Sanford v. DOE et al

Filing 33

REPORT AND RECOMMENDATIONS on Defendants' Motions to Dismiss and Plaintiff's Motion to Amend Name on Complaint. Objections to R&R due by 3/4/2009 and Replies due by 3/18/2009. Signed by Magistrate Judge Peter C. Lewis on 2/11/09. (All non-registered users served via U.S. Mail Service).(ag)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I. INTRODUCTION Plaintiff Robert Lionel Sanford ("Plaintiff") is a state prisoner proceeding pro se and in IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

ROBERT LIONEL SANFORD,

Case No. 08cv1049 H (PCL)

Plaintiff, REPORT & RECOMMENDATION ON v. DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S DOE, DIRECTOR OF DEPARTMENT OF MOTION TO AMEND NAME CORRECTIONS, L. E. SCRIBNER, Warden, et al. ON COMPLAINT Defendant.

19 forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Plaintiff alleges Defendants 20 violated his civil rights by refusing him proper medical care while he was an inmate at Calipatria 21 State Prison and by interfering with his inmate grievance process at Ironwood State Prison. 22 (Doc. No. 1.) The case is before the undersigned pursuant to S.D. Cal. Civ. R. 72.1(c)(1)(c) for 23 Report and Recommendation on Defendants' Motions to Dismiss (Doc. Nos. 14 and 23) and 24 Plaintiff's Motion to Amend Name on Complaint (Doc. No. 17). Based upon the documents 25 presented in this case, and for the reasons set forth below, the Court recommends the Motion to 26 Dismiss all named Defendants be DENIED in part and GRANTED in part and the Motion to 27 Dismiss Defendant Doe be GRANTED. The Court also recommends Plaintiff's Motion to 28 Amend Name on Complaint be DENIED.

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II. BACKGROUND On June 18, 2007, while incarcerated at Calipatria State Prison, Plaintiff underwent a

4 tonsillectomy and elective surgery to remove nasal polyps at Alvarado Hospital in San Diego, 5 California. (Doc. No. 1 Compl. at 43.)1/ During recovery from surgery, at approximately 6:00 6 p.m. on June 26, 2007, Plaintiff alleges he began "hemorahaging [sic] from surgery that 7 ruptured." (Id. at 28, 38.) Plaintiff contends he notified prison staff of the situation and "it took 8 over 45 minutes before medical staff responded." (Id.) Plaintiff was taken to the hospital ward 9 at the prison where Licensed Vocational Nurse ("LVN") Sowtell was on duty and attempted to 10 keep Plaintiff's bleeding under control. (Id. at 14, 29.) Plaintiff states he bled through the night 11 and although "it was clear to LVN Sowtell that Plaintiff was severely suffering and LVN Sowtell 12 could not offer or help provide necessary treatment to stop the hemorrhage[,] LVN did have 13 authority for the welfare and safety of inmates in her care to call transportation to have Plaintiff 14 sent to outside hospital, but she refused to make the judgment for unknown reasons." (Id. at 14.) 15 Plaintiff also alleges Nurse Practitioner ("NP") Thomas "told Nurse Sowtell over the phone to 16 hold [Plaintiff] at prison for unknown reason." (Id. at 15.) NP Thomas arrived the morning of 17 June 27, 2007 to begin her shift at the prison medical ward and ordered Plaintiff sent to 18 Pioneer's Memorial Hospital in Brawley, California where Plaintiff was admitted to the 19 emergency room to have the surgery repaired. (Id. at 14-15.) 20 Unrelated to the medical incident, Plaintiff was transferred to Ironwood State Prison on On or about February of 2008, Plaintiff began filing a series of CDC

21 July 11, 2007. (Id. at 30.)

22 602 Inmate Appeal Forms. (Id. at 23.) The grievances centered around the medical incident at 23 Calipatria State Prison. (Id.) The fact that the incident occurred at Calipatria Prison, coupled 24 with the time lapse between the incident and the filing of grievance forms prompted the 25 26 27 1. The Complaint's original pagination is erratic and incomplete. (See Doc. No. 1.) For 28 clarity, the Court's citations refer to the page numbers assigned by the docketing clerk.
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1 Ironwood Prison Appeals Coordinators D. Holbrook and L. Bonnett to "screen out"2/ his appeals. 2 (Id. at 25-26.) 3 Plaintiff filed the instant Complaint on June 11, 2008 alleging deliberate indifference to

