                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 07-2814
                                ___________

Alex A. Mason,                         *
                                       *
      Plaintiff/Appellant,             *
                                       *
      v.                               *
                                       *
Correctional Medical Services, Inc.;   * Appeal from the United States
Gary Campbell, Dr.,                    * District Court for the
                                       * Eastern District of Missouri.
      Defendants/Appellees,            *
                                       *
Elizabeth Conley; Unknown Rice;        *
Unknown Rakestraw; Unknown Gavett, *
Dr.,                                   *
                                       *
             Defendants,               *
                                       *
James Carter; Missouri Department of *
Corrections,                           *
                                       *
      Defendants/Appellees,            *
                                       *
Mason Eye Clinic; Dean P. Hainsworth, *
Dr.; Unknown Hendrix, Dr.; Lenworth *
N. Johnson, Dr.;Unknown Doctors;       *
Gary Kempker; Jim Moore,               *
                                       *
             Defendants.               *
                                  ___________

                          Submitted: April 18, 2008
                             Filed: March 24, 2009
                              ___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

       Alex Mason, a Missouri state prisoner, suffered a blood clot that caused
permanent blindness in his left eye. Mason sued the manager of his prison housing
unit, James Carter, and the director of prison medical services, Dr. Gary Campbell,
alleging that they violated his Eighth Amendment rights by failing to facilitate or
render adequate medical treatment. Mason also sued the Missouri Department of
Corrections (“MDOC”), alleging that the MDOC denied him meaningful access to
prison benefits and services after he became blind, in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12132.

       The district court1 granted summary judgment in favor of Dr. Campbell and
MDOC. Mason v. Corr. Med. Serv., Inc., No. 2:04-CV-32, 2007 WL 433380 (E.D.
Mo. Feb. 6, 2007). Mason’s claim against Carter proceeded to trial, and a jury
returned a verdict in favor of Carter. The district court2 then denied Mason’s post-trial
motion for judgment as a matter of law. Mason appeals the district court’s decisions
granting summary judgment for Campbell and MDOC, and refusing to set aside the
jury’s verdict for Carter. We affirm.

                                           I.

     Mason is incarcerated at the Northeast Correctional Center (“NECC”) in
Missouri. He has been partially blind since childhood, when he lost use of his right
eye. Mason awoke in prison on the morning of July 13, 2003, to find his left eye

      1
        The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
      2
       The Honorable Carol E. Jackson, Chief United States District Judge for the
Eastern District of Missouri.

                                          -2-
swollen and watering. By July 15, his vision had become blurred, and he was
experiencing throbbing head pain.

        On July 15, Mason visited the medical wing of the NECC, and saw Dr.
Christine Gavett, an independent contractor employed by Correctional Medical
Services, Inc. (“CMS”). Dr. Gavett noted that Mason may have developed a blood
clot in the left eye, termed a Central Retinal Arterial Occlusion (“CRAO”). She
characterized CRAO as an emergency condition, and referred Mason to an outside
ophthalmologist, Dr. Jason Hendrix, for an appointment later that day. Dr. Hendrix,
however, did not receive Mason’s medical file or Dr. Gavett’s suspicion that Mason
had suffered a CRAO. Dr. Hendrix diagnosed Mason as having diabetic retinopathy,
a nonemergency condition, scheduled Mason for a routine reexamination one week
later, and sent Mason back to the prison without treatment.

       When Mason woke up the next morning, July 16, he was blind in the left eye,
and his pain had worsened. Mason alleges that he and his cellmate, Willie Oliver,
went to the office of James Carter, the prison housing unit manager, and requested
emergency medical care. Mason alleges that Carter agreed to notify Correctional
Medical Services, and then ordered Mason and Oliver to return to their cell. Upon
returning to his cell, Mason was bedridden. Other inmates gave him ibuprofen and
a damp cloth for his injured left eye. When they did not hear from CMS later that day,
Mason alleges that several inmates went to see Carter to request medical care for
Mason. One of the inmates who went to see Carter, James Bailey, testified that Carter
told him that he was “taking care” of Mason’s request. Another inmate, Mason’s
cellmate, testified that Carter “never responded” when he asked why Mason had not
received medical care, and that Carter told him to submit a Medical Services Request.
Mason’s cellmate testified that he completed a request with Mason’s help and put it
in the appropriate mailbox. Carter testified that he could not remember anyone
visiting him about Mason’s medical condition.




                                         -3-
       For the next six days, Mason did not leave his bed. He claims that pain
produced by the CRAO made it impossible for him to eat, sleep, or move about during
that period.

