Chambers v. Warden

Chambers v . Warden                   CV-02-331-JD 08/05/02         P
              UNITED STATES DISTRICT COURT FOR THE
                    DISTRICT OF NEW HAMPSHIRE


Randolph L . Chambers

      v.                                   Civil N o . 02-331-JD
                                           Opinion N o . 

Warden, New Hampshire State et a l .


                       REPORT AND RECOMMENDATION

      The above-captioned matter was referred to the undersigned

for a report and recommendation on the Plaintiff’s motion for a

temporary restraining order and preliminary injunction (document

no. 4 ) .   The Plaintiff, Randolph L. Chambers, seeks an order

requiring the New Hampshire State Prison for Men (“NHSP”) to move

him to a handicap accessible cell.

      The Court held an evidentiary hearing on Chambers’ motion on

July 2 9 , 2002.   Chambers, proceeding pro s e , testified on his own

behalf.     Walter Davies, Unit Manager of the NHSP Close Custody

Unit, testified on behalf of Defendants. In addition, Defendants

produced affidavits from Bernadette Campbell, a licensed physical

therapist at NHSP, and Joyce Veon, custodian of the health

records at NHSP, and correspondence pertaining to Chambers’

requests for accommodations. After considering the testimony and

other evidence presented at the hearing, and the relevant
authorities, I recommend that Chambers’ motion be denied.

                       STANDARD OF REVIEW

     “The purpose of a preliminary injunction is to preserve the

status quo, freezing an existing situation so as to permit the

trial court, upon full adjudication of the case’s merits, more

effectively to remedy discerned wrongs.”    CMM Cable Rep., Inc. v .

Ocean Coast Prop., Inc., 

 (1st Cir. 1995) (citing

Chalk v . United States Dist. Court Cent. Dist. of Cal., 

, 704 (9th Cir. 1988); American Hosp. Ass’n v . Harris, 

 (7th Cir. 1980)).   Thus, if the court ultimately

finds for the movant, a preliminary injunction provides the court

with a method for preventing or minimizing any current or future

wrongs caused by the defendant. CMM Cable Rep., 

;

13 James Moore et al., Moore’s Federal Practice § 65.02 (3d ed.

1998).

     A district court may grant a plaintiff’s request for a

preliminary injunction if the plaintiff can satisfy a four-part

test: (1) the plaintiff will suffer irreparable harm if the

injunction is not granted; (2) a likelihood of success on the

merits; (3) that such injury outweighs any harm which granting

the injunction would inflict on the defendant; and (4) that the



                                2
public interest will not be adversely affected by the granting of

the injunction.   See Narragansett Indian Tribe v . Guilbert, 

 , 5 (1st Cir. 1991).   In the First Circuit, the key issue

in determining whether injunctive relief should be granted is

whether the plaintiff can demonstrate a likelihood of success on

the merits. Weaver v . Henderson, 

 1 , 12 (1st Cir. 1993)

(plaintiffs who are unable to convince the trial court that they

will probably succeed on the merits will usually not obtain

interim injunctive relief).    A party moving for injunctive relief

must satisfy each of the preliminary injunction factors.

Massachusetts Coalition of Citizens with Disabilities v . Civil

Defense Agency & Office of Emergency Preparedness of Com. of

Mass., 

 1 , 74 (1st Cir. 1981) (denial of a request for a

preliminary injunction appropriate if the trial court concludes

that the movant fails to demonstrate one of the required

factors).   With this standard of review in mind, the relevant

facts are recited below.

                              BACKGROUND

     Chambers, an inmate at NHSP since September 2001, has a

number of physical impairments. The portion of his left arm

below his elbow was amputated when he was a child.   He also



                                  3
suffers from lower back pain, ankle pain and wrist pain.

    Chambers has been housed in a standard cell throughout his

incarceration at NHSP.   On July 1 , 2002, Chambers began

requesting that he be moved to a handicapped accessible cell.      At

that time he was assigned to the Close Custody Unit.1   Chambers

has the following complaints about his cell and housing

situation: there are no handrails in the shower or toilet areas;

the faucets in the sink are difficult for him to use; and the

drain cover is missing in the shower exposing a hole in the

floor.   Chambers contends that these conditions present serious

medical issues.

     On July 8 , 2002, Dr. Freedman, a physician at NHSP,

responded affirmatively to Chambers’ written request for a

medical restriction pass.   Dr. Freedman noted on the pass that

Chambers should be given a bottom bunk bed and a handicap

accessible cell.   Chambers notified Davies that he had received a

medical restriction pass for a handicap cell and requested that

he be moved immediately.

