Tremayne Durham v. G. Kelley

                                   PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
            ______________

                  No. 21-3187
                ______________

           TREMAYNE DURHAM,
                        Appellant

                       v.

   C.O.R. G. KELLEY; C.O.R. B. CORREA;
   C.O.R. W. GRAY; C.O.R. W. VINCENTE;
   C.O.R. J. RODRIGUEZ; C.O.R. K. VEGA;
 O.F.C. Z. GOODWIN; O.F.C. L. JOVANOVIC;
    O.F.C. M. DOYLE; SUSAN SPINGLER;
    NURSE MOBOLANLE EBO, RN, BSN;
NURSE NEAL WEST; DOCTOR JOHN DOE #1;
         JOHN DOE #2; JOHN DOE #3;
      J JOHNSON, Medical Records Clerk
               ______________

 On Appeal from the United States District Court
        for the District of New Jersey
      (District Court No. 3:21-cv-04565)
         Honorable Michael A. Shipp
                ______________

            Argued: March 13, 2023
  Before: RESTREPO, AMBRO, and FUENTES, Circuit
                     Judges

                (Filed: September 19, 2023)

Oren N. Nimni [ARGUED]
Samuel Weiss
Rights Behind Bars
416 Florida Avenue NW
Unit 26152
Washington, DC 20001
       Counsel for Appellant

Stephanie J. Cohen [ARGUED]
Michael Vomacka
Office of Attorney General of New Jersey
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
       Counsel for Appellee Attorney General New Jersey

                     ______________

                        OPINION
                     ______________

FUENTES, Circuit Judge.

       Plaintiff-Appellant Tremayne Durham appeals from an
order dismissing his pro se prisoner complaint sua sponte at
the initial screening stage pursuant to 28 U.S.C. § 1915A.
Durham, now represented by counsel, argues that the District
Court erred in dismissing his claims under the Americans with




                               2
Disabilities Act (ADA), Rehabilitation Act (RA), and Eighth
Amendment after prison officials at the New Jersey State
Prison (NJSP) took away his cane and refused to provide him
with an accessible shower. For the reasons that follow, we will
vacate and remand to the District Court.

      I.     FACTUAL AND PROCEDURAL BACKGROUND

       Durham is a prisoner at the NJSP in Trenton. In January
2018, a doctor diagnosed him with lumbar stenosis, a medical
condition that involves the narrowing of the spinal canal in the
lower back. He received epidural steroid injections to manage
the pain, and in November 2019 a doctor prescribed him a
walking cane for the condition.

       On May 22, 2020, prison officials sent Durham to
NJSP’s quarantine unit. He was told he could not bring his
cane with him. Over the next ten days, Durham repeatedly
requested his cane back from various prison officials because
he was in severe pain, but his requests were denied or ignored.1

1
  The day after his admission to the quarantine unit, Durham
told a nurse, Defendant Neal West, that he was having
excruciating back pain, needed to see a doctor, and would like
his cane. West responded that Durham did not need a cane in
quarantine and that there was nothing he could do for him. The
next day, Durham informed Defendant C.O.R. B. Correa that
he was having serious back pain and needed his cane. Correa
called Durham’s housing unit for him regarding access to his
cane. Defendant O.F.C. Z. Goodwin responded that Durham
“complain[ed] too much” and would not open his cell for the
cane, and O.F.C. L. Jovanovic said that Durham was an
“asshole” who “gets nothing.” A40. In the following days,




                               3
He also requested to see a doctor and to use a chair in the
shower.2 Those requests were also ignored.

        On May 31, 2020, Durham experienced severe shooting
pain while in the shower. Without the assistance of his cane, a
shower chair, or shower handrails, he fell to the floor. Prison
officials took Durham to the prison clinic via wheelchair,
where he received treatment for the pain and remained for
several days.

        In March 2021, Durham filed a pro se complaint in the
United States District Court for the District of New Jersey
naming various prison officials as Defendants, sued in both
their individual and official capacities. Among other claims,
he alleged: (1) deliberate indifference to his medical needs in
violation of the Eighth Amendment; and (2) violations of the
ADA and RA. As a remedy, Durham sought monetary and
injunctive relief.

