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Lee v. Sherrer

March 31, 2009


The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.



This matter comes before the Court on defendants‟ motion for summary judgment. The action involves claims brought by Harvey C. Lee ("Lee"), a formerly incarcerated individual alleging mistreatment based upon his disabled status while in custody of the State of New Jersey and its agencies (collectively, "the State"). Lee is a paraplegic and is permanently confined to a wheelchair.

The claims in this matter are asserted under 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), Rehabilitation Act, and the New Jersey Law Against Discrimination ("NJ LAD"). Claims under § 1983 are asserted against defendants Lydell Sherrer (Warden of Northern State Prison), Sue Roerty (Director of the Community Release Program at NSP), James F. Barbo (Director of the Department of Corrections), Gerald T. Kennedy (Assistant Director of the Department of Corrections), Richard Cevasco (Assistant Director of the Department of Corrections), Loretta Hatez (Supervising Project Manager of the Department of Corrections), and Devon Brown (Commissioner of the Department of Corrections), all in their individual capacities. Claims under the ADA and Rehabilitation Act are asserted against the State of New Jersey, the New Jersey Department of Corrections ("NJDOC") and Northern State Prison ("NSP"). Claims under the NJLAD are asserted against the State of New Jersey, the NJDOC, NSP, as well as individual defendants Sherrer, Roerty, Barbo, Kennedy, Cevasco, Hatez, and Brown.


Lee, a wheelchair-bound paraplegic, was sentenced on October 17, 2001 to the custody of the NJDOC for a term of ten years with 5 years parole ineligibility as a result of drug-related offenses. (Defs.‟ 56.1 St. ¶ 1 (stipulated); Compl. ¶ 5; Decl. of S. Campbell (Campbell Decl.), Exh. D at DOC1-DOC2.) On November 1, 2001, Lee was transferred to the Central Reception and Assignment Facility, after which he was transferred to the South Woods State Prison ("SWSP") on November 9, 2001. (Defs.‟ 56.1 St. ¶ 2 (stipulated).) On September 3, 2002, Lee was transferred to Northern State Prison ("NSP") pursuant to his own request. (Defs.‟ 56.1 St. ¶ 3 (stipulated).) Almost two months later, on October 22, 2002, the State denied Lee‟s request to be transferred back to SWSP. (Campbell Decl., Exh. D at DOC7.)

While incarcerated at NSP, Lee was housed in the C-100-East housing unit, during which time he maintains that he largely had no access to a shower seat, was allowed on occasion to borrow another inmate‟s shower seat, and was only briefly allowed use of the shower seat on C-100-West, located on a different cell block, which required him to travel across the prison in a towel. (Pl‟s. 56.1 St. ¶¶ 5,7; Defs.‟ Exh. A, Lee Dep. 56:24-57:11.) Lee recounts that he "continually complained about the problem to no avail" and that "[t]aking showers in the wheelchair he used all day created damage and discomfort as he was forced to sit in a wet seat all day." (Pl‟s. 56.1 St. ¶ 7.)

During his time at NSP, Lee was granted "gang minimum custody status" on September 3, 2003, and "full minimum custody status" on October 1, 2003. (Defs.‟ 56.1 St. ¶¶ 10-11 (stipulated).) Lee‟s housing assignment remained C-100-East. (Defs.‟ 56.1 St. ¶ 12; Pl‟s. 56.1 St. ¶¶ 10-12.) Lee states that "defendants‟ failure to accommodate his disability" caused him "less freedom despite his earned status for minimum security." (Pl‟s. 56.1 St. ¶ 12; Lee Dep. 58:22-60:3; 63:17-65:5; 68:11-71:17; 78:22-84:14; 98:24-103:25.)

On August 30, 2004, Lee was transferred to Talbot Hall (Defs.‟ 56.1 St. ¶ 13 (stipulated)), an assessment center aimed at better equipping inmates for release. (Defs.‟ 56.1 St. ¶ 14.) Typically, the 90-day stay at Talbot Hall leads to assignment of inmates to a halfway house. (Defs.‟ 56.1 St. ¶ 15.) Lee asserts that Talbot Hall was not wheelchair-accessible, pointing to his March 7, 2005 ADA grievance. (Defs.‟ 56.1 St. ¶ 18; Pl‟s. 56.1 St. ¶ 18; Exh. K, ADA Grievance, DOC1034-1035.) The March 2005 ADA grievance also states that Talbot Hall failed to facilitate ongoing accommodation after Lee‟s departure insofar as Talbot Hall allegedly did not forward his medical records to his next residence. (Exh. K, ADA Grievance, DOC1034-1035.)

