Divine v. Buchholtz et al
Filing
46
MEMORANDUM OF DECISION AND ORDER: Defendants' 26 AND 37 Motions to Dismiss are GRANTED, and this is action is DISMISSED WITH PREJUDICE. Signed by Chief Judge Martin Reidinger on 1/27/2025. (Pro se litigant served by US Mail.) (maf)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:23-cv-00248-MR
MARCUS DEVAN HUNTER,
a/k/a Versa Divine,
)
)
)
Plaintiff,
)
)
vs.
)
)
KIMBERLY GRANDE, et al.,
)
)
Defendants.
)
___________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on Defendants’ Motions to Dismiss.
[Docs. 26, 37].
I.
PROCEDURAL BACKGROUND
Pro se Plaintiff Marcus Devan Hunter a/k/a Versa Divine (“Plaintiff”) is
a transgender female prisoner of the State of North Carolina currently
incarcerated at Central Prison in Raleigh, North Carolina.
This is not the first action Plaintiff has filed regarding the issues found
herein. On or about March 21, 2023, Plaintiff filed a four-page, handwritten
Complaint pursuant to 42 U.S.C. § 1983 in the United States District Court
for the Eastern District of North Carolina against the North Carolina
Department of Adult Correction (NCDAC) and other purported, unnamed
prison official Defendants alleging that “Defendants” had failed to provide
medically necessary care for gender dysphoria.1 Plaintiff also alleged having
suffered sexual harassment, sexual assault, and sexual abuse by prison staff
and fellow prisoners since having begun the outward expression of female
gender.
[Civil Case No. 5:23-ct-03087-BO-RJ (E.D.N.C.) (the “Eastern
District case”), Doc. 1 at 1-2; Doc. 1-3 (postmark)]. Pursuant to the Eastern
District Court’s Order, on April 12, 2023, Plaintiff filed a new Complaint in
that action. [Id., Doc. 4, 5]. Therein, Plaintiff named seventeen Defendants,
including the NCDAC, 13 individual Defendants, and three correctional
institutions. [Id., id. at 4-9]. On May 15, 2023, Plaintiff was transferred to
Foothills Correctional Institution (“Foothills”), which is in Morganton, North
Carolina. Then, on May 24, 2023, in the Eastern District case, Plaintiff filed
an Amended Complaint consisting of 81 pages exclusive of exhibits, against
16 Defendants, setting forth in detail Plaintiff’s lifetime experience with
transgender issues, gender dysphoria, and being intersex2 and alleged
related experiences while incarcerated. [Id., Doc. 15].
Gender dysphoria is “a condition characterized by clinically significant distress and
anxiety resulting from the incongruence between an individual’s gender identity and birthassigned sex.” Kadel v. Folwell, 100 F.4th 122, 136 (4th Cir. 2024) (citing Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013) (“DSM5”)).
1
Intersex generally refers to being born with atypical external genitalia or lack of
concordance among various sex characteristics such as sex chromosomes, gonads, or
external genitalia. More recently, intersex has been renamed “Disorders of Sexual
Development” in the DSM-5.
2
2
On June 5, 2023, the Honorable Terrence W. Boyle, United States
District Judge, conducted an initial review of Plaintiff’s Complaint and
Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [Id., Doc. 17].
Noting that Plaintiff’s pleadings “are not a model of clarity” and that “the court
is unsure what claims plaintiff seeks to bring with this action,” Judge Boyle
directed Plaintiff to file “one amended complaint” naming “the specific
defendant(s) responsible for his claims” and “giv[ing] the named
defendant(s) fair notice of his claims and the factual basis upon which the
claim(s) rest.” [Id., id. at 2]. Judge Boyle also admonished Plaintiff that “he
must exhaust all available administrative remedies for any § 1983 claims
prior to filing an action.” [Id., id. (citations omitted)].
