Alvey v. Gualtieri
Filing
87
ORDER: Plaintiff Amber Alvey's Motion for Partial Summary Judgment (Doc. # 49 ) is denied. Defendant Bob Gualtieri's Motion for Summary Judgment (Doc. # 50 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 11/7/2016. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMBER ALVEY,
Plaintiff,
v.
Case No. 8:15-cv-1861-T-33AEP
BOB GUALTIERI, in his
official capacity as
Sheriff of Pinellas
County,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Amber Alvey’s Motion for Partial Summary Judgment (Doc. #
49),
and
Defendant
Bob
Gualtieri’s
Motion
for
Summary
Judgment (Doc. # 50), both filed on July 22, 2016. Alvey and
Gualtieri filed responses in opposition on August 25, 2016.
(Doc. ## 64, 65). On September 8, 2016, both parties filed
replies. (Doc. ## 73, 74). Additionally, the United States of
America filed a Statement of Interest on September 8, 2016.
(Doc. # 75). After due consideration, the Court denies both
motions for summary judgment for the reasons that follow.
I.
Background
Amber Alvey is a sixty year old woman whose physical
disabilities cause her to walk with a cane and significantly
1
limit
daily
life
activities
like
walking,
sleeping,
and
working. (Alvey Dec. Doc. # 49-2 at ¶¶ 2, 4). Alvey also
suffers from epilepsy. (Id. at ¶ 2).
On
the
night
of
June
19,
2014,
because
of
a
lice
infestation and illegal activity by other boarders, Alvey
left the house in which she rented a room and sought shelter
at Pinellas Safe Harbor (Safe Harbor), a shelter serving
homeless individuals in Pinellas County. (Id. at ¶¶ 6-8; Alvey
Dep.
Doc.
#
51-1
at
49:7-10,
107:18-108:1).
Defendant
Gualtieri, as Sherriff of Pinellas County, operates Safe
Harbor as a jail diversion program for chronically homeless
adults who are at risk of being involved in the criminal
justice system. (Gualtieri Dep. Doc. # 49-4 at 28:5-22).
Still, Safe Harbor acts as a temporary emergency shelter for
homeless individuals, even if they are not involved in the
criminal justice system. (Gualtieri Interrog. Response 18,
Doc. # 49-14 at 30). Individuals staying at Safe Harbor are
called “residents.” (Gualtieri Dep. Doc. # 49-4 at 44:2-5).
Safe Harbor is located adjacent to the Pinellas County
Jail compound and some inmate workers from the jail help staff
Safe Harbor, along with Criminal Justice Specialists (CJS)
employed
by
the
Pinellas
County
Sheriff’s
Office
and
privately contracted guards from G4S Services. (Anthony Dep.
2
Doc. # 49-5 at 66:3-21; Haisch Dec. Doc. # 52-4 at ¶¶ 5, 6).
Sergeant Zachary Haisch with the Sheriff’s Office is in charge
of Safe Harbor’s day-to-day operations. (Haisch Dep. Doc. #
49-6 at 14:1-15).
Safe Harbor provides various benefits and services to
its
residents,
including,
among
other
things:
sleeping
arrangements, three meals a day, help applying for social
security or Medicare benefits, and assistance finding jobs
and housing. (Doc. # 49-12 at 13; Haisch Dec. Doc. # 52-4 at
¶ 38; Haisch Dep. Doc. # 49-6 at 50:5-11). Gualtieri stated
that Safe Harbor seeks “to help [its residents] break that
cycle of homelessness so they can become productive members
of the community and be self-sustaining.” (Gaultieri Dep.
Doc. # 49-4 at 45:12-14).
Safe
Harbor
is
comprised
of
sleeping
areas
called
“pods,” four of which are indoors. (Haisch Dec. Doc. # 52-4
at ¶¶ 20-24). Only one indoor pod, Pod 3, houses female
residents. Pod 6 is an outdoor pod in a covered area that
houses both men and women. (Haisch Dec. Doc. # 52-4 at ¶ 25).
In order to stay at Safe Harbor, a resident must be at
least eighteen years old. (Semone Dep. Doc. # 49-7 at 13:2214:1). Residents must be able to care for themselves without
the staff’s assistance in daily functions. (Haisch Dep. Doc.
3
# 49-6 at 46:4-6, 46:14-17, 163:5-20; Doc. # 49-12 at 29).
Specifically, Safe Harbor’s limited staff prevents it from
caring for “individuals who are unable to eat, sit down, walk
or use the facilities without the assistance of another
person.” (Doc. # 49-12 at 29).
Safe Harbor does not maintain written policies regarding
reasonable accommodations for residents with disabilities.
(Haisch Dep. Doc. # 49-6 at 172:6-18, 187:9-12, 192:19193:3). However, Safe Harbor staff may make a reasonable
accommodation if a resident requests one. (Id. at 130:4-19,
192:4-19,
193:1-7).
resident’s
physical
If
the
CJS
abilities
and
staff
determine
medical
needs
that
are
a
not
conducive to the facility, they have the authority to ban a
resident from Safe Harbor. (Id. at 154:16-155:10, 166:22167:3). Safe Harbor does not provide training on when a
resident should be banned for medical reasons, but Sergeant
Haisch advises staff to “exercise good judgment and use common
sense” in making such decisions. (Id. at 169:17-170:7).
Also, Sergeant Haisch has the authority to overturn bans
or
other
decisions
regarding
residents’
access
to
Safe
Harbor’s services. (Gualtieri Dep. Doc. # 49-4 at 73:24-74:8;
Haisch Dep. Doc. # 49-6 at 97:11-98:1). Haisch regularly
reviews the end-of-shift logs entered by CJS staff and the
4
daily reports prepared by G4S guards. (Haisch Dep. Doc. # 496 at 97:4-10; 122:21-25).
There are three bedding options to which residents are
assigned at intake: bunk beds, floor mats, and “boats.”
(Gualtieri Dep. Doc. # 49-4 at 60:22-61:5). The bunk beds are
“barracks-style”
metal
bed
frames
bolted
to
the
floor.
(Haisch Dep. Doc. # 49-6 at 90:10-16, 228:4-11). A bottom
bunk is raised 17 inches off the floor. (Doc. # 49-22 at ¶
8). “Boats” are platforms on which the floor mats are placed;
the “boat” elevates the mat to a height of 10 to 11 inches.
(Id.). An ADA checklist published by the Department of Justice
(DOJ) suggests that cots in emergency shelters be at least 17
inches off the floor to be accessible. (Doc. # 49-37 at 30).
Beds are assigned on a first come, first served basis,
without
beds
specifically
disabilities.
(Cline
Nevertheless,
preference
veterans and
reserved
Dep.
Doc.
for
#
bottom
for
residents
with
49-9
at
16:1-16).
bunks
is
given
to
residents with disabilities affecting their
mobility. (Haisch Dep. Doc. # 49-6 at 82:18-83:15; Novak Dep.
Doc. # 51-14 at 24:23-25:4). Also, Safe Harbor staff often
assigns bottom bunks as an incentive to residents who are
complying with Safe Harbor’s program by looking for work.
