Opinion
24-cv-00357-MMA (DDL)
07-15-2024
DAVID A. THOMPSON, CDCR #AU-9252, Plaintiff, v. JAMES S. HILL, RJDCF Warden; L. SCHOBELOCK, R.N.; R. BARENCHI, CME, S. GATES, Chief Health Care Correspondence; JOHN/JANE DOE, Appeals Coordinator; J. MOECKLY, Reviewing Authority; A. REYES, ADA Coordinator; Dr. HODGES, Chief Physician and Surgeon; R. BLANDING, Custody Appeals Representative; B. CAMPBELL, Health Care Compliance Analyst; v. ANDERSON, Health Care Grievance Representative; Dr. KAUFFMAN, Clinical Psychologist; B. MILLIUM, Educator, Defendants.
ORDER GRANTING MOTIONS TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(E)(2)(B) AND 1915A(B) [DOC. NOS. 5, 6]
HON. MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff David A. Thompson, who is incarcerated at Richard J. Donovan Correctional Facility (“RJDCF”), in San Diego, California, and proceeding pro se, filed a Complaint under the Civil Rights Act, 42 U.S.C. § 1983 on February 22, 2024. See Doc. No. 1 (“Compl.”). Plaintiff claims more than a dozen RJDCF custody, health care, and inmate appeals officials violated his rights by denying his September 2023 request for permanent single-cell housing. See id. at 1-11. Plaintiff asks the Court to authorize his permanent single cell status and he seeks $1 million in general and punitive damages. Id. at 14.
Because Plaintiff failed to pay civil filing fees or file a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) at the time of filing, however, his case was dismissed on February 27, 2024. See Doc. No. 3. The Court granted him leave to pay the filing fee in full or to file an IFP Motion within 45 days if he wished to proceed. Id. at 3-4. Plaintiff has since submitted two separate IFP Motions, see Doc. Nos. 5, 6, followed by a certified copy of his prison trust account statement as required by 28 U.S.C. § 1915(a)(2). See Doc. No. 7.
For the reasons explained below, the Court now GRANTS Plaintiff leave to proceed IFP and DISMISSES his Complaint sua sponte for failing to state a claim upon which relief can be granted.
II. MOTIONS TO PROCEED IFP
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $405. See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf. Hymas v. U.S. Dep't of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP application is denied altogether, Plaintiff's case [cannot] proceed unless and until the fee[s] [a]re paid.”).
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The $55 administrative portion of the fee does not apply to persons granted leave to proceed IFP. Id.
“While the previous version of the IFP statute granted courts the authority to waive fees for any person ‘unable to pay[,]' ... the PLRA [Prison Litigation Reform Act] amended the IFP statute to include a carve-out for prisoners: under the current version of the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.'” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)).
To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and when funds exist, collect, an initial partial filing fee,” which is “calculated based on ‘the average monthly deposits to the prisoner's account' or ‘the average monthly balance in the prisoner's account' over a 6-month term; the remainder of the fee is to be paid in ‘monthly payments of 20 percent of the preceding month's income credited to the prisoner's account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)-(2)). Thus, while prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one lump sum, they nevertheless remain obligated to pay the full amount due in monthly payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Plaintiff's IFP Motions comply with both 28 U.S.C. § 1915(a)(1) and (2). See Doc. Nos. 5, 6. In support, he has submitted two prison certificates and certified copies of his California Department of Corrections and Rehabilitation (“CDCR”) Inmate Trust Account Statement Reports. See Doc. No. 5 at 6-9; Doc. No. 7 at 1-4; see also S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. Plaintiff's most recent prison certificate shows an average monthly balance of $20.39 and $18.89 in average monthly deposits credited to his account over the 6-month period immediately preceding the filing of his Complaint. At the time of filing, however, Plaintiff's available balance was only $1.05. See Doc. No. 7 at 1, 3.
Accordingly, the Court GRANTS Plaintiff's Motions to Proceed IFP and assesses an initial partial filing fee of $4.07 pursuant to 28 U.S.C. § 1915(b)(1). This initial fee need be collected, however, only if sufficient funds are available in Plaintiff's account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner's IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when payment is ordered.”). The CDCR must thereafter collect the full balance of the $350 total fee owed in this case and forward payments to the Clerk of the Court as provided by 28 U.S.C. § 1915(b)(2).
