Opinion
No. CIV S-06-0355 DFL GGH P.
August 11, 2006
ORDER
Plaintiff is a state prisoner proceeding pro se. On June 6, 2006, the court dismissed plaintiff's complaint with leave to amend. Pending before the court is plaintiff's amended complaint filed June 14, 2006.
The only named defendant is the California Department of Corrections and Rehabilitation (CDCR). Plaintiff alleges that defendant CDCR violated his rights under the Americans with Disabilities Act (ADA).
Title II of the ADA prohibits a public entity from discriminating against a qualified individual with a disability on the basis of a disability. 42 U.S.C. § 12132 (1994); Weinrich v. L.A. County Metro Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). To state a claim under Title II, the plaintiff must allege four elements: 1) the plaintiff is an individual with a disability; 2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; 3) the plaintiff was either excluded from participation in or denied the benefits by the public entity; and 4) such exclusion, denial of benefits or discrimination was by reason of the plaintiff's disability. Weinrich, 114 F.3d at 978
Plaintiff alleges that he has a back injury and suffers from mental illness. Plaintiff alleges that defendant CDCR discriminated against him by requiring him to work on the kitchens pot crew. Plaintiff claims that this job assignment was difficult because of his back injury and "damaged" his mind.
Plaintiff's allegations do not state an ADA claim. Plaintiff does not allege that he was excluded from participating in or denied the benefits of a service, program or activity by defendant. Rather, plaintiff's allegations suggest that defendants violated his constitutional rights by requiring him to work in a job that he was physically and mentally unable to perform. Accordingly, the amended complaint is dismissed with leave to amend.
Plaintiff is informed that with respect to a claim for violation of his civil rights pursuant to 42 U.S.C. § 1983, the Eleventh Amendment bars suits brought by private parties against a state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139 (1979); Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057 (1978) (per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). Although the Eleventh Amendment is not jurisdictional, the court may raise the defect on its own.Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 389, 118 S. Ct. 2047, 2052 (1998); Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S. Ct. 1347, 1362-1363 (1974). Plaintiff's civil rights claims against defendant CDCR would be barred by the Eleventh Amendment. Therefore, if plaintiff files an amended complaint alleging a violation of his constitutional rights, he should name as defendants the individuals responsible for the alleged deprivation rather than a state agency.
Accordingly, IT IS HEREBY ORDERED that plaintiff's amended complaint filed June 14, 2006, is dismissed with thirty days to file a second amended complaint; failure to file a second amended complaint within that time will result in a recommendation of dismissal of this action.