Calloway v. Biter et al
Filing
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ORDER DIRECTING Clerk of the Court to Assign a District Judge to This Action (the new case number is 1:13-cv-00747-LJO-SAB (PC)); FINDINGS and RECOMMENDATIONS Recommending Dismissal of This Suit for Failure to State a Cognizable Claim for Relief, signed by Magistrate Judge Stanley A. Boone on 7/19/18. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMISI JERMAINE CALLOWAY,
Plaintiff,
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v.
M.D. BITER, et al.,
Defendants.
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Case No.: 1:13-cv-00747-SAB (PC)
ORDER DIRECTING CLERK OF THE COURT TO
ASSIGN A DISTRICT JUDGE TO THIS ACTION
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THIS SUIT
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
[ECF Nos. 31, 47, 48]
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I.
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BACKGROUND
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Plaintiff Jamisi Jermaine Calloway is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
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This case has a lengthy procedural history, which the Court will briefly summarize here. Plaintiff
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initiated this action on May 20, 2013, by filing the initial complaint. (ECF No. 1.) On December 4,
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2014, the previously-assigned United States Magistrate Judge issued an order requiring Plaintiff to either
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file an amended complaint, or notify the Court of his willingness to proceed upon claims found to be
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cognizable. (ECF No. 16.)
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Plaintiff filed a first amended complaint on December 18, 2014. (ECF No. 10.) On August 17,
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2015, the matter was reassigned to the undersigned upon the retirement of the previously-assigned
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Magistrate Judge. (ECF No. 18.) On February 4, 2016, the Court issued an order requiring Plaintiff to
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either file a second amended complaint, or notify the Court of his willingness to proceed upon the
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cognizable claim in his first amended complaint. (ECF No. 19.)
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Plaintiff then sought several extensions of time to amend his pleading, (ECF Nos. 21, 23), which
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were granted, (ECF Nos. 22, 24). On April 8, 2016, Plaintiff filed a second amended complaint, (ECF
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No. 26), along with a motion requesting to exceed the page limitation, (ECF No. 25.)
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2016, the Court denied Plaintiff’s request to exceed the page limitation, finding the second amended
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complaint to be excessively lengthy as it exceeded 80 pages in length, and that Plaintiff had not made a
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showing as to why he should be allowed additional pages. (ECF No. 27.) Plaintiff was granted leave
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to file a third amended complaint not to exceed 25 pages in length. (Id.) Plaintiff sought reconsideration
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of this order, (ECF No. 28), which was denied, (ECF No. 29).
On April 12,
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On May 26, 2016, Plaintiff filed a third amended complaint. (ECF No. 31.) On November 7,
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2016, the Court screened and dismissed the third amended complaint for failure to state a claim upon
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which relief could be granted. (ECF No. 35.) Plaintiff was granted leave to file a fourth amended
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complaint. (Id. at 13.)
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On December 7, 2016, Plaintiff filed a motion for the appointment of counsel. (ECF No. 36.)
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That motion was denied, and the Court reminded Plaintiff that his most recent amended complaint was
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dismissed for the failure to state any claim upon which relief could be granted, with leave to amend.
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(Id. at 2.)
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Plaintiff’s fourth amended complaint was due on or before December 12, 2016. On February 2,
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2017, the Court issued an order to show cause, noting that Plaintiff’s fourth amended complaint had not
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been filed and he had not communicated with the Court since his December 7, 2016 motion for the
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appointment of counsel. The Court ordered Plaintiff to either show cause in writing why this action
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should not be dismissed, or file his overdue fourth amended complaint. (ECF No. 38.)
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On February 13, 2017, Plaintiff filed an objection to the order to show cause. (ECF No. 39.) In
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his objections, Plaintiff stated that it would be a waste of time to file a fourth amended complaint, and
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that the Court had erred in screening his pleadings and in denying his several requests for the
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appointment of counsel. (Id.)
