HARRIS v. LANIGAN et al
Filing
2
OPINION filed. Signed by Judge Mary L. Cooper on 3/22/2012. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
: CIVIL ACTION NO. 11-1321 (MLC)
:
Plaintiff,
:
O P I N I O N
:
v.
:
:
COMMISSIONER GARY LANIGAN, et al.,:
:
Defendants.
:
:
GOLDA D. HARRIS,
COOPER, District Judge
Plaintiff, Golda D. Harris, a state inmate confined at New
Jersey State Prison (“NJSP”) when she submitted the Complaint,
seeks to bring this action in forma pauperis.
Based on her
affidavit of indigence, the Court will grant the application to
proceed in forma pauperis under 28 U.S.C. § 1915(a) and file the
Complaint.
The Court must now review the Complaint, pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether it
should be dismissed as frivolous or malicious, for failure to
state a claim upon which relief may be granted, or because it
seeks monetary relief from a defendant who is immune.
The Court
concludes that the Complaint should proceed in part.
I.
BACKGROUND
Harris brings this action under Title II, III and V of the
Federal American with Disabilities Act (“ADA”) and the New Jersey
Law Against Discrimination (“NJLAD”) against, among others, Gary
Lanigan, New Jersey Department of Corrections (“NJDOC”)
Commissioner; the NJDOC; Greg Bartkowski, NJSP Administrator; Jim
Barnes, Assistant Superintendent at NJSP; Dr. Johnny Wu, M.D.,
Medical Director at NJSP; Desha Jackson, NJDOC Division of
Operations; Sgt. Bundy at NJSP; Officer Whittfield at NJSP;
Officer Snowling at NJSP; and William Hauck, Administrator at
Edna Mahan Correctional Facility (“EMCF”).
¶¶ 4b through 4k).
(Compl., Caption and
The following factual allegations are taken
from the Complaint, and are accepted for purposes of screening
only.
The Court has made no findings as to the veracity of
Harris’s allegations.1
Harris alleges that from January 9, 2009 through the date
she submitted the Complaint (on or about March 9, 2011),
defendants have refused to afford her handicap accommodations,
namely, her cane, shower privileges, wheelchair access for trips
and visits, and medical housing and bedding requests.
Further,
Harris alleges that defendants Hauck and Bartkowski used their
authority as Administrator at the EMCF and Administrator at NJSP,
respectively, to direct staff to carry out these instructions in
denying her handicap accommodations.
(Compl.)2
Harris also alleges that defendants Lanigan, Bartkowski, and
Barnes failed to enforce the ADA insofar as it pertained to her.
1
The Court presumes that Harris intended to assert a claim
under Title V of the Rehabilitation Act of 1973, as there is no
Title V under the ADA.
2
The Complaint indicates that Harris was confined at EMCF
from (or before) January 9, 2009, the date she began complaining
about the denial of handicap accommodations, through September 3,
2009, when she was transferred from EMCF to NJSP.
2
(Compl., ¶¶ 4b, 4c, 4f and 6.)
Harris further alleges that
defendant Wu denied her ADA protection by stating that Harris has
no physical disability or handicap that would require a cane,
wheelchair, toilet seat extension, handicap shower and proper
bedding.
(Compl., ¶¶ 4g, 6.)
Harris alleges that defendant Jackson falsified medical
records, resulting in the violation of her rights under the ADA,
namely, the taking away of her cane, wheelchair access, and other
handicap accommodations.
(Compl., ¶¶ 4h, 6.)
On December 3,
2010, defendants Sgt. Bundy, Officer Whittfield and Officer
Snowling took Harris’s cane and failed to help her to walk.
(Compl., ¶¶ 4i, 4j, 4k and 6.)
Harris seeks wheelchair access to and from her cell for
medical visits and consultations, court trips and visitation.
She also seeks to have her cane returned to her, and to have an
elevated hospital bed, and a handicap toilet and shower.
Harris
requests that her status be changed back to “handicap medical”,
and seeks damages.
II.
PURPORTED CLAIMS UNDER 42 U.S.C. §§ 1983, 1985, & 1986
Harris seems to indicate that she is pursuing relief under
42 U.S.C. § 1983, but her federal claims are strictly asserted
under the ADA only.
Thus, the Court will review the Complaint
for causes of action insofar as they concern federal law under
the ADA only.
