Scott Creech v. Ohio Dep't of Rehabilitation

NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0372n.06

Case No. 21-3722

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Sep 13, 2022

)

SCOTT D. CREECH, DEBORAH S. HUNT, Clerk

)

Plaintiff-Appellant, )

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE

OHIO DEPARTMENT OF REHABILITATION ) SOUTHERN DISTRICT OF

AND CORRECTION, et al., ) OHIO

Defendant-Appellee. )

) OPINION

Before: DONALD, BUSH, and NALBANDIAN, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge. Plaintiff Scott Creech appeals from the

district court’s opinion and order granting summary judgment in favor of Defendant Ohio

Department of Rehabilitation and Correction (“ODRC”). On appeal, Creech argues that (1) the

district court erred in finding that he failed to present a genuine dispute on his claim under Title II

of the Americans with Disabilities Act (“ADA”); and (2) the district court erred in concluding that

ODRC is entitled to immunity under the Eleventh Amendment. For the reasons stated below, we

affirm the district court’s grant of summary judgment for ODRC on ADA grounds alone.

I. BACKGROUND

Creech is currently an inmate at the Chillicothe, Ohio, Correctional Institution (“CCI”),

which is operated by the Ohio Department of Rehabilitation and Correction (“ODRC”). He has

been an inmate at CCI since 2008.

Case No. 21-3722, Creech v. ODRC

In June 1988, Creech was involved in a motorcycle accident, which resulted in him

receiving Social Security disability benefits.1 Then, in 1999, after another motorcycle crash,

Creech was flown by helicopter to Grant Medical Center in Columbus, where he was hospitalized

for 31 days. Creech suffered a brain hemorrhage, a separated AC joint in his right shoulder,

multiple rib fractures, a spinal compression fracture, and various other injuries.2 At his deposition,

Creech testified that he was placed in a medically induced coma for two weeks and that his torn

ACL was never surgically repaired.

During his recovery from the 1999 crash, Creech was prescribed painkillers and a cane.

In the years immediately following the crash, Creech would always keep the cane with him on the

street so that he could use the cane whenever he needed. Creech was prescribed a cane again in

2006, which he continued to carry in his car and use periodically as needed.

Creech found himself back in ODRC custody in 2008. Creech’s cane was taken before he

was transferred to CCI in December 2008. By 2012, Creech was reissued a cane by CCI medical

staff, and, due to his shoulder injury that stemmed from the 1999 crash, he also had a bottom-bunk

restriction. The cane and the bottom-bunk assignment were issued as medical restrictions in

accordance with ODRC policy.3 The Amended Complaint alleges that an orthopedic surgeon at

Correctional Medical Center (“CMC”) instructed Creech to continue using the cane, but as the

1

Creech continued to receive disability payments from 1989 until 2008, when his benefits were suspended because

of his current prison sentence.

2

Although Creech filed his 1999 medical records as a supplement in support of his motion for summary judgment,

there is no indication that the information from his hospital records was ever made known to CCI medical personnel,

or even incorporated into his prison medical file.

3

Per ODRC’s guidelines for medical restrictions, a medical restriction is “[a] medical accommodation written by a

physician or other advanced health care provider, used to address a serious medical need. Medical restriction orders

are temporary and must be regularly reviewed and rewritten.” R. 74-3, PageID# 926.

-2-

Case No. 21-3722, Creech v. ODRC

magistrate judge points out, there is no order to that effect. As required, Creech’s medical

restrictions—the cane and bottom-bunk—were reviewed several times prior to August 2016.

Prior to August 2016, Creech was able to walk four or five miles at a time with the aid of

his cane. On August 23, 2016, Creech had a general medical examination with Nurse Practitioner

Gary Artrip. During the examination, Artrip expressly noted Creech’s “swift gait [when] using

[a] cane,” R. 66-1, PageID# 743, and at the conclusion of the appointment, Artrip took Creech’s

cane. Artrip’s medical opinion that Creech’s “cane was no longer medically indicated [was] based

on [his] medical judgment after personally observing [] Creech during a clinic evaluation, personal

observations of [Creech] walking in the [prison], review of [Creech’s] medical file, and the

institutional security concerns regarding the use of a cane.” R. 74-2, PageID# 925.

Creech unsuccessfully appealed Artrip’s decision through the ODRC grievance process.

