McCune v. Workman

Filing 27

REPORT AND RECOMMENDATION that 22 MOTION for Summary Judgment be GRANTED IN PART AND DENIED IN PART. It is recommended that the motion be granted as to Plaintiff's §1983 claims against Ms. Workman and denied as to Plaintiff's cla im under the Americans With Disabilities Act. Objections to R&R due by 6/30/2016. Signed by Magistrate Judge Terence P. Kemp on 6/13/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
James Stephen McCune,
Plaintiff,
v.

Case No. 2:14-cv-25

Virginia Workman,

CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

Defendant.
REPORT AND RECOMMENDATION
Plaintiff James Stephen McCune, an inmate at the Madison
Correctional Institution (“MaCI”), filed this action alleging
violations of his constitutional rights, as well violation of his
rights under the Americans With Disabilities Act of 1990 (“ADA”).
Defendant Virginia Workman has moved for summary judgment, and
the motion is now ripe for consideration.

(Doc. 22).

For the

reasons set out below, it will be recommended that the motion for
summary judgment be granted as to Mr. McCune’s claims under 42
U.S.C.A. §1983 and denied as to his claims under the ADA.
I.
Mr. McCune is blind.

Summary of Claims
He is classified as security Level 1,

which is minimum security status at MaCI.

Ms. Workman is the

Unit Management Chief in charge of Mr. McCune’s unit at MaCI.

In

about March, 2013, Mr. McCune filed an internal grievance with
the institution complaining that he was being housed in Zone A,
which housed higher security status Level 2 inmates.

He

requested to be moved to Zone B with the other Level 1 inmates,
where he asserts that there are additional rights and privileges
provided to inmates.

It is not clear from the record exactly

what rights and privileges are provided to inmates in Zone B that
are not provided in Zone A, but most inmates housed in Zone A are

Level 2 inmates.

Mr. MCune was ultimately successful in his

internal grievance and in May of 2013, he was granted a transfer
to Zone B.

However, he was told by Ms. Workman that the transfer

was conditional on him signing the following “Understanding of
Transfer”, which she drafted:
“I, Inmate McCune A-302339, am requesting to
transfer to Madison Correctional Zone B. I
am a level 1B offender and wish to have full
access to the privileges that are offered as
a level 1B offender. However, due to being
vision impaired I have remained in Zone A of
Madison Correctional. I am now requesting to
transfer to Zone B with full understanding
that I am voluntarily resigning from the
vision impaired program that is offered at
MaCI [which operates in Zone A, not Zone B].
By resigning and transferring to Zone B I
understand that I will not have access to the
Braille Room and the equipment that is
provided inside. I will not have access to a
Braille typewriter, I have full understanding
that these items will not be provided to me
on Zone B of the prison. I will no longer
receive any of the items that are purchased
by the department for the sole purpose of the
vision impaired program. The only privilege
I will receive in Zone B is an assigned Blind
Aid by the department. I am also allowed to
have Hadley School for the Blind send in
classroom material that is approved by the
ODRC.” (Doc. 26-1 at 166-167).
The sight impaired program (“Program”) at MaCI is a grant
funded program and is maintained only in Zone A of the
institution, where inmates qualified for the Program are
typically housed, irrespective of security status.
¶ 5).

(Doc. 22-1 at

Inmates in the Program are provided with access to a room

which contains braille equipment, large print and audio books, a
computer and other materials to assist those with sight
impairment.

According to Mr. McCune, Ms. Workman told him that

if he could find a charity or other organization that was willing
2

to provide him with a braille typewriter, commonly referred to as
a “brailler,” and braille paper that he would be permitted to
receive it in Zone B.

(Doc. 4 at 5).

Ms. Workman denies this,

maintaining that she “did not tell Inmate McCune that he could
attempt to secure a Brailler or Braille paper from an outside
entity or agency as part of his transfer to Zone B.”
at 3).

(Doc. 22-1

Mr. McCune was seeking access to the braille equipment in

order for him to participate in correspondence courses through
the Hadley School for the Blind and a Bible school, to prepare
for his braille certification through the Federation for the
Blind, and to correspond with a friend who also uses braille.
(Doc. 26-1 at 167).
Mr. McCune contends that once he arrived in Zone B in the
middle of May 2013 he was informed by his case manager that, per
Ms. Workman’s instructions, he was not permitted to touch any of
the braillers that were located in Zone B and that if he was
caught doing so he would be placed in segregation and have his
security status raised.

