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Thomas v. Shewry

United States District Court, E.D. California
Feb 15, 2006
No. CIV.S-04-1764 DFL DAD PS (E.D. Cal. Feb. 15, 2006)

Opinion

No. CIV.S-04-1764 DFL DAD PS.

February 15, 2006.



FINDINGS AND RECOMMENDATIONS


This matter is before the court on defendant Sandra Shewry's motion to dismiss plaintiff's second amended complaint or, in the alternative, for summary judgment in her favor. Plaintiff, proceeding pro se, appeared on his own behalf at the hearing on the motion. Michael V. Hammang appeared on behalf of defendant. Having considered all written materials submitted in connection with the motion, and after hearing oral argument, the undersigned will recommend that the motion to dismiss be granted and that plaintiff's second amended complaint be dismissed without further leave to amend.

Pursuant to Federal Rule of Civil Procedure 12(b)(6) a complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. Hosp. Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976). Furthermore, the court must construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In a case where the plaintiff is pro se, the court has an obligation to construe the pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of a claim that are not pled.Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

This action arises from the revocation of plaintiff's Certified Nurse Assistant (CNA) and Home Health Aide (HHA) certifications by the California Department of Health Services (DHS). According to the second amended complaint, in February of 2000 DHS initially revoked plaintiff's certifications because it was discovered he had suffered two misdemeanor convictions in 1974 and 1980. Years of administrative and legal proceedings ensued. As a result, plaintiff's certifications were reinstated on at least one occasion only to be revoked again. Indeed, plaintiff's most recent administrative application for reinstatement was pending at the time of the hearing on defendant's motion. Since that time that application has since been denied both initially and on appeal by DHS' Office of Administrative Hearings and Appeals. (See Pl.'s Supp. in Supp. of Opp'n to Mot. to Dismiss filed December 12, 2005.)

Because plaintiff's most recent application has been denied on administrative appeal and in light of the recommendation of dismissal herein, the undersigned will not address defendant's alternative request that the court abstain from deciding this matter pending the resolution of plaintiff's administrative proceedings.

By previous order, the court dismissed plaintiff's amended complaint with leave to amend. The amended complaint was brought pursuant to 42 U.S.C. § 1981 and alleged that DHS deprived plaintiff of his CNA and HHA certifications because of his race. However, because the amended complaint was devoid of any factual allegations supporting a claim of racial bias and because the only named defendant, DHS, was immune from suit under the Eleventh Amendment, it was dismissed.

Plaintiff's second amended complaint is brought pursuant to 42 U.S.C. § 1983 and names as a defendant only Sandra Shewry, who is sued in her official capacity as director of DHS. The second amended complaint again alleges in a conclusory fashion that plaintiff's licenses have been revoked because he is African-American. It prays that the court "enjoin and restrain the defendant's [sic] from denying plaintiff his nurse's certificate" and declare certain provisions of the California Health and Safety Code addressing the rules and procedures for revoking such a certificate be declared unconstitutional. (Second Am. Compl. at 13.) The second amended complaint also seeks compensatory damages, punitive damages and fees and costs.

Having carefully reviewed the second amended complaint, the undersigned finds that it must be dismissed. The Civil Rights Act provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978);Rizzo v. Goode, 423 U.S. 362 (1976). "A person `subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

As to defendant Shewry the second amended complaint does not allege how the conduct complained of has resulted in a deprivation of plaintiff's rights, privileges or immunity secured by the Constitution or federal law by a person acting under color of state law. L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992); Lopez v. Dept. of Health Serv., 939 F.2d 881, 883 (9th Cir. 1991).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory ofrespondeat superior and, therefore, when a named defendant holds a supervisory position the causal link between the defendant and the claimed constitutional violation must be specifically alleged. See Favle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). "A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them."Tailor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citingYbarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984)). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Reqents, 673 F.2d 266, 268 (9th Cir. 1982).

Here, the second amended complaint only identifies defendant Shewry by name at the outset of the complaint and thereafter fails to allege any specific acts taken by her. Indeed, second amended complaint alleges that defendant Shewry is being sued simply because she "is charged by law with enforcing the California Health and Safety Code" and "responsible for the certification of Nurses Assistants. . . ." (Second Am. Compl. at 2.) Moreover, at the hearing on the motion, plaintiff was unable to identify any specific conduct engaged in by defendant Shewry in connection with his claim that he has been treated unfairly due to his race. Rather, plaintiff conceded that he has not dealt with defendant Shewry directly and that she has not personally interjected herself in plaintiff's certification disputes with DHS. According to plaintiff, Shewry was named as a defendant only because of her "official capacity" and her position as a state official. Such allegations do not provide the required causal link between defendant Shewry and plaintiff's claimed constitutional violation.

In the second amended complaint plaintiff repeatedly refers to the Fourteenth Amendment. A liberal construction of plaintiff's allegations regarding his race and that "defendant subjected no other certified nurse to this behavior" (Second Am. Compl. at 12) suggests that plaintiff is attempting to allege an equal protection violation.

For these reasons, this § 1983 action should be dismissed.See Barren v. Harrinqton, 152 F.3d 1193, 1194 (9th Cir. 1998) (affirming dismissal of third amended complaint with prejudice where plaintiff failed to allege facts supporting defendant's personal involvement in the deprivation of equal protection rights). The Eleventh Amendment further dictates that the second amended complaint be dismissed to the extent that it seeks damages and retrospective injunctive relief. See Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) ("The eleventh amendment bars both a federal court action for damages (or other retroactive relief) brought by a citizen against a state and such a federal court action brought by a citizen against a state official acting in his official capacity.").

Plaintiff filed an amended complaint once as a matter of right and a second amended complaint as permitted by the court. Given the nature of the deficiencies discussed above, and considering that plaintiff already has had an opportunity to amend, it appears clear that plaintiff cannot cure the defects in his second amended complaint. Plaintiff's basic contention is that the employees and officials at DHS have treated him unfairly because of his race. However, he has yet to make factual allegations connecting any named defendant to specific acts which were taken in violation of his constitutional rights. Plaintiff has also has been unable to allege with any degree of specificity how any such alleged actions were undertaken due to his race. Under these circumstances, granting leave to amend would be futile. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Rutman Wine Co. v. E. J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). Therefore, the undersigned will recommend that the second amended complaint be dismissed with prejudice.

Accordingly, IT IS HEREBY RECOMMENDED that defendant's motions to dismiss pursuant to Rule 12(b)(6) be granted and this action be dismissed without further leave to amend.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


Summaries of

Thomas v. Shewry

United States District Court, E.D. California
Feb 15, 2006
No. CIV.S-04-1764 DFL DAD PS (E.D. Cal. Feb. 15, 2006)
Case details for

Thomas v. Shewry

Case Details

Full title:STEVE L. THOMAS, Plaintiff, v. SANDRA SHEWRY, et al., Defendants

Court:United States District Court, E.D. California

Date published: Feb 15, 2006

Citations

No. CIV.S-04-1764 DFL DAD PS (E.D. Cal. Feb. 15, 2006)