Lewis et al v. Cain et al

Filing 594

OPINION: For the reasons stated, the Court holds that the Defendants, in their official capacities, are violating the Eighth Amendment rights of the Plaintiff Class and the ADA and RA rights of the Plaintiff Subclass. Based on the overwhelming evid ence presented at trial, judgment shall be entered in favor of Plaintiffs following the remedy phase. The Court shall order injunctive relief as stated herein. By separate notice, the Court will set a State Conference to discuss proceeding to the remedy phase of this matter. Signed by Chief Judge Shelly D. Dick on 3/31/2021. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOSEPH LEWIS, JR., ET AL.

CIVIL DOCKET NO.: 3:15-CV-318

VERSUS

JUDGE: SHELLY DICK

BURL CAIN, ET AL.

MAGISTRATE: RICHARD BOURGEOIS

OPINION
I.

GENERAL ALLEGATIONS AND PROCEDURAL BACKGROUND
This suit was originally brought by several inmates incarcerated at the Louisiana

State Penitentiary (“LSP”). The LSP at Angola (sometimes referred to as “Angola”) is a
maximum-security men’s prison in Angola, Louisiana that housed between 6200-6400
men throughout the discovery period.1 Plaintiffs claim that the medical care provided at
LSP violates the Eighth Amendment prohibition of cruel and unusual punishment.
Plaintiffs also claim that, through various general practices and policies, LSP systemically
violates the rights of disabled inmates covered by the Americans with Disabilities Act
(“ADA”)2 and the Rehabilitation Act (“RA”).3
The Plaintiffs sought to represent a class of all prisoners who are now, or will in
the future, be confined at LSP (the “Class”), as well as an ADA Subclass of inmates with

1

Undisputed Facts (“UF”) ¶ 1, First Amended Joint Pretrial Order (“JPTO”), Rec. Doc. No. 242-2; PX 6 at
0017; DX 14 at 02876. The relevant time period in this matter was confined to May 20, 2015 (the date of
filing) and September 30, 2016 (the close of the discovery period).
2
42 U.S.C. § 12101, et seq.
3
29 U.S.C. § 701.

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disabilities who are now, or will in the future, be confined at LSP (the “ADA Subclass”).4
Plaintiffs seek injunctive relief to abate the alleged systemic deficiencies in Defendants’
policies and practices that subject all inmates to unreasonable risks of serious harm.5
On February 26, 2018, following a class certification hearing and subsequent briefing
by the Parties, the Court certified a class consisting of “all inmates who [are] now, or will
be in the future, incarcerated at LSP,” and a Subclass of “all qualified individuals with a
disability, as defined by the [Americans with Disabilities Act (“ADA”) and Rehabilitation
Act (“RA”)], who are now, or will be in the future, incarcerated at LSP.”6 The Class and
Subclass are represented by Otto Barrera, Clyde Carter, Ian Cazenave, Ricky Davis,
Reginald George, Kentrell Parker, Lionel Tolbert, John Tonubbee and Edward
Washington.7
This matter came before the Court for an eleven-day non-jury trial on the merits
beginning October 9, 2018. The undersigned also made a site visit to LSP on February
5, 2020.8 The Court has considered the Parties’ pre-trial and post-trial submissions, the
evidence admitted at trial, and the arguments presented, and the Court finds that Plaintiffs
have satisfied their burden of proving that Defendants have been deliberately indifferent
to the inmates’ serious medical needs in the means and manner of the delivery of health
care, in violation of the Eighth Amendment to the United States Constitution. The Court
also finds that Plaintiffs have met their burden of establishing, in part, that Defendants
4

Rec. Doc. No. 140 at 2.
Id.
6
Rec. Doc. No. 394.
7
Id. at 1, 30. Farrell Sampier testified at trial, but he passed away in March 2019 after a stroke. Rufus White
was released from custody in March 2019.
8
The Court issued an electronic notice that it found constitutional violations in the delivery of medical care
at LSP. At the Parties’ request, the Court delayed the issuance of these written reasons to permit the
Parties to explore an amicable resolution, which was unsuccessful.
5

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violated the Americans with Disabilities Act, as modified by the Americans with Disabilities
Act Amendment Act, and Section 504 of the Rehabilitation Act of 1973.
The Court’s credibility findings, findings of fact, and conclusion of law are set forth
below pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
II.

FINDINGS OF FACT
A. Stipulated Facts
The Parties stipulated to the following facts by written submission prior to trial.

Stipulated facts that had changed as of the time of trial are noted.
Facts Related to Medical Care
1.

Louisiana State Penitentiary at Angola (“Angola” or “LSP”) is a maximum security

prison in Angola, Louisiana that currently houses approximately 6400 inmates.
2.

Defendant Louisiana Department of Public Safety and Corrections (“DOC”) is a

division of the State of Louisiana charged with overseeing the custody and care of inmates
in state prisons, including LSP.
3.

Defendant Burl Cain was the Warden of Angola from February 1, 1995 through

December 31, 2015. He was succeeded by Defendant Darrel Vannoy, who is currently
the Warden of Angola. The Warden’s duties include, among other things, assigning
people to manage the medical care and then being sure that they do what the policies
and procedures say.
4.

Defendant Raman Singh was the Chief Medical and Mental Health Director of the

DOC since November 2007, which included managing several departments such as

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nursing, dental and mental health.9 Before November 2007, he served as Medical
Director of Angola, where his duty was to manage offender healthcare for LSP inmates.10
5. Defendant James LeBlanc is the Secretary of the DOC. In that capacity, he supervises
Dr. Singh as well as the rest of the employees of the Department. Although he has
authority over the entire Department in a supervisory capacity, he has delegated authority
for certain tasks and responsibilities to subordinate employees.
6. Defendant Stephanie Lamartiniere was the Assistant Warden for Health Services at
Angola from June 2013 until sometime in 2016. She was succeeded by Defendant Tracy
Falgout, who was the Assistant Warden at the time of trial. The Assistant Warden has
operational control over the medical unit at LSP. This includes, among other
responsibilities, budgeting, hiring of certain classes of employees, medical records, and
any kind of staffing issues.
7. Defendant Randy Lavespere is the current Medical Director of Angola. This position
is responsible for managing, among other things, Angola’s doctors, nurses, patients,
relationship with headquarters, and relationships with administration.
8. Defendant Stacye Falgout has been the Chief Nursing Officer for the DOC since
October 2011. Prior to that time, she was Assistant Director of Nurses at Angola. She
reported to Dr. Singh and is the number two medical employee at DOC headquarters.
9. Defendant Sherwood Poret has been the Director of Nursing at Angola since January
2013 and was the infection control supervisor before that. He supervises all nurses
working at LSP.

9

JX 4-bbb, R. Singh Depo at 9.
As of the date of trial, Dr. Singh had been terminated from this position.

10

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10. LSP’s medical staff currently includes five doctors and one nurse practitioner. Each
of the doctors on LSP’s staff was disciplined by the Louisiana State Board of Medical
Examiners prior to being employed at LSP. Each of the doctors on LSP’s staff had a
restricted license or was restricted to practicing in institutional settings at the time they
were hired by LSP. Some LSP medical staff have completed requirements imposed by
the Medical Board and are no longer under restriction.
11. LSP mainly provides medical care at R.E. Barrow Treatment Center (often called
“REBTC” or the “Treatment Center”), which comprises the Acute Treatment Unit (“ATU”),
an infirmary, and seven examination rooms.
12. The infirmary has two units: “Unit 1,” which treats acute care patients, and “Unit 2,”
which treats patients requiring long-term nursing home care and hospice patients.
13. Outside of the infirmary, medication is administered cell side by correctional officers.
14. Outside of the infirmary, inmates can request to see a doctor by submitting “sick call”
requests, which are triaged cell side by Emergency Medical Technicians (“EMTs”).
Facts Related to ADA Claims
15. At the time this lawsuit was filed, Warden Peabody was the ADA Coordinator at LSP.
Warden Peabody became ill sometime before January 1, 2016 and was replaced by
Warden Barr in July 2016. Defendant Tracy Falgout succeeded Warden Barr and has
been the ADA Coordinator at LSP since September 2016.
16. ADA Coordinators do not receive any formal ADA training upon taking office or on a
regular or recurring basis.
17. LSP does not provide braille versions of forms such as sick call requests,
Administrative Remedy Procedure forms, or forms to request accommodations.
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18. DOC Directive No. 01.016(B) requires LSP to maintain an “ADA Advisory Committee.”
No such committee existed during the pendency of this lawsuit.
19. LSP Directive 07.004 provides that all “[s]everely handicapped inmates requiring
medical care and/or assistance with basic life functions shall be housed at” REBTC or
Medical Dorms.
20. LSP Directive # 09.036 prohibits any inmate “requiring a duty status” from utilizing the
hobbyshop until such time as the inmate is returned to regular duty without restrictions.
21. Louisiana State Penitentiary and DOC receive some federal funding.
B.

Court’s Findings of Fact
The following findings of fact are supported by the evidence in the record. Where

a particular fact was controverted, the Court weighed the evidence and determined that
the evidence presented by the party supporting that fact was more persuasive.
22.

Prior to the trial of this matter, Plaintiffs’ medical experts, Dr. Michael Puisis, D.O.

(Dr. Puisis) and Nurse Practitioner Madeleine LaMarre, (“NP LaMarre”), conducted a fourday in-person site visit at LSP, and Dr. Susi Vassallo, M.D. (“Dr. Vassallo”) conducted a
two-day site visit.11

NP LaMarre and Dr. Vassallo observed Angola’s facilities,

interviewed numerous Angola staff members and patients, observed medical care in
practice, and reviewed the medical records of 47 patients, in addition to the medical
records of the ten named Plaintiffs.12
23.

Dr. Puisis was principally responsible for evaluating LSP’s chronic care, specialty

care, infirmary care, organizational structure, staffing, budget, healthcare operations,

11
12

Rec Doc. 573 at 16, #29.
Id. at

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medical records, laboratory, mortality review, and quality improvement.13 Dr. Vassallo
was principally responsible for evaluating emergency care and the work performed by
EMTs.14 NP LaMarre was principally responsible for evaluating access to care, chronic
disease management, pharmacy, medication administration, policies and procedures,
clinical spaces and sanitation, and health information management.15
24.

The Court had the opportunity to evaluate the credibility of Plaintiffs’ experts and

finds them to be credible. All three experts testified at trial. Dr. Puisis testified for the
better part of three days, and Dr. Vassallo and NP LaMarre each testified for
approximately a day. Dr. Vassallo also provided brief rebuttal testimony after Defendants’
case. The Court also had the opportunity to observe and evaluate Dr. Puisis’s testimony
at the November 2017 class certification hearing.
25.

Prior to the trial of this matter, Plaintiff’s architectural accessibility expert Mark

Mazz (“Mazz”) conducted a site visit to LSP on July 6, 2016 to assess ADA accessibility
in specific areas at LSP used by disabled inmates in accessing programs, services, and
activities, as those areas would be subject to Title II and Section 504’s programmatic
access requirement, without respect to the dates of construction or alteration.16 Mazz
issued a report of his findings, which was admitted into evidence without objection.17

13

Rec. Doc. No. 544, Testimony of Puisis at 101:8-13.
Rec. Doc. No. 547, Testimony of Vassallo at 138:21-25.
15
Rec. Doc. No. 548, Testimony of LaMarre at 152:12-153:3.
16
Rec. Doc. No. 546, Testimony of Mark Mazz, at 11:13-19 12:5-15, 14:15-15:22; see also, P Exh. 7 at
0009 & 0005. Mazz was not advised which areas of LSP’s facilities were constructed or altered after the
Uniform Federal Accessibility Standards went into effect on March 7, 1988, or after the 1991 ADA
Standards for Accessible Design went into effect on January 26, 1992. Rec. Doc. No. 546 at 15:1-7; PX
7 at 0008.
17
PX 7.
14

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26.

The Court found Mazz’s testimony credible, and Defendants’ expert Brian Nolan

(“Nolan”), who reviewed Mazz’s report setting forth the ADA violations findings and
photographs, did not controvert or contradict Mazz’s report; rather, Nolan opined he could
“substantiate the items recorded” in the Mazz report “as being violations of the 1991 and
2010 ADA Standards for Accessible Design.”18
27.

The Court rejects Defendants’ attack on Mazz’s methodology and analysis

because he applied the 1991 standards to his findings; Mazz reviewed a letter from the
DOJ regarding its investigation results and noted that the DOJ’s analysis applied the
same methodology.19 Defendants offered no evidence or testimony to rebut this.
Facts Relating to Medical Care
28.

Generally, the Court concludes that LSP lacks the infrastructure necessary to

provide a constitutionally adequate health care system for patients with serious medical
needs. This includes a lack of adequate organizational structure, credentialing and peer
review processes, health care policies and procedures, clinic space, and a quality control
program. Further, the Court finds the following aspects of inmate access to health care
is constitutionally inadequate in the following ways: clinical care, specialty care, infirmary
care, and emergency care. The Court further finds that overwhelming deficiencies in the
medical leadership and administration of health care at LSP contributes to these
constitutional violations.

18
19

PX 18.
Rec. Doc. No. 546 at 24:23-25:22; 25:21-26:4; PX 7 at 0008 & 0009.

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1.
29.

Clinical Care

At LSP, emergency medical technicians (“EMTs”) and paramedics are front line

staff for screening and treatment of patients with routine (sick call) and urgent health care
needs. EMTs conduct sick calls in inmate housing units without the patient's medical
record, adequate medical equipment, or supplies. Pursuant to both LSP Policy and
applicable Standards of Care, physicians are required to clinically supervise EMTs; yet,
this does not meaningfully or consistently occur at LSP.
30.

Clinic exam rooms lack privacy and standardized, typically required, equipment,

i.e. blood pressure cuffs and glucometers.20 Dr. Puisis testified, and the Court observed
on its site visit, that the outlying camps at LSP likewise lack standardized supplies.21
31.

Medics who see patients cell side lack access to medical records.22

32.

There are serious hygiene deficiencies in clinic spaces. The condition of the clinic

exam rooms indicates that the exam rooms are not used for patient examinations. For
example, the exam tables are covered with medical records and cannot possibly
accommodate a patient exam.23 Clinic spaces are also cluttered with microwaves,
refrigerators, and food items.24 Further, there is a lack of usable handwashing facilities
in clinic rooms25 and a lack of paper covering on exam tables.26
33.

LSP physicians routinely fail to identify patient diseases and are focused on

episodic complaints rather than the underlying state of disease.27 Physicians routinely
20

Rec. Doc. No. 544 at 111:23-112:16; 114:10-24; observed by the Court during its site visit.
Id. at 117:8-25.
22
Id.at 116:5-8.
23
Id. at 116:9-22
24
Id. at 118:1-6.
25
Id. at 119:18-120:2; PX 6 at 278.
26
Rec. Doc. No. 544 at 120:12-18; PX 6 at 274.
27
Rec. Doc. No. 544 at 126:2-9.
21

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fail to adequately obtain information regarding a patient’s medical history upon
evaluation.28 Physicians routinely fail to perform a meaningful physical examination, read
and monitor testing, and monitor and manage medications, including educate patients
regarding medications.29 Further, physicians inappropriately allow medics to triage
patients and evaluate health requests.30
34.

Dr. Puisis concluded that the consequence of the inadequacy of the clinical care

results in an inadequate therapeutic plan, and the associated risk of harm includes
increased morbidity, unnecessary hospitalization, and deterioration of disease.31
Patient #1132
35.

Patient #11 suffers from Crohn’s disease and was referred for a colonoscopy. A

diagnostic colonoscopy was not performed until six months after the referral.

The

colonoscopy findings resulted in a referral to a gastroenterologist, and the specialty
consultation was not completed for another three months.
36.

The gastroenterologist recommended additional testing of the intestines which

later revealed an abscess, resulting in inpatient emergency treatment to drain the
abscess. Ultimately, this patient required five subsequent surgical interventions and two
hospitalizations.
37.

Dr. Pusis concluded that the delay in treatment and the failure to coordinate

specialty care resulted in the patient requiring a higher level of treatment. The failure of

28

Id.at 126:21 – 127:9; 153:1-2.
Id. at 153:2-10.
30
Rec. Doc. No. 545 at 108:10-13.
31
Rec. Doc. No. 544 at 127:10-15.
32
Id. at 133:6-139:9.
29

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the coordination of care is evidenced by the fact that the patient was treated by surgeons
for almost two years without being managed by a gastroenterologist.
38.

Following stabilization of Patient #11’s acute conditions, LSP physicians

prescribed Humira, but the patient was started on the wrong dose. Dr. Puisis concluded
that “it is likely that the patient had more episodes of fistula than necessary.”33
Patient #1334
39.

Patient #13 suffers with high blood lipids and peripheral vascular disease and is at

risk for stroke. This patient required Statin drugs to prevent heart disease, yet the stroke
review of the patient’s record showed no evidence of statin medication administration
other than a four-month duration.
40.

On December 17, 2014, Patient #13 had a heart attack, which according to Dr.

Puisis was “likely that was preventable.”35

Plaintiff’s heart attack resulted in his

hospitalization, and he was followed by a cardiologist who recommended an
echocardiogram, which was completed on February 8, 2015. However, there is no
evidence in the chart that any LSP provider referred to the echocardiogram and no
evidence that the test results were provided to the outside cardiologist. Thus, lacking any
report from the first echocardiogram, the cardiologist ordered a second echocardiogram;
meanwhile, Patient #13 had two additional hospitalizations for heart failure.
41.

On March 17, 2015, Patient #13 presented with slurred speech and aphasia

(inability to speak), and he was seen by EMTs and sent to the ATU. The only notation by

33

Id. at 138:14-15.
Id. at 139:10-152:19; JX 10-JJJ.
35
Id. at 141:21.
34

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an LSP provider is: “patient brought in for brief episode of slurred speech and expressive
aphasia.” No neurological exam was charted.36 Dr. Puisis testified that:
Strokes express themselves in terms of a neurological exam. So you would
have to see if the patient has any motor problem with their arms, legs,
whether they have facial paralysis, whether they still have that, whether they
can hear, whether their cranial nerves are intact. And that requires a
neurological exam, which was not done.”37
A LSP physician ordered the patient to be seen “this week and [he] needs a CT.”38
However, a CT scan was not completed until 3 months later, revealing that the patient
had suffered a stroke.
2.
42.

Specialty Care Services

Specialty care is provided at LSP in one of two ways: either a panel of specialists

who come to LSP or outside specialists to whom LSP refers patients. Based on the
following, the Court finds that inmates at LSP experience unnecessary and harmful delays
in the assessment for and receiving of specialty medical care; harmful failure to follow
specialty care recommendation; and failure to coordinate care. Referrals of patients for
specialty care is untimely. There are systematic and recurring failures by LSP providers
to follow-up on specialty care recommendations. There are repeated breakdowns in
communication between the specialty care providers and the LSP medical providers. In
sum, the timeliness of referrals to specialists, and the coordination of care between
specialists and LSP physicians, is seriously flawed and constitutionally inadequate.

36

Rec. Doc. 544 at 145:15-25.
Id. at 145:18-23.
38
Id.at 146:4.
37

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Patient #5
43.

Patient #5 complained for two years of weight loss and abdominal pain. This

patient’s abdominal pain worsened to the point that he could not walk, and he developed
diarrhea and vomiting. After a two-year delay, he was finally hospitalized, and diagnosed
with advanced colon cancer. Surgery was performed after which the patient developed
complications and died. Plaintiffs’ experts concluded that, “His death was preventable as
an earlier diagnosis would have most likely prolonged his life.”39 Further, this patient was
seen on 10/25/14 for a bowel obstruction, a potentially life-threatening issue.
provider who saw this patient did not evaluate the x-ray.

The

This patient required an

immediate transfer to the hospital but was not sent, which constitutes a “significant
departure from standard of care and placed the patient at risk of harm.”40 Plaintiffs’
experts concluded that this patient medically required hospitalization on 10/27/14,
10/30/14, and 11/1/14, but he was never sent, further delaying his diagnosis.41
Patient #17
44.

Patient 17 was a 46- year old man who arrived at LSP in 2006 and died on

February 1, 2014 due to pneumonia, lung adenocarcinoma, respiratory failure, and septic
shock.
45.

After undergoing chemotherapy for leukemia, this patient developed a suspicious

lung nodule identified on a CT scan in May 2012. Two specialists, an oncologist and a
pulmonologist, noted possible malignancy and recommended that follow-up diagnostics
be performed. However, no follow-up diagnostics were ever received. Patient 17’s

39

PX 6 at 0075-76; 0112-117.
Id. at 0116, #7.
41
Id. at 0016.
40

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condition worsened through November 2013 at which time he could no longer walk and
became wheelchair-bound.42
46.

By the time Patient #17 was finally diagnosed in November 2013, he had

metastasized cancer. He died three months later.43
Patient #13
47.

Patient #13 was seen by a vascular specialist on November 20, 2013, who

recommended a CT angiogram, but the test was not done for ten months.44 During this
ten months, the patient was not being followed by a vascular surgeon although he was at
risk for peripheral vascular disease and had been identified as having the disease.45
48.

Patient #13 was hospitalized after having a heart attack on December 17, 2014,

and on January 29, 2015, he was seen by an outside cardiologist who recommended an
echocardiogram.46 The echocardiogram was completed on February 8, but the LSP
doctor failed to document that the echocardiogram had been done and failed to chart the
findings. When this patient returned to the cardiologist, the cardiologist did not have the
echocardiogram to review or any chart notes of findings, which impaired the cardiologist’s
ability to provide proper medical care and advice. The failure to coordinate and document
was not an isolated incident. Patient #13 had three follow-up cardiology appointments in
which the cardiologist was not provided the echocardiogram to review.47

42

PX 6 at 0078, 0086-87, 0193-199.
Id.
44
Rec. Doc. No. 544 at 141:9-11.
45
Id. at 141:12-16.
46
Id. at 141:18-24.
47
Id. at 142:13-23; 157:16-24.
43

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Patient #7
49.

The care and treatment of Patient #7 is further evidence of a failure to chart and

make appropriate medical notes and demonstrates repeated failures to coordinate care
that resulted in harm. Patient #7 was a 58-year old male who had an x-ray in February
2013 which revealed a potential malignancy for which the patient was not referred for a
CT scan for three months.48 When a CT scan was performed, it revealed a suspicious
lesion, and the patient was referred to a pulmonologist. However, this patient did not see
a pulmonologist for approximately four months, which was seven or eight months from
the initial abnormal x-ray. Upon seeing Patient #7, the pulmonologist recommended a
biopsy.49
50.

At trial, Dr. Puisis emphasized the difference between the pulmonologist’s exam

notes and those of LSP with respect to this patient:
So this is a note of the specialist. Now it’s a pulmonologist’s note, but I
would draw attention to just the presentation of the note itself as an example
of how someone should write a note, recognizing that this is a specialist, I
grant that, but he’s an internist who also is a pulmonologist. And to a certain
extent, the notes at LSP should look more like that than not, and you’ll note
that there’s a history, that there’s a physical exam section, and that there’s
an assessment and recommendations.50
When referring to the LSP physician notes on the same patient, Dr. Puisis explained:
Okay. So this is the [LSP] physician's note after the specialty visit, and this
occurred, I believe, a month after the visit, approximately. So that already is
a little tardy for a post-specialty visit. Nevertheless, the doctor -- there's no
specific history, there's no examination, there's no assessment, but the
doctor does write the conditions one, two, three, hypertension, chronic
vertigo, and left upper lobe mass. But on the left upper lobe mass, the doctor
writes: pulmonary plan equals CT-guided biopsy, question mark, bronc,

48

Id. at 158:19-21; JX 10-b.
JX 10-b at 02651-52.
50
Rec. Doc. No. 544 at 160:25-161:8.
49

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question mark. the specialist was not questioning whether the test needed
to be done. He had specific recommendations.
My interpretation of this note is that the doctor wasn’t sure what the
pulmonologist recommended. What should have occurred on this note is
the doctor should have documented, reviewed pulmonogist’s [sic] note,
recommendation for biopsy. And it appears that the doctor wasn’t sure what
was recommended, and that just verifies to us that the coordination between
the specialist and the primary care doctor was poor and, in our opinion,
resulted in the delays that occurred.51
51.

The trial evidence established that Patient #7 was recommended for a biopsy on

February 19, 2013, he was seen by a LSP physician in March 2013, and on August 28,
2013 – seven months from the recommendation and one year after the initial x-ray – the
patient was seen by the pulmonologist who noted: “the biopsy didn’t occur, what gives?”,
and he recommended another biopsy.52 The pulmonologist also noted on that date,
“strongly suggest immediate IR [interventional radiology], FNA [fine needle aspiration] of
left upper lobe nodule.”53
52.

On September 25, 2013, a biopsy had still not been completed. The pulmonologist

again recommended a biopsy. Eventually, having never undergone a biopsy, this patient
underwent a lobectomy to remove a “portion of the lung that was infested with cancer.”54
53.

This patient was returned to LSP on October 14, 2013 and was first referred to

oncology to begin chemotherapy on November 19, 2013; however, records show that
chemotherapy was delayed and not scheduled to begin until January 8, 2014.55
54.

After his return to LSP, the patient made a health care request on November 21

51

Id. at 161:19-162:12 (explaining JX 10-b at 02656).
Id. at 162:13-21.
53
JX 10-b at 02601.
54
Rec. Doc. No. 544 at 164:2-3.
55
Id. at 164:20-24.
52

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complaining of tongue and mouth swelling and vomiting. An EMT evaluated and treated
these complaints with coal tablets and cough syrup. Dr. Puisis testified that, given the
patient’s medical history and return from a lobectomy with chemotherapy to follow, a
physician should have seen and evaluated these complaints.56 Before Patient #7 began
chemotherapy, he died.57
Patient #6
55.

Patient #6 was evaluated by an outside cardiologist for hypertension and

significant cardiac arrhythmia. In 2013, the cardiologist ordered an echocardiogram and
an event recorder test.58 The echocardiogram was performed, but the event recorder was
not.

As a result, the patient’s atrial fibrillation was not treated with necessary

anticoagulation.
56.

Two years later, in April 2015, the patient was hospitalized after he developed

another episode of atrial fibrillation.

During this hospitalization, the patient was

anticoagulated at the hospital. When the patient returned to LSP, the patient was not
evaluated and did not receive recommended anticoagulation for approximately 10 days.
Within four days of his return to LSP, this patient developed critical symptoms. Rather
than send the patient to a hospital, Defendants ordered a next day follow-up. This patient
soon developed signs of serious heart failure. Instead of hospitalizing the patient, he was
treated in the infirmary without any diagnostic testing. It took four days in the infirmary

56

Id. at 165:7-21.
Id. at 159:7-166:3.
58
Rec. Doc. No. 133-2 at 76; PX 6 at 0076.
57

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before anticoagulation was finally begun, but this patient failed to improve and
subsequently died.59
57.

Plaintiffs’ experts found Patient #6’s death was preventable, and it “was caused by

lack of recognition of the need for anticoagulation over a two-year period and, finally, a
lack of providing ordered anticoagulation medication for 10 days due to lack of review and
acting on consultant recommendations.”60
Patient #10
58.

Lab results for this patient revealed obstructive jaundice that was potentially life-

threatening. A CT scan revealed a mass in the patient’s pancreas. Rather than being
sent to the hospital for a biopsy, this patient was kept in the infirmary where he developed
a fever. The patient was ultimately sent to the hospital where he was diagnosed with
pancreatic cancer.61
59.

Following this diagnosis, Patient #10 was returned to the infirmary where LSP

providers “seldom took a history or performed a physical examination, did not coordinate
a follow up with an oncologist, and failed to monitor the patient’s bilirubin.”62

LSP

providers also failed to review the hospital care or the therapeutic plan established at the
hospital, and the patient was discharged from the infirmary and placed back in general
population. LSP subsequently made no effort to coordinate oncology care.63
60.