     Shortly thereafter, on July 1 2 , 2002, Chambers filed this

    1
      The Close Custody Unit is a level between medium and
maximum security. Chambers was moved from medium security to the
Close Custody Unit in February 2002 because he failed a drug
test.

                                 4
action under 

 alleging violations of the

Americans with Disabilities Act, the Rehabilitation Act of 1973,

and the Eighth Amendment to the U.S. Constitution because NHSP

had not provided his requested accommodation.    Chambers named as

defendants in this action Jane Coplan, NHSP Warden, Davies, and

two NHSP officers, Sgt. Roy, and Cpl. McLeod.    Chambers filed the

instant motion for a temporary restraining order and a

preliminary injunction with his Complaint.

     On July 1 5 , 2002, Davies wrote a memorandum to Dr. Freedman

stating that he needed clarification of Freedman’s intentions

regarding the medical pass issued to Chambers. See Def. Ex. C .

Davies asked Dr. Freedman to specify what type of accommodation

Chambers required for his disability.   

   Dr. Freedman obtained

the opinion of Bernadette Campbell, a licensed physical therapist

at NHSP, before responding to Davies. Campbell was familiar with

Chambers having treated him six times and evaluated him several

times.

     On July 1 6 , 2002, Campbell examined Chambers. She concluded

after her evaluation that Chambers did not require any special

accommodations.   In an affidavit submitted with the Defendants’

opposition to Chambers’ motion for injunctive relief, she stated:



                                5
     It is my opinion that M r . Chambers does not need any
     special accommodations such as handrails for his
     physical disabilities. Mr. Chambers presents with
     trunk range of motion within normal limits, lower
     extremity strength within normal limits and good
     general muscle tone throughout. Furthermore, while M r .
     Chambers does have some difficulties with his right
     ankle, it does not effect [sic] his ability to
     ambulate, [and] does not interfere with prolonged
     standing. It does not appear that Mr. Chambers should
     have any difficulty getting to the shower or using it
     independently.

Campbell Aff. at ¶ 7 (Def. Ex. A ) . On July 1 7 , 2002, D r .

Freedman rescinded Chambers’ medical restriction pass based on

Campbell’s evaluation.

                             DISCUSSION

A.   Likelihood of Success on the Merits

     1.   

     “The essential elements of a claim under section 1983 are:

first, that the defendants acted under color of state law; and

second, that the defendants’ conduct worked a denial of rights

secured by the Constitution or by federal law.”      Rodriguez-Cirilo

v . Garcia, 

 0 , 52 (1st Cir. 1997).   “The second element

requires the plaintiff to prove not only a deprivation of federal

right, but also that the defendant’s conduct was a cause in fact

of the alleged deprivation.”    Soto v . Flores, 

(1st Cir. 1997).


                                  6
     There is no dispute that the defendants were acting under

color of state law in their capacities as prison officials.

Chambers must show that the Defendants’ conduct caused him to

suffer a deprivation of rights protected by the Constitution or

federal law.

     2.   Eighth Amendment

     It is well-settled that “the treatment a prisoner receives

in prison and the conditions under which he is confined are

subject to scrutiny under the Eighth Amendment.”     Helling v .

McKinney, 

 5 , 31 (1993).   By alleging that the

Defendants have been deliberately indifferent to a serious

medical need, Chambers attempts to state a claim under the Eighth

Amendment. See Farmer v . Brennan, 

 (1994);

Helling, 509 U.S. at 3 2 ; Estelle v . Gamble, 

 7 , 104

(1976).   Chambers is not likely to succeed on his Eighth

Amendment claim, however, because he has not demonstrated that

the defendants have in fact been deliberately indifferent to a

serious medical need.

          a.    Serious Medical Need

     An inmate can demonstrate a serious medical need in either

of two ways.   By showing that the need has been diagnosed by a



                                  7
physician and deemed to require treatment or that the need is “so

obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.”    Mahan v . Plymouth County

House of Corr., 

 4 , 18 (1st Cir. 1995); Gaudreault v .

Municipality of Salem, Mass, 

 (1st Cir. 1990),

cert. denied, 

 (1991).    Chambers produced no evidence

that would satisfy either test.

     Chambers’ testimony at the evidentiary hearing focused on

the conditions of his current cell.    The shower in Chambers’ cell

is designed for use by one person and is approximately three or

four square feet in area.   There are no handrails. The drain

cover is missing from the shower floor leaving an exposed hole

that, according to Chambers, presents a dangerous condition.

