Filed: Jan. 23, 2013
Latest Update: Mar. 02, 2020
Summary: FILED United States Court of Appeals Tenth Circuit January 23, 2013 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT JEFFREY ALLEN PHILLIPS, Plaintiff - Appellant, No. 12-1055 v. (D. Colorado) SUSAN TIONA, Doctor, Kit Carson (D.C. No. 1:10-CV-00334-PAB-KMT) Correctional Center; HOYT BRILL, Warden, Kit Carson Correctional Center; JODI GRAY, Health Administrator, Kit Carson Correctional Center; CORRECTIONS CORPORATION OF AMERICA, owner of private KCCC; Defendants -
Summary: FILED United States Court of Appeals Tenth Circuit January 23, 2013 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT JEFFREY ALLEN PHILLIPS, Plaintiff - Appellant, No. 12-1055 v. (D. Colorado) SUSAN TIONA, Doctor, Kit Carson (D.C. No. 1:10-CV-00334-PAB-KMT) Correctional Center; HOYT BRILL, Warden, Kit Carson Correctional Center; JODI GRAY, Health Administrator, Kit Carson Correctional Center; CORRECTIONS CORPORATION OF AMERICA, owner of private KCCC; Defendants - ..
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FILED
United States Court of Appeals
Tenth Circuit
January 23, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JEFFREY ALLEN PHILLIPS,
Plaintiff - Appellant, No. 12-1055
v. (D. Colorado)
SUSAN TIONA, Doctor, Kit Carson (D.C. No. 1:10-CV-00334-PAB-KMT)
Correctional Center; HOYT BRILL,
Warden, Kit Carson Correctional
Center; JODI GRAY, Health
Administrator, Kit Carson
Correctional Center; CORRECTIONS
CORPORATION OF AMERICA,
owner of private KCCC;
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Jeffrey Allen Phillips, a state prisoner proceeding pro se, brought this 42
U.S.C. § 1983 and Americans with Disabilities Act ("ADA") action claiming that
the Corrections Corporation of America (“CCA”) and three of its employees at
the Kit Carson Correctional Center (“KCCC”) were deliberately indifferent to his
medical needs in violation of the Eighth Amendment, and failed to accommodate
those needs in violation of Titles II and III of the ADA and § 504 of the
Rehabilitation Act. 1 Pursuant to Fed. R. Civ. P. 12(b)(6), the district court
dismissed the Eighth Amendment claim against the defendants Warden Hoyt Brill
and CCA, and dismissed Mr. Phillips’ § 504 claim against all defendants.
Subsequently the court granted the defendants’ motion for summary judgment on
all remaining claims. For the reasons stated below, we affirm.
BACKGROUND
On August 25, 2009, while he was assigned to a halfway house,
Mr. Phillips fractured the fibula in his right leg. On August 26, 2009, Dr. David
Matthews, an orthopedic surgeon, repaired the fracture using two metal plates and
seven screws. One of those screws was a 4.5 mm cortical screw (the syndesmotic
1
42 U.S.C. §§ 12132, 12182, and Rehabilitation Act of 1973 (§ 504), 29
U.S.C. § 794.
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screw) inserted across the syndesmosis (a wide sheet of ligament connecting the
fibula to the tibia at the ankle) tying the fibula and tibia together. R. Vol. 4 at
222-23. After the operation, Mr. Phillips was taken to the El Paso County Jail.
Dr. Matthews next saw Mr. Phillips for a follow-up visit on September 11,
2009, noting the fixation to be in proper position and that the “ankle wound [was]
healing well.”
Id. at 228-29. He prescribed Tylenol or Tylenol 3 for pain and
directed corrections personnel at the El Paso County Jail to bring Mr. Phillips
back “in about a month for an X-ray of his right ankle out of the cast. At that
point we will make plans to remove the syndesmotic screw.”
Id. at 228. Phillips
was to “remain [non-weight-bearing] on crutches.”
Id. at 229. The record
suggests that the next appointment was scheduled for October 13, 2009.
However, on October 8, 2009, Mr. Phillips was regressed to KCCC to continue
serving his sentence. While Mr. Phillips was at the El Paso County Jail, doctors
there additionally prescribed Neurontin for a thirty-day period.
Mr. Phillips remained at KCCC for about two months, until his transfer to
the state-operated Sterling Correctional Facility (“SCF”) on December 11, 2009.
While at KCCC, he was under the medical supervision of defendants Dr.
Susan M. Tiona, a physician employed by CCA to provide medical services to
inmates housed in KCCC, and Jodi Gray, a Health Services Administrator at
KCCC, as well as others.
-3-
During his two months at KCCC, Mr. Phillips mounted a vociferous,
sometimes strident, and ongoing campaign to have the syndesmotic screw
removed from his ankle. He submitted dozens of requests/demands by way of
grievances, “kites” and other means to Dr. Tiona, Administrator Gray, Warden
Brill and others (including the Governor, the Department of Corrections, and
Doug Roberts, a Medical Monitor for the private Prisons Monitoring Unit of the
Colorado Department of Corrections (“CDOC”)) contending that Dr. Matthews
had directed that the screw be removed on October 8, the date of his arrival at
KCCC. Failure to do so, Mr. Phillips asserted, would result in him walking with
a limp. He also contended that Dr. Matthews wanted him to remain non-weight-
bearing until the screw was removed, so he apparently continued on crutches, or
at least not using his right leg, although he was issued a walker on November 5.
On November 10 he was told to start placing some weight on his right leg since
the fracture had healed.
On or about October 13, Dr. Tiona ordered an x-ray of Mr. Phillips’ ankle,
to be taken at the next scheduled arrival of CCA’s portable x-ray equipment at
KCCC. The x-ray was performed on October 28, 2009, and a diagnostic report
was issued on October 29, 2009, by Dr. Benjamin Huang. Dr. Huang stated that
the x-ray showed a “well fixated fracture of right distal fibula and without
displacement.”
Id. at 273. The doctor also noted that there was no dislocation
and that the ankle mortise was intact.
Id.
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On October 28 and again on October 30, 2009, Administrator Gray
responded to complaints by Mr. Phillips by advising him that the x-rays just taken
were being evaluated by Dr. Tiona.
Id. at 346, 366. Then, on November 5, 2009,
Dr. Tiona removed Mr. Phillips’ cast and entered the following note in Mr.
Phillips’ Ambulatory Health Record: “X-ray taken on 10/29/09 shows well
healed fracture with hardware in place, including syndesmotic screw through
fibula and tibia. Cast removed without difficulty. His surgical incision is nicely
healed. Leg is thoroughly cleaned up. He received a walker to use in his cell
until I hear back [exhibit indecipherable] . . . about ambulation.”
