The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Plaintiff, a state prisoner, brought an action in negligence; an action pursuant to 42 U.S.C. § 1983 for violation of his Eighth Amendment rights; an action under the Americans with Disabilities Act ("the ADA"); and has requested injunctive relief. Defendants are Richard Ellers, the Corrections Health Care Administrator at the State Correctional Institution at Rockview ("SCI-Rockview"), and John Symons, a physician at SCI-Rockview. By order dated February 13, 2006, Plaintiff's negligence claims against both Defendants were dismissed; the ADA claim against Defendant Symons was dismissed; and Plaintiff's claim for injunctive relief against Defendant Symons was dismissed.
The magistrate judge to whom this matter was referred subsequently filed a report on the remaining claims and recommended that (1) Plaintiff's motion for summary judgment be denied; (2) Defendant Ellers' motion for summary judgment be denied as to Plaintiff's Eighth Amendment and the ADA claims and granted as to Plaintiff's retaliation claim; and (3) Defendant Symon's motion for summary judgment be denied. The magistrate judge found that the remaining issues for trial were the ADA claim against Defendant Ellers and the Eighth Amendment claim against both Defendants. Defendants have each filed objections to the report and recommendation and the matter is ripe for disposition.
Plaintiff has stated no specific claim or cause of action in his compliant concerning the ADA. There is only a statement in the complaint that Defendant Ellers violated the ADA. Title 42 U.S.C. § 12132 provides:
Subject to the provisions of this subchapter, 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 subject to discrimination by any such entity.
In Pennsylvania Dept. of Corrections v. Yeakey, 524 U.S. 206, 210 (1998), the court held that state prisons fall squarely within the statutory definition of "public entity."
The next issue to be determined is whether Plaintiff is disabled as defined by the statute. Title 42 U.S.C. § 12102(2) defines disability with respect to an individual 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 an impairment.
Even if Plaintiff has a record of impairment, in order to show the existence of a disability, there must be a record of impairment that substantially limits one or more major life activities. Howell v. Sam's Club #8160/Wal Mart, 959 F. Supp. 260 (E.D. Pa. 1997). Speaking may be a major life activity, however, there is no evidence that Plaintiff cannot speak or communicate, only that his voice is "raspy." Plaintiff has not shown a disability and, therefore, has not stated a cause of action under the ADA. In addition, ...