United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
L. BECK UNITED STATES MAGISTRATE JUDGE
Josh Thomas (“Plaintiff”) is a California state
prisoner proceeding pro se and in forma pauperis in this
civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed
this action on July 10, 2015. He filed a First Amended
Complaint on May 5, 2016. He names California Substance Abuse
Treatment Facility (“CSATF”) P.A. Ogbuehi, P.A.
Byers, R.N. Oder, R.N. Carrasquillo, Dr. Johal, L.V.N. Lamay,
L.V.N. Tann, L.V.N. Thomas, D. Smiley, C.M.O. Enenmoh, Dr.
Ugwueze, Correctional Lt. Alva, Assoc. Warden Reynoso, L.V.N.
Belantes, Correctional Sgt. Beltran, Chief of Health Care
Services Zamora and Does 1-4 as Defendants.
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). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that . .
. the action or appeal . . . fails to state a claim upon
which relief may be granted.” 28 U.S.C. §
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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff
must set forth “sufficient factual matter, accepted as
true, to ‘state a claim that is plausible on its
face.’” Id. (quoting Twombly,
550 U.S. at 555). While factual allegations are accepted as
true, legal conclusions are not. Id.
1983 provides a cause of action for the violation of
Plaintiff’s constitutional or other federal rights by
persons acting under color of state law. Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long
v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
2006); Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). Plaintiff’s allegations must link the
actions or omissions of each named defendant to a violation
of his rights; there is no respondeat superior liability
under section 1983. Iqbal, 556 U.S. at 676-77;
Simmons v. Navajo County, Ariz., 609 F.3d
1011, 1020-21 (9th Cir. 2010); Ewing v. City of
Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009);
Jones, 297 F.3d at 934. Plaintiff must present
factual allegations sufficient to state a plausible claim for
relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S.
Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The
mere possibility of misconduct falls short of meeting this
plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
ALLEGATIONS IN COMPLAINT
is currently incarcerated at the California Medical Facility
(“CMF”). The events at issue occurred at CMF and
explains that doctors have determined that he is permanently
mobility impaired in the lower extremities, and has back,
neck and shoulder injuries, degenerative disc disease, and
musculoskeletal disease. From 1986 through 2007, 23 health
care provides have imposed physical limitations and work
restrictions, including no prolonged walking or standing. As
his condition worsened, doctors prescribed “ADA
reasonable accommodation appliances, ” such as an
eggcrate mattress and upper locker. His DPP code was changed
from DMO to DPO, which requires wheelchair use, an eggcrate
mattress, wheelchair gloves and a walker.
2010, Defendant Byers, in response to Plaintiff’s
grievance, noted that he did not qualify for a back brace or
wheelchair gloves as an intermittent wheelchair user.
2011, while at CSATF, Plaintiff was taken to Mercy Hospital
for Valley Fever treatment. He was transferred to Corcoran
State Prison Hospital to complete five months of treatment.
While there, Does 1 and 2 boxed Plaintiff’s personal
property and stored his ADA appliances at the Facility B
11, 2011, Plaintiff was released and issued a wheelchair that
had been sitting outside the hospital. A torn sheet string
was holding the seat and back together, the armrest was taped
down, the ball-bearings were rusty, and the wheelchair was
very hard to push. As a result, Plaintiff reinjured his back
and suffered great pain in his shoulders and neck.
arrival at Facility B, Plaintiff was rehoused and had to
continue to use the old wheelchair to get to the dining hall,
medical appointments, etc. His injuries worsened.
requested the ADA appliances that his doctors had prescribed
from Does 1 and 2, but was denied. Defendants told Plaintiff
that the Facility B Medical Clinic Staff had lost the
wheelchair and other appliances. From May 11 through May 18,
2011, Plaintiff continued to complain to Defendants Lamay and
Thomas and asked when his wheelchair would be located. His
requests were denied.
May 18, 2011, Plaintiff was transferred to Facility F.
However, Plaintiff had to use the old loner wheelchair, and
had to use his legs to push the wheelchair backwards when his
arms, shoulders and neck suffered severe pain and more
24 or 25, 2011, while suffering numerous injuries as a result
of having to use the wheelchair, Plaintiff missed meals and
other appointments. He went to the Facility F Medical Clinic
and explained to Defendant Belantes that Facility B had lost
his wheelchair, and that the loner wheelchair was causing
severe suffering. Plaintiff requested another wheelchair, but
Defendant Belantes denied the request, stating,
“I’ll call Facility B Medical Staff.” ECF
No. 23, at 16.
after June 8 or 9, 2011, Plaintiff returned to Defendant
Belantes and asked whether Facility B had located his
wheelchair. He appeared to be upset with Plaintiff and stated
that they did not have his wheelchair. Plaintiff requested
another wheelchair, but was denied. Defendant Belantes told
him that he needed to contact Facility B Medical.
