NAVEDO v. MALONEY

No. CivA. 00-10011-NG

172 F. Supp.2d 276 (2001) | Cited 0 times | D. Massachusetts | September 28, 2001

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

Plaintiff Ezequiel Navedo ("Navedo") filed this action against variousofficials of the Massachusetts Department of Corrections, a privateentity contracted to perform medical services at the prison, andemployees (physicians) of that entity. He claims that their refusal toallow him access to a wheelchair and to disabled-accessible facilitiesduring his incarceration at the Massachusetts Correctional Institution atNorfolk ("MCI Norfolk") and at the Massachusetts Correctional Institutionat Shirley ("MCI Shirley") deprived him of his civil rights and causedsevere and irreparable damage to his left leg.1

Navedo alleges that permanent disabilities in his back, hips, and leftleg have rendered him wheelchair-bound. However, on his transfer to MCINorfolk, the defendants denied him permission to use a wheelchair; notbecause of medical issues, but simply because the prison facilities werenot wheelchair-accessible. Defendants also failed to provide him withaccess to safe showering facilities for over a month. Moreover, thesituation was not remedied on Navedo's subsequent transfer to MCIShirley, a disabled-accessible facility, where Navedo was again deniedthe use of a wheelchair and an accessible shower. As a result, Navedoalleges, his physical condition was exacerbated: The defendants subjectedhim to cruel and unusual punishment, deprived him of his civil rights,and caused him emotional as well as physical distress.

The six defendants are: Michael T. Maloney ("Maloney"), Commissioner,Massachusetts Department of Correcions; Timothy Hall ("Hall"),Superintendent, MCI Norfolk, Tempthia Battle ("Battle"), DeputySuperintendent, MCI Norfolk; Correctional Medical Services, Inc.("CMS"); Joyce Cormo ("Cormo"), Health Services Administrator for CMS atMCI Norfolk; Nawfal Istfan ("Istfan"), a physician employed by CMS andMedical Director of MCI Norfolk; and the Commonwealth of Massachusetts("Commonwealth"). Two different motions for summary judgment are pendingbefore this Court: one raised by the corrections officials, defendantsMaloney, Hall, Battle, and the Commonwealth, and the other by CMS,Cormo, and Istfan. Taken together, the defendants argue that Navedocannot satisfy the Eighth Amendment standard of deliberate indifferenceto serious medical need, that at least some of the defendants areentitled to qualified immunity, and that Title II of the Americans withDisabilities Act, 42 U.S.C. § 12131 et seq., is inapplicable due tothe nature of Navedo's disability and to the measures taken by thedefendants to accommodate him.

For the reasons set forth below, Maloney et al.'s Motion to Dismiss,or, in the Alternative, for Summary Judgment [docketentry # 33] is DENIED as to defendant Maloney and GRANTED as todefendants Hall and Battle with regard to the Eighth Amendment and §1983 claims; the A.D.A. claims as against the defendants in theirindividual capacities are DISMISSED; and summary judgment with regard tothe remaining A.D.A. claims is DENIED. CMS et al.'s Motion for SummaryJudgment [docket entry # 44] is DENIED as to defendant Istfan, GRANTED asto defendant Cormo, and GRANTED IN PART AND DENIED IN PART as todefendant CMS.

I. FACTS

As required in considering a motion for summary judgment, I review thefacts in the light most favorable to Navedo, the non-moving party. InJune of 1993, Navedo sustained serious injuries to his back, hips, andleft leg as a result of an auto accident. After medical treatment,Navedo's left leg remained permanently disfigured, and he made regularuse of a wheelchair. While the parties dispute the extent of Navedo'sinjuries over the time covered by the complaint, specifically, andwhether he was completely wheelchair-bound throughout, it is a fact thathe entered the Massachusetts Correctional Institution at Concord ("MCIConcord") in July of 1998 in a wheelchair, and he retained use of andaccess to his wheelchair at all limes while incarcerated there.Likewise, when Navedo was transferred to the Massachusetts CorrectionalInstitution at Pondville ("MCI Pondville")2 in November of 1998, hearrived in a wheelchair and had access to a wheelchair at all times, evenas he was undergoing physical therapy and became able to ambulate onlyintermittently using a foot brace and a cane.

It is also a fact that when Navedo was transferred to MCI Norfolk inJuly of 1999, there was a notation on Navedo's Intrasystem Transfer Formthat he was "wheelchair-bound."3 Nevertheless, Navedo claims that hewas told — at the Norfolk prison gate — that he would not bepermitted to keep his wheelchair because the facility was notwheelchair-accessible. The defendants do not contradict this allegation,by affidavit. Rather they suggest that whatever Navedo was told at thegate, Norfolk did not provide Navedo with a wheelchair because CMS staffconcluded that he did not require one.

From July 1999 through April 2000, while Navedo remained at MCINorfolk, Navedo's condition (as observed and recorded by defendantIstfan, his treating physician) became progressively worse, resulting indiminished motor functioning of his lower extremities; his bladderfunction also appeared to be deteriorating.4 Navedo's repeatedrequests for a wheelchair were turned down,5 and he did not receivephysical therapy at any time while incarcerated at MCI Norfolk.

Shortly after his transfer to MCI Norfolk, Navedo sustained a fall in abathroom, which he alleges was partially due to the lack of a grab bar orother disability accommodations in the facilities. Severalweeks later, he was moved to a single, disabled-accessible cell in atransitory unit normally used for inmates awaiting a permanent cellassignment; Navedo did not receive access to an accessible unit with ashower until September 12, 1999.

Because there were no permanent cells at Norfolk that provided disabledaccess, Navedo had to remain in the transitory unit, where inmatesretained substantially fewer privileges.6 This unit was located atthe opposite end of the facility from the gym and from most otherprograms and activities. Navedo's subsequent request for a stand-up lockerin his cell (because he could not access his personal storage space dueto his disability) was denied, and he was forced to leave a number ofpersonal items on the floor of his cell, resulting in warnings that hiscell was not in compliance with institution rules for storage of personalitems.

Significantly, on January 27, 2000, the MCI Norfolk ClassificationBoard7 voted to recommend Navedo's transfer to MCI Shirley, based ona determination that his "current medical issues [] can be better dealtwith in the proper environment." Defendant Battle promptly approved thetransfer on February 1. Defendant Maloney, however, refused to transferNavedo, claiming that his "medical needs can be met at Norfolk."8

Navedo was finally transferred to MCI Shirley in April 2000,9 wherehe is presently incarcerated. On April 10, he requested an orthopedicmattress of the same type given to him at MCI Norfolk. Dr. Rencricca, aCMS doctor at Shirley, denied this request one week later, finding noindication in Navedo's record that such a mattress was required. AtShirley, Navedo has been placed in a disabled-accessible cell, but hasnot been given access to a safe, accessible unit with a shower. He wasoffered the use of a wheelchair, but one without leg supports; when heobjected to the lack of leg supports, he was not provided with analternative wheelchair.10 He is currently being treated by a physicaltherapist at MCI Shirley, and is awaiting treatment by an orthopedicsurgeon.

II. LEGAL DISCUSSION

Navedo alleges that the defendants subjected him to cruel and unusualpunishment in violation of the Eighth Amendment, deprived him of his civilrights, and discriminated against him on the basis of disability. Heargues that the defendants' subjective awareness of his medicalconditionand of his need for a wheelchair, and their refusal to provide him withmore appropriate conditions, amount to deliberate indifference to hisserious medical condition, and have caused him severe pain andsuffering. Moreover, Navedo claims that his living conditions in thetransitory unit at MCI Norfolk (July 1999 to April 2000) deprived him ofthe enjoyment of programs, activities, benefits, and privileges availableto all non-disabled inmates.

The defendants have raised two sets of arguments for summary judgment.Maloney et al. claim that Navedo has made no Eighth Amendment showingthat they were deliberately indifferent to his medical needs. Rather,they characterize the situation as a difference of opinion as to themedical necessity of a wheelchair. They point out that Navedo has"received extensive care and treatment for several medicalconditions"11 during the course of his incarceration.

As to Navedo's § 1983 claims, Maloney et al. argue that they cannotbe held vicariously liable for the allegedly tortious actions of theirsubordinates, that they cannot be sued under § 1983 in their officialcapacities, and that Navedo failed to allege that they were personsacting under color of state law.

With regard to certain of the A.D.A. claims, Maloney et al. take theposition that (1) they are protected by qualified immunity, (2) Navedodoes not qualify for protection under the A.D.A. because his physicalimpairments do not substantially limit him in a major life activity, and(3) they did reasonably accommodate his disabilities. They also arguethat, in any case, under the Supreme Court's recent decision in Board ofTrustees of the University of Alabama v. Garrett, 531 U.S. 356, 121S.Ct. 955, 148 L.Ed.2d 866 (2001), Title II of the A.D.A. does notvalidly abrogate state sovereign immunity under the Eleventh Amendment,and is an unconstitutional exercise of Congress's legislative power.

CMS et al., in their motion for summary judgment, argue that: (1) theywere not deliberately indifferent to Navedo's medical needs; (2) theycannot be held vicariously liable under § 1983; and (3) to the extentthat Navedo's claims sound in malpractice or negligence, they should betransferred to Massachusetts Superior Court for the purposes of conveninga medical malpractice tribunal pursuant to M.G.L. ch. 231, § 60B.

With regard to defendants Hall, Battle, and Cormo, I agree thatplaintiff has failed to raise a triable question as to their deliberateindifference to his medical needs, and accordingly summary judgment isGRANTED in their favor. With regard to defendant CMS, the entity is notamenable to suit for damages under § 1983, and any claims against CMSfor damages are hereby DISMISSED. A suit for injunctive relief ispermissible, but only with regard to Navedo's claims based on his currenttreatment at MCI Shirley, not his past treatment at MCI Norfolk.Accordingly, insofar as Navedo's § 1983 claims against defendant CMSare based on alleged incidents at MCI Norfolk, they are DISMISSED;insofar as they rest on his current treatment at Shirley, summaryjudgment is DENIED. However, as to defendants Maloney and Istfan under§ 1983, and as to defendant Maloney under the A.D.A., I find thatNavedo has raised issues of fact that warrant a jury trial, and summaryjudgment is DENIED on these grounds.

A. Summary Judgment Standard

Fed.R.Civ.P. 56(c) provides, in pertinent part, that a court may grantsummaryjudgment only if "the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law."

In ruling on a summary judgment motion, the Court must view the recordand draw inferences in the light most favorable to the non-moving party.Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482,486 (1st Cir. 1981). "When a party fails to make a showing sufficient toestablish the existence of an element essential to that party's case, andon which that party bears the burden of proof at trial, there can nolonger be a genuine issue as to any material fact . . . and the movingparty is entitled to judgment as a matter of law." Smith v. StratusComputer, Inc., 40 F.3d 11, 12 (1st Cir. 1994).

