Oliver v. Shelton et al

Filing 56

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 5/6/20 RECOMMENDING that Defendants' unopposed motion to dismiss 43 be granted. Plaintiff's requests for permanent injunctive relief are dismissed without leave to amend. Plaintiff's second amended complaint 36 be dismissed with leave to amend as to his ADA claims. F&R referred to District Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARON MICHAEL OLIVER,

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No. 2:18-CV-1809-KJM-DMC

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

DUANE SHELTON, et al.,
Defendants.

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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the

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Court in the unopposed motion to dismiss filed by defendants Shelton and Hatley. See ECF No.

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43. Defendant Mel has filed an answer in the action and does not join in the motion to dismiss.

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I. PLAINTIFF’S ALLEGATIONS
This action currently proceeds against defendants Mel, Shelton, and Hatley on

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plaintiff’s second amended complaint filed on June 17, 2019. See ECF No. 36. Relative to the

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moving defendants, plaintiff alleges that defendant Shelton is a parole agent with the Butte

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County Division of Adult Parole Operations and that defendant Hatley is a supervisor at the

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Chico Parole Unit. See id. at 2-3. Both are sued in their official capacities only. See id. Plaintiff

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claims “Officer Shelton consistently and persistently violated my civil rights and parolee rights

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along with my rights as a deaf man for effective communication.” Id. at 2. He also claims
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“[Hatley] failed to provide a certified sign language interpreter and violated my civil rights and

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denied my fiancée as power of attorney.” ECF No. 36, pg. 3.

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More specifically, plaintiff alleges:

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June 27, 2017, I was asked to go down there 1370 Ridgewood Dr. STE
#14 at 8am (Chico Parole Unit). They did not provide State certified sign
language interpreter. I bought [sic] my power of attorney with me and she
was denied access to the back with me. I was interrogated and threatened
by Duane Shelton and Trevor Hatley (SUPERVISOR). I was then
arrested by four parole officers, who cuffed my hand behind my back
(didn’t know why I was being arrested) and no sign language interpreter
was provided upon arrest.

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I was informed later by my fiancée, who saw and video recorded my arrest
outside, that my parole officer Duane Shelton read my Miranda Rights
verbally while I was face down on the ground and hand cuffed behind my
back. No written copy was provided and no sign language interpreter was
provided so I never knew the Miranda Rights were read to me because I
never heard it. After I was taken to Butte County Jail (6/27/2017), I was
denied my right to use TDD phone. I had to wait over a week to call my
fiancée and then wait 2 days to honor my request to use the TDD phone
after 1st time.

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Id. at 5-6.

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According to plaintiff, defendants’ conduct violated his rights under Title II of the

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Americans with Disabilities Act (ADA). For relief, plaintiff seeks monetary damages, removal of

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defendants from public service, and expungement of all state debts and criminal records. See id.

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at 11.

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II. STANDARDS FOR MOTION TO DISMISS
In considering a motion to dismiss, the court must accept all allegations of material

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fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must

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also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes,

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416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or

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doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411,

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421 (1969). However, legally conclusory statements, not supported by actual factual allegations,

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need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se
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pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v.

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Kerner, 404 U.S. 519, 520 (1972).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

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of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair

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

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order

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to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain

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more than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The

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complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at

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570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but

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it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

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Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a

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defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement

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to relief.” Id. (quoting Twombly, 550 U.S. at 557).

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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials

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outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)

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documents whose contents are alleged in or attached to the complaint and whose authenticity no

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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,

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and upon which the complaint necessarily relies, but which are not attached to the complaint, see

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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials

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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

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1994).

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Finally, leave to amend must be granted “[u]nless it is absolutely clear that no

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amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

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III. DISCUSSION

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In their unopposed motion, defendants argue: (1) plaintiff has failed to state a

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claim against defendants in their official capacities; (2) plaintiff has failed to state a claim for

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relief under the Title II of the Americans with Disabilities Act (ADA); and (3) plaintiff has failed

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to state a claim for injunctive relief.

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A.

