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Julius anderson v. J. Thomas

February 2, 2011

JULIUS ANDERSON, PLAINTIFF,
v.
J. THOMAS, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff again seeks to amend his complaint, and has filed a proposed amended complaint. Dckt. No. 58. Defendants Thomas and Turner do not oppose amendment. Dckt. No. 60. (Defendant Murray has passed away, and plaintiff's attempts to substitute a party in his place have thus far been unsuccessful.).

On January 13, 2011, this court granted plaintiff's prior request to file an amended complaint. Dckt. No. 58. The court accordingly accepts the amended complaint appended to Docket No. 58 as the currently operative pleading in this case and will refer to it as the Fourth Amended Complaint ("FAC").

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).

The court has reviewed the FAC and, for the limited purposes of § 1915A screening, finds that it states cognizable claims against defendants Thomas, Turner, and Murray.

For the reasons stated below, the FAC does not state a cognizable claim against defendants Masureat and Mehta. These claims will therefore be dismissed with leave to amend.

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.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the violation of plaintiff's federal rights or a causal connection between the defendant's wrongful conduct and the alleged violation of plaintiff's federal rights. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

Plaintiff claims that defendants Mehta and Masureat violated his rights under the Americans with Disabilities Act ("ADA") and the Eighth Amendment and committed actionable negligence under California law. However, plaintiff's allegations against defendants Mehta and Masureat, even if taken as true, do not suffice to state claims against these defendants for the reasons that follow.

As to defendant Mehta, the FAC alleges only that he issued post-surgery orders that in some way prohibited the cell move that plaintiff alleges defendants Thomas, Turner, and Murray forced him to execute on the day following his surgery. Dckt. No. 58, Attach. 1 (FAC) at 13. As to defendant Masureat, the FAC alleges only that he made defendant Murray aware of plaintiff's post-surgery orders and attempted unsuccessfully to have the cell move canceled. Id. at 14.

Title II of the ADA 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 subjected to discrimination by any such entity." 42 U.S.C. § 12132. Title II applies to state prisons. Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 141 L. Ed. 2d 215 (1998).

To state a claim under Title II of the ADA, the plaintiff must allege: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the ...


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