Odom v. Fla. Dep't of Corr.

• Decision Date: 15 July 2014
• Docket Number: Case No: 3:09cv570/MCR/CJK
• Court: U.S. District Court — Northern District of Florida
• Parties: KENNETH ODOM, Plaintiff, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants.

KENNETH ODOM, Plaintiff, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants.

Case No: 3:09cv570/MCR/CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

July 15, 2014

ORDER and REPORT AND RECOMMENDATION

This case filed under 42 U.S.C. § 1983 and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, is before the court upon defendants' motion for summary judgment (doc. 106) and evidentiary materials (doc. 108). Plaintiff has not responded to the motion.¹ The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). Having fully considered the pleadings, arguments, applicable law andevidence of record, the undersigned recommends that defendant's motion for summary judgment be granted.

BACKGROUND AND PROCEDURAL HISTORY

Background

The events giving rise to plaintiff's fifth amended complaint occurred from July 2007 through January 2008 at Santa Rosa Correctional Institution ("Santa Rosa CI"). (Doc. 61). Plaintiff sues the DOC under the ADA for the denial of participation in the outdoor exercise program for inmates held in close management confinement and raises questions regarding the reasonableness of the accommodation provided. In addition, plaintiff sues Captain "Swartz" (hereinafter "Schwarz")² and Sergeant Ellis in their individual capacities under 42 U.S.C. § 1983, for their alleged retaliation against plaintiff for filing grievances, in violation of the First Amendment. As relief, plaintiff seeks injunctive relief, compensatory and punitive damages, costs, and any other relief the court deems just and proper. (Doc. 61).

Procedural History

Plaintiff initiated this action on December 24, 2009, while in the custody of the Florida Department of Corrections ("DOC") confined at Hamilton Correctional Institution. (Doc. 1). On December 16, 2010, plaintiff filed a third amended complaint naming eight defendants (Martie Taylohr, Pilar Tourney, J.J. Taylor, W.D. Rummel, M. Nichols, John Doe, Captain Schwarz and Jennifer Haas), each sued in his or her individual and official capacities. (Doc. 35, pp. 1-2). The complaint asserted three claims/counts. Count I asserted a claim of disability discriminationunder the ADA against all defendants. (Id., pp. 19-20). Count II asserted a claim of medical deliberate indifference under the Eighth Amendment against defendants Doe, J.J. Taylor, Rummel and Nichols. (Id., pp. 20-21). Count III asserted a claim of retaliation under the First Amendment and the ADA against defendant Schwarz. (Id., pp. 21-22). On October 27, 2011, the undersigned recommended that the complaint be dismissed prior to service for failure to state a claim upon which relief may be granted. (Doc. 40). On July 7, 2012, the District Judge adopted in part and rejected in part the recommendation. (Doc. 51). The District Judge's order provided as follows:

a. The Recommendation is reversed as to Count I insofar as the plaintiff states a claim of disability discrimination in violation of the Americans with Disabilities Act ("ADA") against the Department of Corrections for the denial of participation in the outdoor exercise program for inmates held in close management confinement and raises questions regarding the reasonableness of the accommodation provided.

b. The Recommendation is reversed as to the retaliation claim set forth in Count III.

c. In all other respects, the Recommendation is adopted and incorporated herein by reference.

2. Thus, Count II and any claims against individual officers in Count I are DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(ii) for the plaintiff's failure to state a claim upon which relief may be granted.

(Doc. 51, p. 3). The District Judge remanded the case to the undersigned for further proceedings.

On July 10, 2012, the undersigned issued an order directing plaintiff to file an amended complaint limiting his claims to those that survived dismissal. (Doc. 52).The July 10, 2012 order specified the claims (and defendants) upon which plaintiff was allowed to proceed, and admonished plaintiff that his amended complaint "should be limited to the claims subject to the [District Judge's] remand." (Doc. 52, p. 2). In response, plaintiff filed a fourth amended complaint, but declined to comply withe the July 10, 2012 order.³ The court disapproved plaintiff's fourth amended complaint and gave plaintiff another opportunity to comply with the court's order. (Doc. 60).