(Doc. 4 at 6).

Mr. McCune proceeded to

contact a number of organizations and charities who provide
services for the sight impaired, but was unsuccessful in
obtaining donated equipment.

Several of these agencies contacted

Ms. Workman to inquire as to MaCI’s policy for accommodation of
sight impaired inmates, including Disability Rights Ohio (“DRO”).
According to an attorney with DRO who was liaising with Ms.
Workman on Mr. McCune’s behalf, he found it “very difficult to
work with Ms. Workman; she frequently delays, makes empty
promises, tells me information that is not accurate, and is
making this project slow.”

(Doc. 26-1 at 431).

The attorney

from DRO was attempting to assist Mr. McCune and other sight
impaired inmates at MaCI to obtain access to braille equipment
and a computer, and for MaCI to create written and publicly
posted policies on the use of the braille room.
3

Id. at 425-426.

Mr. McCune states that on October 23, 2013 he was called
into his case manager’s office and informed that Ms. Workman had
relayed the message that she was “fed up” with his letter writing
and complaining about not having braille equipment and if he
“continue[d] to try and obtain any of these items then she will
have [his] ass sent back to the Medium side Level 2 so fast [his]
head would spin.”

The next day Mr. McCune was called back to his

case manager’s office and asked whether he still needed the
equipment, and he confirmed that he did. (Doc. 4 at 5).

On

October 30, 2013, although he remained a security Level 1 inmate,
Mr. McCune was transferred back to Zone A.

He claims that this

was initiated by Ms. Workman in retaliation for writing to the
various blind organizations, and otherwise seeking access to
braille equipment in Zone B.

The parties agree that during his

five months in Zone B, Mr. McCune had no rule infractions.

Mr.

McCune states that although three braillers were available in
Zone B, Ms. Workman did not permit him to use them.

He argues

that he should have been provided access to a brailler and
braille paper in Zone B, the equivalent of access to a typewriter
and paper, which are provided to sighted inmates in both Zones A
and B.
According to Mr. McCune, he was further retaliated against
by Ms. Workman by being intentionally re-housed in Zone B with a
Level 2 inmate whom she knew to be prone to violence.

Mr. McCune

states that this inmate harassed him, urinated in his coffee jar,
poured out his toiletries, threatened to kill him, and physically
assaulted him.

Subsequently, he filed a grievance seeking to

have that cell mate replaced by one of a couple of specifically
named blind aid inmates. (Doc. 4 at 6).

Mr. McCune was assigned

a new cell mate within two days of his grievance, although not
either of the specific inmates he named in the grievance.

4

Ms. Workman agrees that Mr. McCune’s housing moves between
Zones A and B were timed as he reports, but maintains that in
both zones he was provided with all privileges afforded to him as
a security Level 1 inmate.

(Doc. 12 at 3).

She states that it

was Mr. McCune’s wish to be transferred to Zone B in May of 2013,
and he agreed to the transfer with the knowledge and
understanding that he would not have access to the Program,
braille equipment and other aids for the sight impaired that were
available in Zone A.

She asserts that Mr. McCune’s relocation in

October, 2013, back to Zone A from Zone B was neither a
punishment nor discrimination against him, but was to enable him
to re-enroll in the Program and access the braille equipment he
was seeking.

(Doc. 22-1 at 3).

Ms. Workman further points out

that Mr. McCune’s initial cell mate assignment upon his transfer
back to Zone A in October of 2013 was acceptable, as the policy
of the Ohio Department of Rehabilitation and Correction permits
security Level 1 and Level 2 inmates to be housed in the same
cell.

(Doc. 22 at 6).

Subsequent to the filing of this lawsuit,

in March of 2015, Mr. McCune was transferred back to Zone B, and
now has access to braille equipment in that section, as well as
other accommodations for his disability.

(Doc. 22-1 at 4).

Mr. McCune’s complaint seeks relief in the form of access to
braille equipment in Zone B of the prison, which it appears is
now the case.

He also seeks compensation for his pain and

suffering, as well as mental and emotional distress, the
retaliatory treatment by Ms. Workman, and injuries sustained by
him at the hands of the cell mate in Zone A.
II.

(Doc. 4 at 6)

Legal Standard

Summary judgment is not a substitute for a trial when facts
material to the Court’s ultimate resolution of the case are in
dispute.

It may be rendered only when appropriate evidentiary

materials, as described in Fed. R. Civ. P. 56(c), demonstrate the
5

absence of a material factual dispute and the moving party is
entitled to judgment as a matter of law.
Broad. Sys., Inc., 368 U.S. 464 (1962).

