Brown v. Hernandez et al

Filing 10

ORDER that the Complaint is DISMISSED without prejudice. The Plaintiff shall have 30 days in which to amend the Complaint in accordance with the terms of this Order. If Plaintiff fails to amend the Complaint in accordance wit h this Order and within the time limit set by the Court, this action will be dismissed without prejudice and without further notice to Plaintiff. Plaintiff's 9 Motion for Declaratory Judgment is DENIED. The Clerk is respectfully instructed to mail Plaintiff a blank prisoner 1983 complaint form and a 2254 habeas corpus form. Signed by Chief Judge Martin Reidinger on 9/6/2021. (Pro se litigant served by US Mail.) (hms)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:21-cv-00024-MR

MARCUS RANDALL BROWN,

)
)
Plaintiff,
)
)
vs.
)
)
CARLOS HERNANDEZ, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on initial review of the pro se
Complaint. [Doc. 1]. Also pending is the Plaintiff’s Request for Declaratory
Judgment [Doc. 9]. The Plaintiff is proceeding in forma pauperis. [Doc. 7].
The pro se incarcerated Plaintiff filed this action pursuant to 42 U.S.C.
§ 1983 and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.,
addressing incidents that allegedly occurred at the Alexander Correctional
Institution.

The Plaintiff names as Defendants: Carlos Hernandez, the

Alexander CI superintendent; Amy Jenkins, an Alexander CI programs
director; M. Dula, an Alexander CI case manager; Sophia Feaster, the North
Carolina Department of Public Safety (“NCDPS”) ADA coordinator; and John
Doe, an “unknown/illegible NCDPS division ADA coordinator.” [Doc. 1 at 3].

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The Plaintiff alleges that the Defendants violated the ADA by denying
his ADA requests for approximately two years even though the Plaintiff was
“clearly eligible.” [Id. at 4]. The Defendants ultimately approved an ADA
request in May 2020 based on the same physical limitations that existed
during his previous ADA requests. [Id. at 2]. As relief, Plaintiff asks the Court
“to direct NCDPS to award [him] the gain time under ADA that [he] would’ve
earned if [his] request for ADA had been granted initially….” [Id. at 6]. In the
Request for Declaratory Judgment, the Plaintiff asks the Court to enter
judgment declaring that his rights have been violated under ADA and to
“order Defendant to apply the sentence reduction credits owed by Defendant
to Plaintiff’s sentence of imprisonment immediately, so that Plaintiff can be
released from incarceration.” [Doc. 9 at 2].
II.

STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must

review the Complaint to determine whether it is subject to dismissal on the
grounds that it is “(i) 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)(B); see 28 U.S.C. §
1915A (requiring frivolity review for prisoners’ civil actions seeking redress
from governmental entities, officers, or employees).
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In its frivolity review, a court must determine whether the Complaint
raises an indisputably meritless legal theory or is founded upon clearly
baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se
complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972).

However, the liberal construction requirement will not permit a

district court to ignore a clear failure to allege facts in his complaint which set
forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
III.

DISCUSSION
In the Complaint and the Request for Declaratory Judgment, the

Plaintiff alleges that the Defendants violated the ADA by denying several
“ADA request[s]” based on his “physical limitations….” [Doc. 1 at 4]. He
seeks release from custody based on the back gain time he is allegedly
owed. [Id.].
“[W]hen a state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from that imprisonment,
his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez,
411 U.S. 475, 500 (1973); see generally In re Wright, 826 F.3d 774, 779 (4th
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Cir. 2016) (federal habeas petitions of state prisoners who are who are
challenging the execution of a state sentence should be treated as petitions
pursuant to 28 U.S.C. § 2254). Because the claim presented by the Plaintiff
is not cognizable outside of a habeas proceeding, the Court will dismiss the
Plaintiff’s Complaint and deny the Request for Declaratory Relief. The Clerk
will be instructed to mail the Plaintiff a habeas corpus form in an abundance
of caution.1
Even if the Plaintiff were requesting relief that is cognizable in this
proceeding, the Complaint would still be dismissed for failure to state a claim.
Under the ADA, “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 subject to
discrimination by any such entity.” 42 U.S.C. § 12132. To state a claim
under the ADA, a plaintiff must show that: (1) he has a disability; (2) he was
otherwise qualified to receive the benefits of a public service, program, or
activity; and (3) he was denied the benefits of such service, program, or
activity, or was otherwise discriminated against, on the basis of the disability.
See Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016); Doe v.