Although this patient was eventually evaluated by an oncologist, the patient had

developed an altered mental status and hypotension and refused the ATU doctors’

59

Id.
Id.
61
Rec. Doc. No. 133-2 at 77;PX 6 at 0077.
62
Id.
63
Id.
60

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recommendations that he seek care. The patient refused care and was transferred to the
hospital where he died in the emergency room.64
61.

Plaintiffs’ experts opined that the LSP providers “showed a lack of concern for this

patient and appeared to promote a terminal diagnosis and delay care before the patient
had an adequate chance at treatment.”65
Patient #53
62.

Patient #53, who had previously had a heart valve replacement and chronically

sub-therapeutic levels of anticoagulants, was prescribed Tegretol, an anticonvulsant
medication. A cardiologist noted the lack of indication for this drug in 2016, but this was
never reviewed by LSP physicians, and the patient remained on Tegretol for at least three
more months.66
Patient #54
63.

Patient

#54

experienced

numerous

delays

in

receiving

specialist

care/recommendations between 2013 and 2016.67 Specifically, ablation of this patient’s
atrial fibrillation was delayed by over a year due to failures to schedule the patient for
procedures, failure to provide echocardiogram results to the cardiologist, and failure to
address the cardiologist’s recommendations.68 Following the ablation, LSP providers
failed to document the cardiologist’s recommendations; thus, this patient was erroneously

64

Id.
Rec. Doc. No. 133-2 at 77-78; PX 6 at 0077-78.
66
PX 410 at 3-4; JX 10-y-1 at 21012; JX 10-y-3 at 21377.
67
PX 410 at 1-2.
68
Id.
65

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continued on a blood thinner for a year, placing him at significant risk of stroke,
hemorrhage, and other side effects.69
Otto Barrera
64.

Otto Barrera testified at the bench trial about significant delays he experienced,

since his incarceration at LSP in 2013, in obtaining necessary reconstructive surgeries to
repair his jaw, tongue, and teeth, which would require numerous surgeries over five years
altogether.70 At that time, Barrera was feeding himself through a pec tube and barely
able to speak or take his medication due to his injuries.71
65.

For the next two years, Barrera was housed on the hospital ward where he had

some teeth pulled by the on-site dentist and LSU dental providers.72 The LSU
maxillofacial providers reiterated their recommendation again in 2015 that he needed
reconstructive surgery, but he testified that he was told by the LSP doctor that the surgery
would not be approved because it was considered a cosmetic surgery.73
66.

In January 2016, LSP Nurse Practitioner Cindy Park admitted that Barrera had

been “lost to follow-up” since early 2014.74 In September 2016, Barrera had still not
received any surgery.75
Joe Lewis
67.

Over a period of 33 months beginning in April 2012, Joe Lewis made numerous

sick calls complaining of cough, hoarseness, and losing his voice. He reported on a
69

Id.
Rec. Doc. No. 546, Testimony of Otto Barrera at 207:7-14; see also PX 245-b (photographs of Barrera’s
injuries).
71
Rec. Doc. No. 546 at 206:1-207:22, 225:5-18, 229:5-19.
72
Id. at 216:18-217:5.
73
Id. at 217:3-219:22; Rec. Doc. No. 547 at 31:10-25.
74
JX 10-d-2 at 04063.
75
Rec. Doc. No. 547 at 21:9-11.
70

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February 2014 sick call that he had a family history of cancer; however, he was not
referred by LSP to an ENT until November 2014, and he did not see an ENT until January
2015.76
Shannon Hurd
68.

Shannon Hurd made several sick call requests for symptoms of renal cell

carcinoma between September 2013 and September 2015; yet, he did not receive a CT
scan until December 2015, which revealed a large renal mass with multiple nodules.
Despite this, LSP physicians failed to follow-up for nearly a month.77
3.
69.

Infirmary/In-Patient Care

LSP has two infirmaries, Infirmary 1 and Infirmary 2. Infirmary 1 is the acute care

infirmary for the treatment of patients with urgent or episodic conditions. Infirmary 2 is
the chronic care infirmary for patients with chronic disabilities or conditions that require
long-term housing.78
70.

Nursing Unit (Infirmary) 2 is managed by a nurse practitioner who also oversees

more than 1000 other patients.79
71.

Dr. Puisis opined that the infirmary/in-patient care provided by LSP is severely

inadequate.80
72.

Dr. Puisis testified that, according to the National Commission on Correctional

Health Care (“NCCHC”) standards, every inmate patient should be within the sight and

76

PX 28 at 0017-18.
Id. at 0018-22.
78
Rec. Doc. No. 544 at 172:25-173:13.
79
Id. at 173:14-20.
80
Id. at 123:20-124:10.
77

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sound of a nurse.81
73.

LSP infirmaries have individual rooms with steel doors which are separated from

nursing staff by solid locking doors and no call system to reach nurses. Dr. Puisis testified
that there should be a way for the patient to communicate with the nursing staff, and the
steel doors render adequate communication an impossibility.82 For example, Kentrell
Parker was a quadriplegic whose breathing required a tracheotomy, and he was locked
in an isolation room facing away from the door with no means to summon assistance.83
74.

Dr. Puisis testified that, in the general population, inmates may serve as orderlies

and assist patients with activities of daily living; however, inmate orderly service is
medically inappropriate in the infirmary setting.84
75.

LSP utilizes inmates as nursing assistants which is beyond the scope of the

medically accepted use of orderlies. According to NCCH, inmates may assist with
activities of daily living, but not in the inpatient environment because: (1) inmates lack
training, and (2) there is a potential for undue leverage, i.e., an inmate declining to provide
assistance unless receiving some gratuity from the patient.85
76.

The infirmaries at LSP are significantly understaffed, requiring inmate orderlies to

clean, bathe, dress, feed, and position patients - all activities of daily living as
acknowledged by LSP physician Dr. David Thomas.86

81

Id. at 170:16-171:5 (citing PX 243 at 0130).
Rec. Doc. No. 544 at 177:14-178:11.
83
PX 6 at 0081-82.
84
Rec. Doc. No. 544 at 174:25-175:22.
85
Id. at 175:11-176:9.
86
Rec. Doc. No. 552, Testimony of David Thomas at 29:6-7: 87:2-7.
82

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77.

It was established that inmate orderlies are not supervised by registered nurses;

rather, they are supervised by security staff who lack medical training. Dr.Puisis testified
at length about health care standards that strongly counsel against the use of inmate
orderlies to assist inpatient inmates with activities of daily living.87
78.

Further, even if the use of inmate orderlies to assist with activities of daily living

conforms to the minimum standards of the Eighth Amendment, the trial evidence showed
that LSP failed to follow its own training policies with respect to inmate orderlies.88
Patient #3
79.

This patient has underlying diabetes and peripheral vascular disease. Ulcers and

disease to both legs required amputation above-the-knee. The patient subsequently
developed serious infections to the stump in 2008, and he was sent to the hospital where
he underwent emergency surgery to remove the dead tissue. Doctors had to extend
upward to the perineum to find live tissue. All tissue in this patient’s penis and entire
perineum was dead. He was returned to LSP and placed in hospice care.89
80.

Dr. Puisis credibly testified that this type of infirmary care is representative of the

care he observed during the relevant time period; however, the Court finds that the facts
surrounding Patient 3 which occurred in 2008 are not probative of the health care
conditions at issue during the relevant time period of this lawsuit.
Patient #39
81.

Patient #39 was immunosuppressed with a history of congestive heart failure and

diabetes. He was admitted into the infirmary on July 20, 2011, presenting with a fever of

87

Rec. Doc. No. 544, Testimony of Mike Puisis at 175:4-176:11.
JX 6-eee at 6 (annual training).
89
JX 10-AAA.
88

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103.6 degrees and altered status. He was placed in a “locked room” with the “hatch up”
after a nurse reported that the patient was masturbating on July 21, 2011. LSP physicians
ceased visiting the patient altogether for 3 days. He was discharged back to his housing
unit on the fourth day. Two days after his discharge, this patient was found vomiting in
his cell. Both Dr. Lavespere and Dr. McMurdo ordered EMTs not to transport the patient
to the hospital, and this patient died the next morning.90
Patient #18
82.

Following multiple positive tests for HIV, Patient #18 was admitted to the infirmary

on December 2, 2013, presenting with pneumocystic pneumonia and life-threatening
abnormal vital signs.

Despite his condition, antiretrovirals therapy was not started for

four days. Less than one week after starting antiretrovirals therapy, this patient developed
a fever of 101 degrees, and he was transferred to an outside hospital on December 13,
2013, where he died one month later. While Patient #18 was in the infirmary at LSP, his
vital signs were monitored only once daily, and his medications were, at best, irregularly
administered.91
Patient #11
83.

Patient #11 suffered from Chron’s Disease, which Dr. Puisis testified requires

chronic disease monitoring.92 This patient was admitted to the infirmary following a partial
colectomy. This surgery was necessary due to the failure of LSP physicians to timely and
properly monitor and treat his Crohn’s disease.

The Court finds that the evidence

90

PX 6 at 0063; JX 10-ii-1 at 34748-49; PX 233 at 0112.
PX 6 at 0039 – 40, 0083-84; Rec. Doc. No. 548, Testimony of Madeleine LeMarre at 172:11-22; 181:2021.
92
Rec. Doc. No. 544 at 133:6-15.
91

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demonstrating LSP’s failures to take Patient #11’s history, perform adequate physical
examinations, document a treatment plan, provide indicated immunosuppressive therapy,
and failure to refer him to gastroenterologist resulted in a preventive death.93
4.
84.

Sick Call

Sick call is the main process by which patients access the medical system at

Angola, and it is conducted cell side by EMTs. EMTs do not commonly consult doctors
during sick call visits, and the evidence shows that fewer than half of all sick call visits
from April to June 2016 were referred for provider review.94
85.

Expert testimony at trial established that inmate patients submitted repeated

Health Service Requests (“HSR”) for the same complaint.95
86.

Evidence also demonstrated that EMTs routinely did not have access to the

patient’s health record when conducting sick calls, resulting in patients being treated
repeatedly with the same medication regimen even if such regimens had failed in the
past. This was demonstrated by the following evidence at trial:
87.

Patient #17 complained of chest pain at sick call for over 16 months. Prior to these

complaints, the patient’s medical records indicated that he had a pulmonary nodule and
had been referred to a thoracic surgeon for a biopsy. This patient was seen repeatedly
by EMTs at sick call for complaints of chest pain for 16 months from 2102 to 2014. A
biopsy of the pulmonary nodule was finally performed in 2014, and this patient was
diagnosed with adenocarcinoma of the lung. He died a little over one week later.96

93

PX 6 at 0044-45, 146; Rec. Doc. No. 544, Testimony of Mike Puisis at 133:6 – 139:9; JX 10-R.
PX 41 at 0039-41.
95
Rec. Doc. No. 548 at 185:15-186:10.
96
PX 6 at 0193-99.
94

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88.

Patient #20 was seen by EMTs at sick call for over four months with repeated

complaints of significant abdominal pain. More than once, EMTs failed to refer the patient
to a physician despite his severe symptoms. After months of complaining of “burning”
pain, weight loss, and vomiting blood, the patient was admitted to a nursing unit. He died
the following day.97
89.

Patient #29 was seen 10 times by EMTs for sick calls in a one-month period. This

patient presented with symptoms consistent with exacerbation of congestive heart failure;
however, it took over a month for this patient to be hospitalized despite acute worsening
of symptoms.98
90.

Patient #18 was seen on multiple occasions by EMTs with complaints of chest

pain, shortness of breath, and a 55-pound weight loss. There is no documentation that
EMTs notified physicians of the patient’s abnormal vital signs, precipitous weight loss, or
the progressive worsening of his symptoms. The patient did not receive a timely or
meaningful clinical evaluation for his symptoms by a physician. Ultimately, Patient #18
was diagnosed with HIV, and he died a little over one month after this diagnosis.
According to the medical experts, a timely diagnosis of this patient’s HIV status and
corresponding anti-retroviral intervention could have prevented his death.99
91.

Plaintiff Shannon Hurd (deceased) repeatedly complained of substantial weight

loss and testicular swelling. After 2 years of presenting to EMTs with consistent and
worsening complaints, diagnostic testing revealed renal cancer. From the time that this
patient began complaining of symptoms until his ultimate diagnosis two years later, Hurd

97

PX 6 at 0216-27.
PX 6 at 0256-57.
99
PX 6 at 0200-08.
98

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lost 61 pounds. During this period, Hurd saw doctors and EMTs on numerous occasions,
but they routinely failed to conduct meaningful testing or scrutinize his symptoms and
medical history. Even when tests did occur, doctors failed to provide the necessary follow
up.100
92.

Plaintiff Joseph Lewis (deceased) repeatedly complained for 33 months—nearly

three years—of symptoms consistent with laryngeal cancer. Lewis was mostly evaluated
cell side by EMTs at sick call who referred him to a physician on only a few occasions.
After 33 months of constant complaints, diagnostic testing was obtained which revealed
laryngeal cancer. Again, according to medical experts, timely diagnostics would likely
have prolonged Lewis’ life.101
93.

Regarding transport orders, the evidence showed that, when EMTs consulted LSP

physicians to request increased care or for additional patient assessment, the physicians
routinely gave “no transport” orders resulting in further diagnostic and treatment delays.
According to the undisputed expert opinions presented, these “verbal orders given to the
medics over the radio … advising that the patient not be transported from his cell,”102
“result[ed] in delay in care, lack of evaluation by a physician and in some cases death.”103
Record examples of the consequences of these “no transport” orders are as follows:
94.

Patient # 39 was a 65-year-old man with “a history of diabetes, [and] severe

coronary artery disease and heart failure.”104 In July of 2011, the patient was seen by
EMTs seven times with symptoms including a “temperature of 103.6,” “an altered mental

100

PX 28 at 0018-22; see also Rec. Doc. No. 552, Testimony of David Thomas at 99:9-116:4.
PX 28 at 0017-18.
102
PX 6 at 0063.
103
Id.; See also Rec. Doc. No. 547, Testimony of Susi Vassallo at 150:24-151:9, 174:24-178:7.
104
PX 6 at 0063
101

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status,” “chest tightness,” and “breathing but unresponsive.” On one occasion, Patient 39
was observed lying on the floor of his cell “‘vomiting and won’t move [sic].’”105
Nevertheless, no-transport orders were given three times. After the third no transport
order in July 2011, this patient died in his cell. The medical records do not explain or
describe the reason for, or circumstances of, the death.106
95.

Patient # 34 made an emergency sick call for flank pain. LSP physician Dr. Toce

ordered an x-ray without seeing the patient,107 but he was subsequently seen by Dr.
Collins in the ATU the next day. Dr Collins noted that there was no bruising or injury that
could explain the patient’s pain.108 Three days later, Dr. Lavespere gave a no transport
order when the patient could not get out of bed. Three days after this no transport order,
the patient was found non-responsive in his cell. He died the following day.109
96.

Plaintiffs not only challenge the constitutionality of the medical response to sick

calls at LSP but also the constitutionality of the sick call policies, generally. Pursuant to
the DOC’s Access to Care and Clinical Services Policy,110 inmate patients are to have
daily access to routine and urgent services, with sick call requests triaged every day. Sick
Call carries a $3 co-pay, self-declared medical emergencies carry a $6 co-pay, and a new
medication (OTC or RX) carries a $2 co-pay regardless of the number of doses.111

105

Id.
Id. at 0063-64.
107
PX 6 at 0267; Rec. Doc. No. 548, Testimony of Susi Vassallo at 57:5-58:16; JX 10-ee at 28686. It is
unclear when the patient suffered the broken ribs, and whether the rib fracture was related to his death; the
autopsy reports a “remote” fracture, suggesting that the rib injury may have been distant in time and
unrelated. See Rec. Doc. No. 548 at 57:5-58:16.
108
JX 10-ee at 28685.
109
Id. at 28678-81; see Rec. Doc. No. 548, Testimony of Susi Vassallo at 112:9-114:1; see also, e.g., PX
6 at 0201, 0236, 0238, 0254, 0257 (noting additional no transport orders).
110
JX 5-A at 00020 ( HC-01).
111
Id. at 00023.
106

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Plaintiffs argue that this co-pay system presents an unconstitutional barrier to care.
Based on the trial evidence submitted, the Court does not to find that these policies, in
and of themselves, create an unconstitutional (cruel and unusual) barrier to health care.
However, it is one factor that contributes to a delivery system that is, in this Court’s view,
woefully inadequate. Sick call policies requiring co-pays is not unconstitutionally cruel and
unusual. Even though the malingering policy is unenforced, the fact that it is on the books
arguably creates a disincentive for inmates to sick call. There was no evidence that the
policy creates access hesitance. Inasmuch as the policy is disfavored and not used, in
the Court’s view, LSP should amend its written policy to conform to its practice.
97.

In requesting a “sick call,” an inmate is required to acknowledge in writing: “I am

aware that if I declare myself a medical emergency and health care staff determine that
an emergency does not exist, I may be subject to disciplinary action for malingering.”112
In short, if an inmate is determined not to be “emergency” sick after complaining of
symptoms, the inmate can be sanctioned for “malingering.” Defendants contend the
actual use of malingering write-ups is rare. However, even the Defendants’ medical
expert, Dr. Thomas, agreed that the malingering policy at LSP should be discontinued.113
Plaintiffs’ medical expert opined that a policy which permits medical providers to punish
inmates for seeking access to care creates a conflict of interest and is a practice not seen
in other correctional facilities.114
98.

After weighing all evidence regarding this policy, the Court finds that, although

LSP’s malingering policy exists on paper, it is not enforced in practice. Accordingly, the

112

PX 53.
DX 14 at 02943.
114
Rec. Doc. No. 545, Testimony of Puisis at 14:16-16:4.
113

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Court finds that Plaintiffs have failed to carry their burden of proving harm regarding this
policy.
99.

Nevertheless, although the Court finds that the unenforced malingering policy is

not unconstitutional, it is evidence of systemic health care structures that the Court does
find results in constitutionally infirm health care delivery. As evidenced by the malingering
policy, the medical department at LSP is controlled by LSP security rather than medical
care providers. Both Plaintiffs’ and Defendants’ experts agreed that this organizational
hierarchy, under which the medical department reports to security, is not working.115
Moreover, orderlies and EMTS also report to the security chain of command for
supervision,116 and correctional officers supervise the delivery of medications by other
correctional officers.117 Dr. Lavespere admitted that security personnel - not medical
personnel - are tasked with the initial assessment of whether an inmate is “really sick”
when they purport to have a medical emergency.118 Additionally, the Assistant Warden
makes resource-allocation decisions such as when nurses are required for pill call.119
The Court finds that this system where health care decisions are largely made by security
rather than qualified health care providers is unconstitutional.

115

See e.g., DX 13 at 02845-46 (Dr. Moore describing the leadership as “most unusual” and creating
“difficulties,” including making the “success of the program [] primarily dependent upon the good will of the
wardens.”). She further explained that Wardens are not capable of assessing the quality of medical care
delivery. See also PX 6 at 0011-12.
116
JX 4-gg, A. Cowan Depo. at 9:20-25, 10:16-20; JX 4-dd, D. Cashio Depo. at 73:18-74:18 PX 6 at 0015;
JX 4-ii, T. Falgout Depo. at 17:23-25 (Warden Falgout testifying that security deals with staffing and
assigning orderlies).
117
Rec. Doc. No. 553,Testimony of Tammi Willis at 96:4-8; see also JX 4-ddd.
118
JX 4-rr at 26:24-27:4.
119
Rec. Doc. No. 551, Testimony of Randy Lavespere at 193:9-18.

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5.
100.

Emergency Care – Acute Treatment Unit (“ATU”)

The ATU is not an emergency room (“ER”) and is, therefore, not equipped with

some of the equipment necessary to diagnose and treat serious medical conditions.120
Further, because the ATU does not operate as an ER, referral to outside hospitals
becomes necessary in emergency situations. However, the trial evidence demonstrates
that LSP often fails to refer patients to an outside ER when necessary. Addtionally, as
with sick calls, LSP employs EMTs as primary care providers in the ATU.
101.

In addition to sick call assessments, EMTs “perform all emergency response.”121

Plaintiffs agree that it is an “appropriate use of EMTs to respond to medical emergencies
on-site, such as in a cell or dorm.”122 However, Plaintiffs challenge the policy allowing
EMTs to deliver care and serve as the “primary providers” for patients in the ATU.123 It is
admitted that only serious medical conditions are seen in the ATU, and according to Dr.
Lavespere, as many as 76 patients may be seen in a day in the ATU.124
102.

Although a physician is assigned to provide on-call coverage to the ATU, the Court

finds from the trial evidence that physicians do not regularly or consistently staff the ATU,
and, as a result, patients in the ATU are not being consistently evaluated or treated by
physicians. The Court finds as a matter of fact that it is EMTs who are routinely delivering
patient care in the ATU, which “differs dramatically” from how prison EMTs are used in
emergencies in the rest of the country, according to Plaintiffs’ expert.125

120

PX 6 at 0066.
Id. at 0061.
122
Rec. Doc. No. 573 at 110.
123
Rec. Doc. No. 547, Testimony of Susi Vassallo at 141:25-142:4; Rec. Doc. No. 548 at 14:3-13.
124
JX 4-rr, R. Lavespere Depo at 44:4-7.
125
Rec. Doc. No. 548, Testimony of Susi Vassallo at 22:1-3.
121

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103.

The Court further finds that, regarding patients in the ATU, EMTs “continue to

manage the patient” and “make serial observations over many, many, many, many
hours,” which is not within their training or scope of practice.126 EMTs are simply not
trained “to render ongoing care for a number of hours.”127 The following examples
demonstrate the improper use of EMTs in the ATU.
104.

Patient #1 was managed by EMTs in the ATU for more than 24 hours for an

episode of diabetic ketoacidosis and acute renal failure - conditions which led to his death
one day later.128
105.

Patient #15 was managed by EMTs in the ATU overnight despite suffering from

acute coronary syndrome, and then discharged to his housing unit at 3:45 in the morning;
he returned to the ATU later that morning and then died en route to the hospital.129
106.

Patient #20 was managed by EMTs in the ATU overnight, despite a physician’s

telephone order that he be admitted to the nursing unit, because the nursing unit was full.
The patient’s symptoms suggested he was “internally bleeding and at risk of death,” and
he, in fact, died the following day.130
107.

Patients #38 and #42 were managed in the ATU for at least eight hours by EMTs,

despite both having symptoms suggestive of a stroke. Patient #38, who had a medical
history of strokes, died the following day. Patient #42 lived following this ATU stay but

126
Rec. Doc. No. 547 at 160:13-161:1; see also, e.g., id. at 151:20-152:4 (“The problem at Angola is that
the EMTs continue to manage the patient. Now, there are exceptions to that, but most commonly the EMTs
will manage patients with calling to the doctors. They will be given verbal orders or telephone orders, and
so the doctor is relying on the information they are given by someone who is observing something but not
trained to make serial observations over many, many, many hours and to know what that means.”).
127
Rec. Doc. No. 547, Testimony of Susi Vassallo at 142:5-12; see also PX 6 at 0041, 60-71.
128
See PX 6 at 0069, 0091-94; JX 10-w at 51299-307.
129
See PX 6 at 0069-71, 0187-90; JX 10-v at 18943-48.
130
PX 6 at 0034-35, 0056, 0085, 0225-27.

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was left with long-term deficits due to lack of proper treatment.131
108.

The trial evidence also demonstrated several examples of the consequences of

delayed or failed emergency referrals. For example, Anthony Mandingo presented with
pneumonia. EMTs in the ATU administered two breathing treatments and returned him
to his dormitory. Several days later he was admitted to UMC New Orleans.132
109.

Danny Prince, who worked as a health care orderly on Ash 2 dormitory (an assisted

living/recovery dorm) during the relevant time period, testified at trial and described an
inmate with a tracheotomy in his throat who presented with a progressively worsening
cold and made repeated emergency sick calls. The inmate was seen in the ATU and
returned to his dormitory multiple times and ultimately died.133
110.

Regarding stroke patients, in August 2014, LSP was put on notice by Interim LSU

Hospital (“ILH”) that that they were not receiving stroke patients within the 4.5-hour
treatment window. Three Angola inmates within 45 days prior had arrived at outside
treatment facilities “with obvious stroke symptoms [but did not receive] emergen[cy] care
within the 4.5 [hour] window to attempt [to] prevent serious disability.”134 For example,
Lionell Parks presented to the infirmary on 3 consecutive days with stroke symptoms
before he was referred for emergency care.135 While the remote location of LSP accounts
for transportation delays, it is less than a one-hour drive to Baton Rouge, and the

131

PX 6 at 0270-71 (Patient #38); PX 233 at 0095 (Patient #38); Rec. Doc. No. 547, Testimony of Susi
Vassallo at 153:6-164:24 (Patient #42); PX 6 at 0272-73 (Patient #42); JX 10-p at 15142, 15161-62, 1523639 (Patient #42).
132
Rec. Doc. No. 551, Testimony of Mandingo at 89:2 – 91:13.
133
Rec. Doc. No. 547, Testimony of Danny Prince at 101:14 – 102:5.
134
PX 12 at 0002.
135
PX 12 at 0001 – 02.

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transportation delay does not account for multi-day delays such as those experienced by
Parks.
111.

Patient #42 was found unresponsive in July 2015 at 11:18 p.m. He was brought to

the ATU, where he was managed for more than 10 hours by EMTs without a physician
consult. While in the ATU this patient was treated with four liters of intravenous saline
without having received any prior diagnosis. Patient #42 had suffered a stroke which
caused brain swelling, which may have been exacerbated by the intravenous saline
administered by EMTs.136
112.

Patient 44 attempted to hang himself in his cell. He was transported to the ATU

with “abnormal posturing,” which Dr. Vassallo testified is indicative of brain injury and
bruising of the cervical spine. EMTs managed this patient’s care in the ATU even though
a physician, Dr. Toce, was present in the ATU. EMTs failed to ensure proper ventilation
by failing to “bag” the patient. After about 15 minutes, Dr. Lavespere entered and started
“bagging” this patient. According to Dr. Vassallo, who witnessed this incident, this level
of inadequate ventilation most likely caused harm to the patient and exacerbated his brain
injury.137
113.

Trial evidence also established that some protocols repeatedly utilized in the ATU

are inappropriate under national standards.138 For example, inmates who present with
an altered mental status are routinely treated based on a presumption that they have

136

Rec. Doc. No. 547, Testimony of Susi Vassallo at 164: 12-23.
Id. at 165:19-173:9.
138
Rec. Doc. No. 548, Testimony of Susi Vassallo at 22:8-17.
137

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ingested narcotics.139 The evidence established that the following treatments are routinely
administered without clinical indicators suggestive of illegal drug use: (1) routine
treatment of patients presenting with altered mental status with Narcan; (2) routine
subjecting patients who present with altered mental status to urine toxicology testing,
often by catheterization; and (3) common use of “lavage,” i.e., stomach pumping, on
patients presenting with altered mental status.140

The following patient studies

demonstrate this problem.
114.

Patient #42 presented to the ATU unconscious but with a normal respiratory rate.

Although there were negative indications for an opiate overdose, the patient was treated
with Narcan and catheterized to perform urine toxicology. In fact, the patient had suffered
a stroke and went 10 hours without appropriate treatment.141
115.