Id. at 279.
In her affidavit in support of her Motion for Summary Judgment, Dr. Tiona
relates her actions and conclusions from that point, as follows:
6. Denver Health Medical Center is the referring facility used
by Kit Carson Correctional Facility.
7. After identifying Plaintiff’s postsurgical status, I consulted
with an Orthopedic PA at Denver Health Medical Center. The
Orthopedic PA conveyed to me that the removal of the syndesmotic
screw is elective and that his department does not routinely remove
the screw. Further, it is expected that the screw will break after the
patient starts weight-bearing. If persistent pain exists 3 to 6 months
after the screw breaks, the screw can then be removed.
8. In addition to the consultation with Denver Medical Health
Centers, I reviewed orthopedic literature about weight-bearing and
screw removal.
9. From the recommendation of my consulting specialist, as
well as the support from the current orthopedic literature, there was
no medical necessity to remove the syndesmotic screw during the
-5-
time that Plaintiff was under my care at Kit Carson Correctional
Center.
Id. at 82. Based on information she had received and researched, as well as her
experience, 2 and her conclusions, Dr. Tiona then reported to the Medical Monitor,
Doug Roberts, by e-mail on November 6, 2009:
Briefly .... removed his cast on Thursday. Surgical site looks good.
X-ray showed well-healed distal fib fracture with stable hardware. I
e-mailed DHMC Ortho about the necessity for screw removal – as I
suspected, there is no need to have the syndesmotic screw removed.
It will naturally break (the screw, that is) when the patient starts to
bear weight. The fact is that he is being treated quite appropriately.
I will follow-up with a phone call to you next week, though, in case
you have any other questions.
Id. at 91. Dr. Tiona conveyed this information to Mr. Phillips on November 10,
noting the following information in his Ambulatory Health Record:
Visited Mr. Phillips in segregation. Discussed with him that I had
communicated with orthopedics at DHMC and that the syndesmotic
screw does not need to be removed. He can start his ROM [range of
motion] exercises (I reviewed these with him verbally), and can bear
weight as tolerated, using the walker for support as needed for the
next couple of weeks until his ankle gets stronger.
Id. at 280.
Subsequently Dr. Tiona examined Mr. Phillips on December 1, 2009, and
made the following notation in the Ambulatory Health Record:
I took his right ankle in my hands and started working with it.
Initially, there was basically zero ROM–both voluntary and
2
In her answers to interrogatories, Dr. Tiona stated that she had “managed
the post-surgical care of several other inmates over the past 6 years with the same
ORIF procedure.”
Id. at 473.
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involuntary stiffness of the ankle. After working with it for a few
minutes, and talking with Mr. Phillips to distract him, I was able to
get several millimeters of motion in all planes. When I pointed out
to him how much better his foot and ankle looked with just this
limited amount of therapy, he said “but I can’t do that in my cell.” I
showed him that he can, indeed, put his right leg across his left leg,
grab his ankle with his hands, and work it just like I was doing. He
says that he will try, and I told him that my nurses were going to be
bugging him about doing his therapy regularly. I also demonstrated
how to use his walker to better support his ankle while still
encouraging weight bearing and ROM.
Id. at 306. In a letter dated December 3, 2009, Dr. Matthews responded to
inquiries from Mr. Phillips as follows:
Dear Mr. Phillips:
I received your letter. As we discussed when you were in my office,
we typically remove the syndesmotic screw six weeks after the
surgery. I can’t comment on the symptoms you are having now, as I
have not seen you or gotten any other X-rays. If you have been
walking on the ankle a fair amount then the screw may already be
broken. That is not the end of the world but it is difficult to remove
and may give you symptoms if it is broken.
Id. at 319 (emphasis added). On December 11, 2009, Mr. Roberts, the Medical
Monitor, entered the following note in his Contact Management folder:
12/11/2009 I have communicated with the mother several times, both
by phone and email. The offender has received appropriate care. It
is not essential that the screws be removed. The offender has not
been following the recommendations of the MD at KCCC to start
weight bearing and PT. However, the offender has been in Seg, and
his opportunities to exercise and use his ankle are limited. I spoke
w/him 12/09, and told him I think that the best thing would be to get
him moved ASAP, so that he will be allowed greater movement. The
offender has been wait-listed to be transferred out of KCCC. I spoke
to Offender Services and this move will be done immediately. I told
Offender Services that SCF would be a good choice b/c of their new
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PA. The mother has been informed. (note: the offender was moved
today, 12/11/09) /dcr
Id. at 287 (emphasis added). As indicated by Mr. Roberts’ memo for the file, Mr.
Phillips was moved that same day, December 11, to SCF, a state-operated prison,
and thereafter was in the care of health care providers other than Dr. Tiona.
X-rays taken at SCF on December 17, 2009, showed “good healing and no
loosening of hardware.”
Id. at 309. The physician’s assistant, Kathleen Melloh,
noted: “He has not been putting wt on the R foot since that time [August 25]
using crutches. Only exercise he has done is drawing the alphabet so
consequently he cannot dorsiflex foot past neutral. Plantar flexion is only approx
15 degrees. I did see him in office yesterday and started on ROM exercises, but
cannot start any weight-bearing exercises until syndesmotic screw is removed.”
Id. (emphasis added).
Subsequently, on January 13, 2010, the syndesmotic screw was removed
from Mr. Phillips’ ankle, intact. The surgeon’s notes state that “[s]crew head was
cleared and backed out. Wound was closed with Steri-Strips. . . . He can weight
bear as tolerated. Ankle was stressed and stable.”
Id. at 435.
On April 22, 2010, following Mr. Phillips’ continuing complaints of pain,
he underwent further surgery. After inspection of the prior surgery site, a surgeon
removed the right fibular plate (one of the two plates inserted on August 26,
2009), noting:
-8-
The area of swelling that bothered the patient was secondary to
muscle impingement over the proximal end of the plate. There was
no sign of infection. No sign of necrotic tissue. No tissues, fluid
plains or anything noted to suggest infection. All tissue looked
healthy. Screws were removed. Plate removed. Where the
syndesmotic screw had been we did take a tissue block from that.
However, this showed just normal characteristics and no obvious
concern of infection. It was felt that the proximal muscle plate
interface was what had been irritated.
Id. at 321.
