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Villegas v. Swarthout

United States District Court, E.D. California

May 31, 2017

JESSE LEON VILLEGAS, Plaintiff,
v.
GARY SWARTHOUT, et al., Defendants.

          FINDINGS AND RECOMMENDATION

          CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I. BACKGROUND

         This 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 plaintiff's transportation.

         (See Order, Doc. 13).

         As 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).

         II. MOTION TO DISMISS

         Defendant 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.

         A. Standards

         Rule 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).

         In 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).

         Generally, 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).

         The 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 ...


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