Sims v. Bird

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 NELSON CLARK SIMS, Case No.: 23-CV-463 TWR (BLM)

12 Plaintiff,

ORDER (1) GRANTING

13 v. PLAINTIFF’S MOTION TO

PROCEED IN FORMA PAUPERIS,

14 L. BIRD, Warden; K. WILLEY, Fire

AND (2) DISMISSING PLAINTIFF’S

Captain; M. CARRILLO, Correctional

15 COMPLAINT WITHOUT

Counselor; Y. MENCIAS, Correctional

PREJUDICE

16 Counselor; L. ROLTGEN, Parole Agent;

G. JOSEPH, Parole Agent; HORMOZI,

17 (ECF Nos. 1, 6)

Correctional Officer; L. WALKER,

18 Correctional Counselor; SHARPE,

Correctional Counselor; Y. YANG,

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Correctional Counselor; S. ALATORRE,

20 Parole Agent; and JAN or JOHN DOE,

CDCR Employees,

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Defendants.

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23 Presently before the Court is pro se Plaintiff Nelson Clark Sims’ Motion to

24 Proceed in Forma Pauperis (“IFP”). (ECF No. 6, “Mot.”)1 For the reasons explained

25 below, the Court GRANTS Plaintiff’s IFP Motion and sua sponte DISMISSES

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27 1 Plaintiff was incarcerated until March 7, 2023. (See Mot. at 5.) He filed his Complaint on

28 March 13, 2023. (See ECF No. 1.) While his Complaint states he is incarcerated, it appears, he drafted

1 WITHOUT PREJUDICE Plaintiff’s Complaint (ECF No. 1, “Compl.”) pursuant to the

2 screening required by 28 U.S.C. § 1915(e)(2)(B).

3 MOTION TO PROCEED IN FORMA PAUPERIS

4 Plaintiff requests leave to proceed IFP because he is “unable to pay the costs of

5 these proceedings” and is “entitled to the relief requested.” (Mot. at 1.) All parties

6 instituting any civil action, suit, or proceeding in a district court of the United States,

7 except an application for a writ of habeas corpus, must pay filing and administration fees

8 totaling $402.2 28 U.S.C. § 1914(a). A court may, however, in its discretion, allow a

9 plaintiff to proceed without paying these fees if the plaintiff seeks leave to proceed IFP

10 by submitting an affidavit demonstrating the fees impose financial hardship. See 28

11 U.S.C. § 1915(a); Escobedo v. Applebees, 787 F.3d 1226, 1234 (2015). Although the

12 statute does not specify the qualifications for proceeding IFP, the plaintiff’s affidavit

13 must allege poverty with some particularity. Escobedo, 787 F.3d at 1234. Granting a

14 plaintiff leave to proceed IFP may be proper, for example, when the affidavit

15 demonstrates that paying court costs will result in a plaintiff’s inability to afford the

16 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is

17 destitute. Id.

18 Plaintiff sufficiently demonstrates that paying court costs would hinder his ability

19 to afford the necessities of life. Plaintiff declares that he has a monthly income of $200,

20 $18 of which he receives as a disability payment, (see Mot. at 2), and that his monthly

21 expenses are $220, (see id. at 5). He has no assets and has $39.00 in cash. (See id. at 2–

22 3.) Additionally, he is unemployed, and does not anticipate any changes to his financial

23 status in the next twelve months, (see id. at 2, 5). As Plaintiff’s monthly expenses

24 outweigh his monthly income, the Court GRANTS Plaintiff’s IFP Motion.

25 / / /

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2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of

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$52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule,

28 § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave

1 INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)

2 I. Legal Standard

3 Because the Court has granted Plaintiff leave to proceed IFP, pursuant to 28 U.S.C.

4 § 1915(e)(2)(B), the Court must sua sponte dismiss Plaintiff’s IFP complaint, or any

5 portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages from

6 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir.

7 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Calhoun v. Stahl, 254 F.3d 845, 845

8 (9th Cir. 2001) (per curiam) (noting that 28 U.S.C. § 1915(e)(2)(B) is “not limited to

9 prisoners”). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

10 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

11 903, 920 n.1 (9th Cir. 2014) (citation omitted).

