United States District Court, D. Oregon
ORDER OF DISMISSAL
Michael H. Simon United States District Judge.
an inmate at Snake River Correctional Institution (SRCI),
brings this civil rights action pro se challenging
the conditions of his confinement. For the reasons set forth
below, this Court dismisses Plaintiffs Second Amended
Complaint (ECF No. 29), and denies his Motion for Appointment
of Counsel (ECF No. 32).
Court must dismiss an action initiated by a prisoner seeking
redress from a governmental entity or officer or employee, if
the Court determines that the action (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b).
order to state a claim, a plaintiff must allege facts which,
when accepted as true, give rise to a plausible inference
that the defendants violated plaintiff s constitutional
rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57
(2007). "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." Iqbal, 556 U.S. at
678; Moss v. U.S. Secret Serv., 572 F.3d 962, 969
(9th Cir. 2009). "A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a
cause of action will not do." Iqbal, 556 U.S.
at 678 (internal quotations omitted). Plaintiff is proceeding
pro se, and therefore this Court construes the
pleadings liberally and affords Plaintiff the benefit of any
doubt. Erickson v. Pardus, 551 U.S. 89, 94(2007).
Court previously dismissed Plaintiffs original and amended
Complaints. The Court granted Plaintiff leave to amend Claims
II, III, and VIII only. Order of Dismissal (ECF No. 18) at
14. In response to that Order, Plaintiff filed a Second
Amended Complaint re-alleging those claims (using the same
numerical designations), and a claim for the denial of
adequate medical care (Claim IV).
Claim II: "Continuing Chain Conspiracy"
II arises out of aknee injury that Plaintiff suffered in
2006, and then re-injured on May 22, 2015 when he slipped and
fell in a puddle of water. See Second Am. Compl. at
20; Order of Dismissal (ECF No. 18) at 9-10; Order of
Dismissal (ECF No. 11) at 7. Plaintiff alleges that the
Oregon Department of Corrections (ODOC), Colette Peters,
Jason Bell, Dr. Greg Lytle, and Dr. Elliott
Blakeslee violated his rights under the Americans
with Disabilities Act (42 U.S.C. § 12101
etseq.), the Rehabilitation Act (29 U.S.C. §
794 et seq.), and 42 \J, S.C.§ 1983. Second Am.
Compl. at 19-20.
AD A/Rehabilitation Act
Court previously dismissed Plaintiff s claims under the ADA
and the Rehabilitati on Act, as follows:
Plaintiffs allegation that he was denied adequate medical
treatment for his knee does not state a claim for a violation
of the ADA or the Rehabilitation Act because he does not
allege that the denial of medical treatment was because
of or motivated by a mental or physical handicap.
See Simmons, 609 F.3d at 1022 ("ADA prohibits
discrimination because of disability, not inadequate
treatment for disability"); Pickett v.
Williams, 498 Fed.Appx. 699, 701 (9th Cir. 2012)
(affirming grant of summary judgment because Pickett failed
to raise genuine dispute of fact as to whether he suffered
disability-based discrimination); Walton v. U.S. Marshals
Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (plaintiff
must allege discrimination because of a disability to state
claim under the Rehabilitation Act).
of Dismissal (ECF No. 18) at 10-11 (addressing Plaintiffs
Second Amended Complaint suffers from the same deficiencies.
Plaintiff fails to allege any facts to support a claim under
the ADA or Rehabilitation Act because he does not allege that
Defendants denied him medical treatment because of a mental
or physical handicap. See Simmons v. Navajo
Cty., 609 F.3d 1011, 1022 (9th Cir. 2010) ("The ADA
prohibits discrimination because of disability, not
inadequate treatment for disability. ");Montanez v.
Velasco, ~No. 15-16704, 2016 WL 7423054, at *1 (9th Cir.
Dec. 23, 2016) (noting that there is no significant
difference in the analysis of rights and obligations created
by the ADA and the Rehabilitation Act).
§ 1983 Claims
Court originally dismissed Plaintiffs § 1983 claim
because it was "premised solely on legal conclusions,
and fails to allege facts giving rise to a reasonable
inference that Defendants violated Plaintiffs statutory or
constitutional rights." Order of Dismissal (ECF No. 11)
at 5. Additionally, this Court noted that the claim is
"time-barred with respect to conduct more than two years
prior to the filing of the Complaint." Id., at
second Order of Dismissal, the Court dismissed the claim on
the basis that (1) the claim was not limited as far as
practicable to a single set of circumstances; (2) conspiracy
is not itself a constitutional violation and must be
supported by an underlying constitutional violation; and (3)
most of Plaintiff s allegations appear to be time barred.
Order of Dismissal (ECF No. 18) at 6. Plaintiff was given
leave to amend "to ...