Patient #37 presented to the ATU with seizures and was treated with

gastrointestinal lavage (stomach pumping) and Naloxone. During this treatment, the
patient developed decerebrate posturing and other symptoms indicative of brain damage.
A subsequent CT scan revealed intracerebral bleeding, and this patient ultimately died.
As Plaintiffs’ medical experts explain, “[l]avage for drugs and administration of naloxone
for new onset of seizures shows a gross lack of knowledge of emergency care. Lavage
of a patient with new onset seizures represents medical care with no basis in modern

139

PX 6 at 0064; see also Rec. Doc. No. 548 at 8:13-15 (“When the patient had an altered mental status,
it was in my review of the records more than half the time. I don’t want to say universally, but it was extremely
common.”).
140
PX 6 at 0064; compare JX 8-a at 00087, 00145 (EMT Drug Overdose Treatment Protocols, which does
not involve urine toxicology); see also Rec. Doc. No. 548 at 8:13-15 (“When the patient had an altered
mental status, it was in my review of the records more than half the time. I don’t want to say universally,
but it was extremely common.”).
141
Rec. Doc. No. 547 at 155:9-157:6; see also JX 10-p at 15237-38; PX 6 at 0069.

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practice and delays transport to the hospital.”142
116.

Patient #30 presented to the ATU with focal motor seizures of the arm and face.

He was given naloxone with a plan for gastrointestinal lavage, despite having no
symptoms of opioid or any other overdose. As Plaintiffs’ medical experts concluded, “this
plan does not meet standard care” and was simply “incoherent.”143
117.

Plaintiffs also maintain that Defendants improperly attempt to obtain Do Not

Resuscitate (“DNR”) orders and offered Patients # 31 and #10 as proof of this. The Court
finds no constitutional violation as it relates to DNR orders in the ATU.
6.
118.

Chronic Care

Plaintiffs complain that LSP’s chronic disease program is “woefully inadequate,”

arguing that Angola’s chronic care policy144 is vague and overly generic145 and that LSP
lacks a “true chronic disease tracking system.” Plaintiffs argue there is a “lack of chronic
care” attributed to “physician manpower shortages.” 146
119.

Notwithstanding the Court findings as to the unconstitutionality of care in Infirmary

2,147 and the Court’s findings with respect to particular patients with chronic conditions,148
the Court does not find constitutional deficiencies in the chronic care. The principal
evidence offered in support of the Plaintiff’s contention that LSP’s chronic care violates
the Eighth Amendment is LSP’s alleged failure to manage and treat patients with hepatitis

142

PX 6 at 0064.
Id. at 0065.
144
JX 5-A at 00102-03 (HC – 11).
145
Plaintiffs argue that LSP's chronic care manual (JX 8-L) contains guidelines for only 8 diseases and
omits guidelines for significant chronic diseases such as kidney disease, thyroid disease, sickle-cell disease
and lupus.
146
DX 13 at 02865.
147
See supra. pp. 20-24 of this Ruling.
148
See e.g, supra. pp. 10-11 of this Ruling.
143

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C. The Court has previously reviewed numerous individual inmates’ Eighth Amendment
claims with respect to the care and management of Hep C at LSP. The Court declines to
revisit or reverse its prior holdings in those cases.149
7.
120.

Medical Leadership and Organizational Structure

The Court also finds that Plaintiffs have demonstrated organizational and structural

deficiencies in the LSP health care system which underpin and contribute to Eighth
Amendment violations. The Court finds that the cumulative effect of leadership and
organizational deficiencies demonstrate the subjective component of deliberate
indifference.
121.

Regarding medical leadership, the Court finds that there is a lack of meaningful

mortality review. A mortality review entails reviewing the death of a patient to determine
if any of the problems arose in the course of the patient’s care that can be corrected in
order to prevent future deaths.150 The trial evidence established that LSP does not
conduct mortality reviews; rather, the physician who cared for the patient provides a short
narrative summary of the circumstances surrounding the death. There is no critical review
of the death or the care which preceded the death.151 Plaintiffs’ experts reviewed and
evaluated 28 death charts and they describe LSP’s review of death reports to be a
“noncritical evaluation.” Dr. Puisis testified that LSP does not look for problems and, thus,
finds none, which results in no process for continual improvement.152

149

See, inter alia, Cormier v. Edwards, No. 17-241-SDD-EWD, 2019 WL 2438784 (M.D. La. June 11, 2019);
Henderson v. Tanner, No. 15-804-SDD-EWD, 2019 WL 885914 (M.D. La. Feb. 22, 2019); Peters v. Singh,
No. 16-842-SDD-RLB, 2020 WL 853517 (M.D. La. Feb. 20, 2020).
150
Rec. Doc. No. 547 at 179:4-9.
151
Rec. Doc. No. 545 at 30:19-24.
152
Id. at 34:10-25.

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122.

In Louisiana, the inmate death rate nearly doubled from 361 deaths in 2001 to

nearly 600 deaths in 2008.153 The Court does not consider this statistic alone probative
of the quality of care; however, the Court finds that LSP’s failure to conduct meaningful
mortality reviews, coupled with its failure to engage in a meaningful quality improvement
program and analysis, in light of this statistic, is evidence of deliberate indifference.
123.

The Court finds that, while the failure to conduct meaningful and informative

mortality reviews is not unconstitutional care, the reticence of LSP medical providers to
conduct meaningful review as a means of quality control and improving care provides
fertile ground for the constitutional deficiencies in health care delivery found by the Court
and is demonstrative of wanton disregard.
124.

As discussed in previous sections of this opinion, the Court also finds that medical

management by corrections, rather than physicians, is inappropriate and also contributes
to the unconstitutional care provided. The Medical Department at LSP is managed by an
assistant Warden; the Deputy Warden, a layperson with no medical training, is the health
authority.154
125.

There is also a lack of peer review in the medical department at LSP. Dr. Puisis

explained that “peer review is groups of peers who evaluate the care of another peer or
colleague based on the clinical process that a certain individual has provided.”155 Further,
“there are two kinds of peer reviews. One is called professional evaluation program, or
PEP, by which, a physician's practice is evaluated typically on an annual basis.”156 This

153

Rec. Doc. No. 573 at 82-83 (citing PX 466 at 26).
PX 6 at 0012; Rec. Doc. No. 545 at 14:18.
155
Rec. Doc. No. 545 at 25:8-10.
156
Id. at 25:14-17.
154

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type of review evaluates the records of a physician’s care to determine whether the
treatment was appropriate. “A second type of peer review is when there has been a
sentinel event such as a death or an unusual morbid event that is unexpected and
suggests that there may have been problems; that type of peer review is a -- more of a
quasi-legal procedure where the physician may be reported for clinical actions that were
inappropriate, and a group of senior physicians would review that care to determine if a
reduction of privileges is necessary.”157 Dr. Puisis explained that the peer review at LSP
consists of the medical director coming in one time per year to review 15 records. The
director does not review the delivery of health care by any single physician; rather, it is
more akin to a facility review. Also troubling, “[a]t LSP, since 2010, peer review of
physician care has been performed only three times.”158
126.

The Court finds that the repeated failure of any meaningful or systematic review of

the medical care at LSP is evidence of wanton disregard and directly contributes to
conditions which cause harm to patients.
127.

LSP also lacks a quality improvement (“QI”) program. Plaintiffs’ experts reviewed

minutes of QI meetings from 2010 to 2015 which revealed the following: (1) the medical
director, Dr. Lavespere, did not participate in QI meetings;159 (2) nursing supervisors
participated in QI meetings;160 (3) there was no physician participation in QI meetings and
no clinical evaluation.161

157

Id. at 25:25-26:7.
Id. at 27:17-18.
159
Id. at 36:21-25.
160
Id. at 37:5-6
161
Id. at 37:14-16.
158

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128.

Evidence also established that there is an absence of medical personnel

involvement in the development and allocations of the medical budget at LSP.162
129.

Finally, the Court finds that the LSP medical director, Dr. Lavespere, directly

contributed to constitutionally infirm health care at LSP in the following ways: (1) failure
to supervise; (2) failure to perform peer review; (3) failure to be aware of the credentialing
of physicians who worked for him; (4) failure to review and analyze sentinel events (a
serious episode that proceeded an adverse event); and (5) failure to conduct mortality
review.163 Additionally, there was no evidence of medical supervision by the DOC central
office.164 The buck stopped with Dr. Lavespere, and his medical supervision and quality
review was woefully inadequate.
130.

Regarding staffing levels, the Court finds that Plaintiffs failed to carry their burden

on this claim. Plaintiffs maintain that the per-physician caseload at LSP is excessive, but
this assertion was not supported by referencing documentation or other record evidence
to establish the caseload per LSP physician. Dr. Puisis testified that a reasonable staffing
level is 800 patients per provider165 and that staffing budgets at LSP are low compared to
other states.166 The fact that LSP may have spent less money on staffing is not probative
of constitutional care.
131.

As to credentialing, the Court finds that LSP fails to maintain provider credentialing

documentation. NCCHC standard number 4 requires that “the HRA maintains verification
of current credentials for all qualified health care professionals at a readily accessible

162

PX 6 at 0012, 16, 27, 88; JX 4-rr, R. Lavespere Depo. at 97:12-14.
Rec. Doc. No. 544 at 202:24-217:5.
164
Id. at 218:18-219:10.
165
Id. at 208:12-23.
166
Rec. Doc. No. 545 at 21:15-22:13.
163

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location.”167 Pusis testified that he could not ascertain if providers were practicing within
their proper credentials because “there were no credential files so I couldn’t know what
credentials people had.”168
8.

Defendants’ Subjective Knowledge

132. Considering the evidence discussed above, the Court finds that Defendants’
knowledge of the constitutionally inadequate practices set forth herein is established. The
evidence demonstrates that Defendants have been put on notice regarding the serious
risks of harm presented herein and have failed to take reasonable steps to address same.
133. On August 8, 1989, the Civil Rights Division of the United States Department of
Justice (“DOJ”) began an investigation into conditions of confinement at Angola, pursuant
to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997.169
134. On May 13, 1991, the DOJ issued a findings letter that concluded that several
conditions at LSP deprived inmates of their constitutional rights, including the failure to
provide adequate medical and psychiatric care.170 The DOJ concluded that “serious flaws
in the provision of medical care” existed system-wide at LSP such that “inmates who need
medical care and attention are not receiving it,” and identified deficiencies regarding, inter
alia, staffing, sick call procedures, delays in treatment, and safeguards to ensure receipt
of proper medication and treatment. 171
135. A class action lawsuit was filed against LSP in January 1992 alleging that the
medical care provided by LSP was constitutionally deficient. The DOJ intervened as a

167

Rec. Doc. No. 544 at 215:19-21.
Id. at 216:2-3.
169
PX 239.
170
Id. at 0002.
171
Id. at 0002-04.
168

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plaintiff, and the case was tried in September 1994.172 In connection with this lawsuit, Dr.
Puisis, acting as an expert for the DOJ, made investigatory visits to LSP and identified
several deficiencies in the delivery of medical care that have been alleged in the current
lawsuit, and the trial evidence established continue to persist.173
136. The DOJ prepared a report of its findings, which included: significant delays in
treatment because security decided the manner and time of patients’ transportation;
inmates forced to wait for excessive and unacceptable periods for elective and
radiological services; and delays in treatment caused by the practice of placing patients
in the infirmary who should have been sent to the hospital.174 The report also criticized
the use of EMTs, finding: EMTs were “not adequately trained nor sufficiently experienced
to recognize serious medical illness or triage sick call,” and they could not differentiate
“between acute, chronic, and minor illnesses.”175 The report concluded that LSP had “no
policies or procedures specifically designed to guide health care practitioners in managing
care on the infirmary unit;”176 there was “no quality assurance”177 and no peer review
system to monitor the quality of medical care.178
137. In 1998, a settlement was reached resolving the 1992 lawsuit. The agreement
required specific improvements be made to the system of medical care at LSP, including:
sick call reviews; implementing contemporary standards of care; establishing mortality
review and an effective quality assurance program; automatic referrals to external

172

PX 17.
See PX 19.
174
PX 20 at 0006, 0009, & 0014.
175
Id. at 0002.
176
Id. at 0007.
177
Id. at 0012.
178
Id. at 0016.
173

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physicians; documentation of deviations from outside provider orders and communication
of those deviations to the outside provider; removing discipline of inmates for malingering
without an evaluation by an outside physician, and the provision of “adequate medical
leadership.”179
138. Given the fact that many of the complaints in this lawsuit – and the deficiencies
proven at trial - are the same as those “settled” in 1998, the Court finds that Defendants
have been aware of these deficiencies in the delivery of medical care at LSP for decades.
139. Defendants were also on notice of the very deficiencies shown at trial, as evidenced
by a report of findings issued by the Wexford Consulting Group in 2009, an entity retained
by LSP to assess the medical care provided by the DOC at LSP and other prisons.180
140. On numerous occasions, outside providers also provided notice to LSP of medical
care deficiencies. In January 2014, Defendants were notified that outside providers had
to cancel several procedures and surgery dates “due to inadequate preparation and/or
following of instructions,” in a wide variety of settings, including cardiac catheterization
labs, endoscopy, and surgical procedures.181 Defendant Stacye Falgout was specifically
advised of the need for staff to “be aware of instructions and follow through with the
specific time frames for preps, stopping [anticoagulants], adding [m]edications, etc.…”182
141. In August 2014, Defendant Singh received notice from the Director of the Louisiana
Emergency Response Network and the Stroke Program Coordinator at ILH LSP patients
were arriving at ILH with “obvious stroke symptoms” based on LSP staff failing to

179

PX 17 at 0003-05.
PX 265. The Court ruled during trial that the Wexford report was admitted only for the Defendants’
knowledge, not for the truth of its contents. See Rec. Doc. No. 546 at 181:16-183:17.
181
PX 142 at 0001.
182
Id.
180

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determine or realize that inmates were having strokes.183 Defendants were advised that
stroke patients “need to get emergent care within [4.5 hours] to attempt [to] prevent severe
disability,” and that the patients arriving at ILH all suffered “pretty significant deficits” due
to the lack of recognition and transport.184
142. Also in 2014, LSUP received notice via written communication from LSU’s Chairman
of Oral Surgery to Dr. Singh and Stacye Falgout that LSP had sent a number of inmates
“with 3 week old fractures that are already infected and thus use a lot of resources to fix
something that could have been treated easily if diagnosed sooner.”185
143. Dr. Catherine Jones, a doctor at University Medical Center in New Orleans, who
frequently treats patients from LSP, testified at trial about multiple attempts to contact Dr.
Lavespere to discuss the delayed diagnoses of LSP inmate patients, but those calls are
often unanswered.186
144. Current and former LSP medical personnel also documented and/or testified
regarding treatment backlogs and other deficiencies.187 Former Assistant Warden for
Healthcare Services Kenneth Norris testified that patients “did not get the timely
treatment” because Defendants refused to authorize hernia surgery “until, you know, it
becomes a life-threatening deal.”188

183

PX 12 at 0001-02.
Id. at 0002.
185
PX 13 at 0001-0002.
186
Rec. Doc. No. 550, Testimony of Dr. Catherine Jones at 145:6-16.
187
PX 36; PX 37; PX 42 (Dr. Singh on 12/13/13: “Some of the offenders at LSP were waiting for CT scan
and MRI or cancer care since late 2011. … As far as I know no [colonoscopies] were done at LSP for 2
years or longer. Once access has been restored, even then we can not [sic] get all 600 colonoscopies done
immediately.”) id.at 0001; PX 26 (Ms. Lamartiniere: “[W]e will temporarily suspend the entering of screening
referrals [for colonoscopies] until notified by [headquarters] to resume.” Id. at 0001); PX 32 (summary of
the cataract backlog).
188
JX 4-tt, Norris Depo at 37:22-38:4.
184

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145. The lack of meaningful, in-depth mortality review is further evidence of deliberate
indifference by Defendants; by failing to critically review causes of death, Defendants
avoid documenting existing deficiencies within the health care system that need to be
addressed and corrected. Indeed, not a single Medical Summary Report reviewed by
Plaintiffs’ experts noted a problem with patients’ care, despite the serious errors and
delays in treatment discovered in nearly every death these experts reviewed.189 This
inference is supported by Dr. Singh’s recommendation to Secretary LeBlanc that the DOC
not “dig too deep” in investigating a death because “liability is still ours.”190 Dr. Vassallo
credibly testified at trial regarding the frequency of death summaries that “misrepresented
the facts of the patient’s death.”191
9.
146.

Laboratory Services

The Court finds that Plaintiffs failed to carry their burden of demonstrating

constitutional violations regarding the laboratory services provided at LSP. According to
Dr. Puisis, the laboratory is CLIA certified, and both the laboratory and radiology
departments functioned properly during the relevant time period.192
10.
147.

Pain Medication Management

The Court also finds that Plaintiffs failed to carry their burden of demonstrating

constitutional violations in the management of pain medicine provided at LSP. The trial
evidence demonstrated that narcotic pain management is not available to patients in the
general population due to LSP’s policy prohibiting the dispensation of narcotics in general

189

PX 6 at 0084-87.
PX 66 at 0001.
191
Rec. Doc. No. 547 at 178:19.
192
Rec. Doc. No. 544, Testimony of Puisis at 196:4-13.
190

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population. However, LSP policy does allow for the availability of narcotics to hospice
care patients.193
Facts Relating to ADA Claims
1.
148.

Effect of DOJ ADA Investigation and Settlement with LSP

In May 2010, the United States Department of Justice (“DOJ”) conducted a site

visit at LSP to assess whether LSP complied with Title II of the ADA and its implementing
regulations.194 Although no settlement between the DOJ and LSP had been reached at
the close of discovery in this matter, evidence was admitted at trial demonstrating that
LSP had been working since the DOJ’s 2010 site visit to address compliance issues
identified by the DOJ.195
149.

Plaintiffs’ architectural expert Mazz admitted that the DOJ conducted a far more

expansive assessment of LSP facilities than he, as the DOJ reviewed the entire property
for programmatic access.196 However, the Court rejects Defendants’ argument that the
DOJ’s investigation renders Mazz’s investigation and findings moot or that any facts found
by this Court would be necessarily duplicative of the DOJ’s investigation and findings.
150.

The Court limited the trial of this matter to the discovery period, and any post-

discovery remedial measures are more appropriately addressed at the remedy phase;
such measures do not inform the Court regarding liability in this matter.197 Furthermore,
Defendants’ architectural expert Nolan conducted a review of both the DOJ’s findings and

193

Rec. Doc. No. 545 at 20:15-17; 131:2-3.
PX 7 at 0008.
195
See JX 12-e. The Court notes that, at the remedy phase of this matter, any remedial measures
undertaken by LSP will certainly be recognized and credited where appropriate.
196
Rec. Doc. No. 546 at 60:18-25; 76:25-77:4.
197
Rec. Doc. No. 419 at 3.
194

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Mazz’s findings and concluded there is little overlap – at most, 11 items out of 190.198
Additionally, Defendants presented no evidence at trial to dispute or controvert Mazz’s
findings.
2.

Architectural Barriers to LSP’s Programs, Services, and Activities
a.

151.

Facilities

Trial evidence demonstrated that certain areas of the buildings Mazz surveyed

have been altered since the 1991 ADA Standards took effect. In 2016, LSP’s facilities
maintenance staff compiled a list of renovations completed at Main Prison and the
outcamps between 2010 and May 2016.199

Odis Ratcliff, an Assistant Facilities

Maintenance Manager designated by the DOC to testify regarding the compliance of
LSP’s facilities with the ADA,200 confirmed that the list includes alterations made since
2010 to attempt to bring the facilities into compliance with the ADA and fire marshal
regulations.201

Notably, the bathrooms and JPay Stations in Ash 2 and Cypress 2

dormitories were modified after the 1991 Standards took effect.202
152.

Mazz surveyed Dormitories Ash 2 and Cypress 2, focusing on sleeping areas and

shower and bathroom areas, as well as the accessible routes from those dormitories to
the public check-in desk, associated recreation yards, van transit parking, law library, and
visiting area.203 He also surveyed portions of the visiting area and law library used by
residents of those dormitories.204 Ash 2 and Cypress 2 are two of three dormitories

198

Rec. Doc. No. 546 at 80:15-81:5.
JX 12-e.
200
JX 4-aaa, O. Ratcliff Depo. at 6:23-25.
201
Id. at 10:16-11:18.
202
JX 12-e.
203
PX 7 at 0009; Rec. Doc. No. 546 at 18:7-19:15.
204
Id.; Rec. Doc. No. 546 at 20:13-21:1.
199

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designated as “medical dormitories” or “offender assistance dormitories” and house
inmates with mobility impairments and other disabilities.205 Of the three dormitories, Ash
2 is reserved for patients who require the most assistance with the activities of daily
living.206 Mazz also surveyed Dormitory 1 at Camp F, a trustee dorm that has been used
to house blind and otherwise vulnerable individuals.207 Mazz also reviewed various cells
and showers in LSP’s Transition Unit (“TU”),208 including in the Protection Tier and Mental
Health Tier.209 The TU operates as transitional housing for inmates with severe mental
illness or developmental disabilities,210 and it frequently houses inmates with physical and
mental disabilities, including blind patients211 and patients in wheelchairs, like Plaintiff
Reginald George.212 Mazz surveyed Wards I and II on the Nursing Unit at the R.E. Barrow
Treatment Center.213 Ward I operates as LSP’s infirmary, while Ward II houses patients
requiring long-term nursing care and assistance with basic life functions, including LSP’s
hospice patients.214

205

Rec. Doc. No. 547, Testimony of Danny Prince at 95:1-4; JX 4-c, A. Brent Depo. at 75:17-76:23
(identifying Ash 2 and Cypress 2 as the dormitories housing disabled individuals receiving care from inmate
health care orderlies); JX 6-eee (LSP Directive 13.088) at 00269 (establishing offender assistance
dormitories to provide housing “for offenders who require assistance with activities of daily living”).
206
Rec. Doc. No. 547 at 95:5-8.
207
PX 7 at 0009; Rec. Doc. No. 546 at 22:5-23:1; id. at 139:4-5, 152:3-154:5 (Tonubbee describing his
experience assisting former Named Plaintiff Alton Batiste around Camp F after he went blind).
208
In his report, Mr. Mazz identified the TU as the “Treatment Unit,” consistent with the floor plans that were
provided to him. See JX 7 at 0009.
209
PX 7 at 0009; Rec. Doc. No. 546 at 20:7-10.
210
See JX 6-y (LSP Directive 13.037) at 00140 (designating the TU as a housing area for “offenders with
severe mental illness or developmental disabilities”).
211
PX 85 at 0003.
212
PX 231 at 1354 (ARP paperwork reflecting that Mr. George was housed in the TU).
213
PX 7 at 0009; Rec. Doc. No. 546 at 19:24-20:5.
214
JX 6-v (LSP Directive 13.033) at 00130-32 (describing the purpose and admission criteria for Wards I
and II); JX 7-b (LSP Directive 07.004) at 00002 (stating that “severely handicapped inmates” will be housed
at the Treatment Center). See also Rec. Doc. No. 546, Testimony of Francis Brauner, at 97:22-25
(explaining that Ward II houses “some of the worst cases of, you know, illnesses, stroke victims, cancer
victims, heart problems, you name it, me, paralyzed, wounds.”).

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153.

Mazz testified that, in the correctional setting, he typically looks at access to

services, programs, and activities ranging from toilets and showers to law libraries, visiting
areas, and classrooms.215 At LSP, he specifically considered housing at various security
levels, including toilets, showers, bathtubs and sinks; water fountains; mail services; meal
services; medication administration; medical services; telephones; JPay stations;216
recreation areas; transportation services; the law library; and the visiting area.217
154.

As detailed in Attachment 2 to his report,218 Mazz identified 190 architectural

barriers impeding independent access to a range of programs, services, and activities,
including housing, toilets, showers, phones, JPay stations, common areas, drinking
fountains, recreation areas, transportation, the law library, visiting areas, medication
administration, meals, medical services, and mail services.219 Photographs documenting
each violation are included in his report as Attachment 3.220 Because Mazz’s findings
were uncontroverted by Defendants’ expert Nolan and any other evidence presented by
Defendants at trial, the Court adopts the findings of violations as detailed in Mazz’s report.
155. Anecdotal evidence in the form of the testimony of Named Plaintiffs and Subclass
Members generally confirmed Mazz’s findings. Aaron Brent, a former LSP health care
orderly, testified that the showers in Ash 2 were not usable for patients with disabilities
because there were “showers you couldn’t reach.”221 Farrell Sampier testified at trial
about the difficulty he experienced navigating the paved walkways between the medical

215

Rec. Doc. No. 546 at 12:16-13:4.
Id. at 34:14-23.
217
See PX 7.
218
Id. at 0018-39.
219
Id.; Rec. Doc. No. 546 at 23:2-10.
220
PX 7 at 0040-112; Rec. Doc. No. 546 at 27:8-14.
221
JX 4-c, A. Brent Depo. at 32:10-33:10.
216

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wards and other areas while in his wheelchair, stating that he had to perform “wheelies”
to maneuver over various humps and obstacles to get across the sidewalk such that
Sampier usually had to ask for someone to push him to get around the property.222
Former inmate Francis Brauner, who uses a wheelchair, described problems regarding
the accessibility of Ward II; for example, he was unable to access the shower or bathtub,
which caused him to give himself bed baths and shave and wash his hair in the sink.
However, the sinks were positioned above chest level for those in wheelchairs, making
them difficult to use. Sampier also testified that he could not reach the mirrors or the water
fountains.223
156.

Testimony from Subclass members also demonstrated that the physical barriers

at LSP deny them access to a variety of programs. At trial, Sampier testified that, while
living on the medical wards, he was not allowed to attend any classes offered at the
prison, including programs such as anger management, victim awareness, and substance
abuse classes.224 Brauner testified that he and other patients living on the ward could not
attend church services or sporting events available to other inmates.225 Barrera, who was
housed on Ward II until December 2015, also testified that he was not permitted to leave
the ward to attend classes or church services. Further, he was required to take anger
management and substance abuse courses to be eligible for release; however, LSP
would not come to the ward to teach the class because there were not enough patients
on the ward who needed the courses to warrant the accommodation.226

222

Rec. Doc. No. 544, Testimony of Farrell Sampier at 63:11-19; 82:15-24.
Rec. Doc. No. 546 at 100:22-102:25.
224
Rec. Doc. No. 544, Testimony of Sampier at 48:13-16; 62:13-24.
225
Rec. Doc. No. 546, Testimony of Francis Brauner at 108:5-19.
226
Id., Testimony of Otto Barrera at 213:8-214:23.
223

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157.

Current and former officials at LSP also confirmed ADA noncompliance issues.

LSP Warden Darryl Vannoy admitted that “Angola has a lot of work to do on a physical
plant to be ADA, to meet the ADA requirements.”227 Former LSP ADA Coordinator Donald
Barr testified that there were “access problems for wheelchairs within the main prison” at
the time the DOJ reviewed LSP’s facilities.228 Although LSP’s own policies require the
medical dormitories to be “handicap accessible,”229 Defendants acknowledged that LSP
is “operating Medical Dorms in dormitories designed for general, unimpaired
population.”230
b.
158.

Use of Inmate Orderlies as Alternative Means to Access

LSP assigns inmate health care orderlies to the medical dorms and Wards I and II

to assist sick and disabled patients with the activities of daily living.231 Health care
orderlies are not assigned to all areas Mazz surveyed, such as the Camp F dormitories
and the TU.
159.

