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Nickens v. Ashcroft

March 16, 2006


The opinion of the court was delivered by: Judge Conaboy



Theodore M. Nickens, an inmate presently confined at the Rockview State Correctional Facility, Bellefonte, Pennsylvania, and Helen M. Nickens, who is identified as being Mr. Nickens' wife,*fn1 initiated this pro se civil action asserting violations of their civil rights, the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973 (RA), and the "Pennsylvania Handicappers Civil Rights Act".

Named as Defendants are United States Attorney General John Ashcroft; Director Harley G. Lappin and Regional Administrator D. Kostyk of the Federal Bureau of Prisons (BOP); and the following officials at Mr. Nickens' prior place of confinement, the Allenwood United States Penitentiary, White Deer, Pennsylvania (USPAllenwood): Warden M.V. Pugh, Case Manager T. Hubler, Correctional Manager G. Hottenstein, Unit Managers Angel Espinoza-Levi and R. Wolever.

Plaintiffs' amended complaint asserts that Helen Nickens, who resides in the Commonwealth of Virginia, is only able to communicate with her husband over the telephone through the use of a Telecommunications Device for the Deaf (TDD).*fn2 A TDD located in a counselor's office at USP-Allenwood was available for limited prisoner use. It is also asserted that Mr. Nickens was initially permitted to use the TDD without making a formal request.

The amended complaint's initial contention is that Unit Manager Wolever has improperly denied or limited Inmate Nickens use of the TDD device. Specifically, it is alleged that Wolever retaliated against Mr. Nickens for submitting a complaint to Warden Pugh by formulating a requirement that the prisoner would have to put in a written request before being granted permission to use the TDD. Plaintiffs maintain that Wolever's requirement constitutes retaliation, discrimination and violates their constitutional rights, the RA, the Pennsylvania Handicappers Civil Rights Act and the ADA.

It is next alleged that Unit Counselor Hottenstein failed to follow through with his promise that Inmate Nickens could call his wife on her birthday. Plaintiffs add that Mr. Nickens' subsequent Unit Manager, Defendant Espinoza-Levi, enforced Wolever's aforementioned TDD policy and told Inmate Nickens that the ADA was not applicable in his case because he was not deaf. The Plaintiffs further contend that Mr. Nickens was denied access to the courts when Espinoza-Levi denied his request for permission to make a legal call.

The Nickens' final claim asserts that USP-Allenwood officials, including Warden Pugh, acted in a discriminatory manner by refusing Mr. Nickens' request for installation of a TDD line outside of the counselor's office. They seek compensatory and punitive damages.*fn3

Presently pending are the Plaintiffs' second motion for summary judgment*fn4 (Doc. 71) and Defendants' motion to dismiss or in the alternative for summary judgment (Doc. 75). Both motions are ripe for consideration.


Standard of Review

Defendants' motion is accompanied by evidentiary materials [documents] outside the pleadings which are relevant for purposes of both determining the issue of administrative exhaustion as well as their alternative arguments. Rule 12(b) provides in part as follows:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed. R. Civ. P. 12(b). The Court will not exclude the evidentiary materials [documents] accompanying Defendants' motion. Thus, their motion will be treated as solely seeking summary judgment.

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]he standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)...." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The moving party can discharge that burden by "'showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden, the nonmoving party must present "affirmative evidence" to defeat the motion, consisting of verified or documented materials. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only if a reasonable jury, considering the evidence presented could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment. Id. In ...

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