Hunter v. Buchholtz

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:23-cv-00248-MR

MARCUS DEVAN HUNTER, )

a/k/a Versa Divine, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

KIMBERLY GRANDE, et al., )

)

Defendants. )

___________________________ )

THIS MATTER is before the Court on Defendants’ Motions to Dismiss.

[Docs. 26, 37].

I. PROCEDURAL BACKGROUND

Pro se Plaintiff Marcus Devan Hunter a/k/a Versa Divine (“Plaintiff”) is

a transgender female prisoner of the State of North Carolina currently

incarcerated at Central Prison in Raleigh, North Carolina.

This is not the first action Plaintiff has filed regarding the issues found

herein. On or about March 21, 2023, Plaintiff filed a four-page, handwritten

Complaint pursuant to 42 U.S.C. § 1983 in the United States District Court

for the Eastern District of North Carolina against the North Carolina

Department of Adult Correction (NCDAC) and other purported, unnamed

prison official Defendants alleging that “Defendants” had failed to provide

medically necessary care for gender dysphoria.1 Plaintiff also alleged having

suffered sexual harassment, sexual assault, and sexual abuse by prison staff

and fellow prisoners since having begun the outward expression of female

gender. [Civil Case No. 5:23-ct-03087-BO-RJ (E.D.N.C.) (the “Eastern

District case”), Doc. 1 at 1-2; Doc. 1-3 (postmark)]. Pursuant to the Eastern

District Court’s Order, on April 12, 2023, Plaintiff filed a new Complaint in

that action. [Id., Doc. 4, 5]. Therein, Plaintiff named seventeen Defendants,

including the NCDAC, 13 individual Defendants, and three correctional

institutions. [Id., id. at 4-9]. On May 15, 2023, Plaintiff was transferred to

Foothills Correctional Institution (“Foothills”), which is in Morganton, North

Carolina. Then, on May 24, 2023, in the Eastern District case, Plaintiff filed

an Amended Complaint consisting of 81 pages exclusive of exhibits, against

16 Defendants, setting forth in detail Plaintiff’s lifetime experience with

transgender issues, gender dysphoria, and being intersex2 and alleged

related experiences while incarcerated. [Id., Doc. 15].

1 Gender dysphoria is “a condition characterized by clinically significant distress and

anxiety resulting from the incongruence between an individual’s gender identity and birth-

assigned sex.” Kadel v. Folwell, 100 F.4th 122, 136 (4th Cir. 2024) (citing Am. Psychiatric

Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013) (“DSM-

5”)).

2 Intersex generally refers to being born with atypical external genitalia or lack of

concordance among various sex characteristics such as sex chromosomes, gonads, or

external genitalia. More recently, intersex has been renamed “Disorders of Sexual

Development” in the DSM-5.

On June 5, 2023, the Honorable Terrence W. Boyle, United States

District Judge, conducted an initial review of Plaintiff’s Complaint and

Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [Id., Doc. 17].

Noting that Plaintiff’s pleadings “are not a model of clarity” and that “the court

is unsure what claims plaintiff seeks to bring with this action,” Judge Boyle

directed Plaintiff to file “one amended complaint” naming “the specific

defendant(s) responsible for his claims” and “giv[ing] the named

defendant(s) fair notice of his claims and the factual basis upon which the

claim(s) rest.” [Id., id. at 2]. Judge Boyle also admonished Plaintiff that “he

must exhaust all available administrative remedies for any § 1983 claims

prior to filing an action.” [Id., id. (citations omitted)].

On or about June 15, 2023, Plaintiff timely filed a Second Amended

Complaint in the Eastern District case, naming the following Defendants: (1)

NCDAC, (2) Central Prison, (3) Secretary of Corrections Eddie Buffaloe, Jr.,

(4) NCDAC Commissioner Todd Ishee; (5) Director of Health and Wellness

Gary Junker, (6) Assistant Commissioner Brandeshawn Harris, (7) Medical

Director Arthur Campbell, (8) Director of Healthcare Administration Terry

Catlett, (9) Chief of Psychiatry Brian Sheitman, (10) Director of Nursing

Valerie Langley, RN, (11) Deputy Medical Director Abhay Agarwal, (12)

Director of Rehabilitative Services Sarah Cobb, (13) Director of Operations

Josh Panter, (14) Prison Rape Elimination Act (“PREA”)3 Director Charlotte

Williams, and (15) Utilization Review Board Member Elton Amos.4 [Id., Doc.

