United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, brings this civil rights
action pursuant to 42 U.S.C. § 1983. Pending before the
court is defendant Swarthout's unopposed motion to
dismiss (Doc. 18). Defendant Swarthout is the only defendant
who has been served with the summons and complaint. Service
as to defendant Peterson was returned unexecuted. Plaintiff
has not provided service information as to the Doe defendant.
action proceeds on plaintiff's first amended complaint.
The court previously summarized his claims as follows:
In his amended complaint, plaintiff continues to allege he
has a serious medical condition which was not treated in a
timely fashion while he was housed at California State
Prison-Solano (CSP-Solano). Plaintiff claims that he broke
his ankle, which required surgery to repair. However, there
were delays in receiving the necessary orthopedic
consultation and transportation to the surgery once it was
approved, resulting in further and more serious injuries. He
alleges defendant Swarthout, as warden of the prison, was
responsible for policies at CSP- Solano, including those
responsible for the transportation of prisoners to outside
medical appointments. He further claims defendant Peterson
was responsible for the management of the health care system,
facilitating appointments, and managing the movement and
transporting of prisoners to medical appointments. Defendant
Peterson failed to process plaintiff's referral for
medical consultation. Plaintiff also alleges that Doe
defendant, a transportation sergeant, was responsible for the
healthcare transports, and failed to properly arrange
Order, Doc. 13).
relevant to defendant Swarthout, the moving defendant,
plaintiff alleges he is “responsible for the governing,
discipline and policies of CSP Solano, and to enforce all
orders and regulations, including such policies and
orders/regulations pertaining to Health Care Services and the
medical treatment of all inmates at CSP-Solano. Defendant G.
Swarthout is legally responsible for the operation of
CSP-Solano and the welfare of all the inmates of that
prison.” (Am. Compl., Doc. 9 at 4).
MOTION TO DISMISS
brings this motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim.
Defendant argues the facts alleged fail to state a claim
against him for deliberate indifference, there are no facts
alleged that prison policies amount to deliberate
indifference, and that his position as supervisor is
insufficient to make him liable under a respondeat superior
theory. Plaintiff failed to file an opposition in response to
the motion to dismiss. Plaintiff was cautioned that failure
to oppose a motion to dismiss may be deemed a waiver of
opposition. As plaintiff failed to oppose the motion, the
motion may be granted on that basis. However, as addressed
below, the motion to dismiss should be granted on the merits
as plaintiff fails to state a claim.
12(b)(6) provides for motions to dismiss for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss,
the court must accept all allegations of material fact in the
complaint as true. See Erickson v. Pardus, 551 U.S.
89, 93-94 (2007). The court must also construe the alleged
facts in the light most favorable to the plaintiff. See
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see
also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
738, 740 (1976); Barnett v. Centoni, 31 F.3d 813,
816 (9th Cir. 1994) (per curiam). All ambiguities or doubts
must also be resolved in the plaintiff's favor. See
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Legally
conclusory statements, not supported by actual factual
allegations, need not be accepted. See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). Pro se pleadings
are held to a less stringent standard than those drafted by
lawyers. See Haines v. Kerner, 404 U.S. 519, 520
(1972). However, to survive dismissal for failure to state a
claim, a pro se complaint must contain more than “naked
assertions, ” “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 662, 544, 555-57 (2007).
deciding a Rule 12(b)(6) motion, the court generally may not
consider materials outside the complaint and pleadings.
See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir.
1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.
1994). The court may, however, consider: (1) documents whose
contents are alleged in or attached to the complaint and
whose authenticity no party questions, see Branch,
14 F.3d at 454; (2) documents whose authenticity is not in
question, and upon which the complaint necessarily relies,
but which are not attached to the complaint, see Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
and (3) documents and materials of which the court may take
judicial notice, see Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994).
leave to amend must be granted “[u]nless it is
absolutely clear that no amendment can cure the
defects.” Lucas v. Dep't of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (per curiam); see also Lopez v.
Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
Federal Rules of Civil Procedure require that complaints
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This means that claims must be stated
simply, concisely, and directly. See McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to
Fed.R.Civ.P. 8(e)(1)). These rules are satisfied if the
complaint gives the defendant fair notice of the
plaintiff's claim and the grounds upon which it rests.
See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir.
1996). Because plaintiff must allege with at ...