4 his medical needs by Calipatria Prison medical staff and due process violations stemming from 5 the actions of the Appeals Coordinators at Ironwood Prison. (Id. at 4-5.) Plaintiff names the 6 following parties as Defendants to each of his claims. Defendants Sowtell, Thomas, Levin and 7 Scribner are allegedly liable for the first claim while Defendants Holbrook, Bonnet and Dexter 8 are liable for the second claim. (Id. at 2-3.) Defendants Scribner and Dexter are Wardens of 9 Calipatria Prison and Ironwood Prison, respectively. (See id.) Additionally, Plaintiff alleges 10 Defendant Doe is liable for all claims in his capacity as Director of the California Department of 11 Corrections. (Id. at 2.) 12 Defendants filed a Motion to Dismiss on November 6, 2008 for failure to state a claim as

13 to all named Defendants. (Doc. No. 14.) Plaintiff then filed a Motion to Amend Name on 14 Complaint seeking to substitute Matthew Cate3/ as Defendant Doe. (Doc. No. 17.) On 15 November 25, 2008, Defendants filed a second Motion to Dismiss for failure to state a claim 16 against Defendant Doe or, in the alternative, Matthew Cate. (Doc. No. 23.) Plaintiff responded 17 in opposition to the Motions on December 10, 2008 and December 29, 2008. (Doc. Nos. 27, 29.) 18 By Order dated November 17, 2008, the pending Motions were referred to the undersigned for 19 recommendation. (Doc. No. 20.) 20 / / 21 / / 22 / / 23 / / 24 / / 25 26 27 2. The process of screening out an appeal entails refusing to give the appeal a log number and declining to pursue or investigate the claim further.

3. Matthew Cate is the current Director of the California Department of Corrections and 28 Rehabilitation.
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III. STANDARD OF REVIEW­RULE 12(b)(6) A trial court may dismiss a claim upon motion of the Defendants pursuant to Fed. R. Civ.

4 P. 12(b)(6) for "failure to state a claim upon which relief can be granted." See Wong v. Bell, 5 642 F.2d 359, 361-62 (9th Cir. 1981). A complaint should not be dismissed under the rule 6 "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim 7 which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Amfac 8 Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426, 429-30 (9th Cir. 1978). The court 9 must accept all factual allegations pled in the complaint as true, and must draw all reasonable 10 inferences in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 11 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) (citing Usher v. City of 12 Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Moreover, the court will "`presume that general 13 allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. For 14 Women v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 15 U.S. 555, 561 (1992)). 16 If a complaint is accompanied by attached documents, the court is not limited by the

17 allegations contained in the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th 18 Cir. 1987) (citing Amfac Mortgage Corp., 583 F.2d at 429). These documents are part of the 19 complaint and may be considered in determining whether Plaintiff can prove any set of facts in 20 support of the claim. Id. Additionally, pro se pleadings are held to a less stringent standard than 21 those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). 22 However, in spite of the deference the Court is bound to pay to Plaintiff's allegations, it is

23 not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not 24 alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 25 526 (1983). Moreover, a court is not required to credit conclusory legal allegations cast in the 26 form of factual allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell 27 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Western Mining Council v. Watt, 28 643 F.2d 618, 624 (9th Cir. 1981).
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IV. DISCUSSION Motion to Dismiss Claims Against Named Defendants Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person

5 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 6 the claimant of some right, privilege or immunity protected by the Constitution or laws of the 7 United States. See 42 U.S.C. § 1983 (LEXIS 2008); Parratt v. Taylor, 451 U.S. 527, 535 (1981) 8 (overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986)); Haygood v. 9 Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 10 A person deprives another of a constitutional right "where that person does an affirmative

11 act, participates in another's affirmative acts, or omits to perform an act which [that person] is 12 legally required to do that causes the deprivation of which complaint is made." Hydrick v. 13 Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quotations omitted). "[T]he `requisite causal 14 connection can be established not only by some kind of direct, personal participation in the 15 deprivation, but also by setting in motion a series of acts by others which the actor knows or 16 reasonably should know would cause others to inflict the constitutional injury.'" Id. (quoting 17 Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1991)). 18 Plaintiff's Complaint sets forth two claims: deliberate indifference to his medical needs

