United States District Court, D. Maryland
JAMES J. JARDINA, #418-567 Plaintiff,
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, et al., Defendants.
K. Bredar Chief Judge.
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.
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
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.
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.
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.
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
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 and later filed a Motion to
Withdraw his claims against Barrera and McLaughlin, which was
granted. ECF 75, 79.
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.
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.
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.
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.
Motion to Amend the Complaint
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).
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.
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.
Americans with Disabilities Act
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
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. §
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).
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)).
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.
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
Medical History at WCI
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.
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 ...