United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S POST-TRIAL
Dennis Saylor IV, United States District Judge
an action brought by a mentally-disabled state prisoner
asserting claims under the Americans with Disability Act, 42
U.S.C. § 12101 et seq. Plaintiff William Cox
contends that he was the victim of discrimination on the
basis of disability because he was denied adequate access to
(1) procedures to obtain medical care, (2) procedures to
report and resolve grievances, (3) procedures to report
physical or sexual assaults, and (4) use of telephones. After
a trial, a jury found in his favor on those claims and
awarded him money damages. Defendant Massachusetts Department of
Correction has moved for judgment in its favor as a matter of
law under Fed.R.Civ.P. 50 and for remittitur or (in the
alternative) for a new trial under Fed.R.Civ.P. 59(e) and
basic question before the Court is whether the verdict should
be overturned, in whole or in part, on grounds of lack of
evidence or sovereign immunity. The issue, of course, is not
whether Cox is an unsympathetic figure (he is a convicted
murderer serving a life sentence) or a sympathetic figure (he
is a mentally disabled man who was sexually assaulted in
prison). Nor is the issue whether the procedures at issue are
ideal in all respects. Rather, it is whether-under the
complex procedural interplay between the ADA, principles of
sovereign immunity, and the Constitution-the award of money
damages should be upheld. For the reasons set forth below,
the motions will be granted in part and denied in part.
Cox is a 57-year-old inmate currently serving a life sentence
in Massachusetts state prison for a conviction of
second-degree murder in 2007. He is mentally disabled and has
an intelligence quotient (“IQ”) of 51. (Tr.
3:65). He is unable to read, write, and dial a telephone
without assistance. (Tr. 2:45-46; 3:68, 92). Since 2009, he
has been housed in the residential-treatment unit
(“RTU”), a specialized unit for inmates with
mental-health problems. (Tr. 3:23, 37).
trial, Cox presented evidence concerning his inability to
access various prison programs and services. He presented
evidence that, due to his inability to write, he was unable
to fill out sick-call slips to request medical attention.
(Tr. 2:47). There was evidence that he sometimes experienced
delays in receiving medical care, although the length of the
delays and their cause is unclear. He testified that other
inmates help him fill out sick-call slips, and that, in
exchange, he is often required to barter with them, generally
by giving them items he has purchased through the prison
commissary system, such as chips, coffee, or pastries. (Tr.
5:127-28). Because he is required to barter for favors, he
believes that he is more vulnerable to exploitation by other
also presented evidence that his inability to write prevented
him from making full use of the prison grievance system, and
that, as with sick-call slips, he had to give other inmates
items from his commissary in exchange for their help writing
out grievance forms. (Tr. 5:128).
also presented evidence concerning his inability to dial the
telephone. Again, he testified that he sometimes gave other
inmates items from his commissary in exchange for their help
dialing the telephone. (Tr. 5:127-28).
inability to dial the telephone also restricted his ability
to use the confidential hotline to report instances of sexual
assault, referred to as the “PREA” hotline in
reference to the Prison Rape Elimination Act, 34 U.S.C.
§ 30301 et seq. (Tr. 2:59-60, 92). There was
testimony at trial that he was the victim of a sexual assault
committed by other inmates, in which other inmates inserted a
deodorant bottle in his anus. (Tr. 2:55-57). There was also
testimony that another inmate who witnessed the incident
called the PREA hotline on Cox's behalf to report it.
(Tr. 5:114; 2:88).
to that incident, the same inmates who sexually assaulted Cox
at least twice pulled his pants down and made fun of the size
of his penis. (Tr. 2:61-63; 5:111, 122). Cox testified that
he reported the incidents to corrections officers, but that
they told him that it was his fault and “never done
nothing about it.” (Tr. 5:111, 122).
inmate named George Stallings testified that he occasionally
helped Cox make phone calls or write letters. (Tr. 2:63).
