Whitall v. Cal. Dep't of Corr. & Rehab.

RAYMOND RICHARD WHITALL, G43090, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendant(s).

Case No. 20-cv-01259-CRB (PR)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

June 29, 2020

ORDER OF DISMISSAL

Plaintiff Raymond Richard Whitall, a prisoner at Salinas Valley State Prison (SVSP) and frequent litigant in federal court, has filed a pro se complaint under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act of 1990, 42 U.S.C.§ 12101 et seq. (ADA), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (RA), seeking damages from the California Department of Corrections and Rehabilitation (CDCR) and several psychiatric technicians and nurses at SVSP in connection with various mishaps regarding his hearing aids.

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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). To state a claim under § 1983, a plaintiff must allege two 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. West v. Atkins, 487 U.S. 42, 48 (1988).

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To state a claim under Title II of the ADA against a public entity, a plaintiff must allege that: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

Section 504 of the RA provides that "[n]o otherwise qualified individual with a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." 29 U.S.C. § 794(a). To state a claim under Section 504 of the RA, a plaintiff must allege that: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in a program or activity; (3) the program or activity receives federal financial assistance; and (4) he was discriminated against on the basis of his disability. See Bonner v. Lewis, 857 F.2d 559, 562-63 (9th Cir. 1988); see also Olmstead v. Zimring, 527 U.S. 581, 589-90 (1999) (essentially same showing required to state a claim under Section 504 of RA as to state a claim under Title II of ADA).

B. Legal Claims

Plaintiff alleges that on September 13, 2017 the batteries in his hearing aids died. He alerted several psychiatric technicians and nurses he ran into during the next several days but noneof them got him batteries for his hearing aids. On September 19, 2017, plaintiff filed a grievance regarding the batteries and two days later, on September 21, 2017, he received new batteries for his hearing aids. Plaintiff claims that during the eight-day period he was without batteries for his hearing aids he was unable to participate fully in facility programs and activities.

Plaintiff next alleges that on December 11, 2017 his left hearing aid stopped working. He submitted a health care services request form and was referred to audiology. But the nurses who saw him made clear that they could not provide him a temporary replacement left hearing aid and that he would have to wait for audiology. On February 23, 2018, audiology provided plaintiff a new pair of hearing aids. Plaintiff claims that during the 74-day period he was without two fully functional hearing aids because CDCR nursing staff could not provide him a temporary replacement he was unable to participate fully in facility programs and activities.

Plaintiff finally alleges that on April 10, 2018 his left hearing aid broke into two pieces rending it unusable. He submitted a health care services request form and was referred to audiology. But the nurse who saw him this time again made clear that they could not provide him a temporary replacement left hearing aid and that he would have to wait for audiology. On June 14, 2018, audiology provided plaintiff a new left hearing aid of a different make and model than the broken left hearing aid and, on July 11, 2018, provided plaintiff a new right hearing aid to match. Plaintiff claims that during the time period between April 10, 2018 and June 14, 2018 when he was without two fully functional hearing aids because CDCR nursing staff could not provide him a temporary replacement he was unable to participate fully in facility programs and activities.

Plaintiff seeks damages under 42 U.S.C. § 1983, Title II of the ADA and Section 504 of the RA from the individual psychiatric technicians and nurses at SVSP he alleges did not get him batteries for his hearing aids and from CDCR.

The individual psychiatric technicians and nurses plaintiff names in this action - Monica Armstrong, Hang Le, Vanessa Soria, Joan Parker, Anthony Kangethe, Rosselle Baldonado, Milagros Carino, Cesario Carino and Evelyn Vicente - are entitled to dismissal of any claim for damages under § 1983 brought against them in their individual capacities for violations of Title IIof the ADA or Section 504 of the RA because it is well established that a plaintiff "cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act." Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Nor can the individual psychiatric technicians and nurses be sued in their individual capacities for damages directly under Title II of the ADA or Section 504 of the RA. "Title II provides disabled individuals redress for discrimination by a 'public entity.' See 42 U.S.C. § 12132. That term, as it is defined within the statute, does not include individuals. See 42 U.S.C. § 12131(1)." Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (en banc). In fact, neither Title II of the ADA nor Section 504 of the RA provides for individual liability. See C.O. v. Portland Public Schools, 406 F. Supp. 2d 1157, 1172 (D. Or. 2005) (individual defendants may not be sued in their individual capacities for damages under Title II of ADA or Section 504 of RA because neither statute provides for individual liability). Plaintiff's claims for damages from the individual psychiatric technicians and nurses are limited to his § 1983 claim that these defendants' failure to get him batteries for his hearing aids amounted to an Eighth Amendment violation.

A prison official violates the Eighth Amendment only if two requirements are met: (1) the deprivation alleged is sufficiently serious, and (2) the prison official's offending conduct was wanton. Farmer v. Brennan, 511 U.S. 824, 834 (1994). If a prisoner alleges that the conditions of confinement inflict unnecessary suffering upon him, as plaintiff does here, to establish wantonness he must show that the prison official was deliberately indifferent to his suffering. See, e.g., id. at 837 (prisoner safety); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (prisoner health). A prison official is "deliberately indifferent" if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer, 511 U.S. at 837. Neither negligence nor gross negligence warrant liability under the Eighth Amendment. Id. at 835-36 & n4. An "official's failure to alleviate a significant risk that he should have perceived but did not, . . . cannot under our cases be condemned as the infliction of punishment." Id. at 838.

Although regrettable, plaintiff's allegations that he alerted the named individual psychiatric technicians and nurses that the batteries in his hearing aids had died and none of them went andgot him batteries amount to no more than a clam for negligence or gross negligence not cognizable under § 1983. See id. at 835-36 & n.4. After all, plaintiff was given new batteries for his hearing aids less than two days after he filed a health care grievance requesting them. Plaintiff's suggestion that the individual psychiatric technicians and nurses "should have" perceived a significant risk to his health and safety and intervened sooner illustrates that his claim sounds in classic negligence or gross negligence, rather than deliberate indifference. Accord Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (claims stemming from alleged delays in administering pain medication and providing replacement crutch did not amount to more than negligence); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (claims stemming from alleged failure to satisfy requests for aspirins...