Beard v. Silva et al

Filing 6

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 5/14/2015. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY MARCEL BEARD,

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Plaintiff,

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Case No. 1:14-cv-01961-DLB PC
ORDER DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND

v.

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PAUL SILVA, et al.,

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Defendants.

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Plaintiff Anthony Marcel Beard (“Plaintiff”) is a California state prisoner proceeding pro se

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and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on

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December 10, 2014. He names Paul Silva, Jim Williams and Tom Dunn as Defendants.1

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A.

LEGAL STANDARD
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). The

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

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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Plaintiff consented to the jurisdiction of the United States Magistrate Judge on December 17, 2014.

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C.

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§ 1915(e)(2)(B)(ii).
A complaint must contain “a short and plain statement of the claim showing that the pleader

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is 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,

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do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to

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‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Id.

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions or

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omissions of each named defendant to a violation of his rights; there is no respondeat superior

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liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d

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1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009);

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Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim

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for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S.

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at 678; Moss, 572 F.3d at 969.

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B.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS
Plaintiff is currently incarcerated at Valley State Prison in Chowchilla, California. The

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events at issue occurred while Plaintiff was housed at Corcoran State Prison (“CSP”) in Corcoran,

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California.

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Plaintiff alleges that on November 11, 2013, while working at the PIA Dairy, he was

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standing outside of the CSP milk processing plant while on break. Defendant Silva, the supervisor

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of the PIA Dairy, asked Plaintiff why he was wearing a hearing vest and whether he had any job
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restrictions. Plaintiff told Defendant Silva that he did not have any restrictions, but Defendant Silva

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told Plaintiff that he did not want him to operate, or work on, the packing machine because he was a

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safety risk. Defendant Silva told Plaintiff that he could not do so until he gave him documentation

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stating that he was not a safety risk.

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Plaintiff submitted a request for interview to Defendant Silva on November 11, 2013.

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Plaintiff stated that staff could not discriminate against inmates with disabilities. He also explained

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that Plaintiff had been doing his job for over 18 months and achieved a certificate in maintenance,

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with no safety infractions.

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Defendant Silva was given a copy of Plaintiff’s CDCR 7410 (Comprehensive

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Accommodation Chrono), but the discrimination did not stop. Plaintiff was threatened with job loss,

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and was told not to work on, or operate, the milk packing machine. CSP ordered a new milk packing

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machine in July 2014, but Defendant Silva told Plaintiff that he could not work on, or operate, the

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machine. Plaintiff was denied work for three weeks. Defendant Silva told Plaintiff that he permitted

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inmates to work at staff discretion.

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On January 31, 2014, Plaintiff had an interview with Defendant Williams, PIA

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Superintendent, about his disability and the events on November 11, 2013. Defendant Williams

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granted the appeal in part at the First Level, stating, “[r]equiring the use of hearing aids is a

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reasonable accommodation, and is not discriminatory in nature. The requiring of written

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documentation due to safety concern is not discrimination.” ECF No. 1, at 6.

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On March 26, 2014, Defendant Dunn, PIA Manager Administration, responded to Plaintiff’s

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appeal at the Second Level. He stated that requiring Plaintiff to wear his hearing aids was a

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reasonable accommodation while he was working on the equipment. Defendant Dunn noted that as

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a supervisor, Defendant Silva is required to prevent an accident from happening. Defendant Dunn

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concluded that staff acted appropriately, and noted that Plaintiff did not lose his job and was not

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moved to another position. Defendant Dunn granted the appeal in part, but stated that an OSHA

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review was beyond the scope of the appeal process.

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For relief, Plaintiff states that he “reserves the right to add monetary claim later upon finding
of the maximum amount of pay for ADA claim.” ECF No. 1, at 3.
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C.

DISCUSSION
As an initial matter, the Court notes that Plaintiff has not alleged any constitutional claims.

This action, therefore, is technically not a section 1983 action.

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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,

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or activities of a public entity, or be subject to discrimination by such entity.” 42 U.S.C. § 12132.

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Title II applies to the services, programs, and activities provided for inmates by jails and prisons.

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Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208-13 (1998); Simmons v. Navajo Cnty., 609

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F.3d 1011, 1021-22 (9th Cir. 2010); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1214-15 (9th Cir.

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2008). “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,

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1052 (9th Cir. 2002); accord Simmons, 609 F.3d at 1021; McGary v. City of Portland, 386 F.3d

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1259, 1265 (9th Cir. 2004).

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Here, Plaintiff’s claim is premised on his belief that he was safe to work without hearing

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aids, and that Defendant Silva’s refusal to permit him to do so was discriminatory. According to the

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exhibits, Plaintiff has to wear his vest when he is not wearing his hearing aids.

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Although Plaintiff may believe that he is safe to work when he does not wear his hearing

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aids, Defendant Silva did not discriminate against him because of his disability. Rather, Defendant

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Silva told Plaintiff that if he was wearing his vest, and presumably was not wearing his hearing aids,

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he could not work around the milk packing machine until he provided documentation that he was not

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a safety risk while not using his hearing aids. In other words, Defendant did not fail to accommodate

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his disability. To the contrary, Plaintiff held a job in the milk plant and his hearing issue was

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accommodated through the use of a hearing aid. In fact, in Defendant Williams’ response at the

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First Level, he indicates that Defendant Silva was interviewed. Defendant Silva said that later the

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same day, Plaintiff came back with his hearing aids “and that’s fine.” ECF No. 1, at 13.

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Finally, insofar as Plaintiff names Defendants in their individual capacity, he cannot state a

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claim against them. “‘Title II of the ADA prohibits discrimination in programs of a public entity or

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discrimination by any such entity.’” Roundtree v. Adams, 2005 WL 3284405, *8 (E.D.Cal. 2005)

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(quoting Thomas v. Nakatani, 128 F.Supp.2d 684, 691 (D. Haw. 2000)). “The ADA defines ‘public

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entity’ in relevant part as ‘any State or local government’ or ‘any department, agency, special

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purpose district, or other instrumentality of a State or States or local government.’” Roundtree, 2005

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WL 3284405, *8 (citing 42 U.S.C. § 12131(1)(A)-(B)). Public entity, “‘as it is defined within the

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statute, does not include individuals.’” Id. (quoting Alsbrook v. City of Maumelle, 184 F.3d 999,

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1005 n.8 (8th Cir. 1999)). Thus, individual liability is precluded under Title II of the Americans

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with Disabilities Act, and Plaintiff may not pursue his ADA claim against the individual Defendants

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named in the complaint.

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Based on the above, the Court finds that Plaintiff does not state a claim under the ADA.

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Given the nature of the deficiencies, the Court finds that leave to amend cannot cure the issues.

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Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Cir. 2000).

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D.

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CONCLUSION AND ORDER
Accordingly, it is HEREBY ORDERED that this action is DISMISSED for failure to state a

claim for which relief may be granted.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

May 14, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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