Ali v. Markell et al

Filing 9

MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 5/16/2016. (asw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT SAUNDERS
a/k/a Shamsidin Ali,
Plaintiff,
V.

GOVERNOR JACK MARKELL,
et al.,
Defendants.

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) Civ. Action No. 15-1184-GMS
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MEMORANDUM
The plaintiff, Robert Saunders ("Saunders"), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.

§ 1983 1 and the Americans with Disabilities Act, 42 U.S.C. § 12131. (D.I. 3.) Saunders appears

prose ,and was granted permission to proceed informa pauperis pursuant to 28 U.S.C. § 1915.
(D.I. 6.)
I. BACKGROUND
The complaint names as defendants Governor of the State of Delaware Jack Markell
("Markell"), current DOC Commissioner Robert Coupe ("Coupe"), Delaware Department of
Correction ("DOC"), medical contractor Connection Correctional Healthcare Services
("CCHS"), 2 DOC medical director Vincent Carr ("Carr"), DOC food service administrator

1

When bringing a § 1983 claim, a plaintiff must allege that some person has deprived him
of a federal right, and that the person who caused the deprivation acted under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
2

CCHS appears to be a misnamed defendant as it is not the name of the medical contract
provider for the DOC. The current contract health care provider for the DOC is Connections
Community Support Programs.

Michael Knight ("Knight"), VCC medical director Richard or William Lynch ("Lynch"),3
Connections Correctional Healthcare Services ("CCHS") medical director Laurie Spraga
("Spraga"), VCC warden David Pierce ("Pierce"), VCC kitchen director Christopher Senato
("Senato"), CCHS physician assistant Roxanna Kinlock ("Kinlock"), and VCC pharmacists Jane
Doe #1 ("Doe #1") and Jane Doe #2 ("Doe 2"). Markell is sued in his official capacity, and
Coupe, Carr, Knight, Lynch, Pierce, and Kinlock are sued in their personal capacities. 4
Saunders appeared before the Board of Parole and Pardons in 2011 and 2014 for
commutation recommendations and commutation was unanimously recommended both times,
but Markell denied commutation stating, "denied due to totality of circumstance." Saunders
alleges that he never had his medical condition presented or investigated as to its truth or
seriousness. Saunders states that his conditions were presented for compassionate release to
prevent him from possibly dying in a correction facility. 5
Saunders states that he suffers from a number of medical conditions. 6 Medical testing in

3

The complaint provides two different first names for Lynch.

4

The complaint does not indicate whether Spraga and Senato are sued in their individual
capacities, official capacities, or both.
5

In November 197 6, a Delaware Superior Court jury convicted Saunders of murder in the
first degree and related offenses. He was sentenced as an habitual offender to six concurrent life
terms, without the possibility of parole or probation. The Delaware Supreme Court affirmed his
convictions and sentences on direct appeal. Saunders v. State, 401 A.2d 629 (Del. 1979). He has
filed numerous petitions for a writ of habeas corpus, all of them denied. See Saunders v.
Markell, 2013 WL 663407 (D. Del. Feb. 21, 2013).
6

In 2013, Saunders filed a lawsuit against many of the defendants named in the instant
case that raised medical needs claims concerning the events leading up to the events alleged in
the instant case. See Saunders v. Danberg, 13-1276-GMS (D. Del. 2013). The complaint was
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, and Saunders appealed. The
appellate court found that the complaint lacked sufficient factual allegations to state an Eighth
2

2007 revealed that Saunders has a benign, left renal cyst. He was seen by an outside urologist in
December 2007 who recommended a follow-up with imaging studies. Studies indicated that
Saunders had two percent loss in kidney function. On November 4, 2015, Saunders was advised
by consultant nephrologist Dr. Shustin or Dhustin7 that Saunders' medical records indicated a
thirty-five percent loss in kidney function and that the next stage could be dialysis. Kinlock had
prescribed two medications for Saunders, but Dr. Shustin told Saunders that those medications,
when taken in conjunction with the blood pressure medication he was taking, were "very
detrimental to plaintiff." (D .I. 3, ir 18.)
Saunders alleges that nephrologists Drs. Y asle and Miller wrote numerous consults for
him to be seen by a urologist or endocrinologist and that Carr, Lynch, Spraga, and Kinlock
ignored them. He alleges that his kidney function was not monitored or periodically reviewed by
outside specialists. Saunders alleges that the next stage of his kidney disease will require dialysis
or a kidney transplant. He alleges that his kidney disease shortens his life expectancy, reduces
his quality of life, and constitutes a death sentence.
Saunders was taken to Bayhealth Medical Center ("Bayhealth") on October 7, 2014, as a
result of massive rectal bleeding. Saunders remained at Bayhealth for five days. He was seen by
Dr. Assar Rather ("Dr. Rather") for a consult on October 7, 2014, for issues related to a