       On July 22, Mason saw Dr. Gavett for the reexamination that Dr. Hendrix had
scheduled seven days earlier. Dr. Gavett observed that Mason’s condition had
deteriorated, and called the office of CMS’s Regional Medical Director for permission
to make another emergency referral to the outside clinic. Mason testified that he was
in the room and “specifically heard Dr. Gavett refer to Dr. Campbell by name during
this call.” (App. 145). After the emergency referral was approved, an
ophthalmologist at the outside clinic concluded that Mason had suffered an
irreversible CRAO in the left eye, and that the only treatment available was to reduce
the pain.

       Mason sued Carter and Dr. Campbell for alleged violations of the Eighth
Amendment, pursuant to 42 U.S.C. § 1983, and MDOC for alleged violations of the
ADA. The district court granted summary judgment for Dr. Campbell and MDOC,
and the claim against Carter proceeded to trial. At the conclusion of the evidence, the
district court concluded as a matter of law that Mason had a “serious medical need”
of which Carter had knowledge, but ruled as a matter of law that Carter did not cause
Mason’s blindness, because the CRAO led to irreversible blindness prior to May 16.
Because Mason presented evidence that he suffered pain as a result of delayed
treatment, however, the court instructed the jury to decide whether Carter had been
deliberately indifferent to Mason’s serious medical need, and whether Mason had
suffered damages as a result. The jury returned a verdict in favor of Carter. The
district court denied Mason’s subsequent motion for judgment as a matter of law.




                                         -4-
                                         II.

                                         A.

       Mason argues that the district court erred by granting summary judgment on the
claim that Dr. Campbell violated Mason’s rights under the Eighth Amendment. The
district court concluded as a matter of law that Mason failed to show that Dr.
Campbell knew of Mason’s serious medical need. The court relied on the facts that
Mason had not informed Dr. Campbell of his blindness in a timely manner to allow
him to take action, that Dr. Conley, not Dr. Campbell, approved inmate medical
referrals, and that Mason’s medical records undermined his claim that Dr. Gavett
mentioned Dr. Campbell’s name in speaking to CMS personnel before declaring an
emergency. Based on these undisputed facts, the district court determined that no
reasonable juror could conclude that Dr. Campbell was personally involved. We
review a grant of summary judgment de novo, viewing the evidence and drawing all
reasonable inferences in favor of Mason, the non-moving party. Rehrs v. Iams Co.,
486 F.3d 353, 355-56 (8th Cir. 2007). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file . . . show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      To prevail on his claim based on the Eighth Amendment, Mason must show that
he had a serious medical need of which Dr. Campbell was aware, and that Campbell’s
deliberate indifference to that need caused harm to Mason. See Senty-Haugen v.
Goodno, 462 F.3d 876, 889-90 (8th Cir. 2006). In support of his contention that
Campbell knew of Mason’s serious medical need, Mason points to his own testimony
that he was in the room on July 22 when Dr. Gavett called the CMS’s Regional
Medical Director for permission to make another emergency referral, and that he
“specifically heard Dr. Gavett refer to Dr. Campbell by name during this] call.”




                                         -5-
       We conclude that Mason did not submit any admissible evidence that Dr.
Campbell had knowledge of Mason’s serious medical need. We question whether it
is reasonable to infer from the snippet of conversation to which Mason refers that Dr.
Gavett made a referral to Dr. Campbell. That Dr. Gavett mentioned Dr. Campbell’s
name during the telephone call does not establish that Dr. Gavett was speaking with
Dr. Campbell. But in any event, Mason’s testimony is inadmissible hearsay. Dr.
Gavett’s alleged statement referring to Dr. Campbell was made out of court, and it was
offered by Mason to prove that Dr. Campbell was the person on the other end of the
phone. Mason has not argued that the statement falls under any exception to the
hearsay rule, and we conclude that none is applicable. Mason cannot rely on hearsay
to avoid summary judgment. Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 923 (8th
Cir. 2004). Without any admissible evidence that Dr. Campbell was informed of
Mason’s serious medical need, there is no basis for an Eighth Amendment claim
against him, and the district court correctly granted summary judgment.

                                          B.

       Mason next argues that the district court erred by denying his motion for
judgment as a matter of law after the jury found in favor of Carter, the manager of the
prison housing unit. We review the district court’s denial of Mason’s motion de novo,
upholding the verdict unless no reasonable juror could have found in favor of Carter
based on the trial record. Sanders v. May Dep’t Stores Co., 315 F.3d 940, 943 (8th
Cir. 2003).

