(PC) Serna v. Sullivan

• Court: District Court, E.D. California
• Decided: September 27, 2019
• Docket: 1:18-cv-01650
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 NORBERTO SERNA, 1:18-cv-01650-GSA-PC 12 Plaintiff, SCREE NING ORDER 13 v. ORDE R DISMISSING COMPLAINT FOR 14 FAILU RE TO STATE A CLAIM AND SULLIVAN, et al., VIOLATION OF RULE 18(a) OF THE 15 FEDERAL RULES OF CIVIL PROCEDURE, Defendants. WITH LEAVE TO AMEND 16 (ECF No. 5.)

17 THIRTY-DAY DEADLINE TO FILE FIRST AMENDED COMPLAINT 18

19 20 21 I. BACKGROUND 22 Norberto Serna (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action pursuant to 42 U.S.C. § 1983 and Title II of the Americans with 24 Disabilities Act, , 42 U.S.C. § 12132. On June 11, 2018, Plaintiff filed the Complaint 25 commencing this action at the United States District Court for the Northern District of 26 California. (ECF No. 1.) The Complaint was not signed. On August 15, 2018, the Northern 27 District court notified Plaintiff that he had not signed the Complaint, and on August 27, 2018, 28 Plaintiff re-submitted the Complaint bearing his signature. (ECF No. 5.) 1 On November 19, 2018, the Northern District Court dismissed Plaintiff’s claims against 2 Santa Clara County Superior Court and transferred the remaining claims to this court. (ECF 3 No. 9.) The Complaint is now before the court for screening. 28 U.S.C. § 1915A. 4 II. SCREENING REQUIREMENT 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 7 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 9 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 10 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 11 paid, the court shall dismiss the case at any time if the court determines that the action or 12 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing 14 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 15 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are 18 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 19 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 20 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 21 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 22 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as 23 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting 24 this plausibility standard. Id. 25 III. SUMMARY OF PLAINTIFF’S COMPLAINT 26 Plaintiff is presently incarcerated at the California Correctional Institution (CCI) in 27 Tehachapi, California, where the events at issue in the Complaint allegedly occurred. Plaintiff 28 /// 1 names as defendants, Mr. Sullivan (Warden, CCI), Captain Ms. Gonzales, and Ms. 2 Montegrande (Doctor) (collectively “Defendants”). 3 Plaintiff allegations follow: 4 Plaintiff is hearing-impaired and has medical issues with his back, legs, and feet. He 5 has chronos1 for his back (lower tier, lower bunk) and for hearing aids in both ears. 6 The gravamen of Plaintiff’s Complaint appears to be that he is not being provided with 7 the accommodations he is entitled to as an ADA2 inmate. Plaintiff alleges that he should be in 8 the Disability Placement Program with access to the library dayroom, telephone calls, yard 9 time, and showers. Plaintiff alleges that defendants, Mr. Sullivan and Ms. Gonzales, do not 10 acknowledge the operational procedure (Remedial Plan) that Plaintiff should follow as a 11 member of the ADA. Plaintiff alleges that defendant, Dr. Montegrande, delays his treatment 12 for serious medical needs which discriminates against Plaintiff for his disability. 13 Plaintiff also makes other allegations that appear unrelated to his disability. Plaintiff 14 alleges that he is falsely imprisoned and was sentenced without being given his right to speak, 15 denying him access to the court. He also alleges that the “kitchen is so dirty.” Compl. at 3:14. 16 Plaintiff’s request for relief in the Complaint states, “I am traumatized, deteriorated 17 physically and mentally injured for discriminating (sic) my disability and suffered (sic) every 18 day. I’m praying to God Almighty that your prestigious office will accommodate my petition 19 and summons all the defendants so that justice will prevail to those that were abused by (sic) 20 their constitutional rights.” (ECF No. 5 at 3 ¶ IV.) 21 IV. PLAINTIFF’S CLAIMS 22 A. 42 U.S.C. § 1983 23 The Civil Rights Act under which this action was filed provides:

24 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 25 to be subjected, any citizen of the United States or other person within the

26 1 A General Chrono means a CDC Form 128-B which is used to document information about 27 inmates and inmate behavior. 15 CCR § 3000.

