Alvarez v. State of California et al

Filing 24

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/11/16 ORDERING that plaintiffs motions (ECF Nos. 21 , 22 , 23 )are DENIED; It is RECOMMENDED that the amended complaint (ECF No. 19 ) bedismissed for failure to state a claim upon which relief may be granted and that the Clerk of the Court be directed to close the case. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GUSTAVO ALVAREZ,

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Plaintiff,

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No. 2:14-cv-1181-KJM-EFB P

v.
STATE OF CALIFORNIA, et al.,

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ORDER AND RECOMMENDATION OF
DISMISSAL PURSUANT TO 28 U.S.C. §
1915A FOR FAILURE TO STATE A CLAIM

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. After a dismissal pursuant to 28 U.S.C. § 1915A, he has filed an amended

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complaint. ECF No. 19. He has also filed a “motion for . . . California to release property,” a

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“motion to dismiss/disqualify/change magistrate judge,” and a “motion for time extension.” ECF

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Nos. 21-23. As discussed below, plaintiff’s motions are denied and it is recommended that his

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amended complaint be dismissed without further leave to amend.

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I.

Plaintiff’s Amended Complaint (ECF No. 19)

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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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In dismissing the original complaint with leave to amend (ECF No. 9), the court informed

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plaintiff of the standards governing his intended claims for relief, including those governing Title

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II of the Americans with Disabilities Act, claims of deliberate indifference in violation of the

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Eighth Amendment, and the fact that there are no constitutional requirements regarding how a

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grievance system is operated. The court also informed plaintiff that his general references to

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“defendants,” without specifically linking a particular defendant to a violation of his rights was

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insufficient, especially considering that plaintiff had named approximately 50 defendants. In

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addition, the court informed plaintiff that conclusory allegations of “discrimination,”

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“retaliation,” “deliberate indifference,” harassment,” and “abuse,” were implausible absent

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specific and supporting factual allegations.

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Plaintiff’s amended complaint (ECF No. 19) fails to correct the deficiencies in his

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intended claims for relief. Plaintiff again names approximately 50 defendants. He continues to

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assert claims against all “defendants,” without pleading any facts to link a particular defendant to

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a specific violation of his rights. See e.g., ECF No. 19, ¶¶ 26, 32, 43, and “First Cause of Action”

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at p. 11 (charging “defendants” with unspecified violations of his First and Eighth Amendment

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rights). He again accuses defendants of various wrongs, including excessive force, disability

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discrimination, and violations of his First, Eighth, and Fourteenth Amendment rights, but includes

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almost no factual allegations to support those accusations. See id. at 1-2. The only specific

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allegations, discussed below, concern his administrative appeals and apparent hearing

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impairment. Those allegations are not sufficient to state a proper claim for relief.

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Throughout the complaint, plaintiff appears to name defendants solely because they

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played a role in processing his administrative appeals. See, e.g., id. ¶¶ 29-30, 40-42, 46-68

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(alleging that specific defendants denied and/or signed an administrative appeal). As plaintiff

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was previously informed, however, this is not a sufficient basis for liability. See ECF No. 9 at 6

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(citing Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)).

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In addition, plaintiff’s attempt to state a claim for relief under ADA fails. Plaintiff, who is

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allegedly hearing impaired, claims that he was denied an “amplification device (pocket talker)”

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when defendants Fritz and Neely returned it to its vendor. See ECF No. 19, ¶¶ 27-28, 45. He
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also claims that defendants Young, the State of California, and LeClare denied him “effective

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communication” by failing to offer him “written notes,” an “ADA inmate assistant,” a “reader

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board,” and/or “in-cell notification.” Id. ¶¶ 33-35. However, the treatment or lack of treatment

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for a medical condition does not provide a basis upon which to impose liability under the ADA.

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Simmons v. Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010) (“The ADA prohibits

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discrimination because of disability, not inadequate treatment for disability.”); see also Burger v.

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Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (“a lawsuit under the . . . [ADA] cannot be based

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on medical treatment decisions”); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (The

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ADA is not “violated by a prison’s simply failing to attend to the medical needs of its disabled

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prisoners.”). Plaintiff does not allege that he was denied access to any particular program because

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of his disability, and thus, fails to state a cognizable ADA claim. Further, plaintiff’s scant

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allegations do not demonstrate that any defendant acted with the requisite deliberate indifference

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for an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Despite notice of the complaint’s deficiencies and an opportunity to amend, plaintiff is

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unable to state a proper claim for relief. Therefore, this action must be dismissed without leave

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to amend for failure to state a claim upon which relief could be granted. See Lopez v. Smith, 203

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F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case law, district courts are only required

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to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant

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leave to amend if a complaint lacks merit entirely.”); see also Doe v. United States, 58 F.3d 494,

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497 (9th Cir. 1995) (“[A] district court should grant leave to amend even if no request to amend

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the pleading was made, unless it determines that the pleading could not be cured by the allegation

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of other facts.”).

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II.

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Plaintiff’s Motions (ECF Nos. 21, 22, 23)
In the “motion for . . . California to release property,” plaintiff states that he does not have

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access to all of his property and that without such access, he “is unable to continue in his

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complaint.” ECF No. 21, ¶ 2. In his “motion for time extension,” plaintiff seeks a 120-day

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extension of time. ECF No. 23.

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Plaintiff filed his amended complaint as ordered by the court (see ECF Nos. 18, 19), and

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there were no other court-imposed deadlines when he filed the instant motions. Thus, plaintiff’s

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motions are denied as moot.

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Plaintiff also filed a “motion to dismiss/disqualify/change magistrate judge,” which the

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court construes as a motion for recusal. ECF No. 22. In the motion, plaintiff complains that the

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undersigned has not issued orders in a timely fashion and that the orders issued have been

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“prejudicial” and demonstrate “bias.” See id. ¶¶ 6, 7, 11. Title 28 U.S.C. § 455 requires recusal

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if the judge’s alleged bias or prejudice “stems from an extrajudicial source and not from conduct

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or rulings made during the course of the proceedings.” Toth v. Trans World Airlines, Inc., 862

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F.2d 1381, 1388 (9th Cir. 1988). “A judge’s previous adverse ruling alone is not sufficient bias.”

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Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984). Because plaintiff’s motion is based on his

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disagreement with rulings made during the course of these proceedings in this court, and not from

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any extrajudicial source, his request for recusal is denied.

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III.

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Order and Recommendation
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions (ECF Nos. 21, 22, 23)

are denied.

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Further, IT IS HEREBY RECOMMENDED that the amended complaint (ECF No. 19) be

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dismissed for failure to state a claim upon which relief may be granted and that the Clerk of the

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Court be directed to close the case.

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

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

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

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

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

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

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

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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: January 11, 2016.

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