Senator v. Macomber ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRUCE RICHARD SENATOR, Case No. 1:24-cv-00439-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION 13 v. ORDER DIRECTING CLERK OF COURT 14 JEFF MACOMBER, et al., TO RANDOMLY ASSIGN A DISTRICT JUDGE 15 Defendants. (ECF No. 9) 16 OBJECTIONS DUE WITHIN 17 FOURTEEN DAYS 18 19 On October 3, 2024, Bruce Richard Senator (“Plaintiff”), proceeding pro se and in forma 20 pauperis, filed a first amended complaint (“FAC”) against (1) Jeff Macomber, secretary of 21 corrections at California Department of Corrections and Rehabilitation (“CDCR”); (2) Matthew 22 McVay, former warden at Valley State Prison (“VSP”); (3) Theresa Cisneros, warden at California 23 Substance Abuse Treatment Facility and State Prison (“CASATF”); (4) David Lopez, correctional 24 officer at CASATF; (5) Jason Davis, correctional officer at CASATF; (6) Ernest Rocha, 25 correctional officer at CASATF; (7) Leonardo Parra, correctional officer at CASATF; (8) J. Singer, 26 correctional officer at CASATF; (9) Daniel Hernandez, chief probation officer at Orange County 27 Probation Department; and (10) Kathleen Green, supervising probation officer at Orange County 28 Probation Department. (ECF No. 9.) The FAC is currently before the Court for screening. 1 I. 2 SCREENING REQUIREMENT 3 Because Plaintiff is proceeding in forma pauperis, the Court may dismiss a case at any time 4 if the Court determines the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on 5 which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 6 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 7 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 8 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings 9 which seek monetary relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 10 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. 11 § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal 12 for failure to state a claim). 13 In determining whether a complaint fails to state a claim, the Court uses the same pleading 14 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and 15 plain statement of the claim showing that the pleader is entitled to relief…” Fed. R. Civ. P. 8(a)(2). 16 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 17 of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 18 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 19 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept 20 as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 21 (2007); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (“[W]here the petitioner 22 is pro se, particularly in civil rights cases, [courts should] construe the pleadings liberally and … 23 afford the petitioner the benefit of any doubt” (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 24 2010)).). Although a court must accept as true all factual allegations contained in a complaint, a 25 court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint 26 [that] pleads facts that are ‘merely consistent with’ a defendant’s liability … ‘stops short of the 27 line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 28 U.S. at 557). Therefore, the complaint must contain sufficient factual content for the court to draw 1 the reasonable conclusion that the defendant is liable for the misconduct alleged. Id. Leave to 2 amend may be granted to the extent that the deficiencies of the complaint can be cured by 3 amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995). 4 II. 5 COMPLAINT ALLEGATIONS 6 The Court accepts Plaintiff’s allegations as true only for the purpose of the screening 7 requirement under 28 U.S.C. § 1915. 8 Plaintiff summarily alleges he has “substantial physical disabilities.” (FAC 15.) Plaintiff 9 attaches medical records from institutional encounters which state he has a disability related to 10 mobility and that he needs a wheelchair lift to access transport vehicles. (FAC 50, 63-64, 66-68.) 