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DAVID G. KEY, Plaintiff, and MICHIGAN PROTECTION and ADVOCACY SVC., Plaintiff-Intervenor, v. HENRY GRAYSON, KENNETH MCGINNIS, GARYGABRY, PAUL RENCIO, and BILL MARTIN, Defendants.

CIVIL CASE NO. 96-40166

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFMICHIGAN, SOUTHERN DIVISION

163 F. Supp. 2d 697; 2001 U.S. Dist. LEXIS 14271

September 5, 2001, Decided

September 5, 2001, Filed

OPINION AND ORDER

Before the Court are the report and recommendation of Magistrate Judge Donald Scheer [docket entry 273] and the objections and responses thereto. Pursuant to Local Rule 7.1(e), the Court concludes that a hearing would not aid in the disposition of these matters. For the reasons set forth below, the Court accepts and adopts the Magistrate Judge's report and recommendation, except insofar as it pertains to Plaintiff's ability to: (1) bring suit against Defendants in their individual capacities pursuant to 42 U.S.C. § 12203(a); (2) seek recovery for emotional or mental injuries in light of 42 U.S.C. § 1997e(e) of the Prison Litigation Reform Act ("PLRA"); and (3) proceed with his[**2] claim under the Michigan Persons With Disabilities Civil Rights Act ("MPDCRA"), M.C.L. 37.1301, et seq. This Court holds, for reasons set forth below, that Defendants in their individual capacities are not amenable to suit under § 12203(a) and that § 1997e(e) is no obstacle to Plaintiff's recovery for emotional or mental injuries. The Court will also dismiss without prejudice Plaintiff's claim under the MPDCRA because that claim raises a novel and complex issue of state law. See 28 U.S.C. § 1367(c) (2001).

I BACKGROUND

The facts in detail are as set forth in Magistrate Judge Scheer's report and recommendation, which is published in conjunction with this opinion and order. Plaintiff is a prisoner in the Michigan Department of Corrections ("MDOC"). Plaintiff brings suit against Defendants, all of whom were, or are, prison officials. All Defendants face suit in their official and individual capacities, except for Defendant McGinnis, who faces suit only in his individual capacity.

In his fourth amended-complaint, Plaintiff brings several causes of action against Defendants. He alleges that Defendants violated: the Americans With Disabilities[**3] Act ("ADA"), 42 U.S.C. § 12101, et seq.; the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended; and, the MPDCRA. Plaintiff grounds all of these claims in the allegation that Defendants denied him public services because of his hearing disability. Plaintiff also claims that Defendants violated the ADA's anti-retaliation provision, 42 U.S.C. § 12203 (a), by retaliating against him for pursuing this suit.

On March 20, 2001, Magistrate Judge Scheer issued his report and recommendation regarding Defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56(b). The Magistrate Judge, after meticulous analysis, recommended that this Court allow Plaintiff to proceed only with his claims for: (1) injunctive relief under the ADA and the Rehabilitation Act; (2) retaliation under 42 U.S.C. § 12203(a) against Defendants in their individual capacities; (3) violations of the MPDCRA that accrued before March 10, 2001; and (4) monetary damages against Defendants in their official capacities under the Rehabilitation Act.

This Court now evaluates the Magistrate Judge's[**4] report and recommendation.

II LEGAL STANDARD

The Court's standard of review of a Magistrate Judge's report and recommendation depends upon whether a party objected to that document. As to the [*702] parts of the report and recommendation to which no party has objected, the Court need not conduct a review by any standard. Wallace v. Housing Auth., 791 F. Supp. 137, 138 (D.S.C. 1992) (citation omitted). The Court reviews de novo, however, the portions of a report and recommendation to which a specific objection has been made. Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001) (Gadola, J.). Federal Rule of Civil Procedure 72(b) provides this standard of review. It states, in pertinent part, that

the district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

Because[**5] parties filed timely objections to the Magistrate Judge's report and recommendation, this Court reviews de novo those portions to which objection has been made. See Thomas, 131 F. Supp. 2d at 944.

