1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KWESI MUHAMMAD, No. 2:18-cv-2775 AC P 12 Plaintiff, 13 v. ORDER 14 KATHERYN KESTERSON, et al., 15 Defendants. 16

17 KWESI MUHAMMAD, No. 2:18-cv-2831 AC P 18 Plaintiff, 19 v. ORDER 20 KIMBERLY SEIBEL, et al., 21 Defendants. 22 23 I. Introduction 24 Plaintiff is a state prisoner currently incarcerated at the California Training Facility in 25 Soledad. Plaintiff challenges conditions of his prior confinement at Deuel Vocational Institution 26 (DVI). Plaintiff commenced these actions in the San Joaquin County Superior Court. Defendants 27 removed both actions from the Superior Court to this federal district court pursuant to 28 U.S.C. § 28 1 1441(a), paid the filing fees, and filed a related-case notice in each case. The nearly identical 2 First Amended Complaints (FACs) in both cases are before the court for screening under 28 3 U.S.C. § 1915A. For the reasons set forth below, the undersigned declines to direct service of 4 either complaint but provides plaintiff the opportunity to file a Second Amended Complaint in 5 Muhammad v. Seibel et al., Case No. 2:18-cv-2831 AC P. 6 II. Cases Properly Related 7 Defendants filed a Notice of Related Case in each of the instant cases. See Muhammad v. 8 Kesterson et al., Case No. 2:18-cv-2775 AC P, at ECF No. 3; Muhammad v. Seibel et al., Case 9 No. 2:18-cv-2831 AC P, at ECF No. 3. The undersigned finds these cases properly related under 10 the standards set forth in Local Rule 123. These actions involve the same plaintiff and the 11 allegations and claims against the defendants “involve similar questions of fact and the same 12 question of law.” Local Rule 123(a)(3). All defendants are represented by the same California 13 Deputy Attorney General. Therefore, the assignment of these cases to the same Magistrate Judge 14 and District Judge will “effect a substantial savings of judicial effort.” Id. 15 III. Screening of Plaintiff’s Complaints 16 A. Legal Standards for Screening Prisoner Complaints 17 The court is required to screen complaints brought by prisoners seeking relief against a 18 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 19 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 20 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 21 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 22 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 23 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 24 1984). 25 Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement 26 of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair 27 notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. 28 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 1 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it 2 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 3 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to 4 state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a 5 claim to relief that is plausible on its face.’” Iqbal at 678 (quoting Twombly at 570). “A claim 6 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged. 8 “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 9 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 10 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 11 106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) (“Pleadings shall be 12 so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the 13 deficiencies in the complaint and an opportunity to amend, unless the complaint’s deficiencies 14 cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 15 B. The Complaints 16 These cases challenge the conduct of four defendants (two defendants are named in each 17 case), each of whom participated in the denial of plaintiff’s requests for accommodations in the 18 shower facility in plaintiff’s DVI housing unit. The FACs present federal claims under Title II of 19 the ADA, 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act (RA), 29 U.S.C.A. § 20 794; and the Eighth Amendment pursuant to 42 U.S.C. § 1983. Plaintiff seeks declaratory relief 21 and compensatory damages. Plaintiff’s original complaints alleged claims under California’s 22 Government Claims Act, but his FACs do not,1 and are therefore not addressed herein. 23 The FACs allege as follows. Plaintiff had foot surgery on January 16, 2018, which 24 precluded weightbearing on his left foot and required him “to either use crutches or a wheelchair 25 full time for mobility for 38 days.” FACs ¶ 4, Ex. A.2 On January 21, 2018, plaintiff submitted 26 1 Nevertheless, both FACs note that plaintiff timely filed a government claim, which was 27 expressly rejected. FACs ¶ 10, Exs. F, G. 2 Plaintiff’s allegations in both FACs are nearly identical and reflect the same paragraph 28 numbers; his exhibits to both complaints are also identically designated. Cf. Muhammad v. 1 an ADA3 accommodation request for grab bars to be installed in the subject shower. On January 2 23, 2018, the request was denied by defendant M. Starr, DVI Associate Warden and ADA 3 Coordinator. Plaintiff’s request was denied on the ground that he was already “being 4 accommodated with 2 different types of shower chairs, hand held shower wand and fixed shower 5 bench.” FACs ¶ 6, Ex. B. 6 On January 29, 2018, plaintiff requested supervisorial review of his accommodation 7 request. On February 12, 2018, the request was denied by defendant K. Kesterson, DVI Chief 8 Deputy Warden. Plaintiff’s request was denied on the ground that “[t]he accommodation 9 provided to you meet the requirements. You are accommodated w/2 different types of shower 10 chairs, hand held shower wand and a fixed shower bench.” FACs ¶ 7, Ex. B. 11 On February 22, 2018, plaintiff submitted an administrative grievance (inmate appeal) 12 again requesting the installation of grab bars in the shower. FACs ¶ 8, Ex. C. First Level Review 13 was bypassed. Following an interview with plaintiff by a correctional counselor who also 14 inspected the subject shower, the appeal was partially granted on April 16, 2018, on Second Level 15 Review, by defendant R. Burton, DVI Warden. Id., Ex. D. The partial grant was based on the 16 inspection of the shower and the finding that it was ADA compliant. The Second Level Review 17 decision by defendant Burton provided in pertinent part, id.: 18 DESCRIPTION OF PROBLEM: You stated in your appeal you had a foot surgery that left you confined to a wheelchair and crutches. 19 You stated you submitted a request for the installation of grab bars in the shower and your request was denied. You stated there is 20 only one (1) shower chair in C-Wing and the chair has plastic wheels. You stated the shower chair is required to have grab bars 21 and the chair should be mounted to the floor with non-skid flooring. You stated you were forced to shower inside your cell to avoid 22 possibly injuring yourself. You stated your ability to perform major life activities such as showering was impeded. . . . 23 APPEAL RESPONSE: . . . . [Y]ou are requesting: To have the C- 24 Wing showers modified in compliance with the ADA laws. . . . In regards to your request on April 10, 2018, the C-Wing shower 25 area was inspected. . . . It was confirmed that the shower chair does 26 Kesterson et al., Case No. 2:18-cv-2775 AC P, at ECF No. 9; Muhammad v. Seibel et al., Case 27 No. 2:18-cv-2831 AC P, at ECF No. 10. References herein to paragraphs within, and exhibits to, the complaints apply to both FACs unless otherwise noted. 28 3 Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. 1 have wheels; however, the wheels lock securing the chair. The chair is equipped with an arm rest or grab bars. Additionally, there is a 2 fixed shower bench and a shower wand. 3 Your request to have the C-Wing showers modified in compliance with the ADA laws is granted in part. Your request is Granted in part 4 as DVI is in compliance with the current ADA laws; therefore, the C-Wing Showers will not be modified as a result of this appeal. 5 6 Plaintiff’s inmate appeal was denied and exhausted on Third Level Review, for the 7 reasons previously determined by the “Reasonable Accommodation Panel (RAP)” (i.e. by 8 defendants Starr and Kesterson), as found on Second Level Review (by defendant Burton). 9 FACs, ¶ 8, Ex. D. A fourth defendant, K. Seibel, is named in her capacity as DVI Warden “at the 10 time plaintiff [informally] requested shower accommodations,” while defendant Burton is 11 identified in his capacity as DVI Warden “at the time plaintiff filed his grievance.” See 12 Muhammad v. Seibel et al., Case No. 2:18-cv-2831 AC P, at ECF No. 10 at 2. 13 Starr and Kesterson are the named defendants in Muhammad v. Kesterson et al., Case No. 14 2:18-cv-2775 AC P, while Seibel and Burton are the named defendants in Muhammad v. Seibel et 15 al., Case No. 2:18-cv-2831 AC P. All defendants are sued in their official capacities only. 16 C. Analysis 17 1. ADA and Rehabilitation Act Claims 18 a. Governing Legal Standards 19 Title II of the ADA prohibits a public entity from discriminating against a qualified 20 individual with a disability on the basis of disability, 42 U.S.C. § 42 U.S.C. § 12131 et seq.. 21 “The ADA broadly ‘defines “public entity” as “any State or local government [and] any 22 department, agency, special purpose district, or other instrumentality of a State or States or local 23 government.”’ Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997) (quoting 42 U.S.C. § 24 12131(1)).” Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001). “Hence, the ADA 25 applies to state prisons.” Id. (citing, inter alia, Pennsylvania Department of Corrections v. 26 Yeskey, 524 U.S. 206, 209 (1998)). 27 To state a claim of disability discrimination under Title II of the ADA, a plaintiff must 28 plausibly allege four elements: “1) he is an individual with a disability; (2) he is otherwise 1 qualified to participate in or receive the benefit of some public entity’s services, programs, or 2 activities; (3) he was either excluded from participation in or denied the benefits of the public 3 entity’s services, programs, or activities, or was otherwise discriminated against by the public 4 entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of [his] 5 disability.” McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (citations and 6 internal quotation marks omitted); accord, Simmons v. Navajo County, Ariz., 609 F.3d 1011, 7 1021 (9th Cir. 2010). 8 Similarly, to state a cognizable claim under the Rehabilitation Act (RA), a plaintiff must 9 show that: “(1) he is an individual with a disability; (2) he is otherwise qualified to receive the 10 benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) 11 the program receives federal financial assistance.” Duvall v. County of Kitsap, 260 F.3d 1124, 12 1135 (9th Cir. 2001). 13 “[T]he Rehabilitation Act is materially identical to and the model for the ADA, except that 14 it is limited to programs that receive federal financial assistance – which the [California] prison 15 system admittedly does. . . .” Armstrong v. Davis, 275 F.3d 849, 862 n.17 (9th Cir. 2001) 16 (citations and internal quotation marks omitted), abrogated on other grounds by Johnson v. 17 California, 543 U.S. 499 (2005). “The ADA applies only to public entities, whereas the RA 18 proscribes discrimination in all federally-funded programs.” Lovell v. Chandler, 303 F.3d 1039, 19 1052 (9th Cir. 2002). Otherwise, “[t]here is no significant difference in analysis of the rights and 20 obligations created by the ADA and the Rehabilitation Act,” permitting the “same analysis” under 21 both Acts. Zukle v. Regents of the University of California, 166 F.3d 1041, 1045 n.11 (9th Cir. 22 1999); accord, Duvall, 260 F.3d at 1135-36. 23 “To recover monetary damages under Title II of the ADA or the Rehabilitation Act, a 24 plaintiff must prove intentional discrimination on the part of the defendant.” Duvall v. County of 25 Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (citing Ferguson v. City of Phoenix, 157 F.3d 668, 26 674 (9th Cir. 1998)). Intentional discrimination can be shown by deliberate indifference, which 27 “requires both knowledge that a harm to a federally protected right is substantially likely, and a 28 //// 1 failure to act upon that likelihood.” Duvall at 1139 (citing City of Canton v. Harris, 489 U.S. 2 378, 389 (1988)). 3 b. Failure to State a Claim 4 i. Qualifying Disability 5 Both actions are premised on plaintiff’s threshold contention that the limited use of his left 6 foot for 38-days following his surgery constitutes an “actual disability” under the Acts. FACs ¶ 7 5. Plaintiff does not contend that he was or is otherwise disabled. 8 As generally defined under the ADA, a qualifying “disability” is “(A) a physical or mental 9 impairment that substantially limits one or more major life activities of such individual; (B) a 10 record of such an impairment; or (C) being regarded as having such an impairment (as described 11 in paragraph (3)).” 42 U.S.C. § 12102(1). Paragraph 3 provides in pertinent part that “Paragraph 12 (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an 13 impairment with an actual or expected duration of 6 months or less.” 42 U.S.C. § 12102(3)(B). 14 Under a literal application of these standards, plaintiff’s 38-day period of recovery 15 following foot surgery was both “transitory” and “minor” and therefore did not qualify as a 16 disability under the Acts. Although the ADA is to be “construed in favor of broad coverage,” 17 particularly since implementation of the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. 18 No. 110-325, 122 Stat. 3553 (2008), such construction remains limited to “the maximum extent 19 permitted by the terms” of the statute. 42 U.S.C. § 12102(4)(A). 20 Plaintiff relies on two citations in support of his contention that his temporary inability to 21 put full weight on his left foot was a qualifying disability under the ADA: (1) 29 C.F.R. 22 §1630.2(j)(1)(ix) (providing in pertinent part that “[t]he effects of an impairment lasting or 23 expected to last fewer than six months can be substantially limiting within the meaning of this 24 section.”); and (2) Bob-Maunuel v. Chipotle Mexican Grill, Inc., 10 F. Supp. 3d 854, 881 (N.D. 25 Ill. 2014) (post-ADAAA decision applying §1630.2(j)(1)(ix) to find that an employee’s hernia, 26 although temporary because remediable by surgery, constituted a disability under the ADA 27 because it substantially limited his major life activity of lifting). See FACs ¶ 5. 