The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS and RECOMMENDATIONS
Plaintiff is a state prisoner proceeding with counsel on his first amended complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff, who is prescribed a wheelchair when out of his cell, alleges that defendant, a correctional officer at CSP-Solano, violated his rights in the course of conducting a search at a barrier gate on October 25, 2009. Plaintiff alleges violations of his Eighth Amendment rights, as well as the Americans with Disabilities Act (the "ADA"), the Rehabilitation Act (the "RA"), the state Unruh Civil Rights Act (the "UCRA") and the state Disabled Person's Act ("DPA") (collectively, "the disability claims"). Plaintiff seeks money damages.
Defendant has answered the Eighth Amendment portion of the Complaint, and now moves to dismiss the disability claims pursuant to Federal Rule of Civil Procedure 12(b).
Plaintiff filed an untimely objection to the motion, to which he attaches a proposed second amended complaint. On March 27, 2013, after a hearing, the court took the matter under submission.
The action was originally filed on January 26, 2011 as a pro se complaint. ECF No. 1. Plaintiff alleged that he was a disabled prisoner, and that the sole defendant, Correctional Officer ("CO") Yassine, violated the Eighth Amendment, the ADA, and various state statutes when he searched plaintiff at a barrier gate while plaintiff was on his way from the yard to the B-1 Clinic for respiratory therapy. Id. at 5-7. On February 25, 2011, Magistrate Judge Hollows, to whom this action was previously assigned, granted plaintiff's application to proceed in forma pauperis and found that service was appropriate for defendant Yassine. ECF No. 7.
On July 27, 2011, defendant filed his first motion to dismiss on the ADA and state law claims (ECF No. 25) as well as his first answer on the Eighth Amendment claims (ECF No. 27). On August 23, 2011, the court set discovery and dispositive motion deadlines in the case: all discovery was to be completed by November 18, 2011, and all dispositive motions were to be filed by February 10, 2012. ECF No. 32.
On October 13, 2011, plaintiff filed a pro se motion to amend his complaint, (ECF No. 42), which Magistrate Judge Hollows denied on October 19, 2011, directing that plaintiff instead respond to the motion to dismiss. ECF No. 44. Plaintiff filed his pro se opposition on November 14, 2011.
On October 26, 2011, Magistrate Judge Hollows appointed counsel for plaintiff for the limited purpose of representing plaintiff at his deposition. ECF No. 46. On December 8, 2011, counsel requested that counsel be substituted in as counsel for the plaintiff. ECF No. 52. Attached to the substitution motion was a new opposition to the motion to dismiss as well as an amended complaint. Id.
On January 6, 2012, Magistrate Judge Hollows issued findings and recommendations that the motion to dismiss be granted. ECF No. 53. Magistrate Judge Hollows considered the additional opposition, and analyzed the amended complaint, but disregarded it, finding that it failed to state a colorable ADA claim. Id.
Plaintiff moved for reconsideration of Magistrate Judge Hollows' ruling. ECF No. 54. Defendant then moved for summary judgment on the Eighth Amendment and ADA claims, and also argued that defendant was entitled to qualified immunity. ECF No. 56. Magistrate Judge Hollows conducted a hearing on both motions on March 15, 2012, and took the matter under submission. ECF No. 62 (Minutes filed March 15, 2012), ECF No. 66 (transcript filed April 16, 2012).
Magistrate Judge Hollows never issued findings and recommendations on the summary judgment motion. Instead, on September 4, 2012, Judge Karlton issued an order on the pending findings and recommendations that the motion to dismiss be granted. ECF No. 68. Judge Karlton did not accept or reject the findings, ruling instead the plaintiff should be allowed to amend his complaint as he had asked to do when counsel substituted in. Id.
On September 6, 2012, Magistrate Judge Hollows vacated the motion for summary judgment. ECF No. 69. On September 26, 2012 plaintiff again moved to amend his complaint (ECF No. 70), and Magistrate Judge Hollows granted the motion on October 17, 2012 (ECF No. 73). Magistrate Judge Hollows directed that any responsive pleading be filed within 28 days. ECF No. 73. The current motion to dismiss and answer followed. ECF Nos. 74, 75.
Plaintiff's Factual Allegations
The facts are taken from the proposed Second Amended Complaint ("SAC").*fn1
Plaintiff is a prisoner at the California Medical Facility ("CMF") in Vacaville. He was classified as "DPO" under the Armstrong Consent Decree, as an inmate who does not require a wheelchair full-time but is medically prescribed a wheelchair for use outside his cell. The DPO designation entitles him to a lower bunk and wheelchair-accessible paths of travel. SAC, ¶¶ 2-3.
On October 25, 2009, plaintiff was traveling by wheelchair from the yard to the B-1 clinic for his daily scheduled respiratory therapy. SAC, ¶ 14. After plaintiff presented his CDCR inmate identification card and his movement pass to the B-1 clinic, defendant asked plaintiff why he was going to the clinic. Id. at ¶¶ 15-18. Plaintiff "felt harassed, and told [defendant] that he would refuse to give the information because [plaintiff] believed its confidentiality to be protected under the law." Id. at ¶ 19. Defendant became upset with plaintiff, and ordered plaintiff to the wall by an elevator. Id. at ¶ 20. Plaintiff complied with defendant's order. Id. Defendant then told plaintiff that "[defendant] would search [plaintiff] because [plaintiff] did not explain why he wanted to be seen by the B-1 clinic medical staff." Id. at ¶ 21; see also ECF No. 1 at 14.
Defendant then searched plaintiff while plaintiff was seated in his wheelchair, asking plaintiff to lean forward. Id. at 22. Unsatisfied with plaintiff's compliance, defendant pushed plaintiff forward in his chair. Id. at ¶ 23. Plaintiff cried out in pain, informing defendant that he suffered from back pain that restricted his movements. Id. at 24. Defendant ignored plaintiff's pleas, and continued to push his back until plaintiff's back emanated a loud "pop" sound. Id. at ¶ 25. Defendant then activated his personal alarm, summoning staff. Id. at ¶ 29. Staff arrived and "found [plaintiff] injured and in obvious pain, then left." Id. Plaintiff was taken to the B-1 clinic. Id. at ¶ 30.
At the clinic, a nurse filled out an injury report and plaintiff was seen by Dr. Roxanne Sanders. Id. at ¶ 31. Dr. Sanders prescribed pain killers and an ice pack for the injuries. Id. Plaintiff was again treated for his injuries on October 28, 2009, but the SAC does not disclose what treatment he received on that day or thereafter. Id. at ¶ 32.
On November 9, 2009, plaintiff filed a 602 grievance which reads "[t]his is a complaint against staff within the meaning of Administrative Bulletin #97/10; C.C.R. § 3391 & Penal Code § 832.5." ECF No. 1 at 10-15.*fn2 The warden's response, dated November 18, 2009, reads: "Appeal Issue: Whether or not Correctional Officer Yassine violated policy by utilizing excessive or unnecessary force on Inmate Barker on 10-25-09." ECF No. 1 at 12. The response further reads that a review is being conducted by the Use of Force Review Committee, and that the review is not yet complete. Id. On March 26, 2010, plaintiff's grievance appeal was denied at the Director's Level. See also ECF No. 75-1 at 10 (Decl. Of J.D. Lozano, Ex. B); ECF No. 1 at 18-19.
On December 27, 2010, plaintiff filed an untimely claim with the California Victim Compensation and Government Claims Board ("VCGCB"). ECF No. 1 at 34-37.*fn3 The VCGCB subsequently returned plaintiff's claim to him, advising that he did not submit his claim within one year of the incident. Id. Plaintiff ...