(PC) Braley v. Los Angeles County Jail et al, No. 1:2007cv01166 - Document 46 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 2/3/2009, Recommending DISMISSAL of Action, with Prejudice, for Failure to State a Claim. Matter referred to Judge Wanger. (Objections to F&R due by 3/9/2009) (Figueroa, O)
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(PC) Braley v. Los Angeles County Jail et al Doc. 46 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THOMAS D. BRALEY, 10 Plaintiff, 11 12 CASE NO. 1:07-cv-01166-OWW-GSA PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM v. LOS ANGELES COUNTY JAIL MEDICAL DEPT., et al., (Doc. 44) 13 Defendants. 14 OBJECTIONS DUE WITHIN THIRTY DAYS / 15 Findings and Recommendations Following Screening of Second Amended Complaint 16 I. Procedural History 17 Plaintiff Thomas D. Braley (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132 (Americans 19 with Disabilities Act). Plaintiff filed this action on July 23, 2007. On April 30, 2008, the Court 20 dismissed Plaintiff’s complaint with leave to amend for failure to comply with Federal Rule of Civil 21 Procedure 8(a). Plaintiff filed an amended complaint on June 27, 2008, which was dismissed by the 22 Court on July 2, 2008. Pending before the Court is Plaintiff’s second amended complaint, filed 23 August 25, 2008. 24 II. Screening Requirement 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 28 1 Dockets.Justia.com 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 3 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 4 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 5 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 6 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 7 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 8 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a short and 9 plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a). 10 “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the 11 grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading 12 standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330 13 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements 14 of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 15 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 16 III. Second Amended Complaint 17 A. 18 Plaintiff was transferred to Wasco State Prison on May 31, 2007, and filed this action on July 19 23, 2007. Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 20 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 21 confined in any jail, prison, or other correctional facility until such administrative remedies as are 22 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion must occur prior to filing suit. 23 McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The section 1997e(a) exhaustion 24 requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 25 (2002), and “[a]ll ‘available’ remedies must now be exhausted; those remedies need not meet federal 26 standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (citing to Booth 27 v. Churner, 532 U.S. 731, 739 n.5 (2001)). Prisoners must complete the prison’s administrative 28 process, regardless of the relief sought by the prisoner and regardless of the relief offered by the Claims Which Accrued After Suit Filed 2 1 process, as long as the administrative process can provide some sort of relief on the complaint stated. 2 Booth, 532 U.S. at 741. 3 As Plaintiff was informed in the Court’s previous screening order, in light of section 4 1997e(a), Plaintiff may not pursue claims that arose after this suit was filed. In a “conflict between 5 Federal Rule of Civil Procedure 15 and the PLRA, the rule would have to yield to the later-enacted 6 statute to the extent of the conflict.” Harris v. Garner, 216 F.3d 970, 982 (11th Cir. 2000). Rule 15 7 “does not and cannot overrule a substantive requirement or restriction contained in a statute 8 (especially a subsequently enacted one).” Id. at 983; see also Cox v. Mayer, 332 F.3d 422, 428 (6th 9 Cir. 2003) (citing Harris for this proposition with favor). Allowing Plaintiff to pursue claims which 10 accrued after this suit was filed would allow Plaintiff to thwart the mandate of section 1997e(a), 11 which requires that claim exhaustion occur prior to filing suit and not during the pendency of the 12 suit. McKinney, 311 F.3d at 1199-1201. 13 Therefore, the claims in this action are limited to those which arose between May 31, 2007, 14 and July 23, 2007, and allegations concerning events which occurred after July 23, 2007, are not 15 considered. 16 B. 17 Plaintiff injured his left elbow, foot, and ankle in Los Angeles in December of 2005. Plaintiff 18 was arrested on January 15, 2006, and while in custody in Los Angeles, Plaintiff’s left foot and ankle 19 injuries were aggravated on April 23, 2007. On May 31, 2007, Plaintiff was transferred to Wasco 20 State Prison, and on June 5, 2007, a nurse stated that Plaintiff’s elbow was infected and indicated 21 that after x-rays were taken, Plaintiff would be seen by a doctor. X-rays of Plaintiff’s foot and left 22 elbow were taken on June 11, 2007. Thereafter, Plaintiff attempted to obtain emergency care for his 23 elbow but was not successful. Eighth Amendment Medical Care Claims 24 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 25 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 26 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part 27 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 28 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or 3 1 the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was 2 deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 3 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th 4 Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a 5 purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused 6 by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be 7 manifested “when prison officials deny, delay or intentionally interfere with medical treatment, or 8 it may be shown by the way in which prison physicians provide medical care.” Id. (citing McGuckin 9 at 1060 (internal quotations omitted)). Where a prisoner is alleging a delay in receiving medical 10 treatment, the delay must have led to further harm in order for the prisoner to make a claim of 11 deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. 