Dinkins v. Correctional Medical Service et al

Filing 230

ORDER entered by Judge Nanette Laughrey. The State of Missouri and the Missouri Department of Corrections' Motion for Summary Judgment, 197 , is granted in part and denied in part. Defendants' Motion for Summary Judgment as to Dinkins' physical therapy claims is granted. Defendants' Motion for Summary Judgment as to Dinkins' housing and meal claims is denied.(Cross, Ashley)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

ROBERT DINKINS,
Plaintiff,
v.
CORRECTIONAL MEDICAL
SERVICES, et al.,
Defendants.

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Case No. 2:09-cv-04111-NKL

ORDER
Plaintiff Robert Dinkins filed this lawsuit against Correctional Medical Services, John
Doe Medical Doctors, the State of Missouri, the Missouri Department of Corrections (MDOC),
and Jefferson City Correctional Center (JCCC) officers Phillip Lange and Morris Logan alleging
violations of Title II of the Americans with Disabilities Act (ADA) and section 504 of the
Rehabilitation Act of 1973 (RA). Before the Court is the State of Missouri and MDOC’s Motion
for Summary Judgment, [Doc. 197]. For the reasons set forth below, the Motion is granted in
part and denied in part. The Motion for Summary Judgment as to Dinkins’ physical therapy
claims is granted. The Motion for Summary Judgment as to Dinkins’ housing and meal claims is
denied.
I.

Procedural History
This lawsuit was filed in June 2009. The Court granted Dinkins leave to file a Second

Amended Complaint in June 2010, which seeks injunctive relief and compensatory and punitive
damages arising out of alleged violations of the ADA and RA. [Doc. 33-1]. In August 2010,
Defendants the State of Missouri, MDOC, and officers Lange and Logan filed a Motion to

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Dismiss, [Doc. 47]. These defendants argued that the claims against them should be dismissed
because (1) correctional officers Lange and Logan may not be sued in their individual capacities
under Title II of the ADA; (2) the defendants were entitled to Eleventh Amendment immunity;
and because (3) Dinkins’ claims were based on medical treatment decisions, which are not
actionable under the ADA or RA. [Docs. 47 & 54]. The Court granted the Motion to Dismiss for
those reasons. [Doc. 60]. In April 2011, the sole remaining named Defendant, Corizon Medical
Services, filed a Motion to Dismiss, [Doc. 100]. The Court granted its Motion to Dismiss
because Dinkins’ claims against it were based on medical treatment decisions, and claims under
the ADA or RA cannot be based on medical treatment decisions. [Doc. 118].
Dinkins appealed the Court’s dismissal of his claims against all defendants. The Eighth
Circuit affirmed dismissal of the individual capacity claims against Lange and Logan because
they could not be sued in their individual capacities under the ADA or RA. See Dinkins v. Corr.
Med. Servs., 743 F.3d 633, 634 (8th Cir. 2014). The Eighth Circuit also affirmed dismissal of
the claims against the John Doe Medical Doctors and Corizon Medical Services because those
claims were based on medical treatment decisions. Id. However, the Eighth Circuit concluded
that not all of Dinkins’ claims against Lange and Logan (in their official capacities), the State of
Missouri, and MDOC appeared to be based on medical treatment decisions. Pointing to
allegations that he was denied meals and adequate housing by reason of his disability and denied
prescribed physical therapy, the Eighth Circuit stated that some of Dinkins’ allegations could
form the basis of viable ADA and RA claims. Id. at 635. The Eighth Circuit reversed the
dismissal of Dinkins’ claims for injunctive relief against the state defendants that were not based
on medical treatment decisions. Id. The Eighth Circuit also reversed dismissal of Dinkins’
damages claims against the State of Missouri and MDOC under the ADA and against the MDOC

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under the RA because some of their alleged behavior could violate the Eighth and Fourteenth
Amendments. Id. The Eighth Circuit stated that the MDOC waived sovereign immunity under
the RA by accepting federal funds, and Title II of the ADA abrogates both the State of
Missouri’s and MDOC’s immunity for conduct that actually violates the Fourteenth Amendment.
Id. The case was remanded to this Court for further proceedings. Id.
On remand, the remaining defendants – Lange and Logan, the State of Missouri, and
MDOC – filed a Motion to Dismiss All Claims for Injunctive Relief, [Doc. 142]. Their Motion
was granted because Dinkins was transferred to Pickneyville Correctional Center in Illinois –
meaning that Dinkins was no longer in the custody of MDOC and subject to its control – and
therefore, Dinkins’ injunctive relief claims were moot. [Doc. 150] (citing Randolph v. Rodgers,
253 F.3d 342, 345-46 (8th Cir. 2001)). The only remaining claims in this lawsuit are Dinkins’
ADA damages claims against the State of Missouri and MDOC and Dinkins’ RA damages
claims against MDOC.
In November 2014, the State of Missouri and MDOC (hereinafter Defendants) filed a
Motion for Summary Judgment on Dinkins’ remaining damages claims against them. [Doc. 197].
In January 2015, Dinkins retained counsel, Mr. MacArthur Moten, who responded to the Motion
for Summary Judgment on behalf of Dinkins [Docs. 208, 209].
II.

