Opinion
C.A 9:21-01682-RMG-MHC
11-15-2021
Eugene P. Harrison, Plaintiff, v. Duane Parrish, Director; Devon Harris, Manager SCPRT, Defendants.
REPORT AND RECOMMENDATION
Molly H. cherry United States Magistrate Judge
This is civil action filed by Plaintiff Eugene P. Harrison, a pro se litigant proceeding in forma pauperis. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. In an Order dated June 21, 2021, Plaintiff was notified of pleading deficiencies and given an opportunity to file an amended complaint. ECF No. 9. Plaintiff filed an Amended Complaint on July 1, 2021. ECF No. 12.
After filing his Amended Complaint, Plaintiff filed a motion to amend his complaint. The motion was denied because Plaintiff failed to file a complete proposed second amended complaint. Plaintiff was notified that if he wanted to file a second amended complaint, he needed to file a motion to amend with a complete proposed amended complaint and to submit service documents for any proposed new defendant(s). A blank complaint form and service documents were sent to Plaintiff. ECF Nos. 15, 16. Plaintiff has not filed another motion to amend.
I. BACKGROUND
Plaintiff asserts that the basis for federal court jurisdiction is Title III of the Americans with Disabilities Act (ADA). Amended Complaint, ECF No. 12 at 5-6. His allegations appear to concern his use of a South Carolina rest area. He writes:
On or before Dec 1, 2018 Mr. Duane Parrish gave orders to Devon Harris to stop I the plaintiff in this matter from using a facility that accommodates a person with disabilities. The facility located on a interstate, violates a person who's traveling to stop and use that facility for accommodations.ECF No. 12 at 7 (errors in original). In the “Relief” section of his Amended Complaint, Plaintiff requests:
Punitive damages - behavoir harmful and direct: $300,000 include punitive damages in the tort law from state employee's/employer for misconduct and responsibilities to help a disable person, wanton and willful misconduct, unlawful act to inflict pain and suffering with in reguard of medical attention to change wounds on foot and to use restroom for the disable.Id. (errors in original).
II. STANDARD OF REVIEW
This case is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (pleadings by non-prisoners should also be screened). Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “is frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 327.
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
Plaintiff appears to allege that Defendants violated his rights under Title III of the ADA, and he may also be attempting to assert state law claims. As discussed below, Plaintiff fails to state a federal claim and any state law claims should be dismissed.
A. Title III of the ADA
Pursuant to Title III of the ADA, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Here, Plaintiff fails to state a claim pursuant to Title III as he has not alleged that: (1) he is disabled within the meaning of the ADA; (2) the defendants own, lease, or operate a place of public accommodation; and (3) the defendants discriminated against him because of his disability. See J.D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 669-70 (4th Cir. 2019). Plaintiff has provided very little information in his Amended Complaint about the alleged incident, only asserting that Defendant Parrish gave an order to Defendant Harris for Plaintiff to stop using a facility on an interstate. He has alleged no facts to indicate that he is disabled within the meaning of the ADA and has not alleged any facts to indicate that Defendants discriminated against him because of his disability.
Even if the facts asserted in the original Complaint are considered in addition to the Amended Complaint, Plaintiff fails to state a claim under Title III of the ADA. In his original Complaint, Plaintiff alleged that on December 1, 2018, Defendant Harris got an order from Defendant Parrish to stop Plaintiff from using the I-95 NB Welcome Center in Hardeesville, SC. Plaintiff claimed that he needed to use the rest area because he is diabetic; he had wounds on his foot; and he needed to use the facility to sit to change his wound bandage, use the restroom, and rest. He also asserted that he was engaged to Lashand Washington, an employee of the rest center, and he needed help to change his bandages. Plaintiff further states that the order to not enter the rest area was given after there was an alleged false complaint that Plaintiff raised his voice to Ms. Washington. Plaintiff appeared to dispute that he raised his voice and claimed he was only requesting help to change his wound bandages. Complaint, ECF No. 1 at 5-6.
