WAREHAM v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al
Filing
130
Memorandum Order. Plaintiff's Exhibit Number 7 is admissible and Defendant's objection thereto is overruled. The scope of the trial includes only an ADA claim against the DOC, but Plaintiff may present other evidence of disability discrimination (not being permitted to go to the yard/gym. This filing was sent via first class mail this date, to Plaintiff at his address of record. Signed by Judge Arthur J. Schwab on 8-26-14. (nam)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH WAREHAM,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 2:13-cv-0188
United States Court Judge
Arthur J. Schwab
Memorandum Order
This matter is scheduled for trial on September 15, 2014. On August 22, 2014, at the
Pretrial/Show Cause Hearing, the Court personally went through each of the exhibits/witness
lists of the parties and asked for argument thereon regarding the parties positions on the
admissibility thereof. The Court ruled on all but one exhibit proposed by Plaintiff, that being
Exhibit Number 7. The admissibility of Exhibit Number 7 is the only remaining matter to be
resolved on the motions in limine.
Plaintiff’s Exhibit Number 7 is a letter, dated August 6, 2011, that he purportedly sent to
a prison official describing an injury he allegedly sustained as a result of the fall he had on the
stairway on August 1, 2011, after the “cell-feed order,” which is the subject of his Title II ADA
claim, was removed. Defendant objects on the basis of relevance under Fed. R. Evid. 401 and
that the prejudicial value outweighs its probative effect under Fed. R. Evid. 403. The Court finds
that since Plaintiff will likely argue that this injury occurred arguably as a result of the removal
of the cell-feed order, and therefore could tend to support Plaintiff’s claim for ADA
discrimination, the Court finds this letter (but not the header page identifying the exhibit) to be
relevant evidence. Further, after conducting a balancing analysis, as required under Rule 403,
the Court does not find that the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence. Accordingly, Plaintiff’s Exhibit Number 7
will be admitted, and Defendant’s objection (at doc. no. 124) is OVERRULED.
Finally, at the Show Cause Hearing/Pretrial Conference, after Plaintiff expressed some
concerns over the scope of this trial, the Court stated that it would reiterate in a subsequent Order
which claims are left in this case. By the Report and Recommendation of United States
Magistrate Judge Cynthia Reed Eddy, of 6/23/14 (doc. no. 101), it was recommended that all
claims of Plaintiff, with the sole exception of Title II claim for violation of the ADA, be
dismissed. So that there is no confusion, the text of the Report and Recommendation regarding
the ADA claim, is quoted as follows:
Plaintiff brings a claim against the DOC for violation of his rights under Title II of
the ADA. The ADA is applicable only to “public entities,” such as state prisons.
See Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 210 (1998);
United States v. Georgia, 546 U.S. 151, 154 (2006). The ADA provides, in
relevant part, that “no qualified individual with a disability 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 Title II of the ADA validly
abrogates sovereign immunity as to state conduct that actually violates the
Constitution. United States v. Georgia, 546 U.S. 151, 159 (2006). To state a valid
ADA claim, a plaintiff must show that “(1) he is a qualified individual (2) with a
disability, (3) he was excluded from participation in or denied the benefits of the
services, programs, or activities of a public entity, or was subjected to
discrimination by any such entity, (4) by reason of his disability.” Bowers v. Nat’l
Collegiate Athletic Ass’n, 475 F.3d 524, 553 n.32 (3d Cir. 2007).
A disability, as defined by the ADA, is “a physical or mental impairment that
substantially limits one or more major life activities of such individual; [or] a
record of such an impairment.” 42 U.S.C. § 12102(1). The ADA specifically
mentions “walking” as a “major life activity” for the purposes of the statute. §
12102(2)(A).
The summary judgment medical record evidence is permeated with evidence of a
substantial impairment of Plaintiff’s ability to walk, (see ECF Nos. 6, 85, 87-1, 96,
97). The Court finds, therefore, that a reasonable jury could find that Plaintiff has
a disability as contemplated by the ADA.
Plaintiff alleges throughout his Complaint (ECF No. 6) that his ability to walk is
significantly impeded by his disability. Defendants agree that Plaintiff’s
ambulation was significantly impaired (ECF No. 85, pages 3-10). The Court notes
that although inclusion on the “Inmates with Disabilities List” does not mean,
alone, that Plaintiff “met the legal criteria for ‘disabled’ under the ADA,” both
parties agree that his condition significantly limited a major life function: namely
walking.
Next, Plaintiff must show that he was otherwise qualified to receive the benefits of
the public services, programs, or activities. A qualified individual with a disability
is “an individual with a disability who, with or without reasonable modifications .
. . meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” 42 U.S.C. §
12131. Courts have construed “the benefits of a program or activity” to include the
general rehabilitative and correctional services of state prisons, and have therefore
required prisons to make “reasonable accommodations” for an inmate's physical
disabilities in their day-to-day operations in order to comply with the mandates of
the ADA. Muhammad v. N.J. Dep’t of Corr., 645 F. Supp. 2d 299, 314 (D.N.J.
2008) (denying a Department of Corrections motion for summary judgment
because a reasonable jury could find that failure to provide a reasonable
accommodation for an inmate with a disability may be a violation of the ADA).
Plaintiff alleges in part, that as a result of the DOC’s conduct, he was
deprived of a number of meals, exercise, and recreation services to which he
was entitled by virtue of his membership in the inmate population at SCIGreensburg (ECF No. 6, ¶¶ 32, 36, 46, 69). The DOC does not deny that
Plaintiff was entitled to meals, nor does it report any reason why he was not
qualified to participate in other prison services, such as exercise and access to
the yard. The Court finds that a reasonable jury could find that Plaintiff is a
“qualified individual” as contemplated by the ADA.
