Opinion
Case No. 3:13-cv-126-KRG-KAP
09-04-2018
CHAKA MATTHEWS, Plaintiff v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendants
Report and Recommendation
Recommendation
The remaining defendant and the plaintiff have filed cross motions for summary judgment. The defendant's at ECF no. 45 should be granted and the plaintiff's at ECF no.49 should be denied.
Report
In 2011, plaintiff Matthews was an inmate at S.C.I. Somerset. There is evidence from which a jury could find that on July 31, 2011, he fell down a flight of stairs and suffered contusions. When he was no longer an inmate and just shy of two years later, on June 20, 2013, Matthews filed a counseled complaint against the Pennsylvania Department of Corrections, Corrections Officer David A. Hunter, Corrections Officer Arnone, Medical Director John R. Benner, Michele Swanhart, Danielle Glotfelty, and Corizon Health, Inc., alleging that they were liable to him for violations of the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act.
On my recommendation, the court dismissed the amended complaint, and the Court of Appeals affirmed the dismissal of all the Eighth Amendment claims and all the ADA and RA claims except for those against the Pennsylvania Department of Corrections. ECF no. 29-2, Memorandum Opinion. The remaining parties proceeded to discovery on the claims (really one claim based on the parallel requirements of the ADA and the RA), and have filed cross motions for summary judgment.
I.
Before discussing liability for the ADA/RA claim I want to reiterate what I said at an earlier stage about the inadequacy of evidence of causation for, at least, plaintiff's physical injuries suffered in the fall on July 31, 2011. The posture of this matter on appeal did not require the Court of Appeals to comment on the issue but it is clear that even assuming a violation of the ADA there is no genuine issue of fact that the plaintiff's fall was proximately caused by any violation of the ADA. That plaintiff was climbing a set of stairs to the tier where his cell was located is a but-for condition, only, of his fall down those steps. Consider a slip and fall on a cruise ship where it is assumed that if the defendant had provided a completely non-slip bathtub floor the plaintiff would not have slipped, but just as with Matthews, there is no evidence in the record about the fall itself. If there is no evidence in the record as to whether the plaintiff was standing on a non-slip strip or a smooth portion of the tub at the time of her fall, the plaintiff has failed to prove anything more than but-for causation. She is out of court because there is no evidence that the lack of a full non-slip surface proximately caused her fall. Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir.1996). As the Court of Appeals stated, in terms applicable to the analysis of causation in Matthews' case: Simply put, increased risk of harm due to a defendant's negligence, standing alone, does not permit an inference that an injury, more probably than not, was caused by the negligence. 82 F.3d at 76. Here, if a corrections officer had negligently left a pillow on the stairs immediately before plaintiff passed that way and plaintiff said he slipped on it, one could say that there is a jury question whether a corrections officer's negligence caused plaintiff's injury (although he would be out of court for different reasons, see Daniels v. Williams, 474 U.S. 327, 332 (1986) and there would be a significant contributory negligence issue). If, however, plaintiff had passed back and forth past that pillow for days and testified only that he fell on the tenth day, it would be hard to say with a straight face that there is an issue of fact that the placement of the pillow caused the fall ten days later.
And that in a nutshell is the state of the record: plaintiff, with advice of counsel, at the summary judgment stage, and with several years to reflect on the matter, does not allege anything about the fall itself other than its occurrence. Matthews Declaration ¶¶ 51-52. Arnone's deposition confirms the lack of evidence that any inmate or corrections personnel saw the fall or the events preceding the fall either. I ignore Arnone's skepticism about whether a fall ever took place. But Matthews has offered nothing about his condition or that of the stairs on July 31 that would permit a jury to find that his fall was caused by Swanhart's not re-assigning plaintiff to a different cell on July 22, any more than a jury could find that because Matthews's request came several days after he received a disciplinary citation for failure to stand for count it was the disciplinary citation that proximately caused Matthews's request. Legal causation requires more than temporal succession.
II
Under Fed.R.Civ.P. 56(a), summary judgment is proper when, viewing the evidence in the light most favorable to the non-moving party and drawing all inferences in that party's favor, there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The party opposing summary judgment may not rest upon the allegations or denials of the pleadings but must set forth specific facts showing that there is a genuine issue for trial. See Matthews v. Villella, 442 Fed. Appx. 623, 625 (3d Cir.2011)
The ADA and RA's implementing regulations require public entities to make reasonable modifications to their programs and policies in order to avoid discrimination on the basis of disability. 28 C.F.R.§ 35.130(b)(7). A claim of discrimination requires proof, and therefore at the summary judgment stage requires a genuine issue of fact, that a plaintiff 1) has a disability; (2) was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities; and (3) that the exclusion or denial was "by reason of" the disability. See 29 U.S.C.§ 794; 42 U.S.C.§ 12132. A disability is a physical or mental impairment that substantially limits one or more major life activities, having a record of such an impairment, being regarded as having such an impairment. 42 U.S.C.S 12102(1). For a slightly different grouping of the elements, see Geness v. Cox, F.3d , 2018 WL 4087887, *12 (3d Cir.Aug. 28, 2018).
A
The record permits a jury to find that Matthews began experiencing swelling and pain in his left heel and ankle in early 2011, and that this caused him to seek treatment from the medical department at Somerset. Although at first Matthews' complaints could not be confirmed, by May 2011, after diagnostic tests including an x-ray the medical director at Somerset, Benner, had diagnosed Matthews with Achilles tendinitis. By July 2011, a physician assistant, Danielle Glotfelty, had prescribed an air cast and Meloxicam (a nonsteroidal anti-inflammatory drug) and directed Matthews to limit his participation in sports and avoid walking on wet or uneven surfaces.
Matthews had a top bunk in a two-tier bunk system, in a cell in the upper tier of cells. A medical evaluation form dated July 6, 2011 shows that Matthews was restricted from programs such as sports activities but had no bunk, cell, or housing restrictions placed on him. On July 17, 2011, Matthews was too slow to descend from his bunk for a count, was issued a disciplinary citation from corrections officer Arnone and ultimately received a seven-day cell restriction for failing to stand for count after a hearing before the unit manager, Hunter. This restriction did not prevent him from further medical treatment: on July 20, 2011 the air cast was replaced with a fiberglass cast and Matthews was prescribed crutches for six weeks by a nurse practitioner, Michelle Swanhart. At this point, that is, several days after the disciplinary citation, Matthews asked Swanhart to recommend a reassignment to a bottom bunk or a bottom-tier cell, but Swanhart did not make the recommendation. On July 21, 2011 Matthews asked a corrections officer, Arnone, for a bottom bunk and he also submitted an Inmate Disability Accommodation Request Form asking to be moved to the bottom tier or cell and a bottom bunk because he did not feel stable going up and down the steps. The request form also asked for a wheelchair. Matthews attempts to mislead in ¶47 of his declaration by asserting that his request was submitted "so that I could go to the cafeteria [and other programs and services]" when in fact his request mentions no such thing.
Matthews' requests for a lower bunk in a lower-tier cell were granted after his fall on July 31, 2011. Matthews was also prescribed pain medication, and he also sought a neck brace and a back brace but those were denied.
Matthews alleges that his disability is the mobility impairment he suffered as a result of tendinitis, and that the exclusion from programs or denial of benefits of services was that his limited mobility meant he was sometime unable to use the phones, he missed meals due to his inability to reach the dining hall in time, and he went to the commissary, to recreation activities, and to religious services less often. Matthews also asserts that his disciplinary citation violates the ADA because his failure to stand for count was caused by his disability and therefore the disciplinary citation should never have been issued. Matthews argues that these events were discrimination because of his disability.
B
Because plaintiff is no longer an inmate any question of injunctive relief is moot and his complaint as amended seeks money damages and declaratory judgment. Declaratory relief must be more than a retrospective opinion that the plaintiff was wrongly harmed by the defendant." Jordan v. Sosa, 654 F. 3d 1012, 1025 (10th Cir.2011), quoted with approval in Mollett v. Leicth, 511 Fed. Appx. 172, 174 (3d Cir. 2013). In this particular case the Prison Litigation Reform Act, as codified at 18 U.S.C.§ 3626(a)(1)(A), prohibits the award in a prison civil rights action of any "prospective relief" which is not "necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." The definition of prospective relief is contained in 18 U.S.C.§ 3626(g)(7): "all relief other than compensatory money damages." A declaratory judgment is by definition not an award of compensatory damages and does not "correct a violation" of a plaintiff's rights, so it is precluded by the PLRA.
Even if the PLRA were not applicable, a declaratory judgment as a form of relief distinct from compensatory damages is inappropriate here for the reason explained by the Supreme Court in Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995): By the Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court's quiver; it created an opportunity, rather than a duty, to grant a new form of relief to qualifying litigants. Consistent with the nonobligatory nature of the remedy, a district court is authorized, in the sound exercise of its discretion, to stay or to dismiss an action seeking a declaratory judgment before trial[.] A retrospective declaration that plaintiff's rights were violated, even if psychologically satisfying to the plaintiff, is in the absence of an injury supporting an award of compensatory damages legally meaningless since it effectively amounts to an advisory opinion.
