(PC) Sam v. Delacruz ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VISNA SAM, No. 2:18-cv-0991 AC P 12 Plaintiff, 13 v. ORDER 14 KIMBERLY DELACRUZ, 15 Defendant. 16 17 Plaintiff, an inmate at San Joaquin County Jail (“SJCJ”) proceeding pro se, seeks relief 18 pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed 19 in forma pauperis. ECF Nos. 1, 2. This proceeding was referred to this court by Local Rule 302 20 pursuant to 28 U.S.C. § 636(b)(1). 21 For the reasons stated below, plaintiff’s request to proceed in forma pauperis will be 22 granted. However, plaintiff’s complaint will be dismissed with leave to amend. 23 I. IN FORMA PAUPERIS APPLICATION 24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 25 1915(a). See ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted. 26 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of Court. Thereafter, plaintiff will be obligated for monthly payments of 3 twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 4 These payments will be forwarded by the appropriate agency to the Clerk of Court each time the 5 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 6 1915(b)(2). 7 II. SCREENING REQUIREMENT 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 19 Cir. 1989); Franklin, 745 F.2d at 1227. 20 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 21 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 22 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 23 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 24 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 25 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 26 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 27 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 28 McKeithen, 395 U.S. 411, 421 (1969). 1 III. PLEADING STANDARD 2 A. Generally 3 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 4 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 5 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source 6 of substantive rights, but merely provides a method for vindicating federal rights conferred 7 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 8 To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) 9 that a right secured by the Constitution or laws of the United States was violated and (2) that the 10 alleged violation was committed by a person acting under the color of state law. See West v. 11 Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987). 12 A complaint must contain “a short and plain statement of the claim showing that the 13 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 14 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 17 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial 18 plausibility demands more than the mere possibility that a defendant committed misconduct and, 19 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78. 20 B. Linkage Requirement 21 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 22 that each defendant personally participated in the deprivation of his rights. See Jones v. 23 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 24 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 25 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 26 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 27 Government officials may not be held liable for the actions of their subordinates under a 28 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 1 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 2 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 3 violated the Constitution through his own individual actions by linking each named defendant 4 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 5 Iqbal, 556 U.S. at 676. 6 IV. PLAINTIFF’S COMPLAINT 7 Plaintiff’s complaint consists of a single claim which appears to allege deprivations of 8 right under the Equal Protection Clause. See generally ECF No. 1 at 3. Plaintiff alleges that 9 because of his disability, he has been assigned to the sheltered housing section of SJCJ for the 10 duration of his sentence. As a result, he has not been able to participate in any programs like 11 other inmates. The claim states verbatim and in its entirety: 12 I have been denied equal opportunity to participate in any programs because I’ve been permanently housed in sheltered housing section 13 at this facility for the duration of my sentence. I’m basically being forced into a situation because of my handicap to be denied some of 14 my civil rights in accordance to ADA. 15 ECF No. 1 at 3. 16 Plaintiff seeks monetary compensation in the amount of $10,000.00. He also seeks 17 injunctive relief which directs that prison programming be made available to him. See id. 18 V. LEGAL STANDARD 19 The Equal Protection Clause broadly requires the government to treat similarly situated 20 people equally. Hartman v. California Dep’t of Corr. and Rehabilitation, 707 F.3d 1114, 1123 21 (9th Cir. 2013). To state an equal protection claim, typically a plaintiff must allege that 22 “‘defendants acted with an intent or purpose to discriminate against [him] based upon 23 membership in a protected class,’” such as a particular race or religion. Furnace v. Sullivan, 705 24 F.3d 1021, 1030 (9th Cir. 2013) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 25 1998)). “Intentional discrimination means that a defendant acted at least in part because of a 26 plaintiff's protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (internal 27 quotation marks and citation omitted) (emphasis in original); see also Byrd v. Maricopa Cnty. 28 Sheriff’s Dep’t, 565 F.3d 1205, 1212 (9th Cir. 2009) (to state an equal protection claim, plaintiff 1 “must plead intentional unlawful discrimination or allege facts that are at least susceptible of an 2 inference of discriminatory intent”). 3 Disability is not a suspect class for Equal Protection purposes. Pierce v. County of 4 Orange, 526 F.3d 1190, 1225 (9th Cir. 2008). Where the governmental classification does not 5 involve a suspect or protected class, or impinge upon a fundamental right, the classification will 6 not “‘run afoul of the Equal Protection Clause if there is a rational relationship between disparity 7 of treatment and some legitimate governmental purpose.’” Nurre v. Whitehead, 580 F.3d 1067, 8 1098 (9th Cir. 2009) (quoting Cent. State Univ. v. Am. Ass’n of Univ. Professors, 526 U.S. 124, 9 127-28 (1999)). 10 VI. DISCUSSION 11 A. The Equal Protection Claim Is Not Adequately Pleaded 12 Plaintiff’s claim that he is being deprived of equal protection under the law as someone 13 who has a disability is not cognizable on its face for a couple of reasons. First and foremost, 14 although plaintiff names one Kimberly Delacruz as the sole defendant, he fails to identify who 15 she is (i.e., whether she is a state actor) and how she personally participated in depriving him of 16 his equal protection rights. The deprivation of a constitutional right by an individual acting 17 under color of state law is essential to a Section 1983 claim. See West, 487 U.S. at 48; 18 Ketchum, 811 F.2d at 1245. Moreover, vague and conclusory allegations concerning the 19 involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board 20 of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 The claim is also not cognizable as currently presented because plaintiff’s disabled 22 status is not a suspect classification, and plaintiff has not presented facts demonstrating why he 23 believes his placement in sheltered housing as a disabled person was not rationally related to a 24 legitimate government interest. See generally Nurre, 580 F.3d at 1098. Furthermore, it is well- 25 settled that inmates do not have a constitutional right to incarceration in a particular housing 26 unit or to institutional programming. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); 27 Meachum v. Fano, 427 U.S. 215, 224-28 (1976); Baxter v. Palmigiano, 425 U.S. 308, 323 28 (1976) (stating Due Process Clause does not create liberty interest in not losing privileges and 1 California law has not created constitutionally protected liberty interest in hobbies or crafts); 2 see also Coakley v. Murphy, 884 F.2d 1218, 1221 (9th Cir. 1989) (stating no right to 3 participation in rehabilitative programs while incarcerated). 4 Finally, prison officials have nearly unfettered discretion to move a prisoner within a 5 prison for administrative or safety concerns, or for no reason at all. See generally Grayson v. 6 Rison, 945 F.2d 1064, 1067 (9th Cir. 1991) (stating Due Process Clause imposes few 7 restrictions on prison officials’ use of legitimate administrative authority). As a result, without 8 more facts related to why defendant Delacruz and/or other jail officials placed plaintiff in 9 sheltered housing – facts which call into question whether the rational relationship standard can 10 be met – this claim is not cognizable. Nevertheless, plaintiff will be given the opportunity to 11 amend the complaint so that he may correct the deficiencies in it. 12 B. Americans With Disabilities Act 13 Plaintiff’s allegations suggest that he may be attempting to assert a claim under Title II 14 of the Americans with Disabilities Act. To state a claim under Title II of the ADA, the plaintiff 15 must allege that: 16 (1) he “is an individual with a disability;” (2) he “is otherwise qualified to participate in or receive the benefit of some public 17 entity's services, programs, or activities;” (3) he “was either excluded from participation in or denied the benefits of the public entity's 18 services, programs, or activities, or was otherwise discriminated against by the public entity;” and (4) “such exclusion, denial of 19 benefits, or discrimination was by reason of [his] disability.” 20 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (alteration in original) 21 (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002)). The Supreme Court has held 22 that Title II of the ADA applies to state prisons. Pennsylvania Dep’t of Corr. v. Yeskey, 524 23 U.S. 206, 209-10 (1998). 24 Compensatory damages are available under the ADA where the failure to accommodate 25 is the result of deliberate indifference. Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 26 2002). “Deliberate indifference requires both knowledge that a harm to a federally protected 27 right is substantially likely, and a failure to act upon that likelihood.” Duvall v. County of 28 Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). The first element is satisfied when the public 1 entity has notice that an accommodation is required. Id. The second element is satisfied if the 2 entity's “failure to act [is] a result of conduct that is more than negligent, and involves an 3 element of deliberateness.” Id. 4 ADA claims may not be brought against state officials in their individual capacities. 5 Stewart v. Unknown Parties, 483 F. App’x 374, 374 (9th Cir. 2012) (citing Lovell, 303 F.3d at 6 1052); Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). If 7 plaintiff intends to assert an ADA claim, it must be stated against defendants in their official 8 capacities. 9 VII. OPTIONAL LEAVE TO AMEND 10 Plaintiff will be given the opportunity to amend the complaint. If plaintiff chooses to file 11 an amended complaint, it will take the place of his original complaint. See Lacey v. Maricopa 12 County, 693 F.3d 896, 925 (9th Cir. 2012) (stating amended complaint supersedes original 13 complaint). Any amended complaint filed should observe the following: 14 An amended complaint must identify as a defendant only persons who personally 15 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. 16 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 17 constitutional right if he does an act, participates in another's act or omits to perform an act he is 18 legally required to do that causes the alleged deprivation). 19 An amended complaint must also contain a caption including the names of all defendants. 20 Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated 21 claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 22 Any amended complaint must be written or typed so that it is complete in itself without 23 reference to any earlier filed complaint. See E.D. Cal. L.R. 220. This is because an amended 24 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 25 earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375 F.2d 55, 26 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being treated 27 thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 28 (2012). 1 VIII. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT 2 Your complaint does not state a claim, partly because you have not provided enough 3 information about the individuals who placed you in sheltered housing and how that placement 4 ultimately prevented you from participating in SJCJ programming. The original complaint will 5 not be served, but you are being given the chance to file an amended complaint. 6 An amended complaint should identify the individuals who place you in sheltered 7 housing, the reasons for that placement, and the surrounding circumstances. You should clearly 8 state whether your placement in sheltered housing was solely due to your disability, and whether 9 nondisabled inmates were also placed in sheltered housing and deprived of programming. Those 10 facts are necessary for the court to evaluate whether you can state an equal protection claim. 11 Because it seems that you may be trying to sue under the American with Disabilities Act, 12 the court has also provided you with information about what facts you need to allege in order to 13 state an ADA claim. If you do intend to bring an ADA claim, your amended complaint should set 14 forth that claim separately from your constitutional claim and clearly identify it. 15 CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s motion to proceed in forma pauperis, filed April 24, 2018 (ECF No. 2), is 18 GRANTED; 19 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 20 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 21 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 22 appropriate agency filed concurrently herewith; 23 3. Plaintiff’s complaint, filed April 23, 2018 (ECF No. 1), is DISMISSED with leave to 24 amend, and 25 //// 26 //// 27 //// 28 //// 1 4. Within thirty days of the date of this order, plaintiff shall file a first amended 2 | complaint. Failure to file an amended complaint within the time allotted may result in the 3 || dismissal of this action for failure to prosecute. 4 | DATED: August 8, 2019 ~ 5 Hthren— Llane ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28