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Pickett v. Peter

United States District Court, D. Oregon

March 13, 2017

APPLETON PICKETT, JR., Plaintiff,
v.
COLETTE S. PETERS, Director of Oregon of Corrections, etal., Defendants.

          ORDER OF DISMISSAL

          Michael H. Simon United States District Judge.

         Plaintiff, 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).

         STANDARDS

         This 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).

         In 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).

         DISCUSSION

         This 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).

         I. Claim II: "Continuing Chain Conspiracy"

         Claim 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[1] 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.[2]

         A. AD A/Rehabilitation Act

         This 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).

         Order of Dismissal (ECF No. 18) at 10-11 (addressing Plaintiffs Claim 1V(B)).

         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).

         B. § 1983 Claims

         This 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 6.

         In its 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 ...


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