Opinion
21-6616
10-05-2022
RODNEY A. KOON Plaintiff-Appellant, v. STATE OF NORTH CAROLINA; BRIAN K. WELLS; DIANE K. BROWNING Defendants-Appellees.
Danielle Rebecca Feuer, O'MELVENY & MYERS LLP, Los Angeles, California, for Appellant. Alex Ryan Williams, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. Samuel S. Weiss, RIGHTS BEHIND BARS, Washington, D.C.; Sabrina S. Strong, Los Angeles, California, Kendall Turner, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
Argued: January 26, 2022
Appeal from the United States District Court for the Eastern District of North Carolina at Raleigh. Louise W. Flanagan, U.S. District Judge. (5:16-ct-03301-FL)
ARGUED:
Danielle Rebecca Feuer, O'MELVENY & MYERS LLP, Los Angeles, California, for Appellant.
Alex Ryan Williams, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF:
Samuel S. Weiss, RIGHTS BEHIND BARS, Washington, D.C.; Sabrina S. Strong, Los Angeles, California, Kendall Turner, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. 1
Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges. 2
RICHARDSON, Circuit Judge
Rodney Koon is a disabled prisoner who walks with a cane, yet he was denied a handicap pass to access the first-floor library for seven months. Because of that denial, Koon was forced to climb two flights of stairs to get to the general-population library. Koon says that this exertion caused him serious pain, made his old injuries worse, and caused him new injuries. While Koon eventually got his handicap pass, he now wants damages for the pain, injuries, and suffering that were caused by that seven-month delay. But under the Americans with Disabilities Act, plaintiffs can only get compensatory damages for intentional discrimination. What showing that requires is an open question in this circuit, but it at least requires deliberate indifference to the prisoner's federally protected rights. Because Koon has failed to establish deliberate indifference, the district court was right to grant summary judgment to the State of North Carolina, and we affirm.
I. Background
Rodney Koon is a state prisoner in North Carolina. Koon caused a fatal car accident while high on drugs and pleaded guilty to two counts of felony death by vehicle and one count of involuntary manslaughter. The same accident that put him in jail also caused his disabling injuries, which have plagued him for years afterward with chronic pain in his hips, his right knee, and his left ankle. They have required surgery and physical therapy, and they still force Koon to walk with a cane, sometimes even requiring a wheelchair for long distances. And the pain gets worse the more he is forced to walk. Given these injuries, North Carolina acknowledges that Koon has a disability and treats him as an "ADA assigned" inmate. 3
Koon was briefly treated at the healthcare complex at Central Prison early in his incarceration. He was then housed at Lanesboro Correctional. As soon as he got to Lanesboro, Koon asked for an accommodation for his disability. J.A. 41 ("I'm not able to go up and down steps without difficulty . . . ."). He was assessed to determine what accommodations, if any, might be required. In that initial evaluation, Koon was granted limitations on certain activities and other modifications based on his injuries. He was given a cane and a bottom bunk. He received a lifting limitation of 25 pounds. He was excused from performing tasks requiring pushing or pulling, and importantly for this case, climbing. The amount of climbing he was allowed "under the ADA" was strict: "none." J.A. 42- 43. The evaluation listed his limitations as "[c]onsiderable" and his condition as "[p]ermanent." Id. Koon did not, however, seek a "handicap pass" at Lanesboro. A handicap pass is different from ADA status and allows a prisoner access to certain areas that are otherwise off limits, places like a handicap library. Koon says that he never applied for a handicap pass at Lanesboro because he didn't need one. According to Koon, he could access everything he needed at Lanesboro, including the library, without ever having to climb or take "even one step." J.A. 88.
