Mallett v. Jev et al

Filing 9

ORDER signed by Magistrate Judge Craig M. Kellison on 4/21/2011 ORDERING pltf to SHOW CAUSE in writing, w/in 30 days, why dfts Bal, Sahota, and Deems, should not be dismissed for failure to state a claim. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WADE MALLETT,

12

No. CIV S-10-3226-CMK-P

Plaintiff,

13

vs.

14

MOON JEU, et al.,

15
16
17

ORDER

Defendants.
/
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

18

to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). Plaintiff has

19

consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has

20

been served or appeared in the action.

21

The court is required to screen complaints brought by prisoners seeking relief

22

against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

23

§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

24

malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

25

from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

26

the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement
1

1

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

2

that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

3

1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

4

complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

5

rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

6

with at least some degree of particularity overt acts by specific defendants which support the

7

claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

8

impossible for the court to conduct the screening required by law when the allegations are vague

9

and conclusory.

10
11

I. PLAINTIFF’S ALLEGATIONS
Plaintiff alleges in his complaint that his primary care physician, Dr. Moon Jeu, at

12

Folsom State Prison, refused to provide him treatment for his back pain. He states that Dr. Jeu

13

informed him the only other pain medication that could be prescribed was morphine but that he

14

would not prescribe it even though it was prescribed to other inmates. He complained about the

15

lack of pain medication to the warden, chief physicians, and chief executive officer, to no avail.

16
17

II. DISCUSSION
Plaintiff’s complaint appears to state a cognizable claim for relief pursuant to 42

18

U.S.C. § 1983 and 28 U.S.C. § 1915A(b), against plaintiff’s treating physician, Dr. Jeu. Service

19

of the complaint on Dr. Jeu will be authorized by separate order. However, the other named

20

defendants, including Dr. Jasdeep Bal, Dr. P. Sahota, and Mr. A. Deems, all appear to be

21

supervisory personnel to whom plaintiff complained to regarding the lack of treatment Dr. Jeu

22

was providing. None of these other defendants were directly involved in plaintiff’s treatment.

23

Supervisory personnel are generally not liable under § 1983 for the actions of their

24

employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no

25

respondeat superior liability under § 1983). A supervisor is only liable for the constitutional

26

violations of subordinates if the supervisor participated in or directed the violations. See id. The
2

1

Supreme Court has rejected the notion that a supervisory defendant can be liable based on

2

knowledge and acquiescence in a subordinate’s unconstitutional conduct because government

3

officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct

4

and not the conduct of others. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). When a

5

defendant holds a supervisory position, the causal link between such defendant and the claimed

6

constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

7

(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

8

allegations concerning the involvement of supervisory personnel in civil rights violations are not

9

sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). “[A] plaintiff must

10

plead that each Government-official defendant, through the official’s own individual actions, has

11

violated the constitution.” Iqbal, 129 S. Ct. at 1948.

12

As Dr. Jeu was the only defendant directly involved in plaintiff’s treatment, he is

13

the only defendant against whom plaintiff has stated a claim. Plaintiff claims the supervisory

14

defendants are liable because they knew of the risk of harm to him. However, there is nothing in

15

the complaint, either explicitly stated or implied, that any of these other defendants were actually

16

involved in the treatment plaintiff received or did not receive. Knowledge of a subordinate’s acts

17

is insufficient.

18

III. CONCLUSION

19

Because it does not appear possible that the deficiencies identified herein can be

20

cured by amending the complaint, plaintiff is not entitled to leave to amend prior to the dismissal

21

of the supervisory defendants, including Dr. Bal, Dr. Sahota, and Mr. Deems. See Lopez v.

22

Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

23

Therefore, plaintiff shall show cause in writing, within 30 days of the date of this

24

order, why defendants Bal, Sahota, and Deems, should not be dismissed for failure to state a

25

///

26

///
3

1

claim.1 Plaintiff is warned that failure to respond to this order may result in dismissal of the

2

action for the reasons outlined above, as well as for failure to prosecute and comply with court

3

rules and orders. See Local Rule 110.

4

IT IS SO ORDERED.

5
6

DATED: April 21, 2011

7

______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

1

This action will continue against Dr. Jeu.
4