Donnell Flournoy v. Mark Culver , 534 F. App'x 848 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15230
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-00104-MHT-WC
DONNELL FLOURNOY,
Plaintiff-Appellant,
versus
MARK CULVER, et al.,
Defendants,
SKIP DUFFIE,
CCO Staff,
VERONICA ALVARDO,
CCO Staff,
GARY KNIGHT,
Director CCO,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(August 13, 2013)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Plaintiff Donnell Flournoy, an Alabama state prisoner, appeals the district
court’s grant of summary judgment in favor of the defendants, Skip Duffie,
Veronica Alvarado, and Gary Knight, all employees of the Houston County
Community Corrections Work Release Program, on Flournoy’s due process claim
under 42 U.S.C. § 1983 and his claim of disability discrimination under Title II of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. After
review, we affirm.
I. STATE COURT PROCEEDINGS
A. Flournoy’s State Court Sentence
In November 2009, Plaintiff Flournoy was convicted in Alabama state court
of possession of a controlled substance. Through his attorney, Flournoy advised
the state court that he was able to work.
On December 3, 2009, the state court sentenced Flournoy to a fifteen-year
imprisonment sentence, but suspended that sentence on the condition that Flournoy
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serve one year on probation under the supervision of the Houston County Work
Release Program.
On December 9, 2009, Defendant Skip Duffie, Flournoy’s probation officer,
interviewed Flournoy and read to him the conditions of work release. These
included, among other things, that: (1) if Flournoy did not comply with the
conditions, rules and regulations of the work release program, he would be
removed from the program and returned to the Houston County Jail; (2) Flournoy
was required to report to job placement personnel (Defendant Veronica Alvarado),
who would assist him in finding employment and could not look for employment
on his own; and (3) if Flournoy failed to get approved employment, he might be
removed from the work release program.
Flournoy signed a form listing these and other conditions for participating in
the work release program and applying for acceptance into the work release
program. Flournoy also completed a supplemental form indicating that he was
disabled due to combat injuries as a Vietnam veteran, but was able to work and did
in fact work as a painter, house remodeler, and a certified paralegal. Flournoy
noted that he wore an orthopedic back brace to help him perform his work.
B. Work-Release Probation
Defendant Alvarado worked with Plaintiff Flournoy for over three weeks,
but was unable to find a job for him. On December 29, 2009, Defendant Alvarado
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informed Defendant Duffie, the probation officer, and Defendant Gary Knight, the
director of the work release program, that Plaintiff Flournoy was unable or
unwilling to maintain employment as required by the work release program.
Duffie asked Alvarado to put her views in a letter to him, which Alvarado did on
the same day. In her letter, Alvarado stated that Plaintiff Flournoy “has been found
to be unemployable.” The letter further indicated that Flournoy “has disabilities
that make it difficult for him to seek full-time employment” and that Flournoy
“states that it is difficult for him to work.”
On December 30, 2009, Defendant Probation Officer Duffie prepared a
delinquency report to the state court judge based on Flournoy’s failure to comply
with the conditions, rules, and regulations of the work release program. Duffie’s
delinquency report indicated that Alvarado had “deemed . . . Flournoy
unemployable,” that Flournoy had told Alvarado that “due to his medical
conditions . . . it is to[o] difficult for him to work,” but that “Flournoy understands
that he must work at a place of employment to be eligible for [the work release
program] and signed an intake document stating that he must work.” Duffie
recommended that Flournoy be returned to the Houston County Jail until his
revocation hearing.
C. Revocation of Work Release and Probation
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On January 12, 2010, the state court held a hearing on the delinquency
report. Plaintiff Flournoy appeared pro se at the hearing.
Defendant Duffie testified that although Flournoy understood going into the
work release program that he was required to have a job, he said he could not work
and “declined to go get one.” When the state court asked Flournoy whether he
wanted to cross-examine Duffie, Flournoy said no. After the state court placed
Flournoy under oath, he testified that he was disabled and could not work.
The state court explained to Flournoy that if he could not work, he could not
be in the work release program. The state court found that Flournoy had violated
the terms and conditions of his probation because he failed to obtain or maintain
employment and revoked his probation. Flournoy was removed from the work
release program and was committed to the custody of the Alabama Department of
Corrections (“ADOC”).
II. DISTRICT COURT PROCEEDINGS
Plaintiff Flournoy filed this pro se action, alleging that the defendants
violated his due process and equal protection rights and the “Disability Acts, Social
Security Act and Handicapped Acts” when his probation was revoked and he was
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removed from the work release program. Flournoy asked for injunctive relief and
damages. 1
The defendants filed a special report and answer, which included sworn
statements and documentary evidence reflecting the above facts. A magistrate
judge issued an order advising Flournoy that (1) the special report and answer
would be treated as a motion for summary judgment and (2) he had an obligation
to respond to the summary judgment motion with sworn statements and other
evidence to show a genuine issue of material fact
Plaintiff Flournoy filed an unsworn response to the special report and
answer. Flournoy’s response argued that he “raised clear constitutional grounds
. . . that shows Defendants’ failure to give Plaintiff an equal protection and due
process rights to participate in the Houston County Work Release Program once
assigned, due to his handicapes [sic] and disibilities [sic]” and that Defendant
Alvarado “failed to give Plaintiff an equal protection opportunity to be employed
due to Plaintiff’s disibilities [sic].”
