Daniels v. Allison et al

Filing 26

FINDINGS and RECOMMENDATIONS Recommending that this 25 Action be Dismissed for Failure to State a Claim signed by Magistrate Judge Gary S. Austin on 09/19/2013. Referred to Judge O'Neill; Objections to F&R due by 10/22/2013.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN GERALD DANIELS,

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Plaintiff,

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vs.
KATHERINE ALLISON, et al.,

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Defendants.

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I.

1:12-cv-00545-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION BE
DISMISSED FOR FAILURE TO STATE A
CLAIM
(Doc. 25.)
OBJECTIONS, IF
THIRTY DAYS

ANY,

DUE

WITHIN

BACKGROUND

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Norman Gerald Daniels (APlaintiff@) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. ' 1983 and the Americans With Disabilities Act (ADA), 42

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U.S.C. § 12132. Plaintiff filed the Complaint commencing this action on April 9, 2012. (Doc.

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1.) On September 17, 2012, the court dismissed the Complaint for failure to state a claim, with

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leave to amend. (Doc. 18.) On January 10, 2013, Plaintiff filed the First Amended Complaint,

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which is now before the court for screening. (Doc. 25.)

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II.

SCREENING REQUIREMENT

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

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

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or
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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility

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(SATF) in Corcoran, California, where the events at issue allegedly occurred. Plaintiff names

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as defendants Kathleen Allison (Warden), C. Hammond (Appeals Examiner), V. Rowell

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(Senior Librarian), Fauch (Correctional Counselor II), and a Doe Defendant (CDCR Associate

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Information Systems Analyst). Plaintiff’s factual allegations follow.

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Plaintiff alleges that the computers in the prison law library have not been modified or

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updated to make them more accessible to ADA inmates. Beginning in June 2010, Plaintiff

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filed three requests on ADA form 1824, making suggestions for modifications.

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The CDCR’s Associate Information Systems Analyst (AISA) refused to hear the first

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request. Defendant Fauch granted the first request at the Second Level of review, causing

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Plaintiff to expect the institution to modify all of the computers to comply with ADA
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requirements, but the institution did not comply. At the Third Level of review, defendant C.

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Hammond sent back an inadequate response.

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Defendant V. Rowell, Senior Librarian, responded to Plaintiff’s second request, stating

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the institution’s policy and telling Plaintiff that if the modifications were made, Plaintiff would

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be receiving “access above and beyond” what the other inmates were receiving. (Doc. 25 at

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6:1-3.) Defendant Fauch responded at the Second Level of review but did not address the

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underlying theme of Plaintiff’s issues. Defendant C. Hammond responded at the Third Level

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of review, claiming that Plaintiff was already receiving effective access to the computers.

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Defendant Rowell interviewed Plaintiff about his third request and partially granted the

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request, but Plaintiff appealed the decision. Mr. Fouch’s response at the Second Level merely

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mimicked Rowell’s decision. At the Third Level of review, the Appeals Examiner merely

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mirrored the first and second level responses.

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On February 19, 2011, Plaintiff initiated correspondence with defendant Kathleen
Allison (Warden) about the accessibility issues but did not receive a response.

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Plaintiff requests monetary damages and injunctive relief.
IV.

PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the
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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which

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the actors knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Johnson at 743-44).

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A.

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Title II of the Americans with Disabilities Act (ADA) Aprohibit[s] discrimination on the

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basis of disability.@ Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides

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that Ano qualified individual with a disability shall, by reason of such disability, be excluded

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from participation in or be denied the benefits of the services, programs, or activities of a public

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entity, or be subject to discrimination by such entity.@ 42 U.S.C. ' 12132. Title II of the ADA

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applies to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 118 S.Ct.