19 during a medical emergency on June 26, 2007 by Defendants LVN Sowtell, NP Thomas, Dr. 20 Levin and L. E. Scribner; and deprivation of his right to due process in the processing of his 21 inmate grievance forms by Defendants D. Holbrook, L. Bonnett, and D. Dexter.4/ (Doc. No. 1 22 Compl. at 2-5.) Defendants move for dismissal, pursuant to Fed. R. Civ. P. 12(b)(6), on the 23 grounds that plaintiff has failed to state a claim upon which relief can be granted against all 24 named Defendants. (Doc. No. 17). 25 26 27 4. The merits of Defendants' Motion to Dismiss Defendant Doe as the Director of the California Department of Corrections are discussed in a later section as part of Defendants' second 28 Motion to Dismiss.
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1.

Eleventh Amendment

Defendants first argue that the Complaint should be dismissed under Eleventh

3 Amendment principles to the extent Plaintiff pleads claims against them in their official 4 capacities. However, the bar on suits under § 1983 against state officials in their official 5 capacities applies only to those seeking money damages. See Will v. Michigan Dep't of State 6 Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment does not proscribe actions for 7 injunctive relief against such defendants or actions for damages against state officials acting in 8 their personal capacity. See Will, 491 U.S. at 71 n.10; Hafer v. Melo, 502 U.S. 21, 31 (1991). In 9 this action, Plaintiff seeks injunctive relief as well as compensatory and punitive damages.5/ 10 (Doc. No. 1 Compl. at 8). Upon review of the merits of Plaintiff's claims, Plaintiff may possibly 11 be entitled to injunctive relief. Accordingly, the Court recommends Defendants' Motion to 12 Dismiss be GRANTED as to any claims for monetary damages against Defendants acting in 13 their official capacities. 14 15 2. Deliberate Indifference to Serious Medical Needs

The Eighth Amendment prohibits punishment that involves the "unnecessary and wanton

16 infliction of pain." Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg v. Georgia, 428 17 U.S. 153, 173 (1976)). Prison officials violate a prisoner's Eighth Amendment right to be free 18 from cruel and unusual punishment if they are deliberately indifferent to the prisoner's serious 19 medical needs. Estelle, 429 U.S. at 106; Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 20 1989). The test for deliberate indifference consists of two parts. McGuckin v. Smith, 974 F.2d 21 1050, 1059 (9th Cir. 1992) (overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 22 1133 (9th Cir. 1997)). First, there must be a serious medical need which could lead to further 23 injury or "unnecessary and wanton infliction of pain." Jett v. Penner, 439 F.3d 1091, 1096 (9th 24 Cir. 2006). A serious medical need is "an injury that a reasonable doctor or patient would find 25 5. Plaintiff's Complaint does not indicate whether Defendants are sued in their official or individual capacity. With the exception of Defendants Doe and Scribner, neither box on pages two 27 or three of the Complaint is checked as to the other Defendants. (See Doc. No. 1 Compl. at 2-3.) However, because the Court liberally construes Plaintiff's claims, it is assumed Plaintiff intended 28 to sue Defendants in both their individual and official capacities. 26
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1 important and worthy of comment or treatment." McGuckin, 974 F.2d at 1059. Second, the 2 plaintiff must show that prison officials responded to the plaintiff's serious medical need with 3 "deliberate indifference." Jett, 439 F.3d at 1096. Prison officials demonstrate deliberate 4 indifference when they are aware of a prisoner's condition but "deny, delay, or intentionally 5 interfere with medical treatment." Id. (internal citations omitted). In sum, a prison official is 6 deliberately indifferent only if he knows that a prisoner faces a substantial risk of serious harm 7 and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 8 U.S. 825, 837 (1994). 9 Further, the prisoner must allege harm caused by the deliberate indifference. A mere

10 delay in treatment does not constitute a violation of the Eighth Amendment, unless the delay or 11 denial was harmful. See McGuckin, 974 F.2d at 1060. The Eighth Amendment is violated if 12 "delays occurred to patients with problems so severe that delays would cause significant harm 13 and that Defendants should have known this to be the case." Hallett v. Morgan, 287 F.3d 1193, 14 1206 (9th Cir. 2002).. To establish a claim of deliberate indifference arising from delay, a 15 plaintiff must show that the delay caused further harm. Wood v. Housewright, 900 F.2d 1332, 16 1335 (9th Cir. 1990). "Harm" may include significant pain that otherwise need not have been 17 endured, even without physiological damage. See Shapley v. Nevada Bd. of State Prison 18 Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). 19 20 a. LVN Sowtell

