Opinion
1:18-CV-00603 EAW
2021-12-16
Eschell ASHCROFT, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Defendant.
Eschell Ashcroft, Alden, NY, Pro Se. Kim S. Murphy, Michael J. Russo, New York State Attorney General's Office, Buffalo, NY, for Defendant.
Eschell Ashcroft, Alden, NY, Pro Se.
Kim S. Murphy, Michael J. Russo, New York State Attorney General's Office, Buffalo, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Proceeding pro se , plaintiff Eschell Ashcroft ("Plaintiff"), currently incarcerated at the Wende Correctional Facility ("Wende"), alleges that defendant New York State Department of Corrections and Community Supervision ("Defendant" or "DOCCS") violated Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Rehabilitation Act"), and his rights under the Fifth and Fourteenth Amendments. (Dkt. 13 at 6). The Court previously dismissed Plaintiff's constitutional claims brought pursuant to 42 U.S.C. § 1983 but allowed Plaintiff to proceed on the ADA and Rehabilitation Act claims. (Dkt. 14 at 4-5). Presently before the Court is Defendant's motion for summary judgment (Dkt. 55) and Plaintiff's motion for appointment of counsel (Dkt. 59). For the following reasons, Defendant's motion is granted, and Plaintiff's motion is denied.
FACTUAL BACKGROUND
The following facts are taken from Defendant's Statement of Undisputed Facts and the exhibits submitted in support of Defendant's motion for summary judgment. Because Plaintiff failed to submit an opposing statement of material facts, to the extent supported by admissible evidence, the factual statements contained in Defendant's Statement of Undisputed Facts are deemed admitted for purposes of the motion. See L. R. Civ. P. 56(a)(2); see also N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 648-49 (2d Cir. 2005) ("[D]istrict courts have the authority to institute local rules governing summary judgment submissions" although "[r]eliance on a party's statement of undisputed facts may not be warranted where those facts are unsupported by the record").
Plaintiff filed a motion for an extension of time to respond to Defendant's motion for summary judgment. (Dkt. 57). The Court granted Plaintiff's motion. (Dkt. 58). Within the extended deadline, Plaintiff filed a motion to appoint counsel claiming he is being denied legal assistance and access to the law library. (Dkt. 59 at 2-3). He did not file papers opposing the present motion nor did he seek a further extension of time.
New York State has most recently imprisoned Plaintiff at Wende since February 23, 2018. (Dkt. 55-3 at ¶ 9; Dkt. 55-3 at 20). Defendant classifies Plaintiff as legally blind (Dkt. 55-4 at ¶ 7) due to his keratoconus diagnosis, which is an eye disorder that results in progressive thinning of the cornea (id. at ¶ 14). Plaintiff can see but with significant impairment. (Id. at ¶ 8).
Wende confines individuals with sensorial disabilities and operates a Sensorial Disability Program that Plaintiff is enrolled in to accommodate his vision impairment. (Dkt. 55-3 at ¶ 4). Wende employs specially trained employees including a full-time faculty Instructor of the Blind ("IOB") who has specific expertise in working with visually impaired and blind individuals. (Id. at ¶¶ 20, 21). Wende officials adhere to DOCCS Directive 2612, which describes the process for requesting and granting reasonable accommodation modifications to allow individuals with disabilities "the same opportunity" as able-bodied individuals. (Id. at ¶ 25; id. at 24-68).
Plaintiff has made numerous requests for accommodations during his incarceration—including assistive devices—some of which Defendant denied and some of which Defendant granted. For example, shortly after entering Wende in February 2018, Defendant approved Plaintiff's request for magnifiers and large-print material. (Dkt. 53 at 35).
However, Defendant denied various requests for accommodation that Plaintiff made while in Wende's Special Housing Unit ("SHU"). For example, Defendant denied Plaintiff's requests for a sighted guide/mobility-trained assistance (id. ), guidance cane (id. ), and CCTV (id. at 30).