On or about June 15, 2023, Plaintiff timely filed a Second Amended
Complaint in the Eastern District case, naming the following Defendants: (1)
NCDAC, (2) Central Prison, (3) Secretary of Corrections Eddie Buffaloe, Jr.,
(4) NCDAC Commissioner Todd Ishee; (5) Director of Health and Wellness
Gary Junker, (6) Assistant Commissioner Brandeshawn Harris, (7) Medical
Director Arthur Campbell, (8) Director of Healthcare Administration Terry
Catlett, (9) Chief of Psychiatry Brian Sheitman, (10) Director of Nursing
Valerie Langley, RN, (11) Deputy Medical Director Abhay Agarwal, (12)
Director of Rehabilitative Services Sarah Cobb, (13) Director of Operations
3
Josh Panter, (14) Prison Rape Elimination Act (“PREA”)3 Director Charlotte
Williams, and (15) Utilization Review Board Member Elton Amos.4 [Id., Doc.
19 at 4-8, Doc. 19-2 at 2 (date notation)]. Plaintiff sued Defendants in their
official capacities only. [Id., Doc. 19 at 4-8]. Plaintiff sought to allege claims
arising at six different correctional institutions, including Foothills, which is in
the Western District. [Id., id. at 11]. Plaintiff alleged, inter alia, that, from
“December 2020 through until present”:
Defendants have repeatedly rejected my requests to
be provided gender-affirming healthcare and
surgery, gender-consistent facility housing –
wrongfully deeming it as “elective.”
… Each
Defendant named knows that I am a transgender
woman suffering from gender dysphoria and a
disorder of sexual development and … that my
current and previous healthcare has failed to
adequately treat my gender dysphoria and disorder
of sexual development. …I am constantly denied
protections, redress of grievances, and medically
necessary care.
The PREA, 34 U.S.C. § 30301, seeks to establish “zero tolerance” for the incidence of
prison rape. The purpose of this Act is to protect inmates in correctional facilities from
sexual abuse and sexual assault. Gadeson v. Reynolds, No. 2:08-3702-CMC-RSC, 2009
WL 4572872, at *3 (D.S.C. Dec. 4, 2009).
3
In a grievance dated January 26, 2023, Plaintiff complained that all members of the
Transgender Accommodation Review Committee (“TARC”) had “denied, delayed,
ignored, and deferred [Plaintiff’s] requests” for gender dysphoria treatment, including the
NCDAC, the Secretary of Correction, the Commissioner/Director of Prisons, the Director
of Healthcare Administration, the Director of Behavioral Health, the Chief of Psychiatry,
the Director of Rehabilitative Services, the Director of Nursing, the Director of Operations,
the Deputy Chief Medical Officer, the Director of Rehabilitative Services, the PREA
Director, and Dr. Elton Amos, member of the Utilization Review Board. [Doc. 27-7 at 24]. Thus, several Defendants in the Eastern District case were TARC members.
4
4
[Id., id. at 11-12 (errors uncorrected)].
Plaintiff alleged that these
deprivations began when Plaintiff was housed at Harnett Correctional
Institution and that “[t]he most significant places of occurrence” include
Maury CI, Pasquotank CI, Scotland CI, and Central Prison. [Id., id. at 12].
Plaintiff further alleged that “each [Facility Transgender Accommodation
Review Committee (“FTARC”)] and [Division Transgender Accommodation
Review Committee (“DTARC”)5] record and sick call indicates” these
deprivations.
[Id., id.].
In addition to monetary relief, Plaintiff sought
injunctive relief requiring Defendants to provide Plaintiff with “necessary and
requested and prescribed medical care, accommodations, and protections
for … gender dysphoria, disorder of sexual development, and vulnerability.”
[Id., id. at 14]. Plaintiff asserted claims for violations of rights under the First,
Fourth, Fifth, Eighth, and Fourteenth Amendments; the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq.; Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794a; and Article 1, Section 27 of the North Carolina
Constitution, which prohibits cruel and unusual punishment. [Id., id. at 9-10].
On August 31, 2023, Judge Boyle dismissed Plaintiff’s Eastern District
case on initial review for Plaintiff’s failure to state a claim for relief in
5
The DTARC and TARC are one and the same and these terms are used interchangeably.