Plaintiff Flournoy did not submit any affidavits or other sworn statements.
He did attach several uncertified documents to his response, including: (1) a signed
physician’s statement, dated July 13, 2006, indicating that, for purposes of
1
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (iii), the district court dismissed with
prejudice Flournoy’s claims against defendants Houston County Commissioner Mark Culver and
Lieutenants Jones and Napa. Flournoy’s counseled appeal brief does not challenge the dismissal
of these claims.
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Alabama Code § 9-11-54 (special fishing licenses for totally disabled people),
Flournoy was permanently “disabled” due to chronic back pain; (2) a copy of
Defendant Duffie’s delinquency report; (3) what appears to be a March 2010
ADOC form relating to Flournoy’s inmate classification, which notes a “physical
inability to perform hard labor per report in subjects possession,” and “various
health concerns to include metal pin in back,” but that “overall record appears
manageable in level II minimum”; (4) an ADOC inmate summary dated December
9, 2009, showing Flournoy was assigned to the Houston County work release
program and had a total term of 1 year, a minimum release date of November 4,
2010, and a long date of November 4, 2010; (5) an ADOC inmate summary dated
February 2, 2010, showing he was removed from the work release program on
January 12, 2010, and had a total term of 15 years, a minimum release date of June
8, 2014, and a long date of October 3, 2024; and (6) an undated application for a
disability access parking pass signed by a physician, stating that Flournoy could
not walk two hundred feet without stopping to rest or walk without the use of a
brace, cane, crutch, another person, prosthetic device wheelchair or other assistive
device.
The magistrate judge entered a report (“R&R”) recommending that the
defendants’ summary judgment motion be granted. The magistrate judge
concluded, inter alia, that: (1) Flournoy’s request for injunctive relief was moot
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because Flournoy recently was released from the Houston County jail; (2)
Flournoy received notice and a hearing before his probation was revoked and he
was removed from the work release program and thus received due process; (3)
Flournoy did not allege that the decision to remove him from the work release
program was based on a constitutionally protected interest and his allegations did
not rise to the level of an equal protection violation; and (4) Flournoy had
abandoned his statutory disability discrimination claims.
Flournoy filed an objection to the R&R, arguing, inter alia, that “he never
abandon[ed] any such alleged civil action, and has raised clear constitutional
grounds in his complaint that will show the defendants discriminated againts [sic]
the Plaintiff because of black race and failed to give an equal protection, and due
process due to his handicapped, and disibilities [sic], and legally blind, disable[d]
Viet-nam vetran [sic].” Flournoy further argued that disabled prisoners were
protected by the ADA, “which provides that . . . no qualified individual with a
disability shall by reason of such disibility [sic], be excluded from participation in
or be denied the benifits [sic] of services, rehabilitation programs, activities of a
public entity . . . .”
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The district court overruled Flournoy’s objection, adopted the R&R, and
granted summary judgment to the defendants. Flournoy filed this appeal, and this
Court appointed counsel.2
III. DISCUSSION
A. ADA Claim
Under Title II of the ADA, a “qualified individual with a disability” cannot
be excluded from participating in, or be denied the benefits of, services, programs,
or activities of a public entity “by reason of such disability” or “be subjected to
discrimination by” the public entity. See 42 U.S.C. § 12132. 3 “The Supreme
Court has instructed that a disabled prisoner can state a Title II ADA claim if he is
denied participation in an activity provided in state prison by reason of his
disability.” Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1081 (11th Cir. 2007)
(citing Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1955
(1998)).
2
Flournoy’s counseled brief does not raise any issue with respect to his equal protection
claim or his claim for injunctive relief and has thus abandoned those claims. See United States
v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
3
The parties dispute whether Flournoy abandoned his statutory ADA claim in the district
court by referring to it as a constitutional claim in his pro se response to the defendants’
summary judgment motion. We need not resolve this issue, however, because, even if he did not
abandon his ADA claim, the district court properly granted summary judgment on that claim.
See Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1088 n.21 (11th Cir. 2007) (“This Court may
affirm on any ground supported by the record.”).
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“In order to state a Title II claim, a plaintiff generally must prove (1) that he
is a qualified individual with a disability; (2) that he was either excluded from
participation in or denied the benefits of a public entity’s services, programs, or
activities, or was otherwise discriminated against by the public entity; and (3) that
the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s
disability.” Bircoll, 480 F.3d at 1083. 4
Here, Plaintiff Flournoy failed to present evidence establishing the first
prong of a prima facie case. Title II defines a “qualified individual with a
disability” as “an individual with a disability who, with or without reasonable
modifications . . ., 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); see also 28 C.F.R. § 35.104. The parties do not dispute that
Flournoy has a disability. See 42 U.S.C. § 12102(1) (defining “disability” as “a
physical or mental impairment that substantially limits one or more major life
activities” or “a record of such an impairment” or “being regarded as having such
an impairment”); see also 28 C.F.R. § 35.104 (defining an individual with a
disability as “a person who has a disability”).
