Grant v. Scott et al

Filing 17

ORDER to Dismiss in Part and Draw in Part by Judge Lewis T. Babcock on 5/29/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00153-BNB
LARRY NEIL GRANT,
Plaintiff,
v.
LT. BERNADETTE SCOTT,
LT. DENNY OWENS,
LT. FELZIEN,
SGT. CLEMENT, and
C/O BEHRENDSEN,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW IN PART

Plaintiff, Larry Neil Grant, is in the custody of the Colorado Department of
Corrections (DOC) and currently is incarcerated at the correctional facility in Sterling,
Colorado. On January 22, 2013, Plaintiff submitted to the Court a Prisoner Complaint
asserting violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Magistrate
Judge Boyd N. Boland reviewed the Complaint and directed Plaintiff to amend and state
how named defendants personally participated in his strobe light and grievance claims.
Plaintiff filed an Amended Complaint on April 22, 2013.
The Court must construe the Amended Complaint liberally because Plaintiff is a
pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). If a complaint reasonably can be read “to state a
valid claim on which the plaintiff could prevail, [a court] should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”

Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant’s advocate.
See id. For the reasons stated below, the Complaint and the action will be dismissed in
part and drawn in part to a district judge and to a magistrate judge.
Plaintiff sets forth two claims in the Amended Complaint. In Claim One, Plaintiff
asserts that his rights were violated under the Americans with Disabilities Act (ADA),
Section 504 Title II 1973, 42 U.S.C. §§ 12101(2)(A)-(C) (2000), when he was terminated
from his “O.C.A.” job because of his disabilities. Plaintiff contends he is disabled under
the Act because he has hearing aids and walks with a cane and concludes the dismissal
from the job based on his disability violated his right to be employed at any job another
inmate may have in violation of the Act. Plaintiff also asserts that Defendants failed to
follow administrative regulations, state law, and the Colorado Constitution when they
dismissed him from his job
In Claim Two, Plaintiff asserts Defendant Lieutenant Bernadette Scott is violating
his Eighth Amendment right by not placing a strobe light in his cell, or any prison cell, to
alert prisoners who are hearing impaired that there is a fire. Plaintiff seeks money
damages, declaratory and injunctive relief, and meaningful access to the prison law
library.
With respect to Claim One, Title II authorizes suits by private citizens for money
damages against public entities. See Guttman v. Khalsa, 669 F.3d 1101 (10th Cir.
2012). Under 42 U.S.C. § 12131(1)(B), a public entity is defined as “any department,
agency, special purpose district, or other instrumentality of a State or States or local
government.” Plaintiff, however, cannot maintain an ADA claim against individual
defendants in their individual capacities because the statute does not impose individual
liability. See Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999).
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Consequently, to the extent that Plaintiff’s allegations against Defendants Lt. Bernadette
Scott, Lt. Denny Owens, Lt. Felsien, Sgt. Clement, and C/O Behrendsen impose
individual liability, the allegations will be dismissed. Because Plaintiff, in his original
Complaint, ECF No. 1, identified in the caption of the Complaint that defendants are
named in both their individual and official capacities, the Court will draw Claim One in
part to a district judge and to a magistrate judge. Claim Two also will be drawn to a
district judge and to a magistrate judge. Accordingly, it is
ORDERED that the Complaint and action are dismissed in part with respect to
the ADA claim as it is asserted against defendants in their individual capacities. It is
FURTHER ORDERED that the ADA Claim as asserted against defendants in
their official capacity, the remainder of Claim One, and Claim Two shall be drawn to a
district judge pursuant to D.C.Colo.LCivR 40.1 and to a magistrate judge.
DATED at Denver, Colorado, this

29th day of

May

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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