# Holestine v. R.J. Donovan Correctional Facility

> District Court, S.D. California · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10079676

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10079676

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 ERNEST KELLY HOLESTINE, Case No.: 18-cv-02094-AJB-WVG

12 Plaintiff,
ORDER:
13 v.
(1) ADOPTING IN PART THE
14 R.J. DONOVAN CORRECTIONAL
REPORT AND
FACILITY et al.,
15 RECOMMENDATION;
Defendants.
16
(3) GRANTING IN PART AND
17 DENYING IN PART DEFENDANTS’
MOTION TO DISMISS; AND
18

19 (3) GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE AN
20
AMENDED COMPLAINT
21
22 Presently before the Court are: (1) Defendants Richard J. Donovan Correctional
23 Facility (“RJD”), California Department of Corrections and Rehabilitation (“CDCR”
24 collectively with the RJD, “Entity Defendants”), D. Mendez, G. Murphy, P. Khder, P.
25 Bracamonte, J. Bonilla, M. Voong, D. Paramo, A. Mondet, J. Juarez, and P. Chapman’s
26 (“Individual Defendants” collectively with Entity Defendants, “Defendants”) motions to
27 dismiss for failure to state a claim (Doc Nos. 19-1, 25, 41); and (2) Plaintiff Ernest Kelly
28 Holestine’s (“Plaintiff”) motion for leave to file an amended complaint, and notice of
1 voluntary dismissal of his fourth and fifth causes of action. (Doc. No. 24.) On August 5,
2 2019, Magistrate Judge William V. Gallo issued a Report and Recommendation (the
3 “R&R”) on Plaintiff and Defendants’ motions. (Doc. No. 43.) Plaintiff filed written
4 objections to the R&R on August 26, 2019. (Doc. No. 44.) The R&R instructed the parties
5 that no replies to the objections may be filed. (Doc. No. 43.)
6 For the reasons set forth below, the Court ADOPTS IN PART the R&R,
7 OVERRULES IN PART AND SUSTAINS IN PART Plaintiff’s objections to the R&R,
8 GRANTS IN PART AND DENIES IN PART Defendants’ motions to dismiss,
9 DISMISSES Plaintiff’s fourth and fifth causes of action, without leave to amend,
10 DISMISSES Plaintiff’s sixth cause of action, with leave to amend, and GRANTS
11 Plaintiff’s motion for leave to file a First Amended Complaint.
12 BACKGROUND
13 Plaintiff is an inmate in the custody of the CDCR and incarcerated at RJD.
14 (Complaint “Compl.” ¶ 3.) The CDCR has promulgated policies authorizing eligible
15 inmates to enroll in college correspondence courses and to work as literary tutors. (Id. ¶
16 25–27.) Eligibility for participation in these college correspondence courses require a
17 recommendation by the Unit Classification Committee (“UCC”), during the inmate’s
18 Initial Review hearing. (Id. ¶ 29.) Enrollment in the college correspondence program
19 requires one of the following: (1) a high school diploma; (2) a G.E.D. certificate; or (3) a
20 10.0 grade level of achievement in reading comprehension, vocabulary, and general
21 mathematics on the Tests of Adult Basic Education (“TABE”). (Id. ¶ 25.) In order to
22 purchase, receive, or possess college correspondence courses, inmates must obtain
23 approval from Defendant Mondet, the Supervisor of Correctional Education Programs, and
24 be enrolled in the Facility “C” Voluntary Education Program. (Id. at 102.)
25 Plaintiff is an individual with significantly limiting mental illnesses, including major
26 depression, obsessive/compulsive disorder, and posttraumatic stress disorder. (Id. ¶ 21.) As
27 a result of his mental illnesses, Plaintiff was admitted to the Facility “C” Enhanced
28 Outpatient Program (“EOP”). (Id. ¶ 24.)
1 On August 4, 2017, Plaintiff attended a meeting with his initial Interdisciplinary
2 Treatment Team (“IDTT”) and expressed his desire to be enrolled in a college
3 correspondence program, and to be assigned as a literary tutor. (Id. ¶ 41.) The IDTT
4 endorsed his request and the IDTT notified the staff at RJD that Plaintiff was cleared to
5 participate in the college and work programs while he was undergoing his EOP activities.
6 (Id.)
