Lucero v. Mayberg
| Decision Date | 25 January 2012 |
| Docket Number | No. CIV S-10-2132 GGH P,CIV S-10-2132 GGH P |
| Parties | RONALD J. LUCERO, Plaintiff, v. STEPHEN MAYBERG, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Plaintiff, committed to a state mental hospital, pursuant to Cal. Penal Code § 1026, having been found not guilty by reason of insanity in a criminal case, is proceeding pro se in a civil rights action. Pending before the court are: 1) a motion to dismiss, filed on March 3, 2011 (docket # 18), brought by defendants Benchman, Cate, DeMorales, Griffith, Holt, Knapp, Mayberg, Mills, Radavsky, Schwarzenegger, Vazquez,1 Walker and the State of California, to which plaintiff filed his opposition on May 2, 2011 (having been granted an extension of time), after which these defendants filed a reply on May 6, 2011; and 2) a motion to dismiss, filed on May 4, 2011 (docket # 23), brought by defendants County of San Luis Obispo, Patrick Hedges,Robert Thompson, and Kelly Kenitz, to which plaintiff filed an opposition on May 31, 2011. Plaintiff's Allegations
Plaintiff, who was involuntarily civilly committed to a state hospital pursuant to Cal. Pen. Code § 1026 when he was found not guilty by reason of insanity of a criminal offense, sets forth four (of five) claims regarding alleged violations of his Fourteenth Amendment rights and his rights as a mentally disabled person under the Americans with Disabilities Act (ADA) when he was, on March 17, 2009, while in the custody of the Department of Mental Health and Atascadero State Hospital (ASH), transferred first to San Luis Obispo County Jail (SLO CJ), then to the custody of the California Department of Corrections and Rehabilitation (CDCR) and placed in Wasco State Prison and then California State Prison-Sacramento (CSP-Sac) until his return to ASH on August 17, 2009 (some five months later). See Complaint. He asserts defendants were deliberately indifferent and showed willful disregard for Solano County Superior Court's jurisdiction with an improper custody transfer in violation of state and federal law and the ADA, regarding providing disabled "the most integrated and least restrictive setting"). See id. Plaintiff also makes a fifth claim of a violation of his due process rights and his rights under RLUIPA, based on an allegation that ASH employees intentionally destroyed plaintiff's personal property, containing numerous sacred Native American religious items while he had been transferred away. Id. Plaintiff seeks relief in the form of compensatory and punitive damages, declaratory and injunctive relief. Id.
Legal Standard for Motion to Dismiss.
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion[of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
In the first motion to dismiss, brought by thirteen of the defendants, Benchman, Cate, DeMorales, Griffith, Holt, Knapp, Mayberg, Mills, Radavsky, Schwarzenegger, Vazquez, Walker, in their individual and official capacities, and the State of California, in its official capacity, the following grounds are raised: 1) the State of California may not be sued under § 1983; 2) plaintiff failed to allege that any of the conditions of his confinement were punitive; 3) the conditions of plaintiff's confinement did not implicate a liberty interest; 4) there are sufficient post-deprivation remedies for the alleged unauthorized deprivation of his property available to plaintiff; 5) plaintiff failed to allege facts to show that any defendant deprived him of his right to equal protection; 6) plaintiff alleged no facts showing defendants knew or suspected another prisoner would attack him or that he needed mental health treatment; 7) plaintiff did not allege facts showing any defendant participated in any claimed violation of his constitutional rights; 8) defendants did not violate any constitutional right and are entitled to qualified immunity. Notice of Motion to Dismiss at dkt. # 18; Memorandum of Points and Authorities in Support of [First] Motion to Dismiss at docket # 18-1 (hereafter, MTD1), p. 2.
At the outset, the court observes that defendants correctly characterize plaintiff's claims as having been brought under the Fourteenth Amendment, the Americans with Disabilities Act, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). MTD1, p. 1.2 Defendants then make the erroneous leap that, upon screening, the undersigned only permitted plaintiff to proceed on his claims under § 1983. Id. However, plaintiff accuratelyavers that he has been permitted to proceed on all claims. First Opposition (Opp.1), p. 2. While the screening order, filed on October 6, 2010 (docket # 8) makes reference, in standardized language, to the complaint's having stated a cognizable claim pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b), there are no findings and recommendations recommending dismissal of any claims nor is there any order dismissing other allegations. In listing the State as a party, plaintiff asserts that he is suing for violations of his constitutional rights and his rights under the ADA. Complaint, p. 4. Moreover, and more tellingly, the court found the complaint appropriate for service upon the State as a defendant, which would not have occurred if plaintiff were proceeding against the state under § 1983, as it is without doubt that the Eleventh Amendment serves as a jurisdictional bar to 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 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). In his opposition, plaintiff, while he correctly contends that the State may be sued for violations of the Rehabilitation Act and Title II of the ADA, "in light of plaintiff[']s limited legal knowledge, in the interest of the court[']s economy...." also states "the plaintiff has no opposition to the State being dismissed as a named defendant if this court rules it appropriate." Opp.1, p. 4. In reply, defendants characterize this statement as a concession that this defendant should be dismissed. However, as defendants appear to have been confused as to what bases plaintiff was proceeding under, the court finds that the State of California should not be dismissed as a defendant with respect to plaintiff's ADA claims.
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 fromparticipation 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.
Under the ADA, plaintiff may bring a claim pursuant to Title II of...
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