(PC) Lewis v. Ugwueze ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 DARONTA T. LEWIS, ) Case No.: 1:20-cv-00596-AWI-SAB (PC) 11 ) Plaintiff, ) 12 ) FINDINGS AND RECOMMENDATIONS v. ) RECOMMENDING DEFENDANTS’ MOTION 13 TO DISMISS BE DENIED DR. G. UGWUEZE, et al., ) 14 ) (ECF No. 43) ) Defendants. 15 ) ORDER DENYING PLAINTIFF’S MOTION ) TO SUBMIT EVIDENCE IN SUPPORT OF HIS 16 ) CLAIMS ) 17 ) (ECF No. 54) ) 18 19 Plaintiff Daronta T. Lewis is proceeding pro se and in forma pauperis in this civil rights action 20 pursuant to 42 U.S.C. § 1983. 21 Currently before the Court is Defendant Dr. Kokor’s motion to dismiss, filed November 20, 22 2020. 23 I. 24 RELEVANT BACKGROUND 25 This action is proceeding against Defendant Dr. Kokor for retaliation in violation of the First 26 Amendment and deliberate indifference in violation of the Eighth Amendment. 27 /// 28 1 On November 20, 2020, Defendant filed the instant motion to dismiss. (ECF No. 43.) 2 On January 22, 2021, Plaintiff filed a motion to submit evidence in support of his allegations.1 3 (ECF No. 54.) 4 On February 1, 2021, Plaintiff filed opposition to Defendant’s motion to dismiss.2 (ECF Nos. 5 57, 58.) Defendant did not file a reply and the time to do has passed. Local Rule 230(l). 6 II. 7 LEGAL STANDARD 8 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the 9 grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A motion to 10 dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 11 F.3d 729, 732 (9th Cir. 2001). In deciding a motion to dismiss, “[a]ll allegations of material fact are 12 taken as true and construed in the light most favorable to the nonmoving party.” Cahill v. Liberty 13 Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The pleading standard under Rule 8 of the Federal 14 Rules of Civil Procedure does not require “ ‘detailed factual allegations,’ but it demands more than an 15 unadorned, the-defendant-unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In assessing the 17 sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 18 U.S. at 678-79. However, “[t]hreadbare recitals of the elements of a cause of action, supported by 19 mere conclusory statements, do not suffice.” Id. at 678. To avoid a dismissal under Rule 12(b)(6), a 20 complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 21 550 U.S. at 570. 22 /// 23 24 1 The Court cannot decipher the nature or purpose of Plaintiff’s motion to submit. However, to the extent, Plaintiff seeks to introduce evidence for purpose of judicial notice to prove his claims, Plaintiff is advised that “[c]ourts may only take 25 judicial notice of adjudicative facts that are not subject to reasonable dispute.” United States v. Ritchie, 342 F.3d 903, 908- 09 (9th Cir. 2003) (citing Fed. R. Evid. 201(b)). “Facts are indisputable, and thus subject to judicial notice, only if they 26 either ‘generally known’...or capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned[.]” Id. at 909. Plaintiff has not shown that any the documents are subject to judicial notice and the Court does 27 not serve as a repository for evidence. Accordingly, Plaintiff’s motion shall be denied. 28 2 1 In deciding whether a complaint states a claim, the Ninth Circuit has found that two principles 2 apply. First, to be entitled to the presumption of truth the allegations in the complaint “may not simply 3 recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to 4 give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 5 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair to require the defendant to be subjected to 6 the expenses associated with discovery and continued litigation, the factual allegations of the 7 complaint, which are taken as true, must plausibly suggest an entitlement to relief. Starr, 652 F.3d at 8 1216. “Dismissal is proper only where there is no cognizable legal theory or an absence of sufficient 9 facts alleged to support a cognizable legal theory.” Navarro, 250 F.3d at 732 (citing Balistreri v. 10 Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988)). 11 III. 12 DISCUSSION 13 Defendant Dr. Kokor moves to dismiss an alleged medical claim under the Americans with 14 Disabilities Act (ADA). However, in screening Plaintiff’s complaint, the Court specifically found that 15 Plaintiff failed to state a cognizable claim under the ADA, finding stating Plaintiff “failed to allege 16 that he was denied access to a governmental benefit because of that disability. Rather, Plaintiff 17 contends he was not provided adequate medical devices and/or treatment by Doctor Kokor in 18 retaliation for filing prior grievances and complaints.” (ECF No. 17 at 6.) The Court’s July 29, 2020, 19 screening order granted Plaintiff the opportunity to amend the complaint or notify the Court of his 20 intent to proceed only on the retaliation and deliberate indifference claims against Defendant Dr. 21 Kokor. (Id. at 10.) 22 On August 14, 2020, Plaintiff filed a notice of intent to proceed only on the retaliation and 23 deliberate indifference claims against Defendant Dr. Kokor and dismiss all other claims and 24 Defendants. (ECF No. 18.) Therefore, on August 18, 2020, the undersigned issued Findings and 25 Recommendations recommending that this action proceed against Defendant Dr. Kokor on Plaintiff’s 26 retaliation claim under the First Amendment and deliberate indifference claim under the Eighth 27 Amendment, and that all other claims (including any ADA claim) and Defendants be dismissed from 28 the action for failure to state a cognizable claim. (ECF No. 21.) The Findings and Recommendations 1 || were adopted in full on September 17, 2020, any ADA claim was dismissed for failure to state a 2 || cognizable claim for relief, and the case was ordered to proceed only on Plaintiff's retaliation and 3 || deliberate indifference claims against Defendant Dr. Kokor (ECF No. 24.) Accordingly, the instant 4 || motion to dismiss Plaintiff's ADA claim should be denied as moot and unnecessary. 5 IV. 6 ORDER AND RECOMMENDATION 7 Based on the foregoing, it is HEREBY ORDERED that Plaintiff's motion to submit evidence 8 || (ECF No. 54) is denied. 9 Further, it is HEREBY RECOMMENDED that Defendant’s motion to dismiss (ECF No. 43) 10 || Plaintiff's ADA claim be denied as moot and unnecessary. 11 This Findings and Recommendation will be submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 13 || after being served with this Findings and Recommendation, the parties may file written objections 14 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 15 || Recommendation.” The parties are advised that failure to file objections within the specified time mz 16 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 17 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 IS SO ORDERED. A (Se _ 20 ll Dated: _ February 25, 2021 OF UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28