                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2009

Wayne Pritchett v. Richard Ellers
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1669




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Recommended Citation
"Wayne Pritchett v. Richard Ellers" (2009). 2009 Decisions. Paper 1467.
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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 08-1669


                  WAYNE PRITCHETT,

                                   Appellant

                              v.

                    RICHARD ELLERS;
                      JOHN SYMONS


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
               District Court No. 06-CV-00265
       District Judge: The Honorable Sylvia H. Rambo


      Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                      April 16, 2009

Before: McKEE, SMITH, and VAN ANTWERPEN, Circuit Judges


                   (Filed: April 28, 2009)




                         OPINION




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SMITH, Circuit Judge.

       Wayne Pritchett, a prisoner in the Pennsylvania State Correctional Institution at

Rockview (SCI-Rockview) during 2004, suffered from papilloma of the larynx, which is

a condition aggravated by environmental tobacco smoke (ETS). After undergoing

surgery in mid-June of 2004, Dr. Kao, his surgeon, recommended that he avoid ETS.

Although SCI-Rockview had a non-smoking policy, it was not enforced and inmates

smoked in their housing units. Because Pritchett was exposed to smoking, he complained

that he was not receiving adequate care and should be placed in a single cell.

       Single celling for medical reasons required input from a physician. For that

reason, Richard Ellers, the health care administrator at the facility, spoke with Dr. John

Symons, a physician employed by SCI-Rockview. Although Dr. Symons found no

medical justification for a single cell assignment, he conferred with Ellers about reducing

Pritchett’s exposure on several occasions. Since smoking on the cell blocks exposed

Pritchett to ETS, Ellers contacted other officials at SCI-Rockview to investigate whether

Pritchett’s cell mate smoked and whether changing Pritchett’s cell assignment would

reduce or eliminate his exposure to ETS. Pritchett, however, opposed any such change.

Nonetheless, in October and November, Ellers contacted officials within the Pennsylvania

Department of Corrections (DOC) about transferring Pritchett to a facility that was smoke

free. By late November of 2004, Pritchett required additional outpatient surgery on his

throat. On December 9, 2004, Dr. Kao again recommended that Pritchett avoid ETS. On



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December 14, the DOC transferred Pritchett to the State Correctional Facility at Fayette,

which was allegedly a smoke free facility.

       In February of 2006, Pritchett filed a complaint alleging, inter alia, that Ellers and

Dr. Symons had been deliberately indifferent to his serious medical needs in violation of

the Eighth Amendment to the United States Constitution and that he had been

discriminated against on the basis of a disability in violation of the Americans with

Disabilities Act of 1990 (ADA). Pritchett’s ADA claim against Dr. Symons was

dismissed. After the close of discovery, Ellers and Dr. Symons moved for summary

judgment. The District Court granted both motions. Pritchett appealed.1

       With respect to the ADA claim against Ellers, the District Court concluded that the

evidence that Pritchett’s voice was “raspy” was not enough to show an impairment that

substantially limited the major life activity of speaking, and thereby did not constitute a

disability. We agree with the District Court. Under the ADA, the “term ‘disability’

means . . . [a] physical or mental impairment that substantially limits one or more of the

major life activities of such individual.” 42 U.S.C. § 12102(1). Speaking is specifically

cited by the statute as a major life activity. 42 U.S.C. § 12102(2)(A). However, “[i]t is

insufficient for individuals attempting to prove disability status [under the ADA] . . . to



       1
        The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction over this final order under 28 U.S.C. § 1291. We exercise plenary review
over a District Court’s grant of summary judgment. Taylor v. Phoenixville Sch. Dist., 184
F.3d 296, 305 (3d Cir. 1999).


                                              3
merely submit evidence of a medical diagnosis of an impairment.” Toyota Motor Mfg. v.

Williams, 534 U.S. 184, 198 (2002) (overruled on other grounds by the ADA

Amendments Act of 2008, Pub. L. 110-325, 122 Stat. 353 (2008)). Yet that is what

Pritchett adduced: a report from Dr. Kao regarding his medical diagnosis and evidence

that his voice is “raspy.” While his “raspy” voice may impact the volume of his speech,

there is no evidence in the record before us that Pritchett was unable to articulate words

and to communicate with other individuals. Nor have we been directed to any evidence

of record that suggests that his condition caused others to have difficulty comprehending

Pritchett’s speech. See Calef v. Gillette Co., 322 F.3d 75, 84 (1st Cir. 2003) (concluding

that a medical assessment that verbal abilities were within the average range, including

articulation, fluency, grammar and syntax, and that plaintiff was able to satisfactorily

speak with customers failed to demonstrate a substantial limitation of the major life

activity of speaking); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 507 (7th Cir.

1998) (observing that the life activity of speaking “surely does entail more than the

physical aspects of vocalization”). In the absence of record evidence that Pritchett’s

impairment substantially limited his major life activity of speaking, we will affirm the

District Court’s grant of summary judgment in favor of Ellers on Pritchett’s ADA claim.

       We also find no error in the grant of summary judgment on the deliberate

indifference claims. The District Court concluded that the conduct of Ellers and Dr.

Symons in trying to accommodate the need to avoid ETS was neither indifferent nor



                                              4
deliberate. We agree.

       In considering Pritchett’s claims against Ellers and Dr. Symons, we must be

mindful that accommodating Dr. Kao’s recommendation required consultation between

Ellers and Dr. Symons. Ellers was not a physician and Dr. Symons did not possess the

authority to unilaterally change an inmate’s housing status. As a result, Ellers and Dr.

Symons conferred in an effort to address Pritchett’s medical needs. To that end, Ellers

made inquiries in October and November to officials at SCI-Rockview and within the

DOC about accommodating the need to avoid ETS. Pritchett’s transfer occurred on

December 14, 2004. Under these circumstances, there is no evidence of an intentional

refusal to address the recommendation of Dr. Kao to avoid ETS. Nor is there any

evidence to suggest that there was a deliberate disregard of the risk of continued exposure

at SCI-Rockview. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Accordingly, we

will not disturb the District Court’s judgment in favor of Ellers and Dr. Symons.




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