Official Capacity

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According to defendants Hatley and Shelton:

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Oliver sued Shelton and Hatley in their official capacities for
violating Title II of the ADA. (ECF No. 36 at 2-3, 5-6.) However, a
plaintiff pursuing defendants in their official capacities must demonstrate
that a policy or custom of the governmental entity of which the officials
are agents was the moving force behind the violation. See Hayes v. Voong,
709 Fed.Appx. 494, 495 (9th Cir. 2018) (affirming dismissal of prisoner’s
ADA claims against defendants in their official capacities because
prisoner’s complaint failed to identify a policy or custom of the state that
allegedly violated federal law) (citing Hafer v. Melo, 502 U.S. 21, 25
(1991) (“Because the real party in interest in an official-capacity suit is the
governmental entity and not the named official, the entity’s policy or
custom must have played a part in the violation of federal law.”)). In other
words, the plaintiff must allege an affirmative causal link between a state
policy and the alleged violation of federal law. See City of Canton, Ohio v.
Harris, 489 U.S. 378, 385 (1989); Van Ort v. Estate of Stanewich, 92 F.3d
831, 835 (9th Cir. 1996). Here, Oliver does not allege the existence of a
state policy or custom that led to the violation of his rights under Title II
of the ADA, and he does not allege any facts showing Shelton and Hatley
were acting pursuant to a state policy or custom. (See generally ECF No.
36.) Oliver only alleges Shelton and Hatley failed to provide him with a
sign language interpreter during his arrest, and failed to provide him
with a TDD phone during his incarceration at Butte County Jail. (Id. at 56.) These allegations are not enough to show that a state policy or custom
was the “moving force” behind Shelton or Hatley’s actions. The Court
should therefore dismiss Oliver’s official capacity claims against Shelton
and Hatley.

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ECF No. 43-1, pg. 4.

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State officials sued in their official capacity for damages are not persons for

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purposes of § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); see also

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Flint v. Dennison, 488 F.3d 836, 839 (9th Cir. 2007). State officials sued in their official

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capacities for injunctive relief, however, are. See Will, 491 U.S. at 71 n.10; see also Hartmann

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v. Cal. Dep’t of Corr. & Rehab, 707 F.3d 1114, 1127 (9th Cir. 2013). In any event, official-

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capacity suits filed against state officials are merely an alternative way of pleading an action

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against the entity of which the defendant is an officer. See Hafer v. Melo, 502 U.S. 21, 25

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(1991). In such suits, the plaintiff must demonstrate that a policy or custom of the governmental

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entity of which the official is an agent was the moving force behind the alleged violation. See id.

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at 25; see also Kentucky v. Graham, 473 U.S. 159, 166 (1985).

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The Court finds here that the Second Amended Complaint fails to plead facts

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showing that a custom or policy of the Butte County Division of Adult Parole Operations was a

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moving force behind the alleged ADA violations. Throughout the Second Amended Complaint,

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plaintiff’s allegations as to defendants Shelton and Hatley are specific to those defendants’

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conduct and make no reference to defendants’ governmental employer. The Second Amended

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Complaint sets forth no facts to link the alleged ADA violations to any governmental custom or

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policy, and certainly no facts have been set forth to meet plaintiff’s burden to show a

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governmental custom of policy was the moving force behind the alleged violations.

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Because it is not absolutely clear plaintiff cannot cure this pleading deficiency,
plaintiff must be provided leave to amend. See Lucas, 66 F.3d at 248; Lopez, 203 F.3d at 1126.
B.

ADA

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Defendants argue:

