Opinion
CIV-20-168-SLP
02-09-2022
ARTEMIO MIRANDA MANUEL, Plaintiff, v. RALPH HANSON, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Artemio Miranda Manuel, formerly a federal prisoner, appears pro se and in forma pauperis, purportedly bringing this civil rights action pursuant to 42 U.S.C. § 1983, alleging a violation of his Eighth Amendment rights. Additionally, Plaintiff asserts allegations of violations of rights to which he believes he is entitled under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). According to Plaintiff, these violations occurred while he was incarcerated at the Great Plains Correctional Facility (GPCF). United States District Judge Scott L. Palk has referred this action for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
Plaintiff has since completed his term of imprisonment and been deported to Mexico.
Because Plaintiff is a federal prisoner, the Court construes his claim as arising under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Before the Court is an alternative Motion to Dismiss or Motion for Summary Judgment filed by Defendants Kevin Mooter and Andrew Exinia, the only named defendants who have been served with process. (ECF No. 41). Plaintiff's letter to the Court dated June 21, 2021, (ECF No. 43) is construed as a response to the Defendants' alternative motion and a response to this Court's Order to Show Cause. (ECF No. 42). Defendants have replied. (ECF No. 44). It is recommended that the dispositive motion filed on behalf of Defendants Mooter and Exinia be treated as a Motion for Summary Judgment. As so treated, it is recommended that the Motion be GRANTED.
I. FACTUAL BACKGROUND
These undisputed facts are taken from Plaintiff's Complaint, the verified Court-ordered Special Report submitted by Defendants and Plaintiff's filings. All named defendants in this action are employees of GPCF, a private prison owned by GEO Group. Geo Group has contracted with the Bureau of Prisons to house federal prisoners. (ECF No. 40:1-2). Plaintiff identifies Defendant Mooter as the Assistant Warden at GPCF and Defendant Exinia as one of three “hobby craft” teachers. (ECF No. 1:7).
Before his transfer to GPCF, Plaintiff was incarcerated in Texas at Big Spring Correctional Center (BSCC) where he was serving a 30-month sentence after his conviction for Unlawful Re-entry of a Deported Alien. (ECF No. 40:3); (ECF No. 40-1). Medical records from BSCC demonstrate that Plaintiff slipped in the shower, fell on his right knee, and suffered a significant injury on July 17, 2018. (ECF No. 40-2:2). He was referred to an outside medical provider, and his knee was ultimately repaired surgically on February 5, 2019. (ECF No. 40-2:41).
Plaintiff states that, at the time he filed his Complaint in this case, a civil action based on his shower accident was pending. He does not identify the court in which the case was filed. (ECF No. 1:3).
On June 17, 2019, Plaintiff was transferred to GPCF. (ECF No. 40-5). Records from GPCF attached to the Special Report demonstrate he had use of a wheelchair and received continuing medical treatment until his release.
II. PLAINTIFF'S CLAIMS
Plaintiff's first claim for relief is based on his contention that he is entitled to protections provided by the ADA and the RA. Plaintiff contends the named defendants at GPCF did not provide him the services he required as a disabled person confined to a wheelchair. He further contends the defendants discriminated against him and retaliated against him because of his disability. (ECF No. 1:7, 11-14).
Plaintiff second claim is based on his contention that certain defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment because, he asserts, he needed a total knee replacement which was not provided to him.
III. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine factual dispute. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999).
IV. ANALYSIS
A. Claims Based on the ADA and the RA
Plaintiff complains that he was forced to go through the regular meal line and through metal detectors even though he was in a wheelchair. He further complains about the size of cells to which he was assigned and the lack of wheelchair accessible showers. He alleges Defendant Exinia and an unserved defendant made him “do things and [made] decisions and [discriminated] against [him] because of [his] disability.” (ECF No. 1:11-12.
Plaintiff also alleges he was retaliated against because of his disability, but this claim appears to relate to a “Sgt. Perzanowski” who is not a party to this motion. (ECF No. 1:12).
Title II of the ADA 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 such entity.” 42 U.S.C. § 12132. (emphasis added). But “public entity” is specifically defined for the purposes of the ADA, and it does not apply to this case:
As used in this subchapter:
(1) Public entity
The term “public entity” means
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of Title 49).
The Supreme Court has held that “State prisons fall squarely within the statutory definition of ‘public entity,' which includes ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.'” Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210, (1998) (quoting § 12131(1)(B)). But the same is not true of Federal prisoners incarcerated by the Federal government. “Title II of the ADA does not apply to federal prisoners in federal prisons . . .. That is so because Title II covers only states and defined appendages thereof.” Phillips v. Tiona, 508 Fed.Appx. 737, 753 (10th Cir. 2013).
What is more, the Tenth Circuit has joined “the Eleventh Circuit and the overwhelming majority of other courts that have spoken directly on the issue, ” holding that “Title II of the ADA does not generally apply to private corporations that operate prisons.” Id. at 752-753. For these reasons, Defendants are entitled to summary judgment. The ADA does not provide a jurisdictional basis for Plaintiff's claims.
As for any claims under the RA, Plaintiff has no cause of action against these defendants, neither of whom is subject to personal liability. See Moore v. Cooksey, 242 F.3d 389 (10th Cir. 2000) (citing Hiler v. Brown, 177 F.3d 542, 545-46 (6th Cir. 1999) (stating that the Rehabilitation Act does not permit actions against persons in their individual capacities)).
B. Deliberate Indifference to Serious Medical Needs
The Eighth Amendment creates an obligation on the part of prison officials to provide adequate health care to inmates. Estelle v. Gamble, 429 U.S. 97, 103 (1976). “A prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106. This standard is met when (1) there is a medical need “that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention, ” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000), and (2) a prison official “knows of and disregards an excessive risk to inmate health or safety, ” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Additionally, the personal participation of a defendant is an essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Where a defendant is a supervisor, such as an assistant warden like Defendant Mooter, he may not be held liable for allegedly unconstitutional conduct of a subordinate on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). See also Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010)(“[W]hen a plaintiff sues an official under Bivens or § 1983 for conduct ‘arising from his or her superintendent responsibilities,' the plaintiff must plausibly plead and eventually prove not only that the official's subordinates violated the Constitution, but that the official by virtue of his own conduct and state of mind did so as well.”). As for Defendant Exinia, identified as a hobby craft teacher, Plaintiff has alleged no facts demonstrating that this Defendant had anything to do with Plaintiff's medical care.
The Court has examined the Complaint and all materials submitted by Plaintiff and finds no personal participation in Plaintiff's medical care by Defendants Kevin Mooter or Andrew Exinia. Because such participation is an essential allegation, the Court concludes plaintiff states no claim for relief against these defendants based on deliberate indifference to a serious medical need.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons discussed in this Report and Recommendation, the Court recommends Defendants' Motion for Summary Judgment (ECF No. 41) be GRANTED.
The parties are hereby advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by September 9, 2021. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.