Lee was transferred to another facility, Harbor House, on December 30, 2004. (Defs.‟ 56.1 St. ¶¶ 19-20 (stipulated).) Defendants say that when plaintiff arrived at Harbor House, "its staff acknowledged receipt of his file and was aware of plaintiff‟s daily medication needs and paralysis." (Defs.‟ 56.1 St. ¶ 24.) Lee denies this assertion, relying on defendants‟ responses to Lee‟s request for admissions, in which Lee claims defendants admitted they "were not made aware of plaintiffs‟ disabilities and need for regular insulin shots at the time of his admission to their facility." (Pl‟s. 56.1 St. ¶ 24.) Harbor House‟s request for admissions shows that Harbor House admitted it was not "able to administer insulin shots to plaintiff during his residency" at that facility, that Harbor House was not "made aware" of Lee‟s "disabilities at the time of [Lee‟s] admission as a resident," and that the facility was not "made aware of [Lee‟s] need for regular insulin shots at the time" of his admission. (Exh. H, ¶¶ 13, 17, 18.) Lee‟s ADA grievance form concerning Harbor House, dated March 7, 2005, grieves that he was unable to access toilets with his wheelchair due to inadequate clearance in lavatories, faced corridors so narrow that other inmates would need to stand single file for him to pass, and was excluded from inmate outings to shopping malls and discount retail outlets. (Pl‟s. Exh. K, DOC1034-35.) According to Lee‟s grievance form, Lee relied on fellow Harbor House inmates to lift him onto and off of the toilet, a predicament that sometimes left him stranded and crying out loudly for assistance. (Id.)

After his stay at Harbor House, Lee was returned to NSP. The record reflects that the parties dispute the reasons for and circumstances surrounding Lee‟s transfer from Harbor House to NSP. According to Lee, he was "forced to return to [NSP] due to the failure [sic] defendants to accommodate his disabilities, and their inability to administer insulin shots." (Pl‟s. 56.1 St., ¶¶ 25, 26.) In support of his account, Lee points to an April 13, 2005 letter from Kennedy to Sherrer regarding the ADA grievance in which Kennedy stated that Lee was being returned to NSP "because of his medical concerns." (Pl‟s. 56.1 St., ¶¶ 25, 26 (citing Pl‟s. Exh. K, DOC1027-1030, DOC1034-35, and State Parole Board Case Summary).)

On July 5, 2005, Lee was released from NSP on parole. (Defs.‟ 56.1 St. ¶ 30 (stipulated).) After being returned to custody for parole violations in May 2006, Lee served more time at SWSP until January 2007, when he was again paroled. (Defs.‟ 56.1 St. ¶¶ 31-33 (stipulated).) Lee‟s maximum sentence expired April 18, 2007. (Defs.‟ 56.1 St. ¶ 34 (stipulated).)

While Lee was still incarcerated at SWSP, he filed this action against the State of New Jersey, the NJDOC, NSP, Sherrer, Roerty, Barbo, Kennedy, Cevasco, Hatez, Brown, as well as Tom Bredy, Harbor House, Edmond Chicci, and the Middlesex County Correction Center. The NJDOC, NSP, Sherrer, Roerty, Barbo, Kennedy, Cevasco, Hatez, and Brown were granted extensions of time to answer. All defendants filed answers to the complaint. On August 7, 2007, plaintiff added CFG Medical Services ("CFG"), an operator of supervised residential facilities, to the suit by way of amended complaint.

After discovery closed, the Court entered a stipulation and order of dismissal on February 15, 2008 dismissing Harbor House and Tom Bredy with prejudice. On March 27, 2008, after the Final Pretrial Order was filed, Lee voluntarily dismissed all § 1983 claims against the State of New Jersey, NJDOC, NSP, as well as Sherrer, Roerty, Barbo, Kennedy, Cevasco, Hatez, and Brown in their official capacities, and all ADA and Rehabilitation Act claims against Sherrer, Roerty, Barbo, Kennedy, Cevasco, Hatez, and Brown. On April 7, 2008 defendant CFG was dismissed by stipulation. Subsequent to the filing of the motions decided herein, on June 10, 2008 Middlesex County Adult Correctional Facility and Edmond Chicci were dismissed by stipulation.


Under Rule 56(c), summary judgment may be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court is duty-bound to "view the facts in the light most favorable to the non-moving party and [must] draw all inferences in that party‟s favor." Gray v. York Newspapers, 957 F.2d 1070, 1080 (3d Cir. 1992). Summary judgment is inappropriate if there is evidence sufficient to allow a reasonable jury to return a verdict for the non-moving party, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), or if the factual dispute is one which might affect the outcome of the suit under the governing law . . . ." Id. The movant‟s burden, however, "may be discharged by "showing‟ . . . that there is an absence of evidence to support the non-moving party‟s case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Additionally, the non-movant "may not rest upon mere ...

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