Smith v. Drawbridge et al

Filing 49

ORDER ADOPTING REPORT AND RECOMMENDATION 46 of Magistrate Judge Charles B. Goodwin...plaintiff's motion for injunctive relief 13 , petition for emergency injunction 25 , and petition for appointment of counsel 48 are denied; defendants 9; motion to dismiss 44 is granted in part and denied in part...see order for specifics; because this order does not dismiss all claims in this action, the case remains assigned to Judge Goodwin for further proceeding. Signed by Honorable Joe Heaton on 10/23/2017. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FRED SMITH,
Plaintiff,
vs.
JAMES DRAWBRIDGE, et al.,
Defendants.

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NO. CIV-16-1135-HE

ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this § 1983
action alleging violations of his constitutional rights. Pursuant to 28 U.S.C. § 636(b)(1)(B)
and (C), the matter was referred to Magistrate Judge Charles B. Goodwin for initial
proceedings. Plaintiff has filed a motion for injunctive relief and a petition for emergency
injunction and defendants have filed a motion to dismiss. Defendants responded to
plaintiff’s motions but plaintiff did not respond to defendants’ motion.
Judge Goodwin has issued a Report and Recommendation (the “Report”)
recommending that plaintiff’s motions be denied and defendants’ motion be granted in part
and denied in part. Plaintiff has objected to the Report, which triggers de novo review by
this court of proposed findings or recommendations to which objection has been made. Id.
Defendants have not objected to the Report, thereby waiving their rights to appellate review
of the factual and legal issues it addressed. Casanova v. Ulibarri, 595 F.3d 1120, 1123
(10th Cir. 2010); see also 28 U.S.C. § 636(b)(1)(C).

Plaintiff objects arguing that “the doctrine of res judicata/collateral estoppel bars the
magistrate judge from giving any defendants” either Eleventh Amendment or qualified
immunity. 1 Doc. #47. He claims that defendants “waived any immunity defense and there
is no evidence that they want to raise that issue.” Id. Plaintiff also argues that it is “wellsettled law, [whether] money damages is sought or not, none of the defendants have any
immunity.” Id. (emphasis in original).
After reviewing the Report’s immunity recommendations de novo, the court
substantially agrees with the magistrate judge’s immunity recommendations. Defendants’
motion to dismiss raises defenses of Eleventh Amendment immunity on behalf of the
Oklahoma Department of Corrections (“ODOC”) and the individual defendants in their
official capacity. The motion also raises a qualified immunity defense as to all defendants.
The court agrees with the magistrate judge that plaintiff’s claims against the ODOC and
the individual defendants in their official capacities for money damages under both § 1983
and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) are
barred by the Eleventh Amendment. The court also agrees that plaintiff’s § 1983 Free
Exercise claim should be dismissed against defendants Curry and Reed because they are
entitled to qualified immunity in that their conduct did not violate clearly established
statutory or constitutional rights.

1

Because plaintiff appears pro se, his pleadings are construed liberally, but “the court
cannot take on the responsibility of serving as the litigant’s attorney in construing arguments and
searching the record.” Garrett v. Selby Conner Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005) (citation omitted).

