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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT HEINKE,

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Plaintiff,
NO. CIV. S-12-2433 LKK/KJN

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v.
COUNTY OF TEHAMA SHERIFF'S
DEPT., CORRECTIONAL OFFICER
CLAYTON DELAUGHDER and
DOES 1-30,

O R D E R

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Defendants.
/

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Plaintiff Robert Heinke brings this civil rights action

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against Defendants, arising from injuries he alleges he suffered

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as an inmate at the Tehama County jail.

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Pending before the court is Defendants’ motion to dismiss

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Plaintiff’s first amended complaint.

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the reasons provided herein, the court GRANTS, in part, and DENIES,

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in part, Defendants’ motion.

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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
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the events alleged.

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A. Factual Background1

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The following is the court’s best effort.

On June 10, 2011, Plaintiff was booked into the Tehama County

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jail as a pre-trial detainee.

When he entered the jail, Plaintiff

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had no foot injury and he weighed 170 pounds.
On either June 15th or June 16th, Plaintiff awoke from a nap.

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He heard several of the inmates in the pod talking quietly about

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“jumping him.”

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DeLaughder, a correctional officer, indicated that he approved of

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Plaintiff requested to leave the pod.

Defendant

Plaintiff’s request and removed Plaintiff from the pod.
Plaintiff has no independent recollection of what happened

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next.

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tasered as he exited the pod and fell to the floor.2

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Plaintiff was tasered by Defendant DeLaugher, his foot became

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caught in a grate.

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in a stationary position between the grate and the floor.

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experienced immediate pain, followed by prominent and painful

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swelling.

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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.

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Although he was in and out of consciousness, he knows that he

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received no medical attention during the first ten days, nor was

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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).
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Plaintiff’s ability to prove his case is, of course, not at
issue in this motion to dismiss.
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he provided pain medication or anti-inflammatory drugs. Plaintiff

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was deprived of food and water for the majority of the time that

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he was housed in the segregation unit.

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hungry and asking for food and water, and then being ridiculed by

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the guards because “as he described their reaction, he was hobbling

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around like a frog.” Id. at 4, ¶ 14. Plaintiff’s ankle injury and

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his

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correctional personnel who visited his cell on a regular basis.

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Plaintiff was not seen by any medical person until June 21, 2011.

deteriorating

medical

Plaintiff remembers being

condition

were

obvious

to

the

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On June 21, 2011, Plaintiff was seen by Laura Wood, P.A., who

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was “genuinely surprised about the left heel being fractured and

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crushed as it was.”

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that day described Plaintiff as unaware of Defendant’s presence,

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wet from having urinated on himself, unable to ambulate, and with

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a bruise on the corner of his right eye and a small cut on his

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hand, but the report did not mention Plaintiff’s broken ankle.

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Plaintiff was taken to the hospital the next day.

Id. at 4, ¶ 16.

A Jail Incident Report for

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On June 22, 2011, Plaintiff described his problem during a

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medical visit to the Orthopedic Institute of California. Plaintiff

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stated that he experienced acute pain and swelling in his left foot

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after a 300-pound correctional officer (Defendant Delaughder)

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stepped on his foot and twisted it, while it was in a grate.

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that medical visit, Plaintiff still had significant pain and

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swelling in his foot.

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At

Plaintiff further believes that he was tased immediately
before he was moved to a new unit on June 27, 2011.
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Plaintiff further alleges that after Heinke’s release (from

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what is not specified), he was seen in the emergency room at St.

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Elizabeth Community Hospital, where x-rays were taken and a CAT

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scan was ordered. He was then seen for orthopedic consultation and

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treatment, where he was diagnosed with an “intra-articular tongue-

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type fracture of the left calcaneus with some intra-articular

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displacement, but heel varus and heel height discrepancy.”

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3, ¶ 10.

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lost significant weight.

Id. at

Plaintiff was also found to be dehydrated and to have

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Because Plaintiff became severely dehydrated, and the swelling

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and pain in his ankle were left untreated, his mental health

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deteriorated.

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Plaintiff’s foot while at the jail, Plaintiff has significant

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scarring, continuing pain, and difficulty ambulating.

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Furthermore, as a result of the delay in treating

Plaintiff went into jail a very fit man and emerged barely

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able to walk.

