Case 2:22-cv-08126-SB-E Document 5 Filed 11/22/22 Page 1 of 12 Page ID #:18

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DONOVAN LAMONTE HALEY, ) NO. CV 22-8126-SB(E) ) 12 Plaintiff, ) ) 13 v. ) ORDER DISMISSING COMPLAINT ) 14 CALIF. DEPT. OF REHAB., ) WITH LEAVE TO AMEND et al., ) 15 ) Defendants. ) 16 ______________________________) 17 18 For the reasons discussed below, the Complaint is dismissed with 19 leave to amend. See 28 U.S.C. § 1915(e)(2)(B)(ii). 20 21 BACKGROUND 22 23 Plaintiff, proceeding in forma pauperis, filed a pro se civil 24 rights Complaint on November 4, 2022. Defendants are: (1) the 25 California Department of Rehabilitation (“Department”); and (2) 26 Department employee Isabel Lee, sued in her official and individual 27 capacities. Plaintiff purports to allege claims for asserted 28 violations of: (1) the First Amendment; (2) Titles I and II of the Case 2:22-cv-08126-SB-E Document 5 Filed 11/22/22 Page 2 of 12 Page ID #:19

1 Americans With Disabilities Act, 42 U.S.C. section 12101 et seq.; 2 (3) section 504 of the Rehabilitation Act, 29 U.S.C. section 794; and 3 (4) California Civil Code sections 51 and 54.1 4 5 Plaintiff alleges: 6 7 Plaintiff is an African-American man with an 8 unspecified mental disability (Complaint, p. 9). Plaintiff, 9 who lives below the federal poverty guidelines, qualifies 10 for Defendants’ “services and programs” under Defendants’ 11 rules, regulations and policies (id., p. 5). Defendants 12 have a duty to assist all disabled African-Americans in 13 California who request aid (id.). 14 15 In June of 2020, Plaintiff sought from Defendants 16 information concerning the status of an application for 17 access to programs and services under Defendants’ “self- 18 employment program” (id., p. 3). Defendants ignored 19 Plaintiff by “failing to follow up” (id.). 20 21 In July of 2020 Plaintiff again contacted Defendants 22 concerning the status of his application and sought access 23 to services (id.). Although Plaintiff then was told he 24 would be contacted within a week, Defendants again “failed 25 26 1 Plaintiff references California Civil Code sections “51, 54-55.2” (Complaint, p. 10). This reference includes 27 numerous provisions having nothing to do with Plaintiff’s factual 28 allegations. The Court discusses Plaintiff’s apparent claims under section 51 and section 54 below. 2 Case 2:22-cv-08126-SB-E Document5 Filed 11/22/22 Page3of12 Page ID #:20

1 to follow up” (id.). 3 By letter and email, Plaintiff filed a complaint with a 4 supervisor at Defendants’ Los Angeles District Headquarters 5 (id.). Plaintiff was told he did not need to “continue the 6 complaint” because Defendants “would take care of the issue 7 internally” and “Plaintiff would receive access to specific 8 programs and services” (id.). Plaintiff refused to withdraw 9 the complaint based on Defendants’ “pattern” of failing to 10 follow up (id.). 11 12 On August 10, 2020, an employee of Defendants emailed 13 Plaintiff regarding “a virtual job fair,” which had 14 “absolutely nothing to do with Plaintiff’s original 15 application to have access to funding, tools, uniforms, 16 transportation funds, etc. under the self employment program 17 and other services requested” (id., p. 4). 18 19 On August 17, 2020, Plaintiff called Defendants at the 20 Department’s Long Beach office to inquire regarding the 21 status of his application (id.). Defendant Lee, acting in 22 her official capacity, told Plaintiff that she would 23 facilitate Plaintiff’s request “as soon as time would 24 permit” (id.). “As of today,”[*] Plaintiff’s application 25 has not been processed and Plaintiff has not received 26 services (id.). 27 |; —_——— 28 This reference apparently means September 3, 2022 (see Complaint, p. 7).

Case 2:22-cv-08126-SB-E Document5 Filed 11/22/22 Page4of12 Page |ID#:21

1 On March 7, 2021, Defendant Lee called Plaintiff 2 regarding his application for the self-employment program 3 and services, and requested a “business plan” (id.). On 4 June 22, 2021, Plaintiff emailed the requested information 5 to Defendants, and verified Defendants’ receipt thereof 6 (id.). 8 On June 23, 2021, Plaintiff called Defendants again 9 (id., p. 5). Defendant Lee asked Plaintiff if he had filed 10 a complaint (id.). Plaintiff said that he had done so and 11 that he was “only seeking access to programs and services” 12 (id.). Lee said she would follow up with a phone call ina 13 day or two (id.). “As of today,” Plaintiff has not received 14 any such follow up (id.). 15 16 “On July 12, 2021, [Plaintiff] provided all documents 17 requested of me by the Defendants. However, Defendants have 18 continuously ignored Plaintiff” (id., p. 8). 19 20 On July 19, 2021, Plaintiff called Defendants again 21 inquiring into his application, but Plaintiff was ignored 22 (id.). On October 11, 2021, Plaintiff again contacted 23 Defendants, “to no avail” (id.). 24 25 On February 18, 2022, Plaintiff again contacted 26 Defendants and specifically requested services “as an 27 African-American disabled person” (id.). Plaintiff was told 28 that there was no assistance for African-American disabled

