Nunes v. Massachusetts Department of Correction

United States Court of Appeals
For the First Circuit
No. 13-2346
RICHARD NUNES; CARL COE; JOHN DOE; PETER POE; RICHARD ROE, on
behalf of themselves and others similarly situated,
Plaintiffs, Appellants,
v.
MASSACHUSETTS DEPARTMENT OF CORRECTION;
THOMAS GROBLEWSKI; MARK WAITKEVICH,
Defendants, Appellees,
UMASS CORRECTIONAL HEALTH; LEONARD MCGUIRE;
WARREN FERGUSON; JUDITH STEINBERG,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge.]
Before
Kayatta, Baldock,* and Selya,
Circuit Judges.
Joel H. Thompson, with whom Tatum A. Pritchard and
Prisoners' Legal Services were on brief, for appellants.
Tory A. Weigand, with whom James A. Bello and Morrison
Mahoney LLP were on brief, for appellee Thomas Groblewski.
Nancy Ankers White, Special Assistant Attorney General,
and Sheryl F. Grant on brief for appellees Massachusetts Department
of Corrections and Mark Waitkevich.
September 12, 2014
*
Of the Tenth Circuit, sitting by designation.
KAYATTA, Circuit Judge. Massachusetts prisons provide
inmates with semi-monthly or monthly supplies of some medications,
which the prisoners then store in their cells and take on their
own. Other medications are dispensed in single doses to prisoners,
to be ingested at the dispensing window. Five prisoners with HIV
challenge the decision of prison officials to dispense HIV
medication only in single doses at the dispensing window. The
plaintiffs claim violations of the Eighth and Fourteenth Amendments
to the United States Constitution, the Americans with Disabilities
Act, and the Rehabilitation Act. We affirm the district court's
grant of summary judgment against the plaintiffs on each of their
claims.
I. Background
Because the district court granted summary judgment, we
"describe the facts giving rise to this lawsuit in a light as
favorable to [the plaintiffs] as the record will reasonably allow."
Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145 (1st Cir.
2013).
The plaintiffs in this case are inmates in the
Massachusetts state prison system who suffer from HIV. They sue,
among others, the Massachusetts Department of Corrections, which
administers the state's prisons. Because it makes no difference to
our analysis, we refer to the department as if it were the sole
-2-
defendant and the sole entity responsible for the state's acts at
issue here.
This case arose when the department changed the manner by
which inmates receive medication for HIV. Prior to the change,
many inmates could receive their HIV medication through the "Keep
on Person" program, which we will refer to as the "KOP program."
When receiving medication through the program, inmates pick up
packages of medicine once or twice a month, then store the medicine
in their cells and take it on their own initiative. [App. at 66.]
In contrast, HIV medication is now available only through the
"daily med line," where inmates report for each dose to a
dispensing window, then ingest the medication at the window while
prison staff observe. [App. at 65.] Both the daily med line and
the KOP program are common ways for inmates to receive medications
in Massachusetts prisons, depending on what medication they are
receiving and whether they satisfy various eligibility
requirements.
A. The Department's Decision to Remove HIV Medication from the
Program
The department first announced its decision to remove HIV
medication from the program in August 2008 and implemented the
change in February 2009. [App. at 77, 83-84.] The parties agree
that the department's primary aim in initiating the change in
dispensing practices for HIV medication was to save money.
Medication for HIV is expensive, occupying more than 40 percent of
-3-
the department's pharmacy budget, although fewer than 3 percent of
the prisoners have HIV. [App. at 266.] Faced with budget cuts in
2008, the department examined its expenses and determined that some
of the cost of HIV medications arose from "wasted" medication:
medication that was dispensed to an inmate through the KOP program,
but not used by that inmate while in prison. [App. at 269-271.]
Such medication cannot be reused because it has left the hands of
licensed medical staff. [App. at 270.] Medication scheduled to be
dispensed through the daily med line, however, can be reused if not
picked up by the patient. [App. at 270-71.] The department
therefore concluded that it could reduce waste and save money by
distributing all HIV medication through the daily med line. [ App.
at 271.]
The parties agree that there are several sources of
wasted HIV medication, but disagree on their relative importance,
and on whether the department chose the best approach to mitigate
waste. Waste can arise when a prisoner simply chooses not to take
medication that he has received through the KOP program. [App. at
73.] It can also arise when an inmate is given too much medication
when he picks up his refills. [App. at 275-76.] In addition, waste
can result when an inmate is released from prison, is transferred
-4-
within the system, dies, or has his treatment regimen changed.1
[App. at 73, 274-76.]
