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Peter Lopez v. Brian Fischer

March 29, 2011

PETER LOPEZ, PLAINTIFF,
v.
BRIAN FISCHER, ET. AL DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Consent

DECISION & ORDER

Before the Court is the defendants' motion for summary judgment (Docket No. 100).*fn1

Background

The plaintiff, Peter Lopez ("Lopez"), brings this action pursuant to 42 U.S.C. § 1983. The plaintiff alleges that the defendants*fn2 failed to reasonably accommodate him as a visually impaired inmate and discriminated against him while he was confined in the Special Housing Unit ("SHU") at the Wende and Sullivan correctional facilities in violation of Title II of the Americans with Disabilities Act ("ADA") (29 U.S.C. § 12101 et seq.), section 504 of the Rehabilitation Act of 1973 ("§ 504") (29 U.S.C. § 799 et seq.), the New York State Human Rights Law ("NYSHRL") (N.Y. Exec. Law § 296, et. seq.), and the Eighth and Fourteenth Amendments to the United States Constitution.

It is not disputed that Lopez has a visual impairment known as Best's Disease which constitutes a handicap under the ADA and §504. (Docket No. 101 at ¶ 4; Docket No. 102 at page 6). The plaintiff asserts that Best's Disease acts "as though there is an object in the center of [his] eye that blocks [his] direct line of vision. Lopez states that he can see only by using his peripheral vision. (Docket No. 132 at ¶ 3). According to the plaintiff, using his peripheral vision to focus on a detailed object causes him pain after more than a few minutes. (Docket No. 132 at ¶ 4).

On or about January 22, 2007, the plaintiff was found guilty of assaulting another inmate at Wende and, as a result, he was confined to SHU between approximately January 22, 2007 and July 22, 2007. (Docket No. 101 at ¶ 7). On or about May 30, 2008, Lopez was found guilty of assaulting a facility staff member at Sullivan. (Docket No. 101 at ¶ 32). Based upon that event, and other disciplinary charges, Lopez was confined to SHU at Sullivan from February 20, 2008 to May 14, 2008, and again from May 30, 2008 to August 2009. (Docket Nos. 101 at ¶ 32; Docket No. 133 at page 3).*fn3 Lopez asserts that while he was in SHU he was denied various accommodations relating to his visual impairment, including a reading scanner, a typewriter, a talking dictionary, an inmate mobility assistant ("IMA"), access to the Resource Room (which has various assistive devices), a desk and chair, a talking chess set*fn4 , and that he was not allowed to keep as many books as sighted inmates. (Docket No. 55 at ¶¶ 43, 48, 49; Docket Nos. 132 at ¶¶ 8-22; Docket No. 133 at page 3). When Lopez was released from SHU and returned to general population, he was given access to these accommodations again. (Docket No. 133 at page 3).

The defendants argue that Lopez received reasonable accommodations while he was confined to SHU. The defendants assert that while Lopez was in the Wende SHU, he was issued 20/20 pens, large print paper and envelopes, and an electric magnifier. (Docket No. 113, Raymond Declaration at ¶¶ 28, 42). The defendants state that while Lopez was in the SHU at Sullivan he was issued a magnifier, a tape player and headphones, large print materials, a lamp, sunglasses for indoor use, an officer trained as a sited guide, and a talking dictionary. (Docket No. 113, Raymond Declaration ¶ 42).

Although the defendants denied the plaintiff a typewriter while in Shu, they assert that they provided him with adequate accommodations to enable him to write letters and court documents. The plaintiff was provided "20/20" pens, which are fine print magic markers that are easier for a visually impaired person to see because it writes darker and bolder than an ordinary pen. (Docket No. 103, Andzel Declaration at ¶ 16). The 20/20 pens were distributed to the plaintiff weekly or as he requested them. (Docket No. 108, Kirkpatrick Declaration at ¶ 31). In addition, because the 20/20 pens are not capable of producing carbon copies, the plaintiff was also provided with four free copies of his written work, even though non-impaired SHU inmates are not provided with free copies. (Docket No. 108, Kirkpatrick Declaration at ¶ 30).

