Loutzenhiser v. Grounds et al

Filing 6

ORDER OF SERVICE. Signed by Judge Thelton E. Henderson on 02/07/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 2/8/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C-11-2925 TEH (PR)

PAUL LOUTZENHISER,
Plaintiff,

ORDER OF SERVICE

v.
R. GROUNDS, et. al.,
Defendants.

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Plaintiff, a prisoner presently housed at the Correctional

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Training Facility (“CTF-Soledad”) in Soledad, California, filed a

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pro se civil rights action under 42 U.S.C. § 1983, and the Americans

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with Disabilities Act of 1990, 42 U.S.C.§ 12101 et seq. ("ADA").

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This action is now before the Court for initial screening pursuant

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to 28 U.S.C. § 1915A.

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I

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Plaintiff alleges the following in his complaint:

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Plaintiff is a disabled individual who requires accommodation under

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the ADA for disabilities pertaining to his damaged lower right leg,

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and related lower back, hip and leg pain.

Doc. 1 at 5.

In 2004,

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Plaintiff filed a civil suit against the California Department of

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Corrections and Rehabilitation ("CDCR") and California State Prison

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- Solano's Medical Department regarding accommodation of his

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disability.

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received verbal reassurances that his disability would be

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accommodated.

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to wool, acrylic and dust, and that he had been issued a CDCR Form

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7410 comprehensive accommodation chrono entitling him to cotton

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bedding.

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The suit was settled and Plaintiff states that he

Plaintiff also alleges that he suffers from allergies

In January 2011, defendants D. Bright and L. Fox allegedly

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revoked Plaintiff's Americans with Disabilities Act / Disability

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Program placement status, refused to provide him with footwear that

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accommodated his disability, denied him cotton bedding, and removed

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his cane, all without justification.

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corrective footwear and a cane, Plaintiff is unable to access

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certain prison facilities, including but not limited to the yard,

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cafeteria, religious services, laundry, and law library, without

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causing himself physical pain and suffering.

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defendants' actions constituted deliberate indifference to his

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serious medical needs, in violation of the Eighth Amendment, and

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constitute discrimination in violation of the ADA.

Doc. #1 at 5-7.

Without

Plaintiff alleges that

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II.
Federal courts must engage in a preliminary screening of

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cases in which prisoners seek redress from a governmental entity or

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officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a).

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In its review the Court must identify any cognizable claims, and

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dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted, or seek monetary relief from

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a defendant who is immune from such relief.

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(2).

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Id. at 1915A(b)(1),

A.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements:

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Constitution or laws of the United States was violated, and (2) that

(1) that a right secured by the

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the alleged violation was committed by a person acting under the

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color of state law.

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Pleadings filed by pro se litigants, however, must be liberally

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construed.

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Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir.

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1990).

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West v. Atkins, 487 U.S. 42, 48 (1988).

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010);

Deliberate indifference to serious medical needs violates

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the Eighth Amendment’s proscription against cruel and unusual

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punishment.

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medical need” exists if the failure to treat a prisoner’s condition

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could result in further significant injury or the “unnecessary and

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wanton infliction of pain.”

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(9th Cir. 1992) (citing Estelle, 429 U.S. at 104), overruled in part

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on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133,

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1136 (9th Cir. 1997) (en banc).

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indifferent” if he knows that a prisoner faces a substantial risk of

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serious harm and disregards that risk by failing to take reasonable

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

McGuckin v. Smith, 974 F.2d 1050, 1059

A prison official is “deliberately

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A “serious

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steps to abate it.

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Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Liberally construed, Plaintiff’s allegations of deliberate

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indifference to his serious medical needs appear to state a

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cognizable 42 U.S.C. § 1983 claim with respect to defendants D.

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Bright and L. Fox.

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named defendants Warden R. Grounds, CME M. Sepulveda, CEO G. Ellis,

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Chief IAB A. Foston, and Appeals Examiner K.J. Allen proximately

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caused the deprivation of his federally-protected right.

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Amendment claims against these defendants shall be DISMISSED.

Plaintiff, however, makes no allegations that

The Eighth
See

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Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Eighth Amendment claims shall proceed against named defendants D.

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Bright and L. Fox.

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Plaintiff's

B.

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Title II of the Americans with Disabilities Act of 1990,

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42 U.S.C.§ 12101 et seq. ("ADA"), provides that "no qualified

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individual with a disability shall, by reason of such disability, be

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excluded from participation in or be denied the benefits of the

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services, programs, or activities of a public entity, or be

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subjected to discrimination by any such entity."

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§ 12132.

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must allege four elements: (1) the plaintiff is an individual with a

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disability; (2) the plaintiff is otherwise qualified to participate

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in or receive the benefit of some public entity's services,

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programs, or activities; (3) the plaintiff was either excluded from

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participation in or denied the benefits of the public entity's

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services, programs or activities, or was otherwise discriminated

To state a claim under Title II of the ADA, the plaintiff

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42 U.S.C.

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against by the public entity; and (4) such exclusion, denial of

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benefits, or discrimination was by reason of the plaintiff's

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disability.

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Although Section 12132 does not expressly provide for reasonable

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accommodations, the implementing regulations provide that "[a]

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public entity shall make reasonable modifications in policies,

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practices, or procedures when the modifications are necessary to

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avoid discrimination on the basis of disability, unless the public

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entity can demonstrate that making the modifications would

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fundamentally alter the nature of the service, program, or

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activity."

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"reasonable accommodations" or "reasonable modifications" for

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disabled people under Title II of the ADA arises only when a policy,

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practice or procedure discriminates on the basis of disability.

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Weinreich v. Los Angeles County MTA, 114 F.3d 976, 979 (9th Cir.