(Novak Dep. Doc. # 51-14 at 25:10-18). “Boats” are typically
5
assigned to residents only if a doctor’s note states that the
resident requires the higher sleeping height. (Haisch Dec.
Doc. # 52-4 at ¶ 23; Semone Dep. Doc. # 49-7 at 82:7-19,
83:10-22). In Pod 3, the indoor pod to which Alvey was
assigned, there are a total of 85 sleeping spaces: 56 metal
bunk beds, and room on the floor for 29 mats and boats.
(Haisch Dep. Doc. # 49-6 at 85:25-86:4). Of the 56 beds, 28
are bottom bunks. (Id. at 85:25-86:4).
At intake, Alvey answered CJS Katherine Semone and CJS
James Novak’s questions about her history, employment and
income, and housing status. (Gualtieri Interrog. Response 2,
Doc. # 49-14 at 20; Alvey Dep. Doc. # 51-1 at 63:8-11; Novak
Dep.
Doc.
#
51-14
at
41:2-6).
Safe
Harbor
seeks
this
information from its residents at intake and enters it into
the Tampa Bay Information Network (TBIN) system, which is
used by various shelters across the Tampa Bay area. (Haisch
Dep. Doc. # 49-6 at 50:9-20; Semone Dep. Doc. # 49-7 at 12:621). In June of 2014, one of the questions on the system’s
standard intake form was “Do you have a disability of long
duration?” (Haisch Dep. Doc. # 49-6 at 62:5-17). Alvey’s TBIN
intake form indicates that she has “a disability of long
duration.” (Doc. # 49-12 at 7).
6
During intake, Alvey, who had been walking with a cane,
sat in an empty wheelchair belonging to Safe Harbor. Alvey
“claimed that she could not sit/lay down on a mat without
assistance.” (Gualtieri Interrog. Response, 2 Doc. # 49-14 at
20). After her intake interview, Alvey was wheeled to Pod 3
by a staff member. (Alvey Dec. Doc. # 49-2 at ¶ 8; Alvey Dep.
Doc. # 51-1 at 65:15-66:13, 66:15-16).
Alvey requested a raised bed because of her difficulty
sitting or lying down. (Gualtieri Interrog. Responses 2-3,
Doc. # 49-14 at 20). Safe Harbor did not provide her with a
bottom bunk; rather, Alvey was assigned a “boat” for the
floor, even though Alvey did not present a doctor’s note.
(Gualtieri Interrog. Response 3, Doc. # 49-14 at 20; Alvey
Dep. Doc. # 51-1 at 75:15-25).
Yet, the
TBIN
system used by Safe Harbor to track
information about its residents indicates that there may have
been some bunk beds available that night. (Doc. # 49-36).
However, as Gualtieri notes, there are discrepancies in the
bed records. (Doc. # 65 at 15 n.7). Alvey states that there
were open bunk beds in Pod 3 during her stay. (Alvey Dep.
Doc. # 51-1 at 88:8-15). Alvey further alleges that she asked
Safe Harbor staff members if she could move to an empty bed,
but her request was denied. (Alvey Dec. Doc. # 49-2 at ¶ 10;
7
Alvey Dep. Doc. # 51-1 at 88:16-89:17). Staff informed Alvey
that the empty beds were not assigned to anyone but were being
kept open in case someone more severely disabled arrived.
(Alvey Dep. Doc. # 51-1 at 88:16- 89:17).
Additionally, Safe Harbor has a policy of locking all
narcotic medications in a medical room or “pharmacy.” (Haisch
Dep. Doc. # 49-6 at 128:24-129:3). Narcotic medications are
locked away for the safety of the residents and because
inmates from the neighboring jail work in the facility. (Id.
at 127:24-128:9). Staff members are able to access the locked
room only if they are accompanied by another staff member.
(Id. at 130:20-131:4). Staff members provide residents with
their
stored
medications
twice
daily,
unless
residents
request access to their narcotic medications at other times.
(Id. at 130:4-7; Haisch Dec. # 52-4 at ¶ 29).
Alvey
has
prescriptions
for
both
narcotic
and
non-
narcotic drugs, which Alvey tracks on a list stating the times
to take each medication. (Alvey Dep. Doc. # 51-1 at 63:2224, 64:9-12). Because Alvey kept all of her medications in
one bottle, Safe Harbor required Alvey to turn over that
bottle during intake. (Alvey Dec. Doc. # 49-2 at ¶ 9; Alvey
Dep. Doc. # 51-1 at 67:16-68:24, 69:16-70:2).
8
Throughout her twenty hour stay in Pod 3 on June 20,
2014, Alvey laid down on her “boat,” ate one or two meals,
and used the bathroom at least once. (Alvey Dep. Doc. # 51-1
at 72:5-8, 72:15-73:11, 77:10-11). Staff signed a medication
log, indicating that they provided medication to Alvey. (Doc.
# 49 at ¶ 25; Semone Dep. Doc. # 49-7 at 45:1-24).
During a head-count of the shelter’s residents around
8:00 p.m. that night, Alvey fell and injured her hip, elbow,
and head, as she tried to get up from her “boat” with her
cane. (Alvey Dec. Doc. # 49-2 at ¶ 11). Because she had hit
her head and was suffering back and hip pain, Alvey was taken
by ambulance to Northside Hospital where she was treated with
pain medication. (Alvey Dep. Doc. # 51-1, 92:14-17; Doc. #
52-5).
Meanwhile, Alvey was checked out of Safe Harbor at 9:43
p.m. on June 20, 2014, through the TBIN system. (Doc. # 4914 at 13). Additionally, a Safe Harbor staff member determined
that Safe Harbor was “not conducive to the medical needs of
[Alvey]” and banned her from Safe Harbor. (Doc. # 51-25 at
68).
After being released from the hospital, Alvey attempted
to return to Safe Harbor after midnight on June 21, 2014,
because she had nowhere else to stay. (Doc. # 13 at ¶ 35;
9
Doc. # 49 at ¶¶ 40-41). Alvey asserts that she was told by a
guard at the gate that she could not re-enter Safe Harbor
because she was not medically fit and had been banned. (Alvey
Dep. Doc. # 51-1 at 105:20-106:19). According to Alvey, the
guard told her that she would have to come back another day
to retrieve her medicine. (Id. at 114:22-115:6).
That night, Alvey slept on a bus bench near Safe Harbor
as she could not walk far and had nowhere else to go. (Alvey
Dec. Doc. # 49-2 at ¶ 15). Alvey returned to Safe Harbor two
days later, on June 23, 2014, and retrieved her medications
without being allowed inside the facility. (Id. at ¶ 16).
On August 10, 2015, Alvey filed her Complaint against
Gualtieri in his official capacity as Sheriff of Pinellas
County, alleging that Safe Harbor intentionally discriminated
against her in violation of Title II of the Americans with
Disabilities
Act
(ADA)
by
failing
to
provide
her
with
reasonable modifications that would have allowed Alvey to
participate in Safe Harbor’s services and programs. (Doc. #
1 at ¶¶ 56-64). Alvey sought both injunctive relief and
damages for the intentional discrimination and injury she
allegedly suffered at Safe Harbor. (Id. at 12). The case
proceeded and, by Court order, the parties mediated; however,
mediation was unsuccessful. (Doc. ## 26, 27, 37).
