Hayes v. Kernan et al

Filing 38

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED with Prejudice for failure to state a claim re 35 Amended Prisoner Civil Rights Complaint; ORDER GRANTING 34 and 36 Motion; referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 06/27/17. (Objections to F&R due : (14-Day Deadline)(Defendant Kernan termed)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALBERT HAYES,
Plaintiff,

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CASE NO. 1:16-cv-01235-AWI-MJS
(PC)
ORDER GRANTING REQUESTS TO
DISMISS DEFENDANT KERNAN
FROM THE COMPLAINT

v.
SCOTT KERNAN, et al.,

(ECF Nos. 34 & 36)
Defendants.

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FINDINGS AND
RECOMMENDATIONS TO DISMISS
CASE FOR FAILURE TO STATE A
CLAIM

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(ECF No. 35)

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FOURTEEN DAY OBJECTION
DEADLINE

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Plaintiff Albert Hayes, a prisoner proceeding pro se and in forma pauperis, filed

23 this civil rights action pursuant to 42 U.S.C. § 1983 on August 22, 2016. (ECF No. 1.)
24 Plaintiff has declined Magistrate Judge jurisdiction. (ECF No. 11). No other parties have
25 appeared.
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On March 23, 2017, the Court screened Plaintiff’s second amended complaint

27 (ECF No. 24) and dismissed it for failure to state a claim. (ECF No. 26.) The Court found
28 that amendment of his Due Process and Equal Protection claims or his claims against

1 Defendant Kernan would be futile, but granted Plaintiff thirty days to amend his retaliation
2 and ADA claims against Defendants Corral and Voong only. (Id.) Before the Court for
3 screening is Plaintiff’s third amended complaint. (ECF No. 35.)
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On June 8, 2017, Plaintiff filed a motion to voluntarily dismiss Defendant Kernan

5 from the complaint. (ECF No. 34.) Plaintiff also filed a motion seeking leave to name the
6 “right” defendant, in which he asks to remove Defendant Kernan from the complaint and
7 name only Defendants Corral and Voong. (ECF No. 36.)
8 I.

Miscellaneous Filings

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Plaintiff moves to voluntarily dismiss Defendant Kernan from the complaint. (ECF

10 No. 34.) The Court’s March 23, 2017 screening order of Plaintiff’s second amended
11 complaint advised Plaintiff that it would not entertain any further claims against Kernan
12 based on Plaintiff’s failure, on two separate occasions, to allege any violations committed
13 by him. Nonetheless, under Federal Rule of Civil Procedure 41(a)(1)(A)(i), a plaintiff may
14 voluntarily dismiss an action or a portion thereof without a Court order by filing a notice of
15 dismissal before the opposing party serves either an answer or a motion for summary
16 judgment. On Plaintiff’s motion, Defendant Kernan will thus be terminated from the
17 action.
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ECF No. 36 reiterates Plaintiff’s desire to dismiss Kernan from the complaint. He

19 also raises several other concerns: he reminds that Court that he has had to rely on other
20 inmates to draft his filings and asks again that the Court appoint him counsel; he objects
21 to the Court’s denial of leave to amend certain claims in its March 23, 2017 screening
22 order; and he reiterates and expounds on the allegations of his civil rights complaint.
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First, for the reasons already stated, Defendant Kernan will be dismissed from the

24 complaint. Second, Plaintiff has twice been informed (See ECF Nos. 7 & 37) that at this
25 juncture in the proceedings, the Court cannot provide the relief Plaintiff seeks.
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Next, to the extent Plaintiff takes issue with the Magistrate Judge’s findings in prior

27 screening orders, he may raise them in his objections to the instant findings and
28 recommendations. Finally, since a civil rights complaint must be complete in itself (Local
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1 Rule 220), in screening Plaintiff’s pleading, the Court will not consider the current
2 reiteration and elaboration of his allegations or other factual allegations in extraneous
3 filings.
4 II.

Screening Requirement

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

6 against a governmental entity or an officer or employee of a governmental entity. 28
7 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner
8 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon
9 which relief may be granted, or that seek monetary relief from a defendant who is
10 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
11 or any portion thereof, that may have been paid, the court shall dismiss the case at any
12 time if the court determines that . . . the action or appeal . . . fails to state a claim upon
13 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
14 III.

Pleading Standard

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

16 the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
17 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported
18 by mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678
19 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are
20 not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d
21 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
22 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
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Under section 1983, Plaintiff must demonstrate that each defendant personally

24 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
25 2002). This requires the presentation of factual allegations sufficient to state a plausible
26 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,
27 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to
28 have their pleadings liberally construed and to have any doubt resolved in their favor,
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1 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless,
2 the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal,
3 556 U.S. at 678; Moss, 572 F.3d at 969.
4 IV.

