Packnett v. Alvarez et al

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

ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part {{22}} Motion to Strike; Screening Plaintiff's Amendment to the Complaint; and Setting New Briefing Schedule.

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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 GRANTING IN PART AND v. DENYING IN PART DEFENDANTS' 6 PENDING MOTION; SCREENING FERNAND ALVAREZ, et al., PLAINTIFF'S AMENDMENT TO THE 7 COMPLAINT; AND SETTING NEW Defendants. BRIEFING SCHEDULE 8 9 I. BACKGROUND 10 This is a civil rights action filed by Plaintiff Kenneth Jerome Packnett, a state prisoner 11 currently incarcerated at the R. J. Donovan Correctional Facility ("RJDCF"), in which he alleged 12 Northern District of California that Defendants violated his constitutional rights while he was housed at San Quentin State Prison United States District Court 13 ("SQSP") from November through December 2012. Plaintiff, who claims he suffers from severe 14 mobility impairment, alleges numerous claims stemming from his November 2012 sub-facility 15 transfer from H-Unit Facility B to South Block without any classification committee hearing prior 16 to the transfer. The alleged constitutional violations at SQSP ended on December 26, 2012, which 17 is the date that Plaintiff was transferred from SQSP to RJDCF, with layovers at the California 18 Training Facility and the California Institution for Men ("CIM"). Plaintiff seeks monetary and 19 punitive damages as well as declaratory relief. 20 In his original complaint, Plaintiff named the following Defendants at SQSP: Doctors 21 Fernand Alvarez and Alison Pachynski; Correctional Counselors B. Martin and F. Gray; Acting 22 Facility Captain V. Wiggins; Classification Staff Representative B. Powell; Appeals Coordinators 23 S. Hays and M. L. Davis. He also named the following Defendants at CIM: Associate Warden D. 24 King; Chief Deputy Warden M. M. Hill; Appeal Examiner R. Briggs; and Warden "John Doe." 25 Finally, he named the following Defendants in relation to his claims at RJDCF: Warden Daniel 26 Paramo; Doctors G. Casian, K. Seeley, Robert Medrano and J. Nickolic; Third Level of Appeals 27 Chief J. D. Lozano; and Office of Appeals Chief L. D. Zamora. 28 1 In an Order dated July 10, 2015, the Court screened Plaintiff's original complaint and 2 ordered as follows: 3 1. Plaintiff's claims relating to all problems during his incarceration at CIM were 4 dismissed without prejudice to Plaintiff refiling them in a new civil rights action in the Eastern 5 Division of the United States District Court for the Central District of California. 6 2. Plaintiff's claims relating to all problems during his incarceration at RJDCF were dismissed without prejudice to Plaintiff refiling them in a new civil rights action in the United 7 States District Court for the Southern District of California. 8 3. Plaintiff's disability discrimination claim against Defendants Alvarez, Pachynski, 9 Martin, Wiggins, Gray and Powell, who are individual prison officials, were dismissed with prejudice. If Plaintiff had chosen instead to name SQSP and the CDCR as Defendants, then his 10 ADA and Section 504 claims against these public entitles would have been dismissed with leave to amend. Plaintiff was directed that he may file an amended disability discrimination claim 11 within twenty-eight days of the Court's July 10, 2015 Order. Plaintiff was instructed that he "shall 12 resubmit only that claim and not the entire complaint." He was further instructed that the Northern District of California amended claim must be submitted on an amendment to the complaint, that it must include the United States District Court 13 caption as well as the civil case number of this action (C 15-1229 YGR (PR)), and that it must include the words "AMENDMENT TO THE COMPLAINT" on the first page. Plaintiff was 14 warned that the failure to do so would result in the dismissal without prejudice of Plaintiff's disability discrimination claim. 15 16 4. Plaintiff stated a cognizable Eighth Amendment claim for deliberate indifference to serious medical needs against Defendants Alvarez, Pachynski, Martin, Wiggins, Gray and Powell. 