28 2 Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. jurisdiction thereof to the deprivation of any rights, privileges, or immunities 1 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 2 3 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 4 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 5 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 6 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 7 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 8 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 9 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 10 under color of state law and (2) the defendant deprived him of rights secured by the 11 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 12 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 13 “under color of state law”). A person deprives another of a constitutional right, “within the 14 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 15 omits to perform an act which he is legally required to do that causes the deprivation of which 16 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 17 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 18 causal connection may be established when an official sets in motion a ‘series of acts by others 19 which the actor knows or reasonably should know would cause others to inflict’ constitutional 20 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 21 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 22 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 23 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 24 B. Personal Participation and Linkage 25 Plaintiff is advised that “[l]iability under [§] 1983 arises only upon a showing of 26 personal participation by the defendant. A supervisor is only liable for the constitutional 27 violations of . . . subordinates if the supervisor participated in or directed the violations, or 28 knew of the violations and failed to act to prevent them. There is no respondeat superior 1 liability under [§] 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations 2 omitted). Plaintiff must demonstrate that each defendant, through his or her own individual 3 actions, violated Plaintiff=s constitutional rights. Iqbal, 556 U.S. at 676; Corales v. Bennett, 4 567 F.3d 554, 570 (9th Cir. 2009). Therefore, to the extent that Plaintiff seeks to impose 5 liability upon any of the Defendants in their supervisory capacity, Plaintiff fails to state a § 6 1983 claim. 7 Section 1983 plainly requires that there be an actual connection or link between the 8 actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 9 Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); 10 Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held 11 that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the 12 meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts 13 or omits to perform an act which he is legally required to do that causes the deprivation of 14 which complaint is made.” Johnson, 588 F.2d at 743. In order to state a claim for relief under 15 section 1983, Plaintiff must link each named defendant with some affirmative act or omission 16 that demonstrates a violation of Plaintiff’s federal rights. 17 Accordingly, Plaintiff must demonstrate that each defendant personally participated in 18 the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis 19 added). Plaintiff must demonstrate that each defendant, through his or her own individual 20 actions, violated Plaintiff’s constitutional rights. Iqbal, 556 U.S. at 676-77. It is not sufficient 21 to use conclusory language such as “Ms. Montegrande -- discrimination of my disability for 22 delaying my serious medical needs.” Plaintiff must explain what Ms. Montegrande did, telling 23 the story of what happened first and then what happened next, how she acted, what Plaintiff 24 saw, heard, or otherwise personally knew, and what Ms. Montegrande did that violated his 25 rights. 26 Plaintiff has not alleged facts showing personal actions by any of the Defendants that 27 demonstrate a violation of Plaintiff’s rights. Therefore, Plaintiff fails to state a cognizable § 28 1983 claim against any of the Defendants. 1 C. Rule 18(a) of the Federal Rules of Civil Procedure 2 Plaintiff alleges multiple claims in the Complaint that appear to be largely unrelated. 3 Plaintiff may not proceed in one action on a myriad of unrelated claims against different 4 defendants. Plaintiff’s claims violate Federal Rules of Civil Procedure 18(a). 5 “The controlling principle appears [as follows]: ‘A party asserting a claim to relief as an 6 original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent 7 or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an 8 opposing party.’ Thus multiple claims against a single party are fine, but Claim A against 9 Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated 10 claims against different defendants belong in different suits, not only to prevent the sort of 11 morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners 12 pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of 13 frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 14 28 U.S.C. ' 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 15 It appears that Plaintiff seeks to bring ADA claims against all of the Defendants. But 16 Plaintiff also claims that he is falsely imprisoned because he was wrongly sentenced and denied 17 access to the courts,3 and that the kitchen is dirty. These claims appear unrelated to each other 18 under Rule 18(a), and Plaintiff may not bring unrelated claims in one case. Plaintiff must 19 choose which related claims to bring in this case. Therefore, the Complaint shall be dismissed 20 for violation of Rule 18(a), with leave to file an amended complaint within 30 days curing the 21 deficiencies in Plaintiff’s claims. 22 In the paragraphs that follow the court shall set forth the legal standards for the claims 23 that it appears Plaintiff seeks to bring. Plaintiff is advised to review the legal standards before 24 deciding which claims to bring in the First Amended Complaint. 25 ///

