(PC) Lewis v. Gipson

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 DARONTE TYRONE LEWIS, Case No. 1:20-cv-00574-HBK (PC)

12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO

ASSIGN CASE TO DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATIONS TO

14 S. SHERMAN, S. SMITH, FNU SMITH, GRANT IN PART AND DENY IN PART

FNU JOHNSON, FNU PIPER, NIKKI DEFENDANTS’ MOTION TO DISMISS1

15 JOHNSON, J. JIMENEZ, STATE OF

CALIFORNIA, CDCR, (Doc. No. 54)

16

Defendants. FOURTEEN-DAY DEADLINE

17

18

19

20 Pending before the Court is a motion to dismiss filed on behalf of Defendants Warden

21 Stewart Sherman, Associate Warden S. Smith, Lieutenant Smith, Captain Johnson, Sergeant

22 Piper, Transport Officers Nikki Johnson and J. Jimenez, the State of California, and the California

23 Department of Corrections and Rehabilitation (“CDCR”) on January 14, 2021. (Doc. No. 54).

24 After the Court afforded Plaintiff an enlargement of time, Plaintiff filed a response opposing

25 Defendants’ Motion on February 10, 2021. (Doc. Nos. 66, 73). Defendants’ motion is ripe for

26 review.

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District of

California Local Rule 302 (E.D. Cal. 2019).

28

1 I. BACKGROUND

2 A. The Complaint and Attachments

3 Plaintiff Daronte Tyrone Lewis is a prisoner incarcerated within the California

4 Department of Corrections and Rehabilitation (“CDCR”) who was housed at the California

5 Substance Abuse Treatment Facility (“CSATF”) at the relevant time of the events alleged in his

6 pro se Complaint filed under 42 U.S.C. § 1983 on April 14, 2020. (Doc. No. 1, “Complaint”).

7 The Complaint named the State of California, Governor Gavin Newsom, Secretary of CDCR,

8 Connie Gibson, Direction of CDCR, Stuart Sherman, Warden, CSATF, S. Smith, Ass’t Warden,

9 CSATF, Lieutenant Smith, Captain Johnson, Sergeant Piper, Nikki Johnson, Transport Officer,

10 and J. Jimenez, Transport Officer. (Id. at 2-3). “Every Defendant” is sued in their individual and

11 official capacity. (Id. at 1).

12 The following facts are alleged in the Complaint and presumed true at this stage of the

13 proceedings. Plaintiff is a wheelchair-bound inmate. (Id.). The incident giving rise to the cause

14 of action occurred on February 28, 2019 when transport officers, Defendants Johnson and

15 Jimenez, allegedly knowingly failed to secure Plaintiff’s wheelchair properly in a transport van

16 and then Johnson drove recklessly. (Id. at 6). As a result, Plaintiff alleges he fell over in the

17 wheelchair in the transport van and sustained injuries. (Id.). Plaintiff further claims that Warden

18 S. Smith, Lieutenant Smith, Captain Johnson and Sergeant Piper all inspected the van—or were

19 informed of the result of the van inspection—and were thus aware that Plaintiff and other

20 wheelchair bound inmates could not be safely secured during travel. (Id. at 7).

21 Plaintiff’s attachments to the Complaint reflect similar factual allegations concerning the

22 transport and his injuries as a result therefrom. (See generally Id. at 15-43). Plaintiff reiterates he

23 entered the transport van on a wheelchair, there was no way to secure the wheelchair inside the

24 transport van, and instead the transport officer directed “throw on ya brakes of wheelchair [.]

25 [W]e out.” (Id. at 19).

26 An initial memo dated March 1, 2019 reflected correctional officials’ belief that Plaintiff

27 “‘staged this event.’ He brought light to the lack of seatbelts prior to transport, and fell out of his

28 wheelchair, when the vehicle was no longer moving to prove his point.” (Id. at 32). The officers’

1 statements testified that when the van was stopped, they heard a noise, indicating Plaintiff fell

2 when the vehicle was stopped, and that his wheelchair was secured with “floor hooks” in the van.