A few years later, Koon was transferred to Pender Correctional. He arrived in March. Once there, he realized that the general-population prison library was up two flights of stairs (17 stairs in total), and that made it difficult and painful for him to use the library. There was a handicap library at Pender that was accessible without using the stairs, but it required a handicap pass. Having never pursued a pass while at Lanesboro, Koon set about trying to get one. 4
About two weeks after arriving, Koon submitted an inmate request form to his case manager. "I am an ADA assigned inmate . . . and I'm going on my third week at Pender C.I. and I have not been able to attend the library . . . . Why do I not have a [handicap] pass . . . already?" J.A. 125. Then, during an April sick call, Koon brought up his issues accessing the library with the medical staff. See J.A. 167. The nurse on that sick call saw his swollen knee, saw his climbing restriction, confirmed the climbing restriction on the computer, but still refused to give him a handicap pass. According to Koon, the nurse said that "without a Pender Prison handicap pass/card," Koon "would just have to keep going/using the Pender regulator population library, which is up seventeen (17) steps!" J.A. 168.
But that nurse would not have been able to provide the handicap pass, even if she decided that Koon needed one. At Pender, getting a pass only starts with a sick-call request and an initial nursing evaluation. From there, a request must be made to a medical provider (a doctor or a nurse practitioner) to make another evaluation-though, it needn't be face-to-face. See J.A. 52 (noting that a medical provider must approve a handicap pass "after evaluating the inmate and/or reviewing his medical records"). The handicap pass could be given only after that second evaluation.
Koon kept trying though. He submitted three more sick-call requests that spring and into summer, in April, May, and June. While they were not all focused on the handicap pass, each of those requests to some extent asked for a pass to access the handicap library. In June, all this led to a review of his records by the medical staff who could provide the pass he wanted. 5
The request went to Nurse Practitioner Diane Browning. There's some evidence that Browning had recently been thrust into her position by the sudden death of a superior, and that because of her inexperience, she wasn't fully comfortable with all the processes and systems required to do the job. When Koon's request for a handicap pass came across Browning's desk, it appeared in the computer system as a request for a renewed handicap pass. All handicap passes have expiration dates, so renewals were required from time to time. It's not clear from the record how the request got entered in the system as a renewed pass rather than for an initial pass. But Browning was unaware that anything was off, so she treated it like any other request for a renewed pass. She reviewed Koon's medical records and saw that he had been assessed at Lanesboro and that no handicap pass was issued there. Since Koon had never been granted a handicap pass in the North Carolina prison system, she denied his request for a renewed handicap pass. She did not meet with Koon or examine him, nor did she look at the prison database that listed inmates' medical restrictions; she felt she didn't need to. See J.A. 53; see also Appellant's Br. 30-31. Browning did not know that Koon had submitted multiple sick-call requests, nor that Koon was an ADA prisoner with a climbing restriction. In her declaration, she admits that if she were aware of those details, she would have approved the request for a handicap pass. And 6 while there is some evidence that she knew of Koon and had seen him walking around the facility-meaning she may have known he walked with a cane-walking with a cane does not automatically entitle you to a handicap pass.
After being denied, Koon submitted an administrative grievance. The prison responded to that grievance in July, after a staff investigator went over it, suggesting that a handicap pass wasn't medically necessary and that even though he walked with a cane, he could access the library for the general population. Koon appealed, and Bryan Wells, prison administrator and a Defendant here, confirmed the denial, telling Koon in writing that "staff has adequately responded to your complaint." J.A. 48. And Koon's final administrative remedy was denied in late August. "From this review, it appears that staff has adequately addressed this inmate's grievance concerns." J.A. 49.
During the time he filed all these formal requests, Koon was informally asking for help from anyone who would listen. Koon says that he stopped a prison official called CPT Harris two times in April and asked him for help. J.A. 46 ("[H]e wrote my name down each time."). Koon says he spoke to a Captain Hunt in April and asked for his help with the problem, though the circumstances of those meetings aren't clear from the record. In June, Koon spoke to Bryan Wells in person about the issue, and then sent a letter to Wells before following up with a grievance report. During a meeting with a chronic-disease nurse about unrelated medical issues, he again brought up the issue. And he met with and discussed the issue with his case manager Mr. Shelton in September. From all that came nothing, at least until the fall. 7
Koon finally got a handicap pass in October, during a sick call with Dr. Joseph Maides. According to Koon, Dr. Maides was new at Pender, and when he looked at Koon's record-in other words, when he looked at everything that Browning was supposed to look at-he immediately issued the pass. But even with the pass, Koon says the damage was already done when he was forced to walk to the library up two flights of stairs from March to October.