28 //// 1 These citations do not support plaintiff’s threshold contention that he had a qualifying 2 disability under the Acts. The cited regulation is specific to EEOC matters; application of that 3 regulation by the court in Bob-Maunuel (a Title VII action premised, inter alia, on alleged 4 violations of the ADA) focused on the lower threshold for assessing “substantial limitations” to 5 lifting after enactment of the ADAAA. Accord, 29 C.F.R. § 1630.2(j)(1)(iv).4 6 Under these authorities, the FACs do not plausibly allege that plaintiff’s 38-day recovery 7 from foot surgery was a “qualifying disability” under the Acts. 8 ii. Denial of Services 9 Even if plaintiff could show that he had a qualifying disability, his allegations do not 10 demonstrate that he was denied participation in prison programs or services due to his disability. 11 Plaintiff was not denied access to shower facilities; nor was he denied access to soap and water in 12 his cell which he chose to use instead. (“Personal care” is a “major life activity” under the ADA. 13 42 U.S.C.A. § 12102(2)(A).). Moreover, plaintiff has not demonstrated that the subject shower 14 facility was ADA-noncompliant nor inadequate to meet his temporary individualized needs. 15 Plaintiff’s reliance on his April-May 2018 correspondence with legal counsel representing 16 prisoners in the Armstrong class action is unhelpful. That counsel informed plaintiff they were 17 “aware the shower in C-wing is not wheelchair compliant . . . [a]lthough wheelchair users are 18 usually housed elsewhere.” FACs, Ex. E. However, as plaintiff’s own exhibits demonstrate, he 19 was not required to use a wheelchair; plaintiff rejected the crutches recommended and provided to 20 him after surgery. Id., Ex. A. Thus, the factual allegations of the FACs do not make a plausible 21 showing that plaintiff was “denied” his right to shower “due to his disability.” 22 iii. Appropriate Defendant 23 The FACs also fail to identify appropriate defendants. As earlier noted, the proper 24 defendant in an ADA action is the public entity responsible for the alleged discrimination. United 25

26 4 29 C.F.R. § 1630.2(j)(1)(iv) provides: “The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in 27 making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied 28 prior to the ADAAA.” 1 States v. Georgia, 546 U.S. 151, 153 (2010). Defendants may not be sued in their personal 2 capacities under the Acts. Valenzuela v. Masoon, 730 Fed. Appx. 524, 524 (9th Cir. 2018) (citing 3 Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (“The ADA applies only to public 4 entities[.]”)). Accord, Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 107 (2d Cir. 5 2001) (“[N]either Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual 6 capacity suits against state officials.” (citations omitted)). 7 Here plaintiff named all four defendants in their official capacities. This is appropriate 8 insofar as defendants “may be sued in their official capacities because suing an individual in his 9 official capacity is treated the same as suing the entity itself.” Becker v. Oregon, 170 F. Supp. 2d 10 1061, 1066 (D. Or. 2001) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). However, 11 under this standard, the only appropriate individual defendant would be Burton, in his official 12 capacity as DVI Warden when plaintiff’s relevant inmate appeal was exhausted. Burton’s 13 participation in the appeal process is not itself actionable.5 Similarly, the preliminary decisions 14 made by Starr and Kesterson are subsumed by the subsequent formal exhaustion of plaintiff’s 15 inmate appeal. Seibel’s status as a former DVI Warden “at the time plaintiff requested shower 16 accommodations” is irrelevant. 17 Moreover, because the current DVI Warden is now Landon Bird, plaintiff may pursue 18 ADA and RA claims against DVI, the public entity, only by naming DVI Warden Bird in his 19 official capacity as the principal defendant in this action. See Fed. R. Civ. P. 25(d) (automatic 20 substitution of successor public officer). 21 iv. Relief 22 Plaintiff does not seek injunctive relief; nor is he entitled to pursue injunctive relief due 23 both to his full recovery and his transfer from DVI. “When an inmate challenges prison 24 conditions at a particular correctional facility, but has been transferred from the facility and has