11 On June 24, 2021, while Plaintiff was incarcerated at CASATF, Defendants Lopez, Davis, 12 Rocha, and Parra, while under supervision of Defendant Cisneros, engaged in a conspiracy to 13 murder Plaintiff due to Plaintiff’s efforts to assist another inmate in litigation and efforts to report 14 threats made by Defendant Lopez. (FAC 5, 10.) On the date of incident, CASATF officials 15 engaged one inmate to incite another inmate to murder Plaintiff. (FAC 10.) The attack resulted in 16 injuries to Plaintiff. (Id.) 17 From July 2021 through August 27, 2021, Defendants Davis, Rocha, and Singer, while 18 under supervision of Defendant Cisneros, engaged in a conspiracy to incite inmates to murder 19 Plaintiff to suppress Plaintiff’s CDCR-602 grievances and efforts to bring in the CDCR Office of 20 Internal Affairs regarding the June 24, 2021 murder attempt. (Id.) 21 On November 15, 2022, in advance of Plaintiff’s April 12, 2023 release from prison, CDCR 22 Parole Services officials at VSP initiated a Release Program Study (“RPS”) which was forwarded 23 to Orange County Probation Department officials, including Defendants Hernandez and Green, 24 along with copies of Plaintiff’s CDCR medical documents. (FAC 6.) The RPS notates “Transport 25 Precaution Code: 92” and “Physical Limitations: Transport Vehicle with Lift.” (Id.) Plaintiff’s 26 medical documentation noted “Transport Vehicle with Lift” and that Plaintiff “[n]eeds a wheelchair 27 lift to access transport vehicles.” (Id.) Plaintiff alleges he also “filed with Defendant McVay” 28 requests that included a CDCR-602 Grievance; a CDCR-1824 Reasonable Accommodation 1 Request; additional medical disability documents regarding a “Transport Vehicle with Lift”; and 2 an “outline of injuries and conditions” to ensure CDCR provided a transport vehicle with a lift upon 3 Plaintiff’s release. (FAC 6-7.) 4 On April 12, 2023, Plaintiff was released from CDCR custody. (FAC 7.) CDCR personnel 5 drove Plaintiff to the Amtrak station located at 18770 Road 26 in Madera, California. (Id.) Plaintiff 6 alleges McVay and other fictitious defendants withheld his California identification card; gave 7 Plaintiff a debit card with $200 in release funds but placed a “block” on the card; and provided no 8 “reasonable accommodation transport vehicle with lift” upon release. (Id.) Plaintiff alleges the 9 Defendants did so because they planned to murder Plaintiff at the Amtrak station by a drive-by 10 shooting. (FAC 9.) Plaintiff tied his personal property to his rollator with his shoelaces and walked 11 for ten hours from the Amtrak Station to the City of Madera Police Department, located at 330 12 South C Street in Madera, California. (FAC 8.) At Plaintiff’s request, Madera Police contacted 13 Defendants Hernandez and Green; however, they would not provide assistance, transportation, or 14 other relief. (Id.) 15 From April 12, 2023 to April 19, 2023, Plaintiff camped out in the outer entrance alcove of 16 the Madera Police Department. (Id.) Plaintiff alleges Defendant McVay and fictitious defendants 17 specifically requested that the Madera Police tell Plaintiff they wanted Plaintiff to camp out on the 18 street to allow CDCR officials to plan another murder drive-by shooting. (FAC 9.) 19 Plaintiff seeks monetary compensation for his damages, including endangerment to his 20 health, safety, and life. (FAC 2, 8.) 21 III. 22 DISCUSSION 23 Plaintiff brings four causes of action for conspiracy to commit murder against McVay, 24 Cisneros, Lopez, Davis, Rocha, Parra, and Singer, and two causes of action for violations of the 25 Americans with Disabilities Act (“ADA”) against McVay, Hernandez, and Green.1 The Court 26 1 The Court notes that while Macomber is named as a defendant (FAC 2), the FAC fails to allege any factual allegations 27 related to Macomber and Macomber is not named in any of the six causes of action. The Court finds Plaintiff fails to state any claim against Macomber in the FAC. The Court provided Plaintiff an opportunity to amend his initial 28 complaint to state a cognizable claim against Macomber. 1 liberally construes Plaintiff’s first four causes of action as alleging a conspiracy under section 1983. 2 The Court first addresses Plaintiff’s section 1983 claims, then his claims under the ADA. 3 A. Section 1983 4 As stated in the prior screening order, 42 U.S.C. § 1983 provides a cause of action for the 5 violation of a plaintiff’s constitutional or other federal rights by persons acting under color of state 6 law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. Cnty. of Los Angeles, 442 7 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a 8 claim under section 1983, Plaintiff is required to show that (1) each defendant acted under color of 9 state law and (2) each defendant deprived him of rights secured by the Constitution or federal law. 10 Long, 442 F.3d at 1185. 