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McCormick v. Kendra

United States District Court, W.D. Kentucky, Owensboro

April 19, 2017

DAMON McCORMICK PLAINTIFF
v.
NURSE KENDRA et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge.

         Before the Court for initial review pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007), is pretrial detainee Plaintiff Damon McCormick's third pro se amended complaint (DN 146). For the reasons that follow, the Court will dismiss the following claims: (1) the claims under Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) against Defendants in their individual capacities; (2) the claims under Title III of the ADA; (3) the claims against Defendants ARC General Contractors (ARC) and Fosse & Associates; and (4) the jail construction claim against Henderson County Detention Center (HCDC). All other claims will be allowed to proceed.

         I. SUMMARY OF CLAIMS

         Plaintiff names twelve Defendants in his third amended complaint. He identifies the Defendants as follows: (1) HCDC; (2) Southern Health Partners (SHP); (3) Kendra Robinson, a “MTA for SHP”; (4) Colonel Gibson, the Chief Deputy at HCDC; (5) Deputy Wiess, a Henderson County Sheriff's Deputy; (6) Lt. Buckman, a supervisor at HCDC; (7) Deputy Parrish, a Deputy at HCDC; (8) Dr. Davis, a physician for SHP; (9) Ron Herrington, the Jailer at HCDC; (10) Major Payne, a supervisor at HCDC; (11) Fosse & Associates, a general contractor; and (12) ARC. In this third amended complaint, Plaintiff asserts claims under Titles II and III of the ADA, Section 504 of the RA, and the Eighth and Fourteenth Amendments. As relief, Plaintiff seeks monetary damages.

         Preliminarily, Plaintiff states that he is a handicapped individual. He states that he is “wheelchair bound, legally Blind and suffers from multiple psychiatric disorders including Bipolar disorder.” He contends that he is a protected individual under the ADA and the RA. Further, Plaintiff asserts that HCDC houses federal inmates and operates with federal funds and that federal funds were used in the building of HCDC.

         A. Inadequate Medical Device (Wheelchair)

         Plaintiff asserts that it is the policy of HCDC and SHP to loan out inadequate wheelchairs rather than buy new ones in order to save money. Plaintiff states that because of this policy, he was given a wheelchair that had a broken arm and was too small for him. He states that since September 30, 2016, he has “been made to use a small size wheelchair.” Plaintiff states that on November 14, 2016, Defendant Davis told Plaintiff that he knew the wheelchair was too small for Plaintiff, but that SHP would not buy him another wheelchair. According to Plaintiff, in attempting to get from his bed to the wheelchair on November 17, 2016, the broken arm “gave out, ” the “entire chair flipped over, ” and Plaintiff injured himself.

         Plaintiff states that on January 6, 2017, he arrived back at HCDC and was given the same broken wheelchair by Defendant Wiess. Plaintiff states that Defendant Wiess informed Plaintiff that it was the only available wheelchair at the time. According to Plaintiff, once inside the jail, he informed Defendant Buckman about the broken chair. Plaintiff states that Defendant Buckman told him that Defendant Robinson had said Plaintiff was to use that chair and “according to [HCDC] policy he could not override [Defendant Robinson] and make her bring [Plaintiff] a more adequate chair.” Plaintiff states that while getting booked that day, Defendant Parrish told him that it was HCDC policy that all inmates had to stand to get patted down. When Plaintiff attempted to stand, he states that the arm of the wheelchair “gave out again and the whole chair flipped over along with . . . Plaintiff injuring plaintiffs back and shoulder.” Based on these allegations, Plaintiff asserts claims against Defendants HCDC, SHP, Gibson, Robinson, Wiess, Buckman, Parrish, and Davis in their official capacities under Titles II and II of the ADA, Section 504 of the RA, the Eighth Amendment, and the Fourteenth Amendment. He further asserts claims against Defendants Gibson, Robinson, Wiess, Buckman, Parrish, and Davis in their individual capacities under the Eighth and Fourteenth Amendments.

         B. Jail Construction

         Plaintiff asserts that HCDC has no accessible bathroom facilities, toilets, sinks, mirrors, showers, cells, or tables “in the entire Jail.” Plaintiff states that HCDC was built after the implementation of the ADA and was “required under the New Construction Clause to meet all ADA accessibility requirements as set forth in the ADA and Section 504 of the [RA].” Plaintiff states that HCDC was built in 1996 by Defendant ARC and the 500 Hall was built in 2004 by Defendant Fosse & Associates. Plaintiff states that the HCDC has “0% accessibility in a Jail that holds 700 Federal, State and County Inmates.” Plaintiff asserts that Defendants HCDC, ARC, and Fosse & Associates did not comply with ADA design and construction standards, and in failing to do so, discriminated against Plaintiff causing him undue hardship and injury and denying him “program accessibility.” Plaintiff states that it is the responsibility of these Defendants to ensure that Plaintiff can enjoy his rights under the ADA and RA.

         As to this claim, Plaintiff sues Defendants HCDC, ARC, and Fosse & Associates under Titles II and III of the ADA, Section 504 of the RA, the Eighth Amendment, and the Fourteenth Amendment.

         C. Accessible Transportation

         Plaintiff states that HCDC has no accessible transportation. He states that when he is transported places he must climb up in a van with the assistance of numerous deputies. He states that this is painful, shows a disregard for Plaintiff's safety and rights, and is discriminatory toward Plaintiff. Plaintiff asserts that it is Defendant Herrington and Gibson's duty to see that Plaintiff is not discriminated against while being transported.

