Unpublished Disposition, 848 F.2d 198 (9th Cir. 1985)
Annotate this CaseDavid K. DAVIS, Plaintiff-Appellant,v.Mike NELSON, U.S. Marshal; U.S. Attorney Moffett; RalphCurtis, Secret Service Agent; Sheriff of Kings County;Kings County Board of Supervisors; King County Jail Staff;U.S. Attorney Abrams, Defendants-Appellees.
No. 87-2705.
United States Court of Appeals, Ninth Circuit.
Submitted May 9, 1988.* Decided May 18, 1988.
Before SKOPIL, PREGERSON and BEEZER, Circuit Judges.
MEMORANDUM**
David K. Davis, a pro per prisoner, appeals the dismissal of his 42 U.S.C. § 1983 action against several federal and county defendants in connection with his temporary incarceration at the Kings County Jail. Because Davis fails to state a claim upon which relief may be granted, we affirm.
FACTS
Davis is a prisoner of the State of California as the result of his conviction on state criminal charges. Davis was temporarily housed as a federal prisoner at the Fresno County Jail pending disposition of federal criminal charges against him before the U.S. District Court in Fresno. On November 13, 1985, Davis became "available for transfer" back to state prison as the result of the disposition of his federal charges pursuant to a plea agreement. To help alleviate overcrowding, Davis was temporarily transferred to Kings County Jail on November 22, 1985. Davis was incarcerated at Kings County Jail for ten days until he was returned to the California Correctional Facility at Soledad.
Davis filed a complaint under 42 U.S.C. § 1983 alleging violations of his civil rights in connection with his temporary incarceration at the Kings County Jail. The complaint was filed against U.S. Marshal Mike Nelson, U.S. Attorneys Moffatt and Abrams, Secret Service Agent Curtis (collectively, federal defendants), County of Kings, Kings County Sheriff Tom Clark, Kings County Board of Supervisors, Kings County Jail Staff (collectively, county defendants), and Does 1 through 100. Davis also requested that the district court certify his complaint as a class action pursuant to Fed. R. Civ. P. 23. His complaint demanded declaratory relief, injunctive relief, and twenty million dollars in damages.
Federal defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted and to deny class certification. County defendants moved for judgment on the pleadings and to deny class certification. The district court granted all defendants' motions and entered judgment dismissing the action. Davis timely appeals.1
ANALYSIS
We review dismissals for failure to state a claim de novo. West v. Greyhound Corp., 813 F.2d 951, 953 (9th Cir. 1987); Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). Judgments on the pleadings under Fed. R. Civ. P. 12(c) are likewise reviewed de novo. Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985). In civil rights cases where a petitioner is pro se, we have an obligation to construe the pleadings liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Nonetheless, we must dismiss for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief. Id.
Davis alleges that U.S. Marshal Nelson wrongfully transferred him from Fresno County Jail to the Kings County Jail because the latter jail is "outlaw [sic], illegal, and unconstitutional." Davis further maintains that Nelson conspired with defendants Moffatt, Abrams, and Curtis to have him transferred to Kings County Jail.2
Davis fails to allege a wrongful act for which legal relief may be granted under section 1983. In temporarily transferring Davis to Kings County Jail, Nelson acted within his capacity as the supervising Deputy U.S. Marshal. His official duties require him to decide when, where, and how to house federal prisoners. Nelson's performance of his duty violates no constitutionally protected right of Davis. The mere act of transfer without more cannot be the basis for section 1983 relief. We note that Davis was moved in part to alleviate overcrowding at Fresno County Jail. Because the Sheriff of Fresno County was subject to a court order requiring him to reduce the prisoner population at the Fresno County Jail, Nelson was requested to remove as many federal prisoners as possible. Moreover, Nelson was specifically authorized to transfer prisoners "from one local contract jail or Federal institution to another to alleviate overcrowded conditions." United States Marshal Service Manual, Sec. 8.1-1(c) (6), at 8-16 (1987). Davis simply had no constitutionally protected interest in remaining at Fresno County Jail. Accordingly, his complaint against defendant Nelson alleging wrongful transfer was properly dismissed.
