Moncrief v. California Department of Corrections and Rehabiliation et al

Filing 32

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/29/2013 RECOMMENDING that defendants' 25 , 29 amended motion to dismiss be granted; plaintiff's first amended complaint be dismissed; within 30 days of any order adopting these findings and recommendations, plaintiff be granted leave to file a second amended complaint in accordance with this findings and recommendations. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN PHILIP MONCRIEF,

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No. 2:12-cv-0414 MCE AC P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff, a state prisoner, proceeds through counsel with an amended civil rights

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complaint filed pursuant to 42 U.S.C. § 1983. Following resolution of defendants’ earlier filed

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motion to dismiss, plaintiff proceeds on counts one, two, seven, eight and nine of the first

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amended complaint filed September 4, 2012. Defendants’ amended motion to dismiss pursuant to

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Fed. R. Civ. P. 12(b)(6) came before the court for hearing on August 28, 2013. Lyndon Y. Chee

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appeared for plaintiff. Kelli Hammond appeared for defendants.

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I.

Allegations in the First Amended Complaint

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Plaintiff is a disabled prisoner currently housed at the California Medical Facility

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(“CMF”) in Vacaville, California. See ECF No. 9 at ¶ 1. He is a Chronic Medical Patient with

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severe chronic obstructive pulmonary disease and other medical issues. Id. at ¶ 16. As of

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November 2010, plaintiff had medical chronos restricting his housing placement to the ground

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floor and not being required to ascend or descend stairs. Id. On or about November 18, 2010,
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plaintiff was being transferred from Avenal State Prison (“ASP”) and the bus stopped overnight

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at Correctional Training Facility (“CTF”) in Soledad, California. Id. at ¶ 17. Plaintiff alleges that

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Defendants, one or more agents of CDCR, Grounds and/or DOES 1-50 (collectively,

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“Defendants”) ignored his protests regarding his medical restrictions, failed and refused to check

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his medical classifications and restrictions, and placed him in a cell on the third floor at CTF. Id.

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at ¶ 18. The next morning, with no escort or safe path to travel, he fell down the stairs and was

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knocked unconscious. Id. at ¶ 19. Plaintiff suffered severe spinal and head injuries including a

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subdural hematoma, post-concussion syndrome, a 70% compression of T12 and additional

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injuries of T11and L1, and a broken back in three places. Id. at ¶ 20. During a subsequent trip

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between Stanford Hospital and Solano State Prison (“SSP”), plaintiff was improperly transported

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by SSP agents and became paralyzed. Id. at ¶ 22. After treatment at various hospitals, plaintiff

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spent between three and five months at CTF, and some feeling in his limbs returned. Id. at ¶¶ 24-

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25. A specialist determined that he needed to be in a wheelchair. Id. at ¶ 25. Plaintiff was

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transferred to CMF in May 2011. Id. at ¶ 26. At CTF and CMF, plaintiff has been housed in

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general population. Id. at ¶¶ 25-26. Plaintiff alleges that CDCR regulations, as well as local and

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federal laws, prohibit housing wheelchair-bound prisoners in general housing areas. See Id.

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II.

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Defendants move to dismiss the remaining portion of the first amended complaint under

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Rule 12(b)(6)

Fed. R. Civ. P. 12(b)(6). See ECF No. 25. Plaintiff opposes the motion. ECF Nos. 27, 28.
The purpose of a motion to dismiss pursuant to under Rule 12(b)(6) is to test the legal

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sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

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1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 91

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F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to

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relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see

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also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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In determining whether a complaint states a claim on which relief may be granted, the

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court accepts as true the allegations in the complaint and construes the allegations in the light
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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.

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United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A motion to dismiss for failure to

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state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set

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of facts in support of the claim that would entitle him to relief. See Hishon, 467 U.S. at 73 (citing

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Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Palmer v. Roosevelt Lake Log Owners

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Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981).

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III.

Defendants’ Motion

Defendants assert: (1) plaintiff’s request for injunctive relief for violations of the ADA

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and RA in counts one and two may only be brought under the existing Armstrong class action; (2)

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plaintiff has failed to state facts sufficient to maintain causes of action for monetary damages

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against any defendant in any count; and (3) plaintiff failed to comply with the Tort Claims Act

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with regard to his claim for negligent supervision. See ECF No. 25. Plaintiff opposes the

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motion. See ECF Nos. 27, 28.

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Injunctive Relief under the ADA and RA

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In counts one and two, plaintiff seeks declaratory and injunctive relief from the California

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Department of Corrections (“CDCR”) under the Americans with Disabilities Act, 42 U.S.C. §

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12101 et seq. (“ADA”), and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.

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(“RA”), respectively. “Title II of the ADA and § 504 of the [RA] both prohibit discrimination on

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the basis of disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II of the

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ADA and the RA apply to inmates within state prisons. See Pennsylvania Dept. of Corrections v.

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Yeskey, 524 U.S. 206, 210 (1998); see also Armstrong v. Wilson, 124 F.3d at 1023.

