(PC) Muhammad v. Seibel ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 KWESI MUHAMMAD, No. 2:18-cv-2831 WBS AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 KIMBERLY SEIBEL, et al., 15 Defendants. 16 17 18 I. Background 19 Plaintiff is a state prisoner incarcerated at the California Training Facility under the 20 authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff 21 challenges conditions of his prior confinement at Deuel Vocational Institution (DVI) pursuant to 22 Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and Section 504 23 of the Rehabilitation Act (RA), 29 U.S.C.A. § 794. By order filed September 28, 2020, this court 24 directed that this case shall proceed on plaintiff’s Second Amended Complaint against sole 25 defendant Landon Bird, the current Warden of DVI. See ECF No. 15. 26 Now pending is plaintiff’s motion for leave to file a Third Amended Complaint (TAC), 27 together with a proposed TAC. ECF No. 17. The proposed TAC seeks to again name individual 28 defendants who were previously found improperly named in the instant case, viz., putative 1 defendant Siebel, see ECF No. 12, and putative defendants Kesterson and Starr, dismissed in 2 related case Muhammad v. Kesterson et al., Case No. 2:18-cv-2775 WBS AC P. Plaintiff again 3 emphasizes that “there is an actual connection or link between the actions of the [these] 4 Defendants and deprivation of Plaintiff’s rights under Title II of the [ADA] and Section 504 of 5 the [RA].” ECF No. 17 at 2. 6 II. Legal Standards 7 A court should freely grant leave to amend a pleading “when justice so requires.” Fed. R. 8 Civ. P. 15(a)(2). The “rule favoring liberality in amendments to pleadings is particularly 9 important for the pro se litigant.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) 10 (citation and internal quotation marks omitted). Nevertheless, leave to amend “may be denied if 11 the proposed amendment either lacks merit or would not serve any purpose because to grant it 12 would be futile[.]” Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir. 1986) 13 (citations omitted). “Although there is a general rule that parties are allowed to amend their 14 pleadings, it does not extend to cases in which any amendment would be an exercise in futility, or 15 where the amended complaint would also be subject to dismissal.” Steckman v. Hart Brewing, 16 143 F.3d 1293, 1298 (9th Cir. 1998) (citations omitted). The “proper test to be applied when 17 determining the legal sufficiency of a proposed amendment is identical to the one used when 18 considering the sufficiency of a pleading challenged under Rule 12(b)(6).” Miller v. Rykoff- 19 Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citing 3 J. Moore, Moore’s Federal Practice ¶ 20 15.08[4] (2d ed.)). 21 III. Analysis 22 As this court has previously informed plaintiff, “[t]he [only] proper defendant in ADA and 23 RA actions is the public entity responsible for the alleged discrimination. United States v. 24 Georgia, 546 U.S. 151, 153 (2010) [].” ECF No. 15 at 4; ECF No. 13 at 8-9. Defendants may not 25 be sued in their personal capacities under the Acts. Valenzuela v. Masoon, 730 Fed. Appx. 524, 26 524 (9th Cir. 2018) (citing Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (“The ADA 27 applies only to public entities[.]”)); accord, Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 28 98, 107 (2d Cir. 2001) (“[N]either Title II of the ADA nor § 504 of the Rehabilitation Act 1 || provides for individual capacity suits against state officials.” (citations omitted)) 2 Although the challenged conduct of individual DVI employees will be relevant in proving 3 || plaintiff's claims, those individuals are not proper defendants under the ADA and RA. The only 4 | appropriate defendant remains current DVI Warden Landon Bird. Therefore, plaintiffs motion 5 || for leave to further amend his complaint should be denied as futile. 6 Defendant has requested extended time to respond to the operative complaint. See ECF 7 | No. 18. For good cause shown, defendant’s request will be granted. 8 IV. Conclusion 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Defendant’s request for extended time to respond to the operative complaint, ECF No. 11 18, is GRANTED; and 12 2. Defendant shall file and serve his response to the Second Amended Complaint within 13 | thirty (30) days after the district judge rules on these findings and recommendations. 14 Further, IT IS HEREBY RECOMMENDED that plaintiff’s motion for leave to proceed 15 || on his proposed Third Amended Complaint, ECF No. 17, be DENIED. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one (21) 18 || days after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 21 || failure to file objections within the specified time may waive the right to appeal the District 22 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 23 || DATED: December 11, 2020 ~ 24 CtAt0r2— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28