Plaintiff was reminded that he may not amend his complaint in a piecemeal fashion and that an amended complaint replaces the original complaint and should be complete in itself. See ECF No. 9; Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted). In his Amended Complaint, however, Plaintiff omitted many of the facts asserted in his original Complaint.
Even if Plaintiff has asserted that he has a disability under the ADA, he fails to allege facts that he was discriminated against because of his disability. Although he claims that he was wrongly barred from using the rest area because he raised his voice to Ms. Washington, he fails to show that this action was taken based on his disability.
Additionally, Plaintiff's claim under Title III of the ADA fails because has only requested monetary damages. Even if Plaintiff has stated a claim under Title III, relief of monetary damages is not available in a private action under Title III. See 42 U.S.C. § 12188(a)(2); Thomas v. Salvation Army S. Terr., 841 F.3d 632, 638 (4th Cir. 2016) (noting that Title III of the ADA provides “no right of action for monetary relief”); see also Bone v. Univ. of N. Carolina Health Care Sys., No. 1:18CV994, 2020 WL 1062421, at *1 (M.D. N.C. Mar. 5, 2020) (noting that in a Title III claim, “injunctive relief is the only form of available redress”) (emphasis in original); Basta v. Novant Health, Inc., 3:19CV64, 2019 WL 3310098, at *3 (W.D. N.C. July 23, 2019) (“Title III does not allow a private party to seek monetary damages, [but rather only provides] for injunctive relief.”).
Additionally, even if Plaintiff states a claim under Title II, he has no cause of action against the named Defendants as they are individuals and not a public entity. See 28 U.S.C. § 12131(1) (defining “public entity”); Jones v. Sternheimer, 387 Fed.Appx. 366 (4th Cir. 2010) (finding that the ADA does not provide for causes of action against individuals); Adams v. Montgomery Coll. (Rockville), 834 F.Supp.2d 386, 395 (D. Md. 2011) (explaining that the ADA definition of public entity “does not include individual persons”). Although courts have found that sovereign immunity is abrogated in certain circumstances where both a Title II and a Fourteenth Amendment claim are plausibly alleged, Plaintiff has not plausibly alleged a constitutional violation. See United States v. Georgia, 546 U.S. 151, 159 (2006) (“[I]nsofar as Title II [of the ADA] creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.”) (emphasis in original); Fauconier v. Clarke, 966 F.3d 265, 280 (4th Cir. 2020) (finding that the defendants were not entitled to dismissal based on Eleventh Amendment immunity where the inmate plausibly alleged violations of both Title II of the ADA and the Fourteenth Amendment); Treadway v. Mullins, No. 7:20CV00571, 2021 WL 4267519, at *13 (W.D. Va. Sept. 20, 2021) (a plaintiff who plausibly alleges a claim under Title II of the ADA and also plausibly presents the elements of a constitutional violation may proceed with the ADA claim for damages against the defendants in their official capacities, essentially as a claim against the State). Plaintiff makes one reference to Title II in regard to a technical assistance manual - ECF No. 12 at 5. If Plaintiff is attempting to allege a claim under Title II rather than Title III of the ADA, he fails to state a claim as he has not asserted that he: 1) has a disability; (2) is “otherwise qualified to receive the benefits of a public service, program, or activity;” and (3) was “denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of their disability.” Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 502-03 (4th Cir. 2016) (citing Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005)).
B. State Law Claims
Plaintiff may also be attempting to allege state law claims. However, as Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...”. 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Here, Plaintiff and Defendants all are citizens of South Carolina. See ECF No. 12 at 2. Thus, complete diversity is lacking, and Plaintiff may not bring claims pursuant to § 1332. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
IV. RECOMMENDATION
Accordingly, it is recommended that the Court dismiss the Amended Complaint without leave to amend and without issuance and service of process.
The Fourth Circuit Court of Appeals has noted that, where the district court has already afforded a litigant with an opportunity to amend, the district court has the discretion to either afford another opportunity to amend or can “dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.” Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993).
Plaintiffs attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).