Amendment claim against former medical directors and the former director of nursing based on
their alleged denial of medical care to the prisoner. The court held that although Saunders
alleged that a physician stated a urologist was needed to treat his kidney condition, that directors
told Saunders he had to seek other options due to the cost of the treatment, and that Saunders was
in constant pain as a result, Saunders failed to allege how the directors were involved in his care
or that options other than treatment by urologist were not available. See Saunders v. Danberg,
613 F. App'x 94 (3d Cir. 2015) (unpublished).
7

Both names are used.
3

gastrointestinal bleed. A colonoscopy was performed on October 9, 2014, and it revealed severe
diverticulosis.
A cervical spine MRI was performed on Saunders on August 26, 2014. (D.I. 5.)
Saunders alleges that while hospitalized, testing revealed severe advanced spine disease.
Saunders was seen by Dr. Dunbar Alcindor ("Dr. Alcindor") on October 6, 2014 and November
7, 2014 for cervical stenosis with upper extremity weakness and parenthesis conditions. On
October 6, 2014, Dr. Alcindor prescribed medication and physical therapy. When Saunders
returned on November 7, 2014, Dr. Alcindor recommended C3-4, C4-5, C5-6, C6-7 anterior
cervical discectomy and fusion. Dr. Alcindor noted that, because Saunders is incarcerated, he is
unable to tolerate the usual course of conservative treatment secondary to his status and prior
unacceptable side effects from some of the medications Dr. Alcindor would like to prescribe.
Saunders alleges that Dr. Alcindor stated that, had the problem been addressed when first
detected, it would not have advanced to its current level. Saunders alleges that Carr, Lynch, and
Spraga refused to approve needed spinal surgery ordered by Dr. Alcindor, that he met with
Kinlock who conveyed that Saunders would not receive the spinal surgery recommended by Dr.
Alcindor, and that the major factors in denying the surgery were Saunders' age and sentence.
Saunders alleges that Carr, Lynch, and Spraga attempted physical therapy instead of
surgery and, on May 5, 2015, Lynch indicated that Dr. Alcindor had recommended physical
therapy. Saunders alleges that Dr. Alcindor previously stated that physical therapy would never
correct Saunders' problems. Saunders alleges that he has been in constant/severe pain since
November 2014 and that he has been provided a wheelchair for traveling long distances and a
walker for use as needed.
4

Saunders alleges that he is constantly without blood pressure medication and other
medication. 8 He alleges that on November 25, 2015, he was called to the medication line and
told he was being placed in "finger-stick and 10 units ofLafus [sic] insulin." Saunders alleges
that the defendants did not advise him of the reason for the change, and he was not advised of the
need for a diet change or provided education concerning his illness. Saunders alleges that he was
not placed on a diet to address diabetes, and he is required to eat "current alleged heart-health
food available," which is high in soy.
Saunders has been consuming soy since 2011. He alleges that his high consumption of
soy protein places him at risk to suffer from adverse health effects such as thyroid disorder,
digestive distress, immune system breakdown, and soy allergies. Saunders complained to the
defendants about the soy diet and requested an alternative diet or medical treatment for all.
medical conditions related to excess soy consumption. He alleges that prior to the introduction
of soy into his diet, he had no complaints associated with a high soy intake. Saunders alleges
health effects as a result of the soy consumption that include shortness of breath, fatigue, severe
constipation and/or diarrhea, rashes, and heart issues.
Saunders alleges that the B-building library and the L-building law library/computer have
areas that are not handicap accessible and do not have handicap accessible toilets. Saunders
alleges that the defendants are aware of this problem via the grievance process and letters.
Saunders alleges that the medical defendants did not monitor his medical conditions.

8

Attached to the complaint are a number of medical requests seeking renewal of
medications taken by Saunders. (D.I. 3 at 11-16.)
5

He alleges deliberate indifference to a needed operation, denial of a urologist consult following
requests by a nephrologist, failure to comply with the ADA regarding access to L-building toilets,
serious problems holding a pen, denial of a wordprocessor or a typewriter, and violations of the
Eighth and Fourteenth Amendments of the United States Constitution. He seeks declaratory and
injunctive relief, as well as punitive damages. In addition, he seeks class certification.

