Tremayne Durham v. G. Kelley

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 21-3187

______________

TREMAYNE DURHAM,

Appellant

v.

C.O.R. G. KELLEY; C.O.R. B. CORREA;

C.O.R. W. GRAY; C.O.R. W. VINCENTE;

C.O.R. J. RODRIGUEZ; C.O.R. K. VEGA;

O.F.C. Z. GOODWIN; O.F.C. L. JOVANOVIC;

O.F.C. M. DOYLE; SUSAN SPINGLER;

NURSE MOBOLANLE EBO, RN, BSN;

NURSE NEAL WEST; DOCTOR JOHN DOE #1;

JOHN DOE #2; JOHN DOE #3;

J JOHNSON, Medical Records Clerk

______________

On Appeal from the United States District Court

for the District of New Jersey

(District Court No. 3:21-cv-04565)

Honorable Michael A. Shipp

______________

Argued: March 13, 2023

Before: RESTREPO, AMBRO, and FUENTES, Circuit

Judges

(Filed: September 19, 2023)

Oren N. Nimni [ARGUED]

Samuel Weiss

Rights Behind Bars

416 Florida Avenue NW

Unit 26152

Washington, DC 20001

Counsel for Appellant

Stephanie J. Cohen [ARGUED]

Michael Vomacka

Office of Attorney General of New Jersey

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellee Attorney General New Jersey

______________

OPINION

______________

FUENTES, Circuit Judge.

Plaintiff-Appellant Tremayne Durham appeals from an

order dismissing his pro se prisoner complaint sua sponte at

the initial screening stage pursuant to 28 U.S.C. § 1915A.

Durham, now represented by counsel, argues that the District

Court erred in dismissing his claims under the Americans with

2

Disabilities Act (ADA), Rehabilitation Act (RA), and Eighth

Amendment after prison officials at the New Jersey State

Prison (NJSP) took away his cane and refused to provide him

with an accessible shower. For the reasons that follow, we will

vacate and remand to the District Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Durham is a prisoner at the NJSP in Trenton. In January

2018, a doctor diagnosed him with lumbar stenosis, a medical

condition that involves the narrowing of the spinal canal in the

lower back. He received epidural steroid injections to manage

the pain, and in November 2019 a doctor prescribed him a

walking cane for the condition.

On May 22, 2020, prison officials sent Durham to

NJSP’s quarantine unit. He was told he could not bring his

cane with him. Over the next ten days, Durham repeatedly

requested his cane back from various prison officials because

he was in severe pain, but his requests were denied or ignored.1

1

The day after his admission to the quarantine unit, Durham

told a nurse, Defendant Neal West, that he was having

excruciating back pain, needed to see a doctor, and would like

his cane. West responded that Durham did not need a cane in

quarantine and that there was nothing he could do for him. The

next day, Durham informed Defendant C.O.R. B. Correa that

he was having serious back pain and needed his cane. Correa

called Durham’s housing unit for him regarding access to his

cane. Defendant O.F.C. Z. Goodwin responded that Durham

“complain[ed] too much” and would not open his cell for the

cane, and O.F.C. L. Jovanovic said that Durham was an

“asshole” who “gets nothing.” A40. In the following days,

3

He also requested to see a doctor and to use a chair in the

shower.2 Those requests were also ignored.

On May 31, 2020, Durham experienced severe shooting

pain while in the shower. Without the assistance of his cane, a

shower chair, or shower handrails, he fell to the floor. Prison

officials took Durham to the prison clinic via wheelchair,

where he received treatment for the pain and remained for

several days.

In March 2021, Durham filed a pro se complaint in the

United States District Court for the District of New Jersey

naming various prison officials as Defendants, sued in both

their individual and official capacities. Among other claims,

he alleged: (1) deliberate indifference to his medical needs in

violation of the Eighth Amendment; and (2) violations of the

ADA and RA. As a remedy, Durham sought monetary and

injunctive relief.

The District Court screened the complaint pursuant to

28 U.S.C. § 1915A, which requires courts to review prisoner

complaints sua sponte, and dismissed it without prejudice for

failure to state a claim. The Court concluded that:

(1) Durham’s claims for money damages against the

Defendants in their official capacity as state officials are barred

by Eleventh Amendment sovereign immunity; (2) Durham

failed to state an Eighth Amendment deliberate indifference

claim because he failed to plausibly allege that the prison

Durham made many more pleas to different individuals noting

his back pain and requesting his cane.