7 On August 14, 2017, Plaintiff met with the UCC, which included Defendants
8 Bracamonte and Khder. (Id. ¶ 42.) Plaintiff appeared before the UCC to repeat his desire
9 to be approved to participate in the RJD academic and work programs. (Id.) Plaintiff alleges
10 that Defendant Khder—the Facility “C” Voluntary Education Program Academic
11 Instructor—told the UCC that Plaintiff should not be approved for participation in the
12 academic or work programs because it was “too hard to coordinate college classes and EOP
13 groups.” (Id. ¶ 43.) Additionally, Plaintiff’s request to participate in the programs was
14 denied because Plaintiff’s TABE score of 9.9 grade level did not meet the minimum 10
15 grade level requirement. (Id.) Plaintiff protested that his 9.9 grade level TABE score was
16 erroneous, and that his actual TABE score was a 12.9 grade level. (Id. ¶ 44.) The UCC
17 provisionally approved Plaintiff for participation in the college program conditioned upon
18 him (1) producing his academic records for review, and (2) agreeing to be re-administered
19 the TABE exam. (Id. ¶ 45.) The UCC did not approve Plaintiff’s request to work as a
20 literary tutor. (Id.)
21 Plaintiff alleges that Defendant Khder deliberately refused to comply with the
22 UCC’s recommendations because Defendant Khder: (a) refused to register Plaintiff in the
23 Education Classroom Attendance Tracking System, the Strategic Offender Management
24 System, or the Facility “C” Voluntary Education Program College program; (b) refused to
25 arrange for Plaintiff to be added to the Master Pass List or to be issued Inmate Passes to
26 gain physical access to the Education Compound; (c) refused to arrange for Plaintiff to be
27 re-administered the TABE reading exam; and (d) refused to allow Plaintiff to register for
28 college correspondence courses. (Id. ¶ 46)
1 On October 19, 2017, Plaintiff filed an Inmate Appeal, asserting that he was being
2 unreasonably excluded from the college and tutor programs due to his placement in EOP
3 and his erroneous TABE scores. (Id. ¶ 48.) Plaintiff’s Appeal was elevated to a First and
4 Second Level Review, and his Appeal was denied on the grounds that Plaintiff’s TABE
5 score was too low to participate in the voluntary college program or for assignment as a
6 literary tutor. (Id. ¶ 50.)
7 Plaintiff was re-administered the TABE test on March 22, 2018 and received a 12.9
8 grade level TABE score. (Id. ¶ 51.) Then on March 26, 2018, Plaintiff appeared before the
9 UCC, for his annual review to report that he had complied with the UCC’s instructions
10 with regard to his academic records and TABE score. (Id. ¶ 52.) The UCC denied Plaintiff’s
11 request to be assigned as a literacy tutor, and Plaintiff was removed from the voluntary
12 college assignment list. (Id.)
13 On July 3, 2018, Plaintiff’s assignment clinician cleared Plaintiff for assignment in
14 both educational and work-incentive positions. (Id. ¶ 54.) A week later, Defendants Voong
15 and Murphy issued a Third Level Response, denying Plaintiff’s Appeal, explaining that
16 while they acknowledged Plaintiff was qualified to participate in the college and tutor
17 programs, his placement in the EOP unit may take precedent over the college programs
18 Plaintiff was interested in. (Id.)
19 Plaintiff made numerous attempts to be allowed to participate in the college and tutor
20 programs. (Id. ¶ 56.) He submitted numerous CDCR-22 request forms to Defendants
21 Mondet and Bracamonte, the Inmate Assignments Office, Plaintiff’s work supervisor, and
22 Plaintiff’s correction counselor, requesting that he be allowed to participate in the college
23 and tutor programs. (Id.) Plaintiff also made numerous unsuccessful attempts to gain
24 physical access to the Facility “C” Education Compound to discuss his available options
25 for participating in the programs. (Id.)
26 On September 6, 2018, Plaintiff, proceeding pro se and in forma pauperis, filed a
27 Complaint under 42 U.S.C § 1983 for violations of his rights under the First and Fourteenth
28 Amendments to the United States Constitution, and also under Title II of the Americans
1 with Disabilities Act (“Title II of the ADA”), 42 U.S.C. § 12132 and Section 504 of the
2 Rehabilitation Act (“Section 504 of the RA”), 29 U.S.C. § 794(a).
3 LEGAL STANDARD
4 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
5 judge’s duties in connection with a magistrate judge’s report and recommendation. The
6 district judge must “make a de novo determination of those portions of the report . . . to
7 which objection is made[,]” and “may accept, reject, or modify, in whole or in part, the
8 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
9 United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of
10 timely objection(s), the court “need only satisfy itself that there is no clear error on the face
11 of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory
12 committee’s note to 1983 amendment; United States v. Reyna-Tapia, 328 F.3d 1114, 1121
13 (9th Cir. 2003).