III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(a) A. Standard of Review
Because Plaintiff is a prisoner proceeding IFP and seeking relief from governmental entities, his Complaint requires preliminary review pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these statutes, the Court must screen his Complaint, and sua sponte dismiss it, or any portion of it which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts also “have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). Courts may not, however, “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); Byrd v. Maricopa Cty. Sheriff's Dep't, 629 F.3d 1135, 1140 (9th Cir. 2011).
B. Plaintiff's Allegations
On September 19, 2023, Plaintiff alleges he filed a Reasonable Accommodation Request (“CDCR 1824 Form”), Log No. 452217, and a CDCR 602 Health Care Grievance, Log No. 23001337, both requesting permanent single-cell housing placement due to fecal incontinence he experienced after a September 13, 2023 spinal surgery. See Compl. at 6 & Ex. 1, Doc. No. 1-1 at 2; Ex. 2 Doc. No. 1-2 at 4. Plaintiff alleged that while he is provided adult diapers and wipes, and was assigned to a “cell by [him]self” at the time, his incontinence resulted in “multiple fist fights with prior cellies,” and he feared for his future safety if not permanently assigned to a single cell. See Compl. at 6 & Ex. 2, Doc. No. 1-2 at 4-6; Ex. 3, Doc No. 1-2 at 4.
“If an inmate is disabled and seeks accommodations under the [“Americans with Disabilities Act], he may submit a Reasonable Accommodation Request Form 1824 which is an informal request prior to pursuing formal grievance proceedings using Form 602.” Acosta v. Servin, No. 20-CV-2225-MMA-MSB, 2021 WL 718599, at *4 (S.D. Cal. Feb. 24, 2021). If the inmate disagrees with the response he receives from the Reasonable Accommodation Panel (“RAP”), he may submit a formal CDCR 602 grievance and/or a CDCR HC Grievance. See Harris v. Engels, No. CV 19-5590-PA (KK), 2022 WL 3691670, at *4 n.4 (C.D. Cal. July 6, 2022), report and recommendation adopted, No. CV 19-5590-PA (KK), 2022 WL 3686358 (C.D. Cal. Aug. 23, 2022).
On September 21, 2023, Defendants Reyes, an ADA Coordinator, Hodges, a Chief Physician and Surgeon, Blanding, a Custody Appeals Representative, Campbell, a Health Care Compliance Analyst, Anderson, a Health Care Grievance Representative, Kauffman, a Clinical Psychologist, and Millum, an Education Department representative, who together comprised Plaintiff's Reasonable Accommodation Panel (“RAP”), considered Plaintiff's CDCR 1824 and denied his request. See Compl. at 7 & Ex. 4, Doc. No. 1-2 at 13. Specifically, the RAP reviewed information gathered by an Armstrong Court Complaint Sergeant (“ACCS”), an interview with Plaintiff, a Medical Subject Matter Expert's assessment of Plaintiff's Disability Verification Process, and consulted his housing unit staff. See Ex. 4, Doc. No. 1-2 at 13. The RAP noted that while Plaintiff was incontinent “there [wa]s no medical indication for medical isolation,” he admitted no problem accessing incontinence supplies or shower access, and housing staff observed no conflicts with other inmates or any history of personal or cell hygiene issues. Id. The ACCS further reported Plaintiff participated in program services and activities, was currently the “sole occupant” of his cell, is 6‘ 1" weighed 249 pounds, appeared fit, stated he “does not have safety concerns,” and that nothing in the Strategic Offender Management System (SOMS) “[sug]gest[ed] he has been a victim.” Id. The RAP therefore concluded there was “no significant risk of attacks that would necessitate single cell placement solely due to [Plaintiff's] incontinence concerns.” Id. The RAP response further advised Plaintiff to “submit a CDCR 1824 request for re[e]valuation” should his case factors change, and advised him of his right to submit a CDCR 602 Grievance and/or a CDCR 602 HC Grievance if he disagreed with its determination. See Id. & Ex. 3, Doc. No. 1-2 at 13.
Armstrong is one of several pending class actions brought against CDCR officials for violation of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and the Constitution by present and future California prisoners and parolees suffering from certain disabilities. See Armstrong v. Schwarzenegger, 622 F.3d 1058, 1062-63 (9th Cir. 2010); Clark v. California, 739 F.Supp.2d 1168, 1173-74 (N.D. Cal. 2010).
