Fogarty v. Carter

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

NORMAND FOGARTY,

Plaintiff,

v. CAUSE NO. 3:21-CV-200-DRL-MGG

ROBERT CARTER JR., et al.

Defendants.

OPINION AND ORDER

Normand Fogarty, a prisoner proceeding without a lawyer, filed a complaint

under 42 U.S.C. § 1983. (ECF 2.) Pursuant to 28 U.S.C. § 1915A, the court must screen the

complaint to determine whether it states a claim for relief. The court bears in mind that

“[a] document filed pro se is to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (quotation marks and citation omitted).

According to the complaint, Mr. Fogarty is 57-years-old, has a history of strokes

and back fusion surgery, and is confined to a wheelchair. In April 2019, he was

transferred to Westville Correctional Facility from another correctional facility. He alleges

that while at Westville, he has been excluded from a college program he would otherwise

be able to participate in because the program is not accessible to individuals in

wheelchairs. He further alleges that for approximately seven hours on August 21, 2019,

he was without access to a toilet because the water was shut off in the facility while

repairs were being made, and there was a delay in bringing in handicap-accessible

portable toilets. He claims this incident caused him discomfort and inconvenience.

He also alleges that during most of his incarceration, he received “medical idle”

pay, which is given to inmates who are unable to work. He claims that Dorothy Livers, a

nurse at Westville, had his medical idle pay stopped in April 2020 in retaliation for his

grievances about medical care he was receiving for a fall. Based on these events, he sues

Robert Carter, Jr., the Indiana Department of Correction Commissioner; John Galipeau,

the Warden at Westville; Nurse Livers; and John Harvill, the grievance officer at

Westville, for allegedly mishandling his grievances about these issues.

Title II of the Americans with Disabilities Act provides that qualified individuals

with disabilities may not “be excluded from participation in or be denied the benefits of

the services, programs or activities of a public entity.” 42 U.S.C. § 12132. “State prisons

fall squarely within the statutory definition of ‘public entity.’” Pa. Dep’t of Corr. v. Yeskey,

524 U.S. 206, 210 (1998). State prison officials can be sued under the ADA for declaratory

and injunctive relief. Radaszweski ex rel. Radaszewski v. Maram, 383 F.3d 599, 606 (7th Cir.

2004). Where an inmate seeks damages, the Seventh Circuit has suggested replacing a

prisoner’s ADA claim with a parallel claim under the Rehabilitation Act, 29 U.S.C. § 701,

given the uncertainty about the availability of damages under Title II. Jaros v. Ill. Dep’t of

Corr., 684 F.3d 667, 671–72 (7th Cir. 2012). Under the Rehabilitation Act, damages are

available against a state that accepts federal assistance for prison operations, as all states

do. Id. To allege a claim under the Rehabilitation Act, a plaintiff must allege that (1) he is

a qualified person (2) with a disability and (3) the defendant denied him access to a

program, service, or activity because of his disability. Wagoner v. Lemmon, 778 F.3d 586,

592 (7th Cir. 2015). A claim under the Rehabilitation Act cannot be brought against

individual prison employees, but may be brought against the department head in his or

her official capacity. Jaros, 684 F.3d at 670 & n.2.

Regarding his participation in the college program, Mr. Fogarty plausibly alleges

that he is a qualified person with a disability and that he was excluded from this program

solely because he is in a wheelchair. He seeks only money damages, which are not

available under the ADA.1 A claim for damages is available under the Rehabilitation Act,

but solely against Commissioner Carter in his official capacity.2 Jaros, 684 F.3d at 670 n.2.

He will be permitted to proceed against the Commissioner, but his claims against the

other individual defendants for disability discrimination will be dismissed.

As for his allegations about the portable toilet, access to toilets and sinks is

protected by the ADA and the Rehabilitation Act. Jaros, 684 F.3d at 672. However, Mr.

Fogarty does not allege that the bathrooms at Westville are not wheelchair-accessible.

Rather, he describes an unusual set of events wherein the regular bathrooms were being

repaired and there was a delay of a few hours in providing handicap-accessible portable

toilets. This type of short-term inconvenience does not plausibly allege the denial of

services or programs within the meaning of the ADA or Rehabilitation Act. See Waggoner,

778 F.3d at 593. Nor would the denial of a toilet for a matter of hours trigger Eighth

1 He mentions in his complaint that he would like “[p]rotection from retaliation at the hands of

the defendants,” but the court does not read this is a request for injunctive relief related to the

college program. Nor is there any basis at this stage to assume the defendants will unlawfully

retaliate against Mr. Fogarty for filing this lawsuit.

