WILLIAM S. DUFFEY, JR., District Judge.
This matter is before the Court on Edward Eliot Kramer's ("Plaintiff") Motion for a Preliminary and Permanent Injunction [2], Plaintiff's Motion for Leave to File Second Amendment to Verified Complaint [12], and Defendants' First Motion for Summary Judgment [13].
Plaintiff is a pre-trial detainee at the Gwinnett County Jail (the "Jail") and has been there since January 19, 2013. (Tr. at 119.) Plaintiff alleges that certain conditions of his confinement at the Jail violate his right to practice his Orthodox Jewish faith and he alleges a failure to accommodate certain physical disabilities from which he claims to suffer.
Plaintiff initiated this action by filing his verified complaint on April 15, 2013. (Compl. [1].) Plaintiff asserts the following claims in this action: (1) Defendants violated Plaintiff's rights under the U.S. Constitution and the Religious Land Use and Institutionalized Persons Act ("RLUIPA") by restricting his right to possess religious books necessary for him to practice his Orthodox Jewish faith; (2) Defendants violated Plaintiff's constitutional right to possess those legal reference books he considers necessary to defend his criminal case and determine his legal rights as an inmate; and (3) Defendants violated the Constitution and the Americans with Disabilities Act ("ADA") by denying Plaintiff greater access to a typewriter for use in communicating with his lawyers and Jail officials, specifically by not allowing him to have a typewriter in his cell. (Id. at 7-14.)
On April 17, 2013, Plaintiff filed his Motion for a Preliminary and Permanent Injunction (the "Injunction Motion"). (Mot. [2].) Plaintiff seeks to prevent Defendants from continuing to violate his rights under federal law and seeks an order: (1) allowing Plaintiff to possess in his cell the religious books necessary to practice his Jewish faith; (2) allowing him to possess in his cell legal materials necessary for his criminal case and to determine his legal rights as an inmate; and (3) allowing him to have a typewriter in his cell to use to communicate with his lawyers and others. (Id. at 6-7.)
Plaintiff amended his complaint on April 23, 2013. (Am. Compl. [8].) In the amendment, Plaintiff supplements his claim based on the alleged denial of legal reference books. (Id.) Plaintiff asserts now that Jail officials unreasonably rejected a package containing four soft-cover books shipped from Prison Legal News because it violated the Jail's four-pound limitation on mailed material. (Id.) Plaintiff also contends that the Jail's policies prohibiting receipt of packages weighing more than four pounds and prohibiting possession of more than four soft-cover books in Plaintiff's cell violates his constitutional rights, including his right to practice the Jewish faith. (Id.) Defendants filed their motion for summary judgment after the amended complaint was filed. (Mot. [13].)
Plaintiff moved to further amend his complaint to add a claim under the ADA based on events that allegedly occurred on April 26, 2013, when Plaintiff attended a
Plaintiff seeks, in this action, declaratory and injunctive relief, attorney fees and litigation costs. (Compl. [1] at 14-15; Am. Compl. [8] at 4.) He does not seek damages. (Id.)
The Court conducted a hearing on the Injunction Motion on August 13, 2013, which was a consolidated hearing on Plaintiff's request for preliminary injunctive relief and a trial on the merits regarding his request for permanent injunctive relief (the "August 13th Hearing").
Testimony of four witnesses was presented at the August 13th, 2013 Hearing. The witnesses were: Rabbi Douglas Stein, Plaintiff, Defendant Don Pinkard, and Lieutenant Adrian Watkins. (Tr. at 2.) Various exhibits also were introduced at the hearing.
Plaintiff is housed in a medical cell in the infirmary at the Jail. (Id. at 47, 48, 138.) He does not have cellmates. (Id.) Plaintiff's medical cell is approximately three times larger than a non-medical cell. (Id. at 47-48.)
Lieutenant Adrian Watkins works at the Jail and oversees Plaintiff's confinement and has since approximately February 2013. (Id. at 95-96.) Defendant Colonel Don Pinkard is the Jail Administrator. (Id. at 132.) Defendant R.L. Conway is the Sheriff of Gwinnett County.
Plaintiff is an observant Orthodox Jew and has been all his life. (Id. at 39-40.) He reads English, Hebrew, and some Aramaic. (Id. at 39.) Plaintiff and Douglas Stein, a newly ordained Rabbi, testified at the hearing about the religious practices of Orthodox Jews. The practices at issue in this case involve the study of various religious books and recitation of prayers in these texts.
According to Rabbi Stein, Plaintiff needs nine prayer books to observe his faith. (Id. at 22-23.) They consist of a daily Siddur,
Plaintiff initially testified that his faith requires him to read "approximately twelve to fifteen different texts ... on a daily basis." (Id. at 45.) He later testified that "in one day's time, I will use approximately ten books, because you are reading only a certain portion out of each book." (Id. at 82-83.) The books Plaintiff identified also were identified by Rabbi Stein. Plaintiff also testified that his faith requires him to read only portions of the prayer books each day. (Id. at 40-41, 82-83.) "You cycle through different portions" and often "are only reading a small portion" at any given time. (Id. at 41.)
Plaintiff studies the books and prays at dawn, midday, sunset, and at midnight. (Id. at 48-49.) Jail officials have installed a clock in front of Plaintiff's cell for his use in determining when to engage in his faith practices. (Id. at 49.) Jail officials also altered their lights off policy for Plaintiff. The general policy is that lights are turned off at the Jail at midnight. (Id. at 66, 109.) Jail officials leave them on at Plaintiff's cell until 12:30 a.m. to allow him time for his midnight readings and prayer. (Id.) Jail officials made that accommodation at the request of Plaintiff's rabbi. (Id. at 136-37 & Defs.' Ex. 6; see infra.)
Jail policy prohibits inmates from: (1) having hardback books in their cell; (2) having more than four soft-cover books in their cell; and (3) receiving, from a source outside of the Jail, any package weighing more than four pounds. (Tr. at 96-97, 111.) Hardback books are prohibited in cells because it is easier to conceal contraband in hard covers, it is more time-consuming for Jail officials to search hard covers when they arrive at the Jail, and because hardback books can be used as weapons by inmates. (Id. at 132-33.)
The number of soft-cover books allowed in a cell also is limited, including because several soft-cover books placed in a pillow case allows the pillow case to be used as a weapon. (Pinkard Decl. [13-1] at 1-3.) Limiting soft-cover books in a cell also reduces fire risk, avoids clutter that can impede Jail officials or medical personnel from performing necessary tasks in cells, and otherwise facilitates order in cells. (Id.)
The four-pound limit on incoming packages is necessary to handle, process and search the large volume of mail the Jail receives. (Id.; Tr. at 133.) All incoming items are required to be searched for contraband to ensure the safety and security of all persons at the Jail. (Id.) Jail officials do not consider the content of any particular book in applying the four-pound restriction. (Tr. at 112, 117.)
Plaintiff also is allowed to keep five plastic storage bins in his cell.
Jail officials liberally allow Plaintiff to photocopy books or other materials in the law library and to store those copies in the bins in his cell. (Id. at 104-08.) Plaintiff has requested and received copies of court opinions and other legal materials, but has not requested copies of pages from books for use in his cell.
Jail officials made many of the accommodations described above at the request of rabbis who have written to the Jail on Plaintiff's behalf. Jail officials frequently communicate in writing and by phone with those serving as rabbis to determine what Plaintiff needs to practice his religion, and the Jail largely has provided to Plaintiff what the rabbis requested. (Id. at 100-02, 135-37 & Defs.' Ex. 6.) For example, once Lt. Watkins spoke with a rabbi by phone about hardback religious books Plaintiff wanted to receive from a publisher. (Id. at 100-02.) Watkins told the rabbi that the books could be received if the hard covers were removed. (Id.) The rabbi communicated with the publisher, who removed the hard covers before shipping the books to Plaintiff at the Jail. (Id.) Jail officials took the books to Plaintiff. (Id. at 102.) The publisher's removal of the cover apparently allowed some of the outer pages to become loose. (Id. at 102-03.) Jail personnel offered tape to Plaintiff so he could attach these loose pages to the text. (Id.) Plaintiff refused the books, assuming that the hard covers had been removed by Jail officials in disrespect for the books.
On an occasion in the past Jail officials rejected shipments to Plaintiff of legal books from Columbia University and Prison Legal News because the packages each exceeded the Jail's four pound mail policy. (Id. at 49-50, 75-78, 125-27, 130 & Defs.' Ex. 10.) A book called the Jailhouse Lawyer's Manual, which apparently is a hardback volume, was shipped to Plaintiff and is kept in the law library for his use. (Tr. at 77 & Defs.' Ex. 8.)
Plaintiff has several medical conditions and receives disability benefits from the Social Security Administration. (Tr. at 51-52.) Plaintiff attributes his conditions primarily to two events. In 2000, Plaintiff broke his neck and has had five surgeries to address the injury.
Plaintiff testified that he "probably write[s] a hundred times as much as [he] type[s]," and he uses a typewriter in the Jail's law library on weekdays. (Id. at 56.)
The library sign-in sheets completed by Plaintiff corroborate Plaintiff's considerable access, showing that he visited the library seventy-nine (79) times over four and a half months, with most of the visits lasting more than one hour. (Tr. Defs.' Ex. 3.) The Jail's documentation of Plaintiff's activities during his library visits shows he has significant access to the typewriter, and assistance by library staff to make photocopies for him or to make other information available. (Tr. Defs.' Ex. 4.)
A party seeking preliminary injunctive relief must produce evidence demonstrating: (1) a substantial likelihood of success on the merits of his claims; (2) that plaintiff will suffer irreparable injury unless an injunction is issued; (3) that the threatened injury to plaintiff outweighs any harm the proposed injunction might cause the non-moving party; and (4) that the requested injunction would not be adverse to the public interest. Odebrecht Constr., Inc. v. Sec'y, Fla. Dep't of Transp., 715 F.3d 1268, 1273-74 (11th Cir. 2013). "In this Circuit, [a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to each of the four prerequisites." Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000) (en banc).
The movant cannot rest on allegations in his pleadings, but must present competent evidence establishing all four prerequisites. See id. If the movant fails to establish one or more of the four prerequisites, the Court is not required to address the others. Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994). The first requirement, that the movant demonstrate a substantial likelihood of success on the merits, "is generally considered the most important of the four." White v. Alcon Film Fund, LLC, 955 F.Supp.2d 1381, 1383, No. 1:13-cv-1163-TCB, 2013 WL 3821571, at *1 (N.D.Ga. July 24, 2013); see Odebrecht, 715 F.3d at 1274 ("Here, as in so many cases, the first question is critical."); Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986) ("Ordinarily the first factor is the most important.").
