United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
Keith Ball UNITED STATES MAGISTRATE JUDGE
cause is before the Court on three motions - Defendant
Centurion of Mississippi, LLC's (“Centurion”)
Motion to Dismiss ; Defendant Evelyn M. Dunn's Motion
to Dismiss ; and Defendant Kim Nagel's Motion to
Dismiss . Having considered the motions, Plaintiff's
response, and the rebuttals, the undersigned recommends that
the motions be denied.
John Ashley Hale is an inmate in the custody of the
Mississippi Department of Corrections (“MDOC”),
who is proceeding pro se in this litigation,
alleging violations of his constitutional rights under 42
U.S.C. § 1983. Plaintiff claims that he was
denied adequate medical care during his incarceration at East
Mississippi Correctional Facility (“EMCF”) in
that EMCF officials and medical staff have been deliberately
indifferent to his medical needs and have violated the
Americans with Disabilities Act (“ADA”). See
generally [62-1]. Specifically, the Court noted after
the omnibus hearing that “Plaintiff alleges that the
medical care and food services provided at EMCF are
inadequate and fail to accommodate his disability
needs.”  at 1.
Centurion, Evelyn M. Dunn, and Dr. Kim Nagel (collectively,
the “Centurion Defendants”) now move to dismiss
the claims against them, arguing that Plaintiff has failed to
state a claim against them.
Standard of Review
considering a motion to dismiss under Rule 12(b)(6) for
failure to state a claim, a court must accept “all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.” Martin K. Eby Const.
Co., Inc., v. Dallas Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004). “To survive a Rule 12(b)(6) motion
to dismiss, the plaintiff must plead enough facts to state a
claim to relief that is plausible on its face.” In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks and citation omitted).
“A claim has facial plausibility 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) (citation omitted). “This standard
‘simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of' the
necessary claims or elements.” In re S. Scrap
Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
Plaintiff is proceeding pro se in this litigation,
his pleadings must be construed liberally. Pena v. United
States of America, 122 F.3d 3, 4 (5th Cir. 1997).
lawsuit levies claims against a number of individuals and
entities associated with, employed by, or who provide
services at EMCF. Among those, Plaintiff alleges that Nurse
Evelyn Dunn denied and Dr. Kim Nagel refused to consider his
requests for alternative medication for his Hepatitis C in
violation, according to Plaintiff, of the ADA. [62-1] at
16-18. Plaintiff further alleges that Centurion's customs
and practices and Dunn's and Nagel's actions violated
his constitutional rights to adequate medical care.
Id. at 18-19.
Centurion Defendants now move, through three separate
motions, to dismiss the claims against them. Each motion
argues that Plaintiff's ADA claims against them should be
dismissed because Plaintiff has failed to allege any facts
that would show that he qualifies as “disabled”
under the ADA due to his Hepatitis C. Dunn's and
Nagel's motions also argue that Plaintiff's claims
regarding medication are nothing more than mere
dissatisfaction with medical care and cannot support a claim
for deliberate indifference. Centurion further contends that
Plaintiff makes no factual allegations in support of his
claim that Centurion's customs and practices deny him
adequate health care.
Plaintiff's ADA Claims.
II of the ADA provides that an individual shall not be
“excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity” because of a qualifying disability. 42 U.S.C.
§ 12132. In order to state a claim for relief under
Title II, a plaintiff must allege “(1) that he has a
qualifying disability; (2) that he is being denied the
benefits of services, programs, or activities for which the
public entity is responsible, or is otherwise discriminated
against by the public entity; and (3) that such
discrimination is by reason of his disability.”
Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
“As a threshold requirement, [a plaintiff] must
establish that he has a disability within the meaning of the
ADA.” Hardin v. Christus Health Southeast Texas St.
Elizabeth, No. 1:10-CV-596, 2012 WL 760642, *5 (E.D.
Tex. Jan. 6, 2012) (citing 42 U.S.C. § 12102(1)).
defines the term “disability” as “a
physical or mental impairment that substantially limits one
or more major life activities of [an] individual.” 42
U.S.C. § 12102(1)(A). The ADA expressly states that the
definition of disability should “be construed in favor
of broad coverage of individuals under this Act, to the
maximum extent permitted by the terms of this Act.” 42
U.S.C. § 12102(4)(A). The term “major life
activities” includes activities such as caring for
oneself, eating, sleeping, breathing, and working, but also
was expanded by the ADA Amendments Act of 2008 to include
“the operation of a major bodily function, ...