Opinion
C.A. No. 04-158 ML.
November 22, 2004
Stephen Reise, prose, for Appellant Counselors.
Jay Elias, Esq., Michael Field, Esq., Alan Tate, Esq., for Appellee Counselors.
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 Motola and Melvin White, employees or officials at the Department of Corrections.
This matter is currently before the Court on the partial motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), filed by defendant Dr. Baruh Motola. Motola seeks dismissal of plaintiff's claim made pursuant to 42 U.S.C. § 12132. Plaintiff hasobjected 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 Dr. Motola's partial motion to dismiss be granted.
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 DOC medical personnel 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. Motola. Dr. Motola 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 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 has filed suit seeking relief. Plaintiff alleges that the defendants have violated several constitutional provisions, in addition to the Americans with Disabilities Act ("ADA"). Currently before the Court is defendant Motola's motion to dismiss plaintiff's ADA claim pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has opposed the motion.
Discussion
A. Fed.R.Civ.P. 12(b)(6) Standard
Rule 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
Here, defendant Motola has moved to dismiss plaintiff's Americans with Disabilities Act claim. Congress enacted the Americans with Disabilities Act ("ADA" or "Act"), 42 U.S.C. § 12101 et seq., "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 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 id. § 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 to 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 Title II of 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, defendant Motola 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 was because of the 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 shoddy medical care and treatment. No facts in the Complaint allege that the plaintiff was discriminated against because of his medical condition. Accordingly, I recommend that Motola's motion to dismiss plaintiff's ADA claims be granted.
Conclusion
For the reasons set forth above, I recommend that Motola's partial motion to dismiss be granted. 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).