       The District Court screened the complaint pursuant to
28 U.S.C. § 1915A, which requires courts to review prisoner
complaints sua sponte, and dismissed it without prejudice for
failure to state a claim.        The Court concluded that:
(1) Durham’s claims for money damages against the
Defendants in their official capacity as state officials are barred
by Eleventh Amendment sovereign immunity; (2) Durham
failed to state an Eighth Amendment deliberate indifference
claim because he failed to plausibly allege that the prison


Durham made many more pleas to different individuals noting
his back pain and requesting his cane.
2
  Durham requested to see a doctor and sought a shower chair
on May 27 and 28. A14-15; A41.




                                4
officials were “subjectively aware of a substantial risk of
serious harm” when they denied Durham his cane and a shower
chair; and (3) Durham failed to state a claim under the ADA
and RA because he failed to show that he is a qualifying
individual with a disability and that the prison officials
discriminated against him on that basis. After Durham failed
to file an amended complaint, the District Court dismissed the
case with prejudice.3 Durham appeals.

       II.     JURISDICTION AND STANDARD OF REVIEW

        The District Court had subject matter jurisdiction
under 

. We have appellate jurisdiction
pursuant to 

. We review a district court’s
dismissal of a prisoner’s complaint at the § 1915A screening
stage under a plenary standard.4 The Court must accept all
facts in the complaint as true, draw all reasonable inferences in
the prisoner’s favor, and ask only whether the complaint
contains facts sufficient to state a plausible claim.5 Complaints
filed pro se should be construed liberally and held to “less
stringent standards than formal pleadings drafted by lawyers.”6

                        III.    DISCUSSION

      There are three grounds under 28 U.S.C. § 1915A upon
which a district court may dismiss a complaint sua sponte: the
complaint (1) is frivolous or malicious, (2) fails to state a claim

3
  A12.
4
  Shorter v. United States, 

 (3d Cir. 2021).
5
  

.
6
   

 at 371 (quoting Erickson v. Pardus, 

(2007)).




                                5
upon which relief could be granted, or (3) seeks monetary relief
from a defendant who is immune from suit.7 Here, the District
Court’s dismissal of Durham’s Eighth Amendment deliberate
indifference and ADA and RA claims was based on his failure
to state a claim, and the Court further dismissed his claims on
Eleventh Amendment immunity grounds to the extent he
sought non-injunctive relief against the defendants in their
official capacities.8 On appeal, Durham raises three issues as
to: whether the District Court erred when it (1) dismissed his
ADA and RA claims for failure to state a claim; (2) dismissed
his Eighth Amendment deliberate indifference claim for failure
to state a claim; and (3) determined that his claims for money
damages are barred by sovereign immunity. As the District
Court dismissed the action at the screening stage, Defendants
were not served and did not respond to Durham’s appeal.
Instead, this Court requested the Attorney General to provide a
response.

       At the outset, Durham sued Defendants in both their
individual and official capacities. The relief that he may obtain
if successful under each claim is dependent upon whether the
Defendants can be held liable in one, both, or neither capacity.
The District Court dismissed all of Durham’s claims “to the
extent they seek non-injunctive relief [i.e., damages] against
Defendants in their official capacities because the Eleventh
Amendment bars such claims.”9


7
  

(e)(2)(B).
8
  See A13.
9
  A17. Insofar as the District Court did not automatically
dismiss the claims for injunctive relief, this was proper.
Officers can be sued for prospective (injunctive) relief in either




                                6
        The District Court properly dismissed the 

 claims insofar as Durham sought damages against
Defendants in their official capacities. States, and state
officers, if sued in their official capacities for retrospective
relief, are not “persons” subject to suit under § 1983; however,
state employees in their individual capacities may be liable for
damages under § 1983, even when the conduct in question is
related to their official duties. But state officers can be sued
for damages in their official capacities for purposes of the ADA
and RA, unless barred by the Eleventh Amendment.10 Thus,
unless barred by sovereign immunity, the ADA and RA claims
for damages should not have been dismissed.11 And whether




capacity. See Rochester v. White, 

 (3d Cir.
1974).
10
   See, e.g., Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,

, 107 (2d Cir. 2001).
11
   Briefly, the Attorney General claims that damages can never
be sought against state officials; the state is the proper
defendant. The same cases that the Attorney General uses to
support the contention that state officials may only be sued for
injunctive relief bely this argument. When an action “is in
essence one for the recovery of money from the state, the state
is the real, substantial party in interest and is entitled to invoke
its sovereign immunity from suit even though individual
officers are nominal defendants.” Christ the King Manor, Inc.
v. Sec’y U.S. Dep’t of Health & Hum. Servs., 

 (3d Cir. 2013). Thus, nominal defendants may be sued
for damages, but the state may simply invoke sovereign
immunity to nullify the complaint.




