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MAX v. HERNANDEZ

United States District Court, S.D. California


November 3, 2005.

LINDSAY JOHN MAX, Plaintiff,
v.
ROBERT J. HERNANDEZ, et al., Defendants.

The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge

Plaintiff, a state prisoner, has filed this civil rights action under 42 U.S.C. § 1983 alleging that Defendants violated his Eighth Amendment right to medical care and to be free from cruel and unusual punishment by failing to provide him with a proper diet and proper medical care to manage his Crohn's disease, and by failing to transfer him to a facility where he can receive proper care. Defendants have filed a Motion to Dismiss the Third Amended Complaint (TAC). Plaintiff has, through counsel, filed an Opposition and Defendants have filed a Reply. Since this motion is adequately briefed, oral argument would not materially aid the Court in resolution of this motion. As such, the Court finds this motion appropriate for submission on the papers and without oral argument, pursuant to Local Rule 7.1(d)(1). For the reasons set forth herein, it is recommended that Defendants' Motion to Dismiss be GRANTED IN PART and DENIED IN PART with leave to amend. Background

Plaintiff initially filed his complaint in this case on June 15, 2004, alleging that Defendants Hernandez, Ritter, and Hunt had violated his Eighth Amendment right to adequate medical care and to be free from cruel and unusual punishment by failing to provide him with a proper diet and proper medical treatment for his Crohn's disease. On July 27, 2004, Plaintiff was granted leave to file a First Amended Complaint ("FAC"), adding claims against six new Defendants. By separate order filed on this date, Plaintiff was granted leave to file a Second Amended Complaint, dismissing his claims against Defendants Conway, Raupe, and Cota, and supplementing the factual allegations with regard to Defendants Hernandez, Ritter, Hunt, and Jenkins. Upon review of the SAC, this Court concluded that Plaintiff's claims against Defendant Hernandez were properly dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. Plaintiff, now represented by counsel, has subsequently filed a Third Amended Complaint in which Plaintiff names the State of California, by and through the Department of Corrections; Robert Hernandez, Warden of Richard J. Donovan Correctional Facility; Steven Ritter, M.D.; J.B. Hunt, M.D.; D. Jenkins, M.D.; C.B. Smith; and F. Williams. Defendants moved to dismiss the action pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) on the grounds that Plaintiff's Third Amended Complaint fails to state a claim upon which relief can be granted.

Discussion

  Defendants move to dismiss Plaintiff's Third Amended Complaint (TAC) on the following three grounds: 1) the Eleventh Amendment bars Plaintiff's claim under 42 U.S.C. § 1983 against Defendant State of California, by and through the Department of Corrections; 2) the TAC fails to state a cause of action against Defendant Hernandez; and 3) that Plaintiff fails to state a cause of action under 42 U.S.C. Section 1983 against Defendants Ritter, Hunt, Jenkins, Smith and Williams.

  1. Eleventh Amendment — Sovereign Immunity

  Plaintiff names the California Department of Corrections (CDC) as a defendant in this action. However, as an "arm" of the state, the CDC itself is shielded from liability under the Eleventh Amendment. Id. at 70; Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1988). "[I]n the absence of consent a suit in which the State*fn1 or one of its agencies or department is named as the defendant is proscribed by the Eleventh Amendment. This jurisdictional bar applies regardless of the nature of the relief sought." Pennhurst v. Halderman, 465 U.S. 89, 100 (1984) (citations omitted). Furthermore, section 1983 does not abrogate this immunity since a state is not a "person" for purposes of the statute. Will v. Michigan Dept of State Police, 491 U.S. 58, 62 (1989). Agencies and subdivisions of a state are not "persons" within the meaning of section 1983; therefore they are not subject to a suit for damages under section 1983.*fn2 Section 1983 claims against states, therefore, are legally frivolous. See Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989).

  Therefore, Plaintiff's claims against the CDC, undisputably a department of the state, are prohibited by the Eleventh Amendment even though he seeks prospective relief. The state has not consented to be sued under section 1983 and Congress did not override the states' sovereign immunity when it enacted section 1983. Will, 491 U.S. at 67; Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498 (9th Cir. 1990).

