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Shabazz v. Beard

United States District Court, E.D. California

February 27, 2018

AMIR SHABAZZ, Plaintiff,
JEFFREY A. BEARD, et al., Defendants.



         Plaintiff Amir Shabazz is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that various prison authorities violated the Eighth Amendment by transferring him to a prison that suffered from a Valley Fever epidemic and that he has contracted Valley Fever as a result.

         Three motions to dismiss are presently before the Court. For the reasons discussed below, the Court recommends that Defendant Kelso's motion to dismiss (ECF No. 39) be granted without leave to amend. The Court further recommends that Defendants Tonya Rothchilds, James A. Yates, Susan L. Hubbard and Deborah Hysen's motion to dismiss (ECF No. 45, 55) be granted with leave to amend. Finally, the Court recommends that Defendants Felix Igbinosa and Dwight Winslow's motion to dismiss (ECF No. 53) be granted, in part, with leave to amend, and denied, in part.


         Plaintiff was previously confined at Pleasant Valley State Prison from 2009 to 2011 and at Wasco State Prison from 2011 to 2012. He was then transferred to San Quentin State Prison. His complaint concerns the refusal of prison authorities to transfer him from Pleasant Valley State Prison until after he contracted Valley Fever.

         Plaintiff names as defendants Secretary A. Beard, Secretary of California; Paul D. Brazelton, Warden at Pleasant Valley State Prison; Edmund G. Brown, Governor of California; Matthew Cate, Former Secretary of the California Department of Corrections and Rehabilitation (CDCR); Susan L. Hubbard, former director, division of adult operations; Deborah Hysen, Chief Deputy Secretary, Facilities, Planning, Construction and Management; Dr. Felix Igninosa, Medical Director, Pleasant Valley State Prison; J. Clark Kelso, Head of California Corrections Health Care Services; Tanya Rothchild, Former Chief of the Classification Service Unit; Arnold Schwarzenegger, Former Governor of the State of California; State of California, Public Entity; and Dwight Winslow, Former Medical Director.

         Plaintiff is a 65-year old African American male. Plaintiff was transferred from Lancaster State Prison to Pleasant Valley State Prison in 2009. While in transit through North Kern State Prison en route to Pleasant Valley State Prison, Plaintiff made medical staff aware of his history of having chronic asthma and viral hepatitis C and asked to remain at North Kern State Prison or be transferred to a prison that did not have a Valley Fever epidemic. Plaintiff was nonetheless transferred to Pleasant Valley State Prison and remained there from 2009 through 2011.

         Plaintiff cannot exert himself physically without feeling winded. At times, Plaintiff's physical pain is so acute he cannot get out of bed. Plaintiff believes his lungs are permanently compromised and he will suffer painful ailments forever. Plaintiff alleges that he has been subjected to a “Hate Crime” by Defendants and asserts claims under 42 U.S.C. § 1983 and the Federal Tort Claims Act.


         The Court screened the Complaint initiating this action pursuant to 28 U.S.C. §1915A and issued an order on June 26, 2015, dismissing the Complaint with leave to amend. (ECF No. 10.) On July 30, 2015, Plaintiff filed a First Amended Complaint, which was again dismissed with leave to amend. (ECF Nos. 13, 19.)

         On October 6, 2016, Plaintiff filed a Second Amended Complaint (the “SAC”). (ECF No. 26.) The Court screened the SAC and issued findings and recommendations regarding the SAC on November 1, 2016. (ECF No. 27.) The Court recommended dismissal of the SAC for failure to state a claim. (Id.)

         In the Order adopting, in part, and declining to adopt, in part, the November 1, 2016 Findings and Recommendations, U.S. District Judge Dale A. Drozd found that Plaintiff should be allowed to “proceed on his Eighth Amendment claim in his [SAC], ” but noted that “plaintiff's Eighth Amendment claim may not be brought against certain defendants in their supervisorial capacities.” (ECF No. 29.)

         On March 7, 2017, the Court found service of the SAC appropriate on a subset of the named defendants, (ECF No. 31), and issued findings and recommendations recommending the other named defendants who appeared to be sued in a purely supervisorial capacity be dismissed from this action, (ECF No. 30). Specifically, the Court stated that:

Because the SAC alleges no more than a supervisory role for some defendants, the Court finds that the SAC fails to state a claim against defendants: Edmund G. Brown, Governor of California; Arnold Schwarzenegger, former Governor of California; Jeffrey A. Beard, former Secretary of the Department of Corrections and Rehabilitation; and Matthew Cate, former Secretary of the Department of Corrections and Rehabilitation.

(Id. at 2.)

         Judge Drozd adopted the findings and recommendations in full and dismissed defendants Edmund G. Brown, Arnold Schwarzenegger, Jeffrey, A. Beard, and Matthew Cate. (ECF No. 44.) After this Order, the case then proceeded against the eight remaining defendants: Paul D. Brazelton, Susan L. Hubbard, Deborah Hysen, Felix Igbinosa, J. Clark Kelso, Tonya Rothchilds, Dwight Winslow and James A. Yates. (ECF No. 31.)

         Seven of the eight remaining defendants[1] have now filed motions to dismiss. (ECF Nos. 39, 45, 53.) The motions argue, generally, that Plaintiff's SAC fails to establish personal liability against them, and even if he could, they are immune.


         A. Rule 12(b)(6) Motion to Dismiss

         A complaint is required to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         B. Section 1983

         The Civil Rights Act under which this action was filed provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights, ' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

         To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law, and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.'” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict' constitutional harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard ‘foreseeability' formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

         Supervisory personnel are generally not liable under section 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisory position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief under section 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that would support a claim that the supervisory defendants either: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional rights' and is ‘the moving force of the constitutional violation.'” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own culpable action or inaction in the training, supervision, or control of his subordinates, ” “his acquiescence in the constitutional deprivations of which the complaint is made, ” or “conduct that showed a reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted).

         V. ...

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