Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KENNETH ODOM,

Plaintiff,

v. Case No. 3:09cv570/MCR/CJK

FLORIDA DEPARTMENT

OF CORRECTIONS, et al.

Defendants.

_________________________/

ORDER

Pending before the court is the Report and Recommendation of the Magistrate

Judge filed on October 17, 2011, pursuant to 28 U.S.C. § 636(b)(1)(B). The petitioner was

given an opportunity to file objections. Now, having fully reviewed the Report and 1

Recommendation, the record, and the late-filed objections, the Recommendation is

adopted in part and rejected in part.

As to the ADA claim in Count I, the court concludes that it states a plausible claim

against the Department of Corrections at this stage of the proceedings. The plaintiff

2

alleges, in relevant part, that he is disabled because he is partially paralyzed and that a

podiatrist prescribed for him a particular therapeutic boot on June 15, 2007, which he never

received; the doctor also advised him that exercise was necessary to avoid muscle

atrophy. The plaintiff further alleges that because he did not receive the prescribed boot,

he was not able to participate in the prison’s program of outdoor exercise for inmates held

in close management confinement and as a result, he suffered increased foot drop, muscle

atrophy, and muscular weakness. Although the medical records attached to the complaint

Despite receiving several extensions of time in which to file objections, totaling an extra 60 days,

1

the petitioner's objection was filed late but before the court ruled.

A Title II claim can only be brought against a public entity, so Count I is properly dismissed to the

2

extent it attempted to state a claim against individual officers.

Case 3:09-cv-00570-MCR-CJK Document 51 Filed 07/07/12 Page 1 of 3
Page 2 of 3

indicate that a nurse authorized a different type of boot on August 7, 2007, there is no

explanation thus far in the record to explain the defendant’s decision to deprive the plaintiff

of the physician-prescribed boot. In the absence of any explanation and in light of the

plaintiff’s allegation that he was not able to participate in the outdoor exercise program for

close management inmates, the complaint, liberally construed, states a claim against the

defendant for the failure to reasonably accommodate the plaintiff’s disability.

The court also concludes that Count III of the third amended complaint states a

retaliation claim at this early stage of the proceedings. The court disagrees with the

magistrate judge’s conclusion that the causation element fails. First, the magistrate judge

did not consider or even reference the close temporal proximity between the plaintiff’s

grievances and his removal from a handicap cell. The plaintiff had been placed in a

3

handicap cell because due to his disability. On October 7, 2007, October 19, 2007, and

October 23, 2007, the plaintiff filed grievances with the warden related to the failure to

reasonably accommodate his disability with the physician-prescribed boot. On October 25,

2007, two days after the October 23, 2007 complaint, Lieutenant Swartz abruptly moved

the plaintiff from his handicap cell, threatened him, and instructed another officer to destroy

personal property of sentimental value to the plaintiff. The plaintiff alleges that this was

done because of his grievances. Second, the record at this stage does not reflect a

legitimate reason for why the plaintiff was removed from the handicap cell, which had

previously been deemed necessary because of his disability, nor does the record yet

indicate who authorized the removal. The record plainly shows that the Department of

Corrections was aware of the plaintiff’s grievances at the time. Applying the liberal

pleading standard to the facts alleged, the court concludes that this claim should not be

dismissed at this early stage of the proceedings. 

The Eleventh Circuit has recognized that a retaliation claim against a public entity or its employees

3

may be brought in relation to Title II of the ADA in the same manner as a retaliation claim against an employer

in Title I. See Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1181 n.31 (11th Cir. 2003). The causation

element may be satisfied if there is knowledge of the protected expression and “a close temporal proximity

between the awareness and the adverse action.” Id. at n. 30 (internal marks omitted).

Case No: 3:11cv178/MCR/CJK

Case 3:09-cv-00570-MCR-CJK Document 51 Filed 07/07/12 Page 2 of 3
Page 3 of 3

In all other respects, the court adopts the Recommendation. 

Accordingly, it is ORDERED as follows:

1. The magistrate judge's Recommendation is adopted in part and reversed in

part, as follows: 

a. The Recommendation is reversed as to Count I insofar as the plaintiff states

a claim of disability discrimination in violation of the Americans with Disabilities Act (“ADA”)

against the Department of Corrections for the denial of participation in the outdoor exercise

program for inmates held in close management confinement and raises questions

regarding the reasonableness of the accommodation provided. 

b. The Recommendation is reversed as to the retaliation claim set forth in Count

III.

c. In all other respects, the Recommendation is adopted and incorporated

herein by reference.

2. Thus, Count II and any claims against individual officers in Count I are

DISMISSED WITHPREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(ii) for the plaintiff’s failure

to state a claim upon which relief may be granted.

3. The case is referred to the magistrate judge for further proceedings.

DONE AND ORDERED this 7th day of July, 2012.

M. Casey Rodgers

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

Case No: 3:11cv178/MCR/CJK

Case 3:09-cv-00570-MCR-CJK Document 51 Filed 07/07/12 Page 3 of 3