(PC) Hernandez v. Marcelo, et al.

Filing 35

FINDINGS and RECOMMENDATIONS to Grant 20 Defendants' Motion to Dismiss re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Jennifer L. Thurston on 10/14/2020. Referred to Unassigned DJ; Objections to F&R due within 21 days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARINO ANTONIO HERNANDEZ,

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Plaintiff,

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v.
J. MARCELO, et al.,

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Defendants.

Case No. 1:19-cv-01219-NONE-JLT (PC)
FINDINGS AND RECOMMENDATIONS
TO GRANT DEFENDANTS’ MOTION
TO DISMISS
(Doc. 20)
21-DAY DEADLINE

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Before the Court is Defendants’ motion to partially dismiss Plaintiff’s complaint. (Doc.

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20.) Plaintiff filed an opposition to Defendants’ motion on August 11, 2020. (Doc. 27.)

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Defendants have not filed a reply, and the time to do so has passed. See Local Rule 230(l). For the

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reasons set forth below, the Court recommends that Defendants’ motion be granted.

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I.

BACKGROUND
The Court has screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A. (Doc. 11.)

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Plaintiff’s operative claims are (1) deliberate indifference to serious medical needs in violation of

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the Eighth Amendment, pursuant to 42 U.S.C. § 1983, and (2) violations of the Americans with

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Disabilities Act (ADA) and the Rehabilitation Act (RA). (Doc. 17; see also Doc. 14.) Plaintiff

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sues the defendants in both their individual and official capacities. (Doc. 1 at 2.)

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Defendants move to dismiss Plaintiff’s complaint on the grounds that (a) the Eleventh

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Amendment bars Plaintiff’s deliberate indifference claims against Defendants in their official

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capacities, and (b) Defendants cannot be sued under the ADA or the Rehabilitation Act. (Doc. 20

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at 1.)

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II.

LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal

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sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a Rule

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12(b)(6) motion, the Court’s review is generally limited to the “allegations contained in the

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pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.”

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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030-31 (9th Cir. 2008) (internal

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quotation marks and citations omitted). Dismissal is proper if there is a “lack of a cognizable legal

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theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court

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“accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light

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most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

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(9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners

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liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

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2010) (citation omitted). However, “the liberal pleading standard … applies only to a plaintiff’s

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factual allegations,” not his legal theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989).

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III.

DISCUSSION

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a. Official-Capacity Claims of Deliberate Indifference to Serious Medical Needs

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Defendants argue that Plaintiff’s deliberate indifference claims against Defendants in their

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official capacities are barred by the Eleventh Amendment, and that Defendants in their official

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capacities are not “persons” within the meaning of 42 U.S.C. § 1983. (Doc. 20 at 4-5.) The Court

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finds that Plaintiff’s official-capacity claims are not barred by the Eleventh Amendment or

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section 1983, but they are nevertheless incognizable because Plaintiff does not challenge a state

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law or procedure.
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When a plaintiff sues a state actor in her official capacity, the suit “represent[s] … another

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way of pleading an action against an entity of which [the] officer is an agent.” Kentucky v.

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Graham, 473 U.S. 159, 165 (1985) (internal quotation marks and citation omitted). “Suits against

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state officials in their official capacity therefore should be treated as suits against the State.”

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Hafer v. Melo, 502 U.S. 21, 25 (1991).

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“The Eleventh Amendment erects a general bar against federal lawsuits brought against a

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state.” Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003) (citation omitted). The doctrine of Ex

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parte Young, 209 U.S. 123 (1908), however, provides an exception to this general bar. Under the

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doctrine, “suits against an official for prospective relief are generally cognizable.” Porter, 319

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F.3d at 483; see also Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635,

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645 (2002) (to decide whether “Ex parte Young avoids an Eleventh Amendment bar to suit, a

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court need only” find “whether [the] complaint alleges an ongoing violation of federal law and

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seeks … prospective” relief) (internal quotation marks and citations omitted). Furthermore,

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“[w]hen sued for prospective injunctive relief, a state official in his official capacity is considered

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a ‘person’ for § 1983 purposes.” Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007).

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Because Plaintiff seeks prospective, injunctive relief in this action, his official-capacity

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claims are not barred by the Eleventh Amendment. For this same reason, Defendants in their

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official capacities are “persons” for purposes of section 1983.

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As Defendants note, though, to impose official-capacity liability against a state official, a

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plaintiff must allege that the government “entity’s ‘policy or custom’ … played a part in the

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violation of federal law.” Hafer, 502 U.S. at 25 (internal quotation marks and citations omitted).