Mr. Phillips constantly complained of pain. At KCCC he demanded the
Neurontin that had been prescribed at the El Paso County Jail, but that was denied
by Dr. Tiona because it was considered a restricted drug for which Mr. Phillips
did not qualify. Dr. Tiona at first prescribed Ibuprofen (to which Mr. Phillips
objected because Dr. Matthews initially did not want him to take NSAIDs), then
several days later, on October 13, she prescribed large doses of Tylenol and, later,
combined doses of Tylenol and Ibuprofen. On October 18, 2009, Mr. Phillips
wrote to Dr. Tiona thanking her for the 1000-mg Tylenol prescription.
Id. at 463.
With the possible exception of a few days at the El Paso County Jail in
September 2009, the record does not show Mr. Phillips receiving anything but
Tylenol and Ibuprofen for pain 3 from the date of his surgery on August 26, 2009,
through at least 2010. That period includes his incarceration at SCF after
December 11, 2009, and two surgical procedures in 2010.
3
The record does disclose the administration of medications related to other
conditions; but those prescriptions were not linked to complaints of ankle pain.
-9-
During his two months at KCCC, Mr. Phillips refused to put any weight on
his right foot, despite advice to the contrary from Dr. Tiona beginning on
November 5. As a result, he maintained that the only way he could balance
himself on one leg and still access food delivered through the slot in his cell door
was to place the food tray on the floor and slide it to the table or bed where he
could lift the tray to an eating position. He particularly objected to the tray-
sliding technique due to the alleged presence of old dried urine stains on the floor
from past occupants. Accordingly, he demanded a wheelchair, to use in his cell,
so he could put food trays on his lap.
Likewise, Mr. Phillips demanded a handicap shower facility having grab
bars and a fold-down bench. But the one available handicap shower was not
working, so he was directed to the regular shower. From October 8 through
November 2, 2009, the prison gave Mr. Phillips a plastic chair to assist him in
showering. The chair was discontinued on November 2 after Mr. Phillips fell off
it. For the next month or so, Mr. Phillips alleges that to undress and dress for his
shower, he was forced to sit on the shower floor which he described in lurid
detail, not repeated here, as being covered with human wastes of all kinds. He
did not complain at the prison and does not assert anywhere in his pleadings that
he was unable to shower as such. His complaints are confined to having to dress
sitting on a contaminated floor.
-10-
Mr. Phillips brought this action alleging that the defendants (1) violated his
Eighth Amendment rights by not removing or delaying removal of the
syndesmotic screw contrary to Dr. Matthews’ treatment plan, resulting in pain and
a permanent limp; and (2) violated Titles II and III of the ADA and § 504 by not
furnishing a handicap shower or a wheelchair, thus forcing him to sit on a dirty
shower floor to dress and to slide his food tray over the dirty cell floor from the
door to his bed or table.
The district court, adopting the recommendation of the magistrate judge,
dismissed the Eighth Amendment claim against CCA and Warden Brill pursuant
to Fed. R. Civ. P. 12(b)(6) and, likewise, the § 504 claim as to all defendants.
Subsequently, the court granted summary judgment in favor of the defendants on
all remaining claims.
DISCUSSION
I. Dismissal of Eighth Amendment Claims Against CCA and Warden
Brill and § 504 Claims Against All Defendants for Failure to State a
Claim Upon Which Relief can be Granted
We review de novo a district court's dismissal of a complaint, pursuant to
Fed. R. Civ. P. 12(b)(6), for failure to state a claim, accepting all well-pleaded
factual allegations in the complaint as true and drawing all inferences in favor of
the plaintiff. Casanova v. Ulibarri,
595 F.3d 1120, 1124-25 (10th Cir. 2010); Bell
Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007). To survive a Rule 12(b)(6)
-11-
motion, the pleadings must contain "enough facts to state a claim to relief that is
plausible on its face."
Twombly, 550 U.S. at 570. We are mindful that Mr.
Phillips' pro se status entitles him to a liberal reading of his pleadings; we will
not, however, serve as his advocate. See Hall v. Bellmon,
935 F.2d 1106, 1110
(10th Cir. 1991).
As a preliminary matter, we note that Mr. Phillips states that he appeals the
district court's order that dismissed his § 1983 claim as against CCA and Warden
Brill and that dismissed his § 504 claim as against all defendants. As best we can
understand his opening brief, however, Mr. Phillips does not assert any claim of
error other than the dismissal of his § 1983 claim against Warden Brill.
Accordingly, to the extent he appeals the dismissal of his § 1983 claim against
CCA or the dismissal of his § 504 claim against all defendants, Mr. Phillips has
waived appellate review. See United States v. Cooper,
654 F.3d 1104, 1128 (10th
Cir. 2011) ("[A]rguments inadequately briefed in the opening brief are waived.")
(internal quotation marks omitted).
We have said that a plaintiff cannot establish liability under § 1983 merely
by showing that the defendant was in charge of others who may have committed a
constitutional violation. Instead, the plaintiff must establish a “deliberate,
intentional act by the supervisor to violate constitutional rights.” Dodds v.
Richardson,
614 F.3d 1185, 1195 (10th Cir. 2010). It is uncertain, however,
whether or in what form supervisory liability survives the Supreme Court’s
-12-
decision in Ashcroft v. Iqbal,
556 U.S. 662 (2009). See
Dodds, 614 F.3d at 1200
(“Iqbal may very well have abrogated § 1983 supervisory liability as we
previously understood it . . . in ways we do not need to address to resolve this
case.”); Lewis v. Tripp,
604 F.3d 1221, 1227 n.3 (10th Cir. 2010) (Iqbal “has
generated significant debate about the continued vitality and scope of supervisory
liability.”). At least, under Iqbal, a supervisor’s mere knowledge of his
subordinate’s discriminatory purpose and acquiescence are insufficient to
establish a constitutional violation. See
Iqbal, 556 U.S. at 677.
In any event, Mr. Phillips cannot meet even our pre-Iqbal standard. He
argues that Warden Brill was "dismissed for failure to personally participate,
which is not [t]rue." Aplt. Br. at 29. He further claims that Brill denied him the
use of a wheelchair and "was personally involved in the medical treatment
[Mr. Phillips] was complaining of [and] had the power, as is his duty[,] to abate
the pain and suffering."
Id.
Mr. Phillips states that he sent “kites” to the warden on October 27, 28 and
29 regarding removal of the syndesmotic screw and requesting transfer to a
medical yard.
Id. at 9-10. And, he noted that Warden Brill responded on
October 30, 2009, by stating that “Dr. Tiona is evaluating your case. You will
hear soon.”
