Esparza v. Manley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JOHNNY M. ESPARZA, )

)

Plaintiff, )

)

v. ) Case No. 4:18-cv–00782-SEP

)

DIANE MANLEY, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court is Defendants’ Motion for Summary Judgment. Doc. [52]. The Motion

has been fully briefed. For the reasons set forth below, the Motion is granted as to Defendants

Driskell, Manley, Bouse, “Monty,” “K,” and denied as to Defendant Crawford County.

FACTS AND BACKGROUND

Plaintiff Johnny Esparza initiated this action on May 18, 2018. Doc. [1]. On February

15, 2019, Plaintiff filed a Second Amended Complaint, naming as Defendants, Crawford County

Sheriff’s Department and five individuals: Zackary Driskell, Diane Manley, Derek Bouse, and

two unknown individuals whom Plaintiff refers to as “Monty” and “K.” Doc. [27]. On

September 24, 2019, the Court dismissed all claims against Defendants in their official

capacities, as well as Plaintiff’s Failure to Protect and Failure to Supervise claims. Doc. [42].

Plaintiff now has three remaining claims. Count I alleges that Defendants violated his rights

under the ADA. Doc. [27] at 9. Count II alleges that Defendants violated his Fourteenth

Amendment right to treatment for a serious medical need. Id. at 10. Count III alleges that

Defendants retaliated against him for exercising his First Amendment right to free speech. Id. at

11.

In 2014, Plaintiff had a total laryngectomy to treat Stage IV cancer, which resulted in a

visible hole (or “stoma”) in his throat. Doc. [65] (Plaintiff’s Statement of Additional Material

Facts) ¶¶ 1, 4. Plaintiff alleges that, as a result of the procedure, he can no longer speak

naturally.1 Id. ¶¶ 1, 3. After the surgery, Plaintiff contends that his surgeon prescribed him an

electrolarynx—a device which, when placed to Plaintiff’s throat, allows him to speak. Id. ¶ 2.

The electrolarynx is assembled from multiple smaller parts and is powered through the use of a

detachable, rechargeable battery. Doc. [64] ¶ 24. Plaintiff alleges that he cannot verbally

communicate without the electrolarynx, although he can write, mouth words, and use hand

signals as alternatives. Doc. [65] ¶ 3. In addition to the communication issues caused by the

laryngectomy, Plaintiff alleges that his stoma, which is used to help him breathe and speak when

he uses the electrolarynx, must be kept clean and humid to prevent it from crusting over. Id. at 4.

1 Although Defendants do not dispute that Plaintiff had a laryngectomy, Doc. [54] ¶ 2, Defendants dispute

whether Plaintiff is “disabled” as a result of the procedure, whether his surgeon prescribed him an

electrolarynx, and whether the use of his electrolarynx is necessary for him to speak. Doc. [70]

(Defendants’ Response to Plaintiff’s Statement of Additional Material Facts) ¶¶ 1-4. Plaintiff alleges that

he is disabled and requires his device to communicate orally. Id.; Doc. [63] at 12-13 (citing 42 U.S.C.

§ 12102(1)(A)) (arguing that Plaintiff is “disabled” within the meaning of the ADA because he suffers a

“physical . . . impairment that substantially limits one or more major life activities . . .”). He maintains

that, without his functioning and properly charged electrolarynx, he could not communicate with

individuals outside the Detention Center via phone, Doc. [70] ¶ 23, or with his mother and child during

visits, id. ¶ 19, or with medical staff when necessary, id. ¶ 20; Doc. [65-3] Ex. B ¶¶ 23-24. Plaintiff

further alleges that, in the absence of his working device, he relied on his ability to mouth words or use

hand gestures to communicate with other inmates who could speak to prison staff on his behalf. Doc.

[70] ¶ 22. He also claims to have used faxes as a means of communication but that he was frequently

unable to do so because the faxes were “too thick” or exceeded the maximum file size. Id. ¶¶ 13, 26, 27.

Defendants dispute those allegations and contend that Plaintiff could successfully communicate orally,

among other ways, “when it suit[ed] him.” Doc. [53] at 11. They contend that Plaintiff himself has noted

that he engaged in oral communications on many occasions when he did not have access to his device,

and that he took advantage of writing tools at the Detention Center, as evidenced by his frequent use of

the grievance system. Id. at 10-11.

The parties’ conflicting accounts, and the evidence therefor, are sufficient to create a genuine dispute of

material fact as to Plaintiff’s ability to communicate, as a reasonable jury could infer from the evidence

that Plaintiff was unable to communicate orally without his device and that he did not have meaningful

access to alternative methods of communication. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The Court also acknowledges that Plaintiff cites affidavits by Dr. Allan Allphin, the surgeon who

performed his laryngectomy, and Sean Pluta, his attorney, to support his contention that he cannot

communicate orally without his electrolarynx. See Docs. [63] (Plaintiff’s Memorandum in Opposition of

Defendants’ Motion for Summary Judgment); [70]. Defendants object to the use of those affidavits on

the grounds that the declarants were not properly disclosed as experts in Plaintiff’s Rule 26 disclosures.

Doc. [70] ¶¶ 1-4, 33-36. Given the wealth of other evidence, the Court finds it unnecessary to rely on the

affidavits of Dr. Allphin and Mr. Pluta in concluding that there is a genuine dispute of material fact as to

Plaintiff’s ability to communicate at the Detention Center. As a result, the Court declines to decide the

merits of the parties’ discovery dispute as referenced in their sur-reply motions, Docs. [72], [75], and

[76]. To the extent that Plaintiff relies on the contested affidavits in his memoranda, statements of fact,

and exhibits opposing this Motion, the Court will disregard such references.

Plaintiff was incarcerated as a pre-trial detainee at the Crawford County Detention Center

on January 11, 2018, in connection with a warrant for his arrest. Doc. [64] (Plaintiff’s Response

to Defendants’ Statement of Material Facts) ¶ 1; Doc. [52] (Defendants’ Motion for Summary

Judgment) ¶ 1. When Plaintiff arrived at the Detention Center, he had his electrolarynx in his

possession. Doc. [70] (Defendant’s Response to Plaintiff’s Statement of Additional Facts) ¶ 6.

Believing that Plaintiff’s electrolarynx could be used as a weapon,2 Defendants initially placed

him in a single-person cell under administrative segregation. Id. After Plaintiff’s initial

separation, Defendants gave him two choices: remain in administrative segregation and keep his

electrolarynx or enter the general population without the device. 3 Id. ¶ 7. Plaintiff agreed to

move to the general population and was transferred there on January 20, 2018. Id. ¶ 11. Plaintiff

alleges that, prior to the move, he instructed Defendants on how to properly charge his

electrolarynx for future use; Defendants deny that such a conversation occurred. Id. ¶ 10.

During his time in the general population, Plaintiff alleges that he was not provided with

additional free materials or accommodations in place of the electrolarynx. Id. ¶ 11.