Plaintiff's complaint specifically alleges he suffered a massive and serious medical

21 emergency" on June 26, 2007. (Doc. No. 1 Compl. at 9.) At the onset of the injury, Plaintiff 22 began "coughing up blood clots and bleeding profusely from the nose, mouth and eyes. (Id. at 23 13-14.) Once Plaintiff was taken to the prison medical unit, Plaintiff states LVN Sowtell was 24 the "intensive care LVN handling this hemorrhage." (Id. at 14.) Plaintiff contends that 25 although "it was clear to LVN R. Sowtell that Plaintiff was severely suffering and LVN Sowtell 26 could not offer or help provide necessary treatment to stop the hemorrhage," she did not take 27 appropriate steps to seek adequate medical care for Plaintiff such as sending him to a hospital for 28 emergency procedures. (Id.)
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1

To survive a Motion to Dismiss, Plaintiff must allege both serious medical need and

2 deliberate indifference. Jett, 439 F.3d at 1096 (internal citations and quotations marks omitted). 3 Clearly, Plaintiff alleges serious medical need; therefore, the Court's analysis turns to the 4 deliberate indifference prong. This prong is satisfied by showing that prison officials were 5 aware of the prisoner's condition but denied, delayed, or intentionally interfered with medical 6 treatment." (Id.) 7 Plaintiff alleges facts satisfying both prongs of the test. First, Plaintiff alleges he was

8 taken to the prison medical ward at Calipatria prison on the evening of June 26, 2007 and had 9 direct contact with LVN Sowtell there. As such, LVN Sowtell inevitably would have seen 10 Plaintiff bleeding during the 12 hours he alleges he was hemorrhaging. Plaintiff also alleges 11 LVN Sowtell knew of his condition because she called NP Thomas regarding the situation and 12 recorded her observations on standard medical progress forms. (Doc. No. 1 Compl. at 86-89.) 13 Notwithstanding this knowledge, she failed to summon further medical attention or offer pain 14 relief. Plaintiff also satisfied the second prong by alleging this indifference delayed medical 15 care, exacerbated his injury and caused him to suffer "blood disorders that may have been 16 caused from the massive hemorrhage." (Id. at 12.) Accordingly, the Court recommends the 17 Motion to Dismiss be DENIED as to Defendant LVN Sowtell. 18 19 b. NP Thomas

Plaintiff also contends that NP Thomas denied him adequate medical care prior to

20 sending him to a hospital on June 27, 2007. (Id. at 14-15.) Plaintiff's allegations with respect to 21 NP Thomas, while not particularly well-pled, are adequate to survive a motion to dismiss with 22 respect to contributing to the delay of adequate medical care. Plaintiff sufficiently alleges NP 23 Thomas was deliberately indifferent. Deliberate indifference requires "(a) a purposeful act or 24 failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the 25 indifference." Jett, 439 F.3d at 1096. Plaintiff alleges NP Thomas knew of his injury by virtue 26 of being contacted by LVN Sowtell regarding the situation and failed to respond to Plaintiff's 27 emergency by telling LVN Sowtell over the phone to "hold" Plaintiff at the prison. (Doc. No. 1 28 Compl. at 15.) Allegedly, NP Thomas could have allowed LVN Sowtell to send Plaintiff to a
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1 hospital for more appropriate medical care but affirmatively failed to do so. Further, Plaintiff 2 alleges NP Thomas' actions caused harm including "medical complications" and blood disorders 3 which developed following the medical emergency. (Id. at 13.) Therefore, the Court 4 recommends the Motion to Dismiss be DENIED as to Defendant NP Thomas. 5 6 c. Dr. Levin

Plaintiff argues Dr. Levin is "legally responsible for all overall medical operations at

