(PS) Ellis v. County of El Dorado Mental Health Division

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 PETER JON ELLIS, No. 2:22-cv-0942 KJM DB PS 12 Plaintiff, 13 v. ORDER AND 14 COUNTY OF EL DORADO MENTAL FINDINGS AND RECOMMENDATIONS HEALTH DIVISION, [15] 16 Defendant. [17] 18 Plaintiff Peter Jon Ellis is proceeding in this action pro se. This matter was referred to the 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636 (b)(1). On June 1, 20 2022, plaintiff filed a complaint and motion to proceed in forma pauperis pursuant to 28 U.S.C. § 21 1915. (ECF No. 1.) On October 20, 2022, the complaint was dismissed with leave to amend. 22 (ECF No. 5.) On December 12, 2022, plaintiff filed a notice of voluntary dismissal resulting in 23 this action being closed. (ECF Nos. 6 & 7.) Plaintiff has now filed a request to reopen this 24 action, a request for an extension of time to file an amended complaint, and an amended 25 complaint. (ECF Nos. 8-11.) 26 Plaintiff’s request to reopen this action will be granted. However, the court is required to 27 screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915 (e)(2); 28 see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Here, plaintiff’s 1 amended complaint is deficient. Accordingly, for the reasons stated below, the undersigned will 2 recommend that plaintiff’s amended complaint be dismissed without further leave to amend.1 3 I. Plaintiff’s Application to Proceed In Forma Pauperis 4 Plaintiff’s in forma pauperis application makes the financial showing required by 28 5 U.S.C. § 1915 (a)(1). However, a determination that a plaintiff qualifies financially for in forma 6 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 7 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 8 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 9 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 10 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 11 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 12 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 13 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 14 District Court to examine any application for leave to proceed in forma pauperis to determine 15 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 16 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 17 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 18 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 19 state a claim on which relief may be granted, or seeks monetary relief against an immune 20 defendant. See 28 U.S.C. § 1915 (e)(2). A complaint is legally frivolous when it lacks an 21 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 22 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 23 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 24 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327 ; 28 U.S.C. § 1915 (e). 25 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 26 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , [27] 1 In this regard, the undersigned will screen the amended complaint and plaintiff’s request for an 28 extension of time to file an amended complaint will be granted nunc pro tunct. 1 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 2 true the material allegations in the complaint and construes the allegations in the light most 3 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 4 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242 , 1245 5 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 6 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 7 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 8 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 9 The minimum requirements for a civil complaint in federal court are as follows: 10 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 11 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 12 judgment for the relief the pleader seeks. 13 Fed. R. Civ. P. 8(a). 14 II. Plaintiff’s Amended Complaint 15 The allegations found in the amended complaint are difficult to decipher. Named as 16 defendants are a “Jane Doe Supervisor” and “Jane Done Subordinate” of the El Dorado County 17 Behavioral Health Department. (Am. Compl. (ECF No. 10) at 1-2.2) The amended complaint 18 alleges that plaintiff “is an ADA patient with a mental disability.” (Id.) “Another patient claimed 19 plaintiff was in possessions of a weapon on the grounds at the El Dorado County Behavior Health 20 Office.” (Id. at 3.) Plaintiff complains that “the employees did with deliberate indifference failed 21 to summon authorities, thus it was never proven that plaintiff actually had a ‘weapon[.]’” (Id.) 22 Instead, they apparently called the “Probation Department of where plaintiff was on 23 supervision[.]” (Id.) This somehow constituted “discrimination,” and the circumvention of “the 24 judicial function of proving false allegations[.]” (Id. at 3-4.) 25 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 26 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that [27] 2 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 system and not to page numbers assigned by the parties. 