Nasious v. Mueller et al

Filing 201

ORDER. The Recommendation on United States Magistrate Judge 194 filed 4/22/2011, is APPROVED and ADOPTED as an order of this court to the extent the magistrate judge recommends that the defendants motions for summary judgment 149 , 150 , 151 , 152 155 be granted. Please see order for details. By Judge Robert E. Blackburn on 6/29/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 09-cv-01051-REB-KMT
JOHN NASIOUS,
Plaintiff,
v.
STATE OF COLORADO - OFFICE OF THE GOVERNOR BILL RITTER;
NURSE MARTHA MUELLER, Physician Health Partners,
DR. BARRY GOLDSMITH, Physician Health Partners,
PAULA FRANTZ M.D. CMO, Colorado Dept. of Corrections,
STEPHEN KREIBS M.D. - Physician, Health Partners Agent of Record,
P.A. BRIAN WEBSTER, Physician Health Partners (Ft Myers, FL),
PA TEJEENDER SINGH, Physician Health Partners,
ARISTEDES ZAVARAS, Executive Director CDOC,
JOSEPH GARY FORTUNADO D.O., Physician Health Partners,
P.A. JOANN STOCK, Physician Health Partners,
NURSE NANCY WHITE, Physician Health Partners,
JOSEPH WERMERS, M.D., Physician Health Partners,
CO ST. MARTIN, Colorado Dept. of Corrections,
CO REGINA JOHNSON, Medical Department Colorado Dept. of Corrections,
CAPTAIN WEINGARDT, Colorado Dept. of Corrections,
LT MARK BOLD, Colorado Dept. of Corrections,
LT JASON ZWIRN, Colorado Dept. of Corrections,,
CATHIE HOLST, Manager of Correctional Legal Services,
ADA Coordinator, AIC CDOC,
ADRIENNE JACOBSON, Legal Assistant AIC/ADA Coordinator CDOC,
SGT BECKY BALL, Colorado Dept. of Corrections,
LT. JIMERSON, Colorado Dept. of Corrections,
MS. HAVERLY LIBRAIAN, Colorado Dept. of Corrections,
JOHN DOE AND JANE DOE, all in their individual and official capacities,
Defendants

ORDER CONCERNING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) Defendants Dr. Barry Goldsmith, Stephen

Krebs, M.D., P.A. Brian Webster, P.A. Tejinder Singh, Joseph Gary Fortunato,
D.O., P.A. Jo Ann Stock, Nurse Nancy White, and CO Regina Johnson’s Motion
for Summary Judgment with Respect to Plaintiff’s Claim for Deprivation of Eighth
Amendment Right to be Free from Cruel and Unusual Punishment [#149]1 filed
January 4, 2011; (2) Defendants Captain Winger, Major Johnson, Lt. Mark Bold, Lt.
Shane McMahill, Lt. Jason Zwirn, CO St. Martin, P.A. Brian Webster, CO Kenneth
Lefecer, Sgt. Becky Ball, and Lt. Jimerson’s Motion for Summary Judgment with
Respect to Plaintiff’s Claim for Retaliation and Exercise of First Amendment
Protected Rights [#150] filed January 4, 2011; (3) Defendant State of Colorado Office of the Governor Bill Ritter’s Motion for Summary Judgment Against
Plaintiff’s Remaining Claim Against Defendant Governor Ritter - Official Capacity
for Deprivation of Rights Secured by the Americans with Disabilities Act [#151]
filed January 4, 2011; (4) Defendants Dr. Barry Goldsmith, Paula Frantz, M.D.,
C.M.O., Stephen Krebs, M.D., Joseph Gary Fortunato, D.O., P.A. Brian Webster,
P.A. Tejender Singh, P.A. JoAnn Stock, and Joseph J. Wermers’ Motion for
Summary Judgment Against Plaintiff’s Claim for Deprivation of Rights Secured
by the Americans with Disabilities Act [#152] filed January 4, 2011; (5) Defendants’
Motion for Summary Judgment with Respect to Plaintiff’s Claim for Punitive
Damages for Deprivation of Rights Secured by the Americans with Disabilities
Act [#155] filed January 5, 2011; (6) Defendant Aristedes Zavaras, Cathie Holst,
Adrienne Jacobson, and Ms. Heverly’s Motion for Summary Judgment with

