Burton v. McVay

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DEREK BURTON, Case No.: 24-cv-1302-MMA (JLB)

CDCR #AI-5407,

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ORDER:

Plaintiff,

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vs. (1) GRANTING MOTION TO

14 PROCEED IN FORMA PAUPERIS

15 WARDEN McVAY, et al., [Doc. No. 2]

16 Defendants. (2) DISMISSING COMPLAINT WITH

17 LEAVE TO AMEND PURSUANT TO

28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

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19 Plaintiff Derek Burton, a state prisoner proceeding pro se, has filed a civil rights

20 Complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1. Plaintiff alleges that while

21 confined at the R.J. Donovan Correctional Facility (“RJD”) in San Diego, California, he

22 fell and broke his arm due to Defendants’ failure to repair a walkway and then received

23 inadequate medical care due to retaliation and discrimination. See id. Plaintiff has also

24 filed a Motion to proceed in forma pauperis (“IFP”). Doc. No. 2.

25 I. MOTION TO PROCEED IFP

26 All parties instituting any civil action, suit or proceeding in a district court of the

27 United States, except an application for writ of habeas corpus, must pay a filing fee of

28 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55,

1 although the administrative fee does not apply to persons granted leave to proceed IFP.

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

3 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure

4 to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

5 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section

6 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of

7 the trust fund account statement (or institutional equivalent) for . . . the 6-month period

8 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

9 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement,

10 the Court assesses an initial payment of 20% of (a) the average monthly deposits in the

11 account for the past six months, or (b) the average monthly balance in the account for the

12 past six months, whichever is greater, unless the prisoner has insufficient assets. See 28

13 U.S.C. § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who

14 proceed IFP must pay any remaining balance in “increments” or “installments,”

15 regardless of whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2);

16 Bruce, 577 U.S. at 84.

17 Plaintiff’s prison certificate shows he had an average monthly balance of $196.37

18 and average monthly deposits of $195.83 for the 6-months preceding the filing of this

19 action, and an available balance of $0.00. Doc. No. 3 at 1. The Court GRANTS Plaintiff’s

20 motion to proceed IFP and declines to assesses the initial partial filing fee of $39.27

21 because it appears Plaintiff has insufficient funds to pay it. See Taylor v. Delatoore, 281

22 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

23 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to

24 the lack of funds available to him when payment is ordered.”) The Court directs the

25 Secretary of the CDCR or his designee to collect and forward to the Clerk of Court the

26 $350 balance of the filing fee required by 28 U.S.C. § 1914 pursuant to the installment

27 payment provisions of 28 U.S.C. § 1915(b)(1).

28 / / /

1 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2) & 1915A(B)

2 A. Standard of Review

3 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-

4 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these

5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

6 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

7 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

8 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

9 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the

10 targets of frivolous or malicious suits need not bear the expense of responding.”

11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks 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); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

16 Cir. 2012) (noting that § 1915A screening “incorporates the familiar standard applied in

17 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”)

18 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true,

19 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

20 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed

21 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause

22 of action, supported by mere conclusory statements, do not suffice.” Id. “Determining

23 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

24 requires the reviewing court to draw on its judicial experience and common sense.” Id.

25 The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed

26 me accusation[s]” fall short of meeting this plausibility standard. Id.

27 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,

28 acting under color of state law, violate federal constitutional or statutory rights.”

1 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a

2 source of substantive rights, but merely provides a method for vindicating federal rights

3 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal

4 quotation marks omitted).