       To prove deliberate indifference, Mason must show that Carter possessed a
“state of mind more blameworthy than negligence,” amounting to criminal
recklessness. Farmer v. Brennan, 511 U.S. 825, 835-36 (1994). In other words,
Mason must show that Carter was “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exist[ed],” and that Carter actually drew
that inference. Id. at 837. Even if Carter knew of Mason’s serious medical need, he



                                         -6-
is not liable if he “believed (albeit unsoundly) that the risk to which the facts gave rise
was insubstantial or nonexistent.” Id. at 844.

       Mason alleges that Carter, as unit manager, controlled access to the prison
medical system, but refused to allow Mason to receive care on July 16, 2003, despite
promising to notify Correctional Medical Services about Mason’s complaint.
Although the evidence shows that the CRAO caused irreversible blindness before
Carter’s involvement in the chain of events, Mason argues that he suffered
unnecessary pain as a result of Carter’s inaction. According to Mason, Carter knew
that Mason had a serious medical need, and that Mason’s serious medical need would
go untreated, because “once [Carter] told [Mason] he would handle it there is nothing
nobody else in that house could do.” (Tr. 136). Carter testified to the contrary, stating
that Mason could have received emergency medical care at any time without Carter’s
permission, by “self-declar[ing] . . . [an] ‘emergency’ to any staff member,” (Tr. 226),
pressing “an emergency call button” in any prison cell, (Tr. 227), or submitting a
Medical Services Request form directly to CMS. Consistent with the notion that
Carter was not the exclusive avenue to medical care, Mason testified that he visited
CMS on July 15 without Carter’s involvement, after having a corrections officer fill
out the necessary request form. In the same vein, Mason’s cellmate testified that he
submitted a Medical Services Request form on Mason’s behalf after Carter told him
to do so.

       We conclude that a reasonable juror could choose to believe Carter’s testimony
and return a verdict in favor of Carter. Carter’s testimony, if believed, would support
a finding that Carter actually believed (albeit perhaps unsoundly) that the risk of
Carter’s inaction was “insubstantial or nonexistent,” Farmer, 511 U.S. at 844, because
Mason had alternative means to obtain emergency medical care. Under the deferential
standard of review applicable to a jury’s findings, and viewing the evidence in the
light most favorable to Carter, we affirm the district court’s denial of Mason’s motion
for judgment as a matter of law.



                                           -7-
                                           C.

      Mason’s final contention is that the district court erred by granting summary
judgment in favor of MDOC on Mason’s claim under the Americans with Disabilities
Act. Mason sought prospective relief in the form of an order requiring MDOC to
provide him with certain accommodations in response to his blindness.

       Title II of the ADA states that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. “[R]ecreational activities,
medical services, and educational and vocational programs” at state prisons are
benefits within the meaning of Title II, Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206,
210 (1998) (internal quotations omitted), and “qualified individual[s] with a
disability” are entitled to “meaningful access” to such benefits. Randolph v. Rodgers,
170 F.3d 850, 857-58 (8th Cir. 1999).

       A “qualified individual with a disability” is an individual “who, with or without
reasonable modifications to rules, policies, or practices, . . . or the provision of
auxiliary aids and services, meets the essential eligibility requirements for the receipt
of services or the participation in programs or activities provided by a public entity.”
42 U.S.C. § 12131(2). As relevant to this case, “auxiliary aids and services” includes
“qualified readers, taped texts, audio recordings, Brailled materials, large print
materials, or other effective methods of making visually delivered materials available
to individuals with visual impairments.” 28 C.F.R. § 35.104(2). While a public entity
is required to make reasonable accommodations where necessary to give “meaningful
access” to programs or benefits, Randolph, 170 F.3d at 858, the entity need not make
available “auxiliary aids and services” if it can show that to do so would be “unduly
burdensome.” Id. at 858-59; Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998);
see 28 C.F.R. § 35.150(a)(3).



                                          -8-
      Mason’s argument focuses primarily on two benefits that he claims have been
denied. First, Mason argues that he has been denied meaningful access to prison
benefits, including library benefits, which require him to read and write. MDOC
argues that it provided Mason with meaningful access to these benefits by providing
an inmate reader, who is available to read to Mason in person and to create audio tapes
of written material at Mason’s request, and by granting Mason access to audio
materials by mail and to a tape recorder.

       Mason says that these accommodations are inadequate, because his current
reader, Grayer Dear, is not always available. Mason also asserts that the audio
materials he ordered through the mail never arrived. Mason requests, in lieu of
MDOC’s offering, that the prison provide a qualified reader or interpreter who can
read to him as necessary, including when grievance forms need to be signed, and he
renews his request for access to audio materials. Alternatively, Mason requests
training in Braille, or computer software that reads written materials aloud to the
blind.