This Court must, therefore, undertake to determine (1) whether factualdisputes exist, (2) whether the factual disputes are genuine (i.e., areasonable fact-finder could return a verdict for the nonmoving party onthe basis of the evidence), and (3) whether any fact genuinely in disputeis material (i.e., such that it might affect the outcome of the suitunder the applicable substantive law). See Anderson v. Liberty Lobby,477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Maloney et al.'s Motion to Dismiss, or, in the Alternative, for Summary Judgment

1. Eighth Amendment 142 U.S.C. § 1983

[1, 2] In order to state a claim under § 1983, a plaintiff mustallege two elements: 1) that the conduct complained of has been committedunder color of state law, and 2) that this conduct worked a denial ofrights secured by the Constitution or laws of the United States.Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999). In thepresent case, there is no real dispute that the defendants were, in fact,acting under color of state law in their capacities as prison officials;Navedo's failure to use the term "color of state law" in the initialcomplaint is not dispositive of the issue. See Estelle v. Gamble,429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that prose complaint must be held to "less stringent standards than formalpleadings drafted by lawyers" and can only be dismissed for failure tostate a claim if it appears "beyond doubt that the plaintiff can prove noset of facts in support of his claim which would entitle him torelief").

[3] As to the second prong, denial of rights secured by theConstitution or laws of the United States, the Supreme Court hasestablished that the treatment a prisoner receives in prison and theconditions of his/her confinement are subject to scrutiny under theEighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970,128 L.Ed.2d 811 (1994). Mere negligence or medical malpractice on thepart of prison doctors or officials, however, is not sufficient toestablish an Eighth Amendment violation. The standard is higher: "Inorder to state a cognizable claim, a prisoner must allege acts oromissions sufficiently harmful to evidence deliberate indifference toserious medical needs." Estelle, 429 U.S. at 106, 97 S.Ct. 285; see alsoFarmer, 511 U.S. at 834, 114 S.Ct. 1970. Plaintiff must prove (1) aserious medical need, and (2) the defendant's purposeful indifference tothat need. Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987).

a. Serious Medical Need

The First Circuit has defined a "serious medical need" as either onethat a physician has diagnosed and deemed to requiretreatment, or one that is "so obvious that even a lay person would easilyrecognize the necessity for a doctor's attention." Mahan v. PlymouthCounty House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995) (quotingGaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990),cert. denied, 500 U.S. 956, 111 S.Ct. 2266, 114 L.Ed.2d 718 (1991)).

[4] There can be little question that Navedo actually has seriousmedical needs, which have been diagnosed by doctors on multiple occasionssince his accident in 1993. In fact, unlike many prison medical treatmentcases, the claim here is not that prison officials somehow ignored a newcondition that arose while the plaintiff was incarcerated. Rather, theclaim is necessarily stronger. It involves taking away accommodations— a wheelchair, special facilities — that plaintiff plainlyneeded and had used at other institutions. The only question is one ofdegree: the extent of Navedo's initial injury, the extent to which hesubsequently required a wheelchair with leg supports, and how his needsvaried throughout the period of his incarceration. Both sides haveintroduced substantial evidence on the subject, including Navedo'smedical records from both before and during his incarceration and theaffidavit of his treating physician, Dr. Istfan. Plainly, this is anissue of material fact, not amenable to resolution on summary judgment.

b. Deliberate Indifference

[5-7] In addressing the question of what qualifies as deliberateindifference, the Supreme Court has held that, in order to be foundliable under the Eighth Amendment, a prison official must know of anddisregard an excessive risk to inmate health or safety. Farmer, 511 U.S.at 837, 114 S.Ct. 1970 (emphasis added). In other words, the officialmust both be aware of facts from which the inference could be drawn thata substantial risk of serious harm exists, and he must actually draw theinference. Id. Moreover, because respondeat superior is not available asa theory of liability under § 1983, see Monell v. Dep't of Soc.Servs., 436 U.S. 658, 696 n. 58, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985), cert. denied subnom. Town of Saugus v. Voutour, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d916 (1986), a supervisory official's liability must stem from his or herown actions or omissions, which must be "affirmatively connect[ed] to thesubordinate's violative act or omission," and which must themselves riseto the level of deliberate indifference. See Maldonado-Denis v.Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994) (holding that, evenif a supervisor lacks actual knowledge of censurable conduct, he may beliable for the foreseeable consequences of such conduct if (1) he wouldhave known of it but for his deliberate indifference or willfulblindness, and (2) he had the power and authority to alleviate it); Laynev. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981) ("[w]hen a supervisoryofficial is placed on actual notice of a prisoner's need for physicalprotection or medical care, administrative negligence can rise to thelevel of deliberate indifference to or reckless disregard for theprisoner's safety"); see also Kosilek v. Nelson, No. C.A. 92-12820-MLW,2000 WL 1346898, at *5 (D.Mass. 2000).

Where a party's mental state is a material aspect of the claim at issue— here, how much defendants Hall, Maloney, and Battle knew ofNavedo's medical condition — the law of this Circuit urges somecaution in disposing of that claim through summary judgment. SeeStepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922,928 (1st Cir. 1983) (stressing special importance of jury judgments ofcredibility in cases where the state of mindof a party is crucial to the outcome of the case); see also In reVarrasso, 37 F.3d 760, 764 (1st Cir. 1994) ("courts must be exceptionallycautious in granting brevis disposition" in cases where a party's stateof mind is in issue); Broderick v. Roache, 996 F.2d 1294, 1299 n. 9 (1stCir. 1993); Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987).

At a minimum, there must be a genuine dispute as to whether Maloney,Hall, and/or Battle knew of Navedo's medical needs and knew that themedical care being provided to him was "clearly inadequate" to meet thoseneeds. "The question is, charging [prison officials] with reasonableinquiry, and allowing for reliance on the opinions of the treatingdoctors, . . . how did the overall picture appear? What appeared to lackdoing? What could be done?" Layne, 657 F.2d at 471-72.

[8] First, with respect to Hall and Battle: While it may be thatdefendants Hall and Battle could have done more in terms of procuringtreatment for Navedo, this is far short of the standard of "deliberateindifference" to which the Eighth Amendment holds prison officials. Evenif I were to assume that Hall and Battle did have full knowledge ofNavedo's medical condition (which is unlikely given that they are notdoctors themselves, did not stand in a direct supervisory relationship tothe medical staff, and the medical reports were themselves conflicting),Navedo has introduced little to no evidence of their deliberateindifference to that condition. In fact, what evidence he has introducedtends to point in the opposite direction. For example, it is undisputedthat defendant Battle approved the Classification Board's recommendationthat Navedo be transferred to MCI Shirley on the grounds that his medicalconcerns could be better addressed there. Classification Form, attachedto Plaintiff's Opposition to Defendant's Motion to Dismiss, or in theAlternative, Motion for Summary Judgment as Exhibit M ("ClassificationForm"). As to defendant Hall, the letter he wrote to Navedo only two daysafter Navedo wrote to him indicates that Hall did respond seriously toNavedo's requests, and that he asked defendant Cormo to "have [Navedo's]medical needs assessed so that the institution can make appropriateaccommodations." Letter from Hall to Navedo, Dec. 15, 1999, attached toPlaintiff's Opposition to Defendants CMS, Istfan, and Cormo's Motion forSummary Judgment as Exhibit L ("Hall Letter"). Navedo's transfer toShirley was recommended promptly on January 27, 2000, and approved bydefendant Battle on February 1. Accordingly, I GRANT defendants' motionfor summary judgment with respect to Hall and Battle.

[9] With regard to defendant Maloney, however, the case for "deliberateindifference" is markedly stronger. Despite the Classification Board'srecommendation that Navedo be transferred to MCI Shirley "due to hiscurrent medical issues that can be better dealt with in the properenvironment," and despite defendant Battle's approval of that transfer,defendant Maloney nonetheless denied the transfer, noting that Navedo's"medical needs can be met at Norfolk." Given the contrary recommendationsof the prison's own medical staff and of defendant Battle, and given theevidence plaintiff has introduced as to his own complaints (e.g., hismedical records, numerous CMS Sick Call Request Forms, and his owntestimony), a triable issue remains with respect to Maloney's deliberateindifference to Navedo's needs.

Moreover, Navedo's claims include not only the denial of medical careto him personally, but Maloney's failure to maintain MCI Norfolk inaccordance with federal standards of accessibility for disabled inmates.As the First Circuit has made clear, the statutory duties of theCommissionerof Corrections are to be construed broadly, in accordance withMassachusetts law. Dimarzo v. Cahill, 575 F.2d 15, 17 (1st Cir. 1978),cert. denied, 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978); see alsoLayne, 657 F.2d at 471 n. 3 (noting that in Dimarzo "we charged theCommissioner of Corrections with the constructive knowledge ofprison-wide conditions which he was statutorily obliged to inspect andremedy"). Thus, in addition to issues with respect to Navedo's transfer,there are triable issues with regard to the degree of accessibility atMCI Norfolk, Maloney's knowledge of these conditions, and what steps, ifany, he has taken to remedy what problems there may be.

2. Qualified Immunity

[10, 11] Because qualified immunity is an affirmative defense, theburdens of pleading and persuasion rest with the defendant. DiMarco-Zappav. Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001); see also Harlow v.Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982);Gomez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 64 L.Ed.2d 572(1980). The determination of a claim of qualified immunity is"independent of the merit of the underlying constitutional claim."Cookish v. Powell, 945 F.2d 441, 443 (1st Cir. 1991) (quoting Morales v.Ramirez, 906 F.2d 784, 787 (1st Cir. 1990)). Thus, even if an official'sactions should constitute a clear violation of the plaintiffsconstitutional rights, the defendant is entitled to summary judgmentbased on qualified immunity if it was objectively reasonable, based onclearly established law and in light of the information the officialspossessed at the time of his conduct, for him to conclude that theviolation was in fact lawful. Cookish, 945 F.2d at 443; Loutinger v.Broderick 50 F.3d 61, 65 (1st Cir. 1995); see also Harlow, 457 U.S. at818, 102 S.Ct. 2727; Bilida v. McCleod, 211 F.3d 166, 174 (1st Cir.2000); Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1991).

Notwithstanding the usual summary judgment requirement, all facts andreasonable inferences are to be construed in favor of the nonmovingparty, the First Circuit has characterized the analysis employed todetermine whether an official is entitled to summary judgment onqualified immunity grounds as "quite generous." Lowinger, 50 F.3d at 65(observing that "the qualified immunity standard gives ample room formistaken judgments by protecting all but the plainly incompetent or thosewho knowingly violate the law"). At the same time, if the plaintiff hasintroduced evidence competent to substantiate both an infringement of hisrights and that those rights were clearly established at the time ofinfringement, "an inquiring court can then presume that the defendantknew, or should have known, that his conduct was beyond the pale," andsummary judgment for the defense is inappropriate. Buenrostro, 973 F.2dat 42 & n. 3.

