Opinion
NO. CV 00-5963-TJH(E).
August 12, 2008
MEMORANDUM AND ORDER
For the reasons discussed below, the Complaint is dismissed with leave to amend. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1).
PROCEDURAL BACKGROUND
On June 2, 2000, Plaintiff, proceeding pro se, lodged a civil rights complaint in this Court and submitted a declaration seeking leave to proceed in forma pauperis. On June 9, 2000, the District Judge denied leave, based on a recommendation by Magistrate Judge Margaret A. Nagle. Plaintiff appealed.
On February 20, 2002, the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed and remanded in part. See St. Amand v. Block, 34 Fed App'x 283 (9th Cir. 2002). The Ninth Circuit ruled that Plaintiff's Eighth Amendment claims alleging that Defendants "ignored Plaintiff's requests for medical attention for a week resulting in a perforated appendix, refused to follow his doctor's directions to change his dressing post-surgery, and broke and failed to replace his prosthetic leg, knee brace and surgical support hose," did not appear frivolous.Id. at 284. The Ninth Circuit further held that Plaintiff's claims under the Americans with Disabilities Act and the Rehabilitation Act alleging that Defendants treated Plaintiff differently because he was an amputee confined to a wheelchair and denied him the benefits of the law library also did not appear frivolous. Id. The Court affirmed the dismissal of Plaintiff's remaining claims because they lacked "arguable substance in law or fact." Id. The Court remanded for a determination whether Plaintiff's "financial condition allowed him to proceed in forma pauperis with these causes of action as to all defendants." Id. The Ninth Circuit's docket reflects that the mandate issued on March 15, 2002.
The Court takes judicial notice of the Ninth Circuit's docket in St. Amand v. Block, Ninth Circuit case number 00-56093, available on the PACER database at www.pacer.uspci.uscourts.gov. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records).
A stamp on this Court's copy of the Ninth Circuit's judgment indicates that the judgment was received in this Court over six years later, on May 7, 2008. The District Court docket also appears to indicate that this Court received the Ninth Circuit's judgment for the first time on May 7, 2008.
The Court's file contains a document from Plaintiff, bearing a signature date of April 17, 2002, entitled "In re: 00-56093 (Remanded) 'second,' Urgent Notice to the Court For: Urgent Request for Counsel, the First was Filed 'Mar 13th, 2002.'" The docket does not reflect that this document was ever filed. On June 28, 2002, Plaintiff filed an "Urgent Notice to the Court," notifying the Court of a change of address, requesting a settlement conference, requesting service of process by the United States Marshal, and requesting appointment of counsel. On August 6, 2002, Plaintiff filed a "Notice of Change of Address," notifying the Court of a change of address and again requesting a settlement conference and appointment of counsel. The file does not indicate that the Court ever ruled on Plaintiff's April 17, 2002, June 28, 2002 or August 6, 2002 requests.
The docket contains no entries between August 14, 2002, when the record on appeal was returned to this Court, and April 10, 2008. On April 10, 2008, the District Judge issued an order notifying Plaintiff that the case would be reopened and ordering Plaintiff to file a new application to proceed in forma pauperis. On April 15, 2008, Plaintiff filed another request to proceed in forma pauperis. On April 29, 2008, Plaintiff filed another request for appointment of counsel. On June 24, 2008, the District Judge denied Plaintiff's request for appointment of counsel.
On July 3, 2008, Plaintiff filed a First Amended Complaint. On July 9, 2008, the District Judge issued a "Notice of Reference to a United States Magistrate Judge," referring the matter to Magistrate Judge Nagle pursuant to General Order 05-07. Also on July 9, 2008, the District Judge issued another "Notice of Reference to a United States Magistrate Judge," referring the matter to the undersigned Magistrate Judge pursuant to General Order 05-07. The Notice of Reference to the undersigned Magistrate Judge was not entered on the docket until July 30, 2008, however.
Although the Notice of Reference to Judge Nagle is not on the docket, it is contained in the Court's file.
In the meantime, apparently unaware that the case had been referred to a different Magistrate Judge, Judge Nagle issued an "Order re Civil Rights Case" on July 15, 2008. On July 17, 2008, the District Judge issued an order advising Plaintiff that the First Amended Complaint filed on July 3, 2008 would be construed as the original complaint ("Complaint"), and indicating that "service of process may proceed." On July 24, 2008, Judge Nagle issued an order vacating the "Order re Civil Rights Case" in light of the District Judge's July 17, 2008 order.
