Sims v. Clarke et al

Filing 43

MEMORANDUM OPINION. Signed by Judge Elizabeth K. Dillon on 3/31/2019. (bwd)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
WILLIAM T. SIMS,
Plaintiff,
v.
HAROLD CLARKE, et al.,
Defendants.

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Civil Action No. 7:18-cv-00014
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
William T. Sims, a Virginia inmate proceeding pro se, filed this civil action alleging that
the defendants violated his rights under Title II of the Americans with Disabilities Act (ADA).1
Defendants filed a motion to dismiss, and this matter is ripe for disposition. For the reasons
stated herein, the court grants in part and denies in part defendants’ motion.
I. BACKGROUND
Sims alleges that prior to arriving at Green Rock Correctional Center (Green Rock) on
August 25, 2016, he suffered multiple injuries which caused him to have one leg amputated at
the thigh and caused his confinement to a wheelchair. Sims claims that on or about December 1,
2016, he went on a hunger strike after he had been denied “access to reasonable cell
accommodations, exercise equipment, prostheses, and unencumbered wheelchair accessible
showers.”2

Consequently, Sims was placed in Green Rock’s segregation unit. Sims alleges that

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The court notes that Sims filed a letter which was docketed as “Additional Evidence.” See Dkt. No. 41.
In the letter, Sims states that in retaliation for having filed this action, his religious rights are being violated with
regard to prayer oils. However, these allegations do not relate to Sims’ ADA claims in this action. Accordingly, the
court will not consider this letter in adjudicating this case. The court notes that Sims is already pursuing claims
concerning religious prayer oils in Civil Action No. 7:18cv401.
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With regard to showers, Sims alleges that they lack slip mats and that there is molding at the floor of the
door to the shower that “dangerous[ly]” hinders his wheelchair access. (Compl. ¶ 25, Dkt. No. 1, Informal Compl.,
Exh. J, Dkt. No. 21-1, 22.)

the cell in which he was placed was not “handicapped equipped or accessible” because it did not
have appropriate hand rails or “adequate spacing.” (Am. Compl. ¶¶ 15, 17-20, 39, Dkt. No. 21.)
On or about December 5, 2016, Sims saw Warden Davis and Major Northup in the
segregation unit and advised them about his issues with his cell. Later, while attempting to use
the toilet in his cell, Sims’ knee “gave out” and he fell backwards “directly on his buttocks and
spine area,” unable to catch himself or brace his fall “because there was no hand rail available
with which [Sims could] balance himself.” An officer in the unit noticed that Sims had fallen
and reported the fall to the medical unit. Thereafter, an officer and a nurse picked Sims up off
the floor and placed him back in his wheelchair. (Am. Compl. ¶¶ 19-21, Dkt. No. 21.)
Sims complained to medical staff about numbness in both of his arms and hands
following the fall. However, Sims was never seen by Dr. Wang, who was on duty at that time.
Sims also was not taken to a handicapped equipped or accessible cell. Instead, Sims was given a
“regular dose” of Neurontin, a pain medication, and left in the segregation cell for approximately
six hours. Later that day, Sims was moved to the infirmary, where there was a hand rail on the
wall near the toilet. However, due to the positioning of the bed relative to the toilet, the toilet
was not accessible by wheelchair. (Am. Compl. ¶¶ 22-23, Dkt. No. 21.)
Sims agreed to end his hunger strike on December 5, 2016, in exchange for Green Rock’s
administration agreeing to hold a meeting to discuss Sims’ ADA and medical grievances. At the
first meeting on December 10, 2016, Qualified Mental Health Professional (QMHP) Schneider
and Institutional Program Manager Bateman, both “members of the executive team, representing
Warden Davis, Major Northup, and [Nurse] Cobbs,” met with Sims to address his complaints
about “unreasonably small cells,”3 lack of shower slip mats, floor molding that hindered