Uncontroverted Material Facts 1

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In response to Defendants’ Motion for Summary Judgment, Dinkins stated in part that he could not reply to
Paragraphs 48-56 of Defendants’ Supplemental Statement of Uncontroverted Material Facts, [Doc. 202], because his
attorney, Mr. Moten, did not have access to Defendants’ Exhibit N, [Doc. 209], which was filed under seal and
referenced in those Paragraphs. After determining that Mr. Moten was now in possession of the sealed exhibit, the
Court gave Dinkins additional time to file a surreply responding to Paragraphs 48-56. [Doc. 223]. The Court
informed Dinkins that if a surreply addressing those Paragraphs was not filed by March 12, 2015, the Court would
treat those Paragraphs as uncontroverted. No surreply was filed, and so the Court will treat Paragraphs 48-56 of
Defendants’ Supplemental Statement of Uncontroverted Material Facts as uncontroverted.

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Plaintiff Robert Dinkins was incarcerated at JCCC, an institution under the direction of
MDOC, from 2004 until 2013. In 2004, Dinkins began experiencing symptoms of anemia and
was diagnosed with anemia in December 2004 after collapsing during recreational time. In
January 2006, after the symptoms intensified, Dinkins was diagnosed with pernicious anemia.
By April 2006, Dinkins was paralyzed from the waist down. He was prescribed daily B-12 and
iron treatments, a supplemental health drink, and a wheelchair.
Dinkins filed numerous grievances and requests related to physical therapy from 2006
through 2013. His requests were often denied, with JCCC medical professionals concluding that
therapy was not medically necessary. In February 2006, an outside specialist recommended
physical therapy. In May 2006, a physical therapist suggested anodyne infrared therapy. This
recommendation was reviewed by the regional medical director at JCCC, a contracted medical
professional who serves as the responsible physician for the facility. The regional medical
director denied the anodyne infrared therapy recommendation after concluding that given
Dinkins’ condition and current B-12 treatments, anodyne infrared therapy was not medically
necessary at that time.
On May 22, 2007, an outside specialist prescribed physical therapy, which was to occur
2-3 times per week for 4-6 weeks. Dinkins was transported to an outside clinic for physical
therapy on May 30th and June 3rd, but after June 3rd, citing a disruption caused by Dinkins
while at the clinic, the outside clinic refused to treat him and asked that he not return. On June
6th, a JCCC physician scheduled Dinkins for twice weekly physical therapy exercises in his cell
in lieu of sessions at the outside clinic where Dinkins was no longer welcome. These exercises
were based off of exercises provided by the outside clinic and were to be observed by JCCC

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medical staff. JCCC medical staff regularly witnessed Dinkins perform the exercises in his cell.
A JCCC physician ordered Dinkins to continue with these exercises throughout 2007 and 2008.
While incarcerated at JCCC, on several different occasions for a duration of several days
to weeks, Dinkins was assigned to various levels of administrative segregation referred to as
“strip cell status,” “8 house,” and the “boom boom room.” In “strip cell status,” an offender is
stripped of his clothing and possessions as punishment for behavior such as threatening an
officer. “8 house” is a long-term administrative segregation unit. The “boom boom room” is a
rubber cell meant to prevent an inmate from harming himself. In each of these levels of
administrative segregation, Dinkins was denied access to his wheelchair. His meals were
delivered through an opening in his door called the “chuckhole.”
Dinkins filed several written grievances and made oral complaints to various JCCC
officials about his living conditions while in administrative segregation without his wheelchair.
He complained that without his wheelchair, he was forced to crawl on the floor, eat his food off
the floor, and sit in his own urine. He also complained that the shower facilities were not
handicap accessible and that he fell in the shower and could not wash himself thoroughly.
Dinkins requested access to a handicap shower, assignment to the JCCC infirmary, and the return
of his wheelchair. Defendants deny that Dinkins was forced to crawl on the floor to access his
meals, forced to eat on the floor, or forced to eliminate bodily waste on the floor. They also deny
that Dinkins was not provided assistance in showering and using the restroom.
III.