As discussed above, since the Supreme Court has made it clear that theEighth Amendment protects prisoners from the deliberate denial ofnecessary care for serious medical conditions, Farmer, 511 U.S. at 832,114 S.Ct. 1970; Estelle, 429 U.S. at 106, 97 S.Ct. 285, the second prong— the "clearly established" requirement — has been met. As tothe first prong, the question of whether Navedo's Eighth Amendment rightswere infringed turns largely on whether it was reasonable for defendantMaloney to take the action he did based on what he knew at the time. IfMaloney made an objectively reasonable determination based on what heknew at the time, and did not intentionally keep himself ignorant ofother pertinent facts about Navedo's condition, then he would be entitledto qualified immunity.

[12] Strikingly, whereas the usual claim of qualified immunity israised by an official who relied on the recommendations of subordinatesin the exercise of his duties, here, defendant Maloney appears to havedone exactly the opposite: He denied Navedo's transfer notwithstandingthe recommendations of the Classification Board, the medical staff, anddefendant Battle. If indeed Maloney knew that Navedo needed awheelchair, that Navedo's medical needs could not be met at MCI Norfolk,or that MCI Norfolk failed to comply with federal accessibilitystandards, and did nothing to remedy the situation, this inaction on hispart would be hard to characterize as objectively reasonable. Thus, on thebasis of the factual issues presented in the record, I find thatdefendant Maloney is not entitled to qualified immunity, and DENY summaryjudgment with regard to him.

3. A.D.A.

a. Sovereign Immunity

[13] Defendants argue that Congress did not validly abrogate statesovereign immunity in Title II of the A.D.A., which prohibitsdiscrimination against qualified individuals with disabilities in allprograms, activities and services of public entities. They conclude thatany A.D.A. claims raised here are barred by the Eleventh Amendment. Idisagree. As plaintiff rightly points out, the Supreme Court in Garrettexplicitly declined to extend its holding beyond Title I of the A.D.A.Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 360,121 S.Ct. 955, 960 n. 1, 148 L.Ed.2d 866 (2001). (Thus, as one court hasobserved, "[t]he holding of Garrett simply allows states to invokesovereign immunity when faced with claims for money damages under Title Iof the A.D.A." Doe v. Rowe, 156 F. Supp.2d 35, 56-57 (D.Me. 2001)).

Moreover, the Garrett Court was explicit about why it declined to reachTitle II: The troubling "lack of findings" in the legislative record withregard to discrimination based on disability by state employers was notmirrored in other areas, such as public services. Id. at 966 & n. 7(concluding that the "overwhelming" majority of accounts ofdisability-based discrimination in the legislative record "pertain toalleged discrimination by the States in the provision of public servicesand public accommodations, which are addressed in Titles II and III ofthe A.D.A."). Thus, even as it invalidated Title I's abrogation ofsovereign immunity, the Supreme Court recognized that Title II rested ona far different base of legislative findings, and declined to include itwithin the sweep of Garrett's holding.

In the absence of a definitive ruling from the Supreme Court, thecircuit courts have split on the question of whether the extension ofTitle II of the A.D.A. to the states is a permissible exercise ofCongress's Section 5 power. While the First Circuit has not yet ruleddirectly on the issue, the court in Torres v. Puerto Rico Tourism Co.,175 F.3d 1, 6 n. 7 (1st Cir. 1999), observed in dicta that "we haveconsidered the issue of Congress's authority sufficiently to concludethat . . . we almost certainly would join the majority of courtsupholding [Title II of the A.D.A.]." The Seventh Circuit has followedAlsbrook and the Eighth Circuit; see Erickson v. Bd. of Governors ofState Colleges and Universities for Northeastern Illinois Univ.,207 F.3d 945, 948 (7th Cir. 2000) (abrogating Crawford v. Indiana Dep'tof Corrections, 115 F.3d 481 (7th Cir. 1997), on the grounds that theholding in Crawford was based on an analogy to the A.D.E.A., which theSupreme Court held to be an unconstitutional exercise of Congress'sSecion 5 power in Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120S.Ct.631, 145 L.Ed.2d 522 (2000)). The Fifth, Ninth, and Eleventh Circuitshave upheld the constitutionality of Title II; see Dare v. California,191 F.3d 1167, 1173 (9th Cir. 1999); Kimel v. Florida Bd. of Regents,139 F.3d 1426 (11th Cir. 1998), aff'd on other grounds, 528 U.S. 62, 120S.Ct. 631, 145 L.Ed.2d 522 (2000); Coolbawgh v. Louisiana, 136 F.3d 430(5th Cir.), cert. denied; 525 U.S. 819, 119 S.Ct. 58, 142 L.Ed.2d 45(1998); but see Williamson v. Georgia Dep't of Human Resources,150 F. Supp.2d 1375, 1380-81 (S.D.Ga. 2001). The Fourth Circuit remainsdivided on the issue; compare Brown v. North Carolina Div. of MotorVehicles, 166 F.3d 698 (4th Cir. 1999) (holding that regulationpromulgated under A.D.A. Title II exceeded Congress's Secion 5 powers),with Amos v. Maryland Dep't of Pub. Safety & Correctional Servs.,178 F.3d 212 (4th Cir. 1999) (holding that application of Title II tostate prisons is a constitutional exercise of Congress's Section 5power). And, in the Second, Third, and Sixth12 Circuits, where thecourts of appeals have not ruled on the issue, numerous decisions at thedistrict court level have sustained Title II's constitutionality; see,e.g., Garcia v. State Univ. of New York Health Sciences Center atBrooklyn, No. CV 97-4189 (RR), 2000 WL 1469551 (E.D.N.Y. 2000); Thropev. Ohio, 19 F. Supp.2d 816 (S.D.Ohio 1998); Pease v. University ofCincinnati Med. Ctr., 6 F. Supp.2d 706 (S.D.Ohio 1998); Muller v.Costello, 997 F. Supp. 299 (N.D.N.Y. 1998); Young v. Pennsylvania Houseof Representatives, 994 F. Supp. 282 (M.D.Pa. 1998); Niece v. Fitzner,941 F. Supp. 1497 (E.D.Mich. 1996); but see Hedgepeth v. Tennessee,33 F. Supp.2d 668 (W.D.Tenn. 1998).

Thus, in light of the Supreme Court's reasoning in Garrett, and inlight of the preponderance of case law in favor of Title II's validity, Idecline to substitute my judgment for that of Congress, and DENYdefendants' motion for summary judgment on this ground.

b. Individual Liability, Individual Capacity

Neither the Supreme Court nor the First Circuit has ruled on whethergovernment officials may be sued directly, in their individualcapacities, under Title II of the A.D.A. (In Bartolomeo v. PlymouthCounty House of Corrections, 2000 WL 1164261, *1, 229 F.3d 1133 (1stCir. Aug. 16, 2000) (unpublished decision), the court did "assume withoutdeciding" that such suits were available.) The two circuits that haveaddressed the issue — the Seventh and the Eighth — andseveral district courts have held that such suits are not available.See, e.g., Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000);Alsbrook, 184 F.3d at 1005 n. 8; Thomas v. Nakatani, 128 F. Supp.2d 684,692 (D.Haw. 2000); Calloway v. Boro of Glassboro Dep't of Police,89 F. Supp.2d 543, 556 (D.N.J. 2000); Yeskey v. Pennsylvania,76 F. Supp.2d 572, 575 (M.D.Pa. 1999); Montez v. Romer, 32 F. Supp.2d 1235,1240 (D.Colo. 1999); Smith v. Univ. of the State of New York, No.95-CV-0477E(H), 1997 WL 800882, at *8 (W.D.N.Y. Dec. 31, 1997). But seeNiece v. Fitzner, 922 F. Supp. 1208, 1218-19 (E.D.Mich. 1996). The EighthCircuit's reasoning in Alsbrook, which was reflected in many of thesedecisions, focused on the statutory term "public entity" as defined in42 U.S.C. § 12131 (1), which did not seem tocontemplate individual defendants sued in their individual capacities.Alsbrook, 184 F.3d at 1005 n. 8; Yeskey, 76 F. Supp.2d at 575.

[14] 42 U.S.C. § 12131 (1) defines "public entity" as follows: "(A)any State or local government; (B) any department, agency, specialpurpose district, or other instrumentality of a State or States or localgovernment; and (C) the National Raliroad Passenger Corporation, and anycommuter authority (as defined in section 502(8) of Title 45)." In lightof this statutory language, I agree with the Eighth Circuit and thedistrict courts that suits against government officials in theirindividual, non-official capacities do not appear to be contemplated byTitle II of the A.D.A. Thus, insofar as Navedo's A.D.A. claims have beenraised against defendants Maloney, Hall, or Battle in their individualcapacities, these claims are DISMISSED.

c. Individual Liability, Official Capacity

[15] As both sides in this case are aware, the Supreme Court has heldthat, in the § 1983 context, where a suit is brought againstindividual public officials in their official capacities, such a suit iseffectively to be considered a suit against the officials' office(s).Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304,105 L.Ed.2d 45 (1989); see also Wang v. New Hampshire Bd. of Registrationin Medicine, 55 F.3d 698 (1st Cir. 1995). Applying this rule in thecontext of A.D.A. Title II, the implication is simply that Navedo hasbrought his A.D.A. claims against Maloney et al.'s offices, whichcomports exactly with the "public entity" language of Title II. Forclaims arising under Section 1983, a suit against the state office itselfwould be barred on sovereign immunity grounds; this is precisely whyNavedo dropped his Section 1983 claim against the Commonwealth. For TitleII of the A.D.A., however, the Commonwealth is an appropriate defendant,and Maloney et al.'s motion for summary judgment on this ground isDENIED.

d. Statement of Claim

In order to state a claim under Title II of the A.D.A., Navedo mustestablish that: (1) he is a qualified individual with a disability; (2)he was excluded from participation in a public entity's services,programs, or activities or otherwise discriminated against; and (3) suchexclusion or discrimination was by reason of his disability.42 U.S.C. § 12132; Parker v. Universidad de Puerto Rico, 225 F.3d 1,4 (1st Cir. 2000); cf. Pennsylvania Dep't of Corrections v. Yeskey,524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (holding that TitleII of the A.D.A. applies in the prison context). A.D.A. Title II defines"qualified individual with a disability" as an "individual with adisability who, with or without reasonable modifications, . . . meets theessential eligibility requirements for the receipt of services or theparticipation in programs or activities provided by a public entity."42 U.S.C. § 12131 (2); Parker, 225 F.3d at 5.