7 Calipatria State Prison also for all inmates[sic] welfare under medical care at Calipatria State 8 Prison." (Id. 2.) However, Plaintiff fails to state a claim against Dr. Levin in his complaint 9 because he has failed to allege personal involvement in his constitutional deprivation claim. See 10 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). There is no respondeat superior liability 11 under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). As a 12 supervisor, a Defendant may only be held liable for the allegedly unconstitutional violations of 13 his subordinates if Plaintiff alleges specific facts which show: (1) how or to what extent this 14 supervisor personally participated in or directed Defendants' actions, and (2) in either acting or 15 failing to act, the supervisor was an actual and proximate cause of the deprivation of his 16 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 17 In the instant case, Plaintiff does not allege any facts which constitute personal acts

18 committed by Dr. Levin. Absent any such allegations, the Court recommends the Motion to 19 Dismiss be GRANTED, without prejudice, as to Defendant Levin. However, because Plaintiff 20 could possibly cure the defects of pleading identified in this Recommendation as to Dr. Levin, it 21 is also recommended he be granted an opportunity to amend.6/ Lopez v. Smith, 203 F.3d 1122, 22 1127 (9th Cir. 2000) (leave to amend is generally appropriate unless the court has determined 23 "that the pleading could not possibly be cured by the allegation of other facts."). 24 6. A court may dismiss a complaint without granting leave to amend only if it appears with certainty that the plaintiff cannot state a claim and any amendment would be futile. See Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires"); DeSoto v. Yellow Freight 26 Systems, Inc., 957 F.2d 655, 658 (9th Cir.1992); Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 27 1988); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) ("leave to amend should be granted unless the court determines that the allegation of other facts 28 consistent with the challenged pleading could not possibly cure the deficiency."). 25
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d.

Warden Scribner

Plaintiff seeks to hold Warden L. E. Scribner liable in his supervisory capacity for

3 Plaintiff's claims that he was injured and denied adequate medical care at Calipatria State Prison. 4 (Doc. No. 1 Compl. at 2.) However, there is no respondeat superior liability under 42 U.S.C. § 5 1983. Palmer, 9 F.3d at 1437-38. Instead, "[t]he inquiry into causation must be individualized 6 and focus on the duties and responsibilities of each individual defendant whose acts or omissions 7 are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th 8 Cir. 1988) (citing Rizzo v. Goode, 423, U.S. 362, 370-71 (1976)). 9 As currently pled, however, Plaintiff's Complaint in no way sets forth facts which might

10 be liberally construed to support an individualized constitutional claim against the warden of 11 Calipatria Prison. Therefore, the Court recommends the Motion to Dismiss be GRANTED as to 12 Defendant Scribner. 13 14 3. Due Process Violation

Defendants argue Plaintiff has failed to state a claim against D. Holbrook, L. Bonnett and

15 Warden Dexter in the context of the prison grievance procedure at Ironwood State Prison. (See 16 Doc. No. 23.) To the extent Plaintiff intends to state due process claims against Holbrook and 17 Bonnett7/ for denying his appeals, Defendants are correct. Prisoners do not have a "separate 18 constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 19 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 20 Specifically, a failure to process a grievance does not state a constitutional violation. Buckley v. 21 Barlow, 997 F.2d 494, 495 (8th Cir. 1993). Even the non-existence of, or the failure of prison 22 officials to properly implement, an administrative appeals process within the prison system does 23 24 7. Plaintiff's claim against Warden Dexter rests solely on her role as warden of Ironwood State Prison. (Doc. No. 1 Compl. at 2.) As with Warden Scribner, Plaintiff's Complaint in no way 26 sets forth facts which might be liberally construed to support an individualized constitutional deprivation claim against Warden Dexter. The law does not support respondeat superior liability 27 under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Therefore, even if Plaintiff could make a viable claim against Defendants Holbrook and Bonnett, the Court 28 recommends any claim against Warden Dexter be dismissed pursuant to Rule 12(b)(6). 25
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1 not raise constitutional concerns.8/ Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also 2 Buckley, 997 F.2d at 495. State regulations give rise to a liberty interest protected by the Due 3 Process Clause of the federal constitution only if those regulations pertain to "freedom from 4 restraint which ... imposes atypical and significant hardship on the inmate in relation to the 5 ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 6 132 L. Ed. 2d 418 (1995). 7 Plaintiff has failed to allege any facts from which the Court could find there were atypical

