Sims v. Clarke et al

Filing 61

MEMORANDUM OPINION. Signed by Judge Elizabeth K. Dillon on 2/6/2020. (Opinion mailed to Pro Se Parties via US Mail)(slt)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
WILLIAM T. SIMS,
Plaintiff,
v.
BARRY MARANO, MELVIN
DAVIS, CHRISTOPHER LOVERN, and
HENRY PONTON,
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).
On March 31, 2019, the court issued a memorandum opinion and order granting in part and
denying in part defendants’ motion to dismiss and directing the remaining defendants––Barry
Marano, Melvin Davis, Christopher Lovern, and Harry Ponton––to file a motion for summary
judgment within sixty days. (Dkt. Nos. 43, 44.)1 That motion has been filed and is now before
the court for resolution. (Dkt. No. 46.)
What remains in this lawsuit are Sims’ claims for compensatory and punitive damages
and injunctive relief against Marano, Davis, Lovern, and Ponton, in their official capacities, as to
the denial of access to showers, toilets, and exercise equipment. Sims v. Clarke, Civil Action No.

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The court granted the motion to dismiss Sims’ claims against defendants Dr. Lawrence Wang and Nurse
Teresa Cobbs.

7:18-cv-00014, 2019 WL 1447484, at *6 (W.D. Va. Mar. 31, 2019).2 For the reasons stated
below, defendants’ motion for summary judgment is granted as to those claims.
I. BACKGROUND
A. Sims’ Complaint Allegations
Sims is an inmate within the Virginia Department of Corrections (VDOC) and is
currently housed at Green Rock Correctional Center (Green Rock). 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.” Sims sues each defendant in their official and individual
capacities (as noted, the individual capacity claims have been dismissed). As relief, Sims seeks
declaratory and injunctive relief as well as punitive and compensatory damages. (Am. Compl. ¶¶
44–47, Dkt. No. 21.)
Prior to arriving at Green Rock on August 25, 2016, Sims 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

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In addition to dismissing Sims’ claims against Dr. Wang and Nurse Cobbs, the court dismissed all of
Sims’ individual capacity claims. 2017 WL 1447484, at *6. The court also dismissed Sims’ claims concerning cell
size and a prosthetic leg. Id.
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unencumbered wheelchair accessible showers.” Consequently, Sims was placed in Green
Rock’s segregation unit. Sims alleges that the cell in which he was placed was not “handicapped
equipped or accessible” because it did not have appropriate hand rails or “adequate spacing.”
Sims fell and injured himself attempting to get back into his wheelchair after using the toilet
because there was no hand rail to balance himself. Sims was then placed in a medical
segregation unit that did have a handicap rail near the toilet, but due to the positioning of the bed
near the toilet, the toilet was still inaccessible. (Am. Compl. ¶¶ 15, 17–20, 22–23, 39, Dkt. No.
21.) Sims was in segregation from December 5–7, 2016. Plaintiff ended the hunger strike in
exchange for an agreement to hold a meeting to address his ADA and medical grievances. (Id. ¶
24.)
In addition to the issues that arose during his segregation, 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 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.)
B. Toilets, Showers, and Exercise Equipment
Sims is housed in a handicap-accessible cell, and except for the times Sims alleges he
was in segregation or the medical department from approximately December 5, 2016, to
December 7, 2016, has been assigned to this cell since August 25, 2016. (Id. ¶ 11.) Sims’ cell

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has a toilet and sink inside of it, and it also has wall-mounted assist bars to assist people with
mobility impairments in accessing the toilet or sink in the cell. The cell is designed to house an
offender in a wheelchair. (Id. ¶ 12.)
Sims’ pod has centrally located showers for offenders to use. In his pod, there is a
handicap-accessible shower stall. The shower stall is designed so that an offender in a
wheelchair can roll himself up to the shower stall and transfer himself into the shower using
wall-mounted assist bars. There is also a pull-down bench in the shower stall for an offender
with mobility issues to sit upon while he is using the shower. (Id. ¶ 13.)
Sims also has access to exercise and recreational equipment. (Id. ¶ 14.) Green Rock has
a paved outdoor track for offenders to walk or jog on. This track is accessible to offenders in
wheelchairs, and Lovern has seen Sims on the track in his wheelchair. (Id. ¶ 15.) Green Rock
also has an outdoor area that contains weights, weight benches, pull up bars, dumb bells, a
machine for completing “curls,” and some free weights. This area is also accessible to someone
in a wheelchair. The gated area around the weights has a doorway that is wide enough for a
wheelchair. Though the area can be crowded for offenders with or without disabilities during a
busy time, this area is accessible to Sims. (Id. ¶ 16.)
Sims and others in wheelchairs also have access to an indoor gym. In the gym, offenders
play basketball or volleyball. There is also a punching bag and a corn hole set. Offenders
sometimes play handball. The gym at Green Rock is accessible to offenders in wheelchairs.
Lovern has seen other offenders in wheelchairs using the gym, but not Sims. (Id. ¶ 17.)
Sims’ pod contains recreation items, such as games and a corn hole set to use during
recreation times. (Id. ¶ 18.)
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II. DISCUSSION
A. Motion for Summary Judgment
Summary judgment should be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is
one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond
Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A dispute of material fact is “genuine” if sufficient evidence favoring the
non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S.
at 248–49.
The moving party bears the initial burden of showing the absence of a genuine dispute of
material fact. Celotex, 477 U.S. at 323. Once the moving party makes this showing, however,
the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits
or other means permitted by the Rule, set forth specific facts showing that there is a genuine
issue for trial. See Fed. R. Civ. P. 56(c), 56(e). All inferences must be viewed in a light most
favorable to the non-moving party, but the nonmovant “cannot create a genuine issue of material
fact through mere speculation or the building of one inference upon another.” Beale v. Hardy,
769 F.2d 213, 214 (4th Cir. 1985).
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

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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).
Defendants concede that Sims has a disability within the meaning of the ADA and that he
is “otherwise qualified” to receive the benefits of the toilets, showers, and exercise facilities at
Green Rock. The third prong of the inquiry––whether Sims was excluded from or denied the
benefits of these services––requires “a more fact-intensive and case-specific inquiry.” Sims,
2019 WL 1447484, at *4. “[A]n otherwise qualified handicapped individual must be provided
with meaningful access to the benefit that the grantee offers . . . . [T]o assure meaningful access,
reasonable accommodations in the grantee’s program or benefit may have to be made.”
Alexander v. Choate, 469 U.S. 287, 301 (1985).
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

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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
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. Toilets
As discussed above, Sims has been housed in a handicap-accessible cell since his arrival
at Green Rock, with the only exception being a short time when he was in segregation from
December 5 to December 7, 2016. The cell has wall-mounted assist bars to help people with
mobility impairments in accessing the toilet or sink in the cell. Therefore, Sims has not been
denied the benefit of using a toilet at Green Rock. Sims argues that summary judgment should
be denied because the segregation areas he was housed in from December 5 to December 7,
2016, did not have adequate facilities for a handicapped person. Temporary denial of access
does not violate the ADA. See Hartman v. Costa Verde Ctr., No. 16cv0956, 2016 WL 7178964,
at *2 (S.D. Cal. Dec. 8, 2016) (“[T]emporary and transitory denials of access do not amount to

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ADA violations.”) (citing Chapman v. Pier 1 Imports (U.S.), Inc., 779 F.3d 1001, 1008–09 (9th
Cir. 2015).
2. Showers
Sims’ pod includes a handicap-accessible shower stall, which is designed so that an
offender in a wheelchair can roll himself up to the shower stall and transfer himself into the
shower using wall-mounted assist bars. Therefore, Sims has not been denied the benefit of
showering at Green Rock.
3. Exercise equipment
Finally, Sims had extensive access to exercise equipment and exercise facilities.
Therefore, Sims was not denied the benefit of exercising at Green Rock.
Sims argues that the indoor gym was inadequate because he could only sit and watch
people play volleyball and basketball. Wheelchair-bound individuals are certainly capable of
playing these sports. Importantly for purposes of Sims’ ADA claim, Green Rock provided Sims
with the opportunity to play. Moreover, Sims also has access to a walker to help him acclimate
to using his prosthetic leg. Whether with his leg or his wheelchair, Sims can participate.
Sims also complains about the exercise equipment at Green Rock, stating that prison
officials did not order specific types of equipment he would like to use. The ADA does not
entitle disabled prisoners to a preferred modification or accommodation. Instead, Sims is
entitled to “meaningful access.” See Alexander, 469 U.S. at 301; Paulone v. City of Frederick,
787 F. Supp. 2d 360, 373 (D. Md. 2011) (stating that to recover damages for a Title II violation,
plaintiff must show that the public entity “intentionally or with deliberate indifference failed to
provide meaningful access or reasonable accommodation”). “A reasonable accommodation need
not be perfect or the one most strongly preferred by the plaintiff. Meaningful access does not

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mean equal access or preferential treatment.” Todd v. Carstarphen, 236 F. Supp. 3d 1311, 1334
(N.D. Ga. 2017). Sims has received meaningful access to exercise equipment and facilities at
Green Rock.
C. Public Entities
Defendants argue that the claims against them should be dismissed because there is no
individual liability under the ADA. As noted in the introduction to this opinion, the court
dismissed the individual capacity claims in its previous order. See Sims, 2019 WL 1447484, at
*4 (“The Fourth Circuit has held that the ADA does not recognize a cause of action against
employees in their individual capacities. Accordingly, the court will grant defendants’ motion to
dismiss as to Sims’ claims against the defendants in their individual capacities.”) (citing Baird v.
Rose, 192 F.3d 462, 471 (4th Cir. 1999)).
Defendants further argue that the ADA, unlike 42 U.S.C. § 1983, does not permit suits
against individuals, whether brought against that person in an individual or official capacity.
Thus, because Sims failed to name a public entity as a defendant, defendants urge that Sims’
claims should be dismissed on that ground alone. To the contrary, courts have used the
distinction between individual and official capacity claims for purposes of Title II ADA claims.
See, e.g., Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009) (“Under the case law of this
circuit and our sister circuits, the proper defendant under a Title II claim is the public entity or an
official acting in his official capacity.”). Sims’ failure to name a public entity as a defendant is
not fatal to his claims.
D. Sovereign Immunity
The Eleventh Amendment bars suits for money damages against state prisons or state
prison officials acting in their official capacity. See, e.g., Wilson v. United States, 332 F.R.D.

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505, 516 (S.D.W. Va. 2019); Nichols v. Md. Corr. Inst., 186 F. Supp. 2d 575, 581 (D. Md. 2002)
(“The definition of ‘State’ [in the Eleventh Amendment] has been expanded out of necessity to
include state agencies, such as the state prison system.”). The Supreme Court has held in the
context of state prisons, however, that “insofar as Title II [of the ADA] creates a private cause of
action for damages against the States for conduct that actually violates the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity.” United States v. Georgia, 546
U.S. 151, 159 (2006) (disabled inmate in state prison may sue state for money damages under
Title II of the ADA where the alleged conduct actually violated both the Eighth Amendment and
Title II of the ADA); Chase v. Baskerville, 508 F. Supp. 2d 492, 506 (E.D. Va. 2007) (“[I]n the
context of state prisons, Title II validly abrogates state sovereign immunity and creates a private
cause of action for damages against the States for conduct that actually violates the Fourteenth
Amendment.”).
Thus, the court examines “(1) which aspects of the State’s alleged conduct violated Title
II; (2) to what extent such misconduct also violated the Fourteenth Amendment [or the Eighth
Amendment];3 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.” Georgia, 546 U.S. at 159.
1. Parts one and two of the Georgia abrogation analysis
Even if any of the defendants’ conduct violated Title II, none of their alleged misconduct
amounts to a constitutional violation. Sims’ complaint could be construed as an Eighth
Amendment conditions of confinement claim. To succeed on such a claim, Sims would need to

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The claim in Georgia was an Eighth Amendment claim, and as the court explained, the due process
clause of the Fourteenth Amendment incorporates the Eighth Amendment’s guarantee against cruel and unusual
punishment. Georgia, 546 U.S. at 157 (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947)).
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establish that the inadequate conditions were “sufficiently serious” when measured by an
objective standard, and the responsible prison officials had a “sufficiently culpable state of
mind,” that is, “deliberate indifference to inmate health or safety,” when measured by a
subjective standard. Miller v. Clark, No. 3:11-cv-00557, 2011 WL 6955512, at *2 (S.D.W. Va.
Dec. 9, 2011) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “The Eighth Amendment
does not prohibit cruel and unusual prison conditions; it prohibits cruel and unusual
punishments.” Stricker v. Waters, 989 F.2d 1375, 1390 (4th Cir. 1993). This prohibition “does
not mandate comfortable prisons, and only those deprivations denying the minimal civilized
measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment
violation.” Wilson, 501 U.S. at 298.
Sims’ complaints about the exercise options and facilities at Green Rock are not
sufficiently serious to meet the objective standard for an Eighth Amendment conditions of
confinement claim. Regarding shower and toilet facilities, Sims has had the benefit of handicapaccessible shower and toilet facilities during his detention at Green Rock. The one exception,
noted above, is Sims’ two-day stay in segregation when he did not have access to a handicapaccessible toilet. This brief gap in access is not sufficiently serious to constitute cruel and
unusual punishment. Moreover, Sims has failed to create an issue of fact to suggest that
defendants acted with a sufficiently culpable state of mind. At best, Green Rock and VDOC
were negligent in not having handicap accessible facilities in segregation, and perhaps negligent
in placing Sims in a situation without a handicap accessible toilet.
2. Part three of the Georgia abrogation analysis
As to the third part of the Georgia analysis, Sims does not specify that any of defendants’
conduct violates the ADA but not the Constitution. Thus, it is not necessary to determine

