Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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

Tony R. Low v. John Mcginness

February 16, 2012

TONY R. LOW, PLAINTIFF,
v.
JOHN MCGINNESS, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's complaint, filed September 7, 2010, in which he raises a series of claims against the County of Sacramento (County) and numerous officials and employees at the Sacramento County Jail (Jail) from a period during which plaintiff was a pretrial detainee at the Jail. This matter is before the court on defense motions to dismiss*fn1 and to sever improperly joined claims, and on plaintiff's motion to compel discovery responses.

Defendants have filed four requests for judicial notice in connection with the instant motions. Plaintiff opposes one of the requests on the ground that it is a request for judicial notice of documents in the record in this action.

Defendants have moved to dismiss this action under Fed. R. Civ. P. 12(b)(6). Consideration of matters outside the scope of the pleadings would require conversion of the instant motion to a motion for summary judgment. See Fed. R. Civ. P. 12(d). After review of the record, the court has determined that it would be inappropriate to convert defendants' motion to a motion for summary judgment at this stage of the proceedings. Accordingly, with one exception of defendants' request for judicial notice will all be denied without prejudice. For the reasons set forth infra, the court will take judicial notice of the state court's ruling on plaintiff's challenge to his classification as a Total Separation, or T-Sep, inmate.

I. Motions to Dismiss

A. Standards for a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

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 (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, reh'g denied, 396 U.S. 869 (1969). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).

1. Americans with Disabilities Act

In his first claim for relief, plaintiff alleges that defendants County, Gonzales, and Jim discriminated against him in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112(a) (ADA), by "refusing to provide a reasonable accommodation to a qualified individual with a disability" and "failing or refusing to take appropriate action to remedy the effects of the discriminatory treatment of plaintiff." Complaint, filed September 7, 2010, at 8-9. Plaintiff alleges that on seven separate dates he notified defendant Jim of the disability and requested a reasonable accommodation. Plaintiff further alleges that defendants Gonzales and the County of Sacramento were notified of the alleged discrimination but failed to take any action to remedy it. Plaintiff alleges that the jail only provides reading glasses, that he received two court orders to be provided with prescription eye glasses, and that defendants failed to provide the glasses for five months. Plaintiff also alleges that as a result of the failure to provide him with prescription eyeglasses he was unable to see court video exhibits during a preliminary hearing, to read posted jail facility rules, or to participate in jail services, activities, or programs.

In order to state an ADA claim, plaintiff must allege that:

(1) he 'is an individual with a disability;' (2) 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, programs, or activities, or was otherwise discriminated against by the public entity;' and (4) 'such exclusion, denial of benefits, or discrimination was by reason of [his] disability.'

O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.2004) in turn quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002) (per curiam)). Effective January 1, 2009, the ADA provided in relevant part that:

The term "disability" means, with respect to an individual--(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

(2) Major life activities

(A) In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

For purposes of paragraph (1)(C):

(A) An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

(4) Rules of construction regarding the definition of disability The definition of "disability" in paragraph (1) shall be construed in accordance with the following: . . . .

(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as--

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; . . . .

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

(iii) As used in this subparagraph--

(I) the term "ordinary eyeglasses or contact lenses" means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

(II) the term "low-vision devices" means devices that magnify, enhance, or otherwise augment a visual image.

42 U.S.C. § 12102.

Here, the gravamen of plaintiff's ADA claim is that he was denied prescription eyeglasses for a period of five months. A vision impairment that can be corrected by ordinary prescription eyeglasses does not qualify as a "disability" within the meaning of the ADA. See Kemppainen v. Aransas County Detention Center, 626 F.Supp.2d 672, 679 (S.D.Tex. 2009) (person whose vision impairment can be corrected with ordinary eyeglasses is not disabled under the ADA). For this reason, plaintiff has failed to state a cognizable claim for relief under the ADA and this claim must be dismissed.

Dismissal without leave to amend is only proper where it is clear that a claim "could not be saved by any amendment." Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). Here, it is clear that plaintiff's ADA claim could not be saved by amendment because his vision impairment is not a "disability" within the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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