II. STANDARD OF REVIEW
A federal court may properly dismiss an action sua sponte under the screening provisions
of28 U.S.C. § 1915(e)(2)(B) and§ 1915A(b) if"the action is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28
U.S.C. § 1915(e)(2) (informa pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner
seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with
respect to prison conditions). The court must accept all factual allegations in a complaint as true
and take them in the light most favorable to a pro se plaintiff. Phillips v. County ofAllegheny,
515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because
Saunders proceeds pro se, his pleading is liberally construed and his complaint, "however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(l), a
court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal
theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-

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28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g., Deutsch v. United States, 67
F.3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took an
inmate's pen and refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) and§ 1915A(b)(l) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed. R.
Civ. P. 12(b)(6) standard to dismissal for failure to state a claim under§ 1915(e)(2)(B)).
However, before dismissing a complaint or claims for failure to state a claim upon which relief
may be granted pursuant to the screening provisions of28 U.S.C. §§ 1915 and 1915A, the court
must grant Saunders leave to amend his complaint unless amendment would be inequitable or
futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See

Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A
plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See

Johnson v. City ofShelby, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed,
however, for imperfect statements of the legal theory supporting the claim asserted. See id. at
346.
Under the pleading regime established by Twombly and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must
plead to state a claim; (2) identify allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth; and (3) when there are well-pleaded factual
allegations, the court should assume their veracity and then determine whether they plausibly

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give rise to an entitlement to relief. Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.
2016) (internal citations and quotations omitted). Elements are sufficiently alleged when the
facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense." Id

III. DISCUSSION
A. Eleventh Amendment
Markell is sued in his official capacity. The Eleventh Amendment of the United States
Constitution protects an unconsenting state or state agency from a suit brought in federal court by
one of its own citizens, regardless of the relief sought. See Seminole Tribe ofFla. v. Florida, 517
U.S. 44, 54 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Edelman

v. Jordan, 415 U.S. 651 (1974). "[A] suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the official's office. As such, it is no
different from a suit against the State itself." Will v. Michigan Dep 't ofState Police, 491 U.S.
58, 71 (1989) (internal citations omitted); Ali v Howard, 353 F. App'x 667, 672 (3d Cir. 2009)
(unpublished). Accordingly, § 1983 claims for monetary damages against a state official in his
official capacity are barred by the Eleventh Amendment. See id.
However, the Eleventh Amendment permits suits for prospective injunctive relief against
state officials acting in violation of federal law. See Exparte Young, 209 U.S. 123 (1908). "This
standard allows courts to order prospective relief, as well as measures ancillary to appropriate
prospective relief." Frew v. Hawkins, 540 U.S. 431, 437 (2004) (internal citations omitted).
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. I

The State of Delaware has neither consented to Saunders' suit nor waived its immunity.
Therefore, the claims against Markell, in his official capacity, are dismissed to the. extent that
Saunders seeks monetary damages from him.

B. Personal Involvement/Respondeat Superior
Coupe, Knight, Pierce, and Senato are named as defendants based upon their supervisory
positions. (D.I. 3,

~~

5, 8, 9, 12, 13.) In addition, the complaint alleges that Markell, as

governor, has control over the monies allocated to the DOC and the authority to appoint and
remove subordinates. (Id.

at~

4.)

A defendant in a civil rights action must have personal involvement in the alleged wrongs
to be liable and cannot be held responsible for a constitutional violation which he or she neither
participated in nor approved." Baraka v. McGreevey, 481F.3d187, 210 (3d Cir. 2007).
"Personal involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The
Third Circuit has reiterated that a § 1983 claim cannot be premised upon a theory of respondeat
superior and, that in order to establish liability for deprivation of a constitutional right, a party
must show personal involvement by each defendant. Brito v. United States Dep 't ofJustice, 392
F. App'x 11, 14 (3d Cir. 2010) (unpublished) (citing Iqbal, 556 U.S. at 675-77; Rode v.

Dellarciprete, 845 F.2d at 1207).
Saunders provides no specific facts with regard to the foregoing supervisory defendants'
personal involvement as is required to state a claim for violations of his constitutional rights.
Instead, he alleges in a conclusory manner that the defendants are responsible for the alleged
constitutional violations by reason of the matters under their purview. Nor are there facts

