Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wishum v. Brown

United States District Court, N.D. California

March 27, 2015

MELVIN WISHUM, et al., Plaintiffs,
EDMUND G. BROWN, et al., Defendants.


WILLIAM H. ORRICK, District Judge.

The plaintiffs bring an action under 42 U.S.C. § 1983 on behalf of Markise Wishum ("the DECEDENT"), ALLEGING THAT THE DEFENDANTS FAILED TO PROVIDE THE DECEDENT WITH ADEQUATE MEDICAL CARE while he was incarcerated, ultimately leading to his death. The complaint was dismissed twice before being transferred to me. Now defendant Matthew Cate, the former Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), moves to dismiss the plaintiffs' first amended complaint ("FAC"), arguing that it fails to state a claim upon which relief can be granted against him.

This matter is appropriate for resolution without oral argument, and the hearing scheduled for April 1, 2015 is VACATED pursuant to Civil Local Rule 7-1(b). I agree with Cate that the FAC does not adequately plead a causal connection between his actions and the alleged violations of 42 U.S.C. § 1983, and GRANT the motion to dismiss. I will allow leave to amend one last time.


I accept all statements of fact set forth in the FAC as true. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir. 2012). The decedent was incarcerated in the Salinas Valley State Prison when he was diagnosed with Metastic Squamous Cell Carcinoma. FAC ¶¶ 3, Id. ¶ 3. "The successful treatment of [the decedent's] cancer required that various test[s] and procedures be followed once [he] was released into the Salinas Valley Prison." Id. However, this treatment was not administered. Id.

In May of 2010 the decedent had a CT scan that failed to detect a new tumor near his eye. Id. ¶ 15. Although the hospital required that the decedent have another CT scan two to three months afterwards, he did not. Id. Around June of 2010, the decedent began complaining of headaches, requested a medication change, and noticed a swelling over his left eye. Id. He did not see a doctor until February 2, 2011, nearly eight months after the symptoms began and the follow-up tests should have been administered. Id. On February 24, 2011, the decedent was admitted to the hospital for possible chemotherapy. Id.

The decedent, as well as the plaintiffs, "gave timely notice to each of the individual [d]efendants that [the decedent] was being denied desperately needed medical care for the cancer that he feared might return." Id. The decedent's "condition deteriorated as a result of the failure to provide competent nursing and medical staff to fulfill assigned responsibilities[;] failure to provide a safe environment; failure to provide competent mental health evaluators/physicians to fulfill assigned responsibilities; [and] failure to maintain proper records to provide optimal health care." Id. ¶ 4. The decedent died in August 2011.

Plaintiffs filed the FAC after the Court dismissed their complaint with prejudice against state actors protected by the Eleventh Amendment and without prejudice against the individual defendants, including Cate. Order (1) at 6-7 (Dkt. No. 23). Defendant Edmund Brown moved to dismiss the FAC for failure to state a claim against him, which the Court granted. Order (2) at 6 (Dkt. No. 37). While defendant Cate's motion to dismiss the FAC was pending, this matter was transferred to me.


Federal Rule of Civil Procedure 12(b)(6) requires a district court to dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim is plausible on its face when the facts pleaded "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " and present "more than a sheer possibility" that the defendant acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations omitted). A plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570. In resolving a Rule 12(b)(6) motion, the court accepts the plaintiff's allegations as true and draws all reasonable inferences in its favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.2008).


A prisoner bringing a claim under section 1983 for an Eighth Amendment violation must establish (i) that a prison official deprived him of the "minimal civilized measure of life's necessities, " and (ii) that the official acted with deliberate indifference. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal citations and quotations omitted). The plaintiffs must demonstrate that Cate either acted with deliberate indifference or that his conduct was so reckless that it was tantamount to a desire to inflict harm. Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011).

Deliberate indifference may be based upon a "supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her subordinates." Id. at 1207. A supervisor may be subject to liability if (i) he was personally involved in the constitutional deprivation; or (ii) a sufficient causal connection exists between the supervisor's wrongful conduct and the constitutional violation. Id. In the latter case, the plaintiffs may establish a causal connection by showing that the supervisor set in motion a series of wrongful acts by others, or that he "knowingly refus[ed] to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.