LEONARD P. STARK, District Judge.
Plaintiff Steven A. White ("Plaintiff') filed this action on May 9, 2011, alleging violations of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. ("ADA") and the Rehabilitation Act of 1973 ("Rehab Act"). (D.I. 3) The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Presently before the Court are Defendants' Motion to Stay Discovery (D.I. 40), Motion to Dismiss (D.I. 42), and Motion for Summary Judgment (D.I. 47), as well as Plaintiffs Motion to Take Depositions (D.I. 38), Motion to Strike (D.I. 45) and Motion to Compel (D.I. 49).
Plaintiff pled guilty in 1977 to two counts of second-degree murder. As part of the plea agreement, the State agreed not to oppose Plaintiffs request for parole, once he became eligible. Plaintiff was paroled in 2003 but, in 2004, a violation report was filed after he tested positive for drug use, and he was incarcerated pursuant to Defendant Delaware Board of Parole's ("Board of Parole") reinstatement of his sentence, based on a finding he had violated the conditions of his parole. See White v. State, 12 A.3d 1155 (Del. Jan 14, 2011) (table decision).
Plaintiff reapplied for parole in May 2009, but was denied. Plaintiffs parole application included proof that he had successfully completed, and graduated from, a supervised drug treatment program on March 25, 2009. (D.I. 3 Ex. 2) Defendant Dwight Holden ("Holden"), former Chairman of the Board of Parole, notified Plaintiff on May 27,2009, that one of the factors in denying parole was "substance abuse history."
Plaintiff alleges that his drug history, coupled with his completion of a drug treatment program, invokes protection as a disabled individual under Title II of the ADA. He further alleges that Defendants discriminated against him by reason of his disability in denying him parole and in restricting parole in a discriminatory manner that grants favored status to inmates who do not have a substance abuse disability. Finally, Plaintiff alleges that the violation of the ADA resulted in his continued incarceration and also violated the Equal Protection Clause of the Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution.
Defendants' first motion for dismissal raised the limited issue that Holden, sued in his official capacity, and the Board of Parole, as an arm of the State, were immune from suit for claims under Title II of the ADA by reason of the Eleventh Amendment. It was denied on June 11,2012. (D.I. 27, 28) On December 31,2012, Defendants filed a second motion for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (D.I. 42), followed by a motion for summary judgment (D .I. 47) on March 11, 2013. In the interim, Defendants provided the Court with an order entered by the Supreme Court of the State of Delaware that denied Plaintiffs State appeal of the dismissal of a petition for a writ of mandamus, which they contend moots Plaintiffs Complaint. (D.I. 44) Plaintiff moves to strike the letter on the basis that it is misleading and should not be considered. (D.I. 45)
"Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter, or if the plaintiff lacks standing to bring his claim." Samsung Elec. Co., Ltd v. ON Semiconductor Corp., 541 F.Supp.2d 645, 648 (D. Del. 2008). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction presents either a facial attack or a factual attack. See CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008); Fed. R. Civ. P. 12(b)(1). A facial attack concerns an alleged pleading deficiency, while a factual attack concerns the actual failure of a plaintiffs claim to comport factually with the jurisdictional prerequisites. See CNA, 535 F.3d at 139.
Where the motion presents a facial challenge to the Court's jurisdiction, or one based purely on the allegations in the complaint, the Court must accept those allegations as true and may consider only the complaint and any documents upon which it is based. See Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). Where subject matter jurisdiction is challenged based upon the sufficiency of jurisdictional fact, the Court is not required to attach any presumptive truthfulness to the allegations in the complaint but may consider matters outside the pleadings to satisfy itself that it has jurisdiction. See id.; see also Carpet Group Int'l v. Oriental Rug Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000). In either case, Plaintiff bears the burden of persuasion. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218,223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472,481-82 (3d Cir. 2000) (internal quotation marks omitted).
However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that `raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'" Victaulic Co. v. Tieman, 499 F.3d 227,234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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). At bottom, "[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315,321 (3d Cir. 2008) (internal quotation marks omitted). Nor is the Court obligated to accept as true "bald assertions," Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported conclusions and unwarranted inferences," Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are "self-evidently false." Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996). Because Plaintiff proceeds pro se, his pleading is liberally construed and his Complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).