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To the extent that the Report recommends dismissing plaintiff’s claims on grounds
other than immunity, plaintiff has not raised any objections and therefore has waived his
rights to appellate review of those factual and legal issues. Casanova, 595 F.3d at 1123;
see also 28 U.S.C. § 636(b)(1)(C).
Plaintiff’s objection also requests the court hold a due process hearing on the Report
which the court construes as a motion for a hearing. The court denies the motion, as a
hearing is unnecessary to resolve the objections raised by plaintiff.
Plaintiff has also filed a motion for appointment of counsel, claiming he is disabled
as defined by the Americans with Disabilities Act (“ADA”) and that he therefore qualifies
for appointment of counsel in the interest of justice and fair play. Doc. # 48. In determining
whether an appointment of counsel for a prisoner proceeding in forma pauperis is
warranted, the court considers “the merits of a prisoner’s claims, the nature and complexity
of the factual and legal issues, and the prisoner’s ability to investigate the facts and present
his claims.” Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)
(citation omitted). Despite his lack of legal training, plaintiff has filed his complaint
alleging seven claims, four motions, and an objection to the Report in this action. At this
stage of the proceedings, the court will deny the motion to appoint counsel.
The court notes that the Report recommends that claims under Title II of the ADA
cannot be brought against defendants in their individual capacities. The law is not clear in
that respect, and in at least one case, the Tenth Circuit has noted that it has declined to
“reach the question of whether persons can be sued in their individual capacities under the
ADA.” Nielsen v. Moroni Feed Co., 162 F.3d 604, 607 n.5 (10th Cir. 1998) (citing Land
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v. Midwest Office Tech., Inc., 979 F. Supp. 1344, 1348 (D. Kan. 1997) (collecting cases).
As the magistrate judge notes, “most courts have held that Title II claims cannot be
maintained against individual capacities.” Lewis v. N.M. Dept. of Health, 94 F. Supp. 2d
1217, 1230 (D.N.M. 2000) (collecting cases); see also, Garcia v. S.U.N.Y. Health Sciences
Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“Title II of the ADA [does not] provide[]
for individual capacity suits against state officials.” (collecting cases)).
Regardless, plaintiff’s ADA claims against the individual defendants Curry and
Schmidt do not state a claim upon which relief may be granted. “To state a claim under
Title II, the plaintiff must allege that (1) he is a qualified individual with a disability, (2)
who was excluded from participation in or denied the benefits of a public entity's services,
programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by
reason of a disability.” Robertson v. Las Animas County Sheriff’s Dept.¸ 500 F.3d 1185,
1193 (10th Cir. 2007). Plaintiff alleges he is “obviously disable[ed]” and “use[s] a walker.”
Doc. #1, p. 10. Defendant Schmidt is alleged to have violated the ADA because he
“threatened Plaintiff several times regarding having to stand in line and entering the chow
hall with others” which somehow “caused [plaintiff] to miss about 250 meals during late
2015 and in 2016, or get a write-up from Lt. Schmidt.” Doc. #1, p. 10; see also, Id., p. 20.
Defendant Curry is alleged to have violated the ADA “due to her involvement in not
allowing the disabled Plaintiff to enter the chow hall through the rear door like handicapped
inmates in wheelchairs” and “have an orderly bring him his food tray.” Id., pp. 21-22.

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Neither claim plausibly alleges that plaintiff was excluded from participation in or denied
the benefits of services. 2
Accordingly, the Report and Recommendation [Doc. # 46] is ADOPTED.
Plaintiff’s Motion for Injunctive Relief [Doc. # 13], Petition for Emergency Injunction
[Doc. # 25], and Petition for Appointment of Counsel [Doc. #48] are DENIED.
Defendants’ Motion to Dismiss [Doc. #44] is GRANTED IN PART and DENIED IN
PART. The motion is granted with respect to plaintiff’s RLUIPA claim; all §1983 claims
to the extent they are raised against the ODOC and the individual defendants in their
official capacities for money damages; all claims for declaratory and prospective injunctive
relief; the Eighth Amendment claim; the Access to Courts claim; the Due Process claim;
the Retaliation Claim; the ADA claim against defendants Schmidt and Curry; and the Free
Exercise claims against defendants Bryant, Knutson, Curry, and Reed. The motion is
denied as to plaintiff’s ADA claim against the ODOC and the Free Exercise claim against
defendant Drawbridge in his individual capacity. Because this order does not dismiss all
claims in this action, the case remains assigned to Judge Goodwin for further proceedings.

2

In contrast, plaintiff’s claims against the ODOC allege that, despite his disability, “he
was assigned to an upstairs bunk in housing unit 2, which has stairs outside when entering” and
“not moved to a downstairs bunk until 2 ½ months later, after he had fallen coming down the stairs
and injured himself.” Doc. #1, p. 21. He further alleges that “the bathroom and shower is not
properly handicapped accessible.” Id., p. 22. These allegations are sufficient to state a claim
against the ODOC.

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IT IS SO ORDERED.
Dated this 23rd day of October, 2017.

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