Discussion
Dinkins alleges that Defendants violated Title II of the ADA and section 794 of the RA

by denying him access to showers, meals, prescribed physical therapy, and adequate housing by
reason of his disability. Title II of the ADA states that “no qualified individual with a disability

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shall, by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. §12132. The Supreme Court of the United States has held that state
prisons fall squarely within the statutory definition of a “public entity” and that recreational
activities, medical services, and educational and vocational programs provided by prisons to
inmates are “services, programs, or activities” under the statute. Pennsylvania Dept. of Corr. v.
Yeskey, 524 U.S. 206, 210 (1998); see also Jaros v. Illinois Dept. of Corr., 684 F.3d 667, 672
(7th Cir. 2012) (stating that meals and showers made available to inmates are “program[s] or
activit[ies]”); Kiman v. New Hampshire Dept. of Corr., 451 F.3d 274, 287-88 (1st Cir. 2006)
(stating that disabled inmate presented admissible evidence that corrections officers prevented
him from using shower chair). Similar to the ADA, section 794(a) of the RA states that “[n]o
otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. 794(a). The
Eighth Circuit has held that “[t]he ADA and the RA are similar in substance and, with the
exception of the RA’s federal funding requirement, cases interpreting either are applicable and
interchangeable.” Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (internal quotations
omitted).
To establish a claim under the ADA, a plaintiff must show: (1) he is a person with a
disability as defined by statute; (2) he is otherwise qualified for the benefit in question; and (3)
he was excluded from the benefit due to discrimination based upon disability. Id. The elements
to establish an RA claim are the same, except that under the RA, a plaintiff must additionally

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show that the program or activity from which he was excluded receives federal financial
assistance. Id.
For the purposes of their Motion for Summary Judgment, Defendants do not dispute that
Dinkins is a person with a disability as defined by statute who is qualified for the benefits he
alleges were denied. [Doc. 198, p. 8]. The sole issue, then, is whether any genuine issue of
material fact exists regarding whether Dinkins was excluded from benefits due to discrimination
based upon disability. Defendants argue summary judgment is appropriate on both the ADA and
RA claims because there is no genuine issue of material fact regarding whether Dinkins received
the benefits he claims to have been denied or excluded from receiving – meals, adequate
housing, and medically prescribed physical therapy.
A. Access to Meals
Dinkins alleges that while in “strip cell status,” “8 house,” and the “boom boom room,”
his wheelchair was taken away from him and that as a result, he was denied meals because he
could not move across the cell to receive his meals through the “chuckhole.” Defendants
contend that Dinkins cannot establish that he was refused adequate meals because of his
disability because Dinkins’ Individual Confinement Record “clearly evidences that he was
provided meals while housed in administrative segregation.” [Doc. 203, p. 3]. However, while
Dinkins admits that his Confinement Record shows that meals were delivered to him through the
“chuckhole” in his cell door, a genuine issue of material fact exists because Dinkins testified
under oath at his deposition that he was not always able to reach the meals placed in the
“chuckhole” because he was paralyzed and did not have access to his wheelchair while in
various levels of administrative segregation. [Doc. 197-1, p. 73:17-22; 96:11-21; 108:16109:13]. In fact, the Individual Confinement Record relied upon by Defendants show several

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instances where Dinkins “refused” meals, but it is unclear from these records whether he actually
refused the meal or a correctional officer assumed he was refusing the meal because he could not
reach them. It is also unclear from the Confinement Record whether the delivered meal trays
were actually eaten or touched by Dinkins when they were later picked up. The Parties dispute
whether Dinkins actually could not reach the meals or simply refused them, and this is a genuine
issue of material fact. See [Doc. 209, p. 12, ¶ 19]; [Doc. 220, p. 5, ¶ 19]. Simply delivering the
meals to an area Dinkins could not reach is not enough. “[T]he ADA and RA require that
otherwise qualified individuals receive meaningful access to programs and activities” not just
limited access. Randolph, 170 F.3d at 858 (concluding that the record did not contain credible
evidence to support a finding that hearing impaired inmate enjoyed meaningful access to the
prison’s disciplinary process because although he could physically attend disciplinary hearings,
his requests for a sign language interpreter had been denied).
Defendants also contend that Dinkins’ claim that he was denied meals because his
wheelchair was taken away must fail because Dinkins admits that when assigned to “strip cell
status,” “8 house,” and the “boom boom room,” assistive devices such as wheelchairs may be
removed due to safety and security under MDOC policy. But even assuming that “safety and
security” reasons existed to justify the removal of Dinkins’ wheelchair, Defendants do not
explain why this policy alone justifies denial of benefits provided to other non-disabled inmates.
For example, when non-disabled inmates are stripped of their clothes or possessions and placed
in administrative segregation according to MDOC policy, they are still able to access meals,
unlike Dinkins, who says he was denied the only means of independently accessing his meals –
his wheelchair. This is not to say that Dinkins was entitled to his wheelchair at all times, but