Poller v. Columbia
The moving party bears

the burden of demonstrating that no material facts are in
dispute, and the evidence submitted must be viewed in the light
most favorable to the nonmoving party.
Co., 398 U.S. 144 (1970).

Adickes v. S.H. Kress &

“[I]f the evidence is insufficient to

reasonably support a jury verdict in favor of the nonmoving
party, the motion for summary judgment will be granted.”

Cox v.

Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995)
(citation omitted).

Additionally, the Court must draw all

reasonable inferences from that evidence in favor of the
nonmoving party.
(1962).

United States v. Diebold, Inc., 369 U.S. 654

The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in support
of any material element of a claim or defense on which that party
would bear the burden of proof at trial, even if the moving party
has not submitted evidence to negate the existence of that
material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

Of

course, since “a party seeking summary judgment ... bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact,” Celotex, 477 U.S. at 323, the responding
party is only required to respond to those issues clearly
identified by the moving party as being subject to the motion.
It is with these standards in mind that the instant motions must
be decided.
III.

Defendant’s Motion for Summary Judgment

Ms. Workman raises three legal arguments in support of her
motion for summary judgment: (1) any claims made against her in
6

her individual capacity fail because Mr. McCune cannot establish
any constitutional or ADA violations; (2) any claims made against
her in her official capacity are barred by the Eleventh
Amendment; and (3) she is entitled to qualified immunity.

These

arguments will be addressed in turn below.
A.

Americans With Disabilities Act

Title II of the ADA prohibits a public entity, including
state prisons, from discriminating against a qualified individual
with a disability on account of that individual’s disability.

42

U.S.C. §12131 et seq; Pennsylvania Dept. of Corrections v.
Yeskey, 524 U.S. 206 (1998).

To establish a violation of Title

II of the ADA, a plaintiff must allege and show that (1) he has a
disability; (2) he is otherwise qualified to receive the benefit
or service at issue; and (3) he is being excluded from
participation in, being denied the benefit of, or being subjected
to discrimination in the provision of the services, programs, or
activities of the public entity because of his disability.
U.S.C.A. §12131(1).
purposes of the ADA.

42

State prisons are public entities for the
Yeskey, at 210.

In the case of sight impaired prisoners, inmates should be
provided with auxiliary aids and services such as “qualified
readers, taped texts, audio recordings, Brailled materials, large
print materials, or other effective methods of making visually
delivered materials available to individuals with visual
impairments.”

Mason v. Correctional Medical Services, Inc., 559

F.3d 880, 886 (8th Cir. 2009), citing 28 C.F.R. §35.104(2).

For

a plaintiff to state an ADA claim, he must allege that he has
been excluded from participating in or denied the benefits,
services, programs or activities available to other inmates.
Meade v. Michigan Dept. of Corrections, 2013 WL 890240 (W.D.
Mich. 2013).

In Meade, the court considered whether the prison

violated the ADA by failing to provide a blind inmate with
7

braille equipment or some type of audio format to review
documents prepared for his legal matters.

The court, denying

defendants’ motion to dismiss, concluded that the plaintiff had a
plausible ADA claim by alleging that he was denied equivalent
benefits available to other inmates at the institution, including
the ability to use a legal writer or braille translations.

Id.

Mr. McCune alleges that he was not provided with a brailler
while housed in Zone B at MaCI, although sighted inmates were
provided with typewriters.

As a condition of approving his

transfer to Zone B, Mr. McCune was required to essentially lose
all access to braillers.

Curiously, there is evidence on the

record that braillers were available in Zone B, but the parties
agree that Mr. McCune was not permitted to use them.

Ms. Workman

also denies telling Mr. McCune that he could receive a brailler
in Zone B if he obtained a donated one from an outside
organization.

Ms. Workman does not provide any specific reasons

as to her position in respect of braillers in Zone B, such as
being subject to undue hardship or an administrative or security
concern.

Instead, she relies on Mr. McCune’s agreement to forego

access to braillers in the Letter of Understanding as a condition
to his transfer to Zone B.

Mr. McCune asserts there were a

number of rights and privileges afforded to inmates housed in
Zone B that were not available in Zone A, but he does not provide
specifics as to these privileges.

Ms. Workman maintains that Mr.

McCune was afforded the same rights and privileges in Zone A as
other Level 1 inmates, but also does not provide specific
examples.

