United States District Court, E.D. California
J.L. HOWZE, Plaintiff,
A.B. OROZCO, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a civil rights
action pursuant to 42 U.S.C. § 1983. Currently before
the Court is defendants Grout, Neuschmid, and Orozco’s
motion to dismiss (ECF No. 24), which has been joined by
defendant Sahota (ECF No. 29). Plaintiff opposes the motion.
ECF No. 30.
order and findings and recommendations filed September 17,
2018, the undersigned screened the first amended complaint
and found that plaintiff had stated claims for relief against
defendants Grout, Neuschmid, Orozco, and Sahota for
deliberate indifference to his serious medical needs,
conspiracy, and violation of his rights under Title II of the
Americans with Disabilities Act (ADA). ECF No. 14 at 10. It
was further recommended that plaintiff’s fraud and due
process claims be denied without leave to amend (id.
at 11), and the District Judge adopted the findings and
recommendations in full (ECF No. 23). In lieu of an answer,
defendants Grout, Neuschmid, and Orozco filed a motion to
dismiss (ECF No. 24), which was later joined by defendant
Sahota (ECF No. 29), who is represented by separate counsel.
Plaintiff opposed the motion to dismiss (ECF No. 30), and
after defendants Grout, Neuschmid, and Orozco filed their
reply (ECF No. 31), plaintiff filed a further, supplemental
opposition (ECF No. 32). Defendants Grout, Neuschmid, and
Orozco have moved to strike the supplemental opposition as an
unauthorized sur-reply (ECF No. 33), and plaintiff requests
it be considered as a supplemental pleading (ECF No. 34).
remaining claims allege that defendants Orozco, Grout,
Neuschmid, and Sahota violated his rights under the ADA and
conspired to and did violate his rights under the Eighth
Amendment. ECF No. 11 at 6-10. Specifically, he asserts that
he suffered and continues to suffer from benign prostatic
hyperplasia (BPH), which includes symptoms such as “(i)
inability to await restroom access; (ii) High Frequency
urination; and (iii) blood loss/vessel rupture . . .
concomitant with bladder distention.” Id. at
7-8, 10 (alteration in original and internal quotation marks
omitted). As a result of his BPH, plaintiff requires a
single-cell housing accommodation to ensure that he has
prompt access to a toilet in order to avoid injury, and he
had a medical order for such an accommodation in June 2014.
Id. at 11-12. However, on October 30, 2014, at an
Institutional Classification Committee (ICC) hearing,
defendant Sahota lied and said that plaintiff’s medical
condition did not require him to be single celled, and
Orozco, Grout, and Neuschmid denied him single-cell status in
complete disregard of his medical chronos. Id. at
4-6. Plaintiff further alleges that prior to the hearing he
overheard Orozco, Grout, and Neuschmid pressuring Sahota into
disregarding the chronos and “‘coaching’
Sahota on what to say . . . to factor medical OUT of
the decision-making process.” Id. at 6
(emphasis in original). Plaintiff seeks damages against
defendants in both their individual and official capacities,
and injunctive relief in the form of a single-cell
accommodation. Id. at 17.
Motion to Dismiss
move to dismiss the complaint on the ground that it is barred
by the judgement //// in Howze v. CDCR (Howze
I), No. 2:14-cv-4067 (C.D. Cal.). ECF No. 24-1 at
3-6. They argue that issue preclusion bars the present action
because there was a final judgment on the merits in Howze
I, to which plaintiff was a party, and the court in
Howze I determined that denying plaintiff a
single-cell designation was not deliberately indifferent,
thereby barring his re-litigation of the issue. Id.
Defendants further argue that plaintiff’s claim for
injunctive relief is barred by the Armstrong class
action and is also moot as a result of his transfer to
another prison. Id. at 6-7.
opposes the motion and argues that the instant case arises
from a different set of facts and has different defendants
than Howze I. ECF No. 30 at 1-3. He also argues that
his ADA claim cannot be brought as part of the
Armstrong class action and his request for
injunctive relief is not moot because he could be transferred
back to Folsom State Prison. Id. at 3-5.
Legal Standard for Dismissal Pursuant to Federal Rule of
Civil Procedure 12(b)(6)
order to survive dismissal for failure to state a claim
pursuant to Rule 12(b)(6), a complaint must contain more than
“a formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
to “raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citations omitted). “‘[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.’”
Id. (alteration in original) (quoting 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1216 (3d ed. 2004)). “[A]
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S.
738, 740 (1976) (citation omitted), as well as construe the
pleading in the light most favorable to the plaintiff and
resolve all doubts in the plaintiff’s favor,
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)