Koon filed this pro se civil suit seeking compensatory damages for the aggravated injuries to his legs. Koon claims that he worsened his injuries during the time he spent going up and down the 17 steps to the general-population library, causing swelling in his bad knee, hurting his good leg through over-compensation, and causing serious pain.
The district court granted summary judgment to North Carolina on Koon's ADA claims because "the record reflects that defendant Browning's denial of plaintiff's request to renew a handicap pass implicates, at most, negligence on defendant Browning's part, and the ADA does not provide a remedy for negligence." Koon v. North Carolina, 5:16-CT-3301-FL, 2021 WL 1206579, at *5 (E.D. N.C. Mar. 30, 2021). Koon appealed, and we have jurisdiction. 28 U.S.C. § 1291.
II. Discussion
Koon sued under the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973, claiming a right to a reasonable accommodation. See 8 Seremeth v. Bd. of Cnty. Comm'rs, 673 F.3d 333, 336 (4th Cir. 2012); see also 42 U.S.C. § 12112(b)(5)(A) (Discrimination includes "not making reasonable accommodations"). Because Koon was eventually given the accommodation he wanted, the only remedy left for him is monetary damages. But to get compensatory damages for such a claim under the ADA-which is all that Koon asks for at this point-a plaintiff must prove intentional discrimination. See Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994); Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999). So to obtain the only remedy he seeks here, Koon must both make out a violation of the ADA's reasonable-accommodation right and show that the violation was intentional. Before digging into that discussion, we must discuss two threshold issues.
A. Threshold Issues
To find for Koon and send this ADA claim to a jury, we would need to both wrestle with an intricate Eleventh Amendment issue and take sides in a circuit split on the level of intent required for damages under the ADA. Given their complexity, we should only decide these issues if we must. And here we need not.
First, sovereign immunity: While Congress expressed a clear intention to abrogate state sovereign immunity with the ADA, we must still ask whether it "had the power to 9 give effect to its intent" in this area under Section 5 of the Fourteenth Amendment. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 484 (4th Cir. 2005) (quoting Tennessee v. Lane, 541 U.S. 509, 518 (2004)). Here, that question would likely require using the intricate congruence-and-proportionality test to determine whether this prophylactic legislation "substantively redefine[d]" the Fourteenth Amendment rights. Id. at 484-85 (citing City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997)).
As to the circuit split, courts largely agree that compensatory damages are only available to ADA plaintiffs who prove intentional discrimination, but there is a disagreement about what standard to use: deliberate indifference or something more. Compare Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334, 345 (11th Cir. 2012), with Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 575 (5th Cir. 2002). While most courts favor the deliberate-indifference standard, our court has not yet determined the appropriate standard.
You can see the complexity here. But we can avoid these difficult issues by assuming for argument's sake that they both favor Koon, that the friendlier standard of deliberate indifference applies, and that sovereign immunity poses no problem to his claim. Even then, Koon cannot win because he has not put forward enough evidence to create a genuine issue of material fact of deliberate indifference by the prison's officers or agents. 10
B. Deliberate Indifference to Reasonable Accommodation
The deliberate-indifference standard is a common one in the law, though not one we have often applied to disability discrimination. In essence, the deliberate-indifference standard starts with determining whether there was-objectively speaking-an ongoing or likely violation of some federal right, and then moves on to determining whether a defendant had the appropriate mental state-subjectively speaking-toward that federal-rights violation. See Scinto v. Stansberry, 841 F.3d 219, 225-26 (4th Cir. 2016) (applying deliberate indifference in the Eighth Amendment context). In other words, there is an objective question about rights and duties, and then a follow-up question about subjective mens rea. Was there a violation, and did they know about it?
In the ADA context, other circuits have used a two-step deliberate-indifference test that requires: (1) knowledge that a federally protected right is substantially likely to be violated, and (2) failure to act despite that knowledge. See, e.g., S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 265 (3d Cir. 2013); Barber ex rel. Barber v. Colo. Dep't of Rev., 562 F.3d 1222, 1229 (10th Cir. 2009). We largely agree with that 11 formulation, with the caveat that a plaintiff must begin by showing an ongoing or likely violation of a federally protected right before moving on to prove deliberate indifference through knowledge of that right and a failure to respond appropriately. If there wasn't any ADA violation (or any substantially likely ADA violation), there was nothing to be deliberately indifferent about. So to make out deliberate indifference in an intentional-discrimination case like this, we should look first to whether there was a likely or ongoing violation of federal rights. Only then may we move on to the mental state of deliberate indifference, which requires knowledge of a substantial risk of a deprivation of those rights and a failure to act to resolve that risk. We take each part in turn.
a. Right to Reasonable Accommodation
So we begin with whether there was a substantially likely federal-rights violation, i.e., whether there was a violation of the ADA. To make out a basic ADA violation, Koon must show that he: (1) has a disability; (2) was otherwise qualified to get some public program, service, or activity; and (3) was denied that program, service, or activity on the basis of his disability. Nat'l Fed. of the Blind v. Lamone, 813 F.3d 494, 502-03 (4th Cir. 2016). One way to prove the third prong, denial on the basis of disability, is to prove a "failure to make reasonable accommodations." Id. at 503 n.5 (citing A Helping Hand, LLC v. Balt. Cnty., MD, 515 F.3d 356, 362 (4th Cir. 2008)).
Koon can make out the first two parts of this standard. A disability is "a physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. § 12102(1)(A). Everyone agrees that Koon is disabled because of his chronic pain and mobility issues. North Carolina categorizes him as an ADA inmate for that very reason. 12 Next, the prison library is a "service" under § 12132 of the ADA. See Penn. Dep't of Corrections v. Yeskey, 524 U.S. 206, 211 (1998). And the prison's own policies demand that all inmates have access to library materials.
The only step of the ADA violation worth more than cursory analysis is whether Koon was, in the language of § 12132 of the ADA, "by reason of such disability . . . subjected to discrimination." Congress has told us that disability "discrimination" includes not just "outright intentional exclusion" but also lesser injustices like "failure to make modifications to existing facilities and practices" and "relegation to lesser services, programs, activities, benefits, jobs, or other opportunities." § 12101(a)(5). From that language, we can derive some right to accommodation. But Congress has also told us that public entities are responsible only for "reasonable modifications." § 12131(2) (emphasis added). The Attorney General has the power to promulgate regulations implementing the ADA, and those regulations add further clarity here. See Nat'l Fed. of the Blind, 813 F.3d at 506. Public accommodations must be "readily accessible" and "usable" without requiring "fundamental alterations" or causing "undue financial and administrative burdens." 28 C.F.R. § 35.150(a). From all this, we can see that disability discrimination includes the failure to provide reasonable modifications that would make accommodations accessible to the disabled without causing an undue burden to the program.
In the words of the Supreme Court, we ask whether a disabled inmate was denied "meaningful access" to the benefit. See Alexander v. Choate, 469 U.S. 287, 301 (1985) (discussing nearly identical language in § 504 of the Rehabilitation Act); see also Wright v. N.Y. Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (looking for "effective," if not "perfect" access). 13 And because "meaningful access" is the standard, it is not a complete defense to say that some disabled prisoners overcame the hurdle. See Nat'l Fed. of the Blind, 813 F.3d at 506. But as we've said, even where "meaningful access" is denied, a public entity need not make "fundamental" or "substantial" modifications to accommodate a disabled inmate; they must only make "reasonable" accommodations. See Alexander, 469 U.S. at 300; 28 C.F.R. § 35.150(a)(3).
