Erwin et al v. Grounds

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Lucy H. Koh on 4/9/12. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 4/9/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 WILLIE GEORGE ERWIN, JR., 12 13 14 Plaintiff, v. WARDEN R. GROUNDS and J. CLARK KELSO, 15 Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) ) No. C 12-0031 LHK (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND Plaintiff, a California state prisoner proceeding pro se, filed this civil rights action under 18 42 U.S.C. § 1983, the Americans with Disabilities Act of 1990, 42 U.S.C.§ 12101 et seq. 19 (“ADA”), and Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. Plaintiff has been granted 20 leave to proceed in forma pauperis in a separate order. For the reasons stated below, the Court 21 DISMISSES the complaint with leave to amend. 22 23 BACKGROUND According to the complaint, Plaintiff suffers from a mobility impairment of a fused right 24 ankle, which causes him chronic pain in his lower extremities. Plaintiff was placed in the 25 Disability Placement Program at Central Training Facility, with a designation of “mobility 26 impaired not impacting placement” (“DNM”). Plaintiff asserts that he is being denied Disability 27 Placement Program verification, as well as accommodations to which he is entitled, based on his 28 disability. Order of Dismissal with Leave to Amend G:\PRO-SE\SJ.LHK\CR.12\Erwin031dwla.wpd 1 2 DISCUSSION A. 3 Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 4 seeks redress from a governmental entity or officer or employee of a governmental entity. See 5 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss 6 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or 7 seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 8 § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. 9 Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). 10 B. Legal Claims 11 1. 12 In its present form, it is unclear what Plaintiff wishes to allege. Potentially, he has a ADA, Rehabilitation Act, and § 1983 Claims 13 claim under the ADA, the Rehabilitation Act, and § 1983. However, the Court cannot determine 14 what Plaintiff’s intentions are. To aid in the Court’s preliminary screening, Plaintiff must amend 15 his complaint. 16 Title II of the ADA provides that “no qualified individual with a disability shall, by 17 reason of such disability, be excluded from participation in or be denied the benefits of the 18 services, programs, or activities of a public entity, or be subjected to discrimination by any such 19 entity.” 42 U.S.C. § 12132. To state a claim under Title II of the ADA, a plaintiff must allege 20 four elements: (1) that he is an individual with a disability; (2) that he is otherwise qualified to 21 participate in or receive the benefit of some public entity’s services, programs, or activities; (3) 22 that he was either excluded from participation in or denied the benefits of the public entity’s 23 services, programs or activities, or was otherwise discriminated against by the public entity; and 24 (4) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s 25 disability. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); cf. Olmstead v. Zimring, 26 527 U.S. 581, 589-91 (1999) (essentially same showing required to state cause of action under 27 Section 504 of the Rehabilitation Act). 28 However, the law is clear that “a plaintiff cannot bring an action under 42 U.S.C. § 1983 Order of Dismissal with Leave to Amend G:\PRO-SE\SJ.LHK\CR.12\Erwin031dwla.wpd 2 1 against a State official in her individual capacity to vindicate rights created by Title II of the 2 ADA or section 504 of the Rehabilitation Act.” See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th 3 Cir. 2002). Nor can a plaintiff bring an ADA action under § 1983 against a State official in his 4 official capacity. See Cherry v. City College of San Francisco, No. 04-4981 WHA, 2006 WL 5 6602454, *11-12 (N.D. Cal. 2006). In sum, Plaintiff cannot assert a § 1983 claim in an attempt 6 to enforce his ADA or Rehabilitation Act rights. 7 In addition, if Plaintiff intends to allege claims under the ADA and Rehabilitation Act, he 8 cannot sue these Defendants in their individual capacities. See Alsbrook v. City of Maumelle, 9 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (“Title II provides disabled individuals redress for 10 discrimination by a ‘public entity.’ See 42 U.S.C. § 12132. That term, as it is defined within the 11 statute, does not include individuals. See 42 U.S.C. § 12131(1).”). Thus, if Plaintiff is suing 12 under the ADA and Rehabilitation Act, he must name a public entity as a Defendant. 13 If, however, Plaintiff wishes to sue under 42 U.S.C. § 1983, the complaint does not 14 appear to state a claim under 42 U.S.C. § 1983 for cruel and unusual punishment. Deliberate 15 indifference to a serious risk of harm to a prisoner violates the Eighth Amendment’s proscription 16 against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 102-04 (1976). A 17 prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of 18 serious harm and disregards that risk by failing to take reasonable measures to abate it. See 19 Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994). Here, Plaintiff does not allege any unmet 20 need for treatment of his fused right ankle or resulting chronic pain. Instead, he alleges that 21 prison officials are discriminating against him based on his disability. 22 Courts should not undertake to infer another cause of action when a pro se complaint 23 clearly states a claim under a specified cause of action. See Bogovich v. Sandoval, 189 F.3d 999, 24 1001 (9th Cir. 1999). Accordingly, Plaintiff must file an amended complaint in which it is clear 25 that there is a federal question, and what that federal question is. See Easton v. Crossland 26 Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997). 27 28 CONCLUSION 1. Plaintiff’s complaint is DISMISSED with leave to amend. Order of Dismissal with Leave to Amend G:\PRO-SE\SJ.LHK\CR.12\Erwin031dwla.wpd 3 1 2. Plaintiff shall file an AMENDED COMPLAINT within thirty days from the date 2 this order is filed to cure the deficiencies described above. The amended complaint must include 3 the caption and civil case number used in this order (C 12-0031 LHK (PR)) and the words 4 AMENDED COMPLAINT on the first page. Plaintiff may not incorporate material from the 5 prior complaint by reference. Failure to file an amended complaint within thirty days and in 6 accordance with this order will result in dismissal of this action. 7 3. Plaintiff is advised that an amended complaint supersedes the original complaint. 8 “[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged 9 in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). 10 Defendants not named in an amended complaint are no longer defendants. See Ferdik v. 11 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 12 4. It is the Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 13 Court informed of any change of address by filing a separate paper with the clerk headed “Notice 14 of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 15 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule 16 of Civil Procedure 41(b). 17 18 IT IS SO ORDERED. DATED: 4/9/12 LUCY H. KOH United States District Judge 19 20 21 22 23 24 25 26 27 28 Order of Dismissal with Leave to Amend G:\PRO-SE\SJ.LHK\CR.12\Erwin031dwla.wpd 4

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