NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

GOLDA D. HARRIS, :

 :

Plaintiff, :

 :

v. :

 :

COMMISSIONER GARY LANIGAN, et al.,:

 :

Defendants. :

 :

CIVIL ACTION NO. 11-1321 (MLC)

O P I N I O N

COOPER, District Judge

Plaintiff, Golda D. Harris, a state inmate confined at New

Jersey State Prison (“NJSP”) when she submitted the Complaint,

seeks to bring this action in forma pauperis. Based on her

affidavit of indigence, the Court will grant the application to

proceed in forma pauperis under 28 U.S.C. § 1915(a) and file the

Complaint. The Court must now review the Complaint, pursuant to

28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether it

should be dismissed as frivolous or malicious, for failure to

state a claim upon which relief may be granted, or because it

seeks monetary relief from a defendant who is immune. The Court

concludes that the Complaint should proceed in part.

I. BACKGROUND

Harris brings this action under Title II, III and V of the

Federal American with Disabilities Act (“ADA”) and the New Jersey

Law Against Discrimination (“NJLAD”) against, among others, Gary

Lanigan, New Jersey Department of Corrections (“NJDOC”)

Commissioner; the NJDOC; Greg Bartkowski, NJSP Administrator; Jim

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Barnes, Assistant Superintendent at NJSP; Dr. Johnny Wu, M.D.,

Medical Director at NJSP; Desha Jackson, NJDOC Division of

Operations; Sgt. Bundy at NJSP; Officer Whittfield at NJSP;

Officer Snowling at NJSP; and William Hauck, Administrator at

Edna Mahan Correctional Facility (“EMCF”). (Compl., Caption and

¶¶ 4b through 4k). The following factual allegations are taken

from the Complaint, and are accepted for purposes of screening

only. The Court has made no findings as to the veracity of

Harris’s allegations.1

Harris alleges that from January 9, 2009 through the date

she submitted the Complaint (on or about March 9, 2011),

defendants have refused to afford her handicap accommodations,

namely, her cane, shower privileges, wheelchair access for trips

and visits, and medical housing and bedding requests. Further,

Harris alleges that defendants Hauck and Bartkowski used their

authority as Administrator at the EMCF and Administrator at NJSP,

respectively, to direct staff to carry out these instructions in

denying her handicap accommodations. (Compl.)2

Harris also alleges that defendants Lanigan, Bartkowski, and

Barnes failed to enforce the ADA insofar as it pertained to her. 

 The Court presumes that Harris intended to assert a claim 1

under Title V of the Rehabilitation Act of 1973, as there is no

Title V under the ADA.

 The Complaint indicates that Harris was confined at EMCF 2

from (or before) January 9, 2009, the date she began complaining

about the denial of handicap accommodations, through September 3,

2009, when she was transferred from EMCF to NJSP.

2

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(Compl., ¶¶ 4b, 4c, 4f and 6.) Harris further alleges that

defendant Wu denied her ADA protection by stating that Harris has

no physical disability or handicap that would require a cane,

wheelchair, toilet seat extension, handicap shower and proper

bedding. (Compl., ¶¶ 4g, 6.)

Harris alleges that defendant Jackson falsified medical

records, resulting in the violation of her rights under the ADA,

namely, the taking away of her cane, wheelchair access, and other

handicap accommodations. (Compl., ¶¶ 4h, 6.) On December 3,

2010, defendants Sgt. Bundy, Officer Whittfield and Officer

Snowling took Harris’s cane and failed to help her to walk. 

(Compl., ¶¶ 4i, 4j, 4k and 6.)

Harris seeks wheelchair access to and from her cell for

medical visits and consultations, court trips and visitation. 

She also seeks to have her cane returned to her, and to have an

elevated hospital bed, and a handicap toilet and shower. Harris

requests that her status be changed back to “handicap medical”,

and seeks damages.

II. PURPORTED CLAIMS UNDER 42 U.S.C. §§ 1983, 1985, & 1986

Harris seems to indicate that she is pursuing relief under

42 U.S.C. § 1983, but her federal claims are strictly asserted

under the ADA only. Thus, the Court will review the Complaint

for causes of action insofar as they concern federal law under

the ADA only. The § 1983 claims would be barred in any event, as

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a private party’s suit seeking to impose a liability that must be

paid from public funds in a state treasury is barred from federal

court by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S.