14 DISCUSSION
15 Plaintiff objects to the R&R on three grounds: (1) dismissal of Entity Defendants
16 and Individual Defendants in their official capacity would eviscerate Plaintiff’s claims
17 under the ADA and RA, (2) the exceptions to the Eleventh Amendment apply to preclude
18 Entity Defendants and Individual Defendants from asserting sovereign immunity for
19 claims under the ADA and RA, and (3) Plaintiff’s § 1983 claim predicated on the First
20 Amendment should not be dismissed because he does not base his claim on a “right to
21 education.” (Doc. No. 44.)
22 I. The Eleventh Amendment
23 First, Plaintiff contends the Magistrate Judge erred as a matter of law by dismissing
24 Entity Defendants and Individual Defendants in their official capacities from Plaintiff’s
25 Complaint. (Id. at 1–3.) Essentially, Plaintiff argues in his first and second objections to
26 the R&R that the Eleventh Amendment does not bar Plaintiff’s causes of action under Title
27 II of the ADA and Section 504 of the RA. The Complaint names Defendants in their
28 individual and official capacities, and seeks monetary damages against them for purported
1 violations of § 1983, Title II of the ADA, and Section 504 of the RA. (Compl. ¶ 15.) The
2 R&R recommended that the Court dismiss the claims against Entity Defendants and all
3 Individual Defendants in their official capacities, because the Eleventh Amendment does
4 not permit damages claims against state agencies and state officers in their official
5 capacities. (Doc. No. 43 at 7–8.)
6 As a preliminary matter, the Court notes that it is not immediately clear from
7 Plaintiff’s Complaint and his enumerated causes of action if Plaintiff asserts all his claims
8 against Defendants in both their official and their individual capacities. However, the Court
9 notes that in Section VII of Plaintiff’s Complaint, Plaintiff prays for relief against Entity
10 Defendants and Individual Defendants in their official capacities for violation of Title II of
11 the ADA and Section 504 of the RA, and against Individual Defendants in their individual
12 capacities for their violation of “loss of liberty, deprivations of free speech, equal
13 protection, due process of law, and other privileges.” (Compl., Section VII ¶ 2–3.) Plaintiff
14 also notes in his opposition to Defendants’ motion to dismiss that while “[Plaintiff] sued
15 the Defendants in their official capacities for [relief under the ADA and the RA], [Plaintiff]
16 sued the Defendants in their individual capacities for [relief under the First and Fourteenth
17 Amendments].” (Doc. No. 26 at 13.) Because Plaintiff is proceeding pro se, the Court will
18 liberally construe Plaintiff’s Complaint, and address Plaintiff’s objections consistent with
19 Plaintiff’s assertion that Plaintiff’s ADA and RA claims are alleged against Defendants in
20 Defendants’ official capacity, and Plaintiff’s § 1983 claims are alleged against Individual
21 Defendants in their individual capacity. See Garmon v. Cnty. of L.A., 828 F.3d 837, 846
22 (9th Cir. 2016).
23 The Eleventh Amendment to the United States Constitution bars all suits brought in
24 federal court against states and their agencies in the absence of consent by the state or
25 express abrogation by Congress within its authority. See Seminole Tribe of Florida v.
26 Florida, 517 U.S. 44, 53–54 (1996). Additionally, the Eleventh Amendment “bars actions
27 against state officers sued in their official capacities for past alleged misconduct involving
28 a complainant’s federally protected rights, where the nature of the relief sought is
1 retroactive, i.e., money damages, rather than prospective, e.g., an injunction.” Bair v. Krug,
2 853 F.2d 672, 675 (9th Cir. 1988). It is also well-settled that neither a state agency nor state
3 officers named in their official capacity may properly be named as a defendant in a § 1983
4 action. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989); Emma C. v.
5 Eastin, 985 F. Supp. 940, 946 (N.D. Cal. 1997). The Eleventh Amendment does not bar
6 actions against state officers in their personal or individual capacities. Pena v. Gardner,
7 976 F.2d 469, 472–473 (9th Cir. 1992).
