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Cole v. Goord

August 25, 2009


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiff Ronnie Cole, a New York State prisoner, brings this action alleging that defendants Glenn Goord, Brian Fischer, Lester N. Wright, John Perilli, Eileen Hansen, Gail Haponik, Frederick Bernstein, and Donald Stevens, officials of the New York State Department of Correctional Services ("DOCS"), denied him reasonable accommodations for his disabilities in violation of the Americans with Disabilities Act ("ADA"). Defendants have moved for summary judgment, arguing that Cole was provided with reasonable accommodations in accordance with the ADA and that, even if Cole could demonstrate an ADA violation, defendants are immune from suit under the ADA. For the reasons stated below, their motion will be granted in part and denied in part.


Based on the evidence in the record, taken in the light most favorable to the plaintiff, a reasonable factfinder could find the following facts.

Ronnie Cole is an inmate in the custody of DOCS. From January 2004 to July 2005, he was housed at Sing Sing Correctional Facility ("Sing Sing"). In July 2005, Cole was transferred to the Green Haven Correctional Facility ("Green Haven"), where he remained until January 2006. (Def. Rule 56.1 Statement, ¶ 2.) He is currently housed at the Walsh Regional Medical Facility. Defendants were all employees of the New York State DOCS at the time relevant to the complaint.*fn1

I. Cole's Medical Conditions

A. Hearing

Cole has been diagnosed as having non-significant bilateral hearing loss. (Def. Rule 56.1 Statement, ¶ 8.) An audiologist Cole saw at Sing Sing prescribed hearing aids, which Cole wears on a daily basis and which enable Cole to hear clearly. (Id.; Deposition of Ronnie Cole, dated March 20, 2008 ("Cole Dep."), 35-36.) The audiologist noted that Cole responded "reliably and consistently to everyday speed, normal hearing conversation." (Supplemental Declaration of John Knudsen, dated January 16, 2009 ("Knudsen Suppl. Decl."), Ex. B at ¶ 3.)

B. Walking

Cole walks with the assistance of canes and leg braces. (Am. Compl. 3.) With the canes and braces, Cole is able to walk on flat surfaces. (Id; Declaration of John Knudsen, dated September 22, 2008 ("Knudsen Decl."), Ex. B at ¶ 4.) According to Dr. Perrilli, the Facility Health Services Director at Sing Sing who examined Cole numerous times, Cole is "fully ambulatory" with the leg braces and cane. (Id.; see also Cole Dep. 50-51, 53.) Cole asserts, however, that it is painful and difficult for him to negotiate stairs. (See Cole Dep. 53; Opp'n 2.)

C. Incontinence and Urinary Problems

As a result of a botched surgical procedure, Cole asserts that his urinary tract and groin are "in a state of disruption," requiring Cole to self-catheterize six times a day and wear adult diapers, and subjecting him to frequent infections. (Am. Compl. 3-4.)

II. Sing Sing and Green Haven

On December 17, 2004, after being housed at Sing Sing for nearly a year, Cole filed a grievance, complaining that he was being denied reasonable accommodations in violation of the ADA. Cole's grievance asserted that he needed closed captioning on the television screens, guard rails in the showers, and a handicap-accessible ramp to the commissary. (Knudsen Decl., Ex. D at COLE 878.) Dr. Perilli responded that Cole was fully ambulatory when using his leg braces and cane, that his hearing deficit had been corrected with hearing aids, and that he had been given a medical pass allowing numerous accommodations.*fn2 (Id. at COLE 871.) On appeal, the grievance was denied by the Central Office Review Committee for the reasons noted in Dr. Perilli's response, and also because Cole had not made a formal request for reasonable accommodations.

On May 17, 2005, Cole formally requested accommodations including a sign language interpreter, closed-captioned television, preferred seating, a telephone amplifier, hearing aids, and a guard rail in the shower. (Id. at COLE 350.) Dr. Perilli reviewed the requests, and approved only the one for hearing aids. (Id.) Dr. Perilli noted that Cole had been examined by an audiologist who had found that, apart from hearing aids, no further accommodations were needed for Cole's non-significant bilateral hearing loss, and that Sing Sing had already provided Cole with a special shower seat which served the same purpose as a guard rail. (Id. at COLE 351; see also Cole Dep. 67.)

On June 3, 2005, Cole appealed the denial of his request for reasonable accommodations and asked that, "if Sing Sing Corr. Fac. Cannot make Reasonable Accommodations for my medical condition, [] I be transferred to a facility that can and will meet [my] needs." (Knudsen Suppl. Decl., Ex. B at COLE 926.)

On July 27, 2005, Cole was transferred to Green Haven, a facility which was specifically designed in collaboration with legal and medical representatives of disabled inmates to accommodate inmates with wheelchairs and walking disabilities. (Knudsen Decl., Ex. A at ¶ 3.) Cole's transfer memo stated that he was being transferred for medical reasons because he needed an "accessible flat facility." (Knudsen Suppl. Decl., Ex. B, COLE 923.) Cole alleges that, as at Sing Sing, his disabilities were not reasonably accommodated at Green Haven. Cole also claims that Green Haven staff retaliated against him for filing grievance complaints by denying him daily showers and access to his medical supplies. (Opp'n 8.)

Cole first filed a complaint with this Court on March 16, 2005, seeking injunctive relief under the ADA in conjunction with the conditions of his confinement at Sing Sing. After being transferred to Green Haven, Cole filed an amended complaint on August 17, 2005, seeking injunctive relief concerning conditions at Green Haven, and damages against Sing Sing and Green Haven officials.*fn3


I. Summary Judgment Standard

Summary judgment must be granted where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine issue of material fact" exists if the evidence is such that a reasonable jury could find in favor of the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

When a party is proceeding pro se, a judge must assess his pleadings by a more generous standard than that accorded to pleadings drafted by lawyers. Bussa v. Alitalia Linee Aeree Italiane, S.P.A., No. 02 Civ. 10296, 2004 WL 1637014, at *4 (S.D.N.Y. July 21, 2004). Despite this more lenient treatment, a pro se litigant must still meet the normal requirements to survive a motion for summary judgment. Id. at *11. See also Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995), reh'g granted on other grounds, 914 F. Supp. 1004 (S.D.N.Y. 1996) (holding that a "pro se party's bald assertion, completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment") (internal quotations omitted).

II. Title II of the ADA

Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The Supreme Court has held that Title II of the ADA applies to state prisoners. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998).

To establish an ADA violation, an inmate must demonstrate that (1) he is a qualified individual with a disability; (2) he is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his disability; and (3) the defendants are subject to the ADA. Allah v. Goord, 405 F. Supp. 2d 265, 274 (S.D.N.Y. 2005).

Before evaluating the merits of Cole's Title II claims, this Court must determine whether under the ADA Cole is able to ...

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