Opinion
C.A. No. 04-158 ML.
September 27, 2004
Stephen Reise, Pro se, for Appellant.
Jay M. Elias, Esq., Michael W. Field, Esq., Tom Palombo, Esq., Alan R. Tate, Esq., for Appellee.
Report and Recommendation
Stephen Reise ("Reise" or "plaintiff"), pro se, an inmate legally incarcerated at the Rhode Island Department of Corrections, Adult Correctional Institutions, filed a Complaint pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132. Reise names as defendants Ashbel T. Wall, Joseph Marocco, Dr. Scott Allen, Dr. Baruh Matola and Melvin White, employees or officials at the Department of Corrections.
This matter is currently before the Court on the motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), filed by Ashbel T. Wall ("Wall" or "defendant") both in his official and individual capacity. Plaintiff has objected thereto. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that Wall's motion to dismiss be granted on plaintiff's claim under 42 U.S.C. § 12132, and denied on plaintiff's 42 U.S.C. § 1983 claims.
Background
The following are the factual allegations gleaned from the Complaint which are taken as true for purposes of the instant motion:
Upon Reise's incarceration at the Rhode Island Department of Corrections ("DOC"), Adult Correctional Institutions in October of 1999, Reise informed medical personnel at the DOC about symptoms that he was having, which included acid reflux, daytime drowsiness, an inability to concentrate, and poor memory. While incarcerated, plaintiff's symptoms worsened and he was examined by defendant Dr. Matola. Dr. Matola ordered that the plaintiff have a "sleep test." Following the sleep test, plaintiff was informed that he had a mild case of sleep apnea. To treat this condition, the DOC provided the plaintiff with a "C.P.A.P. machine."
On or about January 2003, plaintiff's C.P.A.P. machine suffered some mechanical problems due to normal wear and tear. Plaintiff requested that replacement parts be ordered. However, plaintiff alleges that replacement parts were not forthcoming, despite the fact that the C.P.A.P. machine was not operating properly. Due to the improper operation of the C.P.A.P. machine, plaintiff suffered from frequent nose-bleeds and his initial symptoms re-appeared.
After about a year of complaining about the lack of replacement parts, with no apparent action by DOC officials to repair the C.P.A.P. machine, plaintiff requested his medical records from the DOC. When he received his medical records, plaintiff discovered that his medical condition was in fact much worse than he had been led to believe. Plaintiff contends that "polices and/or practices" at the Department of Corrections resulted in injury.
Plaintiff has filed suit seeking relief. Plaintiff alleges that the defendants have violated several constitutional provisions, in addition to the Americans with Disabilities Act. Defendant Wall has moved to dismiss plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has opposed the motion.
Discussion
A.Fed.R.Civ.P. 12(b)(6) StandardRule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted. In ruling on a motion filed under Rule 12(b)(6), the court must "accept the well pleaded averments of the * * * complaint as true, and construe these facts in the light most favorable to the [plaintiff]." Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). A Rule 12(b)(6) motion will only be granted when, viewed in this manner, it appears beyond a doubt that the 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, 45-6 (1957).
Under a Rule 12(b)(6) motion, "a reviewing court is obliged neither to credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation, nor to honor subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). Unverifiable conclusions, not supported by the stated facts, deserve no deference. Id. Thus, in ruling on the motion to dismiss, the pertinent inquiry is whether plaintiff's complaint sets forth sufficient factual allegations which, if proven, would support his claims.
B. Americans with Disabilities Act
Defendant Wall has first moved to dismiss plaintiff's Americans with Disabilities Act claim. See 42 U.S.C. § 12101 et seq. Congress enacted the Americans with Disabilities Act ("ADA" or "Act"), "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." See 42 U.S.C. § 12101(b)(1). Title I of the Act prohibits discrimination in employment. See id. § 12112. Title III of the Act prohibits discrimination in access to public accommodations like hotels, restaurants, and theaters.See id. §§ 12182, 12184. Title II of the Act, the provision as issue here, prohibits discrimination against persons with disabilities by "public entities." See 42 U.S.C. § 12132. Title II provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." Id. This prohibition applies at state prisons. See Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206 (1998).
A "public entity" includes "any department, agency, special purpose district, or other instrumentality of a State or States or local government." See 42 U.S.C. § 12131(1)(B). The plain language of the statute indicates that it applies to public entities, and not individuals. See Miller v. King, 2004 WL 2035197 (11th Cir. Sept. 14, 2004). Here, plaintiff is proceeding against all of the defendants in both their individual and official capacities. This Court need not speak on the distinction between "official" and "individual" capacity suits under the ADA at this time since under either scenario, plaintiff's Complaint fails to state a claim.
