Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Charles E. Van Nort v. Kathleen Dickinson

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 14, 2011

CHARLES E. VAN NORT PLAINTIFF,
v.
KATHLEEN DICKINSON, ET AL. AND DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, in an action under 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132, et seq., and unspecified state laws. At all times relevant to his claims, plaintiff was confined to a wheelchair. See Second Amended Complaint at 1 (Dkt. # 10). He alleges that when he was assigned to Unit IV Y-Dorm ("Y-Dorm") at California Medical Facility ("CMF"), he was shocked by electrical outlets that were improperly aligned next to his metal-framed bunk. He also alleges that electrical cords running across the floor on Y-Dorm posed a hazard that could be "stepped on, tripped over, [or] run across with wheelchairs." Id. at 2. He further alleges that on Y-Dorm "ceiling tiles are falling off and have hit Plaintiff on many occasions," and that floor tiles have broken, "on one occasion caus[ing] the Plaintiff to be thrown out of his wheelchair." Id. at 3. He alleges these conditions constitute violations of the Eighth Amendment and the ADA. Id. at 1.

Defendants filed a motion to dismiss, arguing: (1) plaintiff failed to exhaust administrative remedies as to his claims regarding ceiling and floor conditions and his claims under the ADA; (2) plaintiff has failed to state a cognizable Eighth Amendment claim; (3) plaintiff has failed to state a cognizable ADA claim; and (4) defendants are entitled to qualified immunity. For the reasons set forth herein, the undersigned recommends that defendants' motion to dismiss be granted.

I. WHETHER THE COURT HAS RETAINED JURISDICTION

On May 18, 2011, thecourt denied plaintiff's motion for an order compelling his removal from administrative segregation. The motion was the court's first notice that plaintiff no longer resides on Y-Dorm, where all of the allegedly illegal living conditions exist. The court stated that[p]laintiff's transfer to administrative segregation raises the jurisdictional issue whether his action has been rendered moot. Plaintiff filed this suit complaining of hazardous conditions related to electrical wiring and outlets on Unit IV Y-Dorm ("Y-Dorm"), where he was assigned when he filed his complaint. As plaintiff put it in his operative pleading, "Plaintiff is only concerned with YDorm and the problems therein." Second Amended Complaint at 2 (Dkt # 10). Generally, when a prisoner complains of unconstitutional conditions of confinement and is transferred to another facility, a claim for injunctive relief from those conditions becomes moot. See Brady v. Smith, 656 F.2d 466, 468 (9th Cir. 1981); Darring v. Kinchoe, 783 F.2d 874, 876 (9th Cir. 1986); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1990). Therefore, plaintiff's transfer to administrative segregation could significantly impact whether the second amended complaint continues to present a justiciable case or controversy -- that is, whether this court continues to have jurisdiction over this case.

Order at 2-3 (Dkt. # 33). The court ordered the parties to submit briefing on the jurisdictional effect of plaintiff's transfer to administrative segregation. Defendants complied with that order, but plaintiff did not.

As the court noted in its order for additional briefing, "[a] plaintiff may avoid a finding of mootness if he can demonstrate a reasonable expectation of returning to the facility where the allegedly unconstitutional conditions persist." Id. at 3 (citing Darring, 783 F.2d at 876). Plaintiff's failure to respond to the court's order amounts to a failure to make a showing that he reasonably expects to return to Y-Dorm. Therefore, to the extent plaintiff seeks injunctive relief under § 1983 or the ADA,*fn1 his claim has been rendered moot by his transfer to administrative segregation.

II. WHETHER PLAINTIFF HAS STATED A CLAIM UPON WHICH RELIEF COULD BE GRANTED

Without any justiciable claim for injunctive relief, the most salient question left is whether plaintiff has any cognizable claim for damages. Defendants raised that question before plaintiff's transfer became known, arguing in their motion to dismiss that plaintiff has failed to state a claim on which relief could be granted under the Eighth Amendment or the ADA.

When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[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). Furthermore, a claim upon which the court can grant relief must have facial plausibility. 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." Iqbal, 129 S. Ct. at 1949.

A. Plaintiff's Eighth Amendment Claim for Damages

Defendants argue that plaintiff has failed to state a claim under the Eighth Amendment in part because "plaintiff does not allege that the purported shocks have harmed him in any way." Motion Dismiss at 11 (Dkt # 17). They are correct: the second amended complaint does not aver any specific injury at all. Plaintiff alleges that he was shocked by the electrical outlets near his bunk, but that allegation alone, without a description of actual harm suffered, does not suffice as a statement of injury that would, if proven, warrant an award of damages.

