United States District Court, E.D. North Carolina, Western Division
MR. JEFFREY GLEN McDUFFIE, Plaintiff,
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY and W. DAVID GUICE, Defendants.
W. FLANAGAN United States District Judge
matter is before the court on defendants' motion to amend
(DE 32), defendants' motion for summary judgment (DE 34),
plaintiff's motion for partial summary judgment (DE 38),
and defendants' motion to strike (DE 66). The issues
raised have been fully briefed and are ripe for adjudication.
For the following reasons, this court denies defendants'
motion to amend, grants defendants' motion to strike,
grants defendants' motion for summary judgment, and
denies plaintiff's motion for partial summary judgment.
OF THE CASE
November 12, 2015, plaintiff, previously a state inmate,
commenced this civil rights action, through counsel, pursuant
to 42 U.S.C. § 1983, on the basis that his rights under
Title II of the Americans with Disabilities Act
(“ADA”) of 1990, § 504 of the Rehabilitation
Act of 1973 (“Rehabilitation Act”), and the
Fourteenth Amendment were violated by the North Carolina
Department of Public Safety (“NCDPS”) and W.
David Guice (“Guice”), formerly the Commissioner
of the Division of Adult Corrections and Juvenile Justice
(DAC), who was responsible for the operation and
administration of all DAC facilities. (See Compl. (DE 1)
¶¶ 6, 7).
claims that defendants excluded him from participating in
sentence reduction credit programs, denied him the benefits
of the sentence reduction credit programs, and subjected him
to discrimination in the administration of the sentence
reduction credit programs due to his disabilities. Plaintiff
further claims that if he had not been subjected to this
discrimination on the basis of his disability, he would have
been released at least 20 months earlier than he was.
Finally, plaintiff alleges that his due process rights were
violated under the Fourteenth Amendment.
case proceeded through discovery concluding January 17, 2017,
pursuant to a case management order entered on April 6, 2016.
On October 13, 2016, this court granted plaintiff's
motion for a court-hosted settlement conference, and the case
was designated for referral to United States Magistrate Judge
Robert B. Jones, Jr., for settlement following the close of
discovery and the court's ruling on dispositive motions.
February 15, 2017, defendants filed the instant motion to
amend their answer to assert the affirmative defense of
failure to exhaust. Plaintiff filed a memorandum in
opposition, and defendants filed an amended reply. On
February 16, 2017, defendants filed the instant motion for
summary judgment with an appendix to the statement of
material facts that includes affidavits by NCDPS officials
and defendant Guice.
February 16, 2017, plaintiff filed the instant motion for
partial summary judgment, requesting that this court grant
his motion on the issue of liability under the ADA, the
Rehabilitation Act, and § 1983, and schedule a hearing
to address the issue of his damages. (See Pl.'s
Mot. Part. Summ. J. (DE 38) at 2). Plaintiff's motion is
supported by the following: plaintiff's affidavit (DE
41-1), plaintiff's offender report (DE 41-2), North
Carolina's Early Release Credit Policies (DE 41-3),
defendant NCDPS Health Services Policy A-9 (DE 41-4),
plaintiff's prison medical records (DE 41-5),
plaintiff's 2013 ADA evaluations (DE 41-6),
plaintiff's prison medical evaluation records
(Utilization Review Board) (DE 41-7), plaintiff's case
management notes (DE 41-8), defendant NCDPS's case
management policy (DE 41-9), defendant NCDPS's memo
regarding Bumgarner, et al. v. N.C. Dept. of
Correction, No. 5:10-CT-3166-BO (E.D.N.C) (DE 41-10),
Bumgarner Consent Decree (41-11), plaintiff's
DC-746 IRAR forms (DE 41-12), plaintiff's activity
history and sentence credits (DE 41-13), defendants'
answers to plaintiff's first interrogatories (DE 41-14),
and defendants' supplemental answers to plaintiff's
first interrogatories (DE 41-15).
filed a memorandum in opposition to plaintiff's motion
for partial summary judgment, and plaintiff filed a reply. On
April 13, 2017, defendants filed the instant unopposed motion
to strike plaintiff's supplements (DE 63, 64).
OF THE FACTS
as otherwise noted below, the undisputed facts are as
follows: plaintiff, a resident of Bladen County, North
Carolina, was an inmate in the custody of DAC from January
26, 1999 to January 15, 2014. (See Offender Printout
(DE 35-3); Ellington Aff. (DE 37-6) ¶ 45; Compl. (DE 1)
¶¶ 4, 9).
North Carolina, state inmates who meet certain requirements
are permitted to work toward an early release pursuant to a
formula. (See Compl. (DE 1) ¶ 12). Plaintiff
received 297 days of earned time credit, 12 days of
meritorious time credit, 60 days of restored earned time
credit, and 83 days of pretrial confinement or jail credit.
(See Tharrington Aff. (DE 37-3) ¶ 21, Exs.