19 at 4-8, Doc. 19-2 at 2 (date notation)]. Plaintiff sued Defendants in their

official capacities only. [Id., Doc. 19 at 4-8]. Plaintiff sought to allege claims

arising at six different correctional institutions, including Foothills, which is in

the Western District. [Id., id. at 11]. Plaintiff alleged, inter alia, that, from

“December 2020 through until present”:

Defendants have repeatedly rejected my requests to

be provided gender-affirming healthcare and

surgery, gender-consistent facility housing –

wrongfully deeming it as “elective.” … Each

Defendant named knows that I am a transgender

woman suffering from gender dysphoria and a

disorder of sexual development and … that my

current and previous healthcare has failed to

adequately treat my gender dysphoria and disorder

of sexual development. …I am constantly denied

protections, redress of grievances, and medically

necessary care.

3 The PREA, 34 U.S.C. § 30301, seeks to establish “zero tolerance” for the incidence of

prison rape. The purpose of this Act is to protect inmates in correctional facilities from

sexual abuse and sexual assault. Gadeson v. Reynolds, No. 2:08-3702-CMC-RSC, 2009

WL 4572872, at *3 (D.S.C. Dec. 4, 2009).

4 In a grievance dated January 26, 2023, Plaintiff complained that all members of the

Transgender Accommodation Review Committee (“TARC”) had “denied, delayed,

ignored, and deferred [Plaintiff’s] requests” for gender dysphoria treatment, including the

NCDAC, the Secretary of Correction, the Commissioner/Director of Prisons, the Director

of Healthcare Administration, the Director of Behavioral Health, the Chief of Psychiatry,

the Director of Rehabilitative Services, the Director of Nursing, the Director of Operations,

the Deputy Chief Medical Officer, the Director of Rehabilitative Services, the PREA

Director, and Dr. Elton Amos, member of the Utilization Review Board. [Doc. 27-7 at 2-

4]. Thus, several Defendants in the Eastern District case were TARC members.

[Id., id. at 11-12 (errors uncorrected)]. Plaintiff alleged that these

deprivations began when Plaintiff was housed at Harnett Correctional

Institution and that “[t]he most significant places of occurrence” include

Maury CI, Pasquotank CI, Scotland CI, and Central Prison. [Id., id. at 12].

Plaintiff further alleged that “each [Facility Transgender Accommodation

Review Committee (“FTARC”)] and [Division Transgender Accommodation

Review Committee (“DTARC”)5] record and sick call indicates” these

deprivations. [Id., id.]. In addition to monetary relief, Plaintiff sought

injunctive relief requiring Defendants to provide Plaintiff with “necessary and

requested and prescribed medical care, accommodations, and protections

for … gender dysphoria, disorder of sexual development, and vulnerability.”

[Id., id. at 14]. Plaintiff asserted claims for violations of rights under the First,

Fourth, Fifth, Eighth, and Fourteenth Amendments; the Americans with

Disabilities Act, 42 U.S.C. § 12101, et seq.; Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794a; and Article 1, Section 27 of the North Carolina

Constitution, which prohibits cruel and unusual punishment. [Id., id. at 9-10].

On August 31, 2023, Judge Boyle dismissed Plaintiff’s Eastern District

case on initial review for Plaintiff’s failure to state a claim for relief in

5 The DTARC and TARC are one and the same and these terms are used interchangeably.

compliance with the Court’s June 5, 2023 Order. [Id., Doc. 20 at 2-3 (citing

id., Doc. 17 at 2)]. The Court declined to grant the Plaintiff any further

opportunity to amend and dismissed Plaintiff’s claims pursuant to 28 U.S.C.§

1915(e)(2)(B)(ii). [Id., Doc. 20 at 2-3]. The Fourth Circuit affirmed the District

Court’s Order dismissing Plaintiff’s Amended Complaint. Hunter v. North

Carolina Department of Adult Correction, No. 23-6904, 2024 WL 1406215

(4th Cir. Apr. 2, 2024) (per curiam).