11 To bring a claim under section 1983, Plaintiff must demonstrate that each defendant 12 personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 677; Simmons v. Navajo 13 County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 14 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Further, the complaint must allege that every 15 defendant acted with the requisite state of mind to violate the underlying constitutional provision. 16 OSU Student Alliance v. Ray, 699 F.3d 1053, 1070 (9th Cir. 2012). 17 1. The ADA 18 As previously explained, Plaintiff must allege a violation of a right secured by the 19 constitution or federal law to state a claim under section 1983. Plaintiff does not allege any 20 Defendant violated a constitutional right. Neither does Plaintiff state what federal law supports his 21 section 1983 claim. The Court notes the only alleged violation of federal law is that McVay, 22 Hernandez, and Green violated the ADA. (FAC 14-15.) 23 However, Plaintiff cannot allege a section 1983 claim predicated upon a violation of the 24 ADA. “An alleged violation of federal law may not be vindicated under § 1983 ... where ... 25 ‘Congress has foreclosed citizen enforcement in the enactment itself, either explicitly, or implicitly 26 by imbuing it with its own comprehensive remedial scheme.’ ” Vinson v. Thomas, 288 F.3d 1145, 27 1155 (9th Cir. 2002) (quoting Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995)). “[A] 28 comprehensive remedial scheme for the enforcement of a statutory right creates a presumption that 1 Congress intended to foreclose resort to more general remedial schemes to vindicate that right.” 2 Vinson, 288 F.3d at 1155 (quoting Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999)). The Ninth 3 Circuit has found that the specificity and comprehensiveness of the ADA “suggest[s] that Congress 4 intended the Title II remedial scheme to be the exclusive means by which a party could vindicate 5 his Title II ADA rights, and that allowing the plaintiff to use the more general § 1983 remedial 6 scheme instead would be contrary to Congress's intent.” Okwu v. McKim, 682 F.3d 841, 844 (9th 7 Cir. 2012) (citing Vinson, 288 F.3d at 1156). Thus, “[s]ection 1983 is not a vehicle to vindicate 8 statutory rights secured by the ADA; rather, plaintiff must sue under the ADA directly.” Hill v. 9 Baca, No. 08-03834 CAS (AJW), 2010 WL 1727655, at *6 (C.D. Cal. Apr. 26, 2010). 10 Accordingly, to the extent Plaintiff’s section 1983 claims are predicated upon a violation of 11 the ADA, Plaintiff fails to state a cognizable legal theory. 12 2. Conspiracy 13 The Court liberally construes Plaintiff’s first through fourth causes of action as alleging a 14 civil conspiracy pursuant to section 1983. 15 A conspiracy under 42 U.S.C. § 1983 is “a conspiracy to deprive a plaintiff of a 16 constitutional or federally protected right under color of state law.” Dyess ex rel. Dyess v. 17 Tehachapi Unified Sch. Dist., No. 1:10-CV-00166-AWI, 2010 WL 3154013, at *8 (E.D. Cal. Aug. 18 6, 2010) (quoting Dixon v. City of Lawton, Okl., 898 F.2d 1443, 1449 n.6 (10th Cir. 1990)). 19 Importantly, to “recover under a § 1983 conspiracy theory, a plaintiff must plead and prove not 20 only a conspiracy, but also a deprivation of rights; pleading and proof of one without the other will 21 be insufficient.” Id. (quoting Dixon, 898 F.2d at 1449 n.6). The “essence of a § 1983 claim is the 22 deprivation of the right rather than the conspiracy.” Id. (quoting Dixon, 898 F.3d at 1449 n.6). 23 A complaint alleging a conspiracy under section 1983 must “allege [some] facts to support 24 the existence of a conspiracy among the defendants.” Buckey v. County of Los Angeles, 968 F.2d 25 791, 794 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 26 1988). In other words, conclusory allegations of conspiracy are not enough to support a section 27 1983 conspiracy claim. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam). 