2

Durham requested to see a doctor and sought a shower chair

on May 27 and 28. A14-15; A41.

4

officials were “subjectively aware of a substantial risk of

serious harm” when they denied Durham his cane and a shower

chair; and (3) Durham failed to state a claim under the ADA

and RA because he failed to show that he is a qualifying

individual with a disability and that the prison officials

discriminated against him on that basis. After Durham failed

to file an amended complaint, the District Court dismissed the

case with prejudice.3 Durham appeals.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction

under 28 U.S.C. § 1331. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291. We review a district court’s

dismissal of a prisoner’s complaint at the § 1915A screening

stage under a plenary standard.4 The Court must accept all

facts in the complaint as true, draw all reasonable inferences in

the prisoner’s favor, and ask only whether the complaint

contains facts sufficient to state a plausible claim.5 Complaints

filed pro se should be construed liberally and held to “less

stringent standards than formal pleadings drafted by lawyers.”6

III. DISCUSSION

There are three grounds under 28 U.S.C. § 1915A upon

which a district court may dismiss a complaint sua sponte: the

complaint (1) is frivolous or malicious, (2) fails to state a claim

3

A12.

4

Shorter v. United States, 12 F.4th 366, 370-71 (3d Cir. 2021).

5

Id. at 373.

6

Id. at 371 (quoting Erickson v. Pardus, 551 U.S. 89, 94

(2007)).

5

upon which relief could be granted, or (3) seeks monetary relief

from a defendant who is immune from suit.7 Here, the District

Court’s dismissal of Durham’s Eighth Amendment deliberate

indifference and ADA and RA claims was based on his failure

to state a claim, and the Court further dismissed his claims on

Eleventh Amendment immunity grounds to the extent he

sought non-injunctive relief against the defendants in their

official capacities.8 On appeal, Durham raises three issues as

to: whether the District Court erred when it (1) dismissed his

ADA and RA claims for failure to state a claim; (2) dismissed

his Eighth Amendment deliberate indifference claim for failure

to state a claim; and (3) determined that his claims for money

damages are barred by sovereign immunity. As the District

Court dismissed the action at the screening stage, Defendants

were not served and did not respond to Durham’s appeal.

Instead, this Court requested the Attorney General to provide a

response.

At the outset, Durham sued Defendants in both their

individual and official capacities. The relief that he may obtain

if successful under each claim is dependent upon whether the

Defendants can be held liable in one, both, or neither capacity.

The District Court dismissed all of Durham’s claims “to the

extent they seek non-injunctive relief [i.e., damages] against

Defendants in their official capacities because the Eleventh

Amendment bars such claims.”9

7

28 U.S.C. § 1915(e)(2)(B).

8

See A13.

9

A17. Insofar as the District Court did not automatically

dismiss the claims for injunctive relief, this was proper.

Officers can be sued for prospective (injunctive) relief in either

6

The District Court properly dismissed the 42 U.S.C. §

1983 claims insofar as Durham sought damages against

Defendants in their official capacities. States, and state

officers, if sued in their official capacities for retrospective

relief, are not “persons” subject to suit under § 1983; however,

state employees in their individual capacities may be liable for

damages under § 1983, even when the conduct in question is

related to their official duties. But state officers can be sued

for damages in their official capacities for purposes of the ADA

and RA, unless barred by the Eleventh Amendment.10 Thus,

unless barred by sovereign immunity, the ADA and RA claims

for damages should not have been dismissed.11 And whether

capacity. See Rochester v. White, 503 F.2d 263, 266 (3d Cir.

1974).

10

See, e.g., Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,

280 F.3d 98, 107 (2d Cir. 2001).

11

Briefly, the Attorney General claims that damages can never

be sought against state officials; the state is the proper

defendant. The same cases that the Attorney General uses to

support the contention that state officials may only be sued for

injunctive relief bely this argument. When an action “is in

essence one for the recovery of money from the state, the state

is the real, substantial party in interest and is entitled to invoke

its sovereign immunity from suit even though individual

officers are nominal defendants.” Christ the King Manor, Inc.

v. Sec’y U.S. Dep’t of Health & Hum. Servs., 730 F.3d 291,

318-19 (3d Cir. 2013). Thus, nominal defendants may be sued

for damages, but the state may simply invoke sovereign

immunity to nullify the complaint.