5 B. Allegations in the Complaint

6 Plaintiff alleges that in May 2023, he began complaining through inmate

7 grievances and letters that the gravel path outside building 14 on C-Yard at RJD was

8 uneven with potholes and was not safe or accessible as required by the Americans with

9 Disability Act (“ADA”). Doc. No. 1 at 11. In early August 2023, Plaintiff informed

10 Defendants RJD Associate Warden Lewis and RJD Corrections Sergeant Salazar that he

11 had twisted his ankle twice on the path and that his cane could not maintain a grip, but

12 Lewis threatened Plaintiff with a cell search and Salazar threatened to take his job away

13 and issue him a disciplinary charge, which caused Plaintiff to stop filing complaints about

14 the path. Id. at 12. Near the end of August 2023, Plaintiff wrote to Defendant RJD ADA

15 Associate Warden Reyes informing him that he almost fell into a hole in the path and that

16 it was getting nearly impossible for persons with walkers, wheelchairs and canes to

17 access building 14. Id. On August 25, 2023, Plaintiff fell and broke his arm, which

18 required transportation to an outside hospital for treatment, as a result of the unsafe

19 condition of the walkway. Id. at 3. He claims Defendants Lewis, Reyes, RJD Warden

20 McVay, RJD Warden Hill and RJD C-Yard Captain Davis knew of the need to repair the

21 walkway but failed to do so from negligence and deliberate indifference to a risk of slip

22 and fall, in violation of the First, Eighth and Fourteenth Amendments and the ADA. Id.

23 at 3, 15.

24 Plaintiff alleges that after his fall, beginning on September 15, 2023, he advised

25 and warned Defendants Lewis, Reyes, RJD Correctional Sergeant Chaudry, an unnamed

26 RJD ADA Coordinator, unnamed RJD Correctional Officers and “others responsible” for

27 repairing the walkway, of its dangerous condition, but Defendants Lewis, Hill, Reyes,

28 Facility C Captain Davis and Facility C Correctional Sergeant Alejandre failed to repair

1 it, and Chaundry threatened to search his cell for contraband. Id. at 4, 12. He alleges that

2 as a result of filing an inmate grievance regarding the condition of the walkway, the

3 “named defendants” along with “unnamed defendants” arranged for a retaliation

4 campaign against Plaintiff, including illegal cell searches and disciplinary charges, and

5 failed to supply him with a cane, a walker, a wheelchair or rehabilitation therapy. Id. at

6 4, 13. On September 20 and 23, and October 12 and 13, 2023, Defendant RJD

7 Correctional Sergeant Banuelos inspected the walkway with two other RJD Sergeants

8 and knew or should have known of its dangerous condition but did not make repairs. Id.

9 Plaintiff alleges all Defendants violated his rights to due process and equal

10 protection by discriminating against him based on his “class, gender or race,” and were

11 deliberately indifferent to his status as an ADA patient and a member of the mental health

12 delivery system under psychiatric care. Id. at 5. He names additional Defendants but

13 includes no identifiable allegations against them, including RJD Associate Appeals

14 Warden Palmer, RJD Corrections Sergeants Ayala, Cowart and Henderson, RJD

15 Correctional Officers Fernandez, Garcia and John Does 1-10, and RJD Plant

16 Operator/IOC Supervisor Workers Develasco and John Does 1-5. Id. at 10-11.

17 C. Analysis

18 1. Eighth and Fourteenth Amendment deliberate indifference claims

19 Plaintiff claims Defendants were deliberately indifferent to his safety by failing to

20 repair the walkway, which caused him to fall and break his arm, and upon his return from

21 the hospital failed to provide rehabilitation therapy and mobility aides such as a cane,

22 walker or wheelchair. Doc No. 1 at 3. Prisoner medical care may amount to cruel and

23 unusual punishment in violation of the Eighth Amendment, as applied to the States

24 through the Fourteenth Amendment, when medical professionals are “deliberately

25 indifferent” to an inmate’s “serious” medical needs. Estelle v. Gamble, 429 U.S. 97, 104

26 (1976). “Deliberate indifference ‘may appear when prison officials deny, delay or

27 intentionally interfere with medical treatment, or it may be shown by the way in which

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1 prison physicians provide medical care.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th

2 Cir. 2014), quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

3 “[A] prison official violates the Eighth Amendment when two requirements are

4 met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer

5 v. Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298

6 (1991). Second, Plaintiff must allege the prison official he seeks to hold liable had a

7 “sufficiently culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate

8 health or safety.” Id., quoting Wilson, 501 U.S. at 302-03. A prison official must

9 “know[] of and disregard[] an excessive risk to inmate health or safety; the official must

10 both be aware of facts from which the inference could be drawn that a substantial risk of

11 serious harm exists, and he must also draw the inference.” Id. at 837.

