Barker v. California Department of Corrections and Rehabilitation, et al.

Filing 22

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/25/15 ORDERING that the Clerk of the Court shall appoint a district judge in this action. It is RECOMMENDED that: Plaintiffs claims under California Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. and the California Disabled Persons Act, Cal. Civ. Code §§ 54.1 et seq., be dismissed with prejudice. Plaintiffs claim under 42 U.S.C. § 1983 against defendant Mark Green in his o fficial capacity be dismissed with prejudice. Defendants motion to dismiss (ECF No. 19 ) otherwise be denied. Defendants be directed to file an answer to the remaining claims within twenty days of adoption of the these Findings and Recommendations. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WILLIAM BARKER,

12
13
14
15

No. 2:13-cv-1793 KJN P

Plaintiff,
v.

ORDER &

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

16

FINDINGS AND RECOMMENDATIONS

Defendants.

17
18

Plaintiff is a state prisoner, who is represented by counsel in this action. Plaintiff proceeds

19

on his First Amended Complaint, in which he raises claims arising under 42 U.S.C. § 1983, Title

20

II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and

21

California state law.

22

Presently before the court is defendants’ motion to dismiss. For the reasons set forth

23

below, the undersigned recommends that the motion to dismiss be granted in part, and that

24

plaintiff be denied leave to file a Second Amended Complaint.

25

I. Background

26

A. Procedural History

27

This case proceeds on plaintiff’s First Amended Complaint (“FAC,” ECF No. 9), against

28

defendants State of California, the California Department of Corrections and Rehabilitation
1

1

(“CDCR”), and Mark Green. The FAC includes claims pursuant to Title II of the Americans with

2

Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., Section 504 of the Rehabilitation Act of

3

1973, 29 U.S.C. § 701, and state law claims under the California Unruh Civil Rights Act, Cal.

4

Civ. Code §§ 51 et seq. (“Unruh Act”), and the California Disabled Persons Act, Cal. Civ. Code

5

§§ 54.1 et seq. (“CDPA”) (all alleged against defendants CDCR and the State of California), and

6

an Eighth Amendment claim pursuant to 42 U.S.C. § 1983 (alleged against defendant Green).

7

On September 11, 2014, the court, after screening the FAC pursuant to 28 U.S.C.

8

§ 1915A, issued an order directing service on defendants State of California, CDCR, and Green.

9

(ECF No. 14.)

10

Now pending before the court is defendants’ motion to dismiss plaintiff’s complaint on

11

the following grounds:

12



13
14

CDCR and the State of California for failure to state a claim.


15
16
17
18

Defendants move to dismiss plaintiff’s ADA and Rehabilitation Act claims against

Defendants move to dismiss plaintiff’s state law claims against CDCR and the
State of California as barred by Eleventh Amendment immunity



Defendants move to dismiss plaintiff’s Section 1983 claim against defendant
Green in his official capacity as barred by Eleventh Amendment immunity.

(Motion, ECF No. 19.)

19

B. Factual Allegations

20

In the operative First Amended Complaint, plaintiff alleges as follows.

21

At all pertinent times, plaintiff was an inmate at California Medical Facility (“CMF”) in

22
23

Vacaville, California. (FAC, ECF No. 9-1 at 2.)
Plaintiff is confined to a wheelchair, and has been designated “DPW” under the remedial

24

plan ordered by the court in Armstrong v. Brown, No. C 94–2307 CW (N.D. Cal.). As a result of

25

this designation, plaintiff is prescribed a wheelchair at all times, and requires wheelchair-

26

accessible housing and paths of travel. (Id. at 2.)

27
28

Defendant Mark Green is a Material and Stores Supervisor I at CMF, who is allegedly
responsible for issuing wheelchairs to CMF inmates. (Id. at 2.)
2

1
2

On May 23, 2012, plaintiff purchased a new wheelchair (“Initial Wheelchair”) from CMF.
The Initial Wheelchair was equipped with a regular frame and a 20-inch wide seat. (Id. at 3.)