De novo review in these circumstances entails at least a review of the evidence that faced the Magistrate Judge; the Court may not act solely on the basis of the Magistrate Judge's report and recommendation. 12 Charles A. Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 3070.2 (2d ed. 1997) (citing Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981)). Whether the Court supplements the record by entertaining further evidence is a matter committed to the Court's discretion. Id. After conducting this review, the Court is free to accept, reject, or modify the findings or recommendations of the Magistrate Judge. Wallace, 791 F. Supp. at 138. If the Court were to adopt the Magistrate Judge's report and recommendation, the Court would not need to state with specificity what it reviewed; it is sufficient for the Court to say that it has engaged in a de novo review of the record and adopts the Magistrate[**6] Judge's report and recommendation. 12 Wright, Miller, & Arthur, § 3070.2.

III ANALYSIS

Having conducted the review delineated above, the Court will accept and adopt the Magistrate Judge's report and recommendation, except insofar as it pertains to Plaintiff's ability to: (1) bring suit against Defendants in their individual capacities pursuant to 42 U.S.C. § 12203(a); (2) seek recovery for emotional or mental injuries in light of 42 U.S.C. § 1997e(e) of the PLRA; and (3) proceed with his claim under the MPDCRA. This Court holds, for reasons set forth below, that Defendants in their individual capacities are not amenable to suit under § 12203(a) and that § 1997e(e) is no obstacle to Plaintiff's recovery for mental or emotional damages. The Court will also dismiss without prejudice Plaintiff's claim under MPDCRA pursuant to 28 U.S.C. § 1367(c) because that claim raises a novel and complex issue of state law.

A. Section 12203(a)

Congress, speaking for the American people, passed Title II of the ADA in order to prohibit discrimination against the handicapped in public services. 42 U.S.C. § 12132.[**7] Toward that end, Congress chose to allow people who believe that they have endured such discrimination to file suit under the statute. So that plaintiffs would not suffer for pursuing such legal action, Congress also included within the ADA an anti-retaliation provision, under which Plaintiff seeks relief from Defendants [*703] in their individual capacities. The text of that provision follows:

(a) Retaliation. No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.

42 U.S.C. § 12203(a). The question becomes whether Defendants in their individual capacities are persons within the ambit of § 12203(a).

To address this issue, the Court must apply the rules of statutory interpretation. Unfortunately, there is some dispute as to what those rules are or should be. That difference of opinion has led some scholars to conclude that courts employ the varying theories of statutory interpretation, as expressed in scholarly literature, [**8] merely "to add academic luster to decisions ultimately based on other grounds, rather than as significant factors in the underlying decision-making process." Gregory Scott Crespi, The Influence of a Decade of Statutory Interpretation Scholarship on Judicial Rulings: An Empirical Analysis, 53 SMU L. Rev. 9, 11 (2000). Lest there be any ambiguity regarding why this Court interprets the ADA's anti-retaliation provision as it does, the Court will carefully enunciate its process of statutory interpretation.

The Court begins with the observation that, in a republic such as ours, "the people are the only legitimate foundation of power." The Federalist No. 49, at 348 (James Madison) (Benjamin Fletcher Wright ed., 1961); accord "James Wilson Replies to Findley, December 1, 1787," Pennsylvania Ratifying Convention, reprinted in 1 The Debate on the Constitution 820 (Bernard Bailyn ed., 1993). At the national level, the people express their will through Congress. See Connecticut v. EPA, 696 F.2d 147, 155 (2d Cir. 1982); see also 1 Alexis de Tocqueville, Democracy in America 254 (Francis Bowen trans., Phillips Bradley ed. 1945) (observing[**9] that "of all political institutions, the legislature is the one that is most easily swayed by the will of the majority"). Thus, when deciding whether Defendants are persons within the ambit of § 12203(a), the Court's object is to ascertain the meaning of the words that the people, acting through Congress, enacted into law. See generally Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 67-70 (1994). This is so because, ultimately, "the text is the law, and it is the text that must be observed." Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 3, 22 (1997) (quoted in United States v. Evans, 148 F.3d 477, 483 n.8 (5th Cir. 1998)).

To ascertain a statutory text's meaning, the Court must begin with the statutory language itself, considering both the text and structure of the statute. Walker v. Bain, 257 F.3d 660, 2001 WL 823612 (6th Cir. 2001) (page citations unavailable). "Unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 62 L. Ed. 2d 199, 100 S. Ct. 311 (1979).[**10] In this case, the ADA itself defines "person" to include "one or more individuals." Cable v. Department of Developmental Svcs., 973 F. Supp. 937, 943 (C.D. Cal. 1997) (citing 42 U.S.C. §§ 2000e and 12111(7)). Interpreting § 12203(a) by itself and literally, it would at first seem that Defendants are persons within the meaning of the ADA's anti-retaliation provision and thus amenable to suit as individuals.

