FINDINGS AND RECOMMENDATIONS
Plaintiff is a former prisoner proceeding with counsel in a civil rights action brought under 42 U.S.C. § 1983. On June 9, 2010, defendant moved to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons explained below, the motion must be granted in part and denied in part.
This action proceeds on the November 5, 2008 complaint in which plaintiff alleges the following:
Plaintiff is a paraplegic who uses a wheelchair for mobility. Dckt. No. 1, Compl. at 1. He was incarcerated at California Medical Facility in Vacaville (hereinafter "CMF") at all times relevant to the complaint. The shower, bathing and restroom facilities there were allegedly not accessible to wheelchair users, including plaintiff. Id. at 3. As a result, plaintiff allegedly injured himself trying to shower and was unable to adequately clean himself. Id. Plaintiff claims that his requests for wheelchair-accessible shower facilities were denied. Id. He also claims that he did not receive adequate treatment for injuries sustained in, or aggravated by, his fall in the shower. Id. at 4.
The toilet in plaintiff's cell lacked grab bars. Id. at 3. Consequently, he claims that "[p]laintiff was forced for months to lie in bed and use his fingers in his rectum to deal with his defecation needs." Id. at 3-4. He adds that defendant denied plaintiff's requests for an accessible toilet, id. at 4, and that defendant could have provided proper wheelchair-accessible facilities without experiencing an undue financial or administrative burden. Id. at 5.
Plaintiff uses a condom catheter to urinate, but defendant allegedly refused to provide the proper size catheter despite repeated requests. Id. The wrong-size catheters provided by defendant caused plaintiff bladder infections. Id.
On June 29, 2007, plaintiff was transported from Mercy Hospital in Bakersfield to CMF following treatment for ulcers on his feet and buttocks. Id. at 2. Plaintiff requested transportation in a manner to avoid long contact on his feet or buttocks, but his requests were denied. Id. Plaintiff asserts that defendant could easily have accommodated plaintiff without any undue burden to defendant. Id. at 5. He contends that the long trip caused new injuries to his feet and buttocks that were very painful and took months to heal. Id. at 2-3.
The canteen at CMF makes numerous items available for purchase to non-disabled patrons that are not made available to disabled patrons. Id. at 4. Plaintiff's complaints regarding this disparity were allegedly ignored. Id. Defendant could have provided non-discriminatory access to canteen items without experiencing an undue financial or administrative burden. Id. at 5.
Plaintiff also alleges that defendant has failed to complete self-evaluation and transition plans as required by the Code of Federal Regulations. Id. at 5-6. ////
Plaintiff's asserts the following causes of action: (1) a violation of Title II of the Americans with Disabilities Act (hereinafter "ADA"); (2) a violation of the Rehabilitation Act of 1973 (hereinafter "RA"); (3) a violation of California's Disabled Persons Act (hereinafter "CDPA"); and (4) a violation of California's Unruh Civil Rights Act. Id. at 8-9. In its screening order of May 21, 2010, the court declined to exercise supplemental jurisdiction over the Unruh Act claim, but found that plaintiff had stated cognizable claims under the ADA, RA, and CDPA. Dckt. No. 28. Defendant now seeks dismissal of the remaining claims.
II. Standards on Motion to Dismiss
In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 563, 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 for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
The court accepts the complaint's factual allegations as true. Iqbal, 129 S. Ct. at 1949. However, to state a claim, the allegations must amount to "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action" and instead include facts sufficient "to raise a right to relief above the speculative level," because legal conclusions contained in the complaint are not presumed true. Id. at 1949-50; Twombly, 550 U.S. at 555-56. "A complaint may be dismissed as a matter of law for one of two reasons: (1) lack of a cognizable ...