2 Although the Eleventh Amendment generally bars suits for money damages against a state or

state agency, the Seventh Circuit has held that states waived their Eleventh Amendment

immunity under the Rehabilitation Act by accepting federal funds. Stanley v. Litscher, 213 F.3d

Amendment concerns. While this incident may have been unpleasant or uncomfortable

for Mr. Fogarty, being denied access to a toilet for a matter of hours does not rise to the

level of an Eighth Amendment violation. Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir.

2001) (“extreme deprivations are required to make out a conditions-of-confinement

claim”); Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994) (“temporary discomfort . . .

hardly violates common notions of decency”). Indeed, free citizens may be without access

to a bathroom for a period of hours in a variety of situations. This claim will be dismissed.

Mr. Fogarty’s allegation regarding his medical idle pay is best understood as a

First Amendment retaliation claim. To establish such a claim, he must allege “(1) he

engaged in activity protected by the First Amendment; (2) he suffered a deprivation that

would likely deter First Amendment activity in the future; and (3) the First Amendment

activity was at least a motivating factor in the [defendant’s] decision to take the retaliatory

action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (quotation marks and citation

omitted). Here, Mr. Fogarty alleges that Nurse Livers terminated his medical idle pay

because she was angry he had filed grievances about his medical care. Filing a prison

grievance is a protected activity for purposes of a First Amendment retaliation claim. Id.

Furthermore, having one’s source of income taken away could “dissuade a reasonable

person from engaging in future First Amendment activity.” Perez v. Fenoglio, 792 F.3d 768,

783 (7th Cir. 2015). He will be permitted to proceed on a First Amendment retaliation

claim against Nurse Livers.

Mr. Fogarty also sues the grievance officer for allegedly mishandling the

grievances he filed related to these issues. However, his allegations do not give rise to a

constitutional claim.3 The Constitution does not require that prisons provide a grievance

procedure at all, and the existence of an internal complaint procedure does not create any

constitutionally guaranteed rights. Daniel v. Cook Cty., 833 F.3d 728, 736 (7th Cir. 2016).

Mr. Fogarty does not allege, nor is there any plausible basis to infer, that the grievance

officer caused the problem with the toilets or the lack of access to the college program, or

that he stood in the way of these issues being resolved by a responsible staff member.

“The most one can say is that [he] did nothing, when [he] might have gone beyond the

requirements of [his] job and tried to help him.” Burks v. Raemisch, 555 F.3d 592, 596 (7th

Cir. 2009). This does not state a claim under section 1983. Id.

For these reasons, the court:

(1) GRANTS the plaintiff leave to proceed against Commissioner Robert Carter,

Jr., in his official capacity for money damages for excluding the plaintiff from a college

program because he is confined to a wheelchair in violation of the Rehabilitation Act;

(2) GRANTS the plaintiff leave to proceed against Nurse Dorothy Livers in her

individual capacity for money damages for terminating his medical idle pay because of

grievances he filed about his medical care in violation of the First Amendment;

(3) DISMISSES all other claims;

(4) DISMISSES John Galipeau and John Harvil as defendants;

(5) DIRECTS the clerk to request a Waiver of Service from (and if necessary, the

United States Marshals Service to use any lawful means to locate and serve process on)

3 Mr. Fogarty alleges that at the time of these events, the prison did not have an ADA coordinator,

but it can be discerned from his complaint that there is now an ADA coordinator to whom he can

Robert Carter, Jr., at the Indiana Department of Correction and to send him a copy of this

order and the complaint pursuant to 28 U.S.C. § 1915(d);

(6) DIRECTS the clerk to request a Waiver of Service from (and if necessary, the

United States Marshals Service to use any lawful means to locate and serve process on)

Dorothy Livers at Wexford of Indiana, LLC, and to send her a copy of this order and the

complaint pursuant to 28 U.S.C. § 1915(d);

(7) ORDERS the Indiana Department of Correction and Wexford of Indiana, LLC,

to provide the United States Marshal Service with the full name, date of birth, and last

known home address of any defendant who does not waive service, to the extent this

information is available; and

(8) ORDERS Robert Carter, Jr., and Dorothy Livers to respond, as provided for in

the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for

which the plaintiff has been granted leave to proceed in this screening order.

SO ORDERED.

May 4, 2021 s/ Damon R. Leichty

Judge, United States District Court