On January 22, 2018, Plaintiff filed a Level I Grievance Form requesting possession and

use of the electrolarynx in the general population.4 Docs. [64] ¶ 30; [70] ¶ 12. In his request,5

Plaintiff described his frustration with his lack of access to the electrolarynx or, alternatively, a

2 Specifically, Defendants claim that they were concerned that the smaller parts of the electrolarynx could

be disassembled and fashioned into weapons. Doc. [64] ¶ 25. Additionally, Defendants feared that the

rechargeable battery could be used to start a fire or be used as a weapon. Id.

3 The parties dispute the extent to which Plaintiff was aware that he would have limited access to his

electrolarynx during his time in the general population. Plaintiff alleges that he was told that he would be

without the device for only a short period of time and expected that, at some point, the device would be

returned to him for full-time use in the general population. See Doc. [70] ¶¶ 7, 9; Doc. [64] ¶ 28.

Defendants claim, to the contrary, that Plaintiff was informed that, if he chose to remain in the general

population, he would have access to the electrolarynx only in certain limited situations such as court

appearances, visitations, and medical visits. Doc. [70] ¶ 7.

4 Plaintiff alleges that he noted in his request that Defendants, by depriving him of both his electrolarynx

and access to writing materials, were denying him proper medical care. he believed he was being denied

proper medical care. Doc. [70] ¶ 12. Defendants, however, contend that Plaintiff’s request (as well as his

other various requests throughout his detention) focused on having unlimited access to the electrolarynx

while still being housed in the general population. Id.

5 Defendants characterize Plaintiff’s January 22, 2018, complaint as a request, noting that it was not a

formal Level I Grievance. Defendants’ assertion is confusing, however, considering Plaintiff’s complaint

is submitted on a form entitled “Prisoner’s Grievance Form” and his notes are found under the “Level I

Grievance” section. Doc. [65-6] Ex. B3 at 2. Nevertheless, whether Plaintiff’s January 22, 2018,

communication was considered a Level I Grievance is immaterial to the determination of this Motion.

pen and paper. Docs. [70] ¶ 12; [65-6] Ex. B3 (Plaintiff’s Jan. 22, 2018, Level 1 Grievance). In

part, Plaintiff’s complaints centered around feeling unsafe, because he was unable to “yell or

write for help” in the general population. Doc. [70] ¶ 12. Plaintiff’s request was denied the

same day, and Defendants told him that he may choose to return to administrative segregation if

he did not feel safe in the general population. Id.; Doc. [64] ¶ 30. Defendants assert that

Plaintiff did not appeal the January 22, 2018, decision.6 Doc. [70] ¶ 14.

After Plaintiff’s initial complaint, throughout January and February 2018, he began

repeatedly filing grievances complaining about his lack of access to his electrolarynx or other

means of communication, both in the general population and at other times when he expected to

have access to the device. Id. ¶ 13; Doc. [65-3] Ex. B ¶ 15. Additionally, Plaintiff complained

about the way Defendants treated him and his frustration with the grievance process. Doc. [70]

¶¶ 13-15. Specifically, in his various grievances, Plaintiff made the following accusations: that

he was unable to communicate with his visitors because he lacked access to his electrolarynx or

an alternative means of communication;7 that Defendants “continually refused” to charge his

device properly when it was in their possession, Doc. [64] ¶ 32;8 that the commissary computer

6 The Detention Center has a specific grievance procedure that inmates are expected to follow to

adjudicate disputes. Doc. [64] ¶¶ 3-5. Plaintiff does not dispute that he was aware of the procedures

outlined in the Inmate Handbook, but he alleges that, while he knew how to file a Level I Grievance, he

was not familiar with the appeals process or the legal ramifications of failing to follow the procedures. Id.

¶¶ 6-7. The grievance process involves three mandatory steps: a Level I Grievance, a Level II Grievance,

and a Level III Administrative Remedy. Id. ¶ 9. At each stage, an inmate must fill out the required form,

to which a designated employee of the Detention Center must reply. See id. ¶¶ 10-21. When each

decision is returned to the inmate, he or she has the opportunity to reject the previous decision and to

initiate an appeal within 72 hours of the notice. See id. If the process reaches Level III, a copy of the

decision is given to the Crawford County Sheriff. Id. ¶ 19. An inmate may also appeal any Level III

decision to the Sheriff directly, who then must respond to that appeal. Id. ¶ 20.

7 For purposes of this allegation, Plaintiff admits that he received visitors three times during his time at

the Detention Center, but that he “has no recollection that he was able to speak to his mother and son” on

at least two of the three visitations. Doc. [64] ¶ 34.

8 Defendants maintain that they followed Plaintiff’s instructions for charging the device and did not

intentionally refuse to charge the batteries. Doc. [64] ¶ 38 (noting Defendant Manley’s response to

Plaintiff that the batteries for his device “were on the charger”); see Doc. [69] at 6-7. In addition to

Defendants’ contentions, two officers who are not defendants in this litigation, notified Plaintiff that his

electrolarynx battery “has been left plugged in” when it has not been in use. Doc. [64] ¶¶ 43-44. Despite

this, however, Plaintiff contends that Defendants did not charge the battery in an acceptable manner

because it failed to work on multiple occasions, which he asserts would only have occurred if the battery

was not being properly charged. Doc. [70] ¶ 19 (“Defendants either failed to charge his electrolarynx, or

failed to do it properly”).

was broken, so he could not purchase envelopes to send correspondence, id.; that his serious

medical needs were ignored, id. ¶ 35; that he was denied access to pens and paper as an

alternative method of communication, id.; that Defendant Manley was “losing” faxes that he

used to communicate with his attorney, id. ¶ 37; that he felt unsafe in the general population

without his electrolarynx, id. ¶¶ 35, 38, 39; and that it was inappropriate for Defendant Manley

to review grievances that were related to her own conduct, Doc. [70] ¶ 15 (citing [65-3] (Esparza

Declaration) ¶ 17). Various Defendants and other Detention Center staff—most frequently,

Defendant Manley—responded to Plaintiff’s grievances, which were all denied. See Doc. [64]

¶¶ 33-40.

On February 16, 2018, Plaintiff attempted to correspond directly with the Crawford

County Sheriff, Darin Layman, to complain of an incident that occurred on or around that day

involving a visit he had with the Detention Center nurse. Id. ¶ 42. Sheriff Layman did not

respond to Plaintiff’s complaint. Id. Plaintiff alleges that, during the visit, he was unable to

communicate with the nurse because he did not have access to his device or any other materials

to communicate with. Doc. [65-3] Ex. B ¶ 23. According to Plaintiff, that made him “visibly

frustrated and upset,” for which he wrote to Defendant Wright to apologize. Id. ¶¶ 23-24. In

response to his apology, Plaintiff claims that Defendant Wright noted that he “wished there was

more [he] could do” for him. Id. ¶ 24.

On the same day, Sergeant Hanner, a non-party, entered a note on Plaintiff’s inmate file,

noting that Plaintiff filed a complaint stating that he was being denied access to medicine and

was unable to clean his stoma without the proper equipment. Doc. [64] ¶ 44. Hanner’s note

mentioned that he spoke to the nurse, who said that Plaintiff declined medication at first because

it was too expensive, and that Plaintiff also stated that he did not need any equipment to clean the

stoma so long as he had access to a hot shower. Id.