         As to this claim, Plaintiff sues Defendants HCDC, Gibson, and Herrington in their official capacities under Titles II and III of the ADA, Section 504 of the RA, the Eighth Amendment, and the Fourteenth Amendment. He sues Defendants Gibson and Herrington in their individual capacities under the Eighth and Fourteenth Amendments.

         D. Medical Cells

         According to Plaintiff, on September 30, 2016, when he arrived at HCDC, Defendants Robinson and Gibson assigned him to “Medical Cell status due to his disability.” Plaintiff states that it is HCDC's policy to house disabled inmates in medical cells and that none of the medical cells are ADA accessible. According to Plaintiff, in doing so, he did not have “unrestricted access to toilet facilities showers, Living area Tables, sinks and mirrors.” Plaintiff contends that it is the duty of Defendants Robinson and Gibson to see that the disabled in the medical cells are not discriminated against and that they “receive unrestricted access to all services provided by HCDC.” Plaintiff asserts that he was injured because he did not have unrestricted access to HCDC services.

         As to this claim, Plaintiff sues Defendants Robinson and Gibson in their official capacities under Titles II and III of the ADA, Section 504 of the RA, the Eighth Amendment, and the Fourteenth Amendment. He also sues Defendants Robinson and Gibson in their individual capacities under the Eighth and Fourteenth Amendments.

         E. Retaliation and Coercion

         Plaintiff states that on October 27, 2016, Defendants Gibson and Herrington placed Plaintiff in isolation for the rest of his stay at HCDC. According to Plaintiff, Defendant Gibson told him that “by assisting others in the Medical cell to file ADA Complaints that he was insighting a riot and for that plaintiff was placed in isolation where he remains to this day.” Plaintiff states that individuals who exercise their rights under the ADA or assist others in exercising their rights are protected from retaliation. Plaintiff asserts that Defendants Gibson and Herrington retaliated against him by putting him in isolation for “assisting others in their (ADA) complaints and thereby interfering with the exercise of those rights by separating Plaintiff from those inmates.” As to this claim, Plaintiff sues Defendants Gibson and Herrington in their official capacities under Title II of the ADA, Section 504 of the RA, the Eighth Amendment, and the Fourteenth Amendment. He also sues Defendants Gibson and Herrington in their individual capacities under the Eighth and Fourteenth Amendments.

         F. Refusing Plaintiff a Shower

         According to Plaintiff, he suffers from a seizure disorder. He states that on two occasions, he urinated on himself while having a seizure. Plaintiff states that on both occasions this happened early in the day. However, Plaintiff asserts that because of HCDC isolation policy which states that the third shift gives inmates their showers, Plaintiff was made to wait for 12 hours before he was allowed to shower. According to Plaintiff, no exception was made to the policy for Plaintiff's disability. Plaintiff states that it was Defendant Parrish that refused him a shower on the first occasion and Defendant Buckman who refused him a shower on the second occasion. Plaintiff states that this caused him undue emotional stress and hardship.

         As to this claim, Plaintiff sues Defendants Parrish and Buckman in their official capacities under Title II of the ADA, Section 504 of the RA, the Eighth Amendment, and the Fourteenth Amendment. He also sues Defendants Parrish and Buckman in their individual capacities under the Eighth and Fourteenth Amendments.

         G. Denying Plaintiff Access to Food Services

         On October 19, 2016, according to Plaintiff, he was housed in medical cell #525 when Defendants Gibson and Herrington had Plaintiff's wheelchair removed for two days. During these two days, Defendant Payne instructed the deputies “not to give [Plaintiff his] food trays unless [he] came to the panhole to retrieve them.” Plaintiff states that the deputies were instructed not to let anyone bring Plaintiff's tray to him. Plaintiff states that Defendant Robinson notified SHP employees that Plaintiff was not to get his meal tray or medications unless he ambulated to get them. Plaintiff states that he is unable to ambulate and that these Defendants failed to accommodate his disability when they took away his wheelchair.

         As to this claim, Plaintiff sues Defendants Herrington, Gibson, Payne, and Robinson in their official capacities under Titles II and III of the ADA, Section 504 of the RA, the Eighth Amendment, and the Fourteenth Amendment. He also sues Defendants Herrington, Gibson, Payne, and Robinson in their individual capacities under the Eighth and Fourteenth Amendments.

         H. Supplying Information

         Plaintiff states that Title II of the ADA requires HCDC as a public entity to supply “anyone any information pertaining to Title II requirements.” According to Plaintiff, Defendants HCDC, Herrington, and Gibson “do not and will not” supply the required information. As a result, according to Plaintiff, since 2014, he has “suffered from discrimination at the hands of HCDC and SHP employees, not knowing his rights as a disable person plaintiff has been subject to discrimination due to his disability for years not knowing how to seek any redress.” Plaintiff states that during those years he has been “denied services, suffered personal injury, emotional distress undue hardship and pain and suffering due to Plaintiff not knowing his rights as a disable person.” As to this claim, Plaintiff sues Defendants HCDC, Herrington, and Gibson in their official capacities under Title II of the ADA, Section 504 of the RA, the Eighth Amendment, and the Fourteenth Amendment. He also sues Defendants Herrington and Gibson in their individual capacities under the Eighth and Fourteenth Amendments.

         I. ADA Grievance Procedures and Responsible Employee

         Plaintiff states that HCDC has over 50 employees; thus, it is required to “adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any actions that would be prohibited by Title II ADA.” According to Plaintiff, HCDC is also required to “designate an employee to oversee and adopt ADA Grievance procedures” and “make known the Name, Address, and telephone number of the designated Employee.” Plaintiff states that HCDC is noncompliant ...


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