It is unclear from the record whether other reasonable

accommodations were made for Mr. McCune during the time that he
was not allowed access to braille equipment.
As the Court is obligated to analyze the facts available in
the light most favorable to the plaintiff, there is a genuine
issue of material fact as to whether Mr. McCune could
8

successfully pursue an ADA claim based on unequal treatment.

For

this reason, the Court will recommend denying Ms. Workman’s
motion for summary judgment as to the ADA claim.
B.

Section 1983 Claims

Title 42, §1983 of the United States Code provides a
mechanism for seeking redress for an alleged deprivation of a
litigant’s federal constitutional rights.

To establish a prima

facie claim under §1983, a plaintiff must satisfy two elements:
(1) that defendants acted under color of state law, and (2) that
defendants deprived plaintiff of a federal statutory or
constitutional right.

See, e.g., Flagg Bros. v. Brooks, 436 U.S.

149, 155 (1978); Searcy v. City of Dayton, 38 F.3d 282, 286 (6th
Cir. 1994); United of Omaha Life Ins. Co. v. Solomon, 960 F.2d
31, 33 (6th Cir. 1992) (per curiam).

Conclusory allegations are

insufficient to state a claim under §1983.

Rhodes v. Chapman,

452 U.S. 337 (1981).
Mr. McCune’s complaint alleges that his constitutional
rights were violated by Ms. Workman’s failure to arrange
accommodation for

his sight impairment, as well as for

retaliating against him for exercising his rights to file
internal grievances with the institution.

“[T]he treatment a

prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.”
Helling v. McKinney, 509 U.S. 25, 31 (1993).

Prison officials

have a duty to protect prisoners from violence at the hand of
other prisoners.

Farmer v. Brennan, 114 S.Ct. 1970, 1976 (1994).

However, every injury suffered by an inmate at the hands of
another does not amount to a violation of the assaulted inmate’s
constitutional rights.

The deprivation alleged must be

sufficiently serious, Wilson v. Seiter, 111 S.Ct. 2321, 2324
(1991), and the inmate must show that he is incarcerated under
conditions which pose a substantial risk of serious harm.
9

In

order to impose individual liability on a prison official, the
inmate must show that the official was deliberately indifferent
to a substantial risk of serious harm to an inmate.
McKinney, 113 S.Ct 2475, 2481 (1993).

Helling v.

There must be a showing

that the prison official was more than merely negligent, and
“must both be aware of the facts from which the inference could
be drawn that a substantial risk of harm exists, and he must also
draw the inference.” Harrison v. Ash, 539 F.3d 510, 518 (6th
Cir. 2008).
Mr. McCune contends that Ms. Workman knew that the inmate
with whom he was placed when he was transferred back to Zone A
was prone to violence, and she failed to take measures to protect
his safety.

However, Mr. McCune is unable to provide evidence

that Ms. Workman had knowledge of the violent nature of this
inmate or deliberately placed him into the cell with the other
inmate knowing that his safety was at risk.

In fact, when Mr.

McCune filed a grievance about the problems he was having with
that inmate Ms. Workman promptly arranged for him to be rehoused
with another inmate.

Mr. McCune was not housed with one of the

specific inmates that he requested, but it is well established
that an inmate does not have a constitutional right to choose a
particular cell mate, and that prison officials retain broad
discretion over “housing in general and cell assignments in
particular”.
2006).

Quick v. Mann, 170 Fed.Appx. 588, 590 (10th Cir.

Thus, the evidence provided by Mr. McCune fails to

establish that Ms. Workman’s actions violated his Eighth
Amendment rights.
Retaliation for the exercise of constitutional rights is
itself a violation of the First Amendment.

To state a

retaliation claim, a plaintiff must allege three elements: (1)
that he or she was engaged in protected conduct; (2) an adverse
action was taken against him or her that would deter a person of
10

ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the
plaintiff’s protected conduct.
378, 394 (6th Cir.).

Thaddeus-X v. Blatter, 175 F.3d

Retaliation claims must include a

“chronology of events from which retaliation may plausibly be
inferred.”

Ishaaq v. Compton, 900 F.Supp. 935 (W.D. Tenn. 1995)

(quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)).
The retaliatory filing of a disciplinary charge or other negative
actions strike at the heart of an inmate’s constitutional right
to seek redress of grievances, so the injury to this right
inheres in the retaliatory conduct itself.

Id.

“An inmate has

an undisputed First Amendment right to file grievances against
prison officials on his own behalf.”