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A district court may dismiss an individual suit for injunctive and equitable relief from an

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alleged unconstitutional prison condition where there is a pending class action suit involving the

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same subject matter. Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979); see also McNeil v.

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Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) (“Individual suits for injunctive and equitable

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relief from alleged unconstitutional prison conditions cannot be brought when there is an existing
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class action. To permit them would allow interference with the ongoing class action. Claims for

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equitable relief must be made through the class representative until the class action is over or the

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consent decree is modified.”).

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Plaintiff’s requests for declaratory and injunctive relief under the ADA and RA may be

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brought only as part of the existing class action Armstrong v. Davis, et al., No. 3:94-cv-2307 CW

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(N.D. Cal.). The Armstrong class action was filed in 1994 by “[a] certified class of all present

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and future California state prison inmates and parolees with disabilities [who] sued California

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state officials in their official capacities, seeking injunctive relief for violations of the RA and the

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ADA in state prisons.” See Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir. 1997); see also

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Armstrong v. Davis, et al., No. 3:94-cv-2307 CW (N.D. Cal.)). In Armstrong, No. 94-cv-2307,

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the Northern District of California found that defendants had violated the ADA and RA, and

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entered a remedial order and injunction under which CDCR (formerly CDC) must evaluate its

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programs and develop remedial plans to remedy violations of the ADA and RA while plaintiffs

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monitor defendants’ compliance. See Armstrong v. Davis, 318 F.3d 965, 968 (9th Cir. 2003); see

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also Armstrong Remedial Order (ECF No. 25-1), Armstrong Remedial Plan dated January 8,

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1999 (ECF No. 25-2), and the Armstrong Remedial Plan as amended January 3, 2001 (ECF No.

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25-3).1

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Plaintiff alleges that he is a “Chronic Medical Patient with severe chronic obstructive

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pulmonary disease (COPD) and other medical issues,” including mobility impairment. ECF No.

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9 at ¶ 16. He further alleges he is “a qualified individual with a disability within the meaning of

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Title II of the ADA” and “within the meaning of the [RA] because he has physical impairments

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that substantially limit one or more of his major life activities.” Id. at 34, 45. Based on these

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allegations, plaintiff is a member of the Armstrong class. Plaintiff seeks relief under the ADA

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and RA to accommodate his “current housing needs” in accordance with his disabilities and to

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Defendants’ request for the court to take judicial notice of the exhibits at ECF Nos. 25-1, 25-2
and 25-3 is granted. See Fed. R. Evid. 201(b); United States v. Howard, 381 F.3d 873, 876 n.1
(9th Cir. 2004) (a court may take judicial notice of court records in another case); Mack v. South
Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (in deciding a motion to dismiss, a
court may consider matters of public record, including pleadings and other papers filed with
another court).
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“modify their facilities, programs, activities and services as necessary” to accommodate all

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individuals with disabilities. ECF No. 9 at ¶¶ 37, 47. Such relief is squarely covered by the

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Armstrong class action. See ECF Nos. 25-2, 25-2, 25-3. Accordingly, plaintiff’s claims for

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declaratory and injunctive relief under the ADA and RA in counts one and two may be brought in

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the Armstrong class action and should be dismissed from this action.

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Monetary Damages under the ADA and RA

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Plaintiff also seeks monetary damages from CDCR in counts one and two. In order to

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state a claim of disability discrimination under Title II of the ADA, a plaintiff must allege four

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elements: “(1) he is an individual with a disability; (2) he is otherwise qualified to participate in

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or receive the benefit of some public entity’s services, programs, or activities; (3) he was either

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excluded from participation in or denied the benefits of the public entity’s services ... or was

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otherwise discriminated against by the public entity; and (4) such exclusion, denial ... or

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discrimination was by reason of his disability.” McGary v. City of Portland, 386 F.3d 1259, 1265

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(9th Cir. 2004) (citation, internal quotation marks and alteration omitted). The elements of an RA

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claim are “’materially identical to and the model for the ADA, except that it is limited to

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programs that receive federal financial assistance -- which the [California] prison system

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admittedly does....’” Armstrong v. Davis, 275 F.3d at 862, n. 17. To recover monetary damages

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under Title II of the ADA or the RA, a plaintiff must establish intentional discrimination on the

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part of the defendants. Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998).

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Here, plaintiff alleges only in conclusory terms that he was denied “necessary

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accommodations, modifications, services, and/or access necessary to enable him to participate on

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an equal basis in Defendants’ programs, services, and activities.” ECF No. 9 at ¶¶ 36-37, 49-50.

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This “formulaic recitation of the elements” of the cause of action does not suffice to state a claim.

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See Iqbal, 556 U.S. at 678. In addition, plaintiff fails to allege facts allowing an inference of

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intentional discrimination by CDCR, which is absolutely required to recover monetary damages.

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See Duvall v. Cnty of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001) (holding that claims for

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monetary relief under Title II of the ADA require the plaintiff to establish intentional

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discrimination based on deliberate indifference, namely: “both knowledge that a harm to a
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federally protected right is substantially likely, and a failure to act upon that… likelihood”).