12 The allegations in the Complaint with respect to the serious medical need prong in

13 relation to Plaintiff’s broken arm, which required transportation to an outside hospital for

14 treatment, are sufficient to survive the “low threshold” of screening required by 28

15 U.S.C. §§ 1915(e)(2) & 1915A(b). Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678;

16 Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (“[I]ndicia of a ‘serious’

17 medical need include (1) the existence of an injury that a reasonable doctor would find

18 important and worthy of comment or treatment, (2) the presence of a medical condition

19 that significantly affects an individual’s daily activities, and (3) the existence of chronic

20 or substantial pain.”)

21 However, the Complaint as drafted fails to plausibly allege any Defendant was

22 deliberately indifferent to that serious medical need. The deliberate indifference prong of

23 an Eighth Amendment violation “is satisfied by showing (a) a purposeful act or failure to

24 respond to a prisoner’s pain or possible medical need and (b) harm caused by the

25 indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A prison official can

26 be held liable only if he “knows of and disregards an excessive risk to inmate health or

27 safety; the official must both be aware of facts from which the inference could be drawn

28 that a substantial risk of serious harm exists, and he must also draw the inference.”

1 Farmer, 511 U.S. at 837. A prison official, acting with deliberate indifference, must

2 expose a prisoner to a sufficiently “substantial risk of serious harm” to his health. Id. at

3 843.

4 Plaintiff alleges Defendants were responsible for and aware of the unsafe condition

5 of the walkway into Building 14 which caused him to fall, and that although they

6 inspected the walkway after he fell they did not repair it. Doc No. 1 at 3. Although

7 Plaintiff alleges the condition of the walkway was such that an inference could be drawn

8 that it posed a substantial risk of serious harm, and that he informed Defendants of its

9 condition, the Complaint does not plausibly allege any Defendant actually drew an

10 inference that the walkway posed such a risk, as Plaintiff alleges Defendants ordered the

11 walkway inspected after he fell but did not order repairs as a result of the inspections,

12 which he attributes in part to their negligence. See Farmer, 511 U.S. at 837 (a prison

13 official “must both be aware of facts from which the inference could be drawn that a

14 substantial risk of serious harm exists, and he must also draw the inference.”); id. at 835

15 (“[D]eliberate indifference describes a state of mind more blameworthy than negligence”

16 and “more than ordinary lack of due care for the prisoner’s interests or safety.”) If

17 Plaintiff wishes to proceed with an Eighth Amendment claim based on his fall, he must

18 set forth facts which plausibly allege a Defendant actually drew an inference that the

19 walkway posed a substantial risk of Plaintiff falling, as opposed to alleging the walkway

20 was negligently maintained. See e.g. Levy v. Department of Corrections of Washington,

21 2013 WL 1855854, at *2 (W.D. Wash. May 1. 2013) (finding no Eighth Amendment

22 violation from trip and fall in sprinkler hole on recreation yard); Coleman v. Sweetin, 745

23 F.3d 756, 764 & n.7 (5th Cir. 2014) (collecting cases and noting “prisoner slip-and-fall

24 claims almost never serve as a predicate for constitutional violations.”) Although

25 Plaintiff alleges he informed Defendants Lewis and Salazar that he had twisted his ankle

26 twice on the path and that his cane could not maintain a grip, and informed Defendant

27 Reyes that he almost fell into a hole in the path and that it was getting nearly impossible

28 for persons with walkers, wheelchairs and canes to access building 14 (Doc No. 1 at 12),