Herron v. Harrison, 203

F.3d 410, 415 (6th Cir. 2000).
Mr. McCune also claims that Ms. Workman retaliated against
him for exercising his right to file grievances and to seek
assistance from outside organizations for his sight impairment,
both by transferring him to Zone A and by housing him with the
inmate who assaulted him.

Ms. Workman argues that Mr. McCune was

not retaliated against, but was moved back to Zone A so that he
could access a brailler and re-join the Program.

There is no

dispute that Mr. McCune’s security status remained Level 1 at all
relevant times.

Ms. Workman states that he was afforded all

rights and privileges that other Level 1 inmates are provided.
Mr. McCune disputes this, but does not provide specific examples
of the rights he had in Zone B as compared to Zone A, other than
the fact that he was not permitted access to a brailler in Zone
B.
The facts in this case establish that Mr. McCune did engage
in the protected conduct of filing institutional grievances and
seeking accommodation for his vision impairment.

It must next be

determined whether Ms. Workman’s actions would deter a person of
11

ordinary firmness from continuing to engage in that conduct and
whether her actions were motivated at least in part by Mr.
McCune’s engagement in that protected conduct.

As discussed

above, despite Mr. McCune’s conclusory statement that he was
denied certain rights and privileges by being transferred to Zone
A, the transfer actually resulted in him having access to the
braillers that he was seeking.

His security status remained

Level 1, and he does not provide any specific information on what
rights and privileges he was denied by being housed in Zone A.
Moreover, the Court fails to see a causal link between the
exercise of his rights and his assignment to a cell mate who
turned out to be violent.

When he filed a grievance because of

the problems he was having with the cell mate it was promptly
resolved.

Mr. McCune does not allege that he was not reasonably

accommodated at all for his disability, but that he was not
accommodated in accordance with his specific request for access
to a brailler.

Even accepting Mr. McCune’s version of the

events, Ms. Workman’s actions did not rise to the level of a
Constitutional violation.

Thus, the Court recommends granting

summary judgment in favor of Ms. Workman regarding Mr. McCune’s
§1983 claims.
C.

Eleventh Amendment Immunity

Mr. McCune does not specify in his complaint whether he is
suing Ms. Workman in her official or individual capacity.

To the

extent that she is being sued in her official capacity, Ms.
Workman argues that all of Mr. McCune’s claims are barred by
Eleventh Amendment Immunity. (Doc. 22 at 4-5).

The Eleventh

Amendment bars a suit brought in federal court against a state
and its agencies unless the state has waived its sovereign
immunity or otherwise consented to be sued.

Pennhurst State Sch.

& Hosp. V. Halderman, 104 S.Ct. 900, 908 (1984).

It is well

settled that the State of Ohio has not waived its immunity for
12

money damages, except to the extent that such claims are allowed
to be brought in the Court of Claims of Ohio.

Lee Testing &

Engineering, Inc. v. Ohio Dept. of Transp., 855 F.Supp.2d 722
(S.D. Ohio 2012).

Notwithstanding, in some circumstances

Congress may abrogate sovereign immunity by enacting appropriate
legislation.

Virginia Office for Protection and Advocacy v.

Stewart, 131 S.Ct. 1632, 1638 (2011).
Ms. Workman is correct that government officials sued in
their official capacities pursuant to §1983 are entitled to
Eleventh Amendment sovereign immunity.
State Police, 109 S.Ct. 2304 (1989).

Will v. Michigan Dept. of
However, it is necessary to

distinguish between the §1983 claim alleging violation of
constitutional rights and the ADA claim brought by Mr. McCune.
Title II of the ADA does not provide for lawsuits against a
public official acting in his or her individual capacity.

“[T]he

proper defendant under a Title II claim is the public entity or
an official acting in his official capacity.”

Id.

In the

present case, Mr. McCune’s ADA claim against Ms. Workman in her
official capacity is actually against the State of Ohio as the
real party in interest.

See Mingus v. Butler, 591 F.3d 454, 482

(6th Cir. 2010).
The power of Congress under Section 5 of the Fourteenth
Amendment to enforce its provisions includes the power to
abrogate state sovereign immunity by authorizing private lawsuits
for damages against the states for violations of that Amendment.
United States v. Georgia, 126 S.Ct. 877, 882 (2006).

The Supreme

Court has held that Title II of the ADA validly abrogates state
sovereign immunity and permits a private cause of action for
damages against a state for conduct that violates the Fourteenth
Amendment.

