STROMINGER v. INDIANA DEPT. OF CORRECTIONS et al
Filing
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ENTRY Discussing Amended Complaint and Directing Further Proceedings - The statutory claims against the individual defendants are DISMISSED. The ADA claims are DISMISSED. All claims against the individual defendants (in their individual and official capacities) and the Section 1983 claims are DISMISSED. No partial final judgment shall issue at this time as to the claims resolved in this Entry. See Entry for Claims which shall proceed against the IDOC. The defendants shall have 30 days from the date this Entry is issued in which to file an answer or otherwise respond to the amended complaint. See Entry for details. Signed by Judge Jane Magnus-Stinson on 11/1/2013 (copy mailed to Plaintiff).(LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
RAYMOND STROMINGER,
)
)
Plaintiff,
)
)
vs.
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INDIANA DEPT. OF CORRECTIONS, et )
al.,
)
)
Defendants. )
Case No. 2:13-cv-291-JMS-WGH
Entry Discussing Amended Complaint and Directing Further Proceedings
Before the Court is plaintiff Raymond Strominger’s 42-page amended complaint.
Strominger is confined to a wheelchair and currently incarcerated at the Wabash Valley
Correctional Facility (“WVCF”). He has sued the Indiana Department of Corrections (“IDOC”)
and 17 employees claiming violations of the Rehabilitation Act, 29 U.S.C. §§ 794–94e, the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111–213, and the Fourteenth
Amendment. All of Strominger’s claims arise from his allegations that employees at WVCF have
failed to accommodate his disability and have refused his participation in the ACT program
because of his disability. The amended complaint is now subject to the screening requirement of
28 U.S.C. § 1915A(b). For the reasons explained below, certain claims are dismissed while other
claims shall proceed.
I. Standard of Review
Pursuant to 28 U.S.C. § 1915A(b), “[a] complaint is subject to dismissal for failure to
state a claim if the allegations, taken as true, show that plaintiff is not entitled to relief.” Jones v.
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Bock, 549 U.S. 199, 215 (2007). To satisfy the notice-pleading standard of Rule 8 of the Federal
Rules of Civil Procedure, a complaint must provide a “short and plain statement of the claim
showing that the pleader is entitled to relief,” which is sufficient to provide the defendant with
“fair notice” of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) and quoting Fed. R. Civ. P.
8(a)(2)). To survive a motion to dismiss, the complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. . . . A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quotations omitted). Pro se complaints such as that filed by Strominger, are
construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.
Erickson, 551 U.S. at 94; Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
II. Certain Claims are Dismissed
Applying the standard set forth above certain claims must be dismissed.
A.
Statutory Claims
The statutory claims against the individual defendants are dismissed. Several of the
individual defendants are named in the ADA and Rehabilitation Act claims, but employees of the
IDOC are not amenable to suit under the Rehabilitation Act or the ADA. See Jaros v. Illinois
Dept. of Corrections, 684 F.3d 667, 670 (7th Cir. 2012) (citing 29 U.S.C. § 794(b); 42 U.S.C. §
12131; Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004); Garcia v. S.U.N.Y. Health
Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (collecting authority)). Accordingly, the
ADA and Rehabilitation Act claims against the individual defendants in their individual
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capacities are dismissed. In addition, a claim against the individual defendants in their official
capacities is really a claim against the IDOC. See Jaros, 684 F.3d at fn.2. Because the IDOC is
also named as a defendant the ADA and Rehabilitation Act claims against the individual
defendants in their official capacities are dismissed as duplicative.
The ADA claims are dismissed. The relief provided by the ADA and Rehabilitation Act
are coextensive and a plaintiff suing under both statutes may have only one recovery. Jaros, 684
F.3d at 671 (citing Duran v. Town of Cicero, Ill., 653 F.3d 632, 639 (7th Cir. 2011) (plaintiffs
may have but one recovery); Calero–Cerezo v. United States Dep't of Justice, 355 F.3d 6, 11 n. 1
(1st Cir. 2004) (dismissal of ADA claim had no effect on scope of remedy because
Rehabilitation Act claim remained)). In addition, “the analysis governing each statute is the same
except that the Rehabilitation Act includes as an additional element the receipt of federal funds,
which all states accept for their prisons.” Id. For these reasons the ADA claims (and their
associated question of sovereign immunity) are summarily dismissed. Id.
B.
Constitutional Claims
The amended complaint purports to bring four constitutional claims against the individual
defendants pursuant to 42 U.S.C. § 1983. The first claim is dismissed for failure to state a claim.
The remaining claims are barred by the statute of limitations.
The first claim alleges the denial of access to the ACT program without due process. The
first inquiry in every § 1983 case is whether there has been the deprivation of a right secured by
the Constitution or laws of the United States, for without a predicate constitutional violation one
cannot make out a prima facie case under ' 1983. Juriss v. McGowan, 957 F.2d 345, 349 n.1
(7th Cir. 1992).