[16] In the present case, Navedo has certainly presented sufficientevidence to survive summary judgment on the grounds of his status as aqualified individual with a disability. He has also alleged, andintroduced evidence of, actions by the defendants that, if true, couldqualify as disability-based discrimination and/or deprivation with regardto services, programs, or activities. It would not be beyond the realm ofreason for a jury to find that Navedo's incarceration in a non-accessiblefacility, his concomitant differential treatment there, or the refusal ofdefendants to allow him the use of a wheelchair constitutedisability-based discrimination within the meaning of Title 11 of theA.D.A. Thus, IDENY summary judgment on these grounds.

C. CMS et al.'s Motion for Summary Judgment Eighth Amendment/42 U.S.C. § 1983

1. Deliberate Indifference

a. Dr. Istfan

Navedo has raised claims against Dr. Istfan both in his capacity as atreating physician and in his capacity as medical director of CMS at MCINorfolk. Both sets of claims are to be assessed with reference to thestandard of deliberate indifference, since, as discussed above, merenegligence or medical malpractice on Istfan's part would not besufficient to make out an Eighth Amendment claim. Estelle, 429 U.S. at106, 97 S.Ct. 285.

[17] of all of the defendants in this case, defendant Istfan is in thebest position to have direct knowledge of Navedo's medical condition.Based on the evidence now before me, there are clear and genuine disputesas to exactly what Istfan knew, and the extent to which Navedo complainedto him. The evidence as to whether Navedo in fact requires, or requiredat different times, a wheelchair, and whether he articulated theserequests to defendant Istfan, is conflicting; plaintiff has at leastcarried his summary judgment burden this far. Given Istfan's position atMCI Norfolk and his examination of Navedo, there appears to be littlequestion that Istfan, in his capacity as director of CMS at MCI Norfolk,could have allowed Navedo the use of a wheelchair if one was warranted,and has consistently maintained that one was not required. While the factthat he "could" have done more, by itself, is far from constituting avalid Eighth Amendment claim for denial of medical care, if Istfan failedto do more with full knowledge that Navedo did in fact require awheelchair, then this could very well rise to the level of "deliberateindifference" — intentional denial of a wheelchair to someone whogenuinely needs one could reasonably be viewed as a form of "unnecessaryand wanton infliction of pain." Estelle, 429 U.S. at 105, 97 S.Ct. 285.With regard to defendant Istfan, summary judgment is accordingly DENIED.

b. Cormo

[18] With regard to defendant Cormo, the picture looks somewhatdifferent. From the contents of the letter defendant Hall wrote toNavedo, it appears that Cormo did have at least some knowledge that theextent of medical care required by Navedo was in dispute, and that shewas charged with "hav[ing] Navedo's medical needs assessed so that theinstitution can make appropriate accommodations." However, even assumingthat defendant Cormo did have such knowledge, plaintiff has presentedlittle to no evidence to establish deliberate indifference on her part tohis needs. Navedo alleges that Cormo "fail[ed] to act or intervene in[his] medical treatment in light of her awareness of [his] need formedical care." Plaintiffs Opposition to Defendants' Motion for SummaryJudgment at 16. However, he presents no evidence to substantiate thisallegation; it is entirely unclear in what respect Cormo "failed to act,"either directly or in a supervisory capacity. In fact, given therelatively short time span between Hall's letter to Navedo and therecommendation that Navedo be transferred to MCI Shirley, the inferencearises at the very least that Cormo did in fact have Navedo's medicalrecords reviewed, as requested, in order to assess whether he should betransferred. Not a doctor herself, Cormo did not examine Navedo, and shecertainly cannot be charged with any detailed knowledge of his conditionbeyond the contents of his medical records and the recommendations of themedical staff, plus any complaints brought to her attention.

In short, with straight respondeat superior liability unavailable underMonell, plaintiff has failed at this stage to raise any triable issue asto defendant Cormo's role in his alleged denial of medical care.Defendants' Motion for Summary Judgment as to Defendant Cormo is herebyGRANTED.

2. CMS and § 1983

[19, 20] Insofar as Navedo is seeking monetary damages from defendantCMS under § 1983, any such claims must be dismissed on jurisdictionalgrounds. In Will, 491 U.S. at 71, 109 S.Ct. 2304, the Supreme Court heldthat neither states nor state officials acting in their officialcapacities constitute "persons" within the meaning of § 1983. Seealso Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991), cert.denied, 502 U.S. 1063, 112 S.Ct. 948, 117 L.Ed.2d 117 (1992); Wilson v.Brown, 889 F.2d 1195, 1197 (1st Cir. 1989) (observing that "a penalsystem is an essential appendage of the state corpus"). Thus, insofar asCMS, the entity, is being sued for damages "in its official capacity,"this court lacks jurisdiction over any such claims, and they must bedismissed.13 Under Will, states may be sued under § 1983 forinjunctive relief only. 491 U.S. at 71 n. 10, 109 S.Ct. 2304. Navedo'stheory of CMS's liability rests on two different sets of conduct in twodifferent time periods: the actions of defendant Istfan and the othermedical staff at MCI Norfolk, and the continued refusal of the CMSmedical staff at MCI Shirley to provide him with safe showeringfacilities and a wheelchair with leg supports. Since Navedo is no longerat Norfolk, there is no call for prospective relief against CMS in thisregard. However, insofar as Navedo's claims rest on his treatment atShirley, injunctive relief may be appropriate if Navedo can demonstratethat CMS's treatment of him at Shirley has risen, and continues to rise,to the level of "deliberate indifference," as required to make out anEighth Amendment violation. This is a parallel inquiry to that withregard to defendant Istfan at Norfolk; it implicates questions of whatthe CMS staff and supervisors have known and understood of Navedo'scondition throughout his time at Shirley. These are quintessential issuesof fact and mental state, inappropriate for resolution via summaryjudgment. Accordingly, insofar as Navedo seeks injunctive relief againstCMS with regard to his treatment at MCI Shirley, summary judgment isDENIED.

III. CONCLUSION

For the foregoing reasons, Maloney et al.'s Motion to Dismiss, or, inthe Alternative, for Summary Judgment [docket entry # 33] is DENIED as todefendant Maloney and GRANTED as to defendants Hall and Battle withregard to the Eighth Amendment and § 1983 claims; the A.D.A. claimsas against the defendants in their individual capacities are DISMISSED;and summary judgment with regard to the remaining A.D.A. claims isDENIED. CMS et al.'s Motion for Summary Judgment [docket entry # 44] isDENIED as to defendant Istfan, GRANTED as to defendant Cormo, and GRANTEDIN PART AND DENIED IN PART as to defendant CMS.

ORDER

For the reasons set forth in the accompanying Memorandum and Order,Maloneyet al.'s Motion to Dismiss, or, in the Alternative, for Summary Judgment[docket entry # 33] is DENIED as to defendant Maloney and GRANTED as todefendants Hall and Battle with regard to the Eighth Amendment and §1983 claims; the A.D.A. claims as against the defendants in theirindividual capacities are DISMISSED; and summary judgment with regard tothe remaining A.D.A. claims is DENIED. CMS et al.'s Motion for SummaryJudgment [docket entry #44] is DENIED as to defendant Istfan, GRANTED asto defendant Cormo, and GRANTED IN PART AND DENIED IN PART as todefendant CMS.

1. The Complaint (as amended by the Plaintiff's Opposition toDefendants' Motion to Dismiss, or, in the Alternative, Motion for SummaryJudgment) contains seven counts, alleging that: (1) Defendants subjectedNavedo to cruel and unusual punishment violative of the EighthAmendment; (2) Defendants deprived Navedo of his due process rights underthe Fourteenth Amendment; (3) Defendants have discriminated againstNavedo on the basis of disability, in violation of the A.D.A.,42 U.S.C. § 12131 et seq.; (4) Defendants (all except theCommonwealth of Massachusetts) deprived Navedo of his civil rights under42 U.S.C. § 1983; (5) Defendants intentionally inflicted emotionaldistress on Navedo; (6) Defendants negligently inflicted emotionaldistress on Navedo; and (7) Defendants breached their fiduciaryresponsibility to the taxpayers of the Commonwealth ofMassachusetts.

2. Navedo's CMS Transfer Form to Pondville characterizes him as"wheelchair-bound" (Plaintiff's Exh. A).

3. Verified Complaint. Exhibit I. The CMS Transfer Form to Norfolkcharacterizes Navedo as "in a wheelchair" and "walks w/limp." However, aCMS Classification Health Status Report from Pondville, dated July 30,1999, states that he is "ambulatory with a cane" and notes that he may besent to "any facility," even though the same form has "HandicappedAccessibility" checked "yes" as a requirement.

4. Istfan Affidavit, ¶ 24.

5. The parties dispute the frequency and nature of theserequests.

6. E.g., 1 1/2 hours tier time per day on the transitory unit versus7am-10pm daily on the permanent unit, and the availability of cookingfacilities for each permanent unit.

7. The Classification Board is a body established pursuant to M.G.L.ch. 127, § 20A to advise the prison superintendent (here, defendantHall) with regard to prisoners' periodic grading and classification.Classification Boards generally consist of at least three members,including correction officers, prison camp officers, correctionalcounselors, unit managers, directors of classification, or deputysuperintendents.

8. Plaintiff's Opposition to Defendants' Motion to Dismiss, or, in theAlternative, Motion for Summary Judgment at 18 & Exh. M.

9. Plaintiff characterizes this transfer as "inexplicable, "Plaintiff's Opposition to Defendants' Motion to Dismiss, or, in theAlternative, Motion for Summary Judgment at 5. Indeed, there are no factscurrently in the record that provide any explanation of why the transferwas finally effected.

10. The parties dispute the necessity and medical advisability of awheelchair with leg supports for Navedo. Navedo claims that he has sinceoffered to try the wheelchair without leg supports, but the medical staffnow refuses to give him one, on the grounds that a wheelchair is nolonger required. Transcript of Excerpt of Motion Hearing, Testimony ofEzequiel Navedo before Hon. Nancy Gertner, at 13.

11. Defendants' Motion to Dismiss, or, Alternatively, for SummaryJudgment at 9.

12. In Popovich v. Cuyahoga County Court of Common Pleas, 227 F.3d 627,641-42 (6th Cir. 2000), the court held that Congress exceeded its § 5enforcement authority when it abrogated state Eleventh Amendment immunityin Title II of the A.D.A., but that opinion was later vacated when theSixth Circuit granted a petition for a rehearing en banc. 2000 U.S.App.LEXIS 33978 (6th Cir. Dec. 12, 2000). No published decision had issued onthe en banc rehearing as of the date this opinion was filed.

13. Even had Navedo attempted to sue CMS for damages in its"individual" capacity, this approach would have been to no avail: TheSupreme Court has held that organizations do not qualify as "persons"within the meaning of § 1983. Costello v. MassachusettsRehabilitation Comm'n, 982 F. Supp. 61, 68 (D.Mass. 1997) (citing Will,491 U.S. at 64, 109 S.Ct. 2304).