On September 25, 2023, an unidentified sergeant told Plaintiff that a CDCR 1824 Form was “not the way to request single cell status,” so he also filed a CDCR 602 Grievance, Log No. 454203, repeating his request for a permanent single cell assignment. Id. & Ex. 3, Doc. No. 1-2 at 9-11. Plaintiff alleges all his attempts to appeal RAP Log No. 452217 via CDCR 602 Log No. 454203 and CDCR 602 HC Grievance Log No. 23001337 were unsuccessful, and he attaches those grievances and appeals as exhibits to his Complaint. See Compl. at 7-9 & Exs. 2-13, Doc. No. 1-2 at 3-42.
“Courts must consider the complaint in its entirety,” including “documents incorporated into the complaint by reference” to be part of the pleading when determining whether the plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep't of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).
As for the remaining Defendants James S. Hill, RJD's Warden, L. Schobelock, Registered Nurse, R. Barenchi, Chief Medical Executive, S. Gates, Chief Health Care Correspondence, John/Jane Doe, Appeals Coordinator, and J. Moeckly, Reviewing Authority, Plaintiff includes them in his list of parties but includes no factual allegations in his Complaint describing their involvement. See Compl. at 1-3. A search through his exhibits, however, suggests these Defendants (with the exception of Warden Hill, and John/Jane Doe, whose involvement is completely undocumented), played some role in considering, reviewing, and/or affirming the RAP's denial of Plaintiff's CDCR 1824 request for permanent single-cell housing via his CDCR 602 custody and health care appeals. See, e.g., Exs. 2, 9 & 10, Doc. No. 1-2 at 4, 24-25, 28-30 (Schobelock, Barenchi & Gates, in re CDCR HC 602 Log No. 23001337); and Ex. 13, Doc. No. 1-2 at 41 (Moeckly, in re CDCR 602 Log No. 4544203 and CDCR Grievance/Appeal Log No. 452217).
C. Discussion
Plaintiff brings his suit pursuant to 42 U.S.C. § 1983 and contends Defendants as a group demonstrated “deliberate indifference,” see Compl. at 6, but he does not identify any specific federal constitutional or statutory basis for his claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 1035-36 (9th Cir. 2015). Plaintiff alleges only that all Defendants are employees of the CDCR, and that “all Defendants are liable for damages because each one violated [his] right to be and feel safe within his own cell.” See Compl. at 11.
Thus, the Court liberally construes Plaintiff's Complaint to invoke both his Eighth Amendment right to be free from cruel and unusual punishment with respect to his housing, and his right to reasonable accommodations on account of a medical disability pursuant to the ADA.
See Byrd v. Phoenix Police Dep't, 885 F.3d 639, 642 (9th Cir. 2018) (noting court's “obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”) (citations omitted); Alvarez v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008) (“A complaint need not identify the statutory or constitutional source of the claim raised in order to survive a motion to dismiss.”).
1. Individual Liability
As an initial matter, the Court finds Plaintiff's Complaint fails to state any plausible claim for relief against Defendants Hill, Schobelock, Barenchi, Gates, Moeckly, and John/Jane Doe. “Liability under § 1983 must be based on the personal involvement of the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Thus, in order to state a viable section 1983 claim, Plaintiff's allegations “must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). His Complaint must include facts sufficient to plausibly show each defendant “[performed] an affirmative act, participate[d] in another's affirmative acts, or omit[ted] to perform an act which he is legally required to do that cause[d] the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
While Plaintiff identifies Defendants Reyes, Hodges, Blanding, Campbell, Anderson, Kaufman, and Millum as the members of the RAP who “came together to make the decision” to deny his CDCR 1824 request for permanent single cell housing, see Compl. at 7, his Complaint identifies Defendants Hill, Schobelock, Barenchi, Gates, Moeckly, and John/Jane Doe only by job title and includes no factual allegations with respect to any of them. See Compl. at 2-5. Nowhere in the body of his pleading does Plaintiff allege any of these officials played any role whatsoever in violating any of his constitutional rights. “[V]icarious liability is inapplicable to . . . § 1983 suits, [therefore] Plaintiff must plead that each Governmental-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. “A plaintiff must allege facts, not simply conclusions, t[o] show that [each defendant] was personally involved on the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1988).
