United States District Court, D. New Hampshire
James R. Perry
FNU Lydick, et al.
MCCAFFERTY, UNITED STATES DISTRICT JUDGE.
James R. Perry, an inmate at the New Hampshire State Prison
in Concord, brings this action against the State of New
Hampshire (the “State”) and a No. of state
correctional officers. Perry raises constitutional and tort
claims against the officers, and claims under the Americans
with Disabilities Act (“ADA”) and Rehabilitation
Act against the State. Before the court is the State's
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Perry objects to the motion. For the following
reasons, the State's motion is granted.
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (internal quotation marks
omitted). A claim is facially plausible “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).
following allegations are taken from the amended complaint,
unless otherwise noted. Perry alleges that his emotional and
psychological impairments render him a “qualified
individual with a disability under the ADA and Rehabilitation
Act.” Doc. no. 18 at 2-3 (internal quotation marks
omitted). On July 13, 2016, correctional officers conducted a
“shakedown” in the prison's Special Housing
Unit, where Perry's cell was located. While in
Perry's cell, Lieutenant Paul Carroll damaged and
destroyed Perry's personal property. He also taunted
Perry and told him, “If you are going to act up, do it
on my shift, don't be a pussy and wait until second
shift.” Id. at 4.
distraught and suicidal as a result, Perry placed cardboard
over his cell window. After Perry refused to remove the
cardboard, despite requests by a correctional officer and a
mental health worker, an extraction team was sent to
Perry's cell. Perry alleges that, upon entering the cell,
the team placed him on the floor, punched him in the head,
neck, and back, banged his head against the floor, and used a
taser on him. Perry suffered serious physical and emotional
October 2016, Perry, acting pro se, filed this action.
Subsequently, counsel appeared on Perry's behalf and
filed an amended complaint. In the amended complaint, Perry
brings various constitutional and state tort claims against
the correctional officers involved in the incident.
Perry brings claims for violations of the ADA and
Rehabilitation Act against the State (Count II). The entirety
of his allegations against the State, besides those described
above, are as follows:
37. [Perry] is disabled as defined by the ADA and
Rehabilitation Act; he is a qualified individual with
disabilities. Defendants knew or should have known of his
38. The ADA and Section 504 of the Rehabilitation Act require
that no qualified individual with a disability, on the basis
of that disability, be excluded from participation in or be
denied the benefit of the services, programs, activities, or
to otherwise be discriminated against by a public entity.
39. [The State] has discriminated against [Perry] because of
his disability and deprived him of services he was entitled
to. The policies and procedures of the [State] are
constitutionally inadequate to provide emotionally disturbed
individuals, such as [Perry], with the services he requires
and to prohibit discrimination against him due to his
40. Additionally, [the State] had a legal duty to modify
their procedures to accommodate [Perry's] disability.
41. As a result of the [State's] actions, [Perry] has
been injured and suffered physical injuries, medical