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Jardina v. Department of Public Safety and Correctional Services

United States District Court, D. Maryland

April 17, 2019

JAMES J. JARDINA, #418-567 Plaintiff,


          James K. Bredar Chief Judge.

         Pending is a Motion to Renew Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment filed by Warden Richard Graham and former Assistant Warden Denise Gelsinger. ECF 98. In response, Plaintiff James J. Jardina has filed an Opposition and declaration. ECF 102. Also pending is Jardina's Motion to Amend the Complaint. ECF 103. No. hearing is necessary to resolve the issues. Loc. R. 105.6 (D. Md. 2018). For the following reasons, the Motion to Amend will be denied and the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment will be granted in part and denied in part.

         I. Background

         The procedural history, facts, and standard of review are set forth in the Court's prior Memorandum Opinions (ECF 51, 93) and are incorporated by reference and repeated as necessary to provide context and to resolve the pending motions.

         Jardina describes himself as “wheelchair bound” and handicapped. Compl. ECF 1 at 4. On April 27, 2017, he filed a Complaint pursuant to 42 U.S.C. § 1983, presenting claims arising from his May 6, 2015, fall from a wheelchair at Western Correctional Institution (WCI), and named as Defendants Wexford Health Sources, Inc., Robustiano Barrera, M.D., and Beverly McLaughlin, C.R.N.P. (collectively, the Medical Defendants), and the Department of Public Safety and Correctional Services (“DPSCS”), Warden Graham, former Assistant Warden Gelsinger, and COII Bobby J. Ziler (collectively, the State Defendants). The Complaint raised claims under the Eighth Amendment, the Americans with Disabilities Act (ADA), and a pendent state law claim under the Maryland Tort Claims Act. ECF 1 at p. 4.

         On March 3, 2017, the Court granted the Medical Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. ECF 52. In so doing, the Court dismissed all claims against Wexford. ECF No. 52. Jardina's claims against Barrera and McLaughlin under the ADA, 42 U.S.C. § 12131 et seq., were dismissed without prejudice. Id.; see also Memorandum Opinion, ECF 51 at 3, 20-21 (noting Jardina had alleged no facts to state an ADA claim); Compl. ECF 1 at 4. The Court granted summary judgment in favor of Barrera and McLaughlin as to Jardina's claim that they failed to personalize and maintain a wheelchair for him in violation of his rights under the Eighth Amendment. ECF 52. Additionally, the Court granted the State Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. The Court dismissed the claims against the DPSCS, dismissed the ADA claims against Graham, Gelsinger, and Ziler without prejudice, and entered summary judgment in favor of Graham, Gelsinger, and Ziler as to Jardina's Eighth Amendment claims that they acted with deliberate indifference to his safety regarding his fall from a wheelchair. Id.; see also Memorandum Opinion, ECF 51 at 3, 20-21 (noting Jardina alleged no facts to state an ADA claim to show he was excluded from a program or activity for which he was otherwise qualified on the basis of a disability); Compl. ECF 1 at p. 4. The Court declined to exercise supplemental jurisdiction over Jardina's state law claim. ECF 51 at p. 21; ECF 52.

         Jardina appealed to the United States Court of Appeals for the Fourth Circuit. ECF 55. On August 23, 2017, the Fourth Circuit dismissed the appeal and remanded the case for Jardina to file an amended complaint, stating that because this Court had identified a deficiency that Jardina may remedy by filing an amended complaint, the order Jardina was appealing was neither a final order nor an appealable interlocutory collateral order, Jardina v. DPSCS, et al., No. 17-6413 (4th Cir. 2017) (per curiam) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 623-24 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993)). ECF 57.

         On September 15, 2017, this Court granted Jardina twenty-eight days to particularize his ADA claims against the remaining defendants, ECF No. 59; see also Complaint ECF 1 at p. 4 (alleging “Md. DPSCS WCI Medical and Administrative Staff have knowingly failed to provide reasonable accommodations to Jardina in violation of the [ADA].”).

         Jardina filed an Amended Complaint on December 27, 2017, which he submitted with a declaration. ECF 65 at 6. In the Amended Complaint, Jardina asserted claims against Graham, Gelsinger, Barrera, and McLaughlin. ECF 65. Jardina raised no claims against Correctional Officer Ziler[1] and later filed a Motion to Withdraw his claims against Barrera and McLaughlin, which was granted. ECF 75, 79.