10
Subsequently, Alvey filed her Motion for Partial Summary
Judgment and Gualtieri filed his Motion for Summary Judgment.
(Doc.
##
49,
50).
The
parties
both
filed
responses
in
opposition and replies. (Doc. ## 64, 65, 73, 74).
During the briefing period for the cross-motions for
summary judgment, Gualtieri filed a motion to dismiss Alvey’s
claim for injunctive relief for lack of standing. (Doc. #
63). On October 18, 2016, the motion to dismiss was granted.
(Doc. # 86). Accordingly, only Alvey’s claims for past acts
of discrimination remain for the Court’s decision on the
cross-motions for summary judgment.
II.
Legal Standard
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.
R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
11
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers
to
interrogatories,
and
admissions
on
file,’
designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
12
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists
of
conclusional
However,
nothing
if
“more
allegations,”
the
than
non-movant’s
summary
a
repetition
judgment
is
response
of
not
his
only
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
Finally,
the
filing
of
cross-motions
for
summary
judgment does not give rise to any presumption that no genuine
issues of material fact exist. Rather, “[c]ross-motions must
be considered separately, as each movant bears the burden of
establishing that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law.” Shaw
Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538–
39 (5th Cir. 2004); see also United States v. Oakley, 744
F.2d 1553, 1555 (11th Cir. 1984)(“Cross-motions for summary
judgment
will
not,
granting
summary
in
themselves,
judgment
unless
warrant
one
of
the
the
court
in
parties
is
entitled to judgment as a matter of law on facts that are not
genuinely disputed . . . .”)(quotation omitted).
13
III. Analysis
Title II of the ADA prohibits discrimination in public
services
individual
and
transportation
with
a
disability
and
states,
shall,
by
“No
reason
qualified
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.” 42 U.S.C. § 12132.
The Department of Justice (DOJ) promulgates regulations
implementing the ADA. For Title II of the ADA, the regulations
state that a public entity may not:
(i) Deny a qualified individual with a disability
the opportunity to participate in or benefit from
the aid, benefit, or service;
(ii) Afford a qualified individual with a
disability an opportunity to participate in or
benefit from the aid, benefit, or service that is
not equal to that afforded others;
(iii) Provide a qualified individual with a
disability with an aid, benefit, or service that is
not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit,
or to reach the same level of achievement as that
provided to others
28 C.F.R. § 35.130(b)(1)(i)-(iii). However, a public entity
also may not
[p]rovide different or separate aids, benefits, or
services to individuals with disabilities or to any
class of individuals with disabilities than is
provided to others unless such action is necessary
to provide qualified individuals with disabilities
14
with aids, benefits, or services that
effective as those provided to others.
are
as
28 C.F.R. § 35.130(b)(1)(iv). As the DOJ is charged with
promulgating regulations to implement the ADA, the DOJ’s
regulations are entitled to substantial deference. Blum v.
Bacon, 457 U.S. 132, 141 (1982)(stating “the interpretation
of an agency charged with the administration of a statute is
entitled to substantial deference”); see also Olmstead v.
L.C. ex rel. Zimring, 527 U.S. 581, 598 (1999)(noting that
DOJ’s interpretation of Title II of the ADA “warrant[s]
respect”).
In order to state a claim under Title II of the ADA, a
plaintiff must allege:
(1) that he is a qualified individual with a
disability; (2) that he was excluded from
participation in or . . . denied the benefits of
the services, programs, or activities of a public
entity or otherwise discriminated against by such
entity; (3) by reason of such disability.
Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001)(internal
citations
omitted).
A
“qualified
individual
with
a
disability” is “an individual with a disability who, with or
without reasonable modification . . . or the provision of
auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation
15
in programs or activities provided by a public entity.” 42
U.S.C. § 12131(2).
Here, there is no dispute that Alvey is disabled. (Doc.
# 50 at 15).
Rather,
the question is whether Gualtieri
excluded Alvey from, or denied her the benefits of, Safe
Harbor’s services or programs, on the basis of her disability,
by failing to provide Alvey with a bottom bunk, banning her
from Safe Harbor as “medically unfit,” and refusing to return
Alvey’s medications on the night of her departure.
A. Reasonable Modification During Alvey’s Stay
A
plaintiff
discrimination,
reasonable
can
proceed
disparate
accommodations.
on
theories
treatment,
Schwarz
or
v.
of
intentional
failure
City
of
to
make
Treasure
Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008). In cases
alleging a failure to make reasonable accommodations, the
defendant’s duty to provide a reasonable accommodation is not
triggered until the plaintiff makes a specific demand for an
accommodation
or
the
need
for
an
accommodation
becomes
obvious. See Wolfe v. Fla. Dep’t of Corr., No. 5:10-CV-663OC-PRL, 2012 WL 4052334, at *4 (M.D. Fla. Sept. 14, 2012)(“In
addition to showing that Wolfe is a qualified individual with
a disability, Plaintiff must show that Wolfe requested an
accommodation or the need for one was obvious and the public
16
entity failed to provide a reasonable accommodation.”)(citing
McCoy v. Tex. Dep’t of Criminal Justice, No. C–05–370, 2006
WL 2331055, *7–9 (S.D. Tex. Aug. 9, 2006)); see also Rylee v.
Chapman, 316 Fed. Appx. 901, 906 (11th Cir. 2009)(“In cases
alleging a failure to make reasonable accommodations, the
defendant’s duty to provide a reasonable accommodation is not
triggered until the plaintiff makes a ‘specific demand’ for
an accommodation.”).
When
the
public
entity
provides
a
reasonable
accommodation that gives a disabled individual an “equal
opportunity to . . . gain the same benefit,” the public entity
has provided “meaningful access.” Alexander v. Choate, 469
U.S. 287, 301 (1985). “The reasonableness of an accommodation
is generally a question of fact not appropriate for resolution
on summary judgment.” Wolfe, 2012 WL 4052334, at *4.
Furthermore, a governmental entity does not have to
institute an accommodation that would “fundamentally alter”
its programs or services. 28 C.F.R. § 35.130(b)(7)(i)(“A
public
entity
shall
make
reasonable
modifications
in
policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the
17
service, program, or activity.”). The burden of proving a
fundamental alteration lies with the defendant; “[i]f the
defendant
fails
to
meet
requested modification.”
this
burden,
it
must
make
the
Alumni Cruises, LLC v. Carnival
Corp., 987 F. Supp. 2d 1290, 1306 (S.D. Fla. 2013).
1. Alvey’s Motion
As a preliminary matter, the Court notes that Gualtieri
failed to specifically admit or deny each allegation in
Alvey’s statement of material facts in his response to Alvey’s
Motion.
(Doc.
#
Motion,
Alvey’s
65).
