Penilton v. Spearman et al

Filing 30

Order, signed 9/10/18, by Chief Magistrate Judge Joseph C. Spero granting 25 Motion to Dismiss with leave to file an amended complaint. Second Amended Complaint due by 10/22/2018.(klhS, COURT STAFF) (Filed on 9/10/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIE B. PENILTON,

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Plaintiff,
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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS;

v.
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M.E. SPEARMAN, et al.,

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Defendants.
United States District Court
Northern District of California

Case No. 16-cv-04573-JCS (PR)

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ORDER DISMISSING THE
COMPLAINT WITH LEAVE TO
AMEND
Dkt. No. 25

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INTRODUCTION
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Plaintiff alleges that defendants Spearman and Ellis are liable as supervisors for the
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unsanitary conditions in the pill distribution line at CTF-Soledad. Defendants move to
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dismiss because plaintiff has failed to allege facts showing liability on the part of
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defendants. Defendants are correct. The motion to dismiss is GRANTED. The operative
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complaint is DISMISSED with leave to file an amended complaint on or before October
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22, 2018.1

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DISCUSSION
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A.

Standard of Review

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Defendants have filed a motion to dismiss under Federal Rule of Civil Procedure
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12(b)(6). A motion to dismiss Rule 12(b)(6) should be granted if the complaint does not
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All parties have consented to magistrate judge jurisdiction. (Dkt. No. 1 at 4; Dkt. Nos. 19
and 20.)

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proffer “enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). Dismissal is appropriate also when

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pleadings show a “lack of cognizable legal theory,” or “the absence of sufficient facts

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alleged under a cognizable legal theory,” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,

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699 (9th Cir. 1990) (citation omitted), or when an affirmative defense is premised on facts

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alleged in the complaint, Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1994).

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B.

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Legal Claims
Plaintiff alleges defendants M.E. Spearman, the warden at CTF-Soledad, and G.

Ellis, chief medical officer, made him wait in cold and unsanitary conditions for his
medications. More specifically, he alleges that from November 2015 to February 2016 he

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United States District Court
Northern District of California

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was made to wait for 30 to 90 minutes for his medications in a line outside during wet,

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cold weather. Not only was it wet and cold, but it was also unsanitary. Inmates who need

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to inject medications leave blood spots “everywhere,” and birds perched above defecate.

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He alleges defendants are liable because they occupy supervisory positions.

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Spearman, according to plaintiff, is “legally responsible for the supervision of subordinate

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personnel, as well as the [s]afety and [p]rotection of all inmates at that institution.” (Dkt.

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No. 10 at 7.) Ellis is “responsible for the medical care of all inmates at CTF-Soledad

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Prison,” a brief that includes the “[s]upervision, direction, and/or proper training of the

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medical [s]taff at CTF-Soledad Prison.” (Id.) He alleges he put these persons on notice by

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filing a 602 appeal. (Opp. to MTD, Dkt. No. 28 at 3.)

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These allegations are insufficient to state a claim that defendants are responsible for

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the alleged wrongs. There is no respondeat superior liability under section 1983, see

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), which means that a person is not

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automatically held responsible simply because he or she is a supervisor of an employee

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who commits a wrong. It is not enough that the supervisor merely has a supervisory

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relationship over the defendants; the plaintiff must show that the supervisor “participated

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in or directed the violations, or knew of the violations and failed to act to prevent them.”

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Id. Plaintiff’s conclusory allegations do not meet these standards. The mere fact that he
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filed a 602 appeal is not sufficient to show that defendants knew of or participated in the

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alleged violations. Other persons reviewed the grievance and there is no indication that

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defendants were made aware of plaintiff’s complaints.

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Furthermore, supervisor defendants are entitled to qualified immunity where the

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allegations against them are simply “bald” or “conclusory” because such allegations do not

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“plausibly” establish the supervisors’ personal involvement in their subordinates’

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constitutional wrong, Ashcroft v. Iqbal, 556 U.S. 662, 675-84 (2009) (noting no vicarious

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liability under section 1983 or Bivens actions), and unfairly subject the supervisor

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defendants to the expense of discovery and continued litigation, Henry A. v. Willden, 678
F.3d 991, 1004 (9th Cir. 2012) (general allegations about supervisors’ oversight

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United States District Court
Northern District of California

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responsibilities and knowledge of independent reports documenting the challenged

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conduct failed to state a claim for supervisor liability).

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In his amended complaint, plaintiff must provide specific facts showing liability on

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the part of the person(s) he holds responsible. To do this, plaintiff should read and pay

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close attention to the following. “A person deprives another ‘of a constitutional right,

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within the meaning of section 1983, if he does an affirmative act, participates in another’s

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affirmative acts, or omits to perform an act which he is legally required to do that causes

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the deprivation of which [the plaintiff complains].” Leer v. Murphy, 844 F.2d 628, 633

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(9th Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). The inquiry

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into causation must be individualized and focus on the duties and responsibilities of each

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individual defendant whose acts or omissions are alleged to have caused a constitutional

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deprivation. Id.

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As the above law shows, it is highly unlikely that plaintiff will be able to state

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claims against Ellis and Spearman. In his amended complaint, he should direct his

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attention to those who handled the day-to-day operation of the pill-line and those who

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refused to let him receive his pills in a manner acceptable to him. Failure to allege specific

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facts against those persons who are demonstrably liable will result in the dismissal of this

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action and the entry of judgment in favor of defendants.
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CONCLUSION

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Defendants’ motion to dismiss is GRANTED. (Dkt. No. 25.) The complaint is
DISMISSED with leave to file an amended complaint on or before October 22, 2018. The

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amended complaint must include the caption and civil case number used in this order (16-

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04573 JCS (PR)) and the words SECOND AMENDED COMPLAINT on the first page. It

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must address all deficiencies discussed above. Because an amended complaint completely

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replaces the previous complaints, plaintiff must include in his amended complaint all the

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claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from

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the prior complaint by reference. Any claims not raised in the amended complaint will be

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United States District Court
Northern District of California

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deemed waived. Failure to file an amended complaint in accordance with this order will

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result in dismissal of this action without further notice to plaintiff.

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

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for an extension of time to do so. Failure to comply may result in the dismissal of this

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action pursuant to Federal Rule of Civil Procedure 41(b).

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The Clerk shall terminate Dkt. No. 25.

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IT IS SO ORDERED.

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Dated: September 10, 2018
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIE B. PENILTON,

Case No. 16-cv-04573-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M.E. SPEARMAN, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on September 10, 2018, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Willie B. Penilton ID: J21437
Correctional Training Facility
P.O. Box 705
Soledad, CA 93960

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Dated: September 10, 2018
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Susan Y. Soong
Clerk, United States District Court
By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO

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