28 A conspiracy claim brought under section 1983 requires proof of “an agreement or meeting of the 1 minds to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting 2 United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) 3 (citation omitted)), and an actual deprivation of constitutional right, Hart v. Parks, 450 F.3d 1059, 4 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 5 (9th Cir. 1989)). 6 Here, Plaintiff alleges one extensive conspiracy to murder him by CDCR officials, separated 7 by four incidents spanning from June 2021 to April 19, 2023. (FAC 9-13.) However, Plaintiff fails 8 to allege a constitutional or federal right that Defendants conspired to violate. See Dyess, 2010 9 WL 3154013, at *8 (to “recover under a § 1983 conspiracy theory, a plaintiff must plead and prove 10 not only a conspiracy, but also a deprivation of rights….”). Plaintiff’s allegations are insufficient 11 to plausibly establish that any defendant engaged in a conspiracy to deprive him of any particular 12 right secured by the Constitution or federal law. Even construing the FAC liberally, Plaintiff fails 13 to state a claim upon which relief may be granted as to any conspiracy claim under section 1983 14 against Defendants Lopez, Davis, Rocha, Parra, Singer, and McVay. 15 As alleged, Plaintiff’s allegations of a conspiracy are also conclusory. See Perkins v. 16 Kemalyan, No. CV 09–7439, 2010 WL 6416247 at *5 (C.D. Aug. 6, 2010) (“Our jurisprudence 17 requires more than labels of a conspiracy; it requires factual content.”). Plaintiff alleges insufficient 18 facts to support the existence of an agreement or meeting of the minds to violate Plaintiff’s 19 unspecified rights between Defendants Lopez, Davis, Rocha, Parra, and non-party inmates on June 20 24, 2021 (FAC 10); Defendants Davis, Rocha, and Singer from July through August 27, 2021 (FAC 21 11); McVay and fictitious defendants when releasing Plaintiff from custody on April 12, 2023 22 without identification, funds, or transportation (FAC 12); or McVay and fictitious defendants when 23 requesting the Madera Police Department to instruct Plaintiff to camp on the street to effectuate a 24 plan to have Plaintiff murdered by a drive-by shooting at night from April 12-19, 2023 (FAC 13). 25 Further, Plaintiff alleges that at the time of the conclusory conspiracies alleged in his first 26 and second causes of action, “ultimate supervisorial liability rested with Defendant Theresa 27 Cisneros, Warden CASATF, who failed to properly train and supervisor [sic] her subordinates.” 28 (FAC 10-11.) There is no respondeat superior liability under section 1983; therefore, each 1 defendant is only liable for her own misconduct. Iqbal, 556 U.S. at 677. “A supervisor may be 2 liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is ‘a 3 sufficient causal connection between the supervisor’s wrongful conduct and the constitutional 4 violation.’ ” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (citation and quotations 5 omitted). “Under the latter theory, supervisory liability exists even without overt personal 6 participation in the offensive act if supervisory officials implement a policy so deficient that the 7 policy itself is a repudiation of constitutional rights and is the moving force of a constitutional 8 violation.” Id. Here, Plaintiff fails to allege any specific policy that is a moving force of any 9 constitutional violation or that there is any causal link between Cisneros and a constitutional 10 violation. Accordingly, Plaintiff fails to state a section 1983 claim against Cisneros under a theory 11 of supervisory liability. 12 B. The ADA 13 Plaintiff’s fifth and sixth causes of action allege that McVay, Green, and Hernandez violated 14 the ADA after Plaintiff’s release from CDCR custody. The Court liberally construes the FAC to 15 allege violations under Title II of the ADA, 42 U.S.C. § 12132, which prohibits a public entity from 16 discriminating against a qualified individual with a disability on the basis of disability. Weinreich 17 v. L.A. County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). In order to state a claim 18 of disability discrimination under Title II, a plaintiff must allege that: 19 (1) he “is an individual with a disability;” (2) he “is otherwise qualified to participate in or receive the benefit of some public 20 entity's services, programs, or activities;” (3) he “was either excluded from participation in or denied the benefits of the public entity's 21 services, programs, or activities, or was otherwise discriminated against by the public entity;” and (4) “such exclusion, denial of 22 benefits, or discrimination was by reason of [his] disability.” 