The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF No. 37) ORDER DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION AND MOTION FOR MAGISTRATE JUDGE TO PROMPTLY ACKNOWLEDGE AND COMPREHENSIVELY REMEDY ONGOING AND THREATENED PERSONAL INJURY (ECF Nos. 42, 50)
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO FILE AN AMENDED COMPLAINT (ECF No. 58)
Plaintiff Eric Charles Rodney Knapp ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 12132 (the Americans with Disabilities Act (ADA)), and 29 U.S.C.§ 794 (Rehabilitation Act (RA)) on November 20, 2008. On April 13, 2009, an order issued dismissing Plaintiff's complaint with leave to amend for failure to state a claim. (ECF No. 14.) Plaintiff filed a motion for reconsideration on April 27, 2009, that was denied on June 16, 2009. (ECF Nos. 13. 22.) Plaintiff filed a second motion for reconsideration on June 30, 2009, which was denied on October 13, 2009. (ECF Nos. 23, 26.)
A first amended complaint was filed on July 30, 2009. (ECF No. 25.) On October 13, 2009, on order issued requiring Plaintiff to either file an amended complaint or notify the court of his willingness to proceed on only the claims found to be cognizable in the first amended complaint. (ECF No. 27.) Plaintiff filed a second amended complaint on November 3, 2009. (ECF No. 29.) On September 8, 2010, Plaintiff's second amended complaint was dismissed for failure to comply with Rule 8. (ECF No. 33.) Plaintiff filed a third amended complaint on September 29, 2010. (ECF No. 37.) On February 14, 2011, the Court appointed an attorney for Plaintiff and on March 16, 2011, the attorney filed a motion to withdraw. (ECF Nos. 46, 47.) A second attorney was appointed for Plaintiff on April 18, 2011. (ECF No. 51.) On July 27, 2011, the Court granted counsels' motion to withdraw as attorney of record. (ECF Nos. 56, 59.)
Currently pending before the Court are Plaintiff's third amended complaint, filed September 29, 2010; motion for a preliminary injunction, filed December 17, 2010; motion for Magistrate Judge to promptly acknowledge threat of personal harm, filed March 31, 2011; and motion for thirty day extension of time to file pleading. (ECF Nos. 37, 42, 50, 58.)
II. Screening Requirement
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129
S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
III. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is incarcerated at the Sierra Conservation Center ("SCC"). Plaintiff brings this action against Defendants CDCR; Matthew L. Cate, Secretary of CDCR; Ivan D. Clay, Warden of SCC; Frank X. Chavez, Chief Deputy Warden of SSC; P. T. Rawlinson, Associate Warden of SCC; Facility Captains C. Koenig and D. E. Gibb; M. Pate, Correctional Captain at SCC; Russell Otto Psychologist and Chief of the Mental Health Department at SSC; Psychologists Michael Backlund and K. Robertson; Nola Grannis, Chief of Inmate Appeals; Walt Semsen, Correctional Counselor and Inmate Appeals Coordinator at SCC; T. Esquer, Correctional Counselor and Acting Inmate Appeals Coordinator at SCC; Marsha Lyons, Office Secretary; and S. M. Hannah, Correctional Counselor; in their individual and official capacities. (Third Amend. Compl. 2:14-4:15; 14:26-28, ECF No. 37.)
In March of 1996, Plaintiff was diagnosed as suffering post traumatic stress disorder ("PTSD"), depression, and other stress and anxiety related mental ailments. (Id. at 5:18-20.) Plaintiff's PTSD makes it difficult for him to perform major life activities; such as sleeping, dressing, showering, using the toilet, relaxing, concentrating, reading, writing, praying, meditating, or feeling safe and secure; when he is forced to be celled with another inmate. (Id. at 5:25-6:4.) Plaintiff also suffers from physical injuries making it painful and embarrassing for him to defecate.
(Id. at 6:5-9.) Plaintiff alleges that his mental and physical conditions are disabilities with the ADA and handicaps within the RA because they substantially limit his ability to perform major life activities. (Id. at 6:10-13.) Plaintiff's mother has become well known by CDCR employees for her political activism regarding treatment of Plaintiff and other prisoners. (Id. at 7:1-8.) Plaintiff has filed numerous grievances and complaints against prison officials. (Id. at 7:32-11:20.) When required to double cell in the past Plaintiff has become suicidal. (Id. at 10:14-17.)
After Plaintiff arrived at SSC on July 31, 2008, prison officials, including Defendants Clay, Chavez, Hannah, Rawlinson, Koenig, Gibb, Pate, Otto, Backlund, and Robertson read through Plaintiff's permanent prison records and determined to retaliate against him for his and his mother's past exercise of his First Amendment rights. (Id. at 11:23; 12:1-7.) On August 12, 2008, Plaintiff filed a formal grievance regarding mailroom staff improperly withholding mail from his mother. (Id. at 12:12-13.)
On August 13, 2008, Plaintiff attended a classification hearing with Defendants Koenig, Pate, Otto, Backlund, and Robertson in which he was informed that inmates are not single celled at SSC. Plaintiff was forced to relive deeply painful traumas by recanting the mistreatment he has suffered since being incarcerated on March 17, 1994. Plaintiff was informed that PTSD did not qualify him for single cell status and is not a recognized disability under the ADA, is not a reasonable and necessary accommodation of PTSD, trauma he described was not documented in his permanent prison records, and that if he wanted single cell status he would have to be transferred to a cell farther away from his disabled mother. (Id. at 12:18-13:6.)