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

Plaintiff Ezequiel Navedo ("Navedo") filed this action against variousofficials of the Massachusetts Department of Corrections, a privateentity contracted to perform medical services at the prison, andemployees (physicians) of that entity. He claims that their refusal toallow him access to a wheelchair and to disabled-accessible facilitiesduring his incarceration at the Massachusetts Correctional Institution atNorfolk ("MCI Norfolk") and at the Massachusetts Correctional Institutionat Shirley ("MCI Shirley") deprived him of his civil rights and causedsevere and irreparable damage to his left leg.1

Navedo alleges that permanent disabilities in his back, hips, and leftleg have rendered him wheelchair-bound. However, on his transfer to MCINorfolk, the defendants denied him permission to use a wheelchair; notbecause of medical issues, but simply because the prison facilities werenot wheelchair-accessible. Defendants also failed to provide him withaccess to safe showering facilities for over a month. Moreover, thesituation was not remedied on Navedo's subsequent transfer to MCIShirley, a disabled-accessible facility, where Navedo was again deniedthe use of a wheelchair and an accessible shower. As a result, Navedoalleges, his physical condition was exacerbated: The defendants subjectedhim to cruel and unusual punishment, deprived him of his civil rights,and caused him emotional as well as physical distress.

The six defendants are: Michael T. Maloney ("Maloney"), Commissioner,Massachusetts Department of Correcions; Timothy Hall ("Hall"),Superintendent, MCI Norfolk, Tempthia Battle ("Battle"), DeputySuperintendent, MCI Norfolk; Correctional Medical Services, Inc.("CMS"); Joyce Cormo ("Cormo"), Health Services Administrator for CMS atMCI Norfolk; Nawfal Istfan ("Istfan"), a physician employed by CMS andMedical Director of MCI Norfolk; and the Commonwealth of Massachusetts("Commonwealth"). Two different motions for summary judgment are pendingbefore this Court: one raised by the corrections officials, defendantsMaloney, Hall, Battle, and the Commonwealth, and the other by CMS,Cormo, and Istfan. Taken together, the defendants argue that Navedocannot satisfy the Eighth Amendment standard of deliberate indifferenceto serious medical need, that at least some of the defendants areentitled to qualified immunity, and that Title II of the Americans withDisabilities Act, 42 U.S.C. § 12131 et seq., is inapplicable due tothe nature of Navedo's disability and to the measures taken by thedefendants to accommodate him.

For the reasons set forth below, Maloney et al.'s Motion to Dismiss,or, in the Alternative, for Summary Judgment [docketentry # 33] is DENIED as to defendant Maloney and GRANTED as todefendants Hall and Battle with regard to the Eighth Amendment and §1983 claims; the A.D.A. claims as against the defendants in theirindividual capacities are DISMISSED; and summary judgment with regard tothe remaining A.D.A. claims is DENIED. CMS et al.'s Motion for SummaryJudgment [docket entry # 44] is DENIED as to defendant Istfan, GRANTED asto defendant Cormo, and GRANTED IN PART AND DENIED IN PART as todefendant CMS.

I. FACTS

As required in considering a motion for summary judgment, I review thefacts in the light most favorable to Navedo, the non-moving party. InJune of 1993, Navedo sustained serious injuries to his back, hips, andleft leg as a result of an auto accident. After medical treatment,Navedo's left leg remained permanently disfigured, and he made regularuse of a wheelchair. While the parties dispute the extent of Navedo'sinjuries over the time covered by the complaint, specifically, andwhether he was completely wheelchair-bound throughout, it is a fact thathe entered the Massachusetts Correctional Institution at Concord ("MCIConcord") in July of 1998 in a wheelchair, and he retained use of andaccess to his wheelchair at all limes while incarcerated there.Likewise, when Navedo was transferred to the Massachusetts CorrectionalInstitution at Pondville ("MCI Pondville")2 in November of 1998, hearrived in a wheelchair and had access to a wheelchair at all times, evenas he was undergoing physical therapy and became able to ambulate onlyintermittently using a foot brace and a cane.

It is also a fact that when Navedo was transferred to MCI Norfolk inJuly of 1999, there was a notation on Navedo's Intrasystem Transfer Formthat he was "wheelchair-bound."3 Nevertheless, Navedo claims that hewas told — at the Norfolk prison gate — that he would not bepermitted to keep his wheelchair because the facility was notwheelchair-accessible. The defendants do not contradict this allegation,by affidavit. Rather they suggest that whatever Navedo was told at thegate, Norfolk did not provide Navedo with a wheelchair because CMS staffconcluded that he did not require one.

From July 1999 through April 2000, while Navedo remained at MCINorfolk, Navedo's condition (as observed and recorded by defendantIstfan, his treating physician) became progressively worse, resulting indiminished motor functioning of his lower extremities; his bladderfunction also appeared to be deteriorating.4 Navedo's repeatedrequests for a wheelchair were turned down,5 and he did not receivephysical therapy at any time while incarcerated at MCI Norfolk.

Shortly after his transfer to MCI Norfolk, Navedo sustained a fall in abathroom, which he alleges was partially due to the lack of a grab bar orother disability accommodations in the facilities. Severalweeks later, he was moved to a single, disabled-accessible cell in atransitory unit normally used for inmates awaiting a permanent cellassignment; Navedo did not receive access to an accessible unit with ashower until September 12, 1999.

Because there were no permanent cells at Norfolk that provided disabledaccess, Navedo had to remain in the transitory unit, where inmatesretained substantially fewer privileges.6 This unit was located atthe opposite end of the facility from the gym and from most otherprograms and activities. Navedo's subsequent request for a stand-up lockerin his cell (because he could not access his personal storage space dueto his disability) was denied, and he was forced to leave a number ofpersonal items on the floor of his cell, resulting in warnings that hiscell was not in compliance with institution rules for storage of personalitems.

Significantly, on January 27, 2000, the MCI Norfolk ClassificationBoard7 voted to recommend Navedo's transfer to MCI Shirley, based ona determination that his "current medical issues [] can be better dealtwith in the proper environment." Defendant Battle promptly approved thetransfer on February 1. Defendant Maloney, however, refused to transferNavedo, claiming that his "medical needs can be met at Norfolk."8

Navedo was finally transferred to MCI Shirley in April 2000,9 wherehe is presently incarcerated. On April 10, he requested an orthopedicmattress of the same type given to him at MCI Norfolk. Dr. Rencricca, aCMS doctor at Shirley, denied this request one week later, finding noindication in Navedo's record that such a mattress was required. AtShirley, Navedo has been placed in a disabled-accessible cell, but hasnot been given access to a safe, accessible unit with a shower. He wasoffered the use of a wheelchair, but one without leg supports; when heobjected to the lack of leg supports, he was not provided with analternative wheelchair.10 He is currently being treated by a physicaltherapist at MCI Shirley, and is awaiting treatment by an orthopedicsurgeon.

II. LEGAL DISCUSSION

Navedo alleges that the defendants subjected him to cruel and unusualpunishment in violation of the Eighth Amendment, deprived him of his civilrights, and discriminated against him on the basis of disability. Heargues that the defendants' subjective awareness of his medicalconditionand of his need for a wheelchair, and their refusal to provide him withmore appropriate conditions, amount to deliberate indifference to hisserious medical condition, and have caused him severe pain andsuffering. Moreover, Navedo claims that his living conditions in thetransitory unit at MCI Norfolk (July 1999 to April 2000) deprived him ofthe enjoyment of programs, activities, benefits, and privileges availableto all non-disabled inmates.

The defendants have raised two sets of arguments for summary judgment.Maloney et al. claim that Navedo has made no Eighth Amendment showingthat they were deliberately indifferent to his medical needs. Rather,they characterize the situation as a difference of opinion as to themedical necessity of a wheelchair. They point out that Navedo has"received extensive care and treatment for several medicalconditions"11 during the course of his incarceration.

As to Navedo's § 1983 claims, Maloney et al. argue that they cannotbe held vicariously liable for the allegedly tortious actions of theirsubordinates, that they cannot be sued under § 1983 in their officialcapacities, and that Navedo failed to allege that they were personsacting under color of state law.

With regard to certain of the A.D.A. claims, Maloney et al. take theposition that (1) they are protected by qualified immunity, (2) Navedodoes not qualify for protection under the A.D.A. because his physicalimpairments do not substantially limit him in a major life activity, and(3) they did reasonably accommodate his disabilities. They also arguethat, in any case, under the Supreme Court's recent decision in Board ofTrustees of the University of Alabama v. Garrett, 531 U.S. 356, 121S.Ct. 955, 148 L.Ed.2d 866 (2001), Title II of the A.D.A. does notvalidly abrogate state sovereign immunity under the Eleventh Amendment,and is an unconstitutional exercise of Congress's legislative power.

CMS et al., in their motion for summary judgment, argue that: (1) theywere not deliberately indifferent to Navedo's medical needs; (2) theycannot be held vicariously liable under § 1983; and (3) to the extentthat Navedo's claims sound in malpractice or negligence, they should betransferred to Massachusetts Superior Court for the purposes of conveninga medical malpractice tribunal pursuant to M.G.L. ch. 231, § 60B.

With regard to defendants Hall, Battle, and Cormo, I agree thatplaintiff has failed to raise a triable question as to their deliberateindifference to his medical needs, and accordingly summary judgment isGRANTED in their favor. With regard to defendant CMS, the entity is notamenable to suit for damages under § 1983, and any claims against CMSfor damages are hereby DISMISSED. A suit for injunctive relief ispermissible, but only with regard to Navedo's claims based on his currenttreatment at MCI Shirley, not his past treatment at MCI Norfolk.Accordingly, insofar as Navedo's § 1983 claims against defendant CMSare based on alleged incidents at MCI Norfolk, they are DISMISSED;insofar as they rest on his current treatment at Shirley, summaryjudgment is DENIED. However, as to defendants Maloney and Istfan under§ 1983, and as to defendant Maloney under the A.D.A., I find thatNavedo has raised issues of fact that warrant a jury trial, and summaryjudgment is DENIED on these grounds.

A. Summary Judgment Standard

Fed.R.Civ.P. 56(c) provides, in pertinent part, that a court may grantsummaryjudgment only if "the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law."

In ruling on a summary judgment motion, the Court must view the recordand draw inferences in the light most favorable to the non-moving party.Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482,486 (1st Cir. 1981). "When a party fails to make a showing sufficient toestablish the existence of an element essential to that party's case, andon which that party bears the burden of proof at trial, there can nolonger be a genuine issue as to any material fact . . . and the movingparty is entitled to judgment as a matter of law." Smith v. StratusComputer, Inc., 40 F.3d 11, 12 (1st Cir. 1994).