Defendants move for dismissal on the grounds that Plaintiffs parole moots his requests for injunctive and declaratory relief. (D.I. 42) They further argue that, to the extent Plaintiff seeks damages, Defendants are immune from suit. Plaintiff opposes the motion and argues that the issues are not moot because the violation of the ADA cannot be remedied by his release. (D.I. 43)
The Complaint is brought by Plaintiff individually. (D.I. 3 at ¶ VI) In the Complaint, Plaintiff acknowledges that he is not qualified to represent a class of other persons similarly situated, but requests counsel and class certification to the extent other similarly situated persons should be included. The Court previously denied Plaintiffs request for counsel and, therefore, to the extent Plaintiff seeks class certification finds class certification is not appropriate. See Hagan v. Rogers, 570 F.3d 146, 159 (3d Cir. 2009) (noting that it was inappropriate for the district court to deny class certification on the basis of inadequate representation without first deciding plaintiffs motion to appoint counsel). Thus, the Complaint is construed as an individual suit brought by Plaintiff.
The Complaint seeks: (1) permanent injunctive relief to enjoin Defendants from continuing their policies, practices, and customs of denying parole to recovered drug addicts in violation of Title II of the ADA (D.I. 3 at ¶ II); (2) declaratory relief to determine whether Defendants may continue to deny parole to qualified disabled individuals on the basis of their disability and whether disabled individuals who were denied parole because of their disability should be immediately scheduled for a new parole hearing free of discriminatory practice (/d. at ¶ III); and (3) monetary damages (compensatory and punitive) appropriate from Defendants both as a public entity and individually as public officials in their individual capacities and that are not disqualified by 28 U.S.C. § 1915(e)(2)(B)(iii) and § 1915A(b)(2) (Id. at ¶ IV).
To the extent that Plaintiff seeks injunctive and declaratory relief on behalf of others, he may not do so. As discussed above, this case proceeds solely on his individual claims and not as a class action. In addition, because Plaintiff was given a new parole hearing and has been released on parole, his claims for injunctive and declaratory relief are moot.
Federal courts have limited jurisdiction to hear only actual "cases and controversies." Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004) (citing U.S. Const. Art. III § 2). Accordingly, "[w]hen the issues presented in a case are no longer `live' or the parties lack a legally cognizable interest in the outcome, the case becomes moot and the court no longer has subject matter jurisdiction." Id. (internal citation omitted). Because Plaintiff was given a parole hearing and granted parole, there is no longer a live controversy and his requests for injunctive and declaratory relief are moot. See e.g., Weinstein v. Bradford, 423 U.S. 147 (1975); Abdul-Akbar v. Watson, 4 F.3d 195 (3d Cir. 1993). Nonetheless, Plaintiff may continue to seek monetary damages for past injury. Claims for monetary damages survive a prisoner's release from custody. See Board of Pardons v. Allen, 482 U.S. 369,371 n.1 (release on parole); see also e.g., Muslim v. Frame, 854 F.Supp. 1215, 1222 (E.D. Pa. 1994).
Plaintiff may not, however, recover compensatory damages against the individual defendants
Defendants, relying on Harper v. Jeffries, supra, contend that the Board of Parole, an arm of the State of Delaware, is immune from any claim for damages by reason of quasi-judicial immunity. Harper v. Jeffries, however, speaks to the immunity of individual Board of Parole members, not the Board itself. However, to the extent that Plaintiff attempts to raise a claim against the Board of Parole pursuant to 42 U.S.C. § 1983, the claim fails as the Board is not a person within the meaning of 42 U.S.C. § 1983.
Accordingly, the Court will grant Defendants' Motion to Dismiss, with the exception of the ADA claims for monetary damages raised against the Board of Parole, as an arm of the State of Delaware.
Because Plaintiff has received no discovery from Defendants, the Court will deny their Motion for Summary Judgment (D.I. 47) without prejudice to renew. In addition, the Court will extend the discovery and dispositive motion deadlines. Finally, the Court will deny Plaintiffs Motion to Strike (D.I. 45) Defendants' February 7, 2013 letter to Court. The Court notes that the issues addressed by the Delaware Supreme Court in its February 5, 2013 Order, White v. Delaware Bd. of Parole, 61 A.3d 619 (Del. Feb. 5, 2013) (table decision), differ from those raised by Plaintiff and that remain pending in the instant action.
The Court next turns to several pending discovery motions. The Court entered a scheduling order on August 8, 2012. (D.I. 30) The order set a discovery deadline of February 11, 2013 and a dispositive motion deadline of March 11, 2013.