7

the ADA or RA validly abrogates sovereign immunity is a

question not answered by the Court below.12

Therefore, we review whether (1) Durham’s ADA and

RA (a) official capacity claims should have been dismissed for

failure to state a claim and (b) damages claims should have

been dismissed due to sovereign immunity; and (2) Durham’s

Eighth Amendment deliberate indifference claim against

Defendants in their individual capacities was properly

dismissed.

1. Whether the District Court Erred in Dismissing

Durham’s Claims Under the ADA and RA.

Durham argues that the District Court improperly

dismissed his claims under the ADA and RA. We first address

whether Durham properly pleaded causes of action under the

ADA and RA for damages and injunctive relief. Second, we

address whether damages may be awarded to Durham if he is

successful in his claim against Defendants in their official

capacities or are barred by sovereign immunity.

A. The District Court erred in determining

that Durham failed to properly plead an ADA/RA

claim on the merits.

12

This Court has not squarely addressed the question of

whether claims may be brought against government officers in

their individual capacities under Title II of the ADA. See

Williams v. Hayman, 657 F. Supp. 2d 488, 502 (D.N.J. 2008).

We need not do so now because Durham does not challenge

the dismissal of his ADA claims under an individual liability

theory.

8

Title II of the ADA13 provides that “no qualified

individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of

the services, programs or activities of a public entity, or be

subjected to discrimination by any such entity.”14 Thus, to

state a claim under Title II of the ADA, plaintiffs must

demonstrate that: (1) they are qualified individuals; (2) with a

disability; and (3) they were excluded from participation in or

denied the benefits of the services, programs, or activities of a

public entity, or were subjected to discrimination by any such

entity; (4) by reason of their disability.15 Where compensatory

damages are sought, a plaintiff must also show intentional

discrimination under a deliberate indifference standard.16 The

elements of a claim under the RA are the same, except that the

plaintiff must also show that the program in question received

federal dollars.17

In dismissing Durham’s ADA claim, the District Court

stated—without further explanation—that the complaint “does

not allege that Plaintiff is a qualified individual or that he was

subject to discrimination by reason of his disability.”18 We

disagree. First, Durham is a “qualified individual” with a

13

104 Stat. 337, 42 U.S.C. §§ 12131–65.

14

42 U.S.C. § 12132.

15

Haberle v. Troxell, 885 F.3d 170, 178 (3d Cir. 2018).

16

Furgess v. Penn. Dep’t of Corr., 933 F.3d 285, 289 (3d Cir.

2019).

17

See 29 U.S.C. § 794; Gibbs v. City of Pittsburgh, 989 F.3d

226, 229 (3d Cir. 2021). For brevity, we will henceforth refer

to the “ADA” to mean both the ADA and the RA, unless noted

otherwise.

18

A23.

9

disability within the meaning of the ADA. As the District

Court acknowledged, the Supreme Court has held that state

prisoners are covered by the ADA.19 Because Durham was

diagnosed by a medical professional with lumbar stenosis and

received a prescription for a cane for this condition, he

demonstrated a disability. Federal regulations define a

disability broadly as, among other things, a physical

impairment that substantially limits one or more of the major

life activities. A physical impairment is a “physiological

disorder or condition, . . . or anatomical loss affecting one or

more body systems[,]” and “major life activities” include

walking and standing.20

Second, the District Court did not address the third

element of an ADA claim: that the plaintiff was excluded from

participation in or denied the benefits of the services,

programs, or activities of a public entity, or were subjected to

discrimination by any such entity. But Durham has alleged that

he was denied “services, programs, or activities” within the

meaning of the ADA. This Court has previously held that the

“provision of showers” in prison qualifies as a service,

program, or activity that must be made accessible to people

with disabilities under the ADA.21

Last, Durham sufficiently pleaded that he suffered

discrimination “by reason of his disability.” Causation

standards differ between the ADA and RA: under the RA, the

disability must be the sole cause of the discriminatory action,

19

See Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210

(1998).

20

28 C.F.R. § 35.108.

21

Furgess, 933 F.3d at 291.

