Reise v. Wall

Full title: STEPHEN REISE v. A.T. WALL, Director of the Rhode Island Department of…

Court: United States District Court, D. Rhode Island

Date published: Nov 30, 2004

C.A. No. 04-158 ML (D.R.I. Nov. 30, 2004)

Opinion

C.A. No. 04-158 ML.

November 30, 2004

Report and Recommendation

JACOB HAGOPIAN, Recalled Magistrate Judge

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 motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), filed by defendant Dr. Scott Allen, the Medical Director at the Department of Corrections. Dr. Allen seeks dismissal of plaintiff's claims made pursuant to 42 U.S.C. § 12132 and 42 U.S.C. § 1983. 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 Dr. Allen's motion to dismiss be granted on plaintiff's claims under 42 U.S.C. § 12132, and denied on plaintiff's claims under 42 U.S.C. § 1983.

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 had 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 Allen's motion to dismiss 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 (1^st 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 (1^st 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 Claim

Defendant Allen has first 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."¹ 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).

1 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, 384 F.3d 1248 (11^th Cir. 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 (1^st Cir. 2000).

Here, defendant Allen 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. 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.

Since there are no allegations anywhere in the Complaint that the failure of any of the defendants 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. The ADA, 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 (7^th Cir. 1996) (holding that the ADA does not create a remedy for medical malpractice).

C. 42 U.S.C. § 1983 Claims

Next, Dr. Allen has moved for dismissal of plaintiff's claims under 42 U.S.C. § 1983. 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 Allen acted under the color of state law. Dr. Allen has moved to dismiss the Section 1983 claims, first claiming "there is no evidence that defendant Allen in any way acted to deprive the plaintiff of his constitutional rights. . . ." See Defendant Scott Allen's Memorandum of Law in Support of his Motion to Dismiss, at 8 (emphasis added). However, at this stage, the Court does not look to evidence proffered. In a motion to dismiss pursuant to Rule 12(b)(6), the Court looks only to the Complaint, and any properly annexed documents, to identify whether any set of facts could support plaintiff's claims. See Rodi v. Southern New England School of Law, 2004 WL 2537204 (1^st Cir. 2004) ("In ruling on whether plaintiff has stated an actionable claim, an inquiring court, . . . must consider the complaint, documents annexed to it, and other materials fairly incorporated within it.").

Second, Dr. Allen asserts that the plaintiff has failed to connect him to any wrong-doing. Indeed, in plaintiff's Complaint, the only mention of Dr. Allen is in a paragraph identifying him as a defendant and an averment indicating that "[o]n or about February 26, 2004 plaintiff sent a letter to Dr. Scott Allen and received a reply on or about March 2, 2004." Complaint at 5, ¶ 19. However, annexed to the Complaint is a copy of this letter that plaintiff refers. In the letter, plaintiff complains about the lack of replacement parts for his CPAP machine and some other medial-related grievances. Moreover, plaintiff indicates in the Complaint that the "defendants" refused to, and continue to refuse to, provide the necessary parts and treatment for his medical condition.

Considering pro se Complaints should be liberally construed,see Haines v. Kerner, 404 U.S. 519, 520 (1972), Dr. Allen's assertion that he is not adequately connected to the wrong-doing is misplaced. While plaintiff's Complaint is broad in expression, a liberal reading, including the letter to Dr. Allen annexed to the Complaint, indicates that Dr. Allen, the Medical Director at the DOC, was placed on notice of plaintiff's medical condition, yet allegedly did nothing to rectify plaintiff's plight. In plaintiff's words, Dr. Allen allegedly turned "a blind eye" to his medical problems. See Plaintiff's Objection to Defendant Scott Allen's Motion to Dismiss at 1.

Based upon these allegations, this Court can not say that plaintiff can prove no set of facts that would provide relief under Section 1983. Plaintiff has set forth facts connecting Dr. Allen to some alleged wrong-doing. Accordingly, I recommend that Dr. Allen's motion to dismiss plaintiff's Section 1983 claims be denied.

Conclusion

For the reasons set forth above, I recommend that Dr. Allen's motion to dismiss be granted on plaintiff's ADA claims, 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).