As stated above, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines, supra. Still, the Supreme Court's recent iterations of the federal pleading standard make it clear that a plaintiff cannot simply say "I was injured" and survive a challenge under Rule 12(b)(6). See Iqbal, supra. Such an allegation is precisely the kind of conclusory averment disallowed by Iqbal. Indeed, the court notes that failing to include any detail of injury in a tort claim is a telling omission: while other legal nuances may understandably escape a plaintiff who drafts a complaint without the aid of counsel, a plaintiff who has been physically injured in a way that would justify an award of money damages rarely fails to describe the injury in his complaint. The liberal inferences given a pro se plaintiff's complaint do not stretch so far as to assume an injury where none has been pled, particularly when the hazardous condition is something as potentially harmful as a live electrical current.

The court can only conclude that if one of the allegedly misplaced electrical outlets on Y-Dorm had caused plaintiff an injury, he would have described it. The same must be said for the allegedly hazardous floor conditions, which plaintiff claims caused him to be thrown from his wheelchair: again, plaintiff includes no report of physical harm. As for the falling ceiling tiles, plaintiff is a bit more explicit about his lack of injury, saying "it is only a matter of time before Plaintiff is seriously injured by one of these tiles falling from the ceiling." Second Amended Complaint at 3. The logical inference here, of course, is no injury has happened yet.

"Only a matter of time" is not a viable theory of liability with respect to any claim for damages under § 1983. With his claim to any prospective relief mooted by his placement on administrative segregation, there is no relief left to award. For that reason, the court need not address defendants' other arguments for dismissal of plaintiff's claims under § 1983. Plaintiff's claims for violation of the Eighth Amendment should be dismissed for failure to state a claim.

B. Plaintiff's ADA Claim for Damages

To state a claim for damages under the ADA against a public official or entity, a plaintiff must plead: (1) that he has a disability; (2) that 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 or was otherwise discriminated against by the public entity; (4) such exclusion, denial or discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). A plaintiff must also show that the discrimination was intentional. Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). For purposes of an ADA claim, the Ninth Circuit has equated intentional discrimination with deliberate indifference. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001).

Plaintiff has adequately pled the first two elements of his ADA claim, but he has effectively pled himself out of the last element, discrimination by reason of his disability. The pleading deficiency lies in plaintiff's own description of Y-Dorm's allegedly non-compliant conditions under the ADA. He states that "[t]hese tiles, both floor and ceiling, are very hazardous not only to people in wheelchairs but also to those people that can walk." Second Amended Complaint at 3. In characterizing the falling and broken tiles as a hazard to everybody on Y-Dorm, plaintiff eliminates a plausible claim that prison officials intentionally or with deliberate indifference discriminated against him because of his confinement to a wheelchair.

Likewise, there is nothing in plaintiff's description of the allegedly hazardous electrical outlets that evinces discrimination against his particular disability. Rather, the inference from his complaint can only be that the outlets' placement next to his bunk would imperil anybody who was assigned to that bunk, not just somebody with his disability. Nowhere does he suggest that he was at risk of electric shock because of his confinement to a wheelchair. Without that allegation, he cannot proceed on a claim for damages under the ADA.

C. Plaintiff's State Law Claim

Finally, plaintiff has vaguely alleged that the conditions on Y-Dorm violated state law. Here too, plaintiff has not sufficiently pled his claim, which, regardless of what theory of state law tort liability he might pursue, is governed by the California Tort Claims Act ("CTCA"). "As a condition precedent to suit against a public entity, the [CTCA] requires the timely presentation of a written claim and the rejection of the claim in whole or in part." Mabe v. San Bernardino County, Dept. of Public Social Services, 237 F.3d 1101, 1111 (9th Cir. 2001) (citations omitted). The Ninth Circuit enforces California's pleading requirement that a complaint against a public actor or entity allege or demonstrate compliance with the CTCA's notice provisions. See Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Having failed to aver that he first presented his state law claims in compliance with the CTCA, plaintiff cannot proceed on those claims now.

Accordingly, IT IS ORDERED that the Clerk of Court assign a district judge to this case; and

IT IS RECOMMENDED that:

1. Defendants' motion to dismiss (Dkt. # 17) be granted.

2. Plaintiff's claims for injunctive relief under § 1983 and the ADA be dismissed as moot.

3. Plaintiff's claims for damages under § 1983 and the ADA be dismissed for failure to state a claim on which relief can be granted.

4. Plaintiff's state law claims be dismissed for failure to comply with the California Tort Claims Act.

5. This case be closed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

vann1566.57


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.