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 Plaintiff’s initial complaint named several defendants, 1

including Ms. Shewry. Plaintiff’s amended complaint named only one

defendant, the California Department of Health Services. Plaintiff 

is now proceeding on his second amended complaint in which Ms. Shewry

is the only named defendant and is sued in her official capacity as

Director of California Department of Health Services. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

STEVE L. THOMAS, No. CIV.S-04-1764 DFL DAD PS

Plaintiff,

v. FINDINGS AND RECOMMENDATIONS

SANDRA SHEWRY, et al.,1

Defendants.

__________________________/

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

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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). 

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 Because plaintiff’s most recent application has been denied on 2

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.

3

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 2

Supp. in Supp. of Opp’n to Mot. to Dismiss filed December 12, 2005.)

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

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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).

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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 of

respondeat 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) (citing Ybarra 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

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 In the second amended complaint plaintiff repeatedly refers to 3

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.

6

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. 

3

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

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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

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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).

DATED: February 14, 2006.

DAD:th

ddad1\orders.prose\thomas1764.mtd.f&r

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