Bradley v. Dennison

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEANDRE BRADLEY, )

)

Plaintiff, )

)

vs. )

) Case No. 3:17-cv-00862-GCS

JEFFREY DENNISON, KAREN )

SMOOT, ALFONSO DAVID, )

ROBERT JEFFREYS, and )

JONATHAN BOTARF, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

INTRODUCTION AND BACKGROUND

Plaintiff Deandre Bradley is an inmate within the Illinois Department of

Corrections (“IDOC”). Though he currently resides at Menard Correctional Center,

during the events underlying this dispute, Plaintiff was housed at Shawnee Correctional

Center (“Shawnee”). (Doc. 225, p. 1). On August 14, 2017, Plaintiff brought this claim

pursuant to 42 U.S.C. § 1983 against numerous defendants with the IDOC, including

Defendants Jeffrey Dennison, Karen Smoot, Robert Jeffreys,1 Jonathan Botarf, and Dr.

Alfonso David. (Doc. 1).

After preliminary review, the Court allowed Plaintiff to proceed on the following

four Counts:

1 Plaintiff brings this claim against Defendant Jeffreys in his official capacity as Acting Director of

the IDOC. (Doc. 225, p. 1).

Count 1 - Defendants denied Plaintiff adequate medical care for his preexisting

medical conditions stemming from an old stab wound when they denied him access

to a wheelchair, walker, medical supplies, and showers at Shawnee beginning in

March 2017, in violation of the Eighth Amendment.

Count 2 - Defendants subjected Plaintiff to unconstitutional conditions of

confinement when they denied him access to a wheelchair, walker, medical supplies,

showers, and a handicap accessible cell at Shawnee beginning in March 2017, in

violation of the Eighth Amendment.

Count 3 - Defendants violated Plaintiff’s rights under the Rehabilitation Act and/or

Americans with Disabilities Act when they deprived him of a wheelchair, walker,

medical supplies, showers and adequate housing at Shawnee beginning in March

2017.

Count 4 - Dr. David and Nursing Director Wilke exhibited deliberate indifference to

Plaintiff’s serious medical needs when they failed to ensure that his right leg and foot

injuries were promptly treated after he fell three times in his segregation cell in May

2017, in violation of the Eighth Amendment.

(Doc. 12). The Court allowed Counts 1 and 2 to proceed against Defendants Dennison,

Smoot, and Dr. David. Id. The Court further permitted Count 3 to proceed against

Defendants Dennison and Jeffreys in their official capacity only. Id. Finally, the Court

allowed Count 4 to proceed against Dr. David. Id. Plaintiff then added Defendant

Jonathan Botarf in an amended complaint filed on December 6, 2018. (Doc. 94). In his

amended complaint, Plaintiff alleges that Defendant Botarf caused injury to Plaintiff

when he required Plaintiff to wear waist restraints while using his walker to get to the

shower. (Doc. 38, p. 6). Plaintiff does not name Defendant Botarf in a specific count of his

amended complaint; however, because Plaintiff alleges that Defendant Botarf denied him

showers in May 2017, see (Doc. 94), Plaintiff asserts that Defendant Botarf was deliberately

indifferent to Plaintiff’s pre-existing medical conditions as outlined in Count I of

Plaintiff’s amended complaint. See (Doc. 232, p. 11).

The Court granted summary judgment in favor of Dr. David on January 14, 2021.

(Doc. 239). Accordingly, the Court dismissed Defendant David from the case. Now before

the Court is the remaining Defendants’ motion for summary judgment. (Doc. 223). For

the reasons delineated below, the motion for summary judgment is GRANTED in part

and DENIED in part.

FACTUAL ANALYSIS

Prior to his incarceration, Plaintiff suffered a stab wound near his spinal cord.

(Doc. 225, p. 4). As a result of the injury, Plaintiff requires ambulatory assistive devices

in order to walk short distances. Id. The injury also rendered Plaintiff dual incontinent,

requiring daily use of medical supplies, including catheters, diapers, wipes, under pads

and enemas. (Doc. 232, p. 8).