This Court must, therefore, undertake to determine (1) whether factualdisputes exist, (2) whether the factual disputes are genuine (i.e., areasonable fact-finder could return a verdict for the nonmoving party onthe basis of the evidence), and (3) whether any fact genuinely in disputeis material (i.e., such that it might affect the outcome of the suitunder the applicable substantive law). See Anderson v. Liberty Lobby,477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Maloney et al.'s Motion to Dismiss, or, in the Alternative, for Summary Judgment

1. Eighth Amendment 142 U.S.C. § 1983

[1, 2] In order to state a claim under § 1983, a plaintiff mustallege two elements: 1) that the conduct complained of has been committedunder color of state law, and 2) that this conduct worked a denial ofrights secured by the Constitution or laws of the United States.Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999). In thepresent case, there is no real dispute that the defendants were, in fact,acting under color of state law in their capacities as prison officials;Navedo's failure to use the term "color of state law" in the initialcomplaint is not dispositive of the issue. See Estelle v. Gamble,429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that prose complaint must be held to "less stringent standards than formalpleadings drafted by lawyers" and can only be dismissed for failure tostate a claim if it appears "beyond doubt that the plaintiff can prove noset of facts in support of his claim which would entitle him torelief").

[3] As to the second prong, denial of rights secured by theConstitution or laws of the United States, the Supreme Court hasestablished that the treatment a prisoner receives in prison and theconditions of his/her confinement are subject to scrutiny under theEighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970,128 L.Ed.2d 811 (1994). Mere negligence or medical malpractice on thepart of prison doctors or officials, however, is not sufficient toestablish an Eighth Amendment violation. The standard is higher: "Inorder to state a cognizable claim, a prisoner must allege acts oromissions sufficiently harmful to evidence deliberate indifference toserious medical needs." Estelle, 429 U.S. at 106, 97 S.Ct. 285; see alsoFarmer, 511 U.S. at 834, 114 S.Ct. 1970. Plaintiff must prove (1) aserious medical need, and (2) the defendant's purposeful indifference tothat need. Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987).

a. Serious Medical Need

The First Circuit has defined a "serious medical need" as either onethat a physician has diagnosed and deemed to requiretreatment, or one that is "so obvious that even a lay person would easilyrecognize the necessity for a doctor's attention." Mahan v. PlymouthCounty House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995) (quotingGaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990),cert. denied, 500 U.S. 956, 111 S.Ct. 2266, 114 L.Ed.2d 718 (1991)).

[4] There can be little question that Navedo actually has seriousmedical needs, which have been diagnosed by doctors on multiple occasionssince his accident in 1993. In fact, unlike many prison medical treatmentcases, the claim here is not that prison officials somehow ignored a newcondition that arose while the plaintiff was incarcerated. Rather, theclaim is necessarily stronger. It involves taking away accommodations— a wheelchair, special facilities — that plaintiff plainlyneeded and had used at other institutions. The only question is one ofdegree: the extent of Navedo's initial injury, the extent to which hesubsequently required a wheelchair with leg supports, and how his needsvaried throughout the period of his incarceration. Both sides haveintroduced substantial evidence on the subject, including Navedo'smedical records from both before and during his incarceration and theaffidavit of his treating physician, Dr. Istfan. Plainly, this is anissue of material fact, not amenable to resolution on summary judgment.

b. Deliberate Indifference

[5-7] In addressing the question of what qualifies as deliberateindifference, the Supreme Court has held that, in order to be foundliable under the Eighth Amendment, a prison official must know of anddisregard an excessive risk to inmate health or safety. Farmer, 511 U.S.at 837, 114 S.Ct. 1970 (emphasis added). In other words, the officialmust both be aware of facts from which the inference could be drawn thata substantial risk of serious harm exists, and he must actually draw theinference. Id. Moreover, because respondeat superior is not available asa theory of liability under § 1983, see Monell v. Dep't of Soc.Servs., 436 U.S. 658, 696 n. 58, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985), cert. denied subnom. Town of Saugus v. Voutour, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d916 (1986), a supervisory official's liability must stem from his or herown actions or omissions, which must be "affirmatively connect[ed] to thesubordinate's violative act or omission," and which must themselves riseto the level of deliberate indifference. See Maldonado-Denis v.Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994) (holding that, evenif a supervisor lacks actual knowledge of censurable conduct, he may beliable for the foreseeable consequences of such conduct if (1) he wouldhave known of it but for his deliberate indifference or willfulblindness, and (2) he had the power and authority to alleviate it); Laynev. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981) ("[w]hen a supervisoryofficial is placed on actual notice of a prisoner's need for physicalprotection or medical care, administrative negligence can rise to thelevel of deliberate indifference to or reckless disregard for theprisoner's safety"); see also Kosilek v. Nelson, No. C.A. 92-12820-MLW,2000 WL 1346898, at *5 (D.Mass. 2000).

Where a party's mental state is a material aspect of the claim at issue— here, how much defendants Hall, Maloney, and Battle knew ofNavedo's medical condition — the law of this Circuit urges somecaution in disposing of that claim through summary judgment. SeeStepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922,928 (1st Cir. 1983) (stressing special importance of jury judgments ofcredibility in cases where the state of mindof a party is crucial to the outcome of the case); see also In reVarrasso, 37 F.3d 760, 764 (1st Cir. 1994) ("courts must be exceptionallycautious in granting brevis disposition" in cases where a party's stateof mind is in issue); Broderick v. Roache, 996 F.2d 1294, 1299 n. 9 (1stCir. 1993); Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987).

At a minimum, there must be a genuine dispute as to whether Maloney,Hall, and/or Battle knew of Navedo's medical needs and knew that themedical care being provided to him was "clearly inadequate" to meet thoseneeds. "The question is, charging [prison officials] with reasonableinquiry, and allowing for reliance on the opinions of the treatingdoctors, . . . how did the overall picture appear? What appeared to lackdoing? What could be done?" Layne, 657 F.2d at 471-72.

[8] First, with respect to Hall and Battle: While it may be thatdefendants Hall and Battle could have done more in terms of procuringtreatment for Navedo, this is far short of the standard of "deliberateindifference" to which the Eighth Amendment holds prison officials. Evenif I were to assume that Hall and Battle did have full knowledge ofNavedo's medical condition (which is unlikely given that they are notdoctors themselves, did not stand in a direct supervisory relationship tothe medical staff, and the medical reports were themselves conflicting),Navedo has introduced little to no evidence of their deliberateindifference to that condition. In fact, what evidence he has introducedtends to point in the opposite direction. For example, it is undisputedthat defendant Battle approved the Classification Board's recommendationthat Navedo be transferred to MCI Shirley on the grounds that his medicalconcerns could be better addressed there. Classification Form, attachedto Plaintiff's Opposition to Defendant's Motion to Dismiss, or in theAlternative, Motion for Summary Judgment as Exhibit M ("ClassificationForm"). As to defendant Hall, the letter he wrote to Navedo only two daysafter Navedo wrote to him indicates that Hall did respond seriously toNavedo's requests, and that he asked defendant Cormo to "have [Navedo's]medical needs assessed so that the institution can make appropriateaccommodations." Letter from Hall to Navedo, Dec. 15, 1999, attached toPlaintiff's Opposition to Defendants CMS, Istfan, and Cormo's Motion forSummary Judgment as Exhibit L ("Hall Letter"). Navedo's transfer toShirley was recommended promptly on January 27, 2000, and approved bydefendant Battle on February 1. Accordingly, I GRANT defendants' motionfor summary judgment with respect to Hall and Battle.

[9] With regard to defendant Maloney, however, the case for "deliberateindifference" is markedly stronger. Despite the Classification Board'srecommendation that Navedo be transferred to MCI Shirley "due to hiscurrent medical issues that can be better dealt with in the properenvironment," and despite defendant Battle's approval of that transfer,defendant Maloney nonetheless denied the transfer, noting that Navedo's"medical needs can be met at Norfolk." Given the contrary recommendationsof the prison's own medical staff and of defendant Battle, and given theevidence plaintiff has introduced as to his own complaints (e.g., hismedical records, numerous CMS Sick Call Request Forms, and his owntestimony), a triable issue remains with respect to Maloney's deliberateindifference to Navedo's needs.

Moreover, Navedo's claims include not only the denial of medical careto him personally, but Maloney's failure to maintain MCI Norfolk inaccordance with federal standards of accessibility for disabled inmates.As the First Circuit has made clear, the statutory duties of theCommissionerof Corrections are to be construed broadly, in accordance withMassachusetts law. Dimarzo v. Cahill, 575 F.2d 15, 17 (1st Cir. 1978),cert. denied, 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978); see alsoLayne, 657 F.2d at 471 n. 3 (noting that in Dimarzo "we charged theCommissioner of Corrections with the constructive knowledge ofprison-wide conditions which he was statutorily obliged to inspect andremedy"). Thus, in addition to issues with respect to Navedo's transfer,there are triable issues with regard to the degree of accessibility atMCI Norfolk, Maloney's knowledge of these conditions, and what steps, ifany, he has taken to remedy what problems there may be.

2. Qualified Immunity

[10, 11] Because qualified immunity is an affirmative defense, theburdens of pleading and persuasion rest with the defendant. DiMarco-Zappav. Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001); see also Harlow v.Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982);Gomez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 64 L.Ed.2d 572(1980). The determination of a claim of qualified immunity is"independent of the merit of the underlying constitutional claim."Cookish v. Powell, 945 F.2d 441, 443 (1st Cir. 1991) (quoting Morales v.Ramirez, 906 F.2d 784, 787 (1st Cir. 1990)). Thus, even if an official'sactions should constitute a clear violation of the plaintiffsconstitutional rights, the defendant is entitled to summary judgmentbased on qualified immunity if it was objectively reasonable, based onclearly established law and in light of the information the officialspossessed at the time of his conduct, for him to conclude that theviolation was in fact lawful. Cookish, 945 F.2d at 443; Loutinger v.Broderick 50 F.3d 61, 65 (1st Cir. 1995); see also Harlow, 457 U.S. at818, 102 S.Ct. 2727; Bilida v. McCleod, 211 F.3d 166, 174 (1st Cir.2000); Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1991).

Notwithstanding the usual summary judgment requirement, all facts andreasonable inferences are to be construed in favor of the nonmovingparty, the First Circuit has characterized the analysis employed todetermine whether an official is entitled to summary judgment onqualified immunity grounds as "quite generous." Lowinger, 50 F.3d at 65(observing that "the qualified immunity standard gives ample room formistaken judgments by protecting all but the plainly incompetent or thosewho knowingly violate the law"). At the same time, if the plaintiff hasintroduced evidence competent to substantiate both an infringement of hisrights and that those rights were clearly established at the time ofinfringement, "an inquiring court can then presume that the defendantknew, or should have known, that his conduct was beyond the pale," andsummary judgment for the defense is inappropriate. Buenrostro, 973 F.2dat 42 & n. 3.