5
compliance with the Court’s June 5, 2023 Order. [Id., Doc. 20 at 2-3 (citing
id., Doc. 17 at 2)]. The Court declined to grant the Plaintiff any further
opportunity to amend and dismissed Plaintiff’s claims pursuant to 28 U.S.C.§
1915(e)(2)(B)(ii). [Id., Doc. 20 at 2-3]. The Fourth Circuit affirmed the District
Court’s Order dismissing Plaintiff’s Amended Complaint. Hunter v. North
Carolina Department of Adult Correction, No. 23-6904, 2024 WL 1406215
(4th Cir. Apr. 2, 2024) (per curiam).
Meanwhile, on or about August 24, 2023, Plaintiff filed the instant
action pursuant to 42 U.S.C. § 1983 aimed primarily at Foothills officials,
naming the following Defendants: (1) “Commissioner of Corrections” Peter
R. Buchholtz, (2) Inmate Grievance Resolution Board (IGRB) Director
Kimberly D. Grande, (3) Foothills Warden Harold Reep, (4) Foothills Unit
Managers Marc. E. Dunn and (5) Eric L. Price, (6) Foothills psychologist and
Director of Behavioral Health Marlene Holcombe, (7) Foothills Psychiatrist
Jeffrey Lorborbaum, (8) Foothills Physician’s Assistant Newton D. High, (9)
Foothills Nurse Manager FNU Abee, and (10) Foothills Americans with
Disabilities Act (ADA) Coordinator J. Newton. [Doc. 1 at 6].
Plaintiff’s Complaint consists of 49 rambling pages, 33 of which were
written on toilet paper. The gist of Plaintiff’s allegations is essentially the
same as what was asserted in Plaintiff’s Eastern District case, except now
6
more focused on Plaintiff’s treatment at Foothills rather than by the NCDAC
as a whole. Plaintiff alleges that gender affirming care has been denied and
as a result Plaintiff has suffered harm. Plaintiff attempts to break this down
into eleven separate “claims for relief,” but they all generally revolve around
the “Right to be free from inadequate treatment and deliberate indifference
to serious medical need for having gender dysphoria.”6 [Doc. 1 at 7].
More particularly, Plaintiff alleged that on January 11, 2023, while
incarcerated at Central Prison, Plaintiff attempted suicide “due to the
inadequate treatment of gender dysphoria and the harsh conditions of
confinement.” [Id. at 31]. On May 2, 2023, the IGRB upheld Central Prison
authorities’ decision that Plaintiff does not qualify “for ADA and the
rehabilitative services are not mandatory conditions of confinement for
Plaintiff.” [Id. at 31; see id. at 17-18]. On May 15, 2023, Plaintiff was
transferred from Central Prison to Foothills and immediately assigned to
Modified Housing for Regular Population (MODH). [Id. at 33]. On May 30,
2023, Plaintiff submitted a request to Behavioral Health Services seeking a
treatment plan for gender dysphoria symptoms and a sick call request for
Plaintiff expresses this in several ways, including such claims as “Right to be free from
discrimination, … Right to private showering and freedom from cross gender voyeurism,
…Right to Equal Protection,” but the root of each claim is that Plaintiff’s alleged gender
dysphoria is not being accommodated or treated. [Doc. 1 at 7-8].
6
7
“treatment associated with disorder of sexual development.”7 [Id. at 36]. On
June 2, 2023, Plaintiff was brought before the Foothills FTARC, which
consisted of Defendants Dunn, High, Price, Holcombe, Abee, and another
unidentified staff member. At this meeting, Plaintiff, among other things,
requested protective control and “gender affirming hygiene transitioning
items.” [Id.]. Defendant Reep was “deliberately indifferent” to Plaintiff’s
requests for accommodations and treatment. [Id. at 19]. Defendant Grande
dismissed Plaintiff’s claims of discrimination under the ADA. [Id. at 17-18].
Plaintiff also alleged that Defendant Grande upheld “facility staff decisions to
consider that [Plaintiff’s] gender dysphoria is [not] a disability.”8 [Id. at 18].
Defendant Dunn rejected Plaintiff’s requests for accommodations. [Id. at 21].
Defendant Price denied Plaintiff’s requests for gender-affirming medical
treatment. [Id. at 22]. Defendant Holcombe failed to properly treat Plaintiff’s
gender dysphoria, denied Plaintiff inpatient behavioral health services,
denied Plaintiff gender-affirming healthcare and accommodations, such as
peer support, psychotherapy, access to gender dysphoria specialists, and
The term “disorder of sexual development” is now used to describe a physical condition
that is entirely different from gender dysphoria. Plaintiff appears to use these terms
interchangeably when referring to gender dysphoria, as that term is defined in Kadel, 100
F.4th at 136.
