Beem v. Kansas, State of et al
Filing
63
MEMORANDUM AND ORDER granting 60 Defendants' Motion for Summary Judgment. The case is closed. Signed by District Judge Carlos Murguia on 4/30/2012. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN D. BEEM,
Plaintiff,
v.
STATE OF KANSAS, et al.,
Defendants.
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Case No. 10-3012-CM
MEMORANDUM AND ORDER
Plaintiff Steven D. Beem, a prisoner at the Lansing Correctional Facility, brings this action
pursuant to the Americans with Disabilities Act (“ADA”).1 Plaintiff claims that defendants—the State
of Kansas, the Director of Division of Personnel Services in the Kansas Department of Administration,
and seven officials/employees of the Kansas Department of Corrections—violated his First, Eighth,
and Fourteenth Amendment rights, thereby depriving defendants of Eleventh Amendment immunity
and giving plaintiff actionable ADA claims. Specifically, plaintiff contends that defendants knew of
numerous ADA violations at Lansing yet failed to correct them. Plaintiff also contends that some of
the defendants retaliated against him for asserting his rights under the ADA. Defendants filed a
Motion for Summary Judgment (Doc. 60), in which they make the following arguments: (1) plaintiff is
1
Although plaintiff originally brought claims pursuant to 42 U.S.C. § 1983, those claims are not present in the controlling
pretrial order. The pretrial order identifies only claims for violations of the ADA. A Rule 16(e) pretrial order supersedes
the pleadings and defines the scope of the action. Hullman v. Bd. of Trustees of Pratt Cmty. Coll., 950 F.2d 665, 668 (10th
Cir. 1991). And even if the court believed that plaintiff had properly preserved his § 1983 claims, the court would grant
summary judgment on those claims for substantially the same reasons contained in this Memorandum and Order. Under §
1983, punitive damages are not available against governmental authorities or individuals sued in their official capacities.
See Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Without the claim for punitive damages, plaintiff is left only
with his claims for compensatory damages, but he fails to show physical injury as required by 42 U.S.C. § 1997e(e).
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not entitled to punitive damages as a matter of law; (2) defendants have not violated the ADA and are
entitled to sovereign immunity; and (3) plaintiff’s retaliation claims fail.
Because the only claims remaining against the individual defendants are brought against them
in their official capacity, the claims are actually claims against the State of Kansas. Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989) (“[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.”) (internal citation omitted). The court therefore considers all
claims remaining in the case as claims against the State of Kansas.
I.
Factual Background
Plaintiff is an inmate at Lansing Correctional Facility East Unit (LCF-EU), which is the
minimum security area of Lansing. LCF-EU was originally a women’s prison, established in 1917.
Plaintiff claims he is non-ambulatory and relies on a wheelchair for all travel. He claims that he
injured his right shoulder on May 29, 2009. At the time, he was attempting to transfer from his
wheelchair to the toilet in Pod 3 of the X Unit. Although plaintiff did not seek immediate treatment,
medical providers examined his shoulder in late June or July 2009, and began giving him physical
therapy on September 17, 2009.
On September 18, 2009, officials removed a broken shower seat in Pod 3 of the X Unit for
repair or replacement. They replaced it with a temporary seat that was only 14.5 inches high instead of
the 17 to 19 inches required by 28 C.F.R. p. 36, app. A, § 4.21.3. Eventually, officials replaced the
temporary shower seat with a permanent one on October 19, 2009. Plaintiff refused to take a shower
while the temporary seat was in place.
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On October 1, 2009, plaintiff submitted a grievance regarding alleged ADA violations.
Plaintiff claims that Andrew Parks, Unit Team Manager, refused to process his grievance. On October
5, plaintiff filed his ADA complaint through Unit Team Counselor Ryan Reece.
Plaintiff claims that on October 9, 2009, prison administration retaliated against him by
denying him the opportunity to obtain a new Kansas state identification and returning his Department
of Motor Vehicles check. Although Corrections Counselor Cecil Lawrence requested clearance for
plaintiff to renew his state identification card, he canceled the trip and returned plaintiff’s check when
he learned that plaintiff was wheelchair-bound. At the time, defendant Lawrence did not know that
plaintiff had filed a grievance or complaint. Plaintiff filed a grievance against defendant Lawrence on
October 29, 2009.
