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Prisoner ADA Suit Wins at Trial

by John Emry, Attorney at Law

Below is a report of a trial and recent retrial [ Cleo Love v. Westville Correctional Center, USDC, Northern District, South Bend Division, Indiana; 3:94CV0371RM] which had interesting results:

Plaintiff, a quadriplegic confined to a wheelchair for several years, was committed to the custody of the Indiana Department of Correction in 1984. Prior to his commitment, Plaintiff ran his own business and lived at home with assistance from a friend who tended to his needs. From 1984 until his release ten years later, Plaintiff was always housed in the infirmary or hospital units of DOC institutions and was not allowed to leave these units except for outside medical care and occasionally visitation. Unlike most inmates, Plaintiff was not tested and evaluated to find out what he was qualified to do and needed to rehabilitate himself.

Plaintiff was assigned to the Westville Correctional Center (WCC) from May of 1992 until his release in July of 1994. At WCC, Plaintiff was assigned to the infirmary on the second floor in a secured area of the administration building which is outside the security fence surrounding the Industrial Complex and the Education Complex where the general population lived, worked and went to school.

Plaintiff required occasional medical care, he was able to transport himself and stay up for long periods of time, often as much as four or more hours at a stretch. Despite his ability to do so, Plaintiff was not allowed to leave the infirmary to attend school classes, use the law library and regular library, work, eat in the dining hall, visit in the regular visitor's room, live at the Westville Transition Unit or even participate in an effective transition program, take commissary with general population, attend group substance abuse classes, or use the gymnasium and participate in recreation activities outside a small and poorly equipped room next to the infirmary. His efforts at obtaining his GED never materialized, a major goal of his throughout his stay.

Plaintiff filed a complaint shortly before his release alleging that WCC had denied him access to the programs, services and activities for which he was otherwise qualified in violation of the Americans with Disabilities Act of 1990 (ADA), 42 USC §§ 12131 to 12134, and the Rehabilitation Act of 1973 (Rehabilitation Act), 29 USC §794, as amended.

Because the Rehabilitation Act provided the same relief as the ADA, the matter was tried to a jury under the ADA. After a three day trial ending on April 14, 1995, the jury returned its verdict finding that WCC had violated Plaintiff's rights under the ADA, but did not find that the violations were intentional. The jury awarded Plaintiff $1,000 for his economic losses and nothing for his non-pecuniary damages.

Plaintiff motion for a new trial was granted based on Plaintiff's contention that even if the court's instructions requiring intentional discrimination for non-pecuniary damages were correct the clear weight of the evidence proved that any discrimination by WCC was intentional. The court granted a new trial on damages, but set aside the jury award of $1,000 because there was no evidence that Plaintiff had suffered pecuniary losses such as lost income or profit. A new trial was held on October 2, 1995, solely on the issue of damages. The new jury awarded Plaintiff $30,948 (approximately $50 a day for two years minus something). A motion for attorney fees is pending, but Defendant has filed a notice of appeal which if actually pursued should establish some guidance for subsequent cases.

Comments: This case would appear to be the first damage case brought under Title II of the ADA, the denial of access to an individual with a disability to the programs, services or activities of a government entity. Plaintiff was also a named plaintiff in a class action filed under the ADA and the Rehabilitation Act in July of 1992 against the Indiana DOC [ Floyd Gibbs, et al. v. Chris Debruyn, Commissioner, Indiana Department of Correction , USDC, Southern District of Indiana, Indianapolis Division, IP92-928C-T/F], but that action was solely for injunctive and declarative relief. The fact that Gibbs was filed, however, was part of the evidence which put WCC on notice and helped prove intentional discrimination. That class action is pending approval of an Agreed Entry by the Court. The issue in Gibbs of whether DOC has to make each institution accessible to wheelchairs is a separate issue with a summary judgment motion pending.

Because Plaintiff's case was one of apparent first impression under the ADA and the Rehabilitation Act, the instructions were written without much guidance from case law and were based almost entirely on the ADA itself and the rules promulgated pursuant to it by the Department of Justice. The court accepted most of Plaintiff's instructions with little modification, but accepted WCC's argument that intentional discrimination was required to find non- pecuniary damages. Plaintiff argued that intentional discrimination was not required under Title II since Congress must have known that economic losses would seldom if ever be found in a Title II cases; however, the court elected to follow the reasoning of employment discrimination cases to arrive at its instructions and a two part jury verdict form requiring only discrimination for economic losses, but intentional discrimination for non-pecuniary losses such emotional or mental harm, including embarrassment, humiliation, mental anguish, fear, or the loss of participation in the programs, services or activities offered by WCC. Fortunately, WCC's actions and non-action established more than enough evidence to prove the discrimination was intentional even under WCC's own instruction and supported the motion for a new trial on damages. At least one circuit has supported the district court on the issue of proving intentional discrimination for non-pecuniary damages.

