Unpublished Disposition, 930 F.2d 27 (9th Cir. 1990)

MEMORANDUM^** 

Michael Gene David appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b) (6). We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). We affirm.

In our de novo review, all allegations of material fact are taken as true and construed in a light most favorable to the plaintiff. Id. In civil rights cases where the petitioner is pro se, the court has an obligation to construe the pleadings liberally and to afford the petitioner any benefit of the doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985). In reviewing a decision of the district court, the court of appeals may affirm on any ground finding support in the record. Tanner, 879 F.2d at 576.

David contends the district court erred in: (1) denying his claim that the prison did not follow the Arizona Administrative Procedures Act in implementing policies on visitation and telephones; (2) dismissing David's respondeat superior claims of improper searches; (3) failing to review and correct the prison personal property policy; (4) holding David lacked standing to complain about the prison's shaving policy, that the complaint did not rise to the level of a constitutional violation and, in any event, could not be asserted against the director and assistant director of the Arizona Department of Corrections (ADOC) because the theory of respondeat superior does not apply in Section 1983 actions; and (5) holding that David did not meet the case or controversy requirement of article III of the Constitution in his claim of due process rights violations by the prison's method of drug testing and application of penalties for drug use.

David's contention that the district court erred in dismissing his claim that prison rules regarding telephone calls and visitation were not implemented in compliance with the Arizona Administrative Procedures Act is meritless. The district court considered and addressed this issue in its Memorandum Opinion and Order, filed June 28, 1990. We affirm based on the analysis set forth in the district court's well-reasoned order.

David's claims of constitutional violations concerning strip-searching and pat-searching must fail, since it appears he is trying to hold the director and assistant director of ADOC responsible for these incidents on a theory of respondeat superior. The district court correctly dismissed these claims. The theory of respondeat superior does not apply in Section 1983 actions. Monell v. Dept. of Social Services of the City of N.Y., 436 U.S. 658, 691 (1978). Cf. McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986) (anyone who "causes" any citizen to be subject to a constitutional deprivation is liable under Section 1983).

David's equal protection claims concerning uneven enforcement of prison grooming, personal property and drug-testing policies must fail. The director and assistant director of ADOC cannot be held responsible on the basis of respondeat superior for unequal treatment of prisoners by subordinates. Monell, 436 U.S. at 691. The district court correctly dismissed these claims, and properly refused to "review" ADOC's personal property policy.

The district court correctly dismissed David's complaint about the shaving policy. We affirm based on the district court's analysis, but in so doing we do not intend to indicate that forced shaving could never cause sufficient medical problems to rise to the level of an eighth amendment violation. See District Court Memorandum Opinion and Order, Clerk's Record at 35, pages 6-7.

David's claim regarding the prison's drug-testing policy must also be dismissed. David lost 120 days of good time credits after his urine tested positive for drugs. David complains that the testing machine ADOC uses is not 100% accurate, that guards should not be allowed to run the drug testing machines, and that accurate false-positive procedures are not used. However, David pleaded guilty at his disciplinary hearing on the positive test results. See Clerk's Record at 24, Exhibit A. Consequently, David cannot meet the case or controversy requirement of article III of the Constitution. O'Shea v. Littleton, 414 U.S. 488, 496-98 (1974).

We have construed David's Section 1983 complaint requesting declaratory and injunctive relief liberally and alternatively. His allegations fail to state a claim upon which relief can be granted against the director and assistant director of ADOC.

AFFIRMED.