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BROOKS v. HORN

United States District Court, E.D. Pennsylvania


April 7, 2004.

ALAN T. BROOKS
v.
MARTIN F. HORN, et al

The opinion of the court was delivered by: THOMAS O'NEILL, Senior District Judge

MEMORANDUM

I. INTRODUCTION

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

  A. Facts

  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 custody.

  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. 2002).

  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 Amendment.

  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 conditions.

  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 concern.
(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 of Corrections.
As the Court found while examining a similar prison policy in Jones/Seymour v. LeFebvre, 781 F. Supp. 355, 359 (E.D. Pa. 1991),

 

[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 plaintiff's disability.
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 is

 

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 activity.
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 requirements.

 

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 thereto:

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.


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