United States District Court, E.D. Pennsylvania
April 7, 2004.
ALAN T. BROOKS
MARTIN F. HORN, et al
The opinion of the court was delivered by: THOMAS O'NEILL, Senior District Judge
Plaintiff is an inmate in the custody of the Pennsylvania Department of
Corrections (DOC) incarcerated at the State Correctional Institution at
Graterford. Pursuant to 42 U.S.C. § 1983, in July, 2000, he
commenced this pro se action against corrections officials Martin F.
Horn, Donald T. Vaughn, David DiGugliemo, John K. Murray, Donna Hale,
Julia Knauer, Russell Marshall, Mary Canino and Edward Dennis
(Commonwealth defendants) in their individual and official capacities.
Plaintiff alleged that defendants' actions violated his rights under the
Eighth and Fourteenth Amendments and Title II of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12102 et seq. Defendants Donna
Hale, Julie Knauer and Robert Fagan now move for summary judgment and to
dismiss plaintiff's most recent amended complaint pursuant to
Rule 12(b)(6). For the reasons stated below, I will grant defendants' motion
for summary judgment. II. BACKGROUND
Plaintiff alleges that the Commonwealth defendants required him to
stand up in his cell for Graterford's 6:00 a.m. standing count even
though he was taking medication that made it difficult for him to wake up
in time for the count. He also alleges that he received a misconduct as a
result of his failure to stand in the morning. The standing count
procedure, requiring all prisoners to stand for a 6:00 a.m. headcount,
was instituted in August 1999 following an escape by another inmate.
Plaintiff began taking medication for insomnia and depression on or
about March 25, 1999, after being examined by Dr. Klyashtorny for
complaints of insomnia, frustration, and irritation. Klyashtorny
diagnosed him with an adjustment disorder and gave him a prescription for
Desyrel. Klyashtorny then spoke with plaintiff on August 27, 1999 about
the possible negative effects his medication could have with regard to
his ability to stand for the newly instituted 6:00 am count and made
arrangements to have plaintiff receive his medication earlier than normal
to ensure it would not impede his ability to wake up in the morning.
Despite this arrangement, on September 3, 1999, plaintiff failed to stand
for the 6:00 a.m. count and was issued a misconduct. Plaintiff was found
guilty of the misconduct on September 6, 1999 and given 15 days in
disciplinary custody. Because of his placement in disciplinary custody,
plaintiff failed to show up for appointments he allegedly had with
Klyashtorny on September 6 and 15, 1999. Plaintiff alleges he was not
provided with medication for his disorder while he was in disciplinary
On September 20, 1999, pursuant to DOC policy, plaintiff sent an ADA
accommodation request to defendant Hale that he be "allow[ed] two to three
minutes once waken [sic] up to stand for the 6 a.m. count" because of the
side effects of his medication. (Pl.'s Resp. Mot. S.J. Ex. 14). Plaintiff
then filed a grievance regarding his inability to stand for the 6:00 am
count on September, 21, 1999. (Id. Ex. 13). He subsequently
repeated his request to defendant Hale on September 27, 1999.
(Id. Ex. 15). Frank Botto answered plaintiff's grievance on
October 19, 1999, referring plaintiff to Klyashtorny's conclusion that
his "medication does not sedate significantly enough to interfere with
Brook's [sic] ability to respond to the 6:00 am count." (Defs.' Mot.
S.J., Ex. 4).
Plaintiff had another appointment with Klyashtorny on September 27,
1999, when he was prescribed 75 mgs. of Desyrel to be taken at bedtime
for thirty days. On October 25, 1999, plaintiff saw Klyashtorny again and
told him he was frustrated with having to stand for the 6:00 am count and
that he felt threatened by the guards and administration. Klyashtorny
increased plaintiff's prescription to 100 mg of Desyrel at bedtime.
Plaintiff continued to complain of anxiety and aggressive feelings when
he saw Klyashtorny on November 22, 1999. At that time, the doctor
continued plaintiff's 100 mg Desyrel prescription and also prescribed
25mg of Vistaril to be taken in the morning. On December 30, 1999,
plaintiff told Klyashtorny that he was satisfied with his medication and
had no complaints or side effects to report. The doctor reordered
plaintiff's Desyrel and Vistaril prescriptions.