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“[#149]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

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Respect to Plaintiff’s claim for Deprivation of Rights Secured by the Americans
with Disabilities Act [#158] filed January 5, 2011; (7) the Recommendation of United
States Magistrate Judge [#194] filed April 22, 2011; and (8) Plaintiff’s Objection to
Recommendation of United States Magistrate Judge [#197] filed May 12, 2011. I
sustain the plaintiff’s objection in part and overrule it in part. I adopt the
recommendation of the magistrate judge in part and respectfully reject the
recommendation in part. With one exception, I grant certain of the motions for summary
judgment in toto. I deny the motion for summary judgment docketed as [#158] in part,
and I deny that motion in part.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed and have considered carefully the
recommendation, objections, and applicable caselaw. Moreover, because plaintiff is
proceeding pro se, I have construed his pleadings more liberally and held them to a less
stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus,
551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton,
483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d
652 (1972)).
The facts, procedural history of this case, and standards of review applicable to
the motions for summary judgment are set forth in detail in the magistrate judge’s
recommendation and need not be repeated here. I approve and adopt the analysis of
the magistrate judge on which she bases her recommendation that the following
motions for summary judgment be granted: (1) the motion for summary judgment
docketed as [#149], (2) the motion for summary judgment docketed as [#150], (3) the
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motion for summary judgment docketed as [#151], (4) the motion for summary judgment
docketed as [#152], and (5) the motion for summary judgment docketed as [#155]. I
overrule the plaintiff’s objections [#197] concerning the magistrate judge’s
recommendations as to these motions.
The magistrate judge recommends also that the defendants’ motion for summary
judgment docketed as [#158] be granted with regard to the plaintiff’s Americans with
Disabilities Act (ADA) claims. I agree with the findings and recommendations of the
magistrate judge concerning the plaintiff’s ADA claims in all but one respect. Having
reviewed the record, I conclude that there remains a genuine issue of a material fact as
to whether or not certain defendants, specified below, violated the requirements of Title
II of the ADA concerning the plaintiff’s photophobia or light sensitivity.
A plaintiff seeking to establish a claim under Title II of the ADA must “allege that
(1) he is a qualified individual with a disability, (2) who was excluded from participation
in or denied the benefits of a public entity’s services, programs, or activities, and (3)
such exclusion, denial of benefits, or discrimination was by reason of a disability.”
Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir.
2007) (citing 42 U.S.C. § 12132). The United States Department of Justice promulgated
regulations in order to implement the mandates of Title II by requiring public entities to
make “reasonable modifications in policies, practices, or procedures” when necessary
to avoid a discriminatory impact based on an individual’s disability. Robertson, at 1195
(citing 28 C.F.R. § 35.130(b)(7)). Title II requires public entities to provide meaningful
access to their programs and services. Id. These mandates extend to state prisons
and prison services. Penn. Dep’t of Corr. V. Yeskey, 524 U.S. 206, 206 (1998).
A disability within the meaning of the ADA includes, inter alia,
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“a physical or mental impairment that substantially limits one or more of
the major life activities” of an individual. 42 U.S.C. § 12102(2)(A).
Individuals attempting to prove disability status under this test may not
merely rely on evidence of a medical diagnosis of an impairment. “Instead,
the ADA requires those ‘claiming the Act's protection ... to prove a
disability by offering evidence that the extent of the limitation [caused by
their impairment] in terms of their own experience ... is substantial.’ ”
Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 122
S.Ct. 681, 151 L.Ed.2d 615 (2002) (quoting Albertson's, Inc. v.
Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162, 144 L.Ed.2d 518
(1999)).
Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1194 (10th Cir.
2007).
As detailed by the magistrate judge, the defendants proffered evidence in
support of their motions for summary judgment that indicates that the plaintiff does not
suffer from a qualifying disability. Recommendation [#194] filed April 22, 2011, p. 43.
Based on this evidence, the defendants are entitled to summary judgment on the
question of whether or not the plaintiff has a qualifying disability unless the plaintiff
comes forward with contrary evidence which establishes a genuine issue of material
fact on this issue. In his complaint, the plaintiff alleges that certain defendants failed to
recognize his photophbia as a disability covered by the ADA and that he requested
accommodation for his light sensitivity while he worked in his prison job. Compl. [#17]
at 38-39, ¶ ¶ 57-65. His condition, the plaintiff contends, sometimes prevents him from
working in his prison job unless he can work in low-light conditions. Compl. [#17] at 39,
¶ 62. The plaintiff contends that he never received any accommodation and that he
received threats of losing his job due to his inability to work as a result of his
photophobia. Id.
The plaintiff’s complaint is sworn under the penalty of perjury. Compl. [#17] at
45. A plaintiff’s complaint may be treated as an affidavit to the extent the complaint
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contains statements that are based on personal knowledge and those statements have
been sworn under penalty of perjury. Mosier v. Maynard, 937 F.2d 1521, 1524 (10th
Cir. 1991). I have relied on the sworn factual assertions in the complaint [#17] to the
extent they are based on the plaintiff’s personal knowledge and they support factual
statements asserted by the plaintiff in his responses to the motions for summary
judgment. Viewing the evidence in the record in the light most favorable to the plaintiff,
including the facts asserted in the plaintiff’s sworn complaint, a reasonable fact finder
could find for the plaintiff to the extent he asserts a claim under Title II of the ADA based
on his photophobia and the conditions of his prison employment. If the plaintiff can