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when it was denied, he was entitled to a reasonable accommodation so that he could access
meals provided by the prison.
One such accommodation Dinkins requested was that meals be brought him inside his
cell rather than placed in the “chuckhole” for him to retrieve. Defendants argue that Dinkins has
provided no evidence that he made any MDOC official aware that he was unable to reach meal
trays placed in his cell door. This argument was made for the first time in Defendants’ Reply
brief, and there are no facts addressing notice in Defendants’ Statement of Facts or Supplemental
Statement of Facts, so Dinkins has not had an opportunity to respond to this argument.
Nonetheless, a review of the record reveals that Dinkins testified that he made multiple verbal
and written requests to the warden, correctional officers, and medical staff. [Doc. 197-1, p.
73:10-74:2]. This testimony is supported by a November 2007 Offender Grievance Response
signed by the Health Service Administrator and Medical Director, which states that Dinkins
made a complaint in October 2007 that he was “denied a wheelchair in the cell with [him] and
that [he was] required to crawl around on and eat on the floor.” [Doc. 197-11, p. 5]. Without
indicating any kind of investigation, the response states, “[t]here is no need for you to crawl or
eat on the floor.” Id. Defendants also argue that the only formal “Request for Reasonable
Accommodations” form submitted by Dinkins made no mention of needing his meals brought
into his cell or missing meals due to lack of mobility. However, on the “Request for Reasonable
Accommodations” form, Dinkins checked a box requesting “Dorm Proximity to Meals” due to a
physical impairment. [Doc. 202-6]. 2 Based on this evidence and Dinkins’ deposition testimony,
2

In his Statement of Additional Material Facts, Dinkins references a separate lawsuit filed against JCCC, various
correctional officers, and Corizon Medical Services. See Case No. 2:06-cv-04303-NKL. In that lawsuit, Dinkins
filed a “Motion for Temporary Restraining Order [and] Permanent Injunction Under Imminent Danger,” where he
claimed that while in administrative segregation, his wheelchair was removed and he was unable to receive meals,
medications, and toilet facilities. [Doc. 12, p. 1]. He also stated that he was unable to relieve himself and that he
was told to crawl on the floor to get his meals. Id. He asked that his wheelchair be returned. A hearing was held by
the Hon. William A. Knox, and the court ordered MDOC to give Dinkins a wheelchair. [Doc. 15]. Regardless of

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a reasonable juror could conclude that the MDOC had notice of Dinkins’ inability to reach food
placed in the “chuckhole.”
Defendants also argue for the first time in their Reply that “due to heightened security
concerns, it is not a reasonable accommodation in the administrative segregation unit to have an
offender’s meals brought into his cell.” [Doc. 220, p. 9]. “While a public entity is required to
make reasonable accommodations where necessary to give ‘meaningful access’ to programs or
benefits, the entity need not make available auxiliary aids and services if it can show that to do
so would be ‘unduly burdensome.”’ Mason v. Corr. Med. Servs., Inc., 559 F.3d 880, 886 (8th
Cir. 2009) (internal citations omitted). Even assuming that delivering meals into Dinkins’ cell
when he could not otherwise reach them is an “auxiliary service” and not one of basic necessity,
Defendants are not entitled to summary judgment because whether a requested accommodation
is “unduly burdensome,” and therefore, unreasonable, is normally a question for the fact-finder.
See Randolph, 170 F.3d at 859 (reversing the district court’s decision granting an inmate’s
motion for summary judgment because the MDOC presented substantial evidence that the
inmate’s request created safety and security issues, and the MDOC was entitled to have its
evidence considered by the fact-finder). Defendants cite to the MDOC’s policy that correctional
officers are required to secure an offender inside an administrative segregation unit before
opening the cell door, but Defendants do not explain why this requirement would prevent them
from delivering meals to Dinkins once he was restrained.
B. Access to Adequate Housing and Showers
Dinkins alleges multiple reasons why he was denied adequate housing due to his
disability while in both administrative segregation and general population at JCCC.
whether his allegations are true – a question for the jury – this separate lawsuit against JCCC is further support that
Dinkins made JCCC aware of his living conditions while in administrative segregation as early as December 2006,
when he filed the lawsuit.