Plaintiff first arrived at Shawnee on March 10, 2017. (Doc. 225, p. 4). While housed

in the receiving unit, Plaintiff requested access to his necessary medical supplies; on

March 11 and March 17, 2017, he wrote grievances stating that he did not have access to

clean medical supplies. Id. at p. 4, 6. On March 20, 2017, Plaintiff talked directly with

Defendants Smoot and Dennison regarding his lack of access to medical care and the need

for an ADA-complaint cell. (Doc. 221, Exh. A, 82:18-19; 83: 3-7). Nevertheless, these

grievances went unaddressed until March 23, 2017, when Defendant Smoot provided

Plaintiff a memorandum outlining the medical supplies he was provided. (Doc. 225, p.

6). At some point between March 11 and March 23, a nurse provided Plaintiff with

diapers. Id. at p. 4.

As of April 2017, Plaintiff used a walker to ambulate. (Doc. 225, p. 6). Though

Plaintiff was initially permitted to use a wheelchair, on May 8, 2017, Dr. David

discontinued Plaintiff’s wheelchair use and prescribed a walker to avoid muscle stiffness.

Id. at p. 7. However, Plaintiff was transferred to segregation the following day after being

issued a disciplinary ticket for assaulting a prison staff member on April 30, 2017. Id. at

p. 6. Plaintiff was not permitted to have a walker while in segregation. Id. at p. 7.

After reviewing Plaintiff’s medical chart, medical staff permitted Plaintiff to

shower three times per week. (Doc. 225, p. 7). Staff also advised Plaintiff to use the sink

in his cell for daily hygiene. Id. While housed in segregation, Plaintiff requested his

walker in order to use the sink facilities. Id. at p. 8. Although Plaintiff states he was

permitted one shower between May 9 and May 22, 2017, Plaintiff’s shower logs show that

he refused a shower on May 11, 13 and 18, and Plaintiff’s medical logs show that he was

permitted to shower on May 16 and 20. Id. at p. 9. Plaintiff claims that in order to reach

the shower, Defendant Botarf required Plaintiff to wear waist restraints while using his

walker. Id. Defendant Botarf states he has no recollection of Plaintiff; even though he was

listed as working in Plaintiff’s segregation unit, he was not the only official to do so at the

time Plaintiff was housed in segregation. Id. at p. 10.

On May 9, 2017, Plaintiff fell and injured his right leg while in his segregation cell.

(Doc. 225, p. 8). Plaintiff put in a Nurse Sick Call request the following Day. Id. Though

Plaintiff claims he was not seen until May 24, 2017, his medical records indicate that a

doctor saw him on May 20th. Id.

Plaintiff’s access to fresh medical supplies was again disrupted on May 11, 2017.

(Doc. 225, p. 7). Though Plaintiff wrote to Defendant Smoot requesting medical supplies

on May 11 and May 12, 2017, he did not receive those supplies until May 17, 2017. Id. at

p. 7-8.

Plaintiff was transferred out of segregation on May 22, 2017. (Doc. 221, Exh. A,

119:22-4, 120:1-4). Warden Dennison then spoke with Plaintiff again on May 24, 2017. Id.

at 183:5-9. At that time, Warden Dennison told Plaintiff he could now use his walker and

take showers. Id. at 112:1-8.

LEGAL STANDARDS

Summary judgment is proper when the pleadings and affidavits “show that there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. PROC. 56(c); Oates v. Discovery Zone, 116 F.3d

1161, 1165 (7th Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The

movant bears the burden of establishing the absence of a genuine issue as to any material

fact and entitlement to judgment as a matter of law. See Santaella v. Metro. Life Ins. Co., 123

F.3d 456, 461 (7th Cir. 1997)(citing Celotex, 477 U.S. at 323). This Court must consider the

entire record, drawing reasonable inferences and resolving factual disputes in favor of

the non-movant. See Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205

(7th Cir. 1998)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). See also Smith

v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009)(stating that “we are not required to draw

every conceivable inference from the record . . . we draw only reasonable inferences”)

(internal citations omitted). Summary judgment is also appropriate if a plaintiff cannot

make a showing of an essential element of his claim. See Celotex, 477 U.S. at 322. While

the Court may not “weigh evidence or engage in fact-finding[,]” it must determine if a

genuine issue remains for trial. Lewis v. City of Chicago, 496 F.3d 645, 651 (7th Cir. 2007).