10

while the ADA only requires but-for causation.22 Based on the

facts as alleged in the complaint, Durham has sufficiently

alleged causation under both standards. Refusing to make

reasonable accommodations is tantamount to denying access,23

and the complaint pleads that Durham’s requests for a cane and

shower chair were repeatedly refused. Durham alleges several

instances when he complained of pain and was ignored. This

pain caused Durham to have trouble ambulating, and the

failure to accommodate his requests kept him from accessing

the showers on the same basis as other inmates.24 Moreover,

transfer to the quarantine unit was not a sufficient reason to

deny Durham access to his cane and a shower chair.25

As previously stated, Durham seeks compensatory

damages and so must also show intentional discrimination

under a deliberate indifference standard. A claimant must

allege “(1) knowledge that a federally protected right is

substantially likely to be violated . . . and (2) failure to act

despite that knowledge.”26 Durham has successfully pleaded

an ADA deliberate indifference claim.

22

CG v. Pa. Dep’t of Educ., 734 F.3d 229, 235-36 & n.11 (3d

Cir. 2013).

23

See Jaros v. Illinois Dep’t of Corr., 684 F.3d 667, 672 (7th

Cir. 2012).

24

See id.

25

Furgess, 933 F.3d at 291–92 (holding that movement to

another prison unit is not a sufficient reason to fail to provide

accessible facilities or ignore complaints for accessible

services).

26

See Haberle, 885 F.3d at 181.

11

Durham pleaded sufficient facts to demonstrate that the

Defendants had knowledge that a federally protected right—

his right under the ADA to be free from disability

discrimination—was substantially likely to be violated.

Durham had a diagnosis of lumbar stenosis, a prescription for

a cane, and had received his cane and been using it to walk in

the facility prior to his quarantine. He made numerous prison

officials aware that he had a cane, needed a cane to walk, and

was in severe pain without it. Despite this, he was

continuously denied his cane and shower accommodations.

This alone was sufficient to allege a deliberate indifference

claim. But Durham also pleaded that the denial of reasonable

accommodations was intentional. Indeed, he alleged that

denials were based on officials’ claims that plaintiff

“complain[ed] a lot” and was an “asshole.”27 Thus, Durham’s

pleading was sufficient to establish a claim for deliberate

indifference under the ADA.

With respect to injunctive relief, Durham pleaded that

prison officials were conspiring to withhold his cane from him

in the future.28 To satisfy the standing and “case or

controversy” requirements of Article III, a party seeking

prospective relief “must allege facts from which it appears

there is a substantial likelihood that he will suffer injury in the

future.”29 Durham appears to properly plead that he will be

subjected to the alleged conduct in the future. Although

denials of his cane and shower chair occurred during a ten-day

27

A40.

28

A44.

29

Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003)

(citing City of Los Angeles v. Lyons, 461 U.S. 95, 102–03

(1983)).

12

quarantine period during the height of the COVID-19

pandemic, he expressed a belief that he will be continuously

deprived of these accommodations. Thus, Durham pleaded a

claim for injunctive relief.

“As we have stated before, standards of pleading are not

the same as standards of proof.”30 We need not express an

opinion on whether Durham will ultimately be able to prove

his claims. But construing his complaint liberally, as required

at this stage, he is a “qualified individual” with a disability who

was denied equal access to the showers at the prison, a

qualifying public service.

B. Whether the District Court erred in finding

that sovereign immunity bars Durham’s

request for money damages.

Durham argues that the District Court erred in finding

that his request for money damages was barred by sovereign

immunity. The Attorney General has taken no position on

sovereign immunity. But because the District Court addressed

it sua sponte and held that sovereign immunity bars Durham’s

claims for money damages, we review the issue now.

The Eleventh Amendment of the United States

Constitution states: “[t]he Judicial power of the United States

shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any

30

Fowler v. UPMC Shadyside, 578 F.3d 203, 214 (3d Cir.

2009); Phillips v. County of Allegheny, 515 F.3d 224, 246 (3d

Cir. 2008).

