Assi v. W. Reg'l Jail, Case No. 3:18-cv-00517

HASSAN ADNAN ASSI, Plaintiff, v. WESTERN REGIONAL JAIL; SGT. DIAMOND; SGT. FERGUSON;CPL. NEAL; CPL. DAVIS; LT. HILL; CPL. ERWIN;SGT. FLEMING; and LT. MORRISON, Defendants.

Case No. 3:18-cv-00517

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION

November 21, 2019

PROPOSED FINDINGS AND RECOMMENDATIONS

In April 2018, Plaintiff, Hassan Adnan Assi ("Plaintiff"), proceeding pro se and incarcerated in the Western Regional Jail at Barboursville, West Virginia, filed a Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 2). Pending before the Court is Defendants' Motion to Dismiss Complaint. (ECF No. 34). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by standing order is referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

For the reasons that follow, the undersigned RECOMMENDS that Defendants' Motion to Dismiss, (ECF No. 34), be GRANTED; that the Complaint, (ECF No. 2), be DISMISSED, with prejudice; and that this action be removed from the docket of the Court.

I. Relevant Facts and Procedural History

In April 2018, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983, asserting that he had been discriminated against due to his disability. (ECF No. 2 at 5). Plaintiff states that he suffers from severe hearing loss and has been denied telephone access due to Defendants' failure to accommodate his disability. (Id. at 4-5). Plaintiff asserts that each Defendant has individually failed to assist him and has refused him fair treatment. (Id. at 4). For relief, Plaintiff asks "the courts to make sure that this issue is addressed appropriately[,] and I demand fair and equal treatment." (Id. at 5). Plaintiff named a number of individual correctional officers in his lawsuit, as well as the Western Regional Jail.¹

On August 29, 2018, Defendants submitted an Answer to Plaintiff's complaint, denying the allegations contained therein. (ECF No. 26). On August 31, 2018, Plaintiff submitted a Notice of Change of Address, indicating that he had been released from incarceration and now resided in Proctorville, Ohio. (ECF No. 27). A status conference was held on September 26, 2018, attended by Plaintiff and counsel for Defendants. (ECF No. 29). At the status conference, Plaintiff provided further detail regarding his complaint, explaining that he suffered from 60% hearing loss capacity and was unable to use a conventional telephone. Plaintiff stated that he was only able to operate a telephone by utilizing a Text Telephone (TTY) device. However, while he was incarcerated at theWestern Regional Jail in 2018, he was given no access to such a device and, consequently, was unable to make telephone calls for an extended period of time. Plaintiff also asserted that the jail did not put adequate procedures in place to ensure that Plaintiff was properly notified of meals and activities, resulting in Plaintiff frequently missing meals and activities due to his disability. Plaintiff indicated that he intended to bring his claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, and the Rehabilitation Act, 29 U.S.C. § 794.

At Plaintiff's request, the undersigned entered an Order staying discovery in this case for 60 days to give Plaintiff an opportunity to retain legal counsel. (ECF No. 30). On November 26, 2018, Plaintiff submitted a Notice of Change of Address, indicating that he now resided in Charleston, West Virginia, but did not otherwise provide an update regarding his search for an attorney. (ECF No. 31). On February 12, 2019, the undersigned entered a Scheduling Order providing deadlines for the parties to complete discovery and submit dispositive motions. (ECF No. 32). Plaintiff was given until March 22, 2019 to join any additional parties or amend the complaint. (Id. at 1). The deadline for all dispositive motions was set for October 11, 2019. (Id. at 2).

On March 1, 2019, Defendants submitted a Motion to Dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 34 at 1-2). In support of their motion, Defendants argue that Plaintiff's claims should be dismissed as the complaint has been rendered moot by Plaintiff's release from the Western Regional Jail. (Id. at 3-4). Defendants additionally contend that, as Plaintiff failed to properly exhaust his administrative remedies, dismissal of his suit is required by federal law. (Id. at 4). Finally, Defendants argue that the complaint should be dismissed as to the individually named Defendants, because the relevant portion of the ADA does not providefor liability against individuals. (Id. at 9).

On March 5, 2019, the undersigned entered an Order directing Plaintiff to file a response to Defendants' Motion to Dismiss by April 1, 2019. (ECF No. 36). In the Order, Plaintiff was warned that "ordinarily, a failure to respond within the allowed time can support a conclusion that Defendants' contentions are undisputed and may result in a dismissal of the complaint." (Id. at 1). Plaintiff did not respond to the Motion to Dismiss. Neither party has entered any submission since the Motion to Dismiss was filed on March 1, 2019.

II. Standard of Review

A motion under Rule 12(b)(6) tests the sufficiency of the complaint. Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007) (stating to survive a 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as true, to ''state a claim to relief that is plausible on its face"). Accordingly, the Court will assume that the facts alleged in the complaint are true and will draw all reasonable inferences in Plaintiff's favor as the nonmoving party. Burbach Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). The purpose of Rule 12(b)(6) "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). "Furthermore, when as here, a Rule 12(b)(6) motion is testing the sufficiency of a civil rights complaint, 'we must be especially solicitous of the wrongs alleged' and 'must not dismiss the complaint unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged.'" Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999) (quoting Harrison v. United States Postal Serv., 840 F.2d 1149, 1152 (4th Cir. 1988)).

While the Court "take[s] the facts in the light most favorable to the plaintiff, ... [the Court] need not accept the legal conclusions drawn from the facts," and "need not accept as true unwarranted inferences, unreasonable conclusions or arguments." Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000)). A complaint fails to state a claim when, accepting the plaintiff's well-pleaded allegations as true and drawing all reasonable inferences, the complaint lacks "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. A pleading that "offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do" and a complaint will not "suffice if it tenders naked assertions devoid of further factual enhancements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted).

Court are required to liberally construe pro se complaints, such as the complaint filed herein. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, the complaint still must contain sufficient factual allegations to support a valid legal cause of action. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). The Court may not rewrite the pleading to include claims that were never presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the Court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

III. Discussion

Plaintiff's complaint is filed pursuant to 42 U.S.C. § 1983, which provides a remedy to parties who are deprived of federally protected civil and constitutional rights by persons acting under color of any state "law, statute, ordinance, regulation, custom, orusage." 42 U.S.C. § 1983. Congress enacted § 1983 "to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a state and represent it in some capacity, whether they act in accordance with their authority or misuse it." Monroe v. Pape, 365 U.S. 167, 171-172 (1961), overruled on other grounds by 436 U.S. 658. In order to state a cause of action under § 1983, a plaintiff must present facts showing that: (1) a person deprived him or her of a federally protected civil right, privilege or immunity and (2) that the person did so under color of state law. 42 U.S.C. § 1983; American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) ("To state a claim for relief in an action brought under § 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law."). If either of these elements is missing, the complaint fails to state a claim for relief under § 1983. Sullivan, 526 U.S. at 50.

Plaintiff brings this claim under Title II of the ADA and Section 504 of the Rehabilitation Act. The ADA provides 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...