Morgan v. California Department of Corrections & Rehabilitation

FILED
JAN 19 2010
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JONATHAN MORGAN, No. 08-17063

Plaintiff - Appellant, D.C. No. 1:05-cv-00620-LJO-
WMW
v.

CALIFORNIA DEPARTMENT OF MEMORANDUM *
CORRECTIONS AND
REHABILITATION

Defendant - Appellee.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

**
Submitted January 11, 2010

Before: BEEZER, TROTT, and BYBEE, Circuit Judges.

Jonathan Morgan, a paraplegic and former inmate of the California

Department of Corrections and Rehabilitation (“CDCR”), appeals pro se from the

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court judgment dismissing his action brought under the Americans with

Disabilities Act (“ADA”) and 42 U.S.C. § 1983. We have jurisdiction pursuant to

28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to

state a claim. Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d

1016, 1021 (9th Cir. 2009). We affirm.

Here, Morgan’s complaint does not state a claim of discrimination or

retaliation under the ADA, 42 U.S.C. §§ 12132 and 12203(a), because Morgan’s

conclusory allegations in the complaint are contradicted by his exhibits, which

show that CDCR transferred Morgan to the Secure Housing Unit because of

Morgan’s refusal to comply with prison grooming regulations and to accept an

ADA-modified double-bunk cell. See Lovell v. Chandler, 303 F.3d 1039, 1052

(9th Cir. 2002); Steckman v. Hart Brewing, 143 F.3d 1293, 1295-96 (9th Cir. 1998)

(“[W]e are not required to accept as true conclusory allegations which are

contradicted by documents referred to in the complaint.”).

The district court properly dismissed Morgan’s section 1983 claims because

CDCR is immune from suit under the Eleventh Amendment. See Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 66 (1989).

We have considered and reject all other contentions raised on appeal.

AFFIRMED.