3

In the course of testing the Initial Wheelchair, plaintiff found that it responded as if it had

4

a bent axle. According to plaintiff, he therefore made several informal requests for a heavy-duty

5

wheelchair, as he suspected that he weighed too much to safely use a regular wheelchair. (Id. at

6

3, 4.) Plaintiff describes a heavy-duty wheelchair as having “a higher weight capacity than a

7

regular wheelchair.” He adds that the “rear wheels [of a heavy-duty wheelchair] have a dual axel

8

whereas a regular wheelchair has a single axel.” (Id. at 3.)

9

On June 18, 2012, plaintiff made a formal request for a heavy-duty wheelchair. Plaintiff

10

alleges that, in support of his request, he indicated that his weight exceeded the weight capacity of

11

the Initial Wheelchair, that the wheels of the Initial Wheelchair did not roll properly, that portions

12

of the Initial Wheelchair had become torn after less than one month of use, and that the Initial

13

Wheelchair’s right rear wheel rolled as though its axel was bent. (Id.)

14

On October 12, 2012, nearly four months later, defendant Green issued plaintiff a

15

replacement wheelchair with a 22-inch-wide seat (“Replacement Wheelchair”). Plaintiff alleges

16

that he immediately told Green that the Replacement Wheelchair was too large and that he

17

(plaintiff) required a wheelchair with a seat that was only 20 inches wide. Plaintiff alleges on

18

information and belief that Green knew that a wheelchair with a 22-inch wide seat, unlike a

19

wheelchair with a 20-inch wide seat, would be too wide to pass through all doorways at CMF.

20

Plaintiff also alleges on information and belief that defendant Green knew that plaintiff is

21

designated DPW and therefore requires a wheelchair that can pass through all doorways at CMF.

22

(Id. at 4.)

23

According to plaintiff, as a result of being issued the Replacement Wheelchair, i.e., a

24

wheelchair that was too large to pass through all doorways at CMF, he was unable to access the

25

B-1 eye clinic, as well as religious services. (Id. at 4-5.)

26

On October 25, 2012, plaintiff filed a Reasonable Modification or Accommodation

27

Request Form, requesting a wheelchair with a 20-inch seat. On November 5, 2012, defendant

28

Green responded by again providing plaintiff with the Initial Wheelchair. Plaintiff alleges that,
3

1

despite pointing out to Green that he was being provided with the same wheelchair he had

2

previously received, he was not given a different wheelchair. (Id. at 5.)
According to plaintiff, on November 19, 2012, the Initial Wheelchair “failed” by veering

3
4

abruptly to the left and almost rolling over. Plaintiff alleges that his hand became lodged in the

5

wheel, causing him to sustain injuries which included, but were not limited to, “a bony avulsion

6

of the ulnar collateral ligament of the left thumb and comminuted fracture of the proximal

7

phalanx of the left thumb with volar displacement of the proximal phalanx . . . .” Plaintiff

8

consequently required surgery under general anesthesia at San Joaquin General Hospital to repair

9

the damage. (Id. at 5.)
Plaintiff seeks monetary damages, declaratory relief, attorney’s fees, and costs. (Id. at

10
11

10.)

12

III. Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure1 provides for motions to dismiss for

13
14

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In

15

considering a motion to dismiss pursuant Rule 12(b)(6), the court must accept as true the

16

allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the

17

pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421

18

(1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive

19

dismissal for failure to state a claim, a pro se complaint must contain more than “naked

20

assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

21

action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

22

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

23

statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

24

upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570.

