Brister v. Fed. Bureau of Prisons

Decision Date05 August 2020
Docket NumberCIVIL ACTION NO. 5:19-CV-00088-RWS
CourtU.S. District Court — Eastern District of Texas

The above-entitled and numbered civil action was heretofore referred to United States Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. On May 11, 2020, the Magistrate Judge issued a Report and Recommendation, recommending Plaintiff's Motion for Attorneys' Fees (Docket No. 34-2) be DENIED. The Magistrate Judge further recommended that Defendant's Motion to Dismiss (Docket No. 38) be GRANTED-AS-MODIFIED and that Plaintiff's above-entitled and numbered cause of action be DISMISSED WITHOUT PREJUDICE.

Plaintiff filed objections to the Report and Recommendation. Defendant filed a response to the objections. The Court conducts a de novo review of the Magistrate Judge's findings and conclusions.

I. Background

Jo Brister ("Plaintiff") originally brought this action against the Federal Bureau of Prisons ("BOP" or "Defendant") in the Northern District of Texas pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Docket No. 1. Plaintiff's husband, Alton Brister, was incarcerated at FMC Fort Worth at the time. Id. ¶ 6. According to Plaintiff's original complaint, up until December 17, 2017, FMC Fort Worth permitted Plaintiff to visit her husband there accompanied by her service dog, but the facility refused to allow the service dog to accompany Plaintiff after December 17, 2017. Id. ¶¶ 6-7.

Plaintiff alleges she has been medically diagnosed with depression, anxiety and panic attacks in connection with her Sjogren's Syndrome, and these conditions give rise to a disability within the meaning of Section 504 of the Rehabilitation Act. Id. ¶¶ 3-4. Plaintiff further alleges that:

In light of Ms. Brister's disability, her treating physician prescribed her the use of a service dog (the 'Service Dog') to assist her in her daily life and tasks. Ms. Brister has personally trained the Service Dog to perform tasks designed to alleviate her panic attacks when they arise. Furthermore, the Service Dog generally provides Ms. Brister with emotional support at all times, separate and apart from the specific tasks it is trained to accomplish in the event of a panic attack. Ms. Brister requires the accompaniment of the Service Dog at all times outside of her home environment to avoid panic attacks and the like which arise through her disability.

Id. ¶ 5. Plaintiff originally brought this lawsuit under Section 504, seeking injunctive relief. Id. ¶ 8.

On June 14, 2019, Defendant filed a Suggestion of Mootness, informing the court that Plaintiff's husband had been transferred to a different institution, FCI Texarkana, located in Texarkana, Texas. Docket No. 9. In her response, Plaintiff asserted her general complaint was not moot because "the new facility in Texarkana, also under the control of the Bureau of Prisons, refuse[d] to allow Plaintiff to visit her husband accompanied by her service dog." Docket No. 11 at 1. Plaintiff requested leave to amend her complaint to remove FMC Fort Worth as a defendant, to add the Texarkana facility as a defendant, and to amend the relevant allegations and prayer for relief as appropriate. Id. at 1-2. Plaintiff later filed a separate motion for leave to amend her complaint, as directed by the court. Docket No. 16.

On July 8, 2019, the court granted Plaintiff's motion for leave to amend and directed the Clerk of the Northern District of Texas to docket Plaintiff's First Amended Complaint. Docket No. 17. That same day, the Northern District of Texas entered a Transfer Order, transferring the above case to the Eastern District of Texas, Texarkana Division. Docket No. 19.

In Plaintiff's First Amended Complaint ("FAC"), Plaintiff alleges her husband has been moved to FCI Texarkana, but the BOP's "policies still apply, and Ms. Brister cannot visit her husband with the accompaniment of her Service Dog." Docket No. 18 ¶ 9. According to Plaintiff, FCI Texarkana also refused to allow her to visit her husband with her Service Dog accompanying her, citing "the Federal Bureau of Prisons' policy in denying her requests in this regard." Id. ¶ 10.

According to Plaintiff, by preventing her "from bringing the Service Dog into first the FW Facility and now FCI Texarkana so that she can visit her husband, Defendants have effectively prevented Ms. Brister from entering these facilities at all and thus from visiting her husband at all, due to the severity of her disability." Id. ¶ 29. Plaintiff alleges the "Service Dog has not in the past disrupted any function of any facility of the Bureau of Prisons, including the FW Facility, or caused any regulatory violation." Id. ¶ 30. According to the FAC, allowing Plaintiff to bring the Service Dog into FCI Texarkana so that she can visit her husband would constitute a reasonable accommodation for Plaintiff. Id. Plaintiff alleges an injunction is in the public interest as it is in the public interest for Defendant to uphold federal law and not to discriminate against the disabled. Id. ¶ 34.

Plaintiff further alleges as follows:

Requiring any further exhaustion of administrative remedies by Plaintiff or her husband would (1) be futile, in that the Federal Bureau of Prisons has already admitted that its policies are inconsistent with the remedies requested by Plaintiff in this matter, and (2) the warden of the FCI Texarkana facility has not responded to the requests of Plaintiff or her husband for a determination on this matter, and Plaintiff suffers irreparable harm with each day that she cannot visit her husband.

Id. ¶ 35. In her prayer for relief, Plaintiff requests the Court award her costs and fees, including reasonable attorneys' fees and enjoin Defendant temporarily and then permanently from refusing to allow Plaintiff to bring the Service Dog into FCI Texarkana for the purposes of visiting her husband in FCI Texarkana. Docket No. at 8.

Following transfer of the case to this Court, Plaintiff filed an Amended Motion for Preliminary Injunction on August 6, 2019. Docket No. 23. In her motion, Plaintiff requested the Court preliminarily enjoin the BOP and FCI Texarkana from continuing to refuse to allow her to bring her Service Dog into FCI Texarkana to accompany her during visits to her husband.1 Id. According to Plaintiff, although the Service Dog qualifies as a service animal for purposes of the Americans with Disabilities Act, it can serve as the basis of a Section 504 claim even if it only provides emotional support. Id. ¶ 14. The BOP opposed Plaintiff's amended motion for preliminary injunction, asserting Plaintiff failed to exhaust administrative remedies and failed to meet her burden to obtain relief. Docket No. 24. Defendant further argued Plaintiff refused to comply with BOP policy requiring proper certification for the entry of service animals onto BOP institutional grounds.2

On September 10, 2019, the Magistrate Judge called the matter for hearing on the amended motion for preliminary injunction. However, the parties advised the Court they did not want to proceed with the hearing because they were discussing a potential resolution of the issue. See Docket No. 30. In a meeting in chambers with the Magistrate Judge on September 10, 2019, in an effort to avoid a preliminary injunction hearing, the parties agreed to have a third-party testing agency determine whether the Service Dog met certain security requirements. Docket No. 34 at 4.

On November 27, 2019, Plaintiff filed a motion to withdraw her amended motion for a preliminary injunction and for attorneys' fees. Docket No. 34. According to that motion, since the filing of the amended motion for preliminary injunction, Defendant had "permitted Plaintiff to bring her Service Dog into the Facility for the purposes of accompanying her in visiting her husband in the [FCI Texarkana] Facility." Id. at 1 (further representing Defendant has expressed a "willingness to continue to allow Plaintiff to proceed in this manner"). As a result, Plaintiff moved the Court to withdraw her amended motion for a preliminary injunction. Docket No. 34-1. Arguing "Defendants have modified their behavior in a way that directly benefits Plaintiff and have, in so doing, materially altered the legal relationship between the parties," Plaintiff also requested the Court enter an "order providing its judicial sanction to the result reached by the parties and grant Plaintiff her attorneys' fees as well." Docket No. 34-2.

On December 16, 2019, the BOP filed a response to the motion to withdraw and for attorneys' fees and a separate motion to dismiss Plaintiff's FAC.3 In its response, the BOP statedit had no objection to the motion to withdraw the amended motion for preliminary injunction. Docket No. 37 at 1. The BOP only opposed Plaintiff's request for attorneys' fees.

On January 30, 2020, the Magistrate Judge granted Plaintiff's motion to withdraw the amended motion for preliminary injunction (Docket No. 34-1), leaving the contested issue of attorneys' fees and costs (Docket No. 34-2) for consideration in a separate report and recommendation.

II. Report and Recommendation

On May 11, 2020, the Magistrate Judge issued a 40-page Report and Recommendation ("Report"), recommending Plaintiff's motion for attorneys' fees be denied. The Magistrate Judge further recommended Defendant's motion to dismiss be granted as modified. Rather than recommend this matter be dismissed with prejudice as moot as requested by Defendant, the Magistrate Judge recommended the Court dismiss this matter without prejudice. See Docket No. 42. After setting forth the applicable law regarding the BOP's "Visiting Regulations" program,4the Magistrate Judge set out the applicable law regarding Section 504 of the Rehabilitation Act. Report at 9-12.

The Magistrate Judge noted that even though Plaintiff had withdrawn her amended motion for...

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