8 and significant hardships imposed upon him as a result of improper handling of internal 9 grievance procedures. As there is no cause of action for the failure to adjudicate an inmate's 10 grievances, the Court finds that Plaintiff has failed to allege a protected liberty interest and as a 11 result, failed to state a due process claim.9/ See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 12 1997); Sandin, 515 U.S. at 486. Therefore, the Court recommends Defendants' Motion to 13 Dismiss claims against Defendants Holbrook, Bonnett and Dexter be GRANTED. 14 B. 15 Motion to Dismiss Claims Against Defendant Doe Plaintiff alleges Defendant Doe is liable for Plaintiff's injuries by virtue of his position as

16 the Director of the California Department of Corrections (CDC). Essentially, Plaintiff is suing 17 Defendant Doe in his supervisory capacity as the party responsible for the "overall operation of 18 Department and each institution under its jurisdiction." (Doc. No. 1 Compl. at 2.) However, the 19 Director of the CDC cannot be held liable under a respondeat superior theory under 42 U.S.C. § 20 1983. See Palmer, 9 F.3d at 1437-38. To avoid the respondeat superior bar, the plaintiff must 21 allege personal acts by the defendants which have a direct causal connection to the constitutional 22 violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Paine v. City of 23 8. See also Azeez v. De Robertis, 568 F. Supp. 8, 10 (N.D.Ill. 1982) ("[A prison] grievance 24 procedure is a procedural right only, it does not confer any substantive right upon the inmates. 25 Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment.") 26 9. The fact that there is no effective grievance system for inmates at Ironwood State Prison 27 may be sufficient to defeat a motion to dismiss the complaint if the issue were Plaintiff's failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a), However, in the context of Plaintiff's 28 allegations, it does not give rise to an independent cause of action.
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1 Lompoc, 265 F.3d 975, 984 (9th Cir. 2001) (whether or not each defendant "is a participant in 2 the incidents that could give rise to liability" is a necessary element of the § 1983 claim). Since 3 no direct participation is alleged by Defendant Doe, the Court recommends the Motion to 4 Dismiss be GRANTED as to Defendant Doe. 5 C. 6 Motion to Amend Name on Complaint As discussed in the preceding section, Plaintiff can make no claim against Defendant Doe

7 (or Mathew Cate) solely for his role as Director of the CDC. Under that premise, it appears 8 granting Plaintiff leave to amend his complaint solely to substitute Matthew Cate for John Doe 9 would be futile if his complaint fails to state an individualized claim of liability against the 10 Director anyway. See Palmer, 9 F.3d at 1437-38 (there is no respondeat superior liability under 11 42 U.S.C. § 1983). 12 Therefore, the Court recommends Plaintiff's Motion to Amend Name on Complaint be

13 DENIED. Vasquez v. Los Angeles County, 487 F.3d 1246, 1258 (9th Cir. 2007) (citing Schmier 14 v. U.S. Court of Appeals, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing "[f]utility of 15 amendment" as a proper basis for dismissal without leave to amend)); see also Cahill v. Liberty 16 Mutual Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (where amendment of litigant's complaint 17 would be futile, denial of leave to amend is appropriate). 18 19 20 V. CONCLUSION The Court submits this Report and Recommendation to United States District Judge

21 Marilyn L. Huff under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c)(1)(c) of the United 22 States District Court for the Southern District of California. For the reasons outlined above, IT 23 IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting 24 this Report and Recommendation, and (2) directing that Judgment be entered: 25 26 DENYING Defendants' Motion to Dismiss as to Defendants Sowtell and Thomas; GRANTING Defendants' Motion to Dismiss as to Defendants Levin, Scribner, Dexter,

27 Holbrook and Bonnet; 28 GRANTING Defendants' Motion to Dismiss as to Defendant DOE; and
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DENYING Plaintiff's Motion to Amend Name on Complaint. IT IS ORDERED that no later than March 4, 2009 any party to this action may file

3 written objections with the Court and serve a copy on all parties. The document should be 4 captioned "Objections to Report and Recommendation." 5 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the

6 Court and served on all parties no later than March 18, 2009. The parties are advised that 7 failure to file objections within the specified time may waive the right to raise those objections 8 on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 9 Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991). 10 IT IS SO ORDERED.

11 DATE: February 11, 2009 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Peter C. Lewis U.S. Magistrate Judge United States District Court

cc:

The Honorable Marilyn L. Huff All Parties and Counsel of Record

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