NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3305
_____________
KENN A. DEFREITAS,
Appellant,
v.
MONTGOMERY COUNTY CORRECTIONAL FACILITY;
MONTGOMERY COUNTY; CORRECTIONAL MEDICAL CARE INC;
NIKKI HOLLER, RN IN HER OFFICIAL AND INDIVIDUAL CAPACITY;
MARY WILLIAMS, IN HER OFFICIAL AND INDIVIDUAL CAPACITY;
MARGARET CARRILO, IN HER OFFICIAL AND INDIVIDUAL CAPACITY;
LIEUTENANT BATES, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
CORPORAL BURGER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
CAPTAIN PAUL CARBO, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
MAJOR ALBERT OTTINGER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
ASSISTANT WARDEN CATANIA, IN HIS OFFICIAL AND INDIVIDUAL
CAPACITY; ASSISTANT WARDEN JAMES A. FREY, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITY; CORPORAL PALMER, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITY; DEPUTY WARDEN DENNIS J. MOLYNEAUX, IN HIS
OFFICIAL AND INDIVIDUAL CAPACITY; CORRECTIONAL OFFICER GRIFFIN,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; CORRECTIONAL OFFICER
HITTEL, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; ABC COMPANIES 1-5;
JOHN DOES 1-5, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES; JANE
DOES 1-5, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES,
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-08-cv-5330)
District Judge: Hon. Lawrence F. Stengel
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 26, 2013
Before: JORDAN, GREENBERG and NYGAARD, Circuit Judges.
(Filed: May 7, 2013)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Kenn A. Defreitas appeals the grant of summary judgment by the United States
District Court for the Eastern District of Pennsylvania to Montgomery County,
Montgomery County Correctional Facility, and Correctional Medical Care, Inc.
(collectively, “Appellees”) on Defreitas’s claims for cruel and unusual punishment under
the Eighth Amendment and for discrimination under the Americans with Disabilities Act,
42 U.S.C. § 12101, et seq., and the Rehabilitation Act § 504, 29 U.S.C. § 794. For the
reasons that follow, we will affirm.
I. Background
Defreitas was arrested for simple assault and began his incarceration in pre-trial
detention at Montgomery County Correctional Facility (“MCCF”) on July 18, 2008. He
is an above-the-knee amputee, and, until December 2008, he used crutches to assist his
mobility. After that time, he had use of a prosthetic leg. During Defreitas’s
incarceration, MCCF housed him with the general population.1 He claims that on various
1
MCCF is a prison divided into general population and restrictive housing units,
such as maximum security and disciplinary segregation.
2
occasions Appellees denied him access to prison benefits and medical treatment and that
they otherwise discriminated against him because of his status as an amputee.
He first claims that Appellees improperly denied him access to various recreation
activities. MCCF offers to inmates in the general population “yard recreation, … gym
recreation, and … weight room recreation.” (App. at 261.) Defreitas used the yard and
weight room several times prior to September 14, 2008. On that day, however, MCCF
restricted him from participating in yard, gym, and weight room activities, explaining that
he was not permitted to bring his crutches into the yard because they could be used as
weapons or to manipulate the low hanging razor wire on the yard’s wall and thus breach
the security of the facility. In addition to that denial, Correctional Medical Care, Inc.’s
(“CMC”)2 Medical Director decided that Defreitas could not use the gym or weight room
because he used crutches for mobility.
In an effort to access the yard, gym, and weight room, Defreitas filed a grievance
form.3 An employee of CMC wrote in response, “[m]edical, per protocol, cannot allow
you gym or weight room. Yard is not our jurisdiction.” (App. at 1085.) Dissatisfied,
Defreitas filed a grievance appeal on September 25, 2008. At the grievance appeal
2
CMC is a private contractor that provided medical services at MCCF.
3
MCCF has an inmate grievance procedure, and Defreitas admits signing a form
on July 21, 2008, acknowledging receipt of the grievance procedure, and he further
admits having seen the grievance policy posted on the housing section wall. The
grievance procedure is a three-level process: at the first level, an inmate can bring a
concern verbally or by written request; at the second level, an inmate can initiate a formal
grievance using an inmate grievance form; if the inmate is not satisfied with the result, he
may proceed to the final level in which he can appeal using an inmate grievance appeal
form.
3
meeting, an MCCF officer explained the security concerns associated with the crutches
and offered to move Defreitas to the medical housing unit where he could have
wheelchair access to a yard. Defreitas rejected that offer because the medical unit
inmates had limited access to library materials and religious resources, and he insisted
that MCCF build a ramp to the general population yard so that he could access it by
wheel chair. MCCF declined the request, but agreed to have his condition reviewed by
the medical department. On October 8, 2008, MCCF explained that it would permit
Defreitas to go to the yard alone on his crutches every morning from 7:30 to 8:30 A.M.,
and that it would permit him to use the gym and weight room. From October 8 to
December 19, 2008, Defreitas made several visits to the yard and weight room with his
crutches.
