Opinion
Civil No. 04cv0914-LAB (CAB).
February 17, 2006
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION TO DISMISS
Plaintiff Derrick Richardson, a California prisoner proceeding pro se and in forma pauperis, filed this civil rights suit against several defendants under 42 U.S.C. § 1983. Defendants have filed a motion seeking dismissal of the complaint on numerous grounds. Plaintiff has filed an opposition to the motion. The Court finds the issues appropriate for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). After a thorough review of the motion, Plaintiff's complaint, and the applicable case law, the Court RECOMMENDS that the Motion to Dismiss be GRANTED.
I. BACKGROUND
Because this case comes before the Court on a motion to dismiss, the Court must accept as true all material allegations in the complaint and must also construe the complaint, and all reasonable inferences drawn therefrom, in the light most favorable to Plaintiff. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). Plaintiff is a state prisoner incarcerated at Salinas Valley State Prison in Soledad, California. (Compl. ¶ 1.) The events giving rise to this suit occurred when Plaintiff was housed at Centinela State Prison in Imperial Valley, California ("Centinela"). (Compl. ¶ 1.) On April 28, 2003, Plaintiff was scheduled to be transported from Centinela to Imperial County Superior Court, and Defendant Lizarrega was the officer responsible for transporting him to court. (Compl. ¶¶ 15-17.) Defendant Lizarrega placed handcuffs on Plaintiff's wrists too tightly and cut off his blood circulation. (Compl. ¶ 18.) When Plaintiff complained to Defendant Lizarrega, Lizarrega responded that it was "procedure." (Compl. ¶¶ 19-20.) Furthermore, Lizarrega placed a black security box over the handcuffs, which caused Plaintiff additional discomfort. (Compl. ¶ 20.) Defendant Lizarrega did not loosen the handcuffs when Plaintiff requested that he do so. (Compl. ¶¶ 21-22.) Plaintiff also explained the situation to Defendants Flood, Rodriguez and Perdomo, but none of the officers would loosen his handcuffs. (Compl. ¶¶ 23-25.) As a result, Plaintiff alleges, he had to endure five hours of pain, because his handcuffs were too tight. (Compl. ¶ 26.)When the handcuffs were removed, Plaintiff had discoloration, blistering and swelling on both his wrists. (Compl. ¶ 27.) On April 29, 2003, Plaintiff was examined by Defendant Thornton, a medical doctor. (Compl. ¶ 31.) As a result, Thornton prepared a doctor's order, which prescribed that Plaintiff be "double cuffed/waist chain-only if he goes to court due to a medical condition." (Compl. Ex. B.) On April 30, 2003, Plaintiff was to be transported from Centinela to court again. (Compl. ¶ 34.) Plaintiff informed Defendant Perdomo that there was a "medical chrono" in Plaintiff's file specifying an alternative method of restraint. (Compl. ¶ 34.) Plaintiff alleges that Defendant Perdomo disregarded Plaintiff's information and did not make an attempt to confirm the doctor's orders. (Compl. ¶ 34.) Instead, Defendant Rodriguez told Plaintiff he would inform the watch commander that Plaintiff refused to appear at court. (Compl. ¶ 35.) It appears from the complaint that Plaintiff did not make his court appointment that day.
On May 1, 2003, Plaintiff was scheduled to appear in court again. (Compl. ¶ 37.) Defendant Camargo informed Plaintiff that if he refused to submit to the handcuffs, then he refused to go to court. (Compl. ¶ 37.) Plaintiff warned Camargo about the doctor's orders but did submit to the handcuffs and black security box. (Compl. ¶ 37.) Plaintiff was placed in a transportation van and endured six hours of the restraints, which caused him pain, dizziness, and swelling and breaking of his skin. (Compl. ¶ 38.) When Plaintiff returned from court, he informed Defendant Houston, a medical technical assistant at Centinela, that he needed medical attention, but Houston offered none. (Compl. ¶¶ 3, 39.) On May 2, 2003, Plaintiff informed Defendant Jones, also a medical technical assistant at Centinela, that he needed medical attention, and Jones looked at his wrists but offered no medical assistance. (Compl. ¶ 40.)