LSP’s health care orderly program trains inmates to assist sick and disabled

inmates with activities of daily living, such as bathing, toileting, transfers, feeding, and
personal hygiene.232

This training program was modeled after a Certified Nursing

Assistant (“CNA”) course.233 Training topics include: Abuse and Neglect, Negligence,

227

JX 4-ccc, D. Vannoy Depo. at 71:18-20.
JX 4-z, D. Barr Depo. at 39:5-9.
229
JX 6-eee (LSP Directive 13.088) at 00269.
230
PX 15 at 0002 (Proposal to Open EHCC Building Four).
231
JX 6-eee (LSP Directive 13.088 – Offender Assistance Dorm) at 00269-70; JX 6-vv (LSP Directive
13.076 – Use of Offenders in Health Care) at 0236-37.
232
Rec. Doc. No. 553, Testimony of Falgout at 192:8-193:18; 205:11-19; see also JX 4-ii at 10:9-22.
233
Id. at 193:4-8.
228

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Activities of Daily Living, Patient Safety, Ambulation, Bathing the Patient, and Feeding a
Patient.234
160.

The orderly program is severely understaffed. Aaron Brent, a former health care

orderly in Ash 2, testified that he and three other orderlies were responsible for 43 patients
requiring assistance, including 29 or 30 in wheelchairs, and others who used walkers.235
Brent and the other orderlies were responsible for distributing meals; changing bed linens;
counseling patients regarding their medication; providing emotional support to patients;
delivering patients to religious services, scheduled medical appointments, and
unscheduled emergency visits to the ATU; and actually attending appointments with
patients.236 Disabled inmates suffer neglect because orderlies are shorthanded.237
Evidence demonstrated inmates filed ARPs complaining about being unable to access
LSP facilities without orderlies assisting by pushing their wheelchairs, to no avail.238
161.

Trial evidence and testimony also revealed that orderlies are often “overwhelmed”

and spread too thin to provide proper assistance to disabled inmates. Trial evidence
showed that orderlies would sometimes leave inmates sitting in their own feces and

234

JX 15 at 5, 10, 104, 107, 158, 164, 182.
JX 4-c, A. Brent Depo. at 75:18-76:23. Danny Prince, another former Ash 2 health care orderly, also
testified at trial that the dorm housed 43 patients and 43 non-patients. Rec. Doc. No. 547, Testimony of
Danny Prince, at 95:11-12. He explained that two orderlies would cover the night shift, and during the day
there could be anywhere from three to five orderlies, depending on whether the positions were fully staffed
at the time. Id. at 96:19-24.
236
JX 4-c, A. Brent Depo. at 34:7-19; 35:16-36:10; 42:2-14; 68:7-70:8; 75:17-76:4; 76:24-77:15. See also
Rec. Doc. No. 547, Testimony of Danny Prince, at 116:3-13 (explaining that as an Ash 2 health care orderly,
he would transport patients in wheelchairs to medical callouts and other areas of the prison, help patients
in and out of their wheelchairs from the bed or shower, and clean up after patients who urinate or defecate
in bed or on themselves, among other tasks).
237
Prince testified that that accompanying patients to their appointments often would require the full
attention of two orderlies, leaving just one orderly in the dorm to look after the remaining patients. Rec.
Doc. No. 547 at 98:6-19.
238
PX 231 at 1936-1940 (ARP of L.L.); id. at 1995-1996 (ARP of T.P.); Rec. Doc. No. 547 at 102:14-17.
235

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urine;239 it was common for orderlies to be called to respond to another emergency before
properly completing assistance in changing disabled inmates, resulting in disposing of
dirty diapers or pads on the floor of Ward I.240 Disabled inmates observed orderlies
cursing at patients, becoming aggressive, and in some instances, nearly dropping
patients they were assisting.241 Disabled inmates often had to transfer themselves from
their beds to wheelchairs because the orderlies were assisting others and unavailable;
disabled inmates often relied on other, untrained inmates for assistance.242
162. Trial evidence also established that disabled inmates are often subjected to neglect
and abuse by some orderlies. Prince testified that he had observed verbal and physical
altercations between orderlies and patients.243 Brauner testified that he and others in
Ward II regularly heard an elderly inmate attempt to defend himself from an orderly who
molested him in the shower,244 and Brauner personally witnessed the same orderly
fondling the inmate in his bed.245 Brauner also testified that he witnessed an orderly pour
a bucket of bleach on a mentally impaired inmate who had defecated on himself.246
163.

Some orderlies tasked with assisting sick and disabled inmates appear unwilling

to perform their duties. Subclass member Benny Prine testified that most of the orderlies
demand a bribe to assist him in pushing him from his dorm to other locations.247

239

See Rec. Doc. No. 544, Testimony of Farrell Sampier, at 46:9-12.
Id. at 46:12-16.
241
Id. at 65:5-8.
242
See Rec. Doc. No. 546, Testimony of Francis Brauner, at 101:6-25; Rec. Doc. No. 544, Testimony of
Farrell Sampier at 65:21-66:2 (explaining that he and other patients on the ward would assist each other
with feeding, covering up, and other tasks when the orderlies were not available).
243
Rec. Doc. No. 547 at 97:15-23.
244
Rec. Doc. No. 546 at 99:17-25.
245
Id. at 100:1-8.
246
Id. at 100:9-21.
247
JX 4-q, B. Prine Depo. at 71:25-72:5, 74:10-14.
240

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Deceased Named Plaintiff Shannon Hurd testified via video deposition that many
orderlies on Ward II did not fulfill their responsibilities and were in the program only for
the air conditioning available on the ward.248 Brent testified that he had to report orderlies
who did not perform their jobs and needed to be removed from the program.249 Prince,
testified at trial that, while some orderlies go above and beyond their assigned duties,
others seem to be looking for an easy job and are unwilling to assist patients.250
164.

Trial testimony and evidence established that Tracy Falgout, who runs the health

care orderly training program and testified on behalf of the DOC regarding the training
and qualifications of orderlies, is aware of the deficiencies within this program. He
acknowledged that orderlies may have “different angles” when joining the program and
may try to “strong-arm” vulnerable patients;251 there is a prison culture of “not being a rat,”
and there may be consequences for inmates or orderlies who report misconduct.252
Warden Falgout advises patients and orderlies to “figure out a way to get it to somebody
who can take care of it,” but he admitted that “sometimes it just is going to be what it is,”
if “somebody out there is not doing what they are supposed to be doing.”253 Although
Warden Falgout did not know the percentage of orderlies who are removed from the
position for infractions,254 he acknowledged that he is “continually training” new orderlies

248

JX 4-u, S. Hurd Depo. at 60:25-61:4. Brauner also testified that some orderlies take the job for the
access to air conditioning and are unwilling to assist patients. Rec. Doc. No. 546 at 99:11-16.
249
JX 4-c, A. Brent Depo. at 46:5-22.
250
Rec. Doc. No. 547 at 97:3-14.
251
JX 4-ii, T. Falgout Depo. at 27:25-28:7; see also Rec. Doc. No. 554, Testimony of Tracy Falgout, at 41:814.
252
Id. at 28:12-15; Rec. Doc. No. 554 at 42:18-43:4.
253
Id. at 28:17-25; Rec. Doc. No. 554 at 43:5-7.
254
Rec. Doc. No. 554 at 43:8-19 (explaining that he only becomes aware that orderlies have left the program
when security gives him a new list of candidates to train).

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because “we do have that percentage of guys who don’t play by the rules.”255 Warden
Falgout knew that at least one orderly has been accused by a patient of sexual assault
but admitted there could be other allegations of which he is unaware as such complaints
generally go to security.256
165.

Trial evidence clearly demonstrated that the architectural barriers at LSP puts

disabled inmates at risk of injury, notwithstanding health care orderly assistance.
Evidence demonstrated falls from wheelchairs caused by gaps and/or other problems in
walkways and ramps occur often, as do slips and falls in the showers and bathrooms of
dorms.257
166.

The Court finds that LSP uses inmate orderlies to attempt to accommodate or work

around the access barriers, but the orderly program creates an unnecessary risk of harm
to disabled and vulnerable inmates.
c.
167.

Segregation without Justification

Trial evidence also demonstrated that LSP unjustifiably segregates its disabled

population as it relates to housing.

Inmates with long-term physical disabilities are

typically housed in the medical dormitories or on Ward II.258 As set forth above, this
excludes inmates on nursing wards from participating in a host of activities and programs
at LSP.

255

JX 4-ii, T. Falgout Depo. at 34:2-4.
Id. at 41:4-14; 33:12-18; 34:16-24; 42:1-13.
257
JX 4-q, B. Prine Depo. at 64:12-65:2; PX 231 at 2263-65 (ARP of J.W.); JX 4–c, A. Brent Depo. at 78:480:21; Rec. Doc. No. 547, Testimony of Danny Prince, at 104:10-19; PX 231 at 2358-64, 2437-39 (ARP of
J.W.); PX 231 at 1794-1809 (ARP of C.H.); PX 231 at 1609-13 (ARP of S.G.); PX 231 at 1846-55 (ARP of
E.J.); PX 231 at 1887 (ARP of T.K.).
258
JX 7-b (LSP Directive 07.004) at 00002; JX 6-eee (LSP Directive 13.088) at 0269-70; see also JX 4-z,
D. Barr Depo. at 49:10-18 (deaf inmates housed in medical dorms); JX 4-ii, T. Falgout Depo. at 119:3-7
(blind inmates housed in medical dorms).
256

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168.

Disabled or impaired inmates housed in the medical dorms do not receive many

of the services that are used to justify this segregation. Defendants claim placing disabled
inmates in the medical dorms is justified because these dorms are handicap accessible
and allow for assistance with personal care, meals, and medication administration. Also,
the medical dorms are close in proximity to LSP’s treatment center.259 Despite these
claims, the trial evidence demonstrated that inmates are still transported to the ATU for
services,260 and neither doctors nor nurses make rounds in the medical dorms.261 That
inmate orderlies are available to assist in the medical dorms is a justification that is not
substantiated based on the Court’s findings regarding the inmate orderly program.262
3.
169.

Methods of Administration

LSP has systemically failed to provide access and accommodations to disabled

inmates by failing to follow both Title II’s implementing regulations and its own policies
and procedures relating to ADA compliance.
a.
170.

ADA Coordinator

LSP had a designated ADA Coordinator during the relevant time periods; however,

evidence established that these Coordinators all lacked sufficient education, training, and
qualifications to carry out the obligations with which the ADA Coordinator is charged.
Defendants concede that ““[t]here are no specific qualifications of LSP’s ADA Coordinator

259

JX 6-eee at 00269.
JX 4-c, A. Brent Depo. at 75:14-76:4; see also Rec. Doc. No. 551, Testimony of Randy Lavespere at
205:17- 20, 208:17-21.
261
JX 4-c at 73:25-76:4. See also Rec. Doc. No. 547, Testimony of Danny Prince at 98:20-24 (explaining
that no doctors or nurses come to Ash 2 dormitory “unless there’s like a tour or something coming through”).
EMTs only visit the dormitories to conduct regular sick call. JX 4-c, A. Brent Depo. at 74:8-12.
262
The Court does not conclude that no justifiable reasons could exist for segregation; however, based on
the evidence at trial, the Court finds that the offered justifications are unsubstantiated. The Court is
confident that the segregation issues will be addressed during the remedial phase.
260

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or interim ADA coordinator,”263 and the ADA Coordinator “do[es] not receive any formal
ADA training upon taking office or on a regular basis.”264
171.

As ADA Coordinator from 2015-2016, Deputy Warden Peabody identified only a

basic four-hour training course he received;265 he did not attend trainings regarding
disability law and acknowledged that he was not “kept in some sort of loop” on updates
in disability law.266 Peabody showed a general lack of familiarity with assessment forms
he was responsible for evaluating and approving, and often concluded that inmates’
disabilities were purely medical conditions not in need of accommodations.267 The Court
finds that Warden Peabody had an overall lack of knowledge and understanding of the
ADA and its requirements, particularly regarding accommodations.
172.

Warden Barr, who followed Peabody as ADA Coordinator, was likewise

insufficiently trained for this position. Barr received no ADA training other than the
standard annual hour that all staff receives;268 received no training manual;269 testified
that “[t]he Warden came to me and told me that he appointed me to that position and
pretty much that was it”;270 and, when he took on this role, his workload was unaffected
as he viewed this position as simply an “extra assignment.”271 The Court finds that

263

PX 403 at 0004. However, LSP Directive 01.016 states: ”The ADA coordinator shall possess the
educational background, experience and skills necessary to carry out all of the duties and responsibilities
of the position, and have knowledge and experience in dealing with the legal rights of persons with
disabilities and the obligations of public entities under Federal and State disability laws.” JX 7-a at 1.
264
Rec. Doc. No. 242-2 at ¶ 16.
265
JX 4-ww, R. Peabody Depo. at 12:23-13:11.
266
Id. at 13:16-23.
267
JX 4-vv, R. Peabody Depo. at 19:25-20:12; 21:4-7; 22:6-24.
268
JX 4-z, D. Barr Depo. at 10:23-11:2, 16:13-17:3.
269
Id. at 11:7-9.
270
Id. at 11:15-17.
271
Id. at 12:20-23. Barr was unaware of basic information such as the availability of materials in Braille,
including books and the RFA form. Id. at 43:14-24. He could not say how a blind inmate would file an ARP,
Id. at 45:19-23, and was unsure whether deaf inmates were permitted to work. Id. at 49:5-9.

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Warden Barr was likewise ill-informed and ill-equipped on matters of ADA compliance.
173.

Current ADA Coordinator Asst. Warden Falgout took on this role in September

2016. At his October 2016 deposition, Falgout testified that he received no training or
manual when he took office and did not discuss the role with Warden Barr.272 He was
unfamiliar with the ADA Amendments Act and the Rehabilitation Act;273 as well as the
individualized response plans he was required to create for disabled patients pursuant to
LSP Directive 01.016;274 and the need for an ADA transition plan as defined in 28 C.F.R.
§ 35.150(d).275
174.

The Court finds that Asst. Warden Falgout is juggling far too many competing

responsibilities to adequately fulfill his obligations as ADA Coordinator for the LSP.276
The Court also finds that LSP failed to provide adequate training and resources to any of
its ADA Coordinators, and none of the ADA Coordinators during the relevant time period
possessed the knowledge or experience necessary to oversee and ensure ADA
compliance.

272

JX 4-jj, T. Falgout Depo. at 8:2-19.
Id. at 11:15-12:3.
274
Id. at 58:12-14.
275
Id. at 37:1-16; 28 C.F.R. § 35.150(d).
276
Rec. Doc. No. 554, Testimony of Tracy Falgout at 12:10-14:1, 32:15-36:16. During the relevant time
period, Falgout was responsible for: supervising a mental health nurse; overseeing LSP’s Quality
Improvement program, which involved formulating studies, collecting data for as many as six studies at a
time, preparing reports, and leading quarterly meetings; preparing and maintaining files to demonstrate
compliance with the ACA’s medical standards, both for annual internal audits and the triennial ACA audit;
making level of care determinations for individuals being transferred from LSP to other facilities, which
required thousands of record reviews every year; providing nursing staff training and continuing education;
running the health care orderly and hospice volunteer training programs; leading re-entry classes;
performing patient histories and assessments as part the intake process for transfers to LSP, at times on a
weekly basis; teaching basic and advanced life support classes; processing and evaluating accommodation
requests, and conducting as many as 50 or more hearing tests per month in connection with many of those
requests.
273

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b.
175.

ADA Advisory Committee

Although not required by ADA regulations, LSP Directive 01.016 requires LSP to

maintain an ADA Advisory Committee consisting of the ADA Coordinator, the Deputy
Warden for Operations, a staff attorney, the Safety Director, and the Health Information
Management Supervisor.277 The purpose of this committee is to review ADA compliance
on a monthly basis and recommend corrective action to the warden where appropriate.278
Despite this Directive, neither LSP’s ADA Coordinator279 nor its past or present
wardens,280 were aware of the existence of such a committee, and Defendants have
admitted that “[n]o such committee existed during the pendency of this lawsuit.”281
c.
176.

Inadequate Training

LSP staff are inadequately trained to assist with disabled inmates. Falgout testified

that both security and medical staff receive an hour of training, annually, on “special needs
offenders,”282 which is based upon the same 13-page handout that includes three pages
of instructions relating to illegal drug use.283 The handout places far more emphasis on
handling security concerns than evaluating and assisting with the accommodations and
care necessary for disabled inmates.
177.

Several LSP representatives confirmed this lack of ADA training. At his August

2016 deposition, Falgout testified that he was unaware of any formal ADA training for
staff, stating simply: “[a]ll staff have the ability to review the policy.”284 Assistant Facilities
277

JX 7-a (LSP Directive 1.016) at 4.
Id.
279
JX 4-ii, T. Falgout Depo. at 93:23-25; JX 4-jj, T. Falgout Depo. at 36:1-9.
280
JX 4-ccc, D. Vannoy Depo. at 72:17-20; JX 4-bb, B. Cain Depo. at 48:24-49:1.
281
Rec. Doc. No. 242-2 at ¶ 18; see also PX 403 at 0003.
282
Rec. Doc. No. 554, Testimony of Tracy Falgout at 6:13-7:1; 8:18-24.
283
See DX 103 at 03275-77.
284
JX 4-ii, T. Falgout Depo. at 93:16-22.
278

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Maintenance Manager Odis Ratcliff, who testified as the DOC’s 30(b)(6) witness
regarding the accessibility of LSP’s facilities, admitted that no one in his department
receives training on the ADA’s architectural accessibility requirements.285 The DOC’s
orientation training materials focus almost entirely on hearing-impaired inmates.286
d.
178.

Failure to Inform Disabled Inmates of ADA Rights/Procedures

Plaintiffs failed to carry their burden of demonstrating that LSP systemically fails to

inform patients of their ADA rights and procedures. Falgout testified at trial that, in
accordance with LSP policy,287 every new inmate is asked at intake if he has a physical
limitation or need for accommodation:288
We ask the questions on everyone coming in, do you have any physical
limitations, do you have any issues as far as being able to ambulate. Some
of it is quite evident. If they come in with a wheelchair or a cane or walker,
we know that. We’ll take that into consideration. We also, like I said, we’ll
ask them questions if they have any physical limitation.289
If the inmate is cognitively impaired or cannot read or write, the procedures are explained
verbally.290 Falgout testified:
If in the process of doing medical intake, there appears to be that there is
some type of cognitive deficit as far as this offender’s ability to understand,
we will take our time and slow things down, read it for them. If there’s still
that issue, we bring mental health in on that … to help him as much as
possible comprehend what’s going on with the intake process and make
sure he gets the information.291

285

JX 4-aaa, O. Ratcliff Depo. at 9:4-11.
JX 12-f.
287
See JX 7-a (LSP Directive 1.016).
288
JX 4-jj at 19:2-17; see also JX 4-ii at 94:20-95:20.
289
Rec. Doc. No. 553, Testimony of Falgout, 163:19-25.
290
JX 4-ii at 98:20-99:3.
291
Rec. Doc. No. 553, Testimony of Falgout, at 169:11-21.
286

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179.

During intake, an inmate is provided a Request for Accommodation form and

advised that he may request an accommodation at that time or later, if necessary.292
Class member Otto Barrera testified at trial that he received this form at intake, although
he also testified he did not understand it.293
180.

While Request for Accommodation forms are available in all housing areas,

Falgout testified that the form itself “is not a necessity for access.”294 Rather, an inmate
can request an accommodation verbally, through a sick call form, or even “on a blank
piece of paper.”295 “Any means of communication” satisfies the initiation of a request for
accommodation, and a request may even be made by suggestion of a correctional officer
on behalf of an inmate.296 This process was explained in detail by the documentary
evidence submitted.297

Inmates whose accommodations requests are denied are

allowed to appeal through the ARP process.298
e.
181.

Failure to Properly Handle Accommodation Requests

Although the request for accommodation process is explained in the above

manner, Plaintiffs presented evidence that LSP does not comply with the steps set forth
in this process; rather, nearly all accommodations requests are initiated through the ARP
process.299 Defendants’ training materials instruct LSP staff to direct inmates to the ARP
process to request an accommodation.300 Former ADA Coordinator Peabody

292

JX 4-jj at 20:5-15; JX 12-a at 00001.
Rec. Doc. No. 547, Testimony of Otto Barrera, at 49:17-50:22; JX 10-d-1 at 03748.
294
Rec. Doc. No. 553, Testimony of Falgout at 174:18-175:1; JX 4-jj at 19:18-20:23.
295
JX 4-jj at 19:18-20:23.
296
Id. at 29:5-18; see also, Rec. Doc. No. 553 at 175:2-12.
297
JX 12-a; JX 7-a (LSP Directive 1.016).
298
JX 7-a at 8; JX 4-jj at 24:8-13, 28:1-8.
299
JX 5-d at 0321-22.
300
JX 12-f at 00313.
293

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acknowledged that “a lot” of requests for accommodations are filed as ARPs.301 Despite
the prison policy and procedure requiring a specific routing process for accommodationrequest ARPs,302 Warden Peabody testified that, during his time as ADA Coordinator, an
ARP involving a request for accommodation would be “treated just like every other
administrative remedy procedure,”303 and he never saw an ARP routed to his office.304
He admitted that ARPs or other complaints would not come to him unless they included
“magic words” such as disability or ADA, even if they might be legitimate accommodation
requests.305 Indeed, he admitted that there was “no excuse for it, other than we were not
coordinating the two efforts together.”306 When testifying as the DOC’s 30(b)(6) witness
on ADA implementation, Warden Falgout similarly testified that he was unaware how
ARPs were routed to his office, who was responsible for routing them, or whether that
person had any familiarity with the ADA.307
182.

Trial evidence demonstrated that ADA Coordinators and medical staff routinely fail

to recognize when medical issues trigger the ADA. Warden Peabody admitted that “we’re
so used to inmates making medical requests for duty status based upon a medical
condition that I don’t necessarily see it as an ADA issue.”308 Warden Peabody did not
think requests for restricted duty statuses should come to him, even though they “could
be” considered requests for accommodations.309 He stated that “[t]his is a confusing issue

301

JX 4-vv, R. Peabody Depo. at 12:21-24.
JX 12-f at 00313; JX 5-d at 00321-22.
303
JX 4-ww, R. Peabody Depo. at 62:5-15.
304
Id. at 63:2-4.
305
Id. at 75:23-77:1.
306
Id. at 62:20-24.
307
JX 4-jj, T. Falgout Depo. at 60:7-16.
308
JX 4-vv, R. Peabody Depo. at 22:21-24.
309
JX 4-ww, R. Peabody Depo. at 55:3-12.
302

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for me and for staff as determining when something is an ADA request and when it isn’t.
Generally speaking, it gets treated as an ADA request when the inmate puts in something
about ADA in the request and basically says he wants an accommodation.”310
183.

Even when a screening officer recognizes an ADA issue and routes such a request

to the ADA Coordinator, the LSP procedure is not utilized in addressing such a request.311
Although DOC policies provide that “[s]taff who are aware of or have reason to believe
that an offender has a disability for which he may need accommodation are required to
advise the unit ADA Coordinator, who will evaluate the circumstances to determine if
auxiliary aids and services and reasonable accommodations are required,”312 Warden
Peabody testified that, in over ten years of serving as ADA Coordinator, he was never
contacted by a LSP staff member, rather than an inmate, indicating that an inmate had a
disability and required assistance.313
184.

Although DOC policy requires that an inmate’s disability be documented in his

medical record,314 and the ADA Coordinator is responsible for developing an
individualized response plan which must be included in the medical record,315 Plaintiffs’
medical experts did not find “clear documentation of disability accommodations” in a
single chart they reviewed, or “evaluations or assessments of needs in that respect,”316

310

Id. at 58:11-17.
JX 4-vv, R. Peabody Depo. at 19:25-20:12 (Warden Peabody was not familiar with Form B-08-010-A);
See, e.g., PX 231 (ARP of M.B.) at 2563-72 (denying request to use TTY phone and to have his duty status
reinstated); PX 231 (ARP of J.T.) at 2200-11 (rejecting complaint that patient was denied access to TU’s
“handicap accessible shower” with one-sentence response); PX 231 (ARPs of B.A.) at 2604-40 (denying
request for access to TTY phone and television with closed captioning); id. at 1832-45 (ARP of T.J.)(patient
waited approximately 8 months to receive a first step response to his ARP.).
312
JX 5-d at 00320.
313
JX 4-ww, R. Peabody Depo. at 39:5-40:16.
314
JX 12-f at 00312-13.
315
JX 7-a at 3-4.
316
PX 6 at 0059 n.74.
311

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and Warden Falgout testified that he was not familiar with the concept of an individualized
response plan.317
f.
185.

Lack of Tracking System

The DOC requires LSP’s ADA Coordinator to maintain a tracking system for all

accommodation requests318 and to record such information in a database using Form B08-010-B.319 However, in practice, there appears to be no such tracking system, and the
database is severely inadequate to effectively track disabled inmates’ ADA needs.320
After becoming ADA Coordinator, Warden Falgout did not recognize the first part of the
list;321 and he described the second part as “an alphabetized master list of everybody who
has requested ADA for one reason or another.”322 He admitted this list does not provide
a full picture of each individual’s disability and was not really a tracking database for
individuals,323 and he acknowledged one would have no way of knowing whether an
individual’s needs were being met by looking at the list.324 Further, staff at DOC
headquarters appeared to be either unaware of the database’s existence or unable to
utilize it to determine the number of patients with various disabilities and accommodations
at a given facility.325

317

JX 4-jj, T. Falgout Depo. at 58:12-14.
JX 7-a at 3.
319
JX 5-d at 00324, 00329.
320
JX 12-b.
321
JX 4-jj, T. Falgout Depo. at 37:17-38:4.
322
Id. at 40:8-17.
323
Id. at 41:8-42:6.
324
Id. at 44:15-23.
325
PX 306 at 0002 (June 27, 2014 email from S. Falgout to staff at LSP and other facilities, asking if those
facilities “keep up with the number of offenders that are blind, handicapped, in a wheelchair,” and if they
could provide those numbers).
318

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186.

Trial evidence demonstrated that many requests never get recorded into the

tracking database. In 2014, DOC audits of LSP indicated that the ADA database was “not
being used for offender request[s].”326 During his tenure, Warden Peabody noted that the
database would not include any ARPs.327 Warden Barr admitted that he was not involved
in recording information in the database and did not know who was.328 Likewise, Warden
Falgout acknowledged that an ARP would not be recorded in the database if the
screening officer did not recognize the request as indicating an ADA issue.329
g.
187.

Copays

Plaintiffs failed to carry their burden of demonstrating that disabled inmates are

required to pay co-pays for accommodation requests to be addressed. To the extent copays are being charged based on LSP staff misidentifying or failing to recognize that a
medical issue implicates the ADA, this issue can be addressed during the remedy phase
of this matter.
4.

Failure to Accommodate

Plaintiffs argue they carried their trial burden of demonstrating that LSP
systemically fails to accommodate disabled inmates in the following ways: (1) providing
assistive devices and auxiliary aids ranging from wheelchairs and wheelchair gloves to
tapping canes and informational materials in Braille; (2) work assignments; (3) dietary
needs (4) when transporting patients; (5) in prison procedures ranging from medication
administration to evacuation plans to the filing of ARPs; and (6) when imposing discipline.

326

JX 33 at 0001. The March 25, 2014 report indicates that the failure to utilize the ADA database had been
referenced in previous reports, and corrective action was still pending. Id.
327
JX 4-ww, R. Peabody Depo. at 65:10-66:15.
328
JX 4-z, D. Barr Depo. at 23:20-24:12.
329
JX 4-jj, T. Falgout Depo. at 65:8-14.

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a.
188.

Assistive Devices/Auxiliary Aids

Plaintiffs failed to establish that LSP systemically fails to provide auxiliary aids and

assistive devices to disabled inmates.330 Further, Plaintiffs’ evidence that LSP does not
provide Braille for blind inmates does not satisfy their burden; rather, Plaintiffs must show
specific instances where blind inmates required Braille and were not accommodated in
this, or another appropriate, manner.
189.

