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Drucklieb v. Ryan

United States District Court, D. Nebraska

August 20, 2019

WILLIAM P. DRUCKLIEB, Plaintiff,
v.
CARA RYAN, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, who is proceeding in forma pauperis, has filed an Amended Complaint (Filing No. 7) in response to this court's Memorandum and Order (Filing No. 7) after initial review of Plaintiff's claims under 28 U.S.C. § 1915(e)(2). The court's Memorandum and Order directed that Plaintiff comply with Federal Rule of Civil Procedure 8 by describing the factual basis for his claims, being “mindful to clearly explain what Defendant did to him, when Defendant did it, and how Defendant's actions harmed him.” (Filing No. 6 at CM/ECF p. 3.) The court now conducts an initial review of Plaintiff's Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2) (requiring the court to dismiss actions filed in forma pauperis if they are frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief against a defendant who is immune from such relief).

         I. SUMMARY OF COMPLAINT

         Plaintiff purports to bring an equal protection claim, as well as claims under the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq., and the Age Discrimination Act of 1975, 42 U.S.C. § 6101, et seq. (prohibiting discrimination on the basis of age in programs or activities receiving federal financial assistance).

         Plaintiff's factual allegations in his Amended Complaint are only marginally better than those contained in his original Complaint. Plaintiff alleges that Defendant Cara Ryan-who is apparently a private individual living in Bellevue, Nebraska-maliciously and negligently interfered with Plaintiff's federally funded online “re-education program” by extensively damaging Plaintiff's computer hardware and educational materials beginning on April 20, 2018; interfered with “Plaintiff's qualifications for Federal Pell Grants for re-education of a disabled person”; created “a hostile study environment . . . through Defendant's repeated destruction of computer hardware, supplies and blocked access to the internet”; and repeatedly interfered with Plaintiff's “Federally funded re-education and employment through harassment and false swearing, continuing to date.” (Filing No. 7 at CM/ECF pp. 4-5.)

         Plaintiff seeks recovery for “losses of tuition, computer hardware, computer software, educational materials and supplies, ” lost wages and educational opportunities, loss of future wages up to $1, 000, 000, and punitive damages. (Filing No. 7 at CM/ECF p. 4.)

         II. DISCUSSION

         A. Equal-Protection Claim

         The court assumes that Plaintiff asserts his equal-protection claim through 42 U.S.C. § 1983. Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008) (“Section 1983 creates a cause of action against a person acting ‘under color of any statute . . . of any State' who deprives another of a federally protected right. 42 U.S.C. § 1983.”) In order to assert a claim under section 1983, Plaintiff must allege that the Defendant was a state actor or acting under color of state law when she allegedly interfered with Plaintiff's re-education program. Graham v. Connor, 490 U.S. 386, 394 (1989) (§ 1983 provides “a method for vindicating federal rights elsewhere conferred” (internal quotation marks and citation omitted)); Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004) (private parties can be liable under § 1983 only when acting under color of state law, such as being willful participant in joint action with the state or its agents); Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001) (“Only state actors can be held liable under Section 1983. A private party who willfully participates in joint activity with the State or its agents is considered a state actor.” (internal citation omitted)); Jones v. United States, 16 F.3d 979, 981 (8th Cir. 1994) (42 U.S.C. § 1983 is the “means through which a claimant may seek a remedy in federal court for a constitutional tort when one is aggrieved by the act of a person acting under color of state law”).

         Here, Plaintiff does not allege any facts whatsoever indicating that Defendant Cara Ryan is a state actor or that she conspired or jointly acted with the state or its agents to deprive Plaintiff of his constitutional rights. Because Plaintiff has failed to allege that Defendant was acting under color of state law while violating Plaintiff's constitutional right to equal protection, this claim must be dismissed for failure to state a claim upon which relief can be granted.

         B. Rehabilitation Act Claim

         Section 504 of the Rehabilitation Act prohibits discrimination on the basis of disability in programs receiving federal financial assistance. The Act provides, in relevant part, that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a).

         The Eighth Circuit Court of Appeals has held that individuals may not be sued under Section 504 of the Rehabilitation Act. Dinkins v. Corr. Med. Servs., 743 F.3d 633, 634 (8th Cir. 2014); see also McCoy v. Colorado Springs Hous. Auth., No. 4:18CV3137, 2019 WL 454099, at *6 (D. Neb. Feb. 5, 2019) (“Defendants cannot be sued in their individual capacities under . . . section 504 of the Rehabilitation Act.”); Cotton v. Douglas Cty., Nebraska, No. 4:18CV3138, 2018 WL 6067513, at *6 (D. Neb. Nov. 19, 2018) (“corrections officers cannot be sued in their individual capacities under the . . . Rehabilitation Act”).

         Therefore, Defendant Cara Ryan is an improper defendant against whom a Rehabilitation Act claim may be asserted, and this claim must be dismissed for failure ...


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