substantiate the facts asserted in his sworn complaint, a reasonable fact finder could
conclude that the plaintiff is a qualified individual with a disability who was denied the
benefits of a public entity’s services, programs, or activities, and that the denial of
benefits was based on the plaintiff’s disability.
There are several limitations on a Title II claim that are relevant to the plaintiff’s
ADA claim. The proper defendant in a claim under Title II of the ADA is the public entity
itself or an official acting in his or her official capacity on behalf of the public entity.
Everson v. Leis, 556 F.3d 484, 501 (6th Cir. 2009). Title II of the ADA does not provide
for suit against an official of a public entity in their individual capacity. Id. To the extent
the plaintiff names any defendant in his or her individual capacity, those defendants are
entitled to summary judgment on the plaintiff’s ADA claim.
As noted by the magistrate judge, an alleged failure to provide medical treatment
for a disabled prisoner is not actionable under the ADA. Recommendation [#194], p. 41.
To the extent the plaintiff claims that defendant prison medical providers violated the
ADA by not providing medical treatment or by providing improper medical treatment,
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those defendants are entitled to summary judgment on the plaintiff’s ADA claim.
Further, Title II of the ADA is not a valid abrogation of Colorado’s Eleventh
Amendment immunity from claims for damages. Chaffin v. Kansas State Fair Bd, 348
F.3d 850, 866 (10th Cir. 2003). Therefore, the plaintiff cannot assert a claim for damages
based on an alleged violation of the ADA. However, the plaintiff may seek prospective
injunctive relief for an ongoing violation of the ADA. Id.
The plaintiff names several individuals as defendants. The only defendants who
are alleged to have any control over the conditions of the plaintiff’s prison employment
are Cathie Holst, who is alleged to be the ADA Inmate Coordinator at the prison where
the plaintiff is housed, and Adrienne Jacobson, who is alleged to be the ADA designee
at the prison. In his sworn complaint, the plaintiff alleges that these two defendants have
not ensured that the prison has jobs with restrictions available for an inmate with a
disability. Compl. [#17], p. 38, ¶¶ 59, 60. There is no evidence in the record that any of
the other named defendants were involved in the alleged violation of Title II of the ADA.
Therefore, all other defendants are entitled to summary judgment on the plaintiff’s Title
II ADA claim based on his photophobia.
In his complaint, the plaintiff alleges also that he suffers from a low back problem
and that he was denied “bottom bunk / lower tier restrictions” between September 26,
2006 and August 12, 2009. The plaintiff may not assert an ADA claim based on these
alleged facts. The Eleventh Amendment bars the plaintiff from seeking an award of
damages based on these alleged facts, and the plaintiff is not entitled to injunctive relief
because the alleged denial of benefits ended in August of 2009. Thus, the defendants
are entitled to summary judgment on this aspect of the plaintiff’s ADA claim.
The plaintiff alleges also that he suffers from other disabilities, in addition to
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photophobia, and that the defendants have denied him benefits as a result. These
other allegations generally are conclusory and non-specific, especially with regard the
benefits the plaintiff claims he has been denied as a result of these other disabilities.
Even when the plaintiff’s complaint is viewed as a sworn affidavit, no reasonable fact
finder could find for the plaintiff on his ADA claim based on these other alleged
disabilities.
In sum, I respectfully disagree with the recommendation of the magistrate judge
to this limited extent. I conclude that there remains a genuine issue of a material fact as
to whether or not defendants Cathie Holst and Adrienne Jacobson violated the
requirements of Title II of the ADA with regard to the plaintiff’s photophobia or light
sensitivity as that alleged disability concerns the plaintiff’s prison job. On the current
record, summary judgment on this aspect of the plaintiff’s ADA claim is not proper.
Otherwise, I approve and adopt the recommendation of the magistrate judge.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation on United States Magistrate Judge [#194] filed
April 22, 2011, is APPROVED and ADOPTED as an order of this court to the extent the
magistrate judge recommends that the defendants’ motions for summary judgment
[#149, #150, #151, #152, & #155] be granted;
2. That the Defendants Dr. Barry Goldsmith, Stephen Krebs, M.D., P.A.
Brian Webster, P.A. Tejinder Singh, Joseph Gary Fortunato, D.O., P.A. Jo Ann
Stock, Nurse Nancy White, and CO Regina Johnson’s Motion for Summary
Judgment with Respect to Plaintiff’s Claim for Deprivation of Eighth Amendment
Right to be Free from Cruel and Unusual Punishment [#149] filed January 4, 2011,
is GRANTED;
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3. That the Defendants Captain Winger, Major Johnson, Lt. Mark Bold, Lt.
Shane McMahill, Lt. Jason Zwirn, CO St. Martin, P.A. Brian Webster, CO Kenneth
Lefecer, Sgt. Becky Ball, and Lt. Jimerson’s Motion for Summary Judgment with
Respect to Plaintiff’s Claim for Retaliation and Exercise of First Amendment
Protected Rights [#150] filed January 4, 2011, is GRANTED;
4. That the Defendant State of Colorado - Office of the Governor Bill Ritter’s
Motion for Summary Judgment Against Plaintiff’s Remaining Claim Against
Defendant Governor Ritter - Official Capacity for Deprivation of Rights Secured by
the Americans with Disabilities Act [#151] filed January 4, 2011, is GRANTED;
5. That the Defendants Dr. Barry Goldsmith, Paula Frantz, M.D., C.M.O.,
Stephen Krebs, M.D., Joseph Gary Fortunato, D.O., P.A. Brian Webster, P.A.
Tejender Singh, P.A. JoAnn Stock, and Joseph J. Wermers’ Motion for Summary
Judgment Against Plaintiff’s Claim for Deprivation of Rights Secured by the
Americans with Disabilities Act [#152] filed January 4, 2011, is GRANTED;
6. That the Defendants’ Motion for Summary Judgment with Respect to
Plaintiff’s Claim for Punitive Damages for Deprivation of Rights Secured by the
Americans with Disabilities Act [#155] filed January 5, 2011, is GRANTED;
7. That the Recommendation of United States Magistrate Judge [#194] filed
April 22, 2011, respectfully is REJECTED to the extent the magistrate judge
recommends that the defendants’ motion for summary judgment [#158] be granted in
favor of defendants Cathie Holst and Adrienne Jacobson as to the plaintiff’s Title II ADA
claim based on the plaintiff’s photophobia or light sensitivity as that alleged disability
affects the plaintiff’s prison job;