12 “The standard for determining whether a plaintiff has failed to state a claim upon

13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

15 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a complaint “contain

16 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

17 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

18 “Determining whether a complaint states a plausible claim for relief [is] . . . a context-

19 specific task that requires the reviewing court to draw on its judicial experience and

20 common sense.” Id.

21 Courts construe pro se complaints liberally when evaluating whether the complaint

22 states a claim. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, construing the

23 complaint liberally does not entail adding “essential elements of the claim that were not

24 initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.

25 1982). Pro se plaintiffs must still follow the Federal Rules of Civil Procedure. See

26 McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that

27 procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes

28 by those who proceed without counsel.”).

1 II. Discussion

2 Plaintiff asserts four claims in his Complaint against eleven different Defendants

3 involving three separate situations. (See Compl.) He seeks to bring these claims under

4 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act (“ADA”). (See

5 Compl.) The Court addresses each claim below.

6 A. Claim 1—Defendant K. Willey

7 Plaintiff asserts that Defendant K. Willey violated his Eighth and Fourteenth

8 Amendment rights after a fire broke out at Richard J. Donovan Correctional Facility

9 (“RJD”), where Plaintiff was housed. (Id. at 7–8.) Plaintiff alleges that on July 4, 2021,

10 when a fire broke out in his housing unit at RJD, Defendant Willey, a Fire Captain, made

11 the decision to evacuate certain cells and inmates in the unit, but not to evacuate other

12 cells and inmates, including Plaintiff. (Id. at 7.) As a result, Plaintiff alleges he was

13 exposed to toxic smoke for two hours during which time his asthma flared up and he

14 began coughing, breathing poorly, and experiencing chest pain. (Id. at 7–8.) He used his

15 asthma inhaler, after which he used his C-Pap machine and covered his face under a

16 blanket to try to facilitate access to cleaner air. (Id. at 8.) After two hours, the inmates

17 who had been evacuated, were returned to their cells. (Id. at 7–8.) Plaintiff explains that

18 because of this incident, he was unable to swallow medication and some foods, his C-Pap

19 machine was damaged, he was exposed to an unknown substance, and his lungs suffered

20 unknown damage. (Id. at 8–9.) In his Complaint, Plaintiff also notes that Defendant

21 Willey authored a report explaining that a ventilation system was set up during the fire

22 and the recommendation, at least for part of the housing unit, was to shelter in place. (Id.

23 at 9.) Plaintiff explains that the report was not entirely truthful or accurate. (Id. at 9–10.)

24 1. Eighth Amendment

25 Section 1983 “creates a private right of action against individuals who, acting

26 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

27 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff

28 must show both (1) deprivation of a right secured by the Constitution and laws of the

1 United States, and (2) that the deprivation was committed by a person acting under color

2 of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). Here,

3 Plaintiff seeks to bring § 1983 claims under the Eighth and Fourteenth Amendments.

4 The prohibition on the infliction of cruel and unusual punishment embodied in the

5 Eighth Amendment, which is applicable to the states through the Fourteenth Amendment,

6 imposes a duty on prison officials to “take reasonable measures to guarantee the safety of

7 the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer,

8 468 U.S. 517, 526–27 (1984)). “[A] prison official violates the Eighth Amendment only

9 when two requirements are met. First, the deprivation alleged must be, objectively,

10 ‘sufficiently serious.’” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294,

11 298 (1991)). “The second requirement follows from the principle that ‘only the

12 unnecessary and wanton infliction of pain implicates the Eighth Amendment,’” and

13 requires that “a prison official must have a ‘sufficiently culpable state of mind,’” that is,

14 “one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501

15 U.S. at 297, 302–03). The prison official must “know[] of and disregard[] an excessive

16 risk to inmate health or safety,” meaning “the official must both be aware of facts from

17 which the inference could be drawn that a substantial risk of serious harm exists, and he

18 must also draw the inference.” Id. at 837.

19 Here, Plaintiff sufficiently alleges a serious deprivation in that he asserts he was

20 unable to breathe properly and was subject to toxic smoke for a two-hour period.