The standard for a permanent injunction is essentially the same as the standard for a preliminary injunction, except that the movant must show actual success on the merits of his claim. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir.2004). That is, the movant must "establish the fact of the [constitutional or statutory] violation." Newman v. Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982). "He must then demonstrate the presence of two elements: continuing irreparable injury if the injunction does not issue, and the lack of an adequate remedy at law." Id.; see also Alabama v. U.S. Army Corps of Eng'rs, 424 F.3d 1117, 1127-28 (11th Cir.2005) (listing those three requirements for obtaining a permanent injunction).
Plaintiff contends that denial of certain religious prayer books he claims he needs to practice his faith violates RLUIPA and his right under the First Amendment to the Constitution to freely exercise his religion. Both claims fail.
"RLUIPA targets only two areas: land-use regulation and institutions that receive federal funds." Knight v.
Plaintiff did not present any evidence at the hearing, and there is no evidence otherwise in the record, to show that the Jail receives federal funding in connection with the activities he challenges in this case. In fact, Plaintiff did not present any evidence that the Jail receives any federal funding. There is no evidence to support even an inference that the Jail receives federal funding in connection with the challenged activities.
Defendants argue in their motion for summary judgment, and in their motion to dismiss Plaintiff's RLUIPA claim, that Plaintiff did not allege in his complaint or amended complaint that the Jail receives federal funds. (Br. [13-6] at 10.) Plaintiff's only response to this argument is a general, factually unsupported statement that two pages of the Jail's inmate handbook acknowledge that the Jail "processes and maintains custody of illegal aliens" with "all duties and responsibilities ... performed by ICE trained deputies." (Reply [21] at 2-3 (mentioning, but not providing, two pages of the inmate handbook).) He presupposes that the Jail "therefore receive[s] financial assistance from the United States Government." (Id.) Plaintiff's conclusory argument, made two months before the August 13th Hearing, was not before, at, or after the hearing supported by any factual support. Plaintiff even has failed to produce the pages from the inmate handbook that he suggests supports his federal funding inference, and he otherwise has failed to produce any evidence that the Jail receives federal funding.
It was Plaintiff's burden, including at the hearing, to present evidence necessary to establish his claims. His failure to present any evidence that the Jail receives federal funds precludes relief under RLUIPA. See McCree, 2007 WL 1810143, at *2; Schneider v. Ferguson, No. CV 305-158, 2007 WL 1521610, at *13 (S.D.Ga. May 23, 2007) (granting summary judgment to defendants on RLUIPA claim because "there is no evidence in the record that [the prison] received `Federal financial assistance' for the programs and activities in question").
Generally speaking, a plaintiff prevails on a First Amendment Free Exercise Clause claim by showing "that the government has impermissibly burdened one of his sincerely held religious beliefs." Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1294 (11th Cir.2007) (quotation marks omitted). When the plaintiff is a prison or jail inmate, the claim is evaluated under the standard stated in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Hathcock v. Cohen, 287 Fed.Appx. 793, 799 (11th Cir.2008) ("[I]nmates retain the right to free exercise of religion subject to prison regulation consistent with the Turner reasonableness standard.").
Turner establishes that a regulation impinging on an inmate's constitutional rights is permissible "if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89, 107 S.Ct. 2254. The following factors "are relevant in determining the reasonableness of the regulation at issue": (1) whether there is a valid, rational connection between the regulation and the legitimate governmental interest that justifies it; (2) whether alternative means of exercising the constitutional right remain open to the inmate; (3) the impact accommodation of the asserted constitutional right will have on guards, other inmates, and the allocation of prison resources generally; and (4) "the absence of ready alternatives is evidence of the reasonableness of a prison regulation," while "the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns." Id. at 89-90, 107 S.Ct. 2254 (quotation marks omitted). The governmental interest analyzed in the first factor must be neutral, which in the First Amendment context means that the court must review whether the challenged regulation "operated in a neutral fashion, without regard to the content of the expression." Id. at 90, 107 S.Ct. 2254.
Applying the first Turner factor, the evidence demonstrates that the Jail's policies limiting the number of religious books Plaintiff can keep in his cell, but providing him access to others that are not; limiting religious texts to those that do not have hard covers; and limiting package mail to four pounds are all based on legitimate penological interests. In a facility that houses 2,200 inmates, a uniformly applied books-in-cell limitation is reasonable, especially where the access to other books is made by exchanging out titles and by allowing the copying of parts — or conceivably, all — of a text. Rabbi Stein, Plaintiff's expert at the August 13th Hearing, identified sixteen books that an Orthodox Jew would, at various times, choose to use in practicing his faith. He identified only nine required prayer books. Plaintiff argues he needs all sixteen books (and some unidentified additional titles), at all times, to be available in his cell.
Jail policy also prohibits hardback books in cells for legitimate penological reasons. The evidence at the hearing was that hardcover books pose safety and security risks because hard covers can be used to conceal contraband and because of their potential use as weapons. See Bell v. Wolfish, 441 U.S. 520, 550-51, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ("It hardly needs to be emphasized that hardback books are especially serviceable for smuggling contraband into an institution.... They also are difficult to search effectively.").