Signs are posted throughout LSP advising that auxiliary aids are available on

request.331 Inmates are provided adaptive devices on a case-by-case basis.332
190.

Inmates suffering with mobility impairment may be provided wheelchairs, walkers,

canes, or specialty footwear according to physicians’ orders.333 LSP offers training in the
use of adaptive devices.334
191.

Hearing-impaired inmates are accommodated through a variety of ways: onsite

hearing tests or referrals to off-site audiologists, where necessary;335 assistive listening
devices, access to closed captioned television, FM radio adapters, and amplified
telephone headsets, and TTY phones;336 batteries for hearing aids if inmates arrived at
LSP with a hearing aid;337 American Sign Language training by a professional sign

330

Plaintiffs claim that Falgout testified that LSP does not provide hearing aids under any circumstances in
JX 4-jj, T. Falgout Depo. at 108:18-20. However, in this deposition, Falgout testified that an accommodation
could be a hearing aid. Id. at 30:7. Further, LSP is required to accommodate the needs of hearing-impaired
inmates, but LSP may choose the manner in which it accommodates, as long as it is effective.
331
JX 4-jj, T. Falgout Depo. at 29:19-30:8; JX 12-h.
332
Id. at 17:11-18:1.
333
JX 12-b at 00012-13.
334
JX 4-ii at 122:23-23:7; JX 11-c at 00261.
335
JX 4-ii at 110:22- 112:6.
336
Id. at 101:23-102:13, 104:11-14; JX 7-a at 6.
337
Id. at 108:11-13; JX 7-a at 7.

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language interpreter.338
192.

In the majority of inmates’ experiences specified by Plaintiffs, the Court finds that

the evidence does not demonstrate a failure to accommodate a disability under the ADA;
rather, most incidents involve a disagreement by the inmate with the accommodation
provided and/or the medical treatment dispensed.
193.

Sampier testified that prison officials refused to provide him the specific paraplegic

wheelchair he requested along with specialized gloves to accompany this specific
wheelchair.339 However, Defendants presented evidence establishing that Sampier was
provided a wheelchair and a trapeze bar, and he was able to purchase gloves in the
commissary.340 Sampier may have disagreed with his accommodation, but LSP is not
required to provide an inmate’s specific, preferred accommodation.
194.

Francis Brauner testified that LSP initially refused to provide him a wheelchair, but

ultimately a wheelchair was provided that was hard to maneuver.341

Brauner also

complained that he was denied his request for gloves because he was told “it wasn’t in
the budget.”342

Again, the evidence reflects that Brauner was dissatisfied with his

accommodation, but he was accommodated.
195.

The incidents regarding Karl Clomberg’s foot and Michael Johnson’s propensity to

pass out occurred outside the relevant time period. Further, the Court finds that the
evidence surrounding these inmates’ experiences demonstrates a disagreement with

338

Id. at 104:20-105:9; Dr. Daniel Burch was under contract to provide sign language training at LSP for
the period of August 2015 – August 2018. See JX 12-c at 00166-71.
339
Rec. Doc. No. 544, Testimony of Farrell Sampier at 81:18-82:11; 59:11-60:2.
340
Id. at 60:4-10, 59:18-20, 81:22-24.
341
Rec. Doc. No. 546, Testimony of Francis Brauner, at 103:1-104:12.
342
Id. at 104:13-25.

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medical treatment, not a violation of the ADA.
196.

John Tonubbee, who claims he suffers from bunions, a hammer toe, and knee

pain,343 was provided a pair of Apex shoes rather than the specific shoes he requested.344
Thus, Tonubbee was accommodated, disagreement notwithstanding. Further, the Court
finds that Tonubbee’s complaint constitutes a disagreement with medical treatment rather
than a violation of the ADA.
197.

Plaintiffs failed to demonstrate that Derrick Woodberry’s hemorrhoids constitute a

disability under the ADA.

Further, the evidence demonstrates a disagreement with

medical treatment, not a violation of the ADA.
b.
198.

Work Assignments

Plaintiffs failed to demonstrate that LSP systemically fails to accommodate

disabled inmates in work assignments or duty statuses.
199.

At LSP, assignment of duty status begins at intake.345 When an inmate arrives at

LSP, he is not assigned a duty status until he evaluated by a health care provider.346 If
an inmate believes his duty status is being violated, he may utilize the ARP process.347
200.

Adrian Dunn, who suffers from diabetes and asthma, testified that his out-of-field

duty status was revoked after 13 years even though he continues to have asthma attacks
exacerbated by dust.348 Dunn’s medical records were not admitted into evidence in this
matter.

343

Rec. Doc. No. 546, Testimony of John Tonubbee, at 147:7-149:13.
JX 10-ddd-3 at 56892.
345
Rec. Doc. No. 553, Testimony of Falgout at 216:10-14.
346
Id. at 216:14-21; JX 4-ii at 94:1-19.
347
JX 4-jj at 46:13-17.
348
JX 4-h, A. Dunn Depo. at 27:5-24, 28:18-29:25.
344

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201.

The medical records of Karl Clomberg and Michael Johnson are not in evidence in

this matter. Additionally, the complaints of these inmates fall outside the relevant time
period.349
202.

Jason Hacker was denied a restricted duty status and assigned field work despite

a medical determination that he was blind.350 However, Hacker filed a separate lawsuit
against these Defendants on the same complaints, and the Fifth Circuit affirmed a jury
verdict finding that Hacker was not disabled.351
203.

Although Hymel Varnado testified that he was required to lift heavy locker boxes

as part of his orderly duties, despite having a duty status restriction of no heavy lifting,352
Varnado also testified this issue came up in 2010,353 and he has reported no physical
problems with his duty status during the relevant time period.354
204.

Anthony Mandigo, who suffers from sickle cell disease causing ulcers to develop

on his legs and ankles,355 testified at trial that he was assigned to be a tier walker, which
involved walking up and down a prison tier for 10-hour shifts, despite having a duty status
mandating “no prolonged walking.”356

However, Mandigo’s duty status provides for

intermittent rest,357 and he testified that if he complained of pain, “I might get a duty status
of no duty, and go see the clinic every day to get a dressing change.”358 Thus, evidence

349

See JX 4-j at 10, 24; JX 4-f at 28 for dates of incidents.
JX 4-i, Hacker Depo., at 55:7-58:11.
351
Hacker v. Cain, 759 Fed. Appx. 212, 216-218 (5th Cir. 2018).
352
JX 4-s at 21:8-23:23.
353
Id. at 19:8-20:22.
354
Id. at 26:19-25, 29:2-5.
355
Rec. Doc. No. 550, Testimony of Anthony Mandigo at 82:4-24.
356
Id. at 85:4-19.
357
See JX 6-oo (LSP Directive 13.063) at 00203.
358
Rec. Doc. No. 550 at 86:1-2.
350

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demonstrates that Mandigo’s physical limitations were accommodated in his work
assignment.
205.

Charles Butler testified that he was injured while hanging drywall pursuant to his

Squad A duty status work assignment, and he was required to hang drywall sheets
weighing 20 to 25 pounds, despite a lifting restriction of ten pounds.359

However,

Defendants presented evidence that a Squad A duty status inmate is restricted to lifting
“objects weighing less than 30 pounds.”360 Thus, evidence demonstrated that Butler’s
duty status restrictions were not violated by this work assignment, as his lifting restriction
was thirty pounds, not ten.
c.
206.

Dietary Accommodations

Plaintiffs have failed to carry their burden of demonstrating that LSP systemically

fails to accommodate dietary restrictions for disabled inmates.
207. Plaintiffs offered testimony of four class members who claim their disabilities require
dietary accommodations that have not been met by LSP. Further, it was only established
that one class member, Adrian Dunn, would require a dietary accommodation based on
a disability – diabetes.361 Evidence relating to Clomberg, Brauner, and Barrera362 failed
to connect the purported dietary requirements to a disability as defined by the ADA.

359

Rec. Doc. No. 547, Testimony of Charles Butler at 63:22-64:23.
JX 6-oo (LSP Directive 13.063) at 00205 (emphasis in original).
361
JX 4-h, A. Dunn Depo. at 22:13-20.
362
Trial evidence established that Barrera preferred to receive a regular tray and cut up his own food. JX
10-d-1 at 03971-03972. Further, evidence demonstrated that Barrera was accommodated by receiving
Ensure protein drinks 2-3 times a day, see id. at 03783; 03779; JX 10-d-4 at 04449, and Barrera routinely
ignored doctor’s orders regarding his diet by eating freely and taking food off other inmates’ trays, eating
fried chicken, and purchasing commissary food items inconsistent with his dietary restrictions. See JX 4pp at 20:20-23:18; JX 10-d-1 at 03966 – 67; Rec. Doc. No. 547, Testimony of Otto Barrera at 42:23-45:18.
360

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Further, no evidence was presented that these class members filed ARPs to complain
about their dietary needs.
d.
208.

Lack of Handicapped-Accessible Transportation

Benny Prine, who is capable of walking but uses a wheelchair due to issues with

his left knee and right hip,363 testified that on two occasions, he was transported to an
outside medical appointment in a regular van, which caused him pain due to the inability
to keep his bad leg extended.364 However, Prine never requested an accommodation
and did not answer the question whether he had reported his discomfort to anyone at
LSP.365
209.

Hymel Varnado testified that he was transported to the hospital in a regular van,

handcuffed and shackled, while he suffered from a ruptured spleen and internal
bleeding.366 Following surgery, Varnado was transported back to LSP in the back of a
car.367 There is no evidence that Varnado was disabled under the ADA; the evidence
demonstrates that LSP provided poor medical care and transportation to a patient in need
of surgery.
210.

The transport incidents involving Sampier and Barrera occurred outside of the

relevant time period.
211.

Danny Prince, a former health care orderly, testified that, when the handicap van

was not available, an inmate with a call-out appointment would “have their trip cancelled

363

JX 4-q, B. Prine Depo. at 12:15-17.
Id. at 84:3-85:20.
365
Id. at 85:21-86:6.
366
JX 4-s at 31:21-33:1.
367
Id. at 33:11-34:13.
364

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or rescheduled.”368

Prince’s testimony demonstrates that LSP was mindful of the

necessity to provide disabled inmates safe transportation. This evidence, while probative
of the failure to provide adequate care under the Eighth Amendment is not probative of
an ADA violation.
212.

Plaintiffs failed to carry their burden of demonstrating a systemic failure to

accommodate disabled inmates in providing safe transportation. Instances described
above fail to indicate a disability under the ADA and/or reference circumstantial scenarios
where improper care was provided or where substandard or unavailable transportation
impeded adequate care.
e.
213.

Accommodations in Prison Procedures/Discipline

Plaintiffs presented no evidence of a disabled inmate who was not accommodated

in the prison procedures of pill call, sick call, or head count.369
214.

While the LSP evacuation plan does not explicitly set forth a protocol for the safe

evacuation of disabled inmates, the plan describes how the evacuation should proceed
in all buildings on the property, including those that house disabled inmates.370 To the
extent architectural barriers, such as ramps and ledges, create an unsafe evacuation plan
for disabled inmates, that issue is adequately addressed above regarding physical and
architectural barriers to access.

368

Rec. Doc. No. 547, Testimony of Danny Prince at 103:4-8.
Plaintiffs offered testimony of Barr and Falgout that they could not identify a specifical accommodation
made during these procedures for deaf or blind patients; however, Plaintiffs failed to demonstrate an actual
failure to accommodate a deaf or blind inmate in these procedures to the Court’s satisfaction.
370
PX 16.
369

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215.

All disciplinary decisions are left to the sole discretion of security personnel, without

oversight by medical staff as to the appropriateness of discipline for disabled inmates.371
216. In the case of one disabled inmate, evidence demonstrated that the inmate suffered
from severe mental health issues, including schizophrenia, and total blindness due to
glaucoma; however, this inmate was “gassed” for refusing to shave. The email indicates
that the nurse was “looking into this as security should had (sic) checked with MH first.”372
The Court finds that LSP fails to take disability into account in its disciplinary decisions.
217.

Plaintiffs’ medical experts noted the case of Patient # 24, a quadriplegic with a

tracheostomy tube who was disciplined by being placed in a locked isolation room with
no call system.373 The experts opined that there was “no way to notify the nurses if his
trach tube became clogged and he had trouble breathing. The solid door is locked and
the nurses cannot hear him even if he screams.”374 The Court finds that isolated housing
as a form of discipline fails to accommodate many disabled inmates.
218.

Defendants’ evidence that both security and nurses perform rounds every couple

of hours, and inmates can (only) verbally scream if they require assistance,375 fails to
persuade the Court that such procedures comply with LSP’s ADA obligations.

371

See JX 4-ii, T. Falgout Depo. at 123:12-19; JX4-jj, T. Falgout Depo. at 14:20-15:14; JX 4-z, D. Barr
Depo. at 40:13-41:24; JX 4-uu, C. Park Depo. at 13:14-21, 14:4-19.
372
PX 85 at 0002-03.
373
PX 6 at 0081. The Court overrules Defendants’ hearsay objection to this exhibit which was admitted at
trial.
374
Id.
375
See JX 4-ll, K. Hart Depo. at 34:12-35:23, 40:8-41:9.

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5.

Exclusionary Policies
a.

219.

Hobby Craft

Participation in hobby craft376 at LSP is a privilege, not a right,377 and is operated

on a “first come/first serve basis” after submission of a written request to participate.378
Further, LSP maintains a policy of ensuring the safe and secure operation of hobby craft
which includes “the temporary interruption of an inmate utilizing the hobbyshop when
under medical care and/or treatment, requiring a duty status, until such time as the inmate
is returned to regular duty without restrictions.”379 The policy further provides: “No inmate
receiving medical care and/or treatment requiring a restriction in the inmate’s regular
duties will be allowed to utilize the hobbyshops, until such time the inmate is returned to
regular duty without restrictions.”380
220.

LSP Directive 13.063 does, however, provide a caveat to this exclusion: “Offenders

assigned restrictive duty will not be allowed to participate in sports and/or recreational
activities, unless specified by the treating health care provider. Participation in these
activities could worsen or cause a recurrence of an injury or other medical condition. If
medically indicated, the treating provider may also restrict sports activities of an offender
on regular duty.”381
221.

Nurse Cynthia Park, APRN, testified that she “look[s] at the entire picture of the

patient” when making her recommendations for duty statuses to Dr. Lavespere.382 She

376

The terms “hobby craft” and “hobby shop” are used interchangeably.
JX 4-ii, T. Falgout Depo. at 107:23-108:1.
378
JX 7-d at 00015.
379
PX 7-c (LSP Directive 9.036) at 00004 (emphasis in original).
380
Id. at 00005.
381
JX 6-oo (LSP Directive 13.063) at 00204.
382
JX 4-uu, C. Park Depo. at 30:8-9.
377

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acknowledged that she will sometimes recommend that a hobby craft restriction be
waived for an inmate “based on [the] patient’s situation.”383
222.

Dr. Lavespere makes the final decision regarding an inmate’s duty status.384 In

evaluating an inmate’s medical condition for purposes of assigning duty status, Dr.
Lavespere testified that: “I try to be as objective as I can without a punitive bone in my
body, and try to be fair with every one of them.”385 Dr. Lavespere emphasized that he
considers the safety of the inmate in applying duty status restrictions.386
223.

Subclass member Brauner testified that he requested to participate in hobby craft

but was denied and “told that anyone that has a duty status is not allowed to participate
in hobby craft.”387 Brauner testified that no other reason was given for this denial.388
However, on cross-examination, Brauner admitted that he never asked a doctor to adjust
his duty status and never filed an ARP.389
224.

Another Subclass member (C.F.) filed an ARP to challenge his exclusion from the

hobby shop based on his restricted duty status because he had a work assignment that
required him to sweep, mop, scrub, and walk during the day.390 Plaintiffs suggest that,
upon initial review and appeal, C.F. was summarily denied access to hobby craft based
solely on citation to LSP Directive #09.036.391

383

Id. at 32:12-21.
Id. at 31:19-32:3.
385
JX 4-qq, Lavespere Depo. at 15:12-14.
386
Id. at 15:12-18:25.
387
Rec. Doc. No. 546 at 107:15-20.
388
Id. at 107:21-22.
389
Id. at 126:10-128:12.
390
PX 231 at 1462. It should be noted that this incident occurred well before the designated relevant time
period in this case.
391
Id. at 1464, 1513-14.
384

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225.

C.F.’s medical records, reviewed in consideration of his hobby craft ARP,

demonstrate that he suffers from “L5-S1 degenerative disc disease. Moderately large
right lateral recess at L5-S1 disc herniation with right S1 nerve root compression.”392 In
his initial ARP denial, the First Step Response states:393

C.F.’s medical records and First Step Response does not demonstrate a blanket denial
citing only to the general LSP Directive; it includes a medical evaluation of his medical
conditions which resulted in the denial. That C.F. disagreed with the result does not
establish that it was discriminatory.
226.

While the evidence presented demonstrates that medical staff are making

individualized assessments to determine eligibility to apply for hobby craft, it also
demonstrates that a blanket exclusion exists, and an inmate must challenge their
classification via ARP to obtain relief. However, the Court finds that the hobby craft

392
393

Id. at 1506.
Id. at 1512 (interlineation in original).

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privilege is not the same kind of program/activity/service as the others complained of
because all inmates, disabled or not, must apply for hobby craft and are screened prior
to allowing participation. Further, evidence demonstrates that when a disabled inmate
requests to be permitted to participate in hobby craft, LSP providers give thoughtful
consideration to the inmate’s medical conditions and/or impairments in determining the
safety of participation in hobby craft.394
b.

Duty Status/Work Release Program

227.

All blind inmates at LSP are placed on “no duty” status.395

228.

Inmates on “no duty” are not permitted to work and are unable to earn incentive

wages,396 but they receive no discounts for phone calls or at the canteen.397
229.

Inmates with duty status restrictions are excluded from participation in LSP’s work

release program, which allows inmates with less than two years left on their sentences to
work outside the prison as part of their integration back into the community.398
230.

Dr. Singh issued a blanket prohibition on approving HIV-positive individuals for

work release.399
231.

Dr. Lavespere’s opinion that the most desirable work assignment at LSP is “no

duty status”400 is irrelevant to this issue and does not justify blanket denials and

394

While LSP’s requirement that a disabled inmate file an ARP to apply for hobby craft is not the best policy
or practice, the Court does not find that it is a violation of the ADA because all inmates at LSP must apply,
are subject to screening, and must gain approval before participation is allowed.
395
JX 4-z, D. Barr Depo. at 44:6-10; JX 4-ww, R. Peabody Depo. at 53:22-54:7.
396
JX 4-z, D. Barr Depo. at 44:11-13.
397
Id. at 47:3-6.
398
JX 4-jj, T. Falgout Depo. at 59:11-25.
399
PX 99 (June 8, 2010 email from Sonya Bufalo to Amanda Amman).
400
JX 4-qq at 20.

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prohibitions of access to programs that are not based on individualized medical
determinations.
232.

Defendants did not refute the evidence presented by Plaintiffs on this issue

wherein present and past ADA Coordinators acknowledged blanket denials of access
regarding these programs.
III.

CONCLUSIONS OF LAW
A. Eighth Amendment Standard
As expressed by the Supreme Court in Brown v. Plata,
As a consequence of their own actions, prisoners may be deprived of rights
that are fundamental to liberty. Yet the law and the Constitution demand
recognition of certain other rights. Prisoners retain the essence of human
dignity inherent in all persons. Respect for that dignity animates the Eighth
Amendment prohibition against cruel and unusual punishment. “‘The basic
concept underlying the Eighth Amendment is nothing less than the dignity
of man.’”401

Prisoners are dependent on the State for necessary medical care, and
A prison's failure to provide sustenance for inmates “may actually
produce physical ‘torture or a lingering death.’”402 Just as a prisoner
may starve if not fed, he or she may suffer or die if not provided
adequate medical care. A prison that deprives prisoners of basic
sustenance, including adequate medical care, is incompatible with
the concept of human dignity and has no place in civilized society.403
If a State cannot meet this obligation, “the courts have a responsibility to remedy
the resulting Eighth Amendment violation.”404 While “[c]ourts must be sensitive to the

401

563 U.S. 493, 510 (2011)(quoting Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d
335 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality
opinion))).
402
Id. (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting In re
Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890)); see generally A. Elsner, Gates of Injustice:
The Crisis in America's Prisons (2004)).
403
Id. at 510-511.
404
Id. at 511 (citing Hutto v. Finney, 437 U.S. 678, 687 n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)).

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State's interest in punishment, deterrence, and rehabilitation, as well as the need for
deference to experienced and expert prison administrators faced with the difficult and
dangerous task of housing large numbers of convicted criminals,”405 courts must
“nevertheless … not shrink from their obligation to ‘enforce the constitutional rights of all
“persons,” including prisoners.’”406

Indeed, “[c]ourts may not allow constitutional

violations to continue simply because a remedy would involve intrusion into the realm of
prison administration.”407
Deliberate indifference to “serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.”408 This
inquiry consists of both an objective and a subjective test. The objective test requires
showing that the prisoner has “serious medical needs,”409 and “either has already been
harmed or been ‘incarcerated under conditions posing a substantial risk of serious
harm.’”410 To prove an Eighth Amendment violation, Plaintiffs must prove that prison
officials “1) show[ed] a subjective deliberate indifference to 2) conditions posing a
substantial risk of serious harm to the inmate.”411 An official is not liable for deliberate
indifference “unless the official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”412 To

405

Id. (citing Bell v. Wolfish, 441 U.S. 520, 547–548, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).
Id. (quoting Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam)).
407
Id.
408
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)); see
also Jackson v. Cain, 864 F.2d 1235, 1244 (5th Cir. 1989).
409
Estelle, 429 U.S. at 104.
410
Braggs v. Dunn, 257 F. Supp.3d 1171, 1189 (M.D. Ala. 2017) (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)).
411
Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. at 833-34).
412
Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994).
406

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meet his burden, “the plaintiff must show that the officials ‘refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or engaged in any similar conduct
that would clearly evince a wanton disregard for any serious medical needs.”413
Whether or not officials knew of the risk is considered the subjective component of
the deliberate indifference standard,414 which requires a state of mind amounting to
recklessness as used in criminal law.415 The subjective test requires a showing that prison
officials had requisite knowledge of the risk of harm and either (1) disregarded it or (2)
failed to act reasonably to abate it.416 Willful blindness to the risk posed to inmates is not
a valid defense to a deliberate indifference claim.417
Systemic deficiencies in a prison’s health-care system can provide the basis for a
finding of deliberate indifference at an institutional level.418 The cumulative effect of
different deficiencies can demonstrate the subjective component of deliberate
indifference, as the Supreme Court acknowledged in Wilson v. Seiter.419 In class actions
challenging systemic health care deficiencies, deliberate indifference to inmates’ health

413

Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985)).
414
Farmer, 511 U.S. at 848.
415
Williams v. Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc) (citing Farmer, 511 U.S. at 839–40);
see also Hacker v. Cain, No. 3:14-00063-JWD-EWD, 2016 WL 3167176, at *10 (M.D. La. June 6, 2016)
(“An intent to harm or animus towards a particular inmate is not itself required so long as such reckless
disregard for his or her medical needs can be shown.”); Hall v. Johnson, No. 12-00099-BAJ-RLB, 2013 WL
870230, at *3 (M.D. La. Mar. 6, 2013).
416
Farmer, 511 U.S. at 844-45; see also Braggs v. Dunn, 257 F. Supp. 3d 1171, 1250 (MD. Ala. 2017)(“To
establish deliberate indifference, plaintiffs must show that defendants had subjective knowledge of the harm
or risk of harm, and disregarded it or failed to act reasonably to alleviate it.”).
417
See Farmer, 511 U.S. at 843 n.8 (a prison official “would not escape liability if the evidence showed that
he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm
inferences of risk that he strongly suspected to exist”).
418
See Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004)(“Conditions of confinement may establish an
Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when they have a
mutually enforcing effect that produces the deprivation of a single, identifiable human need . . . .”).
419
501 U.S. 294, 300 (1991) (rejecting a distinction between “one-time” or “short-term” conditions of
confinement and “continuing” or “systemic” conditions).

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needs may be shown by proving “repeated examples of negligent acts which disclose a
pattern of conduct by the prison medical staff,” or by proving there are such “systemic
and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate
population is effectively denied access to adequate medical care.”420
The fact that a risk is obvious is sufficient to allow a fact finder to conclude that
prison officials knew of the risk.421 Plaintiffs may also demonstrate knowledge through
inference from circumstantial evidence.422 If there is proof of a problem that is
“longstanding, pervasive, well-documented, or expressly noted by prison officials in the
past, and the circumstances suggest that the defendant-official being sued had been
exposed to information concerning the risk and thus ‘must have known’ about it, then
such evidence could be sufficient to permit a trier of fact to find that the defendant-official
had actual knowledge of the risk.”423
Plaintiffs herein have demonstrated that “systemwide deficiencies in the provision
of medical . . . care . . . taken as a whole, subject sick prisoners in [LSP] to ‘substantial
risk of serious harm’ and cause the delivery of care in [LSP] to fall below the evolving
standards of decency that mark the progress of a maturing society.”424 To prevail on their
Eighth Amendment claim, Plaintiffs proved (1) the existence of serious medical needs
among members of the Class and (2) that Defendants were deliberately indifferent to a

420

Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (citations omitted); Lawson v. Dallas Cnty., 112 F.
Supp. 2d 616, 635 (N.D. Tex. 2000); see, e.g., Williams v. Edwards, 547 F.2d 1206, 1215-16 (5th Cir.
1977).
421
Farmer, 511 U.S. at 842; Hinojosa v. Livingston, 807 F.3d 657, 667 (5th Cir. 2015); Gates, 376 F.3d at
333; Robinson v. Babin, No. 12-00629-BAJ-RLB, 2014 WL 2769099, at *4 (M.D. La. June 18, 2014).
422
Farmer, 511 U.S. at 842.
423
Hinojosa, 807 F.3d at 665 (quoting Farmer, 511 U.S. at 842-43) (internal quotation marks omitted).
424
Rec. Doc. No. 573 at 247 (quoting Brown v. Plata, 563 U.S. 493, 505 n.3 (2011)).

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substantial risk of serious harm stemming from the inadequacies in LSP’s medical care
system.425
Turning to the objective test, the Fifth Circuit has defined a “serious medical need”
as “one for which treatment has been recommended or for which the need is so apparent
that even laymen would recognize that care is required.”426 Given that this is a class
action, Plaintiffs must demonstrate that that serious medical needs exist on a widespread
basis, rather than on an individual basis. Plaintiffs must also show that Defendants acted
with deliberate indifference to the serious medical needs of the class and must establish
that Defendants exposed the Class to “a substantial risk of serious harm.”427
To establish a substantial risk of serious harm, “it does not matter whether the risk
comes from a single source or multiple sources.”428 “[M]ultiple policies or practices that
combine to deprive a prisoner of a ‘single, identifiable human need,’ such as [medical
care], can support a finding of Eighth Amendment liability.”429 Moreover, the Fifth Circuit
has long recognized that “the totality of circumstances concerning medical care” may
violate the Eighth Amendment.430 The Court of Appeals for the Fifth Circuit has defined
that a “serious medical need” is one “for which treatment has been recommended or for

425

Id. (citing e.g., Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018); Lawson v. Dall. Cty., 286 F.3d 257,
262 (5th Cir. 2002); Braggs, 257 F. Supp. 3d at 1189.).
426
Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
427
Id. at 345.
428
Farmer, 511 U.S. at 843; see also Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“Some conditions of
confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so
alone, but only when they have a mutually enforcing effect that produces the deprivation of a single,
identifiable human need such as food, warmth or exercise[.]” (emphasis in original)).
429
Braggs, 257 F. Supp. 3d at 1192 (quoting Gates v. Cook, 376 F.3d at 333).
430
Williams v. Edwards, 547 F.2d 1206, 1215 (5th Cir. 1977).

