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Gross v. Landry

United States District Court, D. Maine

November 17, 2017

BRANDON GROSS, Plaintiff
v.
SCOTT LANDRY, et al., Defendants

          RECOMMENDED DECISION AFTER SCREENING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e), 1915A

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         In this action, Plaintiff Brandon Gross, an inmate in the custody of the Maine Department of Corrections, alleges he is hearing disabled and that certain defendants employed by Defendant Correct Care Solutions, LLC, have been deliberately indifferent to his serious health needs. Plaintiff also asserts that other defendants employed by the Maine Department of Corrections violated his rights under the Due Process Clause, and have discriminated against him based on his disability.

         Plaintiff filed an application to proceed in forma pauperis (ECF No. 4), which application the Court granted. (ECF No. 6.) In accordance with the in forma pauperis statute, a preliminary review of Plaintiff's complaint is appropriate. 28 U.S.C. § 1915(e)(2). Additionally, Plaintiff's complaint is subject to screening “before docketing, if feasible or … as soon as practicable after docketing, ” because he is “a prisoner seek[ing] redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

         Following a review of the Plaintiff's complaint, including the attachments to the complaint, I recommend the Court dismiss Plaintiff's claims against some of the defendants, but order service on other defendants.

         Standard of Review

         The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure meaningful access to the federal courts for those persons unable to pay the costs of bringing an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss the case at any time if the court determines, ” inter alia, that the action is “frivolous or malicious” or “fails to state a claim on which relief may be granted” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). “Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

         In addition to the review contemplated by § 1915, Plaintiff's complaint is subject to screening under the Prison Litigation Reform Act because Plaintiff currently is incarcerated and seeks redress from governmental entities and officers. See 28 U.S.C. § 1915A(a), (c). The § 1915A screening requires courts to “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim …; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

         When considering whether a complaint states a claim for which relief may be granted, courts must assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         Although a pro se plaintiff's complaint is subject to “less stringent standards than formal pleadings drafted by lawyers, ” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is “not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a claim, ” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in federal court, it is not enough for a plaintiff merely to allege that a defendant acted unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Factual Background[1]

         Plaintiff alleges that he is hearing impaired in his left ear, which impairment Defendants confirmed upon Plaintiff's initial medical screening at the Maine Correctional Center. (Complaint ¶¶ 23, 34.) According to Plaintiff, he initially received “the appropriate accommodation, ” which consisted of a hearing impaired sign for his cell door, but the sign was removed when corrections officers complained that they had to awaken Plaintiff during the morning cell count. (Id. ¶¶ 25, 27, 40, 41.) Plaintiff also contends that after the removal of the sign, he “has had numerous disciplinary infractions for sleeping thr[ough] formal ‘count'” because “he does not hear ‘count' being yelled by the unit officers.” (Id. ¶¶ 33 - 34.)

         Plaintiff asserts that the discipline imposed violates the Due Process Clause and is discriminatory, and that the denial of the hearing impaired sign and wake up procedure constitutes the denial of a reasonable accommodation for his hearing disability. (Id. ¶¶ 40 - 42, 54 - 57.) Plaintiff also alleges that he has repeatedly requested a professional hearing examination, but that his request has been denied.

         Plaintiff asserts a claim of deliberate indifference against Defendants Wendy Riebe, Hope Freeman, Cindy McDonough, and Robert Clinton, who are employed by Defendant Correct Care Solutions, LLC. (Id. § VI.A, B.) In addition, Plaintiff alleges a due process claim against Defendant Shawn Welch, an employee of the Maine Department of Corrections, who, according to Plaintiff, conducted Plaintiff's disciplinary hearing without giving proper consideration to Plaintiff's hearing disability, and against Defendant Scott Landry, also an employee of the Maine Department of Corrections, who sustained the discipline on appeal. (Id. § VI.D, VII.A.2.) Plaintiff also asserts a state law claim of “breach of duty” against “all” defendants. (Id. § VI.C.)

         Discussion

         Plaintiff asserts four claims: (1) deliberate indifference to medical need; (2) denial of due process; (3) disability discrimination/failure to accommodate under federal law; and (4) breach of duty/failure ...


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