During the appeal process, three additional CCI medical personnel, including the Chief Medical

Inspector, the reviewer of last resort, all concluded that the cane was not medically indicated. In

denying Creech’s grievance as a “valid exercise of discretion,” the of the reviewers explained that

although Creech’s “treatment” plan might not be to his “satisfaction,” “the doctor’s decision [was]

based on [her] expert medical opinion” and “the Chief Medical Officer [had] sole responsibility

for all matters involving purely clinical judgment.” R. 74-4, PageID# 934. The Inspector

expressly noted that Creech’s “record [] indicates that you currently have no diagnosed mobility

issues . . . that suggest your need for [a cane].” Id. at PageID# 931. After the conclusion of the

grievance process, Creech did not mention the cane again in his written Health Services Requests

until 2019.

After losing his cane, Creech went from walking four or five miles a day to at most one or

two miles a day, if at all. If there was nice weather and Creech was not suffering from chronic

-3-

Case No. 21-3722, Creech v. ODRC

pain, he was able to walk two or three times a week, but he still suffered from significant pain

while standing still, which caused him to stop going to the chow hall. Creech asserts that, without

the cane, he was prevented from having full access to the law library and that he also had reduced

access to the gym and the yard. Although Creech does not identify any new diagnoses stemming

from the deprivation of the cane, he asserts that his health has generally diminished because he is

out of shape, that he has continuous leg pain, and that he has also gained between ten and twenty

pounds.

During this time, Creech continued to see medical personnel at the prison. In June 2017,

Creech submitted a Health Services Request complaining of back and shoulder pain, but neither

his request nor the notes from his medical appointment mention a cane. In September 2018, Creech

submitted another request and asked for his bottom-bunk restriction to be renewed. In the

subsequent appointment, a prison medic noted Creech “smooth[ly] [walked] without difficulty.”

R. 66-1, PageID# 758.

A few months later, Creech filed this lawsuit on January 11, 2019. He had another medical

appointment on January 14, 2019. At the appointment, the prison personnel noted Creech walked

with a “swift/steady” “gait” and “briskly r[ose] from [the] exam table.” Id. at PageID# 763. Creech

was seen at the CCI medical clinic by another nurse-practitioner on April 9, 2019. Despite not

having any complaints at his April 9 examination, Creech filed a Health Services Request on April

23, 2019, stating that he needed a cane, in addition to a back brace and a knee brace. And while

this was the first written record of Creech’s request for a cane since the 2016 grievance process,

Creech asserts that he verbally asked prison medical staff to reissue the cane at all appointments.

On May 1, 2019, Dr. Sonya Peppers saw Creech about his request for a cane, a back brace,

and a knee brace. Creech informed Dr. Peppers that he had a cane for several years, that it was

-4-

Case No. 21-3722, Creech v. ODRC

recently taken from him, that his knee occasionally gave out on him and he used the cane for

support, and that, at one point, he was walking four miles each day with the assistance of his cane.

During the May 1, 2019 appointment, Dr. Peppers observed that Creech walked with a limp, and

that there was no medical indication for the cane, but she also noted that she would review his

records to determine the need for a cane. See id. at PageID# 774. She also noted that Creech

“admitted that he does not use the cane, he had it ‘just in case.’” R. 74-1, PageID# 923. Finally,

in September 2019, after another physical exam, Dr. Peppers issued Creech a cane to assist with

his ambulation. Her decision to issue the cane was based on several factors, including her review

of Creech’s medical records, new complaints of joint pain, a new physical exam, and her medical

opinion. See id.

Creech, proceeding pro se below, brought this action under Title II of the Americans with

Disabilities Act (“ADA”), seeking damages and injunctive relief stemming from ODRC denying

him the use of a cane from August 2016 until September 2019. At the close of discovery, the

parties filed cross motions for summary judgment. The magistrate judge issued a Report and

Recommendations; Creech filed objections; the magistrate judge filed a Supplemental Report and

Recommendations; and Creech filed objections to the magistrate’s Supplemental Report and

Recommendations. The district court overruled Creech’s objections and adopted the magistrate

judge’s Report and Supplemental Report, granted ODRC’s motion for summary judgment, and

denied Creech’s motion for summary judgment. See R. 94, PageID# 1126. We now consider

Creech’s appeal.

I.

We review de novo a district court’s grant of summary judgment, viewing the evidence in

the light most favorable to the nonmoving party and drawing all justifiable inferences in the

-5-

Case No. 21-3722, Creech v. ODRC

nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). At the summary

judgment stage, the central question is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.” Id. at 251–52. In other words, “[w]here the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita

Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

“This court can affirm a decision of the district court on any grounds supported by the record, even

if different from those relied on by the district court.” Garza v. Lansing Sch. Dist., 972 F.3d 853,

877 (6th Cir. 2020) (quoting Brown v. Tidwell, 169 F.3d 330, 332 (6th Cir. 1999) (per curiam)).

And because Creech proceeded pro se below, we construe liberally his district court filings. See

Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (noting that the liberal construction of pro se

filings may require “active interpretation”).

Title II of the ADA provides that “no qualified individual with a disability shall, because

of that disability, ‘be denied the benefits of the services, programs, or activities of a public entity,

or be subjected to discrimination by any such entity.’” Mingus v. Butler, 591 F.3d 474, 481–82

(6th Cir. 2010) (quoting 42 U.S.C. § 12132). The ADA’s broad definition of discrimination

includes failing to provide “reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability who is an applicant . . . unless

such covered entity can demonstrate that the accommodation would impose an undue hardship on

the operation of the business of such entity.” 42 U.S.C. § 12112(b)(5)(A) (emphasis added).

Under the ADA, a disability is “a physical or mental impairment that substantially limits one or

more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Major life activities

include, but are not limited to, walking, standing, lifting, and working. See 42 U.S.C.

-6-

Case No. 21-3722, Creech v. ODRC

§ 12102(2)(A). And, “[t]he determination of whether an impairment substantially limits a major

life activity shall be made without regard to the ameliorative effects of mitigating measures[,]”

including mobility devices, or other “reasonable accommodations or auxiliary aids or services[.]”

42 U.S.C. § 12102(4)(E)(i)(I), (III).

Creech brought his claim solely under Title II of the ADA, which expressly states that “no

qualified individual with a disability shall,” because of their disability, “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. Essentially everything a public entity does is covered by the phrase “services,

programs, or activities[.]” Anderson v. City of Blue Ash, 798 F.3d 338, 356 (6th Cir. 2015)

(citations omitted). “The ADA applies to both federal and state prisons.” Mingus, 591 F.3d at 482.

This Court has explained that “covered entities,” including prisons, must provide “meaningful

access” to their services, programs, and utilities. Keller v. Chippewa Cnty., Mich, Bd. of Comm’rs,

860 F. App’x 381, 386 (6th Cir. 2021) (quotation omitted). We have also noted that because the

ADA expressly includes failure to accommodate in the definition of disability discrimination, we

apply the direct test for failure-to-accommodate claims. See Fisher v. Nissan N. Am., Inc., 951

F.3d 409, 416–17 (6th Cir. 2020) (collecting cases and noting that failure-to-accommodate claims

“necessarily involve direct evidence . . . of discrimination”); Keller, 860 F. App’x at 385 (citations

omitted) (framing failure to provide reasonable accommodations as direct evidence of disability

discrimination). To state a prima facie case of disability discrimination based on a failure to

provide reasonable accommodations, Creech must show that: (1) he has a disability; (2) he is

otherwise qualified; and (3) he was excluded from participation in, denied the benefits of, or

subjected to discrimination under the program because of his disability. Anderson, 798 F.3d at

356; cf., Keller, 860 F. App’x at 385–86. In other words, Creech must demonstrate that ODRC

-7-

Case No. 21-3722, Creech v. ODRC

knew that he was disabled and refused to provide a reasonable accommodation for his disability.

See Anderson, 798 F.3d at 357 (citing Turner v. City of Englewood, 195 F. App’x 346, 353 (6th

Cir. 2006)).

Creech asserts that ORDC failed to accommodate his disability when it took his cane in

August 2016 because, without his cane, his mobility decreased to the point that he eventually could

not walk safely to and from the chow hall, and that his reduced mobility prevented “full access”

to both law library and the exercise facilities at CCI. Creech argues that taking his cane constituted

a denial of meaningful access to CCI’s chow hall, law library, and the exercise facilities at the gym

and yard. On appeal, ODRC argues that that Creech failed to establish that providing a cane was

a reasonable accommodation where the cane was removed based on the medical opinion of a duly

qualified medical professional; and that Creech has not demonstrated that he was denied

meaningful access to any prison services, programs, or activities. See Appellee Br. at 14–32.

In the prison context, as here, Title II plainly covers recreational, medical, educational, and

vocational activities. See United States v. Georgia, 546 U.S. 151, 157 (2006) (citations omitted).

The critical question, however, is whether Creech created a genuine dispute regarding whether

ODRC knew Creech was disabled and denied him a reasonable accommodation. See Anderson,

798 F.3d at 357 (citations omitted). The district court found, and we agree, that Creech failed to

present evidence that he was denied a reasonable accommodation. Creech’s medical restrictions

were reviewed several times between 2012 and 2016, as required by ODRC policy. ODRC

expressly requires regular review of medical restrictions. Creech’s medical records also reflect

that—and Creech concedes as much—Artrip removed the cane based on his medical judgment,

and Dr. Peppers reissued the cane based on her own medical judgment. And in his deposition,

-8-

Case No. 21-3722, Creech v. ODRC

Creech recognized that mobility devices like canes can present a security risk to inmates and prison

staff alike. See R. 66-1, PageID# 515–17.