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1. Denial of Request for Assignment to Infirmary
Dinkins alleges he was denied adequate housing because his requests to be assigned to
the infirmary unit were denied. Dinkins alleges that he should have been assigned to the
infirmary “as required by his M-5 status.” [Doc. 33-1, p. 16, ¶ 36]. However, Dinkins admits
that admission to the infirmary unit is predicated upon the order of a licensed physician and that
MDOC relied on the independent medical determinations of licensed medical providers when
assessing appropriate medical care. Dinkins has not pointed to any evidence suggesting that a
licensed physician prescribed or recommended assignment to the infirmary or that MDOC
employees ignored such an order. Even if “M-5 status” classification means he was supposed to
be in the infirmary unit, Dinkins does not point to any evidence suggesting he had an “M-5
status” classification. To the extent Dinkins is alleging that a physician should have assigned
him to the infirmary, that decision is a medical decision which cannot form the basis of a claim
under the ADA or RA. See Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (per
curiam).
2. Assault in General Population
Dinkins also alleges that because his request to be assigned to the infirmary was denied,
he was assaulted by inmates in general population and could not defend himself because he was
disabled. Defendants do not argue whether Dinkins’ assault allegation is actionable under the
ADA or the RA. Instead, Defendants argue that the “evidence cited in Plaintiff’s Suggestions in
Opposition does not support Dinkins’ new allegation that he was a victim of any assault.” [Doc.
220, p. 10]. First, Dinkins’ allegation of assault is not a “new” allegation. Dinkins alleged in his
Second Amended Complaint that he was placed in non-handicap cells, “resulting in prisoner
assault.” [Doc. 33-1, p. 11, ¶ 28]. He also alleged that he was assaulted by other prisoners,

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which could have been prevented by assignment to the infirmary. Id. at p. 10, ¶ 23. Second,
contrary to Defendants’ argument, Dinkins’ allegation that he was victim of assault is supported
by the evidence he cited. In his Suggestions in Opposition, Dinkins states that he was a victim of
assault and cites to page 122, lines 1-24 of his deposition. On page 122 of his deposition,
Dinkins testified under oath that he asked wardens, “medicals,” doctors, nurses, and “everybody
that I could think of” “so many times” for a transfer to the infirmary because it was a safer
environment. [Doc. 197-1, p. 122:5-123:5]. He also testified that he gave the names of other
inmates he feared. Id. at p. 124:24-125:18. Therefore, this is an issue for a jury.
3. Access to Showers
Dinkins’ allegations related to adequate shower access are two-fold. Dinkins alleges that
while in “strip cell status,” “8 house,” and the “boom boom room,” his wheelchair was removed
and he could not travel to the shower. At his deposition, Dinkins testified that MDOC staff
refused to bring his wheelchair to him or take him to the showers. [Doc. 197-1, p. 14:23-15:7;
15:22-16:4]. Correctional officers would not take him to the shower because without his
wheelchair, he often could not make it to the “chuckhole” to be restrained. Id. at p. 37:9-15.
Dinkins also alleges that even when he did have his wheelchair and was able to go to the
showers, he was denied access to a handicap shower and was provided an inadequate chair in the
shower, which was unsafe.
Defendants contest Dinkins’ statement of fact that he was denied showers. This
discrepancy in facts, alone, suggests a genuine issue of material fact. In the briefing in support
of their Motion for Summary Judgment, Defendants do not specifically address Dinkins’
allegations regarding his access to showers. Instead, Defendants argue that Dinkins did not
submit a request for accommodation until August 2011 and that this request did not mention

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showers. However, Defendants do not point to any MDOC policy or law requiring a disabled
person to request accommodations only through the filing of a “Reasonable Request for
Accommodations” form. See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952 n. 5
(8th Cir. 1999) (stating in an ADA lawsuit in the employment context that “[a]lthough in this
case [the plaintiff] made a written request and used the relevant words of ‘reasonable
accommodation’ . . . an employee is not required to request accommodation in writing, or to use
the magic words of ‘reasonable accommodation.’ The notice must merely make it clear to the
employer that the employee wants assistance for his or her disability.”). With that being said,
Dinkins testified that MDOC employees “refused to come in the cell or bring a wheelchair and
put me in a wheelchair or give me the wheelchair to push me to the showers.” [Doc. 197-1, p.
15:22-16:2]. Dinkins also testified that he made requests from 2004 to 2013 for appropriate
medical benches in the showers, but those requests were denied. Id. at p. 117:23-118:3. This
testimony is supported by various complaints made by Dinkins. A complaint made in February
2006 states, “the hand[i]cap shower is broke in 3A, I need help when taking a shower because I
cannot stand or wipe myself complet[e]ly.” [Doc. 197-9, p. 16]. Dinkins filed a complaint in
January 2008 stating that he was injured from an improper shower. [Doc. 197-8, p. 8]. The
response to that complaint states: “Your IRR complaint alleges you are being kept in poor
condition by the custody officers,” but there is no statement regarding Dinkins’ shower
complaint. Another complaint was filed in February 2008. Id. at 6. In March 2008, the
superintendent responded to the complaint and stated that Dinkins was being showered using the
shower chair and was capable of pushing himself to the shower using his legs. Id. at 7. An
“Offender Grievance Appeal” filed by Dinkins in April 2008 states that a correctional officer
continues to force him to use the regular shower. Id. at 2. He also appears to state that the plastic

