Opinion
2:19-cv-01878-AC
07-08-2021
RICHARD W. SALMON, Plaintiff, v. MARCIA G. VENTURA, Statewide Inmate ADA Coordinator, Defendant.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, United States Magistrate Judge
Plaintiff Richard W. Salmon (“Salmon”), an individual currently in custody of the Oregon Department of Corrections (“ODOC”) at Snake River Correctional Institute (“SRCI”) and proceeding pro se, brings this action against Defendant Marcia G. Ventura (“Ventura”), the Statewide Inmate ADA Coordinator, pursuant to 42 U.S.C. § 1983. Salmon alleges that Ventura's actions violated Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and deprived him of equal protection under the Fourteenth Amendment, by depriving him certain services and privileges associated with a prison incentive program. For the following reasons, Ventura's motion to dismiss should be GRANTED.
Background
Inmates at SRCI may participate in the Non-Monetary Incentives program. OR. ADMIN R. § 291-077-0035. The program established three incentive levels, based on inmate behavior. Id. As inmates achieve higher incentive levels, they gain access to increasing services and privileges. Id. The requirements for Level II include “180 general population days without a major misconduct” and “90 general population days without a program failure.” (Pl.'s Resp. Mot. Dismiss, Ex. 1, ECF No. 17.) Level III eligibility requirements include “365 additional general population days without a major misconduct” and “90 additional general population days without a program failure” in addition to Level II requirements. (Id.)
Salmon is a Level I inmate. (Am. Compl. at 3 ¶ 5.5, ECF No. 9.) He has been diagnosed with Anti-Social Personality Disorder multiple times. (Id. at ¶ 5.3.) The parties agree this is an ADA-qualifying disability. (Id. at 4 ¶ 5.7) (Def.'s Mot. Dismiss at 3, ECF No. 12.) Salmon claims his “inappropriate behavior, ” which has prevented him from achieving higher incentive levels, is attributable to his disability. (Pl.'s Resp. at 1.)
On September 24, 2018, Salmon made a request to SRCI's ADA Coordinator that he be given access to the services and privileges reserved for inmates at higher incentive levels. (Am. Compl. at 3 ¶ 5.3.) Salmon claimed that depriving him of these benefits because of his personality disorder constituted discrimination and violated Title II of the ADA. (Id.) In his request, Salmon claimed that the ADA prohibited SRCI from excluding him “from the ability to participate in privileges/activities that others are able to enjoy.” (Id.) SRCI forwarded the request to Ventura, who denied the request on February 1, 2019. (Id.)
Salmon filed a complaint on November 20, 2019. (Compl., ECF No. 2.) That complaint was dismissed on May 7, 2020, and Salmon was advised of the opportunity to amend. (Order Dismiss at 6-7, ECF No. 6.) Salmon filed an Amended Complaint on July 6, 2020. (Am. Compl.) In his Amended Complaint, Salmon claims that Ventura discriminated against him in violation of Title II of the ADA and the Equal Protection Clause of the Fourteenth Amendment. (Am. Compl. at 1 ¶ 1.2.) Though Salmon purports to bring his ADA claim under 42 U.S.C. § 12131, the court construes his claim as though it were brought under § 12132. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (explaining that complaints filed by pro se litigants are to be construed liberally). He brings his claim for violation of his constitutional rights under 42 U.S.C. § 1983. (Am. Compl. at 1 ¶ 1.1.) Salmon seeks declaratory and injunctive relief. (Id. at 1 ¶ 1.2.) Specifically, Salmon demands access to the same services and privileges afforded Level III inmates. (Id. at 3 ¶ 5.5.)
On July 27, 2020, Ventura moved to dismiss Salmon's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), for failing to state a claim under both Title II of the ADA and the Equal Protection Clause. Ventura specifically contends that Salmon's pleading fails because the Non-Monetary Incentives program “is reasonably related to legitimate penological interests, ” and because Salmon's request for program modification is not reasonable. (Def.'s Mot. Dismiss at 2 (internal citation and quotation omitted).)
Legal Standard
A party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). A court may dismiss “‘on the lack of a cognizable legal theory or the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. County of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556); Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017).
The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal citations and quotations omitted); see also Kwan, 854 F.3d at 1096. “[T]o be entitled to the presumption of truth, allegations in a complaint . . . may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
“In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). “A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment.” Aleman v. Amsberry, No. 2:19-cv-00922-YY, 2020 WL 2374970, at *2 (D. Or. Feb. 11, 2020), adopted 2020 WL 2341128 (May 8, 2020); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (recognizing that leave to amend should be granted unless plaintiff cannot correct the defect), overruled in part on other grounds in Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014).
