(PC) Walker v. Gates ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 G. DANIEL WALKER, No. 2:20-CV-02338-DAD-DMC-P 12 Plaintiff, 13 v. ORDER 14 S. GATES, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, seeks relief pursuant to Title II of the 18 American with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the 19 Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794. 20 Defendants State of California, D. Bright, N. Malakka, A. Adams, R. Burton, A. 21 Abdulgader, S. Gates, and R. Kumar D. Cueva, L. Austin, and D. Mathis filed a notice of 22 removal, and the action was removed to this Court within thirty days of service on the last-served 23 Defendant, as required under 28 U.S.C. § 1446(b). See ECF No. 1. Pursuant to Local Rule 123, 24 Defendants submitted a notice of related cases notifying the Court that Plaintiff had filed a related 25 action in Sacramento Superior Court. See ECF No. 1, pg. 4.1 Plaintiff submitted objections, see 26 ECF No. 7, which was construed as a motion to remand but denied as untimely. See ECF No. 12. 27 28 1 The related action has also been removed to the Eastern District of California. See Case 1 The Court ordered Plaintiff to file a single pleading containing all claims and attaching all 2 documents he wished the Court to consider when evaluating his claims, and provided Plaintiff an 3 opportunity to file a first amended complaint. See ECF No. 13. Now pending before the Court is 4 Plaintiff’s first amended complaint. ECF No. 17. 5 The Court is required to screen complaints brought by prisoners seeking relief 6 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 7 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 8 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 9 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 10 the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement 11 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means 12 that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 13 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 14 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 15 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 16 with at least some degree of particularity overt acts by specific defendants which support the 17 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 18 impossible for the Court to conduct the screening required by law when the allegations are vague 19 and conclusory. 20 21 I. PLAINTIFF’S ALLEGATIONS 22 Plaintiff names the following as Defendants: (1) S. Gates, (2) N. Malakka, (3) A. 23 Adams, (4) D. Mathis, (5) K. Kumar, (6) K. Green, (7) J. Medina, (8) D. Overly, (9) J. Gallagher, 24 (10) V. Singh, (11) K. Peterson, (12) Warden, Salinas Valley State Prison, (13) Warden, 25 California Medical Facility, (14) Warden, California Health Care Facility, (15) Warden, Corcoran 26 State Prison, (16) Secretary of Corrections, (17) Directors of Corrections, (18) California 27 Department of Corrections and Rehabilitation (“CDCR”), and (19) State of California. See ECF 28 No. 17, pgs. 1-2. Employees and officers of the CDCR are named in their official capacities. See 1 id., pg. 2. The State of California is sued through its state agencies CDCR, Salinas Valley State 2 Prison (“SVSP”), California Medical Facility (“CMF”), Corcoran State Prison (“COR”) and 3 California Health Care Facility (“CHCF”). See id. 4 Plaintiff asserts three claims: (1) discrimination based on disability through 5 refusal to obey the ADA and RA, (2) retaliation for challenging denial of disability 6 accommodations and ineffective disability policy, and (3) denial of due process in administration 7 of ADA accommodations. See id., pgs. 6, 8, 10. Plaintiff states that he has multiple disabilities, 8 including confinement to wheelchair full-time due to mobility and age (97 years old), profound 9 hearing loss, and is “legally blind from macular degeneration.” Id., pg. 4. Plaintiff asserts that he 10 qualifies for auxiliary aids and devices due to his documented disabilities, which substantially 11 limit one or more of his major life activities, but that Defendants “hold complete control over” 12 these auxiliary aids. See id., pg. 5. 13 With respect to his first claim, Plaintiff alleges that at various times, Defendants 14 Green, Kumar, Warden of SVSP, Malakka, Medina, Warden of CMF, Overly, Gallagher, Warden 15 of COR, Adams, Singh, Peterson, and Warden of CHCF have denied and deprived Plaintiff of 16 auxiliary aids and devices for his vision and hearing loss, despite Plaintiff’s numerous requests 17 for accommodations. See id., pg. 6. Plaintiff further alleges that his personal purchase of ADA 18 aids were seized from incoming mail. See id., pg. 6. Plaintiff contends that because Defendants 19 failed to provide him with accommodations due to his disability, he was unable to read his court 20 mail and court orders, or participate in court proceedings, and he was in “total isolation” from 21 “assistance from fellow prisoners”; thus his cases were dismissed. Id., pg. 7. Plaintiff claims that 22 Defendants have a duty to issue ADA accommodations, in the form of auxiliary aids and devices, 23 to Plaintiff but have refused to do so. See id. Generally, Plaintiff alleges that by failing to provide 24 the aids and devices, Defendants discriminated against him and deprived him of the ADA 25 accommodations he needed to communicate and engage in his court cases. See id., pgs. 6-7. 26 Plaintiff seeks equal access to these aids and devices. See id., pgs. 5-7. 27 / / / 28 / / / 1 As to his second claim, Plaintiff alleges that Defendants are punishing Plaintiff for 2 challenging their actions. See id., pg. 10. Specifically, Plaintiff alleges that after Plaintiff filed a 3 written complaint regarding Defendants’ ADA policy, procedures, and practices, Defendants 4 Green, Kumar and Warden of SVSP determined that Plaintiff could no longer file ADA requests 5 and Defendant Green and Kumar provided state and federal agencies with false information 6 pertaining to his disability, and that Plaintiff should not be provided Braille and Talking Books 7 equipment. See id., pg. 8. Further, Defendant Kumar ordered Plaintiff’s transfer medical 8 equipment seized, resulting in multiple falls and injury requiring transfer from Defendant SVSP 9 to the hospital for emergency medical care. See id. While at the hospital, Plaintiff asserts that 10 personal property from his prison cell was seized and disposed of. See id. Defendants Medina 11 and Warden of CMF ordered Defendant Mathis to falsify, and ordered Defendant Malakka to 12 seal, Plaintiff’s medical records to reflect no disability; as a result, Plaintiff was transferred from 13 Defendant CMF to Defendant COR. See id., pgs. 8-9. 14 According to Plaintiff, in response to Plaintiff challenging Defendant Gallagher as 15 unfit in his position as ADA coordinator, Defendant Gallagher searched Plaintiff’s cell and seized 16 dietary supplements, legal paper, court forms, and law books. See id., pg. 9. Defendants Adams, 17 Singh, and Warden of CHCF also ordered the seizure of auxiliary aids and devices from his cell, 18 and labeling such items as “contraband,” despite Defendant Singh stating that Plaintiff could 19 purchase, at his own expense, such auxiliary aids. See id. In response to Plaintiff challenging the 20 seizure of such items, Defendant Peterson repeatedly ordered Plaintiff’s cell to be searched. See 21 id., pg. 10. Plaintiff was also restricted from using the library without cause. See id. 22 Lastly, Plaintiff alleges in his third claim that he has been denied due process as to 23 ADA requests and decisions because Defendants Gates, Secretary, Directors, Green, Medina, 24 Overly, Gallagher, Singh, and Peterson have devised a policy and procedure to “ensure lack of 25 compliance” with the ADA. Id., pgs. 10-11. Plaintiff asserts that, as a result of Defendants’ 26 actions, he is limited in the manner in which he seeks ADA accommodations and is not permitted 27 to attend the ADA accommodation hearings, where such determinations on his requests are made. 28 See id. Plaintiff states that he has made over 70 written ADA requests without receiving 1 accommodation, including eye surgery, which Defendant Green denied—even though multiple 2 physicians had approved it allegedly to save his sight. See id., pg. 11. Plaintiff alleges that 3 Defendants have a duty to provide due process on ADA requests and decisions, but he has been 4 denied that right as he is precluded from attending the hearings, is unable to provide his medical 5 records as evidence supporting his ADA requests, is not permitted to confront the evidence 6 presented by Defendants, and is prohibited from receiving the transcript from the hearing for 7 judicial or administrative review. See id., pgs. 10-11. 8 Plaintiff seeks: (1) declaratory judgment that Defendants lack authority to deny 9 Plaintiff auxiliary aids, (2) an order enjoining Defendants from precluding Plaintiff from 10 attending, and presenting evidence at, the ADA accommodation hearings, and (3) statutory 11 damages and attorneys’ fees. See id., pg. 12. 12 13 II. DISCUSSION 14 For the reasons discussed below, the Court finds that Plaintiff’s first amended 15 complaint is appropriate for service on Defendant CDCR as to Plaintiff’s ADA and RA claims. 16 Those claims, however, are not cognizable as to the individual defendants, other state agencies, or 17 the State of California itself. The Court also finds that Plaintiff has stated a cognizable claim for 18 retaliation under the ADA against Defendants Green, Kumar, Warden of SVSP, Medina, Warden 19 of CMF, Mathis, Malakka, Gallagher, Adams, Singh, Peterson, and Warden of CHCF. Finally, 20 the Court finds that Plaintiff has failed to state any cognizable due process claims, with respect to 21 which Plaintiff will be provided an opportunity to amend should he wish to continue to pursue 22 such claims. 