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chair in the shower is inadequate, that he falls and injures himself, that it is very difficult to
shower because he tips over, that he cannot wash himself thoroughly, and that he would like to
use the handicap shower. Id. at 3. The response to Dinkins’ grievance, dated in June 2008,
acknowledges that Dinkins has requested assistance in showering, but does not indicate whether
his request was granted. Id. at p. 5. 3
There are genuine issues of material fact regarding whether Dinkins was denied the
benefit of a safe shower due to his disability. Given the multiple grievances filed by Dinkins and
his deposition testimony, a reasonable juror could conclude that the MDOC was on notice of
Dinkins’ request for shower accommodations and did not accommodate him, thereby denying
him of a benefit on the basis of his disability.
4. Eating and Crawling on the Floor
Dinkins also alleges that while in “strip cell status,” “8 house,” and the “boom boom
room,” his wheelchair was taken away, and because he could not walk or stand without it, he was
forced to eat and crawl on the floor and sit in his own urine. Like their argument regarding
Dinkins’ shower access allegations, Defendants contend that Dinkins did not submit a request for
accommodation until August 2011 and that this request did not mention crawling on the floor.
However, there are grievances filed by Dinkins regarding eating and crawling on the floor. For
example, in July 2006, Dinkins stated in an “Offender Grievance Appeal” that when he was in “8
house,” he was not allowed to have a wheelchair in his cell and that he “used the bathroom on
[him]self, [and] couldn’t wash [his] face or brush [his] teeth.” [Doc. 197-9, p. 5]. In October
2007, Dinkins complained that he was placed in “strip cell status” without his wheelchair, that he
had to crawl on the floor, and that he had to eat meals on the “filthy” floor. [Doc. 197-11, p. 4]. 4

3
4

See also supra, note 2 for another complaint filed by Dinkins.
See also supra, note 2 for another complaint filed by Dinkins.

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From this evidence, a reasonable juror could conclude that Defendants knew about Dinkins’
housing conditions and requests for accommodations.
Defendants also focus their summary judgment argument on Dinkins’ allegation that he
was denied assignment to the infirmary unit, arguing that the decision not to place Dinkins in the
infirmary unit was a medical decision not subject to an ADA or RA claim. While it is true that
the denial of Dinkins’ request to be assigned to the infirmary unit was a medical decision by a
licensed physician, and therefore, not subject to an ADA or RA claim, Defendants do not explain
how this denial alone also meant that the prison was not required to reasonably accommodate
Dinkins in other ways.
Defendants also argue that Dinkins was provided adequate housing because the prison
has ADA compliant cells. However, Defendants do not state or provide any evidence that
Dinkins was assigned to a handicap cell. Further, Dinkins’ allegations largely relate to times he
spent in administrative segregation, and Defendants do not state whether, when in administrative
segregation, Dinkins was provided a handicap cell. Even if Dinkins was provided a handicap
cell, Defendants do no explain how this assignment alone would entitle them to summary
judgment since they concede that Dinkins’ wheelchair was taken away from him while in
administrative segregation. The crux of Dinkins’ claims is that while in administrative
segregation, his wheelchair was removed and he was forced to crawl on the floor, sit in his own
urine, and miss showers and meals. There are genuine issues of disputed material fact regarding
whether Dinkins was denied adequate housing based on his disability. Therefore, summary
judgment on Dinkins’ housing claims is denied.
C. Access to Medically Prescribed Physical Therapy

