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Jaspar v. Khoury

January 29, 2009

MATTHEW LEE JASPAR, PLAINTIFF,
v.
KHOURY, ET AL., DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff asserts a claim of deliberate indifference to medical needs pursuant to section 1983, as well as supplemental state law claims of conspiracy, negligence, and emotional distress. Currently before the court is defendants' June 23, 2008, motion to dismiss pursuant Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons explained below, the court finds that defendants' motion must be granted in part and denied in part.

I. Facts

In November 2002, plaintiff was transferred from California State Prison-Corcoran to the California Medical Facility ("CMF"). Compl. ¶ 1. While at Corcoran, plaintiff, who is HIV-positive, received testosterone treatments to combat metabolic dysfunction symptoms. Id. at ¶¶ 1, 2. Upon plaintiff's arrival at CMF, defendant Aguilera, a physician at CMF, discontinued the testosterone treatments without examining plaintiff and refused to supplement plaintiff's treatment with alternative measures. Id. at ¶¶ 2, 3. Plaintiff alleges that Aguilera discontinued the treatments because defendant Bick informed him that budget constraints prevented treatment for plaintiff's condition. Id. at ¶ 2. Plaintiff further alleges that defendants Bick, Khoury and Donahue supervised and acquiesced to Aguilera's treatment. Id. at ¶¶ 5, 7. As a result of the denied testosterone treatments, plaintiff suffers from deterioration of muscle tissue, accumulation of visceral fat, and malaise. Id. at ¶ 4.

II. Standards on Motion to Dismiss

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, U.S. , 127 S.Ct. 1955, 1964, 1969, 1974 (2007) (stating that the 12(b)(6) standard that dismissal is warranted if plaintiff can prove no set of facts in support of his claims that would entitle him to relief "has been questioned, criticized, and explained away long enough," and that having "earned its retirement," it "is best forgotten as an incomplete, negative gloss on an accepted pleading standard"). Thus, the grounds must amount to "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action. Id. at 1965. Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citation omitted). Dismissal may be based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

The complaint's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

The court may disregard allegations contradicted by the complaint's attached exhibits. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987)). The court may consider matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991)). "[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.

Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice of the deficiencies and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

III. Analysis

A. Deliberate Indifference

Defendants contend that the court should dismiss plaintiff's deliberate indifference claims against defendants Bick, Khoury and Donahue because plaintiff seeks to hold them liable based on a theory of vicarious liability, apparently based on the doctrine of respondeat superior. This, however, is not a basis for asserting liability under section 1983.

To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions of the named defendants and the alleged deprivations. See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation 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 complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual defendant's causal role in the alleged constitutional deprivation. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

Supervisory personnel are generally not liable under § 1983 for the actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ( "There is no respondeat superior liability under § 1983."). A supervisor is only liable for the constitutional violations of subordinates if the supervisor participated in or directed the violations, or had actual knowledge of the violations and failed to act to prevent them. Id. When a defendant holds a supervisory position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978).

Here, plaintiff has failed to allege direct participation in constitutional violations by Khoury or Donahue. Rather, it appears that plaintiff is seeking to impose liability under the doctrine of respondeat superior, that is, because the aforementioned defendants are supervisors, they are responsible for the actions or omissions of their employees. However, as noted above, respondeat superior liability is not a basis for recovery in a section 1983 action. Plaintiff must allege an actual connection or link between the actions of the named defendants and the alleged violation of ...


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