Heinke v. County of Tehama Sheriff's Dept., et al

Filing 32

ORDER signed by Judge Lawrence K. Karlton on 7/31/13 ORDERING for the reasons provided herein, the court DENIES Defendants' motion to dismiss each of Plaintiff's claims, except Plaintiff's ADA action against Defendant Delaughder. Defendants' motion to dismiss Plaintiff's ADA action against Defendant DeLaughder is GRANTED, WITHOUT LEAVE TO AMEND. (Becknal, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERT HEINKE, 11 Plaintiff, NO. CIV. S-12-2433 LKK/KJN 12 13 14 v. COUNTY OF TEHAMA SHERIFF'S DEPT., CORRECTIONAL OFFICER CLAYTON DELAUGHDER and DOES 1-30, O R D E R 15 Defendants. / 16 17 Plaintiff Robert Heinke brings this civil rights action 18 against Defendants, arising from injuries he alleges he suffered 19 as an inmate at the Tehama County jail. 20 Pending before the court is Defendants’ motion to dismiss 21 Plaintiff’s first amended complaint. 22 the reasons provided herein, the court GRANTS, in part, and DENIES, 23 in part, Defendants’ motion. 24 25 26 Defs’ Mot., ECF No. 27. For I. BACKGROUND The complaint is written in a haphazard manner and, thus, it is difficult for the court to be certain of the chronology of 1 1 the events alleged. 2 A. Factual Background1 3 The following is the court’s best effort. On June 10, 2011, Plaintiff was booked into the Tehama County 4 jail as a pre-trial detainee. When he entered the jail, Plaintiff 5 had no foot injury and he weighed 170 pounds. On either June 15th or June 16th, Plaintiff awoke from a nap. 6 7 He heard several of the inmates in the pod talking quietly about 8 “jumping him.” 9 DeLaughder, a correctional officer, indicated that he approved of 10 Plaintiff requested to leave the pod. Defendant Plaintiff’s request and removed Plaintiff from the pod. Plaintiff has no independent recollection of what happened 11 12 next. 13 tasered as he exited the pod and fell to the floor.2 14 Plaintiff was tasered by Defendant DeLaugher, his foot became 15 caught in a grate. 16 in a stationary position between the grate and the floor. 17 experienced immediate pain, followed by prominent and painful 18 swelling. 19 However, other inmates later told Plaintiff that he was When Plaintiff fell over his foot, which remained He After Plaintiff was injured, he was placed in a solitary cell. 20 Although he was in and out of consciousness, he knows that he 21 received no medical attention during the first ten days, nor was 22 1 23 24 25 These facts are taken from the allegations in the Plaintiff’s First Amended Complaint, ECF No. 24, at 2-6, unless otherwise specified. The allegations are taken as true for purposes of this motion only. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). 2 26 Plaintiff’s ability to prove his case is, of course, not at issue in this motion to dismiss. 2 1 he provided pain medication or anti-inflammatory drugs. Plaintiff 2 was deprived of food and water for the majority of the time that 3 he was housed in the segregation unit. 4 hungry and asking for food and water, and then being ridiculed by 5 the guards because “as he described their reaction, he was hobbling 6 around like a frog.” Id. at 4, ¶ 14. Plaintiff’s ankle injury and 7 his 8 correctional personnel who visited his cell on a regular basis. 9 Plaintiff was not seen by any medical person until June 21, 2011. deteriorating medical Plaintiff remembers being condition were obvious to the 10 On June 21, 2011, Plaintiff was seen by Laura Wood, P.A., who 11 was “genuinely surprised about the left heel being fractured and 12 crushed as it was.” 13 that day described Plaintiff as unaware of Defendant’s presence, 14 wet from having urinated on himself, unable to ambulate, and with 15 a bruise on the corner of his right eye and a small cut on his 16 hand, but the report did not mention Plaintiff’s broken ankle. 17 Plaintiff was taken to the hospital the next day. Id. at 4, ¶ 16. A Jail Incident Report for 18 On June 22, 2011, Plaintiff described his problem during a 19 medical visit to the Orthopedic Institute of California. Plaintiff 20 stated that he experienced acute pain and swelling in his left foot 21 after a 300-pound correctional officer (Defendant Delaughder) 22 stepped on his foot and twisted it, while it was in a grate. 23 that medical visit, Plaintiff still had significant pain and 24 swelling in his foot. 25 26 At Plaintiff further believes that he was tased immediately before he was moved to a new unit on June 27, 2011. 