The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's July 27, 2011, motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that plaintiff's state law claims are barred for failure to timely comply with the California Torts Claims Act, and defendant argues that plaintiff's Americans with Disabilities Act (ADA) claim fails to meet all the elements for such a claim. After several extensions, plaintiff filed an opposition on November 14, 2011, and defendant filed a reply on November 22, 2011. Also pending is a request for an attorney to substitute in as counsel for plaintiff, filed on December 8, 2011, that includes a new opposition to the motion to dismiss and a proposed amended complaint.
Plaintiff alleges that he is a disabled prisoner with hip, spine and shoulder injuries. On October 25, 2009, plaintiff was in his wheelchair when he was headed to the medical unit for routine treatment. When plaintiff approached the gate, the sole defendant in this case, Yassine, a guard, stated he was going to search plaintiff. As Yassine searched plaintiff in the wheelchair, he told plaintiff to lean forward and plaintiff complied. Yassine then allegedly pushed plaintiff forward even more until there was a loud pop and plaintiff cried out in pain and then later had to be treated for the injury.
On July 27, 2011, defendant filed an answer to the complaint and the instant motion to dismiss several of the claims in the complaint. A discovery and scheduling order was issued by the court on August 23, 2011, and discovery has recently concluded.
During the course of this litigation plaintiff has repeatedly requested the appointment of a specific attorney. Due to the simple and straightforward nature of plaintiff's claims, the request for the court to appoint the attorney has been denied, but plaintiff and the attorney have been informed that the attorney is of course able to represent plaintiff and substitute in as counsel. Apparently, counsel did not want to accept the case but did request to be appointed for the limited purpose of representing plaintiff at a deposition, so on October 26, 2011, the court appointed the attorney for the limited purpose of representing plaintiff at the deposition.
Plaintiff, after receiving several extensions, filed an opposition to the motion to dismiss on November 14, 2011, defendant filed a reply on November 22, 2011, and the motion was fully submitted. Counsel has now filed a substitution of attorney along with a proposed additional opposition to the motion to dismiss and a proposed amended complaint. Docket # 52 (attachments). However, there has been no motion seeking leave to file an additional opposition or an amended complaint. As already stated, the complaint has been answered, discovery has finished, and the motion to dismiss has been fully briefed. A substitution of attorney does not automatically entitle the new attorney to file whatever that attorney deems to have been deficiently filed in the past.*fn1 If counsel had properly requested to file new pleadings and an opposition, such a request would have been seriously considered, but simply filing an additional opposition and an amended complaint does not ensure that they will be accepted by the court.*fn2
However, despite being in violation of the Federal Rules of Civil Procedure, and out of an abundance of caution, the undersigned will consider the additional opposition and analyze the amended complaint.
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (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." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, ...