Then, on November 1, 2009, Lieutenant Beeson attempted to confiscate plaintiff’s wheelchair
gloves. According to plaintiff, Lieutenant Beeson told him that the CM-II East Unit Administrator,
Bill Shipman, had ordered him to confiscate the gloves. Plaintiff claims that this action was
retaliatory, as well. Plaintiff confirmed that he had a medical excuse and was then allowed to keep his
gloves.
Plaintiff alleges the following technical violations of the ADA:
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Alleged
Violation
Toilet in Pod 3
of X Unit
Plaintiff’s Position on
Requirements
28 C.F.R. pt. 36, app. A, §
4.17.3 requires that a restroom
stall have a width of 60 inches,
but the stall is only 39 inches
wide.
Temporary
The temporary replacement seat
Shower Seat in was only 14.5 inches in height
Pod 3 of X
and violated 28 C.F.R. pt. 36,
Unit
app. A, § 4.21.3, Fig. 36 and 28
C.F.R. § 35.133.
Water Closet,
The Phillips Hall toilet area was
Grab Bars, and not in compliance with 28
Lavatory inside C.F.R. pt. 36, app. A, §§ 4.16.3
Phillips Hall
and 4.16.4 until October 26,
2010.
No Accessible
Toilet in the
Administration
Building,
which Houses
Religious
Services
No Accessible
Toilet in the
Administration
Building,
which Houses
the Medical
Clinic
Lack of Visual
Fire Alarms in
the Sleeping
Areas of Pod 3
of X Unit
28 C.F.R. § 35.150 requires that
a public entity make services,
programs, or activities “readily
accessible to and usable by
individuals with disabilities.”
The LCF Max and Medium
Units—under the same Warden
but different administrators—
both have toilet facilities in
buildings where religious
services are located.
28 C.F.R. § 35.150 requires that
a public entity make services
“readily accessible to and
usable by individuals with
disabilities.”
28 C.F.R. pt. 36, app. A, §§
4.28.3 and 4.28.4 require that
sleeping accommodations have
a visual alarm.
Defendants’ Position on
Requirements
The exception for existing
buildings allows acceptable
alternate stalls measuring 36
inches by 69 inches.
Gene Myracle, retired Chief of
Maintenance, does not believe
that the temporary shower seat
complied with ADA standards.
Alleged
Injury
Plaintiff
injured his
shoulder on
May 29,
2009.
Plaintiff did
not take a
shower for
one month.
There were problems with the
grab bar height and length, the
height of the toilet, and the cover
below the wash basin. Those
have been corrected and the toilet
area is now in compliance.
Toilet facilities are not available
to any inmate in the East Unit
Administrative Building.
Plaintiff has
to cut
visitations
short.
Toilet facilities are not available
to any inmate in the East Unit
Administrative Building.
Plaintiff has
no toilet
available
while
attending
medical
appointments.
None.
NFPA 72 allows correctional
facilities to have private alarm
systems rather than public alarm
systems. In addition, the building
has not been remodeled, so it is
compliant.
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Plaintiff
cannot attend
religious
services.
II.
Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine
issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). In applying this standard, the court views the evidence and all reasonable inferences there from
in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
III.
Discussion
A. Punitive Damages
The first inquiry does not require much discussion. As a matter of law, Title II of the ADA
does not permit punitive damages awards. Barnes v. Gorman, 536 U.S. 181, 189 (2002); Edmisten v.
Kansas, No. 08-3091-SAC, 2008 WL 4540460, at *5 (D. Kan. Oct. 9, 2008) (citing Barnes, 536 U.S.
at 189). The court grants summary judgment on plaintiff’s claim for punitive damages.
B. Violations of the ADA/Sovereign Immunity
The Supreme Court has stated that if a public entity’s disability-based discrimination violates
the Constitution, the entity is not entitled to sovereign immunity and may be held responsible for ADA
violations. United States v. Georgia, 546 U.S. 151, 159 (2006). In addition, Title II of the ADA also
abrogates sovereign immunity for “at least some classes of conduct that do not facially violate the
Constitution but are prohibited to ‘prevent and deter unconstitutional conduct.’” Guttman v. Khalsa,
446 F.3d 1027, 1034 (10th Cir. 2006) (citing Tennessee v. Lane, 541 U.S. 509, 518 (2004); Georgia,
546 U.S. 151). In resolving the sovereign immunity question, the court is to consider:
(1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and (3) insofar as such
misconduct violated Title II but did not violate the Fourteenth Amendment, whether
Congress’s purported abrogation of sovereign immunity as to that class of conduct is
nevertheless valid.
