Opinion
Civil Action No. 3:00-CV-0863-D
February 13, 2001
MEMORANDUM OPINION AND ORDER
Proceeding pro se, plaintiff Bobby D. Sims ("Sims") sues defendants The Epilepsy Foundation ("the Foundation") and a former Foundation employee, Patrick Tester ("Tester"), alleging violations of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. The Foundation moves to dismiss these claims pursuant to Fed.R.Civ.P. 12 for lack of jurisdiction and failure to state a claim. It also moves to dismiss Tester pursuant to Rule 4(m) for failure to serve him within the 120 days provided by the rule. For the reasons that follow, the court grants both motions, but allows Sims to replead his action against the Foundation.
I
This suit arises from Sims' unsuccessful attempt to obtain assistance from the Foundation and Tester. Sims alleges that he suffers from epilepsy and first contacted the Foundation and Tester after being referred to them by a counselor with the Texas Rehabilitation Commission. He was told that the Foundation and Tester could help him find employment and more affordable housing. Tester visited Sims' residence twice and promised to assist him. Sims alleges that instead of providing the promised help, Tester made false affidavits to Child Protective Services and Adult Protective Services to have Sims' children removed from his care and to have Sims placed in a nursing home.
As with any motion to dismiss, the court takes as true the facts alleged by the nonmovant, Sims, and draws all inferences in his favor. See Royal Bank of Canada v. FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990) (Fitzwater, J.). Furthermore, in consideration of the plaintiff's pro se status, the court exercises lenience in construing the substance of the complaint. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (noting this circuit's "traditional disposition of leniency toward pro se litigants"). The court also refers to plaintiffs answers to the magistrate judge's questionnaire and plaintiff's letters to the court in determining the sufficiency of plaintiff's complaint. Cf. Bookman v. Shubzda, 945 F. Supp. 999, 1003-04 (N.D. Tex. 1996) (Fitzwater, J.) (holding that Spears hearing materials should be considered, in addition to summary judgment response, in deciding motion for summary judgment against pro se litigant).
II
The court first considers the motion to dismiss Tester. The Foundation argues that Sims' claims against Tester should be dismissed because he has never served Tester. Sims filed his complaint on April 26, 2000 and, although a summons for Tester was issued on August 17, 2000, the summons was returned unexecuted on September 13, 2000. Sims' failure to serve Tester violates Rule 4(m), which requires service within 120 days.
When timely service is not provided and the plaintiff does not show good cause for his failure, the rule requires the court either to "dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time." Rule 4(m). Although the court for good cause can extend the 120-day period, see Rule 4(m) and 6(b), Sims has not formally responded to the motion to dismiss, despite the fact that it was filed on October 2, 2000, more than four months ago, and has failed to establish cause not to dismiss his action against Tester.
Moreover, extending the deadline for service would be futile in the present action because Tester is not a proper defendant. See LaPastora v. Employing Agency, 2000 WL 739426, at *2 (N.D. Tex. June 7, 2000) (Lindsay, J.) (refusing to permit extension for service because individual was not proper defendant in Rehabilitation Act suit). Under the Rehabilitation Act and the ADA, Tester cannot be held liable in his individual capacity. See Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999) (holding that there is no individual liability under Rehabilitation Act); Berthelot v. Stadler, 2000 WL 1568224, at *2 (E.D.La. Oct. 19, 2000) (holding that there is no individual liability under ADA). Accordingly, the court dismisses Sims' action against Tester.
III
The court now considers the motion to dismiss the Foundation for lack of jurisdiction and failure to state a claim. Although the court holds that it has jurisdiction, it concludes that Sims has failed to state a claim upon which relief can be granted.
A
The Foundation first argues that Sims' claims against it should be dismissed for lack of jurisdiction because the complaint does not contain "a short and plain statement of the grounds upon which the court's jurisdiction depends." Rule 8(a)(1). Although Sims' complaint does not explicitly articulate a jurisdictional basis for this action, he clearly attempts to state claims under federal law, specifically the Rehabilitation Act and the ADA. Therefore, the court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Although Sims specifically refers to the ADA in his answers to the magistrate judge's questionnaire, he does not explicitly cite the Rehabilitation Act. Instead, he refers to the "Discrimination Act of 1973." The court will construe his claims as being made under the Rehabilitation Act of 1973.
B
Sims' claims under the Rehabilitation Act and the ADA must be dismissed. The Rehabilitation Act applies only to "any program or activity receiving Federal financial assistance or . . . conducted by any Executive agency or by the United States Postal Service." 29 U.S.C. § 794(a). Title II of the ADA applies only to "the services, programs, or activities of a public entity[.]" 42 U.S.C. § 12132. Sims does not allege that the Foundation falls under either of these categories. To the contrary, when asked by the magistrate judge whether the Foundation is a federal, state, or other governmental agency, Sims responded, "not to my knowledge." Ans. to Mag. Judge Quest. # 3. Because Sims has not alleged any facts establishing liability for the Foundation under either statute, the court grants the Foundation's motion to dismiss.IV
The court allows Sims 30 days from the date this memorandum opinion and order is filed to file an amended complaint that states a claim against the Foundation. When, as here, a party is proceeding pro se and the court intends to dismiss the case on the basis of the pleadings, the court must afford the plaintiff one more opportunity to plead his best case. As this court wrote in Barber v. G. H. Rodgers, Civil Action No. CA3-84-1750-D (N.D. Tex. Sept. 13, 1988) (Fitzwater, I), and has cited in subsequent rulings:
[T]he court must decide whether to dismiss the complaint or permit plaintiff one more opportunity to plead his best case. For two reasons, the court concludes that plaintiff should be permitted one more chance to replead. First, orders that grant motions to dismiss, especially in pro se civil rights cases, have a high mortality rate when they reach the circuit court. This court is bound to follow the jurisprudence of the circuit, which evinces a strong tendency to permit pro se litigants several attempts to plead a claim upon which relief can be granted. By outlining in this opinion the deficiencies of plaintiff's amended complaint, if plaintiff nevertheless cannot . . . amend to satisfy the heightened pleading requirements, the court can then dismiss the complaint with the assurance that plaintiff has been shown all the deference he is due.
Slip op. at 7 (footnote omitted). If he fails to amend, or amends but does not state a claim, this action will be subject to dismissal without further leave to amend.
* * *
The court grants defendants' motions to dismiss. Plaintiff shall have 30 days from the date this memorandum opinion and order is filed to file an amended complaint that states a claim against the Foundation.
SO ORDERED.