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Third Circuit Revives Disabled New Jersey Prisoner’s Claim for Deprivation of Walking Cane

by Douglas Ankney

On September 19, 2023, the U.S. Court of Appeals for the Third Circuit reversed dismissal of prisoner Tremayne Durham’s suit blaming employees of the New Jersey Department of Corrections (DOC) for injuries he suffered in a shower slip-­and-­fall, after they denied him access to his cane and a shower chair.

Durham was incarcerated at New Jersey State Prison (NJSP) in Trenton in January 2018, when a doctor diagnosed him with lumbar stenosis, a “narrowing of the spinal canal in the lower back.” The doctor prescribed epidural injections for pain management and a walking cane. In May 2020, Defendants sent Durham to a quarantine unit but refused to let him take his cane. For 10 days, Durham repeatedly requested his cane, informing guards he was in severe pain. He also requested to see the doctor and use a chair in the shower. Guards denied his requests, calling him “an asshole who gets nothing” because he “complains a lot.” The shower had no handrails, so without his cane or a chair, Durham fell and had to be transported in a wheelchair to the prison clinic, where he remained for several days.

Durham subsequently filed a pro se complaint in federal court for the District of New Jersey under 42 U.S.C. § 1983, accusing Defendants in their individual and official capacities of deliberate indifference to his medical needs in violation of the Eighth Amendment. He further alleged claims under the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 § 12101 et seq., and the Rehabilitation Act (RA), 29 U.S.C. § 701 et seq.

The district court dismissed the suit sua sponte, reasoning that Durham was not a “qualified individual” within the meaning of the ADA or RA and that Defendants were entitled to Eleventh Amendment immunity as to claims in their official capacities seeking monetary damages. Durham appealed.

The Third Circuit observed that to state an ADA claim, Plaintiffs must demonstrate that: (1) they are qualified individuals; (2) with a disability; and (3) they were excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or were subjected to discrimination by any such entity; (4) by reason of their disability, as laid out in Haberle v. Troxell, 885 F.3d 171 (3d Cir. 2018). “Where compensatory damages are sought, a plaintiff must also show intentional discrimination under a deliberate indifference standard,” the Court added, citing Furgess v. Penn. Dep’t of Corr., 933 F.3d 285 (3d Cir. 2019).

Unlike the deliberate indifference standard to demonstrate an Eighth Amendment violation, ADA’s deliberate indifference standard requires only a showing that: (1) defendants had knowledge that a federal right was substantially likely to be violated and (2) defendants failed to act despite that knowledge. A claim under RA requires the same showing with the additional element of proving that the program in question received federal dollars, as held in Gibbs v. City of Pittsburgh, 989 F. 3d 226 (3d Cir. 2021).

A “disability” includes “walking and standing,” the Court noted, and providing showers in prison also qualifies as a “service, program, or activity” under ADA. So discrimination may be shown by refusal to make reasonable accommodations that results in denial of use or access, as held in Jaros v. Illinois Dep’t of Corr., 684 F.3d 672 (7th Cir. 2012). Based on this, the Third Circuit concluded that Durham had stated a cognizable claim.

The Court further observed that the Eleventh Amendment bar against suing state officials in their official capacities may be abrogated by Congress, as held in Port Auth. Trans-­Hudson Corp. v. Feeney, 495 U.S. 299 (1990). ADA itself specifically provides that “[a] State shall not be immune under the eleventh amendment” for violating the act. Congress also has authority to abrogate Eleventh Amendment immunity whenever the conduct giving rise to an ADA violation also violates a constitutional amendment, as shown by United States v. Georgia, 546 U.S. 151 (2006). And Durham had alleged a violation of his Eighth Amendment rights stemming from the same conduct that gave rise to his ADA claims.

To prevail on his Eighth Amendment claim, Durham had to show that “(1) he had a serious medical need; (2) the defendants were deliberately indifferent to that need; and (3) the deliberate indifference caused harm to [Durham],” a test laid out in Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). The district court had found that Durham’s allegations lacked “the requisite mental state for the ‘deliberate indifference’ element: that prison officials knew of and disregarded ‘an excessive risk to inmate health or safety,’ meaning a ‘substantial risk of serious harm.’” The Third Circuit disagreed, citing Durham’s numerous complaints about his pain, his repeated requests for his cane and for a chair to use while showering—all of which showed that Defendants were aware of the risk of serious harm, meaning their refusal to grant the requests showed their indifference. Consequently, Durham had alleged a plausible claim of an Eighth Amendment violation which, in turn, was the basis of Congress’ authority to abrogate Eleventh Amendment immunity.

Thus the district court’s dismissal was vacated and the case remanded. Before the Court, Durham’s case was argued by attorneys Oren N. Nimni and Samuel Weiss of Rights Behind Bars in Washington, D.C. See: Durham v. Kelley, 82 F.4th 217 (3d Cir. 2023).  

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Related legal case

Durham v. Kelley