Case 2:22-cv-08126-SB-E Document5 Filed 11/22/22 Page5of12 Page ID #:22

1 people and that Plaintiff “needed to check with [his] local 2 NAACP chapter” (id.). “As of today,” Defendants continue to 3 ignore Plaintiff’s request for services (id., p. 9). 5 Plaintiff was “denied access to all services and 6 programs in violation of well established state and federal 7 law” (id.). Defendants “exercised a pattern” of 8 disregarding Plaintiff’s application “in violation of 9 current well established state and federal law” (id.). 10 Defendants used Plaintiff’s race and “disability of mental 11 iliness” to deny Plaintiff access to “all services and 12 programs in violation of current well established state and 13 federal law” (id.). Defendants have no rules, regulations 14 or policies precluding Plaintiff from access to the programs 15 and services he requested (id., p. 10s). 16 17 Defendants denied Plaintiff access to programs and 18 services in retaliation for Plaintiff’s filing of a formal 19 complaint, in violation of the First Amendment (id.). 20 Defendants also violated the ADA, the Rehabilitation Act, 21 and California Civil Code sections 51 and “54-55.2" (id.). 22 23 Plaintiff seeks the following relief: (1) a “declaration order 24] pursuant to all laws enjoyed by the public”; (2) “injunctive relief 25] granting Plaintiff access to program [sic] and services”; (3) a “daily 26] fine” against both Defendants in the sum of $150/day; (4) compensatory 27) damages in the sum of $250,000; and (5) punitive damages in the sum of 28] $250,000 (id., p. 12).

Case 2:22-cv-08126-SB-E Document5 Filed 11/22/22 Page6of12 Page |ID#:23

1 DISCUSSION 3 Plaintiff may not sue the Department, a state agency,*® in this 4] Court. “[I]n the absence of consent a suit in which the State or one 5] of its agencies or departments is named as the defendant is proscribed 6] by the Eleventh Amendment. This jurisdictional bar applies regardless 7] of the nature of the relief sought.” Pennhurst State Sch. & Hosp. v. 8|| Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not abrogate 9] Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332, 10} 344-45 (1979) (footnote omitted). California has not waived its 11] Eleventh Amendment immunity with respect to section 1983 claims. 12] Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009) 13] (citations omitted); Dittman v. State of Cal., 191 F.3d 1020, 1025 14] (9th Cir. 1999), cert. denied, 530 U.S. 1261 (2000). The Eleventh 15] Amendment also bars suits in federal court for damages against a state 16] official, such as Defendant Lee, sued in her official capacity. See 17] Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Mitchell 18] v. Wash., 818 F.3d 436, 442 (9th Cir. 2016); Avila v. State of Cal., 197 2021 WL 518710, at *3-4 (C.D. Cal. Jan. 4, 2021), adopted, 2021 WL 20] 515385 (C.D. Cal. Feb. 10, 2021), app dism’d, 2021 WL 9540025 (9th 21] Cir. Oct. 15, 2021), cert. denied, _ U.S. ___, 2022 WL 4656572 22) (U.S. 2022) (“courts have specifically found California [Department of 23] Rehabilitation] and its employees are entitled to [immunity under the 24) Eleventh Amendment]”) (citations omitted). 25] /// 26] /// 27 28 ° See Cal. Welf. & Inst. Code § 19001.