17 5. Plaintiff's claim of conspiracy against Defendants Alvarez, Martin, Wiggins, and 18 Gray was dismissed without prejudice. 19 6. Plaintiff stated a cognizable First Amendment retaliation claim against Defendants 20 Alvarez, Martin, Wiggins, and Gray. 21 7. Plaintiff's claims relating to a violation of his rights under the Armstrong Remedial Plan were dismissed without prejudice. 22 8. Plaintiff stated a cognizable due process claim relating to the prison grievance 23 system again Defendants Hays and Davis. 24 9. The Court exercised supplemental jurisdiction over Plaintiff's state law claims. 25 See Dkt. 5 at 11-12. 26 The Court then directed the Clerk to serve the complaint and issued a briefing schedule for 27 28 2 1 the served Defendants to file a dispositive motion. See id. at 12-15. 2 On August 14, 2015, Plaintiff filed a request for an extension of time to file his amendment 3 to the complaint. Dkt. 12. 4 In an Order dated August 26, 2015, the Court granted Plaintiff's request for an extension of 5 time, and directed Plaintiff to file his amendment to the complaint no later than twenty-eight days 6 from the date of this Order. Dkt. 15. Plaintiff was again instructed that he may amend only the 7 disability discrimination claim and not the entire complaint. Id. at 1. 8 On September 11, 2015, Defendants Wiggins, Alvarez, Pachynski, Gray, Davis, and 9 Martin answered Plaintiff's complaint. Dkt. 17. 10 On September 29, 2015, Defendant Hay answered the complaint. Dkt. 19. 11 On October 1, 2015, Plaintiff filed his Amendment to the Complaint. Dkt. 21. 12 Northern District of California On October 22, 2015, Defendants filed a Motion to Strike Plaintiff's Amendment to the United States District Court 13 Complaint on the grounds that it was untimely under Rule 12(f) of the Federal Rules of Civil 14 Procedure. Dkt. 22. In the alternative, Defendants request that the Court screen Plaintiff's 15 Amendment to the Complaint under 28 U.S.C. § 1915A. Id. at 3-4. Defendants also filed a 16 motion for an extension of time to file a dispositive motion. Dkt. 23. 17 On November 6, 2015, Plaintiff filed a response to Defendants' motion to strike. Dkt. 27. 18 In an Order dated December 4, 2015, the Court granted Defendants' motion for an 19 extension of time to file a dispositive motion up to twenty-eight days after it rules on Defendants' 20 pending Motion to Strike Plaintiff's Amendment to the Complaint. Dkt. 30. 21 On January 19, 2016, Defendant Powell answered the complaint. Dkt. 32. 22 II. DISCUSSION 23 A. Defendants' Motion to Strike 24 Defendants move the Court to strike Plaintiff's Amendment to the Complaint as untimely 25 under Rule 12(f) of the Federal Rules of Civil Procedure. Dkt. 22. Defendants claim that 26 Plaintiff's Amendment to the Complaint was due on August 7, 2015, which was twenty-eight days 27 28 3 1 after the Court's July 10, 2015 Order. Id. at 3. However, the Court notes that because Plaintiff 2 had been granted an extension of time in its August 26, 2015 Order, his Amendment to the 3 Complaint was due twenty-eight days after August 26, 2015, or on September 23, 2015. Dkt. 15 4 at 1. Plaintiff's Amendment to the Complaint was signed on September 26, 2015, and thus it is 5 deemed filed as of that date pursuant to the mail box rule. See Douglas v. Noelle, 567 F.3d 1103, 6 1109 (9th Cir. 2009) (recognizing that the mailbox rule applies to the filing of a federal civil rights 7 complaint). Because Plaintiff is a pro se prisoner, and his Amendment to the Complaint was filed 8 only three days after the due date, the Court finds that it was timely filed. Therefore, the Court 9 DENIES Defendants' Motion to Strike Plaintiff's Amendment to the Complaint as untimely. Dkt. 10 22. 11 B. Review of Amended Disability Discrimination Claim 12 Northern District of California The Court GRANTS Defendant's alternate request to screen Plaintiff's Amendment to the United States District Court 13 Complaint under 28 U.S.C. § 1915A. Dkt. 22. 