Opinion
No. 03-CV-155A(F).
September 28, 2004
SHAWN NEVILLE, Plaintiff Pro Se, Orleans Correctional Facility, Albion, New York.
ELIOT SPITZER, ATTORNEY GENERAL, STATE OF NEW YORK, DARREN LONGO, ESQ., ASSISTANT ATTORNEY GENERAL, of Counsel, Buffalo, New York, Attorney for Defendants.
REPORT and RECOMMENDATION
JURISDICTION
This matter was referred to the undersigned by the Hon. Richard J. Arcara on June 27, 2003 for determination of all pretrial matters pursuant to 28 U.S.C. §§ 636(b)(1)(A), (B), and (C), including all dispositive and non-dispositive motions. It is presently before the court on Defendants' motion to dismiss and for judgment on the pleadings (Docket No. 6).
BACKGROUND and FACTS
Plaintiff, an inmate at the Orleans Correctional Facility ("OCF"), commenced this action pro se on February 25, 2003 alleging claims under the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. ("ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983. Plaintiff, a disabled inmate who is confined to a wheelchair, alleges that he was discriminated against on the basis of his handicap because OCF is not wheelchair accessible. Plaintiff states that renovations to the recreation yard and fire exits were only commenced in 2002. He also alleges that the gym bathroom, infirmary bathroom, vocational building walkways, and fire exits in the infirmary and activities buildings are not wheelchair accessible. Plaintiff alleges that the mess hall counter and microwave are too high and not accessible to wheelchair bound inmates, and complains of inadequate wheelchair seating in the mess hall, inadequate snow removal in the winter, lack of wheelchair seating in the baseball field, and lack of a wheelchair van (Docket No. 1). Finally, Plaintiff complains that as a result of his use of the grievance procedure to complain about the lack of wheelchair accessibility at OCF, he has been labeled a "snitch," was placed in the Special Housing Unit ("SHU") and suffered harassment at the hands of unnamed officers. Plaintiff's request to proceed in forma pauperis, filed with the Complaint on February 25, 2003 (Docket No. 2), was granted on April 3, 2003 (Docket No. 3).Defendants Ebbs and Beaver filed an answer to the complaint on May 19, 2003 (Docket Nos. 4, 5). On June 19, 2003, all Defendants moved for dismissal and judgment the pleadings pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure (Docket No. 6). Specifically, Defendants argue that they may not be sued in their individual capacities under the ADA or the Rehabilitation Act, and that plaintiff has failed to allege any personal involvement by the named Defendants in any alleged constitutional violation under § 1983. Accordingly, Defendants seek judgment and the dismissal of the complaint.
On July 21, 2003, Plaintiff filed a motion seeking the appointment of counsel (Docket No. 10). That motion was denied on July 24, 2003 (Docket No. 11). Plaintiff then sought an extension of time in which to respond to the Defendants' motion (Docket No. 14). Plaintiff was granted until October 15, 2003 to file his response to the motion (Docket No. 15). To date, Plaintiff has not filed a response. Oral argument was deemed unnecessary. For the reasons that follow, the motion to dismiss and for judgment on the pleadings should be GRANTED and the Complaint should be dismissed.
DISCUSSION
Defendants Ebbs and Beaver have each filed an answer to the Complaint and move for dismissal pursuant to Rule 12(b)(6). The remaining Defendants have not answered, and move for judgment on the pleadings pursuant to Rule 12(c). In either case, the test for evaluating the motions is the same. The court must accept all allegations in the complaint as true and draw all inferences in favor of the Plaintiff. Irish Lesbian and Gay Org. v. Giuliani, 143 F. 3d 638, 644 (2d Cir. 1998). The complaint should not be dismissed unless it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sheppard v. Beerman, 18 F. 3d 147, 150 (2d Cir. 1994). Additionally, the court must read the pro se complaint liberally and interpret it to raise the strongest argument it suggests. McPherson v. Coombe, 174 F. 3d 276, 280 (2d Cir. 1999).
Plaintiff has alleged violations of the ADA and the Rehabilitation Act in that OCF is not fully accessible to wheelchair-bound inmates. However, it is well-settled that neither the ADA nor the Rehabilitation Act provides for individual capacity suits against state officials. Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F. 3d 98, 107 (2d Cir. 2001); see also Parkinson v. Goord, 116 F.Supp.2d 390, 399 (W.D.N.Y. 2000) (dismissing ADA claims against individual defendants in individual and official capacities). Likewise, individuals cannot be named as defendants in suits under either the ADA or the Rehabilitation Act in their official or representative capacities. Parkinson v. Goord, 116 F.Supp.2d at 399 (ADA claims); Hallett v. N.Y.S. Dep't of Corr. Servs., 109 F.Supp.2d 190, 199-200 (S.D.N.Y. 2000) (dismissing ADA and Rehabilitation Act claims against individual defendants). Accordingly, Plaintiff's claims asserted under the ADA and the Rehabilitation Act should be dismissed.
Additionally, Plaintiff alleges that "[a]s a result of utilizing the grievance program I have been labeled as a snitch by officers and placed in the SHU (special Housing Unit) to which the harrassment (sic) is still an ongoing thing. I wrote to Commissioner Goord, Lucien, the Superintendent and to no avail. . . ." Docket No. 1. Defendants broadly construe this allegation as stating a First Amendment retaliation claim under § 1983, but argue that Plaintiff has failed to assert any personal involvement on the part of the named Defendants in the alleged constitutional violation.
Personal involvement of the defendant in an alleged constitutional deprivation is a prerequisite to an award of damages under § 1983. Wright v. Smith, 21 F. 3d 496, 501 (2d Cir. 1994). Here, with respect to his § 1983 claim, Plaintiff alleges that unnamed officers labeled him a "snitch" and subjected him to harassment and unwarranted time in the SHU. None of the named Defendants are implicated, but Plaintiff states that he wrote to Defendants Goord, Lucien and Beaver to complain. Personal liability of a supervisor can be shown by evidence that (1) the defendant participated directly in the alleged constitutional violation, (2) defendant, after being informed of the constitutional violation by report or appeal, failed to remedy the wrong, (3) defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuation of such custom or policy, (4) defendant was grossly negligent in supervising subordinates who committed wrongful acts, or (5) defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F. 3d 865, 873 (2d Cir. 1995). The fact of supervisory authority is insufficient to demonstrate liability under § 1983. Colon, 58 F. 3d at 874. Likewise, the mere receipt of a letter of complaint from an inmate is insufficient to establish personal involvement and liability under § 1983. Colon, supra; see also Freeman v. Goord, 2004 WL 2002927, at *5 (S.D.N.Y. September 8, 2004); Gates v. Goord, 2004 WL 1488405, at *9 (S.D.N.Y. July 1, 2004); Greenwaldt v. Coughlin, 1995 WL 232736, at *4 (S.D.N.Y. April 19, 1995). As Plaintiff has failed to allege any personal involvement on the part of the named Defendants in the alleged constitutional violation, the § 1983 claim should be dismissed.
CONCLUSION
The Defendants' motion to dismiss and for judgment on the pleadings should be GRANTED (Docket No. 6) and the complaint dismissed.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendants.
SO ORDERED.