The line between the reasonable accommodation and the substantially burdensome accommodation may not be obvious in all cases but giving a prisoner access to the first-floor library is comfortably on the reasonable side of the line. And Koon has at the very least created a genuine issue of fact on the issue of a denial of "meaningful access," given the evidence he has put forward about the pain and physical damage caused by going up and down the stairs to the general-population library.
North Carolina half-heartedly argues in its brief that because Koon physically got himself to the general-population library, he was not denied meaningful access to the benefit. But that fact alone cannot resolve the genuine issue of material fact on meaningful access. If a prisoner without the use of his legs left his wheelchair at the bottom of the stairwell and crawled up to the library, no one would doubt it was a denial of meaningful access. Wright, 831 F.3d at 73 (finding that access is not meaningful where it is "so inadequate that it deters the plaintiff from attempting to access the services"). The question is whether the pain and challenge of accessing the library was such that it denied him meaningful access, which would look to the amount of pain he really felt, what damage was done, and so on, and Koon has done enough to make a fact issue of that question. 14
Koon has made an adequate showing here to get to a jury on whether there was an objective violation of his federally protected rights under the ADA. In other words, construing the evidence in the light most favorable to Koon and drawing all inferences in his favor, he was owed a handicap pass to access the ground-floor library. So his claim depends on whether he has put forward enough evidence to make out the mental state of deliberate indifference toward that federal right. That is the next requirement and the one that Koon does not offer sufficient evidence to meet.
b. Deliberate Indifference
Deliberate indifference is, at bottom, an actual-notice standard. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998). Simple failure to comply with the law is not deliberate indifference. It is not enough simply to point to what could or should have been done. That is the language of negligence. Deliberate indifference requires a "deliberate or conscious choice" to ignore something. See City of Canton v. Harris, 489 U.S. 378, 389 (1989) (cleaned up). That is more like criminal-law recklessness than mere negligence. Anderson v. Kingsley, 877 F.3d 539, 544 (4th Cir. 2017) (discussing Farmer v. Brennan, 511 U.S. 825, 836-40 (1994)). An official must know of the dangers to federal rights and nonetheless disregard them. The official must know of the facts from which a federal-rights violation could be inferred and then actually draw the damning inference. See id. Deliberate indifference is a high bar.
With that said, knowledge can be shown by circumstantial evidence. Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015). When a risk was so "obvious" that an official must have had knowledge, that can get a deliberate-indifference question to a jury. But it 15 must be truly obvious; we should avoid transforming deliberate indifference back into negligence by finding that the reasonably prudent person would have surely known of the issues. We look to whether it was so obvious they must have known, instead of whether it was so obvious they should have known. The Supreme Court has suggested that circumstantial evidence might make out a fact question on deliberate indifference where the rights violations were "longstanding, pervasive, well-documented, or expressly noted by the prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it." Farmer, 511 U.S. at 842 (cleaned up). Again, it's a high bar.
In general, good-faith efforts to remedy the plaintiff's problems will prevent finding deliberate indifference, absent extraordinary circumstances. See S.B. ex rel. A.L. v. Bd. of Educ., 819 F.3d 69, 77 (4th Cir. 2016). That concept has been applied to areas much like this one, areas like medical malpractice. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). The idea is a simple one that flows naturally from the concept of deliberate indifference: Where medical personnel examine and diagnose a patient, where they try to help but fail to live up expectations, that is more naturally described as negligence than indifference. See Scinto, 841 F.3d at 225 (suggesting that disagreements over proper medical care rarely meet deliberate indifference "absent exceptional circumstances").
Finally, because deliberate indifference is an actual-notice standard, liability can be imputed to an entity like North Carolina only when some state official actually draws the damning inference. Collective knowledge cannot make out deliberate indifference. 16 See Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008). Instead, as we have sometimes said in the Title IX context, "an institution can be held liable [for deliberate indifference] only if an official who has authority to address the alleged discrimination and to institute corrective measures has actual knowledge of discrimination and fails adequately to respond." Jennings v. Univ. of N.C. , 482 F.3d 686, 700 (4th Cir. 2007) (en banc) (quoting Gebser, 524 U.S. at 290) (cleaned up). Other circuits have imported this formulation of deliberate indifference from the Title IX context into the ADA context. See Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334, 349 (11th Cir. 2012) (citing Gebser, 524 U.S. at 290). So deliberate indifference here requires that Koon prove that some North Carolina official with the authority to address his problem both had knowledge of his federally protected rights and nonetheless failed to help him.