On November 29, 2013, plaintiff filed a fifth amended complaint, setting out the claims now before the court. (Doc. 61). Although plaintiff's fifth amended complaint continues to name all eight of the original defendants (including five against whom all claims had been dismissed), the court accepted the complaint with the provision that plaintiff's naming of Martie Taylor, Peter Tourney, J.J. Taylor, W.D. Rummel and M. Nichols as defendants would be disregarded and only three defendants would be served (the Florida Department of Corrections, Captain Schwarz and Correctional Officer Ellis). (Doc. 62, p. 2). Defendants DOC, Schwarz and Ellis were served and filed an answer. (Doc. 88). During the discovery period, plaintiff was released from incarceration. (See Doc. 99, p. 2 ¶ 4). Defendants now move for summary judgment on the following bases:

(1) Plaintiff lacks a case or controversy to seek the injunctive relief requested in the Fifth Amended Complaint.

(2) Plaintiff cannot show an adequate physical injury to overcome the bar on compensatory and punitive damages under 42 U.S.C. § 1997e(e).

(3) The alleged adverse actions of the DOC did not actually violate plaintiff's constitutional rights; therefore, plaintiff cannot seek damages against the DOC for its alleged violation of the ADA, because Title II of the ADA only abrogates the State's sovereign immunity for state actions that actually violate a plaintiff's constitutional rights.

(4) Plaintiff cannot show the defendants' alleged actions violated Title II of the ADA, because:

a. Plaintiff was not denied access to outdoor exercise on the basis of his disability; rather, plaintiff independently refused outdoor exercise when offered.

b. Defendant Crews evaluated plaintiff for and offered plaintiff reasonable accommodations so he could enjoy the benefits of the programs and services offered by the DOC.

c. Plaintiff's insistence on a single accommodation was unreasonable and contradicts medical evaluation.

(5) Plaintiff failed to exhaust his administrative remedies regarding defendants' alleged retaliation on October 25, 2007.

(6) Plaintiff cannot show the defendants' alleged retaliatory actions on October 25, 2007, were in response to plaintiff's filing medical grievances, because:

a. Plaintiff cannot show the defendants knew of his constitutionally-protected actions (filing medical grievances) when they allegedly took adverse action against him.

b. Plaintiff's placement in a handicap cell was contrary to medical policy of the DOC.

(Doc. 106).

On February 14, 2014, the court ordered plaintiff to respond to the summary judgment motion on or before March 17, 2014, and warned plaintiff that failure to do so may result in the motion being granted and final judgment being entered in favor of the defendants without a trial. (Doc. 109). Plaintiff has not responded to defendant's motion.

DISCUSSION

Summary Judgment Standard

A motion for summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of proof to set forth the basis for its motion, identifying facts as to which there is no genuine dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The failure of the nonmoving party to create a factual dispute does not itself authorize the entry of summary judgment; the moving party must establish the absence of a material dispute of fact. See Dixie Stevedores, Inc. v. Marinic Maritime, Ltd., 778 F.2d 670, 673 (11th Cir. 1985). When, however, the nonmoving party fails to properly address the moving party's assertion of a fact, the court may consider the fact undisputed and may grant summary judgment if the motion and supporting materials show that the moving party is entitled to it. Fed. R. Civ. P. 56(e)(2), (3); see also N.D. Fla. Loc. R. 56.1(A) (stating that facts set forth in the moving party's statement of undisputed material facts will be deemed admitted unless controverted by the opposing party).

Allegations of Plaintiff's Fifth Amended Complaint

The allegations of plaintiff's fifth amended complaint are summarized here for the limited purpose of providing context to the "Undisputed Material Facts" set forth below. The allegations of plaintiff's fifth amended complaint cannot be considered for purposes of determining whether a genuine dispute of material fact exists, because plaintiff's fifth amended complaint is neither sworn, verified, nor subscribed as true under penalty of perjury. (See Doc. 61, p. 23). Compare Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980) ("Although pro se litigants are not held to the same standards of compliance with formal or technical pleading rules applied to attorneys, we have never allowed such litigants to oppose summary judgments by the use of unsworn materials."),⁴ and Piper v. United States, 392 F.2d 462, 464 (5th Cir. 1968) (holding that denials in unverified pleading were insufficient to controvert affidavit offered in support of motion for summary judgment); with Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986) (holding that specific facts pled in a sworn complaint and repeated in a separate affidavit must be considered in opposition to summary judgment); see also 28 U.S.C. § 1746 (providing an alternative to making a sworn statement, but requiring that the statement include a handwritten subscription, signed...