3 1 Plaintiff further alleges that after Heinke’s release (from 2 what is not specified), he was seen in the emergency room at St. 3 Elizabeth Community Hospital, where x-rays were taken and a CAT 4 scan was ordered. He was then seen for orthopedic consultation and 5 treatment, where he was diagnosed with an “intra-articular tongue- 6 type fracture of the left calcaneus with some intra-articular 7 displacement, but heel varus and heel height discrepancy.” 8 3, ¶ 10. 9 lost significant weight. Id. at Plaintiff was also found to be dehydrated and to have 10 Because Plaintiff became severely dehydrated, and the swelling 11 and pain in his ankle were left untreated, his mental health 12 deteriorated. 13 Plaintiff’s foot while at the jail, Plaintiff has significant 14 scarring, continuing pain, and difficulty ambulating. 15 Furthermore, as a result of the delay in treating Plaintiff went into jail a very fit man and emerged barely 16 able to walk. During his period of incarceration, Plaintiff’s 17 lower dentures disappeared, his prescription glasses were broken, 18 and he lost approximately 40 pounds. Plaintiff is also missing two 19 prescription bottles of Soma and Norco that were given to Deputy 20 C. Benson, the arresting officer. 21 did not receive any of his medications, including pain medications 22 that had been prescribed to him for degenerative disk disease in 23 his cervical spine. 24 his injured foot. While incarcerated, Plaintiff He also did not receive pain medication for 25 Plaintiff asserts the following causes of actions: (1) a 42 26 U.S.C. § 1983 action against all Defendants for their “deliberate 4 1 indifference to Mr. Heinke’s constitutional right to be free from 2 cruel and unusual punishment” and for Defendants’ use of “excessive 3 force in violation of the Fourth Amendment”; (2) a 42 U.S.C. § 1983 4 action 5 Plaintiff’s Fourth and Eighth Amendment rights; (3) an action 6 against 7 California Civil Code § 52; (4) an action against all Defendants 8 for violation of Title II of the Americans with Disabilities Act; 9 and (5) an action against Defendant DeLaughder for battery. 10 11 against Defendant Defendant DeLaughder, DeLaughder for alleging violation of violations The Bane of Act, B. Defendants’ Motion to Dismiss On June 10, 2013, Defendants filed the instant motion to 12 dismiss, ECF No. 27, which Plaintiff opposes, ECF No. 29. 13 II. STANDARD FOR A MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF 14 CIVIL PROCEDURE 12(b)(6) 15 A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges 16 a complaint's compliance with the federal pleading requirements. 17 Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short and 18 plain statement of the claim showing that the pleader is entitled 19 to relief.” 20 of what the ... claim is and the grounds upon which it rests.’” 21 Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), quoting Conley 22 v. Gibson, 355 U.S. 41, 47 (1957). 23 The complaint must give the defendant “‘fair notice To meet this requirement, the complaint must be supported by 24 factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. 25 Ct. 1937 (2009). 26 the factual allegations contained in the complaint.” Moreover, this court “must accept as true all of 5 Erickson v. 1 Pardus, 551 U.S. 89, 94 (2007).3 2 “While legal conclusions can provide the framework of a 3 complaint,” neither legal conclusions nor conclusory statements are 4 themselves sufficient, and such statements are not entitled to a 5 presumption of truth. 6 therefore prescribe a two step process for evaluation of motions 7 to dismiss. The court first identifies the non-conclusory factual 8 allegations, and then determines whether these allegations, taken 9 as true and construed in the light most favorable to the plaintiff, 10 “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. 11 at 679. Iqbal, 556 U.S. at 679. Iqbal and Twombly 12 “Plausibility,” as it is used in Twombly and Iqbal, does not 13 refer to the likelihood that a pleader will succeed in proving the 14 allegations. 15 factual allegations, when assumed to be true, “allow[ ] the court 16 to draw the reasonable inference that the defendant is liable for 17 the 18 plausibility standard is not akin to a ‘probability requirement,’ 19 but it asks for more than a sheer possibility that a defendant has 20 acted unlawfully.” Instead, it refers to whether the non-conclusory misconduct alleged.” Iqbal, 556 U.S. at 678. “The Id. (quoting Twombly, 550 U.S. at 557).4 A 21 3 22 23 24 25 Citing Twombly, 550 U.S. at 555-56, Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“[w]hat Rule 12(b)(6) does not countenance are dismissals based on a judge’s disbelief of a complaint’s factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test” under Rule 12(b)(6)). 