Blazer v. Dooley et al

Filing 22

ORDER dismissing Complaint and denying 19 Motion to Appoint Counsel ; denying 19 Motion to Amend/Correct. Signed by U.S. District Judge Karen E. Schreier on 1/17/2018. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ROBERT A. BLAZER,

4:17-CV-04045-KES

Plaintiff,
vs.
ROBERT DOOLEY, Warden, in his
individual and official capacity;
DIRECTOR OF PRISON INDUSTRIES,
Director of Prison Industries at Mike
Durfee State Prison, individual and
official capacity;
DENNY KAEMINGK, Secretary of
Corrections, in his individual and
official capacity; and
VERNON ISHMAEL, Supervisor at
Housing Project at Mike Durfee State
Prison, in his individual and official
capacity;

ORDER DISMISSING COMPLAINT
AND DENYING MOTION TO APPOINT
COUNSEL OR AMEND COMPLAINT

Defendants.
INTRODUCTION
Plaintiff, Robert A. Blazer, was formerly an inmate at the Mike Durfee
State Prison (MDSP) in Springfield, South Dakota. While still incarcerated at
MDSP, he filed a pro se civil rights lawsuit under 42 U.S.C. § 1983 (Docket 1)
and moved to appoint counsel or amend his complaint (Docket 19). The court
has now screened Mr. Blazer’s complaint under 28 U.S.C. § 1915A and
dismisses Mr. Blazer’s complaint.

FACTUAL BACKGROUND
Blazer’s complaint generally concerns alleged violations of his federal
constitutional and statutory rights at the MDSP. The facts as Blazer alleged are
as follows:
Blazer worked at the Housing Project at MDSP. Docket 1 at 4. He fell off
a faulty, non-OSHA approved ladder and was injured. Id. The fall re-aggravated
a previous shoulder and back injury and caused neck pain, headaches, and
dizzy spells. Id.
A doctor and nurse prescribed different, conflicting treatment regarding a
cane. Id. at 5. A nurse yelled at Blazer in front of other inmates. A nurse also
carried out the doctor’s duties. A nurse wrote Blazer up. As a result of this
treatment, Blazer suffered emotional trauma and distress. Id.
Unit Coordinator Archambeau and Unit Manager Laine Schryvers
disregarded, lost, or handed back Blazer’s kites and complaints about the
unprofessionalism of the doctor and nurse at MDSP. Id. at 6. Unit Coordinator
Archambeau’s wife is a nurse at the MDSP and this relationship created a
conflict of interest. Id. Blazer was not allowed to complete the full grievance
process and the process extended past thirty days. Id. Blazer’s grievances were
not advanced to the warden. Blazer kited Warden Dooley and Secretary
Kaemingk. As a result of this treatment, Blazer suffered emotional trauma and
distress. Id.

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LEGAL STANDARD
The court must accept the well-pleaded allegations in the complaint as
true and draw all reasonable inferences in favor of the non-moving party.
Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
and pro se complaints must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835,
839 (8th Cir. 2004). Even with this construction, “a pro se complaint must
contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App'x 502, 504
(8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v.
Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481,
482 (8th Cir. 2007).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “If a plaintiff cannot make the requisite showing, dismissal is
appropriate.” Abdullah v. Minnesota, 261 F. App’x 926, 927 (8th Cir. 2008);
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
28 U.S.C. § 1915A requires the court to screen prisoner complaints and
dismiss them if they are “(1) frivolous, malicious, or fail[] to state a claim upon
which relief may be granted; or (2) seek[] monetary relief from a defendant who
is immune from such relief.” § 1915A(b).
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DISCUSSION
I.

Mootness
In addition to seeking money damages for an alleged Americans with

Disabilities Act (ADA) violation, Blazer requested injunctive relief. Specifically,
Blazer seeks an order from this court ordering defendants to provide copies of
Blazer’s grievances and remedies, ordering unit coordinators and unit
managers to cite to Department of Correction policy in responding to
grievances, and ordering medical staff to provide proper medical services.
Docket 1 at 7. Blazer also seeks an order from this court ordering Kaemingk
and Dooley to respond to grievances and letters from all prisoners. Id.
The Eighth Circuit has stated that once a prisoner is released from
incarceration, his or her request for injunctive relief is rendered moot. See, e.g.,
Martin, 780 F.2d at 1337; Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991).
Blazer informed the court of his new address that shows that he is no longer
incarcerated. Docket 21. Because Blazer is no longer incarcerated, his claims
for injunctive relief are rendered moot.
II.