It might be noted that Judge Miller's use of a computer at the bench appeared to help speed the trial along and enabled him to provide proposed final instructions, final instructions and rulings with footnotes without much delay.

I have a second case which is in its initial stages involving a blind prisoner who was kept in an infirmary during his entire stay [ Cortez Wright v Indiana Department of Correction , USDC, Southern District, Indianapolis Division; IP95-769C-T/G]. It is similar to the one above in many respects, but may or may not have similar results since it is in the Southern District. I have several cases which I may file which raise other issues in the ADA context and which may be joined with 42 USC §1983 claims as well. See: Noland v Wheatley , 835 FSupp 476 (ND Ind 1993). Qualified immunity is not available to individuals for violations of ADA by jail officials, and a violation of the ADA may also state a claim under 42 USC §1983. This is useful if you want to sue individuals, since one can probably only sue the public entity under the ADA.

[Editor's Note : The plaintiff's motion for a new trial is reported as Love v. McBride , 896 F. Supp. 808 (ND IN 1995). The court used strong language to make clear that Love suffered intentional, willful discrimination at the hands of prison officials. A recent ADA case, Torcasio v. Murray , 57 F.3d 1340 (4th Cir. 1395) is reported in this issue of PLN . Mr. Emry filed a motion to dismiss the defendant's motion for qualified immunity by noting that in his suit only state agencies are being sued, while qualified immunity applies only to individual capacity suits. Mr. Emry's motion points out the fallacies in the Torcasio ruling. (For more information, contact: John Emry, Esq., 169 E Jefferson, St. Franklin IN 46131, (317) 736-5800.) PLN congratulates Mr. Emry for his victory on behalf of disabled prisoners. We ask readers to keep us posted of jury verdicts and settlements that otherwise do not get reported.]

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Related legal cases

Love v. McBride

CLEO LOVE, Plaintiff vs. DANNY McBRIDE, Defendant

CAUSE NO. 3: 94-CV-371 RM


896 F. Supp. 808; 1995 U.S. Dist. LEXIS 13464; 4 Am. Disabilities Cas. (BNA) 1617

May 23, 1995, Decided

COUNSEL: [**1] For CLEO LOVE, plaintiff: John W Emry, Jr, Franklin, IN.

For WESTVILLE CORRECTIONAL CENTER, defendant: David A Arthur, Indiana Attorney General, Indianapolis, IN.

JUDGES: Robert L. Miller, Jr., Judge, United States District Court

OPINIONBY: Robert L. Miller, Jr.



Cleo Love brought this action under the Americans with Disabilities Act, alleging that by reason of his disability, he was excluded from participation in certain programs and denied the benefits of certain services. After a three-day trial, the jury returned its verdict finding that Westville Correctional Center ("WCC") had violated Mr. Love's rights under the ADA, but not finding that the violation was intentional. The jury awarded Mr. Love $ 1,000.00 in damages. On April 14, the clerk entered judgment in accordance with the jury verdict.

Mr. Love seeks a new trial limited to the issue of damages or, in the alternative, for a new trial on the issues of liability and damages. He also seeks an extension of time within which to file his attorney's fee petition.

The court may grant a motion for new trial provided that the jury's verdict is against the clear weight of the evidence. McNabola v. Chicago [**2] Transit Authority, 10 F.3d 501, 516 (7th Cir. 1993); Scaggs v. Consol. Rail Corp., 6 F.3d 1290, 1293 (7th Cir. 1993); Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1196 (7th Cir. 1992). The court must "view damages evidence in the light most favorable to the verdict," Roggow v. Mineral Processing Corp., Needmore Processing Div., 894 F.2d 246, 249 (7th Cir. 1990) (citations omitted), and "let the verdict stand unless there [is] no rational connection between the evidence on damage and the verdict." Lippo v. Mobil Oil Corp., 776 F.2d 706, 716 (7th Cir. 1985) (citation omitted); see also Scaggs, 6 F.3d at 1293.