In response to a motion for summary judgment, the non-movant may not simply

rest on the allegations in his pleadings; rather, he must show through specific evidence

that an issue of fact remains on matters for which he bears the burden of proof at trial.

See Walker v. Shansky, 28 F.3d 666, 670–671 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex,

477 U.S. at 324). No issue remains for trial “unless there is sufficient evidence favoring

the non-moving party for a jury to return a verdict for that party . . . if the evidence is

merely colorable, or is not sufficiently probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249–250 (citations omitted). Accord Starzenski v. City of Elkhart, 87

F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). In

other words, “inferences relying on mere speculation or conjecture will not suffice.” Trade

Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009) (internal citation omitted).

See also Anderson, 477 U.S. at 252 (finding that “[t]he mere existence of a scintilla of

evidence in support of the [non-movant's] position will be insufficient; there must be

evidence on which the jury could reasonably find for the [non-movant]”). Instead, the

non-moving party must present “definite, competent evidence to rebut the [summary

judgment] motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000)

(internal citation omitted).

ANALYSIS

I. Whether Defendants Smoot, Dennison, and Botarf were Deliberately

Indifferent to Plaintiff’s Pre-Existing Medical Condition

A prisoner seeking to establish that the care he received in prison was so

insufficient as to violate his Eighth Amendment rights must prove that: (1) he had an

objectively serious medical need, and (2) the defendant prison official was deliberately

indifferent to that need. See Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). See also

Greeno v. Daley, 414 F.3d 645, 652-653 (7th Cir. 2005); Langston v. Peters, 100 F.3d 1235, 1240

(7th Cir. 1996); Thomas v. Walton, 461 F. Supp. 2d 786, 793 (S.D. Ill. 2006). A medical

condition is objectively serious if a physician has determined that treatment is mandated,

or if it is “so obvious that even a lay person would easily recognize the necessity for a

doctor's attention.” Johnson v. Snyder, 444 F.3d 579, 584-585 (7th Cir. 2006)(citing Gutierrez

v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)), overruled on other grounds in Hill v.

Tangherlini, 724 F.3d 965, 968 n.1 (7th Cir. 2013). Here, Defendants admit that Plaintiff had

an objectively serious medical need. (Doc. 225, p. 14).

In order to be deliberately indifferent to an objectively serious medical need, a

defendant must know of and disregard an excessive risk to the plaintiff’s health. See

Greeno, 414 F.3d at 653. The defendant prison official “must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837-838 (1994). Moreover,

“[d]eliberate indifference implies at a minimum actual knowledge of impending harm

easily preventable, so that a conscious, culpable refusal to prevent harm can be inferred

from the defendant’s failure to prevent it.” Thomas, 461 F. Supp. 2d at 793 (citing

Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985), abrogated on other grounds by

Haley v. Gross, 86 F.3d 630, 645 n.34 (7th Cir. 1996)). Deliberate indifference is more than

negligence; instead, the proper standard “approaches intentional wrongdoing.” Johnson,

444 F.3d at 585. See also Rosario v. Brown, 670 F.3d 816, 821-822 (7th Cir. 2012)(requiring a

plaintiff show defendants had near “total unconcern” for the plaintiff’s welfare).

Accordingly, the failure to alleviate a risk officials should have perceived, but did not, is

not a violation of the Eighth Amendment. See Farmer, 511 U.S. at 826.

In Count 1, Plaintiff complains that Defendants Smoot, Dennison and Botarf were

deliberately indifferent when they failed to provide Plaintiff with necessary ambulatory

devices (a walker and a wheelchair), medical supplies, medical accommodations, and

showers. See (Doc. 94, p. 27-40). Plaintiff further claims in Count 4 that all Defendants

were deliberately indifferent to his serious medical need by failing to provide him

promptly with medical attention after he injured his right leg. (Doc. 101, p. 48).