Id. at 10. Such allegations do not state a constitutional violation on
the part of the warden. Merely sending grievances to a warden is not enough to
attach liability, and the warden’s response signified nothing more than a
-13-
reasonable reliance on the judgment of prison medical staff. We agree with
another panel of this court which stated that such reliance “negates rather than
supports liability.” Arocho v. Nafziger, 367 Fed. Appx. 942, 956 (10th Cir. 2010)
(unpublished). See also Johnson v. Doughty,
433 F.3d 1001, 1010-11 (7th Cir.
2006) (finding that prison official may reasonably rely on the judgment of
medical professionals).
We have reviewed the parties' briefs, the record on appeal, and the relevant
legal authority, and we agree with the magistrate judge's detailed report and
recommendation on this issue. Therefore, with respect to Mr. Phillips' challenges
to the dismissal of his § 1983 claim against Warden Brill, we affirm the district
court for the reasons stated above and for substantially the same reasons as those
set forth by the magistrate judge in her report and recommendation dated
March 11, 2011, which the district court adopted in its amended order dated
June 9, 2011.
II. Summary Judgment Dismissing § 1983 Eighth Amendment Medical
Treatment Claims Against Dr. Tiona and Ms. Gray
The district court granted summary judgment to Dr. Tiona and Ms. Gray on
Mr. Phillips’ Eighth Amendment claims, concluding that those defendants were
not deliberately indifferent to Mr. Phillips’ condition, and that any disagreement
-14-
between them and Mr. Phillips were attributable only to a difference of medical
opinion, or, at most, to mere negligence. 4
A. Standard of Review
Summary judgment is appropriate in cases where the record discloses “no
genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). In a deliberate
indifference case under the Eighth Amendment, we look at the factual record and
the reasonable inferences to be drawn from the record in the light most favorable
to the non-moving party. Sealock v. Colorado,
218 F.3d 1205, 1209 (10th Cir.
2000). The plaintiff must “go beyond the pleadings and designate specific facts
so as to make a showing sufficient to establish the existence of an element
essential to that party's case in order to survive summary judgment.”
Id. (further
quotation omitted). “To defeat a motion for summary judgment, evidence,
including testimony, must be based on more than mere speculation, conjecture, or
surmise.” Bones v. Honeywell Int'l, Inc.,
366 F.3d 869, 875 (10th Cir. 2004).
“Unsubstantiated allegations carry no probative weight in summary judgment
proceedings.” Phillips v. Calhoun,
956 F.2d 949, 951 n.3 (10th Cir. 1992); accord
Annett v. Univ. of Kan.,
371 F.3d 1233, 1237 (10th Cir. 2004) (noting that
4
While there is some confusion in the record, it is clear that in his brief on
appeal, Mr. Phillips does not include the question of a wheelchair or a handicap-
accessible shower in the Eighth Amendment claims. Rather, his claims are
confined to claims under the ADA, and we treat them as such.
-15-
“unsupported conclusory allegations . . . do not create a genuine issue of fact”)
(further quotation omitted).
B. Medical Care Claim
Mr. Phillips contends that Dr. Tiona and Ms. Gray violated the Cruel and
Unusual Punishments Clause of the Eighth Amendment when they failed to have
the syndesmotic screw in his ankle removed during the two months he was at
KCCC, i.e. within 3-1/2 months of his surgery. He claims that this failure, and
their insistence that he could bear some weight on his right leg after November 5,
resulted in his having a permanent limp, and continual pain. As pled, his claims
of omission, delay and resulting limp do not cover the additional month between
December 11, 2009, when he was transferred to SCF, and January 13, 2010, when
the screw was removed, because he firmly asserted in grievances at KCCC that he
was going to have a permanent limp if the screw was not removed while he was
there. And, according to his allegations, the screw removal in January did not
cure his limp.
Prison officials violate the Eighth Amendment when they are deliberately
indifferent to a prisoner’s serious medical needs. Estelle v. Gamble,
429 U.S. 97,
104-106 (1976). To establish an Eighth Amendment claim under that standard, a
prisoner must satisfy two requirements, consisting of an objective and a
subjective component. To satisfy the objective component the prisoner must
-16-
establish that the deprivation alleged was sufficiently serious. See Farmer v.
Brennan,
511 U.S. 825, 834 (1994). The subjective component requires the
prison official to have a “sufficiently culpable state of mind.”
Id. In the context
of prison conditions cases, “that state of mind is one of ‘deliberate indifference’
to inmate health or safety.”
Id. (quoting Wilson v. Seiter,
501 U.S. 294, 302-303
(1991)). “[A] prison official cannot be found liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health. . . .”
Id. at 837.
A mere difference of opinion between a prisoner and the prison’s medical
staff with respect to a diagnosis or a plan of treatment, or a mere medical
difference of opinion, is not actionable under the Eighth Amendment. See
Estelle, 429 U.S. at 107; Self v. Crum,
439 F.3d 1227, 1231 (10th Cir. 2006);
Thompson v. Gibson,
289 F.3d 1218, 1222 (10th Cir. 2002); Perkins v. Kan.
Dep’t of Corr.,
165 F.3d 803, 811 (10th Cir. 1999); Ramos v. Lamm,
639 F.2d
559, 575 (10th Cir. 1980). Applying that rule, the district court concluded that
Mr. Phillips failed to satisfy the subjective prong of the deliberate indifference
test, that is that Dr. Tiona and Ms. Gray acted with a culpable state of mind. It
reasoned that Mr. Phillips’ arguments reflected only a disagreement with his post-
operative medical care. We agree.
In her affidavit in support of the motion for summary judgment, Dr. Tiona
stated that she considered Mr. Phillips' request to have the screw surgically
-17-
removed, but after consulting with the orthopedics department at Denver Health
Medical Center (the referring facility used by KCCC), and researching the
question, she determined that the screw did not need to be removed during his
time at KCCC, i.e., within 3-1/2 months of surgery.
That Dr. Matthews planned to remove the screw around six weeks after
surgery, which is his typical practice, does not mean that either removal or
removal within six weeks are medical absolutes for all doctors for syndesmotic
screws, as Dr. Tiona’s affidavit and course of action make clear. Certainly there
is no evidence that Dr. Matthews thought that failure to remove the screw within
six weeks, or 3-1/2 months, or more, presented an “excessive risk” of harm. In
his December 3, 2009, letter to Mr. Phillips (more than three months after
surgery), Dr. Matthews stated that “If you have been walking on the ankle a fair
amount then the screw may already be broken. That is not the end of the world
but it is difficult to remove and may give you symptoms if it is broken.” R. Vol.
4 at 319 (emphasis added). Notably, the screw in Mr. Phillips’ ankle was intact
when removed on January 11; and even if it had not been (as Dr. Tiona
envisioned would eventually happen), it would not present a major problem
(“That is not the end of the world”).
But, Mr. Phillips argues, he limps. At KCCC he insisted he would limp if
the screw was not removed at that time. However, there is not one iota of
medical evidence linking non-removal of syndesmotic screws within 3-1/2 months
-18-
of surgery to a limp. Not from Dr. Matthews or anyone else. What the record
does disclose is that multiple x-rays, and visual examinations during surgery on
January 13 and April 22, 2010, showed that the fractured fibula was well healed,
that all ankle structures were intact and in place, that there was no problem at the
site of the screw, and no necrotic tissue or infection. There was some unrelated
irritation discovered in April 2010 around one of the plates.
Absent any medical evidence linking screw removal to a limp, there is no
fact question on this subject which could properly be submitted to a jury. More to
the point, there is no evidence pointing to a culpable state of mind on this subject
where Dr. Tiona is concerned. And, the fact that Mr. Phillips avoided doing
prescribed range of motion exercises, including non-weight-bearing ones, until
January 2010, or at least December 17, 2009, is significant.
Likewise, there is no medical evidence linking a limp to the fact that
Dr. Tiona wanted Mr. Phillips to bear some weight on his right foot after
November 5, 2009. Dr. Matthews, who, as one would expect, told Mr. Phillips
not to put weight on his foot for the first six weeks after setting and fixing in
place a broken fibula, expected that Mr. Phillips would have been “walking a fair
amount” by three months after surgery.
The same rationale applies to Mr. Phillips’ subjective complaints of pain.
He complained continuously of pain: after his surgery, at the El Paso County Jail,
at KCCC, and at SCF, and both before and after the removal of the syndesmotic
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screw. But there is nothing in the medical evidence with respect to pain that
isolates his two months at KCCC from the standpoint of an excessive risk of
serious harm, or knowledge by Dr. Tiona of a substantial risk of harm. As
indicated above, what the record does show is a normally healing ankle, with no
necrosis or infection, and with no identifiable abnormality in structure,
throughout the entire period, excepting only the unrelated tissue irritation around
one plate observed in the April 2010 surgery. And, medical professionals at SCF
apparently prescribed nothing more for pain than Dr. Tiona prescribed—Tylenol
and Ibuprofen—based upon their objective evaluation of Mr. Phillips’ ankle and
leg.
We have reviewed the parties' briefs, the record on appeal, and the relevant
legal authority, and we agree with the magistrate judge's detailed report and
recommendation on this issue. Therefore, with respect to Mr. Phillips' challenges
to the dismissal of his § 1983 claim against Dr. Tiona and Ms. Gray, we affirm
the district court for the reasons stated above and for substantially the same
reasons as those set forth by the magistrate judge in her report and
recommendation dated November 10, 2012, which the district court adopted in its
order dated February 13, 2012.
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III. Summary Judgment Dismissing Phillips’ ADA Claims
Mr. Phillips claims that the defendants violated Titles II and III of the ADA
by failing to provide him with a wheelchair, primarily to assist him with meals in
his cell, and a handicap shower with a bench to aid him in getting dressed. He
appeals the district court’s dismissal of this claim on summary judgment.
Title II of the ADA provides 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 (emphasis
added). 5 The Act defines a "public entity" as any State or local government,
department, agency, special purpose district, or other instrumentality of a State or
States or local government; and the National Railroad Passenger Corporation, and
any commuter authority. 42 U.S.C. § 12131(1) (emphasis added). See Robertson
v. Las Animas Cnty. Sheriff's Dep't,
500 F.3d 1185, 1193 (10th Cir. 2007). An
individual is disabled if he has a "physical or mental impairment that substantially
limits one or more major life activities." 42 U.S.C. § 12102(1)(A).
5
The ADA was amended, effective January 1, 2009, by the ADA
Amendments Act of 2008 (ADAA), Pub. L. No. 110-325, 122 Stat. 3553, to
expand the definition and construction of what constitutes a disability. See 42
U.S.C. § 12102(4)(A). The term “substantially limits” was also broadened,
particularly as set forth in EEOC Regulations issued in 2011. See 29 C.F.R.
§ 1630.2(J)(4) (2012).
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The question is whether CCA, a private, for-profit corporation, is an
instrumentality of the State of Colorado with respect to KCCC, hence subject to
Title II of the ADA as a “public entity.” The district court held CCA did not so
qualify and granted summary judgment in favor of CCA on the issue. 6
A.
Relevant decisions by the overwhelming majority of courts support the
conclusion that the ADA does not apply to private prisons. At least two circuit
courts have held, as did the district court, that a private prison is not a public
entity under the ADA. See Edison v. Douberly,
604 F.3d 1307 (11th Cir. 2010);
Maringo v. Warden, 283 Fed. Appx. 205 (5th Cir. 2008) (unpublished).
The Eleventh Circuit in Edison held that a private prison management
corporation, which operated a Florida state prison, was not a public entity subject
to Title II of the ADA: “a private corporation is not a public entity merely
because it contracts with a public entity to provide some service.”
Edison, 604
F.3d at 1310. In so concluding, the Eleventh Circuit relied upon the analysis of
the Second Circuit in Green v. New York,
465 F.3d 65 (2d Cir. 2006), which,
6
The district court granted summary judgment to defendants Brill, Tiona,
and Gray on Mr. Phillips' Title II claim, reasoning that the ADA does not
contemplate liability against individuals in their personal capacity, since it is
limited to “public entities.” Mr. Phillips does not specifically challenge that
determination. Accordingly, our analysis is confined to the question of liability
against CCA, a corporation.
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largely in reliance upon the actual language of the ADA, concluded that a private
hospital performing services pursuant to a contract with a municipality was not an
instrumentality of the government, and thus not a public entity under the ADA.
The analysis of the Green court is instructive. The court observed that
“public entity” under Title II of the ADA is defined as “any department, agency,
special purpose district, or other instrumentality of a State or States or local
government.” 42 U.S.C. § 12131(1)(B). Thus, the question became what the
statute meant by the term “instrumentality of a State.”
Green, 465 F.3d at 78-79.
Applying the canon of statutory construction known as noscitur a sociis (“a word
is known by the company it keeps”),
id. at 79 (citing Jarecki v. G.D. Searle &
Co.,
367 U.S. 303, 307 (1961)), the Green court noted that the defining
characteristics of the “company” kept by “instrumentality” (“department, agency
[and] special purpose district . . . of a State . . . or local government”) are that
they are traditional government units or are created by a government unit. The
Second Circuit concluded that the private hospital in Green was not a
governmental unit, but, rather, was a “parallel private entity.”
