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Lopez v. Burris

United States District Court, N.D. California

November 20, 2014

BURRIS, et al., Defendants.


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.


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.


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).


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 state of mind of deliberate indifference to his serious medical needs. These defendants are dismissed, but plaintiff will be provided one final opportunity to amend.

B. Statute of Limitations

The statute of limitations for civil actions filed in California is two years, as set forth at California Civil Procedure Code § 335.1, which is the applicable statute in § 1983 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). Because an inmate suffers from the disability of imprisonment, an inmate has, for claims accruing after 2002, four years to bring a § 1983 claim for damages in California, i.e., the regular two-year period under section 335.1 plus two years during which accrual was postponed due to the disability of imprisonment. California Civil Procedure Code § 352.1(a); Johnson v. State of California, 207 F.3d 650, 654 (9th Cir. 2000).[2] Under federal law, a claim generally accrues for calculating the statutory limitations period when the plaintiff knows or has reason to know of the injury which is the basis of the action. See TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999).

Plaintiff describes incidents when he had asthma attacks for which treatment was delayed on various dates from 2005 to 2012. Plaintiff filed this case on February 14, 2013.[3] Incidents that occurred before February 14, 2009, are dismissed from this action as untimely. Incidents that occurred on February 17, 2009, April 27, 2009, April 28, 2009, June 24, 2009, June 28, 2009, June 30, 2009, March 23, 2012, and March 25, 2012 will continue.

The allegations against defendant Burris involve his investigation into plaintiff's gang activity that led to his placement in the SHU. Burris' involvement occurred on March 19, 2008. Amended Complaint, Ex. A at 15-16. Burris is dismissed from this action as his involvement occurred well before February 14, 2009.


The motion to dismiss (Docket No. 17) is GRANTED, and the amended complaint is dismissed with leave to amend, as discussed above, within twenty-eight (28) days of the date this order is filed and must include the caption and civil case number used in this order and the words SECOND AMENDED COMPLAINT on the first page. Defendant Burris is dismissed from this action. Because an amended complaint completely replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the prior complaints by reference. Failure to amend within the designated time will result in the dismissal of all defendants except Nurse Polly and this case will only continue against him.


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