and Rundle. At the outset because Brierley's motion is unopposed and because plaintiff has indicated his willingness to dismiss the case against him, I will grant Brierley's motion to dismiss both the civil rights cause of action and the pendent state claim. As for defendant Rundle, the allegations in plaintiff's Complaint closely resemble those against Superintendent Hendricks, whose Motion for Summary Judgment was granted by an earlier Order. There, I found the allegations, as well as plaintiff's affidavit, to be "patently insufficient" on the issue of the defendant's personal involvement because they were vaguely set forth in broad and conclusory fashion. The same inadequacies are found with regard to Rundle. Thus, the conclusions reached in my prior decision apply with equal force here. I agree with the defendants' statement that: "The only differences separating the three prison superintendents were times and location of plaintiff's incarceration." (Defendant Rundle's Brief in Opposition, p.4).
Plaintiff argues, however, that Rundle may be found to be personally involved because he approved plaintiff's medical transfer to SCIP. That is, plaintiff contends that because Rundle approved plaintiff's medical transfer, when he allegedly knew or should have known that the facilities at SCIP were inadequate to treat plaintiff's medical condition, this "represents 'a direct causal link' between 'the official conduct of a defendant' and the alleged constitutional deprivation," which results in an Eighth Amendment violation. In support of this argument, plaintiff cites Fialkowski v. Shapp, supra at 950 and Downs v. Dept. of Public Welfare, supra.
Assuming arguendo that these factual contentions are true, the plaintiff has nevertheless failed to set forth a constitutional cause of action against Rundle. As was stated earlier, personal involvement of governmental officials may be founded on actual commission of specific wrongful acts, the direct ordering of subordinates to do wrongful acts, or by having actual knowledge of the commission of such acts and acquiescing therein. It is clear from the following cases that this rule envisions either a degree of wantonness or an element of scienter on the part of the superior. "The act or omission by the official must either be intentionally injurious, reckless, callous, grossly negligent, shocking to the conscience, unconscionable, intolerable to fundamental fairness, or barbarous." Roach v. Kligman, supra at 525, citing Rochin v. California, 342 U.S. 165, 172, 96 L. Ed. 183, 72 S. Ct. 205 (1952). "When a claim against prison official is based on improper medical treatment, it must depict conduct that is so cruel and unusual as to present a colorable Eighth Amendment claim." Roach at 525, citing Gittlemacker, supra. The Supreme Court has recently reaffirmed this standard, stating that acts ". . . repugnant to the Eighth Amendment [are those] punishments which are incompatible with the 'evolving standards of decency that mark the progress of a maturing society' (citations omitted) or which involve the unnecessary and wanton infliction of pain . . .'" (citations omitted). Estelle v. Gamble, supra at 4025. Clearly, plaintiff has not asserted any contentions regarding Rundle which rise to this level. He has merely stated that Rundle ". . . approved, condoned and ratified the willful and knowing refusal of essential medical services to the plaintiff . . ." solely by reason of his superior official position in regard to the prison medical staff. Pl. Complaint, para. 53. It is clear that Rundle's only connection with plaintiff's claim was the approval of the recommendation that a transfer be made to SCIP for medical reasons. It may be true that if the defendant was under an affirmative duty to investigate the findings of his prison doctors even though he himself had no medical background, his failure to do so may give rise to a colorable Eighth Amendment claim. However, I find no support for this proposition either in the law or in the record of this case. On the contrary, a prison superintendent, absent special circumstances, is or should be entitled to rely on the findings and recommendations of his medical experts. Administratively, the record shows that Rundle's approval of the medical transfer of the plaintiff was merely a pro forma action. Rundle's deposition establishes that it is the prison Medical Director who makes recommendations for medical transfers, which are then forwarded by the Superintendent to the Deputy Commissioner of Corrections. The Deputy Commissioner, along with the Director of Treatment, then makes the final determination not only as to the propriety of a medical transfer to another SCI, but also as to which SCI in particular is acceptable in terms of the availability of prescribed treatment. (See Deposition of Rundle, pp. 14-23). Thus, Rundle had no discretionary responsibility in the transfer of the plaintiff to SCIP, and should not be liable for that decision. I will therefore grant Rundle's Motion for Summary Judgment on these grounds and consequently find it unnecessary to decide Rundle's defense of sovereign immunity.
Finally, I have concluded that because there is no independent basis of jurisdiction in the instant case, it would be imprudent in the absence of a federal claim against Rundle to hear the pendent state claim against him. The case of United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) supports this conclusion: "Certainly, if the federal claims are dismissed before trial . . . the state claims should be dismissed as well." Gibbs at 726. Nor can the plaintiff try a pendent claim against a defendant who is not subject to liability under federal law merely because other defendants in the case must defend against a federal claim. Aldinger v. Howard, 513 F.2d 1257 (9th Cir. 1975), aff'd 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976). Also see Rundle v. Madigan, 331 F. Supp. 492 (N.D. Cal. 1971), aff'd sub nom. Moor v. Madigan, 458 F.2d 1217 (9th Cir. 1972), aff'd sub nom., Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973). Consequently, I will exercise my discretion to grant Rundle's Motion as to plaintiff's pendent state claim and need not determine his defense of immunity thereunder.
JOHN MORGAN DAVIS, /.J.
AND NOW, to wit this 18th day of April, 1977 upon consideration of the defendants' Motions to Dismiss or in the alternative for Summary Judgment:
IT IS HEREBY ORDERED, that
The motions for Summary Judgment of Defendants Brierley and Rundle are GRANTED and judgment entered in their favor and against the Plaintiff.
IT IS FURTHER ORDERED, that
The Motions to Dismiss or in the alternative for Summary Judgment of Defendants Doctors Tucker and Hamburg are DENIED.
BY THE COURT:
JOHN MORGAN DAVIS, /. J.