Mr. Love contends, assuming the court correctly instructed the jury as to damages, that the jury's verdict was against the clear weight of the evidence proving that any discrimination was intentional. The court agrees. The jury found that WCC discriminated against Mr. Love, and the record is absolutely devoid of any evidence that would support a finding that discrimination was not intentional. The court instructed the jury that "an act is done intentionally if it is done knowingly, that is if it is done voluntarily and deliberately and not because of [**3] mistake, accident, negligence, or another innocent reason." Jury Ins. No. 15(b). n1 No evidence was presented at trial, either by WCC or Mr. Love, that would tend to show that if discrimination existed (as the jury found), it was caused by mistake, accident, negligence, or another innocent reason.

n1 WCC tendered this part of Instruction No. 15 before trial.

The clear weight of the evidence -- indeed, the uncontradicted evidence -- supports a finding that if there was discrimination, it was intentional. Mr. Love testified, without contradiction, that since at least May 1, 1992, he requested several times that he have access [*810] to programs and services such as education, a group substance abuse program, the transition program, commissary, outside recreation, and a prison job. Gary Kendrick and James Yager corroborated Mr. Love's testimony of repeated requests for access to education and the law library. Larry Noland testified that in May 1993, Mr. Love was struggling with his counselor Haley about getting an education [**4] and his G.E.D.

Documentary evidence supports the conclusion that the discrimination had to be intentional. Plaintiff's Exhibit No. 12 showed that Mr. Love requested access to school in August of 1990 and had requested access for six years. Plaintiff's Exhibit 40 showed that Mr. Love filed a complaint about his lack of access to commissary. Plaintiff's Exhibit 34 showed Mr. Love requested to be in a substance abuse program on May 12, 1992. Plaintiff's Exhibit 9 showed that Mr. Love requested a transfer to transition unit approximately two months before his release date.

Both Vernon Brown, Assistant Superintendent of Programs at WCC, and Danny McBride, Superintendent of WCC, testified that they were aware of the complaint in a class action of which Mr. Love was a named plaintiff and demanded access to at least eight programs or services. Mr. Brown admitted in a deposition taken in that class action that he was aware that Mr. Love sought access to school to obtain his G.E.D. Mr. Love presented documentary evidence, see Plaintiff's Exhibit 18, that on March 11, 1993, Lyle Hatton, ADA Coordinator at WCC advised that Mr. Love and others were "excluded from some programs and services simply [**5] because of where they are housed and housing based only on their limitations." Mr. Love presented documentary evidence, see Plaintiff's Exhibits 19, 20-24, that Ron Black, Complex Director for the Industrial Complex, and Vern Brown, and Lyle Hatton were aware that changes were necessary to meet the requirements of the ADA. Mr. Brown testified that Mr. Love asked for substance abuse counseling in May 1993. Plaintiff's Exhibit 41, admitted into evidence, reveals that on July 14, 1993, Lyle Hatton responded to five grievances Mr. Love filed regarding access to outdoor recreation, law library, G.E.D. classes, job assignment, and religious services.

WCC presented no evidence at trial tending to show that it did not intend to discriminate against Mr. Love. The great weight of the evidence shows that WCC knew that it was not providing Mr. Love full access to services, programs, and activities, knew that Mr. Love's disability was the reason he was not receiving full access to those programs, knew that Mr. Love repeatedly requested access, knew that WCC had a legal duty to provide Mr. Love with reasonable access, and knew that Mr. Love had a right to reasonable access.

WCC may not have known [**6] that the access they were affording Mr. Love was unreasonable, but the jury was not asked to find a willful violation of the ADA. WCC voluntarily and deliberately denied Mr. Love's requests for greater access to the programs, and did so because of this known disability, not because of mistake, accident, negligence, or another innocent reason. Mr. Love was not required to prove anything more to establish that the discrimination (a separate issue) was intentional.

WCC contends, relying on Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928 (7th Cir. 1995), that intentional acts that are discriminatory are not necessarily proof of discriminatory intent. Indiana Bell had presented affidavits that it did not know of Hedberg's disability when it discharged him. Hedberg, 47 F.3d at 931. The court held that an employer cannot be held liable under the ADA for discharging an employee when the employer had no knowledge of the employee's disability. Hedberg, 47 F.3d at 932. The court reasoned that an employer that does not know of the employee's disability, cannot discharge the employee "because of" his disability, and so must have discharged the employee for some other reason. [**7] Hedberg, 47 F.3d at 932.

