Burns v. Dage et al
Filing
6
ORDER signed by Judge Frank C. Damrell, Jr. on 6/29/2011. Plaintiff's 4 Motion for Reconsideration is DENIED and Magistrate Judge Kellison's 3 Order is AFFIRMED. Plaintiff may file Amended Complaint w/in 30 days of date of this Order. NO FURTHER Motions for Reconsideration for 2/3/2011 Order will be reviewed. (Marciel, M)
<![CDATA[
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
DWAYNE B. BURNS,
12
Plaintiff,
vs.
13
14
No. CIV S-11-0217-FCD-CMK
ORDER
CHRIS DAGE, et al.,
Defendants.
15
/
16
17
Plaintiff, who is proceeding pro se, brings this civil action alleging, among other
18
things, violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., as
19
well as violations of his civil rights under 42 U.S.C. § 1983. Pending before the court is
20
“Plaintiff’s Ex Parte Response to Order Dated February 2, 2011” (Doc. 4) The referenced order
21
is an order issued by the Magistrate Judge on February 3, 2011, addressing the sufficiency of the
22
complaint as required by law because plaintiff was granted in forma pauperis status. The court
23
will construe plaintiff’s filing as a motion for reconsideration of the Magistrate Judge’s February
24
3, 2011, order.
25
///
26
///
1
1
Pursuant to Eastern District of California Local Rule 303(f), a Magistrate Judge’s
2
order shall be upheld unless “clearly erroneous or contrary to law.” Upon review of the entire
3
file, and for the reasons outlined below, the court finds that it does not appear that the Magistrate
4
Judge’s ruling was clearly erroneous or contrary to law.
5
In the screening order, the Magistrate Judge concluded that plaintiff has not stated
6
a claim for violation of the ADA because he has not alleged how his cleft lip and palate
7
“substantially limits one or more major life activities.” See 42 U.S.C. § 12102(1)(A). Plaintiff
8
states in his response that his ADA claim arises under § 12102(a)(C), which provides that a
9
person is “disabled” if he is “regarded as having such an impairment.” Under § 12102(3), a
10
person is regarded as having a disability if he can establish that he has been subjected to an
11
action prohibited under the ADA because of an actual or perceived physical or mental
12
impairment, whether or not the impairment limits, or is perceived to limit, a major life activity.
13
Essentially, plaintiff claims that he can proceed under the ADA because he has a physical
14
impairment – cleft lip and palate – that substantially limits major life activities due to the
15
attitudes of others towards such impairment. However, notwithstanding plaintiff’s objections,
16
the fact remains that plaintiff has not alleged facts in the complaint sufficient to show that
17
defendants acted in such a way to limit his major life activities.
18
Plaintiff also challenges the Magistrate Judge’s analysis of his claims that
19
defendants violated his rights under 42 U.S.C. § 1983. Specifically, he challenges the court’s
20
discussion of his § 1983 claims against defendants City of Redding, Chief of Police Peter
21
Hansen, and Officer Jonathan Sheldon. As to the City of Redding, the court concluded that
22
plaintiff should be provided the opportunity to amend the complaint to allege that some official
23
policy, custom, or practice was the moving force behind the violation of plaintiff’s civil rights.
24
The court agrees with the Magistrate Judge. Plaintiff must allege sufficient facts of a policy,
25
practice, or custom that caused the alleged constitutional violations in this case.
26
///
2
1
As to Hansen, plaintiff contends that Hansen is liable under a failure-to-train
2
theory. In particular, plaintiff states in his response to the screening order that the failure of
3
Hansen to adequately train his subordinates led to the violations committed by other defendants
4
under his supervision. However, plaintiff has failed to allege a causal connection between
5
defendant’s actions and the constitutional violations at issue. Accordingly, plaintiff has failed to
6
state a claim for supervisory liability. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009).
7
Plaintiff also contends in his response that Sheldon detained him without
8
reasonable suspicion. Plaintiff, however, alleges in the complaint that Sheldon stopped plaintiff
9
in response to a complaint of criminal activity made to police by the Starbuck’s manager. On
10
it’s face, then, the complaint alleges that Sheldon had reasonable suspicion to stop plaintiff.
Finally, plaintiff appears to challenge the court’s analysis with respect to
11
12
defendant Williams. Such a challenge would seem misplaced, however, given that the
13
Magistrate Judge concluded that the complaint states a cognizable claim against Williams.
14
Accordingly, IT IS HEREBY ORDERED that:
15
1.
The motion for reconsideration (Doc. 4) is denied;
16
2.
The Magistrate Judge’s February 3, 2011, order is affirmed;
17
3.
Plaintiff may file an amended complaint within 30 days of the date of this
4.
No further motions for reconsideration of the February 3, 2011, order will
18
order; and
19
20
be considered.
21
DATED: June 29, 2011.
22
23
24
_______________________________________
FRANK C. DAMRELL, JR.
UNITED STATES DISTRICT JUDGE
25
26
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