Defendants first assert that they deferred to medical officials’ decisions regarding

the determination to provide Plaintiff with assistive ambulatory devices. (Doc. 225, p. 14-

17). Second, Defendants claim that the delay between Plaintiff requesting medical

supplies and him receiving those supplies was not long enough to constitute deliberate

indifference. Id. at p. 17-18. Third, Defendants argue that Plaintiff was actually provided

adequate showers; in the alternative, none of the Defendants had actual knowledge that

Plaintiff was not receiving his ordered showers. Id. at p. 18-20. Lastly, Defendants assert

that Plaintiff received prompt medical attention after injuring his right leg. Id. at p. 19-20.

a. Plaintiff’s Access to Ambulatory Assistive Devices

When a prisoner is under a medical expert’s care, non-medical prison officials are

“generally justified” in presuming that the prisoner is receiving adequate medical care.

Arnett, 658 F.3d at 755 (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). Similarly,

a superior non-medical official may be justified in believing that their subordinates are

properly caring for a prisoner; an inmate may not demonstrate a non-medical official’s

deliberate indifference by showing mere negligence in that official’s failure to detect and

prevent a subordinate’s misconduct. See Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996).

Even if an official is aware of a prisoner’s serious medical condition, if that official

believes that the prisoner is receiving medical care, the official is not obligated to take

further action. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Requiring otherwise

would undermine the general principle that prison officials are “responsible for their own

misdeeds,” but not responsible for the misdeeds of another. Id.

However, if officials have actual knowledge of a doctor’s mistreatment of an

inmate and still decline to act, that official may be deliberately indifferent to the inmate’s

serious medical needs. See Johnson v. Doughty, 433 F.3d 1001, 1012 (7th Cir. 2006); Greeno,

414 F.3d at 655–656. In order to provide officials with actual knowledge, a prisoner must

communicate an underlying issue to the officials sufficient enough to alert them to an

excessive risk to the prisoner’s health. See Vance, 97 F.3d at 993 (quoting Farmer, 511 U.S.

at 837). Once an official is alerted to such a risk, the refusal to exercise the authority of

the official’s office may reflect deliberate disregard. See Arnett, 658 F.3d at 756.

It is clear that Defendants were generally justified in deferring to Dr. David’s

medical recommendations regarding Plaintiff’s access to a wheelchair. Plaintiff suffers

from a nerve injury affecting his right leg. (Doc. 232, p. 8). When Dr. David examined

Plaintiff on May 8, 2017, he determined that Plaintiff should use a walker, rather than a

wheelchair, in order to prevent muscle atrophy and stiffness. (Doc. 225, p. 7). Defendants

cannot be held liable for failing to provide Plaintiff with access to a wheelchair as that

would have contravened Dr. David’s medical orders. As such, Defendants were not

deliberately indifferent in failing to provide Plaintiff with a wheelchair, but whether

Defendants were deliberately indifferent by failing to provide Plaintiff with a walker

remains a genuine dispute of material fact.

Declining an inmate access to ambulatory devices because of a security risk and

relying on subordinates for the care of inmates in need of such devices are not inherently

indicative of deliberate indifference. See Johnson, 444 F.3d at 586, overruled on other

grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013). For instance, in Johnson, the

amputee plaintiff often used a crutch rather than a prosthetic; however, the plaintiff’s

crutch presented a security risk because it could be used as a weapon. Id. at 583. After

examination by a doctor, who determined the plaintiff’s crutch was not medically

necessary, prison officials allowed the plaintiff to choose whether to use his crutch in

segregation or to forgo his crutch and be housed in general population. Id. The plaintiff

chose to forego his crutch. Id.

Shortly thereafter, the plaintiff slipped in the shower while reattaching his

prosthetic leg. See Johnson, 444 F.3d at 583. Through the facility’s grievance procedures,

the plaintiff alerted the warden of his injury and the lack of access to his crutches. Id. at

586. However, the warden denied the plaintiff’s concerns because he believed his

subordinates were adequately addressing the situation. Id. The Seventh Circuit found

that the warden was not deliberately indifferent to the plaintiff’s serious medical needs

because the warden was justified in believing that his subordinates and the prison doctor

were adequately meeting those medical needs and rectifying the underlying situation. Id.