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Accordingly, plaintiff’s claims for monetary damages under the ADA and RA in counts one and

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two should be dismissed for failure to state a claim.

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State Law Claims

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In counts seven, eight and nine, plaintiff seeks damages from defendants Grounds and

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Swarthout under state-law theories of negligence, negligent supervision, and intentional infliction

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of emotional distress.

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Plaintiff’s claims for negligence and negligent supervision require him to show that
defendants Grounds and Swarthout breached a legal duty to use due care which was the

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proximate or legal cause of his injury. Truong v. Nguyen, 156 Cal.App.4th 865, 875 (2007)

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(elements of negligence); Thompson v. Sacramento City Unified School Dist., 107 Cal.App.4th

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1352 (2003) (to establish a claim of negligent supervision, a plaintiff must prove the traditional

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elements of actionable negligence). To state a claim for intentional infliction of emotional

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distress, plaintiff must allege facts demonstrating: (1) extreme and outrageous conduct by the

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defendant with the intent of causing, or reckless disregard of the probability of causing, emotional

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distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and

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proximate causation of the emotional distress by the defendant’s outrageous conduct. Christensen

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v. Superior Court, 54 Cal.3d 868 (1991).

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The Federal Rules of Civil Procedure require a claim for relief to set forth “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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The statement must “give the defendant fair notice of what the… claim is and the grounds upon

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which it rests.” Twombly, 550 U.S. at 555 (internal quotations omitted). “Conclusory allegations

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of law… are insufficient to defeat a motion to dismiss” (Lee v. City of Los Angeles, 250 F.3d

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668, 679 (9th Cir. 2001)), and “a formulaic recitation of the elements of a cause of action” will

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not suffice to state a claim. Twombly, 550 U.S. at 555.

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Here, plaintiff’s state law tort claims consist solely of recitations of legal elements and

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conclusory statements as to the involvement of defendants Grounds and Swarthout, the wardens

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at CTF and SSP, respectively. ECF No. 9 at ¶¶ 10-11. There are no facts that plausibly suggest
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plaintiff is entitled to relief and the allegations are not sufficient to give defendants notice of the

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grounds upon which the claims rest. See Iqbal, 662 U.S. at 681. For these reasons, plaintiff’s

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state law claims should be dismissed for failure to state a claim.

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California Tort Claims Act

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Under the California Tort Claims Act (“CTCA”), no action for damages may be

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commenced against a public entity or employee unless a government claim satisfying section 910

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has been submitted and denied. Cal. Gov’t Code §§ 905, 911.2(a) 945.4 & 950.2; see also

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Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). The touchstone

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of the relevant analysis is whether the allegations in the complaint are “fairly reflected” in the

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government claim. Fall River Joint Unified School Dist. v. Superior Court, 206 Cal.App.3d 431,

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434 (1988). A complaint is subject to dismissal “if it alleges a factual basis for recovery which is

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not fairly reflected in the written claim.” Id. at 435.

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Plaintiff filed a government claim regarding his fall down the stairs at CTF. ECF No. 25-

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4 at 4. He explained he believed the state was responsible for his injuries based on the failure to

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“instruct, [e]nforce, and train state corrections worker and staff to be competent (sic).” ECF No.

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25-4 at 4 (emphasis added). Construing plaintiff’s government claim liberally, his allegation that

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the state failed to “[e]nforce… worker[s] and staff” fairly reflects a claim of negligent supervision

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based on the fall down the stairs, but only against defendant Grounds, who was the Warden at

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CTF where the fall occurred. The negligent supervision claim against defendant Swarthout

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should be dismissed not only for failure to state a claim, but also for non-compliance with the

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CTCA.

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Leave to Amend

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Plaintiff requests leave to amend his complaint a second time in the event that defendants’

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motion is granted. Leave to amend “shall be freely given when justice so requires.” Fed. R. Civ.

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P. 15(a). Where leave to amend has been previously granted, a district court’s discretion in

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whether to grant leave to amend a subsequent time is particularly broad. Chodos v. W. Publ’g

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Co., 292 F.3d 992, 1003 (9th Cir. 2002).

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In the interests of justice, plaintiff should be allowed one final opportunity to attempt to

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correct the deficiencies in his claims for monetary damages under the ADA and RA and his state

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law claims, except for the negligent supervision claim against defendant Swarthout. Leave to

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amend on the claims for declaratory and injunctive relief under the ADA and RA and on the

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negligent supervision claim against defendant Swarthout should not be granted for the reasons

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discussed.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s amended motion to dismiss (ECF Nos. 25, 29) be granted;

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2. Plaintiff’s first amended complaint be dismissed;

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3. Within thirty days of any order adopting these findings and recommendations, plaintiff be

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granted leave to file a second amended complaint setting forth his claims for monetary

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damages under the ADA and RA and his state law claims, except for the negligent

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supervision claim against defendant Swarthout.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 29, 2013

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