The Court's evaluation of § 12203(a) within the structure of the ADA, however, [*704] suggests the opposite result. This is so because § 12203(c) prescribes remedies for retaliation under § 12203(a) according to the type of retaliation that the plaintiff alleges. Van Hulle v. Pacific Telesis Corp., 124 F. Supp. 2d 642, 646 (N.D. Cal. 2000) (citing Stern v. California State Archives, 982 F. Supp. 690, 694 (E.D. Cal. 1997)). As it relates to this case, § 12203(c) refers a plaintiff asserting that a defendant retaliated against him in the provision of public services to § 12133, which is Title II's remedies provision. Id. Section 12133, in turn, incorporates 29 U.S.C. § 794a, which [**11]is the remedies provision of the Rehabilitation Act. Section 794a, for its part, dictates that a plaintiff's remedies are as "set forth in" 42 U.S.C. § 2000e-16 and 42 U.S.C. § 2000d et seq., both of which are elements of the Civil Rights Act of 1964.

The remedies "set forth" in § 2000e-16, however, are available only where the defendant is a "head of department, agency, or unit" sued in his official capacity. Mays v. U.S.P.S., 928 F. Supp. 1552, 1568 (M.D. Ala. 1996) (citing § 2000e-16(c)); King v. Dalton, 895 F. Supp. 831, 844 (E.D. Va. 1995); Weiss v. Marsh, 543 F. Supp. 1115, 1116-17 (M.D. Ala. 1981). In other words, § 2000e-16 allows for no remedy against a defendant being sued in his individual capacity. Section 2000d et seq., for their part, "set forth" no remedies. See Tafoya v. Bobroff, 865 F. Supp. 742, 748-49 (D.N.M. 1994); Tanberg v. Weld County Sheriff, 787 F. Supp. 970, 972 (D. Colo. 1992).

None of the remedies available for violating § 12203(a) apply against a defendant in his individual capacity. It would thus be absurd[**12] to hold that Plaintiff may proceed against Defendants in their individual capacities pursuant to § 12203(a). Accordingly, this Court holds that § 12203(a) creates no individual liability under the ADA for retaliating in relation to the provision of public services. Plaintiff may not proceed against Defendants in their individual capacities pursuant to that provision.

In so holding, this Court joins the majority of courts that, to this Court's knowledge, have considered the issue. See Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999); Van Hulle, 124 F. Supp. 2d at 645; Santiago v. City of Vineland, 107 F. Supp. 2d 512, 551-52 (D.N.J. 2000); Kautio v. Zurich Ins. Co., 1998 U.S. Dist. LEXIS 5856, No. 97-2411, 1998 WL 164623, at **1-2 (D. Kan. Mar. 18, 1998); Cable, 973 F. Supp. at 943; cf. Hiler v. Brown, 177 F.3d 542, 545-47 (6th Cir. 1999) (holding that individuals who are not employers under Title VII cannot be held personally liable for retaliation under the Rehabilitation Act). But see Smith v. University of the State of New York, 1997 U.S. Dist. LEXIS 20782, No. 95- CV-0477, 1997 WL 800882 at **7-8 (W.D.N.Y. Dec. 31, 1997) [**13] (Elfvin, J.); Ostrach v. Regents of the University of California, 957 F. Supp. 196, 200 (E.D. Cal. 1997).

B. Recovery of Mental or Emotional Damages in Light of The Prison Litigation Reform Act

The Magistrate Judge reasoned that 42 U.S.C. § 1997e(e) of the PLRA "forecloses recovery by Plaintiff for emotional and mental injuries." (R & R at 27.) For the reasons set forth below, this Court respectfully disagrees.