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Dinkins also alleges that Defendants violated the ADA and RA by denying him access to
medically prescribed physical therapy. Summary judgment on this claim is appropriate because
there is no genuine issue of material fact regarding whether Dinkins was provided physical
therapy when prescribed. Initially, the Court notes that to the extent that Dinkins alleges
physicians should have prescribed more or different physical therapy, a physician’s decision not
to do so is a medical decision and is not actionable under the ADA or RA. Dinkins also
concedes that the decision to prescribe physical therapy for an offender is a decision made by a
licensed medical professional and that MDOC relied on the determinations of those
professionals. Dinkins claim, then, is limited to his allegation that he was prescribed physical
therapy by a medical professional but that Defendants denied access to that therapy.
The Parties agree that Dinkins was prescribed physical therapy by a physician on May
22, 2007, and that the prescription was for therapy two to three times per week for four to six
weeks. [Doc. 209, p. 3, ¶ 19]. The narrow question is whether Dinkins was provided this
therapy for the four to six weeks following his May appointment. It is undisputed that on May
30, and June 3, 2007, Dinkins was taken to an outside clinic for physical therapy. It is also
undisputed that the clinic, citing a disruption caused by Dinkins, refused to treat him after June
3rd. [Doc. 197-2, p. 4]. Dinkins admits that thereafter, on June 6, 2007, Dr. Rex Hardman, a
physician employed by Corizon Medical Services at JCCC, scheduled Dinkins for twice weekly
physical therapy exercises to be completed within his cell. These exercises were observed by
medical staff and based off of exercise instructions provided by the outside clinic Dinkins first
attended. Dinkins admits that the prison’s medical staff regularly observed him performing the
exercises in his cell.

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Dinkins argues that the in-cell physical therapy was inadequate and was not comparable
to outside treatment. He argues that “the denial of outside clinic physical therapy and inadequate
in-cell program with his disability was essentially the denial of physical therapy.” [Doc. 211, p.
9]. However, the record establishes that Dinkins was provided physical therapy as prescribed.
Dinkins argues that he was denied “outside clinical physical therapy,” but the prescription for
physical therapy does not specifically require that the therapy be conducted at a facility outside
of the prison. [Doc. 197-2, p. 2]. The physical therapy exercises he performed within his cell
were exercises provided by the outside facility and were monitored by medical staff within the
prison. Medical staff at the facility continued to recommend this therapy even after the six week
period, suggesting that medical staff believed the treatment was adequate. Further, Dinkins does
not explain how in-cell therapy exercises – once he was asked not to return to the outside clinic –
were inadequate or not comparable to outside treatment. Dinkins also does not point to any
opinion from a medical professional that his in-cell therapy was inadequate or any prescription
requiring outside clinical care. There are no genuine issues of material fact regarding whether
Dinkins was provided access to prescribed physical therapy. Therefore, summary judgment on
this claim under the ADA and RA is granted.
D. Eleventh Amendment Immunity
Defendants argue that even if there are genuine issues of material fact on Dinkins’
claims, they are entitled to summary judgment on his ADA claims because, as a matter of law,
they are entitled to immunity under the Eleventh Amendment. The Eighth Circuit has held in
this case on appeal that “Title II of the ADA abrogates both the State of Missouri’s and the
MDOC’s immunity for conduct that actually violates the Fourteenth Amendment” and that
“some of [D]efendants’ alleged behavior could violate the Eighth and Fourteenth Amendments.”

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See Dinkins v. Corr. Med. Servs., 743 F.3d 633, 634 (8th Cir. 2014) (citing United States v.
Georgia, 546 U.S. 151, 159 (2006)). Defendants argue that none of their actions violate the
Fourteenth Amendment, and therefore, Title II of the ADA does not abrogate their immunity.
Dinkins alleges violations of both the Eighth and Fourteenth Amendments. See, e.g.,
[Doc. 33-1, p. 16, ¶ 35; p. 21, ¶ 42]. The Fourteenth Amendment Due Process Clause
incorporates the Eighth Amendment guarantee against cruel and unusual punishment. The
Eighth Circuit has stated that
[t]o prevail on an Eighth Amendment claim, an inmate must prove
both an objective and a subjective element. First, the alleged
deprivation, objectively, must be sufficiently serious; the prison
official’s act or omission must result in the denial of the minimal
civilized measure of life’s necessities; or the prison official must
incarcerate the inmate under conditions posing a substantial risk of
serious harm. Second, the prison official, subjectively, must act
with deliberate indifference to inmate health or safety.
While it is true that constructive knowledge, or the “should-haveknown” standard, is not sufficient to support a finding of deliberate
indifference, it does not follow that the required element of
subjective knowledge cannot be proved by evidence of
surrounding circumstances. The question whether the official knew
of the risk is subject to demonstration, like any other question of
fact, by inference from circumstantial evidence. Therefore, if an
inmate presents evidence of very obvious and blatant
circumstances indicating that the prison official knew the risk
existed, then, it is proper to infer that the official must have known.