Upon transfer to general population in November 2020, Plaintiff received a talking calculator, talking watch, guidance cane, and writing guide. (Dkt. 55-3 at ¶¶ 54-55). In general population, Plaintiff has access to Wende's Resource Room, which contains CCTVs, talking dictionaries, a v-text appliance, and an appliance that scans and reads documents. (Id. at ¶¶ 60-61).
PROCEDURAL HISTORY
Plaintiff initiated these proceedings on May 25, 2018 (Dkt. 1), and thereafter filed an amended complaint on February 27, 2019 (Dkt. 13). Upon screening the amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, this Court concluded that Plaintiff's ADA and Rehabilitation Act claims were sufficient to proceed to service but dismissed Plaintiff's § 1983 claims with prejudice. (Dkt. 14 at 4-5). Defendant filed its answer to Plaintiff's amended complaint on September 30, 2019. (Dkt. 19).
On January 13, 2020, the Court denied Plaintiff's motion for a preliminary injunction, filed July 10, 2019, noting that Plaintiff's requests heightened the standard because they would alter the status quo. (Dkt. 20 at 3, 4). Because Plaintiff had not submitted any evidence that would support his request for a mandatory preliminary injunction, the Court denied his motion. (Id. ).
Soon after, the case was referred to mediation. (Dkt. 25). During this time, the Court directed Plaintiff to send Defendant a list of accommodations he believed he needed (Dkt. 30), which was filed on March 9, 2020 (Dkt. 33; Dkt. 34), to which Defendant replied on April 22, 2020 (Dkt. 37). Ultimately, the mediator adjourned further meetings for Plaintiff to receive an updated ophthalmology exam. (Dkt. 43). Throughout the proceedings, Defendant has filed Rule 26 disclosures. (Dkt. 36; Dkt. 45; Dkt. 53).
Plaintiff submitted a letter to the Court noting that he had initially refused to attend the appointment due to alleged improper actions and retaliation by prison officials. (Dkt. 42). Subsequently, Plaintiff attended a consultation on November 9, 2020. (Dkt. 55-4 at ¶ 28).
Defendant filed the instant motion for summary judgment on March 29, 2021. (Dkt. 55). Plaintiff was ordered to submit papers in opposition no later than April 30, 2021. (Dkt. 56). Plaintiff filed a motion for extension of time on May 4, 2021 (Dkt. 57), which was granted the next day, providing Plaintiff until July 30, 2021, to file opposition papers (Dkt. 58). On July 12, 2021, Plaintiff filed a motion to appoint counsel and stated that he was unable to meet the July 30, 2021 deadline. (Dkt. 59 at 6). Plaintiff has not filed anything with the Court since then.
DISCUSSION
I. Appointment of Counsel
Rather than opposing Defendant's motion for summary judgment, Plaintiff filed a motion requesting the Court to appoint counsel. (Dkt. 59). As a preliminary matter, the Court notes that filing a motion to appoint counsel is not a substitute for opposing the pending motion, and Plaintiff's prior request for an extension (Dkt. 57) shows that he is aware of the proper method to request additional time to respond.
As to the request itself, the Court denied Plaintiff's prior motion for appointment of counsel (Dkt. 12) stating that it was required to "first determine whether the indigent's position seems likely to be of substance." (Dkt. 14) (citing Hodge v. Police Officers , 802 F.2d 58, 61 (2d Cir. 1986) ). At that time, Defendant had not yet responded to the allegations, "and the only facts upon which this Court [could] base its decision as to whether this lawsuit is of substance [were] those portions of Plaintiff's Amended Complaint." (Id. at 5-6). The Court denied the motion without prejudice as premature.
Now, based on the evidence Defendant submitted in support of its motion for summary judgment, the lack of evidence Plaintiff submitted, and for reasons more fully discussed below, the Court concludes that Plaintiff's position does not "seem[ ] likely to be of substance." Likewise, Plaintiff's allegation that he needs counsel because he is being denied access to the law library as a form of retaliation (Dkt. 59 at 2) is devoid of supporting evidence. While the Court acknowledges the difficulties Plaintiff, like all pro se prisoners, may face in litigating on his own behalf, there is insufficient evidence to suggest that appointment of counsel is warranted. Indeed, the record supports the conclusion that Plaintiff has been able to litigate this matter on his own. Therefore, his motion is denied.