In sufficient quantities, soft-cover books also may be used as weapons, and they present fire and obstacle hazards. It is for these reasons that the Jail limits, to four, the number of soft-cover books allowed per person in a cell. The Jail receives a large volume of mail and other items each day, all of which must be searched for contraband and threats their contents may pose to the safety and security of inmates and Jail officials. The policy prohibiting any single package from weighing more than four pounds is rationally related to the excessive volume of mail received each day at the Jail, and it is reasonably related to legitimate safety and security interests that are addressed by enabling the Jail, considering the Jail's personnel and other resources, to search all incoming items.
The number of books allowed in a cell, the hardcover book, and the package weight limitations in place at the Jail are all rationally connected to the Jail's legitimate penological interests.
The evidence further demonstrates that these policies were enacted and are applied in a neutral way. In applying these policies, the Jail considers only the weight of incoming packages, the type of cover on a book (hard or soft), and the number of soft-cover books in a cell. The expressive content of books is not considered. Cf. Tariq v. Chatman, No. 1:11-CV-159 (WLS), 2012 WL 3637729, at *2-3 (M.D.Ga. Aug. 22, 2012) (holding inmate stated a viable claim regarding rejection of Noble Qu'ran because rejection was based on the content of the book and not any formal policy). The policies are neutrally applied to all books, regardless of content.
Applying the second Turner factor, the evidence demonstrates that ample alternative means are available to Plaintiff to access the religious books necessary to practice his religion. Jail officials will store in the library soft and hard-cover books that Plaintiff receives in excess of
Plaintiff also may photocopy portions of religious books, including prayers from books maintained in the library, and these copies may be taken to and maintained by Plaintiff in his cell. These copies are allowed in addition to the eight soft-cover books Plaintiff may keep in his cell. (See Tr. at 87-88 (Plaintiff testifying that he is allowed to make copies of his hardback Hebrew Tanakh that is kept for him in the library and to take these copies to his cell).) Rabbi Stein testified that use of copies is acceptable for Plaintiff to practice his religion.
The Court notes further that the lights in Plaintiff's cell are left on thirty minutes longer than for others housed at the Jail and that this accommodation was made to Plaintiff because his rabbi told the Jail that additional lighting was necessary for Plaintiff to read his religious books at midnight. Thus, Plaintiff has reading light each day from approximately 5:00 a.m. to 12:30 a.m. (all but four and a half hours of the day). Light is available at all of the times Plaintiff testified that he recites his prayers.
In short, Jail officials have enacted reasonable, sensible, and constitutionally sound policies governing access to, possession of, and ability to read books by those confined at the Jail. To these policies the Jail has granted various reasonable — if not generous — exceptions to Plaintiff to accommodate his and his rabbis' specific requests enabling Plaintiff to fully practice his faith. See Turner, 482 U.S. at 90, 107 S.Ct. 2254 ("Where other avenues remain available for the exercise of the asserted right, courts should be particularly conscious of the measure of judicial deference owed to corrections officials ... in gauging the validity of the regulation."); Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102-04 (6th Cir.1991) (applying Turner in holding that policy prohibiting inmate from having hardback Bible was reasonable, with the "determinative factor" being that inmate could have a soft-cover Bible); Jackson v. Elrod, 881 F.2d 441, 444-45 (7th Cir.1989) (inmate's rights were violated where he was prohibited from having hardback and soft-cover books, was not allowed to access the library, and "had no alternate source for the information").
The fourth and final Turner factor is whether Jail officials have ready alternatives to the challenged book policies. "This is not a `least restrictive alternative' test: [jail] officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Id. at 90-91, 107 S.Ct. 2254. There simply is no evidence in this case of "obvious, easy alternatives" to the challenged policies that "fully accommodate[ Plaintiff's] rights at de minimis cost to valid penological interests" that were not afforded to Plaintiff. See id. The Jail already has incurred an increased burden to make sound, generous policy exceptions to Plaintiff. Jail officials have relaxed the soft-cover book policy as an accommodation to Plaintiff and provided him with alternative means of accessing religious books.
Reviewing the evidence presented here, the Court concludes that the few challenged policies limiting Plaintiff's receipt and possession of religious books in his cell are reasonably related to the Jail's legitimate penological interests and they do not violate Plaintiff's right under the First Amendment to exercise his religion. A jail inmate only "retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). "This is because certain privileges and rights must necessarily be limited in the prison context." Johnson v. California, 543 U.S. 499, 510, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). Plaintiff here objects to the policies in place because they require structure and inconvenience he prefers not to endure. But the policies in place, including the exceptions extended to Plaintiff, are practically and constitutionally reasonable. Because Plaintiff is confined on pending criminal charges some curtailment of his usual freedoms is necessary and allowed. See id. Plaintiff has not met his burden of showing that he is entitled to injunctive relief on his First Amendment claim.
Plaintiff' claim he is entitled to additional legal books is grounded solely on the Fourteenth Amendment's Due Process Clause. (Tr. at 6-7.) At the conclusion of the hearing, Plaintiff's counsel reiterated, as he argued in his brief in support of his motion for injunctive relief, that Bell v. Wolfish controls the claim. (Id. at 146.)