Defreitas also complained that, despite his repeated requests, Appellees delayed
for five months his receiving a prosthetic leg. On July 22, 2008, during his intake at
MCCF, Defreitas discussed his request for a prosthetic leg, and he continued to discuss it
with CMC on August 12 and November 3, 2008. Until about six weeks before he
received his prosthesis, he did not submit a grievance form to have the matter considered
by Appellees. Instead, he privately contacted Peter Michener, who appears to be a third-
party prosthesis provider who had worked with Defreitas before in fitting a prosthetic leg,
in an attempt to obtain a prosthesis. Eventually, in early November 2008, Mr. Michener
was able to visit Defreitas in prison for a fitting, and, on December 19, 2008, he received
4
his prosthetic leg.4 After that, he was given access to the yard, gym, and weight room
without restrictions.
Defreitas had other complaints about Appellees’ alleged failure to accommodate
his disability. He contends that he was forced to hop from his cell to the day room to get
his meal tray because he could not use his crutches and carry the tray at the same time.
He says that he was subjected to ridicule by correctional officers, noting an incident
where an officer pushed his leg release button during a pat-down search.5 He also
contends that he slipped on numerous occasions due to the slippery condition of the
floors because he was housed next to showers. And he contends that those showers were
inadequately equipped for his use, so that he “twisted [his] shoulder a few times trying to
catch [him]self from hitting the ground.” (App. at 1284.) Defreitas never filed grievance
forms about those complaints but, despite that failure, and upon Defreitas’s request,
Appellees moved his housing location several times in an attempt to remedy his problems
with the allegedly slippery conditions. Lastly, he complains that he was forced to submit
numerous request forms to receive treatment for his medical conditions, though he filed
no grievances in that regard either.
On November 7, 2008, Defreitas filed a pro se complaint against Appellees and
certain individuals working in the prison (collectively, with Appellees, “Defendants”),
4
The record is unclear on whether Michener made the leg before Defreitas was
incarcerated or made it during his incarceration. In any event, that fact does not affect the
disposition of this case.
5
Appellees’ witnesses denied witnessing or participating in any ridicule of
Defreitas.
5
asserting claims related to his inability to go to the yard, gym, and weight room.6 On
August 6, 2009, after being released from prison, Defreitas, by that time represented by
counsel, filed an amended complaint alleging a violation of 42 U.S.C. § 1983 for cruel
and unusual punishment (Count 1); a violation of the Americans with Disabilities Act
(the “ADA”) and of § 504 of the Rehabilitation Act (the “RA”) (Count 2); retaliation
under § 1983 (Count 3); retaliation under the ADA and RA (Count 4); and intentional
infliction of emotional distress (Count 5). In response, Defendants filed motions to
dismiss, and the District Court dismissed Defreitas’s amended complaint against the
individual defendants, Counts 3, 4, and 5 as to all Defendants, and Count 2 as to CMC.
Thus, the two remaining causes of action were as follows: Count 1 (§ 1983 – cruel and
unusual punishment) against Montgomery County, MCCF, and CMC, and Count 2 (ADA
and RA claims) against Montgomery County and MCCF. Subsequently, the parties filed
motions for summary judgment.
The District Court concluded that Defreitas failed to exhaust his administrative
remedies concerning complaints about procuring his prosthesis, shower and housing
issues, denial of medical care, and officer harassment. The Court then held that there was
insufficient evidence to create a genuine dispute of material fact with respect to
6
Defreitas’s complaint is light on facts and formal causes of action. Construing it
liberally, we will assume that he alleged causes of action for violations of his Eighth and
Fourteenth Amendment rights, and discrimination under the Americans with Disabilities
Act and Rehabilitation Act. The parties argue in terms of the Eighth Amendment, but,
because Defreitas was both in pretrial detention and confined to MCCF after his
conviction, his claims are properly analyzed under both amendments. See Hubbard v.
Taylor, 538 F.3d 229, 231 (3d Cir. 2008) (providing that claims related to the conditions
of confinement for pretrial detention are analyzed under the Fourteenth Amendment).
6
Defreitas’s § 1983, ADA, and RA claims regarding the exhausted issues. Accordingly, it
entered an order denying Defreitas’s motion for summary judgment and granting
summary judgment to Appellees.
This timely appeal followed.
