United States District Court, E.D. California
MELAN J. MOSLEY, Plaintiff,
STEVEN CARGILL, et al., Defendants.
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se in this civil rights
action filed pursuant to 42 U.S.C. § 1983. This
proceeding was referred to this court by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1).
requests leave to proceed in forma pauperis. Since plaintiff
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a), his request will be granted.
Plaintiff is required to pay the statutory filing fee of
$350.00 for this action. 28 U.S.C. §§ 1914(a),
1915(b)(1). By separate order, the court will direct the
appropriate agency to collect the initial partial filing fee
from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
order to avoid dismissal for failure to state a claim a
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. 544, 555-557 (2007). In other words, “[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).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 551 U.S.
89, 93-94 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
Allegations in the Complaint
23, 2018, plaintiff was transferred to California State
Prison-Solano with fractured left toes which required
regular cleaning and dressing changes. ECF No. 1 at 7. After
waiting 16 days, plaintiff's dressing was finally
changed, but by that time he had developed an infection to
the bone in his second left toe. Id. Due to
inadequate dressing changes and lack of antibiotics to treat
the infection, plaintiff's second left toe had to be
amputated. ECF No. 1 at 8. Plaintiff seeks compensatory and
punitive damages for the loss of his toe as well as his pain
and emotional distress. ECF No. 1 at 12.
identifies two defendants by name as well as “Does
1-50.” In count one, plaintiff alleges that defendant
Steve Cargill, the Health Care C.E.O. at CSP-Solano was
deliberately indifferent to his serious medical needs for
treatment of his fractured toes by failing to monitor or
supervise the medical staff. ECF No. 1 at 9-10. In his second
cause of action, plaintiff contends that his treating
physician at CSP-Solano, Dr. Jaime Cortes, acted with
deliberate indifference to his serious medical needs by not
following up to see if plaintiff's dressings were being
changed as the doctor had ordered. ECF No. 1 at 10. Plaintiff
also alleges that defendant Cortes failed to ensure that a
surgical evaluation which he ordered “ASAP” was
in fact done. ECF No. 1 at 10-11. According to the complaint,
these actions by defendants violated the Eighth
Amendment's protection against cruel and unusual
court has reviewed plaintiff's complaint and finds that
it fails to state a claim upon which relief can be granted
against any named defendant. Plaintiff's complaint must
be dismissed. The court will, however, grant leave to file an
plaintiff alleges that defendant Cargill was responsible for
his injuries due to his failure to supervise the healthcare
staff at CSP-Solano. However, there is no supervisory
liability in federal civil rights actions. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(“liability under section 1983 arises only upon a
showing of personal participation by the defendant (citation
omitted) . . . [t]here is no respondeat superior liability
under section 1983.”). When the named defendant holds a
supervisory position, the causal link between the defendant
and the claimed constitutional violation must be specifically
alleged; that is, a plaintiff must allege some facts
indicating that the defendant either personally participated
in or directed the alleged deprivation of constitutional
rights or knew of the violations and failed to act to prevent
them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th
Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441
(9th Cir. 1978). A supervisor may be held liable only if he
or she “participated in or directed the violations, or
knew of the violations and failed to act to prevent
them.” Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989). In the complaint plaintiff only asserted
that defendant Cargill knew of the constitutional violations
because he had access to plaintiff's medical records.
That is not a sufficient basis upon which to establish
defendant Cargill's liability for the delays in
plaintiff's medical treatment. Therefore, to the extent
that plaintiff seeks to impose liability upon defendant
Cargill based upon his supervisory role, plaintiff fails to
state a claim.
respect to defendant Cortes, the allegations in the complaint
identify specific medical orders that he issued for the
treatment of plaintiff's fractured toes. These included
ordering dressing changes, a request for orthopedic surgery,
as well as an urgent podiatry consult. ECF No. 1 at 10.
Plaintiff faults defendant Cortes for not following-up on any
of these orders for additional medical treatment.
Id. However, based on the court's reading of the
complaint, defendant Cortes was not responsible for changing
plaintiff's dressings, administering him an antibiotic,
or performing any needed orthopedic surgery. Therefore,
plaintiff has failed to sufficiently allege that defendant
Cortes was the cause of the injuries which plaintiff
sustained. A Section 1983 plaintiff must show that a
defendant acting under color of state law caused an alleged
deprivation of ...