II. Legal Standards Governing Motions for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that 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). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the non-moving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact...." Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp. , 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc. , 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011). Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
III. ADA and Rehabilitation Act Claims
Title II of the ADA "proscribes discrimination against the disabled in access to public services." Harris v. Mills , 572 F.3d 66, 73 (2d Cir. 2009) (internal quotation marks and citation omitted). The statute provides in relevant part 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 any such entity." Id. (citing 42 U.S.C. § 12132 ). "To assure those requirements are met, ‘reasonable accommodation’ may have to be provided to the qualified individual." Id. (citation omitted). Similarly, the Rehabilitation Act protects a "qualified individual with a disability" from being excluded from participation in, denied the benefit of, or subjected to discrimination "under any program or activity receiving Federal financial assistance," because of the individual's disability. 29 U.S.C. § 794(a). Although there are "subtle distinctions" between the Acts, the purpose of both statutes is to prevent discrimination based upon disability and, as a result, courts generally apply the same legal standard for claims arising under Title II of the ADA and Title V of the Rehabilitation Act. See Henrietta D. v. Bloomberg , 331 F.3d 261, 272 (2d Cir. 2003).
To establish a prima facie violation of either statute, a plaintiff must show: (1) he is a qualified individual with a disability; (2) the defendant is subject to the ADA or Rehabilitation Act; and (3) he was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant, by reason of his disability. Id. The Supreme Court has explained that such an individual "must be provided with meaningful access to the benefit that the grantee offers.... [T]o assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made." Alexander v. Choate , 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). "A qualified individual can base a discrimination claim on any of three available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation." Fulton v. Goord , 591 F.3d 37, 43 (2d Cir. 2009) (internal quotation marks and citation omitted); see also Davis v. Shah , 821 F.3d 231, 260 (2d Cir. 2016).
In the prison context, "[a] reasonable accommodation must provide effective access to prison activities and programs. That is, the accommodation must overcome structural impediments and non-trivial temporal delays that limit access to programs, services, and activities." Wright v. N.Y. State Dep't of Corr. , 831 F.3d 64, 73 (2d Cir. 2016). Therefore, providing meaningful access requires prison officials to provide inmates with meaningful participation in prison activities and programs. Id.
In its motion papers, Defendant assumes that Plaintiff is a qualified individual with a disability, that DOCCS receives federal funds, and that it is subject to the ADA's mandates. (Dkt. 55-2 at 10). Therefore, the dispute lies only within the last element—that is, whether Plaintiff was denied the opportunity to participate in or benefit from Defendant's services, programs, or activities, or was otherwise discriminated against by Defendant, by reason of his disability. According to Plaintiff's amended complaint, the issue in this case is whether Defendant denied accommodations necessary to ensure Plaintiff's meaningful participation in grievance, disciplinary, and legal matters (Dkt. 13 at 5), or for his health and well-being (id. at 4). The Court infers that by mentioning his health and well-being, Plaintiff refers to his hygiene and mobility.
The ADA defines "disability" as a physical or mental impairment that substantially limits one or more major life activities, including seeing, walking, and reading. 42 U.S.C. § 12102. Plaintiff can see but with significant vision impairment, and Defendant has acknowledged that he is classified as legally blind. Title II of the ADA defines a "qualified individual with a disability" as an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. Id. § 12131. There is nothing in the record to suggest that Plaintiff is ineligible to receive the benefit of Defendant's services, programs, or offered activities. Additionally, the Supreme Court has stated that the ADA "unmistakably includes State prisons and prisoners within its coverage." Pa. Dep't of Corr. v. Yeskey , 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).