                                 7
the ADA or RA validly abrogates sovereign immunity is a
question not answered by the Court below.12

       Therefore, we review whether (1) Durham’s ADA and
RA (a) official capacity claims should have been dismissed for
failure to state a claim and (b) damages claims should have
been dismissed due to sovereign immunity; and (2) Durham’s
Eighth Amendment deliberate indifference claim against
Defendants in their individual capacities was properly
dismissed.

      1. Whether the District Court Erred in Dismissing
         Durham’s Claims Under the ADA and RA.

       Durham argues that the District Court improperly
dismissed his claims under the ADA and RA. We first address
whether Durham properly pleaded causes of action under the
ADA and RA for damages and injunctive relief. Second, we
address whether damages may be awarded to Durham if he is
successful in his claim against Defendants in their official
capacities or are barred by sovereign immunity.
               A.     The District Court erred in determining
               that Durham failed to properly plead an ADA/RA
               claim on the merits.


12
   This Court has not squarely addressed the question of
whether claims may be brought against government officers in
their individual capacities under Title II of the ADA. See
Williams v. Hayman, 

 (D.N.J. 2008).
We need not do so now because Durham does not challenge
the dismissal of his ADA claims under an individual liability
theory.




                              8
        Title II of the ADA13 provides 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.”14 Thus, to
state a claim under Title II of the ADA, plaintiffs must
demonstrate that: (1) they are qualified individuals; (2) with a
disability; and (3) they were excluded from participation in or
denied the benefits of the services, programs, or activities of a
public entity, or were subjected to discrimination by any such
entity; (4) by reason of their disability.15 Where compensatory
damages are sought, a plaintiff must also show intentional
discrimination under a deliberate indifference standard.16 The
elements of a claim under the RA are the same, except that the
plaintiff must also show that the program in question received
federal dollars.17

        In dismissing Durham’s ADA claim, the District Court
stated—without further explanation—that the complaint “does
not allege that Plaintiff is a qualified individual or that he was
subject to discrimination by reason of his disability.”18 We
disagree. First, Durham is a “qualified individual” with a

13
   

, 42 U.S.C. §§ 12131–65.
14
   

.
15
   Haberle v. Troxell, 

 (3d Cir. 2018).
16
   Furgess v. Penn. Dep’t of Corr., 

 (3d Cir.
2019).
17
   See 

; Gibbs v. City of Pittsburgh, 

 (3d Cir. 2021). For brevity, we will henceforth refer
to the “ADA” to mean both the ADA and the RA, unless noted
otherwise.
18
   A23.




                                9
disability within the meaning of the ADA. As the District
Court acknowledged, the Supreme Court has held that state
prisoners are covered by the ADA.19 Because Durham was
diagnosed by a medical professional with lumbar stenosis and
received a prescription for a cane for this condition, he
demonstrated a disability. Federal regulations define a
disability broadly as, among other things, a physical
impairment that substantially limits one or more of the major
life activities. A physical impairment is a “physiological
disorder or condition, . . . or anatomical loss affecting one or
more body systems[,]” and “major life activities” include
walking and standing.20

       Second, the District Court did not address the third
element of an ADA claim: that the plaintiff was excluded from
participation in or denied the benefits of the services,
programs, or activities of a public entity, or were subjected to
discrimination by any such entity. But Durham has alleged that
he was denied “services, programs, or activities” within the
meaning of the ADA. This Court has previously held that the
“provision of showers” in prison qualifies as a service,
program, or activity that must be made accessible to people
with disabilities under the ADA.21
       Last, Durham sufficiently pleaded that he suffered
discrimination “by reason of his disability.” Causation
standards differ between the ADA and RA: under the RA, the
disability must be the sole cause of the discriminatory action,


19
   See Penn. Dep’t of Corr. v. Yeskey, 

(1998).
20
   

.
21
   Furgess, 

.




