Darren K. Kawamoto v. Patrick Covello, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN K. KAWAMOTO, No. 2:24-cv-00258 SCR 12 Plaintiff, 13 v. ORDER AND 14 PATRICK COVELLO, et al., FINDINGS & RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is incarcerated in state prison and proceeding pro se and in forma pauperis with a 18 disability discrimination action under Title II of the Americans with Disabilities Act, 42 U.S.C. § 19 12131 et seq. (“Title II”). Defendants’ motion to dismiss (ECF No. 60) and plaintiff’s motion to 20 appoint counsel (ECF No. 55) and discovery motions (ECF Nos. 53, 54) are pending before the 21 undersigned. 22 FACTUAL AND PROCEDURAL BACKGROUND 23 The action is proceeding on plaintiff’s operative third amended complaint (“TAC”) filed 24 on November 22, 2024. ECF No. 30. Plaintiff, an incarcerated individual with degenerative bone 25 disease and resulting mobility limitations, alleged that he suffered injuries from a fall while being 26 forced to traverse the “A” section showers to reach the exercise yard in Mule Creek State Prison’s 27 (“MCSP”) administrative segregation unit. Prison staff had temporarily required plaintiff to 28 travel through this allegedly inaccessible route while the regular pathway was under construction. 1 On July 22, 2025, the undersigned issued a screening order determining that plaintiff had 2 adequately alleged a Title II claim for damages against defendant California Department of 3 Corrections and Rehabilitation (CDCR) and defendants Patrick Covello (MCSP Warden), 4 Correctional Officer Bannion, John Doe #1, ADA Correctional Counselor M. Mendoza, Asst. 5 Warden Pedersen, and Lt. Corcoran in their official capacities only.1 ECF No. 36. Plaintiff 6 elected to proceed on the TAC as screened. ECF No. 7. The case did not settle during post- 7 screening ADR process. ECF Nos. 46, 52. 8 DEFENDANTS’ MOTION TO DISMISS 9 I. Parties’ Arguments 10 On March 26, 2026, defendants filed a motion to dismiss pursuant to Federal Rule of Civil 11 Procedure 12(b)(6). ECF No. 60. Defendants seek to dismiss official-capacity defendants 12 Covello, Cochran, Pedersen, and Mendoza as redundant to defendant CDCR. Defendants also 13 argue that plaintiff has not adequately alleged these defendants’ personal participation in the 14 alleged Title II violation. Id. at 4-6. In the event the Court grants the motion, defendants argue 15 that plaintiff “should not be permitted leave to amend to include injunctive relief” in light of his 16 recent transfer from MCSP to the California Health Care Facility (“CHCF”) in Stockton. Id. 17 Plaintiff opposes dismissal of defendants Cochran, Pedersen, and Mendoza, but not 18 defendant Covello. ECF No. 61. Plaintiff refutes defendants’ linkage arguments and goes on to 19 describe at length the TAC’s allegations regarding the personal participation of defendants 20 Cochran, Pedersen, and Mendoza, respectively, in the violation of his Title II rights. Id. On 21 reply, defendants argue that plaintiff did not present any argument why Cochran, Pedersen, and 22 Mendoza are not redundant and should not be dismissed in their official capacity. ECF No. 62. 23 II. Discussion 24 A. The Official-Capacity Defendants are Redundant of CDCR 25 Title II prohibits disability discrimination by “public entities,” a term defined to include 26 state departments of correction like CDCR. 42 U.S.C. § 12131(1)(B); Pennsylvania Dept. of 27 1 Per defendants’ motion, the correct spelling of this defendant’s name is Cochran. Further, 28 despite screening in defendant John Doe #1, the undersigned has not yet ordered he be served. 1 Corrections v. Yeskey, 524 U.S. 206, 210 (1998). The Ninth Circuit has held that in a Title II 2 suit, a named officer in his or her official capacity represents the “public entity” subject to suit 3 under 42 U.S.C. § 12131(1). Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187 (9th Cir. 2003). 4 Thus, because official-capacity defendants Covello, Cochran, Pedersen, and Mendoza are 5 duplicative of defendant CDCR, the undersigned recommends that they be dismissed from the 6 action.2 See Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 799 (9th 7 Cir. 2008) (dismissal of redundant defendants is within the district court’s discretion). 8 The undersigned declines to resolve the parties’ disagreement over the extent of the 9 official-capacity defendants’ personal participation in the alleged Title II violations. Under Title 10 II, CDCR “is liable for the vicarious acts of its employees.” Duvall v. Cnty. of Kitsap, 260 F.3d 11 1124, 1141 (9th Cir. 2001). Thus, while the official-capacity defendants’ respective actions will 12 be relevant to merits issues at a later point in the proceedings, they have no bearing on whether 13 they are redundant official-capacity defendants in this action. 14 Accordingly, the undersigned recommends that defendants Covello, Cochran, Pedersen, 15 and Mendoza be dismissed as redundant of CDCR. See Ctr. for Bio-Ethical Reform, 533 F.3d at 16 799; Applegate v. CCI, No. 1:16-cv-1343 MJS PC, 2016 WL 7491635, at *5 (E.D. Cal. Dec. 29, 17 2016) (dismissing official-capacity Title II claim against CDCR employee as redundant of 18 defendant CDCR). As the defendants’ redundancy cannot be cured by amendment, the dismissal 19 is without leave to amend.3 Id. 20 //// 21 //// 22