25 5 Plaintiff cannot pursue a claim against any defendant for failing to resolve a particular 26 grievance in a favorable manner. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (failure to process prisoner’s grievances not actionable under Section 1983); Mann v. Adams, 855 27 F.2d 639, 640 (9th Cir. 1988) (prisoners have no stand-alone due process rights related to the administrative grievance process); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (there is 28 no liberty interest entitling prisoners to a specific grievance process). 1 no reasonable expectation of returning, his claim is moot.” Pride v. Correa, 719 F.3d 1130, 1138 2 (9th Cir. 2013) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (an inmate’s claims 3 for prospective injunctive relief are moot when he “no longer is subjected to [the allegedly 4 unconstitutional] policies”). 5 To continue to pursue damages relief, plaintiff must allege a cognizable intentional 6 discrimination claim, that is, plausible factual allegations that DVI officials failed to install grab 7 bars in the subject shower facility despite knowing that such failure denied plaintiff a federally 8 protected right. Duvall, 260 F.3d at 1139. Here, the fact that defendants conducted an 9 investigation, and found the subject shower ADA compliant, appears to demonstrate that no 10 defendant knowingly acted with deliberate indifference to plaintiff’s federal rights. 11 c. Leave to Amend ADA and RA Claims 12 Due to these numerous deficiencies, the court will not direct service of either complaint. 13 Plaintiff will be provided the opportunity to file a Second Amended Complaint in 14 Muhammad v. Seibel et al., Case No. 2:18-cv-2831 AC P only, in an effort to state claims 15 under the ADA and RA subject to the standards set forth above. 16 Insofar as plaintiff seeks relief under the ADA and RA, the only appropriate defendant is 17 current DVI Warden Landon Bird in his official capacity (aka, DVI, a public entity). A Second 18 Amended Complaint naming him should include a notation that Bird is substituted for former 19 DVI Warden Burton pursuant to Fed. R. Civ. P. Rule 25(d). If the amended complaint is found to 20 state a cognizable claim for relief, the court will recommend that Muhammad v. Seibel et al. 21 proceed, and that Muhammad v. Kesterson et al., Case No. 2:18-cv-2775 AC P be dismissed 22 without prejudice. 23 2. Failure to State Eighth Amendment Claim 24 Section 1983 authorizes a federal civil rights action against any “person” who acts under 25 color of state law. 42 U.S.C. § 1983. States, state entities, and state employees acting in their 26 official capacities are not “persons” who can be sued for damages under section 1983. See Will 27 v. Michigan Dept. of State Police, 491 U.S. 58 (1989); see also Kentucky. Graham, 473 U.S. 159 28 (1985) (the Eleventh Amendment bars damages action against a state and its entities in federal 1 court). Because plaintiff sues defendants only in official capacities, section 1983 claims 2 necessarily fail. 3 The facts alleged in the FACs do not support section 1983 liability for any of the named 4 defendants even if sued in their personal capacity. Plaintiff alleges violation of the ADA and RA 5 but “a plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her 6 individual capacity to vindicate rights created by Title II of the ADA.” Vinson v. Thomas, 288 7 F.3d 1145, 1156 (9th Cir. 2002). The Ninth Circuit has “join[ed] the Fifth, Eighth, and Eleventh 8 Circuits [in] hold[ing] that a plaintiff cannot bring an action under 42 U.S.C. § 1983 against a 9 State official in her individual capacity to vindicate rights created by Title II of the ADA or 10 section 504 of the Rehabilitation Act.” Id. 11 Moreover, the facts alleged in the FACs are not consistent with an Eighth Amendment 12 claim on a deliberate indifference theory.6 Plaintiff’s own allegations that defendants investigated 13 his alleged needs for accommodation and found them adequately met do not support a reasonable 14 inference that any defendant knew of and disregarded an excessive risk to plaintiff’s health or 15 safety. 16 Plaintiff is informed that if a Second Amended Complaint includes an Eighth Amendment 17 claim, the undersigned will likely recommend its dismissal for failure to state a claim. 18 IV. Leave to File a Second Amended Complaint 19 For the reasons set forth above, the court will not direct service of either FAC. Plaintiff 20 will be provided the opportunity to file a Second Amended Complaint (SAC) in Muhammad v. 21 Seibel et al., Case No. 2:18-cv-2831 AC P, that addresses the defects identified above. 22