26 3 It appears to the court that Plaintiff’s claims pertaining to sentencing, false imprisonment, and 27 denial of access to courts were dismissed in the Northern District of California when that court dismissed Plaintiff’s claims against the Santa Clara County Superior Court. If this is the case, Plaintiff may not re-allege 28 those claims in the First Amended Complaint. 1 D. Eighth Amendment Medical Claim 2 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 3 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 4 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part 5 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 6 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant 7 injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to 8 the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 9 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 10 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate 11 indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible 12 medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 13 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 14 interfere with medical treatment, or it may be shown by the way in which prison physicians 15 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 16 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 17 indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of 18 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 19 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 20 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 21 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ 22 but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 23 U.S. 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, 24 then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. 25 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A 26 showing of medical malpractice or negligence is insufficient to establish a constitutional 27 deprivation under the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is 28 /// 1 insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 2 1332, 1334 (9th Cir. 1990)). 3 Here, Plaintiff alleges that Dr. Montegrande delayed medical care for his serious 4 medical needs. Plaintiff’s allegations that he is hearing impaired and has medical issues with 5 his back, legs, and feet are sufficient to establish that he has serious medical needs. However, 6 Plaintiff has not shown that Dr. Montegrande knew about his serious medical needs and knew 7 that he was at substantial risk of serious harm. Nor has Plaintiff shown that Dr. Montegrande 8 consciously ignored the excessive risk and failed to provide reasonable medical care, causing 9 Plaintiff to be harmed. Therefore, Plaintiff fails to state a medical claim against Dr. 10 Montegrande. 11 Plaintiff is advised that the treatment, or lack of treatment, concerning Plaintiff=s 12 medical condition does not provide a basis upon which to impose liability under the RA or the 13 ADA. Burger v. Bloomberg, 418 F.3d 882, 882 (8th Cir. 2005) (medical treatment decisions 14 not a basis for RA or ADA claims); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 15 (11th Cir. 2005) (RA not intended to apply to medical treatment decisions); Fitzgerald v. Corr. 16 Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (medical decisions not ordinarily within 17 scope of ADA or RA); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does 18 not create a remedy for medical malpractice.”). 19 E. Americans With Disabilities Act (ADA) 20 1. Standards to State an ADA Claim 21 Title II of the ADA provides that “no qualified individual with a disability shall, by 22 reason of such disability, be excluded from participation in or be denied the benefits of the 23 services, programs, or activities of a public entity, or be subjected to discrimination by any such 24 entity.” 42 U.S.C. § 12132. Title II authorizes suits by private citizens for money damages 25 against public entities, United States v. Georgia, 546 U.S. 151, 153 (2006), and state prisons 26 “fall squarely within the statutory definition of ‘public entity,’” Pennsylvania Dept. of Corrs. v. 27 Yeskey, 524 U.S. 206, 210 (1998). 