3 (Id.at 33-34). Further, as noted in this memorandum, correctional officials opined that the

4 transport officers’ “good faith” was evidenced by Plaintiff’s transport “without delay” to the

5 medical department following the transport. (Id. at 32). Following an internal prison appeal, a

6 November 14, 2019 amended memorandum issued by CDCR “partially granted” the appeal and

7 determined staff “did violate CDCR policy with respect to at least one of the issues raised.” (Id.

8 at 25-26).

9 Plaintiff attaches to his Complaint a May 10, 2019 letter from the Prison Law Office

10 CDCR that they “have received several reports” from SATF “about unsafe transportation.” (Id. at

11 35). The letter specifically referenced Plaintiff’s claim and requested correctional officers to

12 complete training in compliance with Armstrong2 regarding transport of wheelchair bound

13 inmates due to the complaints the legal group received. (Id. at 35-36). In their correspondence

14 dated June 14, 2019 to Plaintiff, the Prison Law Office noted they had received a response from

15 CDCR in which correctional officials acknowledged securing the wheelchair to the van, but not

16 securing Plaintiff’s body. (Id. at 39-40). Additionally, the response indicates correctional staff

17 completed training on this matter on May 31, 2019. (Id.).

18 B. The Screening Order

19 The previously assigned magistrate judge issued a Screening Order under 28 U.S.C. §

20 1915A finding the Complaint stated a plausible Eighth Amendment claim against the transport

21 officers, Jimenez and Johnson, stemming from their inadequate securing of Plaintiff’s wheelchair

22 in the transport van and Johnson’s reckless driving. (Id. at 4). The Screening Order also found a

23 plausible claim against Warden Stuart Sherman, Associate Warden S. Smith, Lieutenant Smith,

24 Captain Johnson, and Sergeant Piper based on allegations that they previously inspected the van,

25 knew it was not safe for wheelchair-bound inmates, but nevertheless permitted use of the van for

26 wheelchair-bound inmates. (Id.). The Screening Order also found a cognizable claim under the

27 Americans with Disabilities Act and the Rehabilitation Act against the State of California and the

28 2 Armstrong v. Brown, 103 F.Supp.3d 1070 (N.D. Cal. Feb. 3, 2015).

1 CDCR stemming from the denial of safe travel because the prison lacked a van that could safely

2 accommodate Plaintiff who is a wheelchair-bound inmate. (Id. at 5, 6).

3 The Screening Order found no cognizable claims as to: Defendants Governor Gavin

4 Newsom, CDCR Secretary Ralph Diaz, and CDCR Director Connie Gipson and recommended

5 their dismissal. (Id. at 4-5). And the Screening Order recommended dismissal of any claims

6 arising under California’s Unruh Civil Rights Act finding a “prison” was not a “business

7 establishment” as required under the Act. (Id. at 5-6). Following the Screening Order, Plaintiff

8 filed a Notice of Voluntary Dismissal noting that he wished to proceed only on those claims

9 “sanctioned by the Court” and to “voluntarily dismiss all other defendant(s) and all other claims

10 not sanctioned by this Court.” (See Doc. No. 22 at 2).

11 B. Defendants’ Motion to Dismiss

12 Defendants Warden Stuart Sherman, Assistant Warden S. Smith, Lieutenant Smith,

13 Captain Johnson, Sergeant Piper, Transport Officer Nikki Johnson and Transport Officer J.

14 Jimenez, and the State of California, by and through the CDCR, (collectively “Defendants”)

15 move to dismiss the Complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (Doc. No. 54).

16 First, recognizing that Plaintiff sues the individually named Defendants in both their

17 official and individual capacities, Defendants argue Eleventh Amendment immunity precludes an

18 award of monetary damages against state officials in relation to Plaintiff’s Eighth Amendment

19 claim. (Id. at 4-5). Defendants concede Plaintiff may seek injunctive relief against the individual

20 Defendants in their official capacities. (Id. at 5). Defendants, however, argue Plaintiff’s

21 Complaint is deficient because it fails to allege that a policy or practice of the CDCR caused

22 Plaintiff’s injuries under the Eighth Amendment. (Id.)

23 Second, Defendants argue that to the extent Plaintiff sues the CDCR and the State of

24 California for monetary compensation for violations under the Americans with Disability Act, the

25 Rehabilitation Act, and California Government Code § 11135, the suit is only properly brought

26 against “the State of California by and through the CDCR.” (Id. at 6). Regarding Plaintiff’s

27 claims under California Govt. Code §815(b), Defendants argue that plaintiffs pursuing these state

28 claims are required to exhaust their claims before the public entity before filing a lawsuit, and the

1 failure to do so precludes the future lawsuit. (Id.) (citing Peterson v. City of Vallejo, 259 Cal.