     With respect to the toilet area, there are no handrails near

the toilet, and Chambers testified that he has difficultly using

the faucet in the sink for shaving, which NHSP requires him to do

daily.   The sink in Chambers’ cell does not have turn faucets and

will only release water if the buttons are pushed.    Therefore,

Chambers needs to continually bend over to use his stump to turn

the water o n , which places strain on his back.




                                  8
     The Defendants respond that Chambers should not have any

difficulty using standard shower facilities. Davies testified

that it would be easy to reach any of the walls in the shower

because it is a confined area.    He also testified that the hole

in the shower floor is only about two inches in diameter.2    Under

the circumstances, the addition of handrails and a shower drain

cover would make the shower more safe, but I find that the

evidence falls short of demonstrating a serious medical issue.

     Given that Chambers has only one hand, and that he

experiences lower back pain, his assertion that he has difficulty

using the faucet in his cell is certainly reasonable.    But I also

find that this difficulty does not amount to a serious medical

need.    The Defendants produced evidence that Chambers does not

need an accommodation because his trunk range of motion and lower

extremity strength are within normal limits. Campbell Aff. at ¶

7 (Def. Ex. A ) .   Additionally, the defendants pointed out that

Chambers has been permitted to use an electric shaver in the

past, an assertion that Chambers does not dispute. I find that

Chambers has not presented evidence that demonstrates that he has

a serious medical need for the accommodations he seeks.

     2
     Davies testified that NHSP has ordered a replacement drain
cover.

                                  9
           b.    Deliberate Indifference

     Even if Chambers were able to demonstrate that he has a

serious medical need for a handicap accessible cell, his Eighth

Amendment claim is still unlikely to succeed on the merits

because he has not demonstrated that the Defendants have been

deliberately indifferent to his concerns. Defendants presented

evidence that Dr. Freedman and Davies responded to Chambers’

complaints.     After Chambers was issued a medical restriction

pass, Davies contacted Dr. Freedman to find out what exactly NHSP

needed to do to adequately meet Chambers’ medical need.          Davies

informed Dr. Freedman that Chambers had been assigned to a bottom

bunk bed, and asked whether Chambers should be issued a shower

chair.   See Davies Mem. dated July 1 5 , 2002 (Def. Ex. C ) .    Davies

also informed Dr. Freedman that Davies believed that Chambers is

trying to use his handicap to get transferred out of the Close

Custody Unit. After receiving Davies’ memorandum, Dr. Freedman

spoke with Campbell to obtain her assessment of Chambers’

physical condition. D r . Freedman then rescinded Chambers’

medical pass based on Campbell’s assessment.

     I find that the evidence does not demonstrate that the

defendants were deliberately indifferent to a serious medical



                                  10
need.   Rather, the evidence tends to show that NHSP reasonably

attended to Chambers’ current physical condition and determined

that he does not require accommodation.   Based on Chambers’

failure to demonstrate that he has a serious medical need or that

NHSP has been deliberately indifferent to his needs, I find that

Chambers is unlikely to succeed on the merits of his Eighth

Amendment claim.

     2.    Americans With Disabilities Act

     The Americans with Disabilities Act (“ADA”), as it applies

to public entities, is codified at 

 et seq.

Section 12132 provides in relevant part that:

     no qualified individual with a disability shall, by
     reason of such disability, be excluded from
     participation in or be denied the benefits of the
     services, programs, or activities of a public entity,
     or be subjected to discrimination by any such entity.

.   The Supreme Court has established that the

ADA applies to inmates in state prisons. Pennsylvania Dept. of

Corr. v . Yeskey, 

 (1998).   In order to state

a claim under Title II of the ADA, Chambers must establish the

following elements: (1) that he is a qualified individual with a

disability; (2) that he was either excluded from participation in

or denied the benefits of a public entity’s services, programs,



                                11
or activities or was otherwise discriminated against; and (3)

that such exclusion, denial of benefits, or discrimination was by

reason of his disability.   

; Race v . Toledo-

Davila, 

 (1st Cir. 2002); Parker v . Universidad

de Puerto Rico, 

 , 4 (1st Cir. 2000).

     The operative facts for Chambers’ ADA claim are the same as

for his Eighth Amendment claim.    Chambers alleges that he

qualifies as a disabled person under the ADA because he only has

one hand.   He contends that he needs to be moved to a handicap

accessible cell so that he can safely use the shower and toilet

facilities.   He argues that the accommodation he seeks is

reasonable because NHSP has handicap accessible cells at the

medium security level. I find that Chambers alleges facts

sufficient to state a claim for a violation of the ADA.

     Chambers is unlikely to succeed on the merits of his ADA

claim, however, for the same reasons that he is unlikely to

succeed on his Eighth Amendment claim.    The evidence presented

suggests that Chambers does not require an accommodation.