  The Eleventh Amendment, however, "does not bar actions against state officers in their official capacities if the plaintiff seeks only a declaratory judgment or injunctive relief." Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir. 1989) (internal quotations omitted); Pennhurst, 465 U.S. at 104-06. "It is well established that the Eleventh Amendment does not bar a federal court from granting prospective injunctive relief against an officer of the state who acts outside the bounds of his authority." Porter v. Bd. of Trustees, Manhattan Beach Unified Sch. Dist., 307 F.3d 1064 (9th Cir. 2002) (quoting Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 (9th Cir. 1994); Ex parte Young, 209 U.S. 123, 159-60 (1908)). This standard allows courts to order prospective injunctive relief, see Edelman v. Jordan, 415 U.S. 651 (1974); Milliken v. Bradley, 433 U.S. 267 (1977), as well as measures ancillary to appropriate prospective relief. Green v. Mansour, 474 U.S. 64, 71-73 (1985). Injunctive relief, however, is available only if there is a "real or immediate threat that the plaintiff will be wronged again." City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Federal courts may not award retrospective relief, for instance money damages or its equivalent, if the State invokes its immunity. Edelman, 415 U.S. at 668.

  Defendants have moved to dismiss Plaintiff's claim under 42 U.S.C. Section 1983 against Defendant State of California, by and through the California Department of Corrections (CDC), on the ground that the Eleventh Amendment prohibits suits against a state or one of its agencies and section 1983 does not abrogate this immunity as a state or state agency is not a "person" for purposes of the statute. Alternatively, Plaintiff argues that the Eleventh Amendment does not bar suits for prospective injunctive relief pursuant to section 1983. In support of this proposition, Plaintiff cites Edelman v. Jordan, which states that "a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief . . . and may not include a retroactive award which requires the payment of funds from the state treasury." 415 U.S. 651, 677 (1974).

  The Court, however, is not moved by Plaintiff's argument, because, as set forth above, the CDC is undisputably a department of the state, and suits against such departments are prohibited by the Eleventh Amendment regardless of the relief sought. Will, 491 U.S. at 67; Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498 (9th Cir. 1990). While the Eleventh Amendment does not bar a federal court from granting prospective injunctive relief against an officer of the state who acts outside the bounds of his authority,*fn3 such suits are brought against officials in their personal capacities even if the complaint does not explicitly mention the capacity in which they are sued.*fn4 Where a plaintiff seeks damages against a state official, this "necessarily implies" a personal capacity suit because damages against a state official based on acts alleged to have been taken in his official capacity would be barred by the Eleventh Amendment. Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990); Cerrato, 26 F.3d at 973 n. 16. As such, Plaintiff's argument that when individual officials are named as defendants in actions for prospective relief, it is understood that the real party in interest is the state itself, is wholly without merit.

  Plaintiff also cites Clement as being supportive of the above proposition. Clement v. California Dept. of Corrections, 364 F.3d 1148 (9th Cir. 2004). However, factually, Clement is distinguishable from the instant case. In Clement, the Plaintiff provided uncontroverted evidence that at least eight California prisons had adopted a policy banning all internet-generated mail, and that more were considering it. The Court reasoned that since a substantial number of California prisons were considering or had enacted virtually identical policies, the unconstitutional policy had become sufficiently pervasive to warrant system-wide relief. Id. As such, the district court properly addressed the injunction to all prisons under CDC control because, "[t]he scope of injunctive relief is dictated by the extent of the violation established." Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir. 2001) (quoting Lewis v. Casey, 518 U.S. 343, 359 (1996).

  The facts Clement differ substantially from those of the instant case, as Plaintiff has not demonstrated that he was subjected to an unconstitutional CDC policy, but rather alleges constitutional violations by personnel at the Richard J. Donovan Correctional Facility (Donovan). Since Plaintiff's allegations of constitutional violations are limited to officials from Richard J. Donovan Correctional Facility, he has not demonstrated or alleged policies sufficiently pervasive to warrant system-wide relief granted in Clement. For these reasons, the Court recommends that Defendants' Motion to Dismiss the State of California, by and through the California Department of Corrections, as a defendant in this action be GRANTED.