2 App.2d 757, 767-770 (1968)). Defendants argue that a plaintiff is required to plead compliance

3 with the claim’s requirements in the complaint. (Id. at 7). Defendants point out that Plaintiff

4 only “references compliance and exhaustion of CDCR administrative grievances and is silent as

5 to whether a claim was filed in accordance with the Act, and if so when it was rejected.” (Id. at

6 7). Defendants argue that due to Plaintiff’s failure to properly plead compliance with the Act, the

7 Complaint fails to state a cognizable cause of action, and that claim should be dismissed. (Id.).

8 II. STANDARD OF REVIEW

9 Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

10 Federal Rule of Civil Procedure 12(b)(1) allows for a motion to dismiss based on lack of subject

11 matter jurisdiction. It is a fundamental precept that federal courts are courts of limited

12 jurisdiction. Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). “A

13 federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively

14 appears.” A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir, 2003); Fifty Associates v.

15 Prudential Ins. Co., 446 F.2d 1187, 1190 (9th Cir. 1970). The plaintiff has the burden to establish

16 that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377,

17 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Vacek, 447 F.3d at 1250.

18 A Rule 12(b)(1) motion may be either facial, where the inquiry is confined to the

19 allegations in the complaint, or factual, where the court is permitted to look beyond the complaint

20 to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Savage v. Glendale

21 Union High School Dist. No. 205, 343 F.3d 1036, 1039 n .2 (9th Cir. 2003). When a defendant

22 challenges jurisdiction “facially,” all material allegations in the complaint are assumed true, and

23 the question for the court is whether the lack of federal jurisdiction appears from the face of the

24 pleading itself. See Wolf, 392 F.3d at 362; Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th

25 Cir.2000); Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th

26 Cir.1979). The failure to make proper and complete factual allegations of jurisdiction fails to

27 show standing and relegates a litigant to “jurisdictional purgatory.” McNutt v. General Motors

28 Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Fifty Associates, 446

1 F.2d at 1190. “A plaintiff suing in a federal court must show in his pleading, affirmatively and

2 distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so,

3 the court, on having the defect called to its attention or on discovering the same, must dismiss the

4 case, unless the defect be corrected by amendment.” Smith v. McCullough, 270 U.S. 456, 459, 46

5 S.Ct. 338, 70 L.Ed. 682 (1926); Fifty Associates, 446 F.2d at 1190.

6 Turning to Rule 12(b)(6), a motion to dismiss for failure to state a claim under this section

7 tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

8 While pro se complaints are held to “less stringent standards,” than those drafted and filed by

9 attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007), Federal Rules of Civil Procedure 8 and 10

10 still apply to pro se actions. A complaint must contain sufficient factual matter to state a claim

11 for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A

12 complaint is plausible on its face when it contains sufficient facts to support a reasonable

13 inference that the defendant is liable for the misconduct alleged.” Id. The sheer possibility that a

14 defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of

15 satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v.

16 U.S. Secret Service, 572 F.3d at 962, 969 (9th Cir. 2009).

17 At this stage of the proceedings, the Court accepts the facts stated in the Complaint as

18 true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976). The Court does not accept as

19 true allegations that are merely conclusory or are based on unreasonable inferences or

20 unwarranted deductions. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

21 Nor do legal conclusions qualify as facts. Iqbal, 556 U.S. at 678. Because plaintiff is pro se, the

22 Court liberally construes the pleading in the light most favorable to the plaintiff. Jenkins v.

23 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir.

24 2003). Further, a Court’s finding that a complaint states a cognizable claim at screening under 28

25 U.S.C. § 1915A does not preclude the court from dismissing the complaint later for failure to

26 state a claim under Fed. R. Civ. P. 12(b)(6). See Easley v. Pinnell, 182 F.3d 924, n. 3 (9th Cir.