When the department announced the change in August 2008,
it received complaints from medical staffers concerned about the
effect on inmates with HIV. Two doctors who treated inmates with
HIV, David Stone and James Quirk, objected to the change and have
continued to oppose it. Their chief concern has been that some
inmates will be unwilling or unable to take their medication
consistently due to the time and effort required to wait at the
dispensing window, which some inmates would have to do more than
once per day. [App. at 281-83, 97.] The parties agree that it is
very important for HIV patients to be "adherent" (or "compliant"),
meaning that they take their medication consistently as prescribed.
When a patient misses doses, the virus can develop resistance to
the medication, for which there will be few alternatives. [See,
e.g., App. at 255.] Stone and Quirk also worried that the change
would exacerbate the side effects of HIV medication, as inmates
would have less flexibility in timing their doses to coincide with
meals or sleep. [See, e.g., App. at 1408-09.]
As a result of these complaints, the department initially
put the change on hold to study its potential impacts. The
department then reviewed data indicating that 93 percent of HIV-
1
The record does not illuminate exactly why waste can arise
in each of these scenarios, but the parties agree that such waste
occurs. [App. at 73.]
-5-
positive inmates already reported to the daily med line for other
medications. The department also considered data indicating that
44 percent of inmates with HIV requested refills of their HIV
medication late or not at all under the KOP program. Given the
procedural posture of the case, we do not assume that this
particular data was accurate. Rather, because the plaintiffs do
not cite any evidence to the contrary, we assume that the
department believed the data to be accurate as a product of a
sincere effort to gauge the effects of the policy change. After
reviewing this information, the department decided to adopt the
change.
B. The Effects of the Policy Change
Since the new policy was implemented, the department has
monitored its effects. It has collected data showing that patient
outcomes have held steady or improved since the change. The
plaintiffs do not dispute the raw numbers collected by the
department, though the parties differ on their significance.
A common measure of health for HIV patients is "viral
load." Doctors aim to achieve an "undetectable viral load,"
meaning that the patient has such a low level of HIV in his blood
that standard tests cannot detect it. In the last reporting period
before the policy change, 83 percent of inmates with HIV had
undetectable viral loads. That rate rose to 87 percent immediately
after the change and has been documented most recently at
-6-
95 percent. While accepting this data as accurate, the plaintiffs
contend that it cannot be used to establish that the policy has
actually improved health outcomes because the improvement in the
first six months of the new policy was not large enough to be
statistically significant and the eventual larger improvement may
be the product of other factors. [App. at 365-66.]
The department has also monitored late refills as a
measure of nonadherence.2 Late refills have remained more or less
steady since before the policy change, starting at 30 percent in
December 2008, and fluctuating between 25 percent and 35 percent
(with one outlier month at 39 percent) after the change. [App. at
2020, 2036.] The plaintiffs accept these figures as accurate, and
admit that late refills are a "proxy" that "potentially reflect
nonadherence." [App. at 306-07.] They nevertheless argue that
current adherence falls below acceptable standards, without
offering any evidence that returning HIV medication to the KOP
program would increase adherence.3 [App. at 364-65.]
2
Medications, whether delivered through the daily med line or
the KOP program, are ordered from a pharmacy on behalf of each
inmate receiving them. When an inmate's supply is close to running
out, the prison orders a refill on behalf of that patient. The
prison can then track the rate at which these refill requests occur
behind schedule. [App. at 305-06.]
3
As a matter of logic, an examination of late refills would
seem more prone to overstate adherence for medication provided
through the KOP program, where prisoners could return for more
medication even without finishing their last pack, than for
medication provided through the daily med line, where prison staff
observe all doses.
-7-
The plaintiffs offer no alternative quantitative metric
for assessing the health of inmates with HIV, for determining their
adherence, or for otherwise gauging the effects of the policy
change. In sum, the undisputed data that exists provides credible
support for the department to conclude that the dispensing policy
contributed to a material improvement in the health of HIV
prisoners as a group, and provides no basis to claim that the
change worsened the health of that group of prisoners. It is also
undisputed that the change led to significant cost savings. [App.
at 293, 317-319.]