21 Plaintiff, however, does not adequately allege that Defendant Willey knew of and

22 disregarded a known risk to Plaintiff by evacuating some inmates and making the

23 decision to ventilate Plaintiff’s housing area and implement a shelter-in-place order rather

24 than evacuate his section of the facility. Plaintiff’s Complaint, at most, alleges Defendant

25 Willey was negligent, which is not a cognizable Eighth Amendment claim. See Farmer,

26 511 U.S. at 835; Wilson, 501 U.S. at 297. The Court understands that Plaintiff disputes

27 the factual accuracy of Defendant Willey’s report, but nothing in the Complaint addresses

28 Defendant Willey’s state of mind. The Complaint fails to allege what information

1 Defendant Willey knew at the time of the fire and whether, in her decision making as the

2 Fire Captain, she disregarded an excessive risk to Plaintiff’s health and safety. Without

3 any such factual allegations, Plaintiff’s Eighth Amendment claim against Defendant

4 Willey fails to state a claim and is therefore DISMISSED WITHOUT PREJUDICE.

5 2. Fourteenth Amendment

6 The Equal Protection Clause of the Fourteenth Amendment requires persons who

7 are similarly situated to be treated alike. City of Cleburne v. Cleburne Living Center,

8 Inc., 473 U.S. 432, 439 (1985), superseded by statute on other grounds. A plaintiff can

9 state an equal protection claim by setting forth facts that plausibly allege a defendant

10 intentionally discriminated against him based on his membership in a protected class.

11 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013);

12 Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) (“Intentional

13 discrimination means that a defendant acted at least in part because of a plaintiff’s

14 protected status.”).

15 Here, Plaintiff has not alleged that he is a member of a protected class. See United

16 States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (“[N]either prisoners nor ‘persons

17 convicted of crimes’ constitute a suspect class for equal protection purposes.” (citation

18 omitted)); Fields v. Legacy Health Sys., 413 F.3d 943, 955 (9th Cir. 2005) (identifying

19 “race, alienage, national origin, [and] sex” as examples of characteristics protected by the

20 Equal Protection Clause). As a result, he also has not alleged that Defendant Willey

21 discriminated against him based on any membership in a protected class.

22 In addition, an equal protection claim can be brought under a “class of one” claim

23 where Plaintiff is treated differently than similarly situated individuals without a rational

24 basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564

25 (2000); Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 602 (2008) (“[W]hen it

26 appears that an individual is being singled out by the government, the specter of arbitrary

27 classification is fairly raised, and the Equal Protection Clause requires a ‘rational basis

28 for the difference in treatment.’” (quoting Olech, 528 U.S. at 564)). There are no

1 allegations in the First Amended Complaint, however, that plausibly suggest Plaintiff was

2 arbitrarily treated differently than other similarly situated individuals. See Lazy Y Ranch

3 Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008) (“[T]he plaintiff in a ‘class of one’

4 case does not allege that the defendants discriminated against a group with whom []he

5 shares characteristics, but rather that the defendants simply harbor animus against [him]

6 in particular and therefore treated [him] arbitrarily.”). Plaintiff was not the only one

7 required to shelter in place instead of being evacuated, and there are no factual

8 allegations that Defendant Willey harbored any animus against Plaintiff in her decision-

9 making as the Fire Captain. Plaintiff’s equal protection claim thus fails to state a claim

10 and is DISMISSED WITHOUT PREJUDICE.

11 B. Claim 2—Defendants Y. Mencias, M. Carrillo, and Hormozi

12 Plaintiff asserts that when he was housed at North Kern State Prison, healthcare

13 staff maintained a list of Plaintiff’s disabilities and they classified Plaintiff as high risk

14 for contracting Covid-19, noting he should not be housed in a dorm setting with other

15 inmates. (Compl. at 42.) He further claims that when he arrived at RJD from North Kern

16 State Prison in March of 2021, healthcare staff authored a medical chrono that stated,

17 “No dorm housing due to . . . elevated risk of contracting Covid[-]19.” (Id. at 16

18 (original formatting omitted).) Plaintiff’s use of a C-Pap machine, for example, placed

19 Plaintiff at a higher risk of contracting and passing the virus. (Id.) When he first arrived

20 at RJD, he was placed in quarantine, where he tested negative for Covid-19, and he was

21 then placed on single cell status so he would not be housed with other prisoners. (Id. at

22 16–17.)

