The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner at California State Prison-Avenal proceeding without counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983.*fn2 The complaint was originally filed in the Superior Court of California for the County of Santa Clara (Case No. 110CV164931). Defendant paid the filing fee and removed the action to the United States District Court for the Northern District of California. The case was thereafter transferred to this court on venue grounds.
Removal is appropriate for "any civil action brought in a State court of which the district courts of the United States have original jurisdiction. . . ." 28 U.S.C. § 1441(a). Removal is appropriate in this case because plaintiff's action is premised on the Civil Rights Act, 42 U.S.C. § 1983, and plaintiff's claims under the United States Constitution and the Americans with Disabilities Act, all of which are within this court's original federal subject matter jurisdiction, 28 U.S.C. § 1331.
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).
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 when 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)). 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." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff alleges that on October 8, 2009, while plaintiff was incarcerated at California State Prison-Solano, defendant correctional officer S. Deberry (also known as "S. Deberry-Thornton" (hereafter "Deberry")) confiscated plaintiff's two medical pillows and other personal items in retaliation for plaintiff filing an administrative grievance/staff complaint against Deberry. Plaintiff states that the pillows had been issued to him "due to Plaintiff's C-Spine surgery," and their confiscation caused plaintiff "sleepless and painful nights and days" requiring, inter alia, an increase in plaintiff's pain medications. (Cmplt., Dkt. No. 1, at 8, 9.) Plaintiff alleges that he filed a staff complaint against Deberry for harassment and retaliation, and for reissuance of his pillows, which was granted at the second level of review on December 16, 2009. (Id. at 9-10.) Plaintiff states that one pillow was re-issued after 21 days, the second pillow was re-issued after 69 days.
Plaintiff contends that these facts support his Eighth Amendment claim for cruel and unusual punishment, and his First Amendment claim for retaliation, the protections of both amendments applied to the states pursuant to the Fourteenth Amendment. The complaint appears to state a potentially cognizable Eighth Amendment claim against Deberry. The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove that objectively he suffered a sufficiently serious deprivation and that subjectively prison officials acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The allegedly malicious confiscation of plaintiff's prescribed medical pillows meets these prima facie standards.
The complaint also appears to state a potentially cognizable First Amendment claim against Deberry. To state a claim for retaliation under the First Amendment, plaintiff must allege that on a specified date an individual state actor took adverse action against plaintiff for his engagement in a constitutionally protected activity and the adverse action did not reasonably advance a legitimate penological goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Although plaintiff alleges a chilling effect, direct and tangible harm will support a First Amendment retaliation claim even without demonstration of a chilling effect on the further exercise of a prisoner's First Amendment rights. Rhodes, at 568, n.11.
Plaintiff seeks both damages and injunctive relief. While plaintiff may pursue damages pursuant to his constitutional claims, it is not clear whether there remains any basis for granting injunctive relief. Had plaintiff remained at California State Prison-Solano, his claim for injunctive relief perhaps could have been construed as an effort to require defendant Deberry to cease engaging in retaliatory conduct against plaintiff; however, plaintiff has now been transferred to another institution, and it is not clear where Deberry now works. These matters will therefore be addressed as the case progresses.
In support of his claim under the Americans with Disabilities Act
("ADA"), plaintiff generally cites the injunction issued in Armstrong
v. Schwarzenegger, Case No. 4:94-cv-02307 (N.D. Cal. Sept. 11, 2007),
one of a series of decisions requiring enforcement of a permanent
injunction applying ADA protections to state prisoners.*fn3
Title II of the ADA applies to inmates within state prisons,
Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206
(1998), and "prohibit[s] discrimination on the basis of disability,"
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II
provides that "no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subject to discrimination by such entity," 42
U.S.C. § 12132. In order to state a claim under Title II, a plaintiff
must show that: (1) he is a "qualified individual with a disability;"
(2) he was 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) that 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).
Plaintiff's claim that Deberry improperly confiscated plaintiff's medical pillows may state a potentially cognizable ADA claim based on plaintiff's implicit contention that he was denied access to reasonable bedding materials by reason of his disability. Plaintiff may seek damages under the ADA against Deberry in his official capacity, Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002), based upon a showing of discriminatory intent, Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998), using a deliberate indifference standard, Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). However, plaintiff's general request for injunctive relief under the ADA appears to be not only moot (because plaintiff was reissued his medical pillows and has since been transferred to another institution) but barred, based on the requirement that plaintiff must instead pursue such relief as a ...