23 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (quoting Thompson v. Davis, 295 24 F.3d 890, 895 (9th Cir. 2002)). 25 Further, “[t]o recover monetary damages under Title II of the ADA, a plaintiff must prove 26 intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d 27 1124, 1138 (9th Cir. 2001). The standard for intentional discrimination is deliberate indifference, 28 “which requires both knowledge that a harm to a federally protected right is substantially likely, 1 and a failure to act upon that likelihood.” Id. at 1139. The ADA plaintiff must both “identify 2 ‘specific reasonable’ and ‘necessary’ accommodations that the state failed to provide” and show 3 that the defendant's failure to act was “a result of conduct that is more than negligent, and involves 4 an element of deliberateness.” Id. at 1140. When the plaintiff has alerted the public entity to his 5 need for accommodation (or where the need for accommodation is obvious, or required by statute 6 or regulation), the public entity is on notice that an accommodation is required, and the plaintiff 7 has satisfied the first element of the deliberate indifference test. Id. at 1139. 8 As an initial matter, Plaintiff states that he sues McVay, Green, and Hernandez in their 9 individual capacities and that “[n]o officials, nor state agencies are sued in the official capacity.” 10 (FAC 2.) However, as stated in a prior screening order, Plaintiff may not pursue an ADA claim 11 against defendants in their individual capacities to vindicate rights created by Title II of the ADA. 12 Vinson, 288 F.3d at 1156; see also Walsh v. Nev. Dep't of Hum. Res., 471 F.3d 1033, 1038 (9th 13 Cir. 2006) (holding that the “bar on suits against individual defendants” applies to the ADA); 14 Williams v. California Dep't of Corr. & Rehab., No. 2:16-CV-01377 MCE CKD, 2017 WL 977766, 15 at *5 (E.D. Cal. Mar. 14, 2017) (noting that “Plaintiffs may sue only a public entity like CDCR for 16 violations of the ADA, not government officials in their individual capacities”); cf. Becker v. 17 Oregon, 170 F. Supp. 2d 1061, 1066 (D. Or. 2001) (noting that while “[i]ndividual defendants may 18 not be sued in their individual capacities under Title II of the ADA, they may be sued in their 19 official capacities because suing an individual in his official capacity is treated the same as suing 20 the entity itself.”). Here, Plaintiff sues neither a public entity responsible for the alleged 21 discrimination nor any defendant in their official capacity. Accordingly, Plaintiff’s disability 22 discrimination claims under the ADA against McVay, Green, and Hernandez in their individual 23 capacities should be dismissed. 24 Even if Plaintiff had sued McVay in his official capacity as warden of VSP or Green and 25 Hernandez in their official capacities as Orange County Probation Department officials, Plaintiff 26 still fails to state a cognizable claim under the ADA. Plaintiff must first allege that he is an 27 individual with a disability. While Plaintiff conclusorily alleges he has “substantial physical 28 disabilities” (FAC 15), he fails to allege he has a qualifying disability under the ADA. However, 1 Plaintiff attaches institutional medical records that state he is disabled and needs a wheelchair lift 2 to access transport vehicles. (FAC 27.) By incorporating the attachments, the Court finds Plaintiff 3 is an individual with a qualifying disability for screening purposes. However, the FAC does not 4 sufficiently allege the remaining necessary elements of a Title II ADA claim. 