Plaintiff is a county jail inmate proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $3.60 will be assessed by this order. 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff has pleaded a number of distinct claims, which the court will consider in turn.
Plaintiff alleges that defendants Weary, Jones, and Sands moved plaintiff from a cell with an ADA toilet, sink and railing around the bed "even though plaintiff stated he was ADA." Compl. at C-6. In the new cell, plaintiff had to sleep on a vinyl mattress and fell off the bed because there was no guard rail; he does not say, however, that anyone was aware he had fallen off the bed. Id. Defendant Weary did take plaintiff's additional mattress, which had been ordered by the doctor. Id. at C-7. In addition, defendants Kodevari and Purcell did not place plaintiff in an ADA room after surgery, even though "plaintiff is certified an ADA individual in the state of California." Id. at C-8. Finally, plaintiff alleges that defendant Straton, the Sheriff, has failed to bring the jail up to ADA standards. Id. at C-7.
In order to plead a claim under the Americans With Disabilities Act, plaintiff must allege that
(1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.
Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). "Benefit, program, or service" may include recreational activities, medical services, as well as educational and vocational programs. Department of Corrections v. Yeskey, 524 U.S. 206, 210 (1998).
Beyond the conclusory claim that the state recognizes plaintiff to be a "certified" ADA individual, plaintiff has not identified the nature of his disability or the nature of the discrimination based on his disability. His claim appears to be that he was denied support following surgery, something that might be more akin to an Eighth Amendment claim but not properly raised under the ADA. See Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1144 (10th Cir. 2005). In addition, his broad claim that the Sheriff has failed to insure that the jail meets ADA standards is too conclusory, for again plaintiff does not describe his disability or how the problems with the jail have prevented him from accessing programs or services.
Defendant Gready "rummaged through plaintiff's legal work" and gave it to Solano County authorities ...