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McDuffie v. North Carolina Department of Public Safety

United States District Court, E.D. North Carolina, Western Division

September 28, 2017



          LOUISE W. FLANAGAN United States District Judge

         This 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.


         On 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.[1] (See Compl. (DE 1) ¶¶ 6, 7).

         Plaintiff 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.

         The 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.

         On 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.

         Also on 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).

         Defendants 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).


         Except 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).

         In 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. 4-6).

         Plaintiff 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. ¶ 15).

         Plaintiff 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.)

         On or 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 Bumgarner).

         On May 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.)

         DAC 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).

         Bumgarner 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).

         The 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).

         To be 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)).

         On 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)).[2] 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).

         The 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).

         On July 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).

         On 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).

         Defendant 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). ...

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