Nolan v. Hamidullah et al

Filing 120

ORDER finding as moot 99 Motion for Settlement; finding as moot 103 Motion to Stay; finding as moot 114 Motion to Strike. Signed by Honorable Joseph F Anderson, Jr on 12/06/2010.(bshr, )

N o l a n v. Hamidullah et al

D o c . 120

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA F L O R E N C E DIVISION M ic h a e l Nolan, ) ) P l a in tif f , ) ) vs. ) ) Matthew Hamidullah; M.L. Rivera; ) Kathryn Mack; Alberto Gonzales; ) M ic h a el B. Mukasey; Harley G. Lappin; ) R a y Holt; Harrell Watts; the United ) S ta te s of America; the Bureau of ) P r is o n s ; and John Doe, ) ) D e f e n d a n ts . ) ________________________________ ) C /A No.: 4:07-1141-JFA-TER

ORDER

T h is matter comes before the Court on the plaintiff's motion to enforce the settlement a g r e e m e n t, the defendants' motion to stay discovery or for a protective order, and the p la in tif f 's motion to strike portions of Ivonne M. Benet-Rivera's affidavit and to allow d is c o v e ry. I. F a c tu a l and Procedural Background T h e plaintiff is an inmate in Devens, Massachusetts at the Federal Medical Center (" F M C Devens"). He filed a complaint on April 30, 2007 pro se but was later appointed c o u n se l to represent him in his suit against the defendants for alleged violations of his c o n stitu tio n a l rights. The plaintiff, who suffers from glaucoma, claimed that the defendants re f u se d to accommodate his impaired vision while he was incarcerated and violated his E ig h th and Fourteenth Amendment rights, his due process rights, and Section 504 of the

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R e h a b ilita tio n Act of 1973. A. S e ttle m e n t Agreement

T h e parties reached a compromise, and on December 16, 2009, the Court granted the p a rtie s' joint motion to approve a settlement agreement. (ECF No. 96). The Court retained ju ris d ic tio n until the earlier of December 16, 2012 or the plaintiff's release date. In the " S tip u la tio n for Compromise Settlement," the individual defendants were dismissed from the su it with prejudice, and the United States was left as the sole remaining defendant. In a d d itio n to other provisions, the settlement agreement included a provision that the Bureau o f Prisons would furnish the plaintiff with a qualified Braille instructor who would work out a schedule of lessons and give an affidavit to plaintiff's counsel that the schedule was a d e q u a te to teach the plaintiff the first level of Braille prior to his release date. Additionally, th e Bureau of Prisons agreed to provide the plaintiff with "sight challenged independent liv in g skills instruction/training" prior to his release. The settlement agreement stated that " [ t]h e Federal Bureau of Prisons has currently enrolled the Plaintiff with the Massachusetts C o m m is s io n for the Blind (MCB)" for this training. (ECF No. 94-1). In response to an inquiry as to the progress of the plaintiff's training, the Bureau of P r is o n s sent plaintiff's counsel the affidavit of Ivonne M. Benet-Rivera on March 29, 2010. M s. Benet-Rivera is the Supervisor of Education at FMC Devens. She stated in her affidavit th a t the plaintiff was "registered and participating in the Braille Literacy program," which is "provided by a qualified community volunteer who visits the institution twice a month."

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(E C F No. 99-5). Because this affidavit was not provided by a qualified Braille instructor as re q u ire d by the settlement agreement, the plaintiff's counsel wrote to the Bureau of Prisons o n April 5, 2010 to inform them that he considered the affidavit to be insufficient and not in c o m p lia n c e with the settlement agreement. The Bureau of Prisons responded that the c o m m u n it y volunteer was uncomfortable signing an affidavit and becoming involved in litig a tio n . On June 15, 2010, the plaintiff's counsel filed a motion to enforce the settlement a g re e m e n t because he had not received an affidavit from a qualified Braille instructor and b e c au s e he had learned that the plaintiff was not and had never been enrolled in a program that taught independent living skills. (ECF No. 99). B. B ra ille Instructor Affidavit