In fact, as noted above, with the exception of Warden Hill, this group of Defendants appears to be named as parties only because their names appear as signatories to the CDCR 602 custody and health care grievances and appeals he submitted in response to the RAP's final decision to deny his single-cell accommodation request and has attached as exhibits to his Complaint. But “[t]he Court will not comb through attached exhibits seeking to determine whether a claim possibly could have been stated where the pleading itself does not state a claim. In short, [Plaintiff] must state a claim, not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063, 2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011); see also Bowman v. Health & Hum. Servs. Agency, No. 3:21-CV-01287-BTM-MDD, 2022 WL 3030947, at *3 (S.D. Cal. Aug. 1, 2022).
Moreover, while Schobelock, Barenchi, Gates, and Moeckly appear as signatories to Plaintiff's several CDCR 602 grievances and appeals, and John/Jane Doe is alleged to be an Appeals Coordinator at RJD, see Compl. at 3, the denial of a grievance by itself does not amount to an independent constitutional violation. See Evans v. Skolnik, 637 Fed.Appx. 285, 288 (9th Cir. 2015) (“An allegation that a prison official inappropriately denied or failed to adequately respond to a grievance, without more, does not state a claim under § 1983.”). And as to RJD's Warden Hill, there is no mention whatsoever in either Plaintiff's factual allegations or in any of his exhibits. Supervisory officials “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. Instead, “[a] supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (citation and quotation marks omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (supervisors may be held liable only if they “participated in or directed the violations, or knew of the violations and failed to act to prevent them.”).
For these reasons, no matter the purported constitutional or federal statutory basis for his claims, Plaintiff's Complaint fails to state any plausible claim for relief against Defendants Hill, Schobelock, Barenchi, Gates, Moeckly, and John/Jane Doe and they are therefore subject to dismissal pursuant 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121.
2. Eighth Amendment Claim
Second, to the extent Plaintiff seeks to hold RAP Defendants Reyes, Hodges, Blanding, Campbell, Anderson, Kauffman, and Millum liable for violating his Eighth Amendment rights with respect to his eligibility for permanent single-cell housing, the Court also finds his Complaint fails to allege a plausible claim upon which § 1983 relief can be granted. See Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121.
Prison officials have a duty under the Eighth Amendment to protect prisoners from violence at the hands of other prisoners because being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society. See Farmer v. Brennan, 511 U.S. 825, 833 (1994); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable under the Eighth Amendment only if they act with deliberate indifference to conditions posing a substantial risk of serious harm to an inmate; deliberate indifference occurs only when an official acts or fails to act despite his subjective knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040.
Double-celling is not constitutionally impermissible. See Rhodes v. Chapman, 452 U.S. 337, 348 (1981). In fact, a housing assignment may be “restrictive and even harsh,” but it does not violate the Eighth Amendment unless it “either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment.” Id. at 348-49. Only where prison officials are alleged to know that a housing assignment poses an excessive risk to an inmate's safety will placement with another inmate raise constitutional implications. Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002).
With respect to his cell assignment, Plaintiff appears to claim his RAP committee members violated the Eighth Amendment by failing to authorize his permanent assignment to a single cell. But even if the Court assumes Plaintiff's incontinence is an objectively serious medical condition that could render him potentially eligible for singlecell housing consideration, see e.g., Rankins v. Liu, 2019 WL 5260452, at *5 (E.D. Cal. Oct. 17, 2019) (finding prisoner's permanent incontinence following transurethral resection of the prostate was objectively serious medical need), report and recommendation adopted, 2019 WL 6170635 (E.D. Cal. Nov. 20, 2019), he has failed to allege facts sufficient to show that any individual RAP member, or the RAP as a whole, acted with “deliberate indifference” to a serious risk to his health or his safety when they considered but denied his CDCR 1824 Reasonable Accommodation Request. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “[T]he prison official must not only [be alleged to] ‘be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person ‘must also [be alleged to have] draw[n] the inference.'” Id. at 1057 (quoting Farmer, 511 U.S. at 837).
