Mau v. Ducart et al

Filing 5

ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 11/6/2017. Signed by Judge Charles R. Breyer on 8/4/2017. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 8/4/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL D. MAU, JR., AG1410,
Plaintiff(s),

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v.

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CLARK E. DUCART, Warden, et al.,

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Defendant(s).

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No. C 17-2548 CRB (PR)
ORDER OF SERVICE
(ECF No. 3)

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Plaintiff, a prisoner at Pelican Bay State Prison (PBSP), has filed a pro se

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complaint under 42 U.S.C. § 1983 seeking declaratory and monetary relief from

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PBSP Warden Clark E. Ducart and various other PBSP and California

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Department of Corrections and Rehabilitation (CDCR) officials for alleged

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violations of Title II of the American with Disabilities Act (ADA). Plaintiff also

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moves for appointment of counsel under 28 U.S.C. § 1915(e)(1).

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint

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“is frivolous, malicious, or fails to state a claim upon which relief may be

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granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed, however.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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To state a claim under § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting

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under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims

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Plaintiff alleges that he cannot read or write due to a learning disability,

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and that PBSP and CDCR officials are discriminating against him based on his

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disability by not providing him an ADA worker who can help him with his

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disability. Among other things, plaintiff alleges that he is being excluded from

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vocational and rehabilitation courses “because he does not have a qualified

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interpreter or qualified reader,” and that he “can barely maintain communication

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with his family, as he needs assistance reading and writing letters to his family.”

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Comp. (ECF No. 1) at 11. Plaintiff presented his claim to prison officials, but the

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prison’s Reasonable Accommodation Panel (RAP) denied it on November 22,

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2016, and his appeals of that decision have been denied as well.

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Section 1983 permits a plaintiff to enforce rights contained in the United

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States Constitution and defined by federal law. Vinson v. Thomas, 288 F.3d

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1145, 1155 (9th Cir. 2002). But an alleged violation of federal law may not be

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vindicated under § 1983 where “Congress has foreclosed citizen enforcement in

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the enactment itself, either explicitly, or implicitly by imbuing it with its own

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comprehensive remedial scheme.” Id. (citation omitted). Because Title II of the

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ADA provides a comprehensive remedial scheme, plaintiff is precluded from

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bringing a § 1983 claim for violation of Title II of the ADA. See id. (plaintiff

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cannot bring action under § 1983 against state officials in their individual

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capacities to vindicate rights created by Title II of ADA); Cherry v. City College

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of San Francisco, No. C 04-4981 WHA, 2006 WL 6602454, at *12 (N.D. Cal.

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2006) (extending rationale of Vinson to also preclude action under § 1983 against

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state officials in their official capacities to vindicate rights created by Title II of

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ADA). Plaintiff is limited to seeking relief under the comprehensive remedial

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scheme provided by Title II of the ADA.

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Title II of the ADA provides that “no qualified individual with a disability

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shall, by reason of such disability, be excluded from participation in or be denied

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

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subjected to discrimination by any such entity." 42 U.S.C. § 12132. Title II of

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the ADA applies to inmates within state prisons. See Pa. Dep’t of Corr. v.

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Yeskey, 524 U.S. 206, 210 (1998); Armstrong v. Wilson, 124 F.3d 1019, 1025

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(9th Cir. 1997). To establish a violation of Title II of the ADA, a plaintiff must

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show that: (1) he is a qualified individual with a disability; (2) he was excluded

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from participation in or otherwise discriminated against with regard to a public

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

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was by reasons of his disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th

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Cir. 2002). In order to recover monetary damages, a plaintiff also must show that

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the exclusion or discrimination was intentional. Duvall v. Cnty. of Kitsap, 260

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F.3d 1124, 1138 (9th Cir. 2001).

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Liberally construed, plaintiff’s allegations that PBSP and CDCR officials

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are discriminating against him based on his disability by not providing him an

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ADA worker who can help him with his disability appears to state a cognizable

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claim under Title II of the ADA, and will be served on the named PBSP and

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CDCR officials – Warden Clark E. Ducart, ADA Coordinator T. Lemos, Chief

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Medical Executive D. Jacobsen, Custody Appeals Coordinator K. Royal, Health

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Care Compliance Analyst D. Adams, Health Care Appeals Coordinator L.

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Dalbec, Psychologist J. Kelly, Case Counselor M. Markel, and Vocation-

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Computer Literacy Instructor M. Roberts (all at PBSP in Crescent City); and

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Appeals Examiner K. J. Allen and Chief of Office of Appeals M. Voong (both at

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CDCR in Sacramento).

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C.

