Partelow v. Massachusetts, Civil Action No. 03-30294-MAP.

• Decision Date: 23 June 2006
• Docket Number: Civil Action No. 03-30294-MAP.
• Parties: Warren PARTELOW, Plaintiff v. Commonwealth of MASSACHUSETTS, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

442 F.Supp.2d 41

Warren PARTELOW, Plaintiff v. Commonwealth of MASSACHUSETTS, et al., Defendants.

Civil Action No. 03-30294-MAP.

United States District Court, D. Massachusetts.

June 23, 2006.

COPYRIGHT MATERIAL OMITTED

Alfred P. Chamberland, Richard A. Habhab, The Law Offices of Alfred P. Chamberland, Easthampton, MA, for Plaintiff.

Edward J. McDonough, Jr., Egan, Flanagan & Cohen, PC, Springfield, MA, for Defendants.

MEMORANDUM REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. No. 13)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiff Warren Partelow contends that Defendants—the Commonwealth of Massachusetts, the Hampden County Correctional Center, Sheriff Michael Ashe, Jr., Dr. Thomas Conklin, Captain Walker, Captain Saddi,¹ and certain John Does— violated his federal and state civil rights, the Americans with Disability Act ("ADA"), 42 U.S.C. §§ 12101 et. seq., the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. §§ 706, 791-794, Mass. Gen. Laws ch. 272, § 98, and Article 114 of the Amendments to the Massachusetts Constitution, and are liable for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress, due to their failure to provide him with handicapped accessible shower facilities during his 2001 incarceration. Defendants deny Plaintiff's allegations and have moved for summary judgment.

On March 31, 2006, the court allowed Defendants' motion for the reasons outlined below.

II. FACTS

The following facts are set forth in the light most favorable to Plaintiff, the nonmoving party. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 12 (1st Cir. 2004) (citation omitted). Plaintiff is a left leg amputee, who began serving a ninemonth sentence at Defendants' facility on January 2, 2001. At that time, Plaintiff had an infection on his stump that did not permit him to wear a prosthesis. (See Dkt. No. 14, Ex. 6, Partelow Dep. 13:24-14:3, Nov. 16, 2004 ("I explained to them about [how] I couldn't wear [my prosthetic] because [my stump] was too swollen....").)² Consequently, Plaintiff was forced to use a wheelchair for the majority of his incarceration.³

After spending three days in the "new man" unit, Plaintiff was transferred to Pod A-1 on January 5, 2001. (Id. at 24:15-18; Dkt. No. 16, Ex. 2, Powell Aff. ¶ 4.) During his first two days in this housing unit, Plaintiff requested and received additional pillows to elevate his left leg (Dkt. No. 14, Ex. 1, Hampden County Medical Records of Warren Partelow 67, 143) and gloves to wear while using his wheelchair (id. at 66, 144). When the handicap accessible shower in Pod A-1 became unavailable due to renovations, Plaintiff complained and was given a plastic chair so he could sit down while he showered in a separate unit lacking the accommodations of a typical handicap accessible shower. (Partelow Dep. 22:12-23; id. at 61:6-7.)

On January 9, 2001, Plaintiff submitted a written request to speak with Sheriff Ashe concerning the lack of handrails in Pod-A shower stalls. (Partelow Dep., Defs.' Ex. 12.) The following day, Plaintiff informed Sheriff Ashe that he had recently fallen twice while showering. (Dkt. No. 16, Pl.'s Opp'n Defs.' Mot. Summ. J. 5 (citing Powell Aff. ¶¶ 5, 6).)⁴ In response, Sheriff Ashe assured Plaintiff that the showers in the housing units were being retrofitted in compliance with ADA requirements. (Partelow Dep. 29:23-24.) During the encounter, Plaintiff concedes that Sheriff Ashe treated him with dignity and respect. (Id. at 56:12-18.)

Later that same day, Plaintiff spoke with Captain Murphy, who arranged for Plaintiff to be transferred to Pod C-3, a maximum security area with handicap accessible showers. (Id. at 88:24-90:4.) Upon arriving in Pod C-3, Plaintiff learned that although he would have a handicap accessible shower in that unit, he would lose certain privileges not available in Pod C-3, including visits, telephone calls, and access to a day room, as well as opportunities to watch television and socialize with other inmates. (Id. at 72:1-73:5, 90:11-91:7; see also id. at 97:7-10 (acknowledging that nobody in Pod C had such privileges).) In light of these limitations, Plaintiff did not perceive his transfer to Pod C-3 as a reasonable accommodation for his disability, but saw it instead as punishment for his complaints. (Id. at 96:18-21.)

At his request, Plaintiff was transferred back to Pod A on January 12, 2001,⁵ only two days after arriving in Pod C3, despite the fact that the shower stalls in Pod A were still under renovation. (Powell Aff. ¶ 8.) Upon his return, Plaintiff was permitted to use the handicap accessible shower in the medical unit, which he did thirteen times from January 13, 2001 to January 29, 2001. (Powell Aff. ¶¶ 9, 16.)

On January 30, 2001, Defendants transferred Plaintiff to Pod C-4, where he had access to a handicap accessible shower, and the following day, Defendants moved him to Pod B-2. (Powell Aff. ¶¶ 10, 11.) At some point during his stay in Pod B-2, Plaintiff claims to have sought a transfer to the medical unit, but was told by a guard named "Bigelow" that he "complained too much about being a handicapped person." (Partelow Dep. 38:7-19 (noting that Bigelow also called Plaintiff a "troublemaker").) In response to his subsequent request for a complaint form, Plaintiff alleges that Bigelow "said no . . . . [W]e don't do that in this pod." (Id. at 39:5.) According to Plaintiff, after two or three other guards also refused to provide him with paper or a writing implement,⁶ he spoke with Captain Saddi, who summarily rejected Plaintiffs request for a medical unit transfer. (Id. at 40:2-8, 40:17-22.)

On January 31, 2001 and February 1, 2001, Plaintiffs first two days in Pod B-2, he showered at the medical unit. (Powell Aff. ¶ 16.) However, on February 6, 2001, Plaintiff submitted an inmate grievance form, implying that his access to the medical unit shower had been denied and blaming the lack of a handicap accessible shower in Pod B-2 for a recent fall. (Partelow Dep., Defs.' Ex. 11.)

The following day, Assistant Superintendent Robin Powell and Dr. Conklin determined that Plaintiff should be allowed to shower at the medical unit during the Pod B-2 shower renovations. (Powell Aff. ¶ 13.) On February 8, 2001, after coordinating this accommodation with Clinical Nurse Specialist Kathleen Wyler, Powell replied in writing to Plaintiff's grievance, informing him that he would have access to the medical unit shower and apologizing for any inconvenience due to the renovations. (Powell Aff. at ¶¶ 14, 15; Dkt. No. 14, Ex. 8, Wyler Aff. ¶ 5.)

From February 9, 2001 to February 16, 2001, Plaintiff showered at the medical unit on a daily basis. During his deposition, Plaintiff testified that, after this week of showering in the medical unit, "the head of the nurses said that they couldn't have [him] go up there every day for [his] entire stay." (Partelow Dep. 64:7-17; see also id. at 65:19-22 ("It was only for a week that I could use the showers, they said, because they could find other avenues for me to shower—which never happened.").) However, in opposing Defendants' motion for summary judgment, Plaintiff merely notes that there is no record of him showering in the medical unit from February 17, 2001 until his release on May 22, 2001. (Pl.'s Mem. Opp'n Defs.' Mot. Summ. J. 6 (citations omitted)). Given the centrality of this issue to Plaintiff's case—during this period, he claims to have fallen in "regular" showers on several occasions and contends that each fall caused him severe pain (Partelow Dep. 22:9-12)—this equivocation is rather baffling.

On December 2, 2003, Plaintiff filed a ten-count verified complaint alleging: "Violation of 42 U.S.C. Section 1201 et al [sic] (Americans with Disabilities Act)" (Count I); "Violation of 29 U.S.C. § 701, et seq (Rehabilitation Act of 1973—Title V)" (Count II); "Violation of M.G.L. c. 272 § 98 (Handicapped Discrimination)" (Count III); "Violation of Article CXIV of the Amendments to the MA Constitution (Discrimination)" (Count IV); "Violation of Massachusetts General Laws Chapter 12, § 111 (Massachusetts Civil Rights Act)" (Count V); "Violation of 42 U.S.C., Sections 1981, 1983 and 1988 (Federal Civil Rights Violations)" (Count VI); "Violation of 42 U.S.C., §§ 1985(c) and 1986 (Neglecting to Prevent Acts Wrongful under § 1985)" (Count VII); "Intentional Infliction of Emotional Distress" (Count VIII); "Negligent Infliction of Emotional Distress" (Count IX); and "Negligence" (Count X).

III. STANDARD OF REVIEW

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). Establishing the existence of a genuine issue requires "more than simply show[ing] that there is some metaphysical doubt as to the material facts." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995), (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Instead, the nonmoving party must present "enough competent evidence" to permit a rational trier of fact to find in his favor. Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006) (citations omitted).

As the First Circuit has frequently noted, "evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve." I.V. Servs. of Am., Inc. v. Inn Dev. & Mgmt., Inc., 182 F.3d 51, 56 (1st Cir.1999) (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989)); see also Crawford v. Lamantia, 34 F.3d 28, 31 (1st Cir.1994), cert. denied, 514...