23 On April 7, 2021, Plaintiff alleges that Correctional Counselor Y. Mencias and

24 Correctional Counselor M. Carrillo falsified a housing unit classification document

25 resulting in Plaintiff’s removal from single cell status and his placement in a dorm setting

26 on November 16, 2021. (Id. at 17–18.) Plaintiff claims that Defendants Mencias and

27 Carrillo falsified the classification document by reporting that Plaintiff had appeared

28 before the Unit Classification Committee and by failing to list Plaintiff’s medical

1 restrictions including his high risk of contracting Covid-19 and his lower bunk status.

2 (Id. at 17.) Plaintiff states “this ghost committee” only had two people present—

3 Defendants Mencias and Carrillo—and that “this ghost hearing never took place.” (Id.)

4 Plaintiff further explains that Defendant Mencias never had any contact with Plaintiff

5 before, during, or after “this ghost hearing.” (Id.)

6 In November 2021, Plaintiff was housed in a dorm setting where he alleges other

7 prisoners and correctional officers were not wearing masks, social distancing was not

8 being implemented, and there were no proper cleaning supplies. (Id. at 18.) While in the

9 dorm housing between January 10 and 21, 2021, Plaintiff noticed Correctional Officer

10 Hormozi conducting searches of the building without wearing a mask and without

11 changing his gloves after patting down inmates. (Id. at 19.) Plaintiff heard Defendant

12 Hormozi sneezing, coughing, and sweating, and it was “clear to [Plaintiff] that something

13 was off with him.” (Id.) On January 21, 2023, Plaintiff was asked to submit to Covid-19

14 testing. (Id.) He then overheard someone state that several officers had tested positive

15 for Covid-19. (Id.) Four days later, Plaintiff was notified that he had tested positive for

16 Covid-19 and was placed in isolation in a gym facility to prevent the spread of the virus

17 and to receive additional medical care. (Id. at 19–20.)

18 Plaintiff alleges that the gym facility where he stayed while he recovered from

19 Covid-19 had inhumane living conditions: human feces clogged the toilets, which

20 overflowed onto the floor, only two of eight showers were operable and only dispensed

21 cold water, no daily cleaning or disinfectants were available, and there were no

22 procedures in place to prevent further illness. (Id. at 20–21.)

23 a. Housing Classification

24 Plaintiff alleges Defendants Mencias and Carrillo violated the Eighth Amendment

25 and the ADA when they falsified the housing classification document that was later used

26 to house Plaintiff in a dorm setting rather than single cell. (See Compl. at 17–18.)

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1 1. Eighth Amendment

2 As noted above, see supra p. 5, a “prison official cannot be found liable under the

3 Cruel and Unusual Punishment Clause [of the Eighth Amendment] for denying an inmate

4 humane conditions of confinement ‘unless the official knows of and disregards an

5 excessive risk to inmate health or safety; the official must both be aware of facts from

6 which the inference could be drawn that a substantial risk of serious harm exists, and he

7 must also draw the inference.’” Castro v. County of Los Angeles, 833 F.3d 1060, 1068

8 (9th Cir. 2016) (quoting Farmer, 511 U.S. at 837). However, “prison officials who

9 actually knew of a substantial risk to inmate health or safety may be found free from

10 liability if they responded reasonably to the risk, even if the harm ultimately was not

11 averted.” Farmer, 511 U.S. at 844.

12 The Court acknowledges Covid-19 poses a substantial risk of serious harm. See

13 Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one

14 questions that [Covid-19] poses a substantial risk of serious harm” to prisoners.) In

15 situations such as this where the challenged “conduct is harmful enough to satisfy the

16 objective component of an Eighth Amendment claim, whether it can be characterized as

17 ‘wanton’ depends upon the constraints facing the official.” Wilson, 501 U.S. at 303

18 (citation omitted). Because “only the unnecessary and wanton infliction of pain

19 implicates the Eighth Amendment, a prisoner advancing such a claim must, at a

20 minimum, allege deliberate indifference to his serious medical needs.” Id. at 297

21 (internal quotation marks and citations omitted). “It is only such indifference that can

22 violate the Eighth Amendment; allegations of inadvertent failure to provide adequate

23 medical care, or of [negligence], simply fail to establish the requisite culpable state of

24 mind.” Id. (internal quotation marks and citations omitted).

