Opinion
Case No. CIV-19-716-D
11-07-2019
ROBERT JOE STRANGE, Plaintiff, v. CORRECT CARE SOLUTIONS, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a pro se Oklahoma inmate housed at the Lawton Correctional Facility (LCF), filed a complaint under 42 U.S.C. § 1983 alleging violations of his Eighth and Fourteenth Amendment rights. Doc. 1. Plaintiff names as defendants Correct Care Solutions, which he describes in the caption as "G.E.O. Group Ink's Medicl Provider," "Corporate G.E.O.," and Mr. Honaker. Id. at 2-3. Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. Because Plaintiff fails to state any cognizable claims under § 1983, the undersigned recommends the Court dismiss the complaint in its entirety without prejudice and deny Plaintiff's "Order of Motion." Doc. 11.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff does not list G.E.O. or Mr. Honaker as "Parties" to his lawsuit, Doc. 1, at 1, but he accuses both of violating his rights. See id. at 2-3. For that reason, the undersigned has construed the complaint to name G.E.O. and Mr. Honaker as Defendants. See, e.g., Sheridan v. United States, 214 F. App'x 857, 859 (10th Cir. 2007) (construing a complaint to include parties as defendants when a pro se plaintiff had included their names and a description of their alleged violations in the complaint's body).
I. Screening.
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss the complaint, or any portion of the complaint, if it is "frivolous, malicious, or fails to state a claim upon which relief may be granted" or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B).
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). The complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims.
In his first claim, Plaintiff alleges "both G.E.O. and Correct Care Solutions violated [his] 8th Amendment right[]s to be free from cruel and the unusual punishment." Doc. 1, at 2. He explains he learned from an "O.U. Center Heart speclist" on July 22, 2019 that he had been prescribed the "wrong" heart medication. Id. He faults "both G.E.O. and Correct Care Solutions" for "keeping" him on the "heart damaging pills that were prescribed by O.D. Jeffery, Trout O.D." for "more than eighteen months." Id. Additionally, he states he "has requested his heart medications (Nitro Heart Pills) multiple times with no relief and suffers." Id. He asks this Court to cite Correct Care Solutions for "inadequate medical care at L.C.F., and world-wide" and to provide him "needed relief" by correcting "this issue." Id.
Plaintiff references Correct Care Solutions, or what he describes as G.E.O.'s medical provider, at various times throughout his complaint as "C.C.S.," "C.H.S.A.," and "C.S.H.A." Doc. 1, at 1-3.
LCF, where Plaintiff is now incarcerated, is "a private prison owned and operated by GEO Group, Inc. pursuant to a contract with the Oklahoma Department of Corrections . . . ." See Peters v. Okla. Dep't of Corrs., No. 18-144-G, 2019 WL 1338416, at *2, (W.D. Okla. Mar. 25, 2019). See also https://www.geogroup.com/FacilityDetail/FacilityID/61 (last visited November 4, 2019).
According to Plaintiff, Dr. Trout prescribed him the heart pills during Plaintiff's time as an inmate at the James Crabtree Correctional Center in Helena, Oklahoma. Doc. 1, at 2. Plaintiff does not allege a claim against Dr. Trout, who is apparently not an employee of either Correct Care Solutions or G.E.O.
Within his "Factual Allegations" Plaintiff mentions he "developed a pituitary-adenoma" after he "fell out on House6, Alpa pod." Doc. 1, at 2. Plaintiff does not provide any details but states the condition was found by "E.R. Doctor named Dr. Shamar" at the Comanche County Memorial Hospital where he was apparently transported after his fall. Id.
In his second claim, Plaintiff alleges "G.E.O. and C.C.S. both violated his Fourteenth Amendment rights to due process by continuously keeping [his] medications from him" which endangers his heart and by "allowing the transport C/O's to have his property packed-up" when he was medically transported or moved which has caused him to lose "alot" of his property and his "sacred items." Id. at 2-3. He states he is "embarrassed by the treatment of staff & the C.C.S. nurses" because "they know better or should be trained better." Id. at 2. For this lack of training he faults "Mr. Honaker" who he states is the "latest hire for C.C.S." and "does not have the knowledge to handle his position." Id.
Plaintiff explains he is a "Native American" and has "American Indian Religious Freedom Act Rights." Doc. 1, at 2.