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Strominger suggests that he has a liberty interest in participating in the ACT program
because upon completion of the program an inmate may be released from administrative
segregation and returned to general population. In Sandin v. Conner, 115 S. Ct. 2293, 2300
(1995), the Supreme Court explained that state-created liberty interests—which is to say, due
process protections—“will be generally limited to freedom from restraint which, . . . imposes
atypical and significant hardships on the inmate in relation to the ordinary incidents of prison
life.” Id. “In the absence of such ‘atypical and significant’ deprivations, the procedural
protections of the Due Process Clause will not be triggered.” Lekas v. Briley, 405 F.3d 602, 608
(7th Cir. 2005). The alleged denial of participation in the ACT program does not constitute the
loss of a protected liberty interest because it did not result in an atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison lifeBnor did it prolong the anticipated
duration of his confinement. This denial, therefore, did not implicate Strominger’s undoubted
right to due process. See, e.g., Higgason v. Farley, 83 F.3d 807, 809-810 (7th Cir. 1996) (the
denial of access to educational programs does not infringe on a protected liberty interest, even if
denied the opportunity to earn good time credits); Garza v. Miller, 688 F.2d 480, 485-86 (7th
Cir. 1982) (there is no constitutional mandate that prisons must provide rehabilitative programs),
cert. denied, 459 U.S. 1150 (1983).
Similarly, to the extent that Strominger alleges that he was denied due process in his
attempts to grieve or otherwise pursue his administrative remedies related to the denial of
participation in the ACT program this claim is also denied. The Seventh Circuit has “specifically
denounc[ed] a Fourteenth Amendment substantive due-process right to an inmate grievance
procedure.” Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir. 2008). As explained in Antonelli
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v. Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996), “any right to a grievance procedure is a
procedural right, not a substantive one. Accordingly, a state’s inmate grievance procedures do
not give rise to a liberty interest protected by the Due Process Clause.” Id. at 1430-31(internal
citations omitted). Because Strominger had no expectation of a particular outcome of his
grievances or complaints there is no viable claim which can be vindicated through ' 1983. Juriss
v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992) (without a predicate constitutional violation
one cannot make out a prima facie case under ' 1983).
The plaintiff’s remaining claims are barred by the statute of limitations, which is two
years for constitutional torts in Indiana. See Myles v. United States, 416 F.3d 551 (7th Cir. 2005).
Strominger alleges that he was denied access to his wheelchair on certain occasions for extended
periods of time on or before November 2010; denied outside recreation until January 3, 2011,
when a wheelchair ramp was installed; and denied the use of a handicap accessible van between
April 14, 2010 and April 28, 2010.
This action was filed on August 9, 2013, more than two years after wheelchair, outside
recreation and handicap accessible van claims accrued. “It is, of course, ‘irregular’ to dismiss a
claim as untimely under Rule 12(b)(6). . . . However, . . . dismissal under Rule 12(b)(6) on the
basis of a limitations defense may be appropriate when the plaintiff effectively pleads [himself]
out of court by alleging facts that are sufficient to establish the defense.@ Hollander v. Brown,
457 F.3d 688, 691 n.1 (7th Cir. 2006) (internal citations omitted); see also Koch v. Gregory, -Fed. Appx. --, 2013 WL 5779636 (7th Cir. Oct. 28, 2013) (stating that when the language of the
complaint plainly shows that the statute of limitations bars the suit, dismissal under § 1915A is
appropriate).
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In conclusion, all claims against the individual defendants (in their individual and
official capacities) and the § 1983 claims are dismissed. No partial final judgment shall issue
at this time as to the claims resolved in this Entry.
III. Certain Claims Shall Proceed
The remaining claims for consideration are brought under the Rehabilitation Act. To state
a claim under the Rehabilitation Act, Strominger need only allege that (1) he is a qualified
person (2) with a disability and (3) the IDOC denied him access to a program or activity because
of his disability. Jaros, 684 F.3d at 672. Refusing to make reasonable accommodations is
tantamount to denying access. Id. The following RA claims against the IDOC (the sole
remaining defendant) shall proceed as submitted:
Claim 1: Strominger alleges that the IDOC has discriminated against him by denying him
the opportunity to participate in the ACT program because he is confined to a wheelchair. In
other words he has been kept out of the program because of his disability.
Claim 2: Strominger alleges that the IDOC has failed to accommodate his disability by
taking his wheelchair for extended periods of time and as a result he was denied the ability to
move about his cell.
Claim 3: Strominger alleges that the IDOC denied him access to the outside recreation
area because he is confined to a wheelchair.
Claim 4: Strominger alleges that that the IDOC refused to accommodate his disability
with a wheelchair accessible van such that he was denied the ability to attend an eye doctor
appointment.
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The defendants have appeared in this action and shall have 30 days from the date this
Entry is issued in which to file an answer or otherwise respond to the amended complaint.
In concluding that the four Rehabilitation Act claims referenced above may proceed, the
court makes no finding as to the application of the statute of limitations as to these claims. The
amended complaint suggests that the four year statute of limitations provided by 28 U.S.C.
§ 1658 should be applied. This issue will not be addressed by the court sua sponte. The
defendant may raise this issue in a motion pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure if appropriate.
IT IS SO ORDERED.
_______________________________
11/01/2013
Date: __________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution:
All Electronically Registered Counsel
RAYMOND STROMINGER
160814-B701
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
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