Meyer v. Schrubbe et al

Filing 14

ORDER signed by Judge J P Stadtmueller on 9/18/2013 Denying 12 Motion to Dismiss. (cc: all counsel, via US Mail to Plaintiff) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KARL MEYER,
Plaintiff,
v.

Case No. 13-CV-295-JPS

BELINDA SCHRUBBE,
NICOLE KAMPHUIS,
JAMES MUENCHOW,
WILLIAM POLLARD, and
STATE OF WISCONSIN,

ORDER

Defendants.

Plaintiff Karl Meyer (“Meyer”), a Wisconsin state prisoner, filed a pro
se complaint under 42 U.S.C. § 1983, alleging that his civil rights were
violated. According to the complaint, Meyer, a disabled veteran incarcerated
at Waupun Correctional Institution (“WCI”), wears two knee braces and an
ankle brace. Defendant Belinda Schrubbe, WCI Health Services Manager,
denied the plaintiff’s request for a hand-scan while passing through
“contraband controls” and instead required him to remove his three leg
braces and pass through the metal detector. The plaintiff asked defendant
Nicole Kamphuis, WCI Financial Programs Supervisor, to be hand-scanned
instead of having to go through the metal detector, but she denied his
request, stating that only inmates with indwelling metal get hand-scanned.
The plaintiff filed a grievance with the Inmate Complaint Review System.
Defendant James Muenchow dismissed his grievance and defendant Warden
William Pollard affirmed the dismissal on appeal. In his civil complaint, the
plaintiff alleges that the defendants’ actions caused him pain, as well as
“undo wear-and-tear” on his leg braces. The plaintiff sought to proceed with

claims under Title II of the Americans with Disabilities Act (“ADA” or “Title
II”) and the Eighth Amendment to the United States Constitution. In an order
dated June 11, 2013, this court dismissed the plaintiff’s Eighth Amendment
claim, but permitted his ADA claim to proceed. (Docket #7).
Presently before the court is a motion to dismiss filed by the
defendants. (Docket #12). Plaintiff did not file any briefing in opposition, and
the deadline for filing any response has passed. Accordingly, the defendants’
motion is ready for resolution.
1.

Legal Standards
Defendants bring their motion to dismiss under Federal Civil Rule of

Procedure 12(b)(6). A motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the plaintiff’s complaint by asserting that he failed to state a
claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). To
survive a motion to dismiss under Rule 12(b)(6), Meyer’s complaint must
allege facts sufficient to “state a claim for relief that is plausible on its face.”
Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The court construes the complaint in the light
most favorable to the claimant, accepts as true all well-pleaded facts alleged,
and draws all possible inferences in the claimant’s favor. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
2.

Discussion
The defendants’ motion proceeds on two alternative grounds. Their

main argument is that Meyer fails to state a valid ADA claim for two reasons:
(1) because Meyer does not allege that he was excluded from participating
in any state programs, and (2) because Meyer’s requested accommodation is
unreasonable on its face. Alternatively, defendants argue that Meyer’s suit
should be dismissed as precluded by Eleventh Amendment Immunity.
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The court turns first to defendants’ argument that Meyer fails to state
a claim because he does not allege that he was excluded from participating
in any state programs. In support of this argument, defendants cite an
unreported case: Glick v. Walker, 272 Fed. Appx. 514 (7th Cir. 2008).
Unfortunately for the defendants, Glick does not support their argument.
First, in the section to which defendants cite, the Seventh Circuit affirms
dismissal of an ADA claim on the ground that the prisoner plaintiff argued
denial of access to a program due to his security status, not due to any
disability. 272 Fed. Appx. at 521. As the panel notes, that plaintiff “pleaded
himself out of court” in discussing his security status and not his disability.
The issue before the Seventh Circuit was entirely different, thus
distinguishing the case from Meyer’s claims. Second, the case does not
support defendants’ argument that the only way to state a claim under the
ADA is to allege exclusion from a state program. While the facts of the Glick
case dealt with exclusion from a state program, the ADA provides a cause of
action for a qualified individual with a disability who is, “by reason of such
disability, [ ] excluded from participation in or [ ] denied the benefits of the
services, programs, or activities of a public entity, or [ ] subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. The statutory language
is broad, and encompasses several types of discrimination claims. Alleging
exclusion from a state program is sufficient, but not necessary, to state a
claim under the ADA. Indeed, to succeed on his a claim under the ADA, the
plaintiff may establish that he was “subjected to discrimination.” See Frame
v. City of Arlington, 575 F.3d 432, 435 (5th Cir. 2009); Culvahouse v. City of
LaPorte, 679 F. Supp 2d 931, 937 (N.D. Ind. 2009). This discrimination “may
be established by evidence that (1) the defendant intentionally acted on the
basis of the disability, (2) the defendant refused to provide a reasonable
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modification, or (3) the defendant’s rule disproportionally impacts disabled
people.” Washington v. Indiana High Sch. Athletic Ass'n, Inc., 181 F.3d 840, 847
(7th Cir.1999). Plaintiffs claims that the jail’s metal detector policy
discriminates against him due to his disability, coupled with his claims that
the defendants would not reasonably modify the policy to accommodate
him, are sufficient to state a claim under the ADA.
Defendants next argue that Meyer fails to state a claim under the ADA
because his requested accommodation is unreasonable on its face. A
requested accommodation to modify a rule is unreasonable when it is “so at
odds with the purpose behind the rule that it would be a fundamental and
unreasonable change.” Wisc. Comty. Svcs., Inc. v. City of Milwaukee, 465 F.3d
737, 752 (7th Cir. 2006). Defendants argue entitlement to dismissal based
upon their claim that the metal detectors are in place to check for contraband,
and citing one New York State case about an inmate who secreted
contraband in his knee brace. Because the inquiry of whether an
accommodation is reasonable is “highly fact-specific” and “requires
balancing the needs of the parties,” Oconomowoc Residential Programs v. City
of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002), the court will not grant the
defendants’ motion to dismiss at this time, when the factual record is
undeveloped. The court completely lacks relevant information, such as the
type of braces Meyer wears, and the efficacy of detecting contraband that
may be concealed in the braces using the hand scanners. Construing Meyer’s
complaint in a light most favorable to him, and drawing all reasonable
inferences in his favor, the court concludes that Meyer’s complaint is
sufficient to proceed, defendants’ argument regarding the reasonableness of