III. Discussion.
A. Defendants Correct Care Solutions' and G.E.O.'s proper capacity for suit.
Plaintiff names two private entities that he alleges run the private prison where the State of Oklahoma houses him and provide medical care to him and the other inmates. Doc. 1, at 1. "Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights." West v. Atkins, 487 U.S. 42, 56 (1988)). And private persons or groups "to whom the state delegates its penological functions, which include the custody and supervision of prisoners," can be held liable for Constitutional violations. Smith v. Cochran, 339 F.3d 1205, 1215-16 (10th Cir. 2003). A private entity, however, cannot be held vicariously liable for its employee's alleged constitutional violations under § 1983. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) ("[A] private actor 'cannot be held liable solely because it employs a tortfeasor—or, in other words . . . cannot be held liable under § 1983 on a respondeat superior theory.'" (quoting Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978))); See also Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997) ("We have consistently refused to hold municipalities liable under a theory of respondeat superior."). Instead, like a municipality, liability against a private entity serving in the capacity of a traditional state actor is limited to "action for which the [private entity] is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); see Dubbs, 336 F.3d at 1216 ("Although the Supreme Court's interpretation of § 1983 in Monell applied to municipal governments and not to private entities acting under color of state law, caselaw from this and other circuits has extended the Monell doctrine to private § 1983 defendants.").
Thus, to establish liability under § 1983, "a plaintiff must show: 1) the existence of a . . . policy or custom[;] and 2) a direct causal link between the policy or custom and the injury alleged." Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)); see Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013) ("'[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.'" (quoting Monell, 436 U.S. at 694)). Dismissal is appropriate when a plaintiff fails to make this link. See Sherman v. Klenke, 653 F. App'x 580, 592 (10th Cir. 2016) ("Because Mr. Sherman has failed to identify any custom or practice of CHP that has a direct causal link to the alleged constitutional violations, dismissal of this claim was appropriate.").
Plaintiff claims both "C.C.S. and Corporate (G.E.O.)" have endangered his "safty, health, and well-being" by "allowing C.C.S. staff to care for his medical needs." Doc. 1, at 2. He further alleges "Defendants G.E.O. and C.C.S" violated his due process rights by keeping his medications from him and allowing the "transport C/O's" to lose his property. Id. at 3. What he fails to do is either identify any "staff" member whose actions endangered his health or allege any actions taken against him were made pursuant to a policy or custom which violated his rights. Because Plaintiff fails to identify an official custom or policy tying either Correct Care Solutions or G.E.O. to his alleged constitutional injuries, he fails to state a cognizable claim against these Defendants. Graves, 450 F.3d at 1218. As a result, Plaintiff's claims against these Defendants should be dismissed without prejudice. Sherman, 653 F. App'x at 592.
B. Plaintiff's failure to state a claim on any of his allegations.
In addition, to dismissing the private entities from this suit, the Court should also find Plaintiff has failed to state a claim for relief on any of his allegations against any of the Defendants. See 28 U.S.C. § 1915A(b) (On screening, "the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint," if it "fails to state a claim upon which relief may be granted.").
1. Plaintiff's medical claim.
Plaintiff states he has taken the wrong heart medications for eighteen months and his "many medical requests" have gone "unanswered or forgotten." Doc. 1, at 2. The Eighth Amendment "imposes duties on [prison] officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must 'take reasonable measures to guarantee the safety of the inmates[.]'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)). A "prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Id. at 828; see also Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) ("A prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.").
Although Plaintiff also asserts a due process violation based on his alleged inadequate medical care, Doc. 1, at 3, the Court analyzes the claim under the Eighth Amendment's "explicit source of constitutional protection" rather than the "more generalized notion of 'substantive due process.'" Graham v. Connor, 490 U.S. 386, 395 (1989).
"The test for constitutional liability of prison officials 'involves both an objective and a subjective component.'" Mata, 427 F.3d at 751 (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). Regarding With respect to the objective component, the "prisoner must first [show] . . . that the deprivation at issue was in fact 'sufficiently serious.'" Id. (quoting Farmer, 511 U.S. at 834). "[A] medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. (internal quotation marks omitted). "Where the necessity for treatment would not be obvious to a lay person, the medical judgment of the physician, even if grossly negligent, is not subject to second-guessing in the guise of an Eighth Amendment claim." Id.
