Elliott v. Nuebarth, et al.

Filing 18

ORDER signed by Magistrate Judge Barbara A. McAuliffe on 6/13/2012 dismissing certain claims re 17 First Amended Prisoner Civil Rights Complaint filed by William Elliott. (Lundstrom, T)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

WILLIAM ELLIOTT,

10

Plaintiff,

11
12

CASE NO. 1:11-cv–00294-BAM PC
ORDER DISMISSING CERTAIN CLAIMS

v.

(ECF No. 17)

NEYBARTH, et al.,

13

Defendants.
/

14
15

I.

Screening Requirement

16

Plaintiff William Elliott is a state prisoner proceeding pro se and in forma pauperis in this

17

civil rights action pursuant to 42 U.S.C. § 1983. On March 7, 2012, Plaintiff’s complaint was

18

dismissed, with leave to amend for failure to state a claim. (ECF No. 9.) Currently before the Court

19

is the first amended complaint, filed June 5, 2012. (ECF No. 17.)

20

The Court is required to screen complaints brought by prisoners seeking relief against a

21

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

22

Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

23

“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

24

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

25

A complaint must contain “a short and plain statement of the claim showing that the pleader

26

is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

27

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

28

do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell
1

1

Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).

2

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

3

liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

4

higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive

5

screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to

6

allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,

7

Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.

8

2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that

9

are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard.

10

Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

11

Further, under section 1983, Plaintiff must demonstrate that each defendant personally

12

participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

13

Although a court must accept as true all factual allegations contained in a complaint, a court need

14

not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.

15

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

16

do not suffice.” Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).

17

II.

First Amended Complaint Allegations

18

Plaintiff is in the custody of the California Department of Corrections and Rehabilitations

19

and is incarcerated at the Substance Abuse Treatment Facility. On October 3, 2010, Plaintiff was

20

placed in a mental health crisis bed at the Correctional Treatment Center (“CTC”) on suicide watch.

21

After two days, Defendant Wou removed Plaintiff from suicide watch and issued an order that

22

Plaintiff have a wheelchair in his cell. (First Amended Compl. 3,1 ECF No. 4.) Defendant Neubarth

23

rescinded the order and Plaintiff remained in the cell, without a wheelchair, from October 5 through

24

12, 2010, while Defendant Wou was attempting to obtain a Keyhea order to involuntary medicate

25

Plaintiff. (Id. at 3-4.) The Keyhea order was denied. (Id. at 4.)

26

Plaintiff informed Defendants Neubarth and Wou that he was in severe and chronic pain and

27
1

28

All references to pagination of specific documents pertain to those as indicated on the upper right corners
via the CM/ECF electronic court docketing system.

2

1

repeatedly was injuring himself when he had to use the toilet without assistance. Plaintiff also

2

informed Defendants Neubarth and Wou that on two occasions he had been unable to make it to the

3

toilet in his cell. On these occasions, he was forced to defecate in his boxers and lay in his feces for

4

several hours before he could crawl to the toilet to clean himself, and staff refused to help him clean

5

himself. (Id.)

6

In response to Plaintiff’s inmate appeals, prison staff claimed that Plaintiff had access to a

7

cane and a wheelchair while out of his cell, but he was refused either. Defendant Neubarth rescinded

8

Plaintiff’s wheelchair and Defendant Wou refused to provide a wheelchair as punishment for

9

Plaintiff having been placed on suicide watch. (Id.) Plaintiff states that he is an individual with a

10

disability. Plaintiff argues that once he was cleared from suicide watch there was no legitimate

11

reason to deny Plaintiff his wheelchair and he should have been transferred back to Facility E

12

housing or provided with a wheelchair, and the denial of his wheelchair was discrimination by reason

13

of his disability and an excuse to seek a Keyhea order. (Id. at 5.)

14

III.

Discussion

15

B.

16

The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment

17

forbidden by the Eighth Amendment. Hope v. Pelzer, 536 U.S. 730, 737, 122 S. Ct. 2508 (2002)

18

(citing Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078 (1986)) (quotation marks omitted).

19

While conditions of confinement may be, and often are, restrictive and harsh, they must not involve

20

the wanton and unnecessary infliction of pain. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

21

2006) (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Among unnecessary and wanton

22

inflictions of pain are those that are totally without penological justification. Hope, 536 U.S. at 737

23

(citing Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392 (1981)) (quotation marks omitted).