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whether Congress validly abrogated sovereign immunity for a Title II claim premised on conduct
that violates the ADA but is not otherwise unconstitutional. See Miller v. King, 449 F.3d 1149,
1151 (11th Cir. 2006) (explaining that it is “unclear from Miller’s pro se pleadings whether he
asserts any Title II claims premised on conduct that does not independently violate the Eighth
Amendment, which makes the analysis required by Georgia impossible”); Hutchinson v.
Cunningham, CASE NO.: 2:17-cv-185-WKW-GMB, 2018 WL 1474906, at *26 (M.D. Ala. Jan.
23, 2018) (declining to conduct the analysis because “it is clear from a review of Hutchinson’s
amended complaint that his Title II cause of action is premised solely on conduct that he claims
to be an independent violation of the Fourteenth Amendment”); Rylee v. Chapman, Civil Action
No. 2:06-CV-0158-RWS, 2008 WL 3538559, at *6 (N.D. Ga. Aug. 11, 2018) (“Because Plaintiff
. . . does not specify that any conduct alleged in his Complaint violated the ADA but not the
Constitution, the Court finds that Plaintiff has failed to meet his burden of proving that Congress
has abrogated sovereign immunity for an ADA claim premised on conduct that violates the ADA
but is not otherwise unconstitutional.”) (citing Miller, 449 F.3d at 1151).
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For these reasons, Sims cannot obtain monetary relief against the defendants for actions
taken in their official capacities.
E. Injunctive Relief
The Eleventh Amendment “permits suits for prospective injunctive relief against state
officials acting in violation of federal law.” Wilson v. United States, 332 F.R.D. 505, 517
(S.D.W. Va. 2019) (citing Ex Parte Young, 209 U.S. 123 (1908)). Sims requests an injunction
ordering defendants to install and maintain handicap-accessible bed and toilet rails in the
segregation housing unit; provide Sims with a single cell living unit with reasonable floor

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spacing according to accepted standards; provide Sims with daily access to exercise equipment
that is made for disabled individuals as other exercise equipment is made available to nondisabled offenders; and to provide Sims with a prosthetic leg and access to physical therapy
unencumbered by handcuffs or any security measure that would prevent or hinder the necessary
therapeutic treatment. (Am. Comp. ¶ 45.)
First, Sims’ claims related to cell size and his prosthetic leg were previously dismissed
for failure to state a claim. Sims, 2019 WL 1447484, at *5 (“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.”). Moreover, Sims
received his prosthetic leg after this lawsuit was filed. “Past exposure to illegal conduct does not
in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by
any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974).
Therefore, Sims cannot obtain injunctive relief in relation to these claims.
Second, with respect to handicap access in the segregation unit, Sims is no longer being
housed in segregation, and there is no indication that he is at imminent risk of being placed there.
Once again, a plaintiff “seeking injunctive relief may not rely on prior harm.” Abbott v.
Pastides, 263 F. Supp. 3d 565, 578 (D.S.C. 2017) (citing O’Shea, 414 U.S. at 495–96).
Third, the court has determined that defendants are entitled to summary judgment on
Sims’ claim for better exercise equipment. Sims is not entitled to injunctive relief on this claim
for the same reasons he cannot recover damages.

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III. CONCLUSION
For the above-stated reasons, defendants’ motion for summary judgment (Dkt. No. 46)
will be granted. The court will enter an appropriate order.
Entered: February 6, 2020.

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

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