Accordingly,
statement
of
in
material
evaluating
facts
is
Alvey’s
deemed
admitted. See (Doc. # 33 at 7)(“The memorandum in opposition
shall specify the material facts as to which the opposing
party contends there exists a genuine issue for trial, and
shall be accompanied by affidavit(s) and other evidence in
the form required by Fed. R. Civ. P. 56.”); see also United
States District Court, Middle District of Florida, Judicial
Info, Virginia M. Hernandez Covington, Civil Motions, Motions
for
Summary
Judgment,
Statement
of
Material
Facts,
http://www.flmd.uscourts.gov/judicialInfo/Tampa/JgCovington
.htm (October 28, 2016, at 3:27 PM)(“In deciding a motion for
summary judgment, the Court will deem admitted any fact in
the statement of material facts that the opposing party does
18
not specifically controvert, provided the moving party’s
statement is supported by evidence in the record.”).
The statement of material facts in Gualtieri’s Motion
does not constitute a refutation of Alvey’s statement of
material facts. See Rives v. Lahood, 605 Fed. Appx. 815, 81718 (11th Cir. 2015)(finding that “[t]he magistrate judge did
not abuse her discretion in deeming [defendant’s] statement
of undisputed material facts admitted because [plaintiff] did
not respond to the statement as required by [the local
rules],” even though plaintiff disputed those facts in his
own motion for summary judgment).
Nevertheless, Gualtieri’s failure to dispute Alvey’s
statement of material facts does not permit a finding on
behalf
of
Alvey
unless
her
assertions
are
supported
by
evidence in the record. See Id. at 818 (“[A]fter deeming the
movant’s statement of undisputed facts to be admitted . . .
the district court must then review the movant’s citations to
the record to determine if there is, indeed, no genuine issue
of material fact.”)(quoting Reese v. Herbert, 527 F.3d 1253,
1269 (11th Cir. 2008)(internal quotation marks omitted)).
As
Gualtieri
admitted
the
facts
of
Alvey’s
Motion,
Gualtieri has not asserted that the modifications in dispute
would have fundamentally altered Safe Harbor’s services and
19
programs.
undisputed
Therefore,
facts
the
establish
only
that
question
Safe
is
whether
Harbor
failed
the
to
reasonably accommodate Alvey by assigning her to a “boat”
rather than a bottom bunk.
Alvey asserts that Safe Harbor failed to reasonably
accommodate her when it denied her request to be assigned to
a bed, rather than a “boat.” (Doc. # 49 at 20). She requested
a bed at intake because she has difficulty sitting down and
getting up from the ground, but she was told that none were
available. (Gualtieri Interrog. Responses 2-3, Doc. # 49-14
at 20). One of Gualtieri’s verified responses to Alvey’s
interrogatories states:
On intake on June 20, 2014, [Alvey] requested a bed
at [Safe Harbor]. No beds were available in the
female dorm (Pod # 3), so PCSO employees CJS Novak
and CJS Semone had the authority to grant [Alvey]
the reasonable modification of providing her a boat
inside Pod # 3 without a doctor’s note.
(Id.).
Although Alvey did not recall requesting a bed at intake
specifically, she recalled that she had entered Safe Harbor
walking with a cane and had moved to an empty wheelchair she
found there. (Alvey Dec. Doc. # 49-2 at ¶ 8; Alvey Dep. Doc.
# 51-1 at 124:24-125:1). Thus, during intake, Alvey sat in a
wheelchair and answered that she suffers from a disability of
20
long duration — the situation CJS Novak testified would result
in him assigning a resident to a lower bunk if available, or
otherwise providing the resident with a “boat” even if he or
she did not have a doctor’s note. (Novak Dep. Doc. # 51-14 at
33:14-34:20). Even if Alvey did not request a bed at intake,
a reasonable jury could find that her disability was obvious
to Safe Harbor staff at that point.
A genuine factual dispute surrounds whether beds were
available in Pod 3 when Alvey stayed at Safe Harbor. The most
significant evidence regarding the availability of beds in
Pod 3 is the TBIN bed records from June 19-21, 2014. (Doc. #
49-36). The records include a chart with the number of each
sleeping space listed, and the identifying number of the
resident assigned to each space. For the nights of June 20
and 21, 2014, the nights in which Alvey stayed at Safe Harbor
or sought to return there after the hospital, the records
show blank spaces by a number of bunk bed spots. (Id.). The
blank spaces, where a resident’s identity number would be
placed, indicate that those beds were not assigned to anyone
at that time. (Id.).
Alvey asserts that the bed records prove that Safe Harbor
staff assigned Alvey to a “boat,” even though there were beds
available — beds staff members testified were typically given
21
to disabled residents like Alvey when available. See (Novak
Dep. Doc. # 51-14 at
24:23-25:4).
As Gualtieri
did not
controvert Alvey’s statement of material facts, Gualtieri
admits the authenticity of the bed records. However, as
Gualtieri notes, there are discrepancies in the records.
(Doc. # 49-36; Doc. # 65 at 15 n.7). Specifically, for the
three days of the record, June 19-21, 2014, two bottom bunks,
sleeping spaces 20 and 78, are marked with three different
resident numbers each, implying that each of those bunks was
assigned to three Pod 3 residents at the same time. See (Doc.
# 49-36).
Such inconsistent records do not establish that bottom
bunks were available while Alvey stayed on her “boat” in Pod
3 because reasonable minds could draw different inferences
from the bed records. See United States v. Oakley, 744 F.2d
1553, 1555 (11th Cir. 1984)(“[I]f reasonable minds differ on
the
inferences
arising
from
undisputed
facts,
summary
judgment should be denied.”)(citing Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294 (11th Cir. 1983)). Indeed,
if the additional residents listed under the bottom bunks 20
and 78 had been assigned to the other bottom bunks that appear
empty on the record, then no bottom bunks would have been
available for Alvey. Thus, those records do not establish
22
that there were bottom bunks available in Pod 3 on the nights
of June 20, 2014, when Alvey stayed at Safe Harbor, and June
21, 2014, when Alvey returned from the hospital and was denied
a space in Pod 3.
If a factfinder infers from the bed records that bottom
bunks were not available, then the bed records conflict with
Alvey’s
deposition
unassigned
beds,
testimony
which
she
that
was
not
she
saw
allowed
empty
to
use.
and
As
“[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge,” summary judgment for
Alvey would be inappropriate. Strickland v. Norfolk S. Ry.
Co., 692 F.3d 1151, 1154 (11th Cir. 2012)(quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A reasonable
jury
could
infer
from
the
ambiguous
bed
records
and
Gualtieri’s verified interrogatory response that “[n]o beds
were available in [Pod 3]” on June 20, 2014, that there were
no empty beds in Pod 3 during Alvey’s stay and, thus, Alvey
did not request to move to an empty bed. (Gualtieri Interrog.
Response 3, Doc. # 49-14 at 20; Doc. # 49-36).
A jury should weigh the testimony and evidence from both
sides on this issue and determine whether beds were available
23
in Pod 3 during Alvey’s stay at Safe Harbor and after her
return from the hospital.
Furthermore, if there were no beds available when Alvey
arrived at Safe Harbor on June 20, 2016, then there is a
genuine issue of material fact whether providing Alvey with
a
“boat”
without
a
doctor’s
note
was
a
reasonable
accommodation. Although the DOJ’s ADA checklist for emergency
shelters emphasizes that beds the height of Safe Harbor’s
bottom bunks are necessary for disabled individuals, Safe
Harbor’s
failure
to
provide
checklist’s
suggestion
reasonably
accommodate
is
not
Alvey.
a
bed
conforming
necessarily
See
(Doc.
a
#
to
the
failure
to
49-37
at
30)(stating that accessible cots in emergency shelters should
be at least 17 inches from the floor).