Id. Accordingly,
as the Edison court, agreeing with Green, concluded: “A private contractor does
not . . . become liable under Title II merely by contracting with the State to
provide governmental service, essential or otherwise.”
Edison, 604 F.3d at 1310.
Numerous courts have agreed with this analysis. See Wilkins-Jones v.
County of Alameda,
859 F. Supp. 2d 1039, 1048 (N.D. Calif. 2012) (Title II does
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not apply to government contractors); Rodrigues v. Arizona Dep’t of Corr.,
2012
WL 6200624, at **9-10 (D. Ariz. Dec. 12, 2012) (unpublished) (a private prison
does not qualify as an instrumentality of a state and therefore Title II of the ADA
does not apply); Rickerson v. Gills,
2012 WL 1004733, at *2 (N.D. Fla. Feb. 8,
2012) (unpublished) (holding that CCA was not liable under Title II of the ADA);
Collazo v. CCA,
2011 WL 6012425, at *3 (N.D. Ohio Nov. 30, 2011)
(unpublished) (“A private prison does not qualify as a department or agency of a
state or local government and therefore is not a ‘public entity’ under the
[ADA].”); Medina v. Valdez,
2011 WL 887553, at *4 (D.
Id. March 10, 2011)
(unpublished) (analyzing Green and Edison and concluding that “the [ADA] was
intended to include only state entities and instrumentalities created by the state.
Private contractors do not fit within the strict definition”); Gonzalez-Jarquin v.
CCA,
2008 WL 3285764, at *3 (S.D. Ga. Aug. 8, 2008) (unpublished) (“Although
the CCA is contracted with the BOP to operate [the state prison], it does not
constitute a ‘public entity’ within the meaning of Title II.”); cf. Maxwell v. South
Bend Work Release Ctr.,
787 F. Supp. 2d 819, 822 (N.D. Ind. 2011) (following
Edison and Green to hold that a private corporation that employs prisoners is not
a public entity); Castle v. Eurofresh, Inc.,
734 F. Supp. 2d 938, 943 (D. Ariz.
2010) (following Green and Edison to hold that a private corporation to whom
prison contracts prison labor is not a public entity); Cox v. Jackson,
579 F. Supp.
2d 831, 852 (E.D. Mich. 2008 ) (holding that a private company providing
-24-
medical services to a prison is not a public entity, stating, “[a] private contractor
does not become a ‘public entity’ under Title II merely by contracting with a
governmental entity to provide governmental services”).
B.
The opposing view is captured in Judge Barkett’s dissent in Edison. She
argued that the Edison majority “conflate[d] government contracting with
government function.”
Edison, 604 F.3d at 1311 (Barkett, J., dissenting). While
the dissent agreed with the majority that simply contracting with the government
does not render a private company subject to Title II of the ADA, it distinguished
the facts of Edison, in which a private company “takes the place of the state in
performing a function within the exclusive province of the state.”
Id. at 1311-12.
In such a situation, the dissent concluded that the “company cannot be permitted
to avoid the requirements of the law governing that state function.”
Id. at 1312.
The dissent therefore distinguished Green and other factually similar cases from
the situation presented in Edison and in this case: in those cases a private entity
only contracted to provide services it was otherwise lawfully able to provide; in
Edison and in the case before us, state involvement was essential to perform the
function at issue—i.e., operating a prison.
Id. at 1311. Nonetheless, that dissent
has not found traction in the caselaw on the topic thus far.
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The rationale underpinning the Edison dissent finds support in other
contexts. In Pennsylvania Dept. of Corrections v. Yeskey,
524 U.S. 206, 209
(1998), the Supreme Court held that Title II of the ADA applies to state prisons,
reasoning that a state prison is unquestionably a public entity and that
management of a state prison is one of the primary functions of government. In
Smith v. Cochran,
339 F.3d 1205, 1215-16 (10th Cir. 2003), a case involving the
rape of a prisoner by a state driver’s license examiner, we upheld an Eighth
Amendment claim brought under 42 U.S.C. § 1983, reasoning that “persons to
whom the state delegates its penological functions, which include the custody and
supervision of prisoners, can be held liable for violations of the Eighth
Amendment.” In reaching that conclusion, we relied on two Supreme Court
cases: Evans v. Newton,
582 U.S. 296, 299 (1966) (“[W]hen private individuals
or groups are endowed by the State with powers or functions governmental in
nature, they become agencies or instrumentalities of the State. . . .”); and West v.
Atkins,
487 U.S. 42, 57 (1988) (holding that a private doctor treating prisoners
under a contract with state prison authorities acted under color of state law for
purposes of a § 1983 suit).
We have long assumed that employees of a private prison act under color of
state law for purposes of § 1983 suits by inmates, a question left open by the
Supreme Court in Richardson v. McKnight,
521 U.S. 399, 413 (1997). See
Peoples v. CCA Det. Ctrs.,
422 F.3d 1090, 1111, nn. 8, 11 (10th Cir. 2005) (Ebel,
-26-
J., dissenting) (citing Lugar v. Edmondson Oil Co.,
457 U.S. 922, 941-42 (1982));
Street v. CCA,
102 F.3d 810, 814 (6th Cir. 1996) (holding that employers of
private prison management company were acting under color of state law for
§ 1983 purposes in that they were performing a “traditional state function.”). See
also Marsh v. Newton,
134 F.3d 383,
1998 WL 39235, at *4 (10th Cir. Jan. 30,
1998) (unpublished) (“We assume, for purposes of this analysis, that Corrections
Corporation of America, the private company operating the women’s prison, and
its employees, are state actors.”).
Perhaps more to the point, several courts have held that under the Religious
Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1(a),
private prisons qualify as “instrumentalities” of state government. See Knows
His Gun v. Montana,
2012 WL 2087226 (D. Mont. Feb. 29, 2012) (unpublished)
(citing West v.
Atkins, 487 U.S. at 49-51)); Dean v. CCA,
540 F. Supp. 2d 691
(N.D. Miss. 2008); but see Aladimi v. Alvis House/Cope Ctr.,
2012 WL 726852
(S.D. Ohio Mar. 6, 2012) (unpublished) (holding to the contrary).
But these lines of reasoning are not without exceptions. Thus, for purposes
of the Federal Tort Claims Act (FTCA), a panel of this court has held that the
independent contractor exception applies to private prisons, i.e., they are not
federal agencies. See, e.g., Menteer v. Applebee,
2006 WL 2294845 (10th Cir.
Aug. 10, 2006) (unpublished) (citing Logue v. United States,
412 U.S. 521
(1973)). And the Supreme Court has rejected the proposition that a private prison
-27-
management firm is a federal agent for purposes of a prisoner’s suit. Minneci v.