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On February 17, 2017, the undersigned addressed Plaintiff’s objection, and found that he had
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not shown any error in its prior rulings. (ECF No. 40.) As Plaintiff had declined to amend his complaint
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and elected to stand on his third amended complaint, the undersigned also dismissed the action for failure
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to state a cognizable claim for relief. (Id.) Judgment was entered the same day. (ECF No. 41.) Plaintiff
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filed a notice of appeal on March 13, 2017. (ECF No. 42.)
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On June 25, 2018, the Ninth Circuit Court of Appeals vacated and remanded the action to this
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Court. (ECF No. 47.) Specifically, the Ninth Circuit found that because all the parties, including
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unserved defendants, had not consented to proceed before a United States Magistrate Judge, the
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dismissal order was vacated and the case was remanded for further proceedings pursuant to Williams v.
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King, 875 F.3d 500, 503-04 (9th Cir. 2017). (Id.) The Ninth Circuit’s mandate was issued on July 18,
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2018, ordering that the June 25, 2018 judgment takes effect as of that date. (ECF No. 48.)
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Now, for the reasons discussed below, the Court recommends that Plaintiff’s action be dismissed
for the failure to state a cognizable claim for relief.
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II.
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SCREENING REQUIREMENT
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim
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upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do
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not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 555 (2007)). The pleadings of pro se litigants are construed liberally and are afforded the
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benefit of any doubt. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Hebbe v. Pliler, 627
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F.3d 338, 342 (9th Cir. 2010). However, “the liberal pleading standard . . . applies only to a plaintiff’s
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factual allegations,” Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), and “a liberal interpretation of a
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civil rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns
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v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673
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F.2d 266, 268 (9th Cir. 1982)). Also, while a plaintiff’s allegations are taken as true, courts “are not
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required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th
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Cir. 2009) (internal quotation marks and citation omitted).
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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient
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factual detail to allow the Court to reasonably infer that each named defendant is liable for the
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misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks omitted); Moss v. United
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States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted
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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
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standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
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III.
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PRIOR PLEADINGS
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Since this action commenced, Plaintiff has been in the custody of the California Department of
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Corrections and Rehabilitation (“CDCR”). In his original complaint, he named as defendants seven
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correctional officials employed by the CDCR at Kern Valley State Prison (“KVSP”), and Davita, Inc.
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Plaintiff claimed that defendants were deliberately indifferent to his serious medical needs in violation
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of the Eighth Amendment. Plaintiff also claimed that defendants failed to protect him from serious
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injury in violation of the Eighth Amendment. The Court found that Plaintiff stated a claim for relief
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against Defendant Dr. Akanno for his conduct on September 18, 2012, but failed to state any other
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claims for relief. P
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In Plaintiff’s first amended complaint, he named as defendants Dr. Akanno, Registered Nurse
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Satterfield, J. Mamuag, and Davita, Inc. Plaintiff set forth Eighth Amendment claims of failure to
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protect and deliberate indifference to medical needs, and a First Amendment retaliation claim. The
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Court again found a cognizable claim against Dr. Akanno for deliberate indifference to his serious
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medical needs for his conduct on September 18, 2012, in violation of the Eighth Amendment, and no
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other cognizable claims.
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As noted above, Plaintiff’s second amended complaint exceeded eighty pages in length, and
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included long, rambling, allegations detailing the history of his health care. The Court now turns to
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Plaintiff’s third amended complaint in this context.
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IV.
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FOURTH AMENDED COMPLAINT ALLEGATIONS
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Plaintiff names thirty-three individual defendants, including Dr. Akanno, that are employed at
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KVSP and at other institutions within the CDCR. Plaintiff is a chronic care high risk inmate who is
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receiving hemodialysis and renal treatment. (Third Am. Compl. 9.) Plaintiff alleges violations of his
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constitutional rights in violation of section 1983 and Title II of the American’s With Disabilities Act
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(“ADA”). (Id. at 10.)