Despite filing various Level I Grievances, Plaintiff did not initiate the proper appeals

process for any of his complaints. See Docs. [53] at 5-6; [63] at 3. Plaintiff nevertheless

contends that several of his communications were attempts to appeal the denials of his initial

complaints.9 Doc. [65-3] ¶ 17 (“I also tried to appeal in other ways.”). Those attempts are

9 Defendants claim that Plaintiff did not indicate an attempt to appeal on any of the forms he submitted.

They point to one communication in which Plaintiff writes, “this is not an appeal . . . are you kidding

me,” Doc. [70] ¶ 14 (citing Doc. [64-14] Ex. B7), but in the same grievance Plaintiff checks the box

evidenced, according to Plaintiff, by his comments on various grievances that were returned to

him. Doc. [70] ¶ 15. For instance, on an original form that was returned to him, Plaintiff wrote

that Defendants never “addressed this issue” and that he was given no responses to his previous

grievances. Doc. [64] ¶ 41. Additionally, Plaintiff points to a complaint he made about

Defendant Manley impermissibly reviewing grievances of which she was the subject. See Doc.

[65-3] Ex. B ¶ 17 (citing Ex. B5). Plaintiff also alleges that he attempted to appeal the

determinations in other ways. Doc. [65] ¶ 15. Finally, Plaintiff notes that the letter addressed to

Sheriff Layman was an attempt to appeal the conditions that he complained about in his various

grievances. Id.

Despite Plaintiff’s attempts to challenge Defendants’ decisions, he remained in the

general population without his device and without free access to pen or paper. Doc. [70] ¶ 22.

Besides the communication issues described in his grievances, Plaintiff alleges that he suffered

additional mistreatment due to his disability. For example, he claims that he was unable to use

his electrolarynx at a court proceeding on February 21, 2018, id. ¶ 21; that he had to resort to

mouthing words or making hand gestures to non-disabled inmates in an effort to have them

speak on his behalf, id. ¶ 22; and that he could not make phone calls because of the charging

issue with his electrolarynx and was not allowed to access “indigent envelopes” to make up for

the inability to speak on the phone, id. ¶¶ 23-24.

Finally, in addition to Plaintiff’s complaints related to his inability to communicate, he

alleges that he was harassed by Defendants—Defendant Manley in particular—because of his

disability and his criticism of the conditions of the Detention Center. Plaintiff claims that

Defendant Manley “jokingly” told Plaintiff not to yell at her, which he perceived as her taunting

him for his inability to yell. Id. ¶ 25. He contends that Defendants denied him access to his

electrolarynx and other alternative communication devices to punish him for his frequent use of

the grievance system. Id. ¶ 28. And he claims that Defendants denied him access to

communication devices because they did not want him to be able to speak because he “was so

critical” about his lack of access to his device and black mold that was allegedly within the

Detention Center. Id.

indicating that he wishes to appeal the decision against him, Doc. [64-14] Ex. B7. Given such equivocal

evidence, the Court finds that there is a genuine dispute of material fact as to whether Plaintiff attempted

to appeal Defendants’ decisions. See Anderson, 477 U.S. at 248.

Plaintiff was released from the Detention Center on February 22, 2018, and was given his

electrolarynx back. Id. ¶ 30. After his release, Plaintiff brought this suit alleging that

Defendants violated his rights under the ADA, the Fourteenth Amendment, and the First

Amendment. See Doc. [27] at 1-2.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, a court must grant summary judgment if it

finds, based on the factual record, that “there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). Material facts are those that “might affect the outcome of the suit under the

governing law,” and there is a genuine dispute where “a reasonable jury could return a verdict

for the nonmoving party.” Anderson, 477 U.S. at 248.

The moving party bears the initial burden of “informing the district court of the basis for

its motion, and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323

(quotation marks omitted). The burden then shifts to the non-movant to “present specific

evidence, beyond ‘mere denials or allegations [that] . . . raise a genuine issue for trial.’” Farver

v. McCarthy, 931 F.3d 808, 811 (8th Cir. 2019) (quoting Wingate v. Gage Cty. Sch. Dist., No.

34, 528 F.3d 1074, 1079 (8th Cir. 2008)).

Motions for summary judgment in qualified immunity cases are “unique in that the court

should not deny summary judgment any time a material issue of fact remains on the

constitutional violation claim . . . .” Jones v. McNeese, 675 F.3d 1158 (8th Cir. 2012) (cleaned

up) (quoting Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 671 (8th Cir. 2007)). Because

qualified immunity “is an immunity from suit rather than a mere defense to liability[,] . . . it is

effectively lost if a case is erroneously permitted to go to trial.” Id. (citing Mitchell v. Forsyth,

472 U.S. 511, 526 (1985)). Therefore, in a qualified immunity case, the court must “take a

careful look at the record, determine which facts are genuinely disputed, and then view those

facts in a light most favorable to the non-moving party so long as those facts are not so blatantly

contradicted by the record that no reasonable jury could believe them.” Id. (cleaned up) (quoting

O’Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir. 2007)).

DISCUSSION

I. Plaintiff’s Claims Against Defendants Driskell, Manley, Bouse, “Monty,” and “K”

A. Plaintiff’s ADA claim is not subject to the PLRA’s exhaustion requirement.

The Prison Litigation Reform Act (PLRA) provides in relevant part that “no action shall

be brought [under federal law] with respect to prison conditions . . . by a prisoner . . . until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Jones v. Block,

549 U.S. 199, 211 (2007). Section 1997e(a) “requires that inmates exhaust prison grievance

procedures before bringing § 1983 suits related to prison conditions.” Burns v. Eaton, 752 F.3d

1136, 1141 (8th Cir. 2014). The PLRA’s exhaustion requirement applies to ADA claims as well

as § 1983 claims. See C.P.X. through S.P.X. v. Garcia, 450 F. Supp. 3d 854, 900 (S.D. Iowa

2020) (citing Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015); Jackson v. Fed. Bureau of

Prisons, 2007 WL 843839, at *19 (D. Minn. Mar. 16, 2007)) (applying the PLRA’s exhaustion

requirement to a plaintiff’s ADA claim).

Defendants argue that Plaintiff failed to exhaust his administrative remedies by following

the Detention Center’s three-level grievance process. Doc. [53] at 3-5. Plaintiff responds that

exhaustion of administrative remedies would have been futile.10 Doc. [63] at 8. The Court takes

no position on whether Plaintiff sufficiently exhausted his administrative remedies, because “the

PLRA’s exhaustion requirement only applies to ‘person[s] incarcerated or detained,’” Nerness v.

Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (quoting 42 U.S.C. § 1997e(h)), and Plaintiff was not

incarcerated or detained at the time of filing. See Doc. [1]; Doc. [70] ¶ 30. Therefore, he was

not subject to the PLRA’s exhaustion requirement.11 See Nerness, 401 F.3d at 876.