To start, Koon cannot argue that the prison failed to do anything at all. His requests for a medical evaluation were not neglected entirely. There is abundant evidence, most importantly in Koon's own statements, that North Carolina responded to his sick-call requests and administrative grievances. The state provided Koon with medical evaluations, as he requested. In doing so, North Carolina did more than nothing, even if Koon wanted a different outcome. And beyond the evaluations, the prison heard multiple administrative grievances and appeals, again giving Koon's requests a hearing. 17
Koon argues, instead, that officials in that process were deliberately indifferent to his needs. From there, Koon mainly focuses on two North Carolina officials who he argues were deliberately indifferent: Nurse Practitioner Diane Browning and Administrator Bryan Wells. But Koon has not made the showing required to create a genuine issue of fact that either of those officials was deliberately indifferent to Koon's right to reasonable accommodation.
Koon's best arguments for deliberate indifference are against Browning, but even these aren't enough. We know that Browning, like all staff at the prison, received ADA training, so maybe that makes out a genuine fact dispute that she had some familiarity with the legal requirements of reasonable accommodations. Browning also admitted in an affidavit that if she had known about Koon's ADA status and the climbing restriction, she 18 would have given Koon a handicap pass. That admission also suggests she knew that a no-climbing, ADA inmate would be owed a pass under the ADA. There is also some evidence that she knew who Koon was and saw him walking around Pender-meaning that she may have known he walked with a cane. If you then assume that, as an employee of Pender, she knew its layout, she would have known that the general-population library was up two flights of stairs and that the only way to access the handicap library was with a handicap pass. If accepted, these assumptions might make a start toward showing knowledge of a likely ongoing violation of reasonable accommodation. But even with this chain of assumptions, Koon cannot create a genuine fact question for the jury.
Even if we assume that Browning knew Koon well enough to match his name on the computer screen to the face of the inmate she saw walking around and therefore knew Koon walked with a cane, there is no evidence that walking with a cane was enough by itself to get a handicap pass. See J.A. 52, 47. Next, constructive knowledge is not enough, so even though there was a database that listed Koon's climbing restriction, there is no evidence to suggest that Browning looked at that database before rejecting the pass. And Browning says that the request came through as a renewed handicap pass, not as a first- 19 time pass. As the request was for a renewed pass, her evaluation was quick: She looked briefly at his medical records, saw that he was at Lanesboro where he never had a handicap pass, and knowing that he'd never had one, denied his renewal request.
Koon claims that she should have looked more carefully at his medical records; she should have looked at the database listing inmates' medical restrictions; she should have talked to him, asked about his restrictions, and examined his knee; she should have talked to any of the other prison staffers who knew his mobility issues and knew what he needed. But all those "shoulds" are the language of negligence, arguments about what a reasonably prudent person would have done. Saying that she should have done a better examination is to make a kind of medical malpractice claim, and we know that cannot be the basis of deliberate indifference. Estelle, 429 U.S. at 106. Saying that she should have known what others knew is again a claim about negligence, a claim that she wasn't reasonable. Deliberate indifference requires that Browning knew that Koon likely could not 20 meaningfully access the library as was his right and nonetheless failed to give him a pass. There isn't enough in this record to create a genuine issue of material fact.