C. The Plaintiffs' Situations
The plaintiffs present relatively little evidence
regarding their own situations, focusing instead on the broader
population of prisoners with HIV. No medical professional or
expert testified specifically about any plaintiff's situation. In
describing the consequences of the policy change for the
plaintiffs, we can therefore refer only to the plaintiffs' own
testimony, along with written complaints they submitted to the
prison.
Plaintiff Richard Nunes has not taken any HIV medication
since the change, contending that he cannot wait on the daily med
line. He cites a painful lower back condition that makes it
difficult for him to move or stand, chronic diarrhea, and other
sicknesses. [App. at 2351.] Nunes requested as an accommodation
-8-
of his condition that his medication be reinstated to the program.
The department instead offered several alternative accommodations:
it would provide Nunes with a rolling walker, and allow him to use
bathroom facilities and sit on a bench while waiting on line
without losing his place. Alternatively, taking his claims
regarding the severity of his condition at face value, the
department offered to admit him to the medical unit to receive
medication for as long as he is too ill to go to the dispensing
window. [App. at 2224-26.] Nunes has not accepted these
accommodations, and now maintains that he will not attend the daily
med line no matter what the department does to accommodate him.
[App. at 113.]
The other four plaintiffs have attended the daily med
line consistently since the policy change. Three have complained
that, in the course of attending the line, their HIV status has
been disclosed to other inmates. [App. at 2457, 2487, 2510.]
These complaints involve inadvertent disclosures by medical staff,
occurring sporadically, and sometimes unconnected to the
department's policy change. For example, the plaintiffs complain
about a poster in the medical unit identifying HIV medications, but
they admit that the poster has since been taken down. [App. at
140.]
Plaintiff Carl Coe has also complained about side effects
arising from not being able to take medication before bed. [App. at
-9-
2405.] His treatment regimen has since been changed, in part to
limit side effects. [App. at 1029, 2405.] Plaintiff John Doe has
complained about having to wait in line for a long time and having
his medication unavailable there on two consecutive days, while
plaintiff Peter Poe has complained that on one occasion he was told
to leave the med line and return later. [App. at 131, 2501.] The
record does not demonstrate that the plaintiffs experienced such
incidents any more than a handful of times in the four and a half
years between the policy change and the district court's decision.
Nor, with the possible exception of Nunes, does any plaintiff offer
competent evidence that his viral loads or health worsened
materially during that period.
D. Procedural History
The plaintiffs initiated this case in November 2010,
seeking to enjoin the policy change and restore HIV medications to
the KOP program. They do not seek damages. Two years later, after
discovery, the defendants moved for summary judgment. The district
court granted the motion, and the plaintiffs appealed.
II. Standard of Review
We consider de novo the question whether summary judgment
is appropriate, training our attention not on the district court's
opinion, but rather on whether the record entitles the moving
party--here the defendants--to judgment as a matter of law.
Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).
-10-
See also Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145
(1st Cir. 2013). Under Federal Rule of Civil Procedure 56(a),
"[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Generally speaking,
a party cannot raise a genuine dispute merely "by relying on the
hope that the jury will not trust the credibility of the witness,"
but must instead present "some affirmative evidence" on the point,
except perhaps where the testimony is "inherently unbelievable."
McGrath v. Tavares, 757 F.3d 20, 28 n.13 (1st Cir. 2014).
III. Analysis
A. The Eighth Amendment
The plaintiffs claim that the change in the method of
dispensing HIV medications violated their right to be free of
"cruel and unusual punishment[]" under the Eighth Amendment. To
prove an Eighth Amendment violation, the plaintiffs must first show
that they faced an "objectively intolerable" risk of harm resulting
from the department's decision to make HIV medications available
only through the daily med line. Lakin v. Barnhart, 2014 WL
3036303 (1st Cir. July 7, 2014) (quoting Farmer v. Brennan, 511
U.S. 825, 846 (1994)). In cases based on a prisoner's medical
treatment, a prisoner must show that the medical care provided is
not "adequate," as measured against "prudent professional
standards." United States v. DeCologero, 821 F.2d 39, 43 (1st Cir.
-11-
1987); see also Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484,
497 (1st Cir. 2011).
A plaintiff must then show that state officials "kn[ew]
of and disregard[ed]" the risk of harm. Farmer, 511 U.S. at 837.
To satisfy this "deliberate indifference" requirement, a plaintiff
must show that state officials were "aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and . . . dr[ew] the inference." Id.
