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Albert v. Montana Department of Corrections

United States District Court, D. Montana, Helena Division

March 14, 2019

MICHAEL ALBERT, Plaintiff,
v.
MONTANA DEPARTMENT OF CORRECTIONS, REGINALD D. MICHAEL, MISSOULA COUNTY, CORRECTIONAL HEALTH PARTNERS, PAUL REES, HEIDI ABBOTT, MELISSA SCHARF, ALLY CARL, TRISTAN KOHUT, CONNIE WINNER, KIMBERLY FISK, JORDEN MCDONALD, ALVIN FODE, JIM SALMONSEN, STEVEN WEBER, MIKE HERBERT, PATRICK MARTIN, STEVE KREMER, RUSS DANAHER, LEROY KIRKEGARD, ABBY MARTIN, and LESLIE THORNTON,[1] Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge.

         This matter comes before the Court on Defendant Missoula County's Motion to Dismiss (Doc. 36) and Defendants Montana Department of Corrections, Michael, Rees, Abbott, Scharf, Carl, Kohut, Winner, Fisk, McDonald, Fode, Salmonsen, Weber, Herbert, Martin P., Kremer, Danaher, Kirkegard, Martin, A., and Thornton (collectively “State Defendants”)'s Motion to Dismiss (Doc. 50).

         Dismissal under Fed.R.Civ.P. 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff's complaint must allege sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the court must accept as true the plaintiff's well-pled facts, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper 12(b)(6) motion to dismiss. Vazquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544).

         On a 12(b)(6) motion, “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where the facts are not in dispute and the sole issue is whether there is liability as a matter of substantive law, the court may deny leave to amend. Albrecht v. Lund, 845 F.2d 193, 195-96 (9th Cir. 1988).

         1. MISSOULA COUNTY'S MOTION TO DISMISS

         In his First Amended Complaint, Mr. Albert alleged he was arrested on July 2, 2015 on a probation violation and taken to the Missoula County Detention Facility (“MCDF”). (Amd. Cmplt., Doc. 26 at ¶ 34.) At the time of his arrest, Mr. Albert had an infection (osteomyelitis) in his amputated leg stump which was recorded by MCDF medical staff. (Amd. Cmplt., Doc. 26 at ¶ 35.) Mr. Albert alleges he was not placed in a cell that could accommodate a person with an amputated leg and that the County and CHP failed to treat his infection or the resulting pain and suffering for two months while he was held at MCDF. (Amd. Cmplt., Doc. 26 at ¶¶ 37, 142.) He contends that eventually the infection caused him to be taken to the emergency room in Missoula. (Amd. Cmplt., Doc. 26 at ¶ 37.) Mr. Albert alleges the County acknowledged that he needed surgery to remedy the infection in the amputated leg but he could not be treated at MCDF. (Amd. Cmplt., Doc. 26 at ¶ 38.) He continued to have severe pain, swelling, and discharge from the wound. (Amd. Cmplt., Doc. 26 at 39.) Mr. Albert's suspended sentence was revoked in September, 2015 and he was transferred to Montana State Prison. (Amd. Cmplt., Doc. 26 at ¶ 39.)

         Missoula County contends that Mr. Albert's claims in Counts: I (§1983 inadequate medical care claim); II (§1983 deliberate indifference to safety claim); IV (Americans with Disabilities Act (“ADA”) claim); V (Rehabilitation Act claim); Count VI (negligence); VII (negligence per se); VIII (Mont. Const. cruel and unusual punishment claim); IX (Mont. Const. Right to individual dignity claim); and X (medical malpractice) fail to meet the federal pleading requirements. Mr. Albert concedes in the dismissal of Count IX. (Response, Doc. 39 at 14.)

         A. 1983 Claims (Counts I and II)

         Mr. Albert raised two Section 1983 claims against Missoula County:

Paragraph 100. Missoula County and Correctional Health Partners, deliberately through their policies and procedures, allowed their employees or agents to deliberately deprive the Plaintiff of his constitutional rights and subject him to cruel and unusual punishment by depriving him of needed medical care and attention.
Paragraph 122. Missoula County and Correctional Health Partners, deliberately through their policies and procedures, allowed their employees or agents to deliberately deprive the Plaintiff of his constitutional rights and subject him to cruel and unusual punishment by depriving him of his safety.

(Amd. Cmplt., Doc. 26 at 17, 21.)

         A municipal entity, such as Missoula County, cannot be held liable on a respondeat superior theory, or on the theory that it is responsible for the actions of its employees. Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978). Instead, to impose municipal liability under Section 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving force behind the constitutional violation. Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997); Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006).

         Monell allegations must be pleaded with specificity as required under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). Thus, in order survive a motion to dismiss a Monell claim, a plaintiff must adhere to two principles:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subject to the expense of discovery and continued litigation.

         AE ex rel. Hernandez, 666 F.3d at 637 citing Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “[A] bare allegation that government officials' conduct conformed to some unidentified government policy or custom” is insufficient. AE ex rel. Hernandez, 666 F.3d at 637 (internal quotation marks omitted) (quoting Starr, 652 F.3d at 1216). A plaintiff must allege sufficient facts regarding the specific nature of the alleged policy, custom or practice to allow defendants to effectively defend themselves and these facts must plausibly suggest that the plaintiff is entitled to relief. “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1996) (as amended); see also Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (two incidents insufficient to support a finding of liability).

         Here, Mr. Albert's allegations fail to give rise to any plausible inference sufficient to support a Monell claim against the County. Mr. Albert does not identify any specific policy or custom of the County, any specific regulations, or any officially adopted or promulgated decisions, the execution of which allegedly led to a constitutional violation. He has not alleged sufficient facts regarding the specific nature of the alleged policy, custom, or practice to allow the County to effectively defend itself nor has he set forth sufficient facts to plausibly suggest he is entitled to relief. The vague and conclusory allegations fall far short of pleading a viable Monell claim.

         The County's Motion to Dismiss should be granted with regard to Mr. Albert's § 1983 claims raised in Counts I and II against the County.

         B. Americans with Disabilities Act and Rehabilitation Act Claims

         In the First Amended Complaint, Mr. Albert alleged Missoula County failed in its responsibilities under Title II of the ADA to provide services, programs, and activities in a full and equal manner to disabled persons, including failing to provide an ADA compliant cell. (Amd. Cmplt., Doc. 26 at 26-27, ¶ 142.) Similarly, he alleged the County administers a program or activity that receives federal financial assistance and discriminated against disabled prisoners by failing to provide reasonable accommodations for their disabilities; discriminated against disabled prisoners solely on the basis of their disabilities; and failed to provide adequate accommodations for disabled prisoners in violation of § 504 of the Rehabilitation Act. (Amd. Cmplt., Doc. 26 at 26-27, ¶¶ 154-157.)

         Title II of the ADA provides:

Subject to the provisions of this subchapter, 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. Similarly, the Rehabilitation Act provides:

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .

         29 U.S.C. § 794(a). Title II of the ADA and Section 504 of the Rehabilitation Act both prohibit discrimination on the basis of disability. The ADA applies only to public entities, whereas the Rehabilitation Act proscribes discrimination in all federally-funded programs. Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002). Both Acts apply to state prisons. Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997).

         To establish a violation of Title II of the ADA, a plaintiff must show that (1) he is a qualified individual with a disability; (2) he was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities, and (3) such exclusion or discrimination was by reason of his disability. Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). Similarly, to establish a violation of Section 504 of the Rehabilitation Act, a plaintiff must show that (1) he is an individual with a disability; (2) he is otherwise qualified for the benefit or services sought; (3) he was denied the benefit or services solely by reason of his handicap; and (4) the program providing the benefit or services receives federal financial assistance. Id. Because Title II of the ADA was modeled on Section 504, “courts have applied the same analysis to claims brought under both statutes.” Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999) (citations omitted); see also 42 U.S.C. § 12133 (“The remedies, procedures, and rights set forth in [Section 504] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination in violation of [Section 12132 of this title].”).

         Although the ADA does not expressly provide for reasonable accommodations, the implementing regulations provide that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). The duty to provide “reasonable accommodations” or “reasonable modifications” for disabled people under the ADA arises only when a policy, practice or procedure discriminates on the basis of disability. Weinreich, 114 F.3d at 979. A plaintiff accordingly bears the burden of establishing the existence of specific reasonable accommodations that the defendant public entity failed to provide. Id. at 978.

         Mr. Albert's First Amended Complaint adequately alleges that he has a disability and that Missoula County is a public entity. The more difficult questions concern whether he sufficiently alleged that he was excluded from participation in or denied benefits of services, programs, or activities of the detention facility or subjected to discrimination by the detention facility, and if so whether he has been denied reasonable accommodations.

         Mr. Albert's makes conclusory allegations that Missoula County “failed in their responsibilities under Title II to provide their services, programs, and activities in a full and equal manner to disabled persons as described hereinabove, including failing to provide an ADA compliant cell.” (Amended Complaint, Doc. 26 at 24-25, ¶ 142.) The only specific factual allegation, however, is that he was detained in a non-ADA accessible cell. This alone is insufficient to sustain a claim under the ADA or the Rehabilitation Act. Mr. Albert does not allege how being detained in a non-ADA accessible cell excluded him from participation in or caused him to be denied benefits of services, programs, or activities of the prison or subjected him to discrimination by the prison. Further, there is no allegation that he requested and was denied alternative accommodations, or any other facts to demonstrate that defendants were “more than likely ...


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