After the hearing, Plaintiff alleges that Defendants Koenig and Pate generated a CDC 128-G form containing false and inaccurate statements. (Id. at 13:7-12.) On August 19, 2008, Plaintiff reported what had occurred during the August 13, 2008 hearing directly to Defendants Cate and Clay, but they did not respond or acknowledge Plaintiff's complaint. (Id. 13:13-15.) Plaintiff filed a grievance on August 24, 2008, regarding inadequate airflow and on September 10, 2008, regarding the false and inaccurate CDC 128-G form. (Id. at 13:16-19.) Defendants Lyons, Esquer, and Grannis rejected Plaintiff's grievances on false procedural grounds. (Id. at 13:20-23.) Defendants Pate, Rawlinson, Semsen, and Chavez adjudicated Plaintiff's grievance and ratified the violations of Plaintiff's rights. (Id. at 13:24-28.)
On September 18, 2008, Plaintiff filed a grievance and also notified Defendant Cate that his grievances were rejected on false procedural grounds and Defendants Pate, Rawlinson, Semsen, and Chavez ratified the violations of Plaintiff's rights. (Id. at 14:1-5.) Defendants Lyons and Esquer rejected his grievance on false procedural grounds. (Id. at 14:6-11.) On September 25, 2008, Plaintiff filed a grievance regarding the rejection of his prior grievances by Defendants Esquer and Lyons. (Id. at 14:12-14.) On October 20, 2008, Plaintiff filed a grievance regarding mailroom staff withholding his mail. (Id. at 14:15-17.)
On November 9, 2008, Plaintiff filed a grievance regarding CDCR officials ignoring his prior requests for access to public records. (Id. at 14:18-19.) On November 12, 2008, Plaintiff's mother complained to Defendants Cate and Clay about the hearing on August 13, 2008, that his grievances were being rejected. (Id. at 14:20-23.) A Institutional Classification Hearing was held on November 13, 2008, in which Defendants Clay, Gibb, Otto, and Hannah participated. (Id. at 14:24-26.) Plaintiff was told that his single cell status had been revoked and he would be double celled. (Id. at 15:1-16.) Plaintiff filed an emergency appeal on November 16, 2008, that was fraudulently rejected by Defendants Lyons and Semson. (Id. at 15:20-25.)
Plaintiff alleges that Defendants' treatment of Plaintiff from July 31, 2008 through November 16, 2008, was not in furtherance of a legitimate penological objective, but was in furtherance of an on-going campaign of retaliation, deliberate indifference, oppression, and abuse. (Id. at 15:26-16:1.)
Plaintiff brings five causes of action: 1) discrimination in violation of the ADA and RA by defendants failing to consistently grant him single cell housing as a reasonable and necessary accommodation for his known mental and physical illness, (id. at 16:11-17:8); 2) retaliation in violation of the ADA, (id. at 17:9-18:17); 3) retaliation in violation of the First Amendment, (id. at 18:18-19:19); 4) cruel and unusual punishment in violation of the Eighth Amendment, (id. at 19:20-21:19); and 5) deprivation of liberty without due process of law, (id. at 21:20-23:4.) Plaintiff is seeking a temporary restraining order and preliminary injunction prohibiting Defendants from double celling him or transferring him during the pendency of this action and requiring that he be single celled from institution to institution, compensatory and punitive damage, and attorney fees and costs.
A. Americans With Disabilities Act and Rehabilitation Act
Plaintiff's claims that he was discriminated against in violation of the ADA and RA fail to state a cognizable claim. Title II of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA") "prohibit discrimination on the basis of disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). To establish a violation of Title II of the ADA, 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 the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity;" and (3) such exclusion or discrimination, or denial of benefits was because of his disability." Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1021 (9th Cir. 2010)(citations omitted).
"To state a claim under the Rehabilitation Act, a plaintiff must allege '(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance.'" O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007).
Plaintiff does not allege that he is being denied participation in or the benefits of any services, programs, or activities, but is being denied the accommodation he seeks, single cell status. Although Plaintiff alleges that his rights under the ADA and RA were violated, his factual allegations relate exclusively to the denial of single cell status in retaliation for the exercise of his First Amendment rights and not to any intentional discrimination against him based on a qualifying disability. For these reasons Plaintiff has failed to state a cognizable claim.
Plaintiff has failed to state a cognizable claim for retaliation under the ADA. The ADA provides that an individual cannot be retaliated against because he has "opposed any act or practice made unlawful" by the ADA or "made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing" under the ADA. 42 U.S.C. § 12203(a). Initially, Plaintiff's attempts to allege discrimination for his mother's protected activity fails. Plaintiff may not bring a suit for the violation of another person's rights. In order to state a claim Plaintiff must allege that he is being retaliated against for his activities.
Plaintiff alleges that he is being retaliated against for filing grievances and lawsuits for violations of the ADA. Plaintiff alleges that he is being subjected to adverse action, denial of single cell status and failure to process his grievances, due to this activity. Even if Defendants are aware of Plaintiff's litigious nature and the substance of his complaints, the third amended complaint fails to set forth factual allegations to state a plausible claim that Defendants are acting because of this activity. Iqbal, 129 S. Ct. at 1949-50.
At the hearing on August 13, 2008, Plaintiff states that he was told that inmates are not single celled at SSC and if he wanted to be single celled he would have to be transferred to another institution. (Third Amend. Compl. 12:18-13:6.) Plaintiff claims that his grievances were denied on "falsely proffered grounds as a pretext to covering up the unwillingness of CDCR officials to address and resolve the issues presented." (Id. at 13:20-23; 14:6-9; 15:20-23.) Although Plaintiff alleges that the denial of his grievances were in retaliation for asserting his rights under the ADA, they were returned because they were pre-mature and did not meet the requirements of an emergency appeal. (Compl. 81-82, ECF No. 1.) Plaintiff has set forth no factual allegations to support his claim that his grievances were rejected due to his litigious activity. The third amend ...