Plaintiff’s Allegations

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Plaintiff is currently incarcerated at the California Substance Abuse Treatment

6 Facility (“CSTAF”) in Corcoran, California, where his claims arose. Plaintiff brings this
7 action against M. Voong, CDCR’s acting Chief Inmate Appeal Officer; and J.P. Corral,
8 CSATF Appeal Coordinator. He sues each Defendant “in his or her individual and official
9 capacity, respectively.” He alleges violations of the First, Eighth, and Fourteenth
10 Amendments, as well as violations of the Americans with Disabilities Act (“ADA”), the
11 Rehabilitation Act (“RA”), and related federal regulations.1
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Plaintiff’s allegations may be summarized as follows: 2

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Plaintiff is 69 years old, wheelchair-bound, of limited education, and hearing

14 impaired. He also has a speech impediment, has difficulty expressing himself in writing,
15 and cannot communicate well using American Sign Language. He has also been
16 diagnosed with schizophrenia. Plaintiff struggles to comprehend complex written words
17 and has difficulty putting words together into intelligible thoughts. Because of his difficulty
18 communicating, Plaintiff’s attempts at conveying his problems always result in significant
19 miscommunication and misunderstanding.
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On November 10, 2014, Plaintiff submitted an administrative grievance

21 complaining that his personal property was missing. On November 18, 2014, the
22 grievance was returned with a notice stating it was rejected because it contained
23 “pointless verbiage that the staff could not reasonably be expected to understand to
24 identify the issue under appeal.” The grievance was described as rambling, lengthy, and
25 pointless. Plaintiff was also informed that he needed to attach a copy of the receipt for his
26 lost property to his grievance and remove several handwritten pages. Plaintiff complied
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See 28 C.F.R. §§ 35.104(1) and 35.160(b)(2).
Plaintiff refers to various attachments—presumably exhibits—throughout his factual narrative. There are
no exhibits attached to the complaint filed with the Court.
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1 and resubmitted the appeal, explaining that he was never given a property receipt and
2 requesting assistance from someone who was qualified to read and interpret the
3 incomprehensible grievance. Plaintiff also cited to sections 3084.1(c) and 3084.5(b)(1) of
4 the California Code of Regulations.3
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On December 23, 2014, Corral canceled the resubmitted grievance, citing the fact

6 that Plaintiff did not attach a copy of his property receipt. He ignored Plaintiff’s request for
7 staff assistance. A few days later, Plaintiff submitted a second appeal appealing the
8 cancellation of his first appeal. Corral rejected the second appeal for failure to attach a
9 copy of the cancelled first appeal documents. Plaintiff therefore resubmitted the second
10 appeal with the first appeal documents attached. Plaintiff again requested staff
11 assistance. The second appeal was accepted by Corral at the second level of the review.
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On February 20, 2015, Plaintiff received notice that his second appeal was

13 cancelled on timeliness grounds, even though it was timely submitted. Corral again
14 ignored Plaintiff’s request for staff assistance. Plaintiff believes Corral intentionally
15 discriminated against Plaintiff on the basis of his disabilities when he failed to assign staff
16 assistance to Plaintiff in filing his appeals.
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Plaintiff submitted the second appeal to Defendant Voong at the third level of

18 review, complaining that it was wrongfully cancelled and alleging that Corral
19 discriminated against Plaintiff on the basis of his disability by not assigning him a staff
20 assistant. Voong’s response to the second appeal was that he could not address the
21 disability discrimination issue or Corral’s failure to provide assistance.
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Plaintiff believes Corral and/or Voong should have conducted an inquiry to

23 determine what sort of accommodation would allow Plaintiff to effectively communicate
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The regulations state:

25 “When an appeal indicates the inmate or parolee has difficulty describing the problem in writing or has a
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primary language other than English, the appeals coordinator shall ensure that the inmate or parolee
receives assistance in completing and/or clarifying the appeal.” Cal. Code Regs. tit. 15, § 3084.5(b)(1)
(West).
“Department staff shall ensure that inmates and parolees, including those who have difficulties
communicating, are provided equal access to the appeals process and the timely assistance necessary to
participate throughout the appeal process.” Cal. Code Regs. tit. 15, § 3084.1(c) (West).

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1 his grievance. Plaintiff seeks injunctive and monetary relief.
2 V.