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According to Defendants, Plaintiff challenges the “independent judgment” of the defendant-

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doctors, and not the policies or procedures of CDCR. (Doc. 20 at 4-5.) The Court agrees.

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Plaintiff alleges Dr. Marcelo denied him a wheelchair and other accommodations because,

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in his view, there is “no evidence of mobility impairment” or disability. (Doc. 1 at 5.) Plaintiff

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also alleges that Dr. Akabike denied him a wheelchair, writing in her notes that Plaintiff “said that

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he walks several laps at a time,” when, in fact, he did not. (Id. at 7.) According to Plaintiff, Dr.

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Akabike told him that his “pain is no medical indication for a wheelchair.” (Id.)
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Plaintiff thus challenges the individual medical determinations of Drs. Marcelo and

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Akabike. He does not challenge a state law or regulation, or a CDCR a policy or procedure.

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Because he does not contend that a law or policy “played a part” in the constitutional deprivation

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of which he complains, Hafer, 502 U.S. at 25, Plaintiff’s Eighth Amendment claims against the

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defendants in their official capacities are not cognizable. Since Plaintiff may be able to cure the

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deficiencies in his pleading, the Court should grant him leave to amend. See Lopez v. Smith, 203

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F.3d 1122, 1130 (9th Cir. 2000) (“district court should grant leave to amend even if no request to

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amend the pleading was made, unless it determines that the pleading could not possibly be cured

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by the allegation of other facts”) (internal quotation marks and citation omitted).

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b. Claims under the Americans with Disabilities Act and the Rehabilitation Act

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Defendants also contend that Plaintiff fails to state a cognizable claim under the ADA or

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the RA. (Doc. 20 at 5-6.) Although the Court disagrees with Defendants’ rationale with respect to

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Plaintiff’s official-capacity claims, it concurs that Plaintiff’s ADA and RA claims against

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Defendants in both capacities are not cognizable.

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First, Defendants argue that government officials may not be sued in their individual

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capacities for violations of the statutes. (Id.) The Court agrees. “[A] plaintiff cannot bring an

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action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights

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created by Title II of the ADA or section 504 of the Rehabilitation Act.” Vinson v. Thomas, 288

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F.3d 1145, 1156 (9th Cir. 2002). In addition, a plaintiff may not raise individual-liability claims

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directly under the ADA or RA. Hunter v. Clark, No. 1:09-cv-01556-MJS, 2010 WL 2196684, at

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*2 (E.D. Cal. 2010); see also Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107

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(2d Cir. 2001) (“neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for

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individual capacity suits against state officials”); Walker v. Snyder, 213 F.3d 344, 346 (7th Cir.

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2000) (“no personal liability under Title II”); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005

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n.8 (8th Cir. 1999) (defendants “may not be sued in their individual capacities directly under the

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provisions of Title II”). Plaintiff’s individual-capacity claims under the ADA and RA are

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therefore not cognizable. Because the individual-capacity claims are barred by statute and thus

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cannot be cured by amendment, the Court should dismiss the claims without leave to amend.
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Next, Defendants contend that “several circuits” and “two district courts within the Ninth

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Circuit” have denied public-official liability generally, so Plaintiff’s official-capacity claims

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under the statutes are also barred. (See Doc. 20 at 5-6.) However, each of the cases cited by

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Defendants clearly states that individual-capacity claims are barred—they do not provide that

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official-capacity claims are also barred. See Baird ex rel. Baird v. Rose, 192 F.3d 462, 471-72

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(4th Cir. 1999) (no private right of action under the ADA for retaliation against “persons … in

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their individual capacities”); Hiler v. Brown, 177 F.3d 542, 545-46 (6th Cir.1999) (no right of

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action “against supervisors, in their individual capacities, for retaliation under the Rehabilitation

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Act”); C.O. v. Portland Pub. Sch., 406 F. Supp. 2d 1157, 1172 (D. Or. 2005) (“individual

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defendants may not be sued in their individual capacities under the ADA or § 504 because neither

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statute provides for individual liability”); Doe ex rel. Doe v. State of Hawaii Dep’t of Educ., 351

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F. Supp. 2d 998, 1011 (D. Haw. 2004) (section 504 does not “provide[] for individual capacity

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suits against public officials”).

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Defendants state that “the Ninth Circuit has not addressed the issue of public official

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liability.” (Doc. 20 at 5.) On the contrary, one of the Ninth Circuit cases cited by Defendants

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themselves explicitly holds that Title II “does not prohibit … injunctive action against state

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officials in their official capacities,” and that such actions for prospective relief “may proceed

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under Ex parte Young.” Miranda B. v. Kitzhaber, 328 F.3d 1181, 1188-89 (9th Cir. 2003).