Case 2:22-cv-08126-SB-E Document5 Filed 11/22/22 Page 7of12 Page |ID#:24

1 Plaintiff’s retaliation claim is legally insufficient. “A 2) plaintiff making a First Amendment retaliation claim must allege that 3] (1) he was engaged in a constitutionally protected activity, (2) the 4] defendant's actions would chill a person of ordinary firmness from 5] continuing to engage in the protected activity and (3) the protected 6] activity was a substantial or motivating factor in the defendant's 7] conduct.” Bello-Reyes v. Gaynor, 985 F.3d 696, 700 (9th Cir. 2021) 8] (citations and quotations omitted). Plaintiff alleges no facts 9] plausibly showing that: (1) any Defendant (or any other person) 10])| engaged in any conduct which would chill a person from complaining about service denials; or (2) the filing of Plaintiff’s administrative complaint purportedly was a substantial or motivating factor in the 13]) denial of any services to Plaintiff. Plaintiff’s conclusory 14] allegations of retaliation do not suffice to state any plausible claim 15] for relief. See Guillen v. Owens, 577 Fed. App’x 664 (9th Cir. 2014) 16] (conclusory allegations of retaliation insufficient); Williams v. 17) Harrington, 511 Fed. App’x 669, 669-70 (9th Cir. 2013) (same); see generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (conclusory 19} allegations insufficient to allege a claim for relief). 20 21 The Complaint fails to allege any violation of Title I of the 22]| ADA, which concerns disability discrimination in employment. For the 23] reasons discussed below, Plaintiff’s claims for alleged violations of 24} Title II of the ADA and section 504 of the Rehabilitation Act are also 25} legally insufficient. 26 27 Title II of the ADA provides that “no qualified individual with a 28] disability shall, by reason of such disability, be excluded from

Case 2:22-cv-08126-SB-E Document 5 Filed 11/22/22 Page 8 of 12 Page ID #:25

1 participation in or be denied the benefits of the services, programs, 2 or activities of a public entity, or be subjected to discrimination by 3 any such entity.” 42 U.S.C. § 12132. Section 504 of the 4 Rehabilitation Act provides: 5 6 No otherwise qualified individual with a disability in 7 the United States, as defined in section 705(20) of this 8 title, shall, solely by reason of her or his disability, be 9 excluded from the participation in, be denied the benefits 10 of, or be subjected to discrimination under any program or 11 activity receiving Federal financial assistance or under any 12 program or activity conducted by any Executive agency or by 13 the United States Postal Service. 14 15 29 U.S.C. § 794(a). 16 17 To state a claim under the ADA or the Rehabilitation Act, 18 Plaintiff must allege facts showing: (1) he is a qualified individual 19 with a disability; (2) he was either excluded from participation in or 20 denied the benefits of a public entity’s services, programs, or 21 activities, or was otherwise discriminated against by the public 22 entity; and (3) this exclusion, denial, or discrimination was by 23 reason of his disability. Townsend v. Quasim, 328 F.3d 511, 516 (9th 24 Cir. 2003); see also Boose v. Tri-County Metro. Transp. Dist. of Or., 25 587 F.3d 997, 1001 n.5 (9th Cir. 2009) (“Because the ADA was modeled 26 on section 504 of the Rehabilitation Act, courts have applied the same 27 analysis to claims brought under both statutes.”) (citation and 28 quotations omitted). A plaintiff must show that the discrimination 8 Case 2:22-cv-08126-SB-E Document5 Filed 11/22/22 Page9of12 Page ID #:26

1] occurred solely by reason of disability. Weinreich v. Los Angeles 2] Cty. Metro. Transp. Auth., 114 F.3d 976, 978-79 (9th Cir.), cert. 3) denied, 522 U.S. 971 (1997); O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 4) 1056, 1060 (9th Cir. 2007). 6 “The ADA defines a disability as: [9] (A) a physical or mental 7] impairment that substantially limits one or more of the major life 8]| activities of such individual; [9] (B) a record of such an impairment; 9] or [FT] (C) being regarded as having such an impairment.” Wong v. 10] Regents of Univ. of Cal., 410 F.3d 1052, 1063 (9th Cir. 2005); see 42 11] U.S.C. § 12102(2); see Toyota Motor Mfg., Ky., Inc. v. Williams, 534 12] U.S. 184, 193 (2002). The same definition applies in Rehabilitation 13])/ Act cases. See Bragdon v. Abbott, 524 U.S. 624, 631-32 (1998). 14 15 Plaintiff alleges no facts plausibly showing that he suffers from 16])| any particular disability (mental or otherwise) cognizable under the 17} ADA or the Rehabilitation Act. Furthermore, Plaintiff’s allegations that Defendants purportedly discriminated against Plaintiff on account 19] of both race and disability fail to allege any ADA or Rehabilitation 20} Act violation. Additionally, Plaintiff cannot obtain damages under 21) the ADA from an individual Defendant in his or her individual capacity. See City & Cty. of San Francisco, Cal. v. Sheehan, 575 U.S. 23) 600, 610 (2015) (“[o]Jnly public entities are subject to Title II [of 24] the ADA]”) (citation omitted); Stewart v. Cal. Dep’t of Educ., 493 25] Fed. App’x 889, 891 (9th Cir. 2012); Griffin v. Kelso, 2018 WL 26] 3752132, at *7 (E.D. Cal. Aug. 8, 2018), adopted, 2018 WL 4613133 27 (E.D. Cal. Sept. 26, 2018); see also Vinson v. Thomas, 288 F.3d 1145, 28] 1156 (9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003) (plaintiff

