Opinion
No. 3:05-CV-1838-L.
February 1, 2006
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE.
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate under 42 U.S.C. § 1983 and the American with Disabilities Act (ADA), 42 U.S.C. 12132. Parties: Plaintiff is presently confined at the Connally Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Kenedy, Texas. Defendants are the Wayback House Inc. (WBH) in Dallas Texas, WBH Director Al Richard, Shift Supervisor Angie White, and Case Manager Percy Wilson.
Title II of 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 services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
The ADA prohibits prisons from discriminating against a qualified individual with a disability on account of that disability. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). The Act defines "public entity" to include "any State or local government" and "any department, agency, . . . or other instrumentality of a State," 42 U.S.C. 12131(1). The U.S. Supreme Court has expressly held that the term "public entity" includes state prison facilities. See Yeskey, 524 U.S. at 210 (State correctional facilities are among the "public entities" under ADA required to make their facilities readily accessible to individuals with disabilities). Title II of the ADA authorizes suits by private citizens for money damages against public entities that violate § 12132.
Most recently in United States v. Garcia, ___ U.S. ___, 126 S.Ct. 877 (Jan. 10, 2006), the Supreme Court held that Title II of the ADA validly abrogates state sovereign immunity insofar as it created a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment.
The Court did not issue process in this case, pending preliminary screening. On October 25, 2005, the Court issued a questionnaire to Plaintiff, who filed his answers on November 21, 2005.
Statement of Case: The complaint, as supplemented by the Index of Authorities and answers to the questionnaire, alleges Defendants were deliberately indifferent to Plaintiff's mental condition and the need for a referral to the Texas Department of Mental Health and Mental Retardation (MHMR). (Complaint at 3-4). The complaint further alleges that Defendants's refusal to refer him to MHMR violated the American with Disability Act (ADA). (Index of Authorities at 8, and handwritten supplement at 2-3, attached to questionnaire). Plaintiff requests monetary and punitive damages against all Defendants. (Complaint at 4).
On September 11, 2003, Plaintiff was released on parole from TDCJ-CID to WBH. (Complaint at 3, and Index of Authorities at 2). Upon his arrival at WBH and during the ensuing months, Plaintiff repeatedly requested medical attention for his mental health and a referral to (MHMR) for mental treatment. WBH and its staff denied all of his initial requests by October 2003, despite his lengthy history of mental impairments and physical disabilities, his on going depression, his application for Social Security disability benefits submitted immediately after his release on parole, and his repeated pleas to WBH staff for assistance and a referral to MHMR. (Complaint at 3-4 and Index of Authorities at 2). According to Plaintiff, WBH policy required case managers to make the decision whether MHMR referral was necessary. (Complaint at 4).
As a result of the application for Social Security disability benefits, the Texas Rehabilitation Commission referred Plaintiff to Dr. Peter Holm in November 2003 for an examination. (Complaint at 4 and Index of Authorities at 3). Dr. Holm in turn diagnosed Plaintiff as being manic depressive and suffering from bi-polar disorder. (Id.). Although Plaintiff returned to his case manager in November and December 2003 to request MHMR referral in light of Dr. Holm's diagnoses, his request was again denied. (Id.).
In the meanwhile, Plaintiff's mental condition and depression deteriorated allegedly in part due to a "misappropriated infraction," which result in the loss of his Christmas pass. (Complaint at 4, Attachment I to Complaint, and Index of Authorities at 3). Feeling desperate and unable to rationalize, Plaintiff left WBH without permission on January 9, 2004. (Id.). This ultimately resulted in his arrest in Fort Worth, Texas, on a parole warrant, and the subsequent revocation of his parole. (Id.). Upon his arrival at the Tarrant County Jail, MHMR allegedly examined him and treated him with anti-depressants, Clonidine, and blood pressure medication. (Attachment I to Complaint).