Plaintiff filed this case on April 10, 1996, which was before § 1997e(e)'s effective date of April 26, 1996. Thaddeus-X v. Wozniak, 2000 U.S. App. LEXIS 11817, No. 99-1720, 2000 WL 712383, at *3 (6th Cir. May 23, 2000). Section 1997e(e) does not apply retroactively. Tensley v. Perry, 1999 U.S. App. LEXIS 1622, No. 97-2280, 1999 WL 96986, at *1 (6th Cir. Feb. 2, 1999); Craig v. Eberly, 164 F.3d 490, 493-95 (10th Cir. 1998) (Tacha, J.); Swan v. Banks, 160 F.3d 1258, 1259 [*705] (9th Cir. 1998); Shabazz v. Cole, 69 F. Supp. 2d 177, 196 (D. Mass. 1999); Cunningham v. Eyman, 11 F. Supp. 2d 969, 972-75 (N.D. Ill. 1998); Bolton v. Goord, 992 F. Supp. 604, 625 (S.D.N.Y. 1998);[**14] cf. Wright v. Morris, 111 F.3d 414, 417-18 (6th Cir. 1997) (reasoning that § 1997e(a) does not apply retroactively). But see Abul ' Umar v. Price, 2001 Tex. App. LEXIS 2232, No. 09-00-331- CV, 2001 WL 332605, at **6-7 (Tex. Ct. App. April 5, 2001). Therefore, § 1997e(e) does not foreclose Plaintiff's ability to recover for mental or emotional damages.

C. MPDCRA

Plaintiff invokes this Court's supplemental jurisdiction over his claim under the MPDCRA. This Court has discretion to exercise its supplemental jurisdiction. 28 U.S.C. § 1367(c); United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). In exercising its discretion, the Court must look to "considerations of judicial economy, convenience and fairness to the litigants" and avoid needless decisions of state law. C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3567.1 (2d ed. 1984).

Recent litigation in the federal courts involving federal law claims together with supplemental state law claims has caused procedural and substantive problems. Although the federal and state claims in this action arise out of the same factual situation, [**15] litigating these claims together may not serve judicial economy or trial convenience.

Because federal and state law each have a different focus, and because the two bodies of law have evolved at different times and in different legislative and judicial systems, in almost every case with supplemental state claims, the courts and counsel are unduly preoccupied with substantive and procedural problems in reconciling the two bodies of law and providing a fair proceeding.

The attempt to reconcile these two distinct bodies of law often dominates and prolongs pre-trial practice, complicates the trial, makes the jury instructions longer, confuses the jury, results in inconsistent verdicts, and causes post-trial problems with respect to judgment interest and attorney fees. Thus, it appears that in many cases the apparent judicial economy and convenience of the parties' interest in the entertainment of supplemental state claims may be offset by the problems they create.

This action is no exception to the rule. As is self evident from Magistrate Judge Scheer's thoughtful analysis of the issue, whether the MPDCRA applies retroactively is a novel and complex issue of state law that would best [**16]be adjudicated in state court and not in a case involving many complex issues of federal law. For the foregoing reasons, this Court will dismiss without prejudice Plaintiff's claim under the MPDCRA.

Plaintiff is hereby directed to Michigan Compiled Laws § 600.5856 regarding the tolling of the state statute of limitations. See Lee v. Grand Rapids Bd. of Educ., 148 Mich. App. 364, 384 N.W.2d 165 (1986).

IV CONCLUSION

For the reasons delineated above,

IT IS HEREBY ORDERED that the Court accepts and adopts the Magistrate Judge's report and recommendation, except insofar as it pertains to Plaintiff's ability to: (1) bring suit against Defendants in their individual capacities pursuant to 42 U.S.C. § 12203(a); (2) seek recovery for emotional or mental injuries in light of 42 U.S.C. § 1997e(e) of the PLRA; and (3) proceed with his claim under the MPDCRA. [*706]

IT IS FURTHER ORDERED that Plaintiff cannot bring suit against Defendants in their individual capacities pursuant to 42 U.S.C. § 12203(a).

IT IS FURTHER ORDERED that 42 U.S.C. § 1997e(e) does[**17] not apply retroactively and is thus no obstacle to Plaintiff's recovery for emotional or mental injuries.

IT IS FURTHER ORDERED that Plaintiff's claim under the MPDCRA is DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1367(c).

SO ORDERED.

Dated: SEPT. 5, 2001

HONORABLE PAUL V. GADOLA

UNITED STATES DISTRICT JUDGE

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