(PC) Lee v. Carey et al, No. 2:2006cv00813 - Document 44 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 2/17/09 recommending that dft's 33 motion for summary judgment be denied without prejudice to refiling a motion for summary judgment within thirty days challenging suit against defendant in his official capacity. If defendant elects not to re-file his motion for summary judgment, plaintiff's pretrial statement should be filed within sixty days and defendant's filed within twenty days of service of plaintiff's statement. Plaintiff's 37 motion for leave to file an amended complaint be denied. (Duong, D)
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(PC) Lee v. Carey et al Doc. 44 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 GEORGE LEE, 12 Plaintiff, 13 14 No. CIV S-06-0813 FCD KJM P vs. TOM CAREY, et al., 15 Defendants. 16 FINDINGS AND RECOMMENDATIONS / 17 Plaintiff is a California prisoner proceeding pro se with an action filed pursuant to 18 42 U.S.C. § 1983. This action is proceeding against defendant Stufflebeam (defendant) for an 19 alleged violation of the Americans with Disabilities Act (ADA). Defendant’s motion for 20 summary judgment and plaintiff’s motion for leave to file an amended complaint are before the 21 court. 22 I. Motion For Summary Judgment 23 In his June 14, 2007 second amended complaint, which is signed under the 24 penalty of perjury, plaintiff alleges that defendant violated plaintiff’s rights under the ADA when 25 defendant denied plaintiff access to the law library at California State Prison Solano (CSP- 26 Solano) because of his disability. Second Am. Compl. (Compl.) at 3-4. Plaintiff seeks damages 1 Dockets.Justia.com 1 and injunctive relief. Id. at 3, 9. Defendant, a correctional officer, asserts he is entitled to 2 summary judgment because plaintiff is suing defendant under the ADA in his individual capacity 3 and the law is clear he cannot do so. 4 Defendant is correct that he cannot be sued under the ADA in his individual 5 capacity. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). However, this court has an 6 obligation to construe pleadings liberally and to afford plaintiff the benefit of any doubt in civil 7 rights cases, where plaintiff is proceeding pro se. King v. Atiyeh, 814 F. 2d 565 (9th Cir. 1987). 8 In order to carry out its duty, the court will recommend that plaintiff’s case be construed as 9 proceeding against defendant in his official capacity as an employee of the California Department 10 of Corrections and Rehabilitation (CDCR). Cf. Phiffer v. Columbia River Correctional Institute, 11 384 F.3d 791 (9th Cir. 2004). At the same time, the court will recommend denial of defendant’s 12 motion for summary judgment without prejudice to re-filing a motion for summary judgment 13 challenging suit against defendant in his official capacity. 14 II. Motion For Leave To Amend 15 On September 21, 2008, plaintiff filed a motion for leave to file an amended 16 complaint to include CDCR and CSP-Solano as defendants. While it is not entirely clear why 17 plaintiff wishes to amend, the court assumes the motion is an attempt by plaintiff to cure the 18 deficiency targeted by defendant’s motion for summary judgment. Because plaintiff’s claim can 19 move forward against defendant in his official capacity, there does not appear to be any need to 20 allow amendment. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (official capacity suits 21 are, in all respects other than name, suits against the entity for whom the official works). 22 In accordance with the above, IT IS HEREBY RECOMMENDED that: 23 1. Defendant’s motion for summary judgment be denied without prejudice to re- 24 filing a motion for summary judgment within thirty days challenging suit against defendant in his 25 official capacity; 26 ///// 2 1 2. If defendant elects not to re-file his motion for summary judgment, plaintiff’s 2 pretrial statement should be filed within sixty days and defendant’s filed within twenty days of 3 service of plaintiff’s statement; and 4 5 3. Plaintiff’s motion for leave to file an amended complaint be denied. DATED: February 17, 2009. 6 7 8 9 10 cb lee0813.msj 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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