The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS
On June 9, 2008, Robert Lionel Sanford ("Plaintiff"), a California prisoner proceeding pro se, filed an action against Defendants pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) On November 6, 2008, Defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), alleging that Plaintiff failed to state a claim against Defendants upon which relief can be granted because Plaintiff did not allege facts that state a claim under 42 U.S.C. § 1983. (Doc. No. 14 at 2.) This Court granted in part and denied in part the motion to dismiss, and further allowed Plaintiff to amend his complaint to allege further facts against Defendant Levin. (Doc. No. 45.)
The Court is presented with a renewed motion to dismiss Defendant Matthew Cate, Director of the California Department of Corrections, and Defendant Levin, Chief Medical Officer at Calipatria State Prison.*fn1
For the reasons below, the Court GRANTS Defendants' motion to dismiss Defendant Cate and DENIES Defendants' motion to dismiss Defendant Levin.
A. Standard of Review: Fed. R. Civ. P. 12(b)(6)
Defendants move to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. No. 14.) Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a short and plain statement of the claim that demonstrates that the pleader is entitled to some relief. The United States Supreme Court observed in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), that detailed factual allegations are not required under Rule 8, but the pleader cannot merely state "the-defendant-unlawfully-harmed-me" accusations. 550 U.S. at 555. Similarly, pleadings that simply state labels, legal conclusions, or formulaic recitations of the elements of a cause of action are insufficient and cannot withstand a Rule 12(b)(6) motion to dismiss, Twombly, 550 U.S. at 557, and the court does not have to accept as true any legal conclusions within a complaint, although conclusions can help frame a complaint. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
When evaluating a motion to dismiss, allegations of material fact are accepted as true and viewed in a light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Courts presume that a complaint's general allegations include the specific facts necessary to support the allegations. Nat'l. Org. For Women v. Scheidler, 510 U.S. 249, 256 (1994). Courts are not bound solely to the allegations in the complaint, but may consider additional documentation included with the complaint to determine whether plaintiff can prove a set of facts in support of his allegations. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Moreover, a court is not required to credit legal conclusions cast in the form of factual allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
To withstand a motion to dismiss, the complaint must contain sufficient factual matter, if accepted as true, that states a claim to relief that is plausible on its face. Iqbal, 129 S. Ct. at 1949. A complaint is facially plausible if the court, examining the factual content of the allegations, draws the reasonable inference that the defendant is liable for the conduct alleged. Id. Mere possibility that the defendant is liable is insufficient; the pleaded facts must demonstrate that, if true, defendant's liability is plausible. Id. A court should dismiss a complaint if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). While courts generally treat pro se pleadings under a less stringent standard than pleadings drafted by attorneys, Haines v. Kerner, 404 U.S. 519, 520 (1972), courts should not assume that a plaintiff can prove facts which the plaintiff has not alleged. Assoc. Gen. Contractors of Cal., Inc. V. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Plaintiff's Amended Complaint does not allege sufficient factual allegations against Defendant Cate to survive a motion to dismiss. The Amended Complaint alleges that Defendant Cate, as Director of the California Department of Corrections, should have developed policies and procedures to avoid the alleged misconduct that Plaintiff suffered. (Doc. No. 1 at 2.) Plaintiff's original complaint against Defendant Cate fails to state a claim, however, because Plaintiff alleges that Defendant Cate is liable in his capacity as supervisor of the Department of Corrections. There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir. 1993). To avoid the respondeat superior bar, Plaintiff must allege personal involvement to show (a) how or to what extent the supervisor personally participated in or directed his subordinate's actions, and (b) in either acting or failing to act, how the supervisor was an actual and proximate cause of Plaintiff's deprivation of constitutional rights. See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff's original complaint did not allege any personal involvement by Defendant Cate, or any personal involvement in the deprivation of Plaintiff's constitutional rights, other than asserting a theory of respondeat superior, and therefore Plaintiff states no claim to which he can receive relief.
Accordingly, the Court grants Defendants' Motion to Dismiss Defendant Cate.
Plaintiff's Amended Complaint alleges that Defendant Levin violated Plaintiff's rights under the Eighth Amendment by failing to provide adequate medical care. (Doc. No. 43 at 2.) Plaintiff alleges that Defendant Levin did not receive instructions to remove Plaintiff's surgical packing. (Doc. No. 43 at 2-3.) The Court notes, however, that Plaintiff's surgeon did instruct Defendant Levin to remove the surgical packing in a progress note. (Doc. No. 43, Ex. AA.) Plaintiff also alleges that Defendant Levin is not qualified as an Ear-Nose-Throat physician, and therefore Defendant Levin was not qualified to remove the packing or to properly recognize improper healing or scarring. (Doc. No. 43 at 3.) Plaintiff indicates that he was taken to Defendant Levin after complaining of pain, and that Defendant Levin recognized some spot bleeding (Doc. No. 43 at 4), but Defendant Levin did not provide additional medical treatment, including any medication or recommendation, stating instead that pain and spot bleeding were normal for the healing process. (Doc. No. 43 at 5.) Several hours after seeing Defendant Levin, Plaintiff's surgical site ruptured and caused profuse ...