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which the need is so apparent that even laymen would recognize that care is required.”431
The “seriousness” of an inmate's medical need may also be determined by reference to
the effects of a delay in treatment.432 “Serious medical needs” also include conditions that
threaten to cause health problems in the future.433
As for the subjective test, Plaintiffs must demonstrate that Defendants have a
“sufficiently culpable state of mind.”434 “In prison-conditions cases that state of mind is
one of deliberate indifference to inmate health or safety.”435 Even in situations where
awareness is shown, prison officials will not be liable “if they responded reasonably to the
risk.”436 However, prison officials cannot escape liability simply by demonstrating that
they eventually took some form of “corrective action” in response to a risk of harm.437
Efforts to correct systemic deficiencies that “simply do not go far enough,” when weighed
against the risk of harm, also constitute deliberate indifference438 because such
insufficient efforts are not “reasonable measures to abate” the identified substantial risk
of serious harm.439 Further, “[i]nsisting upon a course of action that has already proven
futile is not an objectively reasonable response under the deliberate-indifference
standard” and would support a finding of liability under the Eighth Amendment.440

431

Gobert, 463 F.3d at 345 n. 12 (citing Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176,
1187 (11th Cir.1994), abrogated on other grounds by Hope, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d
666 (2002)).
432
Hill, 40 F.3d at 1187.
433
See Farmer, 511 U.S. at 843.
434
Id. at 834 (internal citation and quotation marks omitted).
435
Id. (internal citation and quotation marks omitted).
436
Id. at 844.
437
Bradley v. Puckett, 157 F.3d 1022, 1026 (5th Cir. 1998).
438
Laube v. Haley, 234 F. Supp.2d 1227, 1251 (M.D. Ala. 2002).
439
Farmer, 511 U.S. at 847.
440
Braggs, 257 F. Supp. 3d at 1260.

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In this case, deliberate indifference may also be established “by proving that there
are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures
that the inmate population is effectively denied access to adequate medical care.”441 “In
challenges to a correctional institution’s provision of medical care, evidence of systemic
deficiencies can also establish the ‘disregard’ element of deliberate indifference.”442 “As
an evidentiary matter, these systemic deficiencies may be identified by a ‘series of
incidents closely related in time’ or ‘[r]epeated examples of delayed or denied medical
care.’”443 “[A]lthough one-off negligent treatment is not actionable, . . . frequent
negligence, just like a single instance of truly egregious recklessness, may allow the court
to infer subjective deliberate indifference.”444 Deliberate indifference may also be
“demonstrated straightforwardly, through direct evidence that an administrator was aware
of serious systemic deficiencies and failed to correct them.”445
The “long duration” of unconstitutional conditions can also demonstrate
correctional officials’ knowledge of the deficiencies that cause a substantial risk of
harm.446

Thus, if Plaintiffs show that a substantial risk of unreasonable harm was

“longstanding, pervasive, well[-]documented, or expressly noted by prison officials in the
past” and that “the circumstances suggest that the [prison officials] . . . had been exposed
to information concerning the risk . . . , then such evidence could be sufficient to permit a
trier of fact to find that the defendant-official had actual knowledge of the risk.”447
441

Id. at 1251 (internal citation and quotation marks omitted).
Id. (citing Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)).
443
Id. at 1251-52 (quoting Rogers v. Evans, 792 F.2d 1052, 1058-59 (11th Cir. 1986)).
444
Dunn v. Dunn, 219 F. Supp.3d 1100, 1129 (MD. Ala. 2016).
445
Id.
446
Alberti v. Sheriff of Harris Cty., 937 F.2d 984, 998 (5th Cir. 1991).
447
Farmer, 511 U.S. at 842-43; see also Williams, 547 F.2d at 1216 (concluding that the Eighth Amendment
may be violated on a showing of “evidence of rampant and not isolated deficiencies”).
442

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Applying the law to the findings of fact set forth above, the Court concludes as a
matter of law that Defendants have violated Plaintiffs’ Eighth Amendment rights. LSP’s
deficiencies as to medical health care are widespread; Defendants’ manner and means
of the delivery of health care to Plaintiffs creates a substantial risk of serious harm to
Plaintiffs; and Defendants have been deliberately indifferent to the serious medical needs
of Plaintiffs in failing to address and/or correct known deficiencies. As the evidence
demonstrates, Defendants have continuously acted with deliberate indifference toward
the standards of care “within modern and prudent professional standards” by delaying or
denying access to medical attention to serious and urgent medical needs of inmates.448
The record is replete with instances showing failure by Defendants to take the necessary
steps to provide access or avoid delay in access to medical and health care. Specifically,
the trial testimony and evidence demonstrate constitutionally inadequate care and/or
access to care as it relates to the following: providing timely and adequate access to
clinical, inpatient/infirmary, emergency, and specialty care and the lack of medical
leadership, administration, and organizational structure. Evidence at trial satisfied both
the objective and subjective standards for deliberate indifference.
1.

Clinical Care

In Gates v. Cook, the Fifth Circuit recognized that a combination of conditions may
“have a mutually enforcing effect” that violates the Eighth Amendment.449

This

combination of conditions regarding clinical care is amply demonstrated by the evidence
supporting the Court’s findings of fact, generally, that: (1) exam rooms lack privacy and

448

Morales Feliciano v. Rossello Gonzales, 13 F.Supp.2d 151, 208 (D. Puerto Rico 1998).
376 F.3d 323, 333 (5th Cir. 2004); See also, e.g., Williams, 547 F.2d at 1215; Braggs, 257 F. Supp.
3d at 1192.

449

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standard medical equipment; (2) there are often no medical records available to the
providers making cell side visits; (3) hygiene and spacing issues abound; and (4)
physicians/providers treat complaints episodically rather than the underlying state of
diseases. Several specific practices or failings by LSP are identical or similar to matters
that have been held to violate the Constitution. These include: (1) the failure to provide
adequate facilities and equipment for necessary medical care;450 (2) the failure to ensure
that medical records are available to providers treating the inmate, which permeates
numerous aspects of health care delivery;451 and (3) the use of unqualified or untrained
staff or inmate orderlies who provide medical care outside the scope of their
qualifications.452

450

Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir.1989); Inmates of Allegheny County Jail v. Wecht, 874
F.2d 147, 153 (3d Cir.1989) (inadequate space for mental health facilities supported an order closing the
jail), vacated and remanded on other grounds, 493 U.S. 948, 110 S.Ct. 355, 107 L.Ed.2d 343 (1989);
Newman v. Alabama, 503 F.2d 1320. 1331 (5th Cir.1974); Tillery v. Owens, 719 F.Supp. 1256, 1307
(W.D.Pa.1989) (condemning infirmary's lack of space, unsanitary conditions, and deficiencies in equipment
and supplies), aff'd, 907 F.2d 418 (3d Cir.1990); Coleman v. Schwarzenegger, 922 F.Supp.2d 882, 887-88
(inmates “receive inadequate medical care in substandard facilities that lack the medical equipment
required to conduct routine examinations or afford essential medical treatment”).
451
The record is replete with evidence that Defendants have failed to maintain medical records in a manner
that assists in providing constitutionally adequate health care at LSP. In Newman v. Alabama, the Fifth
Circuit found that, in the prison setting, medical records that are “incomplete, inaccurate and not
standardized” contribute to constitutionally inadequate delivery of health care. 503 F.2d 1320, 1323 (5th
Cir. 1974)(“The consequences of inadequate medical records are manifest in two ways. First, because
inmates transferred to and released from Mt. Meigs are accompanied by paltry records, personnel at the
receiving institutions are unaware of the diagnosis, treatment previously rendered, and the treatment
prescribed for the future. Second, there can be little or no monitoring of whether receiving facilities are
complying with a physician's orders. Indeed, the evidence indicates that such noncompliance is rampant.”)
Id. at n 4. See also, Miranda v. Munoz, 770 F.2d 255, 261 (1st Cir.1985) (prison officials' knowledge of
continuing problem of prisoners arriving at hospital without their medical records cited as a basis for damage
liability); Brown v. Coughlin, 758 F.Supp. 876, 882 (S.D.N.Y.1991) ( “failure to transfer necessary medical
records in a timely fashion” supported a deliberate indifference claim); see Burks v. Teasdale, 492 F.Supp.
650, 676 (W.D.Mo.1980) and cases cited (noting that medical records are essential to continuity of medical
care).
452
Cooper v. City of Cottage Grove, No. 6:13-cv-551-TC, 2014 WL 4187558, *6 (D. Or. Aug. 21, 2014)(“The
essential function of EMTs is to stabilize an ill or injured person for transport to the emergency room, not to
provide medical diagnosis or treatment. They are not the equivalent of a physician or other medical
professional.”); Laaman v. Helgemoe, 437 F.Supp. 269, 312-313 (D. N.H. 1977)(citations omitted)(“ A
failure to staff a prison around the clock with qualified personnel trained to identify and cope with medical
emergencies and reliance upon unqualified and untrained inmates, civilians and employees of the prison

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2.

Sick Call

The failure to provide a sick call system that ensures that prisoners receive needed
care violates the Constitution.453 The trial evidence established that Defendants have
failed to provide a sick call system that ensures access to care and effectively handles
emergencies, which results in the endangerment to the health of inmates by denying or
delaying access to health care. Specifically, a combination of the following conditions
“have a mutually enforcing effect” that violates the Eighth Amendment: (1) improper use
of unqualified EMTs for diagnosis and treatment; (2) multiple requests by numerous
inmates for treatment of the same problems; and (3) medical records being unavailable
to the providers, which functionally impairs the provider’s ability to evaluate and treat
underlying conditions and instead promotes a “band-aid” approach to treating complaints
episodically. The Seventh Circuit and D.C. Circuit courts have held that this type of
deficiency supports a finding of deliberate indifference.454
3.

Specialty Care

“A prison inmate can demonstrate an Eighth Amendment violation by showing that
a prison official refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.”455 This applies to failing to provide referrals to

to make medical decisions and to perform medical functions infringe upon the constitutional rights of
prisoners.”).
453
Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1184–86 (7th Cir.1985) (known deficiencies in sick call
system supported a finding of deliberate indifference).
454
See id. at 1186; see also Inmates of Occoquan v. Barry, 717 F.Supp. 854, 867 (D.D.C.1989)(deliberate
indifference shown by sick call system which relied heavily on medical technical assistants by allowing them
to diagnose and dispense medication without proper supervision by trained medical staff).
455
Blackstock v. Corrections Corp. of America, 660 F.Supp.2d 764, 769-70 (W.D. La. 2009)(citing Easter
v. Powell, 467 F.3d 459, 464 (5th Cir.2006)(citing Domino v. Tex. Dep't of Criminal Justice, 239 F.3d 752,
756 (5th Cir.2001); Chapman v. Johnson, 339 Fed.Appx. 446, 448, 2009 WL 2391496, *2 (5th Cir.

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specialty care providers, where medically necessary,456 failing to implement follow-up
treatment instructions of specialists,457 and the general lack of medical records. The Fifth
Circuit has held that, “‘[u]nder certain circumstances, allegations of deliberate indifference
may be shown when prison officials deny an inmate recommended treatment by medical
professionals.’”458
In Hadix v. Caruso, a case involving prison inmates’ right to constitutionally
adequate medical care, the district court for the Western District of Michigan noted that
“specialty care referrals are not negligible matters. They relate to care for cancer, cancer
diagnosis, HIV treatment, cardiology, ophthalmology and other serious medical
conditions as to which a failure to treat timely will contribute toward unnecessary death,
disease and suffering.”459 Further, in Morales Feliciano v. Rossello Gonzalez, the court
applied Eleventh Circuit jurisprudence and held that the failure to provide access to
specialized care required by a prisoner’s medical condition violates the Constitution.460

2009)(fact that defendant was aware that inmate had a serious injury and was instructed to provide pain
relieve medication, but did not do so, could demonstrate an Eighth Amendment violation)).
456
See Oxendine v. Kaplan, 241 F.3d 1272, 1277-79 (10th Cir. 2001)(finding the defendant deliberately
indifferent where the plaintiff alleged he persistently informed the defendant about his worsening condition
and requested a referral to a specialist, but the defendant only referred the plaintiff to a specialist after it
was too late).
457
See Blackstock, 660 F.Supp.2d at 770 (failure to follow neurologist’s treatment recommendations);
Lewis v. Pacheco, No. 08-cv-1151, 2010 WL 771227 at *4 (W.D. La. Mar. 2, 2010)(doctor’s decision to
ignore specialist’s orders indicates possible deliberate indifference)(citing Gil v. Reed, 381 F.3d 649, 66264 (7th Cir.2004)(reasonable fact-finder could infer deliberate indifference where prison doctor canceled
specialist's prescriptions and substituted medication which specialist had specifically warned was
dangerous for persons with plaintiff's condition) and Jones v. Simek, 193 F.3d 485, 491 (7th
Cir.1999)(allegations that prison doctor refused to provide the specific treatments ordered by specialists
alleges facts sufficient to survive a motion for summary judgment)).
458
Vanderhoff v. Prentice, 251 Fed.Appx. 861, 862 (5th Cir. 2007)(quoting Payne v. Lynaugh, 843 F.2d
177, 178 (5th Cir.1988).
459
No. 4:92-cv-110, 2007 WL 710136, * 4 (W.D. Mich., Mar. 6, 2007).
460
13 F.Supp.2d 151, 210 (D. P.R.1998)(citing Howell v. Evans, 922 F.2d 712, 723 (11th Cir.1991) (failure
to provide access to a respiratory therapist could constitute deliberate indifference), vacated as settled, 931
F.2d 711 (11th Cir.1991); Waldrop v. Evans, 871 F.2d 1030, 1036 (11th Cir. 1989)(non-psychiatrist was not
competent to evaluate significance of a prisoner's suicidal gesture; prison officials must “inform competent
authorities” of medical or psychiatric needs), rehearing denied, 880 F.2d 421 (11th Cir.1989); Tillery v.

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The Court concludes that Defendants have been deliberately indifferent to the
serious risk of harm in failing to provide constitutionally adequate access to specialty care
in failing to follow orders of specialty care providers. The evidence and testimony at trial
overwhelmingly demonstrated deficiencies in: (1) timeliness and adequacy in evaluating
the need for specialty care, (2)

scheduling and tracking appointments, (3) timely

complying with testing and other diagnostic requirements, (4) executing appropriate
follow-up directions from specialty care providers; and (5) general failure to coordinate
care.
4.

Emergency Care

The Supreme Court has held that access to emergency medical care falls within
the “minimal civilized measure of life’s necessities.”461 The Fifth Circuit holds that, when
a gatekeeper to emergency care knowingly disregards a prisoner’s complaints, he acts
with deliberate indifference to that prison’s medical needs.462 The evidence in this case
demonstrates that Defendants have been deliberately indifferent to Plaintiffs’ care in
emergency evaluation and treatment. As set forth above, Defendants primarily rely on
EMTs to staff the ATU and evaluate medical emergencies; they fail to consistently and
adequately staff the ATU. Patients are often not properly evaluated or timely transported
to emergency facilities for proper treatment. The Court observed during its site visit that
the ATU is not a properly equipped emergency room capable of treating serious medical

Owens, 719 F.Supp. 1256, 1307 (W.D.Pa.1989) (services of cardiologist and dermatologist should be
provided), aff'd, 907 F.2d 418 (3d Cir.1990).
461
See Wilson v. Seiter, 501 U.S. 294, 298 (1991).
462
See Rodrigue v. Morehouse Det. Ctr., No. 09-985, 2012 WL 4483438, at *6 (W.D. La. 2012), aff'd, 557
Fed.Appx. 341 (5th Cir. 2014) (prison officials were not entitled to qualified immunity where they ignored
prisoner's requests for medical care for his obviously dire condition).

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emergencies; hence, referral and transport to an off-site emergency room is required but
transportation and referral to outside emergency services is irregular and incompetent.
Further, Plaintiffs demonstrated that it is the general practice at LSP for EMTs and
providers to hold patients in the ATU for observation for several hours instead of transport
them off-site immediately, where appropriate. Such practices have inexorably led to
preventable deaths and avoidable exacerbation of conditions.
5.

Inpatient/Infirmary Care

The Court concludes that inpatient/infirmary care at LSP is constitutionally deficient
because it provides significantly inadequate staffing, which results in the inappropriate
use of inmate orderlies. Courts have held that deliberate indifference to serious medical
needs may be shown by proving a policy of deficiencies in staffing or procedures such
that the inmate is effectively denied access to adequate medical care.463
6.

Medical Leadership/Organizational Structure

The lack of “adequate organization and control in the administration of health
services” in a prison can support the finding of an Eighth Amendment violation.464 The
Court concludes that the cumulative effect of the lack of medical leadership and
organizational structure of the health care system at LSP meets the subjective component
of deliberate indifference based on a combination of the following deficiencies: (1) lack

463

Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir.1985); see also Garcia v. Salt Lake
County, 768 F.2d 303, 308 (10th Cir.1985); White v. Cooper, No. 08–CV–1321, 2009 WL 1230008, *4-5
(W.D. La. May 5, 2009)(holding that inmate stated a viable claim under the Eighth Amendment where prison
understaffed medical infirmary); cf Braggs, 257 F. Supp. 3d at 1212 (noting that understaffing of mental
health care workers “created a substantial risk of serious harm,” including a “greater risk for continued pain
and suffering”).
464
See DeGidio v. Pung, 920 F.2d 525, 529 (8th Cir.1990).

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of meaningful mortality review, quality control, and quality improvement of care;465 (2) use
of correctional personnel to manage medical decisions;466 (3) lack of peer review;467 (4)
absence of medical personnel involvement in the development and allocation of medical
budget funds;468 (5) lack of medical supervision by Lavespere;469 and (6) failure to
maintain proper credentialing.470
Accordingly, Plaintiffs are entitled to injunctive relief to remedy the Eighth
Amendment violations discussed above.
B.

ADA

“The ADA is a ‘broad mandate’ of ‘comprehensive character’ and ‘sweeping
purpose’ intended ‘to eliminate discrimination against disabled individuals, and to

465

See Braggs, 257 F. Supp. 3d at 1257 (prison’s “quality-control process is hopelessly inadequate in
implementing corrective actions”); see also, Madrid v. Gomez, 889 F.Supp. 1146, 1258 (N.D. Cal.
1995)(“First, ‘[a] primary component of a minimally acceptable correctional health care system is the
implementation of procedures to review the quality of medical care being provided.’ Lightfoot, 486 F.Supp.
at 517–18. Reviews of records to evaluate the delivery of care are essential. Capps, 559 F.Supp. at 912
(lack of chart review is part of violation); Lightfoot, 486 F.Supp. at 517 (lack of chart review is element of
violation); Todaro, 431 F.Supp. at 1160 (failure to audit system part of violation); see also Palmigiano, 443
F.Supp. at 975. In addition, peer review and death reviews should be instituted to improve the quality of
care. Capps, 559 F.Supp. at 912 (lack of peer review part of violation); Lightfoot, 486 F.Supp. at 517–18
(noting lack of peer review and expressing court's “alarm[ ]” at the “lack of regular system of review of
deaths”).
466
See Hartman v. Correctional Med. Servs., Inc., 960 F. Supp. 1577, 1582-83 (M.D. Fla. 1996)(holding
medical provider could be found deliberately indifferent based on evidence that it permitted a person with
only a master’s degree and no processional licenses to have substantial authority over mental health
system); see also Hernandez v. County of Monterey, 110 F.Supp.3d 929, 949 (N.D. Cal. 2015)(granting
summary judgment and injunctive relief where plaintiffs’ expert found it a “major problem” that correctional
officers were conducting intake screenings: “Officers are not trained to identify persons at risk for
withdrawal, to evaluate persons who appear to be intoxicated, or to make medical decisions with respect
to isolation for this purpose. This should be done by medical professionals[,] not custody officers.”).
467
See fn 461, supra.
468
See Tillery v. Owens, 719 F.Supp. 1256, 1293 (W.D. Pa. 1989)(the prison staff is not involved in the
budgetary process and medical budget is prepared without any input from the hospital administrator).
469
See id. at 1305-06; Braggs, 257 F.Supp. at 1257; Madrid, 889 F.Supp. at 1258.
470
See Plata v. Schwarzenegger, No. C01-1351-TEH, 2005 WL 2932253, * 21 (N.D. Ca. Oct. 3, 2005)(high
number of incompetent or unqualified doctors is due in part to failure to track physician credentials and
board certifications); Tillery, 719 F.Supp.3d at 1306 (court recognized need for medical director to provide
education and assess credentials for inhouse medical staff); Laaman v. Helgemoe, 437 F.Supp. 269, 289
(D. N.H. 1977)(staff of persons with “less than full academic credentials for their positions” contributed to
constitutionally inadequate health care).

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integrate them into the economic and social mainstream of American life.’”471 Title II, in
particular, “focuses on disability discrimination in the provision of public services.”472
Section 504 of the RA complements Title II by “prohibit[ing] disability discrimination by
recipients of federal funding.”473 These laws “are judged under the same legal
standards, and the same remedies are available under both.”474
As another section of this Court so aptly explained in George v. Louisiana
Department of Public Safety and Corrections:
Under well-established precedent, prisoners may bring claims against their
jailors for disability discrimination under Title II of the ADA and Section 504
of the RA. Pa. Dep't of Corrections v. Yeskey, 524 U.S. 206, 209-10, 118
S. Ct. 1952, 1954-55, 141 L.Ed. 2d 215 (1998); see also, e.g., Frame v. City
of Arlington, 657 F.3d 215, 224-25 (5th Cir. 2011). Title II prohibits
discrimination by “public entities,” 42 U.S.C. § 12131(1), and state punitive
institutions fall squarely within this statutory definition, Yeskey, 524 U.S. at
210. Typically, a plaintiff proceeding under Title II must “show that: (1) he or
she is a ‘qualified individual with a disability’; (2) he or she is being excluded
from participation in, or being denied the benefits of some service, program,
or activity by reason of his or her disability; and (3) the entity which provides
the service, program or activity is a public entity.” Douglas v. Gusman, 567
F. Supp. 2d 877, 889 (E.D. La. 2008).
Beyond these general guiding principles, precedent establishes two other
cardinal rules. First, while the ADA's reasonable accommodation
requirement does not apply under Title II, its “reasonable modifications”
requirement—“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 service, program, or activity,” 28 C.F.R. § 35.130(b)(7); 42
U.S.C. § 12182(b)(2)(A)(ii); PGA Tour, Inc. v. Martin, 532 U.S. 661, 682,
121 S. Ct. 1879, 1893, 149 L.Ed. 2d 904 (2001)—has been held to apply in
the prison context. Garrett v. Thaler, 560 Fed.Appx. 375, 382 (5th Cir.
471

Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc) (quoting PGA Tour, Inc. v. Martin,
532 U.S. 661, 675, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001)).
472
Id. at 224.
473
Id.
474
Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010) (citing Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d
567, 574 (5th Cir. 2002)). Thus, the Court analyzes the ADA Subclass ADA and RA claims under one rubric.

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2014). Consequently, while the ADA “does not require prisons to provide
new services or programs for disabled prisoners,” these same entities “do
have an affirmative obligation to make reasonable modifications ... so that
a disabled prisoner can have meaningful access to existing public services
or programs.” Borum v. Swisher Cnty., No. 2:14-CV-127-J, 2015 U.S. Dist.
LEXIS 8628, at *21, 2015 WL 327508, at *9 (N.D. Tex. Jan. 26, 2015)
(emphasis added). Second, the Fifth Circuit has held that a defendant's
failure to make the reasonable modifications necessary to adjust for the
unique needs of disabled persons can constitute intentional discrimination
under the ADA. See, e.g., Melton v. Dall. Area Rapid Transit, 391 F.3d 669,
672 (5th Cir. 2004); Garrett v. Thaler, 560 Fed.Appx. 375, 382 (5th Cir.
2014). A different kind of intent, in other words, governs in ADA cases. See
Garrett, 560 Fed.Appx. at 385.475
In Pennsylvania Department of Corrections v. Yeskey, the Supreme Court held
that Title II applied to correctional facilities, recognizing that “[m]odern prisons provide
inmates with many recreational ‘activities,’ medical ‘services,’ and educational and
vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners (and any of
which disabled prisoners could be ‘excluded from participation in’).”476 In light of Yeskey,
numerous courts have recognized that:
[b]ecause of the unique nature of correctional facilities, in which jail staff
control nearly all aspects of inmates’ daily lives, most everything provided
to inmates is a public service, program or activity, including sleeping, eating,
showering, toileting, communicating with those outside the jail by mail and
telephone, exercising, entertainment, safety and security, the jail’s
administrative, disciplinary, and classification proceedings, medical, mental
health and dental services, the library, educational, vocational, substance
abuse and anger management classes and discharge services.477

475

No. 3:14-00338-JWD-EWD, 2016 WL 3568109 at *8 -*9 (M.D. La. June 23, 2016).
524 U.S. 206, 210 (1998).
477
Hernandez, 110 F. Supp. 3d at 935-36; see also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1068
(9th Cir. 2010) (noting that jails provide inmates “with various positive opportunities, from educational and
treatment programs, to opportunities to contest their incarceration, to the fundamentals of life, such as
sustenance, the use of toilet and bathing facilities, and elementary mobility and communication”); Phipps
v. Sheriff of Cook Cty., 681 F. Supp. 2d 899, 916 (N.D. Ill. 2009) (collecting cases holding that in the prison
setting, “services, programs, and activities” include facilities such as showers, toilets, and sinks); Jaros v.
Ill. Dep’t of Corrs., 684 F.3d 667, 672 (7th Cir. 2012) (same); Arce v. La. State, 226 F. Supp. 3d 643, 650
n.7 (E.D. La. 2016) (holding that “[t]he use of prison telephones is a service or activity protected by the
ADA.”)(citing Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1195 (D. Kan. 2000)).
476

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Title II implementing regulations note that:
[D]etention and correctional facilities are unique facilities under Title II.
Inmates cannot leave the facilities and must have their needs met by the
corrections system, including needs relating to a disability. If the detention
and correctional facilities fail to accommodate prisoners with disabilities,
these individuals have little recourse, particularly when the need is great
(e.g., an accessible toilet; adequate catheters; or a shower chair). It is
essential that corrections systems fulfill their nondiscrimination and program
access obligations by adequately addressing the needs of prisoners with
disabilities, which include, but are not limited to, proper medication and
medical treatment, accessible toilet and shower facilities, devices such as
a bed transfer or a shower chair, and assistance with hygiene methods for
prisoners with physical disabilities.478
It is generally undisputed479 in this matter that the members of the ADA Subclass
are qualified individuals with disabilities that substantially limit one or more major life
activities and that LSP is a public entity. Thus, the necessary determination for the Court
is whether Plaintiffs carried their burden of demonstrating that members of the Subclass
are being excluded from participation in, or being denied the benefits of some service,
program, or activity by reason of their disabilities. Notably, as the law pertains to a class
of disabled inmates, rather than separate individual claims, Plaintiffs’ burden is to
demonstrate a systemic failure; they are not required to demonstrate a failure of policies
applied to each class member individually.480

478

28 C.F.R Part 35, App. A.
Defendants do dispute that certain conditions complained of by specific Plaintiffs in this matter do not
constitute disabilities under the ADA. The Court will address those below, where appropriate.
480
See P.V. ex rel. Valentin v. School Dist. of Philadelphia, 289 F.R.D. 227, 233–34 (E.D. Pa. 2013)
(“Defendants fail to recognize, however, that the central tenant of Plaintiffs' Complaint alleges a systemic
failure, not a failure of the policy as applied to each member individually.”); see also Parsons v. Ryan, 754
F.3d 657, 680 (9th Cir. 2014)(explaining that plaintiffs sufficiently proved the system-wide policies alleged
with “formal [prison] policies, admissions by [prison] officials in discovery documents, declarations by the
named plaintiffs ... and [plaintiffs'] expert report”); Brand v. Comcast Corp., Inc., 302 F.R.D. 201, 219
(N.D.Ill.2014) (relying on class members' testimony to find “significant proof of the common question of
whether a hostile work environment existed”); Olson v. Brown, 284 F.R.D. 398, 400 (N.D.Ind.2012) (finding
that the named plaintiff showed that a jail's practices “caused inmates to suffer the same potential injury,
which tie[d] all their jail standards claims together”).
479

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1.