28 /// 1 “Generally, public entities must ‘make reasonable modifications in policies, practices, 2 or procedures when the modifications are necessary to avoid discrimination on the basis of 3 disability, unless the public entity can demonstrate that making the modifications would 4 fundamentally alter the nature of the service, program, or activity.’” Pierce v. County of 5 Orange, 526 F.3d 1190, 1215 (9th Cir. 2008) (quoting 28 C.F.R. § 35.130(b)(7)). The state is 6 responsible for providing inmates with “the fundamentals of life, such as sustenance, the use of 7 toilet and bathing facilities, and elementary mobility and communication,” and as such, the 8 ADA requires that these “opportunities” be provided to disabled inmates “to the same extent 9 that they are provided to all other detainees and prisoners.” Armstrong v. Schwarzenegger, 622 10 F.3d 1058, 1068 (9th Cir. 2010); see also Pierce, 526 F.3d at 1220 (finding ADA violation 11 where defendant failed to articulate “any legitimate rationale for maintaining inaccessible 12 bathrooms, sinks, showers, and other fixtures in the housing areas and commons spaces 13 assigned to mobility—and dexterity-impaired detainees”). 14 In order to state a claim that a public program or service violated Title II of the ADA, a 15 plaintiff must show: (1) he is a “qualified individual with a disability;” (2) he was either 16 excluded from participation in or denied the benefits of a public entity’s services, programs, or 17 activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, 18 denial of benefits, or discrimination was by reason of his disability. McGary v. City of 19 Portland, 386 F.3d 1259, 1265 (9th Cir. 2004); see also Lee v. City of Los Angeles, 250 F.3d 20 668, 691 (9th Cir. 2001) (“If a public entity denies an otherwise ‘qualified individual’ 21 ‘meaningful access’ to its ‘services, programs, or activities’ ‘solely by reason of’ his or her 22 disability, that individual may have an ADA claim against the public entity.”). 23 To recover monetary damages under Title II of the ADA, a plaintiff must prove 24 intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d 25 1124, 1138 (9th Cir. 2001). The standard for intentional discrimination is deliberate 26 indifference, “which requires both knowledge that a harm to a federally protected right is 27 substantially likely, and a failure to act upon that likelihood.” Id. at 1139. The ADA plaintiff 28 must both “identify ‘specific reasonable’ and ‘necessary’ accommodations that the state failed 1 to provide” and show that the defendant’s failure to act was “a result of conduct that is more 2 than negligent, and involves an element of deliberateness.” Id. at 1140. 3 2. Appropriate Defendants in ADA Actions 4 The proper defendant in an ADA action is the public entity responsible for the alleged 5 discrimination. Georgia, 546 U.S. at 153. State correctional facilities are “public entities” 6 within the meaning of the ADA. See 42 U.S.C. § 12131(1)(A) & (B); Yeskey, 524 U.S. at 210; 7 Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). Also, a state official sued in his or 8 her official capacity is, in effect, a suit against the government entity and is an appropriate 9 defendant in an ADA action. See Applegate v. CCI, No. 1:16–cv–1343 MJS (PC), 2016 WL 10 7491635, at *5 (E.D. Cal. Dec. 29, 2016) (citing Miranda B. v. Kitzhaber, 328 F.3d 1181, 11 1187–88 (9th Cir. 2003); Kentucky v. Graham, 473 U.S. 159, 165 (1985)). 12 Ordinarily, a plaintiff is not entitled to monetary damages against defendants in their 13 official capacities. Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 14 2007) (“The Eleventh Amendment bars suits for money damages in federal court against a 15 state, its agencies, and state officials in their official capacities.”). However, the Eleventh 16 Amendment does not bar ADA suits against state officials in their official capacities for 17 injunctive relief or damages. See Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 792–93 18 (9th Cir. 2004). 19 3. Discussion 20 Plaintiff has sufficiently established in the Complaint that he qualifies as disabled under 21 the ADA, because he is hearing-impaired and has medical issues with his back, legs, and feet. 22 However, Plaintiff fails to state a claim against Defendants in their individual or official 23 capacities. Defendants in their individual capacities are precluded under the ADA,4 and 24

