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Nolan v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

October 4, 2019

EUGENE D. NOLAN, Plaintiff
v.
HAROLD CLARKE, et al., Defendants

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI, CHIEF JUDGE

         Eugene D. Nolan, an inmate in the custody of the Virginia Department of Corrections, ("VDOC"), who currently is incarcerated at Sussex II State Prison ("Sussex II"), complains that defendants Harold Clarke, Rose Durbin, Barry Marano, Keith Dawkins, Mark Amonette, Christopher Lovern, Melvin Davis, Ms. Massenburg, Nurse Mays, Correctional Officer Burke, Sergeant Tisdale, Correctional Officer Van Der Schagt, and Lieutenant Gibbs violated his rights under the Constitution, the Americans With Disabilities Act ("ADA"), and Section 504 of the Rehabilitation Act ("RA"). Proceeding pro se, Nolan filed this lawsuit seeking relief against defendants on August 20, 2018. ECF Nos. 1, 10. Defendants filed a motion to dismiss on November 26, 2018, to which Nolan responded on January 10, 2019. ECF Nos. 16, 24. The parties have fully briefed the issues. For the reasons set forth below, defendants' motion to dismiss is GRANTED and Nolan's claims are DISMISSED.

         I. Background

         A. Facts

         Nolan, who has been diagnosed with cone dystrophy in both eyes, is legally blind, color blind and very light sensitive. In March 2017, a doctor recommended that he be allowed to have television with a 24-inch or larger screen, a low-vision digital clock, specialized amber sunglasses, and a "Ruby XL 7-inch HD" magnifier. In May 2018, the magnifier and specialized sunglasses were dispensed to him. It also was recommended that Nolan be placed in the visually impaired program at the Deerfield Correctional Center ("Deerfield") so that he could receive services from the Virginia Department for the Blind and Vision Impaired. Deerfield offers specialized devices and equipment to visually impaired inmates and permits participation in programs and daily activities designed for their rehabilitation.

         Nolan has been incarcerated in VDOC since 2007 and has been transferred in and out of the Deerfield unit. He was at Deerfield from March 2011 to June 2011 when he was transferred to the segregation unit at Greensville Correctional Center ("Greensville"). He later was released to the general population at Greensville and then transferred to the Sussex II segregation unit in October 2011. In December 2011 he was transferred to the Sussex I segregation unit and then to the general population.

         In September 2012 Nolan was transferred to Wallens Ridge State Prison and placed in a pod for the hearing impaired. In July 2014 he was granted a medical transfer to Deerfield. In October 2014 Nolan was transferred back to the Greensville segregation unit following a disciplinary infraction. In December 2014 the disciplinary infraction was overturned and he was placed in an ADA pod for the hearing impaired at Greensville. In July 2015, following the filing of an administrative complaint, Nolan once again was transferred to Deerfield.

         In September 2015 Nolan was accused of a disciplinary infraction, which he denied, and was transferred first to Greensville's segregation unit and then to the River North Correctional Center in October 2015. The warden there asked Nolan if he would be able to determine the presence of attack dogs, and Nolan told him he would not. Nolan was placed in the pod for prisoners in wheelchairs. In 2016 Nolan was transferred first to Red Onion State Prison's segregation unit following disciplinary charges, and later transferred back to the Greensville pod for hearing impaired inmates, and then to the Green Rock Correctional Center ("Green Rock"), where he was the only legally blind inmate at the unit. In May 2018, Nolan was transferred to Sussex II, where he remains.

         Nolan alleges that despite the recommendation made by the doctor at the optometry clinic in 2017 that he be allowed to have a 24-inch television and a DVD player with cordless /wireless headphones, his request for such television and DVD player was disapproved by defendants, including defendant Amonette, the VDOC chief physician, as not medically required. He claims that he needs the DVD player to watch educational and religious programming.

         When he arrived at Green Rock, prison officials told him that they did not know how to accommodate him, but sent a memo to staff alerting them that Nolan is blind. Nolan claims that the memo created a hostile environment which manifested when he needed to request an accommodation. For example, Defendant Tisdale asked Nolan to step behind a yellow line while he was waiting for commissary. When Nolan explained that he could not see the line because he was blind, Tisdale asked him why he did not have a seeing eye dog, even though he knows the prison does not allow seeing eye dogs. On another occasion, defendant Burke asked Nolan to step behind a red line and when Nolan said he could not see the red line, Burke told him that he should stay in his cell if he could not see the line.