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Motion for Appointment of Counsel
Plaintiff’s motion for appointment of counsel (ECF No. 3) is DENIED

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without prejudice to plaintiff renewing the motion after defendants appear and

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file an answer or dispositive motion. Although the court is mindful of plaintiff’s

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alleged disability, plaintiff presented his claims clearly in the complaint, albeit

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with the assistance of another inmate, and the claims are being served on the

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named defendants.
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

The clerk shall issue summons and the United States Marshal shall

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serve, without prepayment of fees, copies of the complaint in this matter, all

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attachments thereto, and copies of this order on the following defendants:

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Warden Clark E. Ducart, ADA Coordinator T. Lemos, Chief Medical Executive

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D. Jacobsen, Custody Appeals Coordinator K. Royal, Health Care Compliance

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Analyst D. Adams, Health Care Appeals Coordinator L. Dalbec, Psychologist J.

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Kelly, Case Counselor M. Markel, and Vocation-Computer Literacy Instructor

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M. Roberts (all at PBSP in Crescent City); and Appeals Examiner K. J. Allen and

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Chief of Office of Appeals M. Voong (both at CDCR in Sacramento). The clerk

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also shall serve a copy of this order on plaintiff.

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2.

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follows:

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In order to expedite the resolution of this case, the court orders as

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No later than 90 days from the date of this order, defendants

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shall serve and file a motion for summary judgment or other dispositive motion.

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A motion for summary judgment must be supported by adequate factual

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documentation and must conform in all respects to Federal Rule of Civil

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Procedure 56, and must include as exhibits all records and incident reports

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stemming from the events at issue. A motion for summary judgment also must

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be accompanied by a Rand notice so that plaintiff will have fair, timely and

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adequate notice of what is required of him in order to oppose the motion. Woods

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v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

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v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with

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motion for summary judgment). A motion to dismiss for failure to exhaust

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available administrative remedies (where such a motion, rather than a motion for

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summary judgment for failure to exhaust, is appropriate) must be accompanied

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by a similar notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012);

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Woods, 684 F.3d at 935 (notice requirement set out in Wyatt v. Terhune, 315

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F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747

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F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with

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motion to dismiss for failure to exhaust available administrative remedies).

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If defendants are of the opinion that this case cannot be resolved by

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summary judgment or other dispositive motion, they shall so inform the court

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prior to the date their motion is due. All papers filed with the court shall be

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served promptly on plaintiff.

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b.

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Plaintiff must serve and file an opposition or statement of

non-opposition to the dispositive motion not more than 28 days after the motion

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is served and filed.
c.

Plaintiff is advised that a motion for summary judgment

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under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your

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case. Rule 56 tells you what you must do in order to oppose a motion for

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summary judgment. Generally, summary judgment must be granted when there

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is no genuine issue of material fact – that is, if there is no real dispute about any

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

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judgment is entitled to judgment as a matter of law, which will end your case.

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When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply

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rely on what your complaint says. Instead, you must set out specific facts in

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declarations, depositions, answers to interrogatories, or authenticated documents,

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as provided in [current Rule 56(c)], that contradicts the facts shown in the

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defendant’s declarations and documents and show that there is a genuine issue of

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material fact for trial. If you do not submit your own evidence in opposition,

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summary judgment, if appropriate, may be entered against you. If summary

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

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v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

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Plaintiff also is advised that a motion to dismiss for failure to exhaust

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available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted,

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end your case, albeit without prejudice. You must “develop a record” and

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present it in your opposition in order to dispute any “factual record” presented by

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the defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108,

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1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show

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that you did exhaust your available administrative remedies before coming to

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federal court. Such evidence may include: (1) declarations, which are statements

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signed under penalty of perjury by you or others who have personal knowledge

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of relevant matters; (2) authenticated documents – documents accompanied by a

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declaration showing where they came from and why they are authentic, or other

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sworn papers such as answers to interrogatories or depositions; (3) statements in

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your complaint insofar as they were made under penalty of perjury and they show

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that you have personal knowledge of the matters state therein. In considering a

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motion to dismiss for failure to exhaust, the court can decide disputed issues of

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fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.

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(The Rand and Wyatt/Stratton notices above do not excuse defendants’

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obligation to serve said notices again concurrently with motions to dismiss for

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failure to exhaust available administrative remedies and motions for summary

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judgment. Woods, 684 F.3d at 935.)
d.

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Defendants must serve and file a reply to an opposition not

more than 14 days after the opposition is served and filed.

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e.

The motion shall be deemed submitted as of the date the

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reply is due. No hearing will be held on the motion unless the court so orders at a

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later date.

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3.

Discovery may be taken in accordance with the Federal Rules of

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Civil Procedure. No further court order under Federal Rule of Civil Procedure

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30(a)(2) or Local Rule 16 is required before the parties may conduct discovery.

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4.

All communications by plaintiff with the court must be served on

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defendants, or defendants’ counsel once counsel has been designated, by mailing

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a true copy of the document to defendants or defendants’ counsel.

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5.

It is plaintiff’s responsibility to prosecute this case. Plaintiff must

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keep the court and all parties informed of any change of address and must comply

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with the court’s orders in a timely fashion. Failure to do so may result in the

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

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SO ORDERED.

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DATED:

August 4, 2017

CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.17\Mau, M.17-2548.serve.wpd

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