190 F.Supp.2d 204, 23 NDLR P 31

United States District Court,
D. Massachusetts.
Thomas MITCHELL, Plaintiff

v.

MASSACHUSETTS DEPARTMENT OF CORRECTION, et al, Defendants

No. CIV.A. 01-30066MAP.

March 8, 2002.
*206 Thomas Mitchell, West Springfield, MA, for Plaintiff.
Richard C. McFarland, Department of Correction, Legal Division, Boston, MA, for Defendants.
MEMORANDUM AND ORDER REGARDING REPORT AND RECOMMENDATION OF FEBRUARY 20, 2002

(Docket No. 30)

PONSOR, District Judge.

Thomas Mitchell ("plaintiff"), proceeding pro se, has brought this action pursuant to Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112(a)(2), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and 42 U.S.C. § 1983. Essentially, he claims that he was denied the opportunity to participate in certain inmate programs during his incarceration in Massachusetts between August of 1996 and July of 2000, based upon the fact that he suffers from diabetes and a heart condition.

Defendants filed a joint motion to dismiss the complaint and their motion, and two motions by the plaintiff, were referred to Magistrate Judge Kenneth P. Neiman for report and recommendation.
The Magistrate Judge recommended that the defendants' Motion to Dismiss be denied "to the limited extent that plaintiff's Title II and Rehab Act claims seek monetary damages from the DOC or Bissonnette and Maloney in their official capacities for sentence-reduction credits which he alleges were improperly denied." In all other respects, he recommended that the motion be allowed. The Magistrate Judge recommended that the plaintiff's two motions be denied.

In response to the Report and Recommendation, the plaintiff filed objections and a Motion for Reconsideration (Docket No. 31). The defendants also file an objection, solely on the question of Eleventh Amendment immunity, citing Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). The defendants argue that Congress lacked the power to abrogate state sovereign immunity under Title II of the ADA.

It is not necessary to repeat the scrupulous work done by Magistrate Judge Neiman in his Report and Recommendation. Upon de novo review, this court hereby adopts the Report and Recommendation. The plaintiff's objections are overruled and his Motion for Reconsideration (Docket No. 31) is hereby DENIED. Plaintiff's Motion for Entry of Default and for Dismissal of the Defendants' Motion to Dismiss (Docket No. 17), as well as plaintiff's Motion for Order Granting Benefits (Docket No. 24) are hereby DENIED.

Similarly, the defendants' objection is hereby overruled. The defendants' Motion to Dismiss (Docket No. 10) is hereby ALLOWED, except for the qualification described by Magistrate Judge Neiman in his Report and Recommendation at 21. In adopting the Report and Recommendation, this court acknowledges that a split in the *207 circuits exists with regard to the applicability of the Supreme Court's Garrett decision to Title II of the ADA. For the reasons set forth by Judge Gertner in her decision in Navedo v. Maloney, 172 F.Supp.2d 276, 287-88 (D.Mass.2001), this court is persuaded that Garrett does not apply to Title II.
The clerk will set this case for a status conference to determine further proceedings.
It is So Ordered.
REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS' MOTION TO DISMISS, (Docket No. 10), PLAINTIFF'S MOTION TO DISMISS DEFENDANTS' MOTION TO DISMISS OR DEFAULT DEFENDANTS (Docket No. 17), and PLAINTIFF'S MOTION FOR AN AWARD OF SENTENCE-REDUCTION CREDITS (Docket No. 24)


NEIMAN, United States Magistrate Judge.
Thomas Mitchell ("Plaintiff"), proceeding pro se, brings this action seeking an injunction, declaratory relief and damages with regard to alleged violations of Title II of the Americans with Disabilities Act of 1990 ("ADA") (codified at 42 U.S.C. § 12112(a)(2)), section 504 of the Rehabilitation Act of 1973 ("the Rehab Act") (as amended, 29 U.S.C. § 794(a)), and 42 U.S.C. § 1983 ("section 1983"). The gravamen of Plaintiff's complaint is that he was denied the opportunity to participate in certain inmate programs during his incarceration at the North Central Correctional Institute ("NCCI") in Gardner, Massachusetts, between August of 1996 and July of 2000. As a result, Plaintiff claims, he lost out on "good time," sentence-reduction credits and was caused to suffer "emotional stress."

Named as defendants are the Massachusetts Department of Correction ("DOC") and its commissioner as well as the superintendents of both NCCI and the Massachusetts Correctional Institution at Pondville ("MCI-Pondville") where Plaintiff was incarcerated during the latter half of 2000 (collectively "Defendants").FN1 They have jointly filed a motion to dismiss Plaintiff's complaint, pursuant to subsections (1) and (6) of Federal Rule of Civil Procedure 12(b), which, along with two motions filed by Plaintiff, has been referred to the court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons which follow, the court will recommend that Defendants' motion be allowed in all but one limited respect and that Plaintiff's motions each be denied.