On July 28, 2008, the District Judge granted Plaintiff's request to proceed in forma pauperis. On August 4, 2008, the undersigned Magistrate Judge received the file in chambers.
The extreme delay and significant confusion in this case are regrettable, and appear to have arisen from errors of unknown origin occurring either in the District Court or in the Circuit Court or both.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff's claims arise out of Plaintiff's alleged incarceration at the Los Angeles County Men's Central Jail between September of 1998 and March of 1999. The Defendants are: (1) former Los Angeles County Sheriff Sherman Block; (2) Undersheriff Terry L. Harper; (3) Captain William G. Christiansen; (4) Lieutenant Rogers; (5) Men's Central Jail Chief Physician John C. Clark; (6) jail physician "Dr. Johnson"; (7) Nursing Supervisor Barbara Marshall; (8) Second Watch Supervisor "Nurse Smith"; (9) "Nurse Woods"; (10) Sergeant Robert Klein; (11) Deputy Delatorre; (12) Deputy Zimmer; (13) Sergeant Horwitz; and (14) Los Angeles County Sheriff Leroy Baca. Plaintiff sues all Defendants in their individual and official capacities.The Complaint is not a model of clarity. In "Claim I," Plaintiff alleges that he is a "B/K amputee" who suffered from severe osteoarthritis during the relevant time period (Complaint, p. 5). Plaintiff alleges that Defendants Block, Harper and Christiansen assertedly classified and "stigmatized" Plaintiff as a sexually violent predator, thereby allegedly permitting jail staff and medical staff to subject Plaintiff to assertedly inhuman punishment in violation of the Eighth Amendment, the Fourteenth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act (id.). Plaintiff alleges that Defendants were deliberately indifferent to Plaintiff's request for medical treatment for a week, until Plaintiff's kidneys allegedly "shut down, due to appendicitis" (id.). Plaintiff alleges that the court dismissed the sexually violent predator case against Plaintiff on April 13, 1999 (id.).
It appears that the term "B/K" may refer to a below-the-knee amputation.
In "Claim II," Plaintiff alleges that Defendants Clark, Marshall, Johnson, Rogers, Horwitz, and unidentified nursing staff who worked the module's sick call and pill call between September 25, 1998 and October 1, 1998 were deliberately indifferent to Plaintiff's medical needs in asserted violation of the Eighth Amendment, Due Process, Equal Protection, and the Americans with Disabilities Act (Complaint, p. "5/7"). Plaintiff alleges Defendants assertedly relied on the "stigma" that Plaintiff was a sexually violent predator to deny Plaintiff medical care for a full week, causing Plaintiff's kidneys to shut down due to appendicitis (id.). Plaintiff assertedly was not allowed to see a doctor until the evening of September 30, 1999, when Defendant Dr. Johnson allegedly gave Plaintiff Motrin and medication for nausea and sent Plaintiff back to Plaintiff's module (id.). On October 1, 1999, after Plaintiff assertedly notified his attorneys and the judge, Plaintiff allegedly eventually was sent to the clinic with a 102-degree temperature and later was transferred to LAC/USC Medical Center (id.).
The form Complaint contains a page 5 followed by nonidentical pages also numbered page 5, but which bear handwritten page numbers such as "5/7," "5/8," etc. The Court employs Plaintiff's pagination.
In "Claim III," Plaintiff alleges that unidentified supervising sergeants and deputies incited other unidentified deputies to break Plaintiff's prosthesis and take Plaintiff's knee-brace and support hose, and incited nursing staff and others not to help Plaintiff after Plaintiff underwent an "appendectomy — laparotomy" (Complaint, p. "5/8"). Unidentified Defendants allegedly treated Plaintiff differently from similarly-situated inmates, assertedly in violation of Due Process, Equal Protection, the Eighth Amendment, the Americans with Disabilities Act and the Rehabilitation Act (id.). Apparently before the surgery, an unidentified supervising sergeant allegedly endeavored unsuccessfully to talk a doctor out of admitting Plaintiff to the hospital, and then allegedly angrily informed the doctor that Plaintiff could not be housed in the jail's ward (id.). After the surgery, Plaintiff allegedly was moved to various jail wards after unidentified deputies assertedly announced to each ward that Plaintiff was a sexually violent predator (Complaint, p. "5/9"). Unidentified deputies allegedly incited nurses not to help Plaintiff, until doctors assertedly ordered pain medication and ordered nurses to change Plaintiff's dressing and to treat Plaintiff like any other patient (id.). Plaintiff's property allegedly was returned to Plaintiff, and Plaintiff assertedly noticed that the prosthesis was damaged and the knee-brace had been cut (id.). An unidentified deputy allegedly kicked Plaintiff's appliances into a corner, and someone allegedly took Plaintiff's support hose (id.). Plaintiff allegedly notified the judge (id.).
