United States District Court, E.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE
TO AMEND (ECF No. 24)
Michael J. Seng, UNITED STATES MAGISTRATE JUDGE
Albert Hayes, a prisoner proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to 42
U.S.C. § 1983 on August 22, 2016. (ECF No. 1.) Plaintiff
has declined Magistrate Judge jurisdiction. (ECF No. 11). No
other parties have appeared.
the Court for screening is Plaintiff's second amended
complaint. (ECF No. 24.) Plaintiff also asks the Court to
take judicial notice of a number of supporting documents
attached to his pleading. (ECF No. 25.)
reasons set forth below, the complaint shall be dismissed for
failure to state a claim. Plaintiff will be granted one
final opportunity to amend.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)),
and courts “are not required to indulge unwarranted
inferences, ” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). While factual allegations are accepted
as true, legal conclusions are not. Iqbal, 556 U.S.
section 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of 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). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
is currently incarcerated at the California Substance Abuse
Treatment Facility (“CSTAF”) in Corcoran,
California, where his claims arose. Plaintiff brings this
action against Scott Kernan, Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”); M. Voong, CDCR's acting Chief
Inmate Appeal Officer; and J.P. Corral, CSATF Appeal
Coordinator. He sues each Defendant in his or her
official capacity only.
allegations may be summarized as follows:
is 69 years old, wheelchair-bound, of limited education, and
deaf. He also has a speech impediment, has difficulty
expressing himself in writing, and cannot communicate well
using American Sign Language. He therefore needs staff
assistance to understand and participate in prison
administrative processes. In the past, CSTAF officials have
provided Plaintiff with a staff assistant to aid him in
understanding and participating in disciplinary hearings.
Plaintiff must rely on poorly educated inmates to help him in
submitted an administrative grievance, Log No.
SATF-D-14-05729 (“the First Appeal”), to
Defendant Corral complaining that his personal property was
missing. On November 18, 2014, the grievance was returned
with a notice stating it was rejected because it contained
“pointless verbiage that the staff [could] not
reasonably be expected to understand” to identify the
issue under appeal. Plaintiff was also instructed to remove
extraneous exhibits and handwritten documents from the
appeal. Plaintiff complied and resubmitted the appeal, this
time including a request for staff assistance in clarifying
his appeal issue due to Plaintiff's difficulties
expressing himself in writing, as outlined in sections
3084.1(c) and 3084.5(b)(1) of the California Code of
December 23, 2014, Corral canceled the First Appeal. He
ignored Plaintiff's request for staff assistance. A few
days later, Plaintiff submitted a second appeal to Corral,
Log No. SATF-D-14-05729 (“the Second Appeal”),
appealing the cancellation of his First Appeal. Corral
rejected the Second Appeal for failure to attach a copy of
the cancelled First Appeal documents. Plaintiff therefore
resubmitted the Second Appeal with the First Appeal documents
attached. Plaintiff again requested staff assistance. The
Second Appeal was accepted by Corral at the second level of
February 20, 2015, Plaintiff received notice that his Second
Appeal was cancelled on timeliness grounds, even though
Plaintiff maintains that the Second Appeal was timely
submitted. Plaintiff claims the Second Appeal was erroneously
assigned a different number. Corral again ignored
Plaintiff's request for staff assistance.
submitted the Second Appeal to Defendant Voong at the third
level of review, complaining that it was wrongfully cancelled
and alleging that Corral discriminated against Plaintiff on
the basis of his disability by not assigning him a staff
assistant. Plaintiff also complained that the Second Appeal
was incorrectly numbered. Voong's response to the Second
Appeal was that he could not address the disability
discrimination issue or correct Corral's failure to
provide staff assistance.
point, Corral threatened to place Plaintiff on the
“black-list, ” meaning punish Plaintiff, thereby
deterring Plaintiff from pursuing any further appeals.
Kernan, as the Secretary of the CDCR, has responsibility for
managing and supervising Corral and Voong. Kernan is also
responsible for ensuring inmates' constitutional and
federal rights are protected. Plaintiff believes Kernan
became aware of Corral and Voong's misconduct through
Plaintiff's grievances, since Kernan “is the boss
of the CDCR appeal system.” Plaintiff also believes
Kernan is responsible for monitoring the accommodation
requests of disabled inmates, and knew or should have known
of “Department staff shall ensure that inmates and
parolees, including those who have difficulties
communicating, are provided equal access to the appeals
process and the timely assistance necessary to participate
throughout the appeal process.” Cal. Code Regs. tit.
15, § 3084.1(c) (West). Corral and Voong's
discriminatory acts. Kernan is the individual best equipped
to respond to Plaintiff's request for injunctive relief.
has suffered from mental stress, which as affected his
ability to adequately complete his work assignment, due to
being wrongfully deprived of a staff assistant.
alleges violations of Fourteenth Amendment and Title II of
the Americans with Disabilities Act
(“ADA”). He seeks a preliminary and ...