B. Plaintiff cannot maintain an ADA claim against Defendants in their individual

capacities.

The Eighth Circuit has held that actions against public actors in their individual capacities

may not be maintained under Title II of the ADA. Alsbrook v. City of Maumelle, 184 F.3d 999,

1005 n.8 (8th Cir. 1999). The Crawford County Detention Center is a “public entity” within the

10 Plaintiff bases his futility claim, in part, on the Supreme Court’s decision in Houghton v. Shafer, 392

U.S. 639 (1968), which Defendants argue was overruled by Woodford v. Ngo, 548 U.S. 81 (2006). See

Docs. [69] at 3; [71]–[76]. Because the Court does not rely on Houghton in deciding the merits of this

Motion, it declines to take a position on that question.

11 It is irrelevant that Plaintiff failed to make this argument in his Memorandum in Opposition to

Defendants’ Motion for Summary Judgment. Exhaustion is an affirmative defense for which Defendants

bear the burden of proof. Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001).

meaning of the ADA, but its individual employees are not. Id. As such, claims against them in

their individual capacities are not permitted under the ADA, and the individual Defendants are

entitled to judgment as a matter of law with respect to that claim.

C. Individual Defendants are entitled to qualified immunity from Plaintiff’s

constitutional claims.

Section 1983 of Title 42 of the United States Code provides in relevant part:

Every person who, under the color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the United

States . . . to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights,” but affords “a

method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266,

271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). Thus, in considering a

§ 1983 claim, a court must “identify the specific constitutional right allegedly infringed.” Id.

(quoting Graham v. Connor, 490 U.S. 386, 394 (1989)).

“Qualified immunity shields government officials from liability in a § 1983 action unless

their conduct violates a clearly established right of which a reasonable official would have

known.” Burnikel v. Fong, 886 F.3d 706, 709 (8th Cir. 2018) (citing Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). Thus, a “qualified immunity analysis requires a two-step inquiry:

(1) whether the facts shown by the plaintiffs make out a violation of a constitutional or statutory

right, and (2) whether the right was clearly established at the time of the defendant’s alleged

misconduct.” Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (en banc) (quoting Nord v.

Walsh Cnty., 757 F.3d 734, 738 (8th Cir. 2014)). “Unless both of these questions are answered

affirmatively, [a defendant] is entitled to qualified immunity.” Id. at 523 (quoting Nord, 757

F.3d at 738).

Although “[q]ualified immunity is an affirmative defense for which the defendant carries

the burden of proof,” the “plaintiff . . . must demonstrate that the law is clearly established.”

Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002) (citing Johnson-El v. Schoemehl, 878 F.2d

1043, 1048 (8th Cir. 1989)). “A right is clearly established only where it is ‘sufficiently clear

that every reasonable official would have understood that what he is doing violates that right.’”

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam) (quoting Mullenix v. Luna, 577

U.S. 7, 11 (2015) (per curiam). Although case law directly on point is not necessary to

demonstrate that a right is clearly established, “existing precedent must have placed the statutory

or constitutional question beyond debate.” Id. (quoting White v. Pauly, 137 S. Ct. 548, 551

(2017)). The Supreme Court has reiterated in recent decisions that clearly established rights

“should not be defined at a high level of generality.” White, 137 S. Ct. at 552 (quotation marks

omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Qualified immunity exists to

protect “all but the plainly incompetent or those who knowingly violate the law.” Id. at 551

(quoting Mullenix, 577 U.S. at 12).

Plaintiff alleges that his constitutional rights were violated by the individual Defendants

because they: (1) acted with deliberate indifference to his serious medical needs in violation of

the Fourteenth Amendment and (2) retaliated against him in violation of his First Amendment

rights. The Court will address each alleged constitutional violation in turn.

i. Individual Defendants are entitled to qualified immunity from Plaintiff’s

Fourteenth Amendment claim.

In his Complaint, Plaintiff alleges that the individual Defendants “deprived [him] of his

Fourteenth Amendment right to treatment for a serious medical need.” Doc. [27] ¶ 65. Because

Plaintiff was a pretrial detainee at the Detention Center, his “right to medical care arises under

the Due Process Clause of the Fourteenth Amendment.” Jackson v. Buckman, 756 F.3d 1060,

1065 (8th Cir. 2014) (citing Vaughn v. Greene Cnty., 438 F.3d 845, 850 (8th Cir. 2006)).

Although Plaintiff’s claim is rooted in the Fourteenth Amendment, a pretrial detainee is “entitled

to at least as much protection under the Fourteenth Amendment as under the Eighth

Amendment.” Kitchen v. Miller, 343 F. Supp. 2d 820, 823 (E.D. Mo. 2004) (quoting Hartsfield

v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004)). Therefore, the Court applies the deliberate

indifference standard for an Eighth Amendment violation to Plaintiff’s claim. Id.

“Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary

and wanton infliction of pain proscribed by the Eighth Amendment.” Holden v. Hirner, 663

F.3d 336, 342 (8th Cir. 2011) (quoting McRaven v. Sanders, 557 F.3d 974, 979 (8th Cir. 2009)).

A deliberate indifference claim “has both an objective and a subjective component.” McRaven,

577 F.3d at 980 (quoting Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009)). “The objective

component requires a plaintiff to demonstrate an objectively serious medical need”; “the

subjective component requires a plaintiff to show that the defendant actually knew of, but

deliberately disregarded, such need.” Id. (quoting Vaughn, 557 F.3d at 908).

“A serious medical need is one that has been diagnosed by a physician as requiring

treatment, or one that is so obvious that even a layperson would easily recognize the necessity

for a doctor’s attention.” Holden, 663 F.3d at 342 (quoting Coleman v. Rahija, 114 F.3d 778,

784 (8th Cir. 1997)). The subjective component—whether a defendant was deliberately

indifferent to a serious medical need—requires more than mere negligence. Rather, it requires a

state of mind similar to criminal recklessness. Nur v. Olmsted Cnty., 2021 WL 4444813, at *13

(D. Minn. Sept. 28, 2021) (quoting Barton v. Taber, 820 F.3d 958, 965 (8th Cir. 2016)). “Such a

mental state can be inferred from facts that demonstrate the response to the medical care was

obviously inadequate” or by showing that a defendant “intentionally den[ied] or delay[ed] access

to medical care or intentionally interfere[d] with prescribed treatment . . . .” Id. (citing Estelle v.

Gamble, 429 U.S. 97, 104-05 (1976)).

Defendants are entitled to summary judgment based on qualified immunity from

Plaintiff’s Fourteenth Amendment claim as a matter of law unless Plaintiff produces sufficient

evidence to enable a reasonable factfinder to conclude that (1) Defendants’ conduct amounted to

deliberate indifference to Plaintiff’s serious medical need in violation of the Fourteenth

Amendment, and (2) that a reasonable person in Defendants’ situation would have known, at the

time of the alleged conduct, that it amounted to deliberate indifference to a serious medical need

in violation of the Fourteenth Amendment. See Morgan, 920 F.3d at 523. Viewing the factual

record in the light most favorable to Plaintiff, he has not made that showing.

