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Frasca v. Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

August 1, 2018

COREY S. FRASCA, Plaintiff,



         I. Status

         Plaintiff filed this civil rights case through counsel on July 7, 2016.[1] He is currently proceeding on an Amended Complaint (Doc. 28) naming as Defendants: (1) the Florida Department of Corrections (DOC); (2) David E. Moran in his individual capacity; and (3) Julie Jones, Secretary of the DOC, in her official capacity. Plaintiff raises nine counts including claims pursuant to the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), the Eighth Amendment, and various state laws.

         Before the Court is Defendants' Motion to Dismiss Amended Complaint (Doc. 34) (Motion). Plaintiff filed a Response in Opposition (Doc. 35) (Response). The Motion is ripe for review.

         II. Amended Complaint[2]

         Prior to Plaintiff's incarceration, he was diagnosed with a seizure disorder. While in custody, the DOC medical staff issued Plaintiff a low bunk pass on a yearly basis. On November 16, 2012, Plaintiff was assigned an upper bunk at the Reception and Medical Center (RMC), and he fell off the bunk while having a seizure. This incident did not result in any permanent injuries, but according to Plaintiff, it placed the DOC on notice of Plaintiff's need for a low bunk.

         On January 16, 2013, Plaintiff was again assigned to an upper bunk at RMC. Plaintiff alerted Defendant Moran, who was in charge of Plaintiff's dormitory, that Plaintiff needed to be given a low bunk per his medical pass. Defendant Moran told Plaintiff that he would be moved to a lower bunk.

         In January 2013, there were two separate incidents where Plaintiff had a seizure, fell, and was injured. The first was on January 21, 2013. On that date, Plaintiff was still assigned to an upper bunk. When he attempted to get on his upper bunk, he had a seizure and fell. As a result of the fall, he re-injured his shoulder and injured his neck and back. When he was released from the medical unit, he was sent back to an upper bunk. The second seizure and fall occurred on January 28, 2013, after Plaintiff was transferred to Gulf Correctional Institution.[3] As a result of the January 28th fall, Plaintiff suffered injuries to his left eye, [4] h ead (which required 8 stitches), neck, back, and shoulder.

         Prior to the January 2013 incidents, Plaintiff had asked several times for a protective helmet, but the DOC never provided him with one. As a result of both incidents, Plaintiff suffered disc herniation at ¶ 1-2, C2-3, C5-6, L3-4, T6-7, T7-8, T8-9, T9-10, and T11-12. Plaintiff has headaches, and he suffers from chronic pain in his neck, back, and shoulders.

         III. Motion to Dismiss Standard

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

         IV. Analysis

         A. Injunctive Relief

         Plaintiff agrees that his request for injunctive relief should be stricken because he is no longer incarcerated. See Response at 17. Thus, Plaintiff's request for injunctive relief will be stricken.

         B. Counts I through IV

         Plaintiff claims that the DOC violated the ADA and the RA when it denied Plaintiff the benefits of services, programs, and activities on the basis of his disability. Specifically, he alleges that he should have been placed on a lower bunk in compliance with his medical pass (Counts I and II) and provided with a helmet or other device (Counts III and IV) to protect Plaintiff during a seizure.

         “To state a claim of discrimination under Title II [of the ADA], a claimant must prove: ‘(1) that he is a qualified individual with a disability; and (2) that he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff's disability.'” Owens v. Sec'y, Fla. Dep't of Corr., 602 Fed.Appx. 475, 477 (11th Cir. 2015) (quoting Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007)).[5] For purposes of the Motion to Dismiss, Defendants only take issue with the second element, arguing that “Plaintiff has failed to demonstrate that he was excluded from participation in or denied the benefits of services, programs, or activities provided by the []DOC.” Motion at 4. Defendants rely on Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996), and Iseley v. Beard, 200 Fed.Appx. 137 (3d Cir. 2006), [6] for the proposition that sleeping is not a program or activity. See Motion at 4-5.

         The Eleventh Circuit has not directly addressed whether bunk placement is a service, program, or activity, but courts in other circuits have and have arrived at differing conclusions. See, e.g., Bryant, 84 F.3d at 249 (stating that “incarceration, which requires the provision of a place to sleep, is not a ‘program' or ‘activity.' Sleeping in one's cell is not a ‘program' or ‘activity'”); Simmons v. Godinez, No. 16 C 4501, 2017 WL 3568408, at *6 (N.D. Ill. Aug. 16, 2017) (unpublished) (citing cases recognizing that prisons are required to provide inmates with beds which is arguably a service under the ADA and finding that the plaintiff stated a plausible ADA and RA claim by alleging that the prison “failed to take steps that would allow Plaintiff to access a bed”). Bryant, on which Defendants rely, was decided prior to United States v. Georgia, 546 U.S. 151 (2006). In Georgia, the Supreme Court recognized that “it is quite plausible that the alleged deliberate refusal of prison officials to accommodate [a prisoner's] disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs constituted ‘exclu[sion] from participation in or . . . deni[al of] the benefits of' the prison's ‘services, programs, or activities'” under Title II of the ADA. Georgia, 546 U.S. at 157 (quoting 42 U.S.C. § 12132, and citing Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (noting that the phrase “services, programs, or activities” in § 12132 includes recreational, medical, educational, and vocational prison programs)). Providing a prisoner with a bed is arguably a service within the meaning of the ADA and RA. See Simmons, 2017 WL 3568408, at *6 (“Providing a prisoner with a bed that he cannot access is no less a failure to reasonably accommodate than housing him in a cell from which he cannot access meals.”); see also Kiman v. NewHampshire Dep't of Corr., ...

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