23 6 “[A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, sufficiently serious, a prison official’s act or 24 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, 25 the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate 26 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The official is not liable under the Eighth Amendment unless he “knows of and disregards an 27 excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 28 inference.” Id. at 837. 1 The SAC must be on the form provided herewith, labeled “Second Amended Complaint,” and 2 provide the appropriate case number. The SAC must be complete in itself without reference to 3 the original complaint. See Local Rule 15-220; Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 4 The SAC will be screened by the court pursuant to 28 U.S.C. § 1915A. Failure to file a 5 SAC within thirty days will result in a recommendation that both actions be dismissed without 6 prejudice. 7 V. Plain Language Summary for Pro Se Litigant 8 The defendants removed both of these cases from the San Joaquin County Superior Court 9 to this U.S. District Court, and notified the court that the cases are related to each other. Because 10 the cases are related, they will be assigned to the same judges. 11 The magistrate judge has reviewed the First Amended Complaint (FAC) in each case. On 12 screening under 28 U.S.C. § 1915A, the court finds that neither FAC states a claim for relief. 13 Because of the problems with your claims, the FACs will not be served on the defendants. 14 Instead, you are being given the chance to file a single Second Amended Complaint that 15 addresses the problems. The problems are: 16  Your claims under the ADA and RA don’t include facts showing that you had a 17 “qualifying disability.” A short-term or minor impairment does not count. 18  The facts you present do not show that you were denied services. 19  The facts you present do not show intentional discrimination. 20  Claims under the ADA and RA can be brought against the DVI warden, in his 21 official capacity, only. 22  Violations of the ADA and RA don’t support a claim under Section 1983. Claims 23 for damages based on violation of your Eighth Amendment rights have to be 24 brought against individual defendants in their personal capacities. It looks like you 25 can’t bring such a claim, because it would require facts showing that each 26 individual defendant (1) knew you had a serious medical need and (2) deliberately 27 did something that they knew would seriously risk your health or safety. Since 28 you’ve already explained that the defendants looked into your problem with the WAS 2. VEEE PD VY ROUEN PUEUIOCTIL bah PIR 4tVU VI 4G

1 shower and concluded the situation was okay, it seems that you can’t make the 2 necessary allegations. Even if the defendants were wrong about the shower being 3 okay, that would not count as “deliberate indifference.” 4 You are being given the chance to file a Second Amended Complaint (SAC) that fixes 5 || these problems. If you choose to amend, you must file a SAC within thirty days, in Muhammad 6 || v. Seibel et al., Case No. 2:18-cv-2831, only. It will be screened, and if it includes enough facts 7 || to state ADA and RA claims against the DVI warden,’ it will be served on him and the other case 8 || will be dismissed. 9 You do not have to filea SAC. If you do not do so, the magistrate judge will recommend 10 | that both of your related cases be dismissed without prejudice. 11 VI. Conclusion 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The above-identified cases are properly related under Local Rule 123; and therefore 14 2. The Clerk of Court is directed to randomly assign the same district judge to both cases. 15 3. The complaints in both of the above-identified cases are found not to state a claim 16 || upon which relief may be granted. 17 4. Plaintiff is granted leave to file a Second Amended Complaint (SAC) within thirty (30) 18 | days after service of this order, subject to the legal standards set forth herein. Should plaintiff file 19 || SAC, it must be designated as, and filed in, Muhammad v. Seibel et al., Case No. 2:18-cv-2831 20 | ACP. Failure to timely file a SAC will result in a recommendation that both actions be dismissed 21 || without prejudice. 22 5. The Clerk of Court is directed to send plaintiff, together with a copy of this order, a 23 || copy of the form complaint used by prisoners in this district to pursue a civil rights action under 24 | 42 U.S.C. § 1983. ~ 25 || DATED: July 10, 2020 Httven— Aare

ALLISON CLAIRE

26 UNITED STATES MAGISTRATE JUDGE |.§_ — 7 You should substitute the current DVI Warden, Landon Bird, in his official capacity, as the 28 | defendant in order to proceed under the ADA and RA. 13