25

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

26

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

27

U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes

28

1

Hereinafter, the term “Rule” refers to the applicable Federal Rule of Civil Procedure.
4

1

of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co.,

2

896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

3

A motion to dismiss for failure to state a claim should not be granted unless it appears

4

beyond doubt that the plaintiff can prove no set of facts in support of his claims which would

5

entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se

6

pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner,

7

404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz

8

v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal

9

interpretation of a pro se complaint may not supply essential elements of the claim that were not

10

pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

11

IV. Analysis

12

A. Has plaintiff stated a claim against the State of California or CDCR under Title II of

13

the ADA and/or under the Rehabilitation Act?
Defendants move to dismiss plaintiff’s claims against CDCR and the State of California

14
15

under Title II of the ADA and Section 504 of the Rehabilitation Act. Defendants argue: “Plaintiff

16

does not allege any facts in his complaint against the State or CDCR, and Plaintiff has alleged no

17

nexus between his allegations against Green and his conclusory allegation that the State and

18

CDCR discriminated against him solely based on his disability.” (Motion, ECF No. 19 at 5.)

19

Plaintiff counters that “the court already said the Amended Complaint states a potentially

20

cognizable claim for relief against the Defendants pursuant to the ADA, [the Rehabilitation Act],

21

and parallel state laws.”2 (Opposition, ECF No. 20 at 4.)

22

Plaintiff misconstrues the nature of the preliminary screening called for by 28 U.S.C.

23

§ 1915A. A court’s determination, upon screening, that a complaint may state cognizable claims

24

does not preclude a defendant from subsequently bringing a motion to dismiss one or more of

25
2

26
27
28

Plaintiff unhelpfully justifies his opposition by adding, “This isn’t some frivolous lawsuit filed
by a drugged out meth head with nothing better to do in Administrative Segregation than file
lawsuits all day. This Amended Complaint was drafted by a lawyer with fourteen years of
experience, who has filed thousands of lawsuits, and knows what he’s doing.” (ECF No. 20 at 4.)
For reasons that do not bear mention, the undersigned does not rely on this argument herein.
5

1

those claims under Federal Rule of Civil Procedure 12(b)(6). See Norsworthy v. Beard, __ F.3d

2

__, 2015 WL 1478264 at *3 n. 4 (N.D. Cal. Mar. 31, 2015) (“The issuance of a screening order

3

under the Prison Litigation Reform Act finding that [plaintiff] has stated a cognizable claim does

4

not foreclose Defendants from moving to dismiss the complaint.”); Teahan v. Wilhelm, 481

5

F.Supp.2d 1115, 1119 (S.D. Cal. 2007) (“[T]he sua sponte screening and dismissal procedure is

6

cumulative of, not a substitute for, any subsequent Rule 12(b)(6) motion that the defendant may

7

choose to bring.”); James v. Perez, No. No. 2:08–CV–01857–RRC, 2012 WL 5387676 (E.D. Cal.

8

Nov. 1, 2012) (“To adopt [plaintiff]’s position [and hold that screening under 28 U.S.C. § 1915A

9

precludes defendants from subsequently filing a Rule 12(b)(6) motion] would deprive

10

[d]efendants of the basic procedural right to challenge the sufficiency of the pleadings.”). It is for

11

this reason that the undersigned noted, in the earlier screening order, that the FAC “states a

12

potentially cognizable claim for relief against defendants CDCR and the State of California

13

pursuant to the ADA, [Rehabilitation Act], and the alleged state law claims, and against defendant

14

Green pursuant to 42 U.S.C. § 1983 for the alleged Eighth Amendment violation.” (ECF No. 14

15

at 1-2) (emphasis added). Plaintiff cannot rely solely on the court’s screening as a basis for

16

overcoming a Rule 12(b)(6) motion.

17

Title II of the ADA prohibits discrimination on the basis of disability, as follows: “[N]o

18

qualified individual with a disability shall, by reason of such disability, be excluded from

19

participation in or be denied the benefits of the services, programs, or activities of a public entity,

20

or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In order to state a

21

claim under Title II of the ADA, a plaintiff must allege that:

22
23
24
25
26
27
28

(1) he is an individual with a disability; (2) he is otherwise qualified
to participate in or receive the benefit of some public entity’s
services, programs, or activities; (3) he was either excluded from
participation in or denied the benefits of the public entity’s services,
programs, or activities, or was otherwise discriminated against by
the public entity; and (4) such exclusion, denial of benefits, or
discrimination was by reason of [his] disability.
Simmons v. Navajo Cnty., 609 F.3d 1011, 1021 (9th Cir. 2010).
“Title II of the ADA was expressly modeled after [Section] 504 of the Rehabilitation
Act.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). In order to state a claim
6

1

under Section 504, a plaintiff must allege that:

2

(1) he is an individual with a disability; (2) he is otherwise qualified
to receive the benefit; (3) he was denied the benefits of the program
solely by reason of his disability; and (4) the program receives
federal financial assistance.

