The opinion of the court was delivered by: Stengel, J.
This is a prisoner civil rights case. Kenn DeFreitas is an above-the-knee amputee. When he began his incarceration on July 19, 2008, he used crutches to walk and he alleges that the guards mocked him, placed him in housing that was unsafe for his condition, disallowed him from going outside, and generally refused to accommodate him. Mr. DeFreitas sued the Montgomery County Correctional Facility ("MCCF"), Montgomery County, and Correctional Medical Care, Inc., ("CMC") under the ADA and § 1983. The parties have filed cross motions for summary judgment. For the reasons stated below, I will deny the Plaintiff's partial motion for summary judgment and grant the Defendants' partial motions for summary judgment.
Plaintiff began his incarceration at MCCF on July 18, 2008.*fn1
Doc. No. 58-1 at ¶ 1,*fn2 Doc. No. 61 at ¶
2.*fn3 Mr. Defreitas is an above-the-knee amputee who
prosthetic leg or crutches to assist him.*fn4 Doc. No.
58-1 at ¶¶ 2, 4. Throughout his incarceration, Plaintiff kept a
journal, in which he documented many of his thoughts about his
disability, incarceration, and medical care.*fn5
MCCF is a prison divided into general population and restrictive housing units, such as maximum security and disciplinary segregation. Doc. No. 58-1 at ¶ 8. The facility offers various forms of recreation to inmates in the general population, such as yard recreation, gym recreation, and weight room recreation. Doc. No. 58-1 at ¶ 10. MCCF has an inmate grievance procedure, which is explained to inmates in the guidelines issued by MCCF and posted on the housing section wall. Doc. No. 61 at ¶ 22. Plaintiff admitted signing the acknowledgment of receipt for these guidelines and stated that he was "probably aware" of the grievance procedure. Doc. No. 61 at ¶ 22. However, Plaintiff claims that grievance forms were hard to come by.
MCCF also allows inmates to submit medical requests. CMC and its staff have the primary responsibility of providing medical care to inmates at MCCF. Doc. No. 61 at ¶ 7, Doc. No. 60 at ¶ 4.*fn6 When plaintiff was admitted to MCCF, he was experiencing symptoms of withdrawal.*fn7 Doc. No. 60 at ¶ 4. Additionally, when plaintiff entered MCCF, he was using crutches, rather than a prosthesis, to walk.*fn8 Doc. No. 61 at ¶ 4, Doc. No. 60 at ¶ 4.
Accommodations for Plaintiff's Disability
Plaintiff claims that the prison failed to accommodate his disability and consistently discriminated against him by failing to provide appropriate housing and shower accommodations. After intake, Plaintiff was cleared to be housed in the general population. Doc. No. 58-1 at ¶ 7, Doc. No. 61 at ¶ 5. However, Dr. Carrillo, who is CMC's Medical Director, gave a voice order stating, "no weight room, no gym until released[.]" Doc. No. 60 at ¶ 5. After going through a detox process in the Medical Department, plaintiff was taken to J-Pod, which is a general population housing unit on the second floor of MCCF. Doc. No. 61 at ¶ 8.
Plaintiff complained about having to go upstairs with his crutches and he was subsequently moved to H-2, a general population unit on the first floor, and given "bottom bunk status."*fn9 Doc. No. 61 at ¶ 8. However, H-2 was adjacent to a shower, which caused slippery conditions. Doc. No. 61 at ¶ 11. Plaintiff testified that he "twisted [his] shoulder a few times trying to catch [himself] from hitting the ground[,]" and he submitted requests to be seen by the Medical Department as a result. Doc. No. 61 at ¶ 11-12. Plaintiff was then moved to general population H-3, which is a high-bail pod housing section for violent offenders, because that section had grab bars. Doc. No. 61 at ¶ 13. Plaintiff was then moved back to H-2.*fn10
Plaintiff also claims that before his leg was delivered, he was forced to "hop" from his cell into the housing section's day room to get his meal tray because he could not use his crutches and carry the tray at the same time. Doc. No. 61 at ¶ 32. Plaintiff claims this hopping "affected [his] knee." Doc. No. 61 at ¶ 34. However, Plaintiff acknowledged that many inmates ate at the tables in the day room. Doc. No. 61 at ¶ 33. Plaintiff never filed a grievance concerning how trays are delivered because he felt that it was futile. Doc. No. 61 at ¶ 34.
Plaintiff further claims that he was harassed by MCCF's correctional officers, who were often cruel or indifferent to his disability. He claims the officers "made jokes about [his] one leg." On one occasion, Correctional Officer Daniel Tressel pressed the release button for Plaintiff's prosthetic leg during a routine pat-down search. Doc. No. 61 at ¶ 35. Officer Tressel stated that he accidentally pushed the button and did not recall whether Plaintiff warned him about the release button.*fn11 Doc. No. 61 at ¶ 35. Plaintiff's Medical Requests
Plaintiff continuously submitted medical requests and grievance forms over the course of his incarceration. He believed many of these requests were a result of his disability.*fn12 Plaintiff complains that the six-week long endeavor to obtain his prosthetic leg was the result of discrimination.*fn13 However, he admits that he never filed a grievance report about receiving his leg. Doc. No. 61 at ¶ 37.
Very shortly after his arrival, on July 30, 2008, Peter Michener, a third party provider who had worked with Plaintiff's prosthetics in the past, attempted to drop off plaintiff's leg and fit him for it that afternoon.*fn14 Doc. No. 60 at ¶ 9.
In the first week of August, Plaintiff submitted six (6) medical requests on August 3, 5, 7, 8, 9, and 11. Doc. No. 60 at ¶ 13. These medical request forms do not mention Plaintiff's prosthetic, but instead seek medical attention for various ailments. Doc. No. 60 at ¶ 16. Plaintiff also submitted medical request forms on August 21, 27, 29, 31 and September 2 and 7 for a variety of issues including blood pressure, headaches, dizziness, a hurt knee and weakness. Doc. No. 60 at ¶¶ 17-22. Additionally, Plaintiff saw CMC nurses and received medication from them three times a day, seven days a week. Doc. No. 60 at ¶ 15. Plaintiff states that he does not "have a problem with Correctional Medical Care" or Dr. Carrillo.*fn15 Doc. No. 60 at ¶ 14.
Plaintiff's journal entries in September indicate that he was displeased about not being able to access the gym, yard, and weight room due to his crutches. However, Plaintiff failed to request or address his prosthetic leg in any of the request forms that he submitted. Doc. No. 60 at ¶¶ 35-36, 39, 50-51, 60, 71-72, 85, and 87. Plaintiff did, however, address multiple other medical grievances, which were subsequently addressed by CMC nurses or doctors. Doc. No. 60 at ¶¶ 43, 54, 60, 71-72, 85, and 87. These requests ranged from complaints of cold sores on September 17, 2008, to osteoarthritis on October 16, 2008. Additionally, Plaintiff was seen by CMC in response to these requests generally within a week and even as soon as the same day. Doc. No. 60 at ¶¶ 43, 54, 60, 71-72, 85, and 87. Although none of these Medical Request Forms or Inmate Grievance Forms mentioned Plaintiff's prosthetic leg, he claims that he verbally requested his prosthesis on a number of occasions. Doc. No. 60 at ¶ 39.
On October 8, 2008, MCCF Corporal Hoy suggested that Plaintiff seek to obtain a prosthetic leg, so that he could have access to the gym and weight room. Doc. No. 60 at ¶ 56. Corporal Hoy followed up with Holler, who was aware of the situation and had previously discussed concerns about obtaining the prosthetic with Plaintiff.*fn16 Doc. No. 60 at ¶¶ 57-58. On October 16, 2008, the Plaintiff wrote in his journal that he was calling "Peter M" (Mr. Michener) about his leg and that Peter was going to try to come to the prison for a formal fitting the following week. Doc. No. 60 at ¶ 62. There is no indication that Plaintiff told anyone inside MCCF about his contact with Mr. Michener.