Architectural Barriers/Facilities/Segregation

Under its ADA rulemaking power, the DOJ has promulgated rules requiring public
entities such as prisons to comply with certain architectural accessibility standards.481
Construction or alterations that began after July 26, 1992, but prior to September 15,
2010, must comply with either the 1991 ADA Standards for Accessible Design (“1991
Standards”) or the Uniform Federal Accessibility Standards (“UFAS”).482 If physical
construction or alterations commenced on or after September 15, 2010, and before March
15, 2012, the new construction or alterations must comply with either the 2010 ADA
Standards for Accessible Design (“2010 Standards”), UFAS, or the 1991 Standards.483 If
physical construction or alterations commenced on or after March 15, 2012, the new
construction or alterations must comply with the 2010 Standards.484
If an existing facility has not been altered since these standards first took effect, it
must still operate each service, program, or activity in a manner that, when viewed in its
entirety, the service, program, or activity is readily accessible to and usable by individuals
with disabilities.485 A public entity may fulfill this “programmatic access” mandate by
constructing new facilities or altering its existing facilities to bring them into compliance
with the accessibility requirements of Section 35.151, or through alternative methods such
as “redesign or acquisition of equipment, reassignment of services to accessible
buildings, assignment of aides to beneficiaries, home visits, [or] delivery of services at

481

See 42 U.S.C. § 12134(a).
28 C.F.R. § 35.151(c)(1). Courts often refer to the 1991 Standards and the ADAAG interchangeably.
483
28 C.F.R. § 35.151(c)(2).
484
Id. § 35.151(c)(3).
485
Id. § 35.150(a).
482

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alternate accessible sites.”486
There are, however, exceptions to the general principle of affording existing
facilities greater flexibility in providing programmatic access. In choosing among methods
of compliance, the facility must give priority to methods that provide program access in
the most integrated setting appropriate.487 Further, the facility must provide “meaningful
access” to the programs and services offered.488 Finally, the facility’s programs and
services must be “readily accessible.”489
The implementation of Title II and the construction and access requirements, as it
pertains to ensuring public facilities are accessible to individuals with disabilities, are
articulated in the ADAAG regulations. These regulations provide the minimum technical
requirements for ADA compliance for newly constructed facilities and for alterations made
to existing facilities. 28 C.F.R. pt. 36 app. A. In Greer v. Richardson Independent School
Dist., the Fifth Circuit explained:
When enacting the ADA, Congress acknowledged that some public entities
operating then-existing buildings and structures would be unable to comply
with all technical aspects of the new ADAAG regulations. Accordingly, the
486

Id. § 35.150(b)(1).
Id.
488
See, Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 672 (5th Cir. 2004)(“Supreme Court precedent
suggests that denial of “meaningful access” is equivalent to a full denial of access under the ADA.”)(citing
Choate, 469 U.S. at 301 (stating in the context of the Rehabilitation Act that a benefit cannot be offered in
a way that “effectively denies” otherwise qualified handicapped individuals the “meaningful access” to which
they are entitled)); Wright v. N.Y. State Dep't of Corr. & Cnty. Supervision, 831 F.3d 64, 73 (2d Cir. 2016)
(recognizing that “meaningful access” requires the provision of accommodations that overcome structural
impediments limiting access to a prison’s services); Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th
Cir. 2003) (collecting cases holding that ADA requires more than mere physical access, and concluding
that barriers to accessible dining, restrooms, and parking prevented “meaningful access” to state
fairgrounds, even though wheelchair users were able to attend).
489
See Chaffin, 348 F.3d at 861 (quoting Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001)). In Chaffin,
the Court held that “the ‘individual elements’ that [were] not handicap accessible add[ed] up to a wholesale
exclusion of disabled individuals from buildings, restrooms, dining areas, and seating areas across the
entire fairgrounds.” Id. See also Saunders v. Horn, 959 F. Supp. 689, 697 (E.D. Pa. 1996) (allegation that
prison did not provide “readily accessible bathroom and shower facilities” stated a claim under Title II’s
program access requirement).
487

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regulations promulgated by the United States Attorney General to
implement the requirements of Title II differentiate between structures built
prior to the Act taking effect in January 1992 (“existing facilities”) and
facilities built or altered after January 1992. Tennessee v. Lane, 541 U.S.
509, 531–32, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004); 28 C.F.R. § 35.104.
The accessibility requirements for existing facilities are less stringent and
more flexible than for new facilities. “[I]n the case of older facilities, for which
structural change is likely to be more difficult, a public entity may comply
with Title II by adopting a variety of less costly measures, including
relocating services to alternative, accessible sites and assigning aides to
assist persons with disabilities in accessing services.” Lane, 541 U.S. at
532, 124 S.Ct. 1978 …
When considering ADA compliance for such existing structures, the
touchstone is thus not the facility's technical compliance with the ADAAG,
but is instead “program accessibility.” “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). Making a program or activity accessible
under this standard does not require a public entity to make all of its existing
facilities accessible to disabled individuals nor does it require a public entity
to take an action that would place an undue burden on the entity. Id. at
(a)(1), (3). Furthermore, the regulations do not provide any objective criteria
for evaluating program accessibility. While an existing facility's compliance
with the ADAAG regulations may be informative, program accessibility is
ultimately a subjective determination by viewing the program or activity at
issue in its entirety and not solely by evaluating individual elements of the
facility where the program is held.490
The Court acknowledges the requirement in Greer that program accessibility
should be viewed in its entirety and not solely by evaluating individual elements of a
facility. However, that Mazz did not survey LSP entirely does not undermine his findings
and conclusions regarding the medical dormitories that house disabled inmates. Mazz
testified that he did not have access to the construction or alteration dates of LSP’s
facilities; thus, he assumed that all facilities would be subject to the more flexible
programmatic access requirement that applies to existing constructions.491
490
491

Mazz

472 Fed.Appx. 287, 291-92 (5th Cir. 2012).
Rec. Doc. No. 546 at 15:1-7; 12:5-15; 14:15-15:22. See also PX 7.

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followed the industry-standard methodology for evaluating programmatic access, and
Defendants have acknowledged that courts routinely rely on the 1991 Standards for
guidance in determining whether a facility’s programs are accessible.492
Defendants maintain they have overcome architectural barriers in these facilities
by way of alternative methods of compliance in the form of using trained health care
orderlies to assist disabled inmates with their needs.
The Court rejects Plaintiffs’ assertion that providing alternative methods of access
to disabled inmates through health care orderlies does not comply with the law “in
theory.”493

As set forth above, “a public entity may comply with Title II by adopting a

variety of less costly measures, including … assigning aides to assist persons with
disabilities in accessing services. Only if these measures are ineffective in achieving
accessibility is the public entity required to make reasonable structural changes.”494
Further, courts must be “sensitive to the fact that prisons are unique environments with
heightened security and safety concerns.”495

However, “because the ADA and RA

‘unmistakably’ apply to State prisons and prisoners,496 [DOC] is statutorily required to
ensure that all of their inmates, including [plaintiffs], have the opportunity effectively to
access the services and programs [DOC] provides.”497
Applying this jurisprudence to facts found above, the Court finds that it is a
generally acceptable and lawful practice to implement a health care orderly assistance

492

Rec. Doc. No. 497 at 40 (citing Greer, 472 F. App’x at 292 n.3).
Rec. Doc. No. 573 at 272.
494
Garrett v. Thaler, 560 Fed. Appx. 375, 382 (5th Cir. 2014)(internal citations and quotations omitted).
495
Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 75 (2d Cir. 2016)(citing Pierce v. Cty. of Orange, 526
F.3d 1190, 1216–17 (9th Cir. 2008)).
496
Id. (quoting Yeskey, 524 U.S. at 209).
497
Id.
493

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program to provide disability access.

However, Plaintiffs carried their burden of

demonstrating that this program, in practice, is ineffective in achieving accessibility with
respect to assistance in the dorms themselves (i.e., bathing, showering, using bathrooms,
transfers,

and

transport).

This

is

largely

due

to

understaffing

and

the

abuse/neglect/misconduct of the orderlies. As to training, the Court finds the training
program itself to be adequate in content but finds lacking the “as-needed” explanation for
how often training occurs. Further, the Court finds that more oversight of the orderlies in
this program is glaringly necessary to prevent the too-often instances of abuse, neglect,
and misconduct.
Certainly, where reasonable alternative methods achieve compliance, structural
changes to existing facilities need not be made.498 However, where there is no evidence
to conclude that such methods are shown to ameliorate barriers presented by structural
deficiencies, alterations must be made.499 In Pierce v. County of Orange, the Ninth Circuit
highlighted how the use of deputy or other inmate assistance cannot overcome all
physical barriers to access: “Plaintiffs …presented evidence to show that deficiencies
were not remedied.”500 Whether there was testimony that witnesses observed
“detainees—not deputies—struggling to lift a fellow wheelchair-bound detainee over a
foot-high retention wall in one of Ward C's inaccessible showers” and disabled inmates
“forced to rely on fellow inmates for assistance when faced with inaccessible bathroom
facilities,” the court concluded that: “The impediment posed by such a barrier highlights

498

28 C.F.R. § 35.150(b)(1).
Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008).
500
Id. at 1219.
499

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the inadequacy of deputy or other inmate assistance.”501 In this case, the Court finds that
orderly assistance has been inadequate to overcome the structural barriers to access for
disabled inmates.
Regarding segregation of disabled inmates, which denies them access to
programs and services provided to non-disabled inmates at LSP, the Court finds that the
manner in which disabled inmates are segregated violates the ADA. Along with several
other regulations promulgated under Title II of the ADA is the “integration regulation,”
which provides that: “A public entity shall administer services, programs, and activities in
the most integrated setting appropriate to the needs of qualified individuals with
disabilities.”502 “[T]he most integrated setting appropriate” is “a setting that enables
individuals with disabilities to interact with non-disabled persons to the fullest extent
possible.”503

Evaluating this regulation, the Supreme Court has concluded that:

“Unjustified isolation ... is properly regarded as discrimination based on disability.”504
Many courts thereafter have acknowledged that the unnecessary segregation of the
disabled in institutions is a form of illegal discrimination against the disabled under the
ADA.505

Unnecessary segregation of individuals with disabilities in the provision of

public services is itself a form of “discrimination” within meaning of ADA and RA,
independent of discrimination that arises when individuals with disabilities receive
different services from those provided to individuals without disabilities.506 Based on the

501

Id. at 1219-20.
Henderson v. Thomas, 913 F.Supp.2d 1267, 1287 (M.D. Ala. 2012)(quoting 28 C.F.R. § 35.130(d)).
503
28 C.F.R. Pt. 35, App. B (2011).
504
Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 597 (1999).
505
See, e.g., Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003)
506
Helen L. v. DiDario, 46 F.3d 325, 335 (3rd Cir. 1995), rehearing and rehearing in banc denied, certiorari
denied, 516 U.S. 813.
502

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findings of fact above, the Court concludes that Defendants have failed to demonstrate
the necessity of, and justify the proffered reasons for, the segregation of disabled inmates
in the manner LSP employs. The proximity of the medical dorms to the ATU and
purported availability of inmate orderly assistance does not overcome the general denial
of access to various programs, activities, and services available to non-disabled inmates.
2.

Methods-of-Administration Claim

The Subclass Plaintiffs’ methods-of-administration claim is comprised of the
following allegations which, analyzed together, operate to deny programmatic access to,
and discriminate against, disabled inmates: LSP (1) fails to maintain a qualified and
adequately trained ADA Coordinator; (2) fails to maintain and ADA advisory committee
as required by its own policies; (3) inadequately trains its staff regarding the ADA; (4) fails
to inform patients of their rights and the procedures for requesting accommodations; (5)
fails to appropriately process accommodation requests and disability-related grievances;
(6) fails to identify and track patients’ disabilities and accommodation requests; and (7)
charges patients co-pays to evaluate their accommodation requests.507 The Court found
that Plaintiffs carried their burden on all of the above, except (4) and (7).
“A public entity may not ... utilize criteria or methods of administration ... [t]hat have
the purpose or effect of defeating or substantially impairing accomplishment of the
objectives of the public entity's program with respect to individuals with disabilities.”508 “In
other words, a public entity cannot actively undercut the ability of a public program to
benefit those with disabilities.”509 Some of Plaintiffs’ complaints regarding methods of

507

Rec. Doc. No. 573 at 283-85.
28 C.F.R. § 35.130(b)(3)(ii).
509
Van Velzor v. City of Burleson, 43 F.Supp.3d 746, 752 (N.D. Tex. 2014).
508

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administration trigger obligations imposed on LSP by Title II’s self-evaluative regulations
which, Defendants argue, as a court in the Southern District of Texas held, that “[t]he Fifth
Circuit has not specifically ruled on whether there is a private cause of action under”510
the “self-evaluative procedures required by 28 C.F.R. §§ 35.105-107.”511

While not

specifically addressing the numbered regulations at issue herein, the Fifth Circuit did hold,
generally, in Frame:
As mentioned, there is no question that Title II and § 504 are enforceable
through an implied private right of action. Moreover, to the extent Title II's
implementing regulations “simply apply” Title II's substantive ban on
disability discrimination and do not prohibit conduct that Title II permits, they
too are enforceable through Title II's private right of action. This is
because when Congress intends a statute to be enforced through a private
right of action, it also “intends the authoritative interpretation of the statute
to be so enforced as well.”512
In so ruling, the Frame court relied on the Supreme Court’s decision in Alexander v.
Sandoval, where it explained:
Such regulations, if valid and reasonable, authoritatively construe the
statute itself, see NationsBank of N.C., N.A. v. Variable Annuity Life Ins.
Co., 513 U.S. 251, 257, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995); Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–
844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and it is therefore meaningless
to talk about a separate cause of action to enforce the regulations apart
from the statute. A Congress that intends the statute to be enforced through
a private cause of action intends the authoritative interpretation of the
statute to be so enforced as well.513

510

Rec. Doc. No. 556 at 183 (quoting Green v. City of Mission, No. 7:18-CV-00049, 2018 WL 2200094, at
*11 (S.D. Tex. May 14, 2018)).
511
Id.
512
Frame, 657 F.3d at 224 (internal citations omitted)(emphasis added).
513
Alexander v. Sandoval, 532 U.S. 275, 284 (2001)(citing NationsBank of N.C., N.A. v. Variable Annuity
Life Ins. Co., 513 U.S. 251, 257, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995); Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843–844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). While
this case addressed the implementing regulations for Title VI, the Court cited to cases involving the ADA
and RA to support the general principle.

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Accordingly, the Court interprets the language in Frame to extend a private cause of
action under Title II’s implementing regulations where the claims relate to a systemic
failure to comply with the ADA.
Alternatively, as the court stated in Dunn v. Dunn, assuming for the sake of
argument that Defendants are correct that these regulations do not create a private right
of action:
This would not, however, have made them irrelevant. They are binding
regulations promulgated by the Department of Justice (which would be
empowered to bring an enforcement action). When courts have found them
not to be privately enforceable, as in Ability Ctr. of Greater Toledo v. City of
Sandusky, 385 F.3d 901, 913–14 (6th Cir.2004) (relying on Alexander v.
Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001)), they
have reasoned that the regulations are designed to facilitate, but do more
than merely describe, compliance with the ADA, such that “it is conceivable
that a public entity could fully satisfy its obligations to accommodate the
disabled while at the same time fail to put forth a suitable transition plan.”
All this means is that the Department's failure to implement a transition plan
would not have constituted a per se violation; plaintiffs could not have
shown liability merely by proving that the Department had no transition plan,
without showing that the Department had, as a result, failed to
accommodate prisoners with disabilities. That said, plaintiffs could have
argued, and proven at trial, that the Department's failure to do the things
required by these regulations had the effect of discriminating.514
Following this reasoning, even if Defendants are correct that no private cause of
action exists to enforce the self-evaluation regulations at issue, clearly the violation(s) of
such regulations can support a claim of general, system-wide noncompliance, and courts
across the country have not been unwilling to order injunctive relief mandating compliance
therewith.

514

318 F.R.D. 652, 663-64 (M.D. Al. 2016)(internal citations omitted).

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Furthermore, privately enforceable methods-of-administration regulation would
give rise to the claims Plaintiffs have raised. The Dunn court stated:
Indeed, there is another—privately enforceable—ADA regulation which
makes clear that policies and practices (or their absence) which result in
discrimination against people with disabilities are actionable under the ADA,
even if the policies and practices (such as the three regulations discussed
above) are not themselves required by the statute. Under this regulation,
plaintiffs in an ADA case can challenge a policy or practice—whether it is
one described in another regulation or simply one articulated by the plaintiffs
themselves—if it causes the public entity to discriminate against them,
including by failing to accommodate them.515
Additionally, “an omission as well as a commission can be an actionable method
of administration.”516 The Dunn court noted:
The methods-of-administration regulation makes clear that a know-nothing,
do-nothing policy of non-administration is a privately actionable violation of
the ADA, at least when plaintiffs can show that it has the effect of
discriminating. As Justice Marshall explained in Alexander v. Choate,
Congress designed the Rehabilitation Act, the predecessor statute to the
ADA, to address not only “invidious animus,” but also, more commonly,
“thoughtlessness and indifference—[ ] benign neglect.” 469 U.S. 287, 295,
105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Courts have consistently explained
that “Title II [of the ADA] imposes affirmative obligations on public entities
and does not merely require them to refrain from intentionally discriminating
against the disabled.” Ability Ctr. of Greater Toledo v. City of Sandusky, 385
F.3d 901, 910 (6th Cir.2004); see also Disabled in Action v. Bd. of Elections
in City of N.Y., 752 F.3d 189, 200–01 (2d Cir.2014); Toledo v. Sanchez, 454
F.3d 24, 32 (1st Cir.2006); Bennett–Nelson v. La. Bd. of Regents, 431 F.3d
448, 454–55 (5th Cir.2005); Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474, 488 (4th Cir.2005). Under the ADA, a public
entity must be “proactive.” Clemons v. Dart, 168 F.Supp.3d 1060, 1068–69,
2016 WL 890697, at *6 (N.D.Ill. Mar. 9, 2016) (Tharp, J.).517
A prison’s failure to follow its own, internal procedures is also relevant to this overall
determination. In Holmes v. Godinez, an ADA class challenge brought by handicapped

515

Id. at 664.
Id. at 665.
517
Id. at 665 n. 12.
516

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inmates against the prison, the plaintiffs alleged violations of the ADA by a system-wide
policies and practices, including the prison’s failure to follow its own, internal ADA
directives and/or policies or failure of those policies to adequately remedy barriers to
access: “Whether the ADA Directive—an express and undisputed statement of IDOC
system-wide policy—satisfies IDOC's obligations under the ADA is indeed a common
question apt to drive resolution of the litigation.518
Applying the foregoing law and jurisprudence to the facts found above, the Court
finds that the LSP methods of administration at LSP violate the ADA and RA by failing to
provide adequate access and accommodations to its disabled inmates due to neglect
and/or failure to follow both Title II’s implementing regulations and failure to follow some
of LSP’s own ADA Directives. As the court noted in Holmes v. Godinez:
Plaintiffs present a slew of different programs, activities, and services for
which they contend IDOC fails to provide reasonable accommodations
under the ADA. These include: (1) reception and classification; (2)
orientation; (3) educational and vocational programs; (4) work programs; (5)
counselor services; (6) medical, mental health, and rehabilitative services;
(7) religious services; (8) telephones; (9) televisions; (10) library services;
(11) disciplinary proceedings; (12) emergency and routine notification
services; (13) grievance process; and (14) pre-parole services. (See Compl.
¶¶ 63–140.) In conducting our analysis, we consider Plaintiffs' claims
as to each one of these programs separately. See Fed. R. Civ. P. 56(g);
Phipps, 681 F.Supp.2d at 919 (ruling separately on wheelchair-bound
plaintiffs' three claims that prison did not provide them shower chairs,
shower bars, and accessible sinks). We reiterate that an ADA violation
exists only if the defendant's action or inaction prevents the plaintiff from
participating in a program, activity or service. Certain of Plaintiffs'
complaints, such as IDOC's alleged failure to properly train its employees
and centrally track hearing impaired offenders, do not specifically target
programs, activities, or services, and thus cannot alone sustain a claim
under the ADA. (See SJ Reply at 4, Dkt. 258.) Despite this limitation, that
evidence is still relevant to the extent such inaction contributed to a

518

311 F.R.D. 177, 219 (N.D. Ill. 2015).

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widespread denial of access to the programs, activities, and services
that Plaintiffs do challenge.519
a.

ADA Coordinator/Advisory Committee

Public prisons are required by ADA implementing regulations to maintain an ADA
Coordinator. 28 C.F.R. § 35.107 provides that:
A public entity that employs 50 or more persons shall designate at least
one employee to coordinate its efforts to comply with and carry out its
responsibilities under this part, including any investigation of any complaint
communicated to it alleging its noncompliance with this part or alleging any
actions that would be prohibited by this part.520
Additionally, LSP Directive 01.016 states:
The ADA coordinator shall possess the educational background,
experience and skills necessary to carry out all of the duties and
responsibilities of the position, and have knowledge and experience in
dealing with the legal rights of persons with disabilities and the obligations
of public entities under Federal and State disability laws.521
Although it is undisputed that LSP has maintained a designated ADA Coordinator
for all time periods relevant to this litigation, the Court finds that the ADA Coordinators
are mere “window dressing.” They have not been sufficiently trained and educated to
effectively carry out their obligations under the ADA; in some instances, this role has been
secondary to other roles at LSP, and oversight is lacking. The lack of a qualified ADA
Coordinator contributes to LSP’s system-wide failure to comply with the ADA. Likewise,
the inexplicable ignorance of the LSP Directive requiring an ADA advisory committee,
while not violative by itself, demonstrates and contributes to LSP’s systemic failure to
ensure compliance with the ADA.

519

Id. at 226 (emphasis added).
Emphasis added.
521
JX 7-a at 1.
520

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b.

Staff Training

The Court found that LSP staff are not adequately trained to identify ADA issues
within the disabled inmate population. This lack of training contributes to the systemic
failure to accommodate disable inmates as required by the ADA. In Clark v. California,
the court found that staff training, including ADA training similar to the training exhibited
in this case, was “essential to the provision of necessary services … and “apparently
insufficient on its own to meet the statutory minimal levels of care.”522 The court also
stated that: “The current training regimen is clearly inadequate to prepare staff members
to adequately preserve Plaintiffs' rights,” and the court ordered further injunctive relief
regarding the training issue.523 Similarly, in Armstrong v. Davis, the district court found
an ADA violation where some staff received a one-hour training that many employees
could not recall, while others received “virtually no general training pertaining to the
identification and accommodation of disabled prisoners and parolees,” because “[w]ithout
training, even when staff have sufficient information before them to identify and
accommodate disabilities, they do not do so because they lack the necessary skills.”524
The Ninth Circuit affirmed in relevant part the district court’s order requiring all personnel
with relevant roles to undergo training “in the general requirements of the ADA, disability
awareness, the appropriate method of determining whether a prisoner adequately
understands written and verbal communications, and other relevant policies and
procedures.”525

522

739 F.Supp.2d 1168, 1231 (N.D. Cal. 2010).
Id. at 1234.
524
No. 94-2307 CW,1999 WL 35799705 at *31 (N.D. Cal. Dec. 22, 1999).
525
275 F.3d 849, 859 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499
(2005)).
523

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c.

Failures of Notice/Processing/Tracking

While Plaintiffs failed to carry their burden of demonstrating that Defendants fail to
provide notice of their ADA rights and LSP’s procedures in widespread fashion, Plaintiffs
did prove that Defendants do not follow their own procedures in practice, fail to
appropriately process accommodation requests, and fail to track inmates’ disabilities and
accommodation requests, all of which contribute to LSP’s systemic failure to comply with
the ADA. In Armstrong v. Brown, the Ninth Circuit affirmed the district court’s finding that
class members’ ADA rights were violated where they lacked access to “functional and
timely grievance procedures at county jails to request and obtain disability
accommodations.”526 Similarly, in Armstrong v. Davis, the Ninth Circuit held that the
prison’s accommodations procedures violated ADA where the practice was “to rely
primarily on Department employees untrained in issues of disability to determine whether
an individual is disabled or not, what accommodations are appropriate if he is, and
whether those accommodations will be provided.”527 The court also held that: “Because
the regulations implementing the ADA require a public entity to accommodate individuals
it has identified as disabled, some form of tracking system is necessary in order to enable
the Board to comply with the Act.”528
3.
“The

ADA

Failure to Accommodate

provides

for

reasonable

accommodation,

not

preferred

526

857 F.Supp.2d 919, 933 (N.D. Ca. 2012).
275 F.3d at 863.
528
Id. at 876. See also Hernandez, 110 F. Supp. 3d at 960 (requiring defendants to propose a remedial
plan that would include a “system for identifying and tracking all inmates who are qualified individuals with
disabilities,” as well as “a system for identifying and tracking the reasonable accommodations necessary
for qualified inmates with disabilities to participate in programs, services and activities offered by
Defendants at the jail”).
527

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accommodation.”529 Even in a prison setting, “[t]he accommodation of the inmate's
disability need not be ideal; instead, it need only be reasonable and effective.530 Further,
a correctional facility is afforded deference in its determination of an appropriate
accommodation.”531 However, in evaluating a disability for purposes of the ADA, courts
should be cautious not to confuse a disagreement with, or inadequate medical treatment
for, a disability with intentional discrimination because of a disability. Indeed, this Court
held in George v. Louisiana Dep't of Pub. Safety & Corr., “[g]enerally, the ADA prohibits
discrimination because of disability, not inadequate treatment for disability. Thusly
interpreted by sundry courts, the ADA is not violated by a prison failing to attend to the
medical needs of its disabled prisoners.”532
a.