On May 5, 2003, Plaintiff filed an administrative appeal complaining that his First and Eighth Amendment rights had been violated by the officers' handcuffing and the prison officials' refusal to treat his injuries due to the handcuffing. (Compl. Ex. C.) On May 25, 2003, Plaintiff requested a Director's Level Appeal. (Compl. Ex. C.) On August 7, 2003, the appeal was denied at the Director's Level. (Compl. Ex. D.) On October 8, 2003, Plaintiff filed another administrative appeal complaining that Defendants Houston and Jones did not document the damaged and injured condition of his wrists. (Compl. Ex. E.)
On April 30, 2004, Plaintiff filed this suit alleging claims under § 1983 and California tort law. He names as defendants the officers involved in transporting him to Imperial County Superior Court, the medical physician who examined him on April 29, 2003, the medical technical assistants he claims looked at his wrists but did not provide treatment, the warden at Centinela, and the chief inmate appeals officer. He alleges cruel and unusual punishment, excessive force, and denial of medical care in violation of his Eighth and Fourteenth Amendment rights. In addition, he alleges that Defendants interfered with his right of access to the courts. Finally, Plaintiff alleges Defendants violated California laws, rules and procedures, and intentionally inflicted emotional distress upon him.
II. DISCUSSION
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the plaintiff's claims. See Fed.R.Civ.P. 12(b)(6). A claim can be dismissed only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the complaint." Swierkiewicz v. Sorema, 534 U.S. 506, 513 (2002). The issue is not whether the plaintiff will ultimately prevail, but whether he has properly stated a claim upon which relief could be granted. Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003). When the plaintiff is appearing pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Thompson, 295 F.3d at 895; Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). This rule of liberal construction is "particularly important" in civil rights cases. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court is not permitted to "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
A. Exhaustion
As an initial matter, the Court must address the issue of exhaustion of administrative remedies, raised by Defendants, since exhaustion is a prerequisite to bringing suit under the Prison Litigation Reform Act (" PLRA"). See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). In prisoner civil rights case, the PLRA provides, "No action shall be brought . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Here, Defendants have raised the issue of exhaustion by filing a "non-enumerated" motion under Fed.R.Civ.P. 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (non-enumerated motion under Rule 12(b) is the "proper pretrial motion for establishing non-exhaustion of administrative remedies" under § 1997e(a)). Failure to exhaust is an affirmative defense, and thus Defendants bear the burden of proving that Plaintiff did not properly exhaust his claims through the prison's administrative appeal process. Wyatt, 315 F.3d at 1117-19. In deciding a motion to dismiss based on failure to exhaust, the Court may look beyond the pleadings to extrinsic evidence. Wyatt, 315 F.3d at 1119. If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Wyatt, 315 F.3d at 1119-20.
The administrative appeals process for California inmates is set forth in Title 15 of the California Code of Regulations, which provides, "Any inmate . . . may appeal any departmental decision, action, condition, or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15 § 3084.1(a). The process consists of four steps. The first step is for the inmate to attempt to informally resolve his or her problem with the staff member involved. Id. at § 3084.5(a). If unsuccessful, the inmate can submit an appeal on the CDC inmate appeal form, called a "602" form. Id. at § 3084.5(b). If denied at that level, the inmate can appeal to the second level of formal review conducted by the institution head or his/her designee. Id. at § 3084.5(c). The third and final level of formal review, called the "Director's Level," is conducted by the Director of CDC or his/her designee. Cal. Dept. of Corr. Operations Manual § 54100.11; Nichols v. Logan, 355 F.Supp. 2d 1155, 1161 (S.D. Cal. 2004).