27 1999) (discussing in a footnote that the court’s determination the complaint stated non-frivolous

28 claims under § 1915A at screening did not prelude subsequent dismissal for failure to state a

1 claim); Coleman v. Maldnado, 564 F. App’x 893, 894 (9th Cir. 2014) (a district court may still

2 properly grant a motion to dismiss despite a prior screening order finding the complaint stated a

3 claim).

4 In ruling on a motion to dismiss, the Court may consider only the complaint, any exhibits

5 attached thereto, and matters which may be judicially noticed pursuant to Federal Rule of

6 Evidence 201. See Mir. v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu

7 Motors Ltd. v. Consumers Union of United States, Inc., 12 F.Supp.2d 1035, 1042 (C.D. Cal.

8 1998).

9 III. APPLICABLE LAW AND ANALYSIS

10 A. Eighth Amendment, Eleventh Amendment Immunity, and Injunctive Relief

11 At the outset Defendants argue Eleventh Amendment immunity precludes a monetary

12 award from the individual Defendants in their official capacity in relation to Plaintiff’s Eighth

13 Amendment claim. (Doc. No. 54 at 4-5). Defendants concede that Plaintiff may seek injunctive

14 relief against the Defendants in their official capacities. (Id. at 5). Defendants, however, argue

15 Plaintiff’s Complaint is deficient because it fails to allege a policy or practice of CDCR caused

16 Plaintiff’s injuries arising under the Eighth Amendment. (Id.)

17 The Eleventh Amendment, also referred to as sovereign immunity, precludes certain suits

18 by citizens against their own states in federal court. Board of Trustees of Univ. of Ala. v. Garrett,

19 531 U.S. 356, 363 (2001); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996). It is

20 well established that Congress did not intend to abrogate a state’s Eleventh Amendment immunity

21 in § 1983 damage suits. Quern v. Jordan, 440 U.S. 332, 340-45 (1979). Additionally, California

22 has not waived its sovereign immunity or consented to be sued in damages suits brought pursuant

23 to § 1983. Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999) (citations omitted).

24 In other words, due to Eleventh Amendment immunity, a plaintiff may not seek monetary

25 damages against the state, or against a governmental officer in his or her official capacity because

26 such an action is essentially against the government official’s employer. Kentucky v. Graham,

27 473 U.S. 159, 169 (1985). Thus, Plaintiff cannot seek monetary damages from Defendants in

28

1 their official capacities because the Eleventh Amendment precludes such relief.3

2 To the extent Defendants argue Eleventh Amendment immunity precludes Plaintiff from

3 seeking monetary damages against state officials in their official capacities, the Court agrees. In

4 all other respects, the Court is not persuaded by Defendants’ arguments regarding Plaintiff’s

5 ability to seek injunctive relief and whether his Complaint contains sufficient facts of a custom or

6 practice to attribute liability against Defendants in their official capacities.

7 As stated above, lawsuits against state officials in their official capacity are essentially the

8 same as a lawsuit against the state. Graham, 473 U.S. at 165; see also Hafer v. Melo, 502 U.S.

9 21, 25 (1991). A plaintiff seeking injunctive relief against the state is not required to allege a

10 named official’s personal involvement in the acts or omissions that caused the alleged

11 constitutional violation. See Hartmann v. California Dep’t of Corr. and Rehab, 707 F.3d 1114,

12 1127 (9th Cir. 2013) (citing Hafer, 502 U.S. at 25; Graham, 473 U.S. at 166). Rather, a plaintiff

13 need only identify the law or policy challenged as a constitutional violation and name the office

14 within the entity who can appropriately respond to injunctive relief. Id. (citing LA. Cnty. v.

15 Humphries, ___ U.S. ____, 131 S.Ct. 447, 452 (2010) (other citations omitted)).

16 To pursue an official capacity claim, a plaintiff must allege that a custom or policy was

17 the “moving force” behind the violation. Monell v. Dept’ of Soc. Services of City of New York,

18 436 U.S. 658, 690 (1978) (finding local government officials and municipalities sued in their

19 official capacities are “persons” under § 1983, but to allege such a claim an official policy or

20 custom must be the moving force). To establish liability, a plaintiff must show: (1) deprivation of

21 a constitutional right; (2) a policy; (3) the policy amounted to deliberate indifference to a

22 constitutional right; and (4) the policy was the moving force behind the constitutional violation.

