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Perry v. FNU Lydick

United States District Court, D. New Hampshire

March 15, 2018

James R. Perry
v.
FNU Lydick, et al.

          ORDER

          LANDYA MCCAFFERTY, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         STANDARD OF REVIEW

         Under 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).

         BACKGROUND

         The 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.

         Becoming 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 injuries.

         In 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.

         Separately, 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 disability.
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 disability.
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 expenses, ...

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