Defendants argue that Plaintiff failed to exhaust all administrative remedies, because his appeal did not name all Defendants and did not allege he was denied his right of access to the courts. On the 602 form Plaintiff submitted on May 5, 2003, he described the facts underlying his claims. (Opp. Ex. A.) The facts from the complaint essentially mirror the facts alleged in the 602 form. Plaintiff named a number of Defendants, including Lizarrega, Flood and Rodriguez, but Defendants are correct that Plaintiff did not name all of the Defendants. The Ninth Circuit, however, has held that a prisoner is not required to specifically identify every defendant in an administrative grievance form in order to properly exhaust his claim. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005). In Butler, the Court relied on the fact that the grievance form provided to the inmate, the CDC's "Reasonable Modification Or Accommodation Request" form pertaining to an inmate's disability, did not require the inmate to name specific individuals involved in his grievance. Butler, 397 F.3d at 1183.
The documents attached to the complaint contain an incomplete copy of the Plaintiff's 602 form. However, Plaintiff submitted the complete copy with his Opposition to the Motion to Dismiss, and it is this copy to which the Court refers.
Similarly, here, Plaintiff was required to use the CDC 602 form to submit his grievance, and this form, like the one used by the inmate in Butler, did not require identification of any specific persons. See Cal. Code Regs., tit. 15 § 3084.2(a)(1) (requiring California prisoner to "use a CDC Form 602 . . . to describe the problem and the action requested."). Plaintiff completed the 602 form and described the general nature of his grievance. "Doing so, he availed himself of the administrative process the state gave him. The PLRA does not require more." Butler, 397 F.3d at 1183. Thus, under Butler, although Plaintiff's inmate appeal form did not name all of the Defendants named in the complaint, this deficiency does not warrant dismissal on exhaustion grounds.
Defendants also argue that Plaintiff did not properly exhaust his claim of denial of access to the courts. To the contrary, however, Plaintiff's 602 form included the allegation that he was denied access to court, because the prison officers did not verify his medical condition and refused to double cuff him to transport him to court. (Opp. Exh. A.) Therefore, Plaintiff sufficiently described the "problem and the action requested" as required by the California regulations, and he properly exhausted the denial of access to the courts claim.
Finally, Defendants argue that Plaintiff did not exhaust his pendent state claims. The PLRA, however, does not require that pendent state law claims be exhausted. The PLRA only refers to actions brought under 42 U.S.C. § 1983, or any other Federal law, and Defendants do not cite to any cases holding that § 1997(e)(a) applies to pendent state claims.
Accordingly, for the reasons stated above, the Court RECOMMENDS that Defendants' motion to dismiss on exhaustion grounds be DENIED.
B. Claims Against Defendants Cabrera, Giurbino, Mettler, Cook and Grannis
1. Claims against Cabrera, Giurbino and Mettler based on respondeat superior
Plaintiff's claims against Defendants Cabrera, Giurbino and Mettler are predicated on the allegation that they failed to protect him from abuses which directly resulted in his injuries. Defendants argue Plaintiff is basing his claim against these Defendants on their capacity as supervisory officials, and liability for a civil rights violation may not be based on a theory of respondeat superior. Therefore, Defendants argue, Plaintiff's claims against Defendants Cabrera, Giurbino and Mettler should be dismissed. For a defendant to be held liable under § 1983, the plaintiff must demonstrate that the defendant personally participated in the alleged denial of rights; in other words, there can be no liability under § 1983 based on respondeat superior or other theory of vicarious liability. Monell v. Dep't of Soc. Serv. of the City of New York, 436 U.S. 658 (1978); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Liability under § 1983 attaches only upon personal participation by a defendant in the constitutional violation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor may be liable for constitutional violations of subordinates, however, if the supervisor participated in, directed, or knew of the violations and failed to act to prevent them. Taylor, 880 F.2d at 1045.
