Daniel R. Lonergan v. Florida Department of Corrections , 623 F. App'x 990 ( 2015 )

Case: 14-13925 Date Filed: 08/17/2015 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13925
Non-Argument Calendar
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D.C. Docket No. 4:14-cv-00042-MW-CAS
DANIEL R. LONERGAN,
Plaintiff - Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 17, 2015)
Before HULL, ROSENBAUM, and COX, Circuit Judges.
PER CURIAM:
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The Plaintiff, Daniel R. Lonergan, is a prisoner in the Florida state prison
system proceeding pro se. The Plaintiff seeks declaratory and injunctive relief
under the Americans with Disabilities Act (“ADA”) and 42 U.S.C. § 1983. He
does not seek damages. The district court dismissed his complaint. We affirm in
part and reverse in part.
When reviewing a dismissal for failure to state a claim, we consider only the
facts as alleged in the complaint. Because the Plaintiff proceeds pro se, we
construe the allegations liberally. See Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir. 2008).
According to the First Amended Complaint (“the Complaint”), (D.E. 13),
the Plaintiff was referred to a dermatologist for what appeared to be skin cancer.
He twice had suspect growths removed, and was diagnosed with actinic keratosis,1
a type of pre-cancer. The dermatologist ordered that the Plaintiff be provided a
large hat, sun block (i.e., sunscreen lotion), and a “no sun pass.” Lonergan was
ultimately issued a hat and sun block, but was only issued a “no more then [sic] 15
minutes per hour of sun” pass due to prison security concerns. Lonergan requested
transfer to a “self-contained” facility—a facility that would not require him to be
outside—which the warden denied.
1
The Plaintiff refers to the condition as “acitinic” keratosis. It appears that “actinic” is
the more common spelling.
2
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The Plaintiff was then transferred to a different prison, where he is currently
incarcerated. (This prison, like the first prison, is not a self-contained prison. His
transfer to this second prison was for reasons unrelated to his skin condition.) It
was then that he noticed the appearance of new growths in the same areas of skin
where they had been previously removed. He sought an accommodation under the
ADA, 2 which was denied. He also requested a medical evaluation, which was
denied as well. At some point after his transfer (the Complaint does not specify
exactly when), the Plaintiff’s hat pass expired and his “no more than 15 minutes of
sun” pass was revoked.
The Plaintiff then utilized the prison’s “sick call” procedures in order to
receive medical attention. He was given medical attention at the prison, but was
not allowed to see his dermatologist.3 As a result, he was reissued his hat pass and
sun block, and was also given long sleeve shirts. He was, however, informed that
his sun pass was unauthorized and that the Florida Department of Corrections
“does not recognize cancerous skin conditions as a disability.”
Due to the layout of the particular prison in which the Plaintiff is
incarcerated, he is required to stand in line in the sun in order to do just about
anything. The Plaintiff alleges that eating, going to work call, seeking medical
2
The Complaint does not specify exactly what accommodation he sought at the time.
However, the Plaintiff now seeks only a transfer to a self-contained facility, as discussed below.
3
It appears from the Complaint that the Plaintiff’s dermatologist is not a prison employee
and that visiting the dermatologist requires special permission.
3
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care, going to AA meetings, going to chapel, and receiving visitors all require him
to stand in line in the sun. As a result of the prison’s failure to accommodate his
skin condition, he often foregoes these activities. He does this because his
dermatologist told him to stay out of the sun.
The Plaintiff alleges violations of the ADA, 4 the Eighth Amendment, the
Due Process and Equal Protection Clauses, and the Florida Administrative Code
Rule 33-210.201. The magistrate judge, in a Report and Recommendation (“the
R&R”), recommended the sua sponte dismissal of all claims for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii). The Plaintiff filed objections to the
R&R in the district court, and the district court adopted the R&R over the
Plaintiff’s objections. The Plaintiff appeals.
We review de novo a dismissal for failure to state a claim. Alba, 517 F.3d at
1252. With the exception of Count 1—an ADA claim seeking a reasonable
accommodation—we affirm without discussion the district court’s dismissal of all
other claims for failure to state a claim for the reasons set out in the R&R. (D.E. 15
at 6–11).