651, 663 (1974). The Eleventh Amendment protects states and

their agencies and departments from suit in federal court

regardless of the relief sought. Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984). Similarly, absent consent by

a state, the Eleventh Amendment bars federal court suits for

money damages against state officers in their official capacities. 

See Kentucky v. Graham, 473 U.S. 159, 169 (1985). Section 1983

does not override a state’s Eleventh Amendment immunity. Quern

v. Jordan, 440 U.S. 332 (1979). Such claims would also be barred

insofar as they could be based on supervisor liability. See

Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995);

Colburn v. Upper Darby Twp., 838 F.2d 663, 673 (3d Cir. 1988);

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Harris also seems to indicate that she is pursuing relief

under 42 U.S.C. §§ 1985(3) and 1986, but provides no factual

allegations in support. The elements of a § 1985(3) claim are

“(1) a conspiracy; (2) for the purpose of depriving, either

directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and

immunities under the laws; and (3) an act in furtherance of the

conspiracy; (4) whereby a person is injured in his person or

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property or deprived of any right or privilege of a citizen of

the United States.” Farber v. City of Paterson, 440 F.3d 131,

134 (3d Cir. 2006) (internal quotations and citations omitted). 

To state a claim under § 1986, a plaintiff must show: “(1) the

defendant had actual knowledge of a § 1985 conspiracy, (2) the

defendant had the power to prevent or aid in preventing the

commission of a § 1985 violation, (3) the defendant neglected or

refused to prevent a § 1985 conspiracy, and (4) a wrongful act

was committed.” Clack v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir.

1994). Conspiracy allegations “must provide some factual basis

to support the existence of the elements of a conspiracy:

agreement and concerted action.” Capogrosso v. Sup. Ct. of N.J.,

588 F.3d 180, 184 (3d Cir. 2009); see Michel v. Wicke, No.

10–3892, 2011 WL 3163236, at *4 (D.N.J. July 25, 2011) (“factual

allegations supporting the conspiracy claim may not be

generalized or conclusory.”). Without any factual content,

Harris has not stated a “plausible claim for relief” under 42

U.S.C. §§ 1985(3) and 1986. See Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009).

III. STANDARDS FOR A SUA SPONTE DISMISSAL

A district court must review a complaint in a civil action

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

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any claim that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B) and 1915A.

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in the plaintiff’s

favor. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner,

404 U.S. 519, 520-21 (1972)). The Court must “accept as true all

of the allegations in the complaint and all reasonable inferences

that can be drawn therefrom, and view them in the light most

favorable to the plaintiff.” Morse v. Lower Merion Sch. Dist.,

132 F.3d 902, 906 (3d Cir. 1997). But the Court need not credit a

pro se plaintiff’s “bald assertions” or “legal conclusions.” Id. 

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

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Gibson, 355 U.S. 41, 45-46 (1957)); see Erickson, 551 U.S. at 93-

94 (for pro se prisoner complaint, Court reviewed whether it

complied with Rule 8(a)(2)).

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), addressed whether

a complaint adequately alleged defendants’ personal involvement

in discriminatory decisions regarding treatment during detention,

which, if true, violated that plaintiff’s rights. Id. The Court

examined Federal Rule of Civil Procedure Rule 8(a)(2), which

provides that a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed.R.Civ.P. 8(a)(2). Citing Bell Atlantic Corp. v. 3

Twombly, 550 U.S. 544 (2007), for the proposition that “[a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do,’”

Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555), the

Supreme Court identified two principles underlying the failure to

state a claim standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives . . .. Determining

whether a complaint states a plausible claim for relief will

 Rule 8(d)(1) provides that “[e]ach allegation must be 3

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

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... be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense. 

But where the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the

complaint has alleged-but it has not “show[n]”-“that the

pleader is entitled to relief.” Fed. Rule Civ. Proc.

8(a)(2).

Iqbal, 129 S.Ct. at 1949-50 (citations omitted).

The Court further explained that a court

can choose to begin by identifying pleadings that, because

they are no more than conclusions, are not entitled to the

assumption of truth. While legal conclusions can provide

the framework of a complaint, they must be supported by

factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement

to relief.