In his complaint, Plaintiff alleges that Defendant Cabrera is a correctional sergeant at Centinela, Defendant Giurbino is the warden at Centinela State Prison, and Defendant Mettler is a correctional lieutenant at Centinela State Prison. (Compl. ¶¶ 7, 12, 8.) Plaintiff's complaint fails to allege any personal involvement by Defendants Cabrera, Giurbino and Mettler in the acts that allegedly denied him his rights. Nor does Plaintiff allege that these three Defendants directed or knew of the alleged violations and failed to prevent them. Because Plaintiff cannot recover against Defendants Cabrera, Giurbino and Mettler on a respondeat superior theory, the Court finds Plaintiff fails to allege a claim against these three Defendants. 2. Claims against Giurbino, Cook and Grannis for denial of inmate appeal
Plaintiff alleges that Defendants Giurbino, Cook, and Grannis violated his rights under the Eighth Amendment, because they refused to grant his medical grievance. Cook is a correctional analyst at Centinela, and Grannis is a chief inmate appeals officer with the California Department of Corrections. (Compl. ¶¶ 11, 13.) According to Plaintiff, if his medical grievance had been granted by these Defendants, he would have received adequate medical care and treatment. Defendants argue that the claims against Defendants Giurbino, Cook and Grannis should also be dismissed, because liability under § 1983 cannot be predicated upon a defendant's involvement in the inmate grievance system. Defendants are correct.
Prisoners have no constitutional right to an inmate grievance system. Olim v. Wakinekona, 461 U.S. 238, 249 (1983). Thus, the non-existence of, or the failure of prison officials to properly implement, an administrative appeals process within the prison system does not raise constitutional concerns. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728 (8th Cir. 1991). "[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." Buckley, 997 F.2d at 495 (citation omitted); see also Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). "Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the Fourteenth Amendment." Azeez v. DeRobertis, 568 F.Supp. at 10; Spencer v. Moore, 638 F.Supp. 315, 316 (E.D. Mo. 1986). Specifically, failure to process a grievance does not state a constitutional violation. Buckley, 997 F.2d at 495. Thus, a prison official's involvement and actions in reviewing a prisoner's administrative appeal cannot serve as the basis for liability under a § 1983 action. Buckley, 997 F.2d at 495. Because Plaintiff cannot recover against Defendants Giurbino, Cook and Grannis based upon their refusal to grant his inmate grievance, the Court finds Plaintiff fails to allege a claim against these three Defendants.
Accordingly, the Court RECOMMENDS that the claims against Defendants Cabrera, Giurbino, Mettler, Cook and Grannis be DISMISSED. The Court recognizes, however, that "[l]eave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts, and should be granted more liberally to pro se plaintiffs." See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004). Because Plaintiff could possibly cure the deficiencies in his complaint by pleading additional facts showing that these five Defendants had some personal involvement in the alleged violation of his rights, the Court RECOMMENDS that Plaintiff be GRANTED leave to amend his claims against these Defendants.
C. Claim of Denial of Access to the Courts
Although Plaintiff has not specifically stated a cause of action for denial of access to the courts, he did allege in his recitation of the facts that Defendants Rodriguez and Perdomo denied him access to court on April 30, 2003. (Compl. ¶ 36.) Defendants argue that this claim should be dismissed, because Plaintiff does not allege that he sustained an injury as a result of the alleged cancelled court appointment. To state a claim for interference with the right of access to the courts, a prisoner must establish he suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 351-52 (1996). In addition, the prisoner must establish that the alleged actions of the defendants "hindered his efforts to pursue a legal claim." Id. at 351. In his complaint, Plaintiff alleges that on April 30, 2003, he was scheduled to be in court. He showed Defendants Perdomo and Rodriguez his swollen and blistered wrist and informed them that he had a doctor's medical chrono that he receive an alternative method of restraint. At this point, Plaintiff alleges, Defendant Rodriguez said, "We don't have to go through this shit with you. I'm calling the watch commander and telling him that you refused to appear at court." (Compl. ¶¶ 34-36.) As a result, Plaintiff argues, he was denied access to court, because he was forced to miss his court appointment.