14 First, the Court notes that it only gave Plaintiff leave to amend his disability discrimination 15 claim; therefore, it will only review the allegations relating to that claim in his Amendment to the 16 Complaint. All other claims will not be reviewed, including the re-alleged disability 17 discrimination claims against Defendants Alvarez, Pachynski, Martin, Wiggins, Gray and Powell 18 which have been previously dismissed with prejudice in the Court's July 10, 2015 Order. Dkt. 5 19 at 4. 20 A federal court must engage in a preliminary screening of any case in which a prisoner 21 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 22 U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which 23 are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary 24 relief from a defendant who is immune from such relief. See 28 U.S.C. §1915A(b)(1),(2). 25 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 26 right secured by the Constitution or laws of the United States was violated and (2) that the 27 28 4 1 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 2 U.S. 42, 48 (1988). 3 In his Amendment to the Complaint, Plaintiff has filed his amended disability 4 discrimination claim against SQSP and the CDCR. Dkt. 21 at 4-5. Plaintiff states as follows: 5 16. On October 17, 2011, Plaintiff was diagnosed with a 6 "Mobility Impairment," Chronic Lower Extremity Weakness. . . ambulatory with a cane. On June 3, 2011, Plaintiff was diagnosed 7 with "Severe Canal Stenosis, Severe Bilateral Disk Disease with Foraminal narrowing with Nerve Root Impingement.["] Including 8 Degenerative changes at multiple levels of Lumbar Spine. Exhibit B, Attachment VIII. Medical Chrono's indicated no prolonged 9 sitting, no stooping or bending over, identifying Plaintiff as "Mobility Impaired." (walking is a major life activity). Plaintiff 10 was qualified to participate in every program or service held in H- Unit, including "Classification Hearing.["] 11 17. Plaintiff was arbitrarily excluded from participating in H- 12 Unit Classification Committee Hearing by a non-treating physician Northern District of California United States District Court from outside of H[-]Unit who increased disability level without 13 Notice, Warning or consult with one of the Plaintiff's primary care physicians. Every part of H-Unit was accessible to individuals with 14 disabilities, and upon information and belief [SQSP] and [the CRCD] both receive federal funding. At that time, Plaintiff was 15 housed in H-Unit, Facility B, a general population low security unit at SQSP. Plaintiff's medical needs are complex and involved three 16 (3) treating physicians, one primary care physician and two specialist[s]; Dr. Clarene David, M.D. (P&S); Dr. Denise Ricker, 17 M.D.[,] Nephrologist; and Dr. John Panagotacos, M.D., Neurologist. 18 Id. 19 Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.§ 12101 et seq., 20 and Section 504 of the Rehabilitation Act of 1973, as amended and codified in 29 U.S.C. § 794(a), 21 prohibit discrimination on the basis of disability in the programs, services or activities of a public 22 entity. The elements of a cause of action under Title II of the ADA are: (1) that the plaintiff is a 23 qualified individual with a disability; (2) that the plaintiff was either excluded from participation 24 in or denied the benefits of a service, program, or activity of a public entity, or was otherwise 25 discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or 26 discrimination was by reason of disability. Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th 27 2001); 42 U.S.C. § 12132. A cause of action under Section 504 of the Rehabilitation Act 28 5 1 essentially parallels an ADA cause of action. See Olmstead v. Zimring, 119 S. Ct. 2176, 2182 2 (1999); Duvall, 260 F.3d at 1135. 