4-6). The latest release date designated for plaintiff's
sentence was July 28, 2015. (See id. ¶ 21, Exs.
worked toward earning early release credits for approximately
two years when he was taken out of work pursuant to a
doctor's orders. (See Compl. (DE 1) ¶ 13).
After learning that he was not earning time because his
disabilities took him out of work, plaintiff requested that
he be allowed to participate in programs to earn an early
release. (See id. ¶ 14). Plaintiff was advised
by “prison officials” that he was not permitted
to participate “in early release programs because he
was a liability due to his disabilities.” (Id.
suffers with a number of physical and mental limitations.
(See Compl. (DE 1) ¶ 5). In particular,
plaintiff suffered a broken neck and has a 4” Titanium
plate in his neck and six screws that “hold his neck
together.” (Id.) Plaintiff has undergone four
failed reconstructive surgeries on his right knee. (See
id.) Plaintiff has also undergone ankle surgery and hip
surgery. (See id.) Plaintiff has limited ambulatory
mobility, and he has lost 15% of the range of motion in his
neck. (See id.) Plaintiff previously broke his tail
bone, and he has degenerative disc complications. (See
id.) Plaintiff suffered from scoliosis in his youth,
which contributes to his current issues. (See id.)
Plaintiff endures almost constant pain that is aggravated by
physical activity. (See id.) Plaintiff also suffers
from psychiatric disorders, including attention deficit
disorder, adjustment disorder, anxiety disorder, and
post-traumatic stress disorder. (See id.)
about September 17, 2010, North Carolina Prisoner Legal
Services (“NCPLS”), a nonprofit organization that
provides legal services to North Carolina prison inmates,
filed a class-action lawsuit alleging that DAC's refusal
to permit disabled inmates to have the opportunity to earn
sentence reduction credits violated the Rehabilitation Act
and the ADA. (See id. ¶ 18, 19 (citing
13, 2013, George T. Solomon (“Solomon”), Director
of Prisons, sent out a Memorandum to advise prison facility
management about the pending settlement agreement in
Bumgarner. (See Solomon Aff. (DE 37-4)
¶ 3, 9, Ex. 1; Pl.'s App. (DE 41-10); Memorandum (DE
46)). According to the proposed settlement, disabled inmates
(class members) could get back gain time they had been denied
in the past. (See Solomon Aff. (DE 37-4) ¶ 12).
DAC would use a review process to determine if class members
were eligible to get gain time that they had been denied due
to disability. (See id.) The process required
inmates to follow the steps addressed in the Notice to be
considered for a review and possible correction of the
inmate's projected release date. (See id.)
facilities were required to post notice of the pending
settlement in Bumgarner from May 20, 2013 through
July 1, 2013. (See Solomon Aff. (DE 37-4) ¶ 11,
Ex. 2). On May 20, 2013, a Notice was placed on all prison
housing area bulletin boards and other places where inmates
received information. (See id. ¶ 10, Ex. 2).
class members had until July 1, 2013 to file any objections
to the proposed settlement agreement. (See id.
¶ 16). On August 15, 2013, the parties in
Bumgarner entered into a Consent Decree that
resolved all issues raised in the complaint in that case.
(See Compl. (DE 1) ¶ 19) (citing
Bumgarner, No. 5:10-CT-3166-BO (E.D. N.C. Aug. 15,
2013)) at (DE 123); Bumgarner Consent Decree (DE
41-11); Solomon Aff. (DE 37-4) ¶18). The Consent Decree
required DAC to evaluate the situation of class members to
determine if they were entitled to retroactive sentence
credits going back as far as September 17, 2007, based on
disability discrimination. (See Compl. (DE 1) ¶
21; Bumgarner Consent Decree (DE 41-11) ¶
8(b)). Defendants represent that Health Services/Mental
Health Services was responsible for handling the evaluation
and determination of whether an inmate was eligible for
retroactive sentence credit under Bumgarner. (S
e e Solomon Aff. (DE 37-4) ¶ 19; defendant
Guice's Aff. (DE 37-7) ¶ 8).
Consent Decree provided that class members, which was made up
of disabled inmates, could get back certain qualifying time
they had been denied time i n t h e p a s t . (S e e
Solomon Aff. (DE 37-4) ¶ 12; Carter Aff. (DE 37-5)
¶ 13; Ellington Aff. (DE 37-6) ¶ 19). DAC would use
a review process to determine if class members were eligible
to receive time they had previously been denied. (S e
e Solomon Aff. (DE 37-4) ¶ 12; Carter Aff. (DE
37-5) ¶ 13; Ellington Aff. (DE 37-6) ¶ 19). The
review process required each inmate to follow steps described
in the Notices so as to be considered for review and
potential correction of their projected release date.
(See Solomon Aff. (DE 37-4) ¶ 12; Carter Aff.
