Unpublished Disposition, 934 F.2d 325 (9th Cir. 1986)

MEMORANDUM^** 

Abraham T. Yang, a former California state prisoner, appeals pro se the district court's denial of his Fed. R. Civ. P. 60(b) motion to vacate the judgment in his 42 U.S.C. § 1983 action. We review for an abuse of discretion, Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989), and we affirm.

On August 10, 1985, Yang was transferred involuntarily from a California State prison to Atascadero State Hospital ("Atascadero") for psychiatric treatment. Yang filed this section 1983 action while still a patient at Atascadero. In his complaint, Yang alleged that hospital officials deprived him of adequate medical treatment, denied him access to the courts, and subjected him to cruel and unusual punishment. Yang sought declaratory and injunctive relief against John Taylor, the hospital Program Director, and Abe Zavala, the supervisor of Ward 23. Yang sought injunctive relief and monetary damages against Sidney F. Herndon, the Executive Director of Atascadero State Hospital, and Leon O. Janis, Yang's treating psychiatrist. Yang was returned to state prison on February 10, 1986.

* Yang contends that the district court erred in dismissing the equitable claims as moot. This contention lacks merit.

An action is moot if the issues are no longer live or the parties lack a legally cognizable interest in the outcome. Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir. 1989). This court cannot take jurisdiction over claims for which no effective relief can be granted. Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir. 1986). "Where the question sought to be adjudicated has been mooted by developments subsequent to the filing of the complaint, no justiciable controversy is presented." Id.

Here, Yang sought declaratory and injunctive relief in connection with the medical treatment he received at Atascadero, the conditions at Atascadero and the alleged denial of access to the courts.¹  Prior to the adjudication of these issues, however, Yang was returned to the state prison. Accordingly, because the district court cannot grant effective relief, the equitable claims against the defendants are moot. See Aguirre, 801 F.2d at 1189.

Yang argues that the alleged misconduct could recur and therefore, his equitable claims against the defendants are not moot. This argument lacks merit.

The Supreme Court has established an exception to the general principles of mootness for cases in which the challenged conduct is "capable of repetition, yet evading review." Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911). This exception to the mootness doctrine is "limited to extraordinary cases where two elements combine: (1) the challenged action is of limited duration, too short to be fully litigated prior to its cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again." Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985).

Here, Yang fails to meet both prongs of the test. First, Yang's claims will not evade review because other inmates confined at Atascadero may bring suits challenging the adequacy of medical treatment and the conditions of confinement. Second, because there is no evidence that Yang will ever again be confined at Atascadero under the same conditions, it is unlikely that the challenged actions will recur. Accordingly, the district court properly dismissed the equitable claims as moot.

II

Yang also contends that Dr. Janis, his treating physician, deprived him of adequate medical care by prescribing too much medication. This contention lacks merit.

"In order to state a cognizable [civil rights] claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106. The indifference to medical needs must be substantial; inadequate treatment due to negligence or inadvertence, or differences in judgment between an inmate and medical personnel does not constitute cruel and unusual punishment. Estelle, 429 U.S. at 106; Shields v. Kunkel, 442 F.2d 409, 410 (9th Cir. 1971).

Here, Yang was prescribed the medicine Navane to treat symptoms of paranoid schizophrenia. There is also evidence that as Yang's symptoms improved with medication, Dr. Janis gradually reduced the dosage. Thus, Yang's allegations amount only to a difference of opinion as to the proper treatment of his medical needs and fail to state a constitutional violation. See Estelle, 429 U.S. at 106; Shields, 442 F.2d at 410. Accordingly, the district court did not err in dismissing the claim for monetary damages against Janis.² 

Yang also argues that Herndon, the Executive Director of Atascadero, deprived him of adequate medical treatment by overmedicating him. This argument lacks merit.

There is no respondeat superior liability under section 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor will be found liable only if he "participated in or directed the [constitutional] violations, or knew of the violations and failed to act to prevent them." Id.

Here, Herndon never met Yang and was not involved in Yang's treatment. Accordingly, the district court properly dismissed the claim for civil damages against Herndon.

Yang also contends that the district court's judgment should be reversed and vacated because the defendants failed to file an answer to his complaint within 20 days, as required by Fed. R. Civ. P. 12(a). This contention lacks merit.

The evidence indicates that Yang failed to comply with the requirements of Fed. R. Civ. P. 4(c) (2) (ii). As a result, the defendants did not receive proper notice of action until March 5, 1986. Accordingly, the district court properly dismissed this claim.

AFFIRMED.