Third, Plaintiff must show that he was “excluded from participation in or denied
the benefits of the services, programs, or activities of a public entity.” Bowers, 475
F. 3d at 553 n. 32. Plaintiff alleges that he “missed meals in the chow hall and
avoided going to the yard at times rather than suffering through the pain and
difficulty of the stairways.” (ECF No. 6 ¶ 32; ECF No. 97 page 4). “Plaintiff
missed some meals he otherwise would have eaten. But the significant amount of
additional times that he climbed up and down the stairways for meals soon
rendered [him] . . . very weak.” (ECF No. 6 ¶ 69). On a number of occasions,
Plaintiff was placed on administrative “cell feed.” (ECF No. 85 pages 5 and 7;
ECF No. 6 ¶ 66). However, cell feed was repeatedly removed, on at least one
occasion because Plaintiff walked in order to “complain about not receiving a tray
in his cell. . . . After that incident, the PA and Dr. Mollura discontinued the cell
feed order.” (ECF No. 85 page 8). Despite the DOC’s suggestion that the cell feed
removal decision was made in part because “[t]he RN Supervisor noted that Mr.
Wareham was ambulating with a steady gate using his cane,” the Court finds,
based on the summary judgment record, that a reasonable jury could find that
Plaintiff was either excluded from participation in or denied the benefits of certain
services.
Finally, the Court finds that the summary judgment record is sufficient for a
reasonable jury to find that Plaintiff was denied the benefits of services “by reason
of his disability.” Bowers, 475 F. 3d at 553 n. 32. As noted above, Plaintiff alleges
that he “missed some meals and some yard-outs that he would have went to had it
not been for the pain and difficulty he would have had to endure from the double
flights of long and steep stairways.” (ECF No. 97 page 4-5). Though the DOC
placed Plaintiff on cell feed as an accommodation, Plaintiff was removed from cell
feed on numerous occasions (ECF No. 6, ¶ 72, 67, 63; ECF No. 85 page 8).
Plaintiff alleges that it was when cell feed was not administered that he missed
meals and services (ECF No. 6 ¶ 69). A reasonable jury could conclude that cell
feed is a reasonable modification or accommodation, and that the DOC, by failing
to provide such reasonable accommodations, denied Plaintiff meals and other
entitlements. Muhammad v. N.J. Dep’t of Corr., 645 F. Supp. 2d 299, 314 (D.N.J.
2008) (denying a Department of Corrections motion for summary judgment
because a reasonable jury could find that failure to provide a reasonable
accommodation for an inmate with a disability may be a violation of the ADA).
A jury could further find that on at least a few occasions, the Plaintiff was denied
the reasonable accommodation of “cell feed,” and was therefore excluded from
meals and other entitlements. On at least one occasion, revocation of cell feed was
the direct result of Plaintiff being compelled to physically walk to the dietary in
order to complain about not having his meal delivered (ECF No. 85 page 8). Mr.
Mazurkiewicz, in an Appeal Response dated September 22, 2011, told Plaintiff
that
You [Plaintiff] give every appearance of trying to place us into a ‘no win
situation’ with your behavior and medical conditions. When we attempted to
deliver your meals because of mobility, you insisted in walking to other parts of
the institution and would complain about your medical status.
(ECF No. 87-1 Exhibit 9 page 202). Despite Mr. Mazurkiewicz’s reasoning, a jury
could still find that cell feed would have been a reasonable accommodation for
Plaintiff, notwithstanding his trip to the dietary to make a complaint, or his
traversing the stairs to gain access to the yard.
It’s true that I sometimes go through the pain and difficulty of walking and
climbing up and down the stairways to go to the yard and gym. But, unlike the cell
feed cart that comes to the cell block anyway, there is no other way for me to go
the yard or gym . . . I go to the gym for self physical therapy. I use the rowing
machine and stationary bicycle for range of motion and to fend off the atrophy and
to strengthen my lower extremity as best I can. (Plaintiff’s letter to Dr. Mollura
and Ms. Kwisnek, July 18, 2011. ECF No. 87-1 Exhibit 13, page 221).
Failure to afford Plaintiff with a reasonable accommodation in order to provide
him with meals is sufficient to state a claim under Title II of the ADA. See
Bowers, 475 F.3d at 553. See also, Henrietta D. v. Bloomberg, 331 F.3d 261, 277
(2d Cir. 2003) (finding that “obstacles to access . . . prevent[ing] [plaintiffs] from
accessing public services insofar as the plaintiffs face challenges that make it
impossible for them meaningfully to access services” is sufficient to state a claim
under the ADA).
For these reasons, the Court finds that Plaintiff has stated a valid ADA claim
based on the record that is sufficient to survive a motion for summary judgment.
Doc. No. 101 (footnotes omitted) (emphasis added).
This Court, by Order of July 15, 2014, adopted the Report and Recommendation of
Magistrate Judge Eddy, hearing no objection thereto. The Court finds that nothing in the Report and
Recommendation precludes Plaintiff from presenting other evidence of disability discrimination, in
addition to the removal of the cell-feed order. This Court finds that Plaintiff may present other
evidence of disability discrimination as listed above, and as referenced during the Report and
Recommendation (not being permitted to go to the yard and gym by reason of his alleged disability).
The trial of this matter is, however, limited to Plaintiff’s ADA claim under Title II against the DOC.
SO ORDERED this 26th day of August, 2014.
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc: All Registered ECF Counsel and Parties
JOSEPH WAREHAM
108 James Avenue
Interlachen, FL 32148-4104
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?