Lagervall et al v. Missoula County Public Schools et al

Filing 7

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Robert T. Lagervall, Order Setting: ( Response to Order to provide addresses due by 7/5/2016.), Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by Robert T. Lagervall. Signed by Magistrate Judge Jeremiah C. Lynch on 6/14/2016. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ROBERT T. LAGERVALL,

CV 16-57-M-DLC-JCL

Plaintiff,
ORDER

vs.
MISSOULA COUNTY PUBLIC
SCHOOLS, PRINCIPAL TED FULLER,
and JENNIE HAINES,
Defendants.

I.

Introduction
Plaintiff Robert Lagervall, appearing pro se, filed an application requesting

leave to proceed with this action in forma pauperis. Lagervall submitted a
declaration that makes the showing required by 28 U.S.C. § 1915(a). Because it
appears he lacks sufficient funds to prosecute this action IT IS HEREBY
ORDERED that his application is GRANTED. This action may proceed without
prepayment of the filing fee, and the Clerk of Court is directed to file Lagervall’s
lodged Complaint as of the filing date of his application to proceed in forma
pauperis.
The federal statute under which leave to proceed in forma pauperis is
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permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
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 Lagervall’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
Lagervall’s son, P.L., attends school at Sentinel High School in Missoula,

Montana. Apparently, P.L. is a disabled student.

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Lagervall alleges a high school teacher got “physical” with P.L. purportedly
due to P.L.’s disability issue. Lagervall attempted to visit with Sentinel High
School’s principal, Ted Fuller, about the incident, but he states that due to his own
“documented” disability “the volume of [his] voice increased” which made the
verbal communication with Fuller “inadequate.” As a result, Fuller apparently
determined Lagervall was no longer welcome on the high school premises, and
deemed Lagervall to be a trespasser if he returned to the high school building.
Lagervall returned to the high school building to deliver a copy of the list of
accommodations that P.L. needed at the school. The school’s resource officer,
Officer Monico, met Lagervall at the door to the school and informed him he was
not permitted on the school property. Lagervall gave his list of accommodations
to Officer Monico for delivery to Fuller.
Later Officer Monico delivered two letters to Lagervall. One letter
informed Lagervall that he was not allowed to enter the high school property, and
the other letter informed him that P.L. was suspended from school.
Lagervall contends Fuller’s conduct in denying him permission to enter the
school property, and his use of Officer Monico as an intermediary, constituted
unlawful intimidation or coercion against him as a disabled person. He further
contends the circumstances denied him access to participate in the education
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programs available to P.L., and constitute retaliation. Lagervall also was not
permitted to attend an educational career fair offered by the school district.
Lagervall contacted Defendant Jennie Haines, the special education
supervisor. Haines allegedly informed Lagervall that the school and its personnel
were not subject to Title II of the Americans with Disabilities Act (“ADA”).
Lagervall asserts Defendants are liable for alleged violations of the ADA.
Specifically, he contends Defendants violated provisions of 28 C.F.R. § 35.130
(prohibiting discrimination), § 35.134 (prohibiting retaliation or coercion), and §
35.160 (requiring effective communications).
Lagervall requests relief under the ADA. He requests that he be permitted
to enter the high school property, and that Defendants be prohibited from
discriminating against him based on his own disability which he contends “poses
no real risk.” See 28 C.F.R. § 35.139 (permitting a public entity to exclude an
individual who “poses a direct threat to the health or safety of others”). He seeks
to enforce Defendants’ compliance with the ADA and to obtain reasonable
accommodations for him and for P.L. to ensure effective communications occur,
and to provide for P.L.’s public education. He requests that P.L. be allowed to
return to school.

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III.

DISCUSSION
Because Lagervall is proceeding pro se the Court must construe his 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
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
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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).
Accepting Lagervall’s allegations as true, the Court finds that at this stage
of these proceedings his allegations at least state a claim upon which relief could
be granted under the ADA for Defendants’ alleged conduct in excluding him from
participating in his son’s education due to his own alleged “documented
disability.” Therefore, the Court will order that Lagervall’s Complaint be served
on Defendants.
Because Lagervall is proceeding in forma pauperis, he is entitled to have his
Complaint and summonses served by the United States Marshal. Fed. R. Civ. P.
4(c)(3). Nonetheless, Lagervall is obligated to provide the Court with appropriate
addresses for service on each Defendant. See Pullano v. Clark Co. Detention Ctr.,
2010 WL 4272871, *2 (D. Nev. 2010).
Therefore, IT IS HEREBY ORDERED that on or before July 5, 2016,
Lagervall shall file a notice which provides the Court with an appropriate address
for service on each individually named Defendant in this action. For individuals
named as Defendants, the address must be sufficient for personal service on the
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Defendant. Fed. R. Civ. P. 4(d)(1)(A)(i) and 4(e). For a state or local
governmental organization, the address must be for “its chief executive officer.”
Fed. R. Civ. P. 4(j)(2)(A).
At all times during the pendency of this action Lagervall shall immediately
advise the Court of any change of address and its effective date. Such notice shall
be captioned “NOTICE OF CHANGE OF ADDRESS.” Failure to file a NOTICE
OF CHANGE OF ADDRESS may result in the dismissal of the action for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b). Lagervall is also advised that his
failure to prosecute this action, to comply with the Court’s orders, or to comply
with the Federal Rules of Civil Procedure may also result in a recommendation
that this case be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). The
Court may dismiss this case under Rule 41(b) sua sponte under certain
circumstances. See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962);
Hells Canyon Preservation Council v. United States Forest Serv., 403 F.3d 683,
689 (9th Cir. 2005).
DATED this 14th day of June, 2016.

Jeremiah C. Lynch
United States Magistrate Judge

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