Bane v. Virginia Dept. of Corrections

• Decision Date: 06 June 2003
• Docket Number: No. 7:01CV00987.,7:01CV00987.
• Citation: 267 F.Supp.2d 514
• Parties: Robert Allen BANE Plaintiff, v. VIRGINIA DEPARTMENT OF CORRECTIONS, et al. Defendants.
• Court: U.S. District Court — Western District of Virginia

267 F.Supp.2d 514

Robert Allen BANE Plaintiff, v. VIRGINIA DEPARTMENT OF CORRECTIONS, et al. Defendants.

No. 7:01CV00987.

United States District Court, W.D. Virginia, Roanoke Division.

June 6, 2003.

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Robert Allen Bane, Waverly, VA, pro se.

Pamela Anne Sargent, Office of the Attorney General, Richmond, VA, William H. Lindsey, PC, Salem, VA, John Dickens Eure, Joseph Aubrey Matthews, Jr., Johnson, Ayers & Matthews, Roanoke, VA, Timothy Edmond Kirtner, Gary Clay Hancock, Gilmer, Sadler, Ingram, Sutherland & Hutton, Pulaski, VA, for Defendants.

MEMORANDUM OPINION

TURK, Senior District Judge.

This matter is before the Court on the Virginia Department of Correction's ("VDOC's") Motion to Dismiss challenging the constitutionality of section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the motions for summary judgment filed by Defendants Hockett, Anderson, and Short pursuant to Rule 56 of the Federal Rules of Civil Procedure. In a decision dated May 22, 2002, the Court dismissed the Plaintiffs claims against the individual defendants under the Rehabilitation Act and the claims against the VDOC under the Eighth Amendment, but upheld the Plaintiffs Eighth Amendment claims against the individual defendants. The VDOC's Motion to Dismiss the Plaintiffs Rehabilitation Act claim was not decided, as the Court took the VDOC's challenge to the constitutionality of the Rehabilitation Act under advisement.

Notice of the constitutional challenge to the Rehabilitation Act has been provided to the Attorney General of the United States pursuant to Rule 24(c). As more than sixty days have passed since the issuance of the Rule 24(c) notice, the VDOC's Motion to Dismiss is ripe for resolution.

I

The Plaintiff, Robert Allen Bane, was an inmate at Wallens Ridge State Prison ("Wallens Ridge") when the conduct relevant to this lawsuit allegedly took place. Plaintiff suffers from what he describes as a "chronically unstable right shoulder due to ligament and nerve damage." To accommodate this injury, the medical department at Wallens Ridge issued Plaintiff a medical notice on May 30, 2000, which stated that the Plaintiff was to be cuffed with his hands in front when handcuffs were required. This so-called "cuff front pass" did not specify an end date, instead stating that it would be valid for an "indefinite" period of time. The custom at Wallens Ridge was to post these medical passes on inmates' cell doors.

On September 3, 2001, Wallens Ridge personnel, supervised by Sergeant Marvin Short ("Short"), conducted a search of the Plaintiffs cell. Plaintiff claims that, at the time of the search, the "cuff front pass" was posted on his cell door, and that Short and Sergeant David Anderson ("Anderson") saw and read the medical document. Plaintiff then claims that Short told him that the waiver was not valid and Anderson threw the document in the trash. After Plaintiff objected to this action, Short called his supervisor, Captain Isaac Hockett ("Hockett"). Plaintiff claims that Short called to request instructions on the proper course of behavior in response to the waiver. After discussing the matter with Hockett, Short allegedly told the Plaintiff that Hockett gave an order to cuff the Plaintiffs arms behind his back despite the waiver.

Plaintiff alleges that Short then forced his arms behind his back and handcuffed him, leaving him in this position for a period of forty-five minutes. Upon completion of the cell search, the Plaintiff complained of pain in his right shoulder, as he claimed that it had been dislocated when he was handcuffed. The Plaintiff submitted a written grievance in response to the incident, and A.P. Harvey, the Assistant Warden of Operations at Wallens Ridge, in a memorandum addressed to the Plaintiff on September 19, 2001, assured the Plaintiff that a copy of the waiver would be posted on his cell door. However, on September 27, 2001, the Plaintiff alleges that Anderson again removed the order from his cell door. The Plaintiff submitted another written grievance, which S.K. Young, the Warden of Operations at Wallens Ridge, considered to be "founded," but not a violation of the Plaintiffs constitutional rights.

As a result of the denials of his requests for compensation and adequate punishment of those involved, the Plaintiff filed suit under 42 U.S.C. § 1983 and section 504 of the Rehabilitation Act¹, seeking damages in the amount of $7,000 for his pain and suffering.