       We conclude that Mason has failed to raise a disputed issue of material fact
with respect to whether MDOC’s accommodations gave him meaningful access to
prison benefits involving reading and writing. Mason acknowledged that he was able
to select the fellow inmate who would be his assistant, (App. 540), and that Mr. Dear
escorts him everywhere he goes and assists him with anything that he needs. (App.
345). He also explained that Mr. Dear recorded written materials onto audio tapes,
and that these recordings were furnished to Mason. (App. 350). Mason does
complain that Mr. Dear is not always available, but the only example he cites of such
unavailability is a parole hearing during which he was not allowed to have an assistant
present. He does not point to anything about the absence of an assistant that prevented
him from presenting his case at that hearing, and he claims only generally that the
outcome of the hearing might have been different had he been able to “assist” himself.
(App. 349). It is undisputed that MDOC offered to allow Mason to order audio
materials by mail, and Mason’s vague testimony that this “has never taken place” is


                                         -9-
insufficient to show that MDOC actually refused to follow through on its offer in
response to a proper request from Mason. (App. 350). MDOC, of course, has a
continuing obligation under the ADA to make reasonable accommodations for Mason,
and the substitution of an assistant who is illiterate or not reasonably available, or the
failure to procure requested audio materials, would raise different issues. On this
record, however, we agree with the district court’s ruling, and because MDOC’s
present accommodations are sufficient, it is unnecessary to consider alternative
accommodations such as Braille materials or computer software.

       Mason also argues that he has been denied meaningful access to prison facility
benefits by being deprived of a trained assistant capable of assisting him in his day-to-
day activities. MDOC responds that it provided Mason with meaningful access to
these benefits through provision of an inmate assistant, and by facilitating Mason’s
ability to make requests of the prison administration by audio recording rather than
in writing. Mason contends that the accommodation is inadequate, because his inmate
assistant is not qualified to teach a blind person how to prepare food, clean, exercise,
and bathe, and that he is entitled to professional instruction and assistance.

       The district court determined that MDOC had reasonably accommodated Mason
by making available a prisoner assistant to help Mason with these tasks. The court
further concluded that it would be unduly burdensome to require MDOC to furnish
Mason with a trained handler from outside the prison, because such a person would
not be trained in safety and security matters, and would require the escort of a prison
guard at all times. As Mason does not explain what a professional assistant could
teach him about the foregoing tasks that his inmate assistant cannot, we see no basis
on this record to overturn the district court’s decision. Cf. Chisolm v. McManimon,
275 F.3d 315, 328 (3d Cir. 2001) (holding that a reasonable trier of fact could infer
that a deaf inmate whose primary form of communication was American Sign
Language required an assistant trained in American Sign Language at critical points).




                                          -10-
       Mason next argues that he has been deprived of meaningful access to the
prison’s exercise and recreation facilities. Mason walks with his inmate assistant, but
he contends that MDOC must accommodate him with an alternative form of
recreation, namely, weightlifting. Mason cites no evidence, however, that his assistant
was unable to help with weightlifting. Instead, the record shows that Mason himself
elected not to lift weights, because lifting weights is “not conducive” to people with
his disability. (App. 348). On this undisputed record, there is no genuine dispute
about MDOC’s reasonable accommodation of Mason’s desire to exercise.

       Mason further asserts that he was not provided with meaningful access to his
housing unit’s ADA compliance officer. In particular, Mason alleges that he received
no response to several ADA requests, and that the prison never conducted a “disability
needs assessment” that he requested.

        The allegation of non-responsiveness is not supported by the record. Mason
testified that he knew the identity of the ADA compliance officer in his housing unit,
and that the officer had in fact answered requests that Mason submitted. Mason
specifically admitted that the ADA compliance officer had not refused Mason’s
requests for assistance. On the second point, Mason cites no authority for the
proposition that he is entitled to a general “disability assessment,” and the district
court noted that he abandoned this request when briefing the motions for summary
judgment. MDOC’s current policy is to respond to ADA requests on an “as-needed
basis.” To show a violation of Title II, Mason must specify a benefit to which he was
denied meaningful access based on his disability. 42 U.S.C. § 12132. Mason has
failed to identify a particular benefit that MDOC denied him, and the allegation that
the requested assessment might uncover unspecified violations of the ADA is not
enough to create a disputed issue for trial with respect to this accommodation.




                                         -11-
                       *      *     *

The judgment of the district court is affirmed.
               ______________________________




                            -12-
