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Scott v. McDonald

June 29, 2010

HOWARD SCOTT, PLAINTIFF,
v.
M. MCDONALD, DEFENDANT.



ORDER

Howard Scott, an inmate confined at the California Substance Abuse Treatment Facility, filed this pro se civil rights action under 42 U.S.C. § 1983 and proceeds in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). On September 23, 2009, the court directed plaintiff to file an amended complaint. Dckt. No. 14. On January 15, 2010, plaintiff filed an amended complaint.*fn1 Dckt. No. 24.

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting 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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)

In the amended complaint, plaintiff names M. McDonald, and Officers Sharrb, Cooper, Oateman, and Nelson as defendants. Plaintiff alleges that he is blind, and from January 2008 to May 2008, defendants Sharrb and Cooper refused to honor plaintiff's request that he be fed in his cell. Am. Compl., Dckt. No. 24, at 4. Plaintiff further claims that as of March 2008, defendants Oateman and Nelson also refused to cell-feed plaintiff. Id. at 5. Oateman apparently told plaintiff that he stopped cell-feeding him at defendant Sharrb's*fn2 direction. Id. Plaintiff claims defendants violated his Eighth Amendment rights, as well as his rights under the Americans with Disabilities Act (ADA). Id. at 4, 7-8.

To state a claim that the conditions of imprisonment violate the Eighth Amendment prohibition on cruel and unusual punishment, plaintiff must allege a specific individual was deliberately indifferent to some basic human need such as food, clothing, shelter, medical care or safety. See Wilson v. Seiter, 501 U.S. 294, 303-04 (1991); Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prison official is deliberately indifferent when he knows of and disregards a risk of injury or harm that "is not one that today's society chooses to tolerate." See Helling v. McKinney, 509 U.S. 25, 36 (1993); Farmer v. Brennan, 511 U.S. 825, 837 (1994).

While plaintiff alleges he is blind, he does not allege any facts showing that he needed to be fed in his cell. For example, plaintiff does not allege that he was unable to walk to the dining area, that he had a medical chrono requiring that meals be provided in his cell, or that he otherwise needed to be fed in his cell. Further, while plaintiff indicates that defendants Sharrb and Cooper refused to cell-feed plaintiff from January 2008 to May 2008, plaintiff does not indicate for what period of time defendants Oateman and Nelson allegedly refused to cell-feed plaintiff. As to defendant McDonald, plaintiff fails to include any factual allegations. Plaintiff's allegations are thus factually insufficient to state a cognizable Eighth Amendment claim, and are dismissed with leave to amend.

In order to state a claim that a public program or service violated Title II of the ADA, a plaintiff must show: (1) he is a "qualified individual with a disability"; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). An ADA plaintiff also "bears the burden of establishing the elements of the prima facie case, including--if needed--the existence of a reasonable accommodation that would enable him to participate in the program, service, or activity at issue." Pierce v. County of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008) (internal quotation marks omitted).

Because plaintiff fails to allege facts showing that he was unable to eat his meals in the dining area, and needed to be fed in his cell, he necessarily fails to allege that he was excluded from participation or denied the benefits of his institution's services or otherwise discriminated against. Plaintiff alleges in a conclusory manner that his rights under the ADA have been violated, but his factual allegations are insufficient to state a claim that is plausible on its face. See Iqbal, 129 S.Ct. at 1949.

Thus, to proceed plaintiff must file an amended complaint, curing the deficiencies identified by the court in this order, and the September 23, 2009 screening order. The court notes that the claims raised in plaintiff's amended complaint are not the same as those raised in the original complaint. The claims in the original complaint concerned inadequate medical and dental care, the need to be housed in a lower tier, and being improperly handcuffed behind his back. If plaintiff still wishes to pursue these claims, he must include them in an amended complaint.

Additionally, any amended complaint must adhere to the following requirements: It must be complete in itself without reference to any prior pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff ...


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