Disabled prisoner can’t show ADA violation

Where a disabled prisoner alleged a nurse practitioner was deliberately indifferent when she denied his request for a handicap pass required to access a library, but he alleged no facts showing the nurse knew that he likely could not meaningfully access the library as was his right and nonetheless failed to give him a pass, his claim was dismissed as a matter of law.

Background

Rodney Koon is a disabled prisoner who walks with a cane, yet he was denied a handicap pass to access the first-floor library for seven months. Because of that denial, Koon was forced to climb two flights of stairs to get to the general-population library.

Koon filed this pro se civil suit seeking compensatory damages for the aggravated injuries to his legs. The district court granted summary judgment to North Carolina on Koon’s Americans with Disabilities Act, or ADA, claims because “the record reflects that defendant Browning’s denial of plaintiff’s request to renew a handicap pass implicates, at most, negligence on defendant Browning’s part, and the ADA does not provide a remedy for negligence.”

Threshold issues

While Congress expressed a clear intention to abrogate state sovereign immunity with the ADA, the court must still ask whether it “had the power to give effect to its intent” in this area under section five of the Fourteenth Amendment. Further, while courts largely agree that compensatory damages are only available to ADA plaintiffs who prove intentional discrimination, there is a disagreement about what standard to use: deliberate indifference or something more. The court avoids deciding those issues here and instead assumes that the friendlier standard of deliberate indifference applies, and that sovereign immunity poses no problem to Koon’s claim.

Deliberate indifference

A plaintiff must begin by showing 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.

Koon can satisfy the first two elements. And Koon has at the very least created a genuine issue of fact on the issue of a denial of “meaningful access,” given the evidence he has put forward about the pain and physical damage caused by going up and down the stairs to the general-population library.

Koon mainly focuses on two North Carolina officials who he argues were deliberately indifferent: nurse practitioner Diane Browning and administrator Bryan Wells. But Koon has not made the showing required to create a genuine issue of fact that either of those officials was deliberately indifferent to Koon’s right to reasonable accommodation.

Koon claims that Browning should have looked more carefully at his medical records; she should have looked at the database listing inmates’ medical restrictions; she should have talked to him, asked about his restrictions and examined his knee; she should have talked to any of the other prison staffers who knew his mobility issues and knew what he needed. But all those “shoulds” are the language of negligence, arguments about what a reasonably prudent person would have done. Deliberate indifference requires that Browning knew that Koon likely could not meaningfully access the library as was his right and nonetheless failed to give him a pass. There isn’t enough in this record to create a genuine issue of material fact.

Koon argues that if Wells had spoken to Browning, he would have known that no real medical evaluation had taken place, and together they could have worked out that Koon needed the handicap pass to access the library, which was his right under the ADA and the prison rules. But again, this is the language of negligence: should have and could have and if only. It just doesn’t rise to deliberate indifference. Koon offers no evidence that could lead a reasonable jury to conclude that Wells had actual knowledge that Koon was owed a handicap pass and intentionally failed to give him one.

Affirmed.

Concurring/dissenting opinion

Wynn, J., concurring in part and dissenting in part:

I agree that it would be unwise to address the sticky issue of sovereign immunity on the thin briefing before us. I also concur with the majority opinion’s articulation of the deliberate-indifference standard, as well as its conclusion that Koon established his right to a reasonable accommodation — access to a first-floor library — was likely violated. But I must dissent from the majority opinion’s conclusion that Koon failed to create a genuine dispute of material fact regarding defendants’ deliberate indifference.

Koon v. State of North Carolina, Case No. 20-2330, Oct. 5, 2022. 4th Cir. (Richardson), from EDNC at Raleigh (Flanagan). Danielle Rebecca Feuer for Appellant. Alex Ryan Williams for Appellees. VLW 022-2-221. 60 pp.