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November 17, 2005.

TRACEY PABON, Plaintiff,
STUART RYAN, et al., Defendants.

The opinion of the court was delivered by: LEO PAPAS, Magistrate Judge

Defendant Stuart Ryan, Warden of Calipatria State Prison (hereafter "Defendant Ryan") moves to dismiss Plaintiff's 1st and 2nd causes of action of Plaintiff's First Amended Complaint (hereafter "FAC"). Plaintiff did not file an Opposition to the Motion. The Court, having reviewed Defendant's Motion, the FAC and GOOD CAUSE APPEARING, HEREBY RECOMMENDS:

1. Procedural Background

  On February 9, 2005, Plaintiff Tracey Pabon, a prisoner presently incarcerated at Calipatria State Prison, proceeding pro se (hereafter "Plaintiff") filed a Complaint against Defendants Arnold Angelici, Richard Torchia, Donald R. Garsh (hereafter respectively "Angelici," "Torchia" and "Garsh") Defendant Ryan and the Dental Board of California. On April 11, 2005, Plaintiff filed a FAC against Defendants Ryan, Angelici, Garsh and Torchia. The FAC states causes of action for (1) violation of 42 U.S.C. § 1983 (hereafter "§ 1983" or "Section 1983") — that Defendants were deliberately indifferent to Plaintiff's dental needs; (2) violation of § 1983 — Defendants subjected Plaintiff to cruel and unusual punishment, and; (3) Negligence.*fn1 Defendant Ryan moves to dismiss the 1st and 2nd causes of action against him. Plaintiff has not filed an Opposition to the Motion to Dismiss.

  2. Facts

  Plaintiff alleges that he suffered improper dental care by Defendants Angelici, Torchia and Garsh, while he was an inmate at Calipatria State Prison. He alleges that Defendant Angelici improperly extracted one of his wisdom teeth, causing him severe pain and serious injuries. Thereafter, Plaintiff alleges that Defendants Angelici, Torchia and Garsh either refused to treat him, or improperly treated him, made false notations in his medical file, and did not correct the false notations, despite stated intentions to do so. Plaintiff further asserts that Defendant Ryan responded to his administrative appeal concerning Defendant Angelici two months after Defendant Angelici's alleged conduct. (FAC paragraphs 10, 40) Defendant Ryan's response to the appeal reflects that he relied on the professional opinion of Defendant Angelici's supervisor, Defendant Garsh. (FAC paragraph 40) Plaintiff also alleges that Defendant Ryan was later apprised of Plaintiff's dental condition by one of the other Defendants, yet allowed the other Defendants to treat him, despite knowledge of his condition and his complaints.

  3. Standards for Motion To Dismiss

  Under Federal Rule of Civil Procedure 12 (b) (6), dismissal for failure to state a claim is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" in the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 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. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). Unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim, a complaint cannot be dismissed without leave to amend. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the Univ. 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. Nevertheless, the court must give a pro se litigant leave to amend his complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). Thus, before a pro se civil rights complaint may be dismissed with prejudice, the court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 893 F.2d at 623-24.

  4. Plaintiff Cannot Establish That Defendant Ryan Was Deliberately Indifferent to his Dental Needs, or that Defendant Ryan Subjected Him to Cruel and Unusual Punishment

  Defendant Ryan contends that he cannot be held liable in this case because there is no respondeat superior liability under § 1983.

  A person deprives another "of a constitutional right, within the meaning of § 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).*fn2 There is no respondeat superior liability under § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). "Causation is . . . a required element of a § 1983 claim." Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986).

  Thus, to avoid the respondeat superior bar, the plaintiff must allege personal acts by the defendants which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Paine v. City of Lompoc, 265 F.3d 975, 984 (9th Cir. 2001) (whether or not each defendant "is a participant in the incidents that could give rise to liability" is a necessary element of the § 1983 claim). Section 1983 provides for relief only against those who, through their personal involvement as evidenced by affirmative acts, participation in another's affirmative acts, or failure to perform legally required duties, cause the deprivation of the plaintiffs' constitutionally protected rights. Johnson, 588 F.2d at 743.

  To state a claim against a state official under § 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).

  In this case, Plaintiff's FAC does not contain allegations that Defendant Ryan participated in the decisions and/or treatment regarding Plaintiff's dental care. Instead, it appears that Defendant Ryan relied on the professional opinions of Defendants Angelici and Garsh in responding to Plaintiff's appeal regarding Defendant Angelici's treatment. Plaintiff does allege that Defendant Ryan was apprised of his condition and treatment, yet allowed the other Defendants to continue to treat him. That Defendant Ryan had knowledge of Plaintiff's condition and treatment may support Plaintiff's 3rd cause of action for negligence. However, Plaintiff's causes of action for ...

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