Alvey arrived at Safe Harbor past midnight on June 20,
2014; however, Safe Harbor’s curfew for residents is 8 p.m.
(Haisch Dep. Doc. # 49-6 at 108:15-23). Thus, if all beds
were full, Safe Harbor staff would have had to oust another
resident from their assigned bed in the early morning hours
to give Alvey a bottom bunk when she first arrived.
Staff could have reassigned a resident in a bottom bunk
for Alvey later during the day of June 20, 2014. However, it
is unclear whether reassigning a resident in a bottom bunk so
24
that Alvey could move from her “boat” would be a reasonable
accommodation
at
any
time.
Other
disabled
residents
and
veterans are often given priority to take those bottom bunks.
(Haisch Dep. Doc. # 49-6 at 82:18-83:15; Novak Dep. Doc. #
51-14 at 24:20-25:4). Furthermore, Safe Harbor staff often
assigns bottom bunks as an incentive to residents who are
complying with Safe Harbor’s program by looking for work.
(Novak Dep. Doc. # 51-14 at 25:10-18). As bottom bunks are
often given to such residents, a genuine issue of material
fact exists whether it would be reasonable to move another
resident from their bed for Alvey either when Alvey arrived
in the early morning hours or during the day on June 20, 2014.
Therefore, summary judgment is precluded on Alvey’s
claim that Gualtieri failed to reasonably accommodate Alvey
by not assigning her to a bottom bunk.
2. Gualtieri’s Motion
Gualtieri
argues
in
his
Motion
that
Alvey
had
“meaningful access” to Safe Harbor’s programs and services
during her time there. (Doc. # 50 at 17). According to
Gualtieri, Safe Harbor did not fail to reasonably accommodate
Alvey because “when an individual already has ‘meaningful
access’ to a benefit to which he or she is entitled, no
additional accommodations, ‘reasonable’ or not, need to be
25
provided by [the governmental entity].” Medina v. City of
Cape Coral, Fla., 72 F. Supp. 3d 1274, 1278 (M.D. Fla.
2014)(citation omitted).
Gualtieri asserts that reasonable accommodations were
made
for
Alvey
at
Safe
Harbor.
Specifically,
Alvey
was
assigned to a “boat” rather than a mat on the floor without
presenting a doctor’s note. (Alvey Dep. Doc. # 51-1 at 75:1525). Gualtieri emphasizes that it is Safe Harbor’s policy not
to assign a resident to a “boat,” unless the resident presents
a doctor’s note. (Haisch Dec. Doc. # 52-4 at ¶ 23; Semone
Dep. Doc. # 49-7 at 82:7-19, 83:10-22).
Gualtieri
reasonable
is
correct
that
accommodation,
but
Alvey
not
was
entitled
necessarily
to
a
the
accommodation of her choice. See Stewart v. Happy Herman's
Cheshire Bridge, Inc., 117 F.3d 1278, 1285–86 (11th Cir.
1997)(“Stated plainly, under the ADA a qualified individual
with a disability is ‘not entitled to the accommodation of
her
choice,
but
only
to
a
reasonable
accommodation.’”);
Redding v. Nova Se. Univ., Inc., 165 F. Supp. 3d 1274, 129697 (S.D. Fla. 2016)(stating in the ADA Title III context that
a student “was entitled to only a reasonable accommodation
and not necessarily the accommodation of her choice”); but
see Alboniga v. Sch. Bd. of Broward Cty. Fla., 87 F. Supp. 3d
26
1319, 1341 (S.D. Fla. 2015)(noting in ADA Title II case that
“refusing
Plaintiff’s
requested
accommodation
if
it
is
reasonable in favor of one the [Defendant] prefers is akin to
allowing a public entity to dictate the type of services a
disabled person needs in contravention of that person’s own
decisions regarding his own life and care”).
However, as the DOJ’s regulations specify, Gualtieri was
required to provide Alvey with a reasonable accommodation
that would be as effective in affording Alvey a safe sleeping
arrangement as provided to other residents. See 28 C.F.R. §
35.130(b)(1)(iii).
Thus, Safe Harbor’s providing Alvey a
“boat” does not establish that Alvey enjoyed the same benefits
of Safe Harbor’s shelter as residents without disabilities if
she was at greater risk of injuring herself when she used the
“boat.” Cf. Allah v. Goord, 405 F. Supp. 2d 265, 280 (S.D.N.Y.
2005)(“Although [the wheelchair-bound inmate] is not wholly
precluded from participating in [the service of medical care
in facilities outside the prison], if he is at risk of
incurring serious injuries [in the inadequate van] each time
he attempts to take advantage of outside medical attention,
surely
he
is
being
denied
the
benefits
of
this
service.”)(emphasis in original). While a mat or “boat” on
the floor provides the service of a safe sleeping arrangement
27
for residents without disabilities, providing Alvey with a
“boat” may not provide her with the same benefits of that
sleeping arrangement because Alvey was at greater risk of
injury while using the “boat.” As Alvey was injured while
attempting to stand up from her “boat,” a reasonable jury
could conclude that the “boat” did not provide Alvey with the
benefits of a safe sleeping arrangement enjoyed by other
residents.
As
the
Eleventh
Circuit
has
explained,
“[w]hat
is
reasonable must be decided case-by-case based on numerous
factors.” Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1086
(11th Cir. 2007). Here, one factor that a factfinder may
consider relevant is the availability of Alvey’s requested
accommodation. See Cmty.’s Actively Living Independently &
Free v. City of Los Angeles, No. CV 09-0287 CBM (RZx), 2011
WL 4595993, at *16 (C.D. Cal. Feb. 10, 2011)(granting summary
judgment
to
plaintiff
on
liability
and
noting
that
“reasonable modification(s) to the [defendant’s] emergency
preparedness
“presented
no
program
are
evidence
available”
demonstrating
and
the
that
any
defendant
specific
reasonable modification would fundamentally alter the nature
of
its
emergency
preparedness
program
or
cause
undue
burden”); see also Clemons v. Dart, 168 F. Supp. 3d 1060,
28
1071-72
(N.D.
double-amputee
Ill.
2016)(granting
inmate
on
ADA
summary
claim
where,
judgment
for
despite
the
availability of “some ADA compliant cells, . . . for whatever
reason, [the inmate] was not placed in any of those cells”).
Taken
in
the
light
most
favorable
to
Alvey,
the
discrepancy in the bed records could indicate that the blank
bed spaces were available and the additional residents listed
under certain bunks were merely left on the list as a clerical
error. If a reasonable factfinder made this inference, the
blank
spaces
on
the
records
support
Alvey’s
deposition
testimony that beds were available when Safe Harbor staff
denied Alvey’s request and controvert Gualtieri’s statement
that “[n]o beds were available” in Pod 3 when Alvey arrived
at Safe Harbor. (Gualtieri Interrog. Response 3, Doc. # 4914 at 20).