25 Here, Plaintiff’s only allegation regarding Defendants Mencias and Carrillo’s

26 states of mind is that all Defendants knew or should have known “about the increase of

27 cases of [C]ovid-19 being spread at [RJD].” (Compl. at 14.) Plaintiff asserts that

28 Defendants Mencias and Carrillo falsified a housing unit classification document by

1 falsely stating Plaintiff had appeared in front of a Unit Classification Committee, failing

2 to list Plaintiff’s key medical restrictions, including Plaintiff’s single cell status due to his

3 high risk of contracting Covid-19, and failing to list Plaintiff’s lower bunk chrono.3

4 These allegations do not suggest Defendants Mencias and Carrillo acted with deliberate

5 indifference to the risk that Plaintiff would contract Covid-19. These allegations do not

6 suggest that those Defendants knew about Plaintiff’s single cell status and deliberately

7 disregarded the substantial risk Plaintiff would face if housed in a dorm setting.

8 Plaintiff’s Complaint is also insufficient for the Court to plausibly infer that Plaintiff

9 contracting Covid-19 was caused by Defendants Mencias and Carrillo. The Court thus

10 DISMISSES WITHOUT PREJUDICE Plaintiff’s Eighth Amendment Claim against

11 Defendants Mencias and Carrillo for their alleged falsification of Plaintiff’s housing unit

12 document.

13 2. Americans with Disabilities Act

14 In one sentence, Plaintiff alleges that “custody” took away his single cell status

15 without medical staff approval and therefore violated the ADA. Plaintiff though does not

16 explain who violated his ADA rights or provide any information for the Court to

17 plausibly infer that the California Department of Corrections and Rehabilitation

18 (“CDCR”), who is not named as a defendant, intentionally or with deliberate indifference

19 failed to provide meaningful access or reasonable accommodations to disabled persons.

20 See Duvall v. County of Kitsap, 260 F.3d 1124, 1138–39 (9th Cir. 2001). Plaintiff’s

21 explanation of his ADA claim relating to his single cell status is inadequate to state a

22 claim and the Court thus DISMISSES WITHOUT PREJUDICE that ADA claim.

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26 3 The exhibit Plaintiff provides relating to Defendants Mencias and Carrillo shows Defendant

Mencias authored, and Defendant Carrillo, signed a “Classification Committee Chrono,” that notes the

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following about Plaintiff’s housing restrictions: “Ground floor – no stairs, Lower/bottom bunk

28 only/DME: Hearing Aid, c-pap machine, mobility impaired disability vest, hearing impaired disability

1 b. Eighth Amendment—Failure to Protect from Covid-19

2 Plaintiff asserts Defendant Hormozi violated his Eighth Amendment rights by

3 failing to protect him from contracting Covid-19 because Defendant Hormozi walked

4 through his housing area without wearing a mask while coughing, sneezing, and

5 sweating. (Compl. at 19.) A few days later Plaintiff tested positive for Covid-19 and he

6 has suffered from the long-term effects of Covid-19. (Id. at 19, 22.) But as with

7 Defendants Mencias and Carrillo, Plaintiff fails to allege any facts as to Defendant

8 Hormozi’s state of mind. Plaintiff’s Complaint fails to allege facts showing Defendant

9 Hormozi was deliberately indifferent to Plaintiff’s health and safety as opposed to acting

10 negligently. Without any allegations of deliberate indifference, Plaintiff’s Eighth

11 Amendment claim against Defendant Hormozi fails to state a claim. Accordingly, the

12 Court DISMISSES WITHOUT PREJUDICE Plaintiff’s claim against Defendant

13 Hormozi.

14 c. Eighth Amendment—Gym Living Conditions

15 Plaintiff further claims that the living conditions in the gym that housed Covid-

16 positive inmates were inhumane. (Compl. at 20–21.) The conditions Plaintiff discusses

17 are no doubt concerning, but Plaintiff has not identified anyone responsible for the

18 conditions or stated against whom he is bringing this claim. See Daley v. Pelayo, No.

