Stowe, Graham v. Van Rybroek, Gregory et al
Filing
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ORDER denying plaintiff Graham Stowe leave to proceed on the claims outlined in his complaint, and the complaint is DISMISSED without prejudice for failure to state a claim. Plaintiff has until May 15, 2019, to file an amended complaint. Signed by District Judge William M. Conley on 4/24/2019. (jef/cc: plaintiff via U.S. mail),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
GRAHAM L. STOWE,
v.
OPINION AND ORDER
Plaintiff,
No. 18-cv-321-wmc
GREGORY VANRYBROCK,
MEL CHRISTIANSEN,
MELISSA PLUMLEY,
and KEVIN LAETSCH,
Defendants.
Plaintiff Graham L. Stowe filed a proposed civil complaint, seeking to proceed
against defendants on claims related to his move to a unit at the Mendota Mental Health
Institute (“Mendota”) that is not wheelchair accessible. Since plaintiff seeks to proceed in
this lawsuit in forma pauperis, the court is required to screen this complaint pursuant to 28
U.S.C. § 1915(e)(2). In addressing any pro se litigant’s complaint, the court must read the
allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). Even
under this generous standard, however, this complaint must be dismissed, although the
court will give Stowe the opportunity to file an amended complaint that addresses the
deficiencies described below.
OPINION
Plaintiff Gregory Stowe, a patient at Mendota, is wheelchair bound. Stowe alleges
that he was moved to the Admission Treatment Unit (“ATU”) from December 27, 2016,
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through December 18, 2017, but that unit is not wheelchair accessible.1 He claims that
defendants Melissa Rumley (the ATU manager); Mel Christensen (the forensic program
director); and Director Gregory VanRybrock were all responsible for the transfer.
Plaintiff claims that defendants violated his rights under the Americans with
Disabilities Act (“ADA”) by discriminating against him because he is disabled, and that
defendants were deliberately indifferent to his serious medical need. However, plaintiff
cannot proceed on either claim because his complaint violates Federal Rule of Civil
Procedure 8, which requires a “‘short and plain statement of the claim’ sufficient to notify
the defendants of the allegations against them and enable them to file an answer.” Marshall
v. Knight, 445 F.3d 965, 968 (7th Cir. 2006).
I.
ADA/Rehabilitation Act
While plaintiff claims that defendants violated his rights under the ADA, the court
will infer that he is also seeking leave to proceed on a claim under the Rehabilitation Act,
29 U.S.C. § 701 et seq. See Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012) (noting
uncertainty as to whether ADA violations that do not implicate constitutional rights may be
brought in federal court and suggesting district courts read in a Rehabilitation Act claim). Still,
he will not be allowed to proceed under either act, at least as currently pled. The ADA, 42
U.S.C. §§ 12131-12134, prohibits discrimination against qualified persons with
disabilities. To establish a violation of Title II of the ADA, a plaintiff “must prove that he
is a ‘qualified individual with a disability,’ that he was denied ‘the benefits of the services,
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For purposes of this order, the court assumes the following facts based on the allegations in
plaintiff’s complaint, unless otherwise noted.
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programs, or activities of a public entity’ or otherwise subjected to discrimination by such
an entity, and that the denial or discrimination was ‘by reason of’ his disability.” Wagoner
v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (citing Love v. Westville Corr. Ctr., 103 F.3d
558, 560 (7th Cir. 1996) (citing 42 U.S.C. § 12132)).
The Rehabilitation Act is
substantially identical to the ADA; it provides that “[n]o otherwise qualified individual
with a disability . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). A claim
under § 504 of the Act has four elements: (1) an individual with a disability; (2) who was
otherwise qualified to participate; (3) but who was denied access solely by reason of
disability; (4) in a program or activity receiving federal financial assistance. Jaros v. Illinois
Dep’t of Corr., 684 F.3d 667, 671 (7th Cir. 2012).
For purposes of screening, the court will assume that plaintiff’s need for a wheelchair
renders him “disabled” within the meaning of the first element.
However, plaintiff’s
current allegations do not satisfy either the second or third elements of the prima facie
case.