The Supreme Court held in Bell that the Due Process Clause prohibits the punishment of a pretrial detainee. The Court
Id. at 1873-75 (citations and quotation marks omitted). The Supreme Court later refined these principles into the four-factor standard, adopted in Turner, to test jail regulations that impinge on an inmate's constitutional rights, holding that a regulation is valid if it is reasonably related to legitimate penological interests.
There is no evidence that Defendants have applied or are applying the number and type of legal books allowed in a cell policy to punish Plaintiff. Plaintiff has not produced any evidence, direct or circumstantial, even to suggest the policies constitute punishment in violation of the Due Process Clause. The evidence actually is that the policies are reasonably related to legitimate penological interests and that the Jail has given Plaintiff substantial access to legal materials by enlarging the time he is allowed in the library and liberally allowing him to copy legal materials to keep in his cell.
First, there is no authority to support Plaintiff's claim that a limit on the number of soft-cover books allowed in a detained person's cell is unlawful. Plaintiff misplaces his reliance on Bell v. Wolfish to support his argument that an institution cannot place a reasonable limitation on the number of soft bound books in a cell. (Br. [2-1] at 5-6; Br. [21] at 13.) The Supreme Court in Bell did not express any view on the restrictions that may be applied to the possession of magazines or soft-cover books by inmates. Bell, 441 U.S. at 550 n. 31, 99 S.Ct. 1861. There is not any authority even suggesting that an inmate can possess in his cell as many soft-cover books as his cell size would allow. The law rather is that limits on books in cells can be set if they are reasonably related to legitimate penological interests. Turner, 482 U.S. at 89-90, 107 S.Ct. 2254. The Court finds that the Jail's limits on soft-cover books in cells satisfies that test.
The evidence in this case actually is that Plaintiff has significantly enlarged access to soft-cover books in his cell (eight rather
Second, Plaintiff is allowed to visit the Jail's law library every weekday for, at least, an hour. The evidence demonstrates that Plaintiff uses the library regularly and often for more than an hour each time he visits. (Tr. Defs.' Ex. 3.) Library staff assist Plaintiff to make photocopies of books and materials, including court opinions. (Tr. Defs.' Ex. 4.) Plaintiff testified that he makes over one hundred copies a week, and Lt. Watkins testified that on one occasion two hundred pages of legal materials were copied for him to take to his cell. (Tr. at 70, 98-99.)
Finally, Plaintiff receives copies of legal materials, such as court opinions, sent to him by his lawyers. (Id. at 72.) In fact, he has never been denied by the Jail to receive copies of court opinions or other legal materials sent to or given to him by his counsel. (Id.)
Plaintiff has not shown that the Jail's policy limiting the number of legal books he can have in his cell constitutes a punishment that violates the Due Process Clause, and Plaintiff has not shown that the policy regarding the number of books allowed in his cell is not reasonably related to legitimate penological interests. Plaintiff is not entitled to injunctive relief on his claim he is unconstitutionally denied access to legal books.
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. A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services,
"[T]o state a Title II claim, a plaintiff generally must prove (1) that he is a qualified individual with a disability; (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." Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir.2007). Failure to provide a reasonable accommodation — or "reasonable modification" as the statute puts it — to services, programs, or activities for a disabled inmate may constitute discrimination in violation of Title II. See McGary v. City of Portland, 386 F.3d 1259, 1266 n. 3 (9th Cir.2004) ("Although Title II of the ADA uses the term `reasonable modification,' rather than `reasonable accommodation,' these terms create identical standards."); Wolfe v. Fla. Dep't of Corr., No. 5:10-CV-663-Oc-PRL, 2012 WL 4052334, at *4 (M.D.Fla. Sept. 14, 2012) ("Under the ADA, a plaintiff may establish discrimination by showing that the public entity refused to provide a reasonable accommodation for a disabled person."); but see Bircoll, 480 F.3d at 1082 n. 13 (noting that Title II, unlike Titles I and III, does not expressly provide that failure to make reasonable modifications constitutes discrimination, but assuming without deciding that such a claim is available under Title II's regulations).
Plaintiff has shown by a preponderance of the evidence that he is a qualified individual with a disability, as that term is defined under Title II. He has not shown that Defendants have discriminated against him because of his disability and he has not shown that provision of a typewriter for use in his cell is a reasonable accommodation.
Plaintiff did not present any evidence at the hearing of intentional discrimination on the basis of his disabilities. There is no evidence that Defendants took an action or failed to take an action because of Plaintiff's disabilities or that any policy at the Jail is applied to Plaintiff to discriminate against him on the basis of his disability. Plaintiff does not specifically identify the "benefit[] of the [Jail's] services, programs, or activities" from which he is being excluded, see 42 U.S.C. § 12132, but his pleadings and arguments indicate that he contends he is being denied the benefit of written communication with his lawyers
The reasonable accommodation inquiry under Title II "is a highly fact-specific inquiry." Bircoll, 480 F.3d at 1085 (quotation marks omitted). Title II's implementing regulations provide that "[a]
Plaintiff has not shown by a preponderance of the evidence that possession of a typewriter in his cell is a reasonable accommodation for his claimed handwriting disability. The evidence shows that Plaintiff is able to write by hand although he states he experiences pain when doing so. The evidence also shows that, if Plaintiff chooses to avoid writing by hand, Plaintiff may use his substantial access to a typewriter in the Jail's law library.