Hedberg is easily distinguishable. WCC does not, and cannot, contend that it did not know of Mr. Love's disability. The evidence clearly shows that at all times WCC knew of Mr. Love's disability; indeed. WCC contends that it placed Mr. Love on A2 South, [*811] causing him to have restricted access to programs and services, "because of" his disability. WCC's own argument in opposition to Mr. Love's motion proves that WCC acted voluntarily and deliberately in denying Mr. Love access to programs and services. WCC argues that it restricted Mr. Love's access because of his need of constant medical attention. WCC's Response at 5-6. Thus, the clear weight of the evidence shows that WCC's discrimination was intentional. The jury could not reasonably have found otherwise. Upon finding that WCC discriminated against Mr. Love, no reasonable jury could find that the discrimination was other than intentional.

WCC's contention that it did not violate Mr. Love's rights under the ADA is unavailing. Mr. Love seeks a new trial on the issue of damages, and only alternatively seeks a new trial on liability and damages. The court, in its discretion, finds that Mr. Love should [**8] be granted the primary relief he seeks: a new trial solely as to damages. The jury found that WCC discriminated against him and the only reasonable finding is that the discrimination was intentional. Therefore, Mr. Love is entitled to have a jury finding as to his damages, if any, for any emotional or mental harm that Mr. Love may have suffered, including embarrassment, humiliation, mental anguish, fear, or the loss of participation in, services, benefits, or programs offered by Westville Correctional Center.

WCC contends that there is no rational connection between the evidence on Mr. Love's damages and the jury's verdict awarding Mr. Love $ 1,000.00 in pecuniary damages. The court agrees. The record contains no evidence that Mr. Love suffered any pecuniary damages. Even Mr. Love's counsel conceded during closing argument that he suffered no pecuniary damages:

What did he lose? You can't really say he lost pay because he probably didn't. He wasn't employed. If he was employed maybe he would get more. Maybe he wouldn't. What he lost is up here. It is that intangible that is so hard to comprehend.

Tr. at 22-23. Mr. Love's counsel added during rebuttal argument:

There [**9] was a discussion of he didn't lose anything because he didn't get a job. No, he didn't lose sixty-five cents a day. What he lost was self-respect. He lost the chance to get out and feel good about himself, say I'm doing a job. He was told he wasn't good enough to do a job because he was a quadriplegic. That is what he lost. He didn't lose ten cents a day. He lost that ability to feel useful.

Tr. at 40. Because there is no evidence in the record that Mr. Love suffered any pecuniary damages because of WCC's discrimination, there is no rational connection between the evidence on damages and the jury's verdict awarding Mr. Love $ 1,000.00 in pecuniary damages. Thus, the jury's award of pecuniary damages cannot stand. See Lippo, 776 F.2d at 716; Scaggs, 6 F.3d at 1293.

Accordingly, Mr. Love's motion for new trial on damages should be granted as to damages for emotional or mental harm that Mr. Love may have suffered, including embarrassment, humiliation, mental anguish, fear, or the loss of participation in, services, benefits, or programs offered by Westville Correctional Center. The jury's $ 1,000.00 pecuniary damages award must be vacated.

For the foregoing reasons, [**10] the court:

(1) GRANTS Mr. Love's motion for new trial on the issue of damages (filed April 21, 1995 (#48-1)), ORDERING that Mr. Love shall have a new trial as to his damages of emotional or mental harm, including embarrassment, humiliation, mental anguish, fear, or the loss of participation in, services, benefits, or programs offered by Westville Correctional Center, if any;

(2) VACATES the clerk's judgment (entered April 14, 1995 (#47)), RE-OPENING this cause;

(3) SETS this cause for purposes of trial setting for a telephonic status conference on June 29, 1995 at 9:00 a.m. (E.S.T.), with the court to establish the call;

(4) DENIES AS MOOT Mr. Love's motion for extension of time to file attorney's fee petition (filed April 21, 1995 (#48-2)). Because the judgment has been vacated, [*812] the time for seeking attorney fees has not yet come.


ENTERED: May 23, 1995

Robert L. Miller, Jr., Judge

United States District Court

Love v. Westville Correctional Center