The dissent disagrees, pointing to inferences that could be drawn in Koon's favor. But we may only draw inferences that "fall within the range of reasonable probability" based on evidence in the record. Thompson Everett, Inc. v. Nat'l Cable Advert., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995). A permissible inference must be reasonably probable given the facts, not just conceivable or possible. So we must reject tenuous inferences that rest upon speculation and conjecture. Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir. 1995). In our view, the dissent's efforts to imagine inferential leaps goes too far. For example, the dissent reasonably infers from evidence that Browning had seen Koon around the facility that Browning had knowledge that Koon used a cane and walked with a limp. But it then seeks to stack on top of that inference the suggestion that Browning must have actually known that Koon could not meaningfully access the library. While the first inference is reasonably probable given the evidence, the stacked inference is not. See Stone v. Liberty Mut Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997) (The nonmoving party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another" (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). Based on the evidence here, we cannot infer that Browning herself had actual knowledge that Koon's statutory rights were being violated by his lack of a handicap pass.
Koon's claims against Wells fare no better. The thrust of Koon's arguments about Wells is that he failed to do a thorough evaluation of the administrative grievance, that he simply "rubber-stamped" Browning's evaluation. We know that Wells met with Koon and 21 that Koon told him about his issues with the handicap pass. But Wells responded to the administrative grievance by relying on Browning's denial and the staff's statement that the handicap pass was "determined to not be medically necessary" as Koon "did not request orderly assistance." J.A. 47. And even assuming that relying on Browning's determination was wrong (given that Koon was challenging that determination as faulty), Wells also relied on the analysis of a staff investigator. That Koon was later granted the pass suggests that these were bad assumptions and that the pass was medically necessary. Koon argues that if Wells had spoken to Browning, he would have known that no real medical evaluation had taken place, and together they could have worked out that Koon needed the handicap pass to access the library, which was his right under the ADA and the prison rules. But again, this is the language of negligence: should have and could have and if only. It just doesn't rise to deliberate indifference. Koon offers no evidence that could lead a reasonable jury to conclude that Wells had actual knowledge that Koon was owed a handicap pass and intentionally failed to give him one.
Because Koon has not created any genuine dispute of material fact here that could lead a reasonable jury to find that either individual defendant or any other agent of North Carolina was deliberately indifferent to his federally protected rights under the ADA, the district court was right to grant summary judgment to Defendants.
* * *
Seven months was too long to wait for meaningful access to the prison library. It seems likely that Koon was owed a handicap pass not only as a matter of fairness but also as a statutory right under the ADA. But Koon already has his handicap pass. So he now 22 sues to get damages for the time he was without one, and to get damages, a plaintiff must at least offer sufficient evidence to show that prison officials were deliberately indifferent to his rights. On this record, Koon has failed to make that showing, so the district court must be
AFFIRMED. 23
WYNN, Circuit Judge, concurring in part and dissenting in part:
I concur in part with the majority opinion. Specifically, I agree that it would be unwise to address the sticky issue of sovereign immunity on the thin briefing before us. I also concur with the majority opinion's articulation of the deliberate-indifference standard, as well as its conclusion that plaintiff Rodney Koon established his right to a reasonable accommodation-access to a first-floor library-was likely violated.
But I must dissent from the majority opinion's conclusion that Koon failed to create a genuine dispute of material fact regarding Defendants' deliberate indifference. The prison staff at Pender Correctional Institution were well aware that Koon suffered from debilitating hip, leg, and ankle pain stemming from a motor-vehicle accident that shattered his femur and fractured his hip. After all, Koon's medical file designated him as an Americans with Disabilities Act ("ADA") inmate, and Koon had submitted numerous sick-call requests detailing his movement restrictions and ADA status. Prison staff had also observed Koon walking around with his cane. On several of these occasions, Koon spoke directly to prison staff regarding his disability. He also described his problem to the prison warden in person, in a letter, and in a formal grievance he filed on the basis of his disability.
Prison staff also knew that the ADA required them to reasonably accommodate Koon's disability. But instead of heeding that statutory mandate, for months, prison staff ignored or flatly denied-on the thinnest of pretexts-Koon's request for a handicap pass that would allow him to use a ground-floor library. Instead, they quite literally watched as he hopped and hobbled up and down the seventeen steep steps to the regular library. Unsurprisingly, the strain from these exertions caused Koon's surgically repaired legs to 24 swell for weeks, and eventually contributed to a medial meniscus tear. Even after prison staff reviewed the MRI showing Koon's meniscus tear, they continued to do nothing for months.