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8. That the objections stated in Plaintiff’s Objection to Recommendation of
United States Magistrate Judge [#197] filed May 12, 2011, are SUSTAINED in part,
but only to the extent the plaintiff asserts a Title II ADA claim against defendants, Cathie
Holst and Adrienne Jacobson, based on the plaintiff’s photophobia or light sensitivity as
that alleged disability affects the plaintiff’s prison job;
9. That Defendant Aristedes Zavaras, Cathie Holst, Adrienne Jacobson,
and Ms. Heverly’s Motion for Summary Judgment with Respect to Plaintiff’s claim
for Deprivation of Rights Secured by the Americans with Disabilities Act [#158]
filed January 5, 2011, is DENIED in part, but only to the extent the plaintiff asserts a
Title II ADA claim against defendants, Cathie Holst and Adrienne Jacobson, based on
the plaintiff’s photophobia or light sensitivity as that alleged disability affects the
plaintiff’s prison job;
10. That otherwise, the Recommendation of United States Magistrate Judge
[#194] filed April 22, 2011, is APPROVED and ADOPTED as an order of this court to
the extent the magistrate judge recommends that the defendants’ motion for summary
judgment [#158] be granted;
11. That otherwise, the objections stated in Plaintiff’s Objection to
Recommendation of United States Magistrate Judge [#197] filed May 12, 2011, are
OVERRULED;
12. That otherwise, Defendant Aristedes Zavaras, Cathie Holst, Adrienne
Jacobson, and Ms. Heverly’s Motion for Summary Judgment with Respect to
Plaintiff’s claim for Deprivation of Rights Secured by the Americans with
Disabilities Act [#158] filed January 5, 2011, is GRANTED;

