Brotherton v. Hill et al
ORDER granting in part and denying in part 4 Motion to Dismiss for Failure to State a Claim. Clarifying amendments, if any, are due by January 18, 2013. Signed by Judge D. P. Marshall Jr. on 1/9/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JAY HILL, individually and in his
official capacity; ALLEN JACKSON,
individually and in his official capacity;
ALLEN RUSHING, individually and
in his official capacity; DAVID DONHAM,
individually and in his official capacity;
Defendants motion for partial dismissal, Document No. 4, is granted in
part and denied in part.
Brotherton concedes that the Arkansas Health Center is not an
entity amenable to suit. This healthcare facility is dismissed as a defendant
It is unclear whether, in Count II, when Brotherton refers to
"Defendants" he means the Arkansas Health Center or some other entity. The
Court declines Defendants' request for an advisory opinion about unnamed
entities. If Brotherton means some entity other than the Center, he should file
an amended complaint clarifying this by 18 January 2013. In the meantime,
Count II is dismissed without prejudice.
Brotherton has not made a plausible allegation that either Allen
Jackson or Allen Rushing violated his Fourth Amendment rights. No facts
alleged by Brotherton support their involvement in the drug test. They were
merely lumped in with the other defendants. This does not satisfy the
pleading standard. FED. R. CIV. P. 8. Brotherton's Fourth Amendment claims
against Jackson and Rushing are dismissed without prejudice.
The Fifth Amendment claims set out in Brotherton's complaint are
murky. But the results of the drug test were not used against Brotherton, so
there was no constitutional violation. Davis v. City of Charleston, 827 F.2d 317,
323 (8th Cir. 1987). Therefore, the Fifth Amendment claims are dismissed
5. Brotherton's retaliation claims in violation of the First Amendment
and the Rehabilitation Act are dismissed without prejudice because the
allegations, even if taken as true, do not constitute a violation of the law. His
claims that he was threatened with unspecified disciplinary action, yelled at,
and told to take a day of sick leave do not amount to a materially adverse
employment action. Burlington Northern v. White, 548 U.S. 53,68 (2006).
The Rehabilitation Act does not authorize individual liability.
Damron v. North Dakota Commissioner of Corrections, 299 F. Supp. 2d 970,979
(D.N.D. 2004), affd, 127 Fed. App'x 909 (8th Cir. 2005) (non-precedential).
Brotherton's Rehabilitation Act claims against individual defendants Hill,
Jackson, Rushing, and Donham are therefore dismissed with prejudice.
7. The Americans with Disabilities Act, incorporated by reference in
the Rehabilitation Act, states that tests to determine whether employees have
used illegal drugs are not "medical examinations," 42 U.S.C. § 12114(d)(l),
and that these kinds of tests are not prohibited, 42 U.S.C. § 12114(d)(2).
Brotherton's claims alleging that he was subjected to illegal medical
examinations and inquiries under the Act are therefore dismissed with
8. Brotherton's retaliation claims under the Rehabilitation Act are not
legally cognizable. His opposition to the drug test is not protected under the
ADA. 42 U.S.C. § 2203(a); 29 U.S.C. § 794(d). These claims are dismissed with
prejudice. Because the Court dismisses Brotherton's Rehabilitation Act claims
as not legally cognizable, his related claim for emotional-distress damages is
Brotherton says that he has not asserted a claim for punitive
damages against a state entity. To the extent that any such allegation lurks in
the complaint, it is dismissed without prejudice.
Motion, Document No. 4, granted in part and denied in part. Clarifying
amendments, if any, due by 18 January 2013. If Brotherton amends his
complaint, he should also eliminate all claims decided by this Order (and
remove Arkansas Health Center as a party) to clarify the live issues for
D.P. Marshall Jr. (/
United States District Judge
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