4 26 Twombly imposed an apparently new “plausibility” gloss on the previously well-known Rule 8(a) standard, and retired the 6 1 complaint may fail to show a right to relief either by lacking a 2 cognizable legal theory or by lacking sufficient facts alleged 3 under a cognizable legal theory. 4 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 5 6 Balistreri v. Pacifica Police III. ANALYSIS A. Plaintiff’s Causes of Action Against the County 7 Defendants argue that Plaintiff’s first and fourth causes of 8 action should be dismissed insofar as they are asserted against the 9 County because Plaintiff has failed to allege “facts establishing 10 either that the alleged deprivation of civil rights was the result 11 of a County policy or that Plaintiff was deprived of any service 12 as the result of a disability.” 13 at 6.5 Def’s Mot., ECF No. 27, Att. 1, 14 15 16 17 18 19 20 21 22 23 24 25 26 long-established “no set of facts” standard of Conley v. Gibson, 355 U.S. 41 (1957), although it did not overrule that case outright. See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th Cir. 2009) (the Twombly Court “cautioned that it was not outright overruling Conley ...,” although it was retiring the “no set of facts” language from Conley). The Ninth Circuit has acknowledged the difficulty of applying the resulting standard, given the “perplexing” mix of standards the Supreme Court has applied in recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012). Starr compared the Court's application of the “original, more lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), with the seemingly “higher pleading standard” in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Twombly and Iqbal. See also Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (applying the “no set of facts” standard to a Section 1983 case). 5 Defendants further argue that Plaintiff’s second, third, and fifth causes of action are asserted against Defendant DeLaughder alone, and not against the County. Def’s Mot., ECF No. 27, Att. 1, at 6. Plaintiff agrees that his remaining causes of action are not asserted against the County. 7 1 i. First Cause of Action Against the County: Municipal 2 Liability 3 As to the first cause of action, Defendants argue that 4 Plaintiff has failed to sufficiently allege that County policies 5 caused Plaintiff to suffer an unconstitutional punishment. 6 Under Monell v. Dep’t of Social Services, 436 U.S. 658, 691 7 (1978), a Section 1983 plaintiff cannot state a claim for municipal 8 liability based on a theory of respondeat superior. 9 government entity may be held liable under Section 1983, however, 10 “when execution of a government’s policy or custom, whether made 11 by its lawmakers or by those whose edicts or acts may fairly be 12 said to represent official policy, inflicts the injury.” 13 694. 14 A municipal Id. at That is, to hold a municipality liable for the actions of its 15 officers 16 following: (1) that a municipal employee was acting pursuant to an 17 expressly adopted official policy; (2) that a municipal employee 18 was acting pursuant to a longstanding practice or custom; or (3) 19 that a municipal employee was acting as a “final policymaker.” 20 Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). 21 22 23 24 25 26 and employees, a plaintiff must allege one of Plaintiff’s first cause of action is predicated upon his assertion that: The Sheriff’s Department operates the Tehama County Jail under a policy whereby the civil rights of inmates are routinely violated, where the correctional staff apply mental and physical abuse upon inmates for the intentional purpose of controlling them by force and harming them. Under this policy inmates such as plaintiff are denied 8 the 1 timely access to medical treatment after instances of physical injury or correctional officer abuse. The County Sheriff’s Department instituted and permitted a policy allowing correctional officials to employ excessive force and engage in sadistic acts. These acts included the ankle battery, deprivation of food, water and opportunities for maintaining hygiene, and withholding medical care and pain medication. 2 3 4 5 6 Defs’ Mot., ECF No. 27, Att. 1, at 6, ¶ 24. 7 While the Plaintiff’s pleadings are less than perfectly clear, 8 it appears that they can be construed as sufficient. 9 complaint can be read as asserting that Defendant DeLaughder 10 injured 11 practice or custom of the Defendant County. 12 that he was denied timely access to medical treatment after his 13 ankle was injured; that excessive force was used against him; and 14 that he was deprived of food, water, and hygiene--all pursuant to 15 ongoing practices or customs of the Defendant County. For pleading 16 purposes, the court finds Plaintiff’s allegations sufficient to 17 provide the Defendant County with fair notice of what the claim is 18 and the grounds upon which it rests. 