Stallings testified in general terms that when Cox asked
corrections officers for assistance, they would refuse to
help, and instead “laugh, clown at him, ” and say
things like “‘look at this clown' or
‘look at this guy, is he serious?'” (Tr.
presented testimony that placement in the RTU meant that Cox
had access to the “very highest level of general
population care [available] in the Department of
Correction.” (Tr. 3:131). There was testimony that the
mental-health clinicians who staffed the RTU were available
to help inmates with things such as reading or writing
letters or forms and dialing the telephone. (Tr. 3:56-57, 93;
6:97). There was also testimony that Cox had daily access to
nurses and mental-health clinicians, from whom he could seek
assistance at any time. (Tr. 6:94, 113, 3:54).
jury returned a verdict in favor of Cox and against the DOC
on most of his ADA claims, finding that he lacked meaningful
access to (1) procedures to obtain medical care; (2)
procedures to report and resolve grievances; (3) procedures
to report physical or sexual threats or assaults; and (4) use
of telephones. (Docket No. 199 at 1-2). The jury awarded
damages in the amount of $250, 000, broken down between the
different claims as follows: $50, 000 for lack of access to
procedures to obtain medical care; $25, 000 for lack of
access to procedures to report and resolve grievances; $150,
000 for lack of access to procedures to report physical and
sexual threats or assaults; and $25, 000 for lack of access
to telephones. (Id. at 3).
has moved for post-trial relief in the form of judgment as a
matter of law, sovereign immunity as to the damages award,
and remittitur or, in the alternative, a new trial on
Judgment as a Matter of Law
DOC has moved for judgment as a matter of law pursuant to
Fed.R.Civ.P. 50(b). It contends that judgment in its favor is
warranted because (1) the evidence presented at trial showed
that Cox had meaningful access to prison programs and
services and (2) the evidence did not support a finding of
intentional discrimination, as is required to award
compensatory damages under the ADA. It has further moved for
judgment as a matter of law on the ground of sovereign
Whether the Claims Are Preserved
50(b) motion for judgment as a matter of law is
“bounded by the movant's earlier Rule 50(a)
motion.” Parker v. Gerrish, 547 F.3d 1, 12
(1st Cir. 2008) (internal quotation marks omitted). Such a
motion cannot be used to “introduce a legal theory not
distinctly articulated in [the movant's]
close-of-evidence motion for a directed verdict.”
Id. (internal quotation marks omitted); accord
Costa-Urena v. Segarra, 590 F.3d 18, 26 n.4 (1st Cir.
2009) (“It is well-established that arguments not made
in a motion for judgment as a matter of law under Rule 50(a)
cannot then be advanced in a renewed motion for judgment as a
matter of law under Rule 50(b).”); Fed.R.Civ.P. 50
Advisory Committee's Notes, 2006 Amendments
(“Because the Rule 50(b) motion is only a renewal of
the preverdict motion, it can be granted only on grounds
advanced in the preverdict motion.”).
filed two pre-verdict Rule 50(a) motions, one at the close of
Cox's case and the other at the close of all the
evidence. Those motions focused primarily on the claim
against defendant O'Brien in his individual capacity.
(See Docket No. 194 at 1-8; Docket No. 195 at 1-8).
As to the ADA claim against the DOC, the motions focused
primarily on the issue of sovereign immunity. (See
Docket No. 194 at 8-10; Docket No. 195 at 8-10).
of its argument on sovereign immunity, the DOC contended that
“the plaintiff has failed to produce evidence to prove
each element” of his ADA claim. (Docket No. 194 at 8;
Docket No. 195 at 8). It went on to state:
[Cox] has failed to produce evidence that the Department of
Correction denied [him] access to prison services with a
discriminatory purpose, a required element of his claim. [He]
has failed to show that there was anything different about
the way he was treated “by reason of . . .
disability.” [He] has failed to show that his
disability was a substantial cause of the exclusion or denial
of any reasonable accommodation. In order for his claim to
survive, [he] must allege causation between the alleged
discrimination and his disability. [He] has failed to show
that the defendant violated Title II with respect to any of
the alleged services he was denied-assistance using [the]
telephone, assistance filing grievances, assistance writing
sick slips, and assistance cleaning his cell or using the
(Docket No. 194 at 8-9; Docket No. 195 at 8-9) (internal
citations omitted). At oral argument on the motion,
defendants presented argument on the claims against
O'Brien and the issue of sovereign immunity only.