1 Plaintiff must allege Defendants knew of and consciously disregarded dangers specific to

2 him, such as disability or accommodation findings from which they actually drew an

3 inference of an excessive risk of harm in navigating the walkway due to obstacles

4 Plaintiff could not avoid. See Osolinski v. Kane, 92 F.3d 934, 938 (9th Cir. 1996)

5 (prisoner failed to plead exacerbating conditions rendered him unable to provide for his

6 own safety as necessary to state an Eighth Amendment claim); Frost v. Agnos, 152 F.3d

7 1124, 1129 (9th Cir. 1998) (“[s]lippery floors without protective measures could create a

8 sufficient danger” when coupled with allegations that inmate using crutches had

9 repeatedly fallen and injured himself on shower floors).

10 Plaintiff next alleges Defendants deliberately disregarded a serious need for

11 medical treatment when they denied him a cane, a walker, a wheelchair and rehabilitation

12 therapy upon his return from the hospital. Doc. No. 1 at 4, 13. “Prison officials are

13 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or

14 intentionally interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744

15 (9th Cir. 2002) (internal quote marks omitted). However, a prisoner can only show

16 deliberate indifference from such a delay where there is a purposeful act or failure to act

17 by the prison official that results in harm. Jett, 439 F.3d at 1096; Castro v. County of Los

18 Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016) (“A prison official cannot be found liable

19 under the Cruel and Unusual Punishment Clause [of the Eighth Amendment] . . . ‘unless

20 the official knows of and disregards an excessive risk to inmate health or safety; the

21 official must both be aware of facts from which the inference could be drawn that a

22 substantial risk of serious harm exists, and he must also draw the inference.’”), quoting

23 Farmer, 511 U.S. at 837. The Complaint does not plausibly allege Defendants should

24 have realized failing to provide Plaintiff with a cane, a walker, a wheelchair or

25 rehabilitation therapy presented a risk to him because there are merely conclusory

26 allegations that the nature of his injury required those things, and no factual allegations

27 Defendants were aware they were necessary. Plaintiff does not plausibly allege any

28 Defendant actually drew an inference that denying those things placed him at a

1 substantial risk of serious harm, as opposed to merely alleging at most negligence or

2 medical malpractice, because there are no factual allegations he requested them and they

3 were denied despite a medical need for them. See Colwell, 763 F.3d at 1068 (“A

4 difference of opinion between a physician and the prisoner - or between medical

5 professionals - concerning what medical care is appropriate does not amount to deliberate

6 indifference.”) The allegations are conclusory and devoid of facts as to what information

7 Defendants had about Plaintiff’s medical need for those items. See Iqbal, 556 U.S. at 678

8 (the “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed

9 me accusation[s]” fall short of meeting th[e] plausibility standard); Farmer, 511 U.S. at

10 835 (“[D]eliberate indifference describes a state of mind more blameworthy than

11 negligence” and “more than ordinary lack of due care for the prisoner’s interests or

12 safety.”)

13 To the extent Plaintiff seeks to hold any Defendant liable based solely on their

14 supervisory role, he may not rely on a respondeat superior theory of liability under

15 § 1983 but must allege facts which plausibly show each individual defendant was

16 personally involved in the alleged constitutional violation. See Jones v. Williams, 297

17 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under color of state law to be

18 liable under section 1983 there must be a showing of personal participation in the alleged

19 rights deprivation: there is no respondeat superior liability under section 1983.”) A

20 prisoner must allege “(1) that the specific prison official, in acting or failing to act, was

21 deliberately indifferent to the mandates of the eighth amendment and (2) that this

22 indifference was the actual and proximate cause of the deprivation of the inmates’ eighth

23 amendment right to be free from cruel and unusual punishment.” Leer v. Murphy, 844

24 F.2d 628, 634 (9th Cir. 1988). Supervisors may only be held liable if they were

25 “personally involved in the constitutional violation or a sufficient causal connection

26 exists between the supervisor’s unlawful conduct and the constitutional violation.”