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13. That defendants, State of Colorado - Office of the Governor Bill Ritter, Nurse
Martha Mueller, Physician Health Partners, Dr. Barry Goldsmith, Physician Health
Partners, Paula Frantz M.D. CMO, Colorado Dept. Of Corrections, Stephen Kreibs M.D.
- Physician, Health Partners Agent of Record, P.A. Brian Webster, Physician Health
Partners (Ft Myers, Fl), PA Tejeender Singh, Physician Health Partners, Aristedes
Zavaras, Executive Director CDOC, Joseph Gary Fortunado D.O., Physician Health
Partners, P.A. Joann Stock, Physician Health Partners, Nurse Nancy White, Physician
Health Partners, Joseph Wermers, M.D., Physician Health Partners, CO St. Martin,
Colorado Dept. of Corrections, CO Regina Johnson, Medical Department Colorado
Dept. of Corrections, Captain Weingardt, Colorado Dept. of Corrections, Lt Mark Bold,
Colorado Dept. of Corrections, Lt Jason Zwirn, Colorado Dept. of Corrections, Sgt.
Becky Ball, Colorado Dept. of Corrections, Lt. Jimerson, Colorado Dept. of Corrections,
Ms. Haverly Libraian, Colorado Dept. of Corrections, John Doe and Jane Doe, all in
their individual and official capacities, all are DROPPED from this action, and the
caption shall be AMENDED accordingly.
Dated June 29, 2011, at Denver, Colorado.
BY THE COURT:

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