Supreme Court precedent supports our conclusion that Davis' transfer did not violate any protected constitutional interest. See Meachum v. Fano, 427 U.S. 215, 225-29 (1976). The Supreme Court has reasoned:
Whatever expectation the prisoner may have in remaining at a particular prison ... is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all.
Id. at 228. Absent state law to the contrary, Davis has no justifiable expectation that he would be incarcerated in any particular prison. See Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); see also Meachum, 427 U.S. at 225-29; Montanye v. Haymes, 427 U.S. 236, 242-44; Rizzo v. Dawson, 778 F.2d 527, 530-31 (9th Cir. 1985).
As to the alleged conspiracy, Davis fails to allege specific facts indicating the existence of a conspiracy attempting to violate his civil rights. Although we construe his complaint liberally, Davis still bears the burden of alleging facts sufficient to enable us to conclude that his complaint states a claim upon which relief may be granted. See Estelle, 429 U.S. at 106-07. Vague and conclusory allegations of a conspiracy are insufficient to withstand a motion to dismiss for failure to state a claim. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979); see also McCarthy v. Mayo, 827 F.2d 1310, 1316 (9th Cir. 1987). Because the facts alleged are insufficient to show that Nelson conspired with anyone to deprive Davis of his constitutional rights, we affirm the dismissal of the complaint against the alleged conspirators.3
B. Alleged Unconstitutional Conditions at Kings County Jail
In his complaint, Davis alleges that the county defendants are responsible for the constitutional operation of the Kings County Jail. In particular, he claims that the Sheriff of Kings County had a legal duty to insure that the jail operated in a lawful manner and that he breached that duty.4 Davis alleges no evidence that the named county defendants played a personal role in the alleged deprivation of his federally protected rights. Davis fails to allege any "affirmative" link between the county defendants and his alleged constitutional deprivations. See Rizzo v. Goode, 423 U.S. 362, 376-77 (1976); Rivera v. Green, 775 F.2d 1381, 1384 (9th Cir. 1985), cert. denied, 475 U.S. 1128 (1986). An essential element of a section 1983 action is that the defendant's conduct deprived plaintiff of a federally protected right. Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986). Absent such an allegation that the named county defendants were personally involved, Davis fails to state a claim under section 1983. See Boddie v. Coughlin, 583 F. Supp. 352, 356 (S.D.N.Y. 1984); Tunnel v. Office of Public Defender, 583 F. Supp. 762, 767 (E.D. Pa. 1984); Black v. Delbello, 575 F. Supp. 28, 30 (S.D.N.Y. 1983); Knipp v. Weikle, 405 F. Supp. 782, 783 (N.D. Ohio 1975).
Nor may the county defendants be held liable under section 1983 on the theory doctrine of respondeat superior. See Monell v. New York City Dep't of Social Services 436 U.S. 658, 691 (1978); Jones v. Johnson, 781 F.2d 769, 772 (9th Cir. 1986). In the absence of state law to the contrary, vicarious liability under respondeat superior may not be imposed on supervisory personnel or municipal officials when personal involvement is not alleged. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680 (9th Cir. 1984); Mosher, 589 F.2d at 441; Milton v. Nelson, 527 F.2d 1158, 1159 (9th Cir. 1976); Boettger v. Moore, 483 F.2d 86, 87 (9th Cir. 1973). Because Davis alleges no personal involvement on behalf of the County of Kings, the Sheriff, the Kings County Board of Supervisors, and the Kings County Jail staff his complaint was properly dismissed for failure to state a claim.5
The county defendants could be held liable under section 1983 for Davis' alleged mistreatment if it were the result of official policy or governmental custom. See Monell, 436 U.S. at 690-91; Jones, 781 F.2d at 769; Gibson v. United States, 781 F.2d 1334, 1337-38 (9th Cir. 1986), cert. denied, --- U.S. ---- (1987). Liberally construed, however, Davis' complaint fails to allege that official policy or governmental custom was directly responsible for the deprivation of his constitutional rights.6
The district court dismissed Davis' complaint for injunctive and declaratory relief on grounds of mootness. We review de novo a district court's determination that an action is moot. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985), cert. denied, 475 U.S. 1019 (1986). We have held that absent a reasonable expectation or demonstrated probability that a transferred prisoner will again return to the allegedly unconstitutional jail, his claim for injunctive relief is moot. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Accordingly, even if there are unconstitutional conditions existing at Kings County Jail, Davis' claim for equitable relief is moot because it is unlikely that he will ever again be transferred there and subject to the alleged unconstitutional conditions.
