Packnett v. Alvarez et al

Northern District of California, cand-4:2015-cv-01229

ORDER by Judge Yvonne Gonzalez Rogers denying {{37}} Motion for Leave to File a Motion for Reconsideration.

Interested in this case?

Current View

Full Text

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 KENNETH JEROME PACKNETT, 4 Case No. 15-cv-01229-YGR (PR) Plaintiff, 5 ORDER DENYING MOTION FOR v. LEAVE TO FILE A MOTION FOR 6 RECONSIDERATION FERNAND ALVAREZ, et al., 7 Defendants. 8 9 The following background is taken from the Court's July 10, 2015 Order: 10 Plaintiff, a state prisoner currently incarcerated at the R. J. Donovan Correctional Facility ("RJDCF"), has filed a pro se civil rights 11 action pursuant to 42 U.S.C. § 1983. He alleges that Defendants violated his constitutional rights while he was housed at San 12 Quentin State Prison ("SQSP") from November through December Northern District of California United States District Court 2012. Plaintiff, who claims he suffers from mobility impairment 13 and severe back disorder, alleges numerous claims stemming from his November 2012 sub-facility transfer from H-Unit Facility B to 14 South Block without any classification committee hearing prior to the transfer. The alleged constitutional violations at SQSP ended on 15 December 26, 2012, which is the date that Plaintiff was transferred from SQSP to RJDCF, with layovers at the California Training 16 Facility and the California Institution for Men ("CIM"). Plaintiff seeks monetary and punitive damages as well as declaratory relief. 17 18 Dkt. 5 at 1. In his complaint, Plaintiff named the following Defendants at SQSP: Doctors Fernand 19 Alvarez and Alison Pachynski; Correctional Counselors B. Martin and F. Gray; Acting Facility 20 Captain V. Wiggins; Classification Staff Representative B. Powell; Appeals Coordinators S. Hays 21 and M. L. Davis. 22 The Court screened Plaintiff's complaint and recognized claims for deliberate indifference 23 to serious medical needs, retaliation, due process, and various state law violations. See id. at 3-10. 24 The Court dismissed Plaintiff's disability discrimination claim against Defendants Alvarez, 25 Pachynski, Martin, Wiggins, Gray, and Powell with prejudice. Id. at 11. However, the Court 26 granted Plaintiff leave to file an amendment to the complaint for the limited purpose of bringing a 27 disability discrimination claim against SQSP and the California Department of Corrections and 28 Rehabilitation ("CDCR"), which he filed on October 1, 2015. Dkt. 21. 1 On October 1, 2015, Plaintiff filed his amendment to the complaint. Dkt. 21. 2 On October 22, 2015, Defendants filed a Request to Strike Plaintiff's Amendment to the 3 Complaint or, Alternatively, Request for Screening Order. Dkt. 22. 4 On April 20, 2016, the Court denied Defendants' request to strike and granted their request 5 for a screening order, and dismissed Plaintiff's disability discrimination claims without further 6 leave to amend. Dkt. 33. 7 On May 11, 2016, Plaintiff filed a motion for reconsideration of the Court's dismissal 8 of the disability discrimination claims. Dkt. 37. The Court will construe his request as a motion 9 for leave to file a motion for reconsideration pursuant to Local Rule 7-9(a).1 See Civil L.R. 7-9(a). 10 Defendants have filed an opposition to Plaintiff's motion, and Plaintiff has filed a reply. Dkts. 38, 11 58. 12 For the reasons outlined below, the Court DENIES Plaintiff leave to file a motion for Northern District of California United States District Court 13 reconsideration of the Court's dismissal of his disability discrimination claims. 14 DISCUSSION 15 In the Northern District of California, Local Rule 7-9 allows for the filing of motions for 16 reconsideration only with respect to interlocutory orders made in a case prior to the entry of final 17 judgment. Civil L.R. 7-9(a). No pre-judgment motion for reconsideration under Local Rule 7-9 18 may be brought without leave of court. Id. The moving party must specifically show: (1) that at 19 the time of the motion for leave, a material difference in fact or law exists from that which was 20 presented to the court before entry of the interlocutory order for which the reconsideration is 21 sought, and that in the exercise of reasonable diligence the party applying for reconsideration did 22 not know such fact or law at the time of the interlocutory order; (2) the emergence of new material 23 facts or a change of law occurring after the time of such order; or (3) a manifest failure by the 24 25 1 Plaintiff has also requested "a thirty day continuance, [or] fourteen days since time is of 26 the essence to complete this brief." Dkt. 37 at 4. However, Plaintiff's request is conclusory, and it is not supported with any reasons as to why a continuance is necessary. Moreover, Plaintiff has 27 since requested to file an untimely reply to Defendants' opposition to his motion for reconsideration, and such a request was granted. Dkt. 57 at 2. Plaintiff's reply (dkt. 58) has been 28 considered by the Court in its analysis of the motion at issue. Therefore, Plaintiff's motion for a continuance is DENIED as moot. Dkt. 37. 