The Court infers this from Plaintiff's allegation that he is being denied accommodations including accessible showers, an in-cell beard trimmer, a guidance cane, and a mobility guide. (Dkt. 13 at 12-13). The Supreme Court has suggested that a prison's "services, programs, or activities" may be broadly construed to include "fundamentals such as mobility, hygiene, medical care, and virtually all other prison programs." United States v. Georgia , 546 U.S. 151, 157, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006). Further, the Court is obliged to read pro se submissions liberally.
The Court must begin by analyzing the reasonableness of the accommodations that were provided or offered to Plaintiff—that is, whether or not they allowed him to meaningfully participate in the relevant prison services, programs, and activities. See A.M. ex rel. J.M. v. NYC Dep't of Educ. , 840 F. Supp. 2d 660, 680 (E.D.N.Y. 2012) ("[W]hen an individual already has ‘meaningful access’ to a benefit to which he or she is entitled, no additional accommodation, ‘reasonable’ or not, need be provided by the grantee."), aff'd sub nom. Moody ex rel. J.M. v. NYC Dep't of Educ. , 513 F. App'x 95 (2d Cir. 2013). As a general matter, Defendant has a specially trained, full-time facility IOB. (Dkt. 55-3 at ¶¶ 20-21). The IOB offers special instruction to assist individuals like Plaintiff and offers programs such as life skills training, communications skills training, and technology instruction. (Id. at ¶ 22). According to Defendant, Plaintiff has specifically been offered life skills and other instructions from the IOB, but he has declined such training. (Id. ).
Specific to Plaintiff's allegation that he is not able to meaningfully participate in his disciplinary, grievance, and legal matters, Defendant employs a law library staff "familiar with the need to provide materials based upon an inmate's sensorial needs in accordance with the reasonable accommodation process." (Id. at ¶ 35). Also, Defendant provided Plaintiff with additional and individualized accommodations including large-print materials, numerous color-contrast overlay sheets, and 10x and 12x magnifiers to allow him to read despite his vision impairment. (Id. at ¶¶ 32, 34, 40).
Regarding hygiene matters, showers within the facility are equipped with non-slip matts (id. at ¶ 51), and Defendant's IOB offers instruction regarding familiarization of the shower area including step counting and use of the shower knob (id. at ¶ 52). Defendant also granted Plaintiff's request for goggles to use while showering (id. at ¶ 32) and issued him a single use razor to access in the shower area, which he could have received instruction on how to use through the IOB (id. at ¶ 48).
The record suggests that Defendant provided Plaintiff with goggles ten months after he initially requested them. (See Dkt. 55-3 at 76 (showing that Plaintiff requested UV water sport goggles on March 7, 2018); id. at 86 (showing that Plaintiff received goggles on January 24, 2019)). In a reasonable accommodation case, "[a] delay in providing a reasonable accommodation can ... violate the ADA, if the delay is caused by discriminatory animus and is sufficiently lengthy to constitute a constructive denial of a reasonable accommodation." Wenc v. New London Bd. of Educ. , No. 3:14-CV-0840, 2016 WL 4410061, at *12 (D. Conn. Aug. 16, 2016), aff'd , 702 F. App'x 27 (2d Cir. Aug. 21, 2017). The Second Circuit has "consistently held that a plaintiff is required to provide evidence that the delay was motivated by the [defendant's] discriminatory intent, as opposed to mere negligence." Clark v. Jewish Childcare Ass'n, Inc. , 96 F. Supp. 3d 237, 260 (S.D.N.Y. 2015) (internal quotation marks and citation omitted). Plaintiff has not presented any evidence suggesting that the delay was the result of discriminatory animus.
Regarding mobility, Defendant submitted evidence that Wende follows set policies and procedures to ensure safety and security. (See id. at ¶ 23 (noting that the reasonable accommodation process involves security requirements to ensure safe and secure operations); id. at 24-68). While in SHU, Plaintiff was escorted by correctional staff whenever he moved around the facility. (Id. at ¶ 44 ("[L]ike all SHU inmates, [Plaintiff] was escorted by correctional staff whenever he moves about the area or facility.")).
