(PC) Center v. D'Agostini ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 STEVEN ROGER CENTER, No. 2:19-cv-0091 AC P 11 Plaintiff, 12 v. ORDER 13 D’AGSTINI, et al.,1 14 Defendants. 15 16 Plaintiff, a county jail inmate proceeding pro se, seeks relief pursuant to the Americans 17 with Disabilities Act and the Rehabilitation Act of 1973 and has requested authority pursuant to 18 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1, 2, 12. Plaintiff has also filed a 19 motion requesting “pro se status and privileges.” ECF No. 13. This proceeding was referred to 20 this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1)(B). 21 For the reasons stated below, the court will deny plaintiff’s first-filed motion to proceed in 22 forma pauperis and grant the second. The court will also deny plaintiff’s motion to receive “pro 23 se status and privileges.” The complaint is screened herein pursuant to 28 U.S.C. § 1915A(a), 24 and found to state a claim. Service will be directed by separate order. 25 1 The name of the Sheriff of El Dorado County, John D’Agostini, is misspelled throughout 26 plaintiff’s complaint. See generally ECF No. 1; see https://www.edcgov.us/Government/sheriff. The court takes judicial notice of this fact. See Fed. R. Evid. 201(b)(2); United States v. Wilson, 27 631 F.2d 118, 119 (9th Cir. 1980) (permitting judicial notice of fact no subject to reasonable dispute). As a result, it will direct the Clerk of Court to correct the spelling of the sheriff’s last 28 name on the case caption of the court’s docket. 1 I. IN FORMA PAUPERIS APPLICATIONS 2 Plaintiff’s first application to proceed in forma pauperis, filed January 14, 2019, does not 3 include a certified copy of his trust account statement as 28 U.S.C. § 1915(a)(2) requires. See 4 generally ECF No. 2. As a result, it is incomplete and will be denied as such. 5 Plaintiff’s second application to proceed in forma pauperis, filed March 11, 2019, includes 6 a declaration that makes the showing required by 28 U.S.C. § 1915(a). See ECF No. 12. 7 Therefore, it will be granted. 8 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 9 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 10 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 11 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 12 forward it to the Clerk of Court. Thereafter, plaintiff will be obligated for monthly payments of 13 twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 14 These payments will be forwarded by the appropriate agency to the Clerk of Court each time the 15 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 16 1915(b)(2). 17 II. SCREENING REQUIREMENT 18 The court is required to screen complaints brought by prisoners seeking relief against a 19 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 20 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 21 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 22 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2). 23 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 24 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 25 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 26 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 27 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 28 //// 1 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 2 Cir. 1989); Franklin, 745 F.2d at 1227. 3 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 4 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 5 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 6 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 7 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 8 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 9 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 10 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 11 McKeithen, 395 U.S. 411, 421 (1969). 12 III. PLAINTIFF’S COMPLAINT 13 Plaintiff challenges limitations on access to vocational programming at the South Lake 14 Tahoe Jail, and names as defendants El Dorado County Sheriff D’Agostini, Lieutenant Green, 15 and Administrative Sergeant George. See ECF No. 1 at 1-2. The complaint alleges violations of 16 the Rehabilitation Act of 1973 (“RA”) and of the Americans with Disabilities Act (“ADA”). See 17 id. at 3. Plaintiff, who is disabled by chronic medical conditions and pain, is allegedly excluded 18 from the jail’s Vocational Education Culinary Arts class by applicable “El Dorado County 19 operating procedures.” Id. Plaintiff alleges that “neither ADA inmates or those of the female 20 gender are able to participate in the Culinary Arts program, nor is there an alternative vocational 21 course available.” Id. The absence of an alternative program deprives plaintiff of the opportunity 22 to earn “milestone credits,” and thus affects his release date. Id. Plaintiff seeks injunctive relief 23 only. Id. at 4. Specifically, he requests accommodation in the form of County acceptance of a 24 specific paralegal training course as “a 12 week milestone.” Id. 25 IV. ANALYSIS 26 Title II of the ADA was expressly modeled after Section 504 of the Rehabilitation Act. 27 See Weinreich v. Los Angeles Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). 28 Jails and prisons are appropriate public entities subject to suit under Title II. See Pennsylvania 1 Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998) (state prisons); Updike v Multnomah 2 County, 870 F.3d 939, 949 (9th Cir. 2017) (county jails). The proper defendant is an entity and 3 not a natural person. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). However, a 4 plaintiff may proceed under the ADA against an individual sued in his or her official capacity 5 when the only relief sought is prospective injunctive relief.2 See Miranda B. v. Kitzhaber, 328 6 F.3d 1181, 1189 (9th Cir. 2003) (per curiam). The same rule applies under the RA. See 7 Armstrong v. Wilson, 124 F.3d 1019, 1025-26 (9th Cir. 1997). 