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Georgia, 546 U.S. at 159. Under this test, the court must first determine whether the public entity
violated the ADA. Guttman, 446 F.3d at 1036; see also Bowers v. NCAA, 475 F.3d 524, 553 (3d Cir.
2007) (addressing the Title II question first); Buchanan v. Maine, 469 F.3d 158, 172–73 (1st Cir. 2006)
(expressly holding that courts must address the ADA question first); Hale v. King, 642 F.3d 492, 498
(5th Cir. 2011) (declining to decide whether Georgia requires courts to decide the merits of a Title II
claim before deciding the constitutional issue).
The ADA prohibits a public entity from discriminating against qualified individuals with
disabilities in the administration of its services, programs, or activities. 42 U.S.C. § 12132. The
regulations implementing the ADA provide, “A public entity shall operate each service, program, or
activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to
and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a). But the regulations further provide
that this mandate does not “[n]ecessarily require a public entity to make each of its existing facilities
accessible to and usable by individuals with disabilities.” Id. § 35.150(a)(1).
1. Toilet in Pod 3 of X Unit
The toilet in Pod 3 meets the standard for “alternate stalls” in C.F.R. pt. 36, app. A, § 4.17.
While it is not an ideal configuration, it is acceptable for an existing building. The evidence indicates
that LFC-EU has not remodeled or altered the building. (Doc. 60-2 at 4.) This ends the inquiry of
whether the toilet presents an ADA violation, and the court’s examination of this issue could end here.
Defendants are entitled to sovereign immunity based on the lack of an ADA violation. For additional
reasons, however, this ADA claim is not compensable.
Compensatory damages for this claim are barred on an independent basis: plaintiff has offered
only an unsupported allegation of physical injury resulting from this claim. Under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(e), a prisoner may not bring a claim for mental or emotional
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injury without a prior showing of physical injury. This limitation applies to ADA claims. Cassidy v.
Ind. Dep’t of Corrs., 199 F.3d 374, 376 (7th Cir. 2000). It also is claim-specific; merely bringing a
case with one physical injury does not relieve all other claims from the physical injury requirement.
Green v. Denning, No. 06-3298-SAC, 2010 WL 781723, at *3 (D. Kan. Mar. 5, 2010).
Plaintiff states in his affidavit that he injured his right shoulder on May 29, 2009 while
attempting to transfer from his wheelchair to the toilet. Plaintiff did not seek medical attention at that
time. On June 21, 2009, he claims that he reinjured his shoulder in the shower. Plaintiff’s medical
records, however, do not mention the May 29 incident. Plaintiff sought medical treatment on July 23,
2009. In the “history” section of the medical record, the evaluator states that plaintiff hurt his right
upper arm while showering on June 21, 2009. (Doc. 61-1 at 44.) There is no mention of a May 29
incident. Plaintiff began physical therapy on his shoulder on September 18, 2009. The progress note
for that date states that plaintiff “[v]oices gradual onset of right shoulder pain without specific injury.”
(Id. at 46.)
Plaintiff’s affidavit, attempting to show that he was injured by the allegedly non-compliant
toilet, cannot now create a genuine issue of material fact about the onset of his injury. See Franks v.
Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (“[T]he utility of summary judgment as a procedure for
screening out sham fact issues would be greatly undermined if a party could create an issue of fact
merely by submitting an affidavit contradicting his own prior testimony.”). In any event, even if
plaintiff did injure his shoulder to some degree on May 29, that injury would qualify as de minimis.
Plaintiff does not describe his injuries. He simply states, “On May 29, 2009 I fell and injured my right
shoulder while attempting to transfer from my wheelchair over onto the toilet located in 3-Pod of XUnit. Thinking the shoulder might heal on its own, I did not seek immediate medical attention.” (Doc.
61-1 at 83.) The lack of detail about his injury—combined with plaintiff’s failure to report any injury
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at all until July 23 (and at that time reporting a different triggering event)—leaves the court to
speculate about the extent of any injury incurred on May 29. There is no factual basis for the court to
conclude that plaintiff may have had an injury that was “less-than-significant-but-more-than-de
minimis.” Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003) (surveying the Circuits’ analyses of
what constitutes adequate physical injury).
The court notes that plaintiff’s affidavit also mentions that he fell while attempting to transfer
from his wheelchair to the toilet on February 20, 2010. He claims that he injured his left shoulder at
that time. But this injury is not mentioned in the pretrial order. In fact, it occurred after the complaint
in this case was filed on January15, 2010. The court therefore does not consider this injury when
evaluating plaintiff’s claim.
2. All other alleged violations
Plaintiff seeks emotional and physical compensatory damages for his claims. (See Doc. 58, at
20–21.) Although he also seeks punitive damages, the court has granted summary judgment on his
punitive damages request. Plaintiff has not requested any non-monetary relief.
The problem with the remainder of plaintiff’s ADA complaints is that he has alleged no
physical injury associated with them. He alleges only that he was prevented from taking certain
actions. As indicated above, physical injury is a necessary predicate for compensatory damages in
prison litigation. 42 U.S.C. § 1997e(e); Cassidy, 199 F.3d at 376; Green, 2010 WL 781723, at *3.
Because plaintiff has alleged no physical injury stemming from any of his other alleged ADA
violations, and because he only seeks compensatory damages for the violations, the court grants
summary judgment on these claims.
C. Retaliation
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The ADA prohibits “discrimination against any individual because such individual has opposed
any act or practice made unlawful by [the ADA] or because such individual made a charge” under the
ADA. 42 U.S.C. § 12203(a). Neither can an entity interfere with a person’s exercise of a right
protected by the ADA. Id. § 12203(b). To prevail on an ADA retaliation claim, a plaintiff must show
that (1) he voiced opposition to an act made unlawful by the ADA; (2) he suffered injury or harm; and
(3) a causal connection existed between the protected act and the retaliation. See Hennagir v. Utah
Dep’t of Corr., 587 F.3d 1255, 1266 (10th Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67–68 (2006)).
The uncontroverted facts relating to plaintiff’s retaliation claims demonstrate that the purported
causal connection between plaintiff’s complaints and defendants’ actions is based on nothing more
than unsupported speculation.
Plaintiff attempted to file a grievance on October 1, 2009, and filed an ADA complaint on
October 5, 2001. Although Cecil Lawrence cancelled plaintiff’s scheduled trip to renew his license on
October 9 and returned plaintiff’s check, the uncontroverted evidence shows that Corrections
Counselor Lawrence was not aware that plaintiff had filed a grievance or complaint at the time he
cancelled the trip. According to Lawrence, he cancelled the trip upon learning that plaintiff was
wheelchair-bound because he had not reserved the correct vehicle to transport plaintiff and he was not
trained in transporting wheelchair-bound inmates. Plaintiff’s attempt to controvert Lawrence’s
representation is ineffective. Plaintiff states, “He [Lawrence] knew who I was prior to my scheduled
trip to the DMV and had known all along that I was wheelchair bound.” (Doc. 61-1 at 87.) This
unsupported statement is insufficient to create a genuine issue as to whether Lawrence knew that
plaintiff had filed a grievance before he cancelled plaintiff’s trip.
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Likewise, plaintiff fails to show a causal connection between his October 5 or October 29
grievance and the glove-confiscation incident. It is true that plaintiff filed a grievance only three days
before Lieutenant Beeson approached him about his gloves. Plaintiff claims that Lieutenant Beeson
told him he was doing so at the order of Bill Shipman. But the October 29 grievance was against
neither Lieutenant Beeson nor Bill Shipman. Further, there is no evidence that either one of them was
aware of the grievance when Lieutenant Beeson approached plaintiff about the gloves. Again, plaintiff
fails to show a causal connection between the events.
It also appears from the record that plaintiff suffered no harm from either event. A memo from
David McKune indicates that plaintiff obtained his state-issued identification on November 24, 2009.
(Doc. 61-1 at 125.) And plaintiff’s gloves were never actually confiscated. Plaintiff only had to show
his medical authorization, and Lieutenant Beeson allowed him to keep them. Without a showing of
harm, plaintiff cannot prevail.
Finally, plaintiff’s ADA retaliation claims for compensatory damages are independently barred
by the lack of physical injury, as further explained above. 42 U.S.C. § 1997e(e); Cassidy, 199 F.3d at
376; Green, 2010 WL 781723, at *3. The court grants summary judgment on plaintiff’s retaliation
claims.
IT IS THEREFORE ORDERED that defendants’ Motion for Summary Judgment (Doc. 60)
is granted.
The case is closed.
Dated this 30th day of April, 2012, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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