NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
Donna Shalala, et al.,
Before the Court is defendants' motion to dismiss or, in the alternative, for summary judgment, and a number of motions filed by plaintiff in relation thereto. For the following reasons, defendants, motion will be granted and plaintiff's motions will be denied.
"A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984); see also Argabright v. United States, 35 F.3d 472, 474 (9th Cir. 1994). For purposes of a motion to dismiss2, the plaintiff's allegations are taken as true, and the Court must construe the complaint in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848 (1969); Argabright at 474. The pleading of a pro se litigant is hold to a less stringent standard than a pleading drafted by an attorney, and is to be afforded the benefit of any doubt. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972); Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9th Cir. 1988). Further, a pro se litigant must be given leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment. See Lucas v. Department of Corrections, 66 F.3d 245, 248 (9th Cir. 1995).
With the above standards in mind, the central factual allegation of the complaint can be summarized as follows:
1. There is persuasive scientific evidence that a significant portion of the American population does not consume adequate amounts of magnesium on a daily basis.
2. There is persuasive scientific evidence that magnesium deficiencies contribute to cardiovascular disease.
3. There is persuasive scientific evidence that up to 150,000 deaths per year would not occur but for dietary magnesium deficiencies.
4. Historically, typical water sources contained relatively high quantities of magnesium; many sources of water now, including most bottled water, have been "purified" and, as a result, contain significantly less magnesium.3
5. Plaintiff owns a natural mineral spring and sells magnesium-rich spring water in bulk to the beverage industry. Plaintiff's sales have been "minimal" and plaintiff has experienced an operating loss.
Taking plaintiff's allegations as true, as the Court must and has in connection with this motion, there is an annual avoidable loss of human life in numbers which, over time, would exceed the loss of life incurred in the Holocaust. Nevertheless, plaintiff's characterization of this situation as similar to the Holocaust or as "genocide" is inappropriate and not supported by the facts alleged. There is nothing in the allegations, even when liberally construed, which suggests that anyone, much less defendants, has engaged in a deliberate attempt to injure or kill. To the contrary, the allegations of the complaint suggest that many, if not all, of the factors which have led to reduced magnesium levels relate to decisions made by people who most likely had no knowledge of any possible adverse impacts on health.
Plaintiff's allegations, if proved, call out for a public awareness campaign, and possibly legislative action, designed to increase the magnesium intake in the average American diet. Even if Americans are dying as the direct result of magnesium deficiencies, though, there is virtually nothing in the allegations of the complaint which, if proved, would support a finding that defendants caused any such deficiencies. To the contrary, the complaint, read as a whole, suggests that a variety of factors led to decreased magnesium levels in water and other sources and that at most defendants acquiesced in that progression.
The complaint does contain a conclusory allegation that defendants acted in concert with other federal agencies, state hendants' motion is granted. Summary judgment in defendants' favor is granted on the fifth claim for relief. The remaining claims are dismissed for failure to state a claim. Plaintiff's motions are denied. This action is hereby dismissed.
United States District Judge
1 This disposition is not appropriate for publication and may not be cited.
2 Technically, the Court is to treat defendants, motion as one for judgment on the pleadings, since they previously filed an answer. see Aldabe v. Aldabe, 616 F. 2d 1089, 1093 (9th Cir. 1980). The standards are the same.
3 Plaintiff also suggests that bread and other food items historically contained higher magnesium levels than is common today. Plaintiff does not appear to seek any relief directly relating to anything other than water.
4 It appears defendants intend to continue studying the matter; they have not refused to consider the issue at all nor have they reached a final determination that nothing need be done.
5 The Court does not suggest that issues of public policy are irrelevant to judicial decision making.
6 The Court does not reach defendants, arguments that plaintiff lacks standing or that plaintiff failed to exhaust administrative remedies.
This page was first uploaded to The Magnesium Web Site on May 12, 1999