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff seeks to sue WBH and its employees because the denial of MHMR referral ultimately led to the revocation of his mandatory supervision/parole. Plaintiff's own allegations confirm that his § 1983 and ADA claims implicate the validity of his revocation proceeding for which he is presently incarcerated in TDCJ-CID. He specifically alleges that if he "had [been given] adequate care [at WBH,] the outcome would have been different." (Attachment I to Complaint). He explains that the "whole ordeal [at WBH] has had a[n] impact on . . . [his] liberty interest and emotional harm, especially his re-incarceration, this time without criminal intent, only for suffering a mental illness disorder." (Index of Authorities at 4). If the Court were to grant damages, as Plaintiff requests under either § 1983 or the ADA, such a ruling would necessarily implicate the validity of his parole revocation, which is the basis for his present confinement.
In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court stated:
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, [footnote omitted] a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.
The Heck Court unequivocally held that unless an authorized tribunal or executive body has overturned or otherwise invalidated the plaintiff's confinement, his claim "is not cognizable under [section] 1983." Id. at 487.
The Fifth Circuit Court of Appeals has extended Heck to proceedings that call into question the fact or duration of parole. See Littles v. Bd. of Pardons Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995); McGrew v. Bd. of Pardons Paroles Div., 47 F.3d 158, 161 (5th Cir. 1995). Under such circumstances, the § 1983 action is subject to dismissal underHeck absent a showing that the confinement resulting from the parole revocation proceeding has been invalidated by a state or federal court. Littles, 68 F.3d at 123.
Although the Fifth Circuit has not yet considered whether the holding in Heck applies to ADA claims, other courts have determined that "the reasoning set forth in Heck to preclude section 1983 actions, applies equally to ADA claims." Browdy v. Karpe, 2004 WL 2203464, *8 (D.Conn. 2004) (quoting Miele v. Griffin, et al., Case No. 3:00cv2239, slip op. at 7-8 (D.Conn. Oct. 12, 2001); see also Stanley v. Guilet, et. al, Case No. 3:00 cv2070, slip op. at 10-11 (D. Conn. June 3, 2002). The Court finds the above decisions persuasive and holds that Heck applies to Plaintiff's § 1983 claims as well as to his ADA claims.
In the instant case, Plaintiff cannot satisfy the favorable termination requirement set out in Heck. He recently filed a federal habeas corpus action challenging the validity of his parole revocation in this court. See Miller v. Dretke, 3:05cv2379 (N.D. Tex., Dallas Div., filed on Dec. 2, 2005) (presently referred to the undersigned Magistrate Judge). Until Plaintiff receives a ruling declaring his parole revocation invalid, no action can accrue under either § 1983 or the ADA. Heck, 512 U.S. at 488-89; Randell, 227 F.3d at 301 ("Because [plaintiff] is seeking damages pursuant to § 1983 for unconstitutional imprisonment and he has not satisfied the favorable termination requirement of Heck, he is barred from any recovery. . . ."). The District Court should dismiss Plaintiff's complaint as frivolous but without prejudice to Plaintiff refiling the same at such time as his parole revocation has been expunged, reversed or otherwise set aside. See Clarke v. Stadler, 154 F.3d 186, 189 (5th Cir. 1998) (en banc) (dismissing Heck barred claim without prejudice); Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (noting that a § 1983 claim which falls under the rule in Heck is legally frivolous);Williams v. Cleer, 123 F. Appx. 591, *593 (5th Cir. 2005) (following Stadler and dismissing Heck barred claims without prejudice to refiling at such time as the conviction or imprisonment has been expunged, reversed or otherwise set aside).
Alternatively Plaintiff's complaint should be dismissed for failure to exhaust his administrative remedies under 42 U.S.C. § 1997e(a), as amended in 1996 by the Prisoner Litigation Reform Act (PLRA). Section 1997e(a) provides that a prisoner must exhaust his administrative remedies before bringing a civil action challenging prison conditions. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12, (2002) (exhaustion requirement "applies to all inmate suits about prison life, whether [those suits] involve general circumstances or particular episodes, and whether [those suits] allege excessive force or some other wrong"); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958, (2001) (mandatory exhaustion requirement must be strictly observed "regardless of the relief offered through administrative procedures").
Plaintiff incorrectly relies on the pre-PLRA version of § 1997e and on case law predating the Supreme Court's decisions inBooth v. Churner and Porter v. Nussle. (See Brief at 4-6 attached to Plaintiff's answers to the Questionnaire).
Plaintiff asserts that during his stay at WBH he was "in constructive custody as a releasee" not as a state prisoner. (Brief at 1-2, attached to Plaintiff's answers to the Questionnaire). Thus, he argues the exhaustion requirement is inapplicable to him. Section 1997e(a) provides that no action alleging a violation of federal law may be brought "with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." The phrase "prison conditions" is defined in another section of the PLRA, 42 U.S.C. § 3236(g)(2), as meaning "the conditions of confinement." The PLRA's exhaustion requirement is not limited to internal prison remedies, but applies as well to external administrative remedies. The Seventh Circuit has held that a claim of constitutional violations brought by a plaintiff placed in a halfway house in lieu of imprisonment following his parole revocation relates to his "conditions of confinement" and, thus, is a claim "with respect to prison conditions" for purposes of § 1997e(a). Witzke v. Femal, 376 F.3d 744 (7th Cir. 2004). The Wayback Halfway House to which Plaintiff was released under mandatory supervision is similar to Witzke's halfway house. Consequently, Plaintiff's complaint arises "with respect to prison conditions." By contrast, a claim by pretrial detainees with mental disabilities that they were unlawfully denied access to medication and treatment after their release from jail is not subject to PLRA's exhaustion requirement, see Bolden v. Stroger, 2005 WL 283419 (N.D. Ill. Feb. 1, 2005), because a claim arising after the detainees' release is not a claim relating to prison condition.
Plaintiff further asserts that the grievance procedure set out in Attachment I to the questionnaire, dated December 21, 2004, is inapplicable to him. He explains that he was a resident at WBH from September 2003 until January 2004, before the date of Attachment I. (Brief attached to Answers to Questionnaire at 3). It is unclear when the grievance procedure in Attachment I to the questionnaire became effective. The date printed at the bottom of the page appears to be the print date since no mention is made of its effective date. Nevertheless, Plaintiff does not dispute that a grievance procedure was in place at WBH from September 2003 until January 2004, and that he failed to comply with it. (Answer to Question 1).
Plaintiff also asserts that he was not required to exhaust administrative remedies with respect to his ADA claim. The plain language of § 1997e(a) requires prisoner actions under "any" federal law to meet the exhaustion requirement, and ADA suits are not exempt. Wiley v. McKellar, 2006 WL 189941 (5th Cir. Jan. 26, 2006) (unpublished per curiam) (applying PLRA exhaustion requirement to prisoner's ADA action); Jones v. Smith, 109 F. Appx. 304, *307 (10th Cir. 2004) (unpublished) (same); Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001) (same).
WBH provides an informal grievance period in addition to a three-step procedure for presenting administrative grievances. A grievance must be filed no later than seven days from the incident or condition that is being grieved by a WBH resident. An administrator will meet with the resident and come to a resolution within ten days. If the issue cannot be resolved at this level, a resident can file an appeal within three days after receiving the administrator's decision. The executive director will in turn issue a decision within ten days. A final appeal may be made to Austin, to the Director of Specialized Supervision, within fifteen days of being notified of the executive director's decision. (Attach. I to Questionnaire for p. 13 WBH Resident Handbook).
In answer to the magistrate judge's questionnaire, Plaintiff concedes that he made only informal, verbal complaints to Case Manager Wilson and Executive Director Richard about the denial of mental health care while a WBH resident. (Answer to Question 1). Such informal complaints are insufficient to satisfy the three-step administrative exhaustion requirement at WBH. (See Attachment I, WBH Resident Handbook at p. 13). As a result, Plaintiff's § 1983 and ADA claims remain unexhausted. RECOMMENDATION:
In Johnson v. Johnson, the Fifth Circuit recently stated that "prisoners need not continue to file grievances about the same issue." 385 F.3d at 521. Unlike Johnson, however, Plaintiff never even once filed a grievance to begin exhaustion of his administrative remedies before filing this action. He only attempted to resolve the problem informally with his case manager and executive director.
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed as frivolous, but without prejudice to it being reasserted after the Heck conditions are met. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). Alternatively the complaint should be dismissed without prejudice for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a).
It is further recommended that Plaintiff's motions to appoint counsel and for production of documents (Docket #4, 6, 7, 8, 9 and 14) be denied as moot. A copy of this recommendation will be mailed to Plaintiff.