ERNEST LEE COX, JR., Case No. 2:21-cv-01778-DJC-JDP (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS v. THAT DEFENDANTS’ MOTION TO DISMISS BE GRANTED VASUKI DARAM, et al., ECF No. 38 Defendants. OBJECTIONS DUE WITHIN FOURTEEN Plaintiff Ernest Lee Cox, Jr. is a state prisoner proceeding without counsel in this action brought under 42 U.S.C. § 1983. He alleges that defendants violated his rights under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and Eighth Amendment when they denied him use of a continuous positive air pressure (“CPAP”) machine.1 ECF No. 12 at 2. Defendants have moved to dismiss the case, arguing that his claims are non- cognizable. ECF No. 38. For the reasons stated below, I recommend that the motion be granted. 1 Defendants also reference denial of single-cell status as a separate claim, but my screening order found cognizable only the claims related to the CPAP machine. ECF No. 13 at 2- 3. I noted in that order that plaintiff’s other claims, including those related to single cell status, would need to be pursued in a separate suit. Id. at 3. Defendants’ Motion to Dismiss I. Legal Standards A complaint may be dismissed under that rule for “failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678. For purposes of dismissal under Rule 12(b)(6), the court generally considers only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice, and construes all well-pleaded material factual allegations in the light most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). II. Analysis Defendants argue first that plaintiff is precluded from recovering monetary damages under the ADA or RA. ECF No. 38 at 13. I agree. They note that, to recover damages under either act, a claimant must show that a defendant intentionally discriminated against him. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001) (to recover monetary damages under ADA and RA, a plaintiff must show intentional discrimination under a deliberate indifference standard). In this context, deliberate indifference requires “knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood.” Id. at 1139. Defendants argue that the complaint does not allege that they failed to act in the face of plaintiff’s request for a CPAP machine. ECF No. 38 at 13. Under this prong, a public entity is obligated to “to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation” and “consider the particular individual’s need when conducting its investigation into what accommodations are reasonable.” Duvall, 260 F.3d at 1139. The complaint (and the documents attached thereto) indicate that, after plaintiff requested the return of his CPAP machine, he met and communicated with healthcare providers multiple times about the machine. ECF No. 12 at 6-7. Additionally, a document attached to plaintiff’s complaint shows that the decision to discontinue his use of the CPAP machine was based on a statewide memorandum from headquarters. Id. at 35. That memorandum invoked findings that CPAP machines “greatly” increased the spread of Covid-19. Id. In so doing, it concluded that “the short term discontinuation of CPAP is less risky than potential virus spread during the COVID pandemic.” Id. These allegations and documents show that defendants’ decision was not based on an intent to discriminate against plaintiff. Whether the increased risk of contracting Covid outweighed the risk of discontinuing the CPAP machine might be medically debatable, but defendants did not shirk their duty to investigate whether the accommodation was reasonable and to consider the factors specific to plaintiff. In his opposition, plaintiff argues that the standard articulated above is incorrect. ECF No. 40 at 9. But case law makes plain that, under both the ADA and RA, a claimant must show that complained-of discrimination was “by reason of his disability.” See O’Guinn v. Nev. Dep’t of Corr., 468 F. App’x 651, 652 (9th Cir. 2014). In light of the rationale offered in the documents attached to the complaint, I conclude that plaintiff cannot show that the discrimination was by reason of his disability. Second, defendants correctly argue that neither the Title II of the ADA nor section 504 of the RA authorize claims against a state official in his or her individual capacity. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (“[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.”). I agree, and nothing in plaintiff’s opposition indicates that this well-established principle is inapplicable here. Third, defendants contend that plaintiff has failed to state cognizable Eighth Amendment claims for denial of adequate medical care against them. Again, I agree. As noted above, official guidance from the upper echelons of the CDCR was that CPAP use should be temporarily discontinued because it increased the risk of spreading the Covid-19 virus. ECF No. 12 at 35. Deliberate indifference requires more than an allegation of medical error or even malpractice. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Instead, the standard is whether a defendant exhibited “subjective recklessness” toward an inmates’ medical needs. See Farmer v. Brennan, 511 U.S. 825, 839-40 (1994) (“[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the as the test for ‘deliberate indifference’ under the Eighth Amendment.”). There is no way to conclude that defendants, by following guidelines issued by the CDCR, were subjectively reckless toward plaintiff’s medical needs. Again, reasonable minds might diffe