"Claim IV" incorporates Plaintiff's previous allegations. Plaintiff also alleges that unidentified Defendants discriminated against Plaintiff in handling Plaintiff's grievances and refused to obey court orders concerning Plaintiff's medical treatment (Complaint, p. "5/10"). Defendants Baca, Christiansen, Rogers, Clark, Marshall, Smith, Woods, Horwitz, Klein, Zimmer and Delatorre, "et al.," allegedly subjected Plaintiff to inhuman punishment "as an SVP later dismissed by a Los Angeles Superior Court" (id.). Plaintiff alleges that, after his return to the jail following the surgery, Defendant Woods assertedly refused to change Plaintiff's dressing even after the Superior Court allegedly ordered the dressing changed, and allegedly refused to check Plaintiff's blood pressure (id.). Defendants Baca, Christiansen, Rogers, Clark, Marshall, Smith, Horwitz, Klein, Delatorre and Zimmer all allegedly refused to heed Plaintiff's grievances and to follow court orders (Complaint, pp. "5/10" — "5/13"). Unidentified floor deputies allegedly caused Plaintiff to miss shower days (Complaint, p. "5/12"). Deputies allegedly forced Plaintiff to walk down an escalator on crutches, took Plaintiff's crutches, and allegedly forced Plaintiff to hop on his arthritic knee (id.). Defendant Delatorre allegedly caused Plaintiff to miss lunch and pill call, and allegedly made Plaintiff stand against the wall from 1 p.m. until 3:45 p.m., when another deputy sent Plaintiff back to the module (Complaint, p. "5/13"). Plaintiff alleges that, on October 27, 1999, following Plaintiff's release from jail, Plaintiff underwent total knee replacement surgery for the left knee (id.).
Plaintiff seeks compensatory and punitive damages and injunctive relief in the form of an order preventing Defendants from threatening Plaintiff with punishment or reprisal (Complaint, p. 6).
Plaintiff attaches a number of exhibits to the Complaint, including: (1) inmate complaint forms; (2) letters from Plaintiff to the state court judge concerning Plaintiff's alleged medical problems; (3) two December 3, 1998 letters to the state court judge from Defendant Harper indicating Plaintiff was "medically clear for court" (but acknowledging that a jail nurse had refused to change Plaintiff's dressing and that a strap on Plaintiff's prosthesis had broken); (4) various state court orders (including an order requiring jail medical personnel to change Plaintiff's dressing, an order requiring the Sheriff's Department to arrange for Plaintiff to be evaluated for new knee braces, an order requiring that Plaintiff not be deprived of his wheelchair until he was fully ambulatory, and an order requiring the Sheriff's Department to submit a report to the court regarding the reasons why Plaintiff's prosthesis was taken and returned broken, and what was being done to replace it); (5) medical records; and (6) a minute order dated April 13, 1999 indicating the state court granted a defense motion to dismiss the proceeding against Plaintiff on the ground that the People were unable to proceed.
DISCUSSION
I. The Complaint Is Not Signed.
In violation of Rule 11(a) of the Federal Rules of Civil Procedure, the Complaint is unsigned. A court "must strike an unsigned paper unless the omission is promptly corrected after being called to . . . the party's attention." Fed.R.Civ.P. 11(a). Plaintiff must sign any amended pleading.
II. Plaintiff's Claim for Injunctive Relief Is Moot.
It appears Plaintiff is no longer incarcerated at the jail. Hence, Plaintiff's claim for injunctive relief is moot. See Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995).
III. The Complaint Fails to Identify Clearly Which Defendant Is Sued on Each of Plaintiff's Claims.
Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain" statement of the claim for relief. "Each averment of a pleading shall be simple, concise, and direct." Fed.R.Civ.P. 8(e).
The Complaint does not clearly identify which Defendant is being sued on which claim, and for what alleged wrongdoing. Plaintiff alleges wrongdoing by unidentified deputies and medical staff, and uses the term "et al.," without identifying those persons or indicating whether they are Defendants. A complaint is subject to dismissal if one cannot determine from the complaint who is being sued, and for what relief. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).
