Smith v. Ozark Mountain Alcohol Residential Treatment Inc.

          OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

         Plaintiff Jeffrey Smith filed this action pursuant to the Americans with Disabilities Act ("ADA"), the Rehabilitation Act ("RA"), and 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. Plaintiff is incarcerated in the Grimes Unit of the Arkansas Department of Correction ("ADC"). The case was filed in the Eastern District of Arkansas and transferred to this Court by order entered on March 8, 2019. The Plaintiff names as Defendant Ozark Mountain Alcohol Residential Treatment, Inc. ("OMART").

         The case is before the Court for preservice screening under the provisions of the Prison Litigation Reform Act ("PLRA"). Pursuant to 28 U.S.C. § 1915A, the Court has the obligation to screen any complaint in which a prisoner seeks to proceed in forma pauperis. 28 U.S.C. § 1915A(a). The Court must determine whether the Amended Complaint should be served on Dr. Lee.

         I. BACKGROUND

         According to the allegations of the Complaint (Doc. 2), Plaintiff became eligible for parole on February 21, 2018. Since that time, he has sent three applications to OMART for admission into the residential treatment program. Each application has been denied.

         Plaintiff maintains he has been discriminated against based on his disability in violation of his rights under the ADA, the RA, and the United States Constitution. Plaintiff states the Social Security Administration has "diagnosed" him as having a homicidal/suicidal personality disorder and post-traumatic stress disorder ("PTSD"). Plaintiff indicates he also has physical disabilities.

         Plaintiff acknowledges that the first page of OMART's application for admission states that it does not accept violent offenders. Plaintiff maintains this is a "blatantly obvious violation of [his] psychological diagnosis." He states his being on medication to control, or help him control, his psychological disability causes him to be eligible for admittance. According to the ADC website, Plaintiff was convicted of murder in the first degree and terroristic threatening in the first degree.^[1] Plaintiff indicates he is currently in the ADC because he violated the terms of his parole.

         As relief, Plaintiff asks for an award of punitive damages in the amount of $150, 000 and admission into OMART.

         II. LEGAL STANDARD

         Under the PLRA, the Court is obliged to screen the case prior to service of process being issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seek monetary relief from a defendant who is immune from such relief. 28U.S.C. §1915A(b).

         A claim is frivolous if "it lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombiy, 550 U.S. 544, 570 (2007). "In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we hold 'a pro se complaint, however inartfully pleaded ... to less stringent standards than formal pleadings drafted by lawyers.'" Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

         However, mere conclusory allegations with no supporting factual averments are insufficient to state a claim upon which relief can be based. Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993); Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). "[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted).

         III. DISCUSSION

         Title II of the ADA provides 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." 42 U.S.C. § 12132. The term "public entity" is defined as "any department, agency, special purpose district, or other instrumentality of a State or States or local government."^[2] 42 U.S.C. § 12131(1). The term "qualified individual with a disability" is defined to mean "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131 (2). To state a claim, Plaintiff must show: "1) he is a person with a disability as defined by the statute; 2) he is otherwise qualified ...