3
4
5

Id. In general, a complaint that properly states a claim under Title II of the ADA also states a

6

claim under Section 504. See Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th

7

Cir. 1999) (“[C]ourts have applied the same analysis to claims brought under both statutes”);

8

Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997) (“Congress has directed that the ADA

9

and [Rehabilitation Act] be construed consistently.”).

10

Plaintiff has satisfactorily pled claims under the Rehabilitation Act and Title II of the

11

ADA against CDCR and the State of California. The Ninth Circuit has held that a prison inmate

12

may state claims under both the Rehabilitation Act and the ADA based on allegations “that [the

13

inmate] was improperly excluded from participation in, and denied the benefits of, a prison

14

service, program, or activity on the basis of his physical handicap.” Armstrong v. Wilson, 124

15

F.3d 1019, 1023 (9th Cir. 1997) (citing Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir. 1996)).

16

The Ninth Circuit has also held that “[w]hen a plaintiff brings a direct suit under either [the

17

Rehabilitation Act] or Title II of the ADA against a municipality . . . the public entity is liable for

18

the vicarious acts of its employees.” Duvall, 260 F.3d at 1141. Subsequent courts have extended

19

this holding to other types of public entities, including CDCR. See, e.g., Orr v. Cal. Highway

20

Patrol, No. No. 2:14–585 WBS EFB, 2015 WL 848553 at *16 (E.D. Cal. Feb. 26, 2015) (“Public

21

entities are vicariously liable for the acts of their employees under both acts.”); Bohnert v.

22

Mitchell, No. CV–08–2303–PHX–LOA, 2010 WL 4269569 at *6 (D. Ariz. Oct. 26, 2010) (“The

23

State Defendants acknowledge that the Ninth Circuit has ruled that public entities can be held

24

vicariously liable if their employees discriminate against disabled persons.”) (internal quotation

25

omitted); Brown v. CDC, No. 1:04-cv-5215-LJO-DLB, 2008 WL 681840 at *4 (E.D. Cal. Mar.

26

11, 2008) (“[T]heir employer, California Department of Corrections and Rehabilitation, is also a

27

defendant and is liable under Title II as a public entity for the discriminatory acts of its

28

employees.”).
7

1

Defendants have provided no rationale for the court to deviate from these holdings and to

2

find that CDCR – and by extension, the State of California, of which CDCR is an agency –

3

cannot be held vicariously liable for the acts of defendant Green, who, according to the FAC, is a

4

CMF employee. (ECF No. 9-1 at 2.) Plaintiff has alleged that he requires a wheelchair at all

5

times, and that he was excluded from an eye clinic and religious services at CMF because the

6

wheelchair Green issued him would not allow him access to the pertinent locations. These

7

allegations are sufficient to state a claim for vicarious liability under Title II of the ADA and

8

Section 504 against the State of California and CDCR. Defendants’ argument that plaintiff has

9

failed to specifically allege discriminatory intent on the part of the State of California and/or

10

CDCR (Motion, ECF No. 19-1 at 7-8) is also unavailing due to vicarious liability.
Defendants next argue for dismissal because “[p]laintiff does not have the right to sue for

11
12

the failure to provide him with a wheelchair that would allow him to access all of CMF’s services

13

under the ADA or [the Rehabilitation Act].” (ECF No. 19-1 at 6.) In support, defendants point to

14

a regulation, promulgated by the United States Department of Justice (“DOJ”) under the ADA

15

and the Rehabilitation Act, which provides that “[t]his part does not require a public entity to

16

provide to individuals with disabilities personal devices, such as wheelchairs” 28 CFR § 35.135

17

(2015).