To state a claim for a violation of Title II, a plaintiff must allege (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. Parker v. Universidad de Puerto Rico, 225 F.3d 1, 4 (1st Cir. 2000).
Here, Wall has moved for dismissal, asserting that the plaintiff has not properly alleged that he was discriminated against based upon his disability. Indeed, nowhere in plaintiff's Complaint does he complain of discrimination. What he does complain about is inadequate medical care under the Eighth Amendment and perhaps medical malpractice. The ADA, however, does not create a remedy for medical malpractice or Eighth Amendment violations. See i.e. Moore v. Prison Health Services, 24 F.Supp.2d 1164, 1167 (D.Kan. 1998); See also Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) (holding that the ADA does not create a remedy for medical malpractice).
Since there are no allegations anywhere in the Complaint that the failure of the defendant to provide adequate medical care — here replacement parts for the C.P.A.P. machine — was because of plaintiff's medical condition, plaintiff's Complaint fails to properly state a claim for a violation of Title II of the ADA. Quite simply, plaintiff's Complaint rests upon inadequate medical care and treatment. No facts in his Complaint allege that the plaintiff was discriminated against because of his medical condition. Accordingly, I recommend that Wall's motion to dismiss plaintiff's ADA claim be granted.
C. 42 U.S.C. § 1983 Claims
Plaintiff has also brought claims under 42 U.S.C. § 1983. Wall has moved to dismiss the Section 1983 claims lodged against him as well. Section 1983 provides, in pertinent part:
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
In order to maintain a section 1983 action, the conduct complained must be committed by a person acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Here, there is no dispute that defendant Wall acted under the color of state law. Plaintiff also asserts in his Complaint that Wall violated several Constitutional provisions. Wall has moved to dismiss the Section 1983 claims, claiming the Reise's Complaint fails to indicate the Wall had knowledge of the plaintiff's situation and that Wall "is being sued solely because of his supervisory capacity." See Memorandum in Support of Defendant, Director A.T. Wall's, Individually and Officially, Motion to Dismiss, at 7, quoting Complaint ¶ 4. Indeed, a Section 1983 action can not be based upon respondeat superior. Pinto v. Nettleship, 737 F.2d 130, 132 (1st Cir. 1984).
While plaintiff's Complaint does not link Wall directly to the alleged wrong-doing, it does provide another possible avenue for relief against this defendant. Plaintiff alleges in his Complaint that the "policies and/or practices" of the defendants resulted in his injuries being worsened. See Complaint ¶ 1; See also Complaint at ¶¶ 4, 27, 28, 29, 30, 32. Plaintiff further alleges that Wall is responsible for the "promulgation . . . of rules, regulations, policies, and practices" at the Department of Corrections. Id. at ¶ 4.
A supervisor's unconstitutional policy can lead to liability for the constitutional violation on the part of the supervisor.Oklahoma v. Tuttle, 471 U.S. 808 (1985); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994) ("One way in which a supervisor's behavior may [lead to Section 1983 liability] is by formulating a policy, or engaging in a custom, that leads to the challenged occurrence."). Given the broad scope of authority bestowed upon Wall as the Director of the Department of Corrections, see R.I. Gen. Laws 42-56-10(5) (The Director of the Department of Corrections shall "[m]anage, direct, and supervise the operations of the department."), and considering that pro se complaints are to be liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), Wall's motion to dismiss should be denied at this time.
First, the incident complained of here is not isolated. Plaintiff alleges that he had been seeking replacement parts for the C.P.A.P. machine for over a year, with no result, all while allegedly suffering. Second, a fair reading of plaintiff's allegations indicate that the policies and/or practices at the Department of Corrections led to, or aggravated the plaintiff's condition, since the replacement parts were not timely provided, despite his numerous requests to DOC personnel. And, third, Wall, as the ultimate authority at the Department of Corrections, is responsible for formulating, implementing, or modifying those policies or practices that led to this failure to provide the necessary parts in a timely fashion.
A liberal reading of the Complaint suggests that these policies or practices, formulated or implemented by Wall, led to an aggravation of plaintiff's injuries. Based upon these assertions, this Court can not say that the plaintiff will not be able to prove any set of facts that would entitle him to relief from Wall under Section 1983. Plaintiff shall be left to his burden at trial on this matter. Accordingly, Wall's motion to dismiss this aspect of plaintiff's Complaint should be denied. I so recommend.
Conclusion
For the reasons set forth above, I recommend that Wall's motion to dismiss be granted on plaintiff's ADA claim, and denied on plaintiff's Section 1983 claims. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).