Discussion
I. Salmon Fails to Sufficiently State a § 12132 Claim
Title II of the ADA states 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. State correctional facilities are “public entities” under Title II. Pennsylvania Dep't of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998); Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir. 2001) (holding Title II of the ADA applies to state prisons), overruled in part on other grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). An inmate bringing a claim under Title II must allege:
(1) he “is an individual with a disability;” (2) he “is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities;” (3) he “was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity;” and (4) “such exclusion, denial of benefits, or discrimination was by reason of [his] disability.”O'Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (internal citations omitted); Updike v. Multnomah Cnty., 870 F.3d 939, 949 (9th Cir. 2017); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); see also Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (holding that to recover damages, a plaintiff must prove that defendants acted with intent to discriminate against him in order to recover money damages for violation of Title II of the ADA).
With respect to inmates' rights under the ADA, prison regulations must be analyzed “in light of effective prison administration.” Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994). The Supreme Court has held that “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interest.” Turner v. Safley, 482 U.S. 78, 89 (1987) (emphasis added). Therefore, to prevail on his claim that his rights under the ADA have been violated, Salmon must show that the incentive program is unreasonable. Pierce v. County of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008). The Ninth Circuit has articulated the following factors to determine the reasonableness of prison programs:
(1) whether there is a valid, rational connection between the prison policy and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right; (3) the impact that accommodation of the constitutional right will have on guards, on other inmates, or on the allocation of prison resources; and (4) whether the regulation or policy is an “exaggerated response” to prison concerns.Gates, 39 F.3d at 1447 (quoting Casey v. Lewis, 4 F.3d 1516, 1520 (9th Cir. 1993)).
Salmon has failed to state a claim under Title II of the ADA because he has failed to allege that the prison program is unreasonable, he has failed to provide factual support for the allegation that he was discriminated against by reason of his disability, and he has failed to provide factual support for the allegation that ODOC had a duty to provide the modification requested.
A. Salmon Fails to Allege that the Non-Monetary Incentives Program is Unreasonable
In the Motion to Dismiss, Ventura explains that the incentive program is in place to promote institutional security, which is a legitimate penological interest. Salmon agrees that the program “is reasonabl[y] related to [ODOC's] interest in institutional security.” (Pl.'s Resp. at 2.) Therefore, the reasonableness of the program is undisputed and Salmon's ADA claim necessarily fails. Pierce, 526 F.3d at 1217.
B. Salmon Fails to Allege that Ventura Excluded Him from Level II or III “by Reason of Disability”
“Plaintiff bears the burden of establishing he was excluded from participating in or denied the benefits of . . . services, programs, or activities ‘by reason of [his] disability.'” Wilkey v. County of Orange, 295 F.Supp.3d 1086, 1092 (C.D. Cal. 2017) (internal citation omitted). In discussing the meaning of action “by reason of disability, ” the Ninth Circuit has held that “facially neutral policies may violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced.” McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004), overruled in part on other grounds in Castro v. County of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc). To make out a claim for violation of the ADA, a plaintiff need not allege “discriminatory animus.” Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996). A plaintiff may instead allege discrimination that is the result of “‘thoughtlessness,' ‘indifference,' or ‘benign neglect.'” Id. (quoting Alexander v. Choate, 469 U.S. 287, 295 (1985)). A plaintiff can establish that he was discriminated against by reason of his disability by showing that a policy “burdened him in a manner different from and greater than it burdened non-disabled [individuals], solely as a result of his disabling condition.” McGary, 386 F.3d at 1265.
In the prison context, a decision to exclude a particular inmate from services or privileges may be based, among other things, on security considerations or the inmate's demonstrated behavior. See Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1021-22 (9th Cir. 2010) (explaining that “a jail policy restricting the activities of inmates on suicide watch” did not constitute discrimination on the basis of disability), overruled on other grounds in Castro, 833 F.3d 1060.
Salmon does not allege that Ventura acted with discriminatory animus, thoughtlessness, indifference, or benign neglect. Nothing in Salmon's filings suggests that his disability played any role in Ventura's decision to deny his request. Salmon similarly fails to allege that his disability causes “the inappropriate behavior which keeps him from achieving incentive level III, ” or that his disability prevents him from meeting Level III behavioral requirements in the future. (Pl.'s. Resp. at 1.) Thus, he has not shown that he is “unduly burden[ed]” in his effort to achieve Level II or III status. In short, Salmon fails to allege facts supporting a reasonable inference that Ventura denied him Level III benefits “by reason of his disability.” Again, “[a] pleading that offers labels and conclusions . . . will not do.” Iqbal, 556 U.S. at 678 (internal citations and quotations omitted).
