United States District Court, C.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO
HONORABLE KENLY KIYA KATO UNITED STATES MAGISTRATE JUDGE
De'Vante Jefferson (“Plaintiff”), proceeding
pro se and in forma pauperis, filed a
Complaint pursuant to 42 U.S.C. § 1983 (“Section
1983”) and the Americans with Disabilities Act
(“ADA”) primarily arising out of his conditions
of confinement at Twin Towers Correctional Facility. For the
reasons discussed below, the Court dismisses the Complaint
with leave to amend.
ALLEGATIONS IN THE COMPLAINT
August 21, 2019, Plaintiff, who was confined at Twin Towers
Correctional Facility at the time of the alleged conduct,
constructively filed the Complaint against defendants County of
Los Angeles, City of Los Angeles, Los Angeles County Sheriff
Alex Villanueva and Deputy Merino in their individual and
official capacities, and deputies Boling, Vasquez, and
Velasquez in their individual capacity
(“Defendants”). ECF Docket No.
appears to sue defendants County of Los Angeles, City of Los
Angeles, and Sherriff Villanueva for violations of the Eighth
Amendment and ADA for holding him in conditions of
confinement “equat[ing] to torture.” Id.
at 12-13. In addition, Plaintiff alleges defendant Boling,
the ADA coordinator for the Twin Towers facility and a
“superior officer, ” violated Plaintiff's
Eighth Amendment rights and the ADA because defendant Boling
is obligated to “ensure that the housing units are in
ADA compliance.” Id. at 14. Plaintiff
specifically alleges he “endured filthy, unsafe,
unhealthy, and inadequate living conditions” at Twin
Towers Correctional Facility. Id. at 8. Plaintiff
alleges he was denied access to cleaning supplies and cold
drinking water, lights are left on 24 hours a day, and
medical equipment and restrooms are not ADA compliant.
also alleges claims against defendants Vasquez and Velasquez
under “due process” and the First, Fifth, and
Fourteenth Amendments for denying him access to courts.
Id. at 15. Plaintiff alleges defendant Vasquez,
“who runs the legal mail department, has failed to
deliver legal mail in a timely ma[nn]er.” Id.
Plaintiff alleges defendant Velasquez, “who is assigned
to the legal unit, ” failed in his obligation to assist
Plaintiff in filing a complaint regarding his conditions of
confinement by denying him access to the law library, legal
supplies, postage, and a notary. Id. at 10, 15.
Plaintiff alleges defendant Merino violated his First, Fifth,
Eighth, Eleventh, and Fourteenth Amendment rights.
Id. at 5. Plaintiff alleges defendant Merino
interfered with Plaintiff's mobility equipment,
“consistently harassed [Plaintiff] without provocation,
” and strip-searched Plaintiff on one occasion.
Id. at 10. Plaintiff alleges he filed a grievance
“on [defendant Merino's] behavior and ever since
he's been retaliating against [Plaintiff].”
seeks an injunction against defendant Merino and
“relief in the amount of [$]20, 000.”
Id. at 6.
STANDARD OF REVIEW
plaintiff is incarcerated and/or proceeding in forma
pauperis, a court must screen the complaint under 28
U.S.C. §§ 1915 and 1915A and is required to dismiss
the case at any time if it concludes the action is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. §§
1915(e)(2)(B), 1915A; see Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998).
Federal Rule of Civil Procedure 8 (“Rule 8”), 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). In determining whether a
complaint fails to state a claim for screening purposes, a
court applies the same pleading standard as it would when
evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012).
complaint may be dismissed for failure to state a claim
“where there is no cognizable legal theory or an
absence of sufficient facts alleged to support a cognizable
legal theory.” Zamani v. Carnes, 491 F.3d 990,
996 (9th Cir. 2007). In considering whether a complaint
states a claim, a court must accept as true all of the
material factual allegations in it. Hamilton v.
Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). However,
the court need not accept as true “allegations that are
merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” In re Gilead Scis. Sec.
Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a
complaint need not include detailed factual allegations, it
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Cook v. Brewer, 637 F.3d 1002, 1004
(9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The complaint
“must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.” Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011).
document filed pro se is ‘to be liberally
construed,' and a ‘pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by
lawyers.'” Woods v. Carey, 525 F.3d 886,
889-90 (9th Cir. 2008). However, liberal construction should
only be afforded to “a plaintiff's factual
allegations, ” Neitzke v. Williams, 490 U.S.
319, 330 n.9, 109 S.Ct. 1827, 104 L.Ed.2d 339 (1989), and a
court need not accept as true “unreasonable inferences
or assume the truth of legal conclusions cast in the form of
factual allegations, ” Ileto v. Glock Inc.,
349 F.3d 1191, 1200 (9th Cir. 2003).
court finds the complaint should be dismissed for failure to
state a claim, the court has discretion to dismiss with or
without leave to amend. Lopez v. Smith, 203 F.3d
1122, 1126-30 (9th Cir. 2000). Leave to amend should be
granted if it appears possible the defects in the complaint
could be corrected, especially if the plaintiff is pro
se. Id. at 1130-31; see also Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995). However, if,
after careful consideration, it is clear a complaint cannot
be cured by amendment, the court may dismiss without leave to
amend. Cato, 70 F.3d at 1107-11; see also Moss
v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER THE
II of the Americans with Disabilities Act of 1990, 42 U.S.C.
§ 12101 et seq. prohibits discrimination on the basis of
disability in the programs, services or activities of a
public entity. However, Title II of the ADA only affords
causes of action against public entities, 29 U.S.C.
§§ 794, 794a; 42 U.S.C. § 12132; Miranda
B. v. Kitzhaber, 328 F.3d 1181, 1187 (9th Cir. 2003),
and does not encompass public officials sued in their
individual capacities. Hayes v. Voong, 709 Fed.Appx.
494, 495 (9th Cir. 2018); Roberts v. California Dep't of
Corr. & Rehab., No. EDCV 16-1929 CJC (JC), 2017 WL
3635175, at *9 (C.D. Cal. Aug. 22, 2017).
state a claim for violation of Title II of the ADA, a
plaintiff must show that (1) he is a qualified individual
with a disability; (2) he was excluded from participation in
or otherwise discriminated against with regard to a public
entity's services, programs, or activities; and (3) such
exclusion or discrimination was by reason of his disability.
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.
2002), cert. denied, 537 U.S. 1105 (2003).
recover monetary damages under the ADA, Plaintiff must show
intentional discrimination on the part of state officials.
Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th
Cir. 2001). The test for intentional discrimination is
deliberate indifference. Id. A defendant acts with
deliberate indifference only if (1) the defendant has
knowledge from which an inference could be drawn that a harm
to a federally protected right is substantially likely, and
(2) the defendant actually draws that inference and fails to
act upon the likelihood. See id. at 1138-39.