5 Plaintiff’s fifth claim alleges that McVay, knowing Plaintiff had substantial physical 6 disabilities, denied Plaintiff’s rights under the ADA by effecting Plaintiff’s release with no 7 identification, release funds, or “reasonable accommodation transportation.” (FAC 14.) As stated 8 in the initial screening order, the allegations do not clearly allege whether the basis of Plaintiff’s 9 claim stems from a failure to transport Plaintiff to the Amtrak station via an accessible transport 10 vehicle or if it is the fact Plaintiff was not transported from VSP to Orange County. As to the 11 former, the FAC does not contain any factual allegations that plausibly suggest that Plaintiff was 12 transported to the Amtrak station by a vehicle without a wheelchair lift or other reasonable 13 accommodation. As to the latter, Plaintiff provides no allegations that plausibly suggest that 14 transportation from VSP to Orange County is a service, program, or activity normally offered by 15 VSP. Further, Plaintiff proffers no factual material to suggest that he was excluded from such a 16 service or denied benefits only because he is disabled. Rather, Plaintiff concurrently alleges that 17 he was transported to the Amtrak station not for discriminatory purposes, but because Defendants 18 intended to “commit murder by releasing Plaintiff with: NO identification[,] NO release funds[, 19 and] NO ‘Reasonable Accommodation’ transportation” and that “Defendants acted in this manner, 20 intentionally, as it was planned to have Plaintiff murdered by drive-by shooting while camped out 21 on the street at night.” (FAC 13.) Plaintiff therefore fails to allege a cognizable claim against 22 McVay under the ADA, even if McVay was properly sued in his official capacity. 23 Plaintiff’s sixth claim alleges that Hernandez and Green agreed on December 28, 2022 that 24 Plaintiff was to be provided a transport vehicle with lift upon release from CDCR custody into 25 Green and Hernandez’s custody for probation. (FAC 15.) Plaintiff alleges that Hernandez and 26 Green denied Plaintiff’s rights under the ADA by effecting a release to their custody with “NO 27 ‘Reasonable Accommodation’ transportation.” (Id.) While Plaintiff was transported to the Amtrak 28 station upon release from VSP, his identification was withheld, his debit card was “blocked,” and 1 he was not provided “reasonable accommodation transportation” allegedly due to CSATF and 2 McVay’s conspiracy “to have Plaintiff murdered at the Amtrak station by a drive-by shooting.” 3 (FAC 9.) Because Hernandez and Green were advised that Plaintiff was left at the Amtrak station 4 and was stranded in front of the Madera Police Department but would not provide any “ ‘reasonable 5 accommodation’ transportation,” Plaintiff alleges both violated the ADA by “fail[ing] to abide by 6 their written consent December 28, 2022 [sic] to provide ‘Transport Vehicle with Lift’…‘Transport 7 Precaution,’ and… ‘Transport Vehicle with Lift….” (FAC 9, 15.) 8 Plaintiff fails to state a cognizable claim under the ADA against Defendants Hernandez and 9 Green. Even accepting as true Plaintiff’s allegation that Hernandez and Green agreed Plaintiff was 10 to be provided a transport vehicle with a wheelchair lift upon his release from custody,2 the FAC 11 does not allege any facts that show Plaintiff was denied a transport vehicle with a wheelchair lift 12 upon his release, nevertheless that such denial was due to his disability. Instead, Plaintiff alleges 13 that Hernandez and Green violated the ADA for failing to provide transportation upon being 14 advised that Plaintiff left the Amtrak station and walked to the Madera Police Department. Plaintiff 15 fails to allege facts that support that such transportation assistance was a service provided by the 16 Orange County Probation Department and the reason it was denied to Plaintiff was because he was 17 disabled. Because Plaintiff fails to allege that he was excluded from participation in, or denied the 18 benefits of, any service or programs offered by Green and Hernandez because of his disability, or 19 that he was subjected to any type of discrimination by reason of his disability, Plaintiff fails to state 20 a claim under the ADA against Hernandez and Green, even if they were properly sued in their 21 official capacities. 22 C. Supplemental Jurisdiction 23 The Court notes the caption and footer of the FAC state that Plaintiff also brings claims “for 24 violation of Civil Rights 42 U.S.C. § 1983 and § 12101, with state pendant claims per California 25 Civil Code §§ 43, 51, and 1708.”3 (See FAC generally.) However, the FAC fails to allege any 26 2 Plaintiff references a CDCR form document signed by Green on December 28, 2022 (FAC 57-60), which indicates Plaintiff’s Disability Placement Program (FAC 59, 66) and lists Plaintiff’s medical concerns and disabilities, including 27 a notation of “Physical Limitations: Transport Vehicle with Lift.” (FAC 60.) 