C. Salmon Fails to Allege Duty to Provide Reasonable Modification
Salmon fails to allege that ODOC has a duty to provide him modifications. His proposed modification fundamentally alters the nature of the incentive program and rests on the unsupported allegation that he was discriminated against by reason of his disability.
Implementing regulations for Title II of the ADA “require a public entity to ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity.'” Zukle v. Regents Univ. of Cal., 166 F.3d 1041, 1046 (9th Cir. 1999) (emphasis added) (quoting 28 C.F.R. § 35.130(b)(7)). The reasonable modification requirement does not amount to a requirement that public entities “compromise their essential eligibility criteria for public programs.” Tennessee v. Lane, 541 U.S. 509, 511 (2004). The plaintiff has the burden of proposing reasonable modifications. Zukle, 166 F.3d at 1048.
Salmon proposes that he receive Level II and III services and privileges without satisfying the qualifying behavioral criteria. (See Am. Compl. at 3 ¶ 5.3, 4 ¶ 5.7.) However, such a modification “fundamentally alter[s] the nature” of the incentive program. The incentive program “is developed and implemented by managers at each correctional facility and intended to ‘motivate inmates toward positive institutional behaviors and program compliance.'” (Def.'s Mot. Dismiss at 3-4 (quoting OR. ADMIN. R. § 291-077-0010).) By encouraging good behavior, the program promotes institutional security. (Def.'s Mot. Dismiss at 6). This program would cease to promote good and safe behavior without the qualifying behavior necessary to receive benefits. Salmon's request that eligibility requirements be waived for him therefore fundamentally alters the nature and purpose of the incentive program.
Additionally, “[t]he duty to provide ‘reasonable accommodations' under the ADA . . . arises only when a policy discriminates on the basis of disability.” Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis in original). If a public service is denied for a reason other than disability, there is no duty to modify under the ADA. Id. at 979 (holding that the city had no duty to modify a program when plaintiff's finances, and not his disability, prevented his participation in the program). Again, Salmon fails to allege his disability as the reason for his exclusion from Level II and III privileges and services. He has therefore failed to support his claim that ODOC has a duty to provide modifications. Accordingly, the court recommends that Ventura's motion to dismiss Salmon's ADA claim be granted.
II. Salmon Fails to Sufficiently State an Equal Protection Claim
A. Section 1983 Standards
“[Section 1983] ‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)), overruled on other grounds in Saucier v. Katz, 533 U.S. 194 (2001); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To state a cognizable claim under § 1983, an inmate must show: (1) defendant acted under the color of state law, and (2) defendant deprived plaintiff of a right under federal law or under the constitution. West v. Atkins, 487 U.S. 42, 48 (1988). In the Ninth Circuit, prison officials act under color of state law where such actions are carried out in their official capacity as an employee of the state. Anderson, 451 F.3d at 1067-69. To survive Ventura's motion on his equal protection claim, Salmon must allege facts sufficient to show that Ventura deprived him of equal protection under the Fourteenth Amendment.
B. Salmon Fails to Support Required Elements for an Equal Protection Claim
“The Equal Protection Clause requires the State to treat all similarly situated people equally.” Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Equal protection claims under § 1983 must allege facts supporting four specific elements:
(1) the . . . defendants treated [plaintiff] differently from others similarly situated;
(2) this unequal treatment was based on an impermissible classification; (3) the . . . defendants acted with discriminatory intent in applying this classification; and (4) plaintiffs suffered injury as a result of the discriminatory classification.Moua v. City of Chico, 324 F.Supp.2d 1132, 1137 (E.D. Cal. 2004).
Without factual support, merely identifying the elements required to state a claim is not sufficient to survive a motion to dismiss. Starr, 652 F.3d at 1216. Though Salmon lists these four elements in his Amended Complaint, (Am. Compl. at 3 ¶ 5.5), he offers no further factual allegations to support those elements, thus failing to state a cognizable equal protection claim under § 1983.