19 1:20-cv-01129-GSA-PC, 2023 WL 2696704, at *3 (E.D. Cal. Mar. 29, 2023) (“Plaintiff

20 cannot state a claim against an individual Defendant unless he demonstrates in his

21 allegations that the individual defendant, identified by name, personally and individually

22 acted or failed to act, violating Plaintiff’s rights. Plaintiff may not attribute liability to a

23 group of defendants, but must ‘set forth specific facts as to each individual defendant’s’

24 deprivation of his rights.” (quoting Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988))).

25 Plaintiff’s inhumane conditions claim thus fails to state a claim and is DISMISSED

26 WITHOUT PREJUDICE.

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1 C. CYalanigm 3—Defendants Walker, Bird, Alatorre, Roltgen, Joseph, Sharp, and

2

3 Plaintiff further contends that certain individual Defendants, along with the CDCR,

4 Valley State Prison, and RJD violated the ADA by not providing Plaintiff meaningful

5 access to the Male Community Reentry Program (“MCRP”). (Compl. at 25–26.) He

6 explains that MCRP is “a voluntary program for eligible males who have 365 days of

7 their prison sentence left to serve.” (Id. at 27.) It allows eligible inmates to serve the end

8 of their prison sentence in the community in lieu of confinement. (Id.) Plaintiff sought

9 placement in the MCRP but ran into various issues, including confusion about where

10 Plaintiff’s legal residence was located. (Id. at 26.) Plaintiff met with RJD Correctional

11 Counselor L. Walker, who told him that he did not quality for MCRP placement. (Id. at

12 28.) If an inmate’s last legal residence does not have an MCRP, an inmate is ineligible

13 for MCRP placement unless an individual is approved for a supervised transfer to a

14 County that has an MCRP. (Id. at 29.) If an inmate has a high violence risk assessment

15 score, an escape history, potential immigration holds, custody misconduct, or has been

16 released from a high security or psychiatric unit within the last year, he will not be

17 eligible for an MCRP. (Id. at 29–30.) After Plaintiff met with Defendant Walker,

18 Plaintiff alleges he lodged various requests and appeals and eventually he again met with

19 Defendant Walker who helped Plaintiff fill out MCRP eligibility forms. (Id. at 28.)

20 Plaintiff was unable to get into the MCRP and he later submitted more forms to

21 Correctional Counselor Sharp and was cleared by a mental health practitioner for the

22 program. (Id. at 32.) He was still unable to get into the MCRP and he further appealed

23 the decision. (Id. at 33.)

24 In April 2022, Plaintiff was transferred to Valley State Prison where he began

25 another round of inquiries trying to get into the MCRP. (Id. at 33.) He initially sent

26 requests and forms to Correctional Counselor Yang, but Defendant Yang denied Plaintiff

27 entry to the MCRP. (Id. at 33–34.) Plaintiff appealed this decision and was eventually

28 told that his appeal was denied because his legal residence was Riverside County, which

1 does not have an MCRP. (Id. at 34.) Plaintiff then sent a letter to Valley State Prison

2 Warden Bird, concerning the denial of his placement in the MCRP. (Id. at 35.) He also

3 sent a form to Parole Agent S. Alatorre concerning his legal residence. (Id.) Defendant

4 Alatorre authored a “Release Program Study Report” indicating that Plaintiff’s primary

5 residence was in Riverside County and his alternate residence was in San Diego County.

6 (Id. at 31.) Correctional Counselor L. Roltgen and Parole Agent G. Joseph signed the

7 report. (Id.) Plaintiff contends that these Defendants agreed “to make Plaintiff

8 [h]omeless in Riverside County, knowing that he ha[d] a home, family support, and [a]

9 strong support system in place in San Diego.” (Id.) Plaintiff again wrote a letter to

10 Defendant Bird concerning placement in the MCRP. (Id.) Plaintiff was never given

11 access to the MCRP and his numerous appeals were continuously denied despite

12 providing over thirty documents concerning placement in the MCRP, including his

13 proper residence. (Id. at 35–38.)