II. Discussion7
In his appeal, Defreitas argues that the District Court erred in concluding that he
failed to exhaust his administrative remedies for his claims, except as to those claims
relating to denial of use of the yard, gym, and weight room. Defreitas also argues that, on
the merits, the Court failed to view the evidence in the light most favorable to him and
that there was ample evidence to create a genuine dispute of material fact for each of his
claims. We disagree on all points.
A. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995 (“PLRA”) requires that, before bringing
claims under § 1983 or any other federal law, prisoners must first exhaust the
7
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. “Review of a district court’s decision to grant
a motion for summary judgment is plenary.” Liberty Lincoln-Mercury, Inc. v. Ford
Motor Co., 676 F.3d 318, 323 (3d Cir. 2012) (internal quotation marks omitted).
“[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ.
P. 56(c)) (internal quotation marks omitted). A factual dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the record, we must
construe all reasonable inferences in the light most favorable to the nonmoving party. Id.
at 255.
7
administrative remedies that are available. 42 U.S.C. § 1997e(a).8 We have stated that
prison grievance procedures are administrative remedies that must be exhausted under the
PLRA before bringing suit. Concepcion v. Morton, 306 F.3d 1347, 1348-49 (3d Cir.
2002). When presented with a complaint in which some claims have been exhausted
through administrative means but others have not, courts are to proceed only with the
claims that have been exhausted and dismiss those that have not been. See Jones v. Bock,
549 U.S. 199, 219-24 (2007) (explaining that PLRA requires claim-by-claim dismissal,
not dismissal of entire action when some claims are not exhausted).
Defreitas’s original complaint only alleged claims related to his access to the yard,
gym, and weight room, and there is no dispute that he exhausted his administrative
remedies for those claims, as he filed a formal grievance and completed the appeals
process. Defreitas later filed an amended complaint after he was released from custody,
and in that amended complaint he added § 1983, ADA, and RA claims for the poor
shower conditions, housing him near the showers, failure to procure his prosthetic leg,
requiring him to hop to receive his meals, failure to timely respond to his medical
requests, and prison officers making jokes about his leg. There is no dispute that
Defreitas did not complete the appeals process for any of those added claims. Despite
that failure, Defreitas argues that he was not required to file those grievances and exhaust
8
Specifically, that statute provides that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
8
his administrative remedies because he was no longer in prison when he filed his
amended complaint.
He is mistaken. As the District Court explained, we have held that the exhaustion
requirement will continue to apply, even after a prisoner has been released, when the
former prisoner amends a complaint filed while he was in prison. Ahmed v. Dragovich,
297 F.3d 201, 210 (3d Cir. 2002).9 Specifically, in Ahmed, we stated that, “[a]lthough
Ahmed would have been free of the strictures of the PLRA if he had filed a timely
complaint after his release from prison, he is bound by the PLRA because his suit was
filed on July 29, 1998, almost three years before he was released from prison. It follows
that the proffered amendments [to his complaint containing unexhausted claims] would
have been futile … .” Id. Put another way, a plaintiff’s status as a prisoner for purposes
of the PLRA is judged as of the time he files his original complaint. At that time,
Defreitas only complied with the exhaustion requirement with respect to his claims for
the yard, gym, and weight room. Accordingly, the District Court did not err in
concluding that he could only proceed with those exhausted claims,10 and summary
judgment in favor of Appellees was proper on the other claims.
9
Defreitas attempts to distinguish Ahmed and cites Prendergast v. Janecka, No.
00-3099, 2001 WL 793251, at *1 (E.D. Pa. July 10, 2001), for the proposition that the
“administrative exhaustion requirement does not apply because the amended complaint
was filed after plaintiff was released from prison and was no longer an inmate – even
though the original complaint was filed while he was in custody.” Ahmed’s holding is
clear, and inasmuch as it conflicts with Prendergast, that case does not remain
persuasive. Accordingly, Defreitas’s attempt to distinguish Ahmed is without merit.
10
Defreitas also alleges that he did exhaust his administrative remedies for his
claim related to his prosthesis. He points to evidence in the form of his personal journal
9
B. Section 1983 Claims
Defreitas next argues that the District Court erred in granting Appellees summary
judgment on his § 1983 claims under the Eighth Amendment for cruel and unusual
punishment. As noted above, the only claims that Defreitas exhausted were those related
to his denial of access to the yard, gym, and weight room. Therefore, we focus on only
those claims.
To bring a § 1983 claim against a local government or government entity
(including a private corporation, like CMC, that is alleged to be acting under color of
state law, see Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir.