Pollard,
132 S. Ct. 617, 623 (2012) (characterizing the rejection of a suggestion
by the dissent in Correctional Serv. Corp. v. Malesko,
534 U.S. 61 (2001)).
C.
The question, however, as recognized in the majority of authorities to
address Title II and private prisons is not so simple as merely looking generally at
function.
1. Structure/Function
Structurally, CCA is in no way a public entity. It is a private, for-profit,
business corporation, listed on the New York Stock Exchange, in the business of,
among other things, the private management of prisons and other correctional
facilities under contract with all three federal corrections agencies, sixteen states,
and local municipalities. It is the fifth-largest corrections system in the nation
behind only the federal government and three states. It houses more than 80,000
inmates in more than 60 facilities, 44 of which are company-owned, and it
employs nearly 17,000 people.
CCA operates three correctional facilities in the State of Colorado, under
contract with the State: Bent County Correctional Facility, Crowley County
Correctional Facility, and, as relevant here, Kit Carson Correctional Center. The
State of Colorado contracts with CCA pursuant to state statute authorizing the
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CDOC “to permanently place state inmates classified as medium custody and
below in private prisons,” Colo. Rev. Stat. § 17-1-104.9, subject to legislation
comprehensively regulating such prisons. 7
Functionally, private prisons like KCCC only partly mirror prisons operated
by the state. 8 As indicated above, the State of Colorado remains intimately
involved. Private prisons in Colorado must, among other things, “abide by
operations standards for correctional facilities adopted by the executive director
of the department of corrections.”
Id. at § 17-1-202(1)(e). Notably, inmates
assigned to private prisons remain officially in the custody of the CDOC, and the
CDOC retains sole authority to assign and transfer inmates, make final
determinations on disciplinary matters affecting liberty interests, make decisions
that affect sentences or time served, including earned time credits, make
recommendations to the state board of parole, develop work requirements, and
7
See, e.g., §§ 17-1-102(7.3), 17-1-103(1)(a), 17-1-103.8(4), 17-1-104.5,
17-1-104.9, 17-1-105, 17-1-105.1 (Accreditation of private contract prisons),
17-1-113.7, 17-1-115.5, and Part 2 of Article I (Department of Corrections):
“Corrections Privatization - Requests For Proposals Process.” Statutory
provisions under Part 2 include 17-1-202 (“Requests for competitive proposals
and contract requirements”), 17-1-202.5 (“Private prison planning process”),
17-1-203 (“Powers and duties not delegable to contractor”), 17-1-205 (Contract
termination), and 17-1-206 (incorporating the provisions of 16-11-308 regarding
inmates in the custody of the CDOC).
8
The CDOC operates twenty-two state correctional facilities. See Colo.
Rev. Stat. §17-1-104.3(1)(b).
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determine eligibility for any form of release from a correctional facility. § 17-1-203.
By outsourcing the incarceration of its prisoners, the State relieves itself of
significant expenses, from those related to housing prisoners and providing food,
medical, dental and other care, plus a full range of programs, to security, and the
burden of payroll and state benefits to staff and administrators. In addition the
State avoids exposure to the risks and expense of litigation and judgments. CCA
personnel have no claim on benefits from the State, and CCA, by statute,
indemnifies the State and its employees from all liabilities, including those
stemming from civil rights claims; and it must carry insurance to back up that
indemnification. Colo. Rev. Stat. § 17-1-202((1)(b).
2. Asymmetry
The line separating a State-operated prison from one operated by a private
corporation is not just cosmetic. There are important differences, creating a
material and significant asymmetry. Thus, for instance, whereas the State and its
CDOC employees enjoy Eleventh Amendment immunity from damages suits
under § 1983 for their official actions, 9 and CDOC employees in their individual
capacities enjoy qualified immunity in § 1983 damages actions, CCA and its
private prison employees enjoy neither. They are fully exposed to the numerous
civil rights suits brought by inmates. See,
Richardson, 521 U.S. at 412
9
See Quern v. Jordan,
440 U.S. 332, 338-40 (1979); Procunier v. Navarette,
434 U.S. 555, 561-62 (1978); Griess v. Colo.,
841 F.2d 1042, 1044 (10th Cir.
1988).
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(“[P]rivate prison guards, unlike those who work directly for the government, do
not enjoy immunity from suit in a § 1983 case.”). In arriving at that conclusion,
the Court in Richardson expressly rejected a functional test, stating: “Indeed a
purely functional approach bristles with difficulty, particularly since, in many
areas, government and private industry may engage in fundamentally similar
activities, ranging from electricity production, to waste disposal, to even mail
delivery.”
Id. at 409. Of course, the reasoning in Richardson relates to the
justification for an immunity, but it is still instructive. The Court concluded by
stating:
Our examination of history and purpose thus reveals nothing
special enough about the job or about its organizational structure that
would warrant providing these private prison guards with a
governmental immunity. The job is one that private industry might,
or might not, perform; and which history shows private firms did
sometimes perform without relevant immunities. The organizational
structure is one subject to the ordinary competitive pressures that
normally help private firms adjust their behavior in response to the
incentives that tort suits provide–pressures not necessarily present in
government departments.
Id. at 412.
On the other hand, unlike federal prisoner suits against government
employees, federal prisoners at a privately run federal prison cannot bring a
Bivens 10 action against the private corporation that manages the prison, or its
privately employed personnel working there, when there is a remedy under state
10
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).
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tort law. See
Malesko, 534 U.S. at 72-73;
Minneci, 132 S. Ct. at 620. But that
prohibition is more than offset by the ability to bring actions for simple
negligence—a ground not available, for instance, in an Eighth Amendment claim
under § 1983. See
Minneci, 132 S. Ct. at 626. (The “potential existence of an
adequate ‘alternative, existing process [a tort remedy under state law]’ differs
dramatically in the two sets of cases. Prisoners ordinarily cannot bring state-law
tort actions against employees of the Federal Government . . . . But prisoners
ordinarily can bring state-law tort actions against employees of a private firm.”).
And, with respect to the application of Title II of the ADA, states may, for
certain conduct, enjoy sovereign immunity from ADA suits for money damages
where that conduct does not actually violate the Fourteenth Amendment. See
United States v. Georgia,
546 U.S. 151, 159 (2006); cf., Guttman v. Khalsa,
669
F.3d 1101, 1118-19 (10th Cir. 2012). If it is determined that Title II of the ADA
applies to them, private prison management corporations will have no such
opportunity for protection.