28 3 Plaintiff alleged claims against Macomber, CDCR, and McVay under California Civil Code § 43; California Civil 1 causes of action under state law. Even if Plaintiff did allege claims under state law, a district court 2 may decline to exercise supplemental jurisdiction over such claims when it “has dismissed all 3 claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the 4 federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims 5 remain, the federal court should decline the exercise of jurisdiction....” Carnegie-Mellon Univ. v. 6 Cohill, 484 U.S. 343, 350 (1988) (footnote omitted). Having found Plaintiff fails to state any claim 7 under federal law, the Court declines to exercise its supplemental jurisdiction of any claims under 8 state law that Plaintiff may also be attempting to assert in the FAC. 9 D. Leave to Amend 10 Leave to amend generally shall be denied only if amendment would unduly prejudice the 11 opposing party, cause undue delay, be futile, or if the moving party has acted in bad faith. 12 Leadsinger, Inc. v. BMG Music Publishing, 512 F.3d 522, 532 (9th Cir. 2008). “These factors, 13 however, are not given equal weight. Futility of amendment can, by itself, justify the denial of ... 14 leave to amend.” U.S. ex rel. Insoon Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th 15 Cir. 2001); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be 16 given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 17 clear that the deficiencies of the complaint could not be cured by amendment.”) (citation omitted). 18 It appears to the Court that further amendment of this case would be futile because the 19 deficiencies have not been cured despite being given prior leave to amend. The Court has 20 previously provided Plaintiff the relevant legal standards to support claims under section 1983, the 21 ADA, and various state laws. In particular, the Court noted in a prior screening order that Plaintiff’s 22 section 1983 claims failed to state a deprivation of a constitutional or federal right; that Plaintiff 23 could not pursue an ADA claim against government officials in their individual capacities; and that 24 a cognizable ADA claim requires factual allegations that show that Plaintiff was excluded from 25 participation in or denied the benefits of a public entity's services, programs, or activities, or was 26 otherwise discriminated against by the public entity, and that such exclusion, denial of benefits, or 27 Code § 51; and California Civil Code § 1708 in his initial complaint. The Court found Plaintiff failed to state a cognizable claim under state law but provided the relevant legal standards for each claim in a prior screening order. 28 (See ECF No. 7 at 10-12.) 1 | discrimination was because of his disability. The Court provided Plaintiff leave to amend to cure 2 | the deficiencies. However, the FAC re-alleges section 1983 conspiracy and ADA claims that 3 | contain the same deficiencies as Plaintiffs initial complaint. The Court therefore finds further 4 | amendment would be futile and recommends that the action be dismissed without leave to amend. 5 IV. 6 ORDER AND RECOMMENDATION 7 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall randomly 8 | assign a District Judge to this action. 9 Further, it is HEREBY RECOMMENDED that this action be DISMISSED without leave 10 || to amend for failure to state a claim. 11 These findings and recommendations are submitted to the district judge assigned to this 12 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 13 | (14) days of service of this recommendation, Plaintiff may file written objections to these findings 14 | and recommendations with the Court limited to 15 pages in length, including any exhibits. Such a 15 | document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 16 | The district judge will review the magistrate judge’s findings and recommendations pursuant to 28 17 | U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time 18 | may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 19 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. DAM Le 22 | Dated: _October 29, 2024 _ Of 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 13