1

Kutrip does not request reversal of the district court’s decision to decline the

exercise of supplemental jurisdiction over his state-law negligence and medical

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3819

___________

David Thomas Kutrip, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

City of St. Louis; Eugene *

Stubblefield, Superintendent * [UNPUBLISHED]

of the City of St. Louis Division *

of Corrections; Correctional Medical *

Services, Inc., *

*

Appellees. *

___________

Submitted: April 28, 2009

Filed: May 4, 2009

___________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

___________

PER CURIAM.

David Thomas Kutrip appeals the district court’s adverse grant of summary

judgment in his action under 42 U.S.C. § 1983, Title II of the Americans with

Disabilities Act (ADA), and the Rehabilitation Act (RA).1

 While Kutrip cannot seek
malpractice claims after granting summary judgment on the federal claims, but in any

event, these claims were dismissed without prejudice. 

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reversal based on the district court’s failure to act on his complaints about his

appointed counsel, cf. Taylor v. Dickel, 293 F.3d 427, 431 (8th Cir. 2002) (there is no

statutory or constitutional right to effective assistance of counsel in civil case), we

conclude that the court erred in granting summary judgment on the ADA/RA claims

against the City of St. Louis (City) arising from the alleged denial of access to a

disabled-accessible shower while Kutrip was incarcerated at the Medium Security

Institution (MSI) in 2003, see Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th

Cir. 2008) (de novo review).

Kutrip had to show that he is a qualified individual with a disability--which as

the district court noted, defendants did not dispute--and that due to his disability, he

was denied participation in, or the benefits of, MSI services, programs, or activities.

See Gorman v. Bartch, 152 F.3d 907, 911-12 (8th Cir. 1998) (program or activity

includes all operations of public entity); see also Randolph v. Rodgers, 170 F.3d 850,

857-58 (8th Cir. 1999) (recognizing Supreme Court holding that ADA Title II applies

to state prisons; cases interpreting ADA or RA are interchangeable). District courts

should consider the factors articulated in Turner v. Safley, 482 U.S. 78 (1987), when

reviewing ADA/RA claims. See Pierce v. County of Orange, 526 F.3d 1190, 1216-17

& nn. 27-29 (9th Cir.) (in analyzing inmates’ rights under RA and ADA, effective

prison administration must be considered, and reasonable-relation standard articulated

in Turner must be applied), cert. denied, 129 S. Ct. 597 (2008); Gates v. Rowland, 39

F.3d 1439, 1445-47 (9th Cir. 1994) (applicable standard of review of rights under RA

in prison setting is equivalent to review of constitutional rights as outlined in Turner).

Kutrip attested or testified that he did not know there was a shower with grab

bars, and he was not given a plastic chair to use for support in the shower. The district

court cited no legal authority for its conclusion that he could not prevail by professing
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ignorance that the disabled-accessible shower existed, and the conclusion appears

inconsistent with the court’s determination that Kutrip was not required to request an

accommodation because his disability was obvious. See Robertson v. Las Animas

County Sheriff’s Dep’t, 500 F.3d 1185, 1197 (10th Cir. 2007) (collecting cases for

proposition that entity will know of handicapped individual’s need for accommodation

under ADA when need is obvious). Further, the City’s evidence merely indicated that

a disabled-accessible shower existed in the housing unit where Kutrip was assigned,

not that it was offered to Kutrip; there was conflicting evidence as to whether Kutrip

was provided a plastic shower chair, and there was no evidence on whether such a

chair would have met ADA/RA requirements; and we cannot conclude from the City’s

evidence that offering Kutrip a disabled-accessible shower would place an undue

burden on MSI staff. See Gorman, 152 F.3d at 912 (ADA defendants may raise

affirmative defense that requested accommodation would constitute undue burden

requiring fundamental alteration in nature of program, service, or activity).

Accordingly, we reverse and remand for further proceedings on the ADA/RA claims

against the City arising from the alleged denial of a disabled-accessible shower. In

all other respects we affirm for the reasons stated by the district court.

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