2003)) for the actions of an employee of one of those entities, a plaintiff cannot rely upon
respondeat superior liability, but he must show that the entity had a policy or custom that
caused his deprivation of a constitutional right. Monell v. Dep’t. of Soc. Servs. of N.Y.,
436 U.S. 658, 694 (1978). “A policy is made when a decisionmaker possess[ing] final
authority to establish municipal policy with respect to the action issues a final
proclamation, policy or edict. A custom is an act that has not been formally approved by
entries that indicate he filed a grievance regarding his prosthetic leg, but that MCCF
ignored that grievance. There are two problems with that evidence. First, it is belied by
Defreitas’s own testimony in which he admits that he never filed a formal grievance for
his prosthetic leg. (App. at 729-30.) Second, it appears that his journal entries to the
contrary were written after he filed his complaint in district court. (Compare App. at
1350-52 (providing journal entries that he filed a grievance as early as November 10,
2008), with Addendum to App. at 2 (providing the District Court docket that indicates
Defreitas filed his complaint on November 7, 2008).) Section 1997e(a) requires a
prisoner to exhaust his administrative remedies before a lawsuit can be “brought.” 42
U.S.C. § 1997e(a). Accordingly, any use of those remedies after filing fails to satisfy §
1997e(a)’s requirement.
10
an appropriate decisionmaker, but that is so widespread as to have the force of law.”
Natale, 318 F.3d at 584 (alteration in original) (citation and internal quotation marks
omitted). A policy or custom can be established in three ways: (1) the entity or
supervisor promulgates an applicable policy statement and the act the plaintiff complains
of is the implementation of that policy; (2) the policymaker, without a formally
announced policy, violates federal law itself; or (3) the “the policymaker has failed to act
affirmatively at all, [though] the need to take some action to control the agents of the
government is so obvious, and the inadequacy of existing practice so likely to result in
the violation of constitutional rights, that the policymaker can reasonably be said to have
been deliberately indifferent to the need.” Id. (alteration in original) (internal quotation
marks omitted).
Although Defreitas and the District Court viewed his constitutional claims as
predicated upon the Eighth Amendment, because his claims regarding denial of access to
the yard, gym, and weight room stem from his pretrial detention as well as from his
incarceration after he was convicted and sentenced,11 they are more properly viewed as
arising under the Fourteenth Amendment for the pretrial period, Hubbard v. Taylor, 538
F.3d 229, 231 (3d Cir. 2008) (“[W]hen pretrial detainees challenge their conditions of
confinement, we must consider whether there has been a violation of the Due Process
Clause of the Fourteenth Amendment.”), and under the Eighth Amendment for conditions
11
Defreitas was arrested on July 18, 2008, for simple assault and confined to
MCCF on that date. He was not convicted and sentenced for that assault charge until
December 1, 2008. He gained full access to the yard, gym, and weight room after
obtaining his prosthesis in late December 2008.
11
after he was convicted and sentenced, Ingraham v. Wright, 430 U.S. 651, 671, n. 40
(1977) (“Eighth Amendment scrutiny is appropriate only after the State has complied
with the constitutional guarantees traditionally associated with criminal prosecutions.”).
Under the Fourteenth Amendment, the conditions imposed upon a detainee must not
amount to “punishment.” Bell v. Wolfish, 411 U.S. 520, 535 (1979). We have distilled
the teachings of Bell into a two-part test: A condition of confinement will not amount to
punishment when “legitimate purposes are served by the[] conditions, and … the[]
conditions are rationally related to these purposes.” Hubbard, 538 F.3d at 232 (internal
quotation marks omitted). As for claims under the Eighth Amendment’s protection
against cruel and unusual punishment, a prisoner asserting a violation of that Amendment
“must demonstrate that prison conditions deprived him of life’s minimum necessities,
that the deprivation was sufficiently serious, and that a prison official acted with
deliberate indifference in subjecting him to that deprivation.” Renchenski v. Williams,
622 F.3d 315, 338 (3d Cir. 2010) (internal quotation marks omitted).
Defreitas fails to show any genuine dispute of material fact as to either the
existence of a policy or custom or the deprivation of his constitutional rights. Although
Defreitas identified evidence that, when he was denied access to the yard, gym, and
weight room, various prison officers and medical personnel told him that it was “policy”
or “protocol” to not allow persons with crutches in those areas, he adduced no evidence
that any of the policymakers for Appellees established such a policy. And, in fact,
Defreitas did not believe that the prison was acting pursuant to a set policy but that his
restricted access was due to MCCF officers’ being “inept.” (App. at 384.) Indeed, in his
12
testimony he stressed the haphazard access he had to those recreational facilities since
beginning his confinement, which belies any argument that MCCF officers were acting
pursuant to a policy or custom.12
Even if Defreitas could overcome that evidentiary deficiency, his deprivation of
the ability to use the yard, gym, and weight room as used by the general population did
not amount to “punishment” under the Fourteenth Amendment. As explained below,
Appellees’ denial of his use of those forms of recreation were for legitimate purposes –
that is, fear that Defreitas would use his crutches as weapons or to manipulate the low-
hanging razor wire on the prison walls. Thus, Appellees’ restriction on Defreitas’s use of
crutches in those areas was for legitimate purposes and rationally related to those
purposes. And his claim thus fails under the Fourteenth Amendment’s protections
against pretrial detainee punishment.
