECF No. 1 at 6. Supporting exhibits indicate that plaintiff suffered head injuries following a 1999 altercation with another inmate, resulting in left side hearing loss and intermittent numbness on the left side of his face. Id. at 19-20 (Ex. C).

Plaintiff alleges that he contracted Pulmonary Coccidioidomycosis ("Valley Fever"), when previously housed at Avenal State Prison, prior to August 2013. Valley Fever is a fungal lung disease caused by the inhalation of spores endemic to desert soils, including California's SanJoaquin Valley. Plaintiff alleges that when he initially complained of joint aches and muscle spasms, the only relief provided by medical staff was issuance of a lower bunk chrono. Plaintiff's evidence pertinent to this period include the following medical records (Ex. A,² ECF No. 1 at 13-7):

• September 22, 2010 "Coccidioidal Serology Report," in which the "Findings establish current illness as a primary coccidioidal infection as yet well focalized." ECF No. 1 at 14.

• October 15, 2010 ""Coccidioidal Serology Results," construed as follows, id. at 13:

His serum of 8 OCt is positive for coccidioidal CF (IgG) by immunodiffusion and it is negative by complement fixation. Serologically, his coccidioidal infection still appears to be of limited extent. [Please advise] on the patient's clinical status.

• October 8, 2010 chest x-rays revealing in pertinent part, id. at 15:

There is patch density in the right lower lobe which may be consistent with the history of cocci. . . . Right lower lobe infiltrate. Follow-up suggested.

On August 1, 2013, plaintiff was transferred to CIM. There he was told by correctional staff that Avenal prisoners who contracted Valley Fever were being transferred to CIM for treatment. On August 8, 2013, plaintiff was seen by CIM physician Dr. Christopher Pollick for a Chronic Care Followup Visit for, among other things, a "[h]istory of pulmonary coccidioidomycosis." ECF No. 1 at 17 (Ex. A). Dr. Pollick's "Chronic Care Followup/Progress Note" provides in pertinent part, id.:

Regarding his coccidioidomycosis, apparently the patient was initially diagnosed 09/14/2010. Since that time two negative titers, 01/15/2010 IgG positive but less than 1:2 and on 01/26/2011 he had a negative titer and a negative IgG. A chest x-ray was negative 12/20/2010. His fluconazole [antifungal used to treat Valley Fever] was stopped in March 2011 so that patient has been off fluconazole now for over two years. He denies any cough, night sweats, weight loss, fever.. . . EXTREMTITIES: No edema, cyanosis or clubbing. MUSCULOSKELETAL: . . . [H]e said that he has had problems [with] chronic joint pain since having the coccidioidomycosis. All of his joints were without deformity, warmth, redness or decreased range of motion. He gets up and down easily from a chair that is 18 inches off the floor. He does this smoothly and without outward signs of discomfort such as grimace or groan. NEUROLOGIC: Alert and oriented x 4. No focal deficits in strength or sensation noted. Gait is symmetric, not antalgic. He exhibits no signs of ataxia.

Also on August 8, 2013, plaintiff submitted a CDCR 22 requesting that, in addition to pain meds, he be provided with a lower bunk chrono and referral to an optometrist. ECF No. 1 at 18 (Ex. B).

Plaintiff alleges that Dr. Pollick failed to provide him with appropriate treatment or referral to a specialist, instead providing only "IBU profein" for his joint aches and muscle spasms after plaintiff filed an Inmate Appeal. Id. at 5. Plaintiff provides a copy of a January 27, 2014 prescription from Dr. Pollick for 600 mg Ibuprofen, to be taken three times a day "as needed for pain." Id. at 16. Plaintiff alleges that his complaints to CIM medical staff of chronic joint aches and muscle spasms resulted only in a delayed prescription for ibuprofen. Id. at 5. Plaintiff avers that "Chino [CIM] medical staff like Avenal medical staff failed to document plaintiff's verbal complaints or answer a request for interview when plaintiff complained about the joint aches and muscles spasms that continue today." Id.

Plaintiff requested a review of his medical record, which he examined on February 26, 2014. Plaintiff alleges he then confirmed he was infected with Valley Fever and immediately submitted a CDC-602 Medical Appeal. Id. at 5. This appeal was exhausted through the Director's Level with a finding that plaintiff's tests for Valley Fever were negative, as set forth below, see id. at 34-7 (Ex. E); see also ECF No. 8 at 11-4 (Ex. D):

• First Level Review, issued April 1, 2014, notes that plaintiff's appeal was received on February 28, 2014. Dr. Pollick interviewed plaintiff on March 21, 2014. In pertinent part, plaintiff sought appropriate medical care for Valley Fever.

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