Meanwhile, on or about August 24, 2023, Plaintiff filed the instant

action pursuant to 42 U.S.C. § 1983 aimed primarily at Foothills officials,

naming the following Defendants: (1) “Commissioner of Corrections” Peter

R. Buchholtz, (2) Inmate Grievance Resolution Board (IGRB) Director

Kimberly D. Grande, (3) Foothills Warden Harold Reep, (4) Foothills Unit

Managers Marc. E. Dunn and (5) Eric L. Price, (6) Foothills psychologist and

Director of Behavioral Health Marlene Holcombe, (7) Foothills Psychiatrist

Jeffrey Lorborbaum, (8) Foothills Physician’s Assistant Newton D. High, (9)

Foothills Nurse Manager FNU Abee, and (10) Foothills Americans with

Disabilities Act (ADA) Coordinator J. Newton. [Doc. 1 at 6].

Plaintiff’s Complaint consists of 49 rambling pages, 33 of which were

written on toilet paper. The gist of Plaintiff’s allegations is essentially the

same as what was asserted in Plaintiff’s Eastern District case, except now

more focused on Plaintiff’s treatment at Foothills rather than by the NCDAC

as a whole. Plaintiff alleges that gender affirming care has been denied and

as a result Plaintiff has suffered harm. Plaintiff attempts to break this down

into eleven separate “claims for relief,” but they all generally revolve around

the “Right to be free from inadequate treatment and deliberate indifference

to serious medical need for having gender dysphoria.”6 [Doc. 1 at 7].

More particularly, Plaintiff alleged that on January 11, 2023, while

incarcerated at Central Prison, Plaintiff attempted suicide “due to the

inadequate treatment of gender dysphoria and the harsh conditions of

confinement.” [Id. at 31]. On May 2, 2023, the IGRB upheld Central Prison

authorities’ decision that Plaintiff does not qualify “for ADA and the

rehabilitative services are not mandatory conditions of confinement for

Plaintiff.” [Id. at 31; see id. at 17-18]. On May 15, 2023, Plaintiff was

transferred from Central Prison to Foothills and immediately assigned to

Modified Housing for Regular Population (MODH). [Id. at 33]. On May 30,

2023, Plaintiff submitted a request to Behavioral Health Services seeking a

treatment plan for gender dysphoria symptoms and a sick call request for

6 Plaintiff expresses this in several ways, including such claims as “Right to be free from

discrimination, … Right to private showering and freedom from cross gender voyeurism,

…Right to Equal Protection,” but the root of each claim is that Plaintiff’s alleged gender

dysphoria is not being accommodated or treated. [Doc. 1 at 7-8].

“treatment associated with disorder of sexual development.”7 [Id. at 36]. On

June 2, 2023, Plaintiff was brought before the Foothills FTARC, which

consisted of Defendants Dunn, High, Price, Holcombe, Abee, and another

unidentified staff member. At this meeting, Plaintiff, among other things,

requested protective control and “gender affirming hygiene transitioning

items.” [Id.]. Defendant Reep was “deliberately indifferent” to Plaintiff’s

requests for accommodations and treatment. [Id. at 19]. Defendant Grande

dismissed Plaintiff’s claims of discrimination under the ADA. [Id. at 17-18].

Plaintiff also alleged that Defendant Grande upheld “facility staff decisions to

consider that [Plaintiff’s] gender dysphoria is [not] a disability.”8 [Id. at 18].

Defendant Dunn rejected Plaintiff’s requests for accommodations. [Id. at 21].

Defendant Price denied Plaintiff’s requests for gender-affirming medical

treatment. [Id. at 22]. Defendant Holcombe failed to properly treat Plaintiff’s

gender dysphoria, denied Plaintiff inpatient behavioral health services,

denied Plaintiff gender-affirming healthcare and accommodations, such as

peer support, psychotherapy, access to gender dysphoria specialists, and

7 The term “disorder of sexual development” is now used to describe a physical condition

that is entirely different from gender dysphoria. Plaintiff appears to use these terms

interchangeably when referring to gender dysphoria, as that term is defined in Kadel, 100

F.4th at 136.

