The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6); and (2) GRANTING PLAINTIFF'S MOTION TO SERVE DEFENDANTS MUDRA AND SMALL [Doc. Nos. 29, 40]
In this prisoner civil rights case, Gregory Rideau, Jr. ("Plaintiff"), is proceeding in pro se and in forma pauperis ("IFP") pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a). Defendants Ball, Janda, Ochoa, Bell, Butler, Magner, Nizamani and the State of California have filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No 29]. Plaintiff filed his Opposition on July 15, 2010 but Defendants have not filed a reply. In addition, Plaintiff has filed a letter with the Court [Doc. No. 31], a Declaration [Doc. No. 36], and a "Motion to Serve Defendants Mudra and Small" [Doc. No. 40].
The Court has determined that both Plaintiff and Defendants' Motion are suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Peter C. Lewis is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).
II. PLAINTIFF'S CORRESPONDENCE AND DECLARATION
On July 9, 2010 and July 28, 2010, Plaintiff filed a letter with the Court, along with a Declaration, in which he claims he is being retaliated against for filing this lawsuit. These claims cannot be brought or considered by this Court because they involve claims that arose after Plaintiff initiated this action. Any new claims are subject to the Prison Litigation Reform Act's ("PLRA")exhaustion requirement. The PLRA amended 42 U.S.C. § 1997e(a) to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory." Porter v. Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to "afford [ ] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general circumstances and particular episodes of prison life--including incidents of alleged excessive force. Id. at 532. Finally, "[t]he 'available' 'remed[y]' must be 'exhausted' before a complaint under § 1983 may be entertained," "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 738, 741 (2001); see also McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (finding that prisoner's civil rights action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if he fully exhausts while the suit is pending).
Thus, the Court cannot consider or make any rulings with respect to the merits of the new claims Plaintiff seeks to bring to this Court's attention through his correspondence and Declaration. Any new claims must be brought in a separate action once Plaintiff has properly exhausted his available administrative remedies.
Plaintiff, an inmate currently housed at Calipatria State Prison ("CAL"), alleges that he suffers from a physical disability known as "obstructive sleep apnea." See Compl. at 5. As a result of this disability, Plaintiff claims that he is a "qualified individual" under the Americans with Disabilities Act ("ADA"). On September 3, 2009, Plaintiff submitted a "Reasonable Modification or Accommodation Request" form which is also known as a "CDC 1824" form. Id. at 9. Plaintiff requested that his disability be accommodated by housing Plaintiff in a single cell, as well as having access to electrical outlets in order for him to use his "continuous positive airway pressure ("CPAP") machine." Id. This grievance was later converted into a "regular CDCR 602 grievance" by Defendant Bell that was endorsed by Defendant Ochoa. Id. at 6-7. On October 28, 2009, Defendant Mudra interviewed Plaintiff with regard to his now "regular" grievance. Id. at 10. Defendant Mudra denied Plaintiff's request for a single cell. Id.
In addition to filing grievances, Plaintiff alleges that he "apprised" Defendant Larry Small*fn1 of the issues regarding his need for a single cell and informed him that prison doctors have "purposely withheld" his CPAP machine. Id. at 9. Plaintiff was examined by Defendant Ball, a prison doctor, whom he alleges informed "Correctional Staff Captain Stratton that Plaintiff should not be accommodated with a single cell for use of his CPAP machine." Id. at 12. Plaintiff claims that his sleep apnea "exacerbates Plaintiff's hypertension." Id. As a result, Plaintiff continues to experience "chest pain, anxiety attacks, and headaches." Id. On September 5, 2009, Plaintiff was moved to a double cell by Defendant Ochoa which prevented Plaintiff from being able to use his CPAP machine. Id. Plaintiff alleges that Defendants Janda and Butler also violated his constitutional rights when they continued to house him in a double cell knowing that Plaintiff's physical disability has caused him to have tension with other cellmates. Id.
On February 24, 2010, Plaintiff was "finally provided a 'medical classification chrono' for permanent electrical access" which allows him use of his CPAP machine, although he remains housed in a double cell. Id. at 10.
III. DEFENDANTS'MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b)(6)
Defendants Ball, Janda, Ochoa, Bell, Butler, Magna, Nizamani and the State of California move to dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b)(6) contending that: (1) the State of California is immune from money damages under the Eleventh Amendment; (2) Plaintiff has failed to state a claim against Defendants Bell and Mudra; (3) Plaintiff has failed to state an Eighth Amendment claim; and (4) Plaintiff has failed to state a claim under the Americans with Disabilities Act ("ADA").
A. FED.R.CIV.P. 12(b)(6) Standard of Review
A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)).
A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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 ...