United States District Court, E.D. California
MIGGUEL E. DIAZ, Plaitniff,
R. DIAZ, et al., Defendants.
ORDER DISMISSING SECOND AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM [ECF No. 38]
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Miguel E. Diaz is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff's second amended complaint filed May 16, 2014.
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 "fails to state a claim on which relief may be granted, " or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). 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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal , 556 U.S. at 676-677; Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 2012), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal , 556 U.S. at 678-79; Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal , 556 U.S. at 678; Moss , 572 F.3d at 969.
On April 30, 2012, Plaintiff went to his work assignment and correctional officers Lozano, Pilgrim, and Thomas refused to provide a "reasonable accommodation per the [Americans with Disabilities Act]." On this same date, Lozano refused to allow Plaintiff to physically access his assigned work site, in direct violation of the Americans with Disabilities Act (ADA).
Officers Lozano, Pilgrim, and Thomas sent Plaintiff to Lieutenant Gallagher who called appeal coordinator, Heck, who stated that Plaintiff's medical chrono was not valid without any medical examination or opinion by medical staff. Lieutenant Gallagher told Plaintiff he did not care if he bleed or suffered further tendon injury, stating "I don't care thats your problem."
On May 6, 2012, Plaintiff sent a letter to Warden Diaz to advise him of the violations of the ADA and First Amendment violations, and he ignored the letter.
On May 9, 2012, Plaintiff spoke with Lieutenant Morales who stated "your chrono is no good here." When asked if that was based on a medical opinion, he stated "it doesn't matter I'm a Lt. and this is my yard and Lozano works for me and I'm backing him no matter what."
On May 8, 2012, Plaintiff wrote a letter to J. Reynoso, ADA coordinator, to complain about the violations of the ADA, and the letter was ignored. She denied a "reasonable accommodation" for which she was responsible. She had the authority to grant the reasonable accommodation but refused to do for three months.
On May 11, 2012, Plaintiff met with Lieutenant Popper and he faxed the valid chrono to A.W. Reynoso which allowed Plaintiff to wear personal soft shoes with orthotics at all sites including visiting to prevent further tendon injury and bleeding. Lieutenant Popper refused to order compliance with the ADA in order to cover-up the blatant misconduct of her subordinates who denied reasonable accommodation and filed false disciplinary charges.
On May 13, 2012, correctional officer McDonald told Lozano, in Plaintiff's presence, to speak with Captain Vasquez or he could get in trouble for denying ADA rights to Plaintiff. Despite being warned, Lozano still refused to comply with the chrono and subsequently filed false disciplinary charges against Plaintiff for filing an ADA appeal.
On May 13, 2012, Plaintiff sent a second letter to J. Reynoso complaining about Lozano's continued discrimination and retaliation. She once again refused to act reasonably to protect him from misconduct by her subordinates, allowing a policy and custom of violating the ADA and First Amendment.
On May 14, 2012, Plaintiff spoke with Lieutenant Popper and requested that he stop the continuing discrimination and retaliation by Lozano. He informed Plaintiff that he would speak to J. Reynoso.
On May 25, 2012, Plaintiff received a false rules violation report in retaliation for filing administrative appeals by Mr. Chavez at the direction of correctional officer Lozano. Plaintiff was found not guilty by Lieutenant Andres based on Licensed Vocational Nurse Haines statement to Andres that Plaintiff's medical chrono was valid and to "stop denying him his rights, someone could get in trouble." Lieutenant Andres advised Plaintiff against filing a grievance regarding ...