18

Defendants’ argument does not appear to be well-founded. The DOJ has issued a

19

technical assistance manual that provides guidance in complying with ADA regulations. Per the

20

Ninth Circuit, “The guidance provided in the technical assistance manual is an interpretation of

21

the DOJ’s regulation, and, as such, is entitled to significant weight as to the meaning of the

22

regulation.” Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 875-76

23

(9th Cir. 2004) (internal citations omitted). The manual provides, in a section addressing the

24

regulation in question, that:

25
26
27
28

A public entity is not required to provide individuals with
disabilities with personal or individually prescribed devices, such as
wheelchairs, prescription eyeglasses, or hearing aids, or to provide
services of a personal nature, such as assistance in eating, toileting,
or dressing. Of course, if personal services or devices are
customarily provided to the individuals served by a public
8

1
2

entity, such as a hospital or nursing home, then these personal
services should also be provided to individuals with disabilities.

3

Americans with Disabilities Act Title II Technical Assistance Manual, § II-3.6200, available at

4

http://www.usdoj.gov/crt/ada/taman2.html (emphasis added). The situation presented in

5

California prisons is analogous to the highlighted provision. CDCR and the State of California

6

have undertaken the provision of wheelchairs to disabled inmates: the court-ordered remedial

7

plan in Armstrong requires CDCR, among other things, “to ensure that prisoners and parolees

8

with disabilities . . . . are able to obtain and keep necessary assistive devices,” Armstrong v.

9

Brown, 857 F. Supp. 2d 919, 925 (N.D. Cal. 2012), including wheelchairs. As defendants CDCR

10

and the State of California have undertaken the provision of wheelchairs, it would appear that the

11

regulation cited by defendants cannot insulate defendants CDCR and State of California from

12

liability in the instant lawsuit.

13

Defendants next argue that plaintiff “has not alleged facts that would demonstrate the

14

State and CDCR discriminated against him solely on the basis of his disability . . . but, at most,

15

that the treatment he received for his disability – the wheelchair – was inadequate. . . . [T]his

16

does not give rise to an ADA or [Section 504] claim.” (ECF No. 19-1 at 6.) Defendants

17

misconstrue the substance of plaintiff’s claim, which is that defendants failed to make services,

18

programs, and activities at CMF accessible to him by issuing him improper wheelchairs. Both the

19

Rehabilitation Act and Title II of the ADA prohibit CDCR and the State of California from

20

denying inmates the benefits of services, programs, and activities solely by reason of their

21

disabilities. See Penn. Dep’t of Corr., 524 U.S. 206 (1998) (holding that 42 U.S.C. § 12132

22

applies to state prisons); Armstrong v. Wilson, 124 F. 3d 1019 (9th Cir. 1997) (holding that both

23

42 U.S.C § 12132 and the Rehabilitation Act apply to state prisons), cert. denied, Wilson v.

24

Armstrong, 524 U.S. 937 (1998). Given that plaintiff has a qualifying disability, he must be

25

provided access to the services, programs, and activities available to non-disabled inmates at

26

CMF; the wheelchair is merely an instrumentality for provision of access, and such, the fact that

27

plaintiff was given a wheelchair is not dispositive of liability. Consequently, defendants’ citation

28
9

1

to Simmons, 609 F.3d at 1011, is inapt. That case concerns a minor who suffered from

2

depression and committed suicide while in jail. The decedent’s parents sued jail authorities for,

3

among other things, violating the ADA by allegedly depriving the decedent of programs or

4

activities to treat his depression. The Ninth Circuit disagreed, holding that “[t]he ADA prohibits

5

discrimination because of disability, not inadequate treatment for disability.” Id. at 1022. The

6

latter sentence is quoted, and relied upon, by defendants in their moving papers. The distinction

7

with the instant case is evident. Plaintiff herein sues because he has been deprived of access to

8

existing services, programs, and activities at CMF, not because defendants have failed to take

9

affirmative steps to treat his disability. Again, the wheelchair in question is not a treatment, but

10

per the Armstrong court, an “assistive device,” 857 F. Supp. 2d at 925, i.e., a means to facilitate

11

plaintiff’s participation in prison life on a nondiscriminatory basis. Defendants’ motion to

12

dismiss on this ground must therefore be denied.