13

Foreign State.”31 It imposes a jurisdictional bar against

individuals bringing suit against a state or its agencies in

federal court,32 or against a state official in his or her official

capacity.33 However, a state may consent to suit in federal

court, or Congress may abrogate Eleventh Amendment

protections.34 Congress may do the latter when it both

unequivocally intends to do so and acts pursuant to a valid

grant of constitutional authority.35

New Jersey’s sovereign immunity does not bar

Durham’s claim for money damages under the RA because “a

state program or activity that accepts federal funds waives its

Eleventh Amendment immunity to Rehabilitation Act

claims.”36 Whether New Jersey’s sovereign immunity bars

money damages under the ADA is a more complicated

question that involves determining whether Title II of the ADA

validly abrogated the State’s sovereign immunity with respect

to the claims at issue.37 The District Court did not engage in

31

U.S. Const. amend. XI.

32

See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54

(1996).

33

See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989) (“[A] suit against a state official in his or her official

capacity is not a suit against the official but rather is a suit

against the official’s office. As such, it is no different from a

suit against the State itself.” (citation omitted)).

34

Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299,

304-05 (1990).

35

Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000).

36

Bowers v. Nat’l Collegiate Athletic Ass’n., 475 F.3d 524, 545

(3d Cir. 2007).

37

See id. at 550.

14

any such analysis and instead simply assumed that sovereign

immunity applied.38

In Board of Trustees of University of Alabama v.

Garrett, the Supreme Court definitively held that the Eleventh

Amendment bars private suits seeking money damages for

state violations of Title I of the ADA.39 However, it left open

the question of whether the Eleventh Amendment permits suits

for money damages under Title II. The Court thereafter

analyzed this open question in a different context in Tennessee

v. Lane.40 There it held that, as applied to “the accessibility of

judicial services,” Title II validly abrogates sovereign

immunity through Congress’s power under § 5 of the

Fourteenth Amendment.41 But abrogation is a context-by-

context analysis, and the Supreme Court has not analyzed the

prison context.

To determine whether Congress has abrogated a State’s

Eleventh Amendment immunity in any given case, we “must

resolve two predicate questions: first, whether Congress

unequivocally expressed its intent to abrogate that immunity;

and second, if it did, whether Congress acted pursuant to a

valid grant of constitutional authority.”42 Under Title II of the

ADA, the first question is answered easily: the Act specifically

provides that “A State shall not be immune under the eleventh

amendment to the Constitution of the United States from an

action in Federal or State court of competent jurisdiction for a

38

A18.

39

531 U.S. 356, 360 (2001).

40

541 U.S. 509 (2004).

41

Id. at 531.

42

Id. at 517.

15

violation of this chapter.”43 There is thus an adequate

expression of Congress’s intent to abrogate a State’s Eleventh

Amendment immunity. We must then turn to whether

Congress had the ability to give effect to this intent.

The Supreme Court in United States v. Georgia

explained that there are two ways to establish that Congress

had the ability to abrogate a State’s Eleventh Amendment

immunity. One way is to follow Lane’s three-step method for

determining if Congress validly enacted prophylactic

legislation under § 5: (1) identify the rights at issue, (2) identify

the pattern of violations the legislation is designed to remedy

and prevent, and (3) determine whether the legislation is

congruent and proportional to the pattern of violations.44 The

second way is to plead a companion constitutional claim

arising from the same facts as the ADA claim. “While the

Members of the Supreme Court have disagreed regarding the

scope of Congress’s prophylactic enforcement powers under §

5 of the Fourteenth Amendment, no one doubts that § 5 grants

Congress the power to enforce . . . the provisions of the

Amendment by creating private remedies against the States

for actual violations of those provisions.”45

In reversing the dismissal of Durham’s § 1983 claims,

as described further below, we hold that Durham alleged actual

violations of the Eighth Amendment by state agents. Such

conduct would independently violate the Fourteenth

43

42 U.S.C. § 12202.

44

Lane, 541 U.S. at 522-534; see City of Boerne v. Flores, 521

U.S. 507 (1997).

45

United States v. Georgia, 546 U.S. 151, 158 (2006) (internal

citations and quotation marks omitted).

16

Amendment,46 and “[s]ection 5 authorizes Congress to create a

cause of action through which the citizen may vindicate his

Fourteenth Amendment rights.”47 Insofar as Title II creates a

private cause of action for damages against the States for

conduct that actually violates the Fourteenth Amendment, it

validly abrogates state sovereign immunity.

Here, as in Georgia, Durham alleges violations of both

Title II and the Eighth Amendment arising from the same

conduct. Because we hold below that Durham has properly

pleaded his Eighth Amendment deliberate indifference claims,

his parallel claims for money damages against the State under

Title II may proceed. Thus, the District Court improperly

concluded that the Defendants here are entitled to sovereign

immunity.

