Opinion
No. 2:02-CV-0291
January 10, 2003
REPORT AND RECOMMENDATION
Plaintiff KIM ERIC BOSTICK, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit on the form promulgated for prisoner use for claims under Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been given permission to proceed in accordance with Title 28, United States Code, section 1915(b).
Plaintiff claims he was discriminated against because of his disability, multiple sclerosis, and was denied equal protection in violation of the U.S. Constitution and the Americans with Disabilities Act when he was not allowed to continue taking trade classes in plant maintenance. Plaintiff states he was allowed to complete over three hundred hours before it was determined he was not eligible to attend the class because of his disability. Plaintiff says the class has now been dropped, because of inmate misconduct, and he has lost all his 300 hours of credit. Plaintiff requests monetary damages.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiffs pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff's request for monetary damages defines his suit against the defendants as one against them in their individual capacities. Title II of the Americans with Disabilities Act (ADA), Title 42, United States Code, section 12132, prohibits discrimination against disabled persons in "services, programs, or activities of a public entity". Title II enforcement incorporates the "remedies, procedures and rights set forth in [the enforcement provision of the Rehabilitation Act, Title 29, United States Code, section 794a]". 42 U.S.C. § 12133. The Fifth Circuit previously analyzed the enforcement provision of 29 U.S.C. § 794a and held that, since the program is the recipient of any federal financial assistance, the plaintiff cannot sue an individual under the Rehabilitation Act and cannot utilize section 1983 as a vehicle to establish such individual liability. Lollar v. Baker, 196 F.3d 603 609 (5th Cir. 1999). Further, the Fifth Circuit examined section 1983 and determined relief under that more general statutory scheme was foreclosed by the specific comprehensive enforcement mechanism of 29 U.S.C. § 794a. Id. at 609-10. Because Title II relief under the ADA relies entirely upon the same statutory provision for enforcement, it appears plaintiff cannot sue the defendants in their individual capacities for relief, accord, Johnson v. State of Louisiana. No. Civ. A. 01-2002, 2002 WL 83645 (E.D. La. Jan. 18, 2002); and cannot utilize Title 42, United States Code, section 1983 as an avenue to establish individual liability. Further, in Lollar, the Fifth Circuit cited with approval the Eleventh Circuit holding in Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997), that section 1983 could not be utilized as an additional or alternative method for enforcement of rights covered by the comprehensive remedial scheme for claims under either the Rehabilitation Act or the ADA. Thus, plaintiffs claims against the defendants lack an arguable basis in law and are frivolous.
Lastly, the Court notes that, had injunctive relief been possible and had plaintiff been allowed to amend his complaint to sue his defendants in their official capacities, such a suit would still have been foreclosed by sovereign immunity. Reickenbacker v. Foster. 274 F.3d 974 (5th Cir. 2001) (Title II of the ADA does not represent a valid exercise of Congressional power under Section 5 of the Fourteenth Amendment and does not abrogate state sovereign immunity under the Eleventh Amendment). Thus, no possible cure of pleading nicety or theory of relief could provide an arguable legal basis for plaintiff's claims.
CONCLUSION
For the reasons set forth above, and pursuant to Title 28 U.S.C. § 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff KIM ERIC BOSTICK be DISMISSED WITH PREJUDICE AS FRIVOLOUS.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to any attorney of record, utilizing the inmate correspondence reply card or certified mail, return receipt requested, as appropriate. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.