Because proof of compensatory damages is necessary to avoid mootness of any claim by Matthews against the Pennsylvania Department of Corrections, there must be sufficient evidence for a jury to find not only an ADA violation but also that the Pennsylvania Department of Corrections acted with deliberate indifference to the risk of an ADA violation: compensatory damages are not available absent proof of intentional discrimination. Haberle v. Troxell, 885 F.3d 170, 181 (3d Cir.2018), quoting S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir.2013). The Supreme Court has described what the mental state of deliberate indifference requires:
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the context of an ADA claim, deliberate indifference requires (1) knowledge that a federally protected right is substantially likely to be violated ... and (2) failure to act despite that knowledge. S.H. ex rel. Durrell v. Lower Merion Sch. Dist., supra, 729 F.3d at 265. In other words, Matthews must show a genuine issue of fact that the Pennsylvania Department of Corrections acted with deliberate indifference to the risk of an ADA violation. Haberle v. Troxell, supra, 885 F.3d at 181.
C
That being the case, summary judgment follows for the remaining defendant almost as the law of the case. At the earlier stage of this proceeding the Court of Appeals, before the formula given in S.H. ex rel. Durrell v. Lower Merion Sch. Dist. was expressed in Haberle v. Troxell, already noted that plaintiff at most alleged negligence by the medical care providers in failing to assign him to a lower tier of cells and that the corrections staff was not unjustified in acting in the belief that if Matthews needed something the medical staff would recommend it. Mem. Op. at 13-14. Deliberate indifference is deliberate indifference whether the claim arises under the Eighth Amendment against an individual defendant or under the ADA/RA against the Pennsylvania Department of Corrections.
Even if Haberle were ignored, there is insufficient evidence to allow a finding of deliberate indifference. It is black-letter law that an error is not deliberate indifference without the additional subjective element that the defendant is aware of the error. Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir.2012). It is also settled beyond doubt that a medical professional is required to proceed on the basis of signs and symptoms. A medical professional can reasonably act on the principle that not every patient, inmate or otherwise, is an accurate and truthful reporter of medical conditions. Simply put, that a patient complains about a condition does not mean the medical professional "knows" for purposes of the subjective element of deliberate indifference that the condition exists. This is not a principle unique to medical professionals. See S.H. ex rel. Durrell v. Lower Merion Sch. Dist., supra, 729 F.3d at 266 ("[P]laintiff's complaints ... put the School District on notice of nothing more than the fact that [plaintiff] did not like [the School District's class assignment decision.]")
It is equally black-letter law that sufficient circumstantial evidence that a serious risk was obvious can create a genuine issue that a defendant did in fact know about the risk. Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.2001) (subjective knowledge on the part of a supervisory official can also be proved by circumstantial evidence to the effect that the excessive risk was so obvious that the official must have known of the risk). See Haley v. Gross, 86 F.3d 630, 642 (7th Cir.1996)(the risk of injury to plaintiff from his cellmate in a cell known to be deadlocked (off the general locking system) as a result of the cellmate's actions, when the cellmate was observed to be acting "like he was crazy" and openly threatening to set cell on fire was sufficiently known to corrections officer to support deliberate indifference claim). The record holds not a scintilla of evidence of an obvious risk of an ADA violation.
As the Court of Appeals has already recognized it is debatable whether the mobility limitations suffered by plaintiff constitute an impairment at all, or were the simple degradation of mobility indistinguishable from a severe ankle sprain. Mem.Op. at 9. Matthews' request for a wheelchair and allegations that there were activities he could not attend, if construed "as alleging that he was at times immobilized by pain in his heel," id. were enough to squeak over the line at the pleading stage. But one or two episodes where an inmate fails to leave his cell would not constitute a disability and there is no evidence in the record that any immobility, much less continuous or systematic confinement to his cell, was known to any defendant. Matthews alleges one episode where he was sanctioned (so mildly, according to the Arnone and Hunter depositions, that the discipline could be imposed by the unit manager and did not even show up on Matthews' block card) for not standing for count. Matthews could never in a Section 1983 claim collaterally attack a disciplinary citation in an action for damages by claiming that the hearing officer erred in imposing such a mild sanction that he never appealed it, much less succeeded in overturning it. No different result is commanded or permitted by the ADA or RA. To the contrary, even though programs and services are to be given an expansive interpretation, the result of a disciplinary hearing cannot plausibly be claimed to be a program or service, and the incidental restriction on access to programs and services that might occur as a result of a sanction imposed at a disciplinary hearing does not occur as a result of a disability. To construe the ADA or RA otherwise, to say that Congress opened the states to claims for money damages by inmates on the grounds that a hearing officer should have recognized an inmate's disability, when the claim of disability can be made for the first time years after a prison disciplinary hearing from which no appeal was taken, would be astonishing.