Plaintiff did not present any evidence of permanent harm from the handwriting he performs. He also did not present any evidence of any communication to his lawyers or Jail officials that he was unable to make because he could not prepare it with a typewriter. The evidence shows further that Plaintiff communicates with his lawyers and Jail officials in person at the Jail, and in the case of his lawyers, by telephone. Plaintiff did not present evidence of any limitation on the number or length of his oral communications. Although Plaintiff claimed that the telephone system at the Jail is poor and that it is difficult to hear the other party on the call, he did not identify any information he has been unable to convey to his lawyers or others and did not show a particular communication that was unsuccessful.
Finally, the evidence shows that Plaintiff has significant access to the typewriter in the Jail's law library. Other inmates generally are allowed to visit the library only once every two weeks and then for only an hour and a half. Plaintiff is allowed to visit the library every weekday for at least an hour. The library sign-in sheet shows that Plaintiff signed into the library seventy-nine times in a four and a half month period, with most of the visits lasting more than one hour. (Tr. Defs.' Ex. 3.) Documentation of Plaintiff's activities during his library visits shows significant access to the typewriter and assistance by library staff when Plaintiff requested photocopies or other information or materials. (Tr. Defs.' Ex. 4.) The evidence is consistent with Lt. Watkins' testimony that Plaintiff is given as much time as he needs in the library on weekdays unless there is a scheduling conflict. This testimony is credible and from it, and the other evidence presented, the Court necessarily concludes that Plaintiff has significant access to the typewriter in the library. On the record here, and considering the other means available to Plaintiff to communicate with his lawyers and Jail officials, the Court finds that Plaintiff has not shown that denial of a typewriter in his cell violates
The Court further finds that the accommodation of an in-cell typewriter would fundamentally alter the nature of the Jail's core detention function and impose an undue burden. It is undisputed that typewriters have several parts, including metal and moving parts, that can be used as weapons in a jail setting. The Jail has legitimate, compelling interests in protecting the safety and security of its inmates and staff, and to do so has a legitimate penological reason to deny cell access to devices — in this case a typewriter — that can be, in whole or in their parts, used as a weapon. It would be an undue burden on Jail officials to have to supervise Plaintiff's use or misuse of a typewriter in his cell.
The Eleventh Circuit has observed that "[i]t is entirely possible that in the prison setting ... the type of accommodation that will be enough to satisfy the [ADA's] reasonableness requirement must be judged in light of the overall institutional requirements. Security concerns, safety concerns, and administrative exigencies would all be important considerations to take into account." Love v. Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir.1996) (citing Turner, 482 U.S. 78, 107 S.Ct. 2254). Credible evidence of such concerns at the Jail was presented in this case. Having considered these concerns, the Court concludes that allowing Plaintiff to possess a typewriter in his cell, even if it qualified as a reasonable accommodation under Title II, would present a safety and security concern and impose an undue burden on Jail personnel. The Jail has significant penological justification not to provide the accommodation Plaintiff requests.
The Court further concludes that Defendants are not violating Title II of the ADA by not giving Plaintiff additional access to the typewriter because Plaintiff has considerable access to a typewriter at the Jail's law library. Plaintiff has substantial access to the typewriter for almost as long as he likes for five days each week and there is no evidence Plaintiff does not or will not be able adequately to communicate with his lawyers, Jail personnel or others without a typewriter in his cell. Plaintiff is not entitled to the injunctive relief he seeks under the ADA.
Plaintiff seeks in his motion to file a second amended complaint to add another claim under Title II of the ADA. (Proposed Amend. [12-1].) That claim is based on events that occurred on April 26, 2013, when Plaintiff attended the bond hearing in his criminal case in the Superior Court of Gwinnett County. (Id.) Plaintiff alleges that he did not have hearing aids, his prescription eyeglasses, or adequate batteries for his portable oxygen unit at that hearing. Plaintiff further alleges that the state courtroom does not have an ADA-compliant sound system for the hearing impaired and that the judge who presided over the bond hearing made no efforts to accommodate him. (Id.) As a result, Plaintiff contends he was unable to clearly see and hear witnesses and had difficulty breathing. (Id.)
Plaintiff's proposed new ADA claim does not concern Jail policies or conditions at the Jail, unlike the claims in his original and first amended complaint that now have been finally adjudicated. The alleged failure to accommodate certain disabilities so Plaintiff can participate at hearings in the state criminal case is unrelated to the ADA
The Court concludes that Defendants are not violating Plaintiff's rights to practice his religion. Defendants have not violated RLUIPA, including because there is no evidence that the Jail receives federal funding in connection with the book policies at issue here. There also is no basis to conclude that Defendants violated Plaintiff's First Amendment rights because the evidence demonstrates that the Jail's book policies are reasonably related to legitimate penological interests.
The Jail's policy regarding access to the legal books, including maintenance of them in Plaintiff's cell, does not constitute punishment of Plaintiff in violation of his due process rights under the Fourteenth Amendment.
The Court concludes further that providing Plaintiff a typewriter in his cell is not a reasonable accommodation under Title II of the ADA. Plaintiff is able to write by hand extensively, and, importantly, Plaintiff is given substantial access to a typewriter in the Jail's law library, and he has other means of communication. Providing Plaintiff with a typewriter in his cell would fundamentally alter the nature of the Jail's core detention function and impose an undue burden.