24

Punitive treatment which amounts to gratuitous infliction of wanton and unnecessary pain is

25

prohibited by the Eighth Amendment. Hope, 536 U.S. at 738 (quotation marks omitted).

Eighth Amendment

26

Further, although the pleading standard is now higher, the Ninth Circuit has continued to

27

emphasize that prisoners proceeding pro se in civil rights actions are still entitled to have their

28

pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, __
3

1

F.3d __, __, No. 11-16335, 2012 WL 1889786, at *5 (9th Cir. May 25, 2012); Watison v. Carter, 668

2

F.3d 1108, 1112 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations

3

omitted).

4

Plaintiff alleges that Defendant Wou ordered that a wheelchair be provided to him in his cell,

5

but the order was rescinded by Defendant Neubarth. While Plaintiff fails to specify why he has a

6

need for a wheelchair, the fact that Plaintiff had been authorized a wheelchair leads to the inference

7

that a serious need existed. Plaintiff claims that the failure to return his wheelchair caused him to

8

suffer pain, falls while trying to reach the toilet, and to defecate on himself and be forced to remain

9

laying in his feces for several hours. Plaintiff alleges that he informed both Defendant Neubarth and

10

Wou of the conditions that he was being subjected to, and they refused to return his wheelchair. That

11

is enough to support an Eighth Amendment claim against Defendants Neubarth and Wou at the

12

pleading stage.

13

C.

14

However, Plaintiff’s allegations fail to state a cognizable claim for violation of the Americans

15

With Disabilities Act. Title II of the ADA prohibits discrimination on the basis of disability.”

16

Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides that “no qualified

17

individual with a disability shall, by reason of such disability, be excluded from participation in or

18

be denied the benefits of the services, programs, or activities of a public entity, or be subject to

19

discrimination by such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to inmates within

20

state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 118 S. Ct. 1952, 1955 (1998); see also

21

Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010).

Americans With Disabilities Act

22

Title II of the ADA prohibits discrimination in programs “of a public entity” or

23

“discrimination by any such entity.” 42 U.S.C. § 12132. A public entity is defined, in relevant part

24

as “any State or local government; [and] any department agency. . . of a State or States or local

25

government. . . .” 42 U.S.C. §12131(1)(a)(b). A public entity as defined in the statute does not

26

include individuals. Shebby v. Adams, No. 1:03-cv-06487-LJO-NEW (DLB), 2007 WL 2505569,

27

* 2 (E.D.Cal. Aug. 31, 2007) (citations omitted). As Plaintiff was previously informed, individual

28

liability is precluded under the ADA. Shaughnessy v. Hawaii, No. 09-00569 JMS/BMK, 2010 WL
4

1

2573355, at *8 (D.Hawai’i Jun. 24, 2010); Anaya v. Campbell, No. CIV S-07-0029 GEB GGH P,

2

2009 WL 3763798, at *5-6 (E.D.Cal. Nov. 9, 2009); Roundtree v. Adams, No. 1:01-CV-06502

3

OWW LJO, 2005 WL 3284405, at *5 (E.D.Cal. Dec. 1, 2005).

4

Plaintiff fails to allege facts to show that an entity discriminated against him based upon his

5

disability. Nor are Plaintiff’s allegations sufficient to state an official capacity claim against the

6

named defendants. Accordingly, Plaintiff fails to state a cognizable claim for a violation of the

7

ADA.

8

IV.

Conclusion and Order

9

Plaintiff’s first amended complaint states a cognizable claim against Defendants Neubarth

10

and Wou for deliberate indifference to conditions of confinement in violation of the Eighth

11

Amendment, however, Plaintiff allegations fail to state any additional claims under section 1983.

12

Plaintiff was previously notified of the deficiencies in his claims and provided with the opportunity

13

to amend, but was unable to cure the deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.

14

1987). Accordingly, it is HEREBY ORDERED that:

15

1.

This action shall proceed on Plaintiff’s first amended complaint, filed June 5, 2012,

16

against Defendants Neubarth and Wou for deliberate indifference to conditions of

17

confinement in violation of the Eighth Amendment; and

18

2.

19
20
21

Plaintiff’s Americans with Disabilities Act claims are dismissed, with prejudice, for
failure to state a claim.

IT IS SO ORDERED.
Dated:
10c20k

June 13, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
5