23 A. Discrimination Based on Disability 24 To state a claim under Title II of the ADA, a plaintiff must allege that: 25 (1) he “is an individual with a disability;” (2) he “is otherwise qualified to participate in or receive the benefit of some public entity’s services, 26 programs, or activities;” (3) he “was either excluded from participation in or denied the benefits of the public entity’s services, programs, or 27 activities, or was otherwise discriminated against by the public entity;” 28 / / / 1 and (4) “such exclusion, denial of benefits, or discrimination was by reason of [his] disability.” 2 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) 3 (alteration in original) (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)). 4 5 “[I]nsofar as Title II [of the ADA] creates a private cause of action for damages against the States 6 for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state 7 sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006). The Supreme Court 8 has held that Title II of the ADA applies to state prisons. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 9 206, 209-10 (1998). While the RA has the additional requirement that the program or activity 10 receive federal funds, 29 U.S.C. § 794, “[t]here is no significant difference in analysis of the 11 rights and obligations created by the ADA and the Rehabilitation Act. Thus, courts have applied 12 the same analysis to claims brought under both statutes,” Zukle v. Regents of the Univ. of Cal., 13 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (internal citations omitted). 14 Plaintiff has alleged sufficient facts to show he is being denied access to services, 15 programs, and activities as a result of the CDCR and its employees’ refusal to accommodate his 16 disabilities and the CDCR will be required to respond. However, Plaintiff’s Title II claims for 17 discrimination should not proceed against the individual Defendants. 18 To the extent Plaintiff is attempting to make claims against the individual 19 Defendants in their individual capacities, he fails to state a claim because “[t]he ADA applies 20 only to public entities.” Lovell v. Chander, 303 F.3d 1039, 1052 (9th Cir. 2002)); 42 U.S.C. 21 § 12131(1)(A)-(B) (defining a public entity under the ADA as any state or local government or 22 agency of a state or local government); see also Gable v. Wash. Corr. Ctr. For Women, 857 F. 23 App’x 918, 919 (9th Cir. 2021) (individuals not liable under Title II of the ADA); Garcia v. 24 S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“[N]either Title II of the 25 ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state 26 officials.” (citations omitted)); A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 804 (3rd Cir. 2007) 27 (citation omitted) (no cause of actions against individuals under RA). To the extent the individual 28 Defendants are sued in their official capacities, such claims are equivalent to a suit against the 1 entity itself and are therefore redundant and may be dismissed. Ctr. for Bio-Ethical Reform, Inc. 2 v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) (citations omitted). 3 If Plaintiff is attempting to bring individual capacity ADA and RA claims under 4 § 1983, he also fails to state a claim. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) 5 (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her 6 individual capacity to vindicate rights created by Title II of the ADA or section 504 of the 7 Rehabilitation Act.”). 8 Because it appears that all alleged violations stem from the conduct of CDCR 9 employees or CDCR policies, it is unnecessary for the case to proceed against (1) the individual 10 medical facilities and prisons, which are state agencies, (2) the individual defendants, or (3) the 11 State of California. Accordingly, Plaintiff’s ADA and RA claims most properly proceed against 12 the CDCR, the offending public entity. 13 B. Retaliation 14 Plaintiff alleges retaliation under the ADA against Defendants Green, Kumar, 15 Warden of SVSP, Medina, Warden of CMF, Mathis, Malakka, Gallagher, Adams, Singh, 16 Peterson, and Warden of CHCF. The ADA provides that “[n]o person shall discriminate against 17 any individual because such individual has opposed any act or practice made unlawful by this 18 chapter or because such individual made a charge, testified, assisted, or participated in any 19 manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). 