8 Because this allegation, as written, is inconsistent with Plaintiff’s claim of being denied

accommodations for an alleged disability, it simply appears Plaintiff omitted the word “not.”

gender-consistent hygiene and cosmetics needed for social transitioning.

[Id. at 23-24]. Defendant Abee failed to properly treat Plaintiff’s disorder of

sexual development, denied Plaintiff gender-affirming healthcare such as

hormone therapy, gender-preferred pronouns, and gender-affirming hygiene

transitioning items. [Id. at 28-29]. Plaintiff seeks monetary relief, including

punitive damages, and costs. [Id. at 10]. Notably, Plaintiff does not seek

injunctive relief. [See id.].

In its initial review Order, this Court found that, “[e]ven though the

Plaintiff’s allegations are extremely vague,” Plaintiff’s Eighth Amendment

claims against Defendants Dunn, High, Price, Holcombe, and Abee based

on their alleged denial of care for Plaintiff’s gender dysphoria survived initial

review in that such claims were not clearly frivolous. [Doc. 10 at 17]. The

Court likewise allowed Plaintiff’s official capacity ADA claims against

Defendants Reep, Grande, Dunn, High, Price, Holcombe, and Abee to pass

initial review based on their alleged denial of ADA accommodations for

gender dysphoria. [Id. at 23]. The Court dismissed Defendants Buchholtz,

Lorborbaum, and Newton for Plaintiff’s failure to state a claim for relief

against them. [See id. at 25]. On January 11, 2024, before Defendants

answered, the Court allowed Plaintiff to supplement the Complaint with

allegations of events that occurred after the filing of the Complaint in this

matter. [Docs. 16, 22; see Doc. 18]. Based on allegations that Booker

Deorain Feaster, the Facility ADA Coordinator, and Sophia Feaster-

Lawrence, the Division ADA Coordinator, denied Plaintiff reasonable

accommodations for gender dysphoria under the ADA, the Court allowed

Plaintiff to add Feaster and Feaster-Lawrence as Defendants in this matter

in their official capacities only. [Doc. 22 at 6, 8; see Doc. 37 at 1 (identifying

these Defendants by their true full names)].

Defendants now move to dismiss this action pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure and 42 U.S.C. § 1997e(a). [Docs. 26,

37]. Defendants argue that Plaintiff’s claims were dismissed with prejudice

in a prior action and are, therefore, barred by res judicata and that Plaintiff

failed to exhaust administrative remedies. [Docs. 27, 38]. Defendants also

argue that “no allegations specific to named defendants present a claim upon

which relief can be granted, either by lacking specific allegations, stating

allegations defeating his claim, or by alleging facts precluding a claim[.]”

[Doc. 26 at 1; Doc. 37 at 1]. In support of their motions, Defendants

submitted a memorandum, various records from the Eastern District case,

the NCDAC Administrative Remedy Procedure, the Declarations of Kimberly

Grande and Doug Newton, and Plaintiff’s relevant grievance records. [Docs.

27, 27-1 through 27-14, 38, 38-1 through 38-14].

The Court entered orders, in accordance with Roseboro v. Garrison,

528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the right to respond to

Defendants’ motions. [Docs. 32, 40]. Plaintiff timely responded [Docs. 33,

34, 43] and Defendants did not reply.

The matter is now ripe for adjudication.

II. STANDARD OF REVIEW

The central issue for resolving a Rule 12(b)(6) motion is whether the

claims state a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d

186, 189 (4th Cir. 2009). In considering the Defendants' motions, the Court

accepts the allegations in the Complaint as true and construes them in the

light most favorable to the Plaintiff. Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli,

588 F.3d at 190–92. Although the Court accepts well-pled facts as true, it is

not required to accept “legal conclusions, elements of a cause of action, and

bare assertions devoid of further factual enhancement....”

Consumeraffairs.com, 591 F.3d at 255; see also Giacomelli, 588 F.3d at 189.