23 Mabe v. San Bernardino County, Dep’t of Pub. Soc. Services, 237 F.3d 1101, 1110-11 (9th Cir.

24 2001) (citations omitted). A plaintiff may establish the existence of a policy by introducing

25 evidence of a “longstanding practice or custom which constitutes the standard operating

26

3 The Eleventh Amendment does not, however, preclude suits in federal courts against state officials in

27 their individual capacities. Hafer, 502 U.S. at 25. Thus, to the extent that Plaintiff's Complaint is brought

against Defendants in their individual capacities, Eleventh Amendment immunity is inapplicable.

28

1 procedure” of the entity. Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (citations omitted).

2 Liability cannot be predicated on isolated incidents; it must be founded upon practices of

3 sufficient duration, frequency, and consistency. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.

4 1996).

5 Here, the Complaint contains sufficient factual allegations that Defendants, sued in both

6 their individual and official capacities, did not have proper restraints in the transport van on more

7 than one occasion before Plaintiff’s transport on February 28, 2019, and this deficiency

8 contributed to Plaintiff’s alleged constitutional violation. As noted in the Court’s Screening

9 Order, according to the Complaint, Warden Sherman, Associate Warden Smith, Lieutenant

10 Smith, Captain Johnson, and Sergeant Piper previously inspected the van, knew it was not safe

11 for wheelchair bound inmates, but nevertheless permitted use of the van for wheelchair bound

12 inmates. Plaintiff also alleges he asked the transport officers to safely secure him and his

13 wheelchair prior to transport. (Id. at 4). Further, the Prison Law Office letter attached to the

14 Complaint notes it received “reports” and were concerned about inmates’ complaints that the

15 transport van did not have proper restraints. (Id. at 35-36) (emphasis added). Nowhere does

16 Plaintiff allege this was the first time he was transported in this van, or the first time the van was

17 driven, thereby permitting the reasonable inference from the facts that continuing use of the

18 transport van in this condition without proper restraint devices arguably was a custom or practice.

19 (See generally Id.).

20 Alternatively, a reasonable inference can be drawn from the alleged facts that correctional

21 officials did not have a policy regarding transporting wheelchair bound inmates that required use

22 of restraints for the wheelchair and/or for the inmates seated in the wheelchair, or that the policy

23 it did have was violated. The failure to have a policy regarding how a wheelchair bound inmate

24 must be safely secured and transported in a transport van is sufficient at this stage of the

25 proceedings to pursue an official capacity claim against correctional officials for injunctive relief.

26 Courts have found allegations that correctional officials recklessly drove while

27 transporting a shackled inmate, who did not have a seatbelt, state an Eighth Amendment claim.

28 See Brown v. Fortner, 518 F.3d 552 (8th Cir. 2008) (finding an Eighth amendment claim when

1 transport officers drove recklessly, did not belt the Plaintiff, and caused injuries); Rogers v.

2 Boatright, 709 F.3d 403 (5th Cir. 2013) (finding prisoner’s allegations that he was injured during

3 transport from prison to medical appointment in prison van stated a claim at screening when

4 transport officers operated the vehicle recklessly and had to brake suddenly to avoid collision,

5 causing prisoner-plaintiff injuries); Scott v. Becher, 736 F. App’x 130, 133-134 (6th Cir. 2018)

6 (finding no reasonable correctional officer could have believed it was lawful to use a vehicle

7 maliciously to inflict harm by driving above the speed limit, swerving, and hitting a bump,

8 causing inmates inside, who were not belted, to go airborne and therefore denying qualified

9 immunity to defendants).

10 Indeed, “[a] ‘rough ride’ is ‘a peculiarly cruel means of punishment, as [it] is designed to

11 place the victim in fear for his life. Not only is the prisoner not able to protect himself, but motor

12 vehicles, unlike a controlled spray or direct application of force, are not designed for use as a

13 means of securing compliance or otherwise subduing a prisoner.” Scott, 736 F. App’x at 134

14 (citing Thompson v. Commonwealth of Virginia, 878 F.3d at 89, 103 (4th Cir. 2017)). Thus, the

15 facts alleged in the Complaint are sufficient at this stage of the proceedings to plausibly state a

16 claim for injunctive relief against defendants in their official capacities.

17 B. Proper Defendant in RA/ADA Claim

18 Defendants argue that to the extent Plaintiff sues the CDCR and the State of California for

19 monetary compensation for violations under the Americans with Disability Act (“ADA”, the

20 Rehabilitation Act (“RA”), and California Government Code § 11135, the suit is only properly

21 brought against “the State of California by and through the CDCR.” (Doc. No. 54 at 6).

22 Title II of the ADA provides that “no qualified individual with a disability shall, by reason

23 of such disability, be excluded from participation in or be denied the benefits of the services,

24 programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

25 42 U.S.C. § 12132. While the RA has the additional requirement that the program or activity

26 receive federal funds, 29 U.S.C. § 794, “[t]here is no significant difference in analysis of the

27 rights and obligations created by the ADA and the Rehabilitation Act. Thus, courts have applied

28 the same analysis to claims brought under both statutes.” Zukle v. Regents of the Univ. of

1 California, 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (internal citations omitted).

2 Specifically, to state a claim under Title II of the ADA, Plaintiff must allege that:

3 (1) he “is an individual with a disability;” (2) he “is otherwise

qualified to participate in or receive the benefit of some public

4 entity’s services, programs, or activities;” (3) he “was either

excluded from participation in or denied the benefits of the public

5 entity’s services, programs, or activities, or was otherwise

discriminated against by the public entity;” and (4) “such exclusion,

6 denial of benefits, or discrimination was by reason of [his]

disability.”

7

McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (alteration in original).

8

The proper defendant in an ADA action is the public entity responsible for the alleged

9

discrimination. U.S. v. Georgia, 546 U.S. 151, 153 (2006). State prisons are “public entities”

10

within the meaning of the ADA. See Id. (citing 42 U.S.C. § 12131(1)(A) & (B); Pennsylvania

11

Dept. of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)); see also Armstrong v. Wilson, 124 F.3d

12

1019, 1025 (9th Cir. 1997). Additionally, a state official sued in his or her official capacity is, in

13

effect, a suit against the government entity and is an appropriate defendant in an ADA action. See

14

Georgia, 546 U.S at 154; Duffy, 98 F.3d at 452; Kentucky v. Graham, 473 U.S. 159, 165 (1985).

15

The Court agrees in part with Defendant that the proper defendant is the “State of

16

California by and through the CDCR.” Notably, the Court’s screening order disposed of claims

17

against the CDCR Secretary and Director. The Complaint, however, names correctional officials

18

in their official capacities. Thus, for all intents and purposes, naming Defendants in their official

19

capacities amounts to a suit against the government entity that employs that person. Thus,

20

Plaintiff’s Complaint alleging ADA/RA claims proceeds against the CDCR by virtue of naming

21

CDCR officers in their official capacities.

22

C. California Government Claims Act

23

Turning to the claims under California Govt. Code §815(b), Defendants argue that a

24

plaintiff pursuing these state claims is required to exhaust his or her claims before the public

25

entity before filing a lawsuit, and the failure to do so precludes the future lawsuit. (Doc. No. 54 at

26

6-7) (citing Peterson v. City of Vallejo, 259 Cal. App.2d 757, 767-770 (1968)). Significantly,

27

Defendants argue that a plaintiff is required to affirmatively plead compliance with the claim’s

28

1 requirements in the complaint. (Id. at 7). Defendants point out that Plaintiff only “references

2 compliance and exhaustion of CDCR administrative grievances and is silent as to whether a claim

3 was filed in accordance with the Act, and if so when it was rejected.” (Id.). Defendants contend

4 Plaintiff’s failure to affirmatively plead compliance with the Act results in the Complaint’s failure

5 to state a cognizable cause of action under the Act, and therefore should be dismissed because the

6 Court lacks jurisdiction under Rule 12(b)(1). (Id.).

7 Indeed, as a condition precedent to suit against a public entity, the California Tort Claims

8 Act (CTCA) requires “timely presentation of a written claim and the rejection of the claim in

9 whole or in part.” Mabe v. San Bernardino County, Dep’t of Pub. Soc. Services, 237 F.3d 1101,

10 (citations omitted); see also Williams v. Acala, Case No. 1:17-cv-00916-DAD-SAB, 2018 WL

11 4039954, at *1 (E.D. Cal. Aug. 22, 2018) (denying plaintiff’s motion for reconsideration when

12 plaintiff filed a written claim after magistrate judge issued findings and recommendations

13 dismissing state claims due to plaintiff’s noncompliance with act and untimely filing).

