Stansell v. Grafton Correctional Institution Court of Appeals Order

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 18-3765

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MICHAEL STANSELL,

Plaintiff-Appellant,

v.
GRAFTON CORRECTIONAL INSTITUTION,

Defendant-Appellee.

FILED

Apr 18, 2019

DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

O R D E R

Before:  COLE, Chief Judge; SILER and CLAY, Circuit Judges.

Michael Stansell, an Ohio prisoner proceeding pro se, appeals the district court’s dismissal of his  complaint of disability discrimination. The United States has filed a motion seeking leave to file  an out of time brief and an amicus brief in support of Stansell. This case has been referred to a  panel of the court that, upon examination, unanimously agrees that oral argument is not needed.   See Fed. R. App. P. 34(a).

Stansell filed a complaint alleging violations of Title II of the Americans with Disabilities Act  (“ADA”), § 504 of the Rehabilitation Act (“RA”), and the Eighth Amendment. The district court  dismissed the complaint pursuant to 28 U.S.C. § 1915(e) and certified that an appeal would not be taken in good faith. Stansell now argues that the district court erred in dismissing his  ADA and  RA claims.  Stansell has forfeited review of any claims that he raised in the district

- 2 -

court but did not raise in his appellate brief.  See Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016).

We  review  de  novo  a  district  court’s  dismissal  of  a  complaint  under  28 U.S.C. §§ 1915(e)(2) and 1915A. Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007).  To  avoid  dismissal  for failure to state a claim, “a complaint must contain sufficient factual matter,  accepted as  true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,  678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The ADA and RA prohibit public entities from excluding disabled individuals from or denying them  the benefits of services, programs, or activities on account of the individual’s disability. 42  U.S.C. § 12132; 29 U.S.C. § 794. Stansell alleged that he is disabled due to emergency abdominal  surgery in 2013 that makes it extremely difficult and painful for him to bend over, that the  facility replaced 36 inch tables with 16-inch tables, that the use of the shorter tables causes him  severe pain and discomfort, and that the use of the shorter tables deprives him of access to prison  visitation. While we have not expressly determined that a prison’s visitation program is a service,  program, or activity, we have concluded “that the phrase ‘services, programs, or activities’  encompasses virtually everything that a public entity does.” Johnson v. City of Saline, 151 F.3d  564, 569 (6th Cir. 1998). Because Stansell’s allegations, taken as true, are sufficient to show  interference with a service, program, or activity, the district court erred in dismissing his ADA  and RA claims.

Accordingly, we VACATE the dismissal of Stansell’s ADA and RA claims, REMAND the case to the district court, and GRANT the government’s motion seeking leave to file an out of time brief.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk