Norman v. Texas Department of Criminal Justice, Institution Division

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 17, 2008
No. 07-41090
Summary Calendar Charles R. Fulbruge III
Clerk
JERMAINE DEMOND NORMAN
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:06-CV-403
Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jermaine Demond Norman, Texas prisoner # 1160833, appeals the district
court’s order granting the defendant Texas Department of Criminal Justice’s
(TDCJ) motion for summary judgment and dismissing Norman’s complaint
against TDCJ asserting claims for damages under the American with
Disabilities Act (ADA) and the Rehabilitation Act (RA).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-41090
In 1987, the Social Security Administration classified Norman as disabled
due to psychotic disorders. In 2004, Norman was injured when he tripped on
a crack at the prison basketball court in Tennessee Colony, Texas. Through a
committee created by the state legislature, the TDCJ contracts out its medical
services to the University of Texas Medical Branch and the Texas Tech
University Health Sciences Center. Allegedly due to a delay in medical
treatment, Norman suffered permanent nerve damage to his leg.
Approximately four and a half months after the initial injury, Norman
underwent surgery on his leg. Norman was required to use crutches thereafter,
and he claims that he was further endangered when he was forced to maintain
his crutches within narrow designated traffic lanes painted in the prison
hallways. Additionally, some of Norman’s personal property was destroyed
after prison officials refused to grant him a “medical box,” which would have
allowed him to store his personal items at ground level, in lieu of a standard-
issue “property box,” which Norman claims was too high for him to reach with
his injured leg. Norman asserts that these were discriminatory acts leveled
against him due to his mental and physical disabilities.
Summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). “[T]he party moving for summary
judgment must demonstrate the absence of a genuine issue of material fact, but
need not negate the elements of the nonmovant's case.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotation marks
and citation omitted). The burden then shifts to the nonmovant to set forth
specific facts showing the existence of a genuine issue for trial. FED. R. CIV P.
56(e). The nonmovant cannot satisfy his summary judgment burden with
conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence. Little, 37 F.3d at 1075. “A plaintiff asserting a private cause of action
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No. 07-41090
for violations of the ADA or the RA may only recover compensatory damages
upon a showing of intentional discrimination.” Delano-Pyle v. Victoria County,
Texas, 302 F.3d 567, 574 (5th Cir. 2002).
Norman argues that the district court erred in finding that the TDCJ was
not responsible for the health care provided by university employees. The
affidavit of Dr. Kelley provided by the TDCJ in support of its motion for
summary judgment reflected that the medical employees acted as independent
contractors, that TDCJ was not responsible for the daily medical operations at
the prison, and that neither the TDCJ nor any of its employees had any
supervisory or enforcement authority over the university health care staff.
Norman has not provided any evidence to rebut that statement. However, even
assuming arguendo that the TDCJ was responsible for the acts of the university
medical staff, Norman has not provided any evidence showing that the alleged
delay in his medical care and the denial of a medical property box was the
result of intentional discrimination based on his mental or physical disability.
Thus, Norman has failed to show that he is entitled to relief for the acts and
omissions of the university employees under the ADA or the RA. See 42 U.S.C.
§ 12101(b)(1); 29 U.S.C. § 794.
Norman also argues that the TDCJ is liable under the ADA and RA
because it failed to maintain the basketball court on which Norman was
injured. Public entities are required to “maintain in operable working condition
those features of facilities and equipment that are required to be readily
accessible to and usable by persons with disabilities.” 28 C.F.R. § 35.133.
Norman has not provided any authority showing that a basketball court is a
required facility that must be readily accessible to disabled persons.
Furthermore, Norman has not shown that the TDCJ failed to maintain
the condition of the basketball court because the TDCJ intentionally
discriminated against mentally disabled inmates who would be using the court.
Nor has Norman provided evidence of disparate treatment by showing that non-
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No. 07-41090
disabled inmates had access to a properly maintained basketball court. The
district court did not err in granting the TDCJ’s motion for summary judgment
on this claim.
Norman argues that the lines painted in the hallway of the prison to
designate traffic paths reflect retaliation against disabled inmates. The TDCJ
provided an affidavit explaining the reason for the creation of the traffic path
and also stating that accommodations had been made for disabled inmates
using crutches and other devices. Norman has not rebutted this evidence and
has not produced any specific evidence showing that the lines are drawn for
discriminatory purposes or as form of retaliation against disabled inmates. The
district court did not err in granting the TDCJ’s motion for summary judgment
on this claim.
Norman also contends that the Parole Division of the TDCJ and the
Board of Pardons and Parole are one entity and, thus, the TDCJ is responsible
for the Board’s alleged incorrect assessment of Norman’s parole eligibility. The
Texas Board of Pardons and Parole is a separate entity from the Parole Division
of the Texas Department of Corrections, and each entity has different
responsibilities under the Government Code. TEX. GOVT. CODE ANN. § 491.001.