B. Procedural History
Plaintiff filed his original complaint in this action on August 30,
2000. On October 23, 2000, the Commonwealth defendants moved to dismiss
plaintiff's complaint. I granted the motion and dismissed the complaint
on April 25, 2001. Plaintiff subsequently filed an appeal. On November 22, 2002, the Court of Appeals affirmed my decision to
dismiss Brooks' constitutional claims under the Fourteenth and Eighth
Amendments against the Commonwealth defendants because plaintiff had not
alleged the defendants participated in or had personal knowledge of and
acquiesced in the alleged violation of plaintiff's rights. My decision
with respect to plaintiff's claim under Title II of the ADA was vacated
and remanded for further proceedings pursuant to the decision in
Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d Cir.
Subsequent to the Court of Appeals' decision plaintiff filed an amended
complaint on February 14, 2003 in which he reiterated verbatim the
factual allegations set forth in his original complaint, added legal
claims against Hale and Knauer for failing to give him an ADA hearing and
added a new defendant, Lieutenant Fagan, in his individual and official
capacities, and a constitutional claim against him for denying him his
medication on five different occasions. Defendants Knauer, Fagan and Hale
then moved for summary judgment on May 20, 2003. Plaintiff filed a second
amended complaint on September 25, 2003, with the only alteration being
the addition of Frank Botto as another individual defendant. Defendants
Knauer, Fagan and Hale moved to dismiss plaintiff's second amended
complaint on September 30, 2002.
III. MOTION FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary judgment is
appropriate if "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." The Supreme Court
has recognized that the moving party "bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions . . . which it believes
demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the
moving party has filed a properly supported motion, the burden shifts to
the nonmoving party to "set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party may
not rest upon the mere allegations or denials of the party's pleading.
See Celotex, 477 U.S. at 324.
I must determine whether any genuine issue of material fact exists. An
issue is "material" only if the dispute over facts "might affect the
outcome of the suit under the governing law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). If the record taken as a
whole in a light most favorable to the nonmoving party, "could not lead a
rational trier of fact to find for the nonmoving party, there is no
`genuine issue for trial.'" Matsushita Elec. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986) (citation omitted). If the evidence
for the nonmoving party is merely colorable, or is not significantly
probative, summary judgment may be granted. Anderson, 477 U.S.
at 249-50 (citations omitted).
A. Claim Against Fagan
Plaintiff alleges that Fagan violated his Eighth Amendment rights by
failing to ensure that plaintiff was escorted to his psychiatrist's
appointment with Klyashtorny and by failing to ensure that he received
his medication while in disciplinary custody. Defendants assert that
plaintiff's claim against Fagan is barred by the statute of limitations.
A Section 1983 cause of action accrues on the date when a plaintiff knew
or should have known his or her rights had been violated. See
Genty v. Resolution Trust Corp., 937 F.2d 899. 919 (3d Cir.
1991). Plaintiff's claim against Fagan therefore accrued on the date he
was in disciplinary custody and the day Fagan is alleged to have failed to escort plaintiff to his
psychiatrist's appointment in September, 1999. In Section 1983 actions,
the applicable period of limitations is borrowed from the statute of
limitations for personal injury actions in the state where the alleged
violations occurred. See, e.g., Wilson v. Garcia, 471 U.S. 261,
275 (1985). In Pennsylvania, personal injury actions are subject to a
two-year limitations period. 42 Pa. C.S. § 5524. See also
Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 78 (3d Cir. 1989).
Plaintiff did not add his claim against Fagan to his complaint until
February, 2003, well after the two year limitations period had expired.
Plaintiff counters that his claim against Fagan is not barred by the
statute of limitations because under Federal Rule of Civil Procedure
15(c) his amendment adding Fagan as a defendant relates back to the date
his original complaint was filed. Relation back under Rule 15(c) is
proper if (a) the plaintiff's claim against the party to be brought in
arises out of the same transaction or occurrence set forth in the
original complaint, and (b) the party to be brought in by the amendment
(1) had received notice of the action such that he will not be prejudiced
in maintaining his defense on the merits, and (2) knew or should have
known that, but for a mistake concerning the identity of the proper
party, the action would have been brought against him. See also
Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 189 (3d Cir. 2001).