In order to establish a prima facie case under the ADA, the Plaintiff must
show: (1) that he is a qualified individual with a disability; (2) that he was either
excluded from participation in or denied the benefits of a public entity’s services,
4
Title II of the ADA applies to inmates in state prisons. See Bircoll v. Miami-Dade Cnty.,
480 F.3d 1072, 1081 (11th Cir. 2007).
4
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programs, or activities, or was otherwise discriminated against by a public entity;
and (3) that the exclusion, denial of benefit, or discrimination was by reason of his
disability. Bircoll v. Miami-Dade County, 480 F.3d 1072, 1083 (11th Cir. 2007).
An ADA claim may proceed on the theory that the Defendant failed to reasonably
accommodate the Plaintiff’s disability. See Schwarz v. City of Treasure Island, 544
F.3d 1201, 1212 n.6 (11th Cir. 2008).
We address the dismissal of Count 1. The court held that Count 1 of the
Complaint failed to state a claim under the ADA for four reasons. First, the court
held that the Plaintiff sued the wrong party. Second, the court held that the
Plaintiff failed to allege a prima facie ADA claim because he did not allege that his
impairment substantially limits a major life activity. See 42 U.S.C. § 12102. Third,
the court held that, as a matter of law, a prisoner is never entitled to a transfer to a
different prison as a reasonable accommodation under the ADA. Fourth, the court
held that the Plaintiff merely disagreed with the medical treatment provided by his
doctors, and that an ADA claim may not be based on disagreement with medical
treatment decisions.
In addition to these four holdings, the Defendants offer an alternative basis
to affirm: that the Plaintiff failed to allege a prima facie ADA claim because he did
not allege that he was excluded or denied participation in programs or activities by
reason of his disability. See id. § 12132.
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Turning to the first issue, the court held that the Plaintiff did not sue the
proper party. The Defendants do not present this contention on appeal.
Regardless, the Plaintiff has sued the proper party. He seeks declaratory and
injunctive relief against the Secretary of the Florida Department of Prisons 5 and,
according to the Complaint, has properly exhausted his administrative remedies.
See Miller v. King, 384 F.3d 1248, 1264 (11th Cir. 2004), vacated and superseded
on other grounds, 449 F.3d 1149 (11th Cir. 2006) (applying the Ex parte young
doctrine and holding that “the Eleventh Amendment does not bar ADA suits under
Title II for prospective injunctive relief against state officials in their official
capacities.”) (citations omitted).6
As to the second issue, the court held that the Plaintiff failed to allege a
qualifying disability. Under 42 U.S.C. § 12102(1)(A), a “disability” includes a
physical impairment that “substantially limits one or more major life activities.”
However, the issue in this case is not whether the Plaintiff was substantially
limited in a major life activity after the prison attempted to accommodate his
condition. This violates the clear command of 42 U.S.C. § 12102(4)(E)(i), that
“[t]he determination of whether an impairment substantially limits a major life
5
The Attorney General of Florida appears to have only been named in the suit to address
the Plaintiff’s challenge to the constitutionality of a Florida statute. Count 1 is not asserted
against the Attorney General of Florida.
6
The court’s holding, that “[t]he doctrine of respondeat superior or vicarious liability
does not provide a basis for recovery under § 1983,” (R&R, D.E. 15 at 4), relates to the issue of
damages. The Plaintiff does not seek damages.
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activity shall be made without regard to the ameliorative effects of mitigating
measures.” Rather, at this stage in the litigation, the question is whether the
Plaintiff’s condition would substantially limit a major life activity without the
accommodations provided by the prison.
The Plaintiff successfully alleges that he is substantially limited in a major
life activity for three reasons. First, he alleges that he often misses meals because
he cannot walk or stand outside, which is required in order to obtain food at the
prison. See 42 U.S.C. § 12102(2)(A) (“[M]ajor life activities include . . .
eating . . . .”). Second, the statutory list is explicitly non-exhaustive. See id. (major
life activities “are not limited to” the examples listed) (emphasis added). The
dermatologist recommended that the Plaintiff stay out of the sun completely, and
the court failed to consider whether going outside is a major life activity. Third,
“normal cell growth” is a major life activity, see id. § 12102(2)(B), and the
Plaintiff alleges the abnormal growth of pre-cancerous cells. See also 45 C.F.R.
§ 84.3(j)(2)(i) (defining a physical impairment to include a “condition . . . affecting
. . . [the] skin”). Given these three allegations together, and considering the
Plaintiff’s condition without the benefit of any mitigating measures, we conclude
that the Complaint sufficiently alleges that the Plaintiff is substantially limited in at
least one major life activity.
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Turning to the third issue, the court held that, as a matter of law, a prisoner is
never entitled to a transfer to a different prison as a reasonable accommodation
under the ADA. In reaching this conclusion, the court relied on a footnote in this
court’s decision in Miller v. King. See 384 F.3d at 1266 n.21. In fact, this footnote
stands for the opposite proposition. The entire text of this footnote is as follows:
Nothing in this opinion should be read as creating a “right of transfer”
to a particular prison under the ADA. Rather, prison authorities still
maintain a great deal of discretion in running their penal institutions,
and such discretion normally outweighs any interest that any
individual prisoner may have in remaining housed in a particular
prison. See Olim v. Wakinekona, 461 U.S. 238, 245, 103 S. Ct. 1741,
1745, 75 L. Ed. 2d 813 (1983) (prisoners have no right to be
incarcerated in any particular prison within a state); Ellard v. Alabama
Bd. of Pardons and Paroles, 824 F.2d 937, 941–42 (11th Cir. 1987).
However, in the context of the ADA, a prisoner's transfer from or to a
particular prison may become relevant when prison officials attempt
to determine what constitutes a “reasonable” accommodation.
Id. While the Plaintiff may have a difficult time ultimately obtaining the relief he
seeks, whether the prison’s interests outweigh the Plaintiff’s is not appropriate for
resolution on the pleadings.
As to the fourth issue, the court held that the Plaintiff merely disagreed with
the medical treatment provided by his doctors, and that an ADA claim may not be
based on disagreement with medical treatment decisions. In fact, according to the
Complaint, the Plaintiff’s dermatologist ordered him to stay out of the sun, and
prison officials decided that the Plaintiff could not be accommodated in this way
for security reasons. After this determination was made, the prison’s medical
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personnel—none of whom is a dermatologist—prescribed an alternative remedy:
sun block, a hat, and long sleeves. The Plaintiff successfully alleges more than the
mere disagreement with his medical treatment. He seeks the treatment
recommended by his dermatologist. While the fact-finder may ultimately
determine that sun block, a hat, and long sleeves sufficiently accommodate the
Plaintiff’s condition, the failure of the prison to give the Plaintiff the treatment
prescribed by his dermatologist is sufficient for the Plaintiff to plead a prima facie
ADA claim.
Finally, we turn to the Defendants’ contention that we can affirm on a basis
not considered by the district court. According to the Defendants, the Plaintiff
failed to allege a prima facie ADA claim because he did not allege that he was
excluded or denied participation in programs or activities by reason of his
disability. See 42 U.S.C. § 12132. In short, the Defendants contend that it is the
Plaintiff’s decision not to go outside—and not his disability—that exclude him
from the prison’s programs and activities. According to the Complaint, the
Plaintiff’s dermatologist diagnosed him with a pre-cancerous skin condition and
ordered him to stay out of the sun. It is certainly true that the Plaintiff could ignore
his diagnosis and go outside in the sun anyway. However, we decline the
Defendants’ invitation to hold that his failure to do so precludes him from pleading
a prima facie ADA claim.
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For the foregoing reasons, the judgment of the district court is reversed as to
the Plaintiff’s Count 1 ADA claim against the Florida Department of Corrections
and the Secretary of the Florida Department of Corrections. The judgment is
affirmed in all other respects. We remand for further proceedings.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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