Based upon these factual allegations, however, Plaintiff has not stated a claim for denial of access to the courts. Plaintiff has not provided any facts to show that he suffered an actual injury as a result of the cancelled appointment. In addition, Plaintiff has not alleged any facts to show that he was pursuing a nonfrivilous legal claim that was hindered as a result of Defendants Perdomo and Rodriguez's actions. Casey, 518 U.S. at 351. Therefore, the Court RECOMMENDS that the claim against Defendants Perdomo and Rodriguez for denial of access of the courts be DISMISSED. Because Plaintiff could possibly cure the deficiencies in his complaint by pleading additional facts to support this claim, the Court RECOMMENDS that Plaintiff be GRANTED leave to amend the denial of access to court claim.
D. Eighth Amendment Claim
Defendants make a couple of arguments in support of dismissal of Plaintiff's Eighth Amendment claim against the remaining Defendants. First, Defendants argue that the claims of cruel and unusual punishment and excessive force must be dismissed, because there is no showing of more than a de minimis physical injury. Next, Defendants argue that the claims of deliberate indifference to his medical needs should be dismissed, because Plaintiff fails to establish the elements required to support the claim.
1. Excessive force
Plaintiff alleges that Defendants subjected him to cruel and unusual punishment and excessive force. In a claim of excessive force in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment, the core judicial inquiry is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). Not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. "What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishment Clause depends upon the claim at issue. . . ." Id. at 8. "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (quotations and citations omitted). Defendants argue this claim should be dismissed, because Plaintiff's injuries were de minimis. However, the absence of serious injury does not end the Eighth Amendment inquiry. Id. at 7. Although the Eighth Amendment excludes from constitutional recognition de minimis use of force, if the force is of the kind repugnant to mankind, it will be deemed excessive. Id. at 9-10.
Here, Plaintiff has not alleged facts that indicate Defendants acted "maliciously and sadistically to cause harm" or that Defendants actions were "repugnant to the conscience of mankind." Id. at 7. Plaintiff alleges that, on April 28, 2003, Defendant Lizarrega "negligently" placed handcuffs too tightly on his wrist (Compl. ¶ 18) and ignored his complaints, stating, "This is procedure." (Compl. ¶ 20.) Plaintiff then explained to Defendants Flood and Rodriguez that the handcuffs were too tight and that there should be at least a fingertip of space between the wrists and the handcuffs. Defendant Flood responded, "That's only when your hands are behind you." (Compl. ¶ 24.) Defendant Perdomo then placed Plaintiff in a van, and Plaintiff complained that his wrists were hurting, but Perdomo did not loosen the handcuffs. Plaintiff further alleges that Defendant Camargo also subjected him to cruel and unusual punishment and excessive force on May 1, 2003. On that day, Plaintiff was scheduled for a court appearance, and Plaintiff alleges Defendant Camargo ignored his requests for alternative restraints and put him in handcuffs and a black security box to transport him to court. (Compl. ¶ 37.)
Plaintiff has not alleged facts that indicate Defendants were doing anything more than following procedure so that Plaintiff could be transported to court. The "negligence" that Plaintiff alleges on Defendant Lizarrega's part does not amount to malicious and sadistic conduct required under Hudson. While Defendants may not have used the restraint method that Plaintiff would have preferred, without more, the facts alleged do not amount to a constitutional violation. Plaintiff fails to allege facts that indicate Defendants actions were more than "a good-faith effort to maintain or restore discipline." Hudson, 503 U.S. at 7. Accordingly, the Court RECOMMENDS that the claims for cruel and unusual punishment and excessive force be DISMISSED. Because Plaintiff could possibly cure the deficiencies in his complaint by pleading additional facts to support this claim, the Court RECOMMENDS that Plaintiff be GRANTED leave to amend the claim of cruel and unusual punishment and excessive force.