2. Whether the District Court Erred in Dismissing

Durham’s Eighth Amendment Individual

Capacity Deliberate Indifference Claim.

Durham also argues that the District Court improperly

dismissed his claim for deliberate indifference under the

Eighth Amendment. As previewed, we agree.

“The Eighth Amendment, through its prohibition on

cruel and unusual punishment, prohibits the imposition of

46

Id. at 157 (citing Louisiana ex rel. Francis v. Resweber, 329

U.S. 459, 463 (1947)) (plurality opinion) (the Due Process

Clause of the Fourteenth Amendment incorporates the Eighth

Amendment’s guarantee against cruel and unusual

punishment).

47

Id. at 158 (quoting Lane, 541 U.S. at 559–60 (Scalia, J.,

dissenting)).

17

‘unnecessary and wanton infliction of pain contrary to

contemporary standards of decency.’”48 In Estelle v. Gamble,

the Supreme Court held that this principle “establish[es] the

government’s obligation to provide medical care for those

whom it is punishing by incarceration[,]” and that “deliberate

indifference to serious medical needs of prisoners constitutes

the ‘unnecessary and wanton infliction of a pain’ . . .

proscribed by the Eighth Amendment.”49

To plead deliberate indifference under the Eighth

Amendment, a plaintiff must allege that (1) he had a serious

medical need, (2) the defendants were deliberately indifferent

to that need; and (3) the deliberate indifference caused harm to

the plaintiff.50 The District Court found that Durham pleaded

a “serious medical need” but that he failed to allege the

requisite mental state for the “deliberate indifference” element:

that prison officials knew of and disregarded “an excessive risk

to inmate health or safety,” meaning a “substantial risk of

serious harm.”51 This is a higher standard than proving

deliberate indifference under the ADA, which does not require

knowledge of a substantial risk of serious harm, but only that a

federally protected right is substantially likely to be violated.52

The District Court did not explain why it determined

that knowingly taking away Durham’s cane and denying him

48

Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir.

2017) (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)).

49

429 U.S. 97, 103–04 (1976) (citation omitted).

50

See Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003).

51

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

52

See S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729

F.3d 248, 263 (3d Cir. 2013).

18

an accessible shower failed to satisfy the “deliberate

indifference” element. The Attorney General, however, argues

that Durham fails to plead this element because he cannot

establish that the officials knew of a substantial risk of serious

harm. This argument is unavailing.

We have found in other contexts that knowledge of a

need for an accessible shower facility—which can be

demonstrated by ignoring complaints for such

accommodations—combined with a failure to act may

establish intentional discrimination or “deliberate

53

indifference.” Indifference to a substantial risk of serious

harm is manifested by an intentional refusal to provide care,

delayed medical treatment for non-medical reasons, denial of

prescribed medical treatment, or a denial of reasonable

requests for treatment that leads to suffering or risk of injury.54

This Court has explained that prison officials may not “deny

reasonable requests for medical treatment . . . when such denial

exposes the inmate to undue suffering or the threat of tangible

residual injury.”55

Durham pleaded that he regularly used a cane to walk

and had a prescription for it. Even if not every Defendant saw

him previously walking with his cane, Durham still pleaded

that he exclaimed to anyone and everyone that he needed his

cane and was in severe pain. It is not hard to imagine how

dangerous a shower could be for someone suffering from back

pain and an inability to walk or stand on their own. And

53

Furgess, 933 F.3d at 292.

54

Durmer v.O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993).

55

Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017)

(internal quotations and citations omitted).

19

Durham alleged that, because of the Defendants’ denial of care,

he experienced an attack of severe pain in the shower that made

him fall to the ground, worsening his condition. These facts,

as pleaded by Durham, show deliberate indifference.

Moreover, as described earlier, he alleged that certain

Defendants specifically did not help him for non-medical

reasons, citing to his penchant for complaining and

Defendants’ descriptions of him as an “asshole.”

Construing Durham’s complaint liberally, as we must,

he has sufficiently alleged a claim for deliberate indifference

under the Eighth Amendment.

IV. CONCLUSION

For the foregoing reasons, we will vacate and remand to

the District Court for further proceedings.

20