Koon v. North Carolina, 21-6616

• Docket Number: 21-6616
• Decision Date: 05 October 2022
• Citation: 50 F.4th 398
• Parties: Rodney A. KOON, Plaintiff-Appellant, v. State of NORTH CAROLINA; Brian K. Wells ; Diane K. Browning, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

50 F.4th 398

Rodney A. KOON, Plaintiff-Appellant,

v.State of NORTH CAROLINA; Brian K. Wells ; Diane K. Browning, Defendants-Appellees.

No. 21-6616

United States Court of Appeals, Fourth Circuit.

Argued: January 26, 2022

Decided: October 5, 2022

ARGUED: Danielle Rebecca Feuer, O'MELVENY & MYERS LLP, Los Angeles, California, for Appellant. Alex Ryan Williams, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Samuel S. Weiss, RIGHTS BEHIND BARS, Washington, D.C.; Sabrina S. Strong, Los Angeles, California, Kendall Turner, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Wilkinson joined. Judge Wynn wrote a separate opinion concurring in part and dissenting in part.

RICHARDSON, Circuit Judge:

Rodney Koon is a disabled prisoner who walks with a cane, yet he was denied a handicap pass to access the first-floor library for seven months. Because of that denial, Koon was forced to climb two flights of stairs to get to the general-population library. Koon says that this exertion caused him serious pain, made his old injuries worse, and caused him new injuries. While Koon eventually got his handicap pass, he now wants damages for the pain, injuries, and suffering that were caused by that seven-month delay. But under the Americans with Disabilities Act, plaintiffs can only get compensatory damages for intentional discrimination. What showing that requires is an open question in this circuit, but it at least requires deliberate indifference to the prisoner's federally protected rights. Because Koon has failed to establish deliberate indifference, the district court was right to grant summary judgment to the State of North Carolina, and we affirm.

I. Background

Rodney Koon is a state prisoner in North Carolina. Koon caused a fatal car accident while high on drugs and pleaded guilty to two counts of felony death by vehicle and one count of involuntary manslaughter. The same accident that put him in jail also caused his disabling injuries, which have plagued him for years afterward with chronic pain in his hips, his right knee, and his left ankle. They have required surgery and physical therapy, and they still force Koon to walk with a cane, sometimes even requiring a wheelchair for long distances. And the pain gets worse the more he is forced to walk. Given these injuries, North Carolina acknowledges that Koon has a disability and treats him as an "ADA assigned" inmate.

Koon was briefly treated at the healthcare complex at Central Prison early in his incarceration. He was then housed at Lanesboro Correctional. As soon as he got to Lanesboro, Koon asked for an accommodation for his disability. J.A. 41 ("I'm not able to go up and down steps without difficulty ...."). He was assessed to determine what accommodations, if any, might be required. In that initial evaluation, Koon was granted limitations on certain activities and other modifications based on his injuries. He was given a cane and a bottom bunk. He received a lifting limitation of 25 pounds. He was excused from performing tasks requiring pushing or pulling, and importantly for this case, climbing. The amount of climbing he was allowed "under the ADA" was strict: "none." J.A. 42–43. The evaluation listed his limitations as "[c]onsiderable" and his condition as "[p]ermanent." Id. Koon did not, however, seek a "handicap pass" at Lanesboro. A handicap pass is different from ADA status and allows a prisoner access to certain areas that are otherwise off limits, places like a handicap library. Koon says that he never applied for a handicap pass at Lanesboro because he didn't need one. According to Koon, he could access everything he needed at Lanesboro, including the library, without ever having to climb or take "even one step." J.A. 88.

A few years later, Koon was transferred to Pender Correctional. He arrived in March. Once there, he realized that the general-population prison library was up two flights of stairs (17 stairs in total), and that made it difficult and painful for him to use the library. There was a handicap library at Pender that was accessible without using the stairs, but it required a handicap pass. Having never pursued a pass while at Lanesboro, Koon set about trying to get one.