23 2 Plaintiff argues that the Court has already screened in these defendants and “nothing since has changed.” ECF No. 61 at 3. However, “the sua sponte screening process is cumulative of, not a 24 substitute for” a motion Rule 12(b)(6) motion to dismiss. Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007); see also id. at 1120 (“At the time of the initial screening, the 25 complaint was liberally construed without the benefit of briefing from Defendants.”). Moreover, 26 in the screening order, the undersigned noted that the official-capacity defendants “were potentially redundant,” but declined to dismiss them “at this early stage of the case and without 27 the benefit of briefing from the parties.” ECF No. 36 at 7, n.1. 3 Because the recommended dismissal is without leave to amend, the undersigned denies 28 defendants’ request that plaintiff be barred from amending to request for injunctive relief. 1 PLAINTIFF’S DISCOVERY MOTIONS 2 Shortly after the undersigned lifted the ADR stay of this action but before defendants filed 3 their motion to dismiss, plaintiff filed a motion for discovery (ECF No. 53) and a motion to 4 compel discovery regarding defendant John Doe #1’s real name (ECF No. 54). Defendants 5 oppose the motions as premature given the Court has not issued a discovery and scheduling order. 6 ECF No. 58. 7 Plaintiff’s discovery motions are premature and will be denied. Plaintiff is advised that 8 once defendant CDCR answers the TAC, the undersigned will issue a discovery and scheduling 9 order that sets out the timelines and procedures for discovery in this action. 10 PLAINTIFF’S MOTION TO APPOINT COUNSEL 11 Plaintiff also seeks the appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). ECF 12 No. 55. Plaintiff states that he is unable to afford counsel and that his imprisonment will limit his 13 ability to litigate. Id. at 1. Plaintiff further claims that counsel will be better enable him to 14 conduct discovery and receive a trial by aiding in the presentation of evidence and examination of 15 witnesses. Id. at 2. 16 District courts lack authority under 28 U.S.C. § 1915 to require counsel to represent 17 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 18 (1989). In exceptional circumstances, the court may request that an attorney voluntarily represent 19 such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 20 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional 21 circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and 22 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 23 issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. 24 Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack 25 of legal education and limited law library access, do not establish exceptional circumstances that 26 would warrant a request for voluntary assistance of counsel. Wood, 900 F.2d at 1335; Riley v. 27 Franke, 340 F. Supp. 3d 783, 787 (E.D. Wis. 2018). 28 Beyond § 1915(e)(1), other sources of law may implicate a request for counsel. For 1 example, appointed counsel may be required in a civil proceeding as an accommodation for a 2 litigant who is disabled. See Franco-Gonzalez v. Holder, No. 10-cv-02211 DMG (DTBx), 2013 3 WL 3674492, at *3-*9 (C.D. Cal. Apr. 23, 2013) (granting summary judgment to class of 4 mentally disabled individuals in civil immigration proceedings on their request for appointed 5 representatives under the Rehabilitation Act). Due process may also require appointment of 6 counsel in certain proceedings. See Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (analyzing 7 request for appointment of counsel in civil proceeding under the Mathews v. Eldridge, 424 U.S. 8 319 (1976), procedural due process framework). 9 Plaintiff’s motion will be denied. All of the reasons plaintiff provided are circumstances 10 common to most prisoners and do not constitute exceptional circumstances under 28 U.S.C. § 11 1915(e)(1). Moreover, plaintiff’s Title II claim is not particularly complex, and plaintiff has 12 demonstrated an ability to articulate his claims pro se to this point. The denial of plaintiff’s 13 motion is without prejudice, meaning that plaintiff may seek counsel at a later point in the 14 proceedings based on exceptional circumstances or other bases that warrant the appointment of 15 voluntary counsel. 16 CONCLUSION 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The Clerk of the Court shall randomly assign a District Judge to this action. 19 2. Plaintiff’s motion for discovery (ECF No. 53) and motion to compel (ECF No. 54) 20 are DENIED as premature. 21 3. Plaintiff’s motion to appoint counsel (ECF No. 55) is DENIED without prejudice 22 to refiling at a later point in the proceedings. 23 In addition, IT IS HEREBY RECOMMENDED that: 24 1. Defendants’ motion to dismiss (ECF No. 60) be GRANTED IN PART and 25 DENIED IN PART as follows: 26 a. The motion be GRANTED and defendants Covello, Cochran, Pedersen, and 27 Mendoza be dismissed as redundant without leave to amend; and 28 b. The motion be DENIED as to defendant’s request to bar plaintiff from amending ] to add claims for injunctive relief. 2 2. Defendants be directed to answer the complaint within 30 days of any order 3 || adopting these findings and recommendations. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 6 || (21) after being served with these findings and recommendations, any party may file written 7 || objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 || objections shall be served and filed within fourteen days after service of the objections. The 10 || parties are advised that failure to file objections within the specified time may waive the right to 11 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 | DATED: May 7, 2026 fof 14 )

15 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28