Abbott v. Rosenthal

• Citation: 2 F.Supp.3d 1139
• Decision Date: 05 March 2014
• Docket Number: No. 1:13–cv–00222–CWD.,1:13–cv–00222–CWD.
• Court: U.S. District Court — District of Idaho
• Parties: Dennis E. ABBOTT, Plaintiff, v. Terrie ROSENTHAL, Randy Blades, Idaho Department of Correction, Idaho State Correctional Institution, Ben Metser, Marty Thomas, Cpl. Doslin, Jennete Hunter, Sgt. Blair, Miss Bassford, and Mary Ellen Nourse, Defendants.

2 F.Supp.3d 1139

Dennis E. ABBOTT, Plaintiff,

v.Terrie ROSENTHAL, Randy Blades, Idaho Department of Correction, Idaho State Correctional Institution, Ben Metser, Marty Thomas, Cpl. Doslin, Jennete Hunter, Sgt. Blair, Miss Bassford, and Mary Ellen Nourse, Defendants.

No. 1:13–cv–00222–CWD.

United States District Court,

D. Idaho.

Signed March 5, 2014.

Dennis E. Abbott, Boise, ID, pro se.

Leslie Marie Hayes, Idaho Attorney General's Office, Mary Karin Magnelli, Office of the Attorney General, Department of Correction, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, United States Magistrate Judge.

Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC) and currently incarcerated at Idaho State Correctional Institution (ISCI), is proceedingpro se and in forma pauperis in this civil rights action. Now pending before the Court are the following motions: (1) Plaintiff's Motion for Default (Dkt. 17); (2) Defendants' partial Motion to Dismiss ¹ (Dkt. 15); and (3) Plaintiff's Motion to Deny Defendants' Motion to Dismiss (Dkt. 18), which the Court considers to be Plaintiff's response to Defendants' partial Motion to Dismiss.

All parties who have appeared have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case (Dkt. 12). See28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Having carefully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court will decide this matter on the written motions, briefs and record. D. Idaho L. Civ. R. 7.1(d). For the reasons that follow, the Court will grant Defendants' Motion and (1) dismiss with prejudice all individual capacity claims as non-cognizable, and (2) dismiss without prejudice Claims Two through Five because Plaintiff failed to exhaust available administrative remedies as to those claims. Defendants shall file an answer to the remaining claim, Claim One, within 21 days of the date of this Order.

FACTUAL ALLEGATIONS

Plaintiff is in a wheelchair and alleges that he has applied for multiple prison employment opportunities at ISCI, but that he has been denied a job because he is disabled. (Compl., Dkt. 3, at 5–8.) Plaintiff also was allegedly denied participation in the Correctional Industries training program. Plaintiff states that he has been told by prison staff members that they will not hire anyone in a wheelchair. ( Id. at 9.) Plaintiff also claims that none of the areas in which he has sought prison employment has a handicap-accessible bathroom. ( Id. at 10.)

Plaintiff filed the instant civil rights action in May 2013. Claim One asserts that the IDOC, as well as Defendants Metser, Thomas, and Blades, violated the Americans with Disabilities Act and the Rehabilitation Act by not allowing Plaintiff to participate in the Correctional Industries program and by not having accessible bathrooms. ( Id. at 8–9.) Claims Two through Five assert similar violations on several occasions at other employment sites at ISCI, violations allegedly committed by Defendants Doslin, Rosenthal, Blades, Hunter, Blair, Bassford, and Nourse. ( Id. at 9–11.)

DISCUSSION

1. Plaintiff's Motion for Default

Plaintiff moves for entry of default, arguing that Defendants have not timely answered or filed a pre-answer motion with respect to Claim One. (Dkt. 17.) Although Defendants' Motion to Dismiss does apply to Claim One's individual capacity claims against Defendants Metser, Thomas, and Blades, Defendants have not moved to dismiss Claim One as against IDOC or ISCI, or as against Metser, Thomas, or Blades in their official capacities.

Federal Rule of Civil Procedure 12(a)(4) states that a Rule 12 motion tolls the time period within which a defendant must file a responsive pleading. The Court concludes that Rule 12(a)(4) also applies to a partialRule 12(b) motion, tolling the time period for filing an answer to all claims contained in the Complaint—not just the claims for which the motion seeks dismissal. See, e.g., ThermoLife Int'l, LLC v. Gaspari Nutrition, Inc., 2011 WL 6296833, *5 (D.Ariz. Dec. 16, 2011) (unpublished) (“[T]he majority of courts have expressly held that even though a pending motion to dismiss may only address some of the claims alleged, the motion to dismiss tolls the time to respond to all claims.”). Otherwise, a defendant would have to file an answer as to any claims not subject to the motion to dismiss, only to file a second or amended answer later if the motion is denied. The important goal of judicial efficiency compels the Court to conclude that Defendants were not required to answer any part of the Complaint prior to the Court's decision on the partial Motion to Dismiss. Thus, Plaintiff's Motion for Default will be denied.

2. Defendants' Motion to Dismiss Individual Capacity ClaimsA. Standard of Law Applicable to Rule 12(b)(6) Motions

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted). A defendant may move to dismiss a complaint if that complaint fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). While a complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need detailed factual allegations,” it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557, 127 S.Ct. 1955 (alteration omitted).

The Supreme Court has identified two “working principles” that underlie this dismissal standard. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79, 129 S.Ct. 1937. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679, 129 S.Ct. 1937. “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

When a court is considering a motion to dismiss under Rule 12(b)(6), it must “ ‘consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.’ ” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.2012) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007) (per curiam)).

B. Analysis

Plaintiff brings his claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The ADA and the Rehabilitation Act are congruent statutes in purpose and application. See Clark v. California, 123 F.3d 1267, 1270 (9th Cir.1997). The evidence required for bringing a Rehabilitation Act claim is the same as that for an ADA claim, with the additional requirement that the disability discrimination be committed by an entity receiving federal financial assistance. See29 U.S.C. § 794. Therefore, the standards of an ADA claim also apply to a Rehabilitation Act claim.

Title II of the ADA applies to an “individual with a disability who, with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). Title II of the ADA extends to prison inmates who are deprived of the benefits of participation in prison programs, services, or activities because of a disability. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 211, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).

By statutory definition, a Title II ADA claim must be brought against the state or the state entity. See United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (holding that Title II of the ADA validly abrogates Eleventh Amendment immunity for states for conduct that actually violates the Fourteenth Amendment); Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir.2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act.”). Claims against individuals asserted under the ADA are treated as official capacity claims because no individual capacity claims under the statute exist. See, e.g., Becker v. Oregon, 170 F.Supp.2d 1061, 1066 (D.Or.2001); see also Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187–88 (9th Cir.2003) (per curiam) (holding that Title II's...