b. Deliberate indifference
Plaintiff alleges that Defendants denied him medical care in violation of the Eighth Amendment. Defendants argue that this claim should be dismissed, because Plaintiff has failed to allege facts showing that: 1) he suffered from a serious medical need; 2) Defendants had the subjective intent required for an Eighth Amendment violation; and 3) there was a causal connection between Defendants' acts or omissions and Plaintiff's injuries. Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official exhibits deliberate indifference when he knows of and disregards a substantial risk of serious harm to inmate health. Farmer v. Brennan, 511 U.S. 825, 837 (1970). The official must both know of "facts from which the inference could be drawn" that an excessive risk of harm exists, and he must actually draw that inference. Id. at 837. Evaluating a claim of deliberate indifference necessitates examining the seriousness of the prisoner's need and the nature of the defendant's response. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). The indifference must be substantial, and the conduct must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105-06.
Turning to the first requirement that the plaintiff must suffer a serious medical need, Plaintiff alleges that he suffered "great discomfort" (Compl. ¶ 57), and blistering and swelling (Compl. ¶ 27) on his wrists. A serious medical need exists if failure to provide treatment could result in further significant injury or the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104. Here, Plaintiff has failed to allege facts that indicate the discomfort and swelling amounted to a "serious medical need" or resulted in further significant injury. The Court finds that the mere blistering and swelling Plaintiff allegedly suffered is not the type of harm protected by the Eighth Amendment.
Further, Plaintiff has failed to meet the second prong of the Farmer test, which requires Plaintiff to show that Defendants were deliberately indifferent to his need for medical treatment. Plaintiff first complains that Defendant Thornton, the doctor who prescribed the medical chrono, failed to provide him with appropriate medication for the injury to his wrist. This allegation fails to establish that Defendant Thornton knew of a substantial risk of harm to Plaintiff and failed to take reasonable measures to abate the harm. Farmer, 511 U.S. at 838. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). With respect to Defendants Lizarrega, Flood, Rodriguez and Camargo, Plaintiff alleges that they disregarded a physician's medical chrono that prescribed an alternative method of restraint. Plaintiff also alleges that two medical technical assistants, Defendants Houston and Jones, failed to provide him medical treatment after examining his wrists. Plaintiff again fails to allege facts that establish these Defendants had a "sufficiently culpable state of mind" to establish a claim of deliberate indifference. Farmer, 511 U.S. at 834.
Finally, Plaintiff has failed to allege facts to establish that Defendants' acts or omissions led to further harm. McGuckin, 974 F.2d at 1060. Plaintiff has made no allegations about what injuries, if any, he sustained from Defendants' actions. The conclusory allegation that his injuries were of a "serious nature" (Compl. ¶ 64) does not establish the causal connection required in a § 1983 claim. To state a viable constitutional claim under § 1983, Plaintiff must show an affirmative link between the alleged injury and the conduct of an individual Defendant. Rizzo v. Goode, 423 U.S. 362, 371-72 (1976).
For these reasons, the Court RECOMMENDS that Plaintiff's deliberate indifference claim be DISMISSED. Because Plaintiff could possibly cure the deficiencies in his complaint by pleading additional facts to support this claim, the Court RECOMMENDS that Plaintiff be GRANTED leave to amend his deliberate indifference claim.
III. CONCLUSION
For all of the above reasons, the Court recommends that:
1) Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) be GRANTED and the claims in the complaint be DISMISSED without prejudice and with leave to amend; and
2) Plaintiff's pendant state law claims be DISMISSED in light of the recommended dismissal of the federal claims. See 28 U.S.C. § 1367(c).
This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).
IT IS ORDERED that no later than March 10, 2006 any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than ten days after being served with the objections. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).