  2) Third Amended Complaint Fails to State a Cause of Action Against Defendant Hernandez

  In his TAC, Plaintiff alleges that Warden Hernandez, "was specifically aware of Plaintiff's condition and his urgent need for a transfer to a suitable medical facility where he could be placed on a special diet, and yet did nothing to accommodate Plaintiff." [TAC at p. 8]. Plaintiff further alleges that during his incarceration at Donovan that he "complained frequently and brought several administrative appeals regarding his lack of proper treatment." [TAC at 8]. Plaintiff argues that because he "pursued each of his administrative appeals to or beyond Warden Hernandez, Hernandez became aware of each of Plaintiff's grievances regarding his need for transfer and to be placed on a special diet." [TAC at 8]. Plaintiff contends that Warden Hernandez is liable under section 1983 because he was aware of such grievances, but took no action to secure the relief "urgently" needed by the Plaintiff. [TAC at 8]. However, as stated previously in the Court's Order of January 24, 2005, these allegations are insufficient to state a claim for relief as to Warden Hernandez under the Eighth Amendment.

  A person deprives another "of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). To state a claim against a state official under section 1983, the complainant must allege direct personal participation by the defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor is only liable for the constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and with deliberate indifference, failed to act to prevent them. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Taylor, 880 F.2d at 1045. If there is no affirmative link between a defendant's conduct and the alleged injury, there is no deprivation of the plaintiff's constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370 (1976).

  Plaintiff's TAC fails to allege that Warden Hernandez "participated in" or in any way "directed" the alleged violations of his rights. Although Plaintiff does allege that Warden Hernandez knew that Plaintiff was being denied medical care, Plaintiff alleges only that Hernandez learned of the denial as a result of his processing of Plaintiff's administrative appeals. Plaintiff does not allege that Hernandez had actual knowledge of any facts, or that Hernandez was "deliberately indifferent" to his medical needs or "failed to act" to prevent the injuries of which Plaintiff claims. Thus, Plaintiff's TAC fails to state a claim against Warden Hernandez.

  As such, this Court again recommends that Defendants' Motion to Dismiss Defendant Hernandez be GRANTED as Plaintiff's TAC fails to state a cause of action against Defendant Hernandez. Plaintiff should be given leave to amend the complaint with direction to cure its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (dismissal of complaint as frivolous); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff has once previously amended his complaint, with assistance of counsel, with regard to his claims against Warden Hernandez. See Lopez, 203 F.3d at 1131. Thus, it is recommended that Defendants' Motion to Dismiss claims against Warden Hernandez in the TAC be GRANTED with leave to amend.

  3) Third Amended Complaint Fails to State a Cause of Action under 42 U.S.C. Section 1983

  As to the remaining Defendants, Ritter, Hunt, Jenkins, Smith and Williams, Defendants move to dismiss the TAC arguing that Plaintiff failed to state a cause of action under 42 U.S.C. § 1983 against these Defendants. A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhoades, 416 U.S. 232, 236 (1974).

  The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bozelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to pro se civil rights complaint, however, the court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.

  Accepting as true, all material allegations in the TAC, as well as reasonable inferences to be drawn therefrom, and in the light most favorable to the plaintiff, this Court finds that the Plaintiff has adequately pled a cause of action under 42 U.S.C. § 1983 against the remaining Defendants. Since the Court must look not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims",*fn5 the Court recommends that Defendants Motion to Dismiss be DENIED as to the remaining Defendants, Ritter, Hunt, Jenkins, Smith and Williams.

  Conclusion

  For the reasons set forth herein, it is recommended that Plaintiff's claims against the State of California, by and through the California Department of Corrections, and Warden Hernandez in the TAC be dismissed with leave to amend. This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1) (1988). Any party may file written objections with the court and serve a copy on all parties by November 22, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed by December 7, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

  IT IS SO ORDERED.

20051103

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