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The third amended complaint is a rambling legal argument that correctional officials in general
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are deliberately indifferent to his medical condition. Plaintiff’s third amended complaint consists of
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conclusory arguments, and vague allegations that Defendants “whitewashed, obstructed, and rebuffed
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Plaintiff’s due process rights.” (Id. at 13.) Plaintiff references, for the first time in this lawsuit, failure
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to comply with the ADA. Plaintiff also asserts, for the first time, allegations of conduct by correctional
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officials that impeded his ability to collect declarations from other inmates in order to pursue a “class
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action group appeal.” (Id. at 14.) Plaintiff also refers to an Olsen review of his records. (Id.)
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The Court has been able to glean the following factual allegations from the third amended
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complaint: Plaintiff alleges that he was infected with Hepatitis C in addition to his already chronic renal
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failure. (Id.) Plaintiff makes a vague allegation about the deliberate failure to treat his serious broken
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leg after being in an out-patient, non-medical housing environment at KVSP. (Id. at 11.) Plaintiff
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appears to be alleging that his rights under the ADA are being violated by the failure to provide
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treatment, medical housing, a renal diet, and failure to make reasonable modifications and
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accommodations to rules, policies, and practices. (Id. at 12.) He alleges that he is being denied his
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rights under the ADA to be free from restraints during hemodialysis treatment, access to a wheelchair
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before and after dialysis, a renal diet with ice chips, treatment for his hepatitis C and broken leg. (Id. at
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13.) Plaintiff alleges that he was not informed of his Hepatitis C diagnosis for almost a year after it was
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discovered. (Id. at 15.) Plaintiff contends that he was exposed to blood borne pathogens over three and
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one-half years ago, and should have been given the option for treatment for the exposure on the day of
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the incident. (Id.)
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V.
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DISCUSSION
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A.
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To state a claim under section 1983, a plaintiff is required to show that (1) each defendant acted
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under color of state law and (2) each defendant deprived him or her of rights secured by the Constitution
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or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). There is no
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respondeat superior liability under section 1983, and therefore, each defendant is only liable for his or
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her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). To state a claim, the plaintiff must
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demonstrate that each defendant personally participated in the deprivation of his rights. Jones v.
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Defendant Liability Under Section 1983
Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Plaintiff has not linked any named defendant to any act or failure to act that would violate his
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federal rights. As discussed above, his pleading is conclusory and rambling, with no specific acts or
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omissions linked to each individual defendant. Accordingly, Plaintiff fails to state a claim under section
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1983.
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B.
Joinder
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Further, Plaintiff is attempting to bring this action against over thirty defendants at different
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facilities within CDCR. Plaintiff may not bring unrelated claims against unrelated parties in a single
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action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 653 F.3d 950, 952 (7th Cir. 2011); George v.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so
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long as (1) the claim arises out of the same transaction or occurrence, or series of transactions and
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occurrences, and (2) there are common questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v.
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Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America,
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623 F.2d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) will
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the Court review the other claims to determine if they may be joined under Rule 18(a), which permits
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the joinder of multiple claims against the same party.
Here, no claim is properly stated against any defendant, nor are factual assertions made showing
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that any claim should be properly joined here.
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C.
Eighth Amendment Medical Care
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must
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show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
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2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). The two-part test for deliberate indifference
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requires a plaintiff to show (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a
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prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction
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of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at
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1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).
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Plaintiff was previously advised that he must allege facts indicating that each individual
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defendant engaged in conduct that constituted deliberate indifference. (ECF No. 16 at 4-5.) Plaintiff
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was also advised that he must allege facts indicating personal participation by each defendant. (Id. at
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5.) Plaintiff was specifically advised that “a person deprives another of a constitutional right where that
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person ‘does an affirmative act, participates in another’s affirmative acts, of omits to perform an act
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which [that person] is legally required to do that causes the deprivation of which complaint is made.’”