27 Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1074-75 (9th Cir.

28 2013). If Plaintiff seeks to hold any Defendant liable in their supervisory role, he must

1 allege a causal connection between a constitutional violation and their unlawful conduct.

2 Id.; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of

3 action, supported by mere conclusory statements, do not suffice” to state a claim.)

4 Plaintiff’s Eighth Amendment deliberate indifference claim is dismissed pursuant to

5 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at

6 1112; Wilhelm, 680 F.3d at 1121.

7 2. Retaliation claim

8 Plaintiff next claims that as a result of his having filed inmate grievances and

9 complaints regarding the condition of the walkway, the “named defendants” along with

10 “unnamed defendants” arranged for a retaliation campaign against him, including threats

11 of cell searches and disciplinary charges. Doc No. 1 at 4.

12 “Within the prison context, a viable claim of First Amendment retaliation entails

13 five basic elements: (1) An assertion that a state actor took some adverse action against

14 an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)

15 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

16 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

17 567-68 (2005). The adverse action need not be an independent constitutional violation.

18 Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert

19 an injury no more tangible than a chilling effect on First Amendment rights.”) Plaintiff

20 must allege a retaliatory motive, that is, a causal connection between the adverse action

21 and his protected conduct. Watison, 668 F.3d at 1114.

22 Plaintiff had not plausibly alleged a retaliatory motive because the allegations in

23 the Complaint that Defendants were motivated by his inmate grievances and complaints

24 regarding the condition of the walkway are entirely conclusory. See Iqbal, 556 U.S. at

25 678 (“Threadbare recitals of the elements of a cause of action, supported by mere

26 conclusory statements, do not suffice” to state a 42 U.S.C. §1983 claim); Pratt v.

27 Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (concluding that, in the absence of factual

28 allegations to the contrary, it would be “sheer speculation” to assume that prison officials

1 retaliated on the basis of an inmate’s First Amendment activity). Although the timing of

2 the Defendants’ actions may “be considered as circumstantial evidence of retaliatory

3 intent,” timing alone is generally not enough to support an inference or retaliatory intent.

4 Pratt, 65 F.3d at 802. Plaintiff must allege facts from which a plausible inference can be

5 drawn that adverse action was taken in retaliation for his protected activity, such as filing

6 inmate grievances. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.

7 1989) (plaintiff must show that the protected conduct was a “substantial” or “motivating”

8 factor in the defendant’s decision to act). Even if Plaintiff could overcome that pleading

9 defect, he must plausibly allege the lack of a legitimate penological justification for each

10 Defendants’ action. Although he uses the phrase lack of a correctional goal or

11 penological interest in failing to properly maintain the walkway (see Doc No. 1 at 13),

12 they are conclusory, as are the allegations of threats of illegal cell searches and

13 disciplinary charges (id. at 4, 12), without any factual allegations whether any such

14 threats were carried out. The mere making of threats or harassing comments does not

15 give rise to a civil rights claim under § 1983. See Keenan v. Hall, 83 F.3d 1083, 1092

16 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998) (verbal harassment is not

17 cognizable as a constitutional deprivation under § 1983); Oltarzewski v. Ruggiero, 830

18 F.2d 136, 139 (9th Cir. 1987) (verbal harassment or abuse is not constitutional

19 deprivation under § 1983).

20 Plaintiff’s First Amendment retaliation claim is dismissed pursuant to 28 U.S.C.

21 §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112;

22 Wilhelm, 680 F.3d at 1121.

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1 3. ADA claim

2 Plaintiff alleges Defendants were deliberately indifferent to his status as an ADA

3 patient in failing to maintain the walkway in a safe condition.1 Doc No. 1 at 5. In order

4 to state a claim under the ADA, Plaintiff must allege:

5 (1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to

participate in or receive the benefit of some public entity’s services, programs,

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or activities;’ (3) he ‘was either excluded from participation in or denied the

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

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

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denial of benefits, or discrimination was by reason of (his) disability.’