The § 1983 claims would be barred in any event, as
3
a private party’s suit seeking to impose a liability that must be
paid from public funds in a state treasury is barred from federal
court by the Eleventh Amendment.
651, 663 (1974).
See Edelman v. Jordan, 415 U.S.
The Eleventh Amendment protects states and
their agencies and departments from suit in federal court
regardless of the relief sought.
Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984).
Similarly, absent consent by
a state, the Eleventh Amendment bars federal court suits for
money damages against state officers in their official capacities.
See Kentucky v. Graham, 473 U.S. 159, 169 (1985).
Section 1983
does not override a state’s Eleventh Amendment immunity.
v. Jordan, 440 U.S. 332 (1979).
Quern
Such claims would also be barred
insofar as they could be based on supervisor liability.
See
Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995);
Colburn v. Upper Darby Twp., 838 F.2d 663, 673 (3d Cir. 1988);
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Harris also seems to indicate that she is pursuing relief
under 42 U.S.C. §§ 1985(3) and 1986, but provides no factual
allegations in support.
The elements of a § 1985(3) claim are
“(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws; and (3) an act in furtherance of the
conspiracy; (4) whereby a person is injured in his person or
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property or deprived of any right or privilege of a citizen of
the United States.”
Farber v. City of Paterson, 440 F.3d 131,
134 (3d Cir. 2006) (internal quotations and citations omitted).
To state a claim under § 1986, a plaintiff must show: “(1) the
defendant had actual knowledge of a § 1985 conspiracy, (2) the
defendant had the power to prevent or aid in preventing the
commission of a § 1985 violation, (3) the defendant neglected or
refused to prevent a § 1985 conspiracy, and (4) a wrongful act
was committed.”
1994).
Clack v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir.
Conspiracy allegations “must provide some factual basis
to support the existence of the elements of a conspiracy:
agreement and concerted action.”
Capogrosso v. Sup. Ct. of N.J.,
588 F.3d 180, 184 (3d Cir. 2009); see Michel v. Wicke, No.
10–3892, 2011 WL 3163236, at *4 (D.N.J. July 25, 2011) (“factual
allegations supporting the conspiracy claim may not be
generalized or conclusory.”).
Without any factual content,
Harris has not stated a “plausible claim for relief” under 42
U.S.C. §§ 1985(3) and 1986.
See Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009).
III.
STANDARDS FOR A SUA SPONTE DISMISSAL
A district court must review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or seeks
redress against a governmental employee or entity.
The Court is
required to identify cognizable claims and to sua sponte dismiss
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any claim that is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
28 U.S.C. §§
1915(e)(2)(B) and 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in the plaintiff’s
favor.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner,
404 U.S. 519, 520-21 (1972)).
The Court must “accept as true all
of the allegations in the complaint and all reasonable inferences
that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.”
Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997).
But the Court need not credit a
pro se plaintiff’s “bald assertions” or “legal conclusions.”
Id.
A complaint is frivolous if it “lacks an arguable basis
either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319,
325 (1989) (interpreting the predecessor of § 1915(e)(2), the
former § 1915(d)).
The standard for evaluating whether a
complaint is “frivolous” is an objective one.
Deutsch v. United
States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).
A pro se complaint may be dismissed for failure to state a
claim only if it appears “‘beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.’”
Haines, 404 U.S. at 521 (quoting Conley v.
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Gibson, 355 U.S. 41, 45-46 (1957)); see Erickson, 551 U.S. at 9394 (for pro se prisoner complaint, Court reviewed whether it
complied with Rule 8(a)(2)).
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), addressed whether
a complaint adequately alleged defendants’ personal involvement
in discriminatory decisions regarding treatment during detention,
which, if true, violated that plaintiff’s rights.
Id.
The Court
examined Federal Rule of Civil Procedure Rule 8(a)(2), which
provides that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
Fed.R.Civ.P. 8(a)(2).3
Citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), for the proposition that “[a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do,’”
Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555), the
Supreme Court identified two principles underlying the failure to
state a claim standard:
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice ... . Rule 8 ... does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a
plausible claim for relief survives . . .. Determining
whether a complaint states a plausible claim for relief will
3
Rule 8(d)(1) provides that “[e]ach allegation must be
simple, concise, and direct. No technical form is required.”
Fed.R.Civ.P. 8(d).
7
... be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.
But where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not “show[n]”-“that the
pleader is entitled to relief.” Fed. Rule Civ. Proc.
8(a)(2).
Iqbal, 129 S.Ct. at 1949-50 (citations omitted).
The Court further explained that a court
can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.
Iqbal, 129 S.Ct. at 1950.
To prevent a summary dismissal, civil complaints must allege
“sufficient factual matter” to show that a claim is facially
plausible.
This then “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”
Id. at 1948.
A plaintiff must demonstrate that the
allegations of his complaint are plausible.
Id. at 1949-50; see
Twombly, 505 U.S. at 555, & n.3; Fowler, 578 F.3d at 210.
A district court must conduct the Iqbal analysis:
First, the factual and legal elements of a claim should be
separated. The District Court must accept all of the
complaint’s well-pleaded facts as true, but may disregard
any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50].
Second, a District Court must then determine whether the
facts alleged in the complaint are sufficient to show that
the plaintiff has a “plausible claim for relief.” [Id.] In
other words, a complaint must do more than allege the
plaintiff’s entitlement to relief. A complaint has to
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“show” such an entitlement with its facts. See Phillips,
515 F.3d at 234-35. As the Supreme Court instructed in
Iqbal, “[w]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not ‘show [n]’-‘that
the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at
1949-50]. This “plausibility” determination will be “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id.
Fowler, 578 F.3d at 210-11.
But this Court is mindful that the sufficiency of this pro
se pleading must be construed liberally in Harris’s favor, even
after Iqbal.
See Erickson, 551 U.S. at 93-94.
IV.
ANALYSIS
Harris alleges that her ADA rights have been violated by the
denial of wheelchair access, an elevated hospital bed, access to
handicap toilet and showers while incarcerated, and by the
refusal to return her cane and shoe inserts.
Harris asserts a
claim under both Title II and Title III of the ADA.
She also
appears to assert a claim under Title V of the Rehabilitation
Act, Section 504.4
4
Section 504 of the Rehabilitation Act prohibits disability
discrimination by recipients of federal funding; it provides that
no qualified individual with a disability “shall, solely by
reason of her or his disability, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a). The ADA and the Rehabilitation
Act generally are interpreted in pari materia. See Kemp v.
Holder, 610 F.3d 231, 234-35 (5th Cir. 2010). Indeed, “nothing
in [the ADA] shall be construed to apply a lesser standard than
the standards applied under title V [i.e., § 504] of the
Rehabilitation Act ... or the regulations issued by Federal
agencies pursuant to such title.” 42 U.S.C. § 12201(a); Bragdon
v. Abbott, 524 U.S. 624, 632 (1998) (“directive requires us to
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Title III of the ADA prohibits discrimination on the basis
of disability in places of public accommodation.
12182.
42 U.S.C. §
“The phrase ‘pubic accommodation’ is defined in terms of
12 extensive categories,” PGA Tour, Inc. V. Martin, 532 U.S. 661,
676 (2001), including lodging, food or drink establishments,
places of exhibition, entertainment, public gathering, public
display/collection, recreation, exercise, or education, sales,
rental, and service establishments, public transportation
stations, and social service center establishments, “if the
operations of such entities affect commerce”.
12181(7).
42 U.S.C. §
In the Complaint, Harris fails to establish that the
correctional facilities at issue, the EMCF or the NJSP, fall into
any of the categories subject to Title III of the ADA.
Rather,
these facilities are considered as a “public entity” under Title
II of the ADA, which defines “public entity” as including “any
State or local government[]” and “any department, agency, special
purpose district, or other instrumentality of a State or States
or local government”.
42 U.S.C. § 12131(a).
A public entity is
broadly construed as including “every possible agency of state or
local government”.
Lee v. City of Los Angeles, 250 F.3d 668, 691
construe the ADA to grant at least as much protection as provided
by the regulations implementing the Rehabilitation Act”); cf. 42
U.S.C. § 12133 (providing “[t]he remedies, procedures, and
rights” available under the Rehabilitation Act “shall be the
remedies procedures, and rights” available under Title II of the
ADA). Accordingly, this Court’s analysis of the ADA claim
encompasses and applies to both statutes.
10
(9th Cir. 2001) (noting both state prisons and local law
enforcement agencies are public entities under ADA).
Thus,
covered public entities are defined to include state and local
governments and their agencies and instrumentalities.
§ 12131(1).
42 U.S.C.
The ADA claim against the NJDOC and state prison
facilities fall under Title II only, not Title III.
