The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act ("RA"). Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Named as defendants are the California Department of Corrections and Rehabilitation ("CDCR"), Governor Brown, CDCR Director Cate, CDCR Undersecretary Kernan, CDCR Undersecretary McDonald, Warden Dickinson, Correctional Lieutenant Spalding, Correctional Sergeant Williams and Correctional Officer Rolon.
Plaintiff alleges that he uses a wheelchair. Plaintiff alleges that on December 3, 2010, he entered the dining hall for his morning meal. As is customary for inmates using wheelchairs, plaintiff called out "carry out," which signals to prison staff to bring plaintiff his meal. Plaintiff alleges that after he called out "carry out," defendant Rolon looked at plaintiff, turned away, and ignored him. A few other inmates then entered the dining hall. Plaintiff called out "carry out" two more times, but defendant Rolon ignored him. Approximately fifteen minutes later, eighteen other inmates had entered the dining hall and received their meals. At this time, inmate Johnson asked plaintiff why he had not received his meal. Inmate Johnson then called out "carry out, this guy has been waiting fifteen minutes." Defendant Rolon then shouted in an angry manner, "so what, he can 602 me."
Plaintiff alleges that defendant Williams interviewed him regarding his administrative appeal filed regarding defendant Rolon. Defendant Williams apparently denied plaintiff's appeal.
Plaintiff alleges that defendant Spalding interviewed him regarding his second level appeal. Defendant Spalding apparently denied the appeal. Plaintiff alleges that defendants Cate, Kernan, McDonald and Dickinson failed to adequately investigate his claim against defendant Rolon when they denied his third level appeal.
Plaintiff alleges that he has been subjected to other acts of discrimination because he uses a wheelchair. Plaintiff alleges that on June 16, 2011, as he approached the dining hall entrance, Correctional Officer Hamel had the dining hall door open toward the hallway. Correctional Officer Hamel blocked the passageway by standing at the door talking to Correctional Officer Craig. Plaintiff claims that when he approached he said, "excuse me," in an attempt to enter the dining hall, but the officers ignored him. Plaintiff then had to go around and behind the officers to get into the dining hall.
Plaintiff alleges that on June 22, 2011, Correctional Officer Tyler unlocked the door to plaintiff's dorm so that plaintiff could enter. Plaintiff alleges that Correctional Officer Tyler opened the door halfway, even though he could see that plaintiff's wheelchair would not fit through the opening. As a result, plaintiff had to bump into the sides of the door in order to enter the dorm.
Plaintiff alleges that on June 24, 2011, as he made his way to the dining hall, Correctional Officer Costello stood in his way. As plaintiff approached, plaintiff said, "excuse me." Correctional Officer Costello looked at plaintiff, turned away, and continued talking to Correctional Sergeant Brady. Plaintiff was then forced to enter the middle section of the corridor, which is out of bounds, in order to get into the dining hall.
Plaintiff alleges that on June 25, 2011, he and other inmates were waiting to board an elevator. As the doors were opening, Licensed Vocational Nurse Curry cut in front of the disabled inmates. Plaintiff asked Curry, "when can we get on?" Curry replied, "no!" Plaintiff then said, "we've been waiting for a while for the elevator." Curry responded, "so."
Plaintiff alleges that on July 1, 2011, Correctional Officer Mech stood in his path as he made his way to the morning meal. Correctional Officer Mech said to plaintiff, "what!" Plaintiff responded, "excuse me." Correctional Officer Mech said to plaintiff, "go around." Plaintiff responded, "I'm not allowed in the center of the hallway." Correctional Officer Mech responded, "That's not my problem."
Plaintiff seeks injunctive and monetary relief regarding the incident concerning defendant Rolon and the related administrative grievances. Plaintiff alleges violations of the ADA, RA and the Fourteenth Amendment regarding the incident concerning defendant Rolon and the related administrative grievances.
The undersigned first considers plaintiff's ADA and RA claims. Title II of the ADA and § 504 of the RA 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. Section 504 of the RA provides that, "no otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance..." 29 U.S.C. § 794. Title II of the ADA and the RA apply to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210 (1998). "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 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." Lovell, 303 F.3d at 1052. "To establish a violation of § 504 of the RA, a plaintiff must show that (1) [he] is handicapped within the meaning of the RA; (2) [he] is otherwise qualified for the benefit or services sought; (3) [he] was denied the benefit or services solely by reason of [his] handicap; and (4) the program providing the benefit or services receives federal financial assistance." Id.
"To recover monetary damages under Title II of the ADA or the Rehabilitation Act, a plaintiff must prove intentional discrimination on the part of the defendant," and the standard for intentional discrimination is deliberate indifference. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). "Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood." Id. at 1139 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1988)).
A plaintiff may bring a claim under Title II of the ADA or the RA against state entities for injunctive relief and damages. See Phiffer v. Columbia River Correctional Institute, 384 F.3d 791 (9th Cir. 2004); Lovell, 303 F.3d 1039. However, a plaintiff cannot seek damages pursuant to the ADA and RA against the defendants in their individual capacities. Eason v. Clark County School Dist., 303 F.3d 1137, 1144 (9th Cir. 2002) (citing Garcia v. S.U.N.Y. Health, 280 F.3d 98, 107 (2d Cir. 2001)). To the extent plaintiff seeks to pursue claims against any individual defendant for violations of the ADA and RA, he may do so only with respect to seeking injunctive relief and only as to individual defendants he has named in their official capacities. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003) (Title II's statutory language does not prohibit injunctive ...