                              10
while the ADA only requires but-for causation.22 Based on the
facts as alleged in the complaint, Durham has sufficiently
alleged causation under both standards. Refusing to make
reasonable accommodations is tantamount to denying access,23
and the complaint pleads that Durham’s requests for a cane and
shower chair were repeatedly refused. Durham alleges several
instances when he complained of pain and was ignored. This
pain caused Durham to have trouble ambulating, and the
failure to accommodate his requests kept him from accessing
the showers on the same basis as other inmates.24 Moreover,
transfer to the quarantine unit was not a sufficient reason to
deny Durham access to his cane and a shower chair.25

       As previously stated, Durham seeks compensatory
damages and so must also show intentional discrimination
under a deliberate indifference standard. A claimant must
allege “(1) knowledge that a federally protected right is
substantially likely to be violated . . . and (2) failure to act
despite that knowledge.”26 Durham has successfully pleaded
an ADA deliberate indifference claim.




22
   CG v. Pa. Dep’t of Educ., 

, 235-36 & n.11 (3d
Cir. 2013).
23
   See Jaros v. Illinois Dep’t of Corr., 

 (7th
Cir. 2012).
24
   See 

25
   Furgess, 933 F.3d at 291–92 (holding that movement to
another prison unit is not a sufficient reason to fail to provide
accessible facilities or ignore complaints for accessible
services).
26
   See Haberle, 

.




                               11
        Durham pleaded sufficient facts to demonstrate that the
Defendants had knowledge that a federally protected right—
his right under the ADA to be free from disability
discrimination—was substantially likely to be violated.
Durham had a diagnosis of lumbar stenosis, a prescription for
a cane, and had received his cane and been using it to walk in
the facility prior to his quarantine. He made numerous prison
officials aware that he had a cane, needed a cane to walk, and
was in severe pain without it. Despite this, he was
continuously denied his cane and shower accommodations.
This alone was sufficient to allege a deliberate indifference
claim. But Durham also pleaded that the denial of reasonable
accommodations was intentional. Indeed, he alleged that
denials were based on officials’ claims that plaintiff
“complain[ed] a lot” and was an “asshole.”27 Thus, Durham’s
pleading was sufficient to establish a claim for deliberate
indifference under the ADA.

        With respect to injunctive relief, Durham pleaded that
prison officials were conspiring to withhold his cane from him
in the future.28 To satisfy the standing and “case or
controversy” requirements of Article III, a party seeking
prospective relief “must allege facts from which it appears
there is a substantial likelihood that he will suffer injury in the
future.”29 Durham appears to properly plead that he will be
subjected to the alleged conduct in the future. Although
denials of his cane and shower chair occurred during a ten-day

27
   A40.
28
   A44.
29
    Bauer v. Texas, 

 (5th Cir. 2003)
(citing City of Los Angeles v. Lyons, 

, 102–03
(1983)).




                                12
quarantine period during the height of the COVID-19
pandemic, he expressed a belief that he will be continuously
deprived of these accommodations. Thus, Durham pleaded a
claim for injunctive relief.

         “As we have stated before, standards of pleading are not
the same as standards of proof.”30 We need not express an
opinion on whether Durham will ultimately be able to prove
his claims. But construing his complaint liberally, as required
at this stage, he is a “qualified individual” with a disability who
was denied equal access to the showers at the prison, a
qualifying public service.

              B. Whether the District Court erred in finding
                 that sovereign immunity bars Durham’s
                 request for money damages.

        Durham argues that the District Court erred in finding
that his request for money damages was barred by sovereign
immunity. The Attorney General has taken no position on
sovereign immunity. But because the District Court addressed
it sua sponte and held that sovereign immunity bars Durham’s
claims for money damages, we review the issue now.
        The Eleventh Amendment of the United States
Constitution states: “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any


30
  Fowler v. UPMC Shadyside, 

 (3d Cir.
2009); Phillips v. County of Allegheny, 

 (3d
Cir. 2008).




