Donald Johnson v. Ronald Neiman

United States Court of Appeals
For the Eighth Circuit
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No. 11-3281
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Donald E. Johnson, also known as Donald E. Cooley

lllllllllllllllllllll Plaintiff - Appellant

United States of America

lllllllllllllllllllllIntervenor

v.

Ronald C. Neiman, Constituent Services Officer, Personal Capacity, also known
as Chris Neiman; Lois Cella, Nurse, CMS, Personal Capacity; Brenda Burlbow,
Nurse, CMS, Farmington Correctional Center, Personal Capacity; Gary H.
Campbell, Doctor, CMS, Farmington Correctional Center, Personal Capacity;
Beverly Morrison, Doctor, CMS, Farmington Correctional Center, Personal
Capacity; Allen Luebbers, Warden, Farmington Correctional Center, Personal
Capacity; Joe Sampson, Warden, Farmington Correctional Center, Personal
Capacity; James Crump; Leslie Semar, Caseworker, Farmington Correctional
Center, Personal Capacity; Carlos Sampson, Caseworker, Farmington Correctional
Center, Personal Capacity; Julie Motley, Therapist, Director of MOSOP,
Farmington Correctional Center, Personal Capacity; Herb Yelverton, Therapist,
MOSOP, Farmington Correctional Center, Personal Capacity; Elizabeth Conley,
Nurse, CMS, Personal Capacity; Michael Sands, Doctor, CMS, Personal Capacity;
Jewell Cofield, Doctor, CMS, Personal Capacity; Larry Crawford, Director,
Missouri Department of Corrections, Personal Capacity; George Lombardi,
Director, Missouri Department of Corrections, Personal Capacity; Missouri
Department of Corrections; Correctional Medical Services; Patrick Kosanke,
Correctional Officer, Farmington Correctional Center, Personal Capacity; Ed
Courtney, Correctional Officer, Farmington Correctional Center, Personal
Capacity; Robby Skaggs, Correctional Officer, Farmington Correctional Center,
Personal Capacity

lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 30, 2013
Filed: May 6, 2013
[Unpublished]
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Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.

State inmate Donald E. Johnson appeals the district court’s1 adverse grant of
summary judgment in his action under 42 U.S.C. § 1983 and Title II of the Americans
with Disabilities Act (ADA). Johnson’s claims arose during his incarceration at
Farmington Correctional Center and were based on allegations concerning treatment
for chronic pain and limitations resulting from his pre-existing injuries, his ability to
participate physically in the Missouri Sex Offender Program (MoSOP)–from which
he was terminated during Phase II of the program–and his access to the law library.
The United States, as Intervenor, challenges the district court’s analysis in support of
its determination that the Missouri Department of Corrections (MDOC) was entitled
to sovereign immunity on the ADA Title II claim. Specifically, the United States
argues that remand is warranted because under United States v. Georgia, 546 U.S.
151 (2006), the district court was required, before determining whether ADA Title
II validly abrogates MDOC’s sovereign immunity, to determine whether there was
sufficient evidence to survive summary judgment on the Title II claim, and the court
erred by not making such a determination. See Bowers v. Nat’l Collegiate Athletic

1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

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Ass’n, 475 F.3d 524, 552-53 (3d Cir. 2007) (under Georgia, court must (1) identify
which aspects of state’s alleged conduct violated Title II; (2) identify to what extent
misconduct also violated Fourteenth Amendment; and (3) insofar as misconduct
violated Title II but not Fourteenth Amendment, determine whether Congress’s
purported abrogation of sovereign immunity as to that class of conduct is nevertheless
valid; court was thus required in first instance to determine whether any aspect of
defendant’s alleged conduct formed basis for Title II claim).

Upon de novo review of the record, see Schoelch v. Mitchell, 625 F.3d 1041,
1045-46 (8th Cir. 2010), and careful consideration of the briefed issues that are
properly before us, we affirm for the following reasons. First, we conclude that there
were no trialworthy issues on whether Johnson was denied necessary treatment,
including medical equipment or activity restrictions, for his chronic pain or
limitations from pre-existing injuries; was forced to participate in activities that were
beyond his physical capabilities; or was prescribed medication with knowledge that
it would–or likely would–cause adverse side effects. See Vaughn v. Gray, 557 F.3d
904, 908-09 (8th Cir. 2009) (inmate must demonstrate objectively serious medical
needs defendants knew of, but deliberately disregarded, i.e., that defendants’ mental
state was akin to criminal recklessness; it is not Eighth Amendment violation when
defendants, in exercising professional judgment, refuse to implement inmate’s
requested course of treatment); Meloy v. Bachmeier, 302 F.3d 845, 848-49 (8th Cir.
2002) (discussing supervisory liability; prison officials cannot substitute their
judgment for medical professional’s prescription). Second, the law-library claim was
properly dismissed for failure to exhaust administrative remedies and, in any event,
Johnson did not allege injury from the one-time denial of access to the law library.
See Cody v. Weber, 256 F.3d 764, 769-70 (8th Cir. 2001) (discussing actual-injury
requirement). Third, because Johnson did not establish a underlying constitutional
violation, his related conspiracy claims must also fail. See Novotny v. Tripp County,
S.D., 664 F.3d 1173, 1180 (8th Cir. 2011).

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 Fourth, as to the ADA Title II claims against Correctional Medical Services
(CMS) and Mental Health Management (MHM) and the individual defendants in their
personal capacities, we agree with the district court that CMS and MHM are not
“public entities” covered by Title II, see Edison v. Douberly, 604 F.3d 1307, 1310
(11th Cir. 2010); and that individuals are not subject to liability under Title II, see
Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (en banc).

Finally, we need not address whether the district court properly determined that
MDOC was entitled to sovereign immunity on the ADA Title II claim. This is
because there was insufficient evidence in the record to support the Title II claims.
See Schoelch, 625 F.3d at 1045-46 (summary judgment may be affirmed on any basis
supported by record); Buchanan v. Maine, 469 F.3d 158, 172-73 (1st Cir. 2006)
(court should not reach Eleventh Amendment immunity issue if summary judgment
record established no Title II claim against State); cf. Hale v. King, 642 F.3d 492, 498
(5th Cir. 2011) (per curiam) (declining to decide whether Georgia prohibits court
from addressing validity of ADA Title II’s abrogation of immunity without first
deciding that claimant’s allegations actually state claim for relief under Title II,
because appellate court was well suited to apply Fed. R. Civ. P. 12(b)(6) standard to
allegations in support of Title II claims). Specifically, there was no material evidence
showing that Johnson required accommodations or medical equipment in addition to
what he was already receiving, so as to permit his meaningful participation in Phase
II of MoSOP, or that there was deliberate indifference to his need for such
accommodations or medical equipment; and Johnson did not rebut the evidence
showing that he was terminated from Phase II due to his poor motivation, progress,
and attendance. See Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir. 1999) (prima
facie case under ADA Title II); see also Meagley v. City of Little Rock, 639 F.3d 384,
387-89 (8th Cir. 2011) (to recover damages under ADA Title II, discriminatory intent
must be shown; deliberate indifference is appropriate standard for showing deliberate
discrimination). We thus find remand unwarranted. The district court is affirmed,
and we deny Johnson’s motion to strike and for sanctions.
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