II

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, forbids discrimination against the disabled in programs receiving federal funds: "No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability! be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." Id. § 794(a). Courts have interpreted this language broadly, recognizing that Congress passed the Rehabilitation Act with the purpose of eliminating discrimination against the handicapped in programs and activities receiving federal financial assistance. See, e.g., Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). As part of this broad interpretation, the Supreme Court has held section 504 of the Rehabilitation Act to require "reasonable accommodations" in a particular program or activity receiving federal financial assistance in order to ensure "meaningful access" to the program. See Alexander, 469 U.S. at 301, 105 S.Ct. at 720.

The Rehabilitation Act defines "program or activity" to include every state or local government entity that receives federal financial assistance. 29 U.S.C. § 794(b)(1)(B). The Fourth Circuit was initially reluctant to include state prisons within the meaning of this phrase. See Amos v. Maryland Dep't of Pub. Safety and Corr. Services (Amos I), 126 F.3d 589 (4th Cir.1997); Torcasio v. Murray, 57 F.3d 1340 (4th Cir.1995). However, in a 1998 ruling, the Supreme Court removed all doubt on this issue by expressly stating that the language of the Rehabilitation Act includes state prisons receiving federal funds. Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (holding that the language of the ADA, which is the identical language used in the Rehabilitation Act, includes state prisons). Courts in the Fourth Circuit have recognized the Supreme Court's ruling in Yeskey and have since applied the mandates of the Rehabilitation Act to state prisons. See, e.g., Amos v. Maryland Dep't of Pub. Safety and Corr. Services (Amos II), 178 F.3d 212 (4th Cir.1999); Mclntyre v. Robinson, 126 F.Supp.2d 394, 407-08 (D.Md.2000); Scott v. Kelly, 107 F.Supp.2d 706, 710 (E.D.Va. 2000).

The Virginia Department of Corrections has made three challenges in its Motion to Dismiss the Plaintiffs Rehabilitation Act claims. First, the VDOC contends that there is no private right of action to enforce the Act against an agency of the Commonwealth. Second, the VDOC argues that it maintains absolute sovereign immunity from suit, that the Commonwealth has not consented to waive this immunity by receiving federal funds, and that Congress cannot constitutionally abrogate the Commonwealth's sovereign immunity under the Rehabilitation Act. Finally, even if the Act validly removes the Commonwealth's immunity from suit, the VDOC claims that the Act would then violate the Tenth Amendment to the United States Constitution.

The VDOC has not bothered to discuss whether the Plaintiff has stated a valid claim under the Rehabilitation Act, opting instead to challenge the constitutionality of the Act. This Court does not have the luxury of such a choice, as "the `great gravity and delicacy'" that is required in passing judgment on the constitutionality of an act of Congress requires the Court to determine the absolute necessity of reaching a constitutional question before deciding it. See Ashwander v. Tennessee Valley Auth, 297 U.S. 288, 345-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936). Thus, before reaching the merits of the VDOC's constitutional challenges to the Rehabilitation Act, the Court must decide on the limited facts before it whether the Plaintiff states a valid claim under the Act.

III

To establish a violation of the Rehabilitation Act, a plaintiff must prove that he or she: (1) is a qualified individual with a disability; (2) is otherwise qualified for the benefit of programs, services, or activities in question; and (3) was excluded from the same due to discrimination on account of the disability. See Doe v. Univ. of Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir.1995); McIntyre v. Robinson, 126 F.Supp.2d at 408.

In defining what constitutes a qualifying disability, the Rehabilitation Act cites to the definition of disability found in 29 U.S.C. § 705(20). 29 U.S.C. § 794(a). This section defines an "individual with a disability" as any person who "(i) has a physical or mental impairment, which substantially limits one or more of such person's major life activities; (if) has a record of such an impairment; or (iii) is regarded as having such an impairment." The Plaintiff in the present case suffers from what he describes as a "chronically unstable right shoulder due to ligament and nerve damage." (Pl.'s Aff. at 1). This injury has eliminated any range of motion in Plaintiffs right shoulder, and he is forced to wear a sling at all times except when showering. (Pl.'s Aff. at 2) While the Plaintiffs injury might seem to have a negligible effect on his major life activities, it is unnecessary to quantify the impact of the injury in this case, as the Plaintiff can state a claim if he shows that the VDOC regards him as an individual with a disability. Plaintiff alleges that his injury has been recognized by the Department of Veterans Affairs and the VDOC. Id. at 1. The VDOC has not...