(See Tr. 6:19-24). As to sovereign immunity, the DOC
argued that Cox had failed to show “any injury to . . .
even with respect to any lost opportunity” to access
prison programs and services and that “Cox has failed
to show any injury with respect to the specific claims under
the ADA with respect to medical care, the grievance
procedures, telephone, [and] showers.” (Id. at
21, 24). In context, however, it is unclear whether the
DOC's arguments were made under the standards of the ADA
itself or the standards of the constitutional provisions
relevant to each claim.
there is some ambiguity as to whether the DOC directly
challenged the sufficiency of the evidence to support
Cox's ADA claims in its earlier Rule 50(a) motions.
However, the first step in the relevant sovereign-immunity
analysis is whether the plaintiff has stated a viable ADA
claim. See United States v. Georgia, 546 U.S. 151,
159 (2006). Accordingly, its Rule 50(b) motion does not
introduce a wholly new legal theory or argument. The Court
will therefore proceed to the merits of the motion.
Whether Judgment as a Matter of Law Is
motion for judgment as a matter of law may be granted only
“when, after examining the evidence of record and
drawing all inferences in favor of the nonmoving party, the
record reveals no sufficient evidentiary basis for the
verdict.” Zimmerman v. Direct Fed. Credit
Union, 262 F.3d 70, 75 (1st Cir. 2001). When considering
a motion for judgment as a matter of law, “the court
may not weigh the evidence, undertake credibility
determinations, or engage in differential factfinding.”
Id. Rather, “the jury's verdict must stand
unless the evidence, taken in the light most favorable to the
prevailing party, points unerringly to an opposite
succeed on a claim under Title II of the ADA, a plaintiff
must establish “(1) that he is a qualified individual
with a disability; (2) that he was either excluded from
participation in or denied the benefits of some public
entity's services, programs, or activities or was
otherwise discriminated against; and (3) that such exclusion,
denial of benefits, or discrimination was by reason of the
plaintiff's disability.” Parker v. Universidad
de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000). The
second prong generally requires that a plaintiff show that he
was denied “‘meaningful access' to government
benefits and programs, ” meaning that the defendant
failed to take “reasonable steps to ensure that [the
plaintiff] can take advantage of” its benefits and
programs. Theriault v. Flynn, 162 F.3d 46, 48 (1st
it is undisputed that due to his intellectual disabilities,
Cox is unable to read, write, or dial a telephone. The DOC
contends that the evidence presented at trial failed to
establish that those limitations prevented him from accessing
the prison programs and services at issue.
reasons set forth below, the evidence here is sufficient, if
sometimes marginally so, to establish that Cox was denied
access to (1) procedures to obtain medical care, (2)
procedures to report and resolve grievances, and (3)
procedures to report physical and sexual assault. It is not
sufficient, however, to establish that he was denied
meaningful access to the use of telephones, and for that
reason, the motion for judgment as a matter of law will be
granted as to that claim.
Evidence of Denial of Access to Programs and
Procedures to Obtain Medical Care
contends that the evidence presented at trial did not
establish that Cox was denied meaningful access to procedures
to obtain medical care. In particular, it contends that the
evidence showed that he does not need to write a sick slip in
order to receive medical care, but could simply ask any
member of the staff, including his mental-health clinicians
or the nurses that he sees daily to receive insulin
injections, that he needs to see medical staff.
trial, Karen Dinardo, the deputy superintendent of re-entry
at North Central Correctional Institute-Gardner and the ADA
coordinator, testified that Cox could access medical care by
“ask[ing] staff, let[ting] staff know that he is in
need of service, ” or asking a nurse in the insulin
line who “would make sure that he was seen by somebody
if he was experiencing any difficulty.” (Tr. 6:113).