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(Id. (quoting Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007)). The Court noted that Plaintiff had
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failed to allege specific conduct by each individual defendant that stated a claim for relief. (ECF No.
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16 at 5.)
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While Plaintiff was had previously stated a claim against Dr. Akanno for conduct that occurred
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on September 18, 2012, Plaintiff has not included the allegations against Dr. Akanno in the third
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amended complaint. As Plaintiff was previously advised, an amended complaint supersedes the original
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complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565,
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567 (9th Cir. 1987), and “[a]ll causes of action alleged in an original complaint which are not alleged in
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an amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand,
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644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. The third amended complaint
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does not include any allegations regarding the act or failure to act of any individual defendant.
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The third amended complaint fails to state a claim for relief based on deliberate indifference.
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Plaintiff fails to specifically charge any Defendant, including Dr. Akanno, with any specific conduct.
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Instead, as noted above, third amended complaint consists of conclusory allegations and statements of
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law. Plaintiff has been repeatedly advised that in order to hold an individual liable, he must charge that
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individual with specific conduct that constitutes a deprivation of a protected interest. (ECF Nos. 16 at
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5:1, 19 at 8:22, 27 at 3:2.) Yet, he has indicated that he has no intent to amend his allegations to state
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any claim, and instead stands upon the third amended complaint. Therefore, further leave to amend
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should not be granted here.
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D.
Retaliation
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Plaintiff may state a claim for a violation of his First Amendment rights due to retaliation under
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section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim of retaliation in
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violation of the First Amendment consists of five elements: “(1) an assertion that a state actor took some
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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such
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action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not
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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.
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2005); accord Watison v. Cartier, 668 F.3d 1108, 1114 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262,
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169 (9th Cir. 2009).
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In the order screening the first amended complaint, the Court noted that Plaintiff did not
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specifically allege what conduct triggered the retaliatory reprisals, or what specific action any of the
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defendants engaged in that constituted reprisal. Plaintiff did not refer to a specific inmate grievance or
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to any specific conduct by any of the named Defendants indicating that they engaged in any specific
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conduct that was taken in reprisal for filing an inmate grievance.
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Plaintiff was previously notified of the applicable legal standard and the deficiencies in his
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pleading, and despite guidance from the Court, Plaintiff’s third amended complaint fails to correct the
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identified deficiency regarding Plaintiff’s retaliation claim. Based upon the allegations in Plaintiff’s
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first amended complaint and third amended complaint, the Court is persuaded that Plaintiff is unable to
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allege any additional facts that would support a claim for retaliation, and further amendment would be
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futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave
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to amend when amendment would be futile.”) Based on the nature of the deficiencies at issue, the Court
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finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000);
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Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).
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E.
Failure to Protect
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Plaintiff alleges that the defendants failed to protect him when he was infected with Hepatitis C.
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The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of
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inmates, which has been interpreted to include a duty to protect prisoners. Farmer v. Brennan, 511 U.S.
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825, 832-33 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A prison official violates
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this duty when two requirements are met. Farmer, 511 U.S. at 834. First, objectively viewed, the prison
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official’s act or omission must cause “a substantial risk of serious harm.” Id. Second, the official must
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be subjectively aware of that risk and act with “deliberate indifference to inmate health or safety.” Id.
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at 834, 839-40 (internal quotation marks omitted). In other words, “the official must both be aware of
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facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must
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also draw the inference.” Id. at 837. Deliberate indifference is “something more than mere negligence,
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but “something less than acts or omissions for the very purpose of causing harm or with knowledge that
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harm will result.” Id. at 835. A prison official’s deliberate indifference may be established through an
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“inference from circumstantial evidence” or “from the very fact that the risk was obvious.” Id. at 842.
