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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DANIEL G. JESTER,

Plaintiff,

v.

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND REHABILITATION,

Defendant.

Case No. 17-cv-00045-KAW (PR)

ORDER SERVING COGNIZABLE ADA 

CLAIM; DISMISSING ONE CLAIM 

WITH LEAVE TO AMEND

Plaintiff Daniel G. Jester, a state prisoner at San Quentin State Prison, filed this pro se

action alleging the violation of his rights by the California Department of Corrections and Kamala 

Harris, former California Attorney General. On May 8, 2017, this Court issued an Order of 

Dismissal with Leave to Amend in which it concluded that Plaintiff was attempting to state a 

claim under the Americans with Disabilities Act (“ADA”), dismissed the claims against the named 

defendants because the institution is the correct defendant for an ADA claim and noted the 

deficiencies in the complaint for Plaintiff to correct if he filed an amended complaint. 

On May 31, 2017, Plaintiff filed an amended complaint alleging an ADA claim against 

San Quentin State Prison. Therefore, the Clerk is ordered to change the caption of the complaint 

on the docket of this case by terminating the original two defendants and listing San Quentin State 

Prison as the defendant. The Court now reviews the amended complaint. 

DISCUSSION

I. Preliminary Review of Complaint

A federal court must engage in a preliminary screening of any case in which a prisoner 

seeks redress from a governmental entity, or from an officer or an employee of a governmental 

entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and 
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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be 

granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 

§ 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 

Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 

necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the 

grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 

“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 

do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 

proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

II. Plaintiff’s Allegations

The amended complaint contains the following relevant allegations:

Plaintiff has been diagnosed with multiple sclerosis, organic brain injury, neurocognitive 

impairments, memory recall lapses, depression, vision disturbances and other medical disabilities. 

Since 1992, Plaintiff has been a verified ADA patient. Plaintiff is excluded from participating in

the “digital media legal law library research and education” program on the basis of his 

disabilities. He has requested accommodations of a laptop or tablet with DVD or flashdrive 

capabilities, a document scanner or printer, software and accessories. Plaintiff also alleges that his 

inability to access legal documents has prevented him from filing litigation.

These allegations, liberally construes, appear to give rise to a cognizable ADA claim 

against San Quentin. The allegations, even liberally construed, however, do not give rise to a 

cognizable claim for denial of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350-55 

(1996) (To establish a claim for denial of access to the courts, prisoner must prove an inadequacy 

in the prison's legal access program that caused him an actual injury; to prove an actual injury, 

prisoner must show the inadequacy in prison's program hindered his efforts to pursue a non-
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frivolous claim concerning his conviction or conditions of confinement). Plaintiff does not allege 

an actual injury, within the meaning of Lewis v. Casey. Therefore, this claim is dismissed. 

Plaintiff may file a second amended complaint to remedy this deficiency, if he truthfully can do 

so.

CONCLUSION

Based on the foregoing, the Court orders as follows:

1. Any claim based on denial of access to the courts is dismissed with leave to amend. If 

Plaintiff wishes to file an amended complaint, it must be filed within twenty-eight (28) days of the 

date this Order is filed and must include the caption and civil case number used in this Order and 

the words SECOND AMENDED COMPLAINT on the first page. Because an amended 

complaint completely replaces the original complaint, Plaintiff must include in it all the claims he 

wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not 

incorporate material from the original complaint by reference. However, Plaintiff need not 

include the law and regulations supporting his claim; all that is required in a complaint are factual 

allegations that show how the defendant violated Plaintiff’s rights. Failure to amend within the 

specified time period will result in the dismissal with prejudice of the claim for denial of access to 

the court claim.

2. The allegations, liberally construed, appear to give rise to a cognizable ADA claim 

against San Quentin State Prison. 

3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 

Service of Summons, two copies of the Waiver of Service of Summons, a copy of the amended

complaint (docket no. 18) and all attachments thereto, a copy of this Order, and a copy of the form 

“Consent or Declination to Magistrate Judge Jurisdiction” to Ronald Davis, in his official capacity 

as Warden, San Quentin State Prison. This form can also be found at 

www.cand.uscourts.gov/civilforms. The Clerk shall also mail a copy of the amended complaint

and a copy of this Order to the State Attorney General’s Office in San Francisco, and a copy of 

this Order to Plaintiff.

4. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires him
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to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to 

Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf of 

Plaintiff, to waive service of the summons, fails to do so, he will be required to bear the cost of 

such service unless good cause be shown for his failure to sign and return the waiver forms. If 

service is waived, this action will proceed as if Defendant had been served on the date that the 

waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendant will not be required to 

serve and file an answer before sixty days from the date on which the request for waiver was sent. 

(This allows a longer time to respond than would be required if formal service of summons is 

necessary.)

Defendant is advised to read the statement set forth at the foot of the waiver form that more 

completely describes the duties of the parties with regard to waiver of service of the summons. If 

service is waived after the date provided in the Notice but before Defendant has been personally 

served, the answer shall be due sixty days from the date on which the request for waiver was sent 

or twenty days from the date the waiver form is filed, whichever is later. 

5. Defendant shall file his Consent or Declination to Magistrate Judge Jurisdiction on or 

before the date his answer is due.

6. The following briefing schedule shall govern dispositive motions in this action:

a. No later than thirty days from the date his answer is due, Defendant shall file a 

motion for summary judgment or other dispositive motion. If Defendant files a motion for 

summary judgment, it shall be supported by adequate factual documentation and shall conform in 

all respects to Federal Rule of Civil Procedure 56. If Defendant is of the opinion that this case 

cannot be resolved by summary judgment, he shall so inform the Court prior to the date the 

summary judgment motion is due. All papers filed with the Court shall be promptly served on 

Plaintiff. 

At the time of filing the motion for summary judgment or other dispositive motion, 

Defendant shall comply with the Ninth Circuit’s decision in Woods v. Carey, 684 F.3d 934 (9th 

Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary 

judgment motion. 
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b. Plaintiff’s opposition to the motion for summary judgment or other dispositive 

motion shall be filed with the Court and served on Defendant no later than twenty-eight days after 

the date on which Defendant’s motion is filed. The Ninth Circuit has held that the following notice 

should be given to pro se plaintiffs facing a summary judgment motion:

The defendants have made a motion for summary judgment by which they seek to have 

your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules 

of Civil Procedure will, if granted, end your case. 

Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 

Generally, summary judgment must be granted when there is no genuine issue of material 

fact -- that is, if there is no real dispute about any fact that would affect the result of your 

case, the party who asked for summary judgment is entitled to judgment as a matter of law, 

which will end your case. When a party you are suing makes a motion for summary 

judgment that is properly supported by declarations (or other sworn testimony), you cannot 

simply rely on what your complaint says. Instead, you must set out specific facts in 

declarations, depositions, answers to interrogatories, or authenticated documents, as 

provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 

documents and show that there is a genuine issue of material fact for trial. If you do not 

submit your own evidence in opposition, summary judgment, if appropriate, may be 

entered against you. If summary judgment is granted [in favor of the defendants], your 

case will be dismissed and there will be no trial.

Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc).

Before filing his opposition, Plaintiff is advised to read the notice that will be provided to 

him by Defendant when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure 

and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come 

forward with evidence showing triable issues of material fact on every essential element of his 

claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this 

case, he must be prepared to produce evidence in support of those allegations when he files his 

opposition to Defendant’s summary judgment motion. Such evidence may include sworn 

declarations from himself and other witnesses to the incident, copies of documents authenticated 

by sworn declaration or discovery. Plaintiff will not be able to avoid summary judgment simply 

by repeating the allegations of his complaint.

c. Defendant shall file a reply brief no later than fourteen days after the date 

Plaintiff’s opposition is filed.

d. The motion shall be deemed submitted as of the date the reply brief is due. No 
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hearing will be held on the motion unless the Court so orders at a later date.

7. Discovery may be taken in this action in accordance with the Federal Rules of Civil 

Procedure. No further court order pursuant to Rule 30(a)(2) or Local Rule 16 is required before 

the parties may conduct discovery.

8. All communications by Plaintiff with the Court must be served on Defendant, or 

Defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 

Defendant or his counsel.

9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 

informed of any change of address by filing a separate paper with the clerk headed “Notice of 

Change of Address,” and must comply with the Court's orders in a timely fashion. Failure to do so 

may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 

Procedure 41(b).

10. Extensions of time are not favored, though reasonable extensions will be granted. Any 

motion for an extension of time must be filed no later than three days prior to the deadline sought 

to be extended.

11. The Clerk shall change the caption of this complaint to indicate that the defendant is 

San Quentin State Prison. 

IT IS SO ORDERED.

Dated: October 6, 2017

__________________________________

KANDIS A. WESTMORE

United States Magistrate Judge