Iqbal, 129 S.Ct. at 1950.

To prevent a summary dismissal, civil complaints must allege

“sufficient factual matter” to show that a claim is facially

plausible. This then “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Id. at 1948. A plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 1949-50; see

Twombly, 505 U.S. at 555, & n.3; Fowler, 578 F.3d at 210.

A district court must conduct the Iqbal analysis:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard

any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

the plaintiff has a “plausible claim for relief.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

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“show” such an entitlement with its facts. See Phillips,

515 F.3d at 234-35. As the Supreme Court instructed in

Iqbal, “[w]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not ‘show [n]’-‘that

the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at

1949-50]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

Fowler, 578 F.3d at 210-11.

But this Court is mindful that the sufficiency of this pro

se pleading must be construed liberally in Harris’s favor, even

after Iqbal. See Erickson, 551 U.S. at 93-94.

IV. ANALYSIS

Harris alleges that her ADA rights have been violated by the

denial of wheelchair access, an elevated hospital bed, access to

handicap toilet and showers while incarcerated, and by the

refusal to return her cane and shoe inserts. Harris asserts a

claim under both Title II and Title III of the ADA. She also

appears to assert a claim under Title V of the Rehabilitation

Act, Section 504. 

4

 Section 504 of the Rehabilitation Act prohibits disability 4

discrimination by recipients of federal funding; it provides that

no qualified individual with a disability “shall, solely by

reason of her or his disability, be excluded from 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 ADA and the Rehabilitation

Act generally are interpreted in pari materia. See Kemp v.

Holder, 610 F.3d 231, 234-35 (5th Cir. 2010). Indeed, “nothing

in [the ADA] shall be construed to apply a lesser standard than

the standards applied under title V [i.e., § 504] of the

Rehabilitation Act ... or the regulations issued by Federal

agencies pursuant to such title.” 42 U.S.C. § 12201(a); Bragdon

v. Abbott, 524 U.S. 624, 632 (1998) (“directive requires us to

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Title III of the ADA prohibits discrimination on the basis

of disability in places of public accommodation. 42 U.S.C. §

12182. “The phrase ‘pubic accommodation’ is defined in terms of

12 extensive categories,” PGA Tour, Inc. V. Martin, 532 U.S. 661,

676 (2001), including lodging, food or drink establishments,

places of exhibition, entertainment, public gathering, public

display/collection, recreation, exercise, or education, sales,

rental, and service establishments, public transportation

stations, and social service center establishments, “if the

operations of such entities affect commerce”. 42 U.S.C. §

12181(7). In the Complaint, Harris fails to establish that the

correctional facilities at issue, the EMCF or the NJSP, fall into

any of the categories subject to Title III of the ADA. Rather,

these facilities are considered as a “public entity” under Title

II of the ADA, which defines “public entity” as including “any

State or local government[]” and “any department, agency, special

purpose district, or other instrumentality of a State or States

or local government”. 42 U.S.C. § 12131(a). A public entity is

broadly construed as including “every possible agency of state or

local government”. Lee v. City of Los Angeles, 250 F.3d 668, 691

construe the ADA to grant at least as much protection as provided

by the regulations implementing the Rehabilitation Act”); cf. 42

U.S.C. § 12133 (providing “[t]he remedies, procedures, and

rights” available under the Rehabilitation Act “shall be the

remedies procedures, and rights” available under Title II of the

ADA). Accordingly, this Court’s analysis of the ADA claim

encompasses and applies to both statutes.

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(9th Cir. 2001) (noting both state prisons and local law

enforcement agencies are public entities under ADA). Thus,

covered public entities are defined to include state and local

governments and their agencies and instrumentalities. 42 U.S.C.

§ 12131(1). The ADA claim against the NJDOC and state prison

facilities fall under Title II only, not Title III.