As discussed above, since the Supreme Court has made it clear that theEighth Amendment protects prisoners from the deliberate denial ofnecessary care for serious medical conditions, Farmer, 511 U.S. at 832,114 S.Ct. 1970; Estelle, 429 U.S. at 106, 97 S.Ct. 285, the second prong— the "clearly established" requirement — has been met. As tothe first prong, the question of whether Navedo's Eighth Amendment rightswere infringed turns largely on whether it was reasonable for defendantMaloney to take the action he did based on what he knew at the time. IfMaloney made an objectively reasonable determination based on what heknew at the time, and did not intentionally keep himself ignorant ofother pertinent facts about Navedo's condition, then he would be entitledto qualified immunity.

[12] Strikingly, whereas the usual claim of qualified immunity israised by an official who relied on the recommendations of subordinatesin the exercise of his duties, here, defendant Maloney appears to havedone exactly the opposite: He denied Navedo's transfer notwithstandingthe recommendations of the Classification Board, the medical staff, anddefendant Battle. If indeed Maloney knew that Navedo needed awheelchair, that Navedo's medical needs could not be met at MCI Norfolk,or that MCI Norfolk failed to comply with federal accessibilitystandards, and did nothing to remedy the situation, this inaction on hispart would be hard to characterize as objectively reasonable. Thus, on thebasis of the factual issues presented in the record, I find thatdefendant Maloney is not entitled to qualified immunity, and DENY summaryjudgment with regard to him.

3. A.D.A.

a. Sovereign Immunity

[13] Defendants argue that Congress did not validly abrogate statesovereign immunity in Title II of the A.D.A., which prohibitsdiscrimination against qualified individuals with disabilities in allprograms, activities and services of public entities. They conclude thatany A.D.A. claims raised here are barred by the Eleventh Amendment. Idisagree. As plaintiff rightly points out, the Supreme Court in Garrettexplicitly declined to extend its holding beyond Title I of the A.D.A.Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 360,121 S.Ct. 955, 960 n. 1, 148 L.Ed.2d 866 (2001). (Thus, as one court hasobserved, "[t]he holding of Garrett simply allows states to invokesovereign immunity when faced with claims for money damages under Title Iof the A.D.A." Doe v. Rowe, 156 F. Supp.2d 35, 56-57 (D.Me. 2001)).

Moreover, the Garrett Court was explicit about why it declined to reachTitle II: The troubling "lack of findings" in the legislative record withregard to discrimination based on disability by state employers was notmirrored in other areas, such as public services. Id. at 966 & n. 7(concluding that the "overwhelming" majority of accounts ofdisability-based discrimination in the legislative record "pertain toalleged discrimination by the States in the provision of public servicesand public accommodations, which are addressed in Titles II and III ofthe A.D.A."). Thus, even as it invalidated Title I's abrogation ofsovereign immunity, the Supreme Court recognized that Title II rested ona far different base of legislative findings, and declined to include itwithin the sweep of Garrett's holding.

In the absence of a definitive ruling from the Supreme Court, thecircuit courts have split on the question of whether the extension ofTitle II of the A.D.A. to the states is a permissible exercise ofCongress's Section 5 power. While the First Circuit has not yet ruleddirectly on the issue, the court in Torres v. Puerto Rico Tourism Co.,175 F.3d 1, 6 n. 7 (1st Cir. 1999), observed in dicta that "we haveconsidered the issue of Congress's authority sufficiently to concludethat . . . we almost certainly would join the majority of courtsupholding [Title II of the A.D.A.]." The Seventh Circuit has followedAlsbrook and the Eighth Circuit; see Erickson v. Bd. of Governors ofState Colleges and Universities for Northeastern Illinois Univ.,207 F.3d 945, 948 (7th Cir. 2000) (abrogating Crawford v. Indiana Dep'tof Corrections, 115 F.3d 481 (7th Cir. 1997), on the grounds that theholding in Crawford was based on an analogy to the A.D.E.A., which theSupreme Court held to be an unconstitutional exercise of Congress'sSecion 5 power in Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120S.Ct.631, 145 L.Ed.2d 522 (2000)). The Fifth, Ninth, and Eleventh Circuitshave upheld the constitutionality of Title II; see Dare v. California,191 F.3d 1167, 1173 (9th Cir. 1999); Kimel v. Florida Bd. of Regents,139 F.3d 1426 (11th Cir. 1998), aff'd on other grounds, 528 U.S. 62, 120S.Ct. 631, 145 L.Ed.2d 522 (2000); Coolbawgh v. Louisiana, 136 F.3d 430(5th Cir.), cert. denied; 525 U.S. 819, 119 S.Ct. 58, 142 L.Ed.2d 45(1998); but see Williamson v. Georgia Dep't of Human Resources,150 F. Supp.2d 1375, 1380-81 (S.D.Ga. 2001). The Fourth Circuit remainsdivided on the issue; compare Brown v. North Carolina Div. of MotorVehicles, 166 F.3d 698 (4th Cir. 1999) (holding that regulationpromulgated under A.D.A. Title II exceeded Congress's Secion 5 powers),with Amos v. Maryland Dep't of Pub. Safety & Correctional Servs.,178 F.3d 212 (4th Cir. 1999) (holding that application of Title II tostate prisons is a constitutional exercise of Congress's Section 5power). And, in the Second, Third, and Sixth12 Circuits, where thecourts of appeals have not ruled on the issue, numerous decisions at thedistrict court level have sustained Title II's constitutionality; see,e.g., Garcia v. State Univ. of New York Health Sciences Center atBrooklyn, No. CV 97-4189 (RR), 2000 WL 1469551 (E.D.N.Y. 2000); Thropev. Ohio, 19 F. Supp.2d 816 (S.D.Ohio 1998); Pease v. University ofCincinnati Med. Ctr., 6 F. Supp.2d 706 (S.D.Ohio 1998); Muller v.Costello, 997 F. Supp. 299 (N.D.N.Y. 1998); Young v. Pennsylvania Houseof Representatives, 994 F. Supp. 282 (M.D.Pa. 1998); Niece v. Fitzner,941 F. Supp. 1497 (E.D.Mich. 1996); but see Hedgepeth v. Tennessee,33 F. Supp.2d 668 (W.D.Tenn. 1998).

Thus, in light of the Supreme Court's reasoning in Garrett, and inlight of the preponderance of case law in favor of Title II's validity, Idecline to substitute my judgment for that of Congress, and DENYdefendants' motion for summary judgment on this ground.

b. Individual Liability, Individual Capacity

Neither the Supreme Court nor the First Circuit has ruled on whethergovernment officials may be sued directly, in their individualcapacities, under Title II of the A.D.A. (In Bartolomeo v. PlymouthCounty House of Corrections, 2000 WL 1164261, *1, 229 F.3d 1133 (1stCir. Aug. 16, 2000) (unpublished decision), the court did "assume withoutdeciding" that such suits were available.) The two circuits that haveaddressed the issue — the Seventh and the Eighth — andseveral district courts have held that such suits are not available.See, e.g., Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000);Alsbrook, 184 F.3d at 1005 n. 8; Thomas v. Nakatani, 128 F. Supp.2d 684,692 (D.Haw. 2000); Calloway v. Boro of Glassboro Dep't of Police,89 F. Supp.2d 543, 556 (D.N.J. 2000); Yeskey v. Pennsylvania,76 F. Supp.2d 572, 575 (M.D.Pa. 1999); Montez v. Romer, 32 F. Supp.2d 1235,1240 (D.Colo. 1999); Smith v. Univ. of the State of New York, No.95-CV-0477E(H), 1997 WL 800882, at *8 (W.D.N.Y. Dec. 31, 1997). But seeNiece v. Fitzner, 922 F. Supp. 1208, 1218-19 (E.D.Mich. 1996). The EighthCircuit's reasoning in Alsbrook, which was reflected in many of thesedecisions, focused on the statutory term "public entity" as defined in42 U.S.C. § 12131 (1), which did not seem tocontemplate individual defendants sued in their individual capacities.Alsbrook, 184 F.3d at 1005 n. 8; Yeskey, 76 F. Supp.2d at 575.

[14] 42 U.S.C. § 12131 (1) defines "public entity" as follows: "(A)any State or local government; (B) any department, agency, specialpurpose district, or other instrumentality of a State or States or localgovernment; and (C) the National Raliroad Passenger Corporation, and anycommuter authority (as defined in section 502(8) of Title 45)." In lightof this statutory language, I agree with the Eighth Circuit and thedistrict courts that suits against government officials in theirindividual, non-official capacities do not appear to be contemplated byTitle II of the A.D.A. Thus, insofar as Navedo's A.D.A. claims have beenraised against defendants Maloney, Hall, or Battle in their individualcapacities, these claims are DISMISSED.

c. Individual Liability, Official Capacity

[15] As both sides in this case are aware, the Supreme Court has heldthat, in the § 1983 context, where a suit is brought againstindividual public officials in their official capacities, such a suit iseffectively to be considered a suit against the officials' office(s).Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304,105 L.Ed.2d 45 (1989); see also Wang v. New Hampshire Bd. of Registrationin Medicine, 55 F.3d 698 (1st Cir. 1995). Applying this rule in thecontext of A.D.A. Title II, the implication is simply that Navedo hasbrought his A.D.A. claims against Maloney et al.'s offices, whichcomports exactly with the "public entity" language of Title II. Forclaims arising under Section 1983, a suit against the state office itselfwould be barred on sovereign immunity grounds; this is precisely whyNavedo dropped his Section 1983 claim against the Commonwealth. For TitleII of the A.D.A., however, the Commonwealth is an appropriate defendant,and Maloney et al.'s motion for summary judgment on this ground isDENIED.

d. Statement of Claim

In order to state a claim under Title II of the A.D.A., Navedo mustestablish that: (1) he is a qualified individual with a disability; (2)he was excluded from participation in a public entity's services,programs, or activities or otherwise discriminated against; and (3) suchexclusion or discrimination was by reason of his disability.42 U.S.C. § 12132; Parker v. Universidad de Puerto Rico, 225 F.3d 1,4 (1st Cir. 2000); cf. Pennsylvania Dep't of Corrections v. Yeskey,524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (holding that TitleII of the A.D.A. applies in the prison context). A.D.A. Title II defines"qualified individual with a disability" as an "individual with adisability who, with or without reasonable modifications, . . . meets theessential eligibility requirements for the receipt of services or theparticipation in programs or activities provided by a public entity."42 U.S.C. § 12131 (2); Parker, 225 F.3d at 5.