Accordingly, and for the foregoing reasons,
This matter is before the Court on Edward Eliot Kramer's ("Plaintiff) Motion for Reconsideration to Alter or Amend Judgment [43], Plaintiff's Motion to Seal Exhibits X and O to his motion for reconsideration
Plaintiff has been a pre-trial detainee at the Gwinnett County Jail (the "Jail") since January 2013. On April 15, 2013, Plaintiff through his retained counsel, filed his verified complaint in this action. (Compl.[1].)
On April 17, 2013, Plaintiff filed his Motion for a Preliminary and Permanent Injunction (the "Injunction Motion"). (Mot. [2].) Plaintiff sought to prevent Defendants from continuing to violate his claimed rights under federal law. He also sought an order allowing Plaintiff to possess, in his cell, certain religious and legal materials and he requested greater access to a typewriter, including in his cell. (Id. at 6-7.)
On August 13, 2013, the Court conducted a hearing on the Injunction Motion. The parties agreed that the hearing would be on Plaintiff's request for preliminary injunctive relief and that the hearing also would constitute a trial on the merits regarding his request for permanent injunctive relief Four witnesses, including Plaintiff, testified at the hearing, and various exhibits were introduced and admitted by the Court. (Tr. [38] at 2.) Plaintiff was represented at the hearing by his retained counsel and he participated in the hearing by telephone. Plaintiff participated in the hearing by telephone pursuant to the Court's August 9, 2013, Order denying Plaintiff's motion that he be physically produced at the hearing (the "August 9th Order"). (August 9th Order [28].) For the reasons set forth in the August 9th Order, the Court found that Plaintiff's physical appearance at the hearing was not required or appropriate in light of Plaintiff's asserted serious medical conditions, his risk to others, the cost required to transport and safeguard him, and his statement that participation by telephone was an acceptable alternative to attendance. (Id. at 2-3.)
On August 23, 2013, the Court denied Plaintiff's Injunction Motion and directed that judgment be entered for Defendants on Plaintiff's claims. (Order [35] (the "Final Order").) Judgment was entered on August 23, 2013 (the "Judgment"). (J. [36].)
After the Judgment was entered. Plaintiff's counsel moved to withdraw from his representation of Plaintiff (Mot.[37].) The Court granted the motion to withdraw. (Order [45].) On September 3, 2013, Plaintiff, now proceeding pro se, filed his notice of appeal. (Notice [40].)
On September 12, 2013, Plaintiff filed his Motion for Reconsideration to Alter or Amend Judgment in which he challenges the Final Order and Judgment (the "Reconsideration Motion"). (Mot.[43].) Plaintiff moves for relief under Federal Rule of Civil Procedure 59(e). Plaintiff contends, in his Reconsideration Motion, that the Court committed "a significant number of errors in material facts" in its Final Order. (Mot. [43] at 5.) Plaintiff also challenges the Court's ruling preventing him from physically appearing at the hearing and the Court's denial of his motion to file a second amended complaint. (Id. at 5-6, 9-11, 20, 59-72.) Finally, he complains about his retained counsel's representation of him in this matter. (Id.) The Reconsideration Motion contains, among other things, "A History of Judicial Disability Discrimination," including a discussion of the administration of disability claims under the Americans with Disabilities Act ("ADA"); a section on "The Jewish Faith"; and complaints regarding the processing of Plaintiff's state criminal case, including criticism of the Gwinnett County District Attorney's processing of this matter.
On September 17 and 25, 2013, Plaintiff filed new motions demanding that Jail officials be ordered to allow Plaintiff more time in the law library and to allow him to make "sufficient" copies of legal documents. (Mot. [47]; Mot. [53] (the "Additional Motions").) Defendants oppose the Reconsideration Motion and the Additional Motions.
"The Court does not reconsider its orders as a matter of routine practice." Belmont Holdings Corp. v. SunTrust Banks, Inc., 896 F.Supp.2d 1210, 1223 (N.D.Ga. 2012); see LR 7.2E, NDGa. Motions for reconsideration are left to the sound discretion of the district court and are to be decided "as justice requires." Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir.1993); Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C.2005) ("asking `what justice requires' amounts to determining, within the Court's discretion, whether reconsideration is necessary under the relevant circumstances"); United States ex rel. Corsello v. Lincare, Inc., No. 1:98-CV-0204-ODE, 2003 WL 25714876, at *6 (N.D.Ga. June 2, 2003).
Motions for reconsideration are generally appropriate only where there is: (1) newly discovered evidence that could not have been discovered earlier with diligence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact. See Jersawitz v. People TV, 71 F.Supp.2d 1330, 1344 (N.D.Ga.1999); Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 916 F.Supp. 1557, 1560 (N.D.Ga.1995), aff'd, 87 F.3d 1242 (11th Cir.1996). A motion for reconsideration should not be used to present the Court with arguments already heard and dismissed, or to offer new legal theories or evidence that could have been presented earlier. Bryan v. Murphy, 246 F.Supp.2d 1256, 1259 (N.D.Ga.2003); see also Pres. Endangered Areas, 916 F.Supp. at 1560 ("A motion for reconsideration is not an opportunity for the moving party and their counsel to instruct the court on how the court `could have done it better' the first time.").
After the Final Order was entered, there was not any change in controlling law or the discovery of evidence not previously available to Plaintiff that affects the Court's analysis, or decision reached, in the Final Order. Plaintiff also cannot show any clear error of law or fact in the Final Order entered by the Court. Plaintiff generally rehashes arguments he raised previously, and the Court denies the Reconsideration Motion with respect to the issues addressed and decided in the Final Order.
