Opinion
Case No. 5:19-cv-00193-TES-CHW
06-25-2020
BENNIE BERNARD GRAYSON, Plaintiff, v. GEORGE IVEY, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983
Before the U.S. Magistrate Judge REPORT AND RECOMMENDATION
Before the Court are motions for summary judgment filed by Defendants Ivy, Lewis, Pashal, Pervis, Toby, (Doc. 26), and Okonkwo. (Doc. 28). It is RECOMMENDED that these motions be GRANTED as to Plaintiff's claims for compensatory and punitive damages, and GRANTED as to Plaintiff's Eighth Amendment claims on grounds of qualified immunity. It is further RECOMMENDED, however, that these motions be DENIED as to Plaintiff's claims under the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act ("RA").
FACTS
Plaintiff Bennie Grayson is an HIV-positive Georgia prisoner whose right leg is amputated below the knee. This action relates to Plaintiff's confinement at Hancock State Prison ("HSP") from December 7, 2017, until December 19, 2017. (Doc. 26-5, p. 2) ("Movement History"). A prior action commenced by Plaintiff in this Court was dismissed for failure to exhaust the administrative grievance process. See Grayson v. Bryson, 5:18-cv-95 (MTT) (TQL). This recommendation considers several filings made in that prior, related action.
The six Defendants before the Court all worked at HSP during the relevant period. Defendants Toby and Ivey worked as the Warden and Deputy Warden respectively, Defendants Purvis and Okonkwo worked as nurses, Defendant Paschal worked as a unit manager, and Defendant Lewis worked as a correctional officer. The Defendants acknowledge that Hancock State Prison is not an "ADA facility," meaning that it lacks equipment such as "rails on the wall or permanent pull-down shower chairs affixed to the wall." (Doc. 26-2, ¶ 2). Neither Plaintiff's transfer into HSP nor his retention at HSP is presently at issue in this action. The record indicates that Defendant Toby "request[ed] that Grayson be transferred to another GDC facility that could better accommodate his below-the-knee amputation" on December 7, the day that Plaintiff entered HSP. (Toby Aff., Doc. 26-9, ¶ 5).
The central issue in this action is whether the Defendants lawfully responded to Plaintiff's asserted need and requests for a shower chair during his roughly two-week confinement at HSP. In this regard, the record shows that Plaintiff took two showers during this period, that Plaintiff fell on both occasions, and that each time Plaintiff was transported to the Oconee Regional Medical Center for medical treatment. See (Doc. 26-12 through Doc. 26-15) (medical record). On screening under 28 U.S.C. § 1915A, the Court determined that these successive falls, along with the Defendants' alleged failure to accommodate Plaintiff's disability, supported claims under both the Eighth Amendment and the ADA and RA. (Doc. 15, p. 3).
SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the movant shows 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 party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). When resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Tolan v. Cotton, 572 U.S. 650, 657 (2014).
AVAILABLE RELIEF
In part, the Defendants move for summary judgment not on the merits of Plaintiff's claims, but rather based on the "limitation on recovery" provision of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). That provision states, in relevant part, that "[n]o federal civil action may be brought by a prisoner ... for mental or emotional injury suffered while in custody without a prior showing of physical injury." Pursuant to case law of the Eleventh Circuit Court of Appeals, the phrase "physical injury" means a "more than de minimis" physical injury. See Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999), reinstated in relevant part, Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc).
Even when construed in Plaintiff's favor, the record in this action does not indicate that Plaintiff suffered from a more than de minimis physical injury as a result of his two falls. Medical notes documenting Plaintiff's treatment after his first fall record complaints by Plaintiff of left hip swelling and pain, along with pain of the left thumb and left ankle, but medical staff reported: "He does not seem to be in any distress." (Doc. 26-13, p. 1). Plaintiff was diagnosed with a "sprain of unspecified parts of [the] lumbar spine and pelvis," and he was instructed to treat with "Tylenol as needed for pain." (Doc. 26-13, p. 3).
The record shows that Plaintiff received a single dose of Tramadol after his second fall based on diagnoses of a sprained left ankle, along with contusions of the pelvis, lower back and right lower leg. (Doc. 26-15, pp. 4-5). Once again, medical staff reported that Plaintiff was in "no acute distress," (Doc. 26-15, p. 2), and Plaintiff was instructed to treat thereafter with Tylenol for pain, along with rest, ice and elevation for his ankle. (Doc. 26-15, p. 5).
Plaintiff's injuries, which amount to "minor bruising or swelling," are "trivial harms" that were expected to "heal[] without the need for any medical treatment." Pierre v. Padgett, — F. App'x —, 2020 WL 1650656 at *4 (11th Cir. Apr. 3, 2020). Plaintiff's injuries, therefore, do not rise to the level of "more than de minimis" physical injuries sufficient to satisfy the Prison Litigation Reform Act's physical injury requirement. As a result, it is recommended that Plaintiff's recovery in this action be limited to nominal damages. See Brooks v. Warden, 800 F.3d 1295, 1307-08 (11th Cir. 2015) ("nothing in § 1997e(e) prevents a prisoner from recovering nominal damages for a constitutional violation without a showing of physical injury").