1

The Court makes no representations about the merit or procedural viability of such an
action.
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Univ. of Md. Med. Sys. Corp., 50 F.3d 1261 (4th Cir. 1995). The third step is
met by showing that a disability played a “motivating role” in the adverse
action. Constantine v. George Mason Univ., 411 F.3d 474, 498 n.17 (4th Cir.
2005) (citing Baird v. Rose, 192 F.3d 462, 468 (4th Cir. 1999)).
The Complaint fails to describe the Plaintiff’s alleged disability.
Assuming arguendo that the conditions described in the Inmate Reasonable
Accommodation Requests (IRARs) amount to a disability, the Plaintiff has
failed to plausibly allege that he was excluded in participating in, and was
denied the benefits of earning sentencing credits on the basis of his disability.
He has demonstrated only that he disagreed with prison officials’
assessment of the work and educational programs that were available to
him. Therefore, to the extent that the Plaintiff attempts to assert an ADA
claim, such claim is dismissed.
The Plaintiff also attempts to state a claim under § 1983. Under §
1983, a plaintiff must allege that he was “deprived of a right secured by the
Constitution or laws of the United States, and that the alleged deprivation
was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50 (1999). However, the Plaintiff does not appear to state
a § 1983 claim that is separate in any way from the ADA claim. It is thus
duplicative of, and precluded by, the ADA claim. See generally Zombro v.
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Baltimore City Police Dep’t, 868 F.2d 1364, 1366 (4th Cir. 1989) (§ 1983
“does not in itself create any substantive rights,” rather, “it provides a
statutory basis to receive a remedy” for violations of federal law); see, e.g.,
Anderson v. School Bd. of Gloucester Cnty., VA, 2020 WL 2832475, at *22
(E.D. Va. May 29, 2020) (dismissing a § 1983 ADA retaliation claim because
the plaintiff “‘cannot as a matter of law, pursue these independent causes of
action’ under the ADA pursuant to § 1983….”) (quoting Gatling v. Carter,
2017 WL 480756, at *6 (D. Md. Feb. 6, 2017)); Peter B. v. Sanford, 2010 WL
5684397 (D.S.C. Dec, 6, 2010) (recommending dismissal “to the extent the
Section 1983 claim is based on the same substantive rights as the ADA and
Rehabilitation claims.”); Henderson v. Gilbert, 2006 WL 1966797 (D. Md.
July 10, 2006) (“A plaintiff may not state a claim under 42 U.S.C. §§ 1983
and 1985(3) for rights created by the ADA). To the extent that the Plaintiff
attempts to assert a § 1983 claim, it is also dismissed.
IV.

CONCLUSION
In sum, Plaintiff has failed to state a claim against any Defendant, and

therefore, the Complaint will be dismissed. The Court will allow Plaintiff thirty
(30) days to amend the Complaint, if he so chooses, to correct its
deficiencies and properly state a claim upon which relief can be granted.
Should the Plaintiff fail to timely amend the Complaint, this action will be
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dismissed without prejudice and without further notice to Plaintiff.

The

Request for Declaratory Judgment is denied.
IT IS, THEREFORE, ORDERED that:
1. The Complaint is DISMISSED without prejudice.
2. The Plaintiff shall have thirty (30) days in which to amend the
Complaint in accordance with the terms of this Order. If Plaintiff fails
to amend the Complaint in accordance with this Order and within
the time limit set by the Court, this action will be dismissed without
prejudice and without further notice to Plaintiff.
3. Plaintiff’s Request for Declaratory Judgment [Doc. 9] is DENIED.
4. The Clerk is respectfully instructed to mail Plaintiff a blank prisoner
§ 1983 complaint form and a § 2254 habeas corpus form.
IT IS SO ORDERED.
Signed: September 6, 2021

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