7
Because this allegation, as written, is inconsistent with Plaintiff’s claim of being denied
accommodations for an alleged disability, it simply appears Plaintiff omitted the word “not.”
8
8
gender-consistent hygiene and cosmetics needed for social transitioning.
[Id. at 23-24]. Defendant Abee failed to properly treat Plaintiff’s disorder of
sexual development, denied Plaintiff gender-affirming healthcare such as
hormone therapy, gender-preferred pronouns, and gender-affirming hygiene
transitioning items. [Id. at 28-29]. Plaintiff seeks monetary relief, including
punitive damages, and costs. [Id. at 10]. Notably, Plaintiff does not seek
injunctive relief. [See id.].
In its initial review Order, this Court found that, “[e]ven though the
Plaintiff’s allegations are extremely vague,” Plaintiff’s Eighth Amendment
claims against Defendants Dunn, High, Price, Holcombe, and Abee based
on their alleged denial of care for Plaintiff’s gender dysphoria survived initial
review in that such claims were not clearly frivolous. [Doc. 10 at 17]. The
Court likewise allowed Plaintiff’s official capacity ADA claims against
Defendants Reep, Grande, Dunn, High, Price, Holcombe, and Abee to pass
initial review based on their alleged denial of ADA accommodations for
gender dysphoria. [Id. at 23]. The Court dismissed Defendants Buchholtz,
Lorborbaum, and Newton for Plaintiff’s failure to state a claim for relief
against them. [See id. at 25]. On January 11, 2024, before Defendants
answered, the Court allowed Plaintiff to supplement the Complaint with
allegations of events that occurred after the filing of the Complaint in this
9
matter. [Docs. 16, 22; see Doc. 18]. Based on allegations that Booker
Deorain Feaster, the Facility ADA Coordinator, and Sophia FeasterLawrence, the Division ADA Coordinator, denied Plaintiff reasonable
accommodations for gender dysphoria under the ADA, the Court allowed
Plaintiff to add Feaster and Feaster-Lawrence as Defendants in this matter
in their official capacities only. [Doc. 22 at 6, 8; see Doc. 37 at 1 (identifying
these Defendants by their true full names)].
Defendants now move to dismiss this action pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure and 42 U.S.C. § 1997e(a). [Docs. 26,
37]. Defendants argue that Plaintiff’s claims were dismissed with prejudice
in a prior action and are, therefore, barred by res judicata and that Plaintiff
failed to exhaust administrative remedies. [Docs. 27, 38]. Defendants also
argue that “no allegations specific to named defendants present a claim upon
which relief can be granted, either by lacking specific allegations, stating
allegations defeating his claim, or by alleging facts precluding a claim[.]”
[Doc. 26 at 1; Doc. 37 at 1].
In support of their motions, Defendants
submitted a memorandum, various records from the Eastern District case,
the NCDAC Administrative Remedy Procedure, the Declarations of Kimberly
Grande and Doug Newton, and Plaintiff’s relevant grievance records. [Docs.
27, 27-1 through 27-14, 38, 38-1 through 38-14].
10
The Court entered orders, in accordance with Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the right to respond to
Defendants’ motions. [Docs. 32, 40]. Plaintiff timely responded [Docs. 33,
34, 43] and Defendants did not reply.
The matter is now ripe for adjudication.
II.
STANDARD OF REVIEW
The central issue for resolving a Rule 12(b)(6) motion is whether the
claims state a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d
186, 189 (4th Cir. 2009). In considering the Defendants' motions, the Court
accepts the allegations in the Complaint as true and construes them in the
light
most
favorable
to
the
Plaintiff.
Nemet
Chevrolet,
Ltd.
v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli,
588 F.3d at 190–92. Although the Court accepts well-pled facts as true, it is
not required to accept “legal conclusions, elements of a cause of action, and
bare
assertions
devoid
of
further
factual
enhancement....”