His claim fails under the Eighth Amendment as well. The District Court correctly
concluded that the punishment he identifies as “cruel and unusual” – that is, his
deprivation of the ability to use the yard, gym, and weight room as used by the general
population – fails as a matter of law. (See App. at 27-29.) Indeed, contrary to any
successful claim that Appellees were “deliberately indifferent” to Defreitas’s denial of
access to the yard, gym, and weight room, the record reflects that Appellees actively
worked with Defreitas through the grievance process to permit him access to those areas.
12
It is perhaps arguable that, because CMC’s Medical Director denied Defreitas
access to the weight room and gym, that might be a “policy” sufficient for § 1983
liability. But, for the reasons expressed immediately below, Defreitas fails to show that
that policy resulted in unconstitutional punishment.
13
Defreitas has thus failed to show a genuine dispute of material fact as to his Eighth-
Amendment-based § 1983 claims.
C. ADA and RA Claims
With respect to his ADA and RA claims, Defreitas argues that the District Court
erred because it failed to view the evidence in the light most favorable to him. To make a
prima facie case under ADA or the RA,13 the plaintiff must establish that:
(1) he is a qualified individual; (2) with a disability; (3) he
was excluded from participation in or denied the benefits of
the services, programs, or activities of a public entity, or was
subjected to discrimination by any such entity; (4) by reason
of his disability.
Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d. 524, 553 n.32 (3d Cir. 2007).
Defreitas argues that he was discriminated against because of his status as an amputee.
He also argues that MCCF failed to make reasonable accommodations for his disability.
See 28 C.F.R. § 35.130(b)(7) (requiring public entities to make reasonable
accommodations to avoid discriminating on the basis of disability).14
There is no dispute that Defreitas qualified as an individual with a disability, and
that he was denied the benefit of using the yard, gym, and weight room for a limited time.
As explained by the District Court, however, the record is devoid of evidence, other than
Defreitas’s own conclusory journal entries in which he stated he was being discriminated
13
The substantive standards for determining liability under the ADA and RA are
the same, and we thus analyze them together. McDonald v. Pa. Dep’t of Pub. Welfare,
62 F.3d 92, 94-95 (3d Cir. 1995).
14
Reasonable accommodations must give a disabled prisoner “meaningful access”
to the prison program in question. Alexander v. Choate, 469 U.S. 287, 301 (1985).
14
against, that Appellees denied Defreitas such access because he was an amputee. The
denial of that access was because of legitimate concerns as to the security and the safety
of others since his crutches could be used as weapons or to manipulate the low hanging
razor wire on the yard’s wall. Those concerns are entitled to deference because prison
policies concerning security “are peculiarly within the province and professional
expertise of corrections officials, and, in the absence of substantial evidence in the record
to indicate that the officials have exaggerated their response to these considerations,
courts should ordinarily defer to their expert judgment.” Turner v. Safley, 482 U.S. 78,
86 (1987). Moreover, once Defreitas received his prosthetic leg, Appellees permitted
him to use all of those facilities, which undermines the claim that it was his disability that
prevented his access to the yard, gym, and weight room.
Similarly, Defreitas’s proposed accommodation for the prison to build a
wheelchair ramp for the general population yard15 was properly denied. After Defreitas
completed the grievance process, MCCF provided him a reasonable accommodation in
the form of his own hour in the yard. And he was also given access to the gym and
weight room with his crutches, again after he completed the grievance process. Thus,
although Defreitas may not have gotten the accommodations he wished, he certainly
received reasonable ones. Moreover, it would be antithetical to the grievance process, as
well as the PLRA, for Defreitas to succeed on a claim of liability after he has successfully
pursued a grievance. For those reasons, and for the reasons expressed by the District
15
The yard used by prisoners housed in the medical wing already had such a ramp.
15
Court, there is no genuine dispute of material fact as to his claims under the ADA and
RA.
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s denial of summary
judgment to Defreitas and its grant of summary judgment to Montgomery County,
MCCF, and CMC.
16