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Abbott v. Rosenthal

United States District Court, D. Idaho

March 5, 2014

DENNIS E. ABBOTT, Plaintiff,
v.
TERRIE ROSENTHAL, RANDY BLADES, IDAHO DEPARTMENT OF CORRECTION, IDAHO STATE CORRECTIONAL INSTITUTION, BEN METSER, MARTY THOMAS, CPL. DOSLIN, JENNETE HUNTER, SGT. BLAIR, MISS BASSFORD, and MARY ELLEN NOURSE, Defendants

Page 1140

Dennis E Abbott, Plaintiff, Pro se, Boise, ID.

For Terrie Rosenthal, Randy Blades, Idaho Dept of Corrections, Idaho State Correctional Institution, Ben Metser, Marty Thomas, Doslin, Cpl, Jennete Hunter, Blair, Sgt, Bassford, Librarian - Miss, Mary Ellen Nourse, Defendants: Mary Karin Magnelli, LEAD ATTORNEY, Office of the Attorney General, Department of Correction, Boise, ID.

OPINION

Page 1141

MEMORANDUM DECISION AND ORDER

Honorable Candy W. Dale, United States Magistrate Judge.

Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC) and currently incarcerated at Idaho State Correctional Institution (ISCI), is proceeding

Page 1142

pro se and in forma pauperis in this civil rights action. Now pending before the Court are the following motions: (1) Plaintiff's Motion for Default (Dkt. 17); (2) Defendants' partial Motion to Dismiss [1] (Dkt. 15); and (3) Plaintiff's Motion to Deny Defendants' Motion to Dismiss (Dkt. 18), which the Court considers to be Plaintiff's response to Defendants' partial Motion to Dismiss.

All parties who have appeared have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case (Dkt. 12). See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Having carefully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court will decide this matter on the written motions, briefs and record. D. Idaho L. Civ. R. 7.1(d). For the reasons that follow, the Court will grant Defendants' Motion and (1) dismiss with prejudice all individual capacity claims as non-cognizable, and (2) dismiss without prejudice Claims Two through Five because Plaintiff failed to exhaust available administrative remedies as to those claims. Defendants shall file an answer to the remaining claim, Claim One, within 21 days of the date of this Order.

FACTUAL ALLEGATIONS

Plaintiff is in a wheelchair and alleges that he has applied for multiple prison employment opportunities at ISCI, but that he has been denied a job because he is disabled. (Compl., Dkt. 3, at 5-8.) Plaintiff also was allegedly denied participation in the Correctional Industries training program. Plaintiff states that he has been told by prison staff members that they will not hire anyone in a wheelchair. ( Id. at 9.) Plaintiff also claims that none of the areas in which he has sought prison employment has a handicap-accessible bathroom. ( Id. at 10.)

Plaintiff filed the instant civil rights action in May 2013. Claim One asserts that the IDOC, as well as Defendants Metser, Thomas, and Blades, violated the Americans with Disabilities Act and the Rehabilitation Act by not allowing Plaintiff to participate in the Correctional Industries program and by not having accessible bathrooms. ( Id. at 8-9.) Claims Two through Five assert similar violations on several occasions at other employment sites at ISCI, violations allegedly committed by Defendants Doslin, Rosenthal, Blades, Hunter, Blair, Bassford, and Nourse. ( Id. at 9-11.)

DISCUSSION

1. Plaintiff's Motion for Default

Plaintiff moves for entry of default, arguing that Defendants have not timely answered or filed a pre-answer motion with respect to Claim One. (Dkt. 17.) Although Defendants' Motion to Dismiss does apply to Claim One's individual capacity claims against Defendants Metser, Thomas, and Blades, Defendants have not moved to dismiss Claim One as against IDOC or ISCI, or as against Metser, Thomas, or Blades in their official capacities.

Federal Rule of Civil Procedure 12(a)(4) states that a Rule 12 motion tolls the time period within which a defendant must file a responsive pleading. The Court concludes that Rule 12(a)(4) also applies to a partial Rule ...


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