Defendants do not dispute plaintiff's contention that Fagan's alleged
conduct arises out of the same transaction or occurrence set forth in
plaintiff's original complaint and plaintiff can meet the notice
requirement of Rule 15(c)(3)(A). Plaintiff's claim against Fagan
therefore is not barred by the statute of limitations.
The notice requirement set out in Rule 15(c)(3)(A) must be met "within
the period provided by Rule 4(m) for service of the summons and
complaint." Federal Rule of Civil Procedure 4(m) provides that this time is "120 days after the
filing of the complaint." Therefore, for relation back to be appropriate,
Fagan must have had notice of plaintiff's claim against him by December
28, 2000 (which is 120 days after the original complaint was filed on
August 30, 2000). Plaintiff does not argue that Fagan had formal notice
or actual notice of any claim against him within the 120 day period. He
argues that Fagan was placed on notice that his conduct allegedly
violated plaintiff's Eighth Amendment rights because the original
complaint "set forth defendant Lt. Fagan conduct [sic]." (Pl.'s Resp.
Mot. S.J. at 15).
"[T]he notice received must be more than notice of the event that gave
rise to the cause of action; it must be notice that the plaintiff has
instituted the action." Singletary v. Pennsylvania Dep't of Corr.,
et al., 266 F.3d 186, 195 (3d Cir. 2001), citing Bechtel v.
Robinson, 886 F.2d 644. 652 n.12 (3d Cir. 1989). In
Singletary, the Court of Appeals described two methods of
establishing constructive notice: (1) the shared attorney method; and (2)
the identity of interests method. 266 F.3d at 196-200. "Under the shared
attorney method, notice is imputed to the new defendants if they are
represented by the same attorney as an original defendant." Huertas
v. City of Phila., et al., No. 02-7955, 2003 U.S. Dist LEXIS 7702,
at *7 (E.D. Pa. May 5, 2003). "Where an original defendant and the
intended defendant are represented by the same attorney, it is presumed
that the attorney likely communicated to the intended defendant that he
may be joined in the lawsuit." Parsons v. City of Phila., et
al., No. 02-1881, 2002 U.S. Dist. LEXIS 24764, at *5 (E.D. Pa. Dec.
12, 2002), citing Singletary, 266 F.3d 186.
It appears that Fagan and the other defendants, all employees of the
DOC, are represented by the same counsel in the Pennsylvania Attorney
General's office. Randall J. Henzes, Deputy Attorney General, signed a
single summary judgment motion asking for judgment in favor of Fagan and Hale and Knauer. Defendants do not argue that
Fagan was represented by a different attorney at the time plaintiff filed
his original complaint or otherwise dispute that Fagan had notice of
possible claims against him. Contrast Huertas, 2003 U.S. Dist
LEXIS 7702, at *7-8, where the court found plaintiff failed to establish
imputed notice under the shared attorney method because there was no
evidence that the original defendant's counsel was representing any of
the proposed defendants.
In Parsons, 2002 U.S. Dist. LEXIS 24764, at *5, the court
found that notice was imputed to two unnamed corrections officers under
the shared attorney method because it was "reasonable to assume that the
unnamed defendants were contacted by prison officials when the suit was
started to assist them in investigating the claim, and that the City's
attorney contacted the guards or their immediate supervisor . . . to
respond to the complaint. . . ." Here, it seems equally reasonable to
assume that Fagan was contacted after plaintiff filed his complaint
because Fagan's name and actions were specifically referred to in the
original complaint. Because plaintiff could establish Fagan had
constructive notice of the claims against him under the shared-attorney
method, I must discuss the merits of plaintiff's Eighth Amendment claim.