25 4 Plaintiff may name the appropriate entity or state officials in their official capacities, but he may not name individual prison employees in their personal capacities. Shaughnessy v. Hawaii, No. 09-00569 26 JMS/BMK, 2010 WL 2573355, at *8 (D.Hawai=i Jun. 24, 2010); Anaya v. Campbell, No. CIV S-07-0029 GEB GGH P, 2009 WL 3763798, at *5-6 (E.D.Cal. Nov. 9, 2009); Roundtree v. Adams, No. 1:01-CV-06502 OWW 27 LJO, 2005 WL 3284405, at *8 (E.D.Cal. Dec. 1, 2005). Individual liability is precluded under the ADA. Shaughnessy, 2010 WL 2573355, at *8; Anaya, 2009 WL 3763798, at *5-6; Roundtree, 2005 WL 3284405, at *5. 28 1 monetary damages are available against Defendants in their official capacities only if Plaintiff 2 shows discriminatory intent.5 Plaintiff has not shown that he was intentionally discriminated 3 against because of his disability. There are no facts demonstrating that any Defendant knew 4 there was a likelihood of harm to Plaintiff if he did not receive the ADA accommodations he 5 was entitled to. Plaintiff uses conclusory language when alleging that Defendants failed to 6 “acknowledge the operational procedure (Remedial Plan) as member of ADA that I should be 7 in (sic) the Disability Placement Program but (sic) cell living with Limited Program, like access 8 to the library, dayroom, telephone calls, yard time, and shower.” (ECF No. 5. At 3:9-13.) 9 These allegations are insufficient to state a claim. Plaintiff must allege facts showing what 10 each individual Defendant did, showing that each Defendant knew that he qualified for ADA 11 accommodations and yet unreasonably denied him the accommodations he is entitled to, 12 resulting in Plaintiff being unable to participate in prison activities, because of his disabilities. 13 Plaintiff has not alleged facts showing that any Defendant was consciously aware of a 14 likelihood of harm and yet deliberately failed to reasonably respond. Thus, Plaintiff fails to 15 state a claim against Defendants in their official capacity. 16 Based on the foregoing, the court finds that Plaintiff fails to state any cognizable claims 17 under the ADA. 18 F. Conditions of Confinement -- Eighth Amendment Claim 19 Plaintiff alleges that the “kitchen is so dirty.” (ECF No. 5 at 3:14.) 20 The Eighth Amendment’s prohibition against cruel and unusual punishment protects 21 prisoners not only from inhumane methods of punishment but also from inhumane conditions 22 of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer, 23