                                13
Foreign State.”31 It imposes a jurisdictional bar against
individuals bringing suit against a state or its agencies in
federal court,32 or against a state official in his or her official
capacity.33 However, a state may consent to suit in federal
court, or Congress may abrogate Eleventh Amendment
protections.34 Congress may do the latter when it both
unequivocally intends to do so and acts pursuant to a valid
grant of constitutional authority.35

       New Jersey’s sovereign immunity does not bar
Durham’s claim for money damages under the RA because “a
state program or activity that accepts federal funds waives its
Eleventh Amendment immunity to Rehabilitation Act
claims.”36 Whether New Jersey’s sovereign immunity bars
money damages under the ADA is a more complicated
question that involves determining whether Title II of the ADA
validly abrogated the State’s sovereign immunity with respect
to the claims at issue.37 The District Court did not engage in

31
   U.S. Const. amend. XI.
32
   See Seminole Tribe of Fla. v. Florida, 

(1996).
33
   See Will v. Mich. Dep’t of State Police, 

(1989) (“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
against the official’s office. As such, it is no different from a
suit against the State itself.” (citation omitted)).
34
   Port Auth. Trans-Hudson Corp. v. Feeney, 

 (1990).
35
   Kimel v. Florida Bd. of Regents, 

 (2000).
36
   Bowers v. Nat’l Collegiate Athletic Ass’n., 

(3d Cir. 2007).
37
   See 

.




                                14
any such analysis and instead simply assumed that sovereign
immunity applied.38

        In Board of Trustees of University of Alabama v.
Garrett, the Supreme Court definitively held that the Eleventh
Amendment bars private suits seeking money damages for
state violations of Title I of the ADA.39 However, it left open
the question of whether the Eleventh Amendment permits suits
for money damages under Title II. The Court thereafter
analyzed this open question in a different context in Tennessee
v. Lane.40 There it held that, as applied to “the accessibility of
judicial services,” Title II validly abrogates sovereign
immunity through Congress’s power under § 5 of the
Fourteenth Amendment.41 But abrogation is a context-by-
context analysis, and the Supreme Court has not analyzed the
prison context.

       To determine whether Congress has abrogated a State’s
Eleventh Amendment immunity in any given case, we “must
resolve two predicate questions: first, whether Congress
unequivocally expressed its intent to abrogate that immunity;
and second, if it did, whether Congress acted pursuant to a
valid grant of constitutional authority.”42 Under Title II of the
ADA, the first question is answered easily: the Act specifically
provides that “A State shall not be immune under the eleventh
amendment to the Constitution of the United States from an
action in Federal or State court of competent jurisdiction for a

38
   A18.
39
   

 (2001).
40
   

 (2004).
41
   

.
42
   

.




                               15
violation of this chapter.”43 There is thus an adequate
expression of Congress’s intent to abrogate a State’s Eleventh
Amendment immunity. We must then turn to whether
Congress had the ability to give effect to this intent.

        The Supreme Court in United States v. Georgia
explained that there are two ways to establish that Congress
had the ability to abrogate a State’s Eleventh Amendment
immunity. One way is to follow Lane’s three-step method for
determining if Congress validly enacted prophylactic
legislation under § 5: (1) identify the rights at issue, (2) identify
the pattern of violations the legislation is designed to remedy
and prevent, and (3) determine whether the legislation is
congruent and proportional to the pattern of violations.44 The
second way is to plead a companion constitutional claim
arising from the same facts as the ADA claim. “While the
Members of the Supreme Court have disagreed regarding the
scope of Congress’s prophylactic enforcement powers under §
5 of the Fourteenth Amendment, no one doubts that § 5 grants
Congress the power to enforce . . . the provisions of the
Amendment by creating private remedies against the States
for actual violations of those provisions.”45

       In reversing the dismissal of Durham’s § 1983 claims,
as described further below, we hold that Durham alleged actual
violations of the Eighth Amendment by state agents. Such
conduct would independently violate the Fourteenth

43
   

.
44
   Lane, 

; see City of Boerne v. Flores, 

 (1997).
45
   United States v. Georgia, 

 (2006) (internal
citations and quotation marks omitted).




                                 16
Amendment,46 and “[s]ection 5 authorizes Congress to create a
cause of action through which the citizen may vindicate his
Fourteenth Amendment rights.”47 Insofar as Title II creates a
private cause of action for damages against the States for
conduct that actually violates the Fourteenth Amendment, it
validly abrogates state sovereign immunity.

       Here, as in Georgia, Durham alleges violations of both
Title II and the Eighth Amendment arising from the same
conduct. Because we hold below that Durham has properly
pleaded his Eighth Amendment deliberate indifference claims,
his parallel claims for money damages against the State under
Title II may proceed. Thus, the District Court improperly
concluded that the Defendants here are entitled to sovereign
immunity.
       2. Whether the District Court Erred in Dismissing
           Durham’s Eighth Amendment Individual
           Capacity Deliberate Indifference Claim.