ANALYSIS
This Recommendation first considers Plaintiff's Eighth Amendment claims, which are best resolved on qualified immunity grounds. Thereafter, this Recommendation considers Plaintiff's claims under the ADA and RA. As discussed below, a reasonable jury could find for Plaintiff on his ADA and RA claims, and accordingly, the Defendants are not entitled to summary judgment on those claims.
I. The Defendants are entitled to qualified immunity from Plaintiff's Eighth Amendment claims.
Qualified immunity protects government actors "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity is "an immunity from suit rather than a mere defense to liability," and hence, "it is effectively lost if a case is erroneously permitted to go to trial." Id.
Within the Eleventh Circuit, the plaintiff bears the burden of showing that qualified immunity is not appropriate. See, e.g., Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015). This showing consists of two steps, which may be considered by the Court in either order. First, the plaintiff must make out a violation of a constitutional right. Pearson, 555 U.S. at 232. Second, the plaintiff must show that the right was "clearly established" at the time of the asserted misconduct. Id.
In this action, all of the Defendants are entitled to qualified immunity from Plaintiff's Eighth Amendment claims because Plaintiff has failed to satisfy his burden, at the second step of the qualified immunity inquiry, of showing that a "clearly established" right was violated. The Court need not consider the first step of the qualified immunity inquiry to resolve Plaintiff's Eighth Amendment claims, but as discussed in the following section, this first step is bound up with the question of the Defendants' immunity from Plaintiff's ADA claims.
As to Plaintiff's Eighth Amendment claims, the record indicates that the Defendants first became aware of Plaintiff's amputated lower right leg upon his entry into HSP on December 7, 2017. The record suggests that Plaintiff asked Defendants Ivey (Doc. 26-4, ¶ 5), Pervis or Purvis (Doc. 26-8, ¶ 5), and Okonkwo (Doc. 28-3, ¶ 5), for a shower chair during his initial medical screening or shortly thereafter. All of the Defendants agree that HSP then had no "approved shower chairs," meaning chairs with "non-slip rubber fittings on the legs so they will not slip on a wet shower floor and are constructed so that they cannot be easily taken apart and refashioned into a weapon." (Defs.' Facts, Doc. 26-2, ¶ 2). Defendants Toby and Paschal "assumed ... that the HSP medical department [would order] a portable, approved shower chair" for Plaintiff, (Doc. 26-7, ¶ 5; Doc. 26-9, ¶ 8), and the record indicates that such a chair arrived at HSP shortly after Plaintiff's transfer to a different facility.
Plaintiff fell twice in the HSP shower, once on December 11 and once on December 16. The Defendants readily acknowledge that "none of the inmate showers at HSP were equipped to accommodate handicapped inmates." (Defs.' Facts, Doc. 26-2, ¶ 2). As to Plaintiff's second fall on December 16, Defendant Pervis responded to "help ... pick inmate Grayson from the shower floor." (Doc. 26-8, ¶ 6).
These facts, along with other facts discussed below, could support an Eighth Amendment claim of deliberate indifference to the risk of harm posed by Plaintiff's inability safely to use the HSP shower as a result of his partially amputated right leg. To demonstrate that qualified immunity is not appropriate, however, Plaintiff must further show that his right to safer shower access was "clearly established." "A right may be clearly established for qualified immunity purposes in one of three ways: (1) case law with indistinguishable facts clearly establishing the constitutional right, (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right, or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law." Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291-92 (11th Cir. 2009) (citations omitted).
No case with facts indistinguishable from the facts in this case is apparent. Nor are the wrongs at issue in this action so egregious as to be "at war with the command of the Eighth Amendment." Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015). Thus, the qualified immunity inquiry in this case turns on whether "a broad statement of principle" clearly established the wrongfulness of the Defendants' conduct.
In assessing whether any broad principle proscribed the Defendants' actions or inactions, the Court must ask whether "[t]he contours of the right [were] sufficiently clear that a reasonable officer would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). The Eleventh Circuit has explained that "officers are not required to be creative or imaginative in drawing analogies from previously decided cases." Glasscox v. City of Argo, 903 F.3d 1207, 1218 (11th Cir. 2018) (internal quotations omitted).
