Hatten v. Robarge et al

Filing 9

ORDER signed by Magistrate Judge Dennis M. Cota on 11/7/18 DISMISSING 1 Prisoner Civil Rights Complaint with leave to amend and DIRECTING plaintiff to file a first amended complaint within 30 days after being served with this order. (Coll, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON HATTEN,

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No. 2:17-CV-2367-DMC-P
Plaintiff,

v.

ORDER

ROBARGE, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is Plaintiff’s complaint (Doc. 1). Plaintiff alleges

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defendants violated his rights under the American’s with Disabilities Act and seems to allege

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defendants retaliated against him in violation of his First Amendment Rights. For the reasons set

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forth below, Plaintiff’s complaint is dismissed with leave to amend.

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I. SCREENING REQUIREMENT AND STANDARD

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).
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The Federal Rules of Civil Procedure require complaints contain a “…short and

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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their

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pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d

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338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation

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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The

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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with

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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss, 572F.3d at 969.

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II. PLAINTIFF’S ALLEGATIONS
Plaintiff’s complaint names two defendants, Committee Correctional Counselor S.

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Robarge and Chair Person T. Wamble. Plaintiff asserts both defendants failed to accommodate

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his disability as mandated by the Americans with Disability Act (ADA). Specifically, Plaintiff

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contends that he is in a leg brace and uses a cane for mobility due to a 2001 injury resulting from

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a gunshot wound to his back. Plaintiff states that he cannot walk or stand for long periods of time

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because of nerve damage in and around his spine. Plaintiff alleges that he was assigned to a

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carpentry class that could not accommodate his disability and was subsequently removed from the

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carpentry class after a prison review of his disability. Plaintiff contends the prison medical
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evaluation stated he was to be housed at a level terrain institution and Plaintiff seems to allege

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that he was then transferred to a non-level terrain institution where he fell down a flight of stairs

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after exiting the prison library.

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Plaintiff further seems to assert a claim of retaliation against both defendants for
ordering his transfer after Plaintiff consulted with counsel.

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III. ANALYSIS

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A.

ADA Claim

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Plaintiff seeks to bring a claim under Title II of the Americans with Disabilities

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Act (ADA), 42 U.S.C. § 12132. Title II of the ADA “prohibit[s] discrimination on the basis of

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disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). “To establish a violation of

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Title II of the ADA, a plaintiff must show that (1) [he] is a qualified individual with a disability;

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(2) [he] was excluded from participation in or otherwise discriminated against with regard to a

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public entity’s services, programs, or activities; and (3) such exclusion or discrimination was by

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reason of [his] disability.” Id.

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Plaintiff may proceed against individual defendants in their official capacities, but only if

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Plaintiff shows discriminatory intent. See Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th

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Cir. 1998). To show discriminatory intent, a plaintiff must establish deliberate indifference by the

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public entity. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). Deliberate

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indifference requires: (1) knowledge that a harm to a federally protected right is substantially

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likely, and (2) a failure to act upon that likelihood. Id. at 1139. The first prong is satisfied when

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the plaintiff identifies a specific, reasonable and necessary accommodation that the entity has

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failed to provide, and the plaintiff notifies the public entity of the need for accommodation or the

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need is obvious or required by statute or regulation. Id. The second prong is satisfied by showing

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that the entity deliberately failed to fulfill its duty to act in response to a request for

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accommodation. Id. at 1139-40.

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Plaintiff’s claim that Committee Correctional Counselor S. Robarge and Chair

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Person T. Wamble violated his rights under the ADA by transferring him to a different

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correctional center fails. Plaintiff fails to allege sufficient facts connecting the two named

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defendants with his transfer to a different correctional facility. Plaintiff also fails to articulate

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how that transfer to a different prison facility excluded him from participation in a service,

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program, or activity, as required by law. See Lovell, 303 F.3d at 1052. Additionally, Plaintiff

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fails to allege facts of discriminatory intent. Plaintiff asserts that both Defendants were aware of

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his disability but provides no facts related to an accommodation that Defendants failed to provide.

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Plaintiff must show discriminatory intent by identifying (1) an accommodation that Defendants

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knew or should have known about, and (2) by showing that the Defendants failed to act upon the

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request for that accommodation. See Ferguson, 157 F.3d at 674. Because Plaintiff failed to

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identify any accommodation in his complaint his ADA claim, as currently alleged, fails.

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B.

Retaliation Claim
In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

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establish that he was retaliated against for exercising a constitutional right, and that the retaliatory

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action was not related to a legitimate penological purpose, such as preserving institutional

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security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting

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this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the

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exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);

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Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also

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show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by

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the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also

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Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must

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establish the following in order to state a claim for retaliation: (1) prison officials took adverse

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action against the inmate; (2) the adverse action was taken because the inmate engaged in

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protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the

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adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.

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Generally, prisoners have no liberty interest in avoiding being transferred to another prison. See
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Olim v. Wakinekona, 461 U.S. 238, 245 (1983). However, prisoners may not be transferred in

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retaliation for exercising their First Amendment rights. See Pratt v. Rowland, 65 F.3d 802, 806

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(9th Cir. 1995).

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Plaintiff seems to allege he was retaliated against because he “involved” an

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attorney regarding his ADA claims against the Defendants. The facts related to this allegation are

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sparse. Plaintiff does not provide a real link between his consultations with counsel and his

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transfer to a different prison facility. See Pratt, 65 F.3d at 807 (holding a prisoner must

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demonstrate a specific link between the alleged retaliation and the exercise of a constitutional

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right). Further, Plaintiff does not provide any facts demonstrating that his First Amendment

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rights were chilled by the transfer. See Rhodes, 408 F.3d at 568 (Plaintiff must show that the

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exercise of First Amendment rights was chilled, though not necessarily silenced, by the alleged

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retaliatory conduct.)

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IV. AMENDING THE COMPLAINT
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection
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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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V. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file a first amended complaint within 30 days of the date of

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service of this order.

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Dated: November 7, 2018
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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