Consumeraffairs.com, 591 F.3d at 255; see also Giacomelli, 588 F.3d at 189.
The claims need not contain “detailed factual allegations,” but must
contain sufficient factual allegations to suggest the required elements of a
cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Consumeraffairs.com, 591 F.3d at 256. “[A] formulaic recitation of
11
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor
will mere labels and legal conclusions suffice. Id. Rule 8 of the Federal Rules
of Civil Procedure “demands more than an unadorned, the defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
The Complaint is required to contain “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also
Consumeraffairs.com, 591 F.3d at 255. “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.”
Iqbal, 556 U.S. at 678. See also Consumeraffairs.com, 591 F.3d at 255. The
mere possibility that a defendant acted unlawfully is not sufficient for a claim
to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d at 256;
Giacomelli, 588 F.3d at 193. Ultimately, the well-pled factual allegations must
move a plaintiff's claim from possible to plausible. Twombly, 550 U.S. at 570;
Consumeraffairs.com, 591 F.3d at 256.
A party may assert the defense of res judicata in a Rule 12(b)(6) motion
“only if it clearly appears on the face of the complaint.” Richmond,
Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).
However, when considering a motion to dismiss based on the defense of res
12
judicata, the Court may take judicial notice of facts from a prior judicial
proceeding so long as the res judicata defense raises no disputed issues of
fact. Andrews v. Daw, 201 F.3d 521, 524 (4th Cir. 2000). Because the
Plaintiff here does not dispute the factual accuracy of the record of the
previous action, the Court may properly take judicial notice of that prior
action. Id.
III.
DISCUSSION
“The general rule is well established that once a person has had a full
and fair opportunity to litigate a claim, the person is precluded, under the
doctrine of res judicata, from relitigating it.” Duckett v. Fuller, 819 F.3d 740,
744 (4th Cir. 2016) (citation omitted).
The doctrine of res judicata
“preclude[es] parties in a subsequent proceeding from raising claims that
were or could have been raised in a prior proceeding….” Pueschel v. United
States, 369 F.3d 345, 354 (4th Cir. 2004). The doctrine “encourages reliance
on judicial decisions, bars vexatious litigation, and frees the courts to resolve
other disputes.” Brown v. Felsen, 442 U.S. 127, 131 (1979). For res judicata
to apply, there must be “(1) a final judgment on the merits in an earlier suit,
(2) an identity of the cause of action in both the earlier and the later suit, and
(3) an identity of parties or their privies in the two suits.” Nash Cty. Bd. of
Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981).
13
Along with these “three formal elements” of res
judicata, “two practical considerations should be
taken into account.” First, we consider whether the
party or its privy knew or should have known of its
claims at the time of the first action. Second, we ask
whether the court that ruled in the first suit was an
effective forum to litigate the relevant claims.
Chandler v. Forsyth Technical Community College, 294 F.Supp.3d 445, 451
(M.D.N.C. Feb. 15, 2018) (quoting Providence Hall Assocs. v. Wells Fargo
Bank, N.A., 816 F.3d 273, 276-77 (4th Cir. 2016)).
A court follows the “transactional” approach when determining whether
causes of action are identical: “As long as the second suit ‘arises out of the
same transaction or series of transactions as the claim resolved by the prior
judgment,’ the first suit will have preclusive effect.” Ohio Valley Envtl. Coal
v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009) (citation omitted).
“Under this transactional approach, res judicata will bar a ‘newly articulated
claim[ ]’ if it is based on the same underlying transaction and could have
been brought in the earlier action.” Clodfelter v. Republic of Sudan, 720 F.3d
199, 210 (4th Cir. 2013) (citation omitted).
In the Eastern District case, Plaintiff sought to prosecute claims related
to the NCDAC and its employees failing to treat and accommodate Plaintiff’s
gender dysphoria. That case was dismissed with prejudice [Doc. 20 at 2-3],
and the Fourth Circuit affirmed, Hunter, No. 23-6904, 2024 WL 1406215.
14
That constitutes an adjudication on the merits of the NCDAC’s policies and
decisions regarding its approach to Plaintiff as a prisoner who claims to have
gender dysphoria and how to treat, house and assign Plaintiff. See Lomax v.