(DE 37-5) ¶ 13; Ellington Aff. (DE 37-6) ¶ 19). An
inmate was not automatically entitled to retroactive
sentence credit because he had a “qualified”
disability. (See Carter Aff. (DE 37-5) ¶ 21;
Ellington Aff. (DE 37-6) ¶ 36).
eligible for retroactive sentence credits under the
Bumgarner Consent Decree, plaintiff must have
submitted, on or before August 15, 2013, either (1) a DC-746
Inmate Reasonable Accommodation Request (“IRAR”);
or (2) a DC-410 grievance, seeking sentence credits for the
time period of September 17, 2010 through the date the
Consent Decree was approved, August 15, 2013, (See
Solomon Aff. (DE 37-4) ¶ 13; Bumgarner Consent
Decree (DE 41-11)). Then, plaintiff's request had to be
formally denied. (See Solomon Aff. (DE
37-4) ¶ 13; Bumgarner Consent Decree (DE
41-11)). In addition, plaintiff had to turn in second form,
an IRAR, within 30 days of the Notice being posted in
prisoners' housing by DAC, which occurred on May 20,
2013. (See Solomon Aff. (DE 37-4) ¶ 14;
Bumgarner Consent Decree (DE 41-11)). This second
form had to specifically reference the previous formal denial
of sentence reduction credits due to disability.
(See Solomon Aff. (DE 37-4) ¶ 15;
Bumgarner Consent Decree (DE 41-11)). The
requirements of the Consent Decree terminated on August 15,
2015. (See Consent Decree (DE 41-11)).
March 19, 2013, plaintiff completed a DC-746 IRAR
(see Ellington Aff. (DE 37-6) ¶ 20, Ex. 2), in
which he stated, “I have been denied sentence reduction
credits due to my disability since October of 2001”
(see id. Ex. 2; Pl.'s App. (DE
41-12)). Prior to any determination on the March
19, 2013, request, plaintiff completed a second IRAR form on
May 21, 2013. (See Ellington Aff. (DE 37-6) ¶
24, Ex. 4). In the second form, plaintiff stated, “I
have been denied gain time by reason of disabilities.
Previously, on [March 19, 2013], I filed an IRAR DC-746 about
the same issue.” (See id. Ex. 4). Plaintiff
again acknowledged awareness that if he did not agree with
the determination he could submit a grievance. (See
id.) Plaintiff did not, and could not, reference a
previous formal denial of his March 19, 2013, IRAR because
there had not been a determination when he filed his May 21,
2013, IRAR. (See id. ¶ 24, Ex. 4).
submission of the IRAR form by an inmate triggers the
evaluation for whether he is entitled to an award for
medically unfit gain/earned time. (See Ellington (DE
37-6) ¶ 26). On June 10, 2013, plaintiff was evaluated
using the criteria applicable to persons under the ADA, and
it was determined that he was a “qualified person with
a disability” with “significant”
“permanent/lifelong” limitations. (See
Compl. (DE 1) ¶ 20; ADA Evaluations (DE 43) at 5-6;
Ellington Aff. (DE 37-6) ¶ 28). Plaintiff was evaluated
to determine if he qualified for the job, program, activity,
or service by the Mental Health Social Worker and the
Disability Case Manager. (See Ellington Aff. (DE
37-6) ¶ 29). Plaintiff was then evaluated to determine
if he qualified for retroactive gain/earned time under the
Bumgarner Consent Decree. (Id. ¶ 31).
10, 2013, an email was sent by Lynn N. Sanders, ADA Liason
with NCDPS, which sought the grievances filed by plaintiff
from September 10, 2010 through May 13, 2013. (See C
a r t e r Aff. (DE 37-5) ¶ 24, Ex. 2). The response
revealed plaintiff did not have any grievances in
which he requested sentence credits based on a disability
while he was incarcerated. (See i d . ¶¶
25-26, Ex. 3).
November 3, 2013, plaintiff was served with an IRAR
Determination Form, which advised him of the determination of
his request for accommodation, and that he had the right to
file a grievance if he disagreed with the determination.
(See Ellington Aff. (DE 37-6) ¶¶ 39-40,
Ex. 9). On November 10, 2013, DAC issued a memorandum that
stated plaintiff had been evaluated for and denied
“retroactive sentence credits” because in order
to be entitled to retroactive sentence credit under the
Consent Decree, he was required to have submitted a form
acknowledging that he filed and received a previous
formal denial of sentence credits. (See
Compl. (DE 1) ¶ 22; Ellington Aff. (DE 37-6) ¶ 38).
NCDPS has a three-step Administrative Remedy Procedure
(“ARP”) that governs submission and review of
inmate grievances. (See McMichael Aff. (DE 37-2)
¶¶ 9; Ellington Aff. (DE 37-6) ¶ 43). Under
the ARP, the North Carolina Grievance Resolution Board's
review is the final step, Step Three, and it constitutes
exhaustion of the administrative remedy process.
(See McMichael Aff. (DE 37-2) ¶ 10; Ellington
Aff. (DE 37-6) ¶ 43). ...