To assist with both reading and writing, the defendants also assert that Lopez was provided with a state-of-the-art electric magnifier containing various adjustable features to specifically suit the plaintiff's disability. (Docket No. 103, Andzel Declaration at ¶ 22). The plaintiff asserts that the magnifier was inadequate "because it did not enlarge the font enough." (Docket No. 132 at ¶ 19). The defendants argue that notwithstanding the plaintiff's claim, the evidence shows that the magnifier did indeed accommodate Plaintiff's needs. The defendants note that the plaintiff brought the magnifier to an outside doctor's visit even though he was not authorized to do so. (Docket No. 103, Andzel Declaration at ¶ 23). According to the defendants, at the time the plaintiff justified bringing the magnifier to the outside appointment by stating that he brought it in order to read the doctor's forms. (Docket No. 103, Andzel Declaration at ¶ 23). In his response to the instant motion, the plaintiff asserts that he brought the magnifier to the appointment to show the medical provider that the magnifier was inadequate. (Docket No. 132 at ¶ 20). The defendants also assert that the various grievances and letters written by Lopez while in SHU demonstrate that the magnifier was adequate in assisting him to read and write. (Docket No. 102 at page 9). Additionally, according to the defendants, upon request, the plaintiff was also able to obtain assistance from the Wende Instructor of the Blind ("IOB."), who helps visually impaired inmates in filing out forms and other writing needs (Docket No. 108, Kirkpatrick Declaration at ¶ 28), as well as access to the Law Library Officer, who makes rounds daily, for additional assistance with filling out forms and mail.

(Kirkpatrick Declaration at ¶ 26; Andzel Declaration at ¶ 24). The defendants argue that these accommodations were reasonable as to the plaintiff's writing needs and resolved Lopez' requests for an electrical scanner and talking dictionary by alternatives which were more efficient, cost effective, and which address legitimate security concerns. (Docket No. 102 at page 9).

With respect to reading materials, the defendants also contend that the plaintiff had the same access to books and law materials as sighted inmates while in SHU. According to the defendants, the Wende law library policy for inmates in SHU provides that each inmate is allowed a total of five books, newspapers, or magazines every sixty days. (Docket No. 113, Raymond Declaration at ¶ 34). The Wende general library also allows SHU inmates two books and one magazine, which are also rotated every sixty days. (Docket No. 108, Kirkpatrick Declaration at ¶ 29). The defendants assert that the plaintiff was afforded reading materials from both libraries consistent with these policies. (Docket No. 113, Raymond Declaration at ¶ 34; Docket No. 108, Kirkpatrick Declaration at ¶ 29). In addition, the defendants state that upon his request the plaintiff had access to large print legal materials as well as legal materials on tape, and books on tape, which he can listen to on the cassette player he was issued. (Docket No. 113, Raymond Declaration at ¶¶ 29, 23). The defendants argue that these accommodations, along with his use of the electric magnifier, allow the plaintiff to enjoy and access legal materials and books as well as sighted inmates in the SHU. (Docket No. 102 at pages 9-10). Similarly, while at Sullivan, the defendants assert that the law library allowed him a maximum of fifteen legal books and publications in his cell, while the general library allowed him to have a total of ten books, magazines or newspapers in his cell. (Docket No. 113, Raymond Declaration ¶ 41). The defendants state that notary public services are provided to SHU inmates twice a week. (Docket No. 113, Raymond Declaration ¶ 41). In this regard, the defendants assert that the plaintiff was reasonably accommodated with respect to his reading and writing needs and enjoys the same services and programs as non-disabled inmates in Sullivan SHU. (Docket No. 102 at page 12).

The plaintiff also claims that he was improperly denied a desk and chair while he was in SHU. (Docket No. 55 at ¶ 49). The defendants assert that for security reasons SHU policy does not allow any SHU inmate to have a desk, chair, calculator or extension cord.*fn5 (Docket No. 102 at page 10).

Finally, the plaintiff asserts that he was improperly denied the assistance of IMAs while he was in SHU. (Docket No.55 at ¶ 48). IMAs are trained sited guides available to physically disabled or visually impaired inmates in the general population, to escort the disabled or impaired inmates around the facility. (Docket No. 113, Raymond Declaration at ¶ 13). According to the defendants, the plaintiff's request for an IMA while he was in SHU was denied due to security concerns. The defendants assert that IMAs are not allowed in SHU due to the risk of harm. (Docket No. 113, Raymond Declaration at ¶ 31). The defendants argue that the plaintiff had not sustained any injury or threat to his safety caused by a lack of IMA. (Docket No. 113, Raymond Declaration at ¶ 31). In addition, the defendants state that the SHU staff members have been trained by the Elizabeth Olmsted Center for Site and are able to appropriately provide Plaintiff with special assistance when moving around the facility when needed. (Docket No. 113, Raymond Declaration at ¶ 31; Docket No. 103, Andzel Declaration at ¶ 16).

The defendants have moved for summary judgment asserting that the plaintiff was provided with reasonable accommodations while he was placed in SHU at both Wende and Sullivan.

DISCUSSION

Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and ...


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