Judgment of Lawsuit Filed Against the FDA
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT
COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA
SAN JOSE DIVISION
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Paul W. Mason,
Plaintiff,
vs.
Donna Shalala, et al.,
Defendants
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|Case No.: No.
C-97-20686
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|ORDER1 GRANTING MOTION TO
|DISMISS AND PARTIAL SUMMARY
|JUDGMENT
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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.
I. DISCUSSION
Legal Standards
"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).
The allegations
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.
DATED: 5-10-98
(signed)
JEREMY FOGEL
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
http://www.mgwater.com/
Healthy Water
Association--USA