While Plaintiff's Complaint includes allegations that he engaged in “multiple fist fights with prior cellies” due to his incontinence, see Compl. at 6, he concedes he “never snitched on [them].” Id. at 10. Moreover, his exhibits show the RAP's decision to deny his request for a permanent single-cell accommodation was based, in part, on Plaintiff's own denial of any “safety concerns.” See Ex. 4, Doc. No. 1-2 at 13. Thus, while Plaintiff now claims he has been victimized in the past, see Compl. at 11, he does not allege the RAP was aware of any serious risk or threat posed by his former cellmates when they denied his CDCR 1824 request, or that any individual RAP member actually drew the inference he faced a substantial risk of harm should he be assigned a cellmate in the future. See Farmer, 511 U.S. at 837. It is “obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishment Clause[.]” Wilson v. Seiter, 501 U.S. 294, 299 (1991).
The Court acknowledges and is sympathetic to Plaintiff's discomfort. But the mere fact that he is incontinent and fears potential confrontation with future cellmates as a result does not by itself subject the RAP Defendants to liability under the Eighth Amendment. A prison official's “failure to alleviate a significant risk he should have perceived but did not,” cannot “be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838; see also Pulido v. Lunes, No. 1:14-CV-01174-DAD-EPG, 2016 WL 336182, at *6 (E.D. Cal. Jan. 28, 2016) (“No case holds that officers can be deliberately indifferent to safety so long as the harm is from a fear of attack, rather than the attack itself.”), report and recommendation adopted, No. 1:14-CV-01174-DAD-EPG PC, 2016 WL 1224028 (E.D. Cal. Mar. 29, 2016); Figueroa v. Clark, No. 1:19-CV-00968-BAM PC, 2020 WL 4700806, at *7 (E.D. Cal. Aug. 13, 2020) (unspecified fear of attack, violence, or intimidation by fellow prisoners is insufficient to sustain a viable Eighth Amendment claim in the absence of any physical injury). In short, Plaintiff's “generalized fears of assault by any future cellmate” and claims that permanent singlecell housing is necessary to avoid potential harm, are insufficient to state a plausible claim for relief under the Eighth Amendment. Ardds v. Hicks, 2023 WL 2413823, at *12 (E.D. Cal. Mar. 8, 2023), report and recommendation adopted, 2023 WL 2696628 (E.D. Cal. Mar. 29, 2023) (citing Estate of Ford, 301 F.3d at 1050); Meyers v. Kernan, 2023 WL 425738, at *5 (E.D. Cal. Jan. 26, 2023) (“Plaintiff's simple fear of not being single celled does not demonstrate deliberate indifference.”), report and recommendation adopted, 2023 WL 3794811 (E.D. Cal. June 2, 2023), as amended, 2023 WL 3878786 (E.D. Cal. June 7, 2023).
For these reasons, the Court finds Plaintiff fails to allege facts sufficient to sustain an Eighth Amendment failure to protect violation. See 28 U.S.C. § 1915(e)(2)(B)(ii), 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121; see also Dillingham v. Garcia, No. 1:19-CV-00461-AWI-GSA PC, 2021 WL 971331, at *8 (E.D. Cal. Mar. 15, 2021) (dismissing Eighth Amendment double-celling claims pursuant to 28 U.S.C. § 1915A where no facts showed defendants “knew and understood” Plaintiff had a serious medical need posing an excessive risk if he were not single-celled and yet “ignored it or acted unreasonably under the circumstances.”).
3. ADA Claim
Finally, to the extent Plaintiff implies his fecal incontinence is a disability requiring permanent single cell status, see Compl. at 6, the Court has also considered whether his Complaint states a viable claim for relief under the Americans with Disabilities Act. See Alvarez, 518 F.3d at 1157-58. For the reasons explained below, it does not.
To state a claim under Title II of the ADA, Plaintiff must allege: (1) he is an individual with a disability, (2) he is otherwise qualified to participate in or receive the benefit of a 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. Vos v. City of Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018); O'Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007).
“A plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in [his or] her individual capacity to vindicate rights created by Title II of the ADA.” Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Instead, the proper defendant in an ADA action is the public entity responsible for the alleged discrimination. United States v. Georgia, 546 U.S. 151, 153 (2006). The term “public entity” includes state prisons. See Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Thus, to the extent Plaintiff seeks to sue Defendants in their individual capacities under the ADA, but does not name any public entity as a party, see Walsh v. Nev. Dep't of Hum. Res., 471 F.3d 1033, 1038 (9th Cir. 2006) (holding that the “bar on suits against individual defendants” applies to the ADA); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (noting the “ADA applies only to public entities.”), he fails to state a claim.