2 1 court to consider material facts which were presented to the court before such interlocutory order. 2 Civil L.R. 7-9(b). Unless otherwise ordered by the court, no response need be filed to a motion 3 under the Local Rule. Civil L.R. 7-9(c). 4 In the instant motion for leave to file a motion for reconsideration, Plaintiff has not shown 5 that a material difference in fact or law exists, or that there has been an emergence of new facts or 6 a change in the law. Though not entirely clear, Plaintiff appears to argue that there was a failure 7 by the Court to consider material facts. He argues that he has been excluded from a certain 8 program called the "Patton College Program [which is] an accredited program that accepts college 9 credit for inmates seeking their AA degree." Dkt. 58 at 2. However, the Court has reviewed 10 Plaintiff's amended claim and finds that his allegations do not correct the pleading deficiencies of 11 his disability discrimination claims, as explained below. 12 Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.§ 12101 et seq., Northern District of California United States District Court 13 and Section 504 of the Rehabilitation Act of 1973, as amended and codified in 29 U.S.C. § 794(a), 14 prohibit discrimination on the basis of disability in the programs, services or activities of a public 15 entity. The elements of a cause of action under Title II of the ADA are: (1) that the plaintiff is a 16 qualified individual with a disability; (2) that the plaintiff was either excluded from participation 17 in or denied the benefits of a service, program, or activity of a public entity, or was otherwise 18 discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or 19 discrimination was by reason of disability. Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th 20 2001); 42 U.S.C. § 12132. A cause of action under Section 504 of the Rehabilitation Act 21 essentially parallels an ADA cause of action. See Olmstead v. Zimring, 119 S. Ct. 2176, 2182 22 (1999); Duvall, 260 F.3d at 1135. 23 In its July 10, 2015 Order, the Court stated as follows: 24. . . Plaintiff claims that he suffers from a mobility impairment and severe back disorder, and he claims that he is 25 identified as a "handicapped person as set forth in the Armstrong Remedial Plan."2 Dkt. 1 at 4. Plaintiff alleges that the 26 27 2 Armstrong v. Brown, Case No. C 94-2307 CW ("Armstrong"), is a class action in this 28 district concerning disability accommodations for prisoners and parolees in the CDCR. The Armstrong court-ordered Remedial Plan as amended January 3, 2001 ("Armstrong Remedial 3 aforementioned Defendants at SQSP discriminated against his 1 disability by denying him "an individual determination under the Armstrong Remedial Plan in [the] H-Unit of Facility B, which 2 required housing placement in an institution best suited to accommodate his medical needs." Id. Plaintiff adds that he is 3 "otherwise qualified and prison officials['] action excluded him from participation in an H-Unit, Facility B Unit Classification 4 Committee Hearing ("UCC"), prior to an improper sub-facility transfer and retaliatory prison to prison transfer." Id. He also 5 alleges that Defendants Alvarez, Pachynski, Martin, Wiggins, Gray and Powell discriminated against his disability by exposing him to 6 "an Extended Travel by State Transportation Bus" during which he was "injured" due to his "significant back disorder." Id. at 57. 7 Dkt. 5 at 4 (footnote in original). Plaintiff's disability discrimination claims were initially 8 dismissed on the grounds that he did not allege the remaining two elements of a cognizable ADA 9 claim, specifically that he has been excluded from participating in a prison program or service, and 10 such exclusion is by reason of his disability. Id. at 6. 11 Thereafter, Plaintiff filed an amendment to the complaint, which the Court screened 12 Northern District of California in its April 20, 2016 Order. See Dkt. 33. The Court noted that in his amendment to the complaint, United States District Court 13 Plaintiff "filed his amended disability discrimination claim against SQSP and the CDCR." Id. at 5 14 (citing Dkt. 21 at 4-5). The Court further explained that Plaintiff stated as follows: 15 16. On October 17, 2011, Plaintiff was diagnosed with a 16 "Mobility Impairment," Chronic Lower Extremity Weakness. . . ambulatory with a cane. On June 3, 2011, Plaintiff was diagnosed 17 with "Severe Canal Stenosis, Severe Bilateral Disk Disease with Foraminal narrowing with Nerve Root Impingement.