Although Mendota is considered a “public entity,” plaintiff does not claim to be
excluded from any service, program, or activity offered to other prisoners.
§ 12132.
42 U.S.C.
Indeed, the Seventh Circuit has already held that refusing to accommodate a
prisoner’s severe leg spasm condition by installing guardrails on his bed did not implicate
the ADA or the Rehabilitation Act, because “incarceration, which requires the provision of
a place to sleep, is not a ‘program’ or ‘activity.’” Bryant v. Madigan, 84 F.3d 246, 249 (7th
Cir. 1996).
Bryant also clarifies that while denying a special cell accommodation may
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constitute medical malpractice, because the plaintiff in that case was “not complaining of
being excluded from some prison service, program, or activity, for example an exercise
program that his paraplegia would prevent him from taking part in without some
modification of the program,” the ADA does not provide any remedy for this lack of
services.
Id. Accordingly, since plaintiff has provided no allegations suggesting that his
stay in the ATU precluded him access to any services he would be qualified for at Mendota,
he may not proceed on a claim under the ADA or the Rehabilitation Act.
II.
Eighth Amendment
Nor can plaintiff proceed on an Eighth Amendment claim, at least on his current
allegations. A prison official who violates the Eighth Amendment in the context of a
prisoner’s medical treatment demonstrates “deliberate indifference” to a “serious medical
need.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Forbes v. Edgar, 112 F.3d 262, 266
(7th Cir. 1997). “Serious medical needs” include (1) life-threatening conditions or those
carrying a risk of permanent serious impairment if left untreated, (2) withholding of
medical care that results in needless pain and suffering, or (3) conditions that have been
“diagnosed by a physician as mandating treatment.” Gutierrez v. Peters, 111 F.3d 1364,
1371 (7th Cir. 1997). “Deliberate indifference” encompasses two elements: (1) awareness
on the part of officials that the prisoner needs medical treatment and (2) disregard of this
risk by conscious failure to take reasonable measures.
Here, even accepting that the fact that plaintiff’s use of a wheelchair satisfies the
serious medical need requirement, plaintiff has not pled any facts that would support a
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reasonable inference that any of the defendants acted with reckless disregard for that need.
Indeed, beyond alleging that he is wheelchair bound and that the ATU is not handicapaccessible, plaintiff has not pled any facts suggesting that he actually faced any challenges,
impediments or actual physical harm as a result of his placement in the ATU. For example,
plaintiff has not pled that any of the defendants knew that he needed any sort of medical
attention related to his handicap, much less that they failed to take reasonable measures
to address that need.
Accordingly, the court is dismissing Stowe’s complaint without prejudice, but
because Stowe’s complaint was so short on allegations, the court will give him a small
window of time within which he can file an amended complaint that corrects the
deficiencies outlined above.
Should he choose to file an amended complaint by the
deadline set forth below, the court will screen it under § 1915(e)(2). In preparing an
amended complaint, plaintiff should take care to provide specific information about exactly
how his time in ATU violated his rights under the ADA and/or the Eighth Amendment.
Plaintiff should use the legal standards set forth above as his guideline.
Furthermore, plaintiff should draft his complaint as if he is telling a story to
someone who knows nothing about the situation.
Plaintiff should explain: (1) what
happened to make him believe he has a legal claim; (2) when it happened; (3) which
defendants did it; (4) why; and (5) how the court can assist him in relation to those events.
Plaintiff should write his allegations in separate, numbered paragraphs using short and
plain statements.
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ORDER
IT IS ORDERED that:
1) Plaintiff Graham Stowe is DENIED leave to proceed on the claims outlined in
his complaint, and the complaint is DISMISSED without prejudice for failure
to state a claim.
2) Plaintiff has until May 15, 2019, to file an amended complaint that corrects
the deficiencies outlined in this opinion. If plaintiff filed a proposed amended
complaint by that deadline, the court will take it under consideration for
additional screening pursuant to 28 U.S.C. § 1915(e)(2). If plaintiff fails to
submit an amended complaint as directed, then this case will be closed
without further notice pursuant to Federal Rule of Civil Procedure 41(b).
Entered this 24th day of April, 2019.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge
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