Based on these guidelines, there is no basis to conclude that any broad principle gave sufficient fair warning to the Defendants that their conduct was clearly proscribed. In large part, this conclusion is compelled by the fact that the Defendants' conduct implicates two different strains of Eighth Amendment caselaw. One strain relates to risks of bodily harm — in this case, the risk of harm arising from the use, by an amputee, of a shower with no shower chair or handrails. See Farmer v. Brennan, 511 U.S. 825, 828 (1994) ("A prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment"). Another strain relates to concerns of hygiene, and of human dignity — in this case, concerns arising from Plaintiff's forced choice between an unsafe shower and no shower at all during his roughly two-week confinement at HSP. See Brooks v. Warden, 800 F.3d 1295, 1303-04 (2015) (explaining that "the deprivation of basic elements of hygiene" violates "the contemporary standard of decency that the Eighth Amendment demands") (internal quotations omitted).
In allowing Plaintiff to access the HSP showers, albeit without a shower chair, the Defendants sought to discharge their Eighth Amendment duty to provide Plaintiff with basic hygiene. In the process, the Defendants exposed Plaintiff to a risk of falling in the shower. As discussed below, several factual disputes, if resolved in Plaintiff's favor, could permit a reasonable jury to find for Plaintiff on his Eight Amendment claims arising from this risk. There is, nevertheless, no basis for the Court to conclude that Plaintiff's right to safer shower access was, in the fact-specific context of this action, "clearly established." As a result, the Defendants are entitled to qualified immunity from Plaintiff's Eighth Amendment claims.
II. The Defendants are not entitled to summary judgment on Plaintiff's ADA and RA claims.
In addition to his Eighth Amendment claims, the Court also permitted Plaintiff to proceed in this action on claims under Title II of the ADA, 42 U.S.C. § 12131 et seq., and under Section 504 of the RA. 29 U.S.C. § 794(a). These claims are "governed by the same legal standard." Martin v. Halifax Healthcare Systems, Inc., 621 F. App'x 594, 601 (11th Cir. 2015). Under both authorities, Plaintiff must show: (1) that he is a qualified individual with a disability, (2) that he was excluded from participation in or denied the benefits of a service, program or activity, and (3) that the exclusion or denial was on account of Plaintiff's disability.
"Further, to recover compensatory damages, Plaintiffs must also show that the exclusion or denial was the result of intentional discrimination." Martin, 621 F. App'x at 601. "Plaintiffs can meet this requirement with evidence that Defendants were 'deliberately indifferent' to their rights under the ADA and the Rehab Act." Id. at 603-04. Accord Liese v. Indian River Cnty. Hop. Dist., 701 F.3d 334, 344-48 (11th Cir. 2012).
The Defendants' summary judgment motions do not address the three showings needed to prove a violation of the ADA or RA. Instead, the Defendants raise the following two arguments. First, the Defendants contend that sovereign immunity bars Plaintiff's ADA claim. Second, the Defendants argue that Plaintiff cannot show deliberate indifference, as needed to recover compensatory damages. As previously discussed, because Plaintiff is a prisoner, and because the record does not reveal a "more than de minimis" physical injury, the Prison Litigation Reform Act independently bars Plaintiff's recovery of compensatory damages.
The Defendants do not separately address, and hence this Recommendation does not consider, whether sovereign immunity bars Plaintiff's RA claims. Eleventh Circuit caselaw in a different context indicates that Georgia "accept[s] federal funds for its prisons." Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004). In turn, this acceptance of funds may work a waiver of immunity. See Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1293 (11th Cir. 2003) ("[42 U.S.C. §] 2000d-7 unambiguously conditions the receipt of federal funds on a waiver of Eleventh Amendment immunity to claims under section 504 of the Rehabilitation Act").
In United States v. Georgia, the Supreme Court ruled that Title II of the ADA validly abrogated sovereign immunity "for conduct that actually violates" the Constitution. 546 U.S. 151, 159 (2006). The Supreme Court left open the question of whether Title II also abrogated sovereign immunity for conduct that does not rise to the level of a constitutional violation, but persuasive Eleventh Circuit authority suggests that Title II does not entail a valid abrogation in this context. See Redding v. Georgia, 557 F. App'x 840, 845 (11th Cir. 2014) ("Redding's allegations did not show that the defendants' conduct violated Redding's constitutional rights, so they were entitled to Eleventh Amendment immunity against his ADA claims"). Hence, Plaintiff's ability to proceed on his ADA claims in this action depends on whether Plaintiff has made out an Eighth Amendment violation.
Four factual issues, when resolved in Plaintiff's favor, could support a jury verdict for Plaintiff on an Eighth Amendment claim of deliberate indifference. First, while the record indicates that Plaintiff wears a prosthetic leg, the record gives no indication as to whether Plaintiff may wear that prosthesis in the shower. Cf. Allen v. Morris, 2010 WL 1382112 at *2 (E.D. Ark. Jan. 6, 2010) ("He wears a prosthesis, which he removes to shower"). Indeed, the record contains extremely little relevant information regarding Plaintiff's prosthesis apart from the Defendants' acknowledgement that Plaintiff needed "a better fitting prosthesis." (Defs.' Facts, Doc. 26-2, ¶ 39). At summary judgment, the Court must construe the limited available evidence in Plaintiff's favor. Accordingly, for purposes of summary judgment, Plaintiff's prosthetic leg provided him with little or no stability in the HSP shower.