A reasonable jury could find that a refusal to give Alvey
a bottom bunk when some were empty renders Alvey’s assignment
to a “boat” an insufficient accommodation that failed to
provide Alvey the benefits of Safe Harbor’s services and
programs enjoyed by residents without disabilities.
Even if beds were available, Gualtieri asserts that
Alvey did not make a specific demand for an accommodation.
(Doc. # 50 at 15). Alvey controverts this assertion. (Doc. #
29
64 at 14). Gualtieri conceded in his response to Alvey’s
interrogatories that Alvey requested a bed at intake but no
beds were available. (Gualtieri Interrog. Response 3, Doc. #
49-14 at 20).
In her deposition,
Alvey
stated that she
requested an empty bottom bunk in Pod 3 but was told by Safe
Harbor staff that those beds were being kept empty in case a
more severely disabled resident arrived. (Alvey Dep. Doc. #
51-1 at 88:16-89:17).
Although the Eleventh Circuit has not ruled on the
specificity required of a request for accommodation under
Title II of the ADA, that court has held in Fair Housing Act
and ADA Title I cases that no particular form is required.
Rather, the focus is whether the defendant “[has] enough
information to know of both the disability and desire for an
accommodation, or circumstances must at least be sufficient
to
cause
a
reasonable
[defendant]
to
make
appropriate
inquiries about the possible need for accommodation.” United
States v. Hialeah Hous. Auth., 418 Fed. Appx. 872, 876 (11th
Cir. 2011)(quoting Colwell v. Rite Aid Corp., 602 F.3d 495,
506 (3d Cir. 2010)); see also Holly v. Clarison Indus., LLC,
492 F.3d 1247, 1261 n.14 (11th Cir. 2007)(noting in ADA Title
I case that the Eleventh Circuit has not “determined precisely
what form the request must take”).
30
Taken in the light most favorable to Alvey, Alvey’s
request for an empty bottom bunk from a Safe Harbor staff
member gave the staff notice of her desire for a bed. Also,
staff knew of Alvey’s disability because she walked with a
cane
and
Alvey’s
TBIN
records
reflect
that
she
had
a
disability of long duration. Her disability was obvious to
the extent that staff decided to give Alvey a “boat” without
a doctor’s note.
Taking the evidence in the light most favorable to Alvey,
genuine
issues
of
material
fact
exist
regarding
whether
bottom bunks were available in Pod 3 and whether
Alvey
requested a bed as a reasonable accommodation. Furthermore,
a reasonable factfinder could find that the provision of a
“boat,” rather than a bottom bunk, did not allow Alvey to
enjoy the same benefits of Safe Harbor’s shelter services and
was
not
a
reasonable
accommodation
regardless
of
bed
availability. These genuine issues of material fact preclude
summary judgment regarding Alvey’s claims
that
Gualtieri
failed to reasonably accommodate her by assigning her to a
“boat,” instead of a bottom bunk.
31
B. Reasonable Accommodation After Alvey’s Stay
1. Alvey’s Motion
Alvey
alleges
that
Gualtieri
failed
to
reasonably
accommodate her when staff banned her from Safe Harbor. (Doc.
# 49 at 16-17). Alvey also states that Safe Harbor failed to
reasonably accommodate her when a guard at Safe Harbor’s gate
refused to return her medications from the shelter’s pharmacy
the night she was banned. (Id.).
According to the TBIN records, Alvey was checked out of
Safe Harbor at 9:43 p.m. on the night of June 20, 2014. (Doc.
# 49-14 at 13). At that time, the staff entered the ban
because the facility was not “conducive to the medical needs
of [Alvey].” (Doc. # 51-25 at 68). Alvey stresses, and
Gualtieri does not contest, that the permanent ban remains in
place to this day. (Doc. # 49 at ¶ 46; Doc. # 49-12 at 10;
Cline Dep. Doc. # 49-9 at 80:2-7).
Safe
Harbor’s
residents
must
be
able
to
care
for
themselves because Safe Harbor’s limited staff prevents it
from caring for “individuals who are unable to eat, sit down,
walk or use the facilities without the assistance of another
person.” (Doc. # 49-12 at 29). Under 28 C.F.R. § 35.130(b)(8),
[a] public entity shall not impose or apply
eligibility criteria that screen out or tend to
screen out an individual with a disability or any
32
class of individuals with disabilities from fully
and equally enjoying any service, program, or
activity, unless such criteria can be shown to be
necessary for the provision of the service,
program, or activity being offered.
Id. Additionally, a public entity is not required to provide
“services
of
a
personal
nature
including
assistance
in
eating, toileting or dressing” that are not already part of
its services. 28 C.F.R. § 35.135.
Safe Harbor’s policy that residents be able to care for
themselves in daily functions has the tendency to screen out
individuals with disabilities.
Cf.
Rendon v.
Valleycrest
Prod., Ltd., 294 F.3d 1297, 1285-86 (11th Cir. 2002)(finding
discriminatory screening methods violate the ADA). Still, a
genuine issue of material fact exists whether the criteria is
necessary for Safe Harbor to provide its services.
Alvey told Safe Harbor staff that “she could not sit/lay
down
on
a
mat
without
assistance.”
(Gualtieri
Interrog.
Response, 2 Doc. # 49-14 at 20). Additionally, Alvey can only
walk short distances. (Alvey Dep. Doc. # 51-1 at 31:22-32:1).
For that reason, Alvey was taken in a wheelchair by a staff
member to Pod 3 after her intake interview. (Id. at 89:1890:9). Furthermore, Alvey was injured while standing up from
her
“boat”
to
attend
Safe
Harbor’s
nightly
outside. (Alvey Dec. Doc. # 49-2 at ¶ 11).
33
head-count
If Alvey could not be assigned to a bed and would require
assistance getting up from a “boat” for required headcounts
or other activities, as well as needing a wheelchair pushed
by a staff member to travel longer distances around the
facility, reasonable minds could differ on whether Alvey’s
needs could be met by Safe Harbor’s limited staff. Thus, a
reasonable jury could conclude that Alvey’s needs, including
her difficulty sitting and lying down, standing up from the
ground,
and
walking
without
assistance,
rendered
her
unqualified to stay at Safe Harbor even if a bottom bunk were
available.
Although
the
determination
that
Alvey
was
medically unfit to stay at Safe Harbor screened out Alvey
from its services, taking the evidence in the light most
favorable to Gualtieri,
Safe Harbor’s criteria regarding
residents’ physical abilities may be necessary given Safe
Harbor’s staffing limitations.
Furthermore, as Alvey arrived back at Safe Harbor late
in
the
evening,
a
reasonable
jury
could
conclude
that
requiring staff to gather Alvey’s belongings and medications
from the locked medicine room and immediately return them to
her was not a reasonable accommodation. The night shift at
Safe Harbor is typically staffed by one CJS, while the morning
and afternoon shifts are typically staffed by two. (Haisch
34
Dec. Doc. # 52-4 at ¶ 9). However, Safe Harbor’s medicine
policy requires two staff members to access any medication
from the locked room for security reasons. (Haisch Dep. Doc.
# 49-6 at 130:20-131:4). With its security concerns over the
distribution of narcotics among the residents, and the leaner
staffing maintained over the night shift, reasonable minds
could
differ
on
whether
requiring
two
staff
members
to
immediately procure and return her medications would be a
reasonable accommodation.
Therefore, summary judgment cannot be granted on Alvey’s
claim that Gualtieri discriminated against her by banning her
as medically unfit for Safe Harbor and failing to return her
medications immediately.
2. Gualtieri’s Motion
Gualtieri argues that Alvey has not established that she
was excluded discriminatorily from the services, programs,
and benefits of Safe Harbor when she was banned from the
shelter as medically unfit and was denied the immediate return
of her medications. (Doc. # 50 at 19-20). However, Gualtieri
has not provided evidence that Safe Harbor staff considered
whether Alvey would be medically fit to stay at Safe Harbor
if she was provided her requested reasonable accommodation —
a bottom bunk. See PGA Tour, Inc. v. Martin, 532 U.S. 661,
35
688 (2001)(stating, in the ADA Title III context, that “an
individualized inquiry must be made to determine whether a
specific modification for a particular person’s disability
would
be
reasonable
under
the
circumstances
as
well
as
necessary for that person, and yet at the same time not work
a fundamental alteration”).
Additionally,
Gualtieri
asserts
that
Alvey
was
not
prevented from entering Safe Harbor upon her return from the
hospital,
and
thus
was
not
excluded
from
its
services.
Gualtieri concedes that Alvey stated that a guard denied Alvey
reentry to Safe Harbor. (Doc. # 50 at ¶ 35; Alvey Dep. Doc.
# 51-1 at 105-18-106:19). However, Gualtieri points to an
incident report by Safe Harbor staff, stating that Alvey was
offered an outdoor sleeping space in Pod 6 because Pod 6 has
a staff member or guard present at all times who could assist
Alvey if she needed additional help. (Doc. # 51-25 at 69;
Haisch Dep. Doc. # 49-6 at 109:12-110:15).
Alvey argues that the Court should not consider the
incident
report,
which
states
that
Alvey
was
offered
a
sleeping space in Pod 6 after returning from the hospital,
because it is inadmissible hearsay. (Doc. # 64 at ¶ 27). “The
general
rule
is
that
inadmissible
hearsay
cannot
be
considered on a motion for summary judgment.” Jones v. UPS
36
Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012)(quoting
Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999)).
However,
if
the
hearsay
statement
could
be
reduced
to
admissible evidence at trial or reduced to admissible form,
a court may consider the statement in deciding a motion for
summary judgment. Id. at 1293-94.
Here, the incident report was completed by Community
Policing Officer Cook, and the report appears based on his
personal interaction with Alvey. (Doc. # 51-25 at 69). If the
report is based on Cook’s personal knowledge, then Cook could
testify at trial regarding his conversation with Alvey. See
Jones, 683 F.3d at 1294 (“The most obvious way that hearsay
can be reduced to admissible form is to have the hearsay
declarant
testify
directly
to
the
matter
at
trial.”).
However, if Cook was recording what he had been told by the
other Safe Harbor staff who are listed on the report as
“person(s) involved,” then the incident report may not be
reducible to admissible form.
Regardless, the incident report would not necessarily
establish
that
Alvey
had
been
offered
a
reasonable
accommodation when she returned from the hospital to Safe
Harbor. Residents in Pod 6 can only sleep on mats or “boats,”
as there are no bunk beds in that pod. (Semone Dep. Doc. #
37
49-7 at 85:25-86:8). While Pod 6 has a guard or other staff
member present at all times, staff assign residents who have
violated Safe Harbor’s rules, missed curfew, or returned to
the shelter severely intoxicated to this outdoor pod. (Haisch
Dec. Doc. # 52-4 at ¶ 25).
Thus, if Alvey would be qualified to stay at Safe Harbor
with the reasonable accommodation of a bottom bunk in Pod 3,
if it were available, there is a genuine issue of material
fact
whether
banning
Alvey
permanently
or
alternatively
offering her another “boat” in the less desirable Pod 6
constituted a failure to provide a reasonable accommodation.
However, the bed records for the night of June 21, 2014,
can
be
interpreted
as
supporting
either
that
beds
were
available or that every bed was full. (Doc. # 49-36). If all
beds were full when Alvey returned from the hospital past
Safe Harbor’s curfew, reasonable minds could disagree over
whether Alvey would be qualified to stay at Safe Harbor as
Alvey would need to be assigned to a “boat,” like the one
from which she was unable to lift herself safely, unless staff
moved another resident from her assigned bottom bunk for
Alvey.
Regarding Alvey’s medications, Gualtieri points out that
the guards at Safe Harbor’s gates are not employees of the
38
Pinellas
County
Sheriff’s
Department.
Rather,
they
are
employees of G4S Services, a private security company that
contracts
with
the
Pinellas
County
Sheriff
and
provides
additional security at Safe Harbor. (Haisch Dec. Doc. # 52-4
at ¶ 6). The Eleventh Circuit has held that “a private
corporation is not a public entity merely because it contracts
with a public entity to provide some service.” Edison v.
Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010). Therefore, a
private
corporation,
even
if
fulfilling
a
traditional
government function, is not subject to liability under Title
II
of
the
corporation,
ADA.
we
See
hold
Id.
(“Since
that
GEO
GEO
is
is
not
such
a
a
public
private
entity
subjecting it to liability under Title II of the ADA . . .”).
Gualtieri
argues
that
because
Alvey
stated
she
was
refused her medications by someone working at Safe Harbor’s
gate, she must have been refused by a private guard rather
than a Safe Harbor employee. Therefore, Gualtieri asserts
that Alvey cannot establish that she was denied the reasonable
accommodation of her medications by a Safe Harbor employee.
(Doc. # 50 at 20).
Taking the evidence in the light most favorable to Alvey,
the fact that a private guard may have been the person who
told Alvey that she could not re-enter Safe Harbor does not
39
preclude the inference that Safe Harbor staff failed to
reasonably accommodate Alvey. Safe Harbor staff entered the
ban on Alvey hours before she returned and had access to the
locked
medicine
room,
which
could
lead
a
reasonable
factfinder to infer that Safe Harbor staff had made the
decision to turn Alvey away as medically unfit and refuse to
return her medications that night. See (Haisch Dep. Doc. #
49-6 at 154:16-155:10, 166:22-167:3). If Safe Harbor staff
had been made aware of Alvey’s requests to enter the shelter
or for her medications to be returned, but instructed the
guard to deny these requests, then a reasonable jury may
conclude that Safe Harbor staff, rather than a G4S guard,
failed to reasonably accommodate Alvey and thereby violated
Title II of the ADA.
These genuine issues of material fact preclude summary
judgment regarding Alvey’s claims that Gualtieri failed to
reasonably accommodate her by banning her as medically unfit
for
Safe
Harbor
and
failing
to
return
her
medications
immediately.
C. Damages
To prevail on her claim for compensatory damages under
the ADA, a plaintiff must show that the defendant violated
her rights under the ADA with discriminatory intent. McCullum
40
v. Orlando Reg'l Healthcare Sys., Inc., 768 F.3d 1135, 114647 (11th Cir. 2014). A plaintiff may show that the defendant
acted with discriminatory intent “by showing that a defendant
was deliberately indifferent to his statutory rights.” Id. at
1147 (citing Liese v. Indian River Cty. Hosp. Dist., 701 F.3d
334, 345 (11th Cir. 2012)).
Deliberate
indifference
requires
more
than
gross
negligence. To establish deliberate indifference, a plaintiff
must show that the defendant “knew that harm to a federally
protected right was substantially likely” and “failed to act
on that likelihood.” Liese, 701 F.3d at 344 (quotation marks
omitted)(emphasis
in
original).
“Where
the
substantial
likelihood of harm is obvious, a jury may infer that the
defendant had actual knowledge of that substantial risk of
harm.” McCullum, 768 F.3d at 1147 (citing Farmer v. Brennan,
511 U.S. 825, 842 (1994)).
Deliberate indifference cannot be shown based on the
actions of any employee of a public entity. Rather, such a
showing requires “an official who at a minimum has authority
to
address
the
alleged
discrimination
and
to
institute
corrective measures on the [organization’s] behalf [and who]
has
actual
knowledge
of
discrimination
in
the
[organization’s] programs and fails adequately to respond.”
41
Liese, 701 F.3d at 349 (quoting Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 290 (2012)). The requirement that
“there be an official is separate from the requirement that
the official have the knowledge of and authority to correct
an entity’s discriminatory practices.” Id.
The official does not have to be a policymaker in the
organization. Id. at 349-50. “The question of how far up the
chain of command one must look to find an ‘official’ is
necessarily a fact-intensive inquiry, since an official’s
role may vary from organization to organization.” Id. at 350.
The key factor in determining whether an individual is an
officer
is
whether
he
or
she
“is
someone
who
enjoys
substantial supervisory authority within an organization’s
chain of command so that, when dealing with the complainant,
the official had complete discretion at a ‘key decision point’
in the administrative process.” Id. The Eleventh Circuit
explained that the “key decision point” language acknowledges
“the
practical
reality
that,
while
some
decisions
are
technically subject to review by a higher authority, such a
review is not part of the entity’s ordinary decision-making
process.” Id.
Gualtieri notes that Sergeant Haisch had the authority
to overturn bans or other decisions regarding residents’
42
access to Safe Harbor’s services. (Gualtieri Dep. Doc. # 494 at 73:24-74:8; Haisch Dep. Doc. # 49-6 at 97:11-98:1).
Haisch regularly reviewed the end-of-shift logs entered by
Criminal Justice Specialists, in which CJS staff would note,
among other things, the imposition of a ban or disciplinary
action. (Haisch Dep. Doc. # 49-6 at 97:4-10). Thus, according
to
Gualtieri,
CJS
staff
were
not
acting
with
complete
discretion when they banned Alvey because Sergeant Haisch
could reverse their decision.
But a genuine issue of material fact exists regarding
the extent to which Sergeant Haisch exercised that authority.
Although he would review a sleeping assignment made for
disciplinary reasons, Sergeant Haisch acknowledged that he
would
not
review
arrangements
“run-of-the-mill”
instituted
by
CJS
changes
staff,
even
in
sleeping
though
those
changes also appear on the end-of-shift logs. (Haisch Dep.
Doc. # 49-6 at 96:18-97:10). Alvey’s assignment to a “boat”
and the denial of her request for a bed were not made for
disciplinary reasons. Taking the evidence in the light most
favorable to Alvey, the CJS staff who denied her request for
a bed were officials who enjoyed complete discretion in
deciding whether to change a resident’s sleeping arrangement
or ban a resident.
43
If a reasonable jury finds that Gualtieri violated the
ADA by failing to accommodate Alvey, then a reasonable jury
could likewise find that Gualtieri acted with deliberate
indifference by refusing to allow Alvey to use an empty bed
in Pod 3, and subsequently banning Alvey from Safe Harbor
after she was injured while attempting to stand up from her
“boat.”
Cf.
Clemons,
168
F.
Supp.
3d
at
1072
(“Given
[plaintiff’s] obvious need for an ADA compliant cell and the
presence of those cells within the [jail], a reasonable juror
could only find that the defendants acted with deliberate
indifference and ‘fail[ed] to act’ upon the likelihood that
[plaintiff] would be denied the access to the needed ‘programs
and services.’”).
A
reasonable
jury
could
also
find
that
Gualtieri’s
actions did not rise to the level of deliberate indifference
towards
Alvey’s
right
under
the
ADA
to
be
free
from
discrimination on the basis of her disability. Although the
staff at Safe Harbor did not assign Alvey to a bottom bunk,
they did assign her to a “boat,” even though Alvey did not
have the doctor’s note typically required.
While
a
“boat”
may
not
be
a
sufficient
reasonable
accommodation under the ADA’s regulations, providing Alvey
with a “boat” may convince a reasonable jury that Safe Harbor
44
staff did not deny Alvey a bottom bunk knowing that there was
a
substantial
likelihood
that
Alvey’s
rights
would
be
violated. Rather, a reasonable jury could infer that staff
made a good faith effort to provide Alvey with the benefits
of Safe Harbor’s services, even if it finds that Safe Harbor
did fail to reasonably accommodate Alvey. See Badillo v.
Thorpe, 158 Fed. Appx. 208, 214 (11th Cir. 2005)(“In other
words, good faith attempts to pursue legitimate ends are not
sufficient to support an award of compensatory damages under
[the ADA].”)(internal quotations omitted).
Regarding the ban placed on Alvey, reasonable minds
could differ over whether Alvey was qualified to stay at Safe
Harbor and whether Safe Harbor’s criteria regarding medical
fitness were necessary for the provision of Safe Harbor’s
services. See 28 C.F.R. § 35.130(b)(8). As a reasonable jury
could conclude that the ban on Alvey as medically unfit for
Safe Harbor was not unlawful discrimination under Title II of
the ADA, a reasonable jury could conclude that Safe Harbor
staff
did
not
act
with
deliberate
indifference
towards
Alvey’s right to be free from discrimination on the basis of
her disability when it banned her.
45
As a reasonable jury could find either that Gualtieri
did
or
did
not
act
with
discriminatory
intent,
summary
judgment is precluded as to compensatory damages.
IV.
Conclusion
Genuine issues of material fact remain regarding whether
beds were available at Safe Harbor when Alvey was assigned to
a “boat” and later banned from the facility. Another genuine
issue of material fact exists as to whether the provision of
a “boat” for Alvey was a reasonable accommodation, regardless
of bed availability. Furthermore, there is a genuine issue of
material fact whether Alvey, if provided with the reasonable
accommodation of a bottom bunk, would have been “medically
fit” to stay at Safe Harbor after she returned from the
hospital.
Finally, there remains a genuine issue of material fact
whether, if Safe Harbor did fail to reasonably accommodate
Alvey, it did so with discriminatory intent. Therefore, both
Alvey’s Motion for Partial Summary Judgment and Gualtieri’s
Motion for Summary Judgment are denied.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiff
Amber
Alvey’s
Motion
Judgment (Doc. # 49) is DENIED.
46
for
Partial
Summary
(2)
Defendant Bob Gualtieri’s Motion for Summary Judgment
(Doc. # 50) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
7th day of November, 2016.
47
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