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indicating that the foregoing defendants expressly directed the alleged deprivation of Saunders'
constitutional rights, or created policies wherein subordinates had no discretion in applying them
in a fashion other than the one which actually produced the alleged deprivation.
In addition, prison administrators cannot be deliberately indifferent "simply because they
failed to respond directly to the medical complaints of a prisoner who was already being treated
by the prison doctor." Durmer v. 0 'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). "If a prisoner is
under the care of medical experts ... a non-medical prison official will generally be justified in
believing that the prisoner is in capable hands." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004) (discussing Durmer, 991 F.2d at 69). "[A]bsent a reason to believe (or actual knowledge)
that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical
prison official ... will not be chargeable with the Eighth Amendment scienter requirement of
deliberate indifference." Id. at 236. Further, the complaint makes broad generalizations, but fails
to identify specific policies or practices to support its allegations. See Estate of Chance v. First
Corr. Med., 329 F. App'x 340 (3d Cir. 2009) (unpublished) (State prison officials were not

deliberately indifferent to inmate's serious medical condition, in violation of Eighth Amendment,
as result of their cost containment practices, where there was no evidence indicating that officials
knew or had any reason to believe that prison medical staff were not treating or were mistreating
inmate, or that officials were indifferent to known risks caused by their cost containment
practices.)
For the above reasons, the court will dismiss the claims against Markell, Coupe, Knight,
Pierce, and Senato as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(l).

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C. Medical Needs
Saunders raises several medical needs claims. Saunders alleges he has a kidney condition
that is not monitored, that a consulting physician has recommended cervical spine surgery, that
he has a gastrointestinal condition, that his medication is not appropriately administered because
the medication is not adequately refilled, and that he is given a diet high in soy protein which has
resulted in adverse health conditions.
The Eighth Amendment proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97,
103-105 (1976). However, in order to set forth a cognizable claim, an inmate must allege (i) a
serious medical need and (ii) acts or omissions by prison officials that indicate deliberate
indifference to that need. Estelle v. Gamble, 429 U.S. at 104; Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999). A prison official is deliberately indifferent if he knows that a prisoner faces a
substantial risk of serious harm and fails to take reasonable steps to avoid the harm. Farmer v.
Brennan, 511 U.S. 825, 837 (1994). A prison official may manifest deliberate indifference by
"intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. at 10405.
Saunders, who has diminished kidney function, alleges that nephrologists Drs. Yasle and
Miller wrote numerous consults for him to see a urologist or endocrinologist. Saunders was told
that, because he also suffers from hypertension, kidney damage may occur more quickly due to
the combination of diabetes and hypertension. Saunders alleges that Carr, Lynch, Spraga, and
Kinlock ignored the requests for consults. He will be allowed to proceed with this claim.

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Dr. Alcindor recommended Saunders undergo spinal surgery after concluding that he is
unable to tolerate the usual course of conservative treatment and that would cause unacceptable
side effects from medications he would have liked to prescribe. Saunders· alleges that Carr,
Lynch, and Spraga refuse to approve the needed surgery due to cost considerations and opted to
provide Saunders physical therapy despite Dr. Alcindor's recommendation to contrary. In
addition, Kinlock advised Saunders that the surgery was denied based upon his age and life
without parole sentence. Saunders will be allowed to proceed with this claim.
Saunders alleges that he has constantly been without blood pressure medication and other
medication. In a sick call slip dated March 15, 2015, Saunders stated that he had been without
blood pressure medication for over fifteen days and was told it was never reordered. Saunders
was told that he was on blood pressure medication, but of a different type than the one requested
in the sick call slip. A sick call slip dated May 12, 2015, that sought a reorder of blood pressure
medication and that indicated Saunders had been without the medication for over seven days,
was referred to the pharmacy. A sick call slip dated May 21, 2015 indicating that Saunders had
been without blood pressure medication states that the medication was renewed "yesterday." A
sick call slip dated May 22, 2015 seeking renewal of various medications that had been removed
from the computer, referred to a follow-up to verify that the medications were currently in the
computer. A sick call slip dated October 13, 2015 indicating that Saunders ran out of medication
was referred to the pharmacy.
A civil rights complaint must state the conduct, time, place, and persons responsible for
the alleged violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citing Boykins v.
Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980)). Saunders does not direct his
12

allegations concerning medication issues to any defendant. In listing Doe # 1 and Doe #2
pharmacists as parties, he describes them, in general terms and a conclusory manner, as being
responsible for his medication, but the facts, as alleged, do not support his conclusory claims
against the Doe pharmacists. Thus, the allegations, without more, do not rise to the levels of
constitutional violations. Accordingly, the court will dismiss the claims against Doe #1 and Doe
#2 for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) and § 1915A(b)(l). Saunders will be given leave to amend this claim.
Saunders alleges that he is not provided with a diet to address his diabetic condition and
instead is required to eat "alleged heart-healthy" food which is high in soy. The high soy diet has
caused him personal and bodily injury. Saunders alleges that he complained to the defendants
and requested an alternative diet or medical treatment for all medical conditions related to excess
soy consumption. Saunders does not indicate when he made the complaints or to whom he made
the complaints. Instead he alleges in general terms that he made complaints to the individuals on
unnamed dates. Therefore, the court will dismiss the medical diet claim for failure to state a
claim upon which relief may be pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
Saunders will be given leave to amend this claim.
Saunders has also named CCHS as a defendant. CCHS is described as the medical
provider for inmates under the custody/control of DOC. When a plaintiff relies upon a theory of
respondeat superior to hold a corporation liable, he must allege a policy or custom that
demonstrates such deliberate indifference. Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir.
1989); Miller v. Correctional Med. Sys., Inc., 802 F. Supp. 1126, 1132 (D. Del. 1992).