19 Plaintiff and was acting pursuant to a In sume, the longstanding Moreover, he alleges Defendants properly note that liability for improper custom 20 may not be predicated on isolated or sporadic incidents. 21 v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) 22 (quoting Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)). 23 Ultimately, upon the court’s evaluation of a motion for summary 24 judgment or at trial, a plaintiff can demonstrate the existence of 25 such 26 evidence of repeated constitutional violations for which the errant a municipal policy by showing 9 “widespread Hunter practices or 1 municipal officers were not discharged or reprimanded.” Menotti 2 v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (internal 3 citations omitted). 4 present each contour of a widespread practice at the pleading 5 stage. However, a plaintiff is not required to 6 The court finds it sufficient that Plaintiff has articulated 7 the particular nature of the County Defendant’s alleged customs or 8 practices (i.e., the County’s denial of timely access to medical 9 care, excessive force, and deprivation of necessities) as tied to 10 specific factual allegations of Plaintiff’s injuries. 11 specific nature of Plaintiff’s allegations indicate that the 12 allegations, 13 threadbare, within the meaning of Iqbal. 14 however scattered, are neither The fact- conclusory nor Defendants’ motion to dismiss Plaintiff’s first cause of 15 action as against the County Defendant is, therefore, DENIED. 16 ii. Fourth Cause of Action Against the County: Americans 17 with Disabilities Act (“ADA”) 18 Defendants argue that Plaintiff’s Americans with Disabilities 19 Act (“ADA”) claim against the County “fails as a matter of law 20 because the failure to provide medical treatment for an otherwise 21 qualifying disability is not a basis for liability under the ADA.” 22 Defs’ Mot., ECF No. 27, Att. 1, at 8. 23 24 25 26 Title II of the ADA provides: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public 10 1 entity, or be subjected to discrimination by any such entity. 2 3 42 U.S.C. § 12132 (1990). 4 To establish a violation of Title II of the ADA, a plaintiff 5 must show that (1) he or she is a qualified individual with a 6 disability; (2) he or she was excluded from participation in or 7 otherwise discriminated against with regard to a public entity’s 8 services, programs, or activities; and (3) such exclusion or 9 discrimination was by reason of his or her disability. Lovell v. 10 Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (citing Weinreich v. 11 Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th 12 Cir. 13 disability, not inadequate treatment for disability. 14 Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (citing 15 Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act 16 would not be violated by a prison’s simply failing to attend to the 17 medical needs of its disabled prisoners . . . . 18 create a remedy for medical malpractice.”)). 1997)). The ADA prohibits discrimination because of Simmons v. The ADA does not 19 Defendants do not contest Plaintiff’s ability to establish 20 that he is a qualified individual with a disability but, instead, 21 contest 22 discrimination by reason of his disability. 23 No. 27, Att. 1, at 8-10, Defs’ Reply, ECF No. 30, at 5-7. whether Plaintiff has demonstrated exclusion or See Defs’ Mot., ECF 24 In his opposition to Defendants’ motion, Plaintiff asserts 25 that his ADA claim is based on “his having no access at all to in 26 house or outside medical treatment during the critical days after 11 1 his leg was damaged.” Pl’s Opp’n, ECF No. 29, at 5. As Defendants 2 properly 3 allegation that he received inadequate treatment for his injury or 4 disability, which would be insufficient to set forth an ADA claim. 5 note, Plaintiff’s claim could be construed as an However, in his First Amended Complaint, Plaintiff also 6 alleges that, upon asking for food and water during his 7 segregation, he was ridiculed by the guards for “hobbling around 8 like a frog,” which suggests that Plaintiff was excluded from 9 receiving foot and water by reason of his disability. Indeed, at 10 oral argument, Plaintiff’s counsel affirmed that Plaintiff is 11 asserting, in his ADA claim, that a direct causal connection exists 12 between the injury he sustained and his later deprivation of food 13 and water. 