About two weeks after arriving, Koon submitted an inmate request form to his case manager. "I am an ADA assigned inmate ... and I'm going on my third week at Pender C.I. and I have not been able to attend the library .... Why do I not have a [handicap] pass ... already?" J.A. 125. Then, during an April sick call, Koon brought up his issues accessing the library with the medical staff. See J.A. 167. The nurse on that sick call saw his swollen knee, saw his climbing restriction, confirmed the climbing restriction on the computer, but still refused to give him a handicap pass. According to Koon, the nurse said that "without a Pender Prison handicap pass/card," Koon "would just have to keep going/using the Pender regulator population library, which is up seventeen (17) steps!" J.A. 168.

But that nurse would not have been able to provide the handicap pass, even if she decided that Koon needed one. At Pender, getting a pass only starts with a sick-call request and an initial nursing evaluation. From there, a request must be made to a medical provider (a doctor or a nurse practitioner) to make another evaluation—though, it needn't be face-to-face. See J.A. 52 (noting that a medical provider must approve a handicap pass "after evaluating the inmate and/or reviewing his medical records"). The handicap pass could be given only after that second evaluation.

Koon kept trying though. He submitted three more sick-call requests that spring and into summer, in April, May, and June. While they were not all focused on the handicap pass, each of those requests to some extent asked for a pass to access the handicap library. In June, all this led to a review of his records by the medical staff who could provide the pass he wanted.

The request went to Nurse Practitioner Diane Browning. There's some evidence that Browning had recently been thrust into her position by the sudden death of a superior, and that because of her inexperience, she wasn't fully comfortable with all the processes and systems required to do the job. When Koon's request for a handicap pass came across Browning's desk, it appeared in the computer system as a request for a renewed handicap pass. All handicap passes have expiration dates, so renewals were required from time to time. It's not clear from the record how the request got entered in the system as a renewed pass rather than for an initial pass. But Browning was unaware that anything was off, so she treated it like any other request for a renewed pass. She reviewed Koon's medical records and saw that he had been assessed at Lanesboro and that no handicap pass was issued there. Since Koon had never been granted a handicap pass in the North Carolina prison system, she denied his request for a renewed handicap pass. She did not meet with Koon or examine him, nor did she look at the prison database that listed inmates' medical restrictions;¹ she felt she didn't need to. See J.A. 53; see also Appellant's Br. 30–31. Browning did not know that Koon had submitted multiple sick-call requests, nor that Koon was an ADA prisoner with a climbing restriction. In her declaration, she admits that if she were aware of those details, she would have approved the request for a handicap pass. And while there is some evidence that she knew of Koon and had seen him walking around the facility—meaning she may have known he walked with a cane—walking with a cane does not automatically entitle you to a handicap pass.

After being denied, Koon submitted an administrative grievance. The prison responded to that grievance in July, after a staff investigator went over it, suggesting that a handicap pass wasn't medically necessary and that even though he walked with a cane, he could access the library for the general population. Koon appealed, and Bryan Wells, prison administrator and a Defendant here, confirmed the denial, telling Koon in writing that "staff has adequately responded to your complaint." J.A. 48. And Koon's final administrative remedy was denied in late August. "From this review, it appears that staff has adequately addressed this inmate's grievance concerns." J.A. 49.

During the time he filed all these formal requests, Koon was informally asking for help from anyone who would listen. Koon says that he stopped a prison official called CPT Harris two times in April and asked him for help. J.A. 46 ("[H]e wrote my name down each time."). Koon says he spoke to a Captain Hunt in April and asked for his help with the problem, though the circumstances of those meetings aren't clear from the record. In June, Koon spoke to Bryan Wells in person about the issue, and then sent a letter to Wells before following up with a grievance report. During a meeting with a chronic-disease nurse about unrelated medical issues, he again brought up the issue. And he met with and discussed the issue with his case manager Mr. Shelton in September. From all that came nothing, at least until the fall.

Koon finally got a handicap pass in October, during a sick call with Dr. Joseph Maides. According to Koon, Dr. Maides was new at Pender, and when he looked at Koon's record—in other words, when he looked at everything that Browning was supposed to look at—he immediately issued the pass. But even with the pass, Koon says the damage was already done when he was forced to walk to the library up two flights of stairs from March to October.

Koon filed this pro se civil suit seeking compensatory damages for the aggravated injuries to his legs. Koon...