The claims need not contain “detailed factual allegations,” but must

contain sufficient factual allegations to suggest the required elements of a

cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);

see also Consumeraffairs.com, 591 F.3d at 256. “[A] formulaic recitation of

the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor

will mere labels and legal conclusions suffice. Id. Rule 8 of the Federal Rules

of Civil Procedure “demands more than an unadorned, the defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

The Complaint is required to contain “enough facts to state a claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also

Consumeraffairs.com, 591 F.3d at 255. “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. See also Consumeraffairs.com, 591 F.3d at 255. The

mere possibility that a defendant acted unlawfully is not sufficient for a claim

to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d at 256;

Giacomelli, 588 F.3d at 193. Ultimately, the well-pled factual allegations must

move a plaintiff's claim from possible to plausible. Twombly, 550 U.S. at 570;

Consumeraffairs.com, 591 F.3d at 256.

A party may assert the defense of res judicata in a Rule 12(b)(6) motion

“only if it clearly appears on the face of the complaint.” Richmond,

Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).

However, when considering a motion to dismiss based on the defense of res

judicata, the Court may take judicial notice of facts from a prior judicial

proceeding so long as the res judicata defense raises no disputed issues of

fact. Andrews v. Daw, 201 F.3d 521, 524 (4th Cir. 2000). Because the

Plaintiff here does not dispute the factual accuracy of the record of the

previous action, the Court may properly take judicial notice of that prior

action. Id.

III. DISCUSSION

“The general rule is well established that once a person has had a full

and fair opportunity to litigate a claim, the person is precluded, under the

doctrine of res judicata, from relitigating it.” Duckett v. Fuller, 819 F.3d 740,

744 (4th Cir. 2016) (citation omitted). The doctrine of res judicata

“preclude[es] parties in a subsequent proceeding from raising claims that

were or could have been raised in a prior proceeding….” Pueschel v. United

States, 369 F.3d 345, 354 (4th Cir. 2004). The doctrine “encourages reliance

on judicial decisions, bars vexatious litigation, and frees the courts to resolve

other disputes.” Brown v. Felsen, 442 U.S. 127, 131 (1979). For res judicata

to apply, there must be “(1) a final judgment on the merits in an earlier suit,

(2) an identity of the cause of action in both the earlier and the later suit, and

(3) an identity of parties or their privies in the two suits.” Nash Cty. Bd. of

Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981).

Along with these “three formal elements” of res

judicata, “two practical considerations should be

taken into account.” First, we consider whether the

party or its privy knew or should have known of its

claims at the time of the first action. Second, we ask

whether the court that ruled in the first suit was an

effective forum to litigate the relevant claims.

Chandler v. Forsyth Technical Community College, 294 F.Supp.3d 445, 451

(M.D.N.C. Feb. 15, 2018) (quoting Providence Hall Assocs. v. Wells Fargo

Bank, N.A., 816 F.3d 273, 276-77 (4th Cir. 2016)).

A court follows the “transactional” approach when determining whether

causes of action are identical: “As long as the second suit ‘arises out of the

same transaction or series of transactions as the claim resolved by the prior

judgment,’ the first suit will have preclusive effect.” Ohio Valley Envtl. Coal

v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009) (citation omitted).

“Under this transactional approach, res judicata will bar a ‘newly articulated

claim[ ]’ if it is based on the same underlying transaction and could have

been brought in the earlier action.” Clodfelter v. Republic of Sudan, 720 F.3d

199, 210 (4th Cir. 2013) (citation omitted).

In the Eastern District case, Plaintiff sought to prosecute claims related

to the NCDAC and its employees failing to treat and accommodate Plaintiff’s

gender dysphoria. That case was dismissed with prejudice [Doc. 20 at 2-3],

and the Fourth Circuit affirmed, Hunter, No. 23-6904, 2024 WL 1406215.

That constitutes an adjudication on the merits of the NCDAC’s policies and

decisions regarding its approach to Plaintiff as a prisoner who claims to have

gender dysphoria and how to treat, house and assign Plaintiff. See Lomax v.