B. Section 1983 Claims Against Fagan, Knauer and Hale*fn1
To state a valid claim under 42 U.S.C. § 1983, plaintiff must
allege the violation of a right secured by the Constitution and laws of
the United States and that the alleged violation was committed by a person acting under color of state law. See West
v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff alleges that Fagan
violated his Eighth Amendment rights by failing to ensure plaintiff was
escorted to his appointment with Klyashtorny and by failing to ensure he
received his medication. Plaintiff also alleges that Hale violated his
Eighth Amendment rights, his due process rights and his rights to equal
protection by failing to respond to his September 20 and 27 requests for
additional time to stand for the morning count. Plaintiff further alleges
that defendant Knauer failed to assess completely his claim for medical
validity as required by the ADA and that Knauer therefore violated his
due process rights and rights to equal protection under the Fourteenth
3. Eighth Amendment
In order to prove successfully that his treatment during incarceration
violated his Eighth Amendment rights, plaintiff must establish that Fagan
and/or Hale knew of and disregarded an excessive risk to his health or
safety. "[T]he official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference." Farmer v. Brennan,
511 U.S. 825, 837 (1994). "The question under the Eighth Amendment is whether
prison officials, acting with deliberate indifference, exposed a prisoner
to a sufficiently substantial `risk of serious damage to his future
health'. . . ." Id. at 843, quoting Helling v.
McKinney, 509 U.S. 25, 35 (1993).
Hale's failure to respond to his requests for additional time to wake
up for the morning count did not subject plaintiff to a sufficiently
substantial risk of harm to establish his claim under the Eighth
Amendment. Plaintiff's own doctor opined that plaintiff's prescriptions
should not interfere with his ability to wake up. Hale's actions
therefore did not interfere with plaintiff's ability to receive appropriate treatment for his psychiatric
There is also is nothing in the record to suggest that Fagan's alleged
failure to ensure that plaintiff was escorted to his psychiatrist's
appointment amounted to deliberate indifference. At plaintiff's request,
another inmate informed Fagan that plaintiff had been unable to attend
his appointment because he was in disciplinary custody. That inmate's
verification states that Fagan informed the officers assigned to
plaintiff's housing unit that they were to escort plaintiff to the
treatment area upon his return from the disciplinary hearing. (Pl.'s Resp.
Mot. S.J. Ex. 5). Fagan's failure to ensure these officers followed
through with his orders is not sufficient to constitute an Eighth
Amendment violation. C.f. Price v. Kurtz, No. 95-3771, U.S.
Dist. LEXIS 16817, at *4-5 (E.D. Pa. Nov. 9, 1995) (holding plaintiff's
Eighth Amendment claim failed where plaintiff claimed his medical
treatment was inadequate because it was not received in a timely manner).
There is nothing in the record to show plaintiff suffered serious harm as
a result of missing his psychiatrist's appointments while in disciplinary
custody. Plaintiff was able to resume his psychiatrist's appointments
following the disciplinary incident, seeing Klyashtorny again on
September 27, 1999 and on several dates thereafter. Plaintiff also
continued to receive prescription medication for his depression and
anxiety disorders after his release from disciplinary custody. There is
no evidence that Fagan thought plaintiff needed immediate medical
attention or that the temporary postponement of his psychiatrist's
appointment would expose him "to undue suffering or the threat of
tangible residual injury." Aiello v. County of Montgomery, No.
99-1543, 2000 U.S. Dist. LEXIS 1294, at * 9-10 (E.D. Pa. Feb. 11, 2000),
citing Monmouth Cty. Correctional Institutional Inmates v.
Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987). I will therefore grant
summary judgment in favor of defendants on plaintiff's Eighth Amendment claims.
2. Due Process
Defendants argue that although the DOC has a procedure that would allow
plaintiff to have a hearing for his ADA accommodation requests, plaintiff
has no constitutional right to an accommodation hearing. The requirements
of procedural due process are triggered by deprivation of a legally
cognizable liberty interest. "A protected liberty interest may arise
directly from the Constitution or from a state statute, . .
regulation, . . or prison rule `defining the obligations of the
authority.'" Stephany v. Wagner, 835 F.2d 497, 499 (3d Cir.
1987) (citations omitted). Plaintiff bases his claim of a liberty
interest on the DOC's Policy on Reasonable Accommodations for Inmates
with Disabilities (DC-ADM-006). The DOC policy on which plaintiff relies
provides, in part, that:
An inmate who has a disability that he or she
believes is not being reasonably accommodated by
the Department shall submit a written request for
accommodation on form DC-135A. . . . The
Facility ADA coordinator or designee shall
evaluate the request, assess the claim for medical
validity, evaluate the inmate's needs (if any),
and recommend accommodations that may be
necessary. . . . The Facility ADA Coordinator
will submit the recommendations to the Facility
Manager and the Regional Deputy Secretary for
final determination. The safety and security of
the facility will always be the overriding
(Pl.'s Am. Compl. Apx. Exh. 12-17). The mere existence of this
policy is not enough, however, to create a liberty interest.