Relying on Johnson, Defendants note that the prison’s strict security requirements

justified Plaintiff’s lack of access to a walker. Specifically, Defendants argue that the

failure to provide Plaintiff with a walker in his cell is not indicative of deliberate

indifference because Plaintiff did not have a required permit for the walker while housed

in segregation. (Doc. 225, p. 15). Inmates housed in segregation at Shawnee may not have

an ambulatory device unless a doctor has ordered it and determined it is medically

necessary. Id. Therefore, relying on Johnson, Defendants argue they were justified in the

assumption that Plaintiff did not need his walker in his cell because Dr. David did not

issue the required permit. See Id.

However, this narrative is plainly contradicted by the provided facts. First, in

Plaintiff’s medical records, Dr. David regularly ordered that Plaintiff use a rolling walker

for ambulation. See, e.g., (Doc. 171-4, p. 2, 3, and 32)(referencing a portion of the numerous

medical notes requiring Plaintiff’s use of a walker). Though there is no evidence of a

specific permit for Plaintiff to use a walker in a segregation cell, Dr. David notes that

Plaintiff must use his walker to get the water necessary to take his prescriptions. (Doc.

171-4, p. 32). Dr. David further notes that Plaintiff keeps his walker near his bed in order

to ambulate each morning. Id. at p. 40. Security officials, however, may override a doctor’s

medical decisions when determining whether to provide an inmate with ambulatory

devices which may be used as a weapon. See (Doc. 232, Exh. 1 at 30:16-20). The decision

to deny Plaintiff’s access to a walker in his segregation cell appears to have been a security

decision which overrode Dr. David’s medical decisions. See, e.g., (Doc. 239, p. 13-

14)(noting that Dr. David did not participate in the decision to take away Plaintiff’s

walker because only security could make that decision).

In light of the above facts, Defendants’ reliance on Johnson is misplaced. Unlike in

Johnson, in which the defendant warden relied on his subordinates to rectify the plaintiff’s

situation, it was Dr. David who relied on Defendants to comply with his medical orders.

Furthermore, Defendants were not justified in assuming Dr. David had made a medical

decision to forego providing Plaintiff with a walker. Dr. David noted that Plaintiff needed

his walker for basic things such as getting water and for ambulation near his bed. It is

true that Dr. David did not issue a permit to facilitate that access while Plaintiff was

housed in segregation. But, the Defendants cannot draw the inference that Dr. David

found the walker to not be medically necessary simply because a permit was not issued.

Such an inference is not justified given the explicit order for a walker and the consistently

recognized need for the device in Plaintiff’s medical records. Rather, the appropriate

inference to draw is in favor of the Plaintiff, as the Court is required to do, and that

inference is that Dr. David’s medical decision was overridden by prison staff. The

Defendants thus cannot escape liability by engaging in a “blame game” with Dr. David.

Therefore, Plaintiff’s access to a walker remains a genuine issue of material fact, and

summary judgment must be denied as to this issue.

b. Plaintiff’s Access to Necessary Medical Supplies

Delays in treating painful medical conditions may support a claim under the

Eighth Amendment even when the underlying condition for which treatment is sought

is not life-threatening. See Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997). An

inexplicable delay in treatment which serves no penological interest may support an

inference that prison officials were deliberately indifferent to an inmate’s serious medical

needs. See Petties v. Carter, 836 F.3d 722, 730 (7th Cir. 2016)(citing Grieveson v. Anderson,

538 F.3d 763, 779 (7th Cir. 2008)). See also Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir.

2007)(holding that defendants were deliberately indifferent when they denied the

plaintiff treatment for his dislocated finger for two days). When determining whether a

delay indicates deliberate indifference, courts consider the seriousness of the condition

for which treatment is delayed and the ease of providing treatment for that condition. Id.

Furthermore, in order to predicate an Eighth Amendment claim on a delay in treatment,

a plaintiff must show that the delay exacerbated the injury or unnecessarily prolonged

pain. See Williams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007).

