United States District Court, M.D. Florida, Jacksonville Division
COREY S. FRASCA, Plaintiff,
FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants.
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE
filed this civil rights case through counsel on July 7,
2016. 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.
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
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.
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.
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. As a result of the January 28th fall,
Plaintiff suffered injuries to his left eye,  h ead (which
required 8 stitches), neck, back, and shoulder.
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.
Motion to Dismiss Standard
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).
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.
Counts I through IV
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.
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)). 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),  for the
proposition that sleeping is not a program or activity.
See Motion at 4-5.
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., ...