Andrea Mitchell, Cox's mental-health clinician, also
testified that she sees him on a daily basis and would
“[a]bsolutely” assist him with writing a
sick-call slip if he asked. (Tr. 6:94). Mitzi Peterson, the
director of behavioral health for the DOC, testified that an
inmate could approach staff on the unit doing rounds to
verbally ask for medical assistance. (Tr. 3:54). Cox himself
also testified that his mental-health clinicians
“help me any time I ask” and that he can
“go down to medical, they help me, too. I go down to
medical and ask the people who runs [sic] it.” (Tr.
another inmate, George Stallings, testified that an inmate
could “[a]bsolutely not” just show up at the
medical unit and receive treatment. (Tr. 2:47). Cox testified
that sometimes medical staff or mental health staff told him
they were too busy to help him, and would tell him to go back
to his unit. (Tr. 5:132-33). There was also evidence from
which the jury might have reasonably inferred that when Cox
asked for medical attention, he was told that he needed to
fill out a sick-call slip in order to be seen. (Trial Ex.
1.1563 (sick-call slip, apparently filled out by another
inmate, stating “I want to know why I haven't seen
a doctor? As told by Carol (nurse H.S.U). Please help. Thank
you.”); Trial Ex. 1.1849 (sick-call slip, apparently
filled out by another inmate, stating “At approx. 9 AM
during med. line I informed nurse Tracy of bowl bleading
[sic] when I poop. When I wipe the blood pours from
me.”)). The sick call request forms in evidence contain
a number of complaints from Cox about delays. (See,
e.g., Exs. 1.1563, 1.1742, 1.2111, 1.2112). Cox
testified that when other inmates helped him fill out a sick
slip, he would give them “my pastry, like cupcake,
anything.” (Tr. 5:128).
noted, Stallings testified that as a general matter,
corrections officers would make fun of Cox if he asked for
assistance. (Tr. 2:64). Stallings did not specifically
testify, however, that corrections officers refused to assist
Cox in filling out sick-call slips.
far from clear that the evidence as to the claim of denial of
adequate access to medical care is sufficient to sustain the
verdict. There was unrebutted evidence that Cox had daily
access to medical and mental-health professionals who could
(and would) assist him in obtaining any required care.
Medical resources are limited, even outside of prisons, and
delays in obtaining non-emergency care are commonplace; a
delay by no means automatically equates to a denial, or even
the provision of substandard care. The question is further
complicated by the prison environment. It is reasonable for
prisons to require orderly procedures for seeking medical
treatment, and not simply permit prisoners to simply show up
at the clinic and receive treatment on demand. The
requirement of a written slip for non-emergency treatment is
not unreasonable, even for a mentally disabled prisoner, as
long as assistance in filling out the slip is provided.
other hand, prisoners are at the mercy of the staff, and they
cannot seek care elsewhere if their requests are ignored.
There was some evidence that corrections officers did not
provide assistance in obtaining care, and instead made fun of
Cox. Cox testified that (in effect) he had to pay inmates to
help him fill out sick slips. And there is some evidence of
delays in obtaining access to health care.
the Court will not overturn the verdict concerning Cox's
access to procedures to request medical care because the
evidence, viewed in the light most favorable to him, does not
“point unerringly to an opposite conclusion.”
Zimmerman, 262 F.3d at 75.
Procedures to Report and Resolve Grievances
further contends that the evidence at trial failed to
establish that Cox lacked meaningful access to procedures to
report and resolve grievances. It points to evidence that Cox
is able to advocate for himself and has in fact
“advocated for himself in interpersonal struggles with
others, with issues with roommates.” (Tr. 3:125
(testimony of Mitzi Peterson)). There is also evidence that,
on at least one occasion, he spoke to a mental-health
clinician about another inmate who “provokes”
him. (Tr. 3:60).
also points to evidence that Cox's mental-health
clinicians are available for confidential meetings and can
provide assistance with reading and writing. (Tr. 6:86-88).
There was evidence that if an inmate reported to a
mental-health clinician that he was afraid that someone else
was going to harm him, that clinician would report that to
the shift commander and file a confidential incident report
for the superintendent's review. (Tr. 3:55). Finally,
there was evidence that inmates can report problems to DOC
staff during staff rounds or staff access hour, during which
inmates can report problems or complaints to DOC officials
from the superintendent's administration. (Tr. 2:67; Tr.
there was also some evidence that Cox may have lacked
meaningful access to grievance procedures. For example,
Prisoners' Legal Services attorney Lauren Petit testified
that, to her knowledge, no DOC staff member had ever helped
Cox file a grievance. (Tr. 4:81). There was evidence from
which the jury could conclude that Cox lacks the mental
capacity to advocate on his own behalf and proactively seek
out assistance from staff members. (See Tr. 3:65-68
(discussing Cox's IQ and intellectual capabilities); Tr.