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1997).

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Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

28 C.F.R. § 35.130(b)(7).

The duty to provide

The problem with Plaintiff’s complaint as to the ADA claim

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is that he has not named a proper defendant.

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defendants appear to be individuals who either evaluated

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Loutzenhiser’s medical needs or processed his inmate appeals.

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However, individuals cannot be sued directly under the ADA.

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Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999)

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("Title II provides disabled individuals redress for discrimination

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by a ‘public entity.'

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defined within the statute, does not include individuals.

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U.S.C. § 12131(1)."); see also Vinson, 288 F.3d at 1156.

See 42 U.S.C. § 12132.

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All of the named

See

That term, as it is
See 42
Therefore,

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Plaintiff’s ADA claim against the named defendants is DISMISSED.

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Here, the "public entity" that allegedly discriminated

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against Loutzenhiser would have been CTF-Soledad or the California

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Department of Corrections and Rehabilitation("CDCR") or both.

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correctional facilities are "public entities" within the meaning of

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the ADA.

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Corrections v. Yeskey, 524 U.S. 206, 210 (1998).

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to pursue an ADA claim against these public entities, he must file

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an amendment to his complaint adding them as defendants.

State

See 42 U.S.C. § 12131(1)(A) & (B); Pennsylvania Dep't of
If Plaintiff wants

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III

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For the foregoing reasons and for good cause shown:

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1.

The complaint, liberally construed, states a claim

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for relief under the ADA but has not identified any proper

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defendants.

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DISMISSED.

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an amendment to his complaint no later than March 1, 2012, in which

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he adds CTF-Soledad and/or the California Department of Corrections

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as defendants.

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the Complaint.”

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The ADA claims against the named defendants are
If Plaintiff wishes to pursue his ADA claim, he may file

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Plaintiff’s amendment shall be titled “Amendment to

The complaint, liberally construed, states a claim

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for relief under the Eighth Amendment and Section 1983 against

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defendants D. Bright and L. Fox.

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dismissed from this action.

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United States Marshal shall serve, without prepayment of fees,

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copies of the complaint in this matter and all attachments thereto

The remaining named defendants are

The Clerk shall issue summons and the

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and copies of this order on D. Bright and L. Fox, both of whom are

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prison officials at CTF-Soledad.

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of this order on Plaintiff.

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3.

The Clerk also shall serve a copy

To expedite the resolution of this case, the Court

orders as follows:

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a.

No later than ninety (90) days from the date of

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this order, Defendants shall file a motion for summary judgment or

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other dispositive motion.

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supported by adequate factual documentation and shall conform in all

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respects to Federal Rule of Civil Procedure 56, and shall include as

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exhibits all records and incident reports stemming from the events

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at issue.

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resolved by summary judgment or other dispositive motion, they shall

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so inform the Court prior to the date his motion is due.

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filed with the Court shall be served promptly on Plaintiff.

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A motion for summary judgment shall be

If Defendants are of the opinion that this case cannot be

b.

All papers

Plaintiff’s opposition to the dispositive motion

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shall be filed with the court and served upon Defendants no later

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than thirty (30) days after Defendants serve Plaintiff with the

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motion.

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c.

Plaintiff is advised that a motion for summary

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judgment under Rule 56 of the Federal Rules of Civil Procedure will,

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if granted, end your case.

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order to oppose a motion for summary judgment.

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judgment must be granted when there is no genuine issue of material

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fact - that is, if there is no real dispute about any fact that

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would affect the result of your case, the party who asked for

Rule 56 tells you what you must do in

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Generally, summary

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summary judgment is entitled to judgment as a matter of law, which

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will end your case.

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summary judgment that is properly supported by declarations (or

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other sworn testimony), you cannot simply rely on what your

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Complaint says.

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declarations, depositions, answers to interrogatories, or

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authenticated documents, as provided in Rule 56(e), that contradict

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the facts shown in Defendants’ declarations and documents and show

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that there is a genuine issue of material fact for trial.

When a party you are suing makes a motion for

Instead, you must set out specific facts in

If you do

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not submit your own evidence in opposition, summary judgment, if

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appropriate, may be entered against you.

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granted, your case will be dismissed and there will be no trial.

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Rand v. Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc)

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(App. A).

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If summary judgment is

Plaintiff also is advised that a motion to dismiss for

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failure to exhaust administrative remedies under 42 U.S.C.

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§ 1997e(a) will, if granted, end your case, albeit without

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prejudice.

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opposition in order to dispute any “factual record” presented by the

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Defendant in his

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1108, 1120 n.14 (9th Cir. 2003).

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d.

You must “develop a record” and present it in your

motion to dismiss.

Wyatt v. Terhune, 315 F.3d

Defendants shall file a reply brief within

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fifteen (15) days of the date on which Plaintiff serves them with

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the opposition.

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e.

The motion shall be deemed submitted as of the

date the reply brief is due.

No hearing will be held on the motion

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unless the court so orders at a later date.

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Discovery may be taken in accordance with the Federal

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Rules of Civil Procedure.

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the parties may conduct discovery.

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No further court order is required before

All communications by Plaintiff with the Court must

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be served on Defendants, or Defendants’ counsel once counsel has

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been designated, by mailing a true copy of the document to

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Defendants or Defendants’ counsel.

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6.

It is Plaintiff’s responsibility to prosecute this

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case.

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change of address and must comply with the Court’s orders in a

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timely fashion.

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this action pursuant to Federal Rule of Civil Procedure 41(b).

Plaintiff must keep the Court and all parties informed of any

Failure to do so may result in the dismissal of

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IT IS SO ORDERED.

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DATED

02/07/2012
THELTON E. HENDERSON
United States District Judge

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