Opinion
No. 2:18-cv-02673 CKD P
04-30-2019
ANTHONY THOMAS BUTLER, Plaintiff, v. IANNONE M., et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). See 28 U.S.C. § 636(c).
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect twenty percent of the preceding month's income credited to plaintiff's prison trust account and forward it to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
I. Screening Standard
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
II. Allegations in the Complaint
Plaintiff is a hearing impaired inmate at the California Medical Facility in Vacaville. In his complaint he alleges that defendants Iannone M., W. Perehoduk, R.W. Fox, Vaden, K.Z. Allen, M. Voong, C. Wofford, and Critender have placed him in a housing unit that denies him access to meals, yard activity, programs and other services due to his hearing disability in violation of the Americans with Disabilities Act and the Rehabilitation Act. Because plaintiff is deaf he cannot hear any of the announcements or calls to meals, programs, and activities that are made via the public announcement system. Plaintiff also alleges that being housed under these conditions of confinement while deaf amounts to cruel and unusual punishment in violation of the Eighth Amendment. As a result of his housing assignment, plaintiff contends that he has suffered "emotional distress, very bad migraine headaches, chronic anxiety attacks, chronic angina, chestpains, los[s] of sleep," and has also passed out. ECF No. 1 at 4.
II. Analysis
The court has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states potentially cognizable claims arising under Title II of the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act of 1973, and an Eighth Amendment claim challenging his conditions of confinement pursuant to 42 U.S.C. § 1983 against defendants Iannone M., W. Perehoduk, R.W. Fox, Vaden, K.Z. Allen, M. Voong, C. Wofford, and Critender. For the reasons set forth in further detail below, the court finds that the complaint does not state any cognizable claim for relief against defendants C. Henson, J. Montiel, Baca, and Trevino. These claims are dismissed with leave to amend.
In order to state a claim cognizable in a civil rights action, a plaintiff must connect the named defendants clearly with the claimed denial of his rights. Farmer v. Brennan, 511 U.S. 825, 837, 843 (1994) (official's liability for deliberate indifference to assault requires that official know of and disregard an "excessive risk"); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("liability under section 1983 arises only upon a showing of personal participation by the defendant (citation omitted) . . . [t]here is no respondeat superior liability under section 1983."); Johnson v. Duffy, 588 F.3d 740, 743-44 (9th Cir. 1978) (discussing "requisite causal connection" in section 1983 cases between named defendant and claimed injury); Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999) ("A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights."). The court cannot determine from the complaint what role, if any, defendants C. Henson, J. Montiel, Baca, and Trevino played in the alleged deprivation of plaintiff's rights. Accordingly, these defendants will be dismissed from the complaint with leave to amend.
III. Plain Language Summary for Pro Se Party
The following information is meant to explain this order in plain English and is not intended as legal advice.
Some of the allegations in the complaint state claims for relief against the defendants, and some do not. You may choose to file an amended complaint to try to fix these problems. You must decide if you want to (1) proceed immediately on your Eighth Amendment, A.D.A and R.A. claims against defendants Iannone, Perehoduk, Fox, Vaden, Allen, Voong, Wofford, and Critender and voluntarily dismiss the other defendants or (2) try to amend the complaint to state claims against the remaining defendants. Once you decide, you must complete the attached Notice of Election form by checking only one of the appropriate boxes and return it to the court. Once the court receives the Notice of Election, it will issue an order telling you what you need to do next (i.e. file an amended complaint or wait for the defendants to be served with a copy of the complaint).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. The allegations against defendants C. Henson, J. Montiel, Baca, and Trevino are dismissed with leave to amend for failing to state a claim.
4. Plaintiff has the option to proceed immediately on the Eighth Amendment, A.D.A., and R.A. claims against defendants Iannone M., W. Perehoduk, R.W. Fox, Vaden, K.Z. Allen, M. Voong, C. Wofford, and Critender or plaintiff may choose to amend the complaint.
5. Within 21 days from the date of this order, plaintiff shall complete and return the attached Notice of Election form notifying the court whether he wants to proceed on the screened complaint or whether he wants time to file a first amended complaint. Dated: April 30, 2019
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 12/butl2673.1.option.docx No. 2:18-cv-0673 CKD P
PLAINTIFF'S NOTICE OF ELECTION
Check only one option:
___ Plaintiff wants to proceed immediately on the claims against defendants Iannone, Perehoduk, Fox, Vaden, Allen, Voong, Wofford, and Critender; or,
___ Plaintiff wants time to file a first amended complaint.
DATED:
/s/_________
Plaintiff