3 In his Amendment to the Complaint, Plaintiff seems to raise the same conclusory 4 allegations that he made in his original complaint, including that he was discriminated against 5 because of his disability. In addition to the aforementioned allegations, Plaintiff also states as 6 follows: 7 Plaintiff is an individual diagnosed with a severe mobility 8 impairment along with a degenerative back disorder; but was otherwise qualified to [be a] participant in H-Unit Program & 9 Classification Hearing. Plaintiff was excluded and denied the benefits of San Quentin H-Unit services, activities, and 10 Classification Hearing. Such exclusion was based on an increase in mobility impairment level, (allegedly because he could not do stairs) 11 which was by reason of his disability. Plaintiff was treated differently than all other non-disabled prisoner housed in H-Unit. 12 Northern District of California Dkt. 21 at 7. Even after being directed to do so, Plaintiff does not specifically allege how he was United States District Court 13 treated differently than similarly-situated non-disabled inmates, and he does not elaborate on his 14 conclusory allegation that he was excluded from participation in "H-Unit services [and] activities" 15 because of his disability. Plaintiff's allegations lack the specifics required for an ADA or 16 Rehabilitation Act claim, such as a description of the "public services, programs, and activities" 17 that Plaintiff was allegedly denied. Instead, Plaintiff only specifically alleges that he was excluded 18 and denied the benefits of "H-Unit Classification Committee Hearing." Dkt. 21 at 5. However, 19 the Court has previously found that Plaintiff had stated a cognizable Eighth Amendment claim 20 relating to deliberate indifference to his serious medical needs by Defendants Alvarez, Pachynski, 21 Martin, Wiggins, Gray and Powell for "increasing his mobility restrictions and causing his transfer 22 from H-Unit Facility B to South Block without any classification committee hearing prior to the 23 transfer." Dkt. 5 at 6. 24 In sum, in his attempt to amend his disability discrimination claim, Plaintiff indicates he 25 suffers from a disability relating to his "sever mobility impairment," but he fails to describe how 26 he was denied equal access to prison services, programs, or activities as a result of his disability. 27 28 6 1 As explained above, Plaintiff's conclusory allegations do not describe the "H-Unit services [and] 2 activities" that he was allegedly denied and fails to explain whether he was denied similar services 3 and activities after his transfer to South Block at SQSP. See id. at 7, 10-11. Therefore, while 4 Plaintiff names the proper Defendants, he has failed to state a cognizable disability discrimination 5 claim against SQSP and the CDCR. 6 Accordingly, Plaintiff's ADA and Section 504 claims against SQSP and the CDCR are 7 DISMISSED without further leave to amend. 8 III. CONCLUSION 9 For the foregoing reasons, the Court orders as follows: 10 1. Defendants' pending motion is DENIED in part and GRANTED in part. Dkt. 22. 11 Specifically, Defendants' Motion to Strike Plaintiff's Amendment to the Complaint is DENIED, 12 Northern District of California and their Alternative Request for Screening Order Under 28 U.S.C. § 1915A is GRANTED. United States District Court 13 2. The Court has screened Plaintiff's Amendment to the Complaint only as to 14 Plaintiff's ADA and Section 504 claims against SQSP and the CDCR, which are DISMISSED 15 without further leave to amend. All other claims in the Amendment to the Complaint were not 16 reviewed, and as mentioned above, Plaintiff's disability discrimination claims against Defendants 17 Alvarez, Pachynski, Martin, Wiggins, Gray and Powell have previously been DISMISSED with 18 prejudice. 19 3. The parties shall abide by the following briefing schedule: 20 a. No later than twenty-eight (28) days from the date of this Order, 21 Defendants shall file their dispositive motion; 22 b. Plaintiff shall file his opposition within twenty-eight (28) days of the filing 23 of Defendants' dispositive motion; and 24 c. Defendants' reply brief must be filed within fourteen (14) days of the filing 25 of Plaintiff's opposition. Absent further order, the motion will be deemed submitted when the 26 reply is filed. 27 28 7 1 4. Extensions of time are not favored, though reasonable extensions will be granted. 2 Any motion for an extension of time must be filed no later than fourteen (14) days prior to the 3 deadline sought to be extended. 4 5. This Order terminates Docket No. 22. 5 IT IS SO ORDERED. 6 Dated: April 20, 2016 7 ______________________________________ 8 YVONNE GONZALEZ ROGERS United States District Judge 9 10 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 8