GREGORY G. HOLLOWS, Magistrate Judge.
Plaintiff is a state prisoner proceedings pro se. This action was removed by defendants from state court as plaintiff seeks relief pursuant to Title II of the Americans with Disabilities Act (ADA). The original complaint was dismissed with leave to amend and plaintiff has filed an amended complaint.
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level."
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question,
Plaintiff's original complaint stated that he was confined to a wheelchair and because of this disability was denied certain freedoms, property and programs that were provided to other inmates. However, the original complaint did not provide details concerning the denial of programs and property and how it was due to plaintiff's disability. The original complaint was dismissed, but plaintiff was allowed to file an amended complaint to describe in more detail the services he was denied and how it was related to his disability.
Unfortunately, plaintiff's amended complaint contains less information than the original complaint and consists mostly of exhibits. Plaintiff again seeks damages for alleged violations of the ADA. Plaintiff discusses how his CDCR classification continually changed based on his disability, but simply changing his status does set forth an ADA violation and plaintiff fails to discuss the substance of these changes in designation and how it affected him. To the extent these designations determined what facility plaintiff would be placed in, he must describe what services were unavailable as a result of being in a certain facility. Plaintiff also discusses how his health deteriorated, but then states how prison officials provided him accommodations, such as someone to turn on the shower, grab bars for the toilet, or a wheelchair and then a walker. None of this involves a violation of the ADA. Plaintiff presents one sentence where he states that he was denied religious services, legal library services, as well as yard programs and canteen, but again fails to describe this in any detail. Plaintiff's property was also missing for about a month, but then it seems was returned, so it is not clear how this states a claim.
The amended complaint is dismissed but plaintiff will be provided 28 days to file a second amended complaint. Plaintiff should not attempt to state his claim using exhibits. Plaintiff must describe in detail how he was denied services or programs due to a disability. Failure to file a second amended complaint will result in a recommendation that this action be dismissed.
Title II of the ADA "prohibit[s] discrimination on the basis of disability."
In order to state a claim that a public program or service violated Title II of the ADA, a plaintiff must show: (1) he is a "qualified individual with a disability"; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint.
In accordance with the above, IT IS HEREBY ORDERED that the amended complaint is dismissed for the reasons discussed above, with leave to file a second amended complaint, within twenty-eight days from the date of service of this order. Failure to file a second amended complaint will result in a recommendation that this action be dismissed.