4
We review de novo a district court’s grant of summary judgment. Liese v. Indian River
Cnty. Hosp. Dist., 701 F.3d 334, 341 (11th Cir. 2012). Summary judgment is required “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “At this stage in the proceedings we are
required to view all of the evidence in a light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor.” Liese, 701 F.3d at 342 (quotation marks omitted).
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However, the undisputed evidence also shows that Flournoy did not meet the
essential eligibility requirements for “participation in programs . . . provided by a
public entity.” See 42 U.S.C. § 12131(2). Flouroy told the state court he could
work, and the state court permitted Flournoy to enter the Houston County work
release program. Further, the record indicates that, upon entering the work release
program, Defendant Duffie told Flournoy he would be required to work to stay in
the program, and Flournoy also represented to Duffie that, despite his disability, he
was able to work. However, after three weeks of trying to find Flournoy work,
both Defendant Alvarado and Flournoy agreed that Flournoy was unable to work.
Flournoy further testified at his revocation hearing that he could not work.
It is also undisputed that to participate in the Houston County work release
program, inmates must be able to work. Indeed the Alabama statute that created
the Houston County work release program explicitly authorizes a state sentencing
court to release an inmate “for the purpose of obtaining and working at gainful
employment.”5 See Act No. 93-693, 1993 Ala. Laws 1324, § 1. In other words,
being able to work is an “essential eligibility requirement” for participation in the
Houston County work release program.
5
Although the statute authorizes the state court to also release an inmate for other
purposes conducive to rehabilitation, Flournoy does not claim that the state court released him
for any other purpose than to participate in the work release program.
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Given that Flournoy agrees he was unable to work, he cannot show he is an
individual “who meets the essential eligibility requirements” of the work release
program. 6 Thus, there is no genuine dispute of fact as to whether Flournoy is a
“qualified individual with a disability” within the meaning of Title II of the ADA.
Accordingly, the district court properly granted the defendants’ summary judgment
on Flournoy’s Title II claim.
B. Procedural Due Process Claim
A defendant in probation revocation proceedings, although not entitled to all
the procedural protections afforded a defendant in criminal proceedings, is entitled
to certain protections, including written notice of the alleged probation violations,
disclosure of the evidence against him and an opportunity to be heard in person
and present evidence and witnesses and to cross-examine witnesses, a neutral
hearing body and a written statement by the factfinder of the reasons for the
revocation and the evidence relied upon. Black v. Romano, 471 U.S. 606, 611-12,
105 S. Ct. 2254, 2258 (1985); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593(1972).7
6
We note that Flournoy has never contended, and does not now contend, that he could
meet this essential eligibility requirement “with reasonable modification.” See 42 U.S.C.
§ 12131(2) Further, Flournoy presented no evidence in response to the defendants’ summary
judgment motion from which a jury could find that he could meet the work requirement with a
reasonable modification. To the contrary, Flournoy maintained that he was unable to work.
7
Flournoy’s appellate brief makes one passing reference to substantive due process, but
does not present any argument or cite any authority related to a substantive due process claim.
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Here, the record reflects that these due process requirements were satisfied
at Flournoy’s revocation hearing. Specifically, in accordance with Alabama law,
the state court held a hearing before removing Flournoy from work release,
revoking his probation and committing him to ADOC’s custody. See Ala. Code
§ 15-18-175(d)(3) (providing for probation revocation hearing); Act No. 93-693,
1993 Ala. Laws 1324, 1328, § 10 (providing for work release revocation hearing).
At the hearing, Flournoy acknowledged receiving notice of the alleged violation
and indicated that he wanted to proceed with the hearing. Flournoy was given the
opportunity to present evidence and testify (both of which he did) and to cross-
examine the state’s witness, Defendant Duffie (which he declined to do). The state
court asked the parties whether there were any alternatives to revocation, and the
prosecutor indicated that there were none. The state court explained in open court
and in a subsequent written order the basis for the revocation—Flournoy’s
admitted inability to obtain or maintain employment. In short, Flournoy received
all the process that was due.
Flournoy misses the point by arguing that his “transfer” from the work
release program to ADOC custody violated his due process rights because it
subjected him to conditions and a degree of confinement not authorized by his
Thus, any substantive due process claim is abandoned. See Doe v. Moore, 410 F.3d 1337, 1349
n.10 (11th Cir. 2005); Fed. R. App. P. 28(a)(9)(A).
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conviction. See Meachum v. Fano, 427 U.S. 215, 223-25, 96 S. Ct. 2532, 2538
(1976) (concluding that due process did not require prisoner to receive a hearing
before being transferred between prisons because “[c]onfinement in any of the
State’s institutions is within the normal limits or range of custody which the
conviction has authorized the State to impose”). Flournoy received notice and a
hearing. So, to the extent he has a liberty interest sufficient to invoke due process
protections (whether state-created or constitutional), Flournoy received those due
process protections.
For these reasons, we affirm the district court’s grant of summary judgment
in favor of the defendants on Flournoy’s due process and ADA claims.
AFFIRMED.
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