JOHNSON v. LEWIS et al
ORDER adopting in part and rejecting in part 7 Report and Recommendations and granting 19 Motion to Amend the Complaint. Plaintiffs Eighth Amendment and ADA claims may proceed for further factual development. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 9/8/2017 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
RICKY J. JOHNSON,
HOMER BRYSON, et al.,
Case No. 5:16‐cv‐453‐CAR‐MSH
ORDER ON RECOMMENDATION
Before the Court is the United States Magistrate Judge’s Order and
Recommendation [Doc. 7] after the preliminary screening required by 28 U.S.C. § 1915A
to allow Plaintiff’s Eighth Amendment denial of medical treatment claims to proceed
for further factual development and dismiss Plaintiff’s claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §12101, et seq. Plaintiff has filed a timely Objection
to the Recommendation to dismiss his ADA claims, asserting additional facts to address
the deficiencies in his complaint described in the Recommendation. Having considered
Plaintiff’s objection and investigated these matters de novo, the Recommendation [Doc.
7] is hereby ADOPTED IN PART and REJECTED IN PART in light of Plaintiff’s new
Because Plaintiff has asserted additional facts in his Objection regarding his ADA
claim, the Court will CONSTRUE the Objection as a Motion to Amend the Complaint.
“Although the form of those additional allegations w[as an] objection[ ] to the
recommendation of dismissal, the collective substance of [it] was to attempt to amend
the complaint. Because courts must construe pro se pleadings liberally, the district court
should . . . consider [the plaintiff’s] additional allegations in the objection[ ] as a motion
to amend his complaint and grant[ ] it.”1 Accordingly, this Motion is GRANTED.
Title II of the ADA prohibits public entities from discriminating against disabled
individuals, and it applies to services provided to inmates in Georgia state prisons.2 To
state a claim under Title II, the plaintiff must establish:
(1) that he is a qualified individual with a disability; (2) that he was either excluded
from participation in or denied the benefits of a public entity’s services, programs, or
activities or was otherwise discriminated against by the public entity; and (3) that
the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s
The Eleventh Circuit has held that “the ADA is not a ‘remedy for medical malpractice’
and ‘would not be violated by a prison’s simply failing to attend to the medical needs of
its disabled prisoners.’”4 However, the ADA is not wholly inapplicable to claims based
on deliberate indifference to an inmate’s medical condition. Indeed, the Eleventh Circuit
1 Newsome v. Chatham Cty. Det. Ctr., 256 F. App’x 342, 344 (11th Cir. 2007).
2 See Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“State prisons fall squarely within the
statutory definition of ‘public entity[.]”); Bircoll v. Miami –Dade Cnty., 480 F.3d 1072, 1081 (11th
Cir. 2007) (It is well settled law “that a disabled prisoner can state a Title II ADA claim if he is
denied participation in an activity provided in state prison by reason of his disability.”).
3 Redding v. Georgia, 557 F. App’x 840, 844 (11th Cir. 2014) (per curiam).
4 Jones v. Rutherford, 546 F. App’x 808, 811 (11th Cir. 2013) (quoting Schiavo v. Schiavo, 403 F.3d
1289, 1294 (11th Cir. 2005)).
has held that a prison’s failure to give a prisoner the treatment prescribed by his
dermatologist “is sufficient for the Plaintiff to plead a prima facie ADA claim.”5
With the newly‐asserted allegations, Plaintiff has alleged more than a mere
disagreement with his medical treatment. Plaintiff contends that he was diagnosed with
Hepatitis C, and despite having been prescribed treatment, Defendants have failed to
treat him for over nine years due to the costs. Plaintiff states the Hepatitis has
progressed, and he has now been diagnosed with cirrhosis of the liver. His liver
function is “substantially limited.” Plaintiff states that he has lost nearly twenty pounds
due to loss of appetite; has skin lesions; is suffering from headaches, nausea, and
vomiting; and is experiencing bouts of anxiety and depression. These allegations are
sufficient to permit Plaintiff’s ADA claims to proceed for further factual development.
It appears Plaintiff has named only individuals as Defendants to his ADA claim,
but the ADA “does not provide for individual liability.”6 However, the Court will
construe Plaintiff’s Complaint as seeking to raise his ADA claim against Defendants in
their official capacity and will permit that claim to proceed for further factual
development.7 To the extent Plaintiff attempts to sue any Defendant in his or her
5 Lonergan v. Fla. Dep’t of Corr., 623 F. App’x 990, 994 (11th Cir. 2015).
6 See Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996).
7 Cf. Penn. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 209 (1998) (“State prisons fall squarely within
the statutory definition of ‘public entity[.]’”); see also 42 U.S.C. § 12131(1) (“The term ‘public
entity’ means . . . any State or local government” and “any department, agency, special purpose
district, or other instrumentality of a State or States or local government[.]”); Dukes, 428 F. Supp.
at 1322 n.5 (holding that only the county that operated the jail “can be liable for any alleged
individual capacity for an ADA violation, such claims are DISMISSED.
Based on the foregoing, the Order and Recommendation [Doc. 7] is ADOPTED
in part and REJECTED in part. The findings and conclusions in the Order and
Recommendation are hereby INCORPORATED and MADE THE ORDER OF THE
COURT with the exception of the Magistrate Judge’s recommendation to dismiss
Plaintiff’s ADA claim. Accordingly, Plaintiff’s Eighth Amendment and ADA claims
may proceed for further factual development.
To the extent Plaintiff’s Complaint alleges an ADA claim against any Defendant
in his individual capacity, that claim is DISMISSED.
SO ORDERED, this 8th day of September, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
[ADA] violations as there is no individual liability under either the ADA or Rehabilitation
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