14 Construing the facts in the light most favorable to Plaintiff, 15 the court finds that Plaintiff’s ADA claim against the County goes 16 beyond allegations of general inadequacy of medical treatment 17 provided to him at the jail. 18 denied access to medical treatment for his ankle, coupled with his 19 allegations that the guards mocked him for his disability in 20 response to his requests for necessities, sufficiently demonstrates 21 that Plaintiff was denied the benefits of necessities and medical 22 care by reason of his disability. 23 alleges more than the County’s failure to attend to the medical 24 needs of disabled prisoners. 25 26 Plaintiff’s allegations that he was Thus, Plaintiff’s ADA claim Defendants’ motion to dismiss Plaintiff’s ADA claim against the County is, therefore, DENIED. 12 1 B. Plaintiff’s Causes of Action Against Defendant DeLaughder 2 Defendants argue that Plaintiff’s third, fourth, and fifth 3 causes of action against Defendant DeLaughder should be dismissed 4 because “Plaintiff has failed to plead facts establishing the 5 elements of the claims.” Defs’ Mot., ECF No. 27, Att. 1, at 10. 6 i. 7 California Civil Code Section 52.1 (Bane Act) 8 The Tom Bane Civil Rights Act, section 52.1 of the California 9 Civil Third Cause of Action Against Defendant DeLaughder: Code, provides “by a civil threats, action for intimidation, damages or based coercion” on 10 interference 11 plaintiffs’ rights under the Constitution and laws of California 12 and the federal government. Cal.Civ.Code § 52.1(a)&(b) (2005).6 13 6 14 15 16 17 18 19 20 21 22 23 24 25 26 with California’s Bane Civil Rights Act provides: (a) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. . . . (b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured. 13 1 Section 52.1 was intended to be a state law analogue to 42 U.S.C. 2 § 1983. Holland v. City of San Francisco, No. 10-cv-2603-THE, 2013 3 WL 968295, at *9, 2013 U.S. Dist. LEXIS 34294, at *27 (N.D.Cal. 4 March 12, 2013) (citing Assembly Committee on the Judiciary, Bill 5 Analysis, AB 2719 (as introduced Feb. 25, 2000)). 6 section 1983, however, section 52.1 applies to private actors as 7 well as to government agents, there is no qualified immunity, and 8 liability 9 constitutional and statutory rights accomplished by “threats, under section 52.1 is limited to In contrast to violations of Venegas v. County of Los Angeles, 153 10 intimidation, or coercion.” 11 Cal.App.4th 1230, 1242 (2007). The essence of a Bane Act claim is 12 that specified 13 “threats, intimidation or coercion”), tried to or did prevent the 14 plaintiff from doing something he or she had the right to do under 15 the law or to force the plaintiff to do something that he or she 16 was not required to do under the law.” 17 Union Sch. Dist., 149 Cal.App.4th 860, 883 (2007) (citing to Jones 18 v. Kmart Corp., 17 Cal.4th 329, 334, 70 Cal.Rptr.2d 844 (1998)). the defendant, by the improper means (i.e., Austin B. v. Escondido 19 There are four elements to a claim brought under the Bane Act: 20 (1) the defendant interfered with or attempted to interfere with 21 plaintiff’s constitutional or statutory right by threatening or 22 committing violent acts; (2) the plaintiff reasonably believed that 23 if he exercised his constitutional right the defendant would commit 24 violence against him, or the defendant injured plaintiff to prevent 25 26 Cal. Civ. Code § 52.1(a)&(b) (2005). 14 1 him from exercising his constitutional right; (3) the plaintiff was 2 harmed; and (4) the defendant’s conduct was a substantial factor 3 in causing the plaintiff’s harm. 4 ‘interferes’ as used in the Bane Act means ‘violates.’”); see also 5 Stamps v. Superior Court, 136 Cal.App.4th 1441, 1447 (2006) (the 6 Bane Civil Rights Act is intended to supplement Ralph Civil Rights 7 Act and to allow an individual to seek relief to prevent violence 8 before it occurs). 9 she interfered with or attempted to interfere with the plaintiff’s 10 constitutional rights by the requisite threats, intimidation, or 11 coercion.” 12 956 (2012). 13 See id. at 882-83 (“The word In general, “[a] defendant is liable if he or Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947, The Court of Appeal in Shoyoye concluded that “the statute was 14 intended to address only egregious interferences with 15 constitutional rights, not just any tort.” 203 Cal.App.4th at 959, 16 137 Cal.Rptr.3d at 849. 17 cannot simply be inherent in the constitutional violation alleged, 18 others do not. 19 F.Supp.2d 1238, 1253-54 (C.D.Cal 2011), with Cole v. Doe 1 thru 2 20 Officers of City of Emeryville Police Dep’t., 387 F.Supp.2d 1084, 21 1103 (N.D.Cal. 2005). While some courts hold that coercion Compare id. and Gant v. County of Los Angeles, 765 22 Defendants argue that Plaintiff has failed to plead facts 23 “demonstrating any threats, intimidation, or coercion by Officer 24 DeLaughder . . . . to prevent Plaintiff from exercising any legal 25 right.” 