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Lastly, Defendants argue that the ADA and the Rehabilitation Act do not provide causes

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of action for prisoners challenging medical treatment. (Doc. 20 at 6.) As an initial matter, Title II

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and section 504 cover inmates of state prisons. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S.

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206, 213 (1998); Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997). Second, Plaintiff

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does not merely challenge Defendants’ medical treatment, but also the alleged failure to provide

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accommodations for his disabilities. Plaintiff alleges that officials denied him a “wheelchair ….

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[and] bottom bunk/bottom tier accommodations” and, as a result, he is “exclude[ed] … from …

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daily activities, services and programs” of the prison. (Doc. 1 at 5, 9.) Such allegations fall

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squarely within the ambit of the ADA and the Rehabilitation Act. See Pierce v. Cty. of Orange,

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526 F.3d 1190, 1216-17, 1220-22 (9th Cir. 2008) (failure to reasonably accommodate mobility5

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and dexterity-impaired inmates violated the ADA, where failure resulted in denial of access to

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recreational and vocational programs); Duffy v. Riveland, 98 F.3d 447, 454-56 (9th Cir. 1996)

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(reversing summary judgment against hearing-impaired inmate, who claimed that failure to

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provide sign-language interpreter at classification hearings violated ADA and RA); Love v.

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Westville Corr. Ctr., 103 F.3d 558, 560-61 (7th Cir. 1996) (upholding decision that prison

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violated ADA and RA by failing to provide reasonable accommodations to quadriplegic inmate,

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which denied him access to commissary, educational programs, work programs, etc.); Calloway

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v. Akanno, No. 1:13-cv-00747-SAB, 2016 WL 6599734, at *6 (E.D. Cal. 2016) (failure to

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provide “medical housing” and wheelchair before and after hemodialysis treatment, and failure to

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remove restraints during treatment, qualified as denials of accommodations affecting prison

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“services, programs, or activities”).

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Nevertheless, the Court finds that Plaintiff’s ADA and RA claims are not cognizable.

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First, as discussed in the previous section, Plaintiff does not allege that a policy or custom

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“played a part” in the alleged denial of reasonable accommodations. See Hayes v. Voong, 709 F.

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App’x 494, 495 (9th Cir. 2018) (affirming dismissal of plaintiff’s “ADA and RA claims against

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defendants in their official capacities because [he] failed to identify … a policy or custom”);

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Oliver v. Shelton, No. 2:18-cv-1809-KJM-DMC, 2020 WL 2216943, at *2 (E.D. Cal. 2020)

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(recommending dismissal of official-capacity claims under ADA because plaintiff did not allege a

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policy or custom was a “moving force” behind ADA violations); Calloway, 2016 WL 6599734, at

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*7 (recommending dismissal because complaint “does not identify any policy or custom of

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CDCR that violated [plaintiff’s] federal rights; nor does … [it allege] that any individual was

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acting pursuant to a policy or custom”); cf. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir.

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2001) (plaintiff’s section 1983 claims against County for ADA violations allowed to proceed

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because plaintiff “established that he was denied his requested accommodation based upon

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decisions of the County’s policymakers”).

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Second, Plaintiff does not provide sufficient facts to show that the denial of reasonable

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accommodations caused him to be excluded from a prison activity, service, or program. For

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example, Plaintiff does not state from which activity or program he has been excluded, nor does
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he describe how such exclusion was caused by the lack of accommodations. (See Doc. 1 at 9.)

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Although the Court, on a motion to dismiss, must draw all inferences in favor of Plaintiff,

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Plaintiff must provide facts, as opposed to conclusory statements, that allow the Court to draw a

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favorable inference. Iqbal, 556 U.S. 678.

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IV.

CONCLUSION AND ORDER

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For the reasons set forth above, the Court RECOMMENDS that:

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1. Defendants’ motion to dismiss (Doc. 20) be GRANTED;

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2. Plaintiff’s official-capacity claims of deliberate indifference be DISMISSED with

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leave to amend;
3. Plaintiff’s official-capacity claims for violations of the ADA and the RA be

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DISMISSED with leave to amend;
4. Plaintiff’s individual-capacity claims for violations of the ADA and the RA be

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DISMISSED without leave to amend;

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5. Plaintiff’s individual-capacity claims of deliberate indifference be allowed to proceed.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days

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of the date of service of these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned , “Objections to Magistrate Judge’s

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Findings and Recommendations.” Failure to file objections within the specified time may result in

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waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (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.
Dated:

October 14, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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