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In the orders dismissing Plaintiff’s original and first amended complaints, Plaintiff was advised
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that his allegations regard failure to protect him that relate to his hemodialysis treatment failed to state
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a claim for relief. (ECF No. 16 at 6-7; ECF No. 19 at 7.) Plaintiff was previously notified of the
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applicable legal standard and the deficiencies in his pleading, and despite guidance from the Court,
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Plaintiff has failed to correct the identified deficiency in the third amended complaint. Based upon the
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allegations in Plaintiff’s original complaint, first amended complaint, and third amended complaint, the
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Court is persuaded that Plaintiff is unable to allege any additional facts that would support a claim for
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failure to protect Plaintiff, and further amendment would be futile. See Hartmann 707 F.3d at 1130;
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Lopez, 203 F.3d at 1130; Noll, 809 F.2d at 1446-1449.
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F.
Newly Raised Allegations
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Plaintiff’s third amended complaint raises several new causes of action without alleging any
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facts to state a cognizable claim. Plaintiff is clearly trying to bring multiple unrelated claims that cannot
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proceed in a single action. Further, Plaintiff may not change the nature of this suit by adding new,
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unrelated claims in his amended complaint. George, 507 F.3d at 607 (no “buckshot” complaints).
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Finally, for the reasons discussed below, Plaintiff has not pleaded sufficient facts to state a claim for
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these new causes of action.
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1.
Fourth Amendment
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Plaintiff alleges that his DNA was stolen without his consent to conduct an HIV and Hepatitis
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test. Plaintiff does not allege any facts from which the Court can construe the basis for this claim.
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Accordingly, the Court construes that claim to allege an unlawful search of Plaintiff’s DNA.
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“The Fourth Amendment provides that ‘the right of the people to be secure in their persons,
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houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.’”
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Terry v. Ohio, 392 U.S. 1, 8 (1968). The Constitution does not forbid all searches and seizures, but only
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those searches and seizures that are unreasonable. Terry, 392 U.S. at 9. Therefore, the touchstone of
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the Fourth Amendment is reasonableness in which the Court examines the totality of the circumstances
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to determine whether the search is reasonable. United States v. Kriesel, 508 F.3d 941, 947 (9th Cir.
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2007). To determine if a search is reasonable, the court assesses “the degree to which it intrudes upon
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an individual’s privacy,” compared to “the degree to which it is needed for the promotion of legitimate
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governmental interests.” Id. at 947 (citations omitted).
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The Supreme Court has found that blood taken by a physician in a hospital environment
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according to acceptable medical practices to obtain a blood-alcohol level was a reasonable search.
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Schmerber v. California, 384 U.S. 757, 772 (1966). Courts have construed Schmerber to confirm
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“society’s judgment that blood tests do not constitute an unduly extensive imposition on an individual’s
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privacy and bodily integrity.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 625 (1989). Courts
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have also found that collection of DNA from convicted felons for identification purposes is reasonable
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regardless of whether the DNA was collected by a buccal swab sampling or a blood draw. United States
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v. Kriesel, 508 F.3d 941, 948 (9th Cir. 2007) (probationers); Hamilton v. Brown, 630 F.3d 889, 896 (9th
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Cir. 2011) (inmates). Therefore, Plaintiff has not stated a claim here based on an unlawful search of his
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DNA, and this deficiency cannot be cured through amendment.
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2.
Americans with Disabilities Act
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Plaintiff contends that the defendants violated the ADA when they did the following: (1) failed
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to protect his chronic care treatment; (2) failed to provide medical housing and house Plaintiff at a
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medical facility due to his serious medical and mental health needs; (3) failed to provide a renal diet; (4)
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failed to make reasonable modifications and accommodations to the rules, policies, and state practices
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that effect Plaintiff’s medical needs; and (5) denied access to a wheelchair before and after dialysis
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treatment.