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In order to establish that CCHS is directly liable for the alleged constitutional violations,
a plaintiff "must provide evidence that there was a relevant [CCHS] policy or custom, and that
the policy caused the constitutional violation[s] [plaintiff] allege[s]." Natale v. Camden Cnty.
Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (because respondeat superior or vicarious
liability cannot be a basis for liability under 42 U.S.C. § 1983, a corporation under contract with
the state cannot be held liable for the acts of its employees and agents under those theories).
The complaint does not refer to CCHS other than to describe it in the party section. Nor
does it speak to any relevant policy or custom that allegedly violated Saunders' constitutional
rights. Accordingly, the court will dismiss the claim for failure to state a claim upon which relief
may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l). Saunders will be
given leave to amend this claim.
D. ADA
Saunders alleges that the DOC violated his rights under the ADA because he utilizes two
building that are not handicap accessible. See ADA, Title II, 42 U.S.C. § 12101 et seq. Title II
of the ADA prohibits discrimination against the disabled in public services. See 42 U.S.C.
§ 12132; Title II provides that "no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity." Id Title II
applies to the state prisons, Pennsylvania Dep 't of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998),
and authorizes private lawsuits for both money damages and injunctive relief against public
entities that violate its provisions. See 42 U.S.C. § 12133.

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To succeed on a claim under Title II of the ADA, a plaintiff must establish that: (1) he is
a qualified individual; (2) with a disability; (3) he was excluded from participation in or denied
the benefits of the services, programs, or activities of a public entity, or was subjected to
discrimination by any such entity; (4) by reason of his disability. Bowers v. National Collegiate
Athletic Ass 'n, 475 F.3d 524, 550 (3d Cir. 2007). Under Title II, a plaintiff can assert a failure to

accommodate as an independent basis for liability under the ADA. See Muhammad v. Court of
Common Pleas ofAllegheny Cnty., Pa, 483 F. App'x 759, 763 (3d Cir. 2012) (unpublished); see
also 28 C.F.R. § 35.130(b)(7) (requiring public entity to make "reasonable modifications in

policies, practices, or procedures when modifications are necessary to avoid discrimination on
the basis of disability").
Saunders has been provided a wheelchair and walker to aid his mobility. Saunders'
allegations concerning the restrictions on handicap toilets suggest that the restrictions hinder his
access and participation in prison programs and other activities such as use of the libraries.
Saunders will be allowed to proceed on his ADA claims against the DOC.

E. Commutation
While not clear, it appears that Saunders attempts to raise a claim against Markell for
denying his request for a compassionate commutation based upon Saunders' medical condition.
Saunders sought the same relief from this court in 2011 when he filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254. The petition was summarily dismissed. See Saunders v.
Markell, 2013 WL 663407 (D. Del. Feb. 21, 2013.

It is well-settled that an inmate has no constitutional or inherent right to the commutation
of his sentence. See Ohio Adult Parole Auth. v. Woodward, 523 U.S. 272, 280 (1998); Conn. Bd.
15

of Pardons v. Dumschat, 452 U.S. 458, 464 (1981). Saunders' claim fails as a matter of law.

Therefore, it will be dismissed as frivolous pursuant 28 U.S.C. §§ 1915(e)(2)(B)(i) and
1915A(b)(l).

IV. CONCLUSION
For the above reasons, the court will: (1) allow Saunders to proceed against the
defendants Carr, Lynch, Spraga, and Kinlock on the kidney and cervical spine surgery medical ·
needs claims and the ADA claim against the DOC; (2) dismiss the defendants Markell, Coupe,
Knight, Pierce, and Senato as the claims against them are legally frivolous; and (2) dismiss the
medication claim against Doe #1 and Doe #2, the medical diet claims, and the claims against
CCHS for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii) and§ 1915A(b)(l). Saunders will be given leave to amend the

medication, medical diet claims, and claims against CCHS. The court will address the issue of
class certification upon the filing of a properly supported motion.
An appropriate order will be entered.

f1~ Jk

,2016
Wilmingtn, Delaware
1

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