In Stephany, 835 F.2d at 499, the Court of Appeals held that
"the dispositive question in determining whether a state rule creates a
protected liberty interest is whether it `plac[es] substantive
limitations on official discretion.'" Id. at 500, quoting
Olim v. Wakinekona, 461 U.S. 238, 249 (1983). See also Kentucky
Dep't of Corr. v. Thompson, 490 U.S. 454, 461-63 (1989). The DOC Regulations here appear to contain the type of
mandatory language the Supreme Court found created a liberty interest in
Hewitt v. Helms, 459 U.S. 460 (1983) (holding state regulations
setting forth procedures for confining inmate to administrative
segregation create a liberty interest in remaining in general prison
population). However, Section VIII of the policy provides in part that,
[t]his policy does not create rights in any
person, nor should it be interpreted or applied in
such a manner as to abridge the rights of any
individual. This policy should be interpreted to
have sufficient flexibility so as to be consistent
with the law and to permit the accomplishment of
the purpose(s) of the policies of the Department
As the Court found while examining a similar prison policy in
Jones/Seymour v. LeFebvre, 781 F. Supp. 355, 359 (E.D.
[t]his language clearly states that, despite the
mandatory language used above, the directive is
not intended to create any rights. . . .[T]he
language providing for flexible interpretation of
the directive undermines any implication of the
establishment of rights which the mandatory
language may have created.
Further, in Sandin v. Conner, 515 U.S. 472, 481-83
(1995), the Supreme Court disapproved of looking to state regulations as
a source of liberty interests to be protected under the Due Process
Clause. The Court held that while mandatory language may create interests
that are protected by the Due Process Clause,
these interests will generally be limited to
freedom from restraint which, while not exceeding
the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause
of its own force, . . nonetheless imposes
atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.
Id. at 484. Plaintiff has not established that the
actions of defendants in allegedly failing to consider his ADA
accommodation request presented the type of atypical, significant
deprivation in which a State might conceivably create a liberty interest.
Id. at 486. I therefore find that defendants did not violate
plaintiff's due process rights because he has no constitutional right to
an ADA accommodation hearing.
3. Equal Protection
Defendants argue that because plaintiff does not allege that either
Knauer or Hale's actions were motivated by racially discriminatory intent
his equal protection claims must fail. However, plaintiff does not assert
defendants violated his equal protection rights because of his race.
Instead, he claims that he was denied the same procedural protections
afforded to other inmates with disabilities when his ADA accommodation
request was denied. "The essence of the equal protection clause is a
requirement that similarly situated persons be treated alike."
Greist v. Norristown State Hosp., No. 96-8495, 1997 U.S. Dist.
LEXIS 16320, at *22 (E.D. Pa. Jan. 16, 2002), citing Huffaker v.
Bucks County Dist. Attorney's Office, 758 F. Supp. 287, 291 (E.D.
Pa. 1991). Without discriminatory treatment, there can be no violation of
equal protection. See Williams v. Morton, 343 F.3d 212, 221 (3d
Cir. 2003) ("To prevail on an equal protection claim, a plaintiff must
present evidence that s/he has been treated differently from persons who
are similarly situated.") The standing count policy is not facially
discriminatory because it requires all inmates to stand for the morning
and evening counts. Plaintiff has not shown that other inmates were
allowed to stay in bed during the morning and evening counts or given
other accommodations pertaining to the standing count requirement as a
result of their disabilities. Because plaintiff has not produced evidence
to show that other disabled inmates' requests for ADA accommodations were
treated differently from his, his equal protection claim must fail. D. ADA Title II Claim*fn2
Title II of the ADA provides that "no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation 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.
