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Lawrence Marsh v. Jerry Brown

August 26, 2011

LAWRENCE MARSH,
PLAINTIFF,
v.
JERRY BROWN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 1)

Screening Order

I. Screening Requirement

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 12132 and 42 U.S.C. § 1983. . The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

The events at issue in this action occurred at the California Correctional Institution at Tehachapi (CCI), where Plaintiff was housed at the time of the events complained of. Plaintiff styles his complaint as an action for relief under the Americans With Disabilities Act (ADA), 42 U.S.C. § 12132 and 42 U.S.C. § 1983. Plaintiff alleges that, despite his inmate grievances, he has been denied minimum security classification. Plaintiff contends that he should be housed at "fire camp" instead of at CCI. Plaintiff seeks an "emergency recalculation" of his release date. Plaintiff claims that the denial of his reclassification was done in violation of the ADA.

Plaintiff alleges that he is being housed "with very violent maximum security inmates" in overcrowded and understaffed conditions. Plaintiff alleges that he was sexually assaulted by another inmate. Plaintiff also alleges that he suffered a diabetic stroke due to lockdowns denying him exercise. Plaintiff alleges that he suffered these deprivations as a result of "government officials" that violated the ADA. Plaintiff alleges that officials have violated the ADA by "retaliating against and coercing to have his remaining teeth all pulled or denying adequate dental care for serious dental needs for over seven years causing extreme pain and mental suffering." Plaintiff alleges that his rights under the ADA were also violated by "causing nutritional value to be limited to cornmeal mush, mashed potatoes and noodles," all of which cause "blood sugar spikes."

Plaintiff alleges that government officials have violated his rights by coercing plaintiff to participate in federally funded DPO (a program designed for people who intermittent wheelchair users) in effort to impact his placement at PVSP for the purpose of generating illegal monetary gain and punishing plaintiff at the same time with deliberate indifference to additional strain on taxpayers dollars or to public interest for approximately two years and six months.

(Compl. ¶ 19.)

A. Americans With Disabilities Act

Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act (RA) "both prohibit discrimination on the basis of disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). 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 subject to discrimination by such entity." 42 U.S.C. § 12132; seealsoLowell, 303 F.3d at 1052 (to establish violation of Title II of ADA, Plaintiff must show that (1) he is a qualified individual with a disability; (2) he was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities, and (3) such exclusion or discrimination was by reason of his disability), cert. denied, 537 U.S. 1105 (2003).

The Court finds Plaintiff's allegations to be vague. Plaintiff references his intermittent use of a wheelchair, but does not specifically allege facts indicting that he is a qualified individual with a disability, or what specific service, program or activity he is denied based upon that disability. Plaintiff lists numerous complaints regarding the conditions of his confinement, and imputes to correctional officials the intent to retaliate ...


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