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Brown v. Houston

United States District Court, D. Nebraska

March 13, 2018

MARVIN L. BROWN JR., Plaintiff,
ROBERT HOUSTON, et al., Defendants.


          Richard G. Kopf, Senior United States District Judge.

         This matter is before the court on Defendants' Motion for Summary Judgment.[*] (Filing No. 66). For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         Plaintiff Marvin Brown, Jr. (“Brown”), an inmate within the custody and control of the Nebraska Department of Correctional Services (“NDCS”), filed this action against Defendants NDCS and its administrators and medical staff, asserting violations of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., as amended (“ADA”), based on Defendants' alleged refusal to accommodate his immobility caused by his knee and back problems during his incarceration. (Filing No. 21.) He alleges that Defendants' failure to provide accommodations prevented him from participating in church, school, self-help betterment programs, treatment, parenting classes, ADA privileged activities, and recreational yard time. (Id. at CM/ECF p. 3.) The court allowed Brown's failure-to-accommodate claim under Title II of the ADA for injunctive relief and money damages to proceed against Defendants in their official capacities.[1] (Filing No. 22.)


         The court's local rules require the party moving for summary judgment to file a brief containing a “separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” This statement of facts “should consist of short numbered paragraphs, each containing pinpoint references to . . . materials that support the material facts . . . .” NECivR 56.1(a). If the non-moving party opposes the motion, that party must “include in its [opposing] brief a concise response to the moving party's statement of material facts.” NECivR 56.1(b)(1). Such response must “state the number of the paragraph in the movant's statement of material facts that is disputed” and must contain pinpoint citations to evidence supporting the opposition. Id. See also NECivR 7.1(b)(2)(A) (“When filing the opposing brief, the opposing party must also file and serve supporting evidentiary material not previously filed.”). “Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response.” NECivR 56.1(b)(1). See also Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”).

         As a pro se litigant, Brown is “bound by and must comply with all local and federal procedural rules.” NEGenR 1.3(g). See also Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983) (per curiam) (concluding pro se litigants are not excused from compliance with procedural and local rules).

         Defendants have submitted a statement of material facts in accordance with the court's Local Rules and properly authenticated evidence. Brown has not submitted a brief containing a concise response to Defendants' statement of material facts as required by NECivR 56.1(b)(1). Instead, he filed an affidavit (Filing No. 75), contesting several of Defendants' facts. In addition to the exhibits filed with his Complaint and Supplemental Complaint, Brown also submitted exhibits (Filing No. 76) in support of his affidavit. The court will consider Brown's affidavit and exhibits.[2]

         Upon careful review, the court finds that the following material facts, as stated in Defendants' brief, are fully supported by the evidence cited and have not been controverted by Brown. Consequently, they are deemed admitted for purposes of summary judgment. See NECivR 56.1(b)(1); Fed.R.Civ.P. 56(e)(2).

         1. Brown was, at all times relevant to this action, an inmate incarcerated within facilities under the control of NDCS. (Filing No. 1 at CM/ECF p. 10, ¶ 1, p. 15, ¶ 16.)

         2. On March 30, 2010, Brown was received into the custody of NDCS and reported that he was unable to climb stairs due to a rod in his ribs and screws in his knee. Medical staff noted that they had received all the medical records from Lancaster County and that Brown had no restrictions at the Lancaster County Jail.[3](Filing No. 18 at CM/ECF pp. 38, 48.)

         3. On April 7, 2010, Brown requested a lower bunk restriction; he received a temporary lower bunk pass for fourteen days on April 8, 2010. (Filing No. 18 at CM/ECF p. 49; Filing No. 18-1 at CM/ECF p. 1.)

         4. On April 15, 2010, Brown was seen by NDCS physician's assistant Cheryl Flinn (“Flinn”) regarding right knee swelling. He told Flinn that he had had a disability evaluation in 2008 and was told not to use stairs.[4] Flinn noted in Brown's medical records that she found this information hard to believe. She further noted that he had no restrictions per medical at the Lancaster County Jail. (Filing No. 18-1 at CM/ECF p. 5.)

         5. On April 22, 2010, Brown's x-ray results were received and they showed a small amount of fluid on his knee and minor arthritis. (Filing No. 18-1 at CM/ECF p. 10.)

         6. Medical guidelines for individuals with arthritis are to stay active in order to prevent a decrease in function and to help ease pain. (Filing No. 68-1 at CM/ECF p. 2, ¶ 9.)

         7. On April 25, 2010, Brown requested a permanent lower bunk pass and was told that fluid on the knee and minor arthritis “is not a medical condition” that requires a permanent lower bunk pass.[5] (Filing No. 18-1 at CM/ECF p. 11.)

         8. On April 27, 2010, Brown was given a temporary bottom bunk pass and sports restriction for one month only. (Filing No. 18-1 at CM/ECF p. 12.)

         9. On May 9, 2010, Brown again requested an extension of his bottom bunk pass.[6] Medical staff extended his bunk pass for one month, but explained that knee pain does not require a permanent bottom bunk pass. (Filing No. 18-1 at CM/ECF p. 14.)

         10. On May 30, 2010, Brown refused the use of crutches as indicated by medical staff.[7] (Filing No. 18-1 at CM/ECF p. 25.)

         11. On June 7, 2010, the medical staff at NDCS reviewed records sent from Lancaster County. These records revealed that: Brown could play in the gym without difficulty; he was given the ok to work but was not supposed to stand for long periods of time; he did not return for follow up care; and medical staff at the jail had denied him a lower bunk pass. (Filing No. 18-1 at CM/ECF p. 25.)

         12. On September 9, 2010, Brown's medical records from NDCS reveal that he was seen and approved for a top bunk. (Filing No. 18 at CM/ECF p. 30.) On this same date, an LPN wrote in Brown's medical file that, based on past medical records, a current assessment, and staff observations, an ADA cell was not indicated. (Id. at CM/ECF p. 31.)

         13. On September 22, [8] 2010, the Ombudsman's office wrote Brown a letter in response to complaints Brown had made regarding his sleeping arrangements at the Lincoln Correctional Center (“LCC”). The Ombudsman's office indicated to Brown that they had not made a formal request to the ADA coordinator for an ADA cell. They indicated to Brown that when they compared the medical records from Nebraska Orthopaedic and the records provided by Brown, it appeared that the records from Brown had been altered and were incomplete. The Ombudsman's office further stated that they had learned from medical staff at NDCS that Brown's physical ...

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