Ortiz-Marquez, 590 U.S. ---, 140 S.Ct. 1721, 1725 (2020) (noting that when
a court dismisses an action for failure to state a claim for relief, but neglects
to specify with or without prejudice, the dismissal is treated as an
“adjudication on the merits”); McLean v. United States, 566 F.3d 391 (4th
Cir. 2009) (in § 1915 context, “[a]n unqualified dismissal for failure to state a
claim is presumed to operate with prejudice”), abrogated on other grounds
by Lomax, 140 S.Ct 1721. Plaintiff’s entire case herein is built upon an
attempt to re-litigate those issues. Those decisions by the NCDAC constitute
the “same … series of transactions as the claim resolved by the prior
judgment,” and thus preclude such re-litigation. Ohio Valley, 556 F.3d at
210; see also, R.A. v. McClenahan, 122 F.4th 143 (4th Cir. 2024). The fact
that Plaintiff now seeks to bring this claim against different NCDAC
employees who are now applying these NCDAC policies and decisions –
because Plaintiff has been transferred to a different prison – is of no
consequence.
Plaintiff cannot re-litigate such NCDAC policies and
determinations every time Plaintiff is transferred.
15
Particularly, in the Eastern District case, Plaintiff complained that (1)
the Defendants repeatedly rejected Plaintiff’s requests for gender-affirming
healthcare and surgery and gender-consistent facility housing, (2) the
Defendants failed to adequately treat Plaintiff’s gender dysphoria and
disorder of sexual development; and (3) the Defendants “constantly denied
[Plaintiff] protections.”
In that action, Plaintiff sought medical care,
accommodations, and protections for gender dysphoria and a disorder of
sexual development and claimed, inter alia, violations of the Eighth
Amendment and the ADA. Although Plaintiff’s Eighth Amendment claim in
the instant case involves the alleged denial of care for gender dysphoria at
Foothills, rather than at Plaintiff’s previous places of incarceration, the
alleged denials are nonetheless based on Plaintiff’s same conditions and
determinations under the same set of procedures and standards as the
denials alleged in the Eastern District case. Plaintiff cannot file a new lawsuit
based on the same alleged denial of care for gender dysphoria simply
because different employees of the NCDAC apply the same relevant policies
and decisions. Therefore, the first and second elements of res judicata are
met.
This also satisfies the third element. The interests of the Defendants
in the instant case were adequately represented by the interests of the
16
Defendants in the Eastern District case. Although the Defendants named
are different, the “TARC” entities share the same purpose and are comprised
of NCDAC officials with the same interests.
Moreover, these sets of
Defendants are so identified in interest with one another that they represent
the same legal right relative to the Plaintiff’s claim.9 See Jones v. SEC, 115
F.3d 1173, 1180 (4th Cir.1997) (internal quotation marks omitted), cert.
denied, 523 U.S. 1072 (1998) (“[T]he privity requirement assumes that the
person in privity is so identified in interest with a party to former litigation that
he represents precisely the same legal right in respect to the subject matter
involved.”). For these reasons, the Court concludes that the third element is
met relative to Plaintiff’s Eighth Amendment claim.
Because the elements of res judicata are met here as to both of
Plaintiff’s remaining claims, the Court will grant Defendants’ motions to
dismiss on this ground with prejudice. Because no claims remain, the Court
declines to address the exhaustion issue.
Plaintiff asserted a claim pursuant to the ADA in the Eastern District case and in the
instant case. Of course, the ADA does not create any individual capacity cause of action.
Baird ex rel Baird v. Rose, 192 F.3d 462, 471 (4th Cir. 1999). Rather the “public entity” is
the liable party. 42 U.S.C. § 12132. That public entity, however, was the prevailing party
in the Eastern District case. As such, Plaintiff’s ADA claim is likewise barred by res
judicata.
9
17
IV.
CONCLUSION
In sum, for the reasons stated herein, the Court grants Defendants’
motions to dismiss.
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motions to Dismiss
[Docs. 26, 37] are GRANTED, and this is action is DISMISSED WITH
PREJUDICE.
The Clerk is respectfully instructed to terminate this action.
IT IS SO ORDERED.
Signed: January 27, 2025
18
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