13

Finally, defendants argue that plaintiff’s ADA and Rehabilitation Act claims ought to be

14

dismissed because plaintiff has failed to allege systemic discrimination against disabled inmates

15

on the part of CDCR and/or the State of California. This argument ignores the numerous

16

individual claims brought by prisoners under the ADA and/or the Rehabilitation Act that have

17

survived dismissal motions. See, e.g., Yeskey, 524 U.S. at 206 (reversing Rule 12(b)(6) dismissal

18

on the grounds that the plaintiff could state a claim under ADA for being excluded from program

19

run by state prison); Becker v. Oregon, 170 F. Supp. 2d 1061 (D. Or. 2001) (denying motion to

20

dismiss under Rule 12(b)(6) on the grounds that plaintiff, a below-the-knee amputee, could state a

21

claim under the ADA and the Rehabilitation Act for prison’s failure to provide accessible

22

showers). Defendants’ citation to Johnson ex rel. Johnson v. Thompson, 971 F.2d 1487 (10th

23

Cir. 1992), is unpersuasive. The sentence from that opinion which defendants quote – “If others

24

with the same handicap do not suffer the discrimination, then the discrimination does not result

25

solely by reason of the handicap,” id. at 1493 (internal quotation omitted) – addresses the Johnson

26

plaintiffs’ contention that their children were discriminated against both because of their

27

disabilities and their low socioeconomic status. The Tenth Circuit disagreed and dismissed the

28

plaintiffs’ claims under Section 504, finding that “[t]he word solely provides the key: the
10

1

discrimination must result from the handicap and from the handicap alone.” Id. (emphasis in

2

original). In the instant case, plaintiff alleges ADA and Section 504 violations solely because of

3

his disability; as plaintiff does not simultaneously allege another basis for discrimination beyond

4

disability, Johnson’s holding is irrelevant to this case.
Accordingly, for the reasons set forth above, defendants’ motion to dismiss plaintiff’s

5
6

claims against CDCR and the State of California under the ADA and the Rehabilitation Act

7

should be denied.
B. Are the State of California and CDCR entitled to sovereign immunity as to plaintiff’s

8
9

state law claims?
Defendants move to dismiss plaintiff’s claims under the Unruh Act and the CDPA,

10
11

contending that they are barred on grounds of sovereign immunity under the Eleventh

12

Amendment.

13

Plaintiff counters that, (i) because Congress explicitly abrogated state sovereign

14

immunity in enacting the ADA, and (ii) because the California legislature explicitly incorporated

15

the ADA into the Unruh Act, Cal. Civ. Code § 51(f), and the CDPA, Cal. Civ. Code § 54.1(d),3

16

therefore (iii) California consented to waive sovereign immunity for claims under these statutes to

17

the extent that such claims are based on alleged ADA violations. (Opposition, ECF No. 20 at 10.)

18

The courts that have considered plaintiff’s argument have rejected it. See, e.g.,

19

Hutchinson v. Cal. Dep’t Corr. and Rehab., No. 2:13-cv-00620-MCE-AC, 2013 WL 5569984 at

20

*3 (E.D. Cal. Oct. 9, 2013) (“Any consent to suit must be ‘unequivocal,’ and Plaintiff does not

21

explain how mandating that the baseline substantive standards under the Unruh Act and the

22

CDPA comport with the ADA unequivocally demonstrates that the State of California intended to

23

subject itself to all suits brought under those provisions.”); Myers v. Cal. Dep’t of Rehab.,

