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Rosen v. Pallito

United States District Court, D. Vermont

December 19, 2017

EARL ROSEN, IV, Plaintiff,
ANDREW PALLITO, Commissioner of the Vermont Department of Corrections, CORRECT CARE SOLUTIONS, and CENTURION OF VERMONT, Defendants.


          William K. Sessions, III District Court Judge.

         Plaintiff Earl Rosen claims that the defendants in this case failed to provide him with adequate mental health and medical care while he was incarcerated. Rosen also alleges that programming requirements prevented him from being granted parole, and that his placement in disciplinary segregation violated his rights. The Fourth Amended Complaint includes claims under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, the Eighth Amendment and the Due Process Clause.

         Defendants Vermont Department of Corrections (“DOC”) Commissioner Andrew Pallito, Correct Care Solutions (“CCS”), and Centurion of Vermont, LLC (“Centurion”) have each moved for summary judgment. Commissioner Pallito and the DOC argue for the application of sovereign immunity and contest Rosen's claims on the merits. CCS and Centurion argue that Rosen's medical experts failed to provide opinions about the relevant standard of care.

         All defendants submit that Rosen's claims should be dismissed because he failed to exhaust the prison grievance process. For the reasons set forth below, defendants' motions for summary judgment are granted.

         Factual Background

         Rosen was sentenced to prison after being convicted of, among other things, engaging in “prohibited acts” in violation of 13 V.S.A. § 2632(a)(8). He was initially charged with sexual assault on a victim less than sixteen years old, in violation of 13 V.S.A. § 3252(c), but pled to a lesser charge. He was 21 years old at the time of the offense.

         When Rosen was incarcerated in 2011, he arrived with a history of mental illness. Prior diagnoses included schizophrenia, paranoid type; an impulse control disorder; antisocial traits; and schizoaffective disorder, bipolar type. Upon his incarceration he was designated as having a “serious functional impairment” (“SFI”) based on his own reporting.

         Rosen's claims against the DOC and Commissioner Pallito revolve around his placement in segregation after a disciplinary issue, his required participation in sex offender treatment, and related issues. The segregation claim dates back to February 2012, when Rosen was involved in a fight over a coffee cup. According to the incident report, he and another inmate appeared to be planning something just before the fight. Rosen's accomplice then walked over to the unit officer and blocked his line of sight. Rosen approached the victim, placed him in a chokehold and began punching him in the head. Rosen disputes that he was the original aggressor.

         As a result of the fight, Rosen was moved to segregation and issued a Disciplinary Report (“DR”). Rosen alleges that the outburst was a result of mental illness, and that the DOC failed to appropriately consider his mental health before placing him in segregation. The DOC contends that Rosen received a medical and mental health screening clearing him for placement.[1]

         Rosen was informed of his right to a hearing, but waived that right and received 15 days in segregation. During that time, he was confined to his cell with the exception of one hour of recreation per day. According to the DOC's documentation, he also received daily visits from nursing staff and mental health staff. Rosen disputes whether he received daily recreation and whether the medical staff was sufficiently qualified.

         After completing his time in disciplinary segregation, Rosen was held in administrative segregation for 22 days. The DOC submits that the conditions of administrative segregation were less severe than those of disciplinary segregation, with inmates receiving additional recreation, showers, games, time in the day room, books, and mail. Rosen disputes that the conditions were less severe, and reports that while in segregation he complained of auditory hallucinations, insomnia, paranoia, anxiety and racing thoughts. On March 15, 2012, he filed a Health Service Request asking mental health staff to remove him from segregation. He was seen by a mental health provider the next day, and was promptly removed from segregation.

         In addition to his mental health issues, Rosen suffered a physical injury while in prison. On October 20, 2012, he injured his foot playing basketball. As set forth more fully below, prison health care providers did not authorize surgery and instead opted for a more conservative approach. Rosen claims that his treatment was below the prevailing standard of care, and brings claims against CCS and Centurion for, among other things, medical malpractice.

         With regard to programming, the DOC evaluated Rosen for sex offender programming given the nature of his conviction. The Vermont Treatment Program for Sexual Abusers (“VTPSA”) offers six-month, 12-month, and 21 to 24-month programs. Inmates are assigned to the appropriate program based, in part, upon their sex offense and risk assessment scores. After the initial assessment, inmates are evaluated by a mental health professional to determine the most appropriate programming.

         The DOC initially identified the 12-month VTPSA program as the best fit for Rosen's needs, pending a psychosexual evaluation. Rosen, however, refused to participate or be evaluted. Beginning in May 2013, he began filing grievances contending that he should not be required to take part in sex offender treatment. His protests continued for two years, including statements to case workers and signed documentation refusing programming.