         In the Amended Complaint, Jardina claimed Defendants:

(1) knew there were large cracks, depressions, and ruts throughout the sidewalks or pavement at WCI and failed to take appropriate action to ensure Jardina's safety as a “disabled wheelchair bound inmate”; (2) knew untrained and uncertified inmates worked in the WCI wheelchair repair shop and exchanged wheelchair parts from different manufacturers to minimize cost, which made the chairs unsafe; (3) knew he was housed at times on tiers that did not have a handicap accessible shower, in violation of the ADA; (4) knew he was not housed in a handicap accessible cell at times, denying him the ability to move throughout his cell; (5) upon his return to WCI from Dorsey Run Correctional Facility (“DRCF”), placed him in housing unit #3, which forced him to cross the same area that had not been repaired and where he was injured in his wheelchair; (6) on June 10, 2014, denied him access to his walker, forcing him to live on the floor and crawl to use the bathroom; and (7) knew that by placing him on the minimum security tier, they were denying him access to programs, religious services, and prison jobs because the inmates on the minimum security tier run programs, services, and activities by themselves.

ECF 93 at p. 5, ECF 65. Jardina asked for declaratory relief, compensatory damages in the amount of $400, 000 against each Defendant jointly and severally, and punitive damages in the amount of $100, 000 against each defendant. ECF 65 at p. 6.

         Defendants filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. ECF 65, 80. In response, Jardina filed an opposition with his declaration. ECF 85, ECF 85-1.

         On December 18, 2018, the Court granted Defendants' Motion for Summary Judgment as to Jardina's first and second claims and denied summary judgment as to Plaintiff's remaining claims, with leave to renew the Motion for Summary judgment. ECF 93, 94. Jardina's claims against Graham and Gelsinger in their individual capacities were dismissed with prejudice. ECF 93, 94.

         Defendants filed the Motion to Renew Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment on February 13, 2019, ECF 98, which Jardina opposed in a filing received on March 21, 2019. ECF 102 at p. 32.

         II. Motion to Amend the Complaint

         As a preliminary matter the Court will consider Jardina's Motion to Amend the Complaint. ECF 103. When a party moves for leave to amend a complaint, the court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). A motion for leave to amend should be denied only if one of the following has been established: (1) the amendment would be prejudicial to the opposing party; (2) there has been bad faith by the moving party; or (3) the amendment would be futile. Mayfield v. National Ass'n for Stock Car Auto Racing, Inc, 674 F.3d 369, 379 (4th Cir. 2012); Matrix Capital Management Fund, LP v. Bearingpoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009).

         Jardina asks to amend his claim of gross negligence contained in his original complaint against the Maryland Department of Public Safety and Correctional Service Medical and Administrative Staff (ECF-1 at p. 4) under the Maryland Tort Claims Act. ECF 103 at p. 1. Jardina states he believes that this claim is not cognizable under 42 U.S.C. § 1983, and a “gaffe in my pleading that may be addressed by amending my complaint.” Id. at p. 2.

         Permitting amendment of the initial complaint at this stage of the proceeding would be futile. Jardina does not show that he has complied with the mandatory notice requirement in the Maryland Tort Claims Act (MTCA). Md. Code Ann., State Gov't §12-106. Filing a claim with the Maryland State Treasurer is a condition precedent to bringing an action under the MTCA, id. at § 12-106(b)(1). Courts may not entertain claims under the MTCA from claimants who fail to exhaust their administrative remedies before the Maryland State Treasurer. Royster v. Gahler, 154 F.Supp.3d 206, 217-18 (D. Md. 2015). Therefore, the Court will deny Jardina's Motion to Amend his Complaint.

         III. Discussion

         A. Americans with Disabilities Act

         Title II of the ADA, 42 U.S.C. § 12131, et seq., prohibits excluding qualified individuals with disabilities from participating in or being denied the benefits of the services, programs, or activities of a public entity. To establish a prima facie violation of the ADA, a plaintiff must show that he (1) has a disability, (2) is otherwise qualified to participate in a program, and (3) was denied the benefits of the program or discriminated against because of the disability. See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).