26 Plaintiff argues that he sufficiently alleged that Defendant Defs’ Mot., ECF No. 27, Att. 1, at 11. 15 In opposition, 1 DeLaughder intimidated Plaintiff by “the withholding of nutrition 2 and medical care from the isolated injured plaintiff, as a means 3 to keep him quiet so he could not report DeLaughder’s mistreatment 4 that caused damage to his foot.” 5 Pl’s Opp’n, ECF No. 29, at 5. Plaintiff has plead facts sufficient to demonstrate that he 6 was threatened, intimidated, or coerced by Defendant DeLaughder. 7 Defendants correctly note that Plaintiff has not specifically 8 alleged that he contemplated filing a complaint against Defendant 9 DeLaughder based on his ankle injury, nor has Plaintiff explicitly 10 alleged that Defendant DeLaughder’s actions prevented Plaintiff 11 from filing such a complaint. 12 Nevertheless, Plaintiff has a statutory right to file actions 13 against a 14 violations,7 and Plaintiff has sufficiently shown that Defendant 15 DeLaughder took 16 Plaintiff. From the facts alleged, the court finds it reasonable 17 to infer that Defendant DeLaughder’s threats, intimidation, or 18 coercion were, at a basic level, intended to quell any viable 19 courses 20 plausibly give rise to an entitlement to relief under the Bane Act. of correctional actions dissent. officer to Thus, for threaten, the alleged constitutional intimidate, factual or allegations pleaded Defendants’ motion to dismiss Plaintiff’s third cause of 21 22 action against Defendant DeLaughder is DENIED. 23 //// 24 //// 25 26 coerce 7 See, e.g., Public Law 96-247, 94 Stat. 349 (1980). 16 1 ii. Fourth Cause of Action Against Defendant DeLaughder: 2 Americans with Disabilities Act (“ADA”) 3 In response to Defendants’ motion to dismiss Plaintiff’s ADA 4 claim against Defendant DeLaughder, Plaintiff states that he “is 5 not alleging these claims against DeLaughder as an individual” and 6 that the allegations in his First Amended Complaint stating that 7 Defendant 8 stricken.” DeLaughder “is liable for such damages should be Pl’s Opp’n, ECF No. 29, at 6. 9 Indeed, there is no individual liability under the ADA. See 10 Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (“[A] 11 plaintiff cannot bring an action under 42 U.S.C. § 1983 against a 12 State official in her individual capacity to vindicate rights 13 created by Title II of the ADA”). 14 Defendants’ motion to dismiss Plaintiff’s fourth cause of 15 action against Defendant DeLaughder is GRANTED, WITHOUT LEAVE TO 16 AMEND. 17 iii. Fifth Cause of Action Against Defendant DeLaughder: 18 Battery 19 Under California law, battery is defined as the “willful and 20 unlawful use of force or violence upon the person of another.” 21 Cal. Penal Code § 242 (2008). 22 battery, 23 intentionally performed an act that resulted in a harmful or 24 offensive contact with the plaintiff’s person; (2) plaintiff did 25 not consent to the contact; and (3) the harmful or offensive 26 contact caused injury, damage, loss or harm to plaintiff.” Plaintiff must To succeed on a civil claim for demonstrate 17 that “(1) defendant Brown 1 v. Ransweiler, 171 Cal.App.4th 516, 526-27 (2009). 2 Amongst other factual allegations, Plaintiff has asserted that 3 Defendant DeLaughder stepped on his foot and twisted it, while it 4 was in a grate. See First Am. Compl., ECF No. 24, at 3. Plaintiff 5 has also asserted, throughout his First Amended Complaint, that 6 Defendant’s touching caused injury to Plaintiff’s ankle. 7 these 8 DeLaughder’s actions were intentionally performed, they resulted 9 in a harmful or offensive touching of Plaintiff, Plaintiff did not 10 consent to the touching, and the touching caused harm to Plaintiff. 11 Thus, Plaintiff has sufficiently alleged a battery claim against 12 Defendant DeLaughder. 13 14 allegations, it is reasonable to infer that From Defendant Defendants’ motion to dismiss Plaintiff’s fifth cause of action against Defendant DeLaughder is DENIED. 15 IV. CONCLUSION 16 Accordingly, for the reasons provided herein, the court DENIES 17 Defendants’ motion to dismiss each of Plaintiff’s claims, except 18 Plaintiff’s ADA action against Defendant Delaughder. 19 motion 20 DeLaughder is GRANTED, WITHOUT LEAVE TO AMEND. to dismiss Plaintiff’s 21 IT IS SO ORDERED. 22 DATED: July 31, 2013. 23 24 25 26 18 ADA action Defendants’ against Defendant

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