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Wishum v. Brown

United States District Court, N.D. California

June 25, 2015

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


WILLIAM H. ORRICK, District Judge.

Markise Wishum died of cancer. His parents, plaintiffs Melvin Wishum and Chrystal Tyler, assert that defendant Matthew Cate, the former Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), was deliberately indifferent to their son's serious medical needs while he was incarcerated. Their complaint has been dismissed three times. See Dkt. Nos. 23, 37, 54. For reasons unexplained, Cate is the only defendant plaintiffs served with the Second Amended Complaint ("SAC"). Despite the directions in my earlier Order that dismissed the First Amended Complaint ("FAC") against Cate and detailed the information needed to state a plausible claim, the SAC once again fails to adequately plead a causal connection between Cate's actions and a violation of 42 U.S.C. § 1983. Because plaintiffs' counsel admitted at oral argument that he had no other allegations to add to the claim against Cate, I GRANT the motion to dismiss with prejudice.


I accept all statements of material fact presented in the SAC as true. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir. 2012). In my most recent Order, I discussed the factual background of this case, which is substantially the same as in the FAC. See Order at 1-2 (Dkt. No. 54). The decedent was diagnosed with Metastatic Squamous Cell Carcinoma while he was incarcerated. SAC ¶ 3. He was treated for the cancer at the Natividad Medical Center and went into remission between September 2009 and May 2010, at which point he was released into the Salinas Valley State Prison. Id. ¶¶ 3, 13.

The hospital administered a CT scan in May of 2010, which did not detect a new tumor that the decedent had developed near his eye. Id. ¶ 13. In the months following the CT scan, the decedent noticed swelling over his left eye, began complaining of headaches, and requested a change in medication. Id. He had been instructed to have another CT scan two to three months after the first CT scan, but did not see a physician until February 2, 2011, nearly eight months later. Id. Plaintiffs allege that defendants denied the decedent medical care during this eight-month period, directly resulting in his death in August 2011. Id. ¶ 14.

Plaintiffs filed the SAC after I dismissed the FAC against defendant Cate for failure to state a claim against him with leave to amend. Order at 5-6. I heard oral argument on June 17, 2015.


Under Federal Rule of Civil Procedure 12(b)(6), a district court must 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." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics, " a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See 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) (internal quotations omitted).

If the court dismisses the complaint, it "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). In making this determination, the court should consider factors such as "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989).


A prisoner alleging Eighth Amendment violations under section 1983 must show that (i) the alleged constitutional deprivation was sufficiently serious, such that it resulted in the denial of "the minimal civilized measure of life's necessities, " and that (ii) the prison official acted with "deliberate indifference" to the inmate's health and safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations and quotations omitted). Deliberate indifference may be shown where "prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison officials provide medical care." Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (internal citations and quotations omitted).

A supervisor may be found liable if the supervisor "acted, or failed to act, in a manner that was deliberately indifferent to an inmate's Eighth Amendment rights." Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). This requires that either (i) the supervisor was personally involved in the deprivation of rights, or (ii) there is a sufficient causal connection between the constitutional violation and the supervisor's wrongful conduct. Id. at 1207. A causal connection may be established if the supervisor "set[] in motion a series of acts by others, " or "knowingly refus[ed] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury." Id. at 1207-08 (internal citations and quotations omitted).

As in the prior versions of the complaint, plaintiffs have not adequately pleaded specific facts establishing defendant Cate's liability. See Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (holding that complaint alleging violation of section 1983 did not include sufficient facts to establish defendant's liability because it was "based on conclusory allegations and generalities, without any allegation of the specific wrong-doing by each Defendant"). Although ...

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