         The statute defines “public entity” in relevant part as “any State or local government” or “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” See42 U.S.C. § 12131(1)(A)-(B). A state prison is a “public entity” within the meaning of the ADA and, as such, Title II of the ADA is applicable to state prisons. Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998); see also United States v. Georgia, 546 U.S. 151, 154 (2006). “Modern prisons provide inmates with many recreational ‘activities,' medical ‘services,' and educational and vocational ‘programs,' all of which at least theoretically ‘benefit' the prisoners (and any of which disabled prisoners ‘could be excluded from participation in')” and thus the States are subject to liability under Title II. Yeskey, 524 U.S. at 210. Although Title II requires public entities to make reasonable accommodations for persons with disabilities, see Id. (citing Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 174-75 (4th Cir. 2009); Constantine, 411 F.3d at 488, a plaintiff must show a different “causative link between discrimination and adverse action.” Baird ex rel. Baird v. Rose, 192 F.3d 462, 469 (4th Cir.1999), and prove discrimination “by reason of” disability. 42 U.S.C. § 12132.

         The United States Court of Appeals for the Fourth Circuit has recognized “three distinct grounds for relief: (1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable accommodations.” Paulone v. City of Frederick, 787 F.Supp. 2d. 360, 371 (D. Md. 2011) (citing A Helping Hand, LLC v. Baltimore County, Md., 515 F.3d 356, 362 (4th Cir. 2008)). “There is no textual limitation requiring that a plaintiff must demonstrate some other source of legal entitlement to participation in the program or activity at issue” to proceed under the ADA. “Rather, it is enough that the plaintiff is excluded from participation in or denied the benefits of the program on the basis of disability.” Jarboe v. Md. Dep't of Pub. Safety and Corr. Servs., Civ. No. ELH-12-572, 2013 WL 1010357, at *17 (D. Md. Mar. 13, 2013).

         In Jarboe, 2013 WL 1010357, at *4, Judge Hollander recognized the term “‘reasonable accommodations, '…is essentially synonymous with the term ‘reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services,' 42 U.S.C. § 12131(2), which is what Title II of the ADA requires a public entity to provide” (citing Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1195 n.8 (10th Cir. 2007); McGary v. City of Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004)).

         “[M]eaningful access and the question of whether reasonable accommodations are made to an inmate must be assessed through the prism of the prison setting.” Havens v. Colorado Department of Corrections, 897 F.3d 1250, 1269 (10th Cir. 2018) (citations omitted). “[P]risons are unique environments where ‘deference to the expert views' of prison administrators is the norm.” Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 78 (2d Cir. 2016) (quoting Pierce v. County of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008)); see also Torcasio v. Murray, 57 F.3d 1340, 1355 (4th Cir. 1995) (noting accommodations are viewed in light of requirements of prison administration). Prison officials must consider security and other factors unique to the prison environment in their decision-making, and courts have accorded them considerable discretion to do so. See Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999). Defendants do not dispute that Jardina is an individual with a disability or that the programs at WCI are subject to the ADA.

         Jardina is suing for monetary damages and declaratory relief. Damages have been awarded under Title II of the ADA if a public entity “intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.” Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008); accord Adams v. Montgomery College (Rockville), 834 F.Supp.2d 386, 393-95 (D.Md. 2011) (applying deliberate indifference standard); Paulone, supra, 787 F.Supp.2d at 373-74 (collecting cases endorsing deliberate indifference standard).

         B. Medical History at WCI

         Jardina's medical needs changed over the period he was incarcerated at WCI. Affidavit of Robustiano Barrera, M.D. ECF 42-1, ¶ 10. On March 28, 2014, shortly after he arrived at WCI, Jardina informed medical staff that he needed a walker, which was issued. ECF 80-2 at p. 10. The medical order for a walker was extended on October 22, 2014 for one year. ECF 80-2 at p. 7.

         On May 8, 2014, Jardina was given a medical order to use a wheelchair for six months for distances longer than 50 feet. ECF 80-2 at p. 9. The medical order was extended on November 25, 2014, for another six months. ECF 80-3 ...

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