Randolph v. Nix, CASE NO. 1:12-CV-00392-LJO-MJS (PC)

COLIN M. RANDOLPH, Plaintiff,

v.B. NIX, et al., Defendants.

CASE NO. 1:12-CV-00392-LJO-MJS (PC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: May 24, 2012

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND

(ECF NO. 1)

AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Colin M. Randolph, a state prisoner proceeding pro se and in forma pauperis filed this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff's Complaint is now before the Court for screening.

II. SCREENING REQUIREMENT

The 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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF COMPLAINT

Plaintiff's Complaint is lengthy. Plaintiff alleges he is vision and mobility impaired. Upon his February 2011 transfer to Kern Valley State Prison (KVSP), Defendant medical and corrections staff were indifferent to and failed to accommodate needs created by his impairments, and improperly handled and retaliated against him for his grievances, all in violation of his First, Eighth and Fourteenth Amendment rights and rights under state disability and tort law. (Compl. at 1, 39-44.)

More specifically, Defendant medical staff ignored his prior accommodation chrono's from other prison facilities (for lower bunk, prescription glasses and vison vest), failed to properly classify Plaintiff as disabled upon his arrival at KVSP, delayed until April 27, 2011 providing him with an accommodation chrono for a lower bunk and did so only after hisApril 22, 2011 fall from an upper bunk, improperly delayed, denied and retaliated for his grievances, were indifferent to his medical needs and conditions of confinement, and improperly excluded him from the Disability Placement Program.(Id.)

Defendant corrections staff delayed complying with the April 27, 2011 lower bunk accommodation chrono, causing Plaintiff to sleep on the floor for a brief period of time (Id. at 31-34), improperly delayed, denied and retaliated for his grievances, contrived a rules violation and then denied him due process at the disciplinary hearing. (Id.)

Plaintiff names as Defendants in their official and individual capacities (1) KVSP medical staff Akanno MD, Avery MD, Doe MD, Nix RN, (2) KVSP correctional staff Warden Biter, Capt. Augustus, Lt. Esparasa, Sgt. Kohlier, Sgt. Cruthers, Sgt. Gladden, Off. Hernandez, Off. Philpod, Off. Munioz, Off. Gonzales, Off. Mejian, Off. Calderone, Off. Perez, and Off. Doe.

Plaintiff seeks monetary compensation, declaratory and injunctive relief.

IV. ANALYSIS

A. Pleading Requirements Generally

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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 mereconclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic 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. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

B. Section 1983 Linkage and Doe Defendants

To state a claim under § 1983, Plaintiff must demonstrate that each individually named defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The Supreme Court has emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S.Ct. at 1949. Plaintiff must demonstrate that each defendant, through his or her own individual actions, violated Plaintiff's constitutional rights. Id. at 1948-49.

Plaintiff fails to allege facts personally linking Defendant Warden Bitter to any violation of his rights. Plaintiff may not proceed against Warden Bitter unless he describes how this Defendant personally violated, or knowingly directed a violation of, his constitutional rights. Fed.R.Civ.P. 8(a).

"As a general rule, the use of 'John Doe' to identify a defendant is not favored." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). "It is permissible to use Doe defendant designations in a complaint to refer to defendants whose names are unknown to plaintiff. Although the use of Doe defendants is acceptable to withstand dismissal of a complaint at the initial review stage, using Doe defendants creates its own problem; thosepersons cannot be served with process until they are identified by their real names." Robinett v. Correctional Training Facility, 2010 WL 2867696, at *4 (N.D. Cal. July 20, 2010).

Plaintiff is advised that Doe Defendants cannot be served by the United States Marshal until Plaintiff has identified them as actual individuals and amended his complaint to substitute the Defendants' actual names. The burden remains on Plaintiff to promptly discover the full names of Doe Defendants. Id.

C. ADA Accommodation

Plaintiff alleges Defendants failed to properly accommodate his vision and mobility disabilities.

Title II of the Americans with Disabilities Act (ADA) "prohibit[s] discrimination on the basis of disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). "To establish a 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, 303 F.3d at 1052.

Title II of the ADA applies to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 208 (1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1022-23 (9th Cir.1997); see also Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir. 1996).

"To recover monetary damages under Title II of the ADA, a plaintiff must prove intentional discrimination on the part of the defendant," and the standard for intentional discrimination is deliberate indifference. Duvall v. County of Kitsap, 260 F.3d 1124, 1138(9th Cir. 2001).

Plaintiff alleges that Defendant Dr. Akanno issued an accommodation chrono for a lower bunk on April 27, 2011,¹ and that at times thereafter he was not assigned a lower bunk as required by this accommodation chrono.²

However, he fails to allege facts plausibly claiming that the occasional failure to provide a lower bunk was "by reason of" and with "deliberate indifference to" his mobility disability. The information before the Court suggests any such failure was due to a shortage of available lower bunks and a lack of awareness in corrections staff of the April 27, 2011 accommodation chrono.³ Failure to provide a lower bunk when none is available may not constitute a failure to provide reasonable accommodation. See Muhammad v. Department of Corrections, 645 F.Supp.2d 299, 314 (D.N.J. 2008) (transfer of an amputee inmate without penological justification, from a lower bunk to an upper bunk, when a reasonable accommodation appears to have been readily available is sufficient to state an ADA claim). Mere negligence is not sufficient to state an ADA claim. See Muhammad, 645 F.Supp.2d at 311 (negligence is not sufficient to constitute conduct "by reason of" an inmate's disability necessary to state an ADA claim).

Plaintiff fails to allege facts plausibly claiming a "disability based animus" in Defendants' occasional failure to provide a lower bunk. See Forestier Fradera v. Municipality of Mayagueaz, 440 F.3d 17, 23 (1st Cir. 2006) (delay in providingaccommodation due to "political discrimination" not sufficient to support ADA claim).

The medical Defendants treatment of Plaintiff's condition, or lack thereof cannot impose liability under the ADA.⁴

To the extent that Plaintiff wishes to seek assistance that he believes is due pursuant to the Armstrong Remedial Plan, he "must pursue his request via the consent decree or through class counsel." Crayton v. Terhune, No. C 98-4386 CRB(PR), 2002 WL 31093590, *4 (N.D.Cal. Sept.17, 2002). Plaintiff may not sue for damages in this action solely on the basis that Defendants allegedly violated the Armstrong Remedial Plan.⁵

Plaintiff fails to allege facts sufficient to state...