      Durham also argues that the District Court improperly
dismissed his claim for deliberate indifference under the
Eighth Amendment. As previewed, we agree.

       “The Eighth Amendment, through its prohibition on
cruel and unusual punishment, prohibits the imposition of

46
   

 at 157 (citing Louisiana ex rel. Francis v. Resweber, 

 (1947)) (plurality opinion) (the Due Process
Clause of the Fourteenth Amendment incorporates the Eighth
Amendment’s guarantee against cruel and unusual
punishment).
47
   

 at 158 (quoting Lane, 541 U.S. at 559–60 (Scalia, J.,
dissenting)).




                              17
‘unnecessary and wanton infliction of pain contrary to
contemporary standards of decency.’”48 In Estelle v. Gamble,
the Supreme Court held that this principle “establish[es] the
government’s obligation to provide medical care for those
whom it is punishing by incarceration[,]” and that “deliberate
indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of a pain’ . . .
proscribed by the Eighth Amendment.”49

        To plead deliberate indifference under the Eighth
Amendment, a plaintiff must allege that (1) he had a serious
medical need, (2) the defendants were deliberately indifferent
to that need; and (3) the deliberate indifference caused harm to
the plaintiff.50 The District Court found that Durham pleaded
a “serious medical need” but that he failed to allege the
requisite mental state for the “deliberate indifference” element:
that prison officials knew of and disregarded “an excessive risk
to inmate health or safety,” meaning a “substantial risk of
serious harm.”51 This is a higher standard than proving
deliberate indifference under the ADA, which does not require
knowledge of a substantial risk of serious harm, but only that a
federally protected right is substantially likely to be violated.52

       The District Court did not explain why it determined
that knowingly taking away Durham’s cane and denying him

48
   Pearson v. Prison Health Serv., 

 (3d Cir.
2017) (quoting Helling v. McKinney, 

 (1993)).
49
   

, 103–04 (1976) (citation omitted).
50
   See Atkinson v. Taylor, 

 (3d Cir. 2003).
51
   Farmer v. Brennan, 

 (1994).
52
   See S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 

 (3d Cir. 2013).




                                18
an accessible shower failed to satisfy the “deliberate
indifference” element. The Attorney General, however, argues
that Durham fails to plead this element because he cannot
establish that the officials knew of a substantial risk of serious
harm. This argument is unavailing.

       We have found in other contexts that knowledge of a
need for an accessible shower facility—which can be
demonstrated      by     ignoring     complaints      for     such
accommodations—combined with a failure to act may
establish    intentional     discrimination     or     “deliberate
               53
indifference.” Indifference to a substantial risk of serious
harm is manifested by an intentional refusal to provide care,
delayed medical treatment for non-medical reasons, denial of
prescribed medical treatment, or a denial of reasonable
requests for treatment that leads to suffering or risk of injury.54
This Court has explained that prison officials may not “deny
reasonable requests for medical treatment . . . when such denial
exposes the inmate to undue suffering or the threat of tangible
residual injury.”55

       Durham pleaded that he regularly used a cane to walk
and had a prescription for it. Even if not every Defendant saw
him previously walking with his cane, Durham still pleaded
that he exclaimed to anyone and everyone that he needed his
cane and was in severe pain. It is not hard to imagine how
dangerous a shower could be for someone suffering from back
pain and an inability to walk or stand on their own. And

53
   Furgess, 

.
54
   Durmer v.O’Carroll, 

 (3d Cir. 1993).
55
   Palakovic v. Wetzel, 

 (3d Cir. 2017)
(internal quotations and citations omitted).




                                19
Durham alleged that, because of the Defendants’ denial of care,
he experienced an attack of severe pain in the shower that made
him fall to the ground, worsening his condition. These facts,
as pleaded by Durham, show deliberate indifference.
Moreover, as described earlier, he alleged that certain
Defendants specifically did not help him for non-medical
reasons, citing to his penchant for complaining and
Defendants’ descriptions of him as an “asshole.”

       Construing Durham’s complaint liberally, as we must,
he has sufficiently alleged a claim for deliberate indifference
under the Eighth Amendment.

                     IV.    CONCLUSION

       For the foregoing reasons, we will vacate and remand to
the District Court for further proceedings.




                              20