20 In order to state a claim for retaliation under the ADA, “a plaintiff must make out a 21 prima facie case ‘(a) that he or she was engaged in protected activity, (b) that he or she suffered 22 an adverse action, and (c) that there was a causal link between the two.’” T.B. ex rel. Brenneise v. 23 San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015) (quoting Emeldi v. Univ. of Or., 24 673 F.3d 1218, 1223 (9th Cir. 2012)) (applying Title VII retaliation standard to claims for 25 retaliation under the ADA); see also 42 U.S.C. § 12203(b) (“It shall be unlawful to coerce, 26 intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on 27 account of his or her having exercised or enjoyed, or on account of his or her having aided or 28 encouraged any other individual in the exercise or enjoyment of, any right granted or protected by 1 this chapter.”). “Pursuing one’s rights under the ADA constitutes a protected activity.” Pardi v. 2 Kaiser Found. Hosp., 389 F.3d 840, 850 (9th Cir. 2004) (citation omitted). 3 As alleged, Plaintiff has stated a cognizable claim against these Defendants for 4 retaliation. Plaintiff claims that in retaliation for filing written complaints challenging 5 Defendants’ ADA policy, procedures, and practices and his accommodation denials, Defendants 6 have interfered with, and prevented, Plaintiff from filing additional requests for ADA 7 accommodations, transferred Plaintiff to another institution, prevented Plaintiff from receiving 8 ADA related accommodations or devices, seized Plaintiff’s transfer medical equipment and other 9 personal property from his cell, and restricted his library use without cause. See id., pgs. 8-10. 10 Plaintiff has sufficiently alleged that the protected activity he engaged prompted Defendants’ 11 actions, which led to the stated adverse actions based on his disability. 12 C. Due Process 13 It appears that Plaintiff asserts a procedural due process claim under the 14 Fourteenth Amendment against Defendants Gates, Secretary and Directors of Department of 15 Corrections, Green, Medina, Overly, Gallagher, Singh, and Peterson regarding their denial of 16 Plaintiff’s requests for accommodations and access to the ADA hearings. A viable procedural 17 due process claim requires “deprivation of a constitutionally protected liberty or property interest 18 and denial of adequate procedural protection.” Krainski v. Nevada ex rel. Bd. Of Regents of Nev. 19 Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010) (citing Brewster v. Bd. of Educ. of the 20 Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)). 21 The purpose of the accommodation hearing is to determine whether to grant a 22 request for accommodation, not whether to remove one. As alleged, Plaintiff does not state facts 23 to support a conclusion that he was at risk of being deprived of a property interest in any 24 accommodation devices he may have been seeking and he fails to identify any specific liberty 25 interest that was at stake. Furthermore, to the extent the accommodation request process can be 26 considered a form of administrative grievance, prisoners do not have “a separate constitutional 27 entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th 28 Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Plaintiff’s allegations are 1 therefore insufficient to state a due process claim. Plaintiff will nonetheless be provided an 2 opportunity to amend if he wishes to continue to pursue a due process claim. 3 4 III. CONCLUSION 5 Because it is possible that the deficiencies identified in this order may be cured by 6 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 7 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 8 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 9 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 10 prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 11 amended complaint must be complete in itself without reference to any prior pleading. See id. 12 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 13 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 14 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 15 each named defendant is involved, and must set forth some affirmative link or connection 16 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 17 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Because the complaint appears to otherwise state cognizable claims, if no amended 19 complaint is filed within the time allowed therefor, the Court will issue findings and 20 recommendations that the claims identified herein as defective be dismissed, as well as such 21 further orders as are necessary for service of process as to the cognizable claims. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff may file a second amended complaint within 30 days of the date 3 | of this order; and 4 2. Defendants shall file a response within 30 days of the date of this order to 5 || Plaintiff's motion for a temporary restraining order and preliminary injunction, ECF No. 25. 6 7 || Dated: December 20, 2022 Svc 8 DENNIS M. COTA 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10