Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).
On April 13, 2010, the court ordered plaintiff to file a new application to proceed in forma pauperis because it appeared that he was no longer a prisoner. When plaintiff failed to file the new application, the court issued findings and recommendations recommending that this action be dismissed. In light of plaintiff's response to the court's April 14 order, filed on May 21, 2010, the court will vacate the findings and recommendations. Plaintiff's in forma pauperis application, filed on August 27, 2009, makes the showing required by 28 U.S.C. § 1915(a).
Accordingly, plaintiff will be granted leave to proceed in forma pauperis.*fn1
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) & 1915(b)(1) and (h). The application shows that plaintiff has been without funds for six months. Accordingly, the court will not assess an initial partial filing fee.
28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and 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 an officer or employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim 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, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Plaintiff claims that his rights under the Eighth Amendment and the Americans with Disabilities Act (ADA) have been violated. In this regard, plaintiff alleges as follows. On April 20, 2009, he was transferred from the Santa Rita Jail to Deuel Vocational Institution (DVI) and that upon his arrival, he explained to prison officials that he was mobility-impaired and needed a ground floor cell equipped with hand railings, a lower bunk and a cane. Plaintiff contends that defendant Street, a physician's assistant, disregarded his request for accommodations. In addition, plaintiff contends that defendant Dr. Palagummi completed the request for accommodation form without any input from plaintiff. Plaintiff alleges that as a result of the defendants' actions for the three months he was incarcerated at DVI he did not receive any accommodation for his disability. On July 10, 2009, plaintiff was seen by an orthopedic specialist at an outside clinic and was diagnosed as having a permanent disability and an "orthopedic medical condition that substantially limits ambulation... [and that plaintiff] cannot walk 100 yards on a level surface without pause." (Compl. at 8.) On July 13, 2009, plaintiff was transferred to California State Prison - Sacramento which plaintiff contends is not "listed" as an ADA accessible and equipped prison. (Id. at 9.) In addition, plaintiff's pain and seizure medications have been discontinued which has placed his life in "imminent danger." (Id. at 10.) Plaintiff seeks compensatory and punitive damages, an order requiring that all reception centers have cells that are handicapped-accessible, and that the review process be changed so that accommodation requests are completed by an appropriate medical specialist rather than the facility's medical staff. (Id. at 3 & 10.)
A. Americans with Disabilities Act Claim
Title II of the Americans with Disabilities Act (ADA) "prohibit[s] discrimination on the basis of disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. ...