Alleged inadequate representation by Plaintiff's former counsel is not a basis to alter or amend the Judgment. See id. ("[T]he attorneys' conduct is not a ground for reversing the judgment...."); Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980) (alleged ineffective assistance of appointed counsel in a civil case is not a basis for new trial); Fitzgerald v. Busby, No. 3:09CV00065-SWW, 2011 WL 219818, at *1 (E.D.Ark. Jan. 24, 2011) (denying pro se plaintiff's motion for reconsideration of judgment entered in Section 1983 case in which plaintiff argued that his lawyer was inadequate and failed to call witnesses at the evidentiary hearing in the case).
Plaintiff next complains about the Court's ruling denying his request to personally appear at the August 13, 2013, hearing. The Court notes that although Plaintiff included a general hearing request in one addendum section of his complaint filed on April 15, 2013, and at the conclusion of the Injunction Motion filed on April 17, 2013, he did not request a temporary restraining order and did not otherwise request the Court to set a hearing. Plaintiff also did not ask for expedited discovery or other accelerated processing of the case. On August 7, 2013, during a conference call with the Magistrate Judge assigned to this case to discuss the possibility of narrowing the issues in the litigation, the parties could not agree on any narrowing of the issues and because additional discovery was not needed, counsel for Plaintiff asked that a hearing on Plaintiff's Injunction Motion be scheduled as soon as possible. A hearing was scheduled for August 9, 2013, at 10:00 a.m.
Later on August 7, 2013, Plaintiff filed his Motion to Reschedule Hearing and Motion for Production of Plaintiff (Mot. [24].) The hearing was requested to be rescheduled to accommodate Plaintiff's counsel's out-of-town travel. (Id.) Plaintiff requested the hearing be set during the week of August 12, 2013. (Id.) Plaintiff also requested the Court to order that Plaintiff be produced for the hearing so
The Court, for the reasons set out in the August 9th Order, denied Plaintiff's request for production, but arranged for Plaintiff to participate in, and testify at, the hearing by telephone. (August 9th Order [28].) The decision not to require that arrangements be made for Plaintiff to attend the hearing does not provide a basis upon which to after or amend the Judgment. Plaintiff was not prejudiced by appearing and testifying by phone, and the decision to allow his appearance by phone was discussed in detail in the August 9th Order. Plaintiff did not suffer any prejudice in the manner in which he was allowed to participate, and the Court notes that Plaintiff, during the course of his extended testimony, did not assert that his testimony was impeded by his telephone appearance and on at least two occasions Plaintiff expressed his gratitude for the hearing and his personal participation in it. (Tr. [38] at 3, 148.) Plaintiff's counsel was present at the hearing and actively represented Plaintiff at it.
Plaintiff next contends that the Court misconstrued Plaintiff's ADA claim as one seeking a typewriter in his cell, when he only wanted greater access to a typewriter at the Jail generally. (Mot. [43] at 11-12.) This revisionist claim is inconsistent with Plaintiff's agreement at the start of the August 13, 2013, hearing. At the beginning of the August 13, 2013, hearing the Court stated its understanding of Plaintiff's claim regarding access to a typewriter. The Court stated that Plaintiff claimed that "he was denied a typewriter for his use in his cell" and "[h]is claim for denial of the typewriter for use in his cell appears to be based upon a violation of the [ADA]." (Tr. [38] at 4-5.) Plaintiff's counsel agreed: "[t]hat's correct, Your Honor." (Id. at 5.) Plaintiff did not suggest that access to a typewriter other than in Plaintiff's cell was an issue in the case. (Id. at 5.) Plaintiff also testified:
(Id. at 54-57.) The Court did not recast Plaintiff's ADA claim. The hearing focused on the claim as Plaintiff asserted it. After concluding that a typewriter in Plaintiff's cell was not a reasonable accommodation under the ADA, the Court "further conclude[d] that Defendants are not violating Title II of the ADA by not giving Plaintiff additional access to the typewriter because Plaintiff has considerable access to a typewriter at the Jail's law library." (Final Order at 1353.)
Plaintiff asserts a final strained argument to support his reconsideration request by argumentatively and conclusorily asserting: "[i]t is disingenuous of this Honorable Court to attempt to use an Orthodox Rabbi brought before it to expound on the depth and expanse of studies and prayer in the Jewish faith as a means to discredit another observant Jew." (Mot. [43] at 25.) The Orthodox Rabbi to which Plaintiff refers, Rabbi Douglas Stein, was called by Plaintiff as his expert on Judaism for the Court's consideration of which materials should be available to a person practicing Judaism. The Court accurately
The Court finds that Plaintiff did not show any clear error in the Court's August 23, 2013, adjudication of the merits of Plaintiff's claims. Plaintiff's arguments in his Reconsideration Motion are self-serving, lack any factual foundation and demonstrate Plaintiff's ongoing strategy of challenging decisions that do not favor him.
The Court does not find any merit in the Reconsideration Motion or any error in the Final Order, and reconsideration is denied. For the reasons stated in the Final Order, the Court further denies Plaintiff's requests for an order directing Jail officials to provide Plaintiff greater access to the library and photocopying.
Accordingly, and for the foregoing reasons,