8 However, the Ninth Circuit has also held that Congress has effectively abrogated the
9 states’ sovereign immunity under the ADA and the RA with clear statutory language
10 allowing suits to be brought against states. See Lovell v. Chandler, 303 F.3d 1039, 1051
11 (9th Cir. 2002); Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996). Under the ADA,
12 Congress expressly provided that “[a] State shall not be immune under the Eleventh
13 Amendment to the Constitution of the United States from an action in Federal or State court
14 . . ..” See 42 U.S.C. § 12202. Likewise, when enacting the RA, Congress unequivocally
15 stated its intent to abrogate the states’ Eleventh Amendment immunity: “[a] State shall not
16 be immune under the Eleventh Amendment of the Constitution of the United States from
17 suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973.” 42
18 U.S.C. § 2000d–7(a)(1). Therefore, a plaintiff’s claim under “the ADA, and Section 504
19 may be maintained against the State Defendants without running afoul of the Eleventh
20 Amendment.” Emma C. v. Eastin, 985 F. Supp. 940, 947 (N.D. Cal. 1997). Congress’s
21 “abrogation of the states’ Eleventh Amendment immunity from suit under the ADA and
22 RA similarly precludes assertion of immunity by state officials sued in their official
23 capacity.” Duffy, 98 F.3d at 452 n.4.
24 Based on the foregoing authority, the Court concludes that Entity Defendants and
25 Individual Defendants may be sued in their official capacities under Title II of the ADA
26
27
28
1 and Section 504 of the RA without violating the Eleventh Amendment. See Nort v. Brown,
2 No. 14CV1663-LAB KSC, 2015 WL 5155195, at *6 (S.D. Cal. Sept. 1, 2015) (finding in
3 pro se prisoner § 1983 action that “defendants may be sued in their official capacities under
4 Title II of the ADA and Section 504 of the Rehabilitation Act”). Thus, Plaintiff may
5 properly assert his first and second causes of action against Defendants in their official
6 capacity. However, to the extent Plaintiff brings claims against Entity Defendants and
7 Individual Defendants in their official capacities under § 1983 for the violation Plaintiff’s
8 rights under the U.S. Constitution, Defendants are immune from suit under the Eleventh
9 Amendment. See Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009).
10 Moreover, Plaintiff’s claims against Defendants in their individual capacity for violations
11 of § 1983 are not barred by the Eleventh Amendment. Accordingly, Plaintiff’s first and
12 second objections are SUSTAINED.
13 II. Plaintiff’s First Amendment Claim
14 In Plaintiff’s third and final objection, Plaintiff takes issue with the R&R’s
15 recommendation that his § 1983 claim predicated on the First Amendment be dismissed.
16 The R&R found that “[b]ecause Plaintiff has failed to allege facts that show Defendants
17 denied him the ability to receive mail, and because there is no constitutional right to
18 participate in an education program, claim six should be dismissed with prejudice.” (Doc.
19 No. 43 at 9.) Plaintiff objects specifically that he does not base his First Amendment claim
20 on the “right to education programs” but instead, the “right to purchase, receive, and/or
21 possess college correspondence courses from persons and/or public institutions of higher
22 learning through the U.S. Postal Service.” (Doc. No. 44 at 4; Compl. ¶ 100.)
23
24

25
1 In Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002), the Ninth Circuit held that “a plaintiff cannot bring
26 an action under 42 U.S.C. § 1983 against a State official in [his or] her individual capacity to vindicate
rights created by Title II of the ADA or section 504 of the Rehabilitation Act.” Id. at 1156. The Ninth
27 Circuit reasoned that such claims are “barred by the comprehensive remedial scheme of those Acts.” Id.
As such, Plaintiff claims asserted under Title II of the ADA and Section 504 of the RA may be maintained
28
1 The First Amendment applies to the states via the Fourteenth Amendment. Reed v.
2 Town of Gilbert, 135 S.Ct. 2218, 2226 (2015). Incarcerated individuals enjoy “a First
3 Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.
4 1995) (per curiam). However, inmates do not have the same “full range of freedoms of an
5 unincarcerated individual.” Bell v. Wolfish, 441 U.S. 520, 546 (1979). “[R]estrictive prison
6 regulations are permissible if they are reasonably related to legitimate penological
7 interests.” Beard v. Banks, 548 U.S. 521, 528 (2006) (citing Turner v. Safley, 482 U.S. 78,
8 89–91 (1987) (internal quotations omitted).