["] Including 18 Degenerative changes at multiple levels of Lumbar Spine. Exhibit B, Attachment VIII. Medical Chrono's indicated no prolonged 19 sitting, no stooping or bending over, identifying Plaintiff as "Mobility Impaired." (walking is a major life activity). Plaintiff 20 was qualified to participate in every program or service held in H- Unit, including "Classification Hearing.["] 21 17. Plaintiff was arbitrarily excluded from participating in H- 22 Unit Classification Committee Hearing by a non-treating physician from outside of H[-]Unit who increased disability level without 23 Notice, Warning or consult with one of the Plaintiff's primary care physicians. Every part of H-Unit was accessible to individuals with 24 disabilities, and upon information and belief [SQSP] and [the CRCD] both receive federal funding. At that time, Plaintiff was 25 housed in H-Unit, Facility B, a general population low security unit 26 27 Plan") requires the CDCR "to ensure that prisoners and parolees with disabilities are accessibly housed, that they are able to obtain and keep necessary assistive devices, and that they receive 28 effective communication regarding accommodations." Armstrong v. Brown, Case No. 94-2307 CW, ECF No. 1974 (order filed January 13, 2012). 4 at SQSP. Plaintiff's medical needs are complex and involved three 1 (3) treating physicians, one primary care physician and two specialist[s]; Dr. Clarene David, M.D. (P&S); Dr. Denise Ricker, 2 M.D.[,] Nephrologist; and Dr. John Panagotacos, M.D., Neurologist. 3 Id. The Court determined that Plaintiff "seem[ed] to raise the same conclusory allegations that he 4 made in his original complaint, including that he was discriminated against because of his 5 disability." Id. at 6. In addition to the aforementioned allegations, the Court further noted that 6 Plaintiff also stated as follows: 7 Plaintiff is an individual diagnosed with a severe mobility impairment along with a degenerative back disorder; but was 8 otherwise qualified to [be a] participant in H-Unit Program & Classification Hearing. Plaintiff was excluded and denied the 9 benefits of San Quentin H-Unit services, activities, and Classification Hearing. Such exclusion was based on an increase in 10 mobility impairment level, (allegedly because he could not do stairs) which was by reason of his disability. Plaintiff was treated 11 differently than all other non-disabled prisoner housed in H-Unit. 12 Id. (citing Dkt. 21 at 7). However, the Court found that Plaintiff's conclusory allegations in his Northern District of California United States District Court 13 amendment to his complaint "d[id] not describe the 'H-Unit services [and] activities' that he was 14 allegedly denied and fail[ed] to explain whether he was denied similar services and activities after 15 his transfer to South Block at SQSP." Id. at 7 (citing Dkt. 21 at 7, 10-11). Therefore, the Court 16 dismissed the disability discrimination claims upon determining that "while Plaintiff name[d] the 17 proper Defendants, he ha[d] failed to state a cognizable disability discrimination claim against 18 SQSP and the CDCR." Id. 19 In the present motion, Plaintiff now attempts to indicate that he was denied the right to 20 participate in the "Patton College Program." Dkt. 58 at 2. However, it seems that Plaintiff was 21 not denied such a right but was merely transferred further from the program, i.e., to "South 22 Block," which is "located on the upper yard," while "Patton College was on the lower yards." Id. 23 Plaintiff complains that he was then "exposed. . . to having [to] navigate those lower yard-upper 24 yard stairs at a minimum of 4 to 6 times a day." Id. Thus, the Court finds that Plaintiff has failed 25 to show that he was excluded from the "Patton College Program." Even if Plaintiff could 26 successfully show that he was excluded from participating in such a program, he still fails to show 27 that such exclusion was by reason of his disability. Lastly, the Court finds that Plaintiff's 28 allegations in the present motion are conclusory and do not otherwise require reconsideration. 5 1 In sum, Plaintiff's allegations in his motion for leave to file a motion for reconsideration 2 fail to show that there was "manifest failure by the court to consider material facts which were 3 presented to the court." See Civil L.R. 7-9(b). 4 Accordingly, Plaintiff has not established grounds for reconsideration, and his motion for 5 leave to file a motion for reconsideration is DENIED. Dkt. 37. 6 This Order terminates Docket No. 37. 7 IT IS SO ORDERED. 8 Dated: November 23, 2016 9 ______________________________________ YVONNE GONZALEZ ROGERS 10 United States District Judge 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6