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Title II of the ADA provides that “no qualified individual with a disability shall, by reason of
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such disability, be excluded from participation in or be denied the benefits of the services, programs, or
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activities of a public entity, or be subject to discrimination by such entity.” 42 U.S.C. § 12132. Title II
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applies to the services, programs, and activities provided for inmates by jails and prisons. Pennsylvania
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Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208-13; Simmons v. Navajo Cnty., 609 F.3d 1011, 1021-22
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(9th Cir. 2010). “To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a
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qualified individual with a disability; (2) [he] was excluded from participation in or otherwise
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discriminated against with regard to a public entity’s services, programs, or activities; and (3) such
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exclusion or discrimination was by reason of [his] disability.” Lovell v. Chandler, 303 F.3d 1039, 1052
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(9th Cir. 2002); accord Simmons, 609 F.3d at 1021; McGary v. City of Portland, 386 F.3d 1259, 1265
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(9th Cir. 2004).
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Plaintiff alleges that he is a qualifying individual with disability because he suffers from renal
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disease and requires treatment for renal failure. (ECF No. 10.) The Court assumes without deciding
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that Plaintiff’s renal failure would make him a qualified individual under Title II of the ADA.
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Plaintiff’s allegations regarding inadequate medical care, and the treatment or lack of treatment
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concerning Plaintiff’s medical condition do not provide a basis upon which to impose liability under the
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ADA. Simmons, 609 F.3d at 1022 (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)).
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However, Plaintiff is alleging that he was denied medical housing, access to a wheelchair before and
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after treatment, and the CDCR did not make reasonable accommodations to rules, policies, and
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procedures due to his disability. Specifically, Plaintiff alleges that he should be free from restraints
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during hemodialysis treatment. These would qualify as services, programs or activities of the public
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entity.
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The final requirement is that the exclusion or discrimination was by reason of Plaintiff’s
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disability. To state a claim, Plaintiff must allege facts to show that CDCR’s policies unduly burden him
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due to his disability. McGary, 386 F.3d at 1265. This requires the public entity to make reasonable
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modifications in policy practice and procedures when necessary to avoid discrimination unless the
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public entity can demonstrate that making the modifications would alter the nature of the service
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program or activity. 28 C.F.R. § 35.130(b)(7). Plaintiff’s conclusory allegations do not identify any
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CDCR policy and are not sufficient for the Court to conclude that Plaintiff was unduly burdened by
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CDCR’s policies due to his disability. Therefore, Plaintiff fails to state a cognizable claim for violation
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of the ADA.
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Further, Plaintiff cannot bring an ADA claim against individual prison employees in their
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personal capacities as such claims are precluded under the ADA. Vinson v. Thomas, 288 F.3d 1145,
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1156 (9th Cir. 2002); Becker v. Oregon, 170 F.Supp.2d 1061, 1066 (D. Or. 2001); Abbott v. Rosenthal,
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2 F.Supp.3d 1139, 1144 (D. Idaho 2014). While the ADA does provide for suits against a defendant in
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their official capacity, such suits are treated as a suit against the State and therefore, “the entity’s policy
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or custom must have played a part in the violation of federal law.” Hafer v. Melo, 502 U.S. 21, 25
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(1991). Although Plaintiff states that the claims are brought against the defendants in their official
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capacities, the third amended complaint does not identify any policy or custom of CDCR that violated
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his federal rights; nor does the third amended complaint contain allegations that any individual was
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acting pursuant to a policy or custom of the CDCR. Plaintiff fails to state a cognizable claim for
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violation of the ADA. As noted above, he has stated that he has no intend to amend his allegations
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further, and these claims are unrelated to his original complaint. Therefore, further leave to amend to
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attempt to state a claim under the ADA in this action is not warranted.
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IV.
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CONCLUSION AND RECOMMENDATION
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The Clerk of the Court is HEREBY DIRECTED to randomly assign a district judge to this action.
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Further, for the reasons explained above, IT IS HEREBY RECOMMENDED that this action be
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dismissed, with prejudice, for Plaintiff’s failure to state a claim for which relief may be granted.
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This Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after
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being served with this Findings and Recommendation, Plaintiff may file written objections with the
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Court.
The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may result
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in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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July 19, 2018
UNITED STATES MAGISTRATE JUDGE
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