Covert v. Graham et al

Filing 22

ORDER. Signed by Judge ARMSTRONG on 11/30/09. (lrc, COURT STAFF) (Filed on 12/4/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. D. GRAHAM, et al.,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JAMES WILLIAM COVERT, Plaintiff, No. C 06-6626 SBA (PR) ORDER DISMISSING CLAIMS OF SUPERVISORY LIABILITY, DELIBERATE INDIFFERENCE, EQUAL PROTECTION VIOLATIONS, AND DUE PROCESS VIOLATIONS

Defendants. / On August 31, 2009, the Court issued an Order of Service and directed Plaintiff to amend his claims of supervisory liability, deliberate indifference, equal protection violations, and due process violations. The Court gave Plaintiff until September 30, 2009 to file an amendment to the complaint. He was warned the failure to do so would result in dismissal of the aforementioned claims without prejudice. Thereafter, Plaintiff filed his amendment to the complaint. In the amendment, Plaintiff again names multiple supervisors, such as the SQSP Warden and SQSP Acting Warden as the Doe Defendants, and states that these Defendants "were responsible for ensuring that inmates received proper safety and protection from injury . . . [and that these Defendants] should have been aware of the deplorable, dangerous, and life-threatening conditions at Unit V." (Am. to Compl. at 3.) Plaintiff also alleges that other supervisory Defendants from the medical staff, including the Chief Medical Officer (CMO) as a Doe Defendant, were "responsible for the medical care of all inmates." (Id. at 5.) In addition, the CMO was "responsible for the supervision, direction and/or proper training of the medical staff at SQ in the delivery of health care services and the management of health care programs." (Id. at 6.) Plaintiff does not provide any facts to support his allegation that he directly contacted these supervisory Defendants regarding his alleged fall on April 16, 2005 due to ill-fitting shoes. Therefore, the Court construes his allegation to mean that he only had direct contact with Defendants Harrison and Graham, both of whom he claims were not properly supervised by these supervisory Defendants. This is a respondeat superior claim, that is, Plaintiff

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seeks to hold these supervisory Defendants liable because they were the supervisors of the persons he contends violated his rights. This is, however, not a proper basis for Section 1983 liability. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Therefore, nothing in the amendment is sufficient to overcome the deficiency of his claim against these supervisory Defendants, which gave rise to the dismissal with leave to amend. Plaintiff also fails to correct the deficiencies of his other remaining claims. In his amendment to the complaint, he again alleges conclusory claims with no factual support, stating: "Plaintiff was routinely denied access to CDCR medical request forms . . . [and] [o]n one occasion, Plaintiff was seen by a nurse and complaint of sever pain. Despite a dangerously high blood pressure of 195/115, Plaintiff was not seen by a doctor for over two months." (Am. Compl. at 6.) These conclusory allegations are not sufficient to state a "plausible" claim that Plaintiff's constitutional rights were violated. While Plaintiff attempts to give general examples of the "bad" conditions at SQSP, he has failed to give more specific allegations showing how he was affected by such conditions, during which time frame he was affected, and who was responsible for each constitutional violation he alleges. Again, the Court is unable to find that his allegations state cognizable claims of deliberate indifference to his serious medical needs, equal protection violations and due process violations. Therefore, nothing in the amendment is sufficient to overcome the deficiencies of these claims, which gave rise to their dismissal with leave to amend. Accordingly, IT IS HEREBY ORDERED that Plaintiff's claims of supervisory liability, deliberate indifference, equal protection violations, and due process violations are dismissed without further leave to amend. IT IS SO ORDERED. DATED: 11/30/09 SAUNDRA BROWN ARMSTRONG United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JAMES WILLIAM COVERT, Plaintiff, v. D. GRAHAM et al, Defendant. /

Case Number: CV06-06626 SBA CERTIFICATE OF SERVICE

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 December 4, 2009, 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.

James W. Covert D-86333 Pleasant Valley State Prison P.O. Box 8503 Coalinga, CA 93210 Dated: December 4, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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