United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and LR IB 1-4. Before the court is
defendants' partial motion to dismiss (ECF No. 32).
Plaintiff opposed (ECF No. 35), and defendants replied (ECF
No. 37). For the reasons stated below, the court recommends
that defendants' motion to dismiss (ECF No. 32) be
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Rhymes (“plaintiff”) is an inmate in the custody
of the Nevada Department of Corrections (“NDOC”),
and currently housed at Northern Nevada Correctional Center
(“NNCC”) in Carson City, Nevada. Pursuant to 42
U.S.C. § 1983, plaintiff brings a civil rights claim
against various NDOC and NNCC officials.
August 3, 2016, the District Court screened plaintiff's
first amended complaint and determined that he could proceed
with his Eighth Amendment deliberate indifference claim
against defendant Cynthia Sablinca. (ECF No. 6 at 10.)
Plaintiff's claim against defendants Romeo Aranas and
Warden Nash were dismissed with prejudice, as the Court found
that plaintiff failed to allege actual knowledge of the
alleged unconstitutional conduct by those defendants.
March 31, 2017, plaintiff filed a motion to amend his
complaint. (ECF No. 22.) Defendants did not oppose the
motion, and the court granted plaintiff leave to file a
second amended complaint (“SAC”). (ECF No. 25.)
The SAC names as defendants, Romeo Aranas, Greg Cox, D.W.
Neven, Cynthia Sablinca, and John/Jane Does 1-5, and brings
an Eighth Amendment deliberate indifference claim relating to
a denial or delay in providing plaintiff medication. (ECF No.
26.) On June 13, 2017, defendants Aranas and Cox filed a
partial motion to dismiss asserting that plaintiff failed to
allege personal participation by the defendants and that
defendants are entitled to qualified immunity. (ECF No. 32.)
This report and recommendation follows.
of a complaint for failure to state a claim upon which relief
may be granted is provided for in Federal Rule of Civil
Procedure 12(b)(6). The ruling is a question of law. N.
Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578,
580 (9th Cir. 1983). The court is to grant dismissal when the
complaint fails to “state a claim for relief that is
plausible on its face[, ]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007), or fails to
articulate a cognizable legal theory, Taylor v. Yee,
780 F.3d 928, 935 (9th Cir. 2015). When analyzing a motion
under Rule 12(b)(6), courts accept as true all well-pled
factual allegations, set aside legal conclusions, and verify
that the complaint states a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). While
detailed factual allegations are not necessary, the complaint
must offer more than “a formulaic recitation of the
elements of a cause of action, ” Twombly, 550
U.S. at 555, and include sufficient facts “to give fair
notice and to enable the opposing party to defend itself
effectively, ” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). In conducting the dismissal analysis,
the complaint is construed in a light most favorable to the
plaintiff. Chubb Custom Ins. Co. v. Space Sys./Loral
Inc., 710 F.3d 946, 956 (9th Cir. 2013). Moreover, the
court takes particular care when reviewing the pleadings of a
pro se party, for a more forgiving standard applies
to litigants not represented by counsel. Hebbe v.
Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).
Civil Rights Claims Under § 1983
U.S.C. § 1983 aims “to deter state actors from
using the badge of their authority to deprive individuals of
their federally guaranteed rights.” Anderson v.
Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (quoting
McDade v. West, 223 F.3d 1135, 1139 (9th Cir.
2000)). The statute “provides a federal cause of action
against any person who, acting under color of state law,
deprives another of his federal rights[, ]” Conn v.
Gabbert, 526 U.S. 286, 290 (1999), and therefore
“serves as the procedural device for enforcing
substantive provisions of the Constitution and federal
statutes, ” Crumpton v. Gates, 947 F.2d 1418,
1420 (9th Cir. 1991). Claims under § 1983 require a
plaintiff to allege (1) the violation of a
federally-protected right by (2) a person or official acting
under the color of state law. Warner, 451 F.3d at
1067. Further, to prevail on a § 1983 claim, the
plaintiff must establish each of the elements required to
prove an infringement of the underlying constitutional or
SAC, plaintiff alleges that defendants Aranas and Cox, failed
to adequately fund the medical departments of NDOC
facilities, thereby failing to ensure that plaintiff received
adequate medical care. (See ECF No. 26 at 6.)
Defendants contend that plaintiff's claim against
defendants Aranas and Cox must be dismissed because plaintiff
fails to allege personal participation. (ECF No. 32 at 3-4.)
The court agrees; plaintiff's assertions are insufficient
to state a claim.
officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of
respondeat superior.” Iqbal, 556 U.S.
at 676. However, an official acting in a supervisory capacity
may be liable if he or she was personally involved in a
constitutional deprivation, or there is a sufficient causal
connection between his or her wrongful conduct and the
deprivation. Henry A. v. Willden, 678 F.3d 991,
1004-05 (9th Cir. 2012) (citing Starr v. Baca, 652
F.3d 1202 (9th Cir. 2011)). Such wrongful conduct may include
“‘action or inaction in the training,
supervision, or control of his [or her] subordinates . . .
.'” Id. (quoting Watkins v. City of
Oakland, 145 F.3d 1087, 1083 (9th Cir. 1998)).
survive a 12(b)(6) motion to dismiss, a plaintiff must
provide more than “a formulaic recitation of the
elements of a cause of action. . . . Factual allegations must
be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if ...