The subjective component requires a plaintiff to show "the prison official's culpable state of mind" and may be satisfied with allegations the official "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Id. So "'the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Id. (quoting Farmer, 511 U.S. at 837 (internal alteration omitted)). "It is not enough to establish that the official should have known of the risk of harm." Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998).
Plaintiff fails to make the necessary allegations to a state a valid § 1983 claim for deliberate indifference to serious medical needs. Plaintiff's claims that he received the wrong medication for some months and his medical requests have gone unanswered are insufficient to establish prison officials ignored a sufficiently serious constitutional deprivation.
First, while Plaintiff generally claims he was prescribed "heart damaging pills" by a doctor at another facility, he does not claim he suffered any actual heart damage, or any other harm, by remaining on the pills. Rather, he claims only they were unnecessary for his undisclosed heart condition. This fails to satisfy the objective component. See Mata, 427 F.3d at 753 (holding relevant question under the objective component is "whether the alleged harm . . . is sufficiently serious").
Second, Plaintiff names no particular individual at his current facility with personal knowledge of his medical conditions, much less any individual who deliberately ignored his medical needs. Because "[p]ersonal participation is an essential allegation in a § 1983 claim," Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976), "it is particularly important that plaintiffs make clear exactly who is alleged to have done what to whom [] as distinguished from collective allegations." Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (internal quotation marks and alterations omitted). Here, Plaintiff's "undifferentiated contention" that the Defendants violated his constitutional rights is insufficient to state a valid § 1983 claim. See id. at 1225-26 ("When various officials have taken different actions with respect to a plaintiff, the plaintiff's facile, passive-voice showing that his rights 'were violated' will not suffice.").
Finally, Plaintiff's allegations, at most, suggest acts of negligence. "But an inadvertent failure to provide adequate medical care-even if it rises to the level of medical malpractice-does not in itself amount to a constitutional violation." Hill v. Corr. Corp. of Am., 685 F. App'x 665, 668 (10th Cir. 2017) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)); see also Daniels v. Williams, 474 U.S. 327, 333 (1986) (explaining that "'[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner,'" and holding that "[w]here a government official's act causing injury to life, liberty, or property is merely negligent, 'no procedure for compensation is constitutionally required.'" (quoting Estelle, 429 U.S. at 106 and then quoting Parratt v. Taylor, 451 U.S. 527, 548 (1981))). Plaintiff therefore fails to state a valid claim for relief with respect to his medical care. See White v. Kan. Dep't of Corr., 664 F. App'x 734, 741 (10th Cir. 2016) (holding "allegations of inadvertent failure to provide adequate medical care or of a negligent [] diagnosis simply fail to establish the requisite culpable state of mind" (internal quotation marks and alterations omitted)).
This Court cannot "supply additional factual allegations to round out . . . [P]laintiff's complaint or construct a legal theory on . . . [P]laintiff's behalf." Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). So the Court should dismiss Plaintiff's Eighth and Fourteenth Amendment medical claims without prejudice for failure to state a claim.
2. Plaintiff's deprivation of property claim.
Plaintiff alleges unidentified "transport C/O's" lost some of his personal property, including "sacred" items, during his medical transports in violation of his due process rights. Doc. 1, at 2-3. This due process claim fails to state a claim because Plaintiff does not allege the absence of an adequate state remedy.
If Plaintiff seeks to raise individual claims against these "transport C/O's" for infringing on his right to exercise his "Native American" religion, he also fails to state a claim because "there is no cause of action under [the Religious Land Use and Institutionalized Persons Act of 2000] for individual-capacity claims." Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012).
"[N]either negligent nor intentional deprivations of property under color of state law that are random and unauthorized give rise to a § 1983 claim where the plaintiff has an adequate state remedy . . . ." Gillihan v. Shillinger, 872 F.2d 935, 939 (10th Cir. 1989), overruled on other grounds by Clark v. Wilson, 625 F.3d 686, 691 (10th Cir. 2010); see also Hudson, 468 U.S. at 533 (holding that the "unauthorized intentional deprivation of property" by a state employee "does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available").