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Sims alleges that there is twenty-five square feet of “unoccupied space” in his cell which he shares with
another inmate.
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wheelchair access to showers, Sims’ weight gain due to lack of “exercise equipment for the
disabled,” and inadequate mattress and bedding “for his disability.” A second meeting was held
on January 10, 2017, between Sims and QMHP Schneider, Major Northup, Head Nurse Mays,
Housing Lt. Childress, Nurse Cobbs, and Mrs. Shepard, to address Green Rock’s “failure to
adequately address the issues from the first meeting in a meaningful way.” (Am. Compl. ¶¶ 2427, Dkt. No. 21; Mem., Pl.’s Exh. A., Dkt. No. 21-1, 1; Offender Req., Pl.’s Exh. B, Dkt. No. 211, 2.)
Following diagnostic tests on April 7, 2017, an MRI verified the existence of spinal
damage, and the MRI and x-rays showed “large amounts of stool” built up in Sims’ colon. Sims
states that the spinal damage and stool buildup were aggravated by his immobility and lack of
reasonable access to prostheses and exercise equipment. On August 10, 2017, a nerve test
revealed nerve damage that Sims claims he suffered as a result of the May 6, 2017 fall, which
remained untreated. Further, Sims alleges that due to his lack of access to exercise equipment,
he gained approximately sixty-nine pounds from August 25, 2016, to April 2, 2018, while at
Green Rock. (Am. Compl. ¶¶ 30-32, Dkt. No. 21.)
On May 30, 2017, Sims filed an informal complaint about his difficulties accessing the
showers. On June 6, 2017, Unit Manager Lovern responded to the informal complaint by
indicating that he had referred the matter to the safety officer and was awaiting a response.
(Informal Compl., Exh. J, Dkt. No. 21-1, 23; Resp. Informal Compl., Exh. I, Dkt. No. 21-1, 24.)
Sims argues that, as an amputee and wheelchair user, he has been denied a cell of
“reasonable size,” accessibility, and with adequate safety rails to accommodate his disability. He
also argues that the defendants have failed to properly install or maintain exercise equipment for
disabled offenders who are wheelchair users, while “similarly situated offenders at Deerfield

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Correctional Center,” a facility where Sims is not housed, have access to “state of the art exercise
equipment for the disabled.” Finally, defendants have failed to make “reasonable
accommodations” for Sims to be “granted a prosthetic leg,” and he is the only amputee housed at
Green Rock who does not have a prosthetic limb. (Am. Compl. ¶¶ 36-40, Dkt. No. 21.)
As defendants, Sims names Henry Ponton, Melvin Davis, Barry Marano, Christopher
Lovern, Dr. Lawrence Wang, and Teresa Cobbs. Henry Ponton is the Regional Director of the
Virginia Department of Corrections (VDOC) and is “legally responsible for the overall operation
of all prisons in the western region [of Virginia], including Green Rock [].” Melvin Davis is the
Warden of Green Rock and is “legally responsible for the operation of the prison and for the
welfare of all inmates in that facility.” Barry Marano is the ADA Coordinator of the VDOC and
is “legally responsible for the welfare of all inmates with a disability in the Department.”
Christopher Lovern is a Unit Manager and the on-site ADA Facilitator for A-Unit at Green Rock
and is “legally responsible for the welfare of all inmates with disabilities in that prison.” Dr.
Lawrence Wang is the medical doctor at Green Rock and is “legally responsible for the medical
treatment and managed care of all the inmates in that prison.” Teresa Cobbs is the “Registered
Chief Nurse Assistant” at Green Rock and is “legally responsible for the coordination of medical
appointments and treatment at the prison and outside facilities.” Sims sues each defendant in
their individual and official capacities. As relief, Sims seeks declaratory and injunctive relief as
well as punitive and compensatory damages. (Am. Compl. ¶¶ 44-47, Dkt. No. 21.)
II. DISCUSSION
A. Motion to Dismiss Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does

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not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering a Rule
12(b)(6) motion, a court must accept all factual allegations in the complaint as true and must
draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94
(2007). Legal conclusions in the guise of factual allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Although a complaint “does not need detailed factual allegations, a plaintiff’s obligation
to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of a cause of action’s elements will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted). “Factual allegations must
be enough to raise a right to relief above the speculative level,” id., with all the allegations in the
complaint taken as true and all reasonable inferences drawn in the plaintiff’s favor, Chao v.
Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6) does “not require
heightened fact pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. Consequently, “only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly,
550 U.S. at 556). A claim is plausible if the complaint contains “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged,”
and if there is “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.
In order to allow for the development of a potentially meritorious claim, federal courts
have an obligation to construe pro se pleadings liberally. See, e.g., Boag v. MacDougall, 454
U.S. 364, 365 (1982). Moreover, “[l]iberal construction of the pleadings is particularly
appropriate where . . . there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589

