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Lopez v. Burris

United States District Court, N.D. California

November 20, 2014

ROBERTO CAMPA LOPEZ, Plaintiff,
v.
BURRIS, et al., Defendants.

ORDER GRANTING MOTION TO DISMISS RE: DKT. NO. 17

JAMES DONATO, District Judge.

Plaintiff, a state prisoner proceeding pro se, has brought a civil rights action under 42 U.S.C. § 1983. Defendants have filed a motion to dismiss citing failure to state a claim. Plaintiff has filed an opposition, and defendants have filed a reply. The motion is granted.

I. BACKGROUND

Plaintiff states that he suffers from periodic asthma attacks. He alleges that defendants Burris, Rice, Lewis, Cate, Sayre and Polly have knowingly caused him to suffer dangerous delays in receiving emergency medical attention for his asthma. He states that they have done so by retaining him in the Secured Housing Unit ("SHU") at Pelican Bay State Prison ("PBSP") where inmates have to wait up to thirty minutes for emergency care, instituting policies causing such delays, failing to correct such delays, and in the case of defendant Polly, actually providing delayed medical care.[1] Defendants argue in this motion to dismiss that plaintiff has failed to allege sufficient personal involvement by several of the defendants as they are supervisors and many of his allegations are time barred.

II. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). All allegations of material fact are taken as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (courts are not bound to accept as true "a legal conclusion couched as a factual allegation"). "A plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotation marks omitted). Rather, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id.

A motion to dismiss should be granted if the complaint does not proffer enough facts to state a claim for relief that is plausible on its face. See id. at 558-59, 574. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (citation omitted).

The Court may consider exhibits attached to the complaint, see Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), as well as documents referenced extensively in the complaint and documents that form the basis of a plaintiff's claims. See No. 84 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003).

"In a § 1983 suit or a Bivens action - where masters do not answer for the torts of their servants - the term supervisory liability' is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Iqbal, 556 U.S. at 677 (finding under Twombly, and Rule 8 of the Federal Rules of Civil Procedure, that complainant-detainee in a Bivens action failed to plead sufficient facts "plausibly showing" that top federal officials "purposely adopted a policy of classifying post-September-11 detainees as of high interest' because of their race, religion, or national origin" over more likely and non-discriminatory explanations).

A supervisor may be liable under § 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). A plaintiff must also show that the supervisor had the requisite state of mind to establish liability, which turns on the requirement of the particular claim - and, more specifically, on the state of mind required by the particular claim - not on a generally applicable concept of supervisory liability. Oregon State University Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012).

III. DISCUSSION

A. Supervisory Defendants

Defendant Lewis is the former warden of PBSP, and the only allegation in the complaint is that he "was made aware of the deliberate indifference to plaintiff's serious medical needs via plaintiff's indefinite retention in the SHU, but [he] failed to do anything about it via his supervisory role." Amended Complaint at 9. Plaintiff repeated the same allegation against defendant Cate, Secretary of California Department of Corrections and Rehabilitation. Id. at 10. The same allegation is repeated against defendant Sayre, the Chief Medical Officer at PBSP, and plaintiff states that Sayre created a policy in 2008 that all medical providers should only give essential constitutional care, no common, minor, or uncomfortable issues should be addressed. Id. at 11.

All of these defendants are dismissed because plaintiff has failed to demonstrate a personal involvement in the constitutional deprivation or a sufficient causal connection between the defendants' actions and the constitutional violation. His conclusory statements that defendants were made aware of the violations and failed to act are insufficient under Iqbal. Plaintiff argues that he sent letters to these defendants describing the issues. However, these letters were sent after the alleged incidents, and assuming that defendants read the letters, plaintiff has still failed to present sufficient allegations to show a ...


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