Finally, Title II of the ADA does not apply to federal prisoners in federal
prisons, including those privately managed by corporations such as CCA. That is
so because Title II covers only states and defined appendages thereof.
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D.
Importantly, regulations issued by the Attorney General implementing Title
II suggest that states may not avoid the responsibility to provide services to
disabled prisoners by contracting away those obligations. Thus, prison
assignments should not make a material difference. The regulations require that:
A public entity in providing any aid, benefit, or service, may not,
directly or through contractual, licensing, or other arrangements,
[discriminate against individuals with disabilities].
28 C.F.R. § 35.130(b)(1).
Pursuant to that regulation, the State of California, for example, has been
required by the courts to ensure that county jails housing state prisoners pursuant
to contract do so under ADA-compliant conditions. Armstrong v.
Schwarzenegger,
622 F.3d 1058, 1069 (9th Cir. 2010). The court described the
contract obligations as follows:
The State’s contracts and arrangements with the counties are not
simply to incarcerate parolees and prisoners, but to provide such
individuals with various positive opportunities, from educational and
treatment programs, to opportunities to contest their incarceration, to
the fundamentals of life, such as sustenance, the use of toilet and
bathing facilities, and elementary mobility and communication. The
restrictions imposed by incarceration mean that all of these positive
opportunities must be provided or allowed to individuals incarcerated
pursuant to state contracts and arrangements to the same extent that
they are provided to all other detainees and prisoners.
Id. at 1068 (emphasis added).
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The remedy for violations of the regulation, and such conditions, is not to
sue the jails for breach of contract under a third-party beneficiary theory, or for
violations of the ADA, but to sue the state for failing to meet its own obligations
under the ADA.
Id. at 1069.
The Armstrong case involves a seventeen-year-old ADA class action suit
by California prisoners. Colorado has had a similar ADA class action suit,
Montez v. Hickenlooper, No. 92-CV-870-JLK, 11 which resulted in an ADA
Remedial Plan for class members, dated August 27, 2003; Administrative
Regulation 750-04 governing prisoner requests for accommodation, and the
establishment of an ADA Inmate Coordinator and Facility ADA Coordinators. 12
The record does not disclose what, if any, contract arrangements are in
place between CDOC and CCA with respect to the Kit Carson Correctional
Center. But there are strong evidences of ADA policies and practices in place. 13
11
The Montez case commenced in 1992 as a pro se civil rights action. It
was subsequently certified as a class action under the ADA. It ultimately
generated the Remedial Plan.
12
To the extent it may be applicable, certain contracts entered into by the
CDOC do not accord third-party beneficiary status to any inmate or to any
member of the general public. Colo. Rev. Stat. 17-1-202(2).
13
Whether by contract, other operational arrangement with CDOC, or
otherwise, it is evident from the record that CCA implements ADA
accommodations to some degree. As Mr. Phillips asserts, the prison had both a
handicap shower (not functional) and a cell. Apparently inmates also had access
to a state ADA coordinator and use of state forms and procedures for ADA alerts
and requests for accommodation. See, e.g., R. Vol. 5 at 233 (in responding to an
(continued...)
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Mr. Phillips has not joined the State as a party, so we do not pursue the
matter here. The point is, however, that it would be a mistake to assume some
stark difference in disability accommodations between Colorado inmates in State-
run prisons and those in private facilities operated under contract.
E.
In any event, while all these considerations bear somewhat on the problem,
in the end we are still faced directly with a question of statutory interpretation:
Is CCA a public entity? Is it an instrumentality of government in the same sense
13
(...continued)
interrogatory, CCA stated it was “unaware of Plaintiff filing the proper paperwork
or going through the required process to be considered for ADA
accommodation”);
id. at 91, 234 (references to “ADA Inmate Coordinator”); R.
Vol. 4 at 427-28(Request for Accommodation: memo from ADA inmate
coordinator). There is no indication whether or to what extent CCA complies
with CDOC A.R. 750-04.
Furthermore, we note that CCA has been inconsistent in its assertion that
the ADA does not apply to it, at least by contract. For example, in CCA’s Reply
in Support of its Motion to Dismiss, CCA avers that “[T]he ADA is not an official
custom or policy of CCA. Rather, the ADA is a legislative act that places certain
requirements on CCA.” Reply at 4, R. Vol. 1 at 324 (emphasis added); R. Vol. 5
at 248 (CCA responded to an interrogatory asking about “A.D.A. . . . showers”
without disputing applicability of the ADA). Mr. Phillips also referred, without
apparent objection, to the occurrence of “ADA alerts” at the prison.
Id. at 91.
Also it is a matter of interest that in the district court CCA did not assert the non-
applicability of the ADA in its motion to dismiss but addressed the claim on other
grounds. Defendant CCA’s Motion to Dismiss, R. Vol. 1 at 204. It waited for the
motion for summary judgment to assert that the ADA claim must be dismissed for
failing to state a claim upon which relief may be granted. Defendants’ Mot. for
Summ. J., R. Vol. 4 at 21.
CCA has been unhelpful in explaining its operational practices with respect
to ADA accommodations.
-35-
as a “department, agency, or special purpose district”? We think not. In the
absence of clarification on the point in the 2008 Amendments to the ADA or any
of the regulations issued before or since, we agree with the reasoning of the
Second Circuit in Green that the proper canon of construction to apply is noscitur
a sociis (a word is known by the company it keeps), and that “instrumentality”
refers to a traditional government unit or one created by a government unit.
Accordingly, we join the Eleventh Circuit and the overwhelming majority
of other courts that have spoken directly on the issue, and hold that Title II of the
ADA does not generally apply to private corporations that operate prisons. In
particular, it does not apply to CCA with respect to the management of KCCC.
And the complaint fails to state a claim against CCA upon which relief could be
granted for an alleged violation of the ADA.
F.
Mr. Phillips also challenges the district court's summary dismissal of his
Title III claim, upon recommendation of the magistrate judge, on the basis that
the court lacked jurisdiction over the claim. Because Mr. Phillips' sole remedy
for a Title III claim is injunctive relief, and he alleged only past exposure to ADA
violations, we perceive no error. See 42 U.S.C. § 12188(a)(2); Powell v. Nat'l
Bd. of Med. Exam'rs,
364 F.3d 79, 86 (2d Cir. 2004) ("A private individual may
-36-
only obtain injunctive relief for violations of a right granted under Title III; he
cannot recover damages.").
CONCLUSION
For the reasons stated above, the judgment of the district court dismissing
Mr. Phillips’ claims is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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