That surely is enough to survive a motion for summary judgment if we faithfully apply the Rule 56 standard. Under that standard, we must consider the evidence in the light most favorable to Koon. The majority opinion, however, pays lip-service to this basic principle and opts instead to view nearly every dispute through Defendants' rose-colored lenses. Because that misapplication of the summary-judgment standard usurps the role of the jury and encroaches on rights protected by the Seventh Amendment, I must respectfully dissent.
I.
Before I address the majority opinion's misapplication of Rule 56, I must flesh out a few of the facts that are not mentioned in the majority opinion.
A.
On August 11, 2013, a couple hired limousine driver Rodney Koon to take them to the Asheville Regional Airport. Koon, however, was still high from "an all-night binge of crack cocaine." J.A. 37. During the trip, Koon drove off the road and slammed into a tree at 50-60 miles per hour, killing the couple and their unborn child.
Though Koon survived, the impact from the crash broke his right femur in three places, fractured his left hip, injured his left ankle, and caused him to "spen[d] nine days 25 in a coma." J.A. 37. The femur and hip fractures were serious enough to require surgical intervention. As part of the surgery, doctors inserted metal rods into Koon's femur and hip to hold the broken bones together. Though these fractures have since healed, Koon continued to experience pain in his right knee, left hip, and left ankle for years following the crash.
In 2014, Koon pleaded guilty to two counts of felony death by vehicle and one count of involuntary manslaughter and was sentenced to serve between one hundred forty-six and two hundred months' imprisonment.
For a time, Koon was housed at North Carolina's Central Prison. While at Central, Koon stayed at the prison healthcare complex for around forty days. In his discharge summary, the doctor treating Koon described Koon's history of femur and hip fractures as well as the "internal fixation and placement of rods" to support said fractures. J.A. 57. The doctor also noted that, due to his lower-body injuries, Koon "walked with an antalgic gait"-a limp caused by pain-and "ambulate[d] with [a] cane for short distances and [a] wheelchair for long distances." J.A. 57. An X-ray of Koon's knee showed mild "patellofemoral compartment osteoarthritis" and swelling. J.A. 57. To keep Koon's pain in check, the doctor prescribed Tylenol and ibuprofen and recommended Koon continue to use a cane and wheelchair to get around.
During his time at Central, Koon attended physical therapy sessions with other inmates. At therapy, Koon attempted to climb a three-step prop, but was unable to do so without "difficulty or pain." J.A. 85. Due to that pain, he was reduced to hopping and jumping up and down the stairs to complete his exercise. 26
Koon was eventually transported to Lanesboro Correctional Institution. Shortly after he arrived at Lanesboro, Koon submitted a reasonable-accommodation request form to prison authorities. In his request, he detailed the "intensive damage to [his] right leg (femur, knee) which [is] held together by rods," as well as his left hip fracture. J.A. 41. He noted that he was unable to "walk, sit[,] or stand for long periods of time" and "some days not at all." J.A. 41. On those days that he was able to get around, he could only do so with the assistance of a wheelchair or cane. He further highlighted that he was unable "to go up and down steps without difficulty" or "push, pull[,] or carry anything with much weight to it." J.A. 41. Due to these limitations, he asked the Department of Public Safety ("the Department") to declare him disabled and exempt him from certain activities. To facilitate the Department's inquiry, Koon authorized the agency to access his health information.
The Department approved Koon's reasonable-accommodation request in less than a month. It agreed that Koon had "considerable" and "[p]ermanent/[l]ifelong" physical limitations that made him a "qualified person with a disability" under the ADA. J.A. 42- 43. As part of its approval, the Department granted him access to a cane and a bottom bunk, as well as temporary access to a wheelchair. It also listed several medical restrictions, including total bars on climbing, pushing, or pulling, as well as a 25-pound lifting restriction.