FN1. The complaint's caption also lists "John Doe" and "Jane Doe" as "presently unknown employees who should be included as defendants if the need arises." Obviously, Plaintiff will only be allowed to join additional defendants as allowed by law. Plaintiff is also advised that the court "is not obligated to wait indefinitely for [him] to take steps to identify and serve unknown defendants." Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir.1998) (citation and internal quotation marks omitted).

I. FACTUAL BACKGROUND

The following background is taken directly from Plaintiff's complaint and, for purposes here, is assumed to be true. See Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir.1997). On August 9, 1996, Plaintiff, a state prisoner, was transferred to NCCI. (Complaint ¶ 48.) While he was there, administrators denied him permission to participate in various work and educational programs, e.g., welding, barbering and culinary classes. ( Id. ¶¶ 48-50). Apparently because Plaintiff suffers from "diabetes and a heart condition," he was told that, "due to [his] age and medical *208 condition," he could not take part in such programs. ( Id. ¶¶ 4, 48). Had he successfully participated, Plaintiff claims, he would have been granted "good time" credits which would have effectively reduced his sentence by two and one-half days for every month he was at NCCI. ( Id. ¶ 51.) In total, Plaintiff calculates, he was denied 255 days of good time credits.
On July 14, 2000, Plaintiff was transferred to a minimum security facility in Bridgewater, Massachusetts. ( Id. ¶ 52.) On July 28, 2000, Plaintiff was again transferred, this time to MCI-Pondville. ( Id. ¶ 53.) During his five months at MCI-Pondville, in contrast to his time at NCCI, Plaintiff was allowed to participate in work assignments. ( Id.) FN2
FN2. Plaintiff also claims that he was allowed "to participate in community service programs" at MCI-Pondville but, somewhat contradictorily, then asserts that administrators there "improperly denied [him] participation in community service programs." ( Id.)

II. PROCEDURAL BACKGROUND

On December 28, 2000, Plaintiff was transferred to the Hampden County House of Correction ("HCHC") from where, in April of 2001, he filed this action. Plaintiff's complaint alleges violations of Title II of the ADA, section 504 of the Rehab Act and section 1983. For relief, Plaintiff seeks an injunction granting him 255 days of good time credits for the period of time he resided at NCCI and was "denied" participation in work and educational programs, a declaratory judgment to that effect, damages, costs and fees. (See Complaint ¶ 73.)

On June 18, 2001, three days after their responsive pleading was due, Defendants filed the instant motion to dismiss and Plaintiff thereafter filed a memorandum in opposition. In addition, Plaintiff moved to "dismiss" or "default" Defendants because their motion to dismiss was filed three days late. Plaintiff then moved for an award of sentence-reduction credits. He recently informed the court that he is no longer in state custody but, rather, residing independently in West Springfield. (See Docket No. 29.)
III. STANDARDS OF REVIEW

A defendant's motion to dismiss must focus not on "whether [the] plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Pursuant to Rule 12(b)(6), the court may grant dismissal only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accord Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987). Under Rule 12(b)(1), the plaintiff, the party invoking jurisdiction, has the burden of proof to establish its existence. Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995). In either case, the court must take as true the well-pleaded facts as they appear in the complaint, extending the plaintiff every reasonable inference in his favor. See Kiely, 105 F.3d at 735; Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). Finally, as applicable here, a court must take special care when viewing a pro se litigant's complaint which, "however inartfully pleaded," is held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
*209 IV. DEFENDANTS' MOTION TO DISMISS

Defendants' motion to dismiss tracks the three statutes alleged to have been violated: Title II of the ADA, section 504 of the Rehab Act and section 1983. The court will do likewise and then conclude this section by analyzing Defendants' laches argument and summarizing the relief this court believes may be available.

First, however, the court notes that Plaintiff appears to have abandoned any claim he might have regarding his treatment at MCI-Pondville. As indicated, the complaint makes contradictory assertions with respect to his treatment there. See n. 2, supra. More importantly, Plaintiff's prayers for relief seek nothing with respect to MCI-Pondville. Finally, and perhaps most tellingly, Plaintiff's memorandum alleges only that he was denied the opportunity to participate in programs when he was incarcerated at NCCI, not Pondville. (See Pl.'s Brief (Docket No. 23) at 10 ("It is a fact that the gravamen of the plaintiff's claim """ [regards] violations that occurred at NCCI."). See also Defs.' Brief (Docket No. 11) at 1 (describing the complaint as targeting only NCCI).) Accordingly, the court will recommend that the superintendent of MCI-Pondville, Paul Blaney, be dismissed from this case.
A. TITLE II OF THE ADA