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ERNEST LEE COX, JR., Case No. 2:21-cv-01778-DJC-JDP (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS v. THAT DEFENDANTS’ MOTION TO DISMISS BE GRANTED VASUKI DARAM, et al., ECF No. 38 Defendants. OBJECTIONS DUE WITHIN FOURTEEN Plaintiff Ernest Lee Cox, Jr. is a state prisoner proceeding without counsel in this action brought under 42 U.S.C. § 1983. He alleges that defendants violated his rights under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and Eighth Amendment when they denied him use of a continuous positive air pressure (“CPAP”) machine.1 ECF No. 12 at 2. Defendants have moved to dismiss the case, arguing that his claims are non- cognizable. ECF No. 38. For the reasons stated below, I recommend that the motion be granted. 1 Defendants also reference denial of single-cell status as a separate claim, but my screening order found cognizable only the claims related to the CPAP machine. ECF No. 13 at 2- 3. I noted in that order that plaintiff’s other claims, including those related to single cell status, would need to be pursued in a separate suit. Id. at 3. Defendants’ Motion to Dismiss I. Legal Standards A complaint may be dismissed under that rule for “failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678. For purposes of dismissal under Rule 12(b)(6), the court generally considers only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice, and construes all well-pleaded material factual allegations in the light most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). II. Analysis Defendants argue first that plaintiff is precluded from recovering monetary damages under the ADA or RA. ECF No. 38 at 13. I agree. They note that, to recover damages under either act, a claimant must show that a defendant intentionally discriminated against him. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001) (to recover monetary damages under ADA and RA, a plaintiff must show intentional discrimination under a deliberate indifference standard). In this context, deliberate indifference requires “knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood.” Id. at 1139. Defendants argue that the complaint does not allege that they failed to act in the face of plaintiff’s request for a CPAP machine. ECF No. 38 at 13. Under this prong, a public entity is obligated to “to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation” and “consider the particular individual’s need when conducting its investigation into what accommodations are reasonable.” Duvall, 260 F.3d at 1139. The complaint (and the documents attached thereto) indicate that, after plaintiff requested the return of his CPAP machine, he met and communicated with healthcare providers multiple times about the machine. ECF No. 12 at 6-7. Additionally, a document attached to plaintiff’s complaint shows that the decision to discontinue his use of the CPAP machine was based on a statewide memorandum from headquarters. Id. at 35. That memorandum invoked findings that CPAP machines “greatly” increased the spread of Covid-19. Id. In so doing, it concluded that “the short term discontinuation of CPAP is less risky than potential virus spread during the COVID pandemic.” Id. These allegations and documents show that defendants’ decision was not based on an intent to discriminate against plaintiff. Whether the increased risk of contracting Covid outweighed the risk of discontinuing the CPAP machine might be medically debatable, but defendants did not shirk their duty to investigate whether the accommodation was reasonable and to consider the factors specific to plaintiff. In his opposition, plaintiff argues that the standard articulated above is incorrect. ECF No. 40 at 9. But case law makes plain that, under both the ADA and RA, a claimant must show that complained-of discrimination was “by reason of his disability.” See O’Guinn v. Nev. Dep’t of Corr., 468 F. App’x 651, 652 (9th Cir. 2014). In light of the rationale offered in the documents attached to the complaint, I conclude that plaintiff cannot show that the discrimination was by reason of his disability. Second, defendants correctly argue that neither the Title II of the ADA nor section 504 of the RA authorize claims against a state official in his or her individual capacity. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (“[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.”). I agree, and nothing in plaintiff’s opposition indicates that this well-established principle is inapplicable here. Third, defendants contend that plaintiff has failed to state cognizable Eighth Amendment claims for denial of adequate medical care against them. Again, I agree. As noted above, official guidance from the upper echelons of the CDCR was that CPAP use should be temporarily discontinued because it increased the risk of spreading the Covid-19 virus. ECF No. 12 at 35. Deliberate indifference requires more than an allegation of medical error or even malpractice. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Instead, the standard is whether a defendant exhibited “subjective recklessness” toward an inmates’ medical needs. See Farmer v. Brennan, 511 U.S. 825, 839-40 (1994) (“[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the as the test for ‘deliberate indifference’ under the Eighth Amendment.”). There is no way to conclude that defendants, by following guidelines issued by the CDCR, were subjectively reckless toward plaintiff’s medical needs. Again, reasonable minds might differ as to whether the defendants weighted the risks correctly, but that is not the standard. The CDCR was hardly alone in restricting CPAP machine use in order to lessen the risk of Covid transmission. See United States v. Nuzzolilo, 517 F. Supp. 3d 40, 42 (Dist. Mass. Feb. 3, 2021) (collecting cases that describe prisons’ restriction of CPAP machines to combat Covid transmission). Having concluded that plaintiff’s claims are non-cognizable, the only remaining question is whether dismissal should be with or without leave to amend.2 Generally, dismissal should be with leave to amend “unless it is clear that the complaint could not be saved by any amendment.” Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018). I cannot conclude that no amendment could save plaintiff’s claims and so recommend that dismissal be with leave to amend. It is RECOMMENDED that defendants’ motion to dismiss, ECF No. 38, be GRANTED and plaintiff’s claims against them be DISMISSED with leave to amend.
2 I find it unnecessary to consider defendants’ other arguments in favor of dismissal. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (Oth Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). ( 1 Ow — Dated: _ May 15, 2024 Q——— JEREMY D. PETERSON Db UNITED STATES MAGISTRATE JUDGE