During his period of incarceration, Plaintiff’s

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lower dentures disappeared, his prescription glasses were broken,

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and he lost approximately 40 pounds. Plaintiff is also missing two

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prescription bottles of Soma and Norco that were given to Deputy

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C. Benson, the arresting officer.

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did not receive any of his medications, including pain medications

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that had been prescribed to him for degenerative disk disease in

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his cervical spine.

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his injured foot.

While incarcerated, Plaintiff

He also did not receive pain medication for

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Plaintiff asserts the following causes of actions: (1) a 42

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U.S.C. § 1983 action against all Defendants for their “deliberate
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indifference to Mr. Heinke’s constitutional right to be free from

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cruel and unusual punishment” and for Defendants’ use of “excessive

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force in violation of the Fourth Amendment”; (2) a 42 U.S.C. § 1983

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action

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Plaintiff’s Fourth and Eighth Amendment rights; (3) an action

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against

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California Civil Code § 52; (4) an action against all Defendants

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for violation of Title II of the Americans with Disabilities Act;

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and (5) an action against Defendant DeLaughder for battery.

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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

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dismiss, ECF No. 27, which Plaintiff opposes, ECF No. 29.

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II. STANDARD FOR A MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF

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CIVIL PROCEDURE 12(b)(6)

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A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges

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a complaint's compliance with the federal pleading requirements.

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Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short and

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plain statement of the claim showing that the pleader is entitled

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to relief.”

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of what the ... claim is and the grounds upon which it rests.’”

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Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), quoting Conley

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v. Gibson, 355 U.S. 41, 47 (1957).

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The complaint must give the defendant “‘fair notice

To meet this requirement, the complaint must be supported by

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factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

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Ct. 1937 (2009).

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the factual allegations contained in the complaint.”

Moreover, this court “must accept as true all of

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Erickson v.

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Pardus, 551 U.S. 89, 94 (2007).3

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“While legal conclusions can provide the framework of a

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complaint,” neither legal conclusions nor conclusory statements are

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themselves sufficient, and such statements are not entitled to a

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presumption of truth.

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therefore prescribe a two step process for evaluation of motions

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to dismiss. The court first identifies the non-conclusory factual

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allegations, and then determines whether these allegations, taken

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as true and construed in the light most favorable to the plaintiff,

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“plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.

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at 679.

Iqbal, 556 U.S. at 679.

Iqbal and Twombly

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“Plausibility,” as it is used in Twombly and Iqbal, does not

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refer to the likelihood that a pleader will succeed in proving the

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allegations.

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factual allegations, when assumed to be true, “allow[ ] the court

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to draw the reasonable inference that the defendant is liable for

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the

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plausibility standard is not akin to a ‘probability requirement,’

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but it asks for more than a sheer possibility that a defendant has

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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

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3

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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)).
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Twombly imposed an apparently new “plausibility” gloss on
the previously well-known Rule 8(a) standard, and retired the
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complaint may fail to show a right to relief either by lacking a

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cognizable legal theory or by lacking sufficient facts alleged

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under a cognizable legal theory.

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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

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Defendants argue that Plaintiff’s first and fourth causes of

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action should be dismissed insofar as they are asserted against the

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County because Plaintiff has failed to allege “facts establishing

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either that the alleged deprivation of civil rights was the result

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of a County policy or that Plaintiff was deprived of any service

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as the result of a disability.”

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at 6.5

Def’s Mot., ECF No. 27, Att. 1,

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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).
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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.
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i. First Cause of Action Against the County: Municipal

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Liability

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As to the first cause of action, Defendants argue that

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Plaintiff has failed to sufficiently allege that County policies

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caused Plaintiff to suffer an unconstitutional punishment.

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Under Monell v. Dep’t of Social Services, 436 U.S. 658, 691

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(1978), a Section 1983 plaintiff cannot state a claim for municipal

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liability based on a theory of respondeat superior.

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government entity may be held liable under Section 1983, however,

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“when execution of a government’s policy or custom, whether made

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by its lawmakers or by those whose edicts or acts may fairly be

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said to represent official policy, inflicts the injury.”

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694.

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A municipal

Id. at

That is, to hold a municipality liable for the actions of its

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officers

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following: (1) that a municipal employee was acting pursuant to an

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expressly adopted official policy; (2) that a municipal employee

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was acting pursuant to a longstanding practice or custom; or (3)

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that a municipal employee was acting as a “final policymaker.”

