WILLIAM M. NICKERSON, District Judge.
On March 10, 2016, this Court issued a Memorandum and Order in the above-captioned civil rights case directing Defendants to respond to the claim that Plaintiff was denied access to certain programs in violation of the Rehabilitation Act and the Americans with Disabilities Act (ADA). ECF 28 and 29. Defendants filed the required Supplemental Motion for Summary Judgment
In its prior decision, this Court observed that:
ECF 28 at pp. 19-22. The remaining claims raised by Plaintiff were dismissed on summary judgment.
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court should "view the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
In the Supplemental Motion for Summary Judgment Defendants provide a declaration under oath stating that the ATP program is not federally funded, nor is it run by an outside contractor. ECF 33 at Ex. 5. No other evidence is provided with regard to funding sources for the ATP. Defendants maintain that the Rehabilitation Act does not apply to the ATP because of the lack of federal funding.
Plaintiff asserts in opposition that "any program or service that is part of the Division of Correction (DOC) or DPSCS receives federal financial assistance as a `public entity' defined under 42 U.S.C.A. §§ 12132; 12131(1)(B); 29 U.S.C.A. § 794(b)(1)(A)." ECF 34 at p. 3. As such, Plaintiff argues that the Rehabilitation Act applies to his access to programs.
The language relied upon by Plaintiff is found in the ADA, not the Rehabilitation Act. As previously noted, the two provisions differ. "Unlike the ADA, which Congress intended to apply generally to the States and private employers, § 504 of the Rehabilitation Act applies `only to those agencies or departments receiving federal funds, and § 504 applies only during the periods during which the funds are accepted.'" Nelson v. Com. Of Pennsylvania Dept. of Public Works, 244 F.Supp.2d 382, 389 (E.D. Pa. 2002) quoting Kaslow v. Com. Of Pennsylvania, 302 F.3d 161, 166 (3d Cir. 2002). Based on the affidavit provided by Defendants stating that the ATP does not receive federal assistance for its implementation or service of the program, the protections of the Act do not apply to the claim raised.
Plaintiff's claim under the ADA concerns his exclusion from programming, and the benefits inuring therefrom, based on his disability. Defendants were directed to address this claim and now state that Plaintiff was not placed in the work release program because he was not eligible for work release. ECF 33 at Ex. 1, p. 3. Defendants appear to base his ineligibility on the fact that Plaintiff was recommended for substance abuse programming. Id. at ¶ 17. They provide the guidelines for work release placement, which provides a list of prerequisites for work release participation. Those prerequisites include, "[a]n inmate who has been assessed and recommended for substance abuse programming shall have completed the requirement during the current incarceration." ECF 33 at Ex. 2, p. 3 (DCM 100.0002.I.2). That portion of the prerequisites also permits the substance abuse programming to be waived if the program is unavailable prior to the inmate's release date and allows for work release inmates to participate in the programming if available while on work release. Id.
Defendants further assert that the institutional job assignments held by Plaintiff in lieu of a work release job, earned him the same amount of diminution of confinement credits as he would have earned if he had been placed in a work release job.
A brief review of the events surrounding Plaintiff's multiple transfers clarifies the non-discriminatory motive for failing to keep Plaintiff in a pre-release facility where he could have been eventually considered for work release.
Plaintiff disputed his eligibility for the ATP vehemently. See ECF 20 at Ex. 6C, pp. 19-20, Ex. 6D, pp. 23 — 24 (Administrative Remedy filed by Plaintiff claiming he was forced to sign the eligibility form in violation of his First Amendment right to include a note detailing the basis for his objection). Before Plaintiff could begin the ATP at BCF, he requested another transfer. Although he had assured Defendant Greene that he would not have a problem negotiating the stairs at BCF (see ECF 27-1 at p. 10, ECF 20 at Ex. 11, p. 11), Plaintiff based his request for transfer to Patuxent, Hagerstown, or Southern Maryland on his physical impairment. ECF 20 at Ex. 6D, p. 34, see also ECF 27-1 at p. 13 (medical order regarding Plaintiff's physical limitations). The first available bed-space at a prison that was both ADA compliant and offered the ATP was RCI. ECF 20 at Ex. 6D, p. 30. The ATP was not available at Southern Maryland Pre-Release Unit (SMPRU), Patuxent, or any other Pre-Release Unit. Id. Thus, Plaintiff was transferred to RCI, which is located in Hagerstown, Maryland. Id. Despite the immediate accommodation provided when he complained that his housing unit was located too far away from the medical unit at RCI (see ECF 33 at Ex. 6), Plaintiff was not satisfied with being housed at the medium security prison, and was transferred to Eastern Correctional Institution — Annex (ECI-A), a pre-release facility.
To the extent that Plaintiff was unable to complete the ATP, making him eligible for work release, the delay in beginning and completing that program appears to be due in large part to his continued insistence for a transfer to a prison of his choice. Nothing in the ADA requires Defendants to accommodate the whims of a disabled inmate simply because he is disabled. Given Plaintiff's vehement objection to mandatory completion of the ATP and his repeated demands for transfer to specific prisons, it is clear that the failure to place him in a work release program was not based on a discriminatory animus. Rather, Plaintiff's failure to complete the ATP, making him eligible for work release placement, was simply due to his dissatisfaction with all efforts to accommodate his disability and the denial of his requests to be sent to a prison of his choice. Those circumstances vitiate his claim under the ADA.
Defendants Supplemental Motion for Summary Judgment shall be granted by separate Order which follows.