The plaintiffs' evidence would not allow a reasonable
jury to find that they had satisfied either requirement. As to the
objective requirement, the plaintiffs rely primarily on the
testimony of Stone and Quirk, the two doctors who work in the
prison system, and on the affidavit of an outside expert, Dr. David
Bangsberg. Yet, none of these witnesses testified specifically
about the plaintiffs' situations. Bangsberg did not examine the
plaintiffs, review their medical records, or offer any analysis of
their particular situations. [App. at 362-66.] Indeed, he did not
conclude that the department had provided inadequate medical care
to any inmate, although he identified, in the abstract, certain
practices as "substandard." [App. at 362, 366.] Meanwhile, the
testimony of Stone and Quirk establishes, at best, that certain
inmates--not identified as any of the plaintiffs--have suffered
problems resulting from the policy change, but the testimony does
-12-
not attempt to measure these problems against medical standards.
[See, e.g., App. at 1420, 1455.]
Even viewed in the light most favorable to the
plaintiffs, none of this testimony establishes that any plaintiff
has actually received medical care falling below professional
standards. Nor does the remaining evidence make possible such a
finding. The plaintiffs present their own written complaints, but
these complaints are unaccompanied by medical analysis and document
only occasional medical problems arising from the policy change:
temporary side effects for one plaintiff, and a handful of missed
doses for two others.4 As to the statistics presented by the
parties, they further undermine the plaintiffs' case: on the whole,
more patients have undetectable viral loads since the change, and
late refills have remained steady. Even fully accepting the
plaintiffs' criticisms of the data, one would be bound to conclude
that the policy change did not make outcomes any worse, even if it
did not make them any better.
The plaintiffs' problems only multiply on the issue of
deliberate indifference. As demonstrated above, the record is so
devoid of evidence of actual medical risk to the plaintiffs as to
make it unreasonable to conclude that the department knowingly
4
Although another plaintiff, Nunes, has not taken his
medication since the policy change, we explain below in part C that
the prison has made reasonable efforts to accommodate the problems
that he says prevent him from doing so.
-13-
disregarded such a risk. Even if the plaintiffs' evidence raised
a possibility of harm to the group of HIV-positive prisoners as a
whole, that possibility is so uncertain and unsupported by before-
and-after evidence as to preclude a reasonable factfinder from
inferring that the department is now knowingly disregarding a harm
to these prisoners. On the contrary, the undisputed facts show
that the department engaged in facially reasonable efforts, well
before this litigation commenced, to assess the effects of a policy
change, and then concluded, with ample basis, that the change would
not harm inmates.
B. The Right to Avoid Disclosure of Personal Information
Claiming that the policy change exposed them to
disclosures of their HIV status to other inmates, the plaintiffs
assert a violation of a right to privacy under the Fourteenth
Amendment. The Supreme Court has implied that the Constitution
might protect in some circumstances "the individual interest in
avoiding disclosure of personal matters" from government
infringement. Whalen v. Roe 429 U.S. 589, 599 (1977). But cf.
National Aeronautics & Space Admin. v. Nelson, 131 S. Ct. 746, 751
(2011) (assuming, but declining to confirm, "that the Constitution
protects a privacy right of the sort mentioned in Whalen"). For
those in prison, however, any right to privacy is inevitably
diminished. For example, prison officials may search an inmate's
cell without regard to the Fourth Amendment prohibition on
-14-
unreasonable searches. See Hudson v. Palmer, 468 U.S. 517, 526
(1984). See also Sanchez v. Pereira-Castillo, 590 F.3d 31, 42-44
(1st Cir. 2009). Still, while we have never considered the issue,
three other circuits have found that prisoners have at least a
limited constitutional right against gratuitous disclosures of
medical information.5
We need not decide in this case whether prisoners have a
constitutional right to keep medical information private. Rather,
because the inadvertent and sporadic disclosures here occurred in
the context of a reasonable government policy, the plaintiffs
cannot prevail even if the department infringed on a privacy
interest protected by the Constitution. In reaching this
conclusion, we rely on a recent Supreme Court case rejecting a
privacy claim brought by applicants for employment with government
contractors. See Nelson, 131 S. Ct. at 759-61. There, applying
the same precedents relied upon by the plaintiffs here, the Court
found no basis to enjoin a policy that required collecting
sensitive medical information about the applicants unless the
plaintiffs established that the policy was not "reasonable." See
id. At least the same bar should apply when plaintiffs challenge
5
See Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999)
(holding that "gratuitous disclosure of an inmate's confidential
medical information as humor or gossip" violates the Constitution);
Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001) (following Powell);
Moore v. Prevo, 379 F. App'x 425, 428 (6th Cir. 2010) (following
Powell and Delie). Both Delie and Moore were accompanied by
dissents.