4:100 (testimony by attorney Lauren Petit that Cox is
“unable to . . . understand the information that he
would need to present in order to substantiate what his needs
are” and that his ability to express his needs is
“very limited”)). Cox testified that he
“wouldn't fill out no grievance, ” but that
if other inmates helped him, he would give them something.
(Tr. 5:128). And as noted, there was testimony from Stallings
that corrections officers were generally not responsive to
Cox's requests for assistance. (See Tr. 2:64).
it is far from clear whether the evidence on this issue is
sufficient. Because Cox is illiterate and has limited
intellectual capacity, he will never be able to put
grievances in writing without assistance, and will always
have difficulty advocating for himself and seeking out the
help of staff, regardless of what procedures are in place.
There is no evidence that he ever actually attempted to file
a grievance and failed, was prevented from filing a
grievance, or suffered an injury that could have been
resolved by a grievance.
again the Court will not overturn the jury's verdict as
to this issue because the evidence, viewed in the light most
favorable to plaintiff, does not “point unerringly to
an opposite conclusion.” Zimmerman, 262 F.3d
Procedures to Report Physical and Sexual
DOC next contends that the evidence at trial failed to
establish that Cox was denied meaningful access to procedures
to report physical and sexual assaults. It points to evidence
that he was able to report any problems to DOC staff,
including mental-health clinicians, corrections officers, and
other officials during either staff rounds or staff access
hour. It also points to evidence that he has monthly
confidential meetings with his mental-health clinician, that
he could request additional confidential meetings if
necessary, and that if he reported any instance of physical
or sexual assault to his clinician, that person would then
file an incident report for the superintendent's review.
(Tr. 3:55; 6:86-87). Thus, the DOC contends that his
inability to dial a telephone and use the confidential PREA
hotline did not prevent him from reporting assaults in other
noted, there was evidence that DOC staff were not always
responsive to Cox's requests for assistance. Cox
testified that he reported to corrections officers that other
inmates- the same inmates who later sexually assaulted
him-were pulling down his pants, laughing at him, and making
fun of the size of his penis, but that the officers did
nothing about it. (Tr. 5:111, 122). Again, there was also
testimony from Stallings that when Cox asked corrections
officers for help, they would “laugh at him” or
call him a “clown.” (Tr. 2:64). Furthermore,
there was testimony from Stallings that the PREA hotline was
necessary to provide a confidential means of reporting
assault so that the individual making the report would not be
labelled a “rat, ” which could have consequences
for that prisoner's safety. (Tr. 2:91-92). Arguably, the
earlier refusal of the guards to respond to the earlier
incidents contributed, at least in part, to the subsequent
sexual assault of Cox.
it is not at all clear that the evidence as to this issue was
sufficient. If Cox cannot use a telephone without the
assistance of others, he will never be able to access the
PREA hotline, and will always have to rely on oral reports to
staff or the assistance of staff. Nonetheless, again the
Court will not overturn the verdict, as it is not plainly
against the weight of the evidence.
Access to Telephones
Finally, the DOC contends that the evidence presented at
trial does not support the jury's verdict that Cox lacked
meaningful access to use of the telephone. It points to
testimony that clinical staff would be available to help him
dial a telephone if he requested that help. (Tr. 6:97). It
also points to Cox's own testimony concerning his ability
to ask his clinician to help him place a telephone call.
While Cox did testify that he asked his mental-health
clinician to help him call his family, his testimony on the
issue was ambiguous at best. He testified that he sometimes
asked a particular mental-health caseworker to call his
brother or sister and he seemed to suggest that she helped
him when he requested. (Tr. 5:138). When he was asked whether
his “case workers help [him] dial the phone, ” he
responded, “[s]he don't dial the phone, I'll
ask her, she'll turn around and call in the ...