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10 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007).

11 To the extent Plaintiff alleges Defendants violated his rights under the ADA by

12 failing to maintain the walkway in a safe condition and provide him with mobility

13 assistance devices and rehabilitative therapy after his fall, the allegations in the

14 Complaint fail to state an ADA claim because they fail to plausibly allege Defendants’

15 actions were taken by reason of his disability. Id. They are also impermissibly

16 conclusory. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of

17 action, supported by mere conclusory statements, do not suffice” to state a claim.)

18 To the extent Plaintiff sought to bring an ADA claim in the Complaint, it is

19 dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim.

20 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

21 4. Discrimination claim

22 Finally, Plaintiff alleges in an entirely conclusory manner that all Defendants

23 violated his rights to due process and equal protection by discriminating against him

24 based on his “class, gender or race,” including his status as an ADA patient and a

25 member of the mental health delivery system under psychiatric care. Doc No. 1 at 5.

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1 Plaintiff states he is currently a member of a class action regarding ADA accessibility in

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1 “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of

2 the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent

3 or purpose to discriminate against the plaintiff based upon membership in a protected

4 class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not

5 alleged facts which plausibly support an allegation that any Defendant acted out of

6 discriminatory animus. Rather, it appears Plaintiff alleges Defendants acted out in

7 retaliation for his continued complaints of the condition of the walkway. In any case,

8 “[i]ntentional discrimination means that a defendant acted at least in part because of a

9 plaintiff’s protected status.” Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir.

10 1994). Because Plaintiff’s discrimination claim is wholly conclusory without any

11 supporting factual allegations whatsoever with respect why he claims Defendants acted

12 with a discriminatory animus, it fails to state a claim for relief. Id.; see also Ivey v. Board

13 of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (“Vague and

14 conclusory allegations of official participation in civil rights violations are not sufficient”

15 to state a claim.); Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause

16 of action, supported by mere conclusory statements, do not” state a claim).

17 Based on the foregoing, Plaintiff’s discrimination claim is dismissed pursuant to 28

18 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112;

19 Wilhelm, 680 F.3d at 1121.

20 D. Leave to Amend

21 In light of Plaintiff’s pro se status, the Court grants leave to amend. See Rosati v.

22 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro

23 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)] unless ‘it is

24 absolutely clear that the deficiencies of the complaint could not be cured by amendment.’”),

25 quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

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1 III. CONCLUSION AND ORDERS

2 Good cause appearing, the Court:

3 1. GRANTS Plaintiff’s Motion to Proceed IFP. Doc No. 2.

4 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from

5 Plaintiff’s prison trust account the $350 filing fee by collecting monthly payments from

6 Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding month’s

7 income and forwarding those payments to the Clerk of the Court each time the amount in

8 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).

9 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff

10 Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

11 942883, Sacramento, California 94283-0001.

12 4. DISMISSES all claims against all Defendants in the Complaint without

13 prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b).

14 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

15 which to file a First Amended Complaint which cures the deficiencies of pleading noted

16 in this Order with respect to any or all other Defendants. Plaintiff’s First Amended

17 Complaint must be complete by itself without reference to his original Complaint.

18 Defendants not named and any claims not re-alleged in the First Amended Complaint

19 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard

20 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

21 supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012)

22 (noting that claims dismissed with leave to amend which are not re-alleged in an

23 amended pleading may be “considered waived if not repled.”) If Plaintiff fails to amend,

24 the Court will dismiss this action for failure to state a claim and failure to prosecute. See

25 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take

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1 advantage of the opportunity to fix his complaint, a district court may convert the

2 || dismissal of the complaint into dismissal of the entire action.’’)

3 IT IS SO ORDERED.

4 || Dated: August 13, 2024

5 .

7 United States District Judge

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15 a ee