In fact, Plaintiff admits Mr. Michener is "slow doing what he does," and he said getting into MCCF "was a real nightmare." Doc. No. 60 at ¶ 65.
On October 21, Plaintiff called Mr. Michener telling him to contact CMC nurse, Mary Williams. Doc. No. 60 at ¶ 68. Plaintiff wrote in his journal on November 1, 2008, that his leg would "be here soon[,]" but ten days later he wrote that there was a problem with administration and Bill Anastacio told him that the leg was "2 expensive and they don't want to be responsible for it." On December 4, 2008, Holler received a call from the prosthetic company stating that the leg was "ready to be delivered." Doc. No. 60 at ¶ 86. On December 15, 2008, Mr. Michener called to set up a visit after changing the appointment twice since the beginning of December.*fn17 Doc. No. 60 at ¶ 89. On December 19, 2008, Plaintiff was fitted for his new prosthetic leg. Doc. No. 60 at ¶ 93. He wrote in his journal that he was able to work-out in the weight room but that he got blisters.*fn18 Doc. No. 60 at ¶ 94.
Access to the Yard and Weight Room
Plaintiff claims he was denied access to the prison yard and weight room as a result of discrimination due to his disability. On September 14, 2008, he was using his crutches in the outdoor exercise yard when Corporal Palmer approached him and said he could not use his crutches in the yard because they could be used to "manipulate the wires."*fn19 Doc. No. 61 at ¶¶ 15-16. Later that day, Plaintiff wrote in his journal that he was being discriminated against because of his disability. That same day, Plaintiff was told that he was not cleared to go into the prison weight room according to the computer system.*fn20 Doc. No. 61 at ¶ 19. A few days after these two incidents, Corporal Palmer approached Plaintiff in the gym and instructed him that he was to return to his housing pod because he could not "be in there with [his] crutches." Doc. No. 61 at ¶ 20.
Prior to being told by Corporal Palmer that he was not permitted in the yard, Plaintiff stated that he was in the yard with his crutches "[p]robably more than ten times" before September 14. Doc. No. 61 at ¶ 15. Additionally, Plaintiff had used the gym and weight room between five and ten times before he was prohibited from going with his crutches. Doc. No. 61 at ¶ 20. He stated in his deposition that the rules at MCCF constantly changed depending on who was on duty and that his access to the weight room and yard and the way he was treated was inconsistent.*fn21 Doc. No. 60 at ¶ 30. Plaintiff also admitted that he did not believe the prison was acting pursuant to a set policy, but instead claimed that his intermittent access to the gym and weight room was due to "their inept[itude] -- they don't have the ability to count beyond two." Doc. No. 60 at ¶¶ 32-33.
However, in Holler's deposition, she stated that there was a "security protocol  in place for the safety of . inmates..." Doc. No. 60 at ¶ 47. She was unaware if this protocol was written down. Doc. No. 60 at ¶ 47.
Plaintiff requested that he have access to the yard, weight room, and gym on multiple occasions. Doc. No. 60 at ¶ 34. On one occasion, he submitted a grievance appeal but the next day the appeal was still sitting in the box. Doc. No. 60 at ¶ 49. On September 17, 2008, Plaintiff submitted a grievance form that stated, "I have been denied access to the yard, gym, and weight room. The only reason I have been given is because I am disabled and on crutches. I would like access to recreation and fresh air like everybody else." Doc. No. 61 at ¶ 24. Following a response, which stated medical protocol prohibited Plaintiff from entering the gym or weight room, Plaintiff filed an appeal. Doc. No. 61 at ¶¶ 24-25.
Plaintiff admits that his access to the yard was a security issue controlled by MCCF but states that CMC could also restrict inmates with crutches or canes from the gym and the weight room due to safety concerns for the individual and others.*fn22 Doc.
No. 60 at ¶¶ 25-26. Plaintiff was given multiple opportunities to be housed in the Medical Unit, which has a separate yard for recreation. Doc. No. 60 at ¶ 27. Plaintiff did not want to be housed in the Medical Unit because those inmates did not have ...