Second, the record indicates that Defendant Okonkwo "instructed [Plaintiff] to take a bath in a wash basin" as an alternative to using the HSP shower without a shower chair. (Okonkwo Aff., Doc. 28-3, ¶ 5). No information available to the Court suggests that Plaintiff actually had access to a wash basin, both because the Court lacks evidence regarding Plaintiff's living quarters and because the record indicates that Plaintiff had mobility problems and may have had trouble maneuvering in a prison cell without assistance. See (Defs.' Facts, Doc. 26-2, ¶ 41) ("He has crutches ... but requires a wheelchair"). See also (Compl., Doc. 1, p. 4) ("I spoke with [the Defendants] about issuing me a wheelchair"). Here again, at summary judgment, the Court must construe the limited available evidence in Plaintiff's favor. When viewed in that light, the record — despite Defendant Okonkwo's instructions — does not indicate that Plaintiff had access to a wash basin as an alternative means of showering.
Third, a prison grievance available from Plaintiff's prior action, which was dismissed for failure to exhaust administrative remedies, reads as follows: "Hancock S.P. did have shower chair[s]. I seen them with my own eyes." Grayson v. Bryson, 5:18-cv-95 (MTT) (TQL), EM/ECF Docket Entry No. 18-6, p. 3. By this, Plaintiff may mean that HSP had "standard metal or plastic chair[s]" that, while not approved by prison policy for use as a shower chair, could have served Plaintiff's purposes. (Defs.' Facts, Doc. 26-2, ¶ 2). Here again, little relevant information is available to the Court, and the Court has no information regarding the Defendants' shower chair policy. The Defendants have, for example, submitted no evidence to support their assertions that non-approved shower chairs pose a risk of slipping or of being "taken apart and refashioned into a weapon." (Defs.' Facts, Doc. 26-2, ¶ 2). This lack of evidence and argument prevents the Court from assessing whether the Defendants' shower chair policy was reasonable or instead an "exaggerated response." Turner v. Safley, 482 U.S. 78, 90-91 (1987) (explaining that "if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard"). Without this relevant evidence, judicial deference to the Defendants' asserted shower chair policy cannot preclude, as a matter of law, Plaintiff's recovery on an Eighth Amendment claim of deliberate indifference.
See, e.g., Horne v. Potter, 392 F. App'x 800, 802 (11th Cir. 2010) ("The district court properly took judicial notice of the documents in Horne's first case, which were public records that were 'not subject to reasonable dispute' because they were 'capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned.'") (citing Fed. R. Evid. 201(b)).
Fourth and finally, a different grievance from Plaintiff's prior action suggests that when Plaintiff asked Defendant Ivy, "how do you expect me to shower with one leg," the Defendant responded, "get one of the inmates to help you." Grayson v. Bryson, 5:18-cv-95 (MTT) (TQL), EM/ECF Docket Entry No. 18-6, p. 2. This grievance illustrates a theory of deliberate indifference: that the Defendants knew the HSP shower had no handrails or approved shower chairs and hence would pose a risk of harm to Plaintiff given his amputated leg, and yet, the Defendants made no effort to lessen the risk by, for example, providing a wash basin, assigning prison personnel to assist Plaintiff in showering, or by temporarily waiving prison policy and allowing Plaintiff to use a non-approved shower chair. Cf. Miller v. King, 384 F.3d 1248, 1261-63 (11th Cir. 2004), vacated by, Miller v. King, 449 F.3d 1149 (11th Cir. 2006).
Regarding the conduct at issue in this action, a reasonable jury could find for Plaintiff under both the ADA and the Eighth Amendment. Therefore, sovereign immunity is not a bar to Plaintiff's ADA claims, and accordingly, the Defendants are not entitled to summary judgment. See 42 U.S.C. § 12202 ("State immunity"). See also United States v. Georgia, 546 U.SA. 151, 159 (2006). Accordingly, insofar as the Defendants seek summary judgment on Plaintiff's ADA claims as well as his RA claims, it is recommended that the Defendants' motions be denied. Pursuant to the Prison Litigation Reform Act, however, Plaintiff's potential recovery on these claims at trial should be limited to nominal damages.
CONCLUSION
After a careful review of the record, it is RECOMMENDED that the Defendants' motions for summary judgment (Docs. 26, 28) be GRANTED in part and DENIED in part, such that this action proceed to trial for the resolution of Plaintiff's ADA and RA claims for nominal damages only. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 25th day of June, 2020.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge