(PC) Parrish v. Macomber ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KAHEAL PARRISH, No. 2:17-cv-01959-TLN-AC 12 Plaintiff, 13 v. ORDER 14 J. MACOMBER, et al., 15 Defendants. 16 17 Plaintiff Kaheal Parrish (“Plaintiff”), a state prisoner proceeding pro se, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 21, 2020, the magistrate judge filed findings and recommendations which were 21 served on Plaintiff and which contained notice to Plaintiff that any objections to the findings and 22 recommendations were to be filed within twenty-one days. (ECF No. 12.) On May 19, 2020, 23 Plaintiff filed Objections to the Findings and Recommendations. (ECF No. 15.) 24 This Court reviews de novo those portions of the proposed findings of fact to which 25 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 26 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 27 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 28 findings of fact to which no objection has been made, the Court assumes its correctness and 1 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 2 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 3 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 4 Having carefully reviewed the entire file under the applicable legal standards, the Court 5 finds the Findings and Recommendations to be supported by the record and by the magistrate 6 judge’s analysis. 7 To the extent Plaintiff argues he has stated a viable claim under the Americans with 8 Disabilities Act (“ADA”) because his mental illness is a protected disability (ECF No. 15 at 2), 9 Plaintiff’s argument is unavailing. The ADA was enacted to “provide a clear and comprehensive 10 national mandate for the elimination of discrimination against individuals with disabilities.” 42 11 U.S.C. § 12101(b)(1). The ADA is applicable to state prisoners. See Pennsylvania Dep’t of 12 Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“Modern prisons provide inmates with many 13 recreational ‘activities,’ medical ‘services,’ and educational and vocational ‘programs,’ all of 14 which at least theoretically ‘benefit’ the prisoners (and any of which disabled prisoners could be 15 excluded from participation in)”); see also Armstrong v. Wilson, 124 F.3d 1019, 1022–23 (9th 16 Cir. 1997); Duffy v. Riveland, 98 F.3d 447, 453–56 (9th Cir. 1996). 17 In order to state a claim under Title II of the ADA, Plaintiff must allege: (1) he is an 18 “individual with a disability;” (2) he is “otherwise qualified to participate in or receive the benefit 19 of some public entity’s services, programs, or activities;” (3) he was “either excluded from 20 participation in or denied the benefits of the public entity’s services, programs, or activities, or 21 was otherwise discriminated against by the public entity;” and (4) “such exclusion, denial of 22 benefits, or discrimination was by reason of [his] disability.” McGary v. City of Portland, 386 23 F.3d 1259, 1265 (9th Cir. 2004) (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) 24 (per curiam)). To recover monetary damages under Title II of the ADA, Plaintiff must prove 25 intentional discrimination on the part of the defendant. Duvall v. County of Kitsap, 260 F.3d 26 1124, 1138 (9th Cir. 2001) (quotation marks and citation omitted). The standard for intentional 27 discrimination is deliberate indifference. Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 28 2002); Duvall, 260 F.3d at 1138–40. Where an entity has notice of the need for accommodation 1 and fails to act, the deliberate indifference test has been met, so long as the failure to act is the 2 result of more than negligence and involves an element of deliberateness. Id. 3 Plaintiff alleges that his mental illness constitutes a disability, but he provides no 4 supporting facts or allegations that could justify an ADA claim. He does not allege that he was 5 excluded from participation in or denied the benefits of any services, programs, or activities due 6 to his disability. (See, generally, ECF No. 8.) Nor does he allege he was denied reasonable 7 accommodations or modifications in relation to a discriminatory policy, practice, or procedure. 8 Plaintiff’s current claim, that adverse actions were taken against him because of his mental 9 illness, do not make out discrimination pursuant to the ADA. Accordingly, Plaintiff’s objection is 10 overruled. 11 Finally, to the extent Plaintiff argues he asserted a viable claim under the Equal Protection 12 Clause of the Fourteenth Amendment (see ECF No. 15 at 2–3), these arguments were already 13 properly addressed and rejected by the magistrate judge. (See ECF No. 12 at 4.) Therefore, 14 Plaintiff’s objection is overruled. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The Findings and Recommendations filed April 21, 2020 (ECF No. 12), are adopted in 17 full; 18 2. This action shall proceed only on Plaintiff’s claim that Defendants J. Valice, H. 19 Luevano, T. Stanfield and S. Peterson used excessive force against Plaintiff on December 15, 20 2015; 21 3. All other putative claims are DISMISSED without leave to amend; and 22 4. Defendants J. Macomber, L. Eldridge, J. Clough and Todd are DISMISSED without 23 service. 24 IT IS SO ORDERED. 25 DATED: June 15, 2020 26 27 28