12 of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 13 Plaintiff’s allegations concerning his medical needs between May 31, 2007, and July 23, 14 2007, do not support a viable Eighth Amendment claim. “Deliberate indifference is a high legal 15 standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison 16 official must not only ‘be aware of the facts from which the inference could be drawn that a 17 substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 18 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk, but was 19 not, then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. 20 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). Plaintiff’s 21 allegations do not support a claim that he had a serious medical need or that any of the named 22 defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . . . .” Farmer, 511 23 U.S. at 837. Although Plaintiff describes the situation as an emergency, there are no facts supporting 24 the existence of a need for emergency medical treatment or that any delay in treatment caused further 25 harm to Plaintiff. Plaintiff’s disagreement with the assessment of his medical need by staff does not 26 support an Eighth Amendment claim, Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981), and 27 the Court recommends dismissal of the medical care claims which accrued between May 31, 2007, 28 and July 23, 2007, with prejudice, for failure to state a claim. 4 1 C. 2 Plaintiff also alleges that he was in a wheelchair and housed in a unit without a shower ramp, 3 in violation of his rights under Title II of the Americans with Disabilities Act (ADA), which 4 “prohibit[s] discrimination on the basis of disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th 5 Cir. 2002). Plaintiff filed a request for accommodation, and on June 11, 2007, was told by 6 Defendant LaCrosse that he would be moved by 5:00 p.m. Plaintiff remained in that unit until June 7 14, 2007, at which time he was informed by Sergeant Rivera that he was going to the only unit with 8 a shower ramp, which was in administrative segregation. During a classification hearing on June 9 15, 2007, Captain Lacy told Plaintiff that he should not have been sent to administrative segregation, 10 and Plaintiff was moved to a different unit. On June 17, 2007, Plaintiff came out for showers and 11 when a correctional officer saw him, he told Plaintiff to stay right there because he was not supposed 12 to be in that building in a wheelchair. Plaintiff was then interviewed by Sergeant Henderson and sent 13 to a different building. ADA Claim Against Defendant LaCrosse 14 Title II provides that “no qualified individual with a disability shall, by reason of such 15 disability, be excluded from participation in or be denied the benefits of the services, programs, or 16 activities of a public entity, or be subject to discrimination by such entity.” 42 U.S.C. § 12132. Title 17 II of the ADA applies to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 18 118 S.Ct. 1952, 1955 (1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); 19 Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir. 1996). “To establish a violation of Title II of the 20 ADA, a plaintiff must show that (1) [he] is a qualified individual with a disability; (2) [he] was 21 excluded from participation in or otherwise discriminated against with regard to a public entity’s 22 services, programs, or activities; and (3) such exclusion or discrimination was by reason of [his] 23 disability.” Lovell, 303 F.3d at 1052. Further, “[t]o recover monetary damages under Title II of the 24 ADA or the Rehabilitation Act, a plaintiff must prove intentional discrimination on the part of the 25 /// 26 27 28 5 1 defendant,” and the standard for intentional discrimination is deliberate indifference.1 Duvall v. 2 County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). 3 “‘Title II of the ADA prohibits discrimination in programs of a public entity or discrimination 4 by any such entity.’” Roundtree v. Adams, No. 1:01-CV-06502 OWW LJO, 2005 WL 3284405, at 5 *8 (E.D.Cal. Dec. 1, 2005) (quoting Thomas v. Nakatani, 128 F.Supp.2d 684, 691 (D. Haw. 2000)). 6 “The ADA defines ‘public entity’ in relevant part as ‘any State or local government’ or ‘any 7 department, agency, special purpose district, or other instrumentality of a State or States or local 8 government.’” Roundtree, 2005 WL 3284405, at *8 (citing 42 U.S.C. § 12131(1)(A)-(B)). Public 9 entity, “‘as it is defined within the statute, does not include individuals.’” Id. (quoting Alsbrook v. 10 City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999)). Thus, individual liability is precluded 11 under Title II of the Americans with Disabilities Act, and Plaintiff may not pursue an ADA claim 12 against Defendant LaCrosse. Further, Plaintiff’s allegations do not support a claim that his was 13 intentionally discriminated against by the prison. At most, Plaintiff has demonstrated that he was 14 initially shuffled between housing units in an attempt to place him in an appropriate unit to 15 accommodate his wheelchair, actions which were taken in response to Plaintiff’s request for a 16 reasonable accommodation. These facts do not support an ADA claim, and the Court recommends 17 dismissal of the claim, with prejudice. 18 IV. Conclusion and Recommendation 19 Plaintiff’s second amended complaint does not state any cognizable claims for violation of 20 the Eighth Amendment or the ADA. Plaintiff was previously provided with the applicable legal 21 standards and notified of the need to allege facts linking the named defendants to a violation of his 22 rights under federal law. (Docs. 35, 41.) Despite two opportunities to amend, Plaintiff has not been 23 able to state a viable claim under federal law and justice does not require further leave to amend. 24 Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly, the Court HEREBY 25 RECOMMENDS dismissal of this action, with prejudice, for failure to state any claims. 26 27 28 1 Because Plaintiff is no longer housed at W asco State Prison, only money damages are available in this action. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). 6 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 3 days after being served with these Findings and Recommendations, Plaintiff may file written 4 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 7 1153 (9th Cir. 1991). 8 9 10 11 IT IS SO ORDERED. Dated: 6i0kij February 3, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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