Id.

The Georgia court further clarified that a

flexible standard should be applied to determine whether an ADA
plaintiff can overcome a defendant’s defense of Eleventh
13

Amendment immunity.

This should be determined on a “claim-by-

claim basis, (1) which aspects of the State’s alleged conduct
violated Title II; (2) to what extent such misconduct also
violated the Fourteenth Amendment; and (3) insofar as such
misconduct violated Title II but did not violate the Fourteenth
Amendment, whether Congress’s purported abrogation of sovereign
immunity as to that class of conduct is nevertheless valid.”
(Emphasis added).

Id. at 883.

The Sixth Circuit considers this

test to be required when analyzing whether a State has sovereign
immunity in Title II cases.

Mingus v. Butler, 591 F.3d 474, 482

(6th Cir. 2010).
In simple terms, Mr. McCune’s ADA claim arises from his
allegation that Ms. Workman’s conduct was discriminatory towards
him on the basis of his disability.

Construing the record in the

light most favorable to Mr. McCune, he was housed in Zone A,
designated for higher security level inmates which offered fewer
rights and privileges on the sole basis of his sight impairment.
When he sought to be re-housed in Zone B, he was only allowed to
do so if he agreed to give up his access to a brailler.

However,

all sighted inmates in either zone were permitted access to paper
and a typewriter.

According to Mr. McCune, despite the

availability of braillers in Zone B he was denied access to them.
Ms. Workman denies telling Mr. McCune that he could seek a
donated brailler from an outside entity, and Mr. McCune claims
that when he did so he was retaliated against by being moved back
to Zone A and housed with a violent cell mate.

These

allegations, if true, could form a valid Title II claim under the
ADA, so Mr. McCune’s claim passes the first prong of the Georgia
test.

In respect of the second prong of the Georgia test, the

Court has already recommended summary judgment in favor of Ms.
Workman on the constitutional claims.

Thus, the Court must

consider for this particular case whether Congress’s purported
14

abrogation of sovereign immunity as to that class of conduct is
nevertheless valid.
Because the disabled are not a suspect class for equal
protection purposes, a plaintiff must identify a due process or
rational-basis type equal protection violation to satisfy this
prong of the Georgia test.

See Babcock v. Michigan, 2014 WL

2440065 (E.D. Mich. 2014) citing Popovich v. Cuyahoga Cnty. Court
of Common Pleas, 276 F.3d 808, 811 (6th Cir. 2002).

In the

present case, the parties agree that Mr. McCune was denied access
to a brailler during his entire time while housed in Zone B, and
that his transfer to Zone B was conditional upon him agreeing to
forego his access to a brailler.

The parties also agree that his

access to braillers was denied as a direct result of Ms.
Workman’s instruction.

There is a question of fact as to whether

Level 1 inmates were provided the same rights and privileges as
other Level 1 inmates while housed in Zone A, where most inmates
were classified as Level 2.

While it appears that Mr. McCune now

has access to braillers in Zone B, there was a period of time
where he was essentially forced to choose between access to
braillers or being housed in a higher security section of the
prison.

Viewing these facts in the light most favorable to Mr.

McCune, this would be the type of equal protection claim that
Congress intended to be actionable under Title II against the
State of Ohio.
For these reasons, the Court will recommend granting
judgment as a matter of law in favor of Ms. Workman on the §1983
claim brought against her in her official capacity on the basis
of Eleventh Amendment immunity.

The Court will recommend that

Ms. Workman’s motion for summary judgment be denied as to the ADA
claim.
D.

Qualified Immunity

15

Because the Court recommends granting judgment as a matter
of law in respect of Mr. McCune’s §1983 claims, and because
qualified immunity is not applicable to his ADA claims, it is not
necessary for the Court to analyze Ms. Workman’s affirmative
defense of qualified immunity.
IV.

Recommendation

For the reasons set out above, the Court recommends that the
motion for summary judgment (Doc. 22) be granted in part and
denied in part.

It is recommended that the motion be granted as

to Plaintiff’s §1983 claims against Ms. Workman and denied as to
Plaintiff’s claim under the Americans

With Disabilities Act.

PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of this Report, file and serve on
all parties written objections to those specific proposed
findings or recommendations to which objection is made, together
with supporting authority for the objection(s).

A judge of this

Court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made.

Upon proper objections, a judge of this Court

may accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence or
may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, an

also operates as a waiver of the

right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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/s/ Terence P. Kemp
United States Magistrate Judge

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