Fourth Circuit Affirms Dismissal of North Carolina Prisoner’s ADA Claim for Failure to Show Deliberate Indifference
by Douglas Ankney
In an instructive case for prisoners making claims under the Americans with Disabilities Act (ADA), 42 U.S.C. ch.126 § 12101, et seq., the U.S. Court of Appeals for the Fourth Circuit held on October 5, 2022, that a North Carolina prisoner failed to create a genuine issue of material fact that could demonstrate deliberate indifference to his serious medical need by prison officials.
Rodney A. Koon is an “ADA-assigned” prisoner in the state Department of Public Safety (DPS). Injuries sustained in an automobile accident prior to incarceration left him with chronic pain in his hips, his right knee and his left ankle. He is “not able to go up and down steps without difficulty,” the Court noted. Officials at Lanesboro Correctional Institution (CI) determined Koon’s ADA accommodations to be, inter alia, “no climbing permitted.”
While held there, Koon did not seek a “handicap pass” because he was able to access everything he needed. But when later transferred to Pender CI, Koon found it difficult and painful to climb up two flights of stairs to the general population library. There was a handicap library at the prison, accessible without using the stairs, but it required a handicap pass.
Koon made numerous attempts over a four-month period to obtain a pass, submitting a request to his case manager and at least four sick-call requests for a pass to access the library. Finally, Nurse Practitioner Diane Browning reviewed Koon’s request. However, she claimed it was labeled a request for a “renewed” handicap pass. Reviewing Koon’s medical records – she did not personally interview him – Browning observed Koon had never had a handicap pass. So she denied the request for renewal.
Koon grieved the denial and exhausted his appeals. He spoke in person with Prison Administrator Brian K. Wells about the issue to no avail. Finally, in October 2016, Dr. Joseph Maides – a new physician at Pender CI – looked at Koon’s record of medical restrictions and immediately issued the handicap pass.
The following month, Koon filed suit pro se against the State, Wells and Browning in federal court for the Eastern District of North Carolina, claiming denial of his right to reasonable accommodation under ADA and the Rehabilitation Act (RA), 29 U.S.C. § 701 et seq. Because he had already received the handicap pass, the only remedy sought was compensatory damages for the aggravated injuries to his legs from seven months of climbing stairs to the library.
The district court granted Defendants summary judgment, concluding “the record reflects that defendant Browning’s denial of plaintiff’s request to renew a handicap pass implicates, at most, negligence,” for which ADA provides no remedy. Koon appealed and was appointed counsel from attorney Danielle R. Feuer of O’Melvenny & Myers LLP in Los Angeles.
What the Fourth Circuit Said
The Fourth Circuit began by noting it treats claims under ADA and RA as the same because the analysis is substantially the same, pointing to Seremeth v. Bd. of Cnty. Comm’rs, 673 F.3d 333 (4th Cir. 2001). To get compensatory damages under ADA, the Court continued, a plaintiff must prove intentional discrimination, as laid out in Pandazides v. Va. Bd. of Educ., 13 F.3d 823 (4th Cir. 1994). “Discrimination” the Court said in Seremith, includes “not making reasonable accommodations.”
The Court acknowledged a circuit split over the standard to use when ADA plaintiffs seek compensatory damages for intentional discrimination: deliberate indifference or something more, as demonstrated by comparing Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334 (11th Cir. 2012), with Delano-Pyle v. Victoria Cnty., 302 F.3d 567 (5th Cir. 2002).
“In the ADA context, other circuits have used a two-step deliberate-indifference test that requires: (1) knowledge that a federally protected right is substantially likely to be violated, and (2) failure to act despite that knowledge,” the Court said, citing S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248 (3d Cir. 2013). The Court “largely agree[d] with that formulation, with the caveat that a plaintiff must show an ongoing or likely violation of a federally protected right before moving on to prove deliberate indifference through knowledge of that right and a failure to respond appropriately.”
“To make out a basic ADA violation, Koon must show that he: (1) has a disability; (2) was otherwise qualified to get some public program, service, or activity; and (3) was denied that program, service, or activity on the basis of his disability,” the Court continued, citing Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016).
A disability as defined in 42 U.S.C. § 12102(1)(A) is “a physical or mental impairment that substantially limits one or more major life activities,” the Court continued. Koon’s injuries satisfied the disability requirement. The prison library, the Court added, is a “service” under ADA § 12132, pointing to Penn. Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998). So, Koon satisfied the first and second prongs.
As to the last prong, the Court needed to determine whether Koon was denied “meaningful access” to the upstairs library, quoting Alexander v. Choate, 469 U.S. 287 (1985). Merely because Koon could climb the stairs did not mean he was provided “meaningful access,” the Court said, citing Wright v. N.Y. Dep’t of Corr., 831 F.3d 64 (2d Cir. 2016). As the Court posited: “If a prisoner without the use of his legs left his wheelchair and crawled up to the library, no one would doubt it was a denial of meaningful access.”
Having determined that Koon made a showing of an ADA violation, the Court moved on to determine if he made a showing of Defendants’ deliberate indifference – noting that “[d]eliberate indifference is, at bottom, an actual-notice standard,” citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).
“Simple failure to comply with the law is not deliberate indifference,” the Court explained. “It is not enough simply to point to what could have or should have been done. That is the language of negligence. Deliberate indifference requires a ‘deliberate or conscious choice’ to ignore something,” the Court reasoned, citing City of Canton v. Harris, 489 U.S. 378 (1989). In fact, it “is more like criminal-law recklessness than mere negligence,” the Court added, quoting Anderson v. Kingsley, 877 F.3d 539 (4th Cir. 2017). “An official must know of the dangers to federal rights and nonetheless disregard them.”
In Koon’s case, neither Wells nor Browning knew he had a “no climbing” ADA restriction. While Koon argued that they could have, or should have, checked the appropriate database, that again was “the language of negligence,” the Court said, and did not rise to the standard of deliberate indifference.
Not knowing about Koon’s ADA restriction, Defendants could not consciously choose to ignore it, the Court concluded. Since that left no genuine issue of material fact to try, the district court’s order was affirmed. See: Koon v. North Carolina, 50 F.4th 398 (4th Cir. 2022).
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