Discussion
Plaintiff was granted leave to amend his ADA and retaliation4 claims only. Plaintiff

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4 was informed in the Court’s March 23, 2017 screening order that he should not attempt to
5 amend his Fourteenth Amendment Equal Protection and Due Process claims, as he had
6 already been given two opportunities to plead these claims and further attempts at
7 amendment would be futile. (ECF No. 26 at 7, 9, and 11.) Therefore, to the extent Plaintiff
8 repeats the allegations pertaining to those potential claims in his third amended
9 complaint, they will not be addressed again here—if Plaintiff disagrees with the
10 Magistrate Judge’s findings regarding those claims, he may so state in his objections to
11 these findings and recommendations.
For the reasons set forth below, the undersigned will recommend Plaintiff’s

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13 complaint be dismissed with prejudice for failure to state a claim.
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First, Plaintiff states in his third amended complaint that he has no intention of

15 stating a claim for retaliation. (ECF No. 35 at 14.) Any allegations that could relate to a
16 retaliation claim are therefore disregarded.
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Second, Plaintiff was previously advised of the requirements for a claim for

18 violation of the ADA and RA. (ECF No. 16 at 8-9.) Title II of the ADA and § 504 of the RA
19 prohibit discrimination on the basis of disability. 42 U.S.C. § 12132 (West); 29 U.S.C. §
20 794 (West); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).
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To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a
qualified individual with a disability; (2) [he] was excluded from participation in or
otherwise discriminated against with regard to a public entity’s services, programs,
or activities; and (3) such exclusion or discrimination was by reason of [his]
disability, [and] [t]o establish a violation of § 504 of the RA, a plaintiff must show
that (1) [he] is handicapped within the meaning of the RA; (2) [he] is otherwise
qualified for the benefit or services sought; (3) [he] was denied the benefit or
services solely by reason of [his] handicap; and (4) the program providing the
benefit or services receives federal financial assistance.”

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Although Plaintiff never expressly made a claim for retaliation, his second amended complaint alluded to a
circumstance in which Defendant Corral threatened to place Plaintiff on the “blacklist” if he continued to file
grievances. (ECF No. 24 at 7.) Plaintiff was advised to make this claim more explicit in his third amended
complaint if he so chose.

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Lovell, 303 F.3d at 1052; accord Simmons v. Navajo Cnty., 609 F.3d 1011, 1021-

2 22 (9th Cir. 2010). The “duty to provide reasonable accommodations under the ADA and
3 the [RA] arises when a policy discriminates on the basis of disability.” Weinreich v. Los
4 Angeles Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis in
5 original). Suits against individuals in their personal capacities are precluded under the
6 ADA and RA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) ([A] plaintiff cannot
7 bring an action under 42 U.S.C. § 1983 against a State official in [his or] her individual
8 capacity to vindicate rights created by Title II of the ADA or section 504 of the
9 Rehabilitation Act.”); see also A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 804 (3d Cir.
10 2007); Heinke v. Cnty. of Tehama Sheriff’s Dept., No. CIV S-12-2433 LKK-KJN, 2013 WL
11 3992407, at *7 (E.D. Cal. Aug. 1, 2013); White v. Smyers, No. 2:12-cv-2868 MCE AC P,
12 2012 WL 6518064, at *6 (E.D. Cal. Dec. 13, 2012). Furthermore, “compensatory
13 damages are not available under Title II or § 504 absent a showing of discriminatory
14 intent.” Lovell, 303 F.3d at 1056 (internal quotations omitted).
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Based on the phrasing of Plaintiff’s complaint, he appears to sue Voong in his

16 individual capacity and Corral in his official capacity. Plaintiff was twice advised of the
17 requirements for pleading an official capacity claim (ECF Nos. 16 and 26), yet failed to
18 cite to an unlawful policy or practice of the state as necessary to support such a claim
19 against Corral. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Because the real party in
20 interest in an official-capacity suit is the governmental entity and not the named official,
21 the entity's ‘policy or custom’ must have played a part in the violation of federal law.”)
22 (internal quotations omitted.) Plaintiff was informed that, given his failure to adhere to the
23 pleading standards, the Court would not entertain any further iterations of his official
24 capacity claims. (ECF No. 26 at 6-7.)
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Even if the Court were to consider Plaintiff’s official capacity claim against Corral,

26 Plaintiff still identifies no policy or practice of the state that led to the perceived violations.
27 Plaintiff is thus left with only his individual capacity claims against Voong. Plaintiff
28 continues to point to the individual actions of Corral and Voong, and not an institutional
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1 policy or practice, as the cause of the alleged ADA and RA violations. As Plaintiff cannot
2 maintain his claims for violating the ADA or RA against individual defendants, they must
3 be dismissed. Leave to further amend would be futile and should be denied.
4 VI.

Conclusion

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For the reasons set forth above and in its prior screening orders, the Court finds

6 Plaintiff fails to state a claim. Further leave to amend would be futile and should be
7 denied.
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Accordingly, IT IS HEREBY ORDERED THAT:

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At Plaintiff’s request, Defendant Scott Kernan is TERMINATED from this action;

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And IT IS HEREBY RECOMMENDED THAT:

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This action be DISMISSED with prejudice for failure to state a claim.

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These Findings and Recommendations are submitted to the United States District

13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
14 fourteen (14) days after being served with these Findings and Recommendation, Plaintiff
15 may file written objections with the Court.

Such a document should be captioned

16 “Objections to Magistrate Judge’s Findings and Recommendations.”

Failure to file

17 objections within the specified time may result in the waiver of rights on appeal.
18 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
19 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:

June 27, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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