United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Johnston United States Magistrate Judge
matter comes before the Court on Defendants Alvin Fode, Jim
Salmonsen, Steve Kremer, Russ Dahaher, and Leroy Kirkegard
(hereinafter “Defendants”)'s Motion to
Dismiss Count IV of the Complaint with prejudice on the
grounds that Plaintiff Michael Albert cannot assert claims
against them individually under the Americans with
Disabilities Act (ADA). (Doc. 15.) Mr. Albert did not respond
to the motion.
Court agrees that the ADA does not provide for individual
liability. The Court previously described Count IV as an ADA
claim (Doc. 9 at 1) but Mr. Albert titled Count IV as an
Eighth Amendment claim. (Doc. 2 at 20.) Given that Count IV
is titled as an Eighth Amendment claim but raises allegations
that could also be construed as ADA claims, the Court must
liberally construe Count IV as raising both Eighth Amendment
and ADA claims. As such, Defendants' motion should be
granted as to Mr. Albert's ADA claims against Defendants
in their individual capacities. However, since Mr. Albert
names the Defendants in both their individual and official
capacities (Doc. 2 at 9), he has effectively named the entity
which they represent and Defendant Salmonsen in his official
capacity as Interim Warden of Montana State Prison should be
required to respond to Mr. Albert's ADA claims.
Motion to Dismiss Standard
12(b) (6) of the Federal Rules of Civil Procedures provides
for motions to dismiss for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In considering a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), the court must
accept as true the allegations of the complaint in question,
Erickson v. Pardus, 551 U.S. 89 (2007), and construe
the pleading in the light most favorable to the plaintiff.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969);
Meek v. Cnty of Riverside, 183 F.3d 962, 965 (9th
extent that Count IV of Mr. Albert's Complaint can be
construed as raising ADA claims, it must be dismissed against
Defendants in their individual capacities. Title II of the
ADA, 42 U.S.C. § 12101 et seq. prohibits discrimination
on the basis of a disability in the programs, services or
activities of a public entity. Title II 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 term “public entity” encompasses state
correctional facilities. Pennsylvania Dep't of
Corrections v. Yeskey, 524 U.S. 206, 210 (1998).
II of the ADA, however, does not provide for individual
capacity suits against state officials. See 29
U.S.C. § 794(b); 42 U.S.C. § 12131; see also
Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn,
280 F.3d 98, 107 (2nd Cir. 2001); Alsbrook v. City of
Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999) (en
banc); Sullivan v. River Valley Sch. Dist., 197 F.3d
804, 808 n. 1 (6th Cir. 1999). Further, “a plaintiff
cannot bring an action under 42 U.S.C. § 1983 against a
State official in her individual capacity to vindicate rights
created by Title II of the ADA.” Vinson v.
Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002)
proper defendant in an ADA action is the public entity
responsible for the alleged discrimination, not an individual
officer. Everson v. Leis, 556 F.3d 484, 501 & n.
7 (6th Cir. 2009). State entities can be sued for money
damages under Title II of the ADA. Lovell v.
Chandler, 303 F.3d 1039, 1051 (9th Cir. 2002).
Therefore, the proper Defendant in Mr. Albert's ADA Claim
is Montana State Prison as an agency for the State of
Albert named Defendants in both their individual and official
capacities. Official capacity suits “generally
represent only another way of pleading an action against an
entity of which an officer is an agent.” Kentucky
v. Graham, 473 U.S. 159, 165 (1985). Therefore, the
Court finds that Defendant Salmonsen as Interim Warden of
Montana State Prison should be required to respond to the ADA
claims raised in Count IV.
on the foregoing, the Court issues the following:
Fode, Salmonsen, Kremer, Danaher, and Kirkegard's Motion
to Dismiss Count IV of the Complaint (Doc. 15) should be
GRANTED as to Mr. Albert's ADA claims raised in Count IV
against Defendants in their individual capacities and as to
Defendants Fode, Kremer, Dahaher, and Kirkegard in their
motion should be DENIED as to Mr. Albert's Eighth
Amendment claims raised in Count IV and as to Defendant
Salmonsen in his official capacity as Interim Warden of
Montana State Prison with regard to Mr. Albert's ADA
claims raised in ...