Availability of Assistive Devices and Auxiliary Aids

28 C.F.R. § 35.160(b)(1) requires that “[a] public entity shall furnish appropriate
auxiliary aids and services where necessary to afford individuals with disabilities,
including applicants, participants, companions, and members of the public, an equal
opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a
public entity.” Indeed, “[t]he ADA does not create a remedy for medical malpractice.”533

529

Stafford v. King, No. 11–242, 2013 WL 4833863, at *2 (S.D. Miss. Sept. 11, 2013) (citing EEOC v. Agro
Distrib., 555 F.3d 462, 471 (5th Cir. 2009)).
530
Arce v. Louisiana, 226 F.Supp.3d 643, 651 (E.D. La. 2016)(citing Wells v. Thaler, 460 Fed.Appx. 303,
313 (5th Cir. 2012)).
531
Id. (citing Wells, at 313).
532
No. CV-3:14-00338-JWD-EWD, 2016 WL 3568109, at *10 (M.D. La. June 23, 2016).
533
Walker v. LeBlanc, No. 13-553-JJB-RLB, 2015 WL 1276578, *8 (M.D. La. Mar. 19, 2015)(quoting Brown
v. Wilson, 2012 WL 6719464, *3 (N.D.Tex. Dec. 27, 2012)(quoting Moore v. Prison Health Services, Inc.,
24 F.Supp.2d 1164, 1168 (D.Kan.1998), affirmed, 201 F.3d 448 (10th Cir.1999))(internal quotation marks
omitted); see also Nottingham v. Richardson, 499 Fed. Appx. 368, 377 (5th Cir.2012)(finding that “[t]he
ADA is not violated by ‘a prison's simply failing to attend to the medical needs of its disabled prisoners'”);
Hay v. Thaler, 470 Fed. Appx. 411, 418 (5th Cir.2012) (finding no ADA violation where the plaintiff
complained that prison officials refused to provide him with dentures but where the plaintiff made no
showing that the refusal was “by reason of his disabilities”); Moore v. Prison Health Services, Inc., 201 F.3d
448 (5th Cir.1999)(noting that the ADA “afford[s] disabled persons legal rights regarding access to programs

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Another section of this Court noted in Hacker v. Cain that “’[t]he ADA prohibits
discrimination because of disability, not inadequate treatment for disability.’”534 Thus,
“neither the RA nor the ADA is violated by a prison's simply failing to attend to the medical
needs of its disabled prisoners.”535 Just like in medical indifference cases, “it ‘does not
create a remedy for medical malpractice,’”536 and “‘purely medical decisions ... do not
ordinarily fall within the scope of the ADA or the Rehabilitation Act.’”537 On the other hand,
as the Court noted in Cleveland v. Gautreaux:
Despite this body of law, however, a contrary principle controls in
accommodations cases: in case after case, “the Fifth Circuit has held that a
defendant's failure to make the reasonable modifications necessary to
adjust for the unique needs of disabled persons can constitute intentional
discrimination under the ADA.” Hacker, 2016 U.S. Dist. LEXIS 73014, at
*40, 2016 WL 3167176, at *13 (citing Melton v. Dall. Area Rapid Transit,
391 F.3d 669, 672 (5th Cir.2004), and Garrett v. Thaler, 560 Fed.Appx. 375,
382 (5th Cir.2014)). As one court explained, “failure to make reasonable
accommodations to the needs of a disabled prisoner may have the effect of
discriminating against that prisoner because the lack of an accommodation
may cause the disabled prisoner to suffer more pain and punishment than
non-disabled prisoner.” McCoy v. Tex. Dep't of Crim. Justice, No. C–05–
370, 2006 WL 2331055, at *7 (S.D.Tex. Aug. 9, 2006); see also United
States v. Georgia, 546 U.S. 151, 157, 126 S.Ct. 877, 880–81, 163 L.Ed.2d
650, 658 (2006). In fact, “where the defendant otherwise had knowledge of
the individual's disability and needs but took no action,” not even the failure
to expressly request a specific accommodation (or modification) fatally
undermines an ADA claim. Greer v. Richardson Indep. Sch. Dist., 472
Fed.Appx. 287, 296 (5th Cir.2012); see also Borum v. Swisher Cnty., No.

and activities enjoyed by all, not a general federal cause of action for challenging the medical treatment of
their underlying disabilities”)).
534
No. 3:14-00063-JWD-EWD, 2016 WL 3167176, at *19 (M.D. La. June 6, 2016)(quoting Simmons v.
Navajo Cnty., Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010)).
535
Id. (citing Grzan v. Charter Hosp. of Nw. Ind., 104 F.3d 116, 121, 123 (7th Cir. 1997) (as to Section 504);
Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (as to the ADA); see also, e.g., Kiman v. N.H. Dep't of
Corr., 451 F.3d 274, 284 (1st Cir. 2006) (emphasizing that “courts have differentiated ADA claims based
on negligent medical care from those based on discriminatory medical care”); Lesley v. Chie, 250 F.3d 47,
55 (1st Cir. 2001) (“[A] plaintiff's showing of medical unreasonableness [under the Rehabilitation Act] must
be framed within some larger theory of disability discrimination.”)).
536
Id. (quoting Bryant, 84 F.3d at 249).
537
Id. (quoting Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005)).

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2:14–CV–127–J, 2015 WL 327508, at *9 (N.D.Tex. Jan. 26, 2015); Hinojosa
v. Livingston, 994 F.Supp.2d 840, 843–44 (S.D.Tex.2014).538
Plaintiffs failed to carry their burden in proving that LSP systemically fails to
accommodate disabled inmates with auxiliary and/or assistive devices. In light of the
Court’s findings of fact set forth above, the Court finds that most of the evidence Plaintiffs
presented on this issue demonstrates a disagreement with medical treatment and/or
dissatisfaction with not receiving a preferred accommodation, rather than blatant failures
to accommodate in the provisions of such aids/devices.
b.

Work Assignments/Duty Status

“A ‘duty status’ is a written designation assigned by a prison medical doctor
indicating an inmate's physical or mental ability to perform hard labor in accordance with
his sentence. Duty statuses are generally assigned by physicians following a medical
evaluation, and they are subject to change depending on changes in the medical
condition of a particular inmate. Duty statuses may range from no duty (indicating a need
for bed rest), to light duty or regular duty with restrictions, and finally to regular duty
without restrictions (indicating the inmate is capable of performing any and all hard
labor).”539
Although the inmate testimony and evidence presented by Plaintiffs regarding
failures to accommodate disabled inmates in work assignments and duty statuses failed
to demonstrate a violation of the ADA, the Court notes that this is not because Plaintiffs
failed to establish that certain inmates suffered from a disability, as argued by Defendants
regarding diabetes and asthma. Notably, and contrary to Defendants’ contentions and
538
539

198 F.Supp.3d 717, 746 (M.D. La. 2016).
Armant v. Stalder, 287 Fed. Appx. 351, 352 n. 1 (5th Cir. 2008).

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outdated jurisprudence, both diabetes and asthma can be considered disabilities under
the ADA. “The ADA Amendments Act of 2008 (“ADAAA”) essentially broadened the
definition of ‘disability’ to make it easier for an individual seeking protection under the ADA
to establish that he or she has a disability.540 The ADAAA did not alter the definition of
disability, but it added provisions 42 U.S.C. § 12102(2)-(4) to supersede cases that
interpreted the scope of ‘disability’ narrowly.”541 Under these amendments, the term
“‘disability’ now includes an impairment that is episodic or in remission if it would
substantially limit a major life activity when active; examples include epilepsy,
hypertension, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and
cancer.”542 The Fifth Circuit has noted that diabetes is a qualifying disability affecting the
endocrine system.543
Nevertheless, pursuant to the facts found above, Plaintiffs failed to demonstrate a
systemic ADA violation in the failure to accommodate disabled inmates in work
assignments and duty statuses.
c. Dietary Accommodations
While the ADA clearly requires dietary accommodations where an inmate’s
disability warrants,544 Plaintiffs failed to demonstrate more than two instances where such
needs at LSP were ostensibly unmet. Thus, the evidence presented failed to demonstrate

540

McNeal v. Louisiana Department of Public Safety and Corrections, No. 20-312-JWD-EWD, 2021 WL
359737, at *13 (M.D. La. Feb. 2, 2021)(citing Neely v. PSEG Texas, Ltd. P'ship, 735 F.3d 242, 245–46 (5th
Cir. 2013)).
541
Id. (citing Neely, 735 F.3d 245).
542
Weed v. Sidewinder Drilling, Inc., 245 F.Supp.3d 826, 834 (N.D. Tex. 2017)(citing ADA Amendments
Act of 2008, §§ 4, § 3(4)(D), 122 Stat. 3553, 3555; 29 C.F.R. § 1630(j)(5))(emphasis added).
543
Marlowe v. LeBlanc, No. 18-00063-BAJ-EWD, 2020 WL 6276956, at *10 (M.D. La. Oct. 26, 2020)(citing
Clark v. Champion Nat'l Sec., Inc., 952 F.3d 570, 578 n.15 (5th Cir. 2020)).
544
See e.g., id., 2020 WL 6276956 at *10-*11.

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a general, systemic failure by LSP to accommodate disabled inmates’ dietary restrictions.
However, the Court rejects Defendants’ contention that diabetes is not disability subject
to a dietary accommodation as contradicted by the jurisprudence set forth above.
d. Disability Accessible Transportation
"Because public entities must make modifications that are necessary to avoid
discrimination on the basis of disability, liability does not depend on evidence of
purposeful discrimination.”545 Rather, “a plaintiff must simply show that ‘but for’ his
disability, he would not have been deprived of the services or benefits he desired.546 In
the prison context, failure to accommodate the needs of a disabled prisoner is
discrimination if it causes the disabled prisoner to suffer more pain and punishment than
non-disabled prisoners.”547
Defendants misconstrue this Court’s holding in Miller v. Chapman548 by arguing
that this Court held that “[t]here is no affirmative obligation under the ADA to transport
disabled persons in handicap-accessible vehicles.”549 What the Court actually held was
that, at the Rule 12(b)(6) stage, the plaintiff’s argument that “LSP has a responsibility
under the law to provide a handicapped equipped van to transport handicapped inmates

545

Coker v. Dallas County Jail, No. 3:05-CV-005-M (BH), 2009 WL 1953038, at *17 (N.D. Tex. Feb. 25,
2009)(citing Patterson v. Kerr County, No. SA-05-CA-0626-RF, 2007 WL 2086671, at *7 (W.D.Tex. July
18, 2007)).
546
Id. (citing Patterson at *7)(citing Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 752
(7th Cir.2006))).
547
Id. (citing McCoy v. Tex. Dep't of Crim. Justice, 2007 WL 2331055, at *7 (S.D.Tex. Aug. 9, 2006) (citing
U.S. v. Georgia, 546 U.S. 151, 157, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (“[I]t is quite plausible that the
alleged deliberate refusal of prison officials to accommodate [the inmate's] disability-related needs in such
fundamentals as mobility, hygiene, medical care, and virtually all other prison programs constituted
‘exclu[sion] from participation in or ... deni[al of] the benefits of’ the prison's ‘services, programs, or
activities.’”))).
548
No. 13-00367-SDD, 2014 WL 2949287 (M.D. La. June 30, 2014).
549
Rec. Doc. No. 556 at 167.

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safely” was “alone [] insufficient to support a claim of discrimination based on Plaintiff's
disability arising under the ADA and the RA.”550 The Court ruled so because the plaintiff
failed to plead any supporting factual allegations with this statement; however, the Court
granted the plaintiff leave to amend his complaint.551 Further, the Court disagrees with
the notion that LSP does not have an affirmative obligation to accommodate disabled
inmates in safe transportation, particularly when the need for such accommodation is
readily known without the need for a request.
In Reyes v. Razor, a disabled, wheelchair-bound inmate sued the prison under the
ADA and RA alleging he was discriminated against on the basis of his disability by the
prison’s failure to provide a handicap bus to transport him on one occasion.552 The court
dismissed the plaintiff’s ADA/RA claims, noting that he pled no facts to show that the
prison “systemically denies handicap accessible transportation for inmates with
disabilities.”553
In Allah v. Goord, the court maintained a claim brought by an inmate against the
prison that allegedly violated the ADA by transporting him in an unsafe vehicle.554 The
plaintiff alleged that the prison knew or should have known of the dangers wheelchairbound prisoners are exposed to when they are transported in an unsafe vehicle; yet,
despite this knowledge, the prison allegedly failed to remedy the unsafe transportation
conditions by providing training, supervision or new equipment to prison personnel. The
plaintiff further argued that this policy was “motivated by ill will or animus towards

550

Miller, 2014 WL 2949287, at * 3.
Id.
552
No. 3:16-CV-0314, 2018 WL 3632100, at *5 (S.D. Tex. July 30, 2018).
553
Id.
554
405 F.Supp.2d 265 (S.D. N.Y. 2005).
551

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prisoners with disabilities who require a wheelchair for mobility”555 because “prisoners
who do not require a wheelchair for mobility are transported to outside medical providers
in a safe manner.”556 The court found that the plaintiff stated a claim under the ADA.
Nevertheless, based on the findings of fact set forth above, the Court cannot
conclude that Plaintiffs herein carried their burden of demonstrating sufficient evidence to
show a systemic denial of transportation accommodations that would support class-wide
injunctive relief on this issue. The Court maintains, however, that LSP does have the
obligation under the ADA and RA to accommodate disabled inmates in transportation in
instances where the need is readily known or knowable, without a formal request.557
Danny Prince’s testimony reinforces that LSP would not transport inmates in need of the
handicap van if it was not available, and the inmates call-out would be rescheduled,558
resulting in an unconstitutional delay of medical care under the Eighth Amendment but
not disability discrimination.
e. Discipline Accommodations
The Court acknowledges that “[m]aintenance of prison security is a legitimate
function of prison officials, who must be accorded broad discretion in that function.”559

555

Id. at 276.
Id. at 279.
557
The Court understands that this determination still requires evaluation on a case-by-case basis.
558
The Court acknowledges this testimony cuts both ways – the lack of availability of a handicap van caused
inmates in need of care to suffer delays; however, on the issue of accommodating disabled inmates in
transportation, it demonstrates an acknowledgment that such an accommodation is mandated for disabled
inmates.
559
Williamson v. Larpenter, 2019 WL 3719761, at *12 (E.D. La. July 15, 2019)(citing Waganfeald v.
Gusman, 674 F.3d 475, 485 (5th Cir. 2012), petition for cert. filed, 81 U.S.L.W. 3064 (U.S. July 18, 2012)
(No. 12-85) (citing Whitley v. Albers, 475 U.S. 312, 322 (1986); Bell v. Wolfish, 441 U.S. 520, 546–47
(1979))(“[S]ecurity considerations are peculiarly within the province and professional expertise of
corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials
have exaggerated their response to these considerations, courts should ordinarily defer to their expert
judgment in such matters.”) (quotation omitted)).
556

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However, a prison must evaluate a disabled inmate's needs and the accommodations
necessary to ensure reasonable access to prison services, and failure to do so violates
the ADA and RA as a matter of law.560 This obligation to provide accommodations applies
to the discipline of disabled inmates, as well:

“A failure to provide a reasonable

accommodation can occur where a correctional officer could have used less force or no
force during the performance of his or her penological duties with respect to a disabled
person. A failure to provide a reasonable accommodation, or discrimination by reason of
disability, constitutes a violation of the ADA[.]”561
The Ninth Circuit has held that the second element of this test can be
satisfied where a law enforcement officer could have used less force or no
force during the performance of his law-enforcement duties with respect to
a disabled person. See Sheehan v. City & Cty. of San Francisco, 743 F.3d
1211, 1232-33 (9th Cir. 2014), rev'd on other grounds sub nom., City & Cty.
of San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015) (holding that a
failure to reasonably accommodate a person's disability in the course of an
investigation or arrest by using unnecessary force, causing the person to
suffer “greater injury or indignity in that process than other arrestees,” gives
rise to a claim under § 12132, and that a reasonable jury could conclude
that a police officer's failure to use less force or no force during an arrest of
a person with mental illness could constitute a failure to provide a
reasonable accommodation in violation of § 12132); Vos v. City of Newport
Beach, 892 F.3d 1024, 1037 (9th Cir. 2018), cert. denied sub nom. City of
Newport Beach, Cal. v. Vos, 139 S. Ct. 2613 (2019) (same). When applied
in the prison context, it follows that the second element of a § 12132 claim
can be satisfied where a correctional officer could have used less force or
no force during the performance of his or her penological duties with respect
to a disabled person.562
From the trial evidence, the Court concludes that the ADA Coordinator and medical
staff at LSP employ a completely “hands off” approach to discipline, even as it relates to
the discipline of disabled inmates. In the Court’s view, this violates the ADA and RA. The

560

Pierce v. District of Columbia, 128 F.Supp.3d 250, 271–72 (D.D.C. 2015).
Armstrong v. Newsom, No. 94-cv-02307 CW, 2021 WL 933106, at *3 (N.D. Cal. Mar. 11, 2021).
562
Id. at *25.
561

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Court finds that the lack of medical oversight in disciplinary decisions for disabled inmates
creates a serious risk that disabled inmates will be disciplined in the same manner as
non-disabled inmates, without taking into consideration any accommodations in discipline
that may be warranted by a disabled inmate’s medical condition(s).
4.

Exclusionary Policies

Numerous courts have held that prisons must provide disabled inmates access to
work assignments and recreational services; they are not to be excluded simply because
they are disabled.563
a.

Hobby Craft

On its face, the hobby craft policy does constitute a blanket denial of access for
disabled inmates; however, as applied, disabled inmates can apply for hobby craft, albeit
through the ARP process. The Court finds that this process does not violate the ADA
because all inmates at LSP must apply for the privilege of hobby craft. Thus, the Court
does not find that the hobby craft program is discrimination because of an inmate’s
disability. Defendants presented credible evidence that exceptions to the exclusionary
policy can be made, and are made, where appropriate, after evaluation by medical staff.
The two examples Plaintiffs presented are insufficient to carry their burden. As to C.F.,
the ARP records regarding his request to participate in hobby shop undermine Plaintiffs’

563

See Holmes, 311 F.R.D. at 227 (“Numerous other courts, including in this circuit, have permitted
prisoners to bring Title II ADA claims related to job assignments. See Jaros, 684 F.3d at 673 (permitting
plaintiff to proceed with his Rehabilitation Act claim that IDOC prevented him from participating in work
release program because of his cane); Hale v. King, 642 F.3d 492, 499 (5th Cir.2011) (finding the plaintiff's
allegation that the defendant prevented him from working in a prison kitchen because of his disability stated
a claim under Title II of the ADA); Neisler, 2015 WL 998439, at *5 (allowing prisoner to pursue an
employment-related claim under Title II of the ADA); Muhammad v. Randle, 9 C 1014, 2010 WL 2680708,
at *2 (S.D.Ill. July 2, 2010) (allowing prisoner to pursue Title II ADA claim related to prison work); see also
Love, 103 F.3d at 560 (affirming verdict under the ADA in favor of prisoner who was denied access to the
prison's work programs))).

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argument that denials are perfunctorily given without medical assessment of safe
participation.

Rather, the records indicated medical conditions for which it was

reasonable for a medical professional to determine whether C.F.’s participation in hobby
craft was appropriate, and the records demonstrate that the medical staff evaluated C.F.’s
medical conditions when considering his request. Thus, the Court finds that Plaintiffs
failed to present sufficient evidence to establish an ADA violation as to access to hobby
craft. Further, the Court notes that it is not the role of the Court to second-guess the
medical decisions and treatment protocols determined by medical staff for such
programs; rather, under the ADA, the Court is only evaluating whether the entire sub class
of disabled inmates were systemically denied access to hobby shop because of their
disabilities. This was not proven.
b. Duty Status/Work Release Program
In Yeskey, the Supreme Court noted that “[m]odern prisons provide inmates with
many recreational activities, medical services, and educational and vocational programs,
all of which at least theoretically benefit the prisoners and any of which disabled prisoners
could be ‘excluded from participation in.”564 Another section of this Court denied summary
judgment in Guy v. LeBlanc, where a hearing-impaired inmate asserted that the prison
violated the ADA and RA by prohibiting him from (1) using the teletypewriter phone, (2)
obtaining a paying job, (3) participating in sports, (4) participating in hobbycraft, and (5)

564

524 U.S. at 210 (internal quotation and parenthetical marks omitted). See also McGuire v. Lafourche
Parish Work–Release Facility, No. 09-6755, 2009 WL 4891914, *6 (E.D.La. Dec. 4, 2009)(deferring for
further development the inmate plaintiff's claim regarding an alleged ADA violation arising from denial of
participation in a work-release program).

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participating in rodeo.”565

The Court noted that “[t]he implementing regulations of the

ADA forbid the Department from
impos[ing] or apply[ing] eligibility criteria that screen out or tend to screen
out an individual with a disability or any 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.566
In evaluating the plaintiff’s complaint about access to the TTY phone, the Court
noted that the defendant’s policy regarding TTY phones excluded use “unless the
prisoner shows ‘profound hearing loss that keeps him from utilizing a telephone with an
amplified headset.’”567

The Court ruled that “a reasonable jury could find that the

Department's ‘profound hearing loss’ standard creates an ‘eligibility criteria’ that tends to
‘screen out’ a class of hearing-impaired persons whose impairments do not rise to the
level of ‘profound hearing loss.’”568
As to the plaintiff’s exclusion from incentive pay, the Court rejected the defendant’s
argument that it denied the plaintiff’s access to incentive pay jobs based on “classification
decision” and not discrimination.569 The Court noted that “Louisiana law requires that the
Department ‘provide employment opportunities and vocational training for all inmates,
regardless of gender, consistent with available resources, physical custody, and
appropriate classification criteria.’570 ‘Classification of prisoners is a matter left to the

565

400 F.Supp.3d 536, 543 (M.D. La. 2019).
28 C.F.R. § 35.130(b)(8). The Court notes that this section also applies to hobby craft where, on its
face, the policy screens out all disabled inmates. Nonetheless, as set forth above, because hobby craft is
a privilege, ostensibly all inmates, disabled or not, must apply and are screened for participation.
567
Guy, 400 F.Supp.3d at 543.
568
Id. (quoting 28 C.F.R. § 35.130(b)(8)).
569
Id. at 543-544.
570
Id. at 544 (quoting La. Rev. Stat. § 15:832(A)).
566

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discretion of prison officials.’”571 The Court rejected the defendants’ motion on this issue,
finding:
The record reflects that the Department housed Guy in “working cell blocks”
because he received disciplinary violations. (Doc. 19-8 at p. 3). In a “working
cell block,” offenders are “automatically assigned to the field.” (Doc. 19-4 at
p. 154). Because of his “no field” duty status, Guy could not perform paying
field work. (Doc. 18-10). But his duty status is attributable to his hearing
impairment; so it is his impairment—not his history of disciplinary
violations—that ultimately made him ineligible for a paying job, despite his
undisputed ability to perform some paying work at Angola. (Docs. 21-2 at ¶
13; 27-1 at ¶ 13).
Accordingly, viewing the facts and drawing all reasonable inferences in
Guy's favor, the Court concludes that a reasonable jury could find that the
Department violated the ADA and RA by denying Guy incentive pay for a
nine-month period from 2016–2017.572
Turning to sports, the defendant claimed it did not violate the ADA or RA in denying
the plaintiff access to sports “because safety – not discrimination – accounts for the
denial.”573 The Court also rejected this argument, finding:
As a public entity, the Department may “impose legitimate safety
requirements necessary for the safe operation of... services, programs, or
activities.” 28 C.F.R. § 35.130(h). But it “must ensure that its safety
requirements are based on actual risks, not on mere speculation,
stereotypes, or generalizations about individuals with disabilities.” Id.
The testimony of Angola's medical director, Dr. Randy Lavespere, tends to
show that the Department's “safety requirements” are based on
generalizations and speculation—not an individualized assessment of
Guy's hearing impairment. See 28 C.F.R. § 35.130(h). For example, Dr.
Lavespere testified, categorically, that he “won't make an adjustment for
sports.” (Doc. 19-4 at p. 69). Worse, he testified that Guy's hearing
impairment places him at an “increased risk” playing the sport of
“pickleball”—a non-contact sport he admitted not knowing. (Docs. 19-4 at
pp. 71, 90).574

571

Id. (quoting McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir. 1990)).
Id.
573
Id.
574
Id.
572

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Similarly, the Court rejected the defendant’s contention that it did not discriminate
against the plaintiff in denying him access to hobbycraft because it argued “its medical
director ‘would potentially allow’ Guy to participate in ‘certain’ hobbycraft activities.”575
The Court stated: “The contention lacks merit. A public entity's assurance that it will not
violate the ADA and RA in the future does not immunize it from liability for past
violations.”576
Guy testified that he would like to participate in the prison's leather-working
program. (Doc. 19-3 at pp. 50). To that end, he requested access to leatherworking and other hobbycraft activities. (Doc. 19-7 at pp. 3–4). The
Department denied the request without explaining why Guy cannot safely
perform these activities. (Id. at p. 5). Angola's medical director, Dr.
Lavespere, even testified that certain hobbycraft activities, such as leather
work and painting, pose “no inherent danger to [Guy].” (Doc. 19-4 at p. 69).
So it is unclear what motive—other than disability discrimination—drove the
Department's denial of Guy's request to participate in hobbycraft
activities.577
What is clear from the Guy decision is that a prison’s implementation of policies
that creates an “eligibility criteria” that tends to “screen out” a class of persons based
solely on their medical conditions and/or disabilities is a violation of the ADA’s
implementing regulations. Defendants cannot automatically exclude disabled inmates
from various programs and activities based solely on their disabled or medical status and
then justify such exclusion by arguing they will consider exceptions where the inmate
makes a request. This practice is the opposite of what the ADA and RA require.
Plaintiffs presented uncontroverted evidence that certain disabled inmates are
issued “no duty” status work assignments based solely on their disabilities, which

575

Id. at 545.
Id. (citing 42 U.S.C. § 12132; 29 U.S.C. § 794(a)).
577
Id.
576

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precludes them from participating in work release, work assignments, hobby craft, and
other programs. The Court finds that this is a violation of the ADA and implementing
regulations. The Court notes that it is not a violation of the ADA or RA for the prison’s
medical staff to properly evaluate and determine, on a individualized basis, that certain
programs or activities are unsafe for certain inmates; however, a blanket denial or
classification turns the regulations on their head and places the burden on disabled
inmates to demand access to programs that the prison is obligated to provide in the first
place.
IV.

CONCLUSION/INJUNCTIVE RELIEF
For the reasons set forth above, the Court holds that the Defendants, in their official

capacities, are violating the Eighth Amendment rights of the Plaintiff Class and the ADA
and RA rights of the Plaintiff Subclass. Based on the overwhelming evidence presented
at trial, judgment shall be entered in favor of Plaintiffs following the remedy phase. The
Court shall order injunctive relief regarding the following deficiencies:
(1) Failing to provide constitutionally adequate clinical care in the following
particulars: privacy in examinations; lack of routine medical equipment in exam
rooms; lack of adequate medical records management; lack of clinical hygiene
and spacing; episodic treatment of complaints;
(2) Failing to provide adequate medical care with qualified providers at sick call;
(3) Failing to provide access to medically necessary specialty care in a timely
manner; failure to schedule and track specialty appointments; failure to comply
with testing and diagnostic requirements; failure to execute appropriate followup care ordered by specialty care providers; and failure to coordinate care;
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(4) Failing to provide constitutionally adequate emergency care in the evaluation
and assessment of emergencies by qualified providers and failing to timely treat
and/or transport to hospital for emergent care;
(5) Failing to provide adequate, qualified staff in infirmary/inpatient care;
(6) Failing to provide medical leadership and organization in the following
particulars: lack of meaningful mortality review; use of correctional personnel
to manage medical decisions; lack of peer review; lack of medical staff
involvement in budgeting; lack of medical supervision by Dr. Lavespere; and
failure to maintain proper credentialing records;
(7) Failing to comply with the ADA and RA in providing disabled inmates access to
programs and services due to physical and architectural barriers;
(8) Failing to provide adequately trained, staffed, and safe orderly assistance
where physical modifications have not been made to provide access; failure to
provide proper oversight of health care orderlies;
(9) Failing to comply with LSP’s own ADA Directives in maintaining a qualified ADA
Coordinator and advisory committee to handle ADA issues;
(10)

Failing to make efforts to integrate disabled inmates within the spirit of the

ADA implementing regulations;
(11)

Failing to adequately train medical staff regarding ADA compliance;

(12)

Failing to appropriately evaluate and address ADA accommodation

requests and disability-related grievances;
(13)

Failing to identify and track disabilities and accommodation requests in a

meaningful way;
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(14)

Failing to accommodate disabled inmates in applying discipline;

(15)

Maintaining blanket exclusionary policies for disabled inmates regarding

access to various services, activities, and programs in violation of the ADA.
By separate notice, the Court will set a Status Conference to discuss proceeding
to the remedy phase of this matter.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 31st day of March, 2021.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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