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Meyer’s requested accommodation notwithstanding. Defendants’ motion to
dismiss will be denied on this point.
Defendants’ final argument seeks dismissal based on Eleventh
Amendment immunity. The Eleventh Amendment to the United States
Constitution bars actions in federal court against a state, state agencies, or
state officials acting in their official capacities. Ind. Prot. & Advocacy Servs. v.
Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010). Three
principal exceptions exist: (1) valid Congressional abrogation of the states’
immunity; (2) state waiver of immunity or consent to suit; and (3) the Ex
Parte Young doctrine, whereby a plaintiff can sue individual state officials for
prospective relief to enjoin ongoing violations of federal law. Council 31 of the
Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO v. Quinn, 680 F.3d 875, 882
(7th Cir. 2012). Whether Title II of the ADA was a valid Congressional
abrogation of state immunity is unsettled, and it remains “an open question
whether state officers are immune to suits under [the ADA].” Norfleet v.
Walker, 684 F.3d 688, 690 (7th Cir. 2012) (citing United States v. Georgia, 546
U.S. 151, 158-59 (2006)). In United States v. Georgia, the United States Supreme
Court established a three-part analytical framework for district courts
considering Title II cases involving potential sovereign immunity. 546 U.S.
at 159. As the Court instructed, a trial court should assess, on a claim-byclaim basis:
(1) which aspects of the State's alleged conduct violated Title II;
(2) to what extent such misconduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct
violated Title II but did not violate the Fourteenth
Amendment, whether Congress's purported abrogation of
sovereign immunity as to that class of conduct is nevertheless
valid.

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Id. This framework begs the question of whether a determination of
misconduct under Title II must precede the sovereign immunity analysis.
While this question is unanswered in the Seventh Circuit, other Circuits have
determined that a plaintiff’s Title II claim must be resolved on its merits prior
to consideration of any claims of sovereign immunity. Bowers v. NCAA, 475
F.3d 524, 553 (3d Cir. 2007); Buchanan v. Maine, 469 F.3d 158, 172-73 (1st Cir.
2006). Recently, the Fifth Circuit also adopted that order of analysis, citing
the principle of constitutional avoidance. Hale v. King, 642 F.3d 492, 504 n.38
(5th Cir. 2011) (quoting Lying v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.
439, 445 (1988) (“A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional questions in
advance of the necessity of deciding them.”)) Concurring that judicial
restraint on this issue is appropriate, especially given the facts and
circumstances of this particular case and the aforementioned paucity of facts
on the record, the court will not grant the defendants’ motion to dismiss on
the grounds of sovereign immunity at this time. The court will instead
consider the implications of sovereign immunity should Meyer prevail on his
Title II claims when resolution of the constitutional issue rises to necessity.
Accordingly,
IT IS ORDERED that the defendants’ motion to dismiss (Docket # 12)
be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 18th day of September, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge
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