Chambers had been housed in a standard cell at NHSP for nearly

ten months before he ever requested a handicap accessible cell.

Campbell stated in her affidavit that Chambers appeared to have



                                  12
adapted well to life with one hand,3 and was of the opinion that

Chambers should not have difficultly using the prison facilities

without any special accommodations.    Campbell Aff. at ¶¶ 3 , 7

(Def. Ex. A ) . Chambers presented no evidence at the hearing to

rebut the Defendants’ contentions regarding his present physical

condition.   Based on the evidence presented at the hearing, I

find that Chambers is unlikely to succeed on the merits of his

ADA claim.

     3.   Rehabilitation Act of 1973

     Section 504 the Rehabilitation Act of 1973 provides in

relevant part:

     No otherwise qualified individual with a disability . .
     . shall, solely by reason of her of his disability, be
     excluded from the participation i n , be denied the
     benefits o f , or be subjected to discrimination under
     any program or activity receiving Federal financial
     assistance . . . .

(a).   While the Supreme Court has not explicitly

held that the Rehabilitation Act applies to prisons, other

federal courts have reached that conclusion.    See e.g., Stanley

v . Litscher, 

 (7th Cir. 2000) (citing cases).

To state a claim under Section 504 of the Rehabilitation Act,


     3
      Campbell points out that Chambers was employed as a painter
and a roofer until 1990. Campbell Aff. at ¶ 3 (Def. Ex. A ) .

                                13
Chambers must show the following elements: (1) that he is

disabled; (2) that he sought services from a federally funded

entity; (3) that he was “otherwise qualified” to receive those

services from a federally funded entity; and (4) that he was

denied those services “solely by reason of his . . . disability.”

Lesley v . Hee Man Chie, 

 7 , 52-53 (1st Cir. 2001).

     Chambers has not stated a claim under the Rehabilitation Act

because he has not alleged that NHSP is a federally-funded

entity.   This deficiency could be overlooked if Chambers were an

inmate in a federal prison, but he is not. Even if Chambers

alleged that NHSP receives federal funds, however, I would find

that he is unlikely to succeed on the merits of his claim because

he has not demonstrated that he has been denied a service because

of his disability.   Therefore, I find that Chambers’ is not

likely to succeed on the merits of this claim.

B.   Irreparable Harm

     While Chambers’ failure to show likelihood of success on the

merits is sufficient to deny his request for injunctive relief,

his motion should also be denied because he presented no evidence

that demonstrates that he is likely to suffer imminent

irreparable harm absent relief.    While an inmate need not wait



                                  14
until after a tragic event occurs to seek an injunction to remedy

unsafe, life-threatening prison conditions, Helling v . McKinney,

 5 , 33 (1993), he must do more than merely allege

possibility of harm.4   Id. at 36 (“prisoner must show that the

risk of which he complains is not one that today’s society

chooses to tolerate”); see also, Farmer, 

 (inmate

must show that he is incarcerated under conditions posing a

substantial risk of serious harm).    Here Chambers has neither

alleged that he suffered any injuries due to the lack of a

handicap accessible cell, nor has he established any facts that

show that serious injuries are imminent.

     Based on Chambers’ failure to show both that he is likely to

succeed on the merits of his claims and that he is likely to

suffer irreparable harm if his request for relief is denied,




     4
      Chambers cites Elrod v . Burns, 

 (1976) for
the proposition that the continuing deprivation of a
constitutional right constitutes irreparable harm as a matter of
law. This argument is unpersuasive for two reasons. First,
Chambers has not demonstrated that his Eighth Amendment rights
have been violated. Second, in Elrod the Supreme Court addressed
the loss of First Amendment rights. Chambers cites no case where
the Supreme Court applied the holding of Elrod to alleged
deprivations of Eighth Amendment rights.

                                 15
Chambers’ motion for injunctive relief should be denied.5

                               CONCLUSION

      Based on the reasons contained in the foregoing Report, I

recommend that the Plaintiff’s motion for a temporary restraining

order and preliminary injunction (document n o . 4 ) be denied.

      Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v . Gordon, 

 1 , 13-14 (1st Cir. 1992); United

States v . Valencia-Copete, 

 , 6 (1st Cir. 1986).




                                 James R. Muirhead
                                 United States Magistrate Judge
Date:     August 5 , 2002

cc:       Randolph L . Chambers, pro se
          Andrew B . Livernois, Esq.




      5
      Because Chambers has neither established a likelihood of
success on the merits, nor irreparable harm, I do not address the
public interest and comparable hardship preliminary injunction
factors. See Massachusetts Coalition of Citizens With
Disabilities, 

 n.4.

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