24 5 Plaintiff may proceed under Title II of the ADA for monetary damages against Defendants in their official capacities, but only if Plaintiff shows discriminatory intent. See Ferguson v. City of Phoenix, 157 25 F.3d 668, 674 (9th Cir. 1998). To show discriminatory intent, a plaintiff must establish deliberate indifference by the public entity. Duvall, 260 F.3d at 1138. Deliberate indifference requires: (1) knowledge that a harm to a 26 federally protected right is substantially likely, and (2) a failure to act upon that likelihood. Id. at 1139. The first prong is satisfied when the plaintiff identifies a specific, reasonable and necessary accommodation that the entity 27 has failed to provide, and the plaintiff notifies the public entity of the need for accommodation or the need is obvious or required by statute or regulation. Id. The second prong is satisfied by showing that the entity 28 deliberately failed to fulfill its duty to act in response to a request for accommodation. Id. at 1139-40. 1 511 U.S. at 847 and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981)) (quotation 2 marks omitted). While conditions of confinement may be, and often are, restrictive and harsh, 3 they must not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 4 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions which are devoid 5 of legitimate penological purpose or contrary to evolving standards of decency that mark the 6 progress of a maturing society violate the Eighth Amendment. Morgan, 465 F.3d at 1045 7 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508 8 (2002); Rhodes, 452 U.S. at 346. Prison officials have a duty to ensure that prisoners are 9 provided adequate shelter, food, clothing, sanitation, medical care, and personal safety, Johnson 10 v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations omitted), but not 11 every injury that a prisoner sustains while in prison represents a constitutional violation, 12 Morgan, 465 F.3d at 1045 (quotation marks omitted). 13 To maintain an Eighth Amendment claim, a prisoner must show that prison officials 14 were deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 15 511 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 16 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; 17 Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard 18 involves an objective and a subjective prong. First, the alleged deprivation must be, in 19 objective terms, “sufficiently serious . . . .” Farmer, 511 U.S. at 834. “[R]outine discomfort 20 inherent in the prison setting” does not rise to the level of a constitutional violation. Johnson, 21 217 F.3d at 731. Rather, extreme deprivations are required to make out a conditions of 22 confinement claim, and only those deprivations denying the minimal civilized measure of life’s 23 necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Farmer, 24 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). The 25 circumstances, nature, and duration of the deprivations are critical in determining whether the 26 conditions complained of are grave enough to form the basis of a viable Eighth Amendment 27 claim. Johnson, 217 F.3d at 731. Second, the prison official must “know[] of and disregard[] 28 an excessive risk to inmate health or safety . . . .” Farmer, 511 U.S. at 837. Thus, a prison 1 official may be held liable under the Eighth Amendment for denying humane conditions of 2 confinement only if he knows that inmates face a substantial risk of harm and disregards that 3 risk by failing to take reasonable measures to abate it. Id. at 837-45. Mere negligence on the 4 part of the prison official is not sufficient to establish liability, but rather, the official’s conduct 5 must have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128. 6 A dirty kitchen, without more, is not an extreme deprivation and does not rise to the 7 level of a violation of the Eighth Amendment. To state a claim, Plaintiff must allege facts 8 showing that an individual Defendant knew about a substantial risk of serious harm to Plaintiff 9 and acted against him while deliberately ignoring the risk, causing Plaintiff harm. Plaintiff has 10 not done so. Therefore, Plaintiff fails to state a claim against any Defendant based on a dirty 11 kitchen. 12 G. Sentencing, False Imprisonment, Access to Courts 13 Plaintiff alleges in the Complaint that he was wrongly sentenced, falsely imprisoned, 14 and denied access to the courts. When a plaintiff challenges the legality or duration of his 15 custody or raises a constitutional challenge which could entitle him to an earlier release, his 16 sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); 17 Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, 18 when seeking damages for an allegedly unconstitutional conviction or imprisonment, “a § 1983 19 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 20 expunged by executive order, declared invalid by a state tribunal authorized to make such 21 determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 22 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). “A claim for damages 23 bearing that relationship to a conviction or sentence that has not been so invalidated is not 24 cognizable under § 1983.” Id. at 488. This “favorable termination” requirement has been 25 extended to actions under § 1983 that, if successful, would imply the invalidity of prison 26 administrative decisions which result in a forfeiture of good-time credits. Edwards v. Balisok, 27 520 U.S. 641, 643–647 (1997). 28 /// 1 The Complaint does not contain any allegations to show that Plaintiff's conviction, or 2 sentence has been reversed, expunged, declared invalid, or called into question by a writ of 3 habeas corpus. Accordingly, it appears that these claims must be dismissed as barred by Heck 4 v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641, 643–647 (1997). 5 V. CONCLUSION AND ORDER 6 The court finds that Plaintiff’s Complaint fails to state any claim upon which relief may 7 be granted under § 1983 or the ADA. Therefore, the court will dismiss the Complaint for 8 failure to state a claim and for violation of Rule 18(a) of the Federal Rules of Civil Procedure 9 and grant Plaintiff leave to file a First Amended Complaint addressing the issues described 10 above. 11 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely 12 give leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an 13 opportunity to file an amended complaint curing the deficiencies identified above. Lopez v. 14 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the First 15 Amended Complaint within thirty days. 16 The First Amended Complaint must allege facts showing what each named defendant 17 did that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal, 18 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must demonstrate that each defendant 19 personally participated in the deprivation of his rights by their actions. Iqbal, 556 U.S. at 676- 20 77 (emphasis added). 21 Plaintiff should note that although he has been given the opportunity to amend, it is not 22 for the purpose of changing the nature of this suit or adding unrelated claims. George, 507 F.3d 23 at 607 (no “buckshot” complaints). Plaintiff should also note that he is not granted leave to add 24 allegations of events occurring after the date he filed the Complaint, June 11, 2018. 25 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey 26 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete 27 in itself without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an 28 amended complaint, as in an original complaint, each claim and the involvement of each 1 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 2 titled “First Amended Complaint,” refer to the appropriate case number, and be an original 3 signed under penalty of perjury. 4 Based on the foregoing, it is HEREBY ORDERED that: 5 1. Plaintiff’s Complaint, filed on June 11, 2018, is DISMISSED for failure to state 6 a claim under § 1983 or the ADA, and for violation of Rule 18(a) of the Federal 7 Rules of Civil Procedure, with leave to amend; 8 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 9 3. Plaintiff is granted leave to file a First Amended Complaint curing the 10 deficiencies identified by the court in this order, within thirty (30) days from 11 the date of service of this order; 12 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and 13 refer to the case number 1:18-cv-01650-GSA-PC; and 14 5. If Plaintiff fails to file a First Amended Complaint within thirty days, this case 15 shall be dismissed for failure to state a claim. 16 IT IS SO ORDERED. 17

18 Dated: September 27, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19

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