8 Title II of the ADA provides that “no qualified individual with a disability shall, by reason 9 of such disability, be excluded from participation in or be denied the benefits of the services, 10 programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 11 42 U.S.C. § 12132; Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). To prevail 12 on an ADA claim, plaintiff must show that: (1) he is a qualified individual with a disability; (2) 13 he was either excluded from participation or denied the benefits of a public entity’s services, 14 programs or activities, or was otherwise discriminated against by the public entity, and (3) such 15 exclusion, denial of benefits, or discrimination was by reason of his disability. Weinreich, 114 16 F.3d at 978 (internal quotation marks omitted). 17 Section 504 of the Rehabilitation Act provides: “No otherwise qualified individual with a 18 disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, 19 be denied the benefits of, or be subjected to discrimination under any program or activity 20 receiving Federal financial assistance.” 29 U.S.C. § 794(a). A plaintiff bringing suit under 21 Section 504 must show that: (1) he is an individual with a disability; (2) he is otherwise qualified 22 to receive the benefit; (3) he was denied the benefits of the program solely by reason of his 23 disability, and (4) the program receives federal financial assistance. Weinreich, 114 F.3d at 978. 24 For purposes of screening only, the court finds that plaintiff has adequately stated a claim 25 under the ADA and RA. The complaint alleges that plaintiff is disabled and has been denied the 26 //// 27 2 Official capacity suits filed against state officials are an alternative way of pleading an action 28 against the entity of which the defendant is an officer. Haler v. Melo, 502 U.S. 21, 25 (1991). 1 opportunity to participate in a specified program because of his disability.3 Plaintiff seeks only 2 prospective injunctive relief, and has identified an available accommodation. See Pierce v. Cty. 3 of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008). Accordingly, the complaint presents a 4 cognizable claim under the ADA and RA against defendants in their official capacities. 5 VI. PLAINTIFF’S MOTION FOR PRO SE STATUS AND PRIVILEGES 6 Plaintiff has filed a motion for “Pro Se Status and Privileges.” ECF No. 13. The motion 7 asks the court to direct the El Dorado County Sheriff’s Department and Inmate Services of the 8 South Lake Tahoe Division to provide services and materials as needed throughout these 9 proceedings so that plaintiff may file court documents in a timely fashion. See id. at 2. The 10 services and materials plaintiff requests range from paper, pencils, envelopes and postage, to 11 photocopies for court filings. See id. at 1. 12 The right to access to the courts includes the right to services and supplies that are 13 indispensable to the filing of court documents. Allen v. Sakai, 48 F.3d 1082, 1089 (9th Cir. 14 1994). Indigent inmates must be provided with paper and pen to draft legal documents as well as 15 with other related services. See Bounds v. Smith, 430 U.S. 817, 824-25 (1977), abrogated on 16 other grounds by Lewis v. Casey, 518 U.S. 343 (1996). 17 The instant motion does not allege that plaintiff has been denied essential supplies and/or 18 services that are needed for him to file documents in this matter. See generally ECF No. 13. 19 There is no indication that jail officials have told plaintiff that he may not in the future obtain or 20 receive writing materials. See id. Accordingly, plaintiff’s motion to require the El Dorado 21 County Sheriff and Inmate Services to provide court-ordered legal supplies and services is 22 premature and will be denied. 23 VII. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT 24 You have presented a claim for injunctive relief (a court order for accommodation) under 25 26 3 Although the complaint also references discrimination against female inmates, plaintiff’s own claim rests on his disability and is brought only under the ADA and RA. Plaintiff lacks standing 27 to litigate any sex-based discrimination related to the challenged policy. See generally Valley Forge Christian Coll. v. Ams. United for Separation of Church State, Inc., 454 U.S. 464, 471 28 (1982). 1 | the ADA and RA. The court will issue a separate order directing the U.S. Marshal to serve the 2 || complaint. Under the law, this claim is brought against the individuals in their official capacities. 3 | That means that the defendants are sued based on the position(s) that they hold, and are proper 4 | defendants to the extent that whoever holds those positions can provide the relief you seek. 5 Your motion for pro se status and privileges is being denied. There is no evidence that 6 || you have been deprived of supplies and services that are essential for filing documents and 7 | litigating this case. Without a showing that your constitutional right of access to the court is 8 || being denied, the court will not get involved in the jail’s internal management. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiffs motion to proceed in forma pauperis, filed January 14, 2019 (ECF No. 2), is 11 | DENIED as incomplete; 12 2. Plaintiff’s motion to proceed in forma pauperis, filed March 11, 2019 (ECF No. 12), is 13 | GRANTED; 14 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 15 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 16 || 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 17 || appropriate agency filed concurrently herewith; 18 4. Service of the complaint is appropriate for defendants D’ Agostini, Green and George. 19 || The complaint states a cognizable claim for relief pursuant to the Americans with Disabilities Act 20 || and the Rehabilitation Act of 1973; 21 5. Plaintiffs motion to receive “pro se status and privileges,” filed March 18, 2019 CECF 22 || No. 13), is DENIED without prejudice, and 23 6. The Clerk of Court is directed to change the spelling of the defendant sheriff’s name 24 || from “D’ Agstini” to “D’ Agostini” in the case caption of the court’s docket. 25 || DATED: January 22, 2020 ~ 26 htthten— Mone ALLISON CLAIRE 27 UNITED STATES MAGISTRATE JUDGE 28