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F.3d 736, 738 (4th Cir. 2009). Nevertheless, “[p]rinciples requiring generous construction of pro
se complaints are not . . . without limits.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985). “A pro se plaintiff still must allege facts that state a cause of action.” Bracey v.
Buchanan, 55 F. Supp. 2d 416, 421 (E.D. Va. 1999).
B. ADA
Title II of the ADA states 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. A state prison is a “public entity” within the meaning of the ADA, and, as
such, Title II of the ADA is applicable to state prisons. Pa. Dep’t of Corr. v. Yeskey, 524 U.S.
206, 210 (1998); see also United States v. Georgia, 546 U.S. 151, 154 (2006). To state a claim
for violation of the ADA, the plaintiff must allege that (1) he has a disability, (2) he is otherwise
qualified to receive the benefits of a public service, program, or activity, and (3) he was excluded
from participation in or denied the benefits of such service, program, or activity, or otherwise
discriminated against, on the basis of his disability. Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).
A physical condition may qualify as a “disability” within the meaning of the ADA when
it “substantially limits one or more . . . major life activities.” 42 U.S.C. § 12102; 29 U.S.C.
§ 705(20)(B). Sims has sufficiently pled that he is disabled for purposes of the ADA.
A qualified individual is “an individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the participation in programs or activities

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provided by a public entity.” 42 U.S.C. § 12131. Sims also alleges facts sufficient to support a
prima facie case that he is qualified to receive the benefits of a public service, program, or
activity that other inmates receive.
What constitutes an exclusion or denial of benefits under the third element requires a
more fact-intensive and case-specific inquiry. Bane v. Va. Dep’t of Corr., Civil Action No. 7:12cv-159, 2012 U.S. Dist. LEXIS 182881, at *34, 2012 WL 6738274, at *11 (W.D. Va. Dec. 28,
2012). Under federal regulations, a public entity may not, on the basis of disability, deny a
qualified individual the opportunity to participate in or benefit from an aid, benefit, or service.
28 C.F.R. § 35.130(b)(1)(i). It may not afford an opportunity “that is not equal to that afforded
to others.” Id. § 35.130(b)(1)(ii). Nor may it provide an aid, benefit, or service that is not as
effective in affording equal opportunity to obtain the same result. Id. § 35.130(b)(1)(iii).
Additionally, “[a] public entity shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the basis of
disability, unless the public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity.” Id. § 35.130(b)(7); see also
id. § 35.150(a)(3); Tennessee v. Lane, 541 U.S. 509, 532 (2004) (“And in no event is the entity
required to undertake measures that would impose an undue financial or administrative burden,
threaten historic preservation interests, or effect a fundamental alteration in the nature of the
service.”). The regulations also specifically address correctional facilities. 28 C.F.R. § 35.152.
Unless an exception is appropriate, such facilities “shall not place inmates or detainees with
disabilities in facilities that do not offer the same programs as the facilities where they would
otherwise be housed.” Id. § 35.152(b)(2)(iii). Such facilities shall also “implement reasonable
policies, including physical modifications to additional cells in accordance with the 2010

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Standards, so as to ensure that each inmate with a disability is housed in a cell with the
accessible elements necessary to afford the inmate access to safe, appropriate housing.” Id.
§ 35.152(b)(3).
1. Individual liability
While the ADA protects state inmates while incarcerated, their available remedies are
limited. The Fourth Circuit has held that the ADA does not recognize a cause of action against
employees in their individual capacities. Baird v. Rose, 192 F.3d 462, 471 (4th Cir. 1999).
Accordingly, the court will grant defendants’ motion to dismiss as to Sims’ claims against the
defendants in their individual capacities.
2. Statute of limitations
Defendants argue that Sims’ claims are barred by the statute of limitations. “Title II of
the ADA does not contain a statute of limitations.” A Society Without a Name, for People
without a Home, Millennium Future-Present v. Va., 655 F.3d 342, 347 (4th Cir. 2011).
Accordingly, federal courts “borrow the state statute of limitations that applies to the most
analogous state-law claim.” Id. In Virginia, “the one-year limitations period in the Virginia
Disabilities Act applies to ADA claims brought in Virginia.” Id. at 348. Causes of action accrue
under federal law when the plaintiff “possesses sufficient facts about the harm done to him that
reasonable inquiry will reveal his cause of action.” Nasim v. Warden, Md. House of Corr., 64
F.3d 951, 955 (4th Cir. 1995). Consistent with that general principle, an ADA claim accrues and
the statute of limitations begins to run when the plaintiff knows or has reason to know of his
injury. A Society Without a Name, 655 F.3d at 347-48.
Generally, a statute of limitations argument is an affirmative defense, not properly raised
in a motion to dismiss pursuant to Rule 12(b)(6). See Fed. R. Civ. P. 8(c); Goodman v. Praxair,

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Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, “if all facts necessary to the affirmative
defense ‘clearly appear on the face of the complaint’” then the court may address the affirmative
defense pursuant to Rule 12(b)(6). Goodman, 494 F.3d at 464.
Defendants argue that Sims’ ADA claims accrued on August 25, 2016, and December 5,
2016, when he arrived at Green Rock and when he fell in his cell, respectively. And, Sims did
not file this action before April 2, 2018. However, defendants do not address whether Sims has
alleged a “continuing violation” of his rights, see DePaola v. Clarke, 884 F.3d 481, 486-87 (4th
Cir. 2018), or whether Sims was entitled to any tolling of the statute of limitations while he
exhausted administrative remedies, see Battle v. Ledford, 912 F.3d 708, 719 (4th Cir. 2019).
Further, it is not clear that Sims has provided his complete grievance record attached to his
amended complaint. Accordingly, the court does not have all the facts necessary to determine
the timeliness of Sims’ complaint and, therefore, will deny defendants’ motion to dismiss on this
basis, without prejudice to their opportunity to re-visit this issue in a motion for summary
judgment.
3. Defendants Dr. Wang and Nurse Cobbs
Sims claims against Dr. Wang and Nurse Cobbs fail to state an ADA claim. Sims
alleges, at most, that he is not receiving proper medical treatment from Dr. Wang and Nurse
Cobbs and that he should be incarcerated at an institution that is better equipped to handle his
medical needs. However, an inmate’s medical treatment, or lack of treatment, does not provide a
basis upon which to impose liability under the ADA. See Burger v. Bloomberg, 418 F.3d 882,
883 (8th Cir. 2005); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996); see also Spencer v.
Easter, 109 F. App’x 571, 573 (4th Cir. 2004). Accordingly, the court will grant defendants’
motion to dismiss as to Dr. Wang and Nurse Cobbs.

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4. Service, program, or activity
Sims alleges that the defendants’ ADA violations have denied him access to showers,
toilet facilities, exercise equipment, a prosthetic leg, and a larger cell. Access to showers, meals,
and toilet facilities are considered a “program or activity” within the meaning of the ADA. Jaros
v. Ill. Dep’t. of Corr., 684 F.3d 667, 672 (7th Cir. 2012) (noting that inmate access to showers
and meals is a program or activity); see Phipps v. Sheriff of Cook Cty., 681 F. Supp. 2d 899, 916
(N.D. Ill. 2009) (collecting cases holding that showering, toileting, and lavatory use were
regarded as programs and/or services under the ADA). Further, an inmate may establish an
ADA claim “if he is unable to access the prison’s exercise equipment.” Romero v. Bd. of Cty.
Comm’rs, 202 F. Supp. 3d 1223, 1265 (D.N.M. 2016) (citing Norfleet v. Walker, Case No. 09cv-347-JPG-PMF, 2011 U.S. Dist. LEXIS 29817, at *9, 2011 WL 1085266, at *3 (S.D. Ill.
March 22, 2011); see Castle v. Knowles, Case No. CV 1-08-01267-JAT, 2010 U.S. Dist. LEXIS
54860, at *6, 2010 WL 2232394, at *3 (E.D. Cal. June 2, 2010) (concluding that the plaintiff
stated an ADA claim as a result of “his inability to participate [in meaningful exercise] because
of the alleged violations of Title II”)). Moreover, Sims’ inability to access showers, toilet
facilities, and exercise equipment is based on his disability. However, Sims has not
demonstrated that defendants’ denial of a prosthetic leg or a larger cell was the denial of a prison
service, program, or activity or that the denial of these things was based on his disability.4
Accordingly, the court will grant defendants’ motion to dismiss as to Sims’ claims concerning
the prosthetic leg and cell size, but deny it as to his claims concerning showers, toilets, and
exercise equipment.

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The court notes that based on Sims’ recent filing, it appears he is now getting a prosthetic leg. See Dkt.

