Tenerelli v. Shasta County Jail et al

Filing 16

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/6/2015 GRANTING plaintiff's 12 Motion to Proceed In Forma Pauperis. Plaintiff shall play statutory filing fee of $350. The 1 Complaint is DISMISSED with leave to amend within 30 days. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK TENERELLI,

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Plaintiff,

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No. 2:14-cv-0553-WBS-EFB P

v.

ORDER GRANTING IFP AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND

SHASTA COUNTY JAIL, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983 and Title II of the Americans with Disabilities Act. In addition to filing a

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complaint, plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915.

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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129 S. Ct. at 1949.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

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Screening Order
In his February 26, 2014 complaint (ECF No. 1), plaintiff names the Shasta County Jail,

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Shasta County, and Dave Kent (jail administrator) as defendants. His allegations, in their

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entirety, consist of the following:
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The Jail facility has violated the Americans with Disabilities Act[ ] by
discrimitorilly [sic] housing me in solitary confinement due to a lack of bed space.
Using the administrative segregation classification, 23 hour lockdown also denial
of access to school religious services stating that inmates housed in medical
ar[e]n’t allowed services. There are NO handicap access to fitness equiptment
[sic] handraile [sic] access to top bunks/steps to the showers restroom handrails
not provided. This problem has exi[s]ted since this jail was built; I know because I
helped build.

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ECF No. 1, § IV. In his request for relief, plaintiff states, “one million dollars/I have titanium

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knee replacements/broken back/just had aneurism (heart) operation logging 20 trees and a few

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other body injuries.” Id., § V.

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Having reviewed plaintiff’s complaint pursuant to § 1915A, the court finds that the

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allegations are too vague and conclusory to state a cognizable claim for relief. Although the

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Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the

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elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646,

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649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts

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which defendants engaged in that support plaintiff's claim. Id. Because plaintiff fails to state a

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claim for relief, the complaint must be dismissed.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978).

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A municipal entity or its departments (such as a county, a county jail, or a county

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employee acting in an official capacity) is liable under section 1983 only if plaintiff shows that

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his constitutional injury was caused by employees acting pursuant to the municipality’s policy or

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custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New

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York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival Ass'n,
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541 F.3d 950, 964 (9th Cir. 2008). In addition, such local government entities may not be held

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vicariously liable under section 1983 for the unconstitutional acts of its employees under a theory

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of respondeat superior. See Board of Cty. Comm'rs. v. Brown, 520 U.S. 397, 403 (1997). That is,

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plaintiff may not sue any defendant on the theory that the defendant is automatically liable for the

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alleged misconduct of subordinate officers. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).

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Title II of the Americans with Disabilities Act (“ADA”), prohibits a public entity from

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discriminating against a qualified individual with a disability on the basis of disability. 42 U.S.C.

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§ 12132. In order to state a claim that a public program or service violated Title II of the ADA, a

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

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

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

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benefits, or discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d

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1259, 1265 (9th Cir. 2004); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001)

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(“If a public entity denies an otherwise ‘qualified individual’ ‘meaningful access’ to its ‘services,

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programs, or activities’ ‘solely by reason of’ his or her disability, that individual may have an

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ADA claim against the public entity.”).

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The ADA authorizes suits by private citizens for money damages against public entities,

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United States v. Georgia, 546 U.S. 151, 153 (2006), and state prisons “fall squarely within the

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statutory definition of ‘public entity.’” Pennsylvania Dep’t. of Corrs. v. Yeskey, 524 U.S. 206,

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210 (1998). “To recover monetary damages under Title II of the ADA . . . , a plaintiff must prove

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intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d

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1124, 1138 (9th Cir. 2001). The standard for intentional discrimination is deliberate indifference,

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which “requires both knowledge that a harm to a federally protected right is substantially likely,

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and a failure to act upon that likelihood.” Id. at 1139.

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“In suits under Title II of the ADA . . . the proper defendant usually is an organization

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rather than a natural person . . . . Thus, as a rule, there is no personal liability under Title II.”

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Roundtree v. Adams, No. 1:01-cv-06502-OWW-LJO, 2005 U.S. Dist. LEXIS 40517, at *22 (E.D.

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Cal. Dec. 1, 2005) (quotations and citations omitted). Indeed, a plaintiff cannot bring an action
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under 42 U.S.C. § 1983 against a State official in his individual capacity to vindicate rights

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created by Title II of the ADA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Thus, an

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ADA plaintiff may seek injunctive relief against an individual defendant only if the defendant is

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sued in his or her official capacity. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir.

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2003).

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Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended complaint

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must cure the deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 12) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the California Department of Corrections and Rehabilitation filed

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concurrently herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in dismissal of this action for failure to

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state a claim. If plaintiff files an amended complaint stating a cognizable claim the court will

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proceed with service of process by the United States Marshal.

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Dated: May 6, 2015.

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