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Roberts v. Khounphixay

United States District Court, W.D. Washington, Seattle

November 18, 2019

JOE J.W. ROBERTS, JR., Plaintiff,
v.
VILMA KHOUNPHIXAY, et al ., Defendants.

          ORDER RE: PLAINTIFF'S PENDING MOTIONS

          MICHELLE L. PETERSON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Joe Roberts is a state prisoner who is proceeding with this civil rights action pro se and in forma pauperis. This matter comes before the Court at the present time on Plaintiff's motions for leave to amend his complaint (dkt. # 65), for a stay of summary judgment and continuance of discovery (dkt. # 66), for an extension of time to file a response to Defendants' summary judgment motion and leave to file an over-length brief (dkt. # 62), and for a mistrial (dkt. # 63). Defendants have filed responses to each of Plaintiff's motions. Defendants take no position on Plaintiff's request for an extension of time to file his response to their summary judgment motion or his request to file an over-length brief. (Dkt. # 71.) Defendants do, however, oppose Plaintiff's motions for leave to amend, for a stay of summary judgment and continuance of discovery, and for a mistrial. (Dkt. ## 72, 73, 74.) The Court addresses each of Plaintiff's motions below.

         II. DISCUSSION

         A. Motion for Leave to Amend

         Plaintiff seeks leave to amend his complaint to add new claims and new Defendants to this action. (Dkt. # 65.) Plaintiff's current motion to amend was filed less than a month after a similar attempt by Plaintiff to amend his complaint was denied. (See id. and Dkt. # 45.) Plaintiff indicates in his motion that he wishes to add to this action claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”), and claims alleging failure to protect, failure to provide medical care, and deprivation of personal hygiene and sanitation. (See Dkt. # 65 at 1.) Plaintiff also indicates a desire to add the following Defendants to this action: the Washington Department of Corrections (“DOC”); Lisa Anderson, Associate Superintendent at the Monroe Correctional Complex (“MCC”); Tim Thrasher, DOC Housing Administrator; and, John Does 1-19. (See id.) Defendants argue that Plaintiff's current motion to amend should be denied because it mirrors his prior motion which was denied. (See Dkt. # 74.)

         1. Applicable Standard

         Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that the court should freely give leave to amend “when justice so requires.” Five factors are typically considered when assessing the propriety of a motion for leave to amend: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). The dispositive issue here is the futility of Plaintiff's proposed amendments. An amendment to a complaint is futile when “no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Missouri ex. Rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017) (citing Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         2. Proposed New Claims

         Plaintiff seeks to add to this action claims under the ADA, 42 U.S.C. § 12132, and the RA, 29 U.S.C. § 794. Title II of the ADA provides in pertinent part 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. The RA provides in pertinent part that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his 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 . . . .” 29 U.S.C. § 794.

         In order to establish a violation of Title II of the ADA, a plaintiff must show that (1) he is a qualified individual with a disability; (2) he was excluded from participation in or otherwise discriminated against with respect to a public entity's provision of a service, program, or activity; and, (3) such exclusion or discrimination was by reason of his disability. See, e.g., Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). In order to establish a violation of the RA, a plaintiff must show that (1) he is handicapped within the meaning of the RA; (2) he is otherwise qualified for the benefit or services sought; (3) he was denied the benefit or services solely by reason of his handicap; and (4) the program providing the benefit or services receives federal financial assistance. See id.

         The primary claim asserted in this action is that Defendants violated Plaintiff's rights under the Eighth Amendment when they were deliberately indifferent to his medical and mental health needs in relation to his reports that he was suicidal. The treatment or lack of treatment for Plaintiff's medical and mental health issues does not provide a basis upon which to impose liability under the ADA and the RA. The Ninth Circuit has made clear that the ADA and the RA prohibit discrimination because of a disability, not because of inadequate treatment for a disability. See Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010), overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc); O'Guinn v. Nevada Dept. of Corrections, 468 Fed.Appx. 651, 653 (9th Cir. 2012). Plaintiff's proposed ADA and RA claims are not viable in this action and it would therefore serve no purpose to allow Plaintiff to amend his complaint to add such claims.

         Plaintiff also seeks to add to this action purportedly new claims arising under the Eighth Amendment. Specifically, Plaintiff indicates that he is seeking to add claims for failure to protect, failure to provide medical care, and deprivation of hygiene and sanitation. These claims are virtually indistinguishable from the Eighth Amendment claims asserted by Plaintiff in his original complaint. It would serve no purpose at this juncture to permit Plaintiff to amend his complaint to simply separate out in a more specific fashion the various components of his overarching Eighth Amendment claim.

         3. Proposed ...


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