MCLEAN v. US FEDERAL BUREAU OF PRISONS et al

Filing 206

ENTRY Discussing Motion to Dismiss; The BOP's motion to dismiss 175 is granted. All claims against all parties have now been resolved. Judgment consistent with this Entry shall now issue. The conference scheduled for October 12, 2011, is vacated. Signed by Judge William T. Lawrence on 7/11/2011.(NKD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

WILLIAM SAMUEL MCLEAN, JR.,
Plaintiff,
vs.
FEDERAL BUREAU OF PRISONS,
Defendant.

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2:08-cv-128-WTL-WGH

Entry Discussing Motion to Dismiss
The court has previously explained that the sole remaining claim in this case is
asserted against the Bureau of Prisons (“BOP”) pursuant to the Rehabilitation Act of 1973,
29 U.S.C. § 791, et seq. The BOP moves to dismiss this claim.
Discussion
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a
complaint if it fails to state a claim upon which relief can be granted. To survive a Rule
12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the requirements of notice pleading are minimal, "a plaintiff can plead himself out of court
by alleging facts which show that he has no claim." Jackson v. Marion County, 66 F.3d 151,
153 (7th Cir. 1995); see also R.J.R. Serv., Inc. v. Aetna Cas. and Sur. Co., 895 F.2d 279,
280 (7th Cir. 1989) (holding a court is “not obliged to ignore any facts set forth in the
complaint that undermine the plaintiff's claim or assign any weight to unsupported
conclusions of law.”).
In his amended complaint, plaintiff McLean alleges that officials at the federal prison
in Terre Haute violated the Rehabilitation Act by failing to provide him with necessary
recreation. He asks for the following relief pertaining to a possible Rehabilitation Action
claim: “[t]hat the B.O.P. allow me to have recreation,” to issue a vibrating alarm watch as
a medical device, to change the sign-up system for recreation so individuals were
individually asked, to transfer him to another facility, and to allow him to be seen by an
outside doctor. McLean also requested the amount of “1,000.000” [sic] for damages. In
other words, McLean seeks injunctive relief with respect to the conditions of his
confinement at the Terre Haute facility and seeks money damages from the BOP.

McLean’s claim for injunctive relief must fail because he has been transferred to a
federal prison in Arizona. This is shown through the clerk’s docket and a series of pretrial
conferences in which the plaintiff has participated. The relief McLean seeks is related to the
condition he alleges he was subjected to at that prison–the alleged lack of recreation.
Because he has been transferred out of Terre Haute, the relief he seeks is moot. Lehn v.
Holmes, 364 F.3d 862, 871 (7th Cir. 2004) ("[W]hen a prisoner who seeks injunctive relief
for a condition specific to a particular prison is transferred out of that prison, the need for
relief . . . become[s] moot."); Higgason v. Farley, 83 F.3d 862, 871 (7th Cir. 1996) (same).
McLean’s claim for monetary damages also fails because the United States has not
waived its sovereign immunity to allow an award of monetary damages under the
Rehabilitation Act. See Lane v. Pena, 518 U.S. 187 (1996)(Ҥ 505(a)(2) [of the
Rehabilitation Act, codified at 29 U.S.C. § 794a(a)(2)] does not, without more, establish that
Congress has waived the Federal Government's immunity against monetary damages
awards beyond the narrow category of . . . violations committed by federal funding
agencies acting as such-that is, by ‘Federal providers.’”); Thompson v. United States, 2010
WL 1910293, *3 (W.D.N.Y. 2010)(“Congress has not waived the Federal Government's
sovereign immunity against awards of money damages for § 504(a) violations, except ere
a federal agency is acting as a ‘Federal provider’ of financial assistance.”)(internal quotation
marks omitted) (quoting Hollman v. Lindsay, 2009 WL 3112076, at *9 n.6 (E.D.N.Y.2009)
(quoting Sarvis v. United States, 2000 WL 1568230, at * 2 (2nd Cir. 2000) (affirming
dismissal of prisoner's Rehab Act claim against Bureau of Prisons, citing Lane, 518 U.S.
at 193).
McLean has not alleged that the BOP is such a “federal provider.” Because the
same remedy provision at issue here was at issue in Lane, Lane's analysis is controlling.
Without a waiver of sovereign immunity, McLean’s claim for monetary damages
cannot proceed.
Conclusion
A plaintiff “pleads himself out of court when it would be necessary to contradict the
complaint in order to prevail on the merits.” Tamayo v. Blagojevich, 526 F.3d 1074, 1086
(7th Cir. 2008)(citing Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006)). That
is what the plaintiff has done with respect to his claim pursuant to the Rehabilitation Act
against the BOP. The BOP’s motion to dismiss [175] is granted. All claims against all
parties have now been resolved. Judgment consistent with this Entry shall now issue.
The conference scheduled for October 12, 2011, is vacated.
IT IS SO ORDERED.

_______________________________
Date: 07/11/2011

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution:

Jeffrey L. Hunter
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
WILLIAM SAMUEL MCLEAN
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