14 While Plaintiff’s Complaint does not expressly state compliance with the CTCA, his

15 Complaint states he “exhausted remedies” on the page of his Complaint in which he alleges his

16 ADA, RA and state claims. (See Doc. No. 1 at 8 in bottom righthand corner). Further, in his

17 opposition, Plaintiff attaches copies of his state government tort claim act forms presented on

18 March 29, 2019 and responses from the California Department of General Services denying

19 Claim No. 19003147 dated April 11, 2019, April 12, 2019 and May 8, 2019. (Doc. No. 73 at 57-

20 69).

21 Thus, accepting the allegations in the Complaint as true, Plaintiff affirmatively claims he

22 “exhausted” all his remedies for his state tort claims. Liberally construed, Plaintiff avers

23 compliance with the CTCA. This is further evidenced by the government tort claims forms

24 included in Plaintiff’s opposition. At this stage of the proceedings, Defendants’ motion to

25 dismiss these claims is denied without prejudice.

26 D. Plaintiff’s Voluntary Dismissal of Certain Defendants

27 As stated supra, following the Court’s Screening Order, Plaintiff filed a notice agreeing to

28 proceed on those claims “sanctioned by the court” and to “voluntarily dismiss all other

1 defendant(s) and all other claims not sanctioned by this Court.” (See Doc. No. 22 at 2). The

2 Court construes Plaintiff’s notice to be a notice of voluntary dismissal under Fed. R. Civ. P.

3 41(a)(1)(A)(i).

4 Fed. R. Civ. P. 41(a)(1)(A)(i) provides for a voluntary dismissal “without a court order”

5 when plaintiff files a notice of voluntary dismissal before the opposing party serves either an

6 answer or a motion for summary judgment. Id. (emphasis added). A review of the docket reveals

7 Defendants Governor Gavin Newsom, CDCR Secretary Ralph Diaz, and CDCR Director Connie

8 Gipson have not answered or filed a motion for summary judgment. (See docket). Such a

9 dismissal is without prejudice, unless stated otherwise. Fed. R. Civ. P. 41(a)(1)(B).

10 Accordingly, it is ORDERED:

11 The Clerk shall assign this case to a district court judge.

12 It is further RECOMMENDED:

13 1. Pursuant to Plaintiff’s Notice of Voluntary Dismissal filed under Fed. R. Civ. P.

14 41(a)(1)(A), the Clerk of Court shall edit the docket to reflect the Plaintiff’s voluntary dismissal

15 of Defendants Governor Gavin Newsom, CDCR Secretary Ralph Diaz, and CDCR Director

16 Connie Gipson, without prejudice.

17 2. The motion to dismiss (Doc. No. 54) filed on behalf of Defendants Sherman, Associate

18 Warden Smith, Lieutenant Smith, Johnson, Piper, Transport Officer Johnson, and Transport

19 Officer Jimenez, and State of California, by and through CDCR, is GRANTED in part and

20 DENIED in part as follows: (a) the motion be GRANTED to the extent that Plaintiff may not seek

21 monetary damages against defendants named in their official capacities; (b) in all other respects,

22 the motion be DENIED without prejudice.

23 NOTICE TO PARTIES

24 These findings and recommendations will be submitted to the United States district judge

25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen

26 (14) days after being served with these findings and recommendations, a party may file written

27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

28 Findings and Recommendations.” Parties are advised that failure to file objections within the

1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

3

“| Dated: _ September 2, 2021 Wihaw. Lh fareh Hack

5 HELENA M. BARCH-KUCHTA

‘ UNITED STATES MAGISTRATE JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14