-15-
the government's administration of prisons, where state officials
face problems "not susceptible to easy solutions" and therefore
receive "wide-ranging deference." Bell v. Wolfish, 441 U.S. 520,
547 (1979).
Our preceding analysis of the Eighth Amendment claim
demonstrates that the prison's policy was not unreasonable, and
that the injunction sought by the plaintiffs would threaten to
eliminate significant cost savings while quite possibly posing a
risk that gains in overall health would also be lost. The
plaintiffs retort that the department could have adopted a narrower
policy that would have substantially matched the benefits of its
current policy while better protecting their privacy:
individualized determinations of how medicine is distributed to
each prisoner. [Reply Br. at 26.] Yet, the Supreme Court in
Nelson squarely rejected the claim that the government must employ
the "least restrictive means of furthering its interest" in order
to avoid disclosures of personal information. 131 S. Ct. at 761.
On these facts, the use of an otherwise reasonable and customary
dispensing practice does not violate any constitutional privacy
rights merely because other prisoners may infer what medications a
prisoner is taking and what disease he suffers from.
C. Americans with Disabilities Act and Rehabilitation Act
In addition to their constitutional claims, the
plaintiffs press statutory claims based on the Americans with
-16-
Disabilities Act ("ADA"), 42 U.S.C. § 12132, and the Rehabilitation
Act, 29 U.S.C. § 794. The parties agree that we need make no
distinction between the two statutes for purposes of our analysis
in this case. [BB at 18 n. 7; RB at 30 n. 9.] Both statutes
provide, in nearly identical language, 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." 42 U.S.C.
§ 12132; see also 29 U.S.C. § 794(a). The plaintiffs correctly
argue that their condition qualifies as a disability under the
statutes. See 42 U.S.C.A. § 12102(2)(B).
A plaintiff can press several different types of claims
of disability discrimination. First, a plaintiff can assert
disparate treatment on account of disability, i.e., that the
disability actually motivated the defendant's challenged adverse
conduct. See Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53 (2003).
Such claims are governed by the same analytic framework governing
claims of racial discrimination under Title VII of the Civil Rights
Act of 1964. Id. at 50-52; see also Regional Econ. Cmty. Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir.
2002). Alternatively, in an appropriate case a plaintiff can claim
that a government policy, though neutral on its face, "fall[s] more
harshly on one group than another and cannot be justified by
-17-
business necessity." See Raytheon Co., 540 U.S. at 52 (internal
quotation marks omitted); 28 C.F.R. § 35.130(b)(3)(I) (establishing
that the ADA prohibits public entities from adopting policies that
"have the effect of subjecting qualified individuals with
disabilities to discrimination on the basis of disability").
Finally, a plaintiff can pursue a third path, claiming that a
public entity has refused to affirmatively accommodate his or her
disability where such accommodation was needed to provide
"meaningful access to a public service."6 Henrietta D. v.
Bloomberg, 331 F.3d 261, 273-76 (2d Cir. 2003). Although such
claims can be seen as bearing many of the indicia of disparate
impact or disparate treatment,7 a plaintiff pursuing such a claim
need not directly address and satisfy the elements or methods for
proving such theories. See id. at 275.
6
The regulations under the relevant portion of the ADA refer
to "reasonable modification," 28 C.F.R. § 35.130(b)(7), while the
coordinating regulations under the Rehabilitation Act use the term
"reasonable accommodation," 28 C.F.R. § 41.53, but there is no
material difference between the terms. See Wong v. Regents of
Univ. of California, 192 F.3d 807, 816 n.26 (9th Cir. 1999).
7
When a disabled person is denied a reasonable accommodation,
that person lacks opportunities possessed by similar non-disabled
people on account of disability. Such denial can often be seen as
creating a disparate impact, which under Title VII routinely
involves the unjustified failure to avoid perpetuating a burden
arising from history or tradition. Similarly, a denial of
reasonable accommodation can resemble disparate treatment if some
discriminatory animus is involved. For example, a height test may
create an adverse impact on women in the same way that a mobility
test may create an adverse impact on people with certain
disabilities, absent accommodation.
