Nunes et al v. UMass Correctional Health et al

Filing 57

Judge Rya W. Zobel: ORDER entered. re 27 MOTION for Preliminary Injunction filed by Richard Nunes; Defendants have until 6/3/11 to amend accommodations; (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-12013-RWZ
RICHARD NUNES
v.
UMASS CORRECTIONAL HEALTH, et al.

ORDER
May 16, 2011
ZOBEL, D.J.

Plaintiff, Richard Nunes, an inmate in the custody of the Massachusetts
Department of Corrections (“DOC”), has HIV and requires twice daily medication. For
years DOC supplied inmates like plaintiff with a multi-day quantity of such medications,
to be kept in their cells and refilled as needed. This program, known as KOP for “Keep
on Person,” was discontinued as of February 1, 2009. As a result plaintiff has to go to
the Health Services Unit twice a day, stand in line and wait to receive the required
medicines. There appears to be no dispute that plaintiff suffers from chronic back and
leg problems which, he says, often prevent him from going to the infirmary and make
standing in line impossible. He is also afflicted with chronic and frequent diarrhea
which effectively keeps him bound to his cell. The parties agree that it is important for
HIV patients to adhere strictly to the prescribed regimen for the drugs to be effective
and that plaintiff, under KOP, did so. Because of his difficulties obtaining the drugs
under the new protocol, plaintiff has ceased taking the medications with adverse effects

on his health. He brought this action for relief based on claims that the policy violates
his rights under the Eighth Amendment, the Americans With Disabilities Act (“ADA”)
and the Rehabilitation Act. The matter is before me on plaintiff’s motion for a
preliminary injunction against enforcement of the new protocol and an order to permit
him to receive the HIV medicines in accordance with KOP rules (Docket # 27).
At the hearing on the motion, defendants argued that plaintiff had failed to
comply with the statutes in that he had never formally requested an accommodation.
The court ordered plaintiff to file an ADA Accommodation Request and defendants to
respond within two weeks thereafter. Both parties complied. Defendants proposed
accommodating plaintiff by providing him with a rolling walker for the times he is not
feeling well, allowing him to leave the line and wait for his turn seated on a nearby
bench, and use the bathroom when in need without losing his place in the line. Plaintiff
finds the proposed accommodation wanting. He is concerned that his leaving the line
without losing his place will cause confrontations with other prisoners not so privileged
and that the use of the public bathroom in the Health Services Unit carries the risk of
contagion. Finally, he points out that there are days when he is simply too sick to get
out of bed and, even with a rolling walker, go to the infirmary to get his daily
medications, let alone do so twice on such days.
At this preliminary stage and on the current record, I cannot say that the
proposed accommodation is inadequate except in one respect. The record supports
plaintiff’s assertion that there are a number of days every month when he is absolutely
unable to get out of bed or be any distance from a bathroom. Defendants’ plan does
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not address these inevitable contingencies by including a mechanism to provide the
medications on those days. Unless defendants by June 3, 2011, amend the
accommodation to include a plan for addressing these contingencies, the preliminary
injunction will issue. If the accommodation satisfactorily addresses these issues, the
motion for injunctive relief will be denied.

May 16, 2011
DATE

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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