(PC) Meyers v. Kernan et al, No. 1:2022cv00539 - Document 33 (E.D. Cal. 2023)

Court Description: ORDER ADOPTING 30 Findings and Recommendations, Dismissing Certain Claims and Defendants signed by District Judge Ana de Alba on 06/01/2023. Nitescu added. C. Ballard, Biter (Warden), E. J. Borla, Carpenter (Cpt.), R. Gamboa (CDW), Garcia (Sgt.), Gutierrez (C/O), Haro (C/O), Scott Kernan (Director of CDCR), Koop (Principal), Lizaola (CCI), Mendez (C/O), L. Pinnisi (Charperson), Rizk, Thomas (Cpt.), K. Allison (Secretary) and M. Atchley (Warden) terminated.(Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LEON LEE MEYERS, 11 Plaintiff, 12 13 14 Case No. 1:22-cv-0539-ADA-SAB (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING CERTAIN CLAIMS AND DEFENDANTS v. SCOTT KERNAN, et al., (ECF No. 30) Defendants. 15 16 Plaintiff Leon Lee Meyers (“Plaintiff”), a state prisoner, is proceeding pro se in this civil 17 rights action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On January 26, 2023, the assigned Magistrate Judge issued findings and 20 recommendations recommending that this action proceed on Plaintiff’s retaliation claim against 21 Defendants Thomas, Simpson, Aguilar, Espitia, Magdaleno, Medina, Denherder, Garza, and 22 Bowlin, denial of access to the courts claim against Defendant Bowlin, and conditions of 23 confinement claim against Defendants Espitia, Magdaleno, Nitescu, Ledbetter, and Contreras for 24 exposure to COVID-19. (ECF No. 30.) It was further recommended that all other claims and 25 Defendants be dismissed from the action for failure to state a claim for relief. (Id. at 15.) The 26 findings and recommendations were served on Plaintiff and contained notice that any objections 27 were to be filed within fourteen days. (Id. at 15.) Plaintiff filed objections on February 21, 28 2023. (ECF No. 31.) 1 1 In accordance with 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review 2 of this case. Having carefully reviewed the entire file, including Plaintiff’s objections, the Court 3 finds the findings and recommendations to be supported by the record and by proper analysis. 4 In his objections, Plaintiff argues that he is neither required to demonstrate that he had 5 contracted a disease to satisfy deliberate indifference to a serious medical need nor that 6 Defendant Rizk had violated the California Code of Regulations. (ECF No. 31 at 1.) Plaintiff 7 further explains that he was at high risk of contracting Covid-19. (Id.) In his Third Amended 8 Complaint, Plaintiff claims that he is entitled to a single cell, rather than a shared cell, because he 9 suffers from asthma, high blood pressure, and chronic kidney disease. (See ECF No. 24.) The 10 Court, however, adopts the Magistrate Judge’s findings and recommendations, holding that 11 Plaintiff does not sufficiently allege that Defendant Rizk was deliberately indifferent by failing 12 to grant him single cell status. (See ECF No. 30 at 9.) Plaintiff acknowledges that although he 13 contracted Covid-19, it was not due to the lack of single cell status. Therefore, Plaintiff fails to 14 allege sufficiently that Defendant Rizk’s response to his alleged medical needs was deliberately 15 indifferent. 16 Furthermore, as a basis for his American with Disabilities Act (“ADA”) claim, Plaintiff 17 argues that Defendants denied him the benefits of a single cell, rather than a shared cell. (See 18 ECF No. 31 at 3.) The Court finds that single cell status may be an accommodation that 19 Defendants could have denied Plaintiff based on an alleged disability. However, Plaintiff fails to 20 allege sufficiently that he was excluded from participation in, or denied the benefits of, the single 21 cell status because of an alleged disability, or that he was subjected to any type of discrimination 22 by reason of an alleged disability. (See ECF No. 30 at 10.) Therefore, Plaintiff fails to allege 23 sufficiently an ADA claim. 24 Accordingly, 25 1. adopted in full; 26 27 28 The findings and recommendations issued on January 26, 2023, (ECF No. 30), are 2. This action proceeds on Plaintiff’s retaliation claim against Defendants Thomas, Simpson, Aguilar, Espitia, Magdaleno, Medina, Denherder, Garza, and Bowlin, 2 1 denial of access to the courts claim against Defendant Bowlin, and conditions of 2 confinement claim against Defendants Espitia, Magdaleno, Nitescu, Ledbetter, 3 and Contreras for exposure to COVID-19; 4 3. a claim for relief; and 5 6 All other claims and Defendants are dismissed from the action for failure to state 4. The matter is referred back to the Magistrate Judge for further proceedings. 7 8 9 IT IS SO ORDERED. 10 Dated: June 1, 2023 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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