No. 42.
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5. Compensatory and punitive damages
Several judges of this court, including the undersigned, have recognized that Fed. R. Civ.
P. 12(b)(6) does not provide a vehicle to dismiss a portion of relief sought or a specific remedy,
but only provides for dismissal of a claim in its entirety. See Charles v. Front Royal Volunteer
Fire & Rescue Dep’t, Inc., 21 F. Supp. 3d 620, 629, 631-32 (W.D. Va. 2014) (Urbanski, J.);
Debord v. Grasham, 2014 WL 3734320, at *1 (W.D. Va. July 28, 2014) (Jones, J.) (agreeing
with Charles “that a Rule 12(b)(6) motion is a premature means to attack a request for punitive
damages, at least where such damages are theoretically recoverable under the applicable law”);
Downs v. Winchester Med. Ctr., 21 F. Supp. 3d 615, 620 (W.D. Va. 2014) (Urbanski, J.) (“the
question of punitive damages is not properly addressed on a motion to dismiss”); Meeks v.
Emiabata, No. 7:14-cv-534 (W.D. Va. April 13, 2015) (Dillon, J.) (same).
As explained in Charles, Rule 12(b)(6) is a vehicle to dismiss a “claim” in its entirety.
21 F. Supp. 3d at 629 (citation omitted). Thus, a court “should not dismiss a complaint so long
as it sets out facts sufficient to support a reasonable inference that the plaintiff is entitled to any
relief the court can grant, even if that relief is not specifically requested.” Id. (citations omitted)
(emphasis in Charles). This principle is reinforced “by Rule 54(c), which provides that a
prevailing party may obtain any relief to which he’s entitled even if he has not demanded such
relief in his pleadings.” Id. (quoting Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002)).
Applying those principles to the case before it, the Charles court denied as premature both: (1) a
motion to dismiss all claims for relief other than injunctive relief on a statutory claim; and (2) a
request for punitive damages in a separate count. Id. at 630, 632.
While punitive damages are not available under the ADA, Barnes v. Gorman, 536 U.S.
181, 189 (2002), and compensatory damages under the ADA require plaintiff to show intentional

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discrimination or deliberate indifference, see Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 548
(1999); see, e.g., Taylor v. Leggett, No. CV PX 16-115, 2017 U.S. Dist. LEXIS 36972, at *17,
2017 WL 1001281, at *6 (D. Md. Mar. 15, 2017), a Rule 12(b)(6) motion is not the properly
used to seek dismissal of the relief sought.
III. CONCLUSION
For the reasons stated herein, the court will grant in part and deny in part defendants’
motion to dismiss. The motion is granted as to Sims’ claims against defendants in their
individual capacities, as to his claims against Dr. Wang and Nurse Cobbs, and as to his claims
concerning a small cell and a prosthetic leg. The motion is denied as to Sims’ claims for
compensatory and punitive damages and injunctive relief against defendants Ponton, Davis,
Marano, and Lovern, in their official capacities, as to the denial of access to showers, toilets, and
exercise equipment. 5

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Sims recently filed a motion seeking preliminary injunctive relief. See Dkt. No. 42. In his motion, he
advises the court that he is scheduled to be released from incarceration on June 20, 2019, and that he was recently
notified that he is a candidate for a reentry program in Fairfax, Virginia. Although the letter which Sims attached to
his motion appears to suggest that participation in the program is voluntary, Sims asks the court to “immediately”
stop his transfer to the program because it will affect the medical treatment he is receiving. He further argues that
the facility in Fairfax has an inadequate law library and inadequate exercise equipment. He also fears that there is a
“risk” of his property being lost or misplaced during a transfer.
Preliminary injunctive relief is an extraordinary remedy that courts should apply sparingly. See Direx
Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991). As a preliminary injunction
temporarily affords an extraordinary remedy prior to trial that can be granted permanently after trial, the party
seeking the preliminary injunction must demonstrate by a “clear showing,” that (1) he is likely to succeed on the
merits at trial; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in his favor; and (4) an injunction is in the public interest. See Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20, 22 (2008). The party seeking relief must show that the irreparable harm he faces in the absence
of relief is “neither remote nor speculative, but actual and imminent.” Direx Israel, Ltd., 952 F.2d at 812. Without a
showing that the plaintiff will suffer imminent, irreparable harm, the court cannot grant preliminary injunctive relief.
Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991).
Having reviewed the motion, the court finds that Sims has not demonstrated that he is likely to suffer
“actual and imminent” irreparable harm in the absence of the preliminary injunction. His concerns about being
transferred, that his property might be lost, that he might not get the same medical treatment, and that the law library
and exercise equipment will be inadequate, are all speculative at best. Accordingly, the court will deny his motion.   

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An appropriate order will be entered.
Entered: March 31, 2019.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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