Ortiz-Marquez, 590 U.S. ---, 140 S.Ct. 1721, 1725 (2020) (noting that when

a court dismisses an action for failure to state a claim for relief, but neglects

to specify with or without prejudice, the dismissal is treated as an

“adjudication on the merits”); McLean v. United States, 566 F.3d 391 (4th

Cir. 2009) (in § 1915 context, “[a]n unqualified dismissal for failure to state a

claim is presumed to operate with prejudice”), abrogated on other grounds

by Lomax, 140 S.Ct 1721. Plaintiff’s entire case herein is built upon an

attempt to re-litigate those issues. Those decisions by the NCDAC constitute

the “same … series of transactions as the claim resolved by the prior

judgment,” and thus preclude such re-litigation. Ohio Valley, 556 F.3d at

210; see also, R.A. v. McClenahan, 122 F.4th 143 (4th Cir. 2024). The fact

that Plaintiff now seeks to bring this claim against different NCDAC

employees who are now applying these NCDAC policies and decisions –

because Plaintiff has been transferred to a different prison – is of no

consequence. Plaintiff cannot re-litigate such NCDAC policies and

determinations every time Plaintiff is transferred.

Particularly, in the Eastern District case, Plaintiff complained that (1)

the Defendants repeatedly rejected Plaintiff’s requests for gender-affirming

healthcare and surgery and gender-consistent facility housing, (2) the

Defendants failed to adequately treat Plaintiff’s gender dysphoria and

disorder of sexual development; and (3) the Defendants “constantly denied

[Plaintiff] protections.” In that action, Plaintiff sought medical care,

accommodations, and protections for gender dysphoria and a disorder of

sexual development and claimed, inter alia, violations of the Eighth

Amendment and the ADA. Although Plaintiff’s Eighth Amendment claim in

the instant case involves the alleged denial of care for gender dysphoria at

Foothills, rather than at Plaintiff’s previous places of incarceration, the

alleged denials are nonetheless based on Plaintiff’s same conditions and

determinations under the same set of procedures and standards as the

denials alleged in the Eastern District case. Plaintiff cannot file a new lawsuit

based on the same alleged denial of care for gender dysphoria simply

because different employees of the NCDAC apply the same relevant policies

and decisions. Therefore, the first and second elements of res judicata are

met.

This also satisfies the third element. The interests of the Defendants

in the instant case were adequately represented by the interests of the

Defendants in the Eastern District case. Although the Defendants named

are different, the “TARC” entities share the same purpose and are comprised

of NCDAC officials with the same interests. Moreover, these sets of

Defendants are so identified in interest with one another that they represent

the same legal right relative to the Plaintiff’s claim.9 See Jones v. SEC, 115

F.3d 1173, 1180 (4th Cir.1997) (internal quotation marks omitted), cert.

denied, 523 U.S. 1072 (1998) (“[T]he privity requirement assumes that the

person in privity is so identified in interest with a party to former litigation that

he represents precisely the same legal right in respect to the subject matter

involved.”). For these reasons, the Court concludes that the third element is

met relative to Plaintiff’s Eighth Amendment claim.

Because the elements of res judicata are met here as to both of

Plaintiff’s remaining claims, the Court will grant Defendants’ motions to

dismiss on this ground with prejudice. Because no claims remain, the Court

declines to address the exhaustion issue.

9 Plaintiff asserted a claim pursuant to the ADA in the Eastern District case and in the

instant case. Of course, the ADA does not create any individual capacity cause of action.

Baird ex rel Baird v. Rose, 192 F.3d 462, 471 (4th Cir. 1999). Rather the “public entity” is

the liable party. 42 U.S.C. § 12132. That public entity, however, was the prevailing party

in the Eastern District case. As such, Plaintiff’s ADA claim is likewise barred by res

judicata.

IV. CONCLUSION

In sum, for the reasons stated herein, the Court grants Defendants’

motions to dismiss.

ORDER

IT IS, THEREFORE, ORDERED that Defendants’ Motions to Dismiss

[Docs. 26, 37] are GRANTED, and this is action is DISMISSED WITH

PREJUDICE.

The Clerk is respectfully instructed to terminate this action.

IT IS SO ORDERED.

Signed: January 27, 2025

— i

< Reidinger Ls,

Chief United States District Judge lll

18