On August 14, 2012, Plaintiff sought discovery from Defendants when he filed a first request for production of documents and request for admissions. (D.I. 31, 32) Plaintiff served Defendants with interrogatories on August 22, 2012. Next, on September 3, 2012, Plaintiff filed a motion to take the depositions of Dwight Holden and William C. Pfeifer. (D.I. 38) Defendants did not answer the discovery requests, respond to the request for admissions, or respond to the motion for depositions. Instead, on September 9, 2012, Defendants filed a motion to stay discovery on the grounds that Plaintiff was scheduled to appear before the Board of Parole for a parole hearing and "[d]epending on the outcome of the parole hearing the need for discovery may be mooted." (D.I. 40) Defendants requested a stay of discovery until "such time that a decision has been made by the Board of Parole." The parole hearing was not held until December 11, 2012. (See D.I. 44 Ex.) Because Plaintiff did not file an opposition to the motion to stay discovery, Defendants posited that it was "likely ... Plaintiff agrees that this matter is moot if he is paroled." However, on January 29, 2013, after Defendants filed their second motion to dismiss, Plaintiff wrote to the Court, voicing his opposition to the motion to dismiss and to Defendants' "erroneous" assumption regarding the motion to stay discovery. (D.I. 43) Plaintiff explained that had been transferred from the James T. Vaughn Correctional Center, and he had no law library access, no stamps, envelopes, paper, and no access to legal photocopies. In addition, he noted that a stay had not been granted, discovery was properly filed, but, to date, he had not been provided "one iota of discovery material." (Id.) For the reasons discussed below, the Motion to Stay (D.I. 40) will be denied as moot. Defendants will be required to provide Plaintiff the discovery he seeks
Defendants filed their motion for summary judgment on March 11, 2013. Two weeks later, Plaintiff filed a motion to compel Defendants to respond to his discovery requests. (D.I. 49) Plaintiff indicates that he wrote to defense counsel to avoid court intervention, but his requests were ignored. Plaintiff argues that Defendants engage in unfair actions and have intentionally withheld discovery. Defendants oppose the motion on the grounds that it seeks compulsion of discovery responses long after the discovery deadline has expired, discovery is over, and the motion for summary judgment is ripe for the Court's decision.
Defendants have provided Plaintiff no discovery in this case despite his proper requests for discovery made in compliance with the Federal Rules of Civil Procedure. Plaintiff sought discovery from Defendants well within the time-frame allowed to conduct discovery, yet Defendants did not respond to the discovery requests. Nor did Defendants respond to Plaintiffs request to resolve the discovery dispute. Moreover, while Defendants sought to stay discovery, the filing of the motion did not automatically stay discovery or relieve them from following the Rules of Civil Procedure. Notably, Defendants neither sought an extension of time to respond to the discovery nor filed any objections to the discovery. Therefore, the Court will grant Plaintiffs Motion to Compel to the extent that Defendants shall respond to Plaintiffs request for production of document (D.I. 31), respond to the request for admissions (D.I. 32), and answer the interrogatories (D.I. 35), and (for the reasons discussed below) will deny that part of the motion that requests depositions. The Court finds that Defendants have waived their opportunity to object, with the exception that Defendants may still raise privilege and prison security objections.
Plaintiff has moved to take the depositions (D.I. 38) of Dwight Holden and William C. Pfeifer. The Court reserves its ruling on the motion pending a showing by Plaintiff (who proceeds pro se and has been granted leave to proceed in forma pauperis) of his financial ability to pay for the costs associated with the depositions.
Prose litigants may use any of the discovery methods prescribed in the Federal Rules of Civil Procedure, but the Court has no authority to finance or pay for a party's discovery expenses. See Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa.1991) (§ 1915 does not require government to advance funds for deposition expenses); Doe v. United States, 112 F.R.D. 183, 184-85 (S.D.N.Y. 1986) (in forma pauperis statute does not require government to advance funds for deposition expenses). The taking of depositions would entail stenographic or court reporter expenses, which this Court is not authorized to pay. It is Plaintiffs responsibility to pay for the costs associated with the taking of depositions. Therefore, Plaintiff will be ordered to make a showing of his ability to pay the expenses for the taking of the depositions.
Finally, as noted above, the Court will extend dispositive motion deadlines. Therefore, should remaining Defendant Board of Parole opt to file a renewed motion for summary judgment, Defendant or defense counsel shall see that Plaintiff is provided law library access so that he may adequately respond to the motion for summary judgment and Defendant or defense shall advise the Court of the arrangements provided.
For the above reasons, the Court will: (1) hold in abeyance its ruling on Plaintiffs Motion to Take Depositions (D.I. 38); (2) deny as moot Defendants' Motion to Stay Discovery; (3) grant in part and deny in part Defendants' Motion to Dismiss (D.I. 42); (4) deny Plaintiffs Motion to Strike; (5) deny without prejudice to renew Defendants' Motion for Summary Judgment; and (6) grant in part and deny in part Plaintiffs Motion to Compel (D.I. 49).
An appropriate Order will be entered.