Defendants focus on the latter prong of the qualified immunity analysis, arguing that they

are entitled to qualified immunity because “there is no precedent that established that Plaintiff

had a constitutional right to unrestricted possession and use of the electrolarynx while housed in

the general population” of the Detention Center, Doc. [53] at 15-16, and noting that Plaintiff

cites no such precedent, Doc. [69] at 9. See Sparr, 306 F.3d at 593 (plaintiff has the burden of

showing that a law is clearly established); see Fields v. Abbott, 652 F.2d 886, 890 (8th Cir. 2011)

(quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)) (“[Courts] have the discretion to decide

‘which of the two prongs of the qualified immunity should be addressed first in light of the

circumstances in the particular case at hand.’”).

Plaintiff counters that argument by claiming that the alleged constitutional violation is

broader than denial of access to his electrolarynx while housed in the general population. Doc.

[63] at 19. He states that “any reasonable officer should understand that total deprivation of an

auxiliary device or other reasonable accommodation” under the circumstances of this case

“offended . . . the Fourteenth Amendment . . . .” Id. at 21 (emphasis added). Even assuming

Plaintiff’s characterization of the alleged constitutional violation, he has not produced sufficient

evidence to defeat qualified immunity.

Plaintiff points to ADA case law and regulations, arguing that they should have put

Defendants on notice both of his disability status and that their proffered accommodations were

“unlawful.” Id. at 19. Again assuming arguendo that Plaintiff is correct—i.e., that federal ADA

regulations do clearly establish that Plaintiff is disabled and that he was statutorily entitled to his

device or a different accommodation at the Detention Center—Plaintiff still points to no

authority that would have made it clear to reasonable officers in Defendants’ situation that failure

to provide access to either the electrolarynx or the measures that Plaintiff contends would have

been reasonable accommodations in his particular case (e.g., pen and paper at no cost) would

constitute deliberate indifference to a serious medical need in violation of his Fourteenth

Amendment rights. In fact, Plaintiff points to no caselaw holding that any failure to provide an

accommodation for an ADA-recognized disability amounts to violation of a detainee’s

Fourteenth Amendment rights, much less a case with facts that resemble this one. See Doc. [63]

at 19-20. That lack of precedent makes it very hard to conclude that “existing precedent [has]

placed the statutory or constitutional question beyond debate.” Mullenix, 577 U.S. at 12 (quoting

Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)).

The Supreme Court has admonished “that ‘clearly established law’ should not be defined

‘at a high level of generality.’” White, 137 S. Ct. at 552 (quoting Ashcroft, 563 U.S. at 742).

Elsewhere in his Opposition, Plaintiff emphasizes that ADA regulations “require a flexible

approach” to “auxiliary aids,” “and state that the public entity shall furnish ‘auxiliary aid or

service necessary to ensure effective communication will vary in accordance with the method of

communication used by the individual; the nature, length, and complexity of the communication

involved; and the context in which the communication is taking place.’” Doc. [63] at 14

(quoting 28 CFR § 35.160(b)(2)). Given the ADA’s context-specific, flexible norms, the fact

that Plaintiff is disabled and entitled to reasonable accommodations under the ADA generally

would not have been sufficient to put reasonable officers in Defendants’ position on notice that

the specific deprivations alleged in this case amounted to deliberate indifference to Plaintiff’s

serious medical need in violation of the Fourteenth Amendment. Thus, Plaintiff has not met his

burden to show that the allegedly violated law was clearly established.

Plaintiff also suggests that some of the Defendants’ comments regarding his condition

and lack of access to his electrolarynx demonstrate that Defendants were aware that their actions

were violating his Fourteenth Amendment rights. Specifically, Plaintiff alleges that Defendant

Manley mocked his inability to yell, demonstrating awareness that she was depriving Plaintiff of

an accommodation. Doc. [63] at 19-20. Plaintiff also highlights Defendant Wright’s alleged

acknowledgement that the nurse “should have had you write down your answers to her

questions” and that he “wish[ed] there was more [he] could do for” Plaintiff. Id. (citing Doc.

[65-18] Ex. B11). Construing the evidence in the light most favorable to Plaintiff, he has not

demonstrated that those comments indicate that his right to alternative accommodations was

clearly established under the Fourteenth Amendment.

Finally, Plaintiff relies on the recent Supreme Court case, Taylor v. Riojas, 141 S. Ct. 52

(2020), for the proposition that his alleged deprivation was so constitutionally suspect that any

reasonable officer would have realized Defendants’ actions violated the Constitution. In Taylor,

the Supreme Court found that an inmate’s constitutional rights were violated where he was held

in a feces-covered holding cell in extreme temperatures despite the lack of specific precedent

addressing such circumstances. Id. at 53-54. Plaintiff relies on that holding now to suggest that,

even without a similar precedent, the Court may find that Plaintiff’s rights were violated.

As Plaintiff acknowledges, the facts involved in Taylor were extreme. Doc. [63] at 20.

Taking all of Plaintiff’s allegations in this case to be true, his treatment was not so outrageous

that, without precedent, it would have been obvious to reasonable officers that their actions were

unconstitutional. There is uncontested evidence in the record that Plaintiff had the option of

moving to administrative segregation to access his device in administrative segregation, Doc.

[70] ¶ 7, Doc. [65-3] ¶ 20; that he had access to sufficient methods of communication to

participate in the prison grievance process, Doc. [70] ¶¶ 12-15, Doc. [65-3] ¶ 20; and that he was

able to purchase writing materials, Doc. [64] ¶ 36. Defendants have also submitted evidence that

they charged his device when it was not in use. Doc. [52-2] (Defendant Driskill’s Affidavit) ¶ 23;

Doc. [52-3] ¶ 21 (Defendant Manley’s Affidavit).12 While Plaintiff was not afforded access to

free pens and paper, Doc. [70] at ¶ 22, Defendants have submitted evidence showing that

Plaintiff did not suffer a complete deprivation of his ability to communicate while at the

Detention Center. See e.g., Docs. [70] ¶ 3, 26; [63-3] Ex. B; [64] ¶ 36. In short, the

circumstances of Plaintiff’s detention do not rise to the level of those that the Supreme Court

found “particularly egregious” in Taylor. Taylor, 141 S. Ct. at 54.

Plaintiff does not cite any precedent that would otherwise aid his argument that his right

was clearly established; thus, Defendants are entitled to qualified immunity from Plaintiff’s

Fourteenth Amendment claim.13

ii. Defendants are entitled to qualified immunity from Plaintiff’s First Amendment

retaliation claim.

The individual Defendants also assert qualified immunity as a defense to Plaintiff’s First

Amendment retaliation claim. Again, a qualified immunity analysis requires two steps:

“(1) whether the facts shown by the plaintiffs make out a violation of a constitutional or statutory

right, and (2) whether the right was clearly established at the time of the defendant’s alleged

misconduct.” Morgan, 920 F.3d at 523 (quotation marks omitted) (quoting Nord, 757 F.3d at

738). The second prong of this inquiry is easily established here because “[a] citizen’s right to

exercise First Amendment freedoms ‘without facing retaliation from government officials is

clearly established.’” Baribeau, 596 F.3d at 481 (quoting Kilpatrick v. King, 449 F.3d 759, 767

(8th Cir. 2007)). Therefore, the only question is whether a reasonable jury may find that the

12 Plaintiff’s allegation that Defendants intentionally neglected to charge the batteries of his electrolarynx

does not, by itself, create a genuine dispute of material fact. Defendants have submitted several affidavits

and responses to Plaintiff’s grievances attesting that Defendants attempted to keep the batteries for

Plaintiff’s device charged. See, e.g., Docs. [52-2] ¶ 23; Doc. [52-3] ¶ 21; [64] ¶¶ 38, 43-44; see also Doc.

[69] at 6-7. In response, Plaintiff has submitted only unsupported allegations that the device failed to

work properly because of Defendants’ failure to charge it. Docs. [64] ¶ 33; [65-3] Ex. B ¶ 37 (“I had

battery issues while at the Crawford County Jail because Defendants failed to charge the electrolarynx as

I instructed them to. The electrolarynx could have been fixed by charging it correctly or replacing the

battery.”). Plaintiff’s mere belief that Defendants’ negligence or intentional wrongdoing was the source

of the battery failing is not sufficient to create a genuine dispute of material fact. See Anderson, 477 U.S.

at 252.

13 The Court does not take a position on whether Plaintiff has made a sufficient showing for a reasonable

jury to find that he suffered a violation of a constitutional right, because the finding that such a jury could

not find such a right to have been clearly established is sufficient for qualified immunity. See Morgan,

920 F.3d at 523 (unless both prongs of the qualified immunity analysis are satisfied, a defendant is

entitled to qualified immunity).

individual Defendants’ failure to provide Plaintiff with his electrolarynx or other reasonable

accommodations was in retaliation for Plaintiff’s exercise of his First Amendment rights.

A First Amendment retaliation claim requires that a plaintiff demonstrate “a causal

connection between a defendant’s retaliatory animus and [the plaintiff’s] subsequent injury.” Id.

(quoting Osborne v. Grussing, 477 F.3d 1002, 1005 (8th Cir. 2007)). While a plaintiff need not

show that retaliation was a defendant’s sole motive, retaliation must have been a “substantial

factor.” Id. (quotation marks omitted) (quoting Kilpatrick, 449 F.3d at 767). Additionally, a

plaintiff must show that “the retaliatory motive was a ‘but-for’ cause of the [injury].” Id. (citing

Kilpatrick, 499 F.3d at 767). Thus, to defeat Defendants’ qualified immunity defense, Plaintiff

must show that there is sufficient evidence in the record for a reasonable jury to conclude that

retaliation was a “substantial factor” in, and a “but-for cause” of, Defendants’ denials of his

electrolarynx and suitable accommodations.

Plaintiff does argue that Defendants restricted the use of his electrolarynx and other

accommodations because he complained about his treatment at the Detention Center. Doc. [63]

at 18. As evidence, he cites his “belie[f]” that the denials were retaliatory. Doc. [65] ¶ 28. As

evidence for that belief, he cites only his own declaration, which flatly states that “Defendants

retaliated against [him]…,” without any facts or circumstances to support that conclusion. Doc.

[65-3] ¶ 33. Plaintiff cites no other evidence of retaliation.14 Defendants counter that denial of

access to the electrolarynx could not have been in retaliation for Plaintiff’s grievances, because

he was denied access to the electrolarynx before he began filing grievances. Doc. [53] at 12.

Still, Plaintiff maintains—again citing no evidence except his own conclusory declaration—that

the decisions to keep the device from him and not provide reasonable accommodations were

retaliatory, speculating that that is why Defendants have failed to “give[] sufficient justification”

for their failure to provide reasonable accommodations. Doc. [63] at 18.

Defendants contend that they have provided sufficient justification for their decision to

deny access to the electrolarynx while Plaintiff was in the general population, and they deny that

they failed to provide reasonable accommodations in lieu of the device. Doc. [53] at 7, 9. With

14 In his Opposition, Plaintiff also claims that he “pled and stated” that Defendant Manley’s alleged

mockery was retaliatory, but he fails to cite his Complaint, and the Court found no such allegation in the

cited paragraphs of his Statement of Undisputed Material Facts, citing Doc. [65] ¶¶ 8, 25, 26, 28, nor in

his Complaint’s First Amendment retaliation claim, see Doc. [27] ¶¶ 76-87. Therefore, the Court

disregards that argument and admonishes counsel to exercise greater care in characterizing the record.

respect to Plaintiff’s limitations on his access to his device, Defendants’ proffered reason is

compelling: that the device itself could be used as a weapon or be disassembled and made into a

weapon. Id. at 4, 7; Doc. [64] ¶ 25. In response to the allegation that their decision to deny him

reasonable accommodations was retaliatory, Defendants point to evidence that Plaintiff

successfully communicated with Detention Center staff, other inmates, and parties outside the

Detention Center. See Doc. [53] at 13-14. Plaintiff rebuts none of that evidence and submits no

evidence that he was prevented from communicating with other inmates or third parties about his

objections to his circumstances. He also offers no evidence, other than speculation, that

Defendants’ decisions were in retaliation for his speech. The record indicates that Plaintiff was

permitted to continue to file numerous grievances throughout his detention. He alleges that

Defendant intentionally misplaced his grievances but produces no evidence of that claim or of

any other signs of retaliatory animus. And even if he had, he would still have produced no

evidence of a causal connection between such animus and his lack of access to the means of

communication to which he believes he was entitled.

Viewing the record in the light most favorable to the Plaintiff, no reasonable jury could

find that retaliation was a substantial factor in, or “but-for” cause of, Defendants’ decisions

regarding Plaintiff’s electrolarynx or other accommodations. See Baribeau, 596 F.3d at 481.

Plaintiff’s putative “evidence” of retaliation is speculative and question-begging. He has

produced no actual evidence that any decision made by Defendants was retaliatory. Meanwhile,

Defendants have provided unrebutted evidence that Plaintiff was denied access to the

electrolarynx before he filed any grievances; that there was a plausible non-retaliatory rationale

for denying access to the device; and that Plaintiff communicated liberally throughout his

confinement. That record would not permit a reasonable jury to conclude that retaliatory animus

was a “substantial factor” in Defendants’ decisions. Baribeau, 596 F.3d at 481 (quoting

Kilpatrick, 449 F.3d at 767). Therefore, Defendants are entitled to qualified immunity from

Plaintiff’s First Amendment retaliation claim.

II. Plaintiff’s Claims Against Defendant Crawford County

A. The County is not entitled to summary judgment as to Plaintiff’s ADA Claim.15

Title II of the ADA “prohibits a ‘public entity’ from discriminating against a ‘qualified

individual with a disability’ on account of that individual’s disability.” Pennsylvania Dep’t of

Corr. v. Yeskey, 524 U.S. 206, 208 (1998) (citing 42 U.S.C. § 12131 et seq.).16 Title II’s

prohibition of discrimination applies to state prisons. Elston v. Collins, 2018 WL 3489591, at *2

(E.D. Mo. July 19, 2018) (citing Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1998)).