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1952, 1955 (1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); Duffy

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v. Riveland, 98 F.3d 447, 453-56 (9th Cir. 1996). ATo establish a violation of Title II of the

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ADA, a plaintiff must show that (1) [he] is a qualified individual with a disability; (2) [he] was

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excluded from participation in or otherwise discriminated against with regard to a public

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entity=s services, programs, or activities; and (3) such exclusion or discrimination was by

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reason of [his] disability.@ Lovell, 303 F.3d at 1052.

ADA Claim

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Individual liability is precluded under Title II of the ADA. Therefore, any claim

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Plaintiff might intend to make under the ADA against any of the Defendants as individuals is

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not cognizable. Moreover, The Court finds Plaintiff=s allegations to be vague. Plaintiff refers

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to various ways the law library computers could be made more accessible, especially to

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visually impaired inmates, but he does not specifically allege facts indicting that he is a

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qualified individual with a disability, or what specific service, program or activity he has been
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improperly excluded from, and denied the benefits of, based upon that disability. Armstrong,

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124 F.3d at 1023. Thus, Plaintiff fails to state a claim under the ADA.

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B.

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The Fourteenth Amendment's Due Process Clause protects persons against deprivations

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of life, liberty, or property, and those who seek to invoke its procedural protection must

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establish that one of these interests is at stake. Wilkinson v. Austin 545 U.S. 209, 221, 125

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S.Ct. 2384, 2393 (2005). The plaintiff must also show that he was deprived of the interest, and

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that the procedures that led to the deprivation were not constitutionally sufficient. Kentucky

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Dep't of Corrections v. Thompson, 490 U.S. 454, 459-460, 109 S.Ct. 1904 (1989); McQuillion

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Due Process Claim

v. Duncan, 306 F.3d 895, 900 (9th Cir.2002).

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Plaintiff contends that his right to “life” is being violated by the Defendants, because by

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refusing to modify the computers in the library to make them more accessible to ADA inmates,

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they are not providing Plaintiff with equal and effective access to the life functions of reading

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and writing. Plaintiff acknowledges in the complaint that the law library contains at least one

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computer (ADA computer) which was modified to be more accessible to ADA inmates.

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(Amended Complaint, Doc. 25 at 4:19-22.) The gravamen of Plaintiff’s complaint is that his

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rights are being violated because all of the computers in the law library have not been modified

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or updated.

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Plaintiff has not shown that he has a legally protected interest in access to all of the

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computers in the prison law library. Even if Plaintiff had such an interest, he has not shown

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that he was deprived of such interest without sufficient due process. Therefore, Plaintiff fails to

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state a cognizable due process claim.

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C.

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While Plaintiff has a constitutional right to access the courts, the interferences

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complained of by Plaintiff must have caused him to sustain an actual injury. Christopher v.

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Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179 (2002) Lewis v. Casey, 518 U.S. 343, 351, 116

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S.Ct. 2174 (1996); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Phillips v. Hust , 588

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F.3d 652, 655 (9th Cir. 2009); Jones, 393 F.3d at 936. The absence of an injury precludes an

Denial of Access to Courts

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access claim, and Plaintiff=s complaint is devoid of any facts suggesting any injury occurred.

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Harbury, 536 U.S. at 415-16; Jones, 393 F.3d at 936. Therefore, Plaintiff fails to state a claim

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for denial of access to courts.

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V.

CONCLUSION AND RECOMMENDATIONS

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For the reasons set forth above, the Court finds that Plaintiff fails to state any

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cognizable claims in the First Amended Complaint upon which relief may be granted under

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' 1983 or Title II of the Americans with Disabilities Act. The Court also finds that the

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deficiencies outlined above are not capable of being cured by amendment, and therefore further

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leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d

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1446, 1448-49 (9th Cir. 1987).

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with guidance by the court, and Plaintiff has now filed two complaints that fail to state a claim.

Plaintiff was previously granted leave to amend the complaint,

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action be DISMISSED in its entirety for failure to state a claim upon which

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relief may be granted under ' 1983 or Title II of the Americans with Disabilities

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Act; and

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2.

This dismissal be subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
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Dated:

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September 19, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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