1 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 2 Community Redev. Agency, 733 F.2d 646 , 649 (9th Cir. 1984). “A pleading that offers ‘labels 3 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 4 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 5 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555 , 6 557). A plaintiff must allege with at least some degree of particularity overt acts which the 7 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 8 Here, the amended complaint fails to allege any act by any defendant that could support a 9 claim. The amended complaint attempts to assert a claim pursuant to 42 U.S.C. § 12132 , which 10 provides that: 11 . . . no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits 12 of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. [13] 14 In this regard, Title II of the Americans with Disabilities Act (“ADA”) prohibits a public 15 entity from discriminating against a qualified individual with a disability on the basis of 16 disability. 42 U.S.C. § 12132 (1994); Weinrich v. L.A. County Metro Transp. Auth., 114 F.3d 17 976, 978 (9th Cir.), cert. denied, 522 U.S. 971 (1997). 18 “Generally, public entities must ‘make reasonable modification in policies, practices, or 19 procedures when the modifications are necessary to avoid discrimination on the basis of 20 disability, unless the public entity can demonstrate that making the modifications would 21 fundamentally alter the nature of the service, program, or activity.’” Pierce v. County of Orange, [22] 526 F.3d 1190, 1215 (9th Cir. 2008) (quoting 28 C.F.R. § 35.130 (b)(7)). To state a claim under 23 Title II, the plaintiff must allege four elements: (1) the plaintiff is an individual with a disability; 24 (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public 25 entity's services, programs, or activities; (3) the plaintiff was either excluded from participation in 26 or denied the benefits by the public entity; and (4) such exclusion, denial of benefits or 27 discrimination was by reason of the plaintiff’s disability. Simmons v. Navajo County, Ariz, 609 28 //// 1 F.3d 1011, 1021 (9th Cir. 2010); McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2 2004); Weinrich, 114 F.3d at 978. 3 Furthermore, “[t]o recover monetary damages under Title II of the ADA, a plaintiff must 4 prove intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 5 F.3d 1124, 1138 (9th Cir. 2001). The standard for intentional discrimination is deliberate 6 indifference, “which requires both knowledge that a harm to a federally protected right is 7 substantially likely, and a failure to act upon that likelihood.” Id. at 1139 . For a claim under the 8 ADA to be successful, the plaintiff must both “identify ‘specific reasonable’ and ‘necessary’ 9 accommodations that the state failed to provide” and show that the defendant’s failure to act was 10 “a result of conduct that is more than negligent, and involves an element of deliberateness.” Id. at 11 1140. Although “[t]he ADA prohibits discrimination because of disability,” it does not provide a 12 remedy for “inadequate treatment for disability.” Simmons, 609 F.3d at 1022 (citing Bryant v. 13 Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be violated by a prison’s 14 simply failing to attend to the medical needs of its disabled prisoners . . . . The ADA does not 15 create a remedy for medical malpractice.”)). 16 Here, while plaintiff may argue that plaintiff was denied public services at the Behavioral 17 Health Center, the amended complaint alleges that was because a patient reported that plaintiff 18 had a weapon, not because plaintiff was disabled. (Am. Compl. (ECF No. 10) at 3.) The 19 amended complaint thus fails to state a claim for discrimination. 20 III. Further Leave to Amend 21 For the reasons stated above, plaintiff’s amended complaint should be dismissed. The 22 undersigned has carefully considered whether plaintiff could further amend the complaint to state 23 a claim upon which relief can be granted. “Valid reasons for denying leave to amend include 24 undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 25 Ceramics, 818 F.2d 1466 , 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath 26 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 27 be freely given, the court does not have to allow futile amendments). 28 //// 1 Here, given the defects noted above and plaintiff's inability to successfully amend the 2 | complaint, the undersigned finds that granting plaintiff further leave to amend would be futile. 3 CONCLUSION 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiff's December 22, 2022 request to disregard voluntary dismissal (ECF No. 8) is 6 | granted; 7 2. Plaintiff's December 22, 2022 motion for an extension to time to file an amended 8 | complaint (ECF No. 9) is granted; 9 3. Plaintiff's January 6, 2023 request to reopen (ECF No. 11) is granted; and 10 4. The Clerk of the Court shall reopen this case. 11 Also, IT IS HEREBY RECOMMENDED that: 12 1. Plaintiffs June 1, 2022 application to proceed in forma pauperis (ECF No. 2) be 13 || denied; 14 2. Plaintiff's December 22, 2022 amended complaint (ECF No. 10) be dismissed without 15 | further leave to amend; and 16 3. This action be closed. 17 These findings and recommendations will be submitted to the United States District Judge 18 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 19 | after being served with these findings and recommendations, plaintiff may file written objections 20 | with the court. A document containing objections should be titled “Objections to Magistrate 21 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 22 | the specified time may, under certain circumstances, waive the right to appeal the District Court’s 23 | order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 24 | Dated: February 12, 2023 [26] 27 | DLB:6 UNITED STATES MAGISTRATE JUDGE 8 DB/orders/orders.pro se/ellis0942.dism.f&rs