         In April 2015, Dr. John Holt conducted an independent psychosexual evaluation and concluded that Rosen could benefit from sex offender treatment. In June 2015, Rosen agreed to a psychosexual evaluation by the DOC. Among other things, the DOC evaluator noted that Rosen's mental health should not interfere with his ability to participate. As a result of the evaluation, the DOC referred Rosen to the 6-month VTPSA program, which he completed in December 2015. Shortly thereafter, the DOC placed him on furlough to live with his parents in the community.

         The Fourth Amended Complaint sets forth six Counts. Count I alleges cruel and unusual punishment in the form of inadequate mental health care by all defendants, including CCS and Centurion. Counts II, III, and IV have been stricken. Count V, brought solely against Commissioner Pallito and the DOC, alleges that Rosen's placement and treatment while in solitary confinement violated the Rehabilitation Act. Count VI asserts that Rosen's medical care violated DOC policies and constituted medical malpractice. Count VII claims cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments with regard to his health care and confinement in segregation. Count VIII alleges discrimination on the basis of a disability in violation of the ADA and/or the Rehabilitation Act. Finally, Count IX alleges violations of the anti-retaliation provisions of the ADA. Counts VI through IX are brought against all defendants.


         I. The Summary Judgment Standard

         The standard for summary judgment is well established. The moving party is entitled to summary judgment if it demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). This showing may be made by depositions, affidavits, interrogatory answers, admissions, or other exhibits in the record. Fed.R.Civ.P. 56(c). “The substantive law governing the case will identify those facts that are material, and ‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment.'” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lily & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citation omitted).

         II. The DOC's Motion for Summary Judgment

         A. Sovereign Immunity and Title II of the ADA

         The DOC first argues that, to the extent Rosen is seeking money damages, his claims under Title II of the ADA are barred by sovereign immunity. In general, federal court claims against a state agency or a state official being sued in his or her official capacity are barred by the Eleventh Amendment. See Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). In some circumstances, however, Congress can pass legislation that abrogates the States' immunity from suit. “In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has ‘unequivocally expresse[d] its intent to abrogate the immunity'; and second, whether Congress has acted ‘pursuant to a valid exercise of power.'” Seminole Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)) (alteration in original).

         The Supreme Court has held that when Congress enacted the ADA, it “invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment, ” and abrogated the States' immunity under the Eleventh Amendment. United States v. Georgia, 546 U.S. 151, 154 (2006) (quoting 42 U.S.C. § 12101(b)(4)). The Court held that Congress's intent to abrogate the States' immunity was “unequivocal” and that “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” Id. at 159.[2]

         Accordingly, a plaintiff may sue a state under Title II if the violation alleged is also a violation of the Fourteenth Amendment. That said, there is a “growing fracture” among courts in this Circuit as to how to determine valid abrogation of state sovereign immunity under Title II when no Fourteenth Amendment violation is alleged. Dean, 804 F.3d at 194. Before United States v. Georgia, the Second Circuit applied the approach articulated in Garcia v. S.U.N.Y. Health Sciences Center, which held that “Congress had exceeded its section five authority in enacting Title II, but that Title II suits could be limited to circumstances in which it had not.” Bolmer v. Oliveira, 594 F.3d 134, 146 (2d Cir. 2010) (citing Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98 (2d Cir. 2001)).

Since the Equal Protection Clause only proscribes disparate treatment of the disabled that is not rationally related to a legitimate government purpose, Title II suits could be maintained against states only if the plaintiff showed that the Title II violation was motivated by discriminatory animus or ill will based on the plaintiff's disability. And to lessen a plaintiff's difficulty in establishing animus relative to what would be demanded under traditional rational basis review, a plaintiff could rely on a burden-shifting technique similar to that adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), or a motivating-factor analysis similar to that set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 252-58 (1989).

Id. at 146 (internal citations and quotation marks omitted). Under this test, “Title II monetary claims against a state therefore require a showing of discriminatory animus or ill will to limit such suits to disparate treatment that violates the Equal Protection Clause of the Fourteenth Amendment or falls within the range of conduct Congress could otherwise prohibit pursuant to its prophylactic authority.” Dean, 804 F.3d at 194.

         Post-Garcia, United States v. Georgia remanded a Title II private cause of action for the lower court to determine:

(1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.

546 U.S. at 159. Georgia thus “explicitly left open the question of whether Congress may validly abrogate sovereign immunity with respect to a particular class of misconduct that violates Title II but does not violate the Fourteenth Amendment.” Dean, 804 F.3d at 194. This “continued uncertainty . . . has led to a divergence in the approaches adopted by district courts, ” with some applying Garcia and others questioning the validity of abrogation as suggested in Georgia. Id. at 194-95.

         Under both Garcia and Georgia, “if a plaintiff cannot state a Title II claim, the court's sovereign immunity inquiry is at an end.” Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 152 (2d Cir. 2013). The Court will therefore first examine the substantive merits of Rosen's ADA claims at summary judgment.

         B. The ADA and ...

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