King v. Mitchell et al

Filing 51

MEMORANDUM OPINION (c/m to Plaintiff 8/10/18 sat). Signed by Judge Deborah K. Chasanow on 8/10/2018. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ROBERT JOSEPH KING
:
v.

:

Civil Action No. DKC 16-3804

:
ROBERT L. NEALL,1 et al.
:
MEMORANDUM OPINION
Presently
motion

to

pending

dismiss

and

filed

by

ready

for

Defendants

resolution
Dennis

are:

(1)

Schrader,

a

the

Maryland Department of Health, Wayne Noble, and Chandra Wiggins
(“Defendants”) (ECF No. 33);2 a motion to stay the court’s prior
order filed by Plaintiff Robert Joseph King (“Plaintiff”) (ECF
No. 37); and a motion for leave to file a surreply filed by
Plaintiff (ECF No. 40).3

The issues have been briefed, and the

court now rules, no hearing being deemed necessary.
105.6.
1

Local Rule

For the following reasons, the motion to dismiss will be

Since the appeal was noted
replaced Dennis R. Schrader and
Maryland Department of Health.
Neall will be substituted as the
Fed.R.Civ.P.25(d).

in this case, Robert L. Neall
became the Secretary of the
(ECF No. 45).
Accordingly,
proper defendant pursuant to

2

The original complaint stated claims against four other
people, but the amended complaint did not identify these people.
Despite the filing of the motion to dismiss on behalf of all the
people named in the original complaint, only the four parties
identified in the amended complaint are defendants.
3

The motion discusses a “surrebbuttal,” but Local Rules
refer to a “surreply” and the term “surreply” will be used.

granted, the motion to stay will be denied, and the motion for
leave to file a surreply will be denied.
I.

Background
Plaintiff

is

a

patient

at

Clifton

T.

Perkins

Hospital

Center (“Perkins”), a psychiatric hospital operated by Defendant
Maryland

Department

incontinence.
filed

a

of

Health,

(ECF No. 29).

complaint

and

suffers

from

On November 21, 2016, Plaintiff

alleging

disability

discrimination

violation of the Americans with Disabilities (“ADA”).
1).

The

pursuant

court
to

construed

Title

employment matter.

I

of

the
the

urinary

complaint
ADA

as

because

(ECF No.

bringing
it

in

related

a

claim
to

an

The court dismissed the complaint without

prejudice because, although the complaint conceivably stated a
violation of the ADA, it did not connect the violation to any
available relief.

(ECF No. 27).

Plaintiff filed an amended complaint on September 13, 2017.
In it, he appears to have copied the factual background portion
of the court’s prior opinion.

He alleges that he was given an

opportunity to work in Perkins’ horticulture program but was
told that due to his urinary incontinence, he needed a doctor’s
note.

He was next told that he would be limited in the number

of hours he worked and that “if his disabilities interfered with
the job, then he would not be allowed to work.”
2).

(ECF No. 29, at

Five days later he was told that he would not be allowed to
2

work in horticulture.

Plaintiff also alleges that Defendants

violate

not

the

ADA

“by

providing

immediate

and

readily

accessible restroom facilities” at various locations throughout
the

hospital.

(ECF

No.

29,

at

6).

Plaintiff

requests

an

injunction ordering the construction of new restrooms and that
Perkins unlock its existing restrooms.

Although not specified

in the Amended Complaint, Plaintiff contends that his complaint
“should now be construed as a hybrid complaint having both Title
I violations and Title II violations of the ADA.”

(ECF No. 36-

1, at 5.)
Defendants moved to dismiss the amended complaint.
No.

33).

Plaintiff

replied (ECF No. 38).

responded

(ECF

No.

36),

and

(ECF

Defendants

Plaintiff also moved to stay the court’s

prior order (ECF No. 37) and for leave to file a surreply (ECF
No. 40).

Defendants responded in opposition to the motion for

leave to file a surreply (ECF No. 41), and Plaintiff replied,
(ECF No. 42).
II.

Motion for leave to file a surreply
Under Local Rule 105.2(a), “[u]nless otherwise ordered by

the Court, surreply memoranda are not permitted to be filed.”

A

surreply may be permitted “when the moving party would be unable
to contest matters presented to the court for the first time in
the opposing party’s reply.”

