The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) defendants' motion to dismiss, filed on 12/03/07, to which plaintiff filed opposition; 2) plaintiff's motion for summary judgment, filed on 1/22/08, to which 3) defendants' filed, on 1/29/08, a motion for denial of continuance of the motion.
Plaintiff alleges violations of his constitutional rights under the First, Eighth and Fourteenth Amendments in this suit for money damages and prospective injunctive relief. He also brings allegations of violations of Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (RA) at California Medical Facility-Vacaville (CMF). Defendants are the California Department of Corrections and Rehabilitation (CDCR); Correctional Officer (C/O) Nesbeth; C/O Hislip; C/O Baker; N. Grannis. Plaintiff alleges that he, an individual suffering from Post Traumatic Stress Disorder (PTSD) and a diagnosed schizophrenic in the Enhanced Outpatient program (EOP) at CMF, has been denied "reasonable modifications of program half (1/2 hour cell/program unlocks, and count clear unlocks to programs, and access to Dayroom program under claimed ADL/Housekeeping...." Second Amended Complaint (SAC), p. 2.
The gravamen of plaintiff's complaint is that at CMF violations of the ADA have occurred in that EOP inmates, such as himself, have been denied equivalent access to showers and dayroom as general population inmates. Moreover, defendants Nesbeth, Hislip and Baker discriminated against him and acted in retaliation against him by denying plaintiff (and other EOP inmates) such equivalent access, plaintiff's complaints about such treatment having precipitated unwarranted cell searches and retaliatory disciplinary action against him by these individuals. Plaintiff also alleges that defendant Grannis denied his constitutional rights and his rights under the ADA in appeal denials about the allegedly discriminatory and retaliatory activity. SAC, pp. 1-10.
Defendants move to dismiss this action under Fed. R. Civ. P. 12(b)(6), for plaintiff's failure to state a claim. Defendants move for dismissal of plaintiff's ADA injunctive relief claims and his claims against defendant Grannis. As plaintiff has been transferred to another facility, defendants contend that plaintiff's prospective injunctive relief claims have become moot. Motion to Dismiss (MTD), pp. 1-8.
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" NOW, 510 U.S. at 256, 114 S.Ct. at 803, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll ...