UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James R. Perry
v. Civil No. 16-cv-469-LM Opinion No. 2018 DNH 053 FNU Lydick, et al.
O R D E R
Plaintiff James R. Perry, an inmate at the New Hampshire
State Prison in Concord, brings this action against the State of
New Hampshire (the “State”) and a number of state correctional
officers. Perry raises constitutional and tort claims against
the officers, and claims under the Americans with Disabilities
Act (“ADA”) and Rehabilitation Act against the State. Before
the court is the State’s motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). Perry objects to the motion. For the
following reasons, the State’s motion is granted.
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set forth a
plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
1 (internal quotation marks omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
BACKGROUND
The following allegations are taken from the amended
complaint, unless otherwise noted. Perry alleges that his
emotional and psychological impairments render him a “qualified
individual with a disability under the ADA and Rehabilitation
Act.” Doc. no. 18 at 2-3 (internal quotation marks omitted).
On July 13, 2016, correctional officers conducted a “shakedown”
in the prison’s Special Housing Unit, where Perry’s cell was
located. While in Perry’s cell, Lieutenant Paul Carroll damaged
and destroyed Perry’s personal property. He also taunted Perry
and told him, “If you are going to act up, do it on my shift,
don’t be a pussy and wait until second shift.” Id. at 4.
Becoming distraught and suicidal as a result, Perry placed
cardboard over his cell window. After Perry refused to remove
the cardboard, despite requests by a correctional officer and a
mental health worker, an extraction team was sent to Perry’s
cell. Perry alleges that, upon entering the cell, the team
placed him on the floor, punched him in the head, neck, and
2 back, banged his head against the floor, and used a taser on
him. Perry suffered serious physical and emotional injuries.
In October 2016, Perry, acting pro se, filed this action.
Subsequently, counsel appeared on Perry’s behalf and filed an
amended complaint. In the amended complaint, Perry brings
various constitutional and state tort claims against the
correctional officers involved in the incident.
Separately, Perry brings claims for violations of the ADA
and Rehabilitation Act against the State (Count II). The
entirety of his allegations against the State, besides those
described above, are as follows:
37. [Perry] is disabled as defined by the ADA and Rehabilitation Act; he is a qualified individual with disabilities. Defendants knew or should have known of his disability.
38. The ADA and Section 504 of the Rehabilitation Act require that no qualified individual with a disability, on the basis of that disability, be excluded from participation in or be denied the benefit of the services, programs, activities, or to otherwise be discriminated against by a public entity.
39. [The State] has discriminated against [Perry] because of his disability and deprived him of services he was entitled to. The policies and procedures of the [State] are constitutionally inadequate to provide emotionally disturbed individuals, such as [Perry], with the services he requires and to prohibit discrimination against him due to his disability.
40. Additionally, [the State] had a legal duty to modify their procedures to accommodate [Perry’s] disability.
3 41. As a result of the [State’s] actions, [Perry] has been injured and suffered physical injuries, medical expenses, emotional distress, pain and anguish.
42. [The State’s] actions were intentional and with reckless disregard and deliberate indifference to the plaintiff’s rights as a person with disabilities.
Id. at 6-7.
DISCUSSION
The State moves to dismiss Count II, arguing that the
amended complaint does not state a plausible claim for relief
under either the ADA or Rehabilitation Act.1 The State finds
fault with the amended complaint because, among other things, it
fails to identify how the State discriminated against Perry,
what services were denied, or what policies or procedures are
inadequate. The State also notes that the insufficiency of the
allegations is prejudicial because the State cannot meaningfully
evaluate whether it may be entitled to sovereign immunity.
Perry responds that the amended complaint survives scrutiny
under Rule 12(b)(6). In his brief—though not in his complaint—
Perry alleges that the New Hampshire Department of Corrections’
“cell integrity check procedures and . . . cell extraction
1 The State also moves to dismiss Counts I and III, but Perry has made clear that the State is “named as a defendant only in the ADA/Rehabilitation cause of action.” Doc. no. 17 at 2; see also doc. no. 26 at 1. Therefore, the State’s motion, to the extent it seeks dismissal of Counts I and III, is denied as moot.
4 procedures” have a discriminatory effect on disabled individuals
like Perry. Doc. no. 26 at 4. He proposes a few policy changes
that the Department of Corrections could enact to ensure that
such procedures reasonably accommodate inmates suffering from
mental illness.
Even under the liberal standard of review required by Rule
12(b)(6), the court concludes that the amended complaint does
not state a plausible claim for relief. The ADA and
Rehabilitation Act “provide, in nearly identical language, 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.’” Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 144 (1st
Cir. 2014). “A plaintiff can press several different types of
claims of disability discrimination.” Id. Actionable
discrimination may occur where a facially neutral government
policy “falls more harshly” on disabled individuals, or where “a
public entity has refused to affirmatively accommodate [an
individual’s] disability where such accommodation [is] needed to
provide meaningful access to a public service.” Id. at 145
(internal brackets and quotation marks omitted).
Here, however, Perry’s amended complaint fails to provide
any facts to support a disability discrimination claim, whatever
5 his theory may be.2 For example, Perry does not identify any
state policy or describe even in basic terms how such policy
falls more harshly upon disabled individuals like him. Nor does
Perry make any factual allegations to support his reasonable-
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James R. Perry
v. Civil No. 16-cv-469-LM Opinion No. 2018 DNH 053 FNU Lydick, et al.
O R D E R
Plaintiff James R. Perry, an inmate at the New Hampshire
State Prison in Concord, brings this action against the State of
New Hampshire (the “State”) and a number of state correctional
officers. Perry raises constitutional and tort claims against
the officers, and claims under the Americans with Disabilities
Act (“ADA”) and Rehabilitation Act against the State. Before
the court is the State’s motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). Perry objects to the motion. For the
following reasons, the State’s motion is granted.
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set forth a
plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
1 (internal quotation marks omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
BACKGROUND
The following allegations are taken from the amended
complaint, unless otherwise noted. Perry alleges that his
emotional and psychological impairments render him a “qualified
individual with a disability under the ADA and Rehabilitation
Act.” Doc. no. 18 at 2-3 (internal quotation marks omitted).
On July 13, 2016, correctional officers conducted a “shakedown”
in the prison’s Special Housing Unit, where Perry’s cell was
located. While in Perry’s cell, Lieutenant Paul Carroll damaged
and destroyed Perry’s personal property. He also taunted Perry
and told him, “If you are going to act up, do it on my shift,
don’t be a pussy and wait until second shift.” Id. at 4.
Becoming distraught and suicidal as a result, Perry placed
cardboard over his cell window. After Perry refused to remove
the cardboard, despite requests by a correctional officer and a
mental health worker, an extraction team was sent to Perry’s
cell. Perry alleges that, upon entering the cell, the team
placed him on the floor, punched him in the head, neck, and
2 back, banged his head against the floor, and used a taser on
him. Perry suffered serious physical and emotional injuries.
In October 2016, Perry, acting pro se, filed this action.
Subsequently, counsel appeared on Perry’s behalf and filed an
amended complaint. In the amended complaint, Perry brings
various constitutional and state tort claims against the
correctional officers involved in the incident.
Separately, Perry brings claims for violations of the ADA
and Rehabilitation Act against the State (Count II). The
entirety of his allegations against the State, besides those
described above, are as follows:
37. [Perry] is disabled as defined by the ADA and Rehabilitation Act; he is a qualified individual with disabilities. Defendants knew or should have known of his disability.
38. The ADA and Section 504 of the Rehabilitation Act require that no qualified individual with a disability, on the basis of that disability, be excluded from participation in or be denied the benefit of the services, programs, activities, or to otherwise be discriminated against by a public entity.
39. [The State] has discriminated against [Perry] because of his disability and deprived him of services he was entitled to. The policies and procedures of the [State] are constitutionally inadequate to provide emotionally disturbed individuals, such as [Perry], with the services he requires and to prohibit discrimination against him due to his disability.
40. Additionally, [the State] had a legal duty to modify their procedures to accommodate [Perry’s] disability.
3 41. As a result of the [State’s] actions, [Perry] has been injured and suffered physical injuries, medical expenses, emotional distress, pain and anguish.
42. [The State’s] actions were intentional and with reckless disregard and deliberate indifference to the plaintiff’s rights as a person with disabilities.
Id. at 6-7.
DISCUSSION
The State moves to dismiss Count II, arguing that the
amended complaint does not state a plausible claim for relief
under either the ADA or Rehabilitation Act.1 The State finds
fault with the amended complaint because, among other things, it
fails to identify how the State discriminated against Perry,
what services were denied, or what policies or procedures are
inadequate. The State also notes that the insufficiency of the
allegations is prejudicial because the State cannot meaningfully
evaluate whether it may be entitled to sovereign immunity.
Perry responds that the amended complaint survives scrutiny
under Rule 12(b)(6). In his brief—though not in his complaint—
Perry alleges that the New Hampshire Department of Corrections’
“cell integrity check procedures and . . . cell extraction
1 The State also moves to dismiss Counts I and III, but Perry has made clear that the State is “named as a defendant only in the ADA/Rehabilitation cause of action.” Doc. no. 17 at 2; see also doc. no. 26 at 1. Therefore, the State’s motion, to the extent it seeks dismissal of Counts I and III, is denied as moot.
4 procedures” have a discriminatory effect on disabled individuals
like Perry. Doc. no. 26 at 4. He proposes a few policy changes
that the Department of Corrections could enact to ensure that
such procedures reasonably accommodate inmates suffering from
mental illness.
Even under the liberal standard of review required by Rule
12(b)(6), the court concludes that the amended complaint does
not state a plausible claim for relief. The ADA and
Rehabilitation Act “provide, in nearly identical language, 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.’” Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 144 (1st
Cir. 2014). “A plaintiff can press several different types of
claims of disability discrimination.” Id. Actionable
discrimination may occur where a facially neutral government
policy “falls more harshly” on disabled individuals, or where “a
public entity has refused to affirmatively accommodate [an
individual’s] disability where such accommodation [is] needed to
provide meaningful access to a public service.” Id. at 145
(internal brackets and quotation marks omitted).
Here, however, Perry’s amended complaint fails to provide
any facts to support a disability discrimination claim, whatever
5 his theory may be.2 For example, Perry does not identify any
state policy or describe even in basic terms how such policy
falls more harshly upon disabled individuals like him. Nor does
Perry make any factual allegations to support his reasonable-
accommodation theory of liability.
Because the allegations in the amended complaint are “too
meager, vague, or conclusory to remove the possibility of relief
from the realm of mere conjecture,” dismissal is warranted.
S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010). However,
as noted above, Perry’s objection fleshes out the factual basis
for his claim. This order does not preclude Perry from filing a
motion under Rule 15(a)(2) to amend his complaint to incorporate
those allegations. See Aponte-Torres v. Univ. of P.R., 445 F.3d
50, 58 (1st Cir. 2006) (stating that a “request to file a second
amended complaint need[s] leave of court, which as a general
proposition will be ‘freely given when justice so requires’”).
2 The court does not consider the allegations that Perry raised for the first time in his objection. See, e.g., Winne v. Nat’l Collegiate Student Loan Trust 2005-1, No. 1:16-cv-229, 2017 WL 3573813, at *6 (D. Me. Aug. 17, 2017) (“Factual allegations made for the first time in a responsive memorandum are not properly considered in evaluating the sufficiency of a complaint under Rule 12(b)(6).”).
6 CONCLUSION
For the foregoing reasons, the State’s motion to dismiss
(doc. no. 24) is granted, without prejudice to Perry moving to
amend the complaint.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
March 15, 2018
cc: Lynmarie C. Cusack, Esq. Francis Charles Fredericks, Esq. Lawrence A. Vogelman, Esq.