9 Plaintiff has not adequately stated a § 1983 claim based on the First Amendment.
10 The Court does not disagree that “Plaintiff has a First Amendment right to receive
11 correspondence and published reading material by incoming mail.” (Doc. No. 44 at 4.) But
12 Plaintiff has not alleged sufficient facts to show that either Plaintiff was sent specific
13 correspondence and was subsequently denied his right to receive his mail, or that
14 Defendants implemented a policy that denied him the ability to receive his mail. Instead,
15 Plaintiff only attempts to save his claim by citing to case law demonstrating a generalized
16 First Amendment right to send and receive mail. (Id. at 3–5.) Moreover, Plaintiff’s cited
17 authority is inapposite. None of Plaintiff’s cases stand for the proposition that Plaintiff has
18 an unconditional “right to purchase, receive, and/or possess college correspondence
19 courses from persons and/or public institutions of higher learning through the U.S. Postal
20 Service.” (Id. at 4; Compl. ¶ 100.) For example, in a case relied upon by Plaintiff,
21 Maraglino v. Cty. of San Diego, the plaintiff alleged “she was attempting to participate in
22 paralegal ‘correspondence classes’” and asserted “that her information package and
23 application were rejected by unnamed jail staff because they were not in the form of a
24 postcard.” Maraglino v. Cty. of San Diego, No. 15-CV-199-WQH-MDD, 2016 WL
25 11448146, at *7 (S.D. Cal. May 5, 2016), report and recommendation adopted in part,
26 rejected in part, No. 15CV199-WQH-MDD, 2016 WL 4536741 (S.D. Cal. Aug. 31, 2016)
27 (emphasis added). This case is not analogous to Plaintiff’s case. Here, Plaintiff has failed
28 to allege any facts demonstrating that he was prevented from receiving his mail due to
1 policies that unreasonably regulated the form the mail must be sent in. Plaintiff does not
2 even allege he had incoming mail. All Plaintiff has alleged is that Defendants established
3 criteria that must be met before an inmate may enroll in a correspondence course. Thus,
4 while Defendants have the authority to provide educational programs in its jails, there is
5 no statutory or constitutional requirement mandating the provision of such programs to
6 Plaintiff. McKinney v. Kuzirian, 972 F.2d 1340 (9th Cir. 1992). Defendants are well within
7 their authority to refuse to provide such programs. As such, Defendants’ use of discretion
8 in refusing to enroll Plaintiff in a correspondence course that happened to be administered
9 through the mail is not equivalent to the withholding of Plaintiff’s mail from Plaintiff. See
10 Brooks v. Ducart, No. C 10-1134 PJH PR, 2010 WL 4314727, at *1 (N.D. Cal. Oct. 25,
11 2010) (dismissing § 1983 claim where Plaintiff asserted right to participate in education
12 program available by mail). Plaintiff may not masquerade what is in essence a “right to
13 education” claim as a First Amendment claim.
14 For these reasons, Plaintiff’s objection as to his First Amendment claim is
15 OVERRULED.
16 III. Plaintiff’s Motion for Leave to File a First Amended Complaint, and Plaintiff’s
17 Voluntary Dismissal of Fourth and Fifth Causes of Action
18 Lastly, having made a “de novo determination of those portions of the Report and
19 Recommendation to which objection is made” and seeing no other objections, the Court
20 finds the rest of the R&R well-reasoned with no clear error. As such, the Court ADOPTS
21 the portions of the R&R Plaintiff does not object to. Calderon-Silva v. Uribe, No. SACV
22 09-00832 MMM JC, 2010 WL 5423732, at *1 (C.D. Cal. Dec. 21, 2010).
23 Based on Plaintiff’s voluntary dismissal of his fourth and fifth causes of action,
24 Defendants’ motion to dismiss Plaintiff’s fourth cause of action for violation of due
25 process, and fifth cause of action for deprivation of “state-created liberty interests” is
26 DENIED AS MOOT.
27 Furthermore, Plaintiff’s motion for leave to file an amended complaint is
28 GRANTED. However, the Court notes that Plaintiff’s proposed First Amended Complaint
1 || attached to Plaintiff's motion for leave to amend is incomplete and defective because it is
2 ||missing various pages. (Doc. No. 24 at 4.) Therefore, Plaintiff must re-file a completed
3 || First Amended Complaint.
4 CONCLUSION
5 Based on the foregoing, the Court OVERRULES IN PART AND SUSTAINS IN
6 PART Plaintiffs objections, and ADOPTS IN PART the R&R.
7 Accordingly, Defendants’ motion to dismiss is GRANTED IN PART AND
8 || DENIED IN PART. Plaintiff's ADA and RA claims against Defendants in their official
9 || capacity survive Defendants’ motion to dismiss. Additionally, Plaintiff's § 1983 causes of
10 || action against Defendants in their individual capacity also remain.
11 Plaintiff's fourth and fifth causes of action, are DISMISSED, with prejudice, and
12 || Plaintiffs sixth cause of action is DISMISSED, without prejudice.
13 The Court GRANTS Plaintiff’s motion for leave to file a First Amended Complaint,
14 |/and Plaintiff is ORDERED to re-file his First Amended Complaint consistent with this
15 |} order.
16
17 || IT ISSO ORDERED.
18 |! Dated: September 30, 2019 | | □□ rz Le
19 Hon, Anthony J.Battaglia
20 United States District Judge
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079676. Public record. Not legal advice.