The ADA’s purpose is “to provide a clear and comprehensive
mandate for the elimination of discrimination against individuals
with disabilities.”
42 U.S.C. § 12101(b)(1).
The statute
prohibits discrimination against individuals with disabilities in
the areas of employment (Title I); public services, programs and
activities (Title II); and public accommodations (Title III).
Tennessee v. Lane, 541 U.S. 509, 516 (2004).
arguably applicable here.
See
Only Title II is
Title II provides that “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 demonstrate a Title II violation, a plaintiff must show
(1) she is a “qualified individual with a disability”; (2) she
was excluded from participation in or denied the benefits of a
public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and (3) the
exclusion, denial of benefits, or discrimination was by reason of
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her disability.
See 42 U.S.C. § 12132; Lopez v. Beard, 333
Fed.Appx. 685, 687 n.1 (3d Cir. 2009); Robertson v. Las Animas
County Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).
The Court will assume for immediate purposes that Harris is a
qualified disabled person within the meaning of the statute.5
Private citizens may seek damages against such state and
local governments, their agencies and instrumentalities, and
state officers in their official capacities.
42 U.S.C. § 12133.
Individual liability is not available for discrimination claims
brought under Title II of the ADA.
Emerson v. Thiel College, 296
F.3d 184, 189 (3d Cir. 2002) (noting “individuals are not liable
under Titles I and II of the ADA”) (citing Garcia v. S.U.N.Y.
Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir. 2001) (holding Title
II does not allow suits against individuals)).
Thus, as a preliminary matter, Harris cannot proceed against
any defendants in their individual capacities for monetary
damages.
As the Complaint asserts that Harris is proceeding
against individual defendants for monetary damages in their
individual capacities, those claims for monetary damages will be
dismissed.
5
“Qualified” disabled persons include those who “with or
without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and
services, meet the essential eligibility requirements for the
receipt of services or the participation in programs or
activities provided by a public entity.” 42 U.S.C. § 12131(2).
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As to any claim for injunctive relief, the Complaint fails,
in part, to allege facts suggesting that Harris was deprived of
program participation “by reason of” her disability.
Instead,
Harris claims that she is being denied access to the equipment
that she claims she is entitled to by virtue of her disability.
This denial, without more, is not tantamount to an ADA violation.
See, e.g., Dukes v. Georgia, 428 F.Supp.2d 1298, 1324 (N.D. Ga.),
aff’d, 212 Fed.Appx. 916 (11th Cir. 2006) (citing Bryant v.
Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (noting ADA addresses a
disabled person’s rights regarding access to programs and services
enjoyed by all, but does not provide general cause of action to
challenge manner of treatment of underlying disability)); Schiavo
ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir.
2005) (citing Bryant, 84 F.3d at 249) (noting inadequate
treatment is not, without more, an ADA violation).
Here, with
the exception of the denial of a wheelchair and confiscation of
Harris’s cane, which has hindered her mobility and access to the
courts, visitation and other programs or activities at the prison
facilities, nothing in Harris’ allegations concerning denial of
extra bedding and blankets, a hospital bed, and shoe inserts,
suggests that Harris has been denied participation or access to
prison programs and activities sufficient to support an ADA
claim.
Similarly, Harris’s allegations that Wu and Jackson
falsified medical records so as to deny her accommodations for
her disability, do not suggest that Harris was denied access or
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participation in prison programs or activities on the basis of
her disability.
But this Court is inclined to allow the claim concerning
denial of wheelchair access and a cane to proceed, because these
restrictions would appear to hinder her access and participation
in prison programs and other activities, as suggested by her
allegations that denial of wheelchair access precluded her
attendance at court or visits.
Likewise, Harris’s claim
concerning the restrictions on handicap toilet and shower
accommodations will be allowed to proceed.
These ADA claims will
be allowed to proceed as against the NJDOC only.
Because this Court will allow this limited ADA claim to
proceed, the Court will exercise supplemental jurisdiction over
Harris’s related NJLAD claim pursuant to 28 U.S.C. § 1367(a).
All other ADA claims for injunctive relief will be dismissed for
failure to state a claim.
V.
CONCLUSION
The ADA claim and NJLAD claims regarding wheelchair access,
use of a cane, and handicap toilet and shower accommodations will
be allowed to proceed as against NJDOC only.
will be dismissed.
All other claims
The Court will issue an appropriate order.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:
March 22, 2012
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