First, Salmon fails to allege facts supporting that he was treated differently from similarly situated inmates. “‘[T]he level of similarity between plaintiff and the persons with whom they compare themselves must be extremely high.'” Ireland v. Solano Cnty., No. 2:19-cv-1104-KJM-EFB P, 2020 WL 2770062, at *4 (E.D. Cal. May 28, 2020) (quoting Morris v. State Bar of Cal., No. CV F 09-0026 LJO GSA, 2010 WL 2353528, at *8 (E.D. Cal. June 9, 2010)). Though Salmon alleges that Level III inmates are “similarly situated” to him (Am. Compl. at 3 ¶ 5.5), Ventura correctly explains that Level I and Level III inmates are not similarly situated for purposes of the incentive program, (Def.'s Mot. Dismiss at 9).
Similarly situated inmates “‘must be similar in the respects pertinent to the state's policy.'” Holestine v. R.J. Donovan Corr. Fac., No. 18-CV-2094-AJB(WVG), 2020 WL 4218498, at *5 (S.D. Cal. July 23, 2020) (quoting Taylor v. San Diego Cnty., 800 F.3d 1164, 1169 (9th Cir. 2015)). Behavior is the only pertinent criteria for the incentive program and is the only thing separating Level I and III inmates. (See Pl.'s Resp., Ex. 1.) To show he is similarly situated to Level III intimates, Salmon “must plead he ‘is equally capable for the purpose at issue.'” Holestine, 2020 WL 4218498, at *5 (quoting Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997)). In this case, Salmon must show he is equally capable of behaving pursuant to Level III criteria as those inmates who have earned Level III status. Salmon acknowledges that he has not demonstrated this capability. (Pl.'s Resp. at 1.)
Regarding receipt of services and privileges from the incentive program, Salmon is similarly situated to other Level I inmates who have demonstrated similar behavior. Salmon has not alleged any facts suggesting he has been treated differently from other Level I inmates.
Second, Salmon fails to allege facts supporting that his classification at Level I was an impermissible classification. In his Amended Complaint, Salmon alleges his “unequal treatment . . . resulted from impermissible classification . . ., ” but he fails to allege any facts supporting this statement. He acknowledges that he was classified pursuant to the tri-level system of Oregon Administrative Rule § 291-077-0035, yet does not allege facts suggesting that this system is impermissible. (Am. Compl. at 3 ¶ 5.5) (Pl.'s Resp. at 1-2.) As discussed above, Salmon expressly acknowledges the reasonableness of the incentive program, and thus its validity under Turner.
Third, Salmon fails to allege facts supporting that Ventura acted with discriminatory intent. Salmon claims that his Anti-Social Personality Disorder causes “the inappropriate behavior which keeps him from achieving incentive level III.” (Pl.'s Resp. at 1.) He thus acknowledges that it is his behavior that resulted in his Level I status. (See Def.'s Rep., at 1, ECF No. 18.) His complaint lacks any support for the proposition that Ventura's denial of his request on February 1, 2019 was based upon his personality disorder.
That Salmon is denied certain Level II and III services and privileges is not in dispute. However, Salmon has failed to allege any factual support for the first three elements required to state an equal protection claim. Accordingly, the court recommends that Ventura's motion to dismiss Salmon's equal protection claim be granted.
III. Leave to Amend
The court may dismiss a claim with prejudice “only when it is clear that no amendment could cure [the] defect ” City of Oakland v. Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009). Here, it is clear that Salmon is unable to cure his ADA or equal protection claim by amendment.
Salmon acknowledges that the incentive program is reasonable and that his behavior renders him unqualified to receive Level II and III benefits. Additionally, Salmon has demonstrated an inability to provide facts necessary to survive a 12(b)(6) motion. Upon his first leave to amend, the court expressly explained the necessary elements to plead a Title II ADA claim and an equal protection claim. (Order Dismiss at 3, 5.) Both claims require Salmon to allege facts supporting that Ventura acted in a discriminatory manner based on Salmon's disability. Id. Knowing this, Salmon failed to provide any facts indicating that his Level I status is based upon anything other than his behavior. He also failed to support two other required elements for his equal protection claim, which the court identified for him upon leave to amend. Finally, Salmon has requested a modification that is simply not provided for under the ADA - waiver of program requirements. No amendment to his complaint will bring his request within the scope of ADA remedies.
In light of this determination, providing Salmon with leave to amend would be futile. Accordingly, the court recommends that this case be dismissed with prejudice.
Conclusion
Based on the above, Ventura's Motion to Dismiss Salmon's Amended Complaint should be GRANTED and this case should be dismissed with prejudice.
Scheduling Order
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.