Case 2:22-cv-08126-SB-E Document 5 Filed 11/22/22 Page 10 of 12 Page ID #:27

1 could not sue public official in his or her individual capacity under 2 42 U.S.C. section 1983 for ADA violations). 3 4 Plaintiff’s claim for alleged violation of California Civil Code 5 section 51 is also legally insufficient. Section 51, the “Unruh Civil 6 Rights Act,” provides in pertinent part: 7 8 (b) All persons within the jurisdiction of this state are 9 free and equal, and no matter what their sex, race, color, 10 religion, ancestry, national origin, disability, medical 11 condition, genetic information, marital status, sexual 12 orientation, citizenship, primary language, or immigration 13 status are entitled to the full and equal accommodations, 14 advantages, facilities, privileges, or services in all 15 business establishments of every kind whatsoever. 16 17 Cal. Civ. Code § 51(b). A state agency such as the Department is not 18 a “business establishment” within the meaning of section 51(b). See 19 Brennon B. v. Super. Ct., 13 Cal. 5th 662, 678-79, 296 Cal. Rptr. 3d 20 360, 513 P.3d 971 (2022). Although the Unruh Act provides that “a 21 violation of the right of any individual under the [ADA]” also 22 violates the Unruh Act, see Cal. Civ. Code section 51(f), that 23 provision likewise does not apply to state agencies. See Brennon B. 24 v. Super. Ct., 13 Cal. 5th at 692. 25 26 Plaintiff’s claim for alleged violation of the California 27 Disabled Persons Act, California Civil Code section 54 (“CDPA”) is 28 also legally insufficient. The CDPA provides that “[i]ndividuals with 10 Case 2:22-cv-08126-SB-E Document 5 Filed 11/22/22 Page 11 of 12 Page ID #:28

1 disabilities or medical conditions have the same right as the general 2 public to the full and free use of the streets, highways, sidewalks, 3 walkways, public buildings, medical facilities, including hospitals, 4 clinics, and physicians’ offices, public facilities, and other public 5 places.” Cal. Civil Code § 51(a). The CDPA “is intended to secure 6 disabled persons the same right as the general public to the full and 7 free use of facilities open to the public.” Patton v. Hanassab, 2015 8 WL 589460, at *6 (S.D. Cal. Feb. 12, 2015). “Its focus is upon 9 physical access to public places.” Id. (citations omitted; original 10 emphasis). The statute “is concerned solely with guaranteeing 11 physical access to public spaces and not denial of services.” Montoya 12 v. City of San Diego, 434 F. Supp. 3d 830, 849 (S.D. Cal. 2020) 13 (citation omitted); see also Wilkins-Jones v. Cty. of Alameda, 859 14 F. Supp. 2d 1039, 1054-55 (N.D. Cal. 2012) (citing cases). Plaintiff 15 alleges only discrimination in the denial of services, and does not 16 allege any discrimination in the provision of physical access to 17 public spaces. Accordingly, the Complaint does not state any claim 18 for violation of the CDPA. 19 20 ORDER 21 22 The Complaint is dismissed with leave to amend. If Plaintiff 23 still wishes to pursue this action, he is granted thirty (30) days 24 from the date of this Order within which to file a First Amended 25 Complaint. Any First Amended Complaint shall be complete in itself 26 and shall not refer in any manner to the original Complaint. 27 Plaintiff may not add Defendants without leave of court. See Fed. R. 28 Civ. P. 21. Failure timely to file a First Amended Complaint in 11 Case 2:22-cv-08126-SB-E Document5 Filed 11/22/22 Page12o0f12 Page ID#:29

1] conformity with this Order may result in the dismissal of the action. 2] See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. 3] denied, 538 U.S. 909 (2003) (court may dismiss action for failure to 4] follow court order); Simon v. Value Behav. Health, Inc., 208 F.3d 5] 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert. 6] denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. 7] Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 8 (2007) (affirming dismissal without leave to amend where plaintiff 9] failed to correct deficiencies in complaint, where court had afforded 10} plaintiff opportunities to do so, and where court had given plaintiff 11] notice of the substantive problems with his claims); Plumeau v. Sch. 12] Dist. #40, Cty. of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial 13] of leave to amend appropriate where further amendment would be 14] futile). 15 16 DATED: November 22, 2022 17 18 OD

STANLEY BLUMENFELD, JR.

20 UNITED STATES DISTRICT JUDGE 21 22|) PRESENTED this 16th day of 23|| November, 2022, by: 24 25 /S/

CHARLES F. EICK

26] UNITED STATES MAGISTRATE JUDGE 27 28

12