A significant delay in treatment clearly supports finding deliberate indifference

when the materials for treatment are widely available and easily obtainable. See, e.g.,

Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015)(finding that the defendants’ delay

in providing the plaintiff with over-the-counter pills to treat gastro-esophageal reflux

disease for two months demonstrated deliberate indifference). Even a short delay may be

indicative of deliberate indifference when an inmate’s condition causes considerable

pain. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). For

example, in Rodriguez, prison staff incorrectly administered an intravenous line in the

plaintiff’s arm. Id. at 819-820. During the plaintiff’s four-day hospital stay, staff treated

plaintiff’s resulting pain by pushing the intravenous line further into the plaintiff’s arm

and providing him with an ice pack. Id. at 832. As a result of the delay in treatment, the

plaintiff developed a serious and contagious infection. Id. The Seventh Circuit found that,

given the alleged facts, the plaintiff sufficiently stated a claim under the Eighth

Amendment to survive a motion to dismiss. Id. In contrast, a similar delay for a less

painful condition may be tolerated under the Eighth Amendment. See, e.g., Gutierrez, 111

F.3d at 1374 (finding that the plaintiff could not survive summary judgment when

officials delayed treating a mild cyst infection for six days).

Courts recognize that “delays are common in a prison setting with limited

resources[.]” Petties, 836 F.3d at 730. Prison officials, however, must provide treatment

sufficient to meet the “civilized minimum of public concern for the health of prisoners.”

Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999). This civilized minimum is “a

function of both objective need and of cost.” Id. When the cost of providing treatment is

low, the failure to do so is especially indicative of deliberate indifference. See Id. For

instance, in Gil v. Reed, the defendant denied the plaintiff his pain medication, although

that medication had been prescribed and dispensed before the plaintiff requested it. 381

F.3d 649, 662 (7th Cir. 2004). The prescribed antibiotic was necessary to treat a severe

infection; though the plaintiff obtained the medication the following day, the Seventh

Circuit found the delay demonstrated deliberate indifference. Id. Similarly, in Wynn v.

Southward, the plaintiff repeatedly informed prison officials that he needed his heart

medication “immediately” in order address a heart flutter and substantial chest pains.

251 F.3d 588, 594 (7th Cir. 2001). Citing to Ralston, 167 F.3d at 1162, the Seventh Circuit

noted that the defendants’ delay in providing the plaintiff’s necessary heart medication

supported a claim for deliberate indifference under the Eighth Amendment. Id.

In the present case, Plaintiff is dual incontinent and requires daily access to both

catheters and diapers. (Doc. 232, p. 14). However, Plaintiff claims that Defendants Smoot,

Dennison, and Botarf delayed in providing Plaintiff with these necessary supplies twice

during his incarceration at Shawnee. Id. First, Plaintiff claims that he requested catheters

and diapers when he first arrived at Shawnee on March 10, 2017. Id. Although Plaintiff

wrote grievances requesting his medical supplies on March 11 and March 17, 2017, those

grievances were not addressed until March 23, 2017. Id. Second, Plaintiff requested the

same medical supplies after he was transferred to segregation on May 11, 2017. Id. at p.

15. This delay was shorter as Plaintiff received catheters and diapers six days after first

complaining that he did not have his supplies. Id.

Regarding the first delay, Defendants imply that regular prison processes and

limited supplies prevented prison officials from immediately providing Plaintiff with

diapers, catheters, wipes, enemas and under pads. (Doc. 225, p. 17). Defendants point out

that a medical aide informed Plaintiff that it would “take a little time to get it all together.”

Id. Furthermore, Defendants state that a nurse provided Plaintiff with diapers during the

time between Plaintiff’s complaint and when he was eventually seen by a doctor. See, e.g.,

(Doc. 225, p. 17)(citing to Plaintiff’s deposition, attached to Doc. 171 as Exh. 1, at 79:17-

21). However, in the cited deposition, it is not clear when or how often the nurse brought

Plaintiff diapers or whether she provided any other medical supplies during this delay.

See (Doc. 171, Exh. 1 at 79:17-21). In response, Plaintiff points out that his overall delay in

receiving necessary medical supplies lasted for two weeks. (Doc. 232, p. 14).

Defendants also assert that the second delay was not intolerable as Plaintiff only

went five days without his medical supplies. (Doc. 225, p. 18). However, Plaintiff asserts

that this delay was actually six days given that Plaintiff first complained of his lack of

medical supplies on May 11, 2017 and complained again on May 12, 2017. (Doc. 232, p.