2011, Plaintiff’s condition worsened. He went to
Facility F and talked to a different nurse, who told
Plaintiff that she was not the regular nurse and to come back
August 24, 2011, Plaintiff filed a Reasonable Accommodation
Request after suffering sores and/or inflammation in his
buttocks, back and shoulders. He requested his wheelchair, a
cane, an eggcrate mattress, wheelchair cushing, wheelchair
gloves and a walker with wheels.
to October 5, 2011, Plaintiff was called to the Facility F
Medical Clinic to see Defendant Belantes. Defendant Belantes
stated, “come out back and get your wheelchair, ”
but it was not Plaintiff’s wheelchair and was another
inadequate loner wheelchair. ECF No. 23, at 17. The
wheelchair was too small, hard to push and pulled to the
right. Plaintiff suffered serious mental and physical pain.
October 5, 2011, Plaintiff was interviewed by Defendant
Beltran, who said that Plaintiff received his personal
property, a replacement wheelchair and a cane for his medical
needs. Defendant Beltran told Plaintiff that he had spoken
with Defendant Belantes, who confirmed that he replaced
Plaintiff’s wheelchair and cane on May 13, 2011.
October 12, 2011, Defendant Beltran and Tann partially
granted Plaintiff’s Reasonable Accommodation Request
and stated that at the time of the interview, Plaintiff was
using a wheelchair. The appeal also noted that Defendant
Belantes confirmed that Plaintiff’s wheelchair was
replaced on May 13, 2011, and that on October 2, 2011,
Plaintiff was seen by Defendant Ogbuehi, who reclassified him
from DPO to DPM. As a result of the exam, a wheelchair,
eggcrate mattress, eggcrate cushing and gloves were denied.
alleges that Defendants Beltran, Belantes and Tann falsified
the records, because he was rehoused in Facility F on May 18,
2011, using the same old wheelchair issued at Corcoran
Hospital. Plaintiff was not on Facility F on May 13, 2011,
and when he received his personal property, he was not issued
a replacement wheelchair or cane. He was not issued a
different wheelchair until October 2011.
further alleges that Defendants Alva and Reynoso knowingly
falsified records “via a copy of Plaintiff’s
original Reasonable Modification and Accommodation Request,
which was responded to by Defendant Beltran.” ECF No.
23, at 18. However, the request noted, “treat as
original, ” and Defendants Alva and Reynoso wrote,
“Per the physician’s response worksheet dated
9-20-11, and completed by P.A. Byers, you do not meet the
criteria for DPO designation, an eggcrate mattress, eggcrate
cushing, or gloves. Furthermore, it states you will benefit
from walker use and a walking cane.” ECF No. 23, at 18.
Per the September 20, 2011, Comprehensive Accommodation
Chrono, “your wheelchair was rescinded and a walking
cane and walker were assigned. You were also assigned a
bottom bunk and lower housing. . .your Disability Placement
Program was changed to DPO to DPM and it was noted that your
condition is improved.” Plaintiff’s request for a
cane was granted, but the remaining requests were denied. ECF
No. 23, at 18-19.
contends that Defendants Byers, Alva and Reynoso knowingly
falsified the records. Specifically, he alleges that
Defendant Byers did not complete a worksheet dated September
20, 2011, he was not interviewed by Defendant Alva on October
5, 2011, and Defendant Byers admitted in 2010 that Plaintiff
was an intermittent wheelchair user.
result of the above, Plaintiff sought further accommodations
from Defendants Carrasquillo, Smiley and Zamora. On or after
October 21, 2011, he submitted a Request for Reasonable
Accommodation. He submitted requests again in January 2012,
regarding the needed ADA appliances and denial of medical
treatment. The requests were denied. The ADA Department
notified Plaintiff that his appeal no longer warranted
processing as an ADA appeal, and was forwarded to the Health
Care Appeals Office. The appeal was treated as a disagreement
with treatment and was partially granted, but Defendants
Carrasquillo and Smiley did not provide any treatment or ADA
February 12, 2011, and again in August 2012, Plaintiff
requested his ADA appliances and medical treatment from
Defendant Zamora. On both occasions, his requests were
denied. Defendant Zamora stated, “at DLR, your appeal
was reviewed” and “the content of the appeal,
related to Disability Program Placement Verification of
mobility impaired without wheelchair (DPM) versus mobility
impaired requiring intermittent wheelchair use ...