Simmons v. Cook, 154 F.3d 805, 807 (8th Cir. 1998) (internal citations and quotations omitted).
With this standard in mind, the Court concludes that if true, Defendants’ conduct could violate
the Eighth and Fourteenth Amendments. As to the objective element, Dinkins testified that he
was denied meals, showers and adequate showering facilities when his wheelchair was taken
away in various levels of administrative segregation. He also testified that he was forced to
crawl on the floor, eat off the floor, and sit in his own urine. This evidence is sufficient to create
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the inference that Dinkins was denied the “minimal civilized measure of life’s necessities” and
subjected to “conditions posing a substantial risk of serious harm.” Id. at 807-08 (upholding
damages award for Eighth Amendment violation where paraplegic inmates missed four
consecutive meals because their wheelchairs could not maneuver to the door where the food tray
was placed in maximum security cells and because they were unable to eliminate bodily waste
because they were denied assistance); Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir. 1980)
(inmate with back injury who needed wheelchair stated claim for cruel and unusual punishment
in violation of the Eighth Amendment where prison officials denied access to wheelchair,
thereby forcing him to crawl on the floor, and refused to assist inmate clean himself); LaFaut v.
Smith, 834 F.2d 389, (4th Cir. 1987) (prison official’s failure to make toilet facilities accessible
to inmate confined to wheelchair was a violation of the Eighth Amendment where inmate was
forced to drag himself to the toilet and where inmate fell off toilet because of no rails);
Muhammad v. New Jersey Dept. of Corr., 645 F.Supp.2d 299, 317 (D.N.J. 2008) (plaintiff with
prosthetic leg allegedly suffered deprivation “sufficiently serious” to violate Eighth Amendment
when cell transfer made it difficult for him to reach handicap shower and where he could not
safely shower in regular shower); Casey v. Lewis, 834 F.Supp. 1569 (D. Ariz. 1993) (prison that
lacked accessible bathrooms, showers, and cells, causing disabled inmates to fall, violated
inmates’ Eighth Amendment right to the basic necessities of life).
As to the subjective element, a reasonable juror could conclude that officials within the
MDOC were deliberately indifferent to his condition. Dinkins was confined to a wheelchair, and
so his condition was at least somewhat obvious to even a non-medical layperson such as a
correctional officer. But even if officers did not know the full extent of his paralysis and
weakness, Dinkins testified that he made several requests for accommodations, both written and

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orally, to wardens, correctional officers, and medical staff. Dinkins’ testimony was supported by
numerous grievances filed by Dinkins and discussed in detail above – some of which were
acknowledged by prison officials in grievance responses. A jury could reasonably conclude that
officials knew the conditions Dinkins experienced while in administrative segregation without
his wheelchair and failed to remedy those conditions.
Defendants argue they are entitled to immunity because Dinkins cannot demonstrate that
prison officials were deliberately indifferent to a serious medical need and can show no more
than disagreement with medical treatment decisions. Dinkins does allege indifference to a
serious medical need, but he also alleged Eighth Amendment violations stemming from his
living conditions. Defendants do not address why these living conditions could not form the
factual basis for an Eighth Amendment violation claim. Defendants also argue that Dinkins did
not allege any violations of the Eighth Amendment in his Second Amended Complaint, relying
on Dinkins’ statement in the Second Amended Complaint that he does not intend to seek
remedies through a 42 U.S.C. § 1983 claim. While Dinkins does state he is not seeking a remedy
through § 1983, Dinkins specifically alleges that through various refusals to accommodate his
disability, MDOC violated the Eighth and Fourteenth Amendments. [Doc. 33-1, p. 16, ¶ 35; p.
21, ¶ 42]. And as discussed above, sufficient evidence exists so that a reasonable juror could
conclude that a violation of those Amendments occurred.
Dinkins has provided sufficient evidence to create the inference that he was forced to
crawl on the floor, eat his food on the floor, miss meals and showers, and sit in his own urine
when his wheelchair was removed in administrative segregation. A reasonable juror could
conclude that Defendants had notice of these conditions and failed to remedy these conditions by
returning his wheelchair or providing some other reasonable accommodation. Because the

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Defendants’ conduct, if true, violates the Eighth and Fourteenth Amendments, Title II of the
ADA abrogates Defendants’ immunity under the Eleventh Amendment. Therefore, Defendants
are not entitled to summary judgment on the basis of Eleventh Amendment immunity.
IV.

Conclusion
For the reasons set forth above, the State of Missouri and the Missouri Department of

Corrections’ Motion for Summary Judgment, [Doc. 197], is granted in part and denied in part.
Defendants’ Motion for Summary Judgment as to Dinkins’ physical therapy claims is granted.
Defendants’ Motion for Summary Judgment as to Dinkins’ housing and meal claims is denied.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: May 4, 2015
Jefferson City, Missouri

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