To establish a prima facie case under Title II, a Plaintiff must demonstrate:

(1) that he is a qualified individual with a disability;

(2) that he was excluded from participation in or denied the benefits of the prison’s

services, programs, or activities, or was otherwise subjected to discrimination by

the prison; and

(3) that such exclusion, denial or benefits, or other discrimination was by reason of

his disability.

Rinehart v. Weitzell, 964 F.3d 684, 688 (8th Cir. 2020) (quoting Barbibeau, 596 F.3d at 484).

Under Title II, public entities must “make reasonable modifications in policies, practices,

or procedures when the modifications are necessary to avoid discrimination on the basis of

disability, unless the public entity can demonstrate that making the modifications would

fundamentally alter the nature of the service, program, or activity.” Whitall v. Munk, 2021 WL

4442648, at *11 (N.D. Cal. Sept. 28, 2021) (quoting Weinreich v. Los Angeles Cnty. Metro.

Transp. Auth., 114 F.3d 976, 979 (9th Cir. 1997) (quoting 28 C.F.R. § 35.130(b)(7))). Thus,

“[o]nce a plaintiff has demonstrated a prima facie case, defendants may assert an affirmative

defense that the requested accommodation would [have been] an undue burden.” Gard v.

Dooley, 2017 WL 782279, at *5 (D.S.D. Feb. 28, 2017) (citing Mason v. Correctional Med.

Servs., Inc., 559 F.3d 880, 886 (8th Cir. 2009)).

15 For the reasons described in Part I.A, supra, Plaintiff was not a “prisoner” within the meaning of the

PLRA; thus, his claim does not fail for failure to exhaust. See Nerness, 401 F.3d at 876.

16 There is no dispute as to whether the Crawford County Detention Center is a “public entity” within the

meaning of the ADA. See Pennsylvania Dep’t of Corr., 524 U.S. at 210 (holding that “[s]tate prisons fall

squarely within the statutory definition of ‘public entity,’ which includes ‘any department, agency, special

purpose district or other instrumentality of a State of States or local government.’”) (citing 42 U.S.C.

§ 12131(1)); see also 28 C.F.R. § 35.152 (noting that Title II expressly covers “jails, detention and

correctional facilities” run by state and local governments).

At the outset, the Court is skeptical of Defendant’s reliance on Turner v. Safley, 482 U.S.

78 (1987). There, the Supreme Court articulated four factors for courts to consider in

determining the reasonableness of prison regulations: (1) whether there is a valid, rational

connection between the prison regulation and the legitimate, neutral governmental interest used

to justify it; (2) whether there exists alternative means for prisoners to exercise the constitutional

right at issue; (3) the impact that would be caused by accommodation of the right on prison staff,

other inmates, and allocation of prison resources; and (4) whether any alternative exists that

would fully accommodate the prisoner’s right at de minimis cost to valid penological interests.

Love v. Reed, 216 F.3d 682, 690 (8th Cir. 2000) (citing Turner, 482 U.S. at 89). While those

factors are relevant, they are not dispositive of a regulation’s reasonableness in the ADA context.

Rather, courts in this circuit have held that the Turner factors inform whether a particular

accommodation would have been an “undue burden” in the prison setting. See Maday v. Dooley,

2019 WL 4935705, at *38 (D.S.D. Mar. 8, 2019) (“[T]he Turner analysis appears to be

incorporated by the Eighth Circuit in the ‘undue burden’ affirmative defense.”); see also Gard,

2017 WL 782279, at *5 (citing Randolph, 170 F.3d at 858) (“In the prison context, whether the

requested accommodation poses a safety or security concern is relevant to the undue burden

inquiry.”).

Plaintiff satisfies the first prong of his prima facie case because there is a genuine dispute

as to his disability status. Under the ADA, an individual is considered disabled where he

“suffer[s] from a physical or mental impairment that substantially limits one or more major life

activities . . . .” Rinehart, 964 F.3d at 688 (quotation marks omitted) (quoting 42 U.S.C. §

12012(1)). Whether an individual meets this statutory criterion is a “fact-specific inquiry,” but

“Congress has instructed the courts to determine whether a limitation is substantial in light of its

command to interpret disability broadly.” Id. (quoting Oehmke v. Medtronic, Inc., 844 F.3d 748,

756 (8th Cir. 2016)).

Defendant questions Plaintiff’s disability status on two points. First, Defendant notes that

Plaintiff must be able to speak without his electrolarynx to some extent because he describes

conversations that he had with individuals when he did not have access to the device. See Doc.

[53] at 11 (citing Doc. [54] ¶¶ 44-46). Second, Defendant contends that, even if he could not

speak without the electrolarynx, Plaintiff found other means of communication such as mouthing

words, using hand gestures and using pens and paper to write. See id.; see also id. at 7-8 (citing

Doc. [54] ¶¶ 34, 36, 44-48). Naturally, Plaintiff disagrees with that contention, and asserts that,

even despite those mitigating efforts, he is still disabled within the statute.17

Construing Plaintiff’s limitations broadly, as the ADA instructs courts to do, the Court

finds that he is disabled within the meaning of the ADA. Plaintiff clearly suffers from a physical

limitation that affects a major life activity: speaking. The ADA states that speaking and

communicating are major life activities. 42 U.S.C. § 12102(2)(A). Moreover, the Court will not

consider any ameliorative effects of mitigating measures, such as Plaintiff’s ability to

communicate by mouthing words, using hand gestures, or writing, in determining whether he is

disabled. Defendant’s assertion that Plaintiff utilized other means of communication may be

relevant to other elements or claims—namely, whether certain limitations or accommodations

were reasonable—but it does not affect whether Plaintiff is disabled under § 12102.

Next, the Court presumes that the second and third elements of Plaintiff’s prima facie

case are met here, as neither party addresses those elements in their briefing. The second

element—that Plaintiff was excluded from or denied benefits of the Detention Center or was

otherwise discriminated against—is met because Plaintiff alleges that he was not able to

sufficiently communicate during his time at the Detention Center. And the third element—that

the discrimination was by reason of his disability—is also met because Plaintiff’s inability to

communicate without access to his device or other accommodations resulted from his inability to

speak. Thus, the Court finds that Plaintiff has satisfied the prima facie case for his Title II claim

against Defendant Crawford County.

Once a plaintiff has satisfied the elements of his prima facie case, the burden switches to

the defendant to show that its accommodation was reasonable and/or that the plaintiff’s

requested accommodation would have been an undue burden. See Cade v. Williams, 2014 WL

5529743, at *2 (E.D. Ark. Oct. 31, 2014) (“[T]he ADA requires prisons to provide disabled

inmates with ‘reasonable accommodations,” but not necessarily the specific accommodation

sought by the prisoner.”) (quoting Mason, 559 F.3d at 886). Here, Defendant has not shown that

a reasonable factfinder could not find that Plaintiff was denied a reasonable accommodation.