Second, as precedential use of terms based on verbs like "deny" and "exclude" suggests, Title II claims imply some actions or wilful inaction by a covered defendant, not a failure to reach out to see if a potential plaintiff might be better accommodated. To compare, in Title I ADA claims an employee can demonstrate that a covered employer breached its duty to engage in the good faith interactive process by showing that the employer knew about the employee's disability and the employee requested accommodations or a disability but the employer did not make a good faith effort respond. Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 772 (3d Cir. 2004). The employee must express a desire for an accommodation, and failure to show some complaint is "fatal." McGlone v. Philadelphia Gas Works, 733 Fed.Appx. 606, 611 (3d Cir.2018). At the least, to show deliberate indifference in a Title II claim, a plaintiff must show that some relevant person knew of and disregarded his need for accommodation, or that the need for accommodation was so obvious that someone must in fact have known of it.
Nothing in the record would permit a jury to take either route. Matthews' unchallenged medical records. Exhibit B to Plaintiff's statement of material facts, ECF no. 52-2, do not show any record of symptoms from which anyone could conclude that Matthews needed any more care than he was receiving. In fact, what symptoms Matthews exhibited varied depending on the date and who examined him. While the physical therapist, Mason, noted that Matthews limped on May 24, 2011, on June 20, 2011 Swanhart went so far as to document that Matthews had been "amb[ulating] at a brisk pace" on the walk in no acute distress before entering the medical unit. Swanhart's deposition is not part of the record but there is no reason to suspect Swanhart made the entry due to animus against plaintiff's disability, since she herself had in April and May 2011 been the one to recommend physical therapy and a short course of steroids for Matthews' complaints.
Matthews offers as his chief piece of evidence on these points a 53-paragraph declaration that asserts that he made: 1) a July 22 request for a lower tier cell, ¶45, and 2) a sick call request on the same date for a wheelchair, ¶47. (Matthews' averments about requests to Arnone and Hunter are not relevant for the reasons already identified by the Court of Appeals.) The written requests themselves are contained in ECF no. 52-13, Exhibit F. There is one on April 25 that, even though it concedes that an x-ray had already been taken, requests an MRI. A sick call request on May 9 again requests an MRI. The sick call request from July 22 requests a wheelchair "because my upper body strength is not strong enough" (which does not mention but implies the assignment of some other inmate to push it) for the sole reason that Matthews felt like he "might fall down, especially in the excessive heat." The Disability Accommodation Request from the same date is at ECF no. 48, Exhibit 4, and requests to be re-assigned to a bottom bunk on the lower tier of cells for the sole reason that "I don't feel stable going up and down the steps I'm off balance."
Matthews does not assert that he ever told anyone more than this or even that there was more to tell. Matthews filed two grievances that are relevant to this proceeding, see ECF no. 48-8, Grievance No. 375617 in March 2011, and ECF no. 48-9, Grievance No. 357748 in August 2011. The first grievance talks exclusively about Matthews' need for an x-ray and MRI of plaintiff's ankle, and does not even mention difficulties in getting to programs or in and out of his bunk, cell, or unit, and does not request any accommodation at all. The second grievance requests a back brace and neck brace and queries why he was in a top-tier cell. As noted already, after Matthews returned from the hospital he was given a lower-tier cell. Even here Matthews does not mention difficulties in getting to programs or accommodations for any difficulties. It is worth noting that Matthews in both grievances sought $50 million, so Matthews obviously knew that a grievance could be used to request relief.
The parties do not much discuss the several depositions that were appended to the motions for summary judgment. I have read them all, and although they provide background about the running of Somerset and procedures for inmates with disabilities in 2011, there is no reason for the parties to have discussed them more.
Even reading the record in the light most favorable to Matthews the evidence is insufficient to allege that the medical care provided by any defendant was inadequate. A properly instructed jury could never find that this same evidence created an issue of fact that would allow them to find that the Pennsylvania Department of Corrections was deliberately indifferent to a need for a wheelchair, a lower bunk, a cell in a lower tier of cells, or special arrangements for Matthews to make phone calls, walk to the commissary, or attend religious services. Plaintiff's case might have been viable if the ADA/RA imposed some duty on the Pennsylvania Department of Corrections to inquire into whether needs Matthews never expressed were being met, but after Haberle there is nothing there that leaves that legal theory available to Matthews. Judgment should be entered for the remaining defendant and the matter ended.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. DATE: 4 September 2018
/s/_________
Keith A. Pesto,
United States Magistrate Judge Notice to counsel of record by ECF