The State of Oklahoma provides post-deprivation remedies for illegal loss of property through the state court system as well as the prison administrative grievance process. See Buchanan v. Oklahoma, 398 Fed. App'x. 339, 342 (10th Cir. 2010) ("Even if [plaintiff's] property-related claims did raise due process concerns, unauthorized deprivations of a prisoner's property do not violate due process where state post-deprivation remedies are available, and Oklahoma law provides such remedies."). For example, Oklahoma's replevin statute provides a post-deprivation judicial remedy for the recovery of possession of property or the value of the property. See Okla. Stat. tit. 12, §§ 1571-71.1, 1580. Plaintiff also has a post-deprivation remedy in the form of actions for conversion or fraud. See id. tit. 23, §§ 3, 4; id. tit. 76, § 1.
Plaintiff fails to state a federal constitutional claim of deprivation of due process in connection with the loss of personal property while in prison. Therefore, this claim should be dismissed without prejudice.
3. Plaintiff's references to "Mr. Honaker" and Wardens "Smirth," "Collins," and "Caldwell."
Plaintiff describes Mr. Honaker as the "latest hire for C.C.S." who is responsible for training the staff and nurses. Doc. 1, at 2. With respect to the wardens, Plaintiff states "Warden Smirth and Warden Collins were present to check on the law library" on July 25, 2019, and Plaintiff "had the chance to ask Warden Caldwell" "why [Plaintiff] was packed-up at each medical transport." Id. Plaintiff's mere references to these persons fail to state a valid claim.
First, having alleged these persons are employees of private entities, Plaintiff cannot sue them in their "official capacity" under § 1983. See, e.g., Jones v. Barry, 33 F. App'x 967, 971 n.5 (10th Cir. 2002) (explaining that employees of a privately run prison were not state actors and "[did] not have an 'official capacity' as that term is used under the Eleventh Amendment").
Second, Plaintiff submits no factual allegations causally connecting these persons to any deprivation of his constitutional rights. Thus, he also fails to state cognizable individual claims against them. See, e.g., Pahls, 718 F.3d at 1226 (holding that the plaintiff's "undifferentiated contention that 'defendants' infringed his rights" was insufficient to state a § 1983 claim because "a plaintiff must show that each defendant acted with the requisite state of mind").
Finally, if Plaintiff is seeking to hold these persons liable in their supervisory capacities, he states no claim. A plaintiff cannot establish a person's liability under § 1983 merely by showing that person was in charge of others "who actually committed the violation." Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (internal quotation marks omitted); see also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (holding that, in an individual-capacity suit, "§ 1983 does not recognize a concept of strict supervisor liability; the defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation").
Instead, to establish a § 1983 claim for damages against a supervisor, the plaintiff "must show that an affirmative link exists between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997) (internal quotation marks omitted). A party may establish this "affirmative link" through showing: "(1) personal involvement; (2) sufficient causal connection, and (3) culpable state of mind." Schneider, 717 F.3d at 767 (citation omitted).
Plaintiff has not sufficiently alleged either that these persons' subordinates violated Plaintiff's constitutional rights or that they personally participated in or acquiesced in any constitutional violations against Plaintiff. As a result, Plaintiff fails to state a claim for relief under § 1983 against Mr. Honaker, Warden Smirth, Warden Collins, and Warden Caldwell and they should all be dismissed from this case without prejudice.
C. Plaintiff's request for an "Order of Motion."
Although this Court liberally construes Plaintiff's pro se pleadings, his pro se status does not excuse him from complying with the fundamental requirements of the Federal Rules of Civil Procedure. Haines, 404 U.S. at 520; Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Plaintiff filed a document titled "Order of Motion" on October 28, 2019. Doc. 11. This document, which the Court liberally construes as Plaintiff's attempt to amend his complaint, is deficient under Fed. R. Civ. P. 8(a) which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."
