Hopkins v. The Salvation Army et al

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge James Donato on 7/23/14. (lrcS, COURT STAFF) (Filed on 7/24/2014) (Additional attachment(s) added on 7/24/2014: # 1 Certificate/Proof of Service) (lrcS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEVIN L. HOPKINS, Case No. 14-cv-01494-JD Plaintiff, 8 v. 9 10 THE SALVATION ARMY, et al., Defendants. ORDER OF DISMISSAL WITH LEAVE TO AMEND; DENYING MOTION TO APPOINT COUNSEL AND DENYING MOTION FOR SERVICE Re: Dkt. Nos. 3, 7 United States District Court Northern District of California 11 12 Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to Title II of the 13 14 American’s with Disabilities Act. He has been granted leave to proceed in forma pauperis. DISCUSSION 15 16 I. STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 19 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 20 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 21 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 22 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 23 Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 26 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 27 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 28 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 1 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 2 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 3 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 4 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 5 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 6 should assume their veracity and then determine whether they plausibly give rise to an entitlement 7 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 8 II. LEGAL CLAIMS Plaintiff alleges that his rights under the American’s with Disabilities Act (ADA) were 9 violated by the Salvation Army’s Adult Rehabilitation Program, a Contra Costa County Superior 11 United States District Court Northern District of California 10 Court judge, and his appointed attorney. Title II of the ADA “prohibit[s] discrimination on the 12 basis of disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides 13 that “no qualified individual with a disability shall, by reason of such disability, be excluded from 14 participation in or be denied the benefits of the services, programs, or activities of a public entity, 15 or be subject to discrimination by such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to 16 inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 213 17 (1998). 18 In order to state a claim that a public program or service violated Title II of the ADA, a 19 plaintiff must show: he is a “qualified individual with a disability”; he was either excluded from 20 participation in or denied the benefits of a public entity’s services, programs, or activities, or was 21 otherwise discriminated against by the public entity; and such exclusion, denial of benefits, or 22 discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265 23 (9th Cir. 2004). 24 Plaintiff may bring a claim under Title II of the ADA against state entities for injunctive 25 relief and damages. See Phiffer v. Columbia River Correctional Institute, 384 F.3d 791, 792 (9th 26 Cir. 2004). The standard for recovery of damages is deliberate indifference to plaintiff’s rights 27 under the ADA. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). “Deliberate 28 indifference requires both knowledge that a harm to a federally protected right is substantially 2 1 likely, and a failure to act upon that likelihood.” Id. at 1139. Plaintiff cannot seek damages 2 pursuant to the ADA against defendants in their individual capacities. Vinson v. Thomas, 288 F.3d 3 1145, 1156 (9th Cir. 2002). Plaintiff seeks only money damages in this case. He states that he entered into a plea 4 5 agreement in Contra Costa County and was then admitted into the Salvation Army Adult 6 Rehabilitation program. Plaintiff states he injured his knee on November 2, 2012, and when he 7 was released from the hospital the Salvation Army denied him entry because of their failure to 8 maintain and repair the facility and they had no use for plaintiff’s labor. Plaintiff fails to 9 specifically describe how the facility was unable to accommodate him due to the physical aspects of the building or what job he previously he had that he was unable to continue. The complaint 11 United States District Court Northern District of California 10 will be dismissed with leave to amend to provide more information on how his rights were 12 violated.1 While plaintiff has set forth the basic elements of an ADA claim, he must provide 13 additional information because “a complaint must contain sufficient factual matter, accepted as 14 true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 550 U.S. at 678 (quoting 15 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Id. Because plaintiff is only seeking money damages he must also present 18 allegations of deliberate indifference. While the Salvation Army is an appropriate defendant, the 19 individual defendants working at the Salvation Army in their individual capacities are dismissed 20 from this action. Vinson, 288 F.3d at 1156. At plaintiff’s probation revocation hearing, the state court judge did not allow plaintiff to 21 22 go to an ADA accessible rehabilitation program and appears to have revoked plaintiff’s probation. 23 Plaintiff alleges the judge violated his rights under the ADA. Plaintiff also alleges his court 24 appointed attorney violated his rights under the ADA. The judge is dismissed from this action as 25 judges are absolutely immune from civil liability for damages for acts performed in their judicial 26 capacity. See Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Plaintiff’s court appointed attorney is 27 1 28 In an amended complaint plaintiff should also indicate the location of this Salvation Army Rehabilitation Program to ensure he is bringing this action the appropriate district. 3 1 also dismissed as he was not acting under color of state law in performing his traditional functions 2 as counsel to plaintiff. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). 3 Plaintiff has also requested the appointment of counsel. The Ninth Circuit has held that a 4 district court may ask counsel to represent an indigent litigant only in “exceptional 5 circumstances,” the determination of which requires an evaluation of both (1) the likelihood of 6 success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of 7 the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 8 1991). Plaintiff appears able to present his claims adequately, and the issues are not complex. 9 Therefore, the motion to appoint counsel will be denied. CONCLUSION 10 United States District Court Northern District of California 11 1. The complaint is DISMISSED with leave to amend. The amended complaint must 12 be filed within twenty-eight (28) days of the date this order is filed and must include the caption 13 and civil case number used in this order and the words AMENDED COMPLAINT on the first 14 page. Because an amended complaint completely replaces the original complaint, plaintiff must 15 include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th 16 Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to 17 amend within the designated time will result in the dismissal of this action. 18 2. The motion to appoint counsel (Docket No. 3) is DENIED. 19 3. The motion for service (Docket No. 7) is DENIED. 20 4. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 21 Court informed of any change of address by filing a separate paper with the clerk headed “Notice 22 of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 23 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 24 Civil Procedure 41(b). 25 26 27 28 IT IS SO ORDERED. Dated: July 23, 2014 ______________________________________ JAMES DONATO United States District Judge 4

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