15). Plaintiff also states that during this time he was not permitted to shower, which

exacerbated the effect of the dirty medical supplies he used during that time. Id. at p. 14-

15. As a result of the lack of access to showers and to medical supplies, Plaintiff developed

a fungal infection in and around his penis. Id. at p. 9.

A reasonable jury could find that Defendants’ first delay in providing Plaintiff

with medical supplies demonstrated deliberate indifference. Much like over-the-counter

gastro-esophageal reflux medication, Defendants could access at least diapers, wipes and

under pads at little cost and relatively quickly. In fact, in the same deposition to which

Defendants cited, Plaintiff states that he had extra catheters, wipes and under pads

available in his property, which was not made readily available to him until two or three

weeks after Plaintiff arrived at Shawnee. (Doc. 171, Exh. 1 at 77:7-20). Therefore, much as

in Gil, Defendants could quickly have obtained and provided Plaintiff with at least some

initial medical supplies at no cost. Furthermore, similar to Wynn, Plaintiff’s need for the

supplies was extremely high. Without catheters, diapers, wipes, and enemas, Plaintiff

was forced to remain in his own excrement until he was permitted to shower. A nearly

two-week delay in providing these medical supplies could support a finding of deliberate

indifference. Finally, though Defendants allege that a nurse provided some supplies at

least once to Plaintiff during his thirteen-day wait, it is not clear how often or what

supplies that nurse provided, leaving this issue a genuine dispute of material fact.2

Similarly, a reasonable jury could also find that the second delay was indicative of

deliberate indifference. Though the delay lasted only six days, the Seventh Circuit has

found delays as short as four days as indicative of deliberate indifference when a plaintiff

has a substantial need for treatment or is otherwise in substantial pain. Cf. Gil, 381 F.3d

at 662 (inferring deliberate indifference from an over-night delay when the delay may

have been intentional and the plaintiff had a substantial need for the medication);

Rodriguez, 577 F.3d at 823 (finding a four-day delay in treatment supported an inference

of deliberate indifference when the plaintiff was in substantial pain). Here, the inability

to use fresh medical supplies exacerbated Plaintiff’s condition and led to a fungal

infection. Plaintiff has shown that the delay contributed to prolonged pain and injury;

accordingly, even a six-day delay in this case may sufficiently support a reasonable jury

in finding the Defendants were deliberately indifferent to Plaintiff’s serious medical

needs.

2 To the extent that Defendant Smoot alleges she was without actual knowledge of Plaintiff’s lack of

medical supplies because she was not alerted to the appeal of any grievance on the issue to the

Administrative Review Board, see (Doc. 225, p. 18), this argument is denied. Defendant Smoot provided

Plaintiff with a memorandum regarding his March 10 and March 11 grievances on March 23. Id. It is clear

that Defendant Smoot had actual knowledge of this delay.

c. Plaintiff’s Access to Showers

The Seventh Circuit typically examines an inmate’s access to showers under the

standard for evaluating whether an inmate’s conditions of confinement violate the Eighth

Amendment. See Jaros v. Ill. Dept. of Corr., 684 F.3d 667, 670-671 (7th Cir. 2012)(citing

Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Here, however, Dr. David specifically

ordered Plaintiff to shower at least once daily, or as needed, due to Plaintiff’s dual

incontinence; a nurse practitioner then changed the prescription for showers to three

times per week in order to comply with the maximum number of showers permitted to

those housed in segregation. (Doc. 232, Exh. A, 22:8-15 ; 46:1-6). Thus, failing to provide

access to showers should be treated no differently than any other treatment regimen

ordered by the doctor for his pre-existing conditions. For example, in Count 1, Plaintiff

alleges that Defendants’ failure to facilitate his access to showers violated the Eighth

Amendment by exacerbating his pre-existing condition. See (Doc. 94, p. 27-40). Though

the healthcare staff instructed Plaintiff to shower three times per week, Plaintiff claims

that Defendants did not permit him to shower as required by his healthcare plan. See

(Doc. 225, p. 18-19).

Plaintiff asserts that between May 9 and May 22, 2017, Defendants only allowed