         In another incident, despite a memo having been sent to prison staff reminding them that they needed to notify Nolan via intercom in his cell when his cell door was closing, he was not warned. Defendant Van Der Schagt closed the cell door and it caught Nolan's shoulder and jammed it.

         Nolan also complains that VDOC did not make a written food menu available to him in a font large enough for him to read. When Nolan asked for a menu he was able to read, defendant Lovern, the unit manager and ADA coordinator at Green Rock, told him that a larger-print menu was not required by the ADA, but provided to him as a favor. Nolan was told to ask any staff member about what was on the menu and also told that arrangements had been made to provide him with a readable menu. Nolan asserts that when he asked officers what was on the menu they would say they did not know. It is unclear whether Nolan was ever provided with large-font menus.

         On March 29, 2018, Defendant Massenburg placed Nolan on a 90-day grievance suspension. In April 2018 Nolan filed a complaint asserting that Green Rock officials were subjecting him to cruel and unusual punishment and he asked to be transferred to Deerfield. A meeting was held on April 23, 2018 with defendant Durbin, the ADA Supervisor for VDOC, and defendant Marano, the VDOC statewide ADA coordinator. Defendant Davis, the Green Rock warden, refused to transfer Nolan, but offered to place him in the honors pod or the veterans pod, neither of which accommodate blind prisoners. Defendant Lovern suggested placing Nolan in the Shared Alliance Management System which houses inmates with "mental/wheelchair/vulnerable concerns." Nolan responded that he would like to be transferred to an appropriate facility and suggested Deerfield, Augusta Correctional Center, Nottoway Correctional Center, or Lawrenceville Correctional Center. Davis, Marano, and Durbin rejected his request to go to Augusta and Nottoway because they have stairs.

         Nolan's request for a transfer was denied and Durbin and Davis suggested Nolan be given a job as floor tech. Durbin also advised that Nolan could not be placed on grievance restriction because of his ADA status and the restriction was removed.

         On May 22, 2018 Nolan was seen by an optometrist who recommended placement at Deerfield. One week later, he was transferred to Sussex II. Nolan has brought a number of claims against the staff at Sussex II, but those claims were severed and transferred to the United States District Court for the Eastern District of Virginia on October 15, 2018. ECF No. 11.

         B. Causes of Action

         Based on these factual allegations, Nolan alleges that the following defendants violated his rights under the Eighth and Fourteenth amendments to the Constitution and also under the ADA: (1) Defendants Clarke, Durbin, Marano, and Dawkins have violated his rights by allowing Nolan to be housed in a facility where his needs as a blind person are not met and where he is in danger and is exposed to officials who insult his dignity; (2) Defendant Amonette has violated Nolan's rights by disapproving his transfer to Deerfield, and by disapproving a 24-inch television and a cordless/wireless DVD player; (3) Defendant Lovern violated Nolan's rights by not providing reasonable accommodations and exposing Nolan to officials who insulted his human dignity; (4) Defendant Davis violated Nolan's rights when he accepted him at Green Rock; (5) Defendant Massenburg violated Nolan's rights when she placed him on grievance restriction; (6) Defendant Mays violated his rights when she refused to put in a request on his behalf for transfer to Deerfield; (7) Defendant Burke violated Nolan's rights when he told Nolan he needed to stay in his cell if he could not see the red lines; (8) Defendant Tisdale violated Nolan's rights when he asked him why he did not have a seeing eye dog; (9) Defendant Van Der Schagt violated Nolan's rights when she did not warn him that the cell door was closing so Nolan did not get out of the way; and (10) Defendant Gibbs violated Nolan's rights when he failed to provide a menu in a font large enough for Nolan to read.

         For relief, Nolan requests $800, 000 in damages. In addition, he seeks injunctive relief in the form of an order from the court that he be transferred to Deerfield so that he can receive services from the Virginia Department for the Blind and Vision Impaired.

         C. Motion to Dismiss

         Defendants make the following arguments in their motion to dismiss: (1) Nolan has failed to name a proper defendant for the ADA and RA claims; (2) His ADA claim for money damages fails to allege a constitutional violation, meaning defendants are entitled to sovereign immunity; (3) Because Nolan's ADA claim for money damages is barred by sovereign immunity, this court lacks jurisdiction to adjudicate the ADA claim; (4) His claims for injunctive relief are moot because he has been transferred to a different facility; (5) He has failed to allege sufficient facts to make out a claim that he was discriminated against based on his disability as required by the RA; (6) He fails to allege adequate personal involvement on the part of some named defendants; and (7) His injuries are de minimis under the Prison Litigation Reform Act.

         II. ...


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