STEVEN A. WHITE, Plaintiff,
DELAWARE BOARD OF PAROLE, et al., Defendants.
Steven A. White, Central Violation of Probation Center, Smyrna, Delaware, Pro Se Plaintiff.
Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants.
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." ( Id at Ex. 1) Plaintiff reapplied for parole during the pendency of this action and, on December 12, 2012, he was paroled to Level IV Crest followed by Level III supervision. (D.I. 42, Ex. A) On January 29, 2013, Plaintiff notified the Court of his transfer from the James T. Vaughn Correctional Center to the Central Violation of Probation Center in Smyrna, Delaware. (D.I. 43)
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. He seeks injunctive and declaratory relief and monetary damages as allowed by law.
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)
A. Legal Standards
1. Rule 12(b)(1)
"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 ...