-18-
Here, four of the plaintiffs pursue only a claim of
disparate treatment. They argue that the department removed their
medications from the KOP program simply because they have HIV,
while allowing prisoners with other illnesses to continue utilizing
it. These four plaintiffs expressly disavow any claim for
reasonable accommodation. [BB at 21.] They also make no mention
of a disparate impact theory.
While these plaintiffs assert disparate treatment in the
form of "exclusion . . . from the KOP Program," that assertion is
not literally correct. [Reply Br. 5.] They can still use the
program to receive the same medications that other prisoners can
receive through the program. The plaintiffs, of course, need to
access HIV medications that other prisoners do not need. But they
have not been singled out in this respect: many other medications
are also excluded from the program. Moreover, the daily med line
provides full access to their HIV medication. Although the
plaintiffs regard this as a more burdensome means of access, we see
no evidence of any intent by the department to impose that burden
on the plaintiffs because they have HIV. See Raytheon Co., 540
U.S. at 52 ("Liability in a disparate-treatment case [under the
ADA] depends on whether the protected trait actually motivated the
employer's decision." (internal quotation marks, alterations
omitted)). Rather, the prison has offered non-discriminatory
-19-
grounds for its decision, the reasonableness of which the
plaintiffs have been unable to effectively challenge.
In sum, even viewed favorably to the plaintiffs, the
record shows that the department provides meaningful access to HIV
medications through the daily med line; and its decision to provide
access in that manner is driven by cost savings backed up by data
suggesting a positive, or at worst neutral, impact on the health of
the HIV-positive prison population. On such a record, no jury
could find for plaintiffs on their disparate treatment claim.
We next turn to the claim brought by one plaintiff,
Richard Nunes, for denial of reasonable accommodation. Nunes
claims that he cannot attend the daily med line due to back pain,
chronic diarrhea, and other illness. He contends that he is unable
to do so even though the department has offered several
accommodations: the use of a rolling walker and the ability to sit
on a bench or use the bathroom while maintaining his place in line.
Nunes offered no medical evidence supporting this claimed
inability. The absence of such evidence is especially pertinent
because the record is undisputed that Nunes regularly walks to and
from the prison cafeteria and engages in exercise, [App. at 155-56]
and that he recently had jobs walking with a blind prisoner and
cleaning corridors [App. at 153-154]. In the event Nunes
nevertheless becomes so ill that he cannot leave his cell, the
department has extended a standing offer to move him to the medical
-20-
unit where he can receive his medications daily in accord with
normal department procedures applicable to all seriously ill
inmates.8 His only rejoinder is that he does not actually get
quite ill enough to need the medical unit, and he would not want to
move to the unit because he would lose his current cell and not
have as much access to his property. [BB at 41-42.]
But Nunes has provided no evidence that there even
exists, much less that he lives within, a medical no man's land
between being unable to go to the daily med line and warranting
transfer to the medical unit. On such a record, no reasonable
factfinder could find the department's accommodations were not a
reasonable means of providing Nunes with meaningful access to his
medication. The statutes entitle Nunes to reasonable
accommodations, not to optimal ones finely tuned to his
preferences. See J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d
8
The plaintiffs' brief implies that Nunes was once
disciplined for attempting to use the accommodation. [BB at 42.]
Nunes's affidavit, however, makes clear that he was actually
disciplined for missing a scheduled medical appointment, an
entirely different matter. [App. at 2253-2257.]
-21-
60, 71-72 (2d Cir. 2000); Corrigan v. Perry, 139 F.3d 888, *8-9
(4th Cir. 1998) (unpublished).9
IV. Conclusion
Although the plaintiffs have raised questions about the
wisdom of the department's policies, they have not produced
adequate evidence of any constitutional or statutory violation.
Consequently, and for the reasons outlined above, we affirm the
grant of summary judgment to the defendants on all claims.
So ordered.
9
Like many cases applying the employment prong of the ADA,
see Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 344-
45 (7th Cir. 1996), Corrigan holds that under the Rehabilitation
Act an employer need not provide the plaintiff's requested
accommodation so long as it provides some reasonable accommodation.
The same logic applies here. Cf. Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 68 (1986) (reaching the same conclusion in
analyzing employers' obligation to reasonably accommodate religious
practices under Title VII).
-22-