24

No. 2:12–cv–00497–GEB–GGH, 2012 WL 3529784 at *3 (E.D. Cal. Aug. 14, 2012) (“[Plaintiff]

25

fails to demonstrate that California made a ‘clear declaration’ in the Unruh Act [or CDPA] of an

26
27
28

3

Plaintiff argues that the adoption-by-incorporation of the ADA into these statutes ensured that
California laws regarding disabled persons’ civil rights would not be preempted by the ADA.
(Opposition, ECF No. 20 at 7-10.)
11

1

intent to waive its sovereign immunity concerning any of these statutes. Therefore, this portion of

2

[defendant]’s dismissal motion is GRANTED.”); McColm v. Marin Cnty., No. 01-cv-1108-SI,

3

2002 WL 243627 (N.D. Cal. Feb 14, 2002) (invoking Eleventh Amendment immunity as basis

4

for dismissing disabled plaintiff’s Unruh Act claim). See also Munson v. California, No. 2:09-cv-

5

0478-JAM-EFB, 2011 WL 284591 at *3 (E.D. Cal. Jan. 25, 2011) (holding that Cal. Gov’t Code

6

§ 844.6, which provides that public entities are not liable for injury to a prisoner, required

7

dismissal of plaintiff’s claim under the California Disabled Persons Act.)

8

Plaintiff has failed to provide the court with a convincing rationale for deviating from

9

these precedents. Accordingly, the undersigned recommends that plaintiff’s state law claims

10

against the State of California and CDCR be dismissed with prejudice based on Eleventh

11

Amendment immunity.

12

As it appears that defendants State of California and CDCR are entitled to immunity from

13

plaintiff’s state law claims, the court need not reach defendants’ argument that plaintiff failed to

14

properly state a claim under these statutes. (See Motion, ECF No. 19-1 at 10.)

15

C. Can defendant Green be sued in his official capacity under Section 1983?

16

Defendants move to dismiss plaintiff’s Section 1983 claim against defendant Green to the

17

extent that it is alleged against Green in his official capacity. Defendant argues that such a claim

18

is barred by Eleventh Amendment immunity.

19
20
21

Plaintiff concedes that defendant Green cannot be sued in official capacity under Section
1983.
Accordingly, to the extent that it is alleged against defendant Green in his official

22

capacity, the undersigned recommends that plaintiff’s Section 1983 claim be dismissed with

23

prejudice.

24

D. Leave to Amend

25

Plaintiff’s counsel has requested leave to file an amended complaint. (ECF No. 20 at 5.)

26

The Ninth Circuit has made clear that “[d]ismissal with prejudice and without leave to amend is

27

not appropriate unless it is clear . . . that the complaint could not be saved by amendment.”

28

Eminence Capital, 316 F.3d at 1052 (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)).
12

1

Here, plaintiff faces dismissal of his claims under the Unruh Act and the CDPA against

2

defendants CDCR and the State of California, and his claim under Section 1983 against

3

individual defendant Green in Green’s official capacity. As dismissal of these claims is

4

warranted as a matter of law based on Eleventh Amendment immunity, it appears that they cannot

5

be saved by amendment. Accordingly, the undersigned recommends that plaintiff be denied leave

6

to file an amended complaint.

7

V. Conclusion

8
9

Based on the foregoing, IT IS HEREBY ORDERED that the Clerk of the Court shall
appoint a district judge in this action.

10

IT IS HEREBY RECOMMENDED that:

11

1. Plaintiff’s claims under California Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et

12

seq. and the California Disabled Persons Act, Cal. Civ. Code §§ 54.1 et seq., be

13

dismissed with prejudice.

14
15

2. Plaintiff’s claim under 42 U.S.C. § 1983 against defendant Mark Green in his official
capacity be dismissed with prejudice.

16

3. Defendants’ motion to dismiss (ECF No. 19) otherwise be denied.

17

4. Defendants be directed to file an answer to the remaining claims within twenty days of

18

adoption of the these Findings and Recommendations.

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

Dated: June 25, 2015

28

/bark1793.mtd

13