Nolan v. Hamidullah et al

Filing 93

ORDER RULING ON REPORT AND RECOMMENDATIONS. The Court adopts 87 Report and Recommendations. Accordingly, Defendants' Motion to Dismiss 68 , filed by Kathryn Mack, Michael B Mukasey, M L Rivera, Bureau of Prisons, The, Matthew Hamidullah, Ray Holt, Harrell Watts, Harley G Lappin, United States of America, Alberto R Gonzales, is granted as to Plaintiff's claims for monetary damages except to the extent he seeks monetary damages from defendants in their individual capacities for his c laims falling under Bivens. Defendant's Motion is granted with respect to Plaintiff's claims under the Rehabilitation Act against the individual defendants in their individual capacities. The Motion is denied in all other aspects. Plaintiff's pending Motion to Amend is referred to the Magistrate Judge for disposition. Signed by Honorable Joseph F Anderson, Jr on 09/10/2009. (dsto, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA ) ) P l a i n t if f , ) v. ) ) Matthew Hamidullah; M.L. Rivera; Kathryn ) M a c k ; Alberto R. Gonzales; Michael B. ) M u k a se y; Harley G. Lappin; Ray Holt; ) H a rle y G. Lappin; Ray Holt; Harrell Watts; the ) U n ite d States of America; the Bureau of ) P r is o n s ; and John Doe, ) ) D e f e n d a n ts . ) _____________________________________ ) M ic h a e l Nolan, C/A No.: 4:07-1141-JFA-TER

ORDER

T h is matter is before the court for review of the Magistrate Judge's report and re c o m m e n d a tio n ("Report") made in accordance with 28 U.S.C. § 636(b)(1)(A) and (B) and L o ca l Rule 73.02(B)(2)(d) (D.S.C.): T h e magistrate judge makes only a recommendation to the Court, to which any p a rty may file written objections . . . . The Court is not bound by the re c o m m e n d a tio n of the magistrate judge but, instead, retains responsibility for t h e final determination. The Court is required to make a de novo d e te rm in a tio n of those portions of the report or specified findings or re c o m m e n d a tio n as to which an objection is made. However, the Court is not re q u ire d to review, under a de novo or any other standard, the factual or legal c o n c lu s io n s of the magistrate judge as to those portions of the report and re c o m m e n d a tio n to which no objections are addressed. While the level of s c ru tin y entailed by the Court's review of the Report thus depends on whether o r not objections have been filed, in either case the Court is free, after review, t o accept, reject, or modify any of the magistrate judge's findings or r e c o m m e n d a tio n s . W a lla c e v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citatio n s omitted).

P lain tiff Michael Nolan is an inmate at the Federal Correctional Institution in Estill, S o u th Carolina. He originally filed his complaint pro se, but was subsequently appointed c o u n se l to represent him in this matter. In his amended complaint filed October 3, 2008 [dkt. # 56], plaintiff claims that his glaucoma has advanced to the point that he is now legally b lin d . He contends that defendants have violated his constitutional rights by refusing to a c co m m o d a te his condition, arguing that (1) the defendants' actions rise to the level of cruel a n d unusual punishment violating his Eighth and Fourteenth Amendment rights; (2) his right to due process has been violated on account of defendants' refusal to assist him in obtaining a c c e ss to the courts and intentionally interference with his ability to correctly and effectively g rie v e issues related to this suit; and (3) the defendants have violated Section 504 of the R e h a b ilitatio n Act of 1973 ("Rehabilitation Act") by denying him the opportunity to p a r t ic i p a t e in the functional literacy program and pay grade program. He seeks monetary d a m a g e s , injunctive relief, and attorney's fees. On December 3, 2008, defendants filed a motion to dismiss [dkt. # 68], arguing that (1 ) plaintiff has failed to exhaust administrative remedies on all but two of his claims; (2) the c o u rt lacks subject matter jurisdiction over plaintiff's Bivens 1 claims against the defendants in their official capacity, the BOP, and the United States; (3) the court lacks subject matter ju ris d ic tio n over damages claims under the Rehabilitation Act; (4) the court lacks subject

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Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

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m a tte r jurisdiction over plaintiff's claims against defendants in their individual capacities u n d e r the Rehabilitation Act; (5) the Rehabilitation Act does not apply to federal prisons; (6) th e court lacks personal jurisdiction over defendants Lappin, Watts, and Holt; and (7) the p lain tiff has failed to state a claim of a constitutional right. O n August 13, 2009, the Magistrate Judge assigned to this action filed a c o m p r e h e n siv e Report, wherein he recommends that the defendants' motion to dismiss be g ra n te d in part and denied in part. Specifically, the Report recommends defendants' motion to dismiss be granted as to plaintiff's claims for monetary damages except to the extent he s e e k s monetary damages from defendants in their individual capacities for his claims falling u n d e r Bivens. The Report also recommends that defendants' motion be granted with respect to plaintiff's claims under the Rehabilitation Act against the individual defendants in their in d iv i d u a l capacities, and that the motion be denied in all other respects. T h e parties were advised of their right to file objections to the Report. However, no o b jec tio n s have been filed and the deadline has expired. Because the Magistrate Judge fairly a n d accurately summarizes the facts and standards of law, the same will not be repeated h e re in . A f ter carefully reviewing the applicable law, the record in this case, and the Report, th e court agrees with the Magistrate Judge's analysis and recommendation and incorporates th e Report herein by reference. Accordingly, defendants' motion to dismiss is granted as to p la in tif f 's claims for monetary damages except to the extent he seeks monetary damages

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f r o m defendants in their individual capacities for his claims falling under Bivens. D e f en d a n ts ' motion is granted with respect to plaintiff's claims under the Rehabilitation Act a g a in st the individual defendants in their individual capacities. The motion is denied in all o th e r respects. Plaintiff's pending Motion to Amend is referred to the Magistrate Judge for d is p o s itio n . IT IS SO ORDERED.

S ep t e m b e r 10, 2009 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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