To the extent Plaintiff also seeks damages against Defendants for acts taken in their official capacities, see Compl. at 2-5, his claims are subject to sua sponte dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2) as barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Unless waived, the Eleventh Amendment bars a federal court award of damages against a state, state agency, or state official sued in an official capacity. Id. at 169; Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (“The Eleventh Amendment bars claims for damages against a state official acting in his or her official capacity.”).
Moreover, even if Plaintiff had named a proper public entity as a defendant, the allegations in his Complaint regarding the denial of his September 2023 request for permanent single cell housing fail to plausibly show any intentional discrimination “by reason of his disability.” O'Guinn, 502 F.3d at 1060; see also Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). Similar to the Eighth Amendment, the standard for intentional discrimination is deliberate indifference “which requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.” Duvall, 260 F.3d at 1139. For a claim under the ADA to be successful, the plaintiff must both “identify ‘specific reasonable' and ‘necessary' accommodations that the state failed to provide” and allege facts sufficient to show that the failure to act was “a result of conduct that is more than negligent, and involves an element of deliberateness.” Id. at 1140.
At bottom, Plaintiff's single-cell housing request is grounded on his “right to be and feel safe within his own cell,” and his preferred desire to remain on single-cell status as long as he suffers from fecal incontinence. See Compl. at 11. Although Plaintiff contends the RAP denied his request for permanent single cell status as an interim accommodation, he does not allege facts to show he was excluded from participation in, or denied the benefits of, any service or programs offered by the prison because of his disability, or that he was subjected to any type of deliberate discrimination by reason of his disability. See Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); O'Gunn, 502 F.3d at 1060; Duvall, 260 F.3d at 1140.
Further, to the extent the RAP's decision to deny Plaintiff a permanent single-cell accommodation was also based on a subject matter expert's assessment that his incontinence did not require medical isolation, see Ex. 4, Doc. No. 1-2 at 13, he fails to allege facts sufficient to plausibly show deliberate indifference to a serious medical (as opposed to safety) need. Disagreements regarding diagnoses, or mere differences of opinion between a prisoner and medical staff, or between medical professionals regarding the proper course of treatment, do not by themselves give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058. “[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,' and was chosen ‘in conscious disregard of an excessive risk to [the prisoner's] health.'” Id. (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). Nothing in Plaintiff's Complaint or his exhibits suggests he is challenging the constitutionality of his medical treatment, or any medical professional's determination that his incontinence did not require isolation, as medically unacceptable under the circumstances. Id. And even if he did, allegations of inadequate medical care do not equate to a viable claim under the ADA. Simmons v. Navajo County, Ariz, 609 F.3d 1011, 1022 (9th Cir. 2010) (inadequate or negligent medical treatment alone does not constitute an unlawful failure to accommodate under the ADA or the Rehabilitation Act.); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he A[DA] [is] not [] violated by a prison's simply failing to attend to the medical needs of its disabled prisoners .... The ADA does not create a remedy for medical malpractice”)).
For these reasons, the Court finds Plaintiff also fails to allege facts sufficient to support a claim for relief under the ADA. See 28 U.S.C. § 1915(e)(2)(B)(ii), 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121.
IV. CONCLUSION
Accordingly, the Court:
1) GRANTS Plaintiff's Motions to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a) (Doc. Nos. 5, 6).
2) ORDERS the Secretary of the CDCR, or his designee, to collect from Plaintiff's trust account the $4.07 initial filing fee assessed, if those funds are available at the time this Order is executed, and forward whatever balance remains of the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding month's income to the Clerk of the Court each time the amount in Phillips' account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3) DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
4) DISMISSES Plaintiff's Complaint sua sponte in its entirety for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1); and
5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete by itself without reference to his original pleading. Defendants not named and any claim not re-alleged in his Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not realleged in an amended pleading may be “considered waived if not repled.”).
If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action based on Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure to prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a district court may convert the dismissal of the complaint into dismissal of the entire action.”).
IT IS SO ORDERED.