To prevail on a claim for violation of Title II of
the ADA, the plaintiff must show (1) that [he] is
a qualified individual with a disability; (2) that
[he] was either excluded from participation in or
denied the benefits of some public entity's
services, programs, or activities, or was
otherwise discriminated against by the public
entity; and (3) that such exclusion, denial of
benefits or discrimination was by reason of the
Douris v. Dougherty, 192 F. Supp.2d 358, 368 (E.D.
Pa. 2002) (citations omitted). A qualified individual with a disability is
one "who, with or without reasonable modifications to rules, policies, or
practices . . . 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(2).
The ADA defines the term "disability" as (A) a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment." 42 U.S.C. § 12102(2). To establish he suffers from a
substantial limitation on a major life activity, Plaintiff must show he
significantly restricted as to the
condition, manner or duration under which he can
perform a particular major life activity as
compared to the condition, manner, or duration
under which the average person in the general
population can perform that same major life
Purcell v. Pennsylvania Dep't of Corr., No. 95-6720, 1998
U.S. Dist. LEXIS 105, at *20, citing 29 C.F.R. § 1630.2(j)
(emphasis added). "Major life activities" are defined to include
"functions such as caring for oneself, performing manual tasks, walking
seeing, hearing, speaking, breathing, learning, and working."
28 C.F.R. § 35.104(2).
Plaintiff asserts that his depression is the mental impairment that
brings him within the protections of the ADA. He argues that his
depression substantially limits one or more of his major life activities
because it causes him to suffer from insomnia, irrational and impulsive
behaviors and confusion. However, in order to establish disability
status, plaintiff must do more than present evidence of his doctor's
diagnosis of depression. "Instead, the ADA requires those `claiming the
Act's protection . . . to prove a disability by offering evidence that
the extent of the limitation [caused by their impairment] in terms of
their own experience . . . is substantial.'" Toyota Motor Mfg.,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). quoting
Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999). In the
regulations implementing the equal employment provisions of the ADA,
several factors are considered in determining if a person is affected by
a disability that "substantially limits" a "major life activity"
including: "(i) The nature and severity of the impairment; (ii) The
duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long
term impact of or resulting from the impairment."
29 C.F.R. § 1630.2(j)(2).
Plaintiff's depression does not limit any of his major life activities
to such an extent that he can be considered disabled for the purposes of
the ADA. Plaintiff has not presented evidence that his depression has
prevented him from caring for himself, from learning, from working or
from participating in other major life activities. He only asserts that
his condition requires that he "be given a few minutes to stand up for 6
a.m. count." (Pl.'s Am. Compl. Apx. Exh. 26).
Plaintiff's treating physician stated that his prescription medications
did not sedate him significantly enough to interfere with his ability to
respond to the six a.m. count. (Pl.'s Am. Compl. Apx. Exh. 31). Further,
plaintiff has only documented his failure to stand for the morning count
on a single occasion. He has not presented evidence to show that he will
have long term or permanent difficulties with meeting the morning count
requirements as a result of his depression.
The standing count procedure was instituted in response to a prison
escape and therefore the special deference for prison security concerns
is warranted here in considering defendants' decision not to accommodate
plaintiff's request for an exemption from the standing count
In prison situations, courts must be careful when
applying anti-discrimination statutes to give
weight to the unique needs of prison
administration. If the challenged prison policies
concerned security, then they "are peculiarly
within the province and professional expertise of
corrections officials, and in the absence of
substantial evidence in the record ro indicate
that the officials have exaggerated their response
to these considerations, courts should ordinarily
defer to their expert judgment in such matters.
Purcell, 1998 U.S. Dist. LEXIS 105, at *23 (citations
omitted). Because plaintiff has not presented evidence to show his depression substantially interferes
with his ability to comply with the prison's standing count policy or
with another major life activity and because of the security concerns the
standing count policy was intended to address, plaintiff has not
established that defendants violated Title II of the ADA.
AND NOW, this ___ day of April 2004, after considering defendants
Knauer, Hale and Fagan's motions for summary judgment and to dismiss
plaintiff's most recent amended complaint and plaintiff's responses
1) Defendants' motion for summary judgment is
GRANTED. Judgment is entered in favor of
defendants Julia Knauer, Donna Hale and Robert
Fagan and against plaintiff Alan T. Brooks.
2) Defendants' motion to dismiss plaintiff's most
recent amended complaint is DENIED as moot.