Davis was temporarily housed at Fresno County Jail pending disposition of his criminal case in federal court. He was transferred to Kings County Jail to alleviate overcrowding at Fresno County Jail and to await transportation back to state prison. After ten days, Davis was returned to the California Correctional Facility at Soledad. Davis' complaint contains conclusory allegations that he would continue to be subjected to constitutional deprivations unless the district court intervened by way of equitable relief. There is no allegation of a " 'reasonable expectation that the same complaining party would be subject to the same action again.' " Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)); see also Darring, 783 F.2d at 876. Because it is unlikely that Davis will ever again be incarcerated in Kings County and because he has pled no facts that might indicate that he will again be incarcerated there, Davis' claim for equitable relief is moot.
CONCLUSION
A fair and liberal reading of Davis' complaint indicates that he fails to state a claim upon which relief can be granted.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
In his brief, Davis does not contest the denial of class certification. Accordingly, we deem the issue abandoned and will not consider it. Kates v. Crocker Nat'l Bank, 776 F.2d 1396, 1397 n. 1 (9th Cir. 1985); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985); Dower v. United Airlines, Inc., 329 F.2d 684, 685 (9th Cir. 1964)
We note that Davis' complaint does not maintain that any of the county defendants were involved in the alleged conspiracy
We note that to the extent that defendants Nelson, Moffatt, Abrams, and Curtis are performing discretionary functions they are generally "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
Davis lists twenty-six deprivations that he suffered during his ten-day incarceration. Among them are: No hair brush with which to care for long hair, no light between 11:00 pm and 6:00 am, no playing cards or other items to break boredom, no contact with humans, no radio, no television, no social interaction with others, no daily shower, no cleaning supplies to clean cell and toilet, no adequate bedding, no access to religious services, no proper ventilation, heating or cooling, and no viable exercise and/or recreation
The complaint against Marshal Nelson and U.S. Attorneys Moffatt and Abrams was also properly dismissed because they were not alleged to be involved in the treatment of Davis at Kings County Jail
We note that Davis' complaint is also deficient in other respects. Davis alleges that Kings County Jail was "overcrowded, believed to be 150% to 200% or more of its capacity." However, Davis never alleges how these conditions amount to cruel and unusual punishment as to him. During his incarceration at Kings County Jail, Davis was housed in an isolation cell. Even if, arguendo, the jail was improperly overcrowded, Davis fails to allege specifically how this condition personally violated his civil rights. We have explicitly reasoned that "an allegation of overcrowding without more does not state a claim under the eighth amendment." Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987), cert. denied, --- U.S. ---- (1988)
Davis further alleges that he had no access to a doctor or medical treatment for his scalp condition (dandruff), smoke allergy, and back injury. The Supreme Court has held that only "deliberate indifference to a prisoner's serious illness or injury states a cause of action under Sec. 1983." Estelle, 429 U.S. at 105. Davis does not allege that he was seriously ill or in immediate need of medical attention, that he requested medical attention, and that defendants were deliberately indifferent to his serious illness. Accordingly, he fails to state a claim under section 1983. As alleged, the facts are insufficient to demonstrate "an unnecessary and wanton infliction of pain" or any action by defendants that is "repugnant to the conscience of mankind." Id. at 104-06. Moreover, the Supreme Court has made clear that not every claim by a prisoner that he has not received adequate medical treatment states a violation of the eighth amendment. Id. at 105.
Davis also alleges that he had no access to a law library or meaningful access to the courts during his ten-day incarceration at Kings County Jail. The Supreme Court has reasoned that "it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed." Johnson v. Avery, 393 U.S. 483, 485 (1969). However, any deprivation from legal materials that Davis may have experienced while he was in isolation at Kings County did not amount to a permanent denial or obstruction of access to the courts.
Davis further alleges that he was deprived of a "religious diet." However, Davis never alleges that he requested a particular type of diet while temporarily incarcerated at Kings County Jail, nor does he set forth what his "religious diet" consists of, or what religion requires him to have a particular sort of diet.
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