Defendant appears to set forth two accommodations that it alleges were reasonable

17 Again, the Court notes that Plaintiff attempts to rely on the affidavit of Dr. Allphin to prove his

disability status. Doc. [63] at 13. For the reasons discussed in note 1, supra, the Court will not consider

Dr. Allphin’s testimony in determining this Motion for Summary Judgment.

accommodations as a matter of law: (1) Plaintiff being given the choice of being placed in

administrative segregation with the device, and (2) Plaintiff having alternative methods of

communication.

First, Defendant contends that Plaintiff’s choice between administrative segregation with

his device and the general population with “limited access to the device” was reasonable. Doc.

[53] at 7. Whereas Plaintiff categorizes the accommodation as an all-or-nothing choice,

Defendant emphasizes that Plaintiff was not denied the electrolarynx at all times and that he had

access to it during certain activities including visitations, medical visits, and court appearances.

See id. at 7-8. Defendants also emphasize that Plaintiff’s possession of the electrolarynx created

the risk that other inmates would disassemble it and fashion weapons from it, causing a serious

security concern for the Detention Center. Id. at 7. Thus, a system in which Plaintiff could use

the electrolarynx during some activities while maintaining security in the general population was

reasonable, according to Defendant.18 Plaintiff counters that the choice was unreasonable

pursuant to Section 35.152 of the ADA Regulations, which states that a jail “shall not place

inmates or detainees with disabilities in inappropriate security classifications because no

accessible cells or beds are available.” 28 C.F.R. § 35.152(b)(2)(i).

Undoubtedly there are unique risks associated with prison security and safety, but the

ADA requires that reasonable accommodations be provided where security regulations affect a

disabled individual’s rights under the statute. It is not sufficient, therefore, to merely state that

the limitation was reasonable because the electrolarynx implicated legitimate security concerns.

Defendant must also show that the alternative accommodation was reasonable. Defendant has

not carried its burden of showing that Plaintiff’s choice between administrative segregation and

the general population was reasonable as a matter of law. On the record before the Court, a

reasonable factfinder could conclude that requiring Plaintiff to choose between not having

regular access to his electrolarynx and entering administrative segregation (i.e., solitary

confinement) was unreasonable.

18 Defendant relies on Baribeau, but that reliance is misplaced. In Baribeau, the Eighth Circuit did not

consider whether the proffered accommodation was reasonable because it determined that the plaintiff

was “not denied access to any of the benefits of the jail’s services, programs, or activities during his less

than forty-eight hours in custody.” Baribeau, 596 F.3d at 485.

With respect to alternative methods of communication, Defendant alleges that Plaintiff

admitted that writing materials would be a reasonable accommodation in lieu of his

electrolarynx. Doc. [69] at 4 (citing Doc. [63] at 14-15). Defendant also alleges that it provided

Plaintiff with those materials. Id. For instance, Defendant points to evidence that Plaintiff had

access to writing materials and used them frequently. Id. at 5 (citing Doc. [54] ¶¶ 30-33, 35-43,

48). Defendant further notes that Plaintiff purchased a writing tablet, ink pens, and stamps,

suggesting that he had access to other communication devices when he needed them. Doc. [54] ¶

36. Plaintiff counters that Defendant did not provide him with free pads of paper or a white

board, which would have been a more reasonable accommodation. Doc. [63] at 15.

Defendant has failed to meet its burden of showing that, as a matter of law, the proffered

accommodation was reasonable. While Defendant has shown that it provided Plaintiff with

writing materials, it evidently did so only with respect to the grievance procedure. Doc. [54]

¶¶ 30-33, 35-43. Defendant does not argue that it provided pens, paper, or other communication

alternatives to Plaintiff during other essential activities, including meetings with the Detention

Center’s nurse, visitations with family, or interactions with other inmates. And even if Plaintiff

later bought a writing tablet and pens, a reasonable jury could still find that it was unreasonable

for the Detention Center to not provide those materials to Plaintiff. Therefore, summary

judgment as to Plaintiff’s ADA claim against Crawford County is not appropriate.

B. Defendant Crawford County fails to meet the initial burden for summary

judgment as to Plaintiff’s § 1983 claims.

In his Amended Complaint, Plaintiff alleges that Defendant Crawford County violated his

rights pursuant to § 1983 by: (1) acting with deliberate indifference to his serious medical needs

in violation of the Fourteenth Amendment and (2) retaliating against him in violation of his First

Amendment rights. Doc. [27] at 10-12. A county may be liable under § 1983 only where the

constitutional violation was “committed pursuant to an official custom, policy, or practice” or

was “so pervasive among non-policymaking employees as to constitute a custom or usage with

the force of law.” Agnew v. St. Louis Cnty., 504 F. Supp. 3d. 989, 1003 (E.D. Mo. 2020)

(cleaned up) (quoting Granda v. City of St. Louis, 472 F.3d 565, 568 (8th Cir. 2007)). Defendant

Crawford County moves for judgment as a matter of law as to Plaintiff’s constitutional claims on

the grounds that Plaintiff has produced no evidence that the allegedly offensive conduct was the

result of a policy or custom of the Detention Center. Doc. [52] ¶ 10 (citing Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978); Doe v. Washington County, 150 F.3d

920 (8th Cir. 1998)).

On summary judgment, the moving party bears the initial burden of “informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp., 477 U.S. at 323. Although Defendant’s Motion avers that “there is no evidence” that

Plaintiff's claims are “the result of a policy or custom of the Crawford County Detention

Center,” Doc. [52] § 10, its briefing provides no evidence or argument of an absence of any

genuine issue of material fact on that question. Therefore, Defendant has not met its initial

burden for summary judgment as to Plaintiffs constitutional claims.

CONCLUSION

For the reasons discussed herein, Plaintiff cannot maintain his ADA or § 1983 claims

against Defendants Driskell, Manley, Bouse, “Monty,” and “K.” Therefore, summary judgment

is appropriate as to those claims. Plaintiff has shown a genuine dispute of material fact as to

whether Defendant Crawford County denied him reasonable accommodations at the Detention

Center, however, and the County has failed to show an absence of material fact as to Plaintiff’s

§ 1983 claims. Celotex Corp., 477 U.S. at 323. As such, Defendant Crawford County is not

entitled to judgment as a matter of law.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (Doc.

[52]) is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to

Counts I, II, and II of Plaintiff's Second Amended Complaint against Defendants Zackary

Driskell, Diane Manley, Derek Bouse, “Monty,” and “K.” The Motion is DENIED as to Counts

I, II, and II of Plaintiff's Second Amended Complaint against Defendant Crawford County.

IT IS FURTHER ORDERED that this case will be set for trial by separate Order.

A separate Judgment shall accompany this Memorandum and Order.

Dated this 18™ day of February, 2022.

hah ii

SARAH E. PITLYK

UNITED STATES DISTRICT JUDGE

22