Roberts v. California Department of Corrections et al

Filing 8

ORDER signed by Magistrate Judge Gregory G. Hollows on 3/20/2012 ORDERING that the amended complaint is DISMISSED with leave to file a second amended complaint within 28 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL DEAN ROBERTS,

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Plaintiff,

No. CIV S-12-0247 KJM GGH P

vs.

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CALIFORNIA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceedings pro se. This action was removed by

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defendants from state court as plaintiff seeks relief pursuant to Title II of the Americans with

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Disabilities Act (ADA). The original complaint was dismissed with leave to amend and plaintiff

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has filed an amended complaint.

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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

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v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843 (1969).

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Plaintiff’s original complaint stated that he was confined to a wheelchair and

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because of this disability was denied certain freedoms, property and programs that were provided

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to other inmates. However, the original complaint did not provide details concerning the denial
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of programs and property and how it was due to plaintiff’s disability. The original complaint was

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dismissed, but plaintiff was allowed to file an amended complaint to describe in more detail the

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services he was denied and how it was related to his disability.

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Unfortunately, plaintiff’s amended complaint contains less information than the

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original complaint and consists mostly of exhibits. Plaintiff again seeks damages for alleged

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violations of the ADA. Plaintiff discusses how his CDCR classification continually changed

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based on his disability, but simply changing his status does set forth an ADA violation and

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plaintiff fails to discuss the substance of these changes in designation and how it affected him.

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To the extent these designations determined what facility plaintiff would be placed in, he must

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describe what services were unavailable as a result of being in a certain facility. Plaintiff also

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discusses how his health deteriorated, but then states how prison officials provided him

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accommodations, such as someone to turn on the shower, grab bars for the toilet, or a wheelchair

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and then a walker. None of this involves a violation of the ADA. Plaintiff presents one sentence

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where he states that he was denied religious services, legal library services, as well as yard

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programs and canteen, but again fails to describe this in any detail. Plaintiff’s property was also

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missing for about a month, but then it seems was returned, so it is not clear how this states a

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claim.

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The amended complaint is dismissed but plaintiff will be provided 28 days to file

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a second amended complaint. Plaintiff should not attempt to state his claim using exhibits.

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Plaintiff must describe in detail how he was denied services or programs due to a disability.

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Failure to file a second amended complaint will result in a recommendation that this action be

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dismissed.

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Title II of the ADA “prohibit[s] discrimination on the basis of disability.” Lovell

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v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides that “no qualified individual

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with a disability shall, by reason of such disability, be excluded from participation in or be denied

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the benefits of the services, programs, or activities of a public entity, or be subject to
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discrimination by such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to inmates within

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state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 1955,

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141 L.Ed.2d 215 (1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir.1997);

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Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir. 1996).

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In order to state a claim that a public program or service violated Title II of the

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ADA, a plaintiff must show: (1) he is a “qualified individual with a disability”; (2) he was either

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excluded from participation in or denied the benefits of a public entity’s services, programs, or

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activities, or was otherwise discriminated against by the public entity; and (3) such exclusion,

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denial of benefits, or discrimination was by reason of his disability. McGary v. City of Portland,

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386 F.3d 1259, 1265 (9th Cir. 2004). If plaintiff seeks damages, the facts alleged must rise to the

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level of deliberate indifference to plaintiff’s rights under the ADA. See Duvall v. County of

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Kitsap, 260 F.3d 1124, 1138–39 (9th Cir. 2001) (claims for monetary relief under Title II of the

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ADA require the plaintiff to establish intentional discrimination based on deliberate indifference,

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namely, “both knowledge that a harm to a federally protected right is substantially likely, and a

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failure to act upon that ... likelihood”).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in

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order to make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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In accordance with the above, IT IS HEREBY ORDERED that the amended

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complaint is dismissed for the reasons discussed above, with leave to file a second amended

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complaint, within twenty-eight days from the date of service of this order. Failure to file a

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second amended complaint will result in a recommendation that this action be dismissed.

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DATED: March 20, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB

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