[16] In the present case, Navedo has certainly presented sufficientevidence to survive summary judgment on the grounds of his status as aqualified individual with a disability. He has also alleged, andintroduced evidence of, actions by the defendants that, if true, couldqualify as disability-based discrimination and/or deprivation with regardto services, programs, or activities. It would not be beyond the realm ofreason for a jury to find that Navedo's incarceration in a non-accessiblefacility, his concomitant differential treatment there, or the refusal ofdefendants to allow him the use of a wheelchair constitutedisability-based discrimination within the meaning of Title 11 of theA.D.A. Thus, IDENY summary judgment on these grounds.

C. CMS et al.'s Motion for Summary Judgment Eighth Amendment/42 U.S.C. § 1983

1. Deliberate Indifference

a. Dr. Istfan

Navedo has raised claims against Dr. Istfan both in his capacity as atreating physician and in his capacity as medical director of CMS at MCINorfolk. Both sets of claims are to be assessed with reference to thestandard of deliberate indifference, since, as discussed above, merenegligence or medical malpractice on Istfan's part would not besufficient to make out an Eighth Amendment claim. Estelle, 429 U.S. at106, 97 S.Ct. 285.

[17] of all of the defendants in this case, defendant Istfan is in thebest position to have direct knowledge of Navedo's medical condition.Based on the evidence now before me, there are clear and genuine disputesas to exactly what Istfan knew, and the extent to which Navedo complainedto him. The evidence as to whether Navedo in fact requires, or requiredat different times, a wheelchair, and whether he articulated theserequests to defendant Istfan, is conflicting; plaintiff has at leastcarried his summary judgment burden this far. Given Istfan's position atMCI Norfolk and his examination of Navedo, there appears to be littlequestion that Istfan, in his capacity as director of CMS at MCI Norfolk,could have allowed Navedo the use of a wheelchair if one was warranted,and has consistently maintained that one was not required. While the factthat he "could" have done more, by itself, is far from constituting avalid Eighth Amendment claim for denial of medical care, if Istfan failedto do more with full knowledge that Navedo did in fact require awheelchair, then this could very well rise to the level of "deliberateindifference" — intentional denial of a wheelchair to someone whogenuinely needs one could reasonably be viewed as a form of "unnecessaryand wanton infliction of pain." Estelle, 429 U.S. at 105, 97 S.Ct. 285.With regard to defendant Istfan, summary judgment is accordingly DENIED.

b. Cormo

[18] With regard to defendant Cormo, the picture looks somewhatdifferent. From the contents of the letter defendant Hall wrote toNavedo, it appears that Cormo did have at least some knowledge that theextent of medical care required by Navedo was in dispute, and that shewas charged with "hav[ing] Navedo's medical needs assessed so that theinstitution can make appropriate accommodations." However, even assumingthat defendant Cormo did have such knowledge, plaintiff has presentedlittle to no evidence to establish deliberate indifference on her part tohis needs. Navedo alleges that Cormo "fail[ed] to act or intervene in[his] medical treatment in light of her awareness of [his] need formedical care." Plaintiffs Opposition to Defendants' Motion for SummaryJudgment at 16. However, he presents no evidence to substantiate thisallegation; it is entirely unclear in what respect Cormo "failed to act,"either directly or in a supervisory capacity. In fact, given therelatively short time span between Hall's letter to Navedo and therecommendation that Navedo be transferred to MCI Shirley, the inferencearises at the very least that Cormo did in fact have Navedo's medicalrecords reviewed, as requested, in order to assess whether he should betransferred. Not a doctor herself, Cormo did not examine Navedo, and shecertainly cannot be charged with any detailed knowledge of his conditionbeyond the contents of his medical records and the recommendations of themedical staff, plus any complaints brought to her attention.

In short, with straight respondeat superior liability unavailable underMonell, plaintiff has failed at this stage to raise any triable issue asto defendant Cormo's role in his alleged denial of medical care.Defendants' Motion for Summary Judgment as to Defendant Cormo is herebyGRANTED.

2. CMS and § 1983

[19, 20] Insofar as Navedo is seeking monetary damages from defendantCMS under § 1983, any such claims must be dismissed on jurisdictionalgrounds. In Will, 491 U.S. at 71, 109 S.Ct. 2304, the Supreme Court heldthat neither states nor state officials acting in their officialcapacities constitute "persons" within the meaning of § 1983. Seealso Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991), cert.denied, 502 U.S. 1063, 112 S.Ct. 948, 117 L.Ed.2d 117 (1992); Wilson v.Brown, 889 F.2d 1195, 1197 (1st Cir. 1989) (observing that "a penalsystem is an essential appendage of the state corpus"). Thus, insofar asCMS, the entity, is being sued for damages "in its official capacity,"this court lacks jurisdiction over any such claims, and they must bedismissed.13 Under Will, states may be sued under § 1983 forinjunctive relief only. 491 U.S. at 71 n. 10, 109 S.Ct. 2304. Navedo'stheory of CMS's liability rests on two different sets of conduct in twodifferent time periods: the actions of defendant Istfan and the othermedical staff at MCI Norfolk, and the continued refusal of the CMSmedical staff at MCI Shirley to provide him with safe showeringfacilities and a wheelchair with leg supports. Since Navedo is no longerat Norfolk, there is no call for prospective relief against CMS in thisregard. However, insofar as Navedo's claims rest on his treatment atShirley, injunctive relief may be appropriate if Navedo can demonstratethat CMS's treatment of him at Shirley has risen, and continues to rise,to the level of "deliberate indifference," as required to make out anEighth Amendment violation. This is a parallel inquiry to that withregard to defendant Istfan at Norfolk; it implicates questions of whatthe CMS staff and supervisors have known and understood of Navedo'scondition throughout his time at Shirley. These are quintessential issuesof fact and mental state, inappropriate for resolution via summaryjudgment. Accordingly, insofar as Navedo seeks injunctive relief againstCMS with regard to his treatment at MCI Shirley, summary judgment isDENIED.

III. CONCLUSION

For the foregoing reasons, Maloney et al.'s Motion to Dismiss, or, inthe Alternative, for Summary Judgment [docket entry # 33] is DENIED as todefendant Maloney and GRANTED as to defendants Hall and Battle withregard to the Eighth Amendment and § 1983 claims; the A.D.A. claimsas against the defendants in their individual capacities are DISMISSED;and summary judgment with regard to the remaining A.D.A. claims isDENIED. CMS et al.'s Motion for Summary Judgment [docket entry # 44] isDENIED as to defendant Istfan, GRANTED as to defendant Cormo, and GRANTEDIN PART AND DENIED IN PART as to defendant CMS.

ORDER

For the reasons set forth in the accompanying Memorandum and Order,Maloneyet al.'s Motion to Dismiss, or, in the Alternative, for Summary Judgment[docket entry # 33] is DENIED as to defendant Maloney and GRANTED as todefendants Hall and Battle with regard to the Eighth Amendment and §1983 claims; the A.D.A. claims as against the defendants in theirindividual capacities are DISMISSED; and summary judgment with regard tothe remaining A.D.A. claims is DENIED. CMS et al.'s Motion for SummaryJudgment [docket entry #44] is DENIED as to defendant Istfan, GRANTED asto defendant Cormo, and GRANTED IN PART AND DENIED IN PART as todefendant CMS.

1. The Complaint (as amended by the Plaintiff's Opposition toDefendants' Motion to Dismiss, or, in the Alternative, Motion for SummaryJudgment) contains seven counts, alleging that: (1) Defendants subjectedNavedo to cruel and unusual punishment violative of the EighthAmendment; (2) Defendants deprived Navedo of his due process rights underthe Fourteenth Amendment; (3) Defendants have discriminated againstNavedo on the basis of disability, in violation of the A.D.A.,42 U.S.C. § 12131 et seq.; (4) Defendants (all except theCommonwealth of Massachusetts) deprived Navedo of his civil rights under42 U.S.C. § 1983; (5) Defendants intentionally inflicted emotionaldistress on Navedo; (6) Defendants negligently inflicted emotionaldistress on Navedo; and (7) Defendants breached their fiduciaryresponsibility to the taxpayers of the Commonwealth ofMassachusetts.

2. Navedo's CMS Transfer Form to Pondville characterizes him as"wheelchair-bound" (Plaintiff's Exh. A).

3. Verified Complaint. Exhibit I. The CMS Transfer Form to Norfolkcharacterizes Navedo as "in a wheelchair" and "walks w/limp." However, aCMS Classification Health Status Report from Pondville, dated July 30,1999, states that he is "ambulatory with a cane" and notes that he may besent to "any facility," even though the same form has "HandicappedAccessibility" checked "yes" as a requirement.

4. Istfan Affidavit, ¶ 24.

5. The parties dispute the frequency and nature of theserequests.

6. E.g., 1 1/2 hours tier time per day on the transitory unit versus7am-10pm daily on the permanent unit, and the availability of cookingfacilities for each permanent unit.

7. The Classification Board is a body established pursuant to M.G.L.ch. 127, § 20A to advise the prison superintendent (here, defendantHall) with regard to prisoners' periodic grading and classification.Classification Boards generally consist of at least three members,including correction officers, prison camp officers, correctionalcounselors, unit managers, directors of classification, or deputysuperintendents.

8. Plaintiff's Opposition to Defendants' Motion to Dismiss, or, in theAlternative, Motion for Summary Judgment at 18 & Exh. M.

9. Plaintiff characterizes this transfer as "inexplicable, "Plaintiff's Opposition to Defendants' Motion to Dismiss, or, in theAlternative, Motion for Summary Judgment at 5. Indeed, there are no factscurrently in the record that provide any explanation of why the transferwas finally effected.

10. The parties dispute the necessity and medical advisability of awheelchair with leg supports for Navedo. Navedo claims that he has sinceoffered to try the wheelchair without leg supports, but the medical staffnow refuses to give him one, on the grounds that a wheelchair is nolonger required. Transcript of Excerpt of Motion Hearing, Testimony ofEzequiel Navedo before Hon. Nancy Gertner, at 13.

11. Defendants' Motion to Dismiss, or, Alternatively, for SummaryJudgment at 9.

12. In Popovich v. Cuyahoga County Court of Common Pleas, 227 F.3d 627,641-42 (6th Cir. 2000), the court held that Congress exceeded its § 5enforcement authority when it abrogated state Eleventh Amendment immunityin Title II of the A.D.A., but that opinion was later vacated when theSixth Circuit granted a petition for a rehearing en banc. 2000 U.S.App.LEXIS 33978 (6th Cir. Dec. 12, 2000). No published decision had issued onthe en banc rehearing as of the date this opinion was filed.

13. Even had Navedo attempted to sue CMS for damages in its"individual" capacity, this approach would have been to no avail: TheSupreme Court has held that organizations do not qualify as "persons"within the meaning of § 1983. Costello v. MassachusettsRehabilitation Comm'n, 982 F. Supp. 61, 68 (D.Mass. 1997) (citing Will,491 U.S. at 64, 109 S.Ct. 2304).

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