Wittrock Dillman v. US Department of Education et al
Filing
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ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Mary B. Wittrock Dillman, FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by Mary B. Wittrock Dillman. (), Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by Mary B. Wittrock Dillman. Signed by Magistrate Judge Jeremiah C. Lynch on 7/22/2014. (TCL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MARY B. WITTROCK DILLMAN,
CV 14-123-M-DLC-JCL
Plaintiffs,
ORDER, and FINDINGS
AND RECOMMENDATION
vs.
UNITED STATES DEPARTMENT OF
EDUCATION, FEDERAL STUDENT
AID, and GC SERVICES,
Defendants.
I.
INTRODUCTION
Plaintiff Mary Wittrock Dillman, proceeding pro se, filed a Motion to
Proceed In Forma Pauperis. Dillman submitted a declaration that makes the
showing required by 28 U.S.C. § 1915(a). Because it appears she lacks sufficient
funds to prosecute this action IT IS HEREBY ORDERED that her Motion to
Proceed In Forma Pauperis is GRANTED. This action may proceed without
prepayment of the filing fee, and the Clerk of Court is directed to file Dillman’s
lodged Complaint as of the filing date of her motion to proceed in forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
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screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
Thus, the Court will review Dillman’s pleading to consider whether this
action can survive dismissal under the provisions of section 1915(e)(2), or any
other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142
(9th Cir. 2005).
II.
PLAINTIFF’S ALLEGATIONS
Dillman commenced this action seeking relief under the Americans with
Disabilities Act at 42 U.S.C. § 12132. Dillman states she submitted a Loan
Discharge Application in 2013 to the United States Department of Education
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requesting a discharge of her student loan. In support of her application she
checked a box on the form apparently indicating she is disqualified from
employment due to a “physical condition.” (Doc. 2 at 2.) She states that she
provided documentation of her physical limitations, but that documentation dated
back to 2003. (Doc. 2 at 7.) Dillman alleges she received a response from the
Department of Education denying her discharge application on several grounds,
including her “failure to provide documentation demonstrating a condition that
would bar employment in [her] field of study[.]” (Doc. 2 at 2.)
Dillman alleges Defendants are liable for violating the Americans with
Disabilities Act. She quotes the provisions of 42 U.S.C. § 12132 which prohibit a
public entity from denying a disabled person the benefits of the public entity’s
program by reason of the person’s disability. For her relief, Dillman requests the
Court refund certain funds to her, award her damages or discharge her student
loan, award her costs and fees she has incurred, and any attorney fees she may
incur.
III.
DISCUSSION
Because Dillman is proceeding pro se the Court must construe her pleading
liberally, and the pleading is held “to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See
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also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
Title II of the Americans with Disabilities Act (ADA) at 42 U.S.C. § 12132
provides as follows:
Subject to the provisions of this subchapter, no qualified individual with a
disability shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. To present a viable claim for relief under section 12132, a
plaintiff must present factual allegations satisfying the four required elements of a
claim under the statute:
(1) [the plaintiff] “is an individual with a disability;” (2) [the plaintiff] “is
otherwise qualified to participate in or receive the benefit of some public
entity's services, programs, or activities;” (3) [the plaintiff] “was either
excluded from participation in or denied the benefits of the public entity's
services, programs, or activities, or was otherwise discriminated against by
the public entity;” and (4) “such exclusion, denial of benefits, or
discrimination was by reason of [the plaintiff’s] disability.”
McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).
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The factual allegations of Dillman’s complaint defeat her claim under the
ADA. Dillman asserts she is disabled and is disqualified from employment due to
a “physical condition.” But Dillman also alleges the Department of Education did
not exclude her from the loan discharge program “by reason of [any] disability”
she may have. To the contrary, she alleges it denied her Loan Discharge
Application, in part, on the ground that Dillman had failed to establish she is
disabled and is disqualified from employment in her field of training. Her factual
allegations suggest it is plausible that the Department of Education may have
found that the stale, 10-year old documentation of her physical limitations was
insufficient to demonstrate a present physical disability. Thus, Dillman’s
allegations establish that the Department of Education denied her loan discharge
application because it did not find she is disabled, not because she is disabled.
Dillman’s allegations negate the fourth element of a viable ADA claim.
Therefore, Dillman’s complaint is subject to dismissal under 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which relief could be granted.
And under the circumstances of Dillman’s allegations, the Court determines that
her pleading could not possibly be cured by the allegation of additional facts.
IV.
CONCLUSION
Based on the forgoing, IT IS RECOMMENDED that Dillman’s complaint
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be DISMISSED.
DATED this 22nd day of July, 2014.
Jeremiah C. Lynch
United States Magistrate Judge
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