The Board of Pardons and Parole is responsible for determining which inmates
are to be released on parole or mandatory supervision. TEX. GOVT. CODE. ANN.
§ 508.0441(a)(1). The Pardons and Parole Division of the TDCJ is a different
entity that is responsible for supervising and reintegrating felons into society.
TEX. GOVT. CODE ANN. § 493.005. Because neither the TDCJ nor its parole
division has any responsibility for determining an inmate’s parole or mandatory
supervision eligibility or his right to be released, Norman has no cause of action
against the TDCJ for any parole or mandatory supervision release decisions.
Furthermore, Norman filed documents with his pleadings that reflect that
the Board of Parole’s decision on his parole eligibility had no connection to his
disability. The Notice of Parole Decisions filed by Norman with his complaint
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No. 07-41090
shows that he was denied parole on two occasions because of his prior criminal
history, his criminal gang activity, and his acts of violence and use of a weapon.
Norman has not come forth with any evidence showing that he was denied
parole based on his mental or physical disability. The district court properly
dismissed this claim as frivolous. 28 U.S.C. § 1915A(b)(1).
Norman challenges the constitutionality of TEX. GOVT. CODE ANN.
§ 508.149, which addresses the ineligibility of certain inmates for mandatory
supervision release. The proper party defendant is the party responsible for
enforcing the law. Motor Vehicle Bd. of Tex. Dept. of Transp. v. El Paso Indep.
Auto. Dealers Ass’n, 37 S.W.3d 538, 541-42 (Tex.App.–El Paso 2001). As
previously stated, the TDCJ is not responsible for determining whether a
prisoner is eligible for release. Again, Norman has not sued the proper party.
The district court properly granted summary judgment on this claim.
Norman argues that the district court erred in granting the TDCJ
absolute immunity. The district court acknowledged that, under United States
v. Georgia, 126 S. Ct. 877, 881-82 (2006), the TDCJ has no sovereign immunity
from the ADA and the RA claims. Thus, this argument has no merit.
Norman makes a conclusory argument that the judgment should be
reversed because the magistrate and the district court judge were biased and
should have been disqualified under 28 U.S.C. § 455. However, other than his
displeasure with the judges’ rulings, Norman provides no facts to substantiate
this argument. Adverse judicial rulings alone, however, almost never support
an allegation of bias under 28 U.S.C. § 455. See Liteky v. United States, 114 S.
Ct. 1147, 1157 (1994). Norman has not demonstrated that he was subject to
judicial bias.
Norman repeatedly claimed in the district court that prison officials
retaliated against him because he filed grievances against prison personnel.
Public officials are prohibited from retaliating against individuals who have
filed discrimination claims under the ADA. 28 C.F.R. § 35.134. The alleged
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No. 07-41090
acts of retaliation include taking his typewriter, his legal materials, and his
medically issued walking cane, and denying him a medical storage box. He has
not come forth with any evidence showing that these acts were committed in
retaliation for the grievances he filed claiming discrimination due to his mental
or physical disability. Thus, the district court did not err in granting the
TDCJ’s motion for summary judgment and dismissing the retaliation claim.
Norman argues that it was determined at the Spears1 hearing that he had
stated a cause of action of intentional and willful discrimination based on a
disability. He is apparently asserting that this determination is sufficient to
allow him to proceed with his claims in the district court. However, the mere
fact that the magistrate judge determined that Norman stated an arguable
claim under the ADA and the RA does not show that the district court erred in
granting the TDCJ’s summary judgment based on the evidence that the TDCJ
presented in support of its motion. Norman failed to come forth with any
specific facts showing that the defendant intentionally discriminated against
him based on his disability. FED. R. CIV. P. 56(e). Thus, Norman failed to show
that there was a genuine issue for trial on his claims under the ADA or the RA.
Norman argues that he was entitled to the appointment of counsel and
to attorney’s fees pursuant to 28 C.F.R. § 35.175. This regulation provides that
a prevailing party in an ADA action may be entitled to recover attorney’s fees
and litigation costs. However, the regulation does not state that all individuals
seeking relief under the ADA are entitled to appointed counsel. The district
court determined that Norman was not entitled to relief under the ADA and,
thus, he is not a prevailing party within the meaning of the regulation. Norman
has not shown that he was entitled to the appointment of counsel or fees under
this provision.
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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No. 07-41090
The district court did not err in granting the TDCJ’s motion for summary
judgment and in dismissing Norman’s claim concerning parole pursuant to
§ 1915A(b)(1).
AFFIRMED.
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