IV. The Complaint Fails to Allege the Personal Involvement of Each Defendant.
V. To Allege a Due Process Violation for Deliberate Indifference to Plaintiff's Allegedly Serious Medical Needs, Plaintiff Must Allege the Deliberate Indifference of Each Individual Defendant.
See Hansen v. Black885 F.2d 642646Johnson v. Duffy588 F.2d 740743-44See Polk County v. Dodson454 U.S. 312325Watkins v. City of Oakland, Cal.145 F.3d 10871093Larez v. City of Los Angeles946 F.2d 630646See Barren v. Harrington 152 F.3d 11931194cert. denied525 U.S. 1154Taylor v. List 880 F.2d 10401045See Barren v. Harrington 152 F.3d at 1194 See Farmer v. Brennan511 U.S. 825834Estelle v. Gamble429 U.S. 97104Farmer v. Brennan511 U.S. at 837Id. See Estelle v. Gamble429 U.S. at 105-06Lopez v. Smith203 F.3d 11221131 See Village of Willowbrook v. Olech528 U.S. 562564Barren v. Harrington 152 F.3d at 1194-95See Ventura Mobilehome Communities Owners Ass'n v. City of San Buenaventura371 F.3d 10461055see generally Ivey v. Board of Regents of Univ. of Alaska 673 F.2d 266268
The Court notes that Plaintiff identifies some Defendants only by their last names, such as "Nurse Smith" and "Nurse Woods." Plaintiff is advised that, before the case can proceed, Plaintiff will have to provide identifying information sufficient to permit service of process upon the Defendants.
VII. Allegations of Random and Unauthorized Property Deprivations Do Not State a Constitutional Claim for Relief.
To the extent Plaintiff alleges a Defendant or Defendants took or destroyed Plaintiff's property in violation of Due Process, the Complaint alleges no cognizable constitutional claim for relief. A random and unauthorized property deprivation does not constitute a denial of Due Process if state law provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). California law provides an adequate post-deprivation remedy for random and unauthorized property deprivations. See Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994).
VIII. Plaintiff May Not Sue Individual Defendants for Damages in Their Individual Capacities for Alleged Violations of the Americans with Disabilities Act or the Rehabilitation Act.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act prohibits disability discrimination in a program or activity receiving federal financial assistance.See 29 U.S.C. § 794(a). Neither Title II of the ADA nor section 504 of the Rehabilitation Act provides a damage remedy against individual public officials in their individual capacities. See Brewer v. Wisc. Bd. of Bar Examiners, 270 Fed. App'x 418, 421 (7th Cir. 2008); Williams v. McLemore, 247 Fed. App'x 1, 8 (6th Cir. 2007); Garcia v. S.U.N.Y. Health Services Center, 280 F.3d 98, 107 (2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999) (en banc), cert. dismissed, 529 U.S. 1001 (2000); Green v. Adams, 2008 WL 1766737, at *5 (E.D. Cal. Apr. 16, 2008); Curry v. Tilton, 2007 WL 2778363, at *3 (N.D. Cal. Sept. 21, 2007); Thomas v. Nakatani, 128 F. Supp. 2d 684, 691-92 (D. Hawai'i 2000), aff'd on other grounds, 309 F.3d 1203 (9th Cir. 2002); see also Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003) (plaintiff could not sue public official in his or her individual capacity under 42 U.S.C. section 1983 for violations of either the ADA or the Rehabilitation Act). Therefore, Plaintiff may not sue the individual Defendants in their individual capacities for violations of Title II of the ADA or section 504 of the Rehabilitation Act.
The Court may cite appellate opinions not officially published which were issued on or after January 1, 2007. See Fed.R.App.P. 32.1(a).
CONCLUSION
For all of the foregoing reasons, the Complaint is dismissed with leave to amend. See Lopez v. Smith, 203 F.3d at 1130; 28 U.S.C. § 1915(e)(2)(B), § 1915A(b). If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a Second Amended Complaint. The Second Amended Complaint shall be complete in itself. It shall not refer in any manner to any prior complaint. Plaintiff shall set forth his claims for relief separately and shall identify each Defendant sued on each claim for relief. See Fed.R.Civ.P. 10(a), (b). Plaintiff shall not add any new Defendants without leave of Court. See Fed.R.Civ.P. 21. Failure to file timely a Second Amended Complaint may result in the dismissal of this action.
Plaintiff's requests for a settlement conference are denied without prejudice. Plaintiff's request for an order directing service of process by the United States Marshal is denied without prejudice.