ADA Claim
Blazer seeks money damages for alleged ADA violations. “The ADA

consists of three titles addressing discrimination against the disabled in
different contexts.” Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998). “Title I
prohibits employment discrimination, Title II prohibits discrimination in the
services of public entities, and Title III prohibits discrimination by public
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accommodations involved in interstate commerce such as hotels, restaurants,
and privately operated transportation services[.]” Id. (citing 42 U.S.C. §§ 12112,
12132, 12182, 12184).
Blazer does not indicate which title provides the cause of action for his
claims. But he is not an employee of the state, and the prison is not a private
entity. Therefore, the court construes Blazer’s claims as proceeding under Title
II of the ADA. Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“State
prisons fall squarely within the [Title II] statutory definition of ‘public entity,’
which includes ‘any department, agency, special purpose district, or other
instrumentality of a State or States or local government’ ”) (citing 42 U.S.C. §
12131(1)(B)).
Title II of the ADA states 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; Mason
v. Corr. Med. Servs., Inc., 559 F.3d 880, 886 (8th Cir. 2009). In order to
sufficiently allege that defendants violated Title II of the ADA, Blazer must
allege:
(1) that he is a qualified individual with a disability; (2) that he was
excluded from participation in or denied the benefits of the
[prison’s] services, programs, or activities, or was otherwise
subjected to discrimination by the [prison]; and (3) that such
exclusion, denial of benefits, or other discrimination was by reason
of his disability.
Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010).

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Blazer alleges that he is protected under the ADA, because he is disabled
and receives social security. Id. at 4. Blazer claims he was not allowed to return
to work at MDSP housing project. Id. He claims that the reason he was not
allowed to return to the housing project was because of his fall, not his
disability. Id. To state an ADA claim, Blazer must show that the denial was “by
reason of his disability.” Baribeau, 596 F.3d at 484. Thus, he fails to state a
claim upon which relief may be granted, and his claim is dismissed under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
III.

Motion to Appoint Counsel

Blazer moves to appoint counsel, or if denied, to amend his complaint.
Docket 19. “A pro se litigant has no statutory or constitutional right to have
counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th
Cir. 1998). In determining whether to appoint counsel to a pro se litigant’s civil
case, the district court considers the complexity of the case, the ability of the
indigent litigant to investigate the facts, the existence of conflicting testimony,
and the indigent's ability to present his claim. Id. Blazer’s claims are not
complex, and he appears able to adequately present his § 1983 claims at this
time. Thus, his motion to appoint counsel is denied.
IV.

Motion to Amend
“A decision whether to allow a party to amend [his] complaint is left to

the sound discretion of the district court . . . .” Popoalii v. Corr. Med. Servs.,
512 F.3d 488, 497 (8th Cir. 2008) (citations omitted). “A party may amend its
pleading once as a matter of course within . . . 21 days after serving it.” Fed. R.
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Civ. P. 15(a)(1)(A). “In all other cases, a party may amend its pleading only with
the opposing party's written consent or the court's leave.” Fed. R. Civ. P.
15(a)(2). Motions to amend should be freely given in order to promote justice
but may be denied when such an amendment would be futile. Plymouth Cty. v.
Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir. 2014).
Blazer’s motion is denied because it is futile. Blazer’s only claim for relief
not rendered moot by his release from incarceration fails to state a claim upon
which relief be granted. Therefore, Blazer’s motion to amend his complaint is
denied.
Thus, it is ORDERED
1. Blazer’s complaint (Docket 1) is dismissed for failure to state a claim
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
2. Blazer’s motion to appoint counsel or amend his complaint (Docket
19) is denied.
DATED this 17th day of January, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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