The ADA’s purpose is “to provide a clear and comprehensive

mandate for the elimination of discrimination against individuals

with disabilities.” 42 U.S.C. § 12101(b)(1). The statute

prohibits discrimination against individuals with disabilities in

the areas of employment (Title I); public services, programs and

activities (Title II); and public accommodations (Title III). See

Tennessee v. Lane, 541 U.S. 509, 516 (2004). Only Title II is

arguably applicable here. Title II 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, or be

subjected to discrimination by any such entity.” 42 U.S.C. §

12132. To demonstrate a Title II violation, a plaintiff must show

(1) she is a “qualified individual with a disability”; (2) she

was excluded from participation in or denied the benefits of a

public entity’s services, programs, or activities, or was

otherwise discriminated against by the public entity; and (3) the

exclusion, denial of benefits, or discrimination was by reason of

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her disability. See 42 U.S.C. § 12132; Lopez v. Beard, 333

Fed.Appx. 685, 687 n.1 (3d Cir. 2009); Robertson v. Las Animas

County Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007). 

The Court will assume for immediate purposes that Harris is a

qualified disabled person within the meaning of the statute.5

Private citizens may seek damages against such state and

local governments, their agencies and instrumentalities, and

state officers in their official capacities. 42 U.S.C. § 12133. 

Individual liability is not available for discrimination claims

brought under Title II of the ADA. Emerson v. Thiel College, 296

F.3d 184, 189 (3d Cir. 2002) (noting “individuals are not liable

under Titles I and II of the ADA”) (citing Garcia v. S.U.N.Y.

Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir. 2001) (holding Title

II does not allow suits against individuals)).

Thus, as a preliminary matter, Harris cannot proceed against

any defendants in their individual capacities for monetary

damages. As the Complaint asserts that Harris is proceeding

against individual defendants for monetary damages in their

individual capacities, those claims for monetary damages will be

dismissed.

 “Qualified” disabled persons include those who “with or 5

without reasonable modifications to rules, policies, or

practices, the removal of architectural, communication, or

transportation barriers, or the provision of auxiliary aids and

services, meet 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).

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As to any claim for injunctive relief, the Complaint fails,

in part, to allege facts suggesting that Harris was deprived of

program participation “by reason of” her disability. Instead,

Harris claims that she is being denied access to the equipment

that she claims she is entitled to by virtue of her disability. 

This denial, without more, is not tantamount to an ADA violation. 

See, e.g., Dukes v. Georgia, 428 F.Supp.2d 1298, 1324 (N.D. Ga.),

aff’d, 212 Fed.Appx. 916 (11th Cir. 2006) (citing Bryant v.

Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (noting ADA addresses a

disabled person’s rights regarding access to programs and services

enjoyed by all, but does not provide general cause of action to

challenge manner of treatment of underlying disability)); Schiavo

ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir.

2005) (citing Bryant, 84 F.3d at 249) (noting inadequate

treatment is not, without more, an ADA violation). Here, with

the exception of the denial of a wheelchair and confiscation of

Harris’s cane, which has hindered her mobility and access to the

courts, visitation and other programs or activities at the prison

facilities, nothing in Harris’ allegations concerning denial of

extra bedding and blankets, a hospital bed, and shoe inserts,

suggests that Harris has been denied participation or access to

prison programs and activities sufficient to support an ADA

claim. Similarly, Harris’s allegations that Wu and Jackson

falsified medical records so as to deny her accommodations for

her disability, do not suggest that Harris was denied access or

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participation in prison programs or activities on the basis of

her disability.

But this Court is inclined to allow the claim concerning

denial of wheelchair access and a cane to proceed, because these

restrictions would appear to hinder her access and participation

in prison programs and other activities, as suggested by her

allegations that denial of wheelchair access precluded her

attendance at court or visits. Likewise, Harris’s claim

concerning the restrictions on handicap toilet and shower

accommodations will be allowed to proceed. These ADA claims will

be allowed to proceed as against the NJDOC only.

Because this Court will allow this limited ADA claim to

proceed, the Court will exercise supplemental jurisdiction over

Harris’s related NJLAD claim pursuant to 28 U.S.C. § 1367(a). 

All other ADA claims for injunctive relief will be dismissed for

failure to state a claim.

V. CONCLUSION

The ADA claim and NJLAD claims regarding wheelchair access,

use of a cane, and handicap toilet and shower accommodations will

be allowed to proceed as against NJDOC only. All other claims

will be dismissed. The Court will issue an appropriate order. 

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: March 22, 2012

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