"Rule 8 serves the important purpose of requiring plaintiffs to state their claims intelligibly so as to inform the defendants of the legal claim being asserted." Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). The procedural rule "does not require detailed factual allegations, but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (internal quotation marks omitted). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Id. (internal quotation marks omitted). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotation marks and brackets omitted). See, e.g., Cohen v. Delong, 369 F. App'x 953, 957 (10th Cir. 2010) ("Rule 8 demands more than naked assertions and unexplained citations to voluminous exhibits."). At a minimum, Plaintiff must inform the Defendants about what they have allegedly done to violate federal law. See Barfield v. Commerce Bank, 484 F.3d 1276, 1281 (10th Cir. 2007). That is, from the allegations in the complaint, the Defendants must learn "what [they] did to [Plaintiff]; when [they] did it; how [their] action harmed [Plaintiff]; and, what specific legal right [Plaintiff] believes [they] violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
In his "Order of Motion," Plaintiff asks the Court to order C.C.S. "to follow A.D.D. Title II Regulations," "ODOC" policy, and "D.O.J. Regulations" to "properly care for mental & chronic-care inmates needs." Doc. 11, at 2, 6. He states that under the "A.D.A." "no private or public entity" can retaliate against an individual who has "made a charge" or who has aided or encouraged others "protected by the act." Id. at 2-3. Plaintiff does not identify any person who has retaliated against him but only claims he has been placed on "medical restriction" by "'medical providers'" since returning to LCF on September 2, 2019, after undergoing surgery to remove a brain tumor. Id. at 5-6. He states that he has not seen a dentist, that "mental health" has no record of his military service or "P.T.S.D. issues," and that he needs hearing aids, sunglasses, and cataract surgery on his left eye. Id. at 2, 4.
The undersigned finds Plaintiff's allegations fail to satisfy Rule 8. His allegations are vague and conclusory and fail to specify what federal right he believes Defendant C.C.S. violated. Therefore, they should be dismissed. See Galindo v. Lampela, 513 F. App'x 751, 753 (10th Cir. 2013) (affirming the district court's dismissal without prejudice of plaintiff's claims noting they were "too vague and unintelligible to inform the named defendants of the legal claims being asserted" as required under Rule 8).
Assuming Plaintiff is alleging a violation of Subchapter II of the Americans with Disabilities Act, 42 U.S.C. § 12132, he fails to state a valid claim. "[M]any of [Plaintiff's] ADA-related complaints concern [C.C.S.'s] failure to provide him the medical treatment he desires." Nasious v. Colorado, 495 F. App'x 899, 902 (10th Cir. 2012). "But the ADA does not provide a remedy for medical negligence or a means to challenge 'purely medical decisions' regarding the propriety of a course of treatment." Id. (quoting Fitzgerald v. Corrs. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002)). Nor does the ADA provide a remedy for a prison's "failure to provide medical treatment to a disabled prisoner." Rashad v. Doughty, 4 F. App'x 558, 560 (10th Cir. 2001).
This provision states "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 United States Supreme Court holds that "[s]tate prisons fall squarely within the statutory definition of public entity" and that the plain text of this provision "unambiguously extends to state prison inmates." Pa. Dep't of Corrs. v. Yeskey, 524 U.S. 206, 210, 213 (1998) (internal quotation marks omitted).
While Plaintiff's ill-defined references to his Hepatitis C diagnosis and his "P.T.S.D. issues," see Doc. 11, at 2, 4, might support an inference he suffers from some disabilities, Plaintiff's failure to allege plausible facts showing that Defendant C.C.S. denied him access to medical care for which he was otherwise qualified because of his proclaimed disabilities is fatal to any ADA claim he is trying to raise. See Fitzgerald, 403 F.3d at 1144 ("Under . . . the ADA . . . , [a plaintiff] is obligated to show that he was 'otherwise qualified' for the benefits he sought and that he was denied those 'solely by reason of disability.'" (quoting Johnson by Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir. 1992)); see, e.g., Nasious, 495 F. App'x at 902 ("To the extent that any of Nasious's ADA allegations can overcome Fitzgerald, he failed to produce evidence to show defendants denied him access to a prison program or discriminated against him because of his asserted disabilities."); Rashad, 4 F. App'x at 560 (holding prisoner failed to state a claim by alleging "inadequate treatment of his post-traumatic stress disorder" but not alleging "that the defendant corrections officials discriminated against him on the basis of that disorder"). As a result, the Court should dismiss without prejudice Plaintiff's addition of these allegations to his complaint for failure to state a valid claim.
IV. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends Plaintiff's complaint be dismissed without prejudice in its entirety and his "Order of Motion" be denied. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before December 2, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Plaintiff is further advised that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 7th day of November, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE