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Hayes v. Kernan

United States District Court, E.D. California

March 23, 2017

ALBERT HAYES, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

         THIRTY DAY DEADLINE

          ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 24)

          Michael J. Seng, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         Before 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.)

         For the reasons set forth below, the complaint shall be dismissed for failure to state a claim. Plaintiff will be granted one final opportunity to amend.

         I. Screening Requirement

         The 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. § 1915(e)(2)(B)(ii).

         II. Pleading Standard

         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)), 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. at 678.

         Under 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.

         III. Plaintiff's Allegations

         Plaintiff 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.[1] He sues each Defendant in his or her official capacity only.

         Plaintiff's allegations may be summarized as follows:

         Plaintiff 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 drafting grievances.

         Plaintiff 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 Regulations.[2]

         On 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 the review.

         On 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.

         Plaintiff 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.

         At some point, Corral threatened to place Plaintiff on the “black-list, ” meaning punish Plaintiff, thereby deterring Plaintiff from pursuing any further appeals.

         Defendant 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.

         Plaintiff 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.

         Plaintiff alleges violations of Fourteenth Amendment and Title II of the Americans with Disabilities Act (“ADA”)[3]. He seeks a preliminary and ...


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