Further, each time Creech submitted a Health Services Request, he was promptly seen by

a qualified medical professional. As noted above, after Creech exhausted the grievance process,

not one of Creech’s Health Services Requests mentioned a cane until April 2019. And the medical

records from his appointments do not mention any requests for a cane.4 Rather, the medical

personnel noted his “smooth ambulation without difficulty” and that his gait was “swift/steady.”

R. 66-1, PageID# 758, 763. Creech similarly does not argue that these medical opinions were

objectively unreasonable. See Keller, 860 F. App’x at 386 (finding that although plaintiff “may

not have received” the type of medical treatment he sought, he nonetheless received “meaningful

access to medical treatment”). The record also lacks evidence to suggest that ODRC medical

personnel had actual knowledge of the injuries he sustained in his two motorcycle crashes.

To his credit, Creech rightfully points out that the ADA states “episodic” impairment is a

disability if it “substantially limit[s] a major life activity when active.” See Appellant Br. at 22

(quoting 42 U.S.C. § 12102(4)(D)). The ADA also instructs that “whether an impairment

substantially limits a major life activity shall be made without regard to the ameliorative effects of

mitigating measures such as . . . mobility devices.” Id. § 12102(4)(E)(i). Putting these provisions

together, Creech argues that he was impermissibly deprived of a reasonable accommodation

because Artrip considered the “ameliorative effect[]” of Creech’s cane. Creech’s argument does

not change the outcome of this case. True, during the August 23, 2016 examination, Artrip

observed that Creech had a swift gait when using the cane, and, based on his medical judgment,

4

Creech admits he did not renew his request for a cane in any of his written Health Services Requests until his April

23, 2019 request. And when Creech did put his request in writing, in April 2019, he was reissued a cane in a matter

of months.

-9-

Case No. 21-3722, Creech v. ODRC

Artrip concluded that the cane was not medically indicated. But Creech does not argue that

Artrip’s medical judgment was objectively unreasonable. Even if we were to assume that Creech’s

proposed accommodation was a reasonable one for his disability, the ADA specifies that an entity

is not required to provide the proposed accommodation if it would “fundamentally alter the nature

of the goods, services, facilities, privileges, advantages, or accommodations involved.” 42 U.S.C.

§ 12201(f). And it can hardly be disputed that providing a cane in express contravention of ODRC

policy, where competent medical professionals’ medical judgment goes unchallenged, would

fundamentally alter the nature of the accommodations involved.

Ultimately, Creech simply has not created a genuine issue of material fact regarding

whether ODRC denied or removed a reasonable accommodation where the relevant decisions were

all made by competent, qualified medical professionals acting in accordance with ODRC policy.

Therefore, the district court properly awarded summary judgment on Creech’s failure-to-

accommodate claim.

II.

Although the district court’s merits decision was clearly supported by law and the record,

the district court should have confined its inquiry to the reasonable accommodation analysis. See

Zibbell v. Michigan Dept. of Human Services, 313 F. App’x 843, 850 (6th Cir. 2009) (affirming

district court’s dismissal of nonviable Title II ADA claim, but declining to affirm district court’s

independent ground that defendants were entitled to immunity under the Eleventh Amendment

despite conclusions regarding ADA claim). Indeed, the Supreme Court’s opinion in United States

v. Georgia, 546 U.S. 151 (2006), sets out “a procedure for lower courts to follow when confronted

with a state’s claim of immunity under the Eleventh Amendment” in cases involving Title II of the

ADA. See Zibbell, 313 F. App’x at 847. We explained that, “under Georgia, the constitutional

- 10 -

Case No. 21-3722, Creech v. ODRC

question—abrogation of Eleventh Amendment immunity—will be reached only after finding a

viable claim under Title II.” Id. at 847–48 (emphasis added) (cleaned up). Here, the district court

concluded that Creech’s Title II ADA claim was nonviable and properly granted summary

judgment on that ground. The district court’s determination that Creech’s Title II claim was not

viable should not have been accompanied, or even preceded, by any consideration of the second

and third steps of the Georgia analysis. See id. at 848. Therefore, we affirm the district’s court’s

decision on Title-II grounds only.

III.

Because Creech failed to present a genuine issue of material fact on his Title II ADA claim,

the district court’s opinion should not have addressed ODRC’s Eleventh Amendment immunity

defense. Accordingly, we affirm the district court’s grant of summary judgment in favor of ODRC

on Title II grounds alone.

- 11 -