14 Plaintiff asserts that he was treated differently that other similarly situated

15 prisoners and that there “were clearly other reasons” why Plaintiff was denied entry into

16 the program aside from the legal residence issue. (Id. at 37, 39.) As such, Plaintiff

17 contends Defendants, along with the CDCR, RJD, and Valley State Prison violated the

18 ADA. (Id. at 25–26.)

19 The ADA applies in the prison context. See 42 U.S.C. § 12131(1)(B); United

20 States v. Georgia, 546 U.S. 151, 154 (2006). “In order to state a claim under Title II of

21 the ADA, [however,] a plaintiff must allege: (1) he ‘is an individual with a disability;’ (2)

22 he ‘is otherwise qualified to participate in or receive the benefit of some public entity’s

23 services, programs, or activities;’ (3) he ‘was either excluded from participation in or

24 denied the benefits of the public entity’s services, programs, or activities, or was

25 otherwise discriminated against by the public entity;’ and (4) ‘such exclusion, denial of

26 benefits, or discrimination was by reason of [his] disability.’” O’Guinn v. Lovelock Corr.

27 Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007).

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1 Furthermore, Plaintiff may not pursue an ADA claim against the individual

2 Defendants in their individual capacities. See Walsh v. Nev. Dep’t of Hum. Res., 471

3 F.3d 1033, 1038 (9th Cir. 2006) (holding that the “bar on suits against individual

4 defendants” applies to the ADA); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.

5 2002) (holding that the “ADA applies only to public entities.”). The CDCR can be liable

6 under the ADA “if it intentionally or with deliberate indifference fails to provide

7 meaningful access or reasonable accommodation to disabled persons.” Mark H. v.

8 Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008); see Marta v. CDCR, No. 1:20-cv-00072-

9 GSA-PC, 2021 WL 9772769, at *3 (E.D. Cal. July 15, 2021). But, here, because Plaintiff

10 names only individuals as Defendants, and not the CDCR or a public entity, he fails to

11 state an ADA claim upon which relief can be granted. See Vinson v. Thomas, 288 F.3d

12 1145, 1156 (9th Cir. 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983

13 against a State official in [his or] her individual capacity to vindicate rights created by

14 Title II of the ADA.”). Plaintiff has also not explained what disability he is referring to

15 when he claims Defendants and the CDCR facilities denied him access to the MCRP

16 because of his disability. Nor has Plaintiff alleged facts from which a plausible inference

17 could be drawn that Defendants’ actions were taken “by reason of his disability.”

18 O’Guinn, 502 F.3d at 1060. Plaintiff’s ADA claim relating to the MCRP is thus

19 DISMISSED WITHOUT PREJUDICE.

20 D. Claim 4—Cumulative Error

21 Plaintiff asserts that “when you combine claims one, two, and three together, they

22 establish one big claim or cumulative error/violation of Plaintiff’s constitutional rights.”

23 (Compl. at 42.) Plaintiff then repeats each claim. For the same reasons each claim

24 discussed above must be dismissed, this cumulative claim is also DISMISSED. In

25 addition, the Court is not aware of the existence of a general cumulative error claim that

26 is cognizable under § 1983. Plaintiff may be referring to a cumulative error claim made

27 in petitions for writ of habeas corpus, see Payton v. Cullen, 658 F.3d 890, 893 (9th Cir.

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1 ||2011) (discussing whether a habeas petitioner’s sentence should be overturned because of

2 ||cumulative error), but that type of claim is not transferrable to the § 1983 context.

3 CONCLUSION

4 In light of the foregoing, the Court GRANTS Plaintiff’s Motion to Proceed IFP

5 DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint. Plaintiff has sixty

6 ||(60) days from the date of this Order to submit an amended complaint correcting the

7 || deficiencies noted herein. The amended complaint must be complete by itself without

8 ||reference to the original pleading. Defendants not named and any claim not re-alleged in

9 || the amended complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach

10 || Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

11 ||/pleading supersedes the original.”); see also Lacey v. Maricopa County, 693 F.3d 896,

12 ||928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-

13 || alleged in an amended pleading may be “considered waived if not repled’’).

14 Failure to timely amend the Complaint will result in the Court’s dismissal without

15 || prejudice of this case for failure to state a claim upon which relief can be granted

16 || pursuant to 28 U.S.C. § 1915(e)(2)(B) and failure to prosecute in compliance with a

17 || court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir.

18 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a

19 district court may convert the dismissal of the complaint into dismissal of the entire

20 || action.”).

21 IT IS SO ORDERED.

22 ||Dated: June 13, 2023 —_—— (2

23 lad \& (are

94 Honorable Todd W. Robinson

35 United States District Judge

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