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Here, Oliver alleges Shelton and Hatley violated his rights under
Title II of the ADA by failing to provide him with a reasonable
accommodation during his interrogation and arrest at the Chico Parole
Unit Office. (ECF No. 36 at 5-6.) Specifically, Oliver complains Shelton
and Hatley failed to provide him with a sign language interpreter, and as a
result he did not know why he was being arrested and did not know
Shelton verbally read him his Miranda rights during his arrest. (Id.)
However, Oliver does not allege any facts showing Shelton and Hatley
intentionally discriminated against him because of his hearing disability.
See Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1021 (9th
Cir.2010) (a plaintiff may establish he was discriminated against “by
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reason of” his disability by establishing his disability was a “motivating
factor” in the official’s decision to exclude the plaintiff from a service or
program), overruled on other grounds by Castro v. County of Los Angeles,
833 F.3d 1060 (9th Cir. 2016) (en banc). There are no allegations showing
that Oliver requested a sign language interpreter, that Shelton and Hatley
deliberately failed to act in response to Oliver’s request for a sign
language interpreter, or that Shelton and Hatley otherwise failed to
provide some other reasonable accommodation to communicate with him.
(See generally ECF No. 36; Duvall, 260 F.3d at 1139-40.) Because Oliver
fails to allege facts showing Shelton and Hatley intentionally
discriminated against him because of his hearing disability by not
providing him with a sign language interpreter, Oliver has failed to state a
claim for damages under Title II of the ADA.

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ECF No. 43-1, pgs. 6-7.

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Defendants also contend:
Oliver also alleges that Shelton and Hatley violated his rights
under Title II of the ADA by failing to provide him with a TDD phone
during his incarceration at Butte County Jail. (ECF No. 36 at 5-6.)
However, there are no allegations showing Oliver requested a TDD phone
while he was incarcerated in Butte County Jail, or that Shelton and Hatley
were aware of any such request. (See generally ECF No. 36.) Because
Oliver fails to allege facts showing Shelton and Hatley intentionally
discriminated against him because of his hearing disability by failing to
provide him with a TDD phone at Butte County Jail, Oliver has failed to
state a claim for damages under Title II of the ADA.

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ECF No. 43-1, pg. 7.
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The gravamen of defendants’ argument is that plaintiff has failed to state a claim

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for violation of Title II of the ADA because he never made them aware of the need for an

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accommodation. The Court finds that Plaintiff’s Second Amended Complaint is devoid of any

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factual allegations concerning when, if ever, he expressed his need for a sign language interpreter

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or a TDD phone to anyone in general or defendants Shelton and Hatley in particular. Plaintiff

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alleges “they” – presumably defendants – did not provide him a sign language interpreter. ECF

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No. 36, pg. 5. Plaintiff does not, however, allege he asked for a sign language interpreter.

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Similarly, plaintiff claims “no sign language interpreter was provided upon arrest.” Id. Again,

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plaintiff does not allege he asked for a sign language interpreter. Plaintiff claims he was denied

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his right to use a TDD phone but never alleged he asked to use one. See id. at 5-6. Defendants

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may not be held liable under Title II of the ADA for discrimination based on disability absent any

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facts alleged to show defendants were aware of a disability. See 42 U.S.C. § 12132; see also
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Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh’g en

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banc (Oct. 11, 2001); Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (2998).

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Again, the Court finds it is not absolutely clear plaintiff cannot cure this pleading

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defect, and plaintiff thus must be provided an opportunity to amend. See Lucas, 66 F.3d at 248;

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Lopez, 203 F.3d at 1126.

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C.

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Injunctive Relief
Finally, defendants Hatley and Shelton argue: (1) plaintiff has no standing to seek

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injunctive relief; (2) plaintiff’s requested injunctive relief is outside the scope of a lawsuit under

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Title II of the ADA; and (3) plaintiff does not allege any legal grounds for expunging state

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criminal records. See ECF No. 43-1, pgs. 7-10. Plaintiff has not filed any opposition to

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defendants’ motion. The Court construes plaintiff’s failure to oppose as consent to the relief

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requested with respect to his requests for permanent injunctive relief and will recommend

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defendants’ motion be granted in this regard without leave to amend.

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IV. CONCLUSION

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Based on the foregoing, the undersigned recommends that:

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Defendants’ unopposed motion to dismiss (ECF No. 43) be granted; and

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Plaintiff’s requests for permanent injunctive relief are dismissed without

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leave to amend; and

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3.

Plaintiff’s second amended complaint (ECF No. 36) be dismissed with

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leave to amend as to his ADA claims.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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

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with the court. Responses to objections shall be filed within 14 days after service of objections.

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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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

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Dated: May 6, 2020
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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