United States District Court, S.D. California
November 3, 2005.
LINDSAY JOHN MAX, Plaintiff,
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
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.
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.
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.
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.
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