The Government responded to the plaintiff's motion on July 9, 2010 arguing that it h a d complied in good faith. (ECF No. 102). It was unable to get an affidavit from the v o lu n te e r Braille instructor because she was unwilling to get involved in litigation. Because s h e was not a federal employee, the Government could not demand that she supply an a f f id a v it. Therefore, it provided one in good faith from Ivonne M. Benet-Rivera who had p e rs o n a l knowledge of the volunteer's qualifications and teaching plan. To alleviate the plaintiff's counsel's concerns, the Court spoke directly with the v o lu n te e r Braille instructor about the plaintiff's progress. In an order dated August 19, 2010, th is Court found that the defendants had substantially complied with the settlement

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ag ree m en t regarding the plaintiff's Braille instruction. (ECF No. 110). C. I n d e p e n d e n t Living Skills Training

The issue of the plaintiff's independent living skills instruction remains. The plaintiff a rg u e s that it was a misrepresentation by the Government to state in the settlement agreement th a t the plaintiff was already enrolled in a program to teach him independent living skills w h e n he was not. The plaintiff's counsel has provided the Court with an affidavit from Joan G o o d lig h t, a Social Rehabilitation Supervisor for MCB, which says that on October 16, 2009, tw o months before the approval of the settlement agreement, she went to FMC Devens to p e rf o rm an assessment of the plaintiff. (ECF No. 106). At that meeting, a prison

re p re se n tativ e told Ms. Goodlight that the plaintiff would not have access to certain e q u ip m e n t and areas in the prison that would be necessary for training purposes. Ms. G o o d lig h t states that she did not hear from FMC Devens again regarding the plaintiff, and th e case file was closed on November 16, 2009, one month before the settlement agreement w a s signed. The Government's counsel alleges that it "believed at the time of executing the A g re e m e n t that Plaintiff was enrolled in MCB [Massachusetts Commission for the Blind] p ro g ra m s " and that it did not knowingly make a misrepresentation to the Court. (ECF No. 1 0 2 ). After the settlement agreement was executed and the plaintiff filed the motion to e n f o rc e it, the Government's counsel was told that MCB representatives interviewed the p la in tif f and determined that it would be difficult logistically to train the plaintiff while he

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w a s in prison. MCB informed the plaintiff that it could help him after his release. At a h e a rin g on August 2, 2010, counsel for the Government indicated that confusion may have o c c u rre d because the plaintiff was "registered" with MCB at the time of the assessment, but h e was not "enrolled" in an actual program. On August 19, 2010, the Court asked the Government to provide an affidavit from a B u re a u of Prisons official explaining the status of the plaintiff's life skill training. (ECF No. 1 0 9 ). On September 9, 2010, the Government submitted a declaration from Ivonne M. B e n e t-R iv e ra . (ECF No. 113-2). In addition to indicating that she suspected the plaintiff of m a lin g e rin g , the declaration outlined the services and programs available to inmates with lim ite d sight in the prison. Although she was not present when MCB came to FMC Devens to assess the plaintiff, it was her understanding that MCB was unable to help the plaintiff w h ile he was incarcerated. Following the 2009 assessment, MCB never requested access to c e rta in prison areas for the purpose of training the plaintiff, but she was aware of another M C B assessment that was to take place in the near future. In the plaintiff's motion to strike p o r t i o n s of the declaration, he takes issue with the implication that he is not actually blind a n d that MCB is somehow responsible for causing the Bureau of Prisons to misrepresent the p lain tiff 's training status. (ECF No. 114). D u rin g a conference call with counsel for the parties on December 2, 2010, the Court w a s informed that MCB is currently making visits to the prison and instructing the plaintiff o n how to function outside of the prison with limited sight. It was indicated that this training

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w o u ld continue for as long as the plaintiff needed it or until he is released from prison. At this point, all parties agree that the plaintiff is receiving a sufficient level of life s k ills training. The plaintiff contends that this cooperation from the Bureau of Prisons has c o m e months too late and that he has suffered damages as a result. Although the prison was n o t as diligent as it could have been in making sure that the provisions of the settlement a g re e m e n t were properly implemented earlier, the plaintiff is now receiving the training he b a rg a in e d for and will be prepared to function with his condition outside of prison upon his r e le a se . II. C o n c lu s io n Because all provisions of the settlement agreement are now being adhered to, the C o u r t finds that the plaintiff's motion to enforce the settlement agreement is moot. T h e re f o re , the defendants' motion to stay discovery or for a protective order and the p la in tif f 's motion to strike portions of Ivonne M. Benet-Rivera's affidavit and to allow d is c o v e ry are also moot. IT IS SO ORDERED.

D ec em b er 6, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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