(PC) Millare v. Starr

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MORIANO MILLARE, No. 2:20-cv-2072 KJM AC

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 M. STARR, et al.,

15 Defendants.

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17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to

18 42 U.S.C. § 1983 and has filed a First Amended Complaint. ECF No. 15. Plaintiff’s original

19 complaint was screened, ECF No. 10, and plaintiff elected to amend rather than proceed on the

20 one claim that the undersigned found suitable for service, ECF No. 13.

21 I. Statutory Screening of Prisoner Complaints

22 The court is required to screen complaints brought by prisoners seeking relief against a

23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]

26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

6 Franklin, 745 F.2d at 1227-28 (citations omitted).

7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain

17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

18 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

23 content that allows the court to draw the reasonable inference that the defendant is liable for the

24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

1 II. The First Amended Complaint

2 The First Amended Complaint (FAC) names eleven defendants, all of whom are officials

3 or employees of Duel Vocational Institution (DVI). Plaintiff is mobility impaired, and his claims

4 arise from the alleged failure of DVI officials and staff to provide accommodations when

5 plaintiff’s college classes were held in locations that were not reasonably accessible to him due to

6 the number of steps. Plaintiff alleges that his requests for accommodation and access were

7 wrongfully denied or obstructed. ECF No. 15 at 7-9. After plaintiff sought legal help, he had

8 textbooks confiscated and was transferred out of DVI. Id. at 10-13.

9 Claim One is brought under the Americans with Disabilities Act against defendants M.

10 Starr, the Associate Warden and ADA Coordinator; L. Fernando; K. Kesterson; KJ Allen; and J.

11 Flores. Id. at 14-15; see also id. at 2-4. Claim Two alleges that defendants Starr and KD Johnson

12 retaliated against plaintiff for seeking accommodations and filing appeals, by recommending his

13 transfer to another institutional on a pretextual basis. Id. at 16-17. Claim Three alleges that

14 defendants J. Flores, L. Bird, E. Casillas, L. Fernando and A. Ortega Shafer violate plaintiff’s

15 right to equal protection by discriminating against him when they denied, refused to process, or

16 interfered with his requests for accommodation or inmate appeals. Id. at 18-20.

17 III. Claims for Which a Response Will Be Required

18 A. Claim One: Americans with Disabilities Act

19 Title II of the Americans with Disabilities Act (ADA) prohibits a public entity from

20 discriminating against a qualified individual with a disability, 42 U.S.C. § 12131 et seq. State

21 prisons are public entities subject to the ADA. Lee v. City of Los Angeles, 250 F.3d 668, 691

22 (9th Cir. 2001); Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 209 (1998)). To

23 state a claim of disability discrimination under Title II of the ADA, a plaintiff must plausibly

24 allege that (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or

25 receive the benefit of some public entity’s services, programs, or activities; (3) he was either

26 excluded from participation in or denied the benefits of the public entity's services, programs, or

27 activities, or was otherwise discriminated against by the public entity; and (4) such exclusion,

28 denial of benefits, or discrimination was by reason of [his] disability. McGary v. City of

1 Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). To recover monetary damages a plaintiff must

2 prove intentional discrimination, which can be shown by deliberate indifference. Duvall v.

3 County of Kitsap, 260 F.3d 1124, 1138, 1139 (9th Cir. 2001).

4 For purposes of screening, the facts alleged in support of Claim One state a claim for

5 relief under the ADA. The complaint alleges facts demonstrating that plaintiff has a disability,

6 was qualified to participate in the specified educational programs, and was excluded from

7 continuing his participation by access barriers of which defendants were aware. The complaint

8 alleges facts sufficient to show deliberate indifference by prison staff to plaintiff’s right of access.

9 However, the only appropriate defendant on Claim One is the is the public entity

10 responsible for the alleged discrimination. United States v. Georgia, 546 U.S. 151, 153 (2010).

11 Because a suit against an individual in his official capacity is the equivalent of a suit against

12 entity, Becker v. Oregon, 170 F. Supp. 2d 1061, 1066 (D. Or. 2001), Claim One may proceed

13 against defendant Starr, Associate Warden and ADA Coordinator, in his official capacity only.

14 IV. Failure to State a Claim

15 A. Claim One: Americans with Disabilities Act

16 The only proper defendant on Claim One is the prison, see United States v. Georgia,

17 supra, and plaintiff may proceed against the prison by proceeding against defendant Starr in his

18 official capacity. The other defendants named in Claim One, to the extent they are sued in their

19 official capacities, are therefore superfluous. None of the defendants, including Starr, may be

20 sued in their individual capacities under the ADA. See Lovell v. Chandler, 303 F.3d 1039, 1052

21 (9th Cir. 2002); Garcia v. State Univ. of N.Y. Health Sciences Center, 280 F.3d 98, 107 (2d Cir.

22 2001) (“[N]either Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual

23 capacity suits against state officials.” (citations omitted)).

24 Plaintiff was informed of these limitations on his ADA claim in a prior screening order,

25 ECF No. 10, but has reasserted the claim against numerous officials in their official and personal

26 capacities. Although the conduct of any of these individuals—including conduct reflecting

27 intentional discrimination against plaintiff or deliberate indifference to his need for

28 accommodation—may be relevant to the claim, liability is limited to the institution. The claim

1 should therefore proceed against Starr in his official capacity only. All other defendants should

2 be dismissed.

3 B. Claim Two: First Amendment Retaliation

4 Claim Two alleges retaliatory transfer. “Within the prison context, a viable claim of First

5 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

6 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that

7 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did

8 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-

9 68 (9th Cir. 2005) (fn. and citations omitted). Although the complaint alleges that plaintiff

10 engaged in protected conduct (complaints and appeals about the access issues identified in Claim

11 One), and that certain named defendants subsequently arranged for plaintiff’s transfer to a prison

12 other than one which satisfied plaintiff’s requests, the allegations do not demonstrate that the

13 transfer rose to the level of an “adverse action,” was unjustified by legitimate penological goals,

14 or was improperly motivated by an intent to chill plaintiff’s speech or punish him for his 602s and

15 other advocacy regarding accessibility. Accordingly, plaintiff has not stated a claim for

16 retaliation in violation of his First Amendment rights.

17 The previous screening order informed plaintiff of the deficiency of this claim, ECF No.

18 10, but the FAC continues to allege retaliatory intent in purely conclusory terms. This is

19 insufficient to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 679 (2009). Because the

20 FAC lacks facts showing that plaintiff’s transfer was motivated by hostility to his exercise of First

21 Amendment rights, this claim cannot proceed.

22 C. Claim Three

23 Claim Three alleges violation of plaintiff’s equal protection rights. The Equal Protection

24 Clause requires the State to treat all similarly situated people equally. City of Cleburne v.

25 Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiff does not allege discrimination on the

26 basis of membership in a protected class, see Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir.

27 2003), and in any case “[t]he physically disabled are not a protected class for purposes of equal

28 protection under the Fourteenth Amendment,” Gamble v. City of Escondido, 104 F.3d 300, 307

1 (9th Cir. 1997). Rather, the FAC—like the original complaint—appears to rely on a “class of

2 one” theory. Plaintiff alleges that he was treated differently than “similarly situated class of one

3 inmates.” ECF No. 15 at 18.

4 To state a claim under a “class of one” theory, plaintiff must allege facts showing “that

5 [he] has been intentionally treated differently from others similarly situated and that there is no

6 rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,

7 564 (2000). “Similarly situated” persons are those “who are in all relevant respects alike.”

8 Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Plaintiff has made only vague and conclusory

9 allegations that he was treated differently than other similarly situated individuals, and that the

10 difference in treatment lacked a rational basis. ECF No. 15 at 18-19. He suggests that he was

11 disallowed accommodations of a type that were provided to other, unspecified inmates with

12 unspecified but substantially similar disabilities. Id.; see also id. at 11-13, ¶¶ 39, 42, 45, 49, 53,

13 57 (all alleging in conclusory terms that other “similarly situated class of one inmates” were

14 granted “equal access to state rights [provided by CCR Title 15 3084.1”). The FAC does not,

15 however, identify any similarly situated inmates or substantially similar accommodation requests

16 that were granted.

17 Without facts showing that other individuals who were in all relevant respects like

18 plaintiff were treated more favorably, without a rational basis, the complaint does not state a

19 claim for relief on equal protection grounds. Plaintiff was previously informed of this problem,

20 but the FAC does not provide any additional facts.

21 V. Further Leave to Amend Is Not Warranted

22 Leave to amend need not be granted when amendment would be futile. Hartmann v.

23 CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). Because liability for discrimination under the ADA

24 does not lie against prison officials in their personal capacity, Lovell, 303 F.3d at 1052, plaintiff

25 cannot state an ADA claim against any defendants other than M. Starr in his official capacity. As

26 for plaintiff’s retaliation and equal protection claims, the FAC adds no facts that address the

27 pleading defects that were identified in the previous screening order. Past failure to cure

28 deficiencies supports the denial of further leave to amend. See Foman v. Davis, 371 U.S. 178,

1 182 (1962). Because plaintiff has presented no facts to establish retaliatory motive on Claim Two

2 || or differential treatment in Claim Three, despite being invited to do so, the undersigned concludes

3 | that further amendment would be futile.

4 VI. Plain Language Summary of this Order for a Pro Se Litigant

5 The magistrate judge is recommending that your case go forward on your ADA claim

6 || against defendant Starr in his official capacity only. This amounts to a claim for damages against

7 || the prison itself, for discriminating against you and/or acting with deliberate indifference to your

8 | need for disability accommodations. Even if the other individuals you have named are dismissed

9 || as defendants, their conduct can be considered in evaluating whether the prison respected your

10 || rights under the ADA.

1] CONCLUSION

12 In accordance with the above, IT IS HEREBY RECOMMENDED that:

13 1. This case proceed on Claim One of the First Amended Complaint only, against M.

14 Starr in his official capacity only; and

15 2. Claims Two and Three of the First Amended Complaint, and all defendants other than

16 M. Starr in his official capacity, be dismissed.

17 These findings and recommendations are submitted to the United States District Judge

18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

19 | days after being served with these findings and recommendations, plaintiff may file written

20 || objections with the court and serve a copy on all parties. Such a document should be captioned

21 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

22 || failure to file objections within the specified time may waive the right to appeal the District

23 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

24 || DATED: March 21, 2022 ~

25 Hhthter— Chane

ALLISON CLAIRE

26 UNITED STATES MAGISTRATE JUDGE

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