These accommodations appear facially reasonable, and Plaintiff has failed to submit any admissible evidence to suggest that denial of the requested accommodations inhibited him from meaningfully accessing the programs, benefits, and services at Wende. See Disabled in Action v. Bd. of Elections in City of N.Y. , 752 F.3d 189, 198-99 (2d Cir. 2014) (to maintain claims under Title II of the ADA and Section 504 of the Rehabilitation Act, "plaintiffs must show that [the defendant] has failed to provide them with meaningful access to the benefit that it offers" (quotation and original alterations omitted)); Martinez v. Cuomo , 459 F. Supp. 3d 517, 523 (S.D.N.Y. 2020) (to sustain claims under the ADA and the Rehabilitation Act, a plaintiff "must ... show that the public entity has failed to institute reasonable accommodations sufficient to provide them with ‘meaningful access’ to the services"). In fact, the opposite is supported by the record. Defendant filed evidence that demonstrates that Plaintiff has filed numerous grievances, including 69 grievances while in Wende SHU and seven after he was transferred to general population. (Dkt. 36 at 52-55; Dkt. 53 at 38). Once Plaintiff was transferred to general population, he had access to the Resource Room which contained assistive devices including talking calculators, talking dictionaries, a v-text appliance, a device that scans and reads documents, and CCTVs. (Dkt. 55-3 at ¶¶ 60, 61). Nevertheless, Defendant submitted evidence that Plaintiff has not once gone to the Resource Room (id. at ¶ 62), suggesting that the accommodations provided were plainly reasonable and that denial of devices such as a talking dictionary, sighted reader, and pocket viewer did not inhibit Plaintiff from meaningfully participating in his proceedings. See Lopez v. Fischer , No. 07-cv-0365, 2011 WL 1233107, at *8 (W.D.N.Y. March 30, 2011) (concluding that the plaintiff's numerous grievances and letters written while in SHU demonstrated that the accommodations provided allowed him to read and write sufficiently to participate in, and benefit from, offered programs and activities).
There is evidence that Plaintiff did not use the shower for an extended period of time (see Dkt. 45 at 596 (noting in July 2019 that Plaintiff had not taken a shower in years)), and an accommodation cannot be considered "plainly reasonable if it is so inadequate that it deters the plaintiff from attempting to access the services otherwise available to him." Wright , 831 F.3d at 73. However, Plaintiff has failed to submit any admissible evidence such as a sworn declaration explaining why the accommodations available or provided inhibited him from using the shower or why denial of the desired accommodations caused him to stop showering.
Likewise, there is no evidence that, to extent permitted while in SHU, Plaintiff was inhibited from moving around the facility with the escorts that were provided. Furthermore, Plaintiff is not entitled to the specific accommodation of his choosing. Fink v. N.Y.C. Dep't of Pers. , 53 F.3d 565, 567 (2d Cir. 1995).
"Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the nonmovant's claim." Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay , 954 F. Supp. 2d 127, 134 (E.D.N.Y. 2013) (quotation omitted), aff'd , 868 F.3d 104 (2d Cir. 2017), and aff'd , 705 F. App'x 10 (2d Cir. 2017). Further, "[w]here a movant without the underlying burden of proof offers evidence that the non-movant has failed to present sufficient evidence in support of his claim, the burden shifts to the non-movant to offer persuasive evidence that his claim is not implausible." Id. (quotation omitted). In this case, Defendant has demonstrated an absence of evidence from which a reasonable jury could conclude that Plaintiff was not able to meaningfully participate in any of Defendant's services, programs, or activities. Further, having failed to respond to Defendant's motion for summary judgment, Plaintiff has not identified any evidence to the contrary. Consequently, Defendant's motion for summary judgment is granted.
Defendant also seeks to dismiss Plaintiff's request for punitive damages. (Dkt. 55-2 at 21). Because the Court grants Defendant's motion for summary judgment and orders the case to be closed, the Court necessarily dismisses Plaintiff's request for punitive damages.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment (Dkt. 55) is granted, and Plaintiff's motion for appointment of counsel (Dkt. 59) is denied.
SO ORDERED.