Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 17, 2012, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Plaintiff and defendants have each filed objections to the findings and recommendations, and plaintiff has filed a response to defendants' objections.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis, except that the court writes to explain its views on two issues.
1. Denial of Prescription Eyeglasses as an ADA Violation.
Plaintiff alleges that he has a vision impairment that renders him incapable of: seeing video exhibits during a preliminary heaing; reading posted jail facility rules and warnings; and participating in jail services, activities and programs. Complaint (Dkt. No. 1) ¶ 36. It is a reasonable inference from the complaint that plaintiff's vision is correctable with prescription eyeglasses. Complaint ¶ 37. The complaint also alleges, however, that the prison authorities denied plaintiff prescription glasses until five months after his initial request, despite his repeated requests for such glasses. Id. Plaintiff asserts that the county's failure to provide him with glasses for five months violated the ADA.
Title II of the ADA prohibits discrimination by public entities based on the availability of services:
Subject to the provisions of this subchapter, 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. Moreover, "[i]t is undisputed that Title II applies to ... [c]county jails' services, programs, and activities for detainees." Pierce v. County of Orange, 526 F.3d 1190, 1214-15 (9th Cir.) (finding Orange County jails in violation of Title II the ADA), cert. denied, 555 U.S. 1031 (2008).
There appears to be no dispute that a person who cannot see, or whose sight is substantially limited, is a "person with a disability" under the ADA. 42 U.S.C. § 12102(1)(A) & (2)(A) ("disability" includes impairments that substantially limit a major life activity, including "seeing"). However, the statute specifically states that "[t]he ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity." 42 U.S.C. § 12102(4)(E)(ii).
Defendants argue that "requir[ing] prescription eyeglasses to see clearly ... does not meet the definition of a substantially limiting impairment," citing Kemppainen v. Aransas County Detention Center, 626 F. Supp.2d 672, 678-79 (S.D. Tex. 2009), aff'd mem., 2012 WL 470205 (5th Cir. 2012), which held that: plaintiff's disability for purposes of his ADA claims must address his disability with the aid of eyeglasses. If plaintiff had proper eyeglasses, it is undisputed that he would not be disabled pursuant to the ADA. Accordingly, defendant's motion for summary judgment regarding plaintiff's ADA claim is granted and that claim is dismissed.
This court has serious doubts about the holding of Kemppainen. In that case, as here, the prison authorities denied plaintiff access to the prescription glasses he needed. Thus neither case is one where a plaintiff refuses to wear their glasses, say for reasons of vanity. A person who cannot see, and who is denied access to glasses by the authorities who hold him incarcerated would appear to be disabled, notwithstanding the theoretical fact that he could see if he were granted access to glasses.*fn1
Nevertheless, the court notes the language of the ADA implementing regulations, which state:
This part [28 C.F.R. Part 35] does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing.
28 CFR § 35.135.*fn2 Thus, even assuming plaintiff is a person with a disability, it appears that he does not state an ADA claim in alleging that the county jail failed to provide him with prescription eyeglasses. See, e.g., McCauley v. Winegarden, 60 F.3d 766, 767 (11th Cir. 1995) ("in view of § 35.135, the court finds that Plaintiff has failed to state a claim ...