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Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004).

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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
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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.

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3
4
5
6

Defs’ Mot., ECF No. 27, Att. 1, at 6, ¶ 24.

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While the Plaintiff’s pleadings are less than perfectly clear,

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it appears that they can be construed as sufficient.

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complaint can be read as asserting that Defendant DeLaughder

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injured

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practice or custom of the Defendant County.

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that he was denied timely access to medical treatment after his

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ankle was injured; that excessive force was used against him; and

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that he was deprived of food, water, and hygiene--all pursuant to

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ongoing practices or customs of the Defendant County. For pleading

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purposes, the court finds Plaintiff’s allegations sufficient to

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provide the Defendant County with fair notice of what the claim is

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and the grounds upon which it rests.

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Plaintiff

and

was

acting

pursuant

to

a

In sume, the

longstanding

Moreover, he alleges

Defendants properly note that liability for improper custom

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may not be predicated on isolated or sporadic incidents.

21

v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011)

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(quoting Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)).

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Ultimately, upon the court’s evaluation of a motion for summary

24

judgment or at trial, a plaintiff can demonstrate the existence of

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such

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evidence of repeated constitutional violations for which the errant

a

municipal

policy

by

showing

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“widespread

Hunter

practices

or

1

municipal officers were not discharged or reprimanded.”

Menotti

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v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (internal

3

citations omitted).

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present each contour of a widespread practice at the pleading

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stage.

However, a plaintiff is not required to

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The court finds it sufficient that Plaintiff has articulated

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the particular nature of the County Defendant’s alleged customs or

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practices (i.e., the County’s denial of timely access to medical

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care, excessive force, and deprivation of necessities) as tied to

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specific factual allegations of Plaintiff’s injuries.

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specific nature of Plaintiff’s allegations indicate that the

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allegations,

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threadbare, within the meaning of Iqbal.

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however

scattered,

are

neither

The fact-

conclusory

nor

Defendants’ motion to dismiss Plaintiff’s first cause of

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action as against the County Defendant is, therefore, DENIED.

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ii. Fourth Cause of Action Against the County: Americans

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with Disabilities Act (“ADA”)

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Defendants argue that Plaintiff’s Americans with Disabilities

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Act (“ADA”) claim against the County “fails as a matter of law

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because the failure to provide medical treatment for an otherwise

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qualifying disability is not a basis for liability under the ADA.”

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Defs’ Mot., ECF No. 27, Att. 1, at 8.

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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
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entity, or be subjected to discrimination by any
such entity.

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3

42 U.S.C. § 12132 (1990).

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To establish a violation of Title II of the ADA, a plaintiff

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must show that (1) he or she is a qualified individual with a

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disability; (2) he or she was excluded from participation in or

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otherwise discriminated against with regard to a public entity’s

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services, programs, or activities; and (3) such exclusion or

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discrimination was by reason of his or her disability.

Lovell v.

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Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (citing Weinreich v.

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Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th

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Cir.

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disability, not inadequate treatment for disability.

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Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (citing

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Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act

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would not be violated by a prison’s simply failing to attend to the

17

medical needs of its disabled prisoners . . . .

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create a remedy for medical malpractice.”)).

1997)).

The

ADA

prohibits

discrimination

because

of

Simmons v.

The ADA does not

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Defendants do not contest Plaintiff’s ability to establish

20

that he is a qualified individual with a disability but, instead,

21

contest

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discrimination by reason of his disability.

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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

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In his opposition to Defendants’ motion, Plaintiff asserts

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that his ADA claim is based on “his having no access at all to in

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house or outside medical treatment during the critical days after
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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

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receiving foot and water by reason of his disability.

Indeed, at

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oral argument, Plaintiff’s counsel affirmed that Plaintiff is

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asserting, in his ADA claim, that a direct causal connection exists

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between the injury he sustained and his later deprivation of food

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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

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beyond allegations of general inadequacy of medical treatment

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provided to him at the jail.

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denied access to medical treatment for his ankle, coupled with his

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allegations that the guards mocked him for his disability in

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response to his requests for necessities, sufficiently demonstrates

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that Plaintiff was denied the benefits of necessities and medical

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care by reason of his disability.

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alleges more than the County’s failure to attend to the medical

24

needs of disabled prisoners.

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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.
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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

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6

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15
16
17
18
19
20
21
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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