Khoury v. Meserve, 268 F.Supp.2d

600, 605 (D.Md. 2003) (citation omitted).
3

By contrast, “[a]

motion for leave to file a surreply may be denied when the
matter addressed in the reply is not new.”

Marshall v. Capital

View Mut. Homes, No. RWT–12–3109, 2013 WL 3353752, at *3 (D.Md.
July 2, 2013) (citation omitted).

Defendants’ reply did not

raise new issues, and Plaintiff has not provided grounds to
permit his filing.

Accordingly, his motion for leave to file a

surreply will be denied.
III. Motion to Stay
Plaintiff
appeal.

moved

(ECF

No.

for

a

37).

stay
His

of

appeal

the

prior

has

been

order

pending

decided,

and,

therefore, his request for a stay will be denied as moot.
IV.

Motion to Dismiss
A.

Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
is

entitled

to

relief.”

“Rule

8(a)(2)

still

requires

a

‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
(2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3

recitation

That showing must consist of more than “a formulaic
of

the

elements

of

a

cause

of

action”

assertion[s] devoid of further factual enhancement.”
4

or

“naked

Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
stage,

all

well-pleaded

considered

as

true,

allegations

Albright

v.

in

a

Oliver,

complaint
510

U.S.

At this
must
266,

be
268

(1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

(4th

847

Cir.

1979);

see

also

Francis

v.

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
Pro se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.

Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520
(1972).
pleadings

Liberal construction means that the court will read the
to

state

a

valid

claim

to

the

extent

that

it

is

possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
never presented.

Barnett v. Hargett, 174 F.3d 1128, 1132 (10th
5

Cir. 1999).

That is, even when pro se litigants are involved,

the court cannot ignore a clear failure to allege facts that
support a viable claim.

Weller v. Dep’t of Soc. Servs., 901

F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No. RDB–12–969,
2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (“[E]ven a pro se
complaint must be dismissed if it does not allege a plausible
claim

for

relief.”

(citation

and

internal

quotation

marks

omitted)).
B.

Access to Restroom

Plaintiff claims that Defendants violated the ADA by not
“providing immediate and readily accessible restroom facilities”
throughout Perkins.4

(ECF No. 29, at 4-5).

Defendants respond

that the ADA does not prescribe the number of restrooms that a
hospital or other facility must have” rather “it only requires
that restrooms be architecturally accessible.”

(ECF No. 33-1,

at 5).
Plaintiff has failed to cite any part of the ADA or related
regulations that Defendants have violated.

Plaintiff has not

alleged that his inability to access the restrooms has resulted
in his “be[ing] excluded from participation in or be[ing] denied
the benefits” of Perkins.

42 U.S.C. § 12132(a).

4

Plaintiff also

Plaintiff apparently seeks to proceed, at least in part,
under Title II of the ADA, rather than pursue the employment
based issues under Title I that were raised in his original
complaint.
6

has failed to identify how the lack of restrooms has resulted in
an injury.

Accordingly, Plaintiff has failed to state a claim

entitling him to relief, and his claim, as it relates to the
lack of restroom facilities, will be dismissed.
C.

Employment

Plaintiff’s amended complaint contains fewer facts about
his

employment

situation

than

his

previous

complaint.

The

amended complaint simply alleges that a job in horticulture was
offered

to

him

but

that

the

offer

was

revoked

because

“the

treatment team did not believe the Horticulture program was an
appropriate placement for Plaintiff.”

(ECF No. 29, at 2).

He

requests an order that Perkins provide additional access to the
current

restrooms

restrooms.

and

that

Perkins

construct

additional

(Id. at 6).

The facts alleged in the amended complaint do not support
the relief requested.

Plaintiff’s complaint contains no facts

that connect any employment issue to his proposed remedy of
additional access to bathrooms.

Plaintiff has failed to present

a claim upon which relief can be granted, and, therefore, his
complaint will be dismissed.
V.

Conclusion
Given that this is Plaintiff’s second complaint and that

Plaintiff did not cure the deficiencies in his first complaint
after they were identified, dismissal will be with prejudice.
7

For the foregoing reasons, the motion for leave to file a
surreply will be denied (ECF No. 40), the motion to stay the
court’s prior order will be denied (ECF No. 37), and the motion
to dismiss filed by Defendants will be granted (ECF No. 33).
separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

8

A