Opinion
Case No. 15-cv-02457-WHO (PR)
07-19-2017
RUDOLPH HERRERA MORALEZ, Plaintiff, v. RON DAVIS, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Dkt. No. 43
INTRODUCTION
Plaintiff Rudolph Moralez, a pro se state prisoner, claims in this federal civil rights action that in 2014 Ron Davis, warden of San Quentin State Prison, excluded him from the prison's academic programs, thereby violating his rights under the Americans With Disabilities Act ("ADA") and the Rehabilitation Act of 1973. (Dkt. No. 40.) Defendant moves for summary judgment (Dkt. No. 43). Because Moralez has not shown evidence that he is or was being excluded from any prison academic program, or that Davis is responsible for such an exclusion, or that Davis had discriminatory intent, defendant's motion is GRANTED.
Defendant provided Moralez with the required warnings under Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). (Dkt. No. 50.)
FACTUAL BACKGROUND
Moralez alleges defendant denied his 2014 request for a one-on-one tutor because of his disability of dyslexia. (Third Am. Compl. at 3.) This denial, he alleges, prevented him from passing an entrance exam to take courses at Coastline College. (Id. at 3-4.) This is what plaintiff means by being excluded from the prison's academic programs.
For purposes of this order only, the Court assumes without deciding that dyslexia qualifies as a disability within the meaning of the ADA and the Rehabilitation Act.
Moralez also claims that Davis's denial prevented him from earning "Milestone credits," which would have reduced his sentence. (Third Am. Compl. at 3.) Defendant asserts and Moralez does not dispute that he is ineligible to receive such credits because he is required to register as a sex offender under California Penal Code section 290. (MSJ, Cervantes Decl. ¶ 5.)
The following factual allegations are undisputed unless noted otherwise. Moralez was transferred to San Quentin in 2007. (MSJ at 3.) Prior to this transfer, he earned a high school diploma and an associate's degree, and had enrolled in a distance-learning program at Coastline Community College, in which he was still enrolled after he arrived at the prison. (Id.)
In July 2013, Coastline placed Moralez on academic probation owing to his poor grades. (Pl.'s Opp. ("Opp."), Dkt. No. 62 at 64; Dkt. No. 63 at 15; MSJ, Noble Decl., Ex. A, Dkt. No. 44-1 at 33.) This prevented him from enrolling in Coastline for the 2013-2014 academic year.
In August 2013, Moralez told San Quentin's education department that he had a learning disability. (MSJ at 4.) His requests for more time to take exams and complete assignments and for one-on-one assistance were granted. (Id.)
In June 2015, Moralez filed the instant federal civil rights action. Five days later, he re-enrolled at Coastline. (Id.)
In September 2015, Coastline asked San Quentin to allow Moralez to have extra time to take exams, a request the prison granted. (Id. at 3-4.)
In December 2015, Moralez filed a grievance in which he requested tutoring, even though he had been eligible to receive tutoring through the prison's Voluntary Education Program ("VEP") since 2008. (Id. at 4.)
San Quentin does not itself provide college courses. (Id. at 5.) Rather, the institution provides access and facilities to inmates who seek to take college courses. (Id.) For instance, any general-population inmate who has a high school diploma (or GED equivalent), such as Moralez, may apply to and enroll in any "distance-learning" college. (Id. at 4.) Also, such general-population inmates may request tutoring or use the VEP classrooms at any time for study. (Id.)
Moralez has been continuously enrolled with VEP since he joined the program in 2012. (Id. at 4.) He also took courses at Coastline Community College in the falls of 2007, 2010, 2012, and 2015, in the springs of 2011, 2012, 2013, and the summer of 2016. (Id. at 5.) He tried to enroll in the fall of 2014 and the spring of 2015, but the classes he wanted to take were full. (Id.)
Defendant alleges that Moralez took courses in the fall of 2015. He also alleges that Moralez enrolled in the fall of 2015, but the courses he wanted to take were full. (MSJ at 5.)
Moralez alleges that he asked for an accommodation in 2014. It appears, however, that he did not file his first grievance regarding the alleged denial of his request until the end of the next year, on December 23, 2015. (Third. Am. Compl. at 1.) His second grievance was not submitted until February 4, 2016. (Id.) He alleges that he filed "numerous grievances" before these, but they were "blocked, cancelled, or rejected." (Id. at 2.) He cites his "Appendix" as support for this. However, the "Appendix" is actually a memorandum of points and authorities in support of his complaint, which I have been citing as the operative complaint. There is an exhibit appended to the operative complaint, but it is of no help to Moralez. It consists of a photocopy of a few pages from a CDCR operations manual; a September 2015 letter from the prison law office providing instructions on how to apply to the Developmental Disability Program; and a summons typed by Moralez. (Id., Exs. 1 and 2.)
Moralez, then, did not exhaust his claims until well after this action was filed. In such cases, the action must be dismissed. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative remedies are not exhausted before the prisoner sends his complaint to the court it will be dismissed even if exhaustion is completed by the time the complaint is actually filed). However, his third amended complaint was filed after he exhausted, an act that saves this action from outright dismissal. See Rhodes v. Robinson, 621 F.3d 1002, 1006 (9th Cir. 2010) --------
His opposition also does not contain supporting evidence. Rather, it contains copies of grievances filed in 2008, 2009, 2011, and 2012, none of which are relevant to this action, which arises from the alleged denial of a 2014 accommodation request. (Opp., First Moralez Decl., Dkt. No. 62.)
There are also documents that show he filed several grievances and requests for accommodation in 2014, none of which is relevant to this action. In a few, he asks for help in obtaining documents from outside governmental agencies and "advice about custody class," not for help in attending college courses or for a disability accommodation for tutoring. (Id., Dkt. No. 62 at 27-29; 36-37; 39.) In another, he sought copies of his medical records. (Id. at 30-35.) The other papers in the opposition are documents related to the already-mentioned 2015 and 2016 grievances.
STANDARD OF REVIEW
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is "no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue for which the opposing party by contrast will have the burden of proof at trial, as is the case here, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c). The Court is concerned only with disputes over material facts and "[f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this showing, "the moving party is entitled to a judgment as a matter of law." Celotex, 477 U.S. at 323 (internal quotation marks omitted).
DISCUSSION
Plaintiff alleges defendant violated his rights under the ADA and the Rehabilitation Act of 1973.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To state a claim under Title II of the ADA, a plaintiff must allege four elements: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
Section 505 of the Rehabilitation Act of 1973, as amended and codified in 29 U.S.C. § 794(a) ("the Rehabilitation Act"), provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The Rehabilitation Act is applicable to state prisons receiving federal financial assistance. See Armstrong v. Wilson, 124 F.3d 1019, 1022-23 (9th Cir. 1997).
The elements of a claim under the Rehabilitation Act are that: (1) the plaintiff is a handicapped person under the Act; (2) he is otherwise qualified; (3) the relevant program receives federal financial assistance; and (4) the defendants impermissibly discriminated against him on the basis of the handicap. See Bonner v. Lewis, 857 F.2d 559, 562-63 (9th Cir. 1988).
Money damages are not available for a violation of Title II of the ADA or the Rehabilitation Act absent a showing of discriminatory intent by the defendant. See Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). To show discriminatory intent, a plaintiff must establish deliberate indifference by the public entity. Duvall, 260 F.3d at 1138. Deliberate indifference requires: (1) knowledge that a harm to a federally protected right is substantially likely, and (2) a failure to act upon that likelihood. Id. at 1139. The first prong is satisfied when the plaintiff identifies a specific, reasonable and necessary accommodation that the entity has failed to provide, and the plaintiff notifies the public entity of the need for accommodation or the need is obvious or required by statute or regulation. Id. The second prong is satisfied by showing that the entity deliberately failed to fulfill its duty to act in response to a request for accommodation. Id. at 1139-40. The entity's duty is to undertake a fact-specific investigation to gather from the disabled individual and qualified experts sufficient information to determine what constitutes a reasonable accommodation, giving "primary consideration" the requests of the disabled individual. Id. The second prong is not satisfied if the failure to fulfill this duty to accommodate is a result of mere negligence, such as "bureaucratic slippage" or where the entity simply "overlooked" a duty to act. Id.
Essentially the same showing is required to state a cause of action under section 504 of the Rehabilitation Act and under the ADA. See Olmstead v. Zimring, 527 U.S. 581, 589-91 (1999); Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). Because the parties have not indicated any relevant difference between the ADA and the Rehabilitation Act analyses for Moralez's claims, the claims will be addressed together, as they frequently are. See Duvall, 260 F.3d at 1135.
Defendant Davis is entitled to summary judgment. First, Moralez has not shown a genuine dispute of material fact that Davis committed any acts or omissions that impeded or prevented Moralez from participating in any prison program or attending college. The undisputed evidentiary record shows that Coastline, not Davis, prevented Moralez from enrolling when he was placed on "Academic Disqualification from July 9, 2013 through July 9, 2014," owing to his bad grades. (Opp., Dkt. No. 62 at 64; Dkt. No. 63 at 15; MSJ, Noble Decl., Ex. A, Dkt. No. 44-1 at 33.)
Second, Moralez has not shown discriminatory intent. For example, he has not presented evidence showing a genuine dispute that "the entity deliberately failed to fulfill its duty to act in response to a request for accommodation." Duvall, 260 F.3d at 1139. There is no evidence that he filed a grievance or a request for accommodation in 2014 that is relevant to the issues raised in this federal civil rights action. The prison's records contain no such request. (MSJ, Voong Decl. ¶ 6.) His conclusory allegations that Davis denied his 2014 request are insufficient to satisfy Rule 56's specificity requirement, especially in light of the highly specific evidence presented by defendant. See Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 780 (9th Cir. 2010) (nonmoving party's opposition was too vague to meet rule 56's specificity requirement in view of the detailed evidence contained in the movant's papers).
Nor has Moralez presented evidence that any relevant request or grievance was denied, much less that Davis was responsible for any alleged denial or that the alleged denial was based on a discriminatory reason. A genuine issue of material fact cannot be shown by alleging without evidence that because a request was denied it was necessarily because of Moralez's dyslexia. Also, his allegations of a denial clash implausibly with the prison's history of granting his other requests for assistance. The undisputed record shows that when Moralez requested an accommodation, the prison granted it.
Because Moralez has not shown evidence of a genuine dispute that Davis acted with discriminatory intent, he would not be entitled to money damages even if his claims were otherwise viable. Furthermore, any claim for injunctive relief would be moot because Moralez is currently enrolled in college courses.
Defendant's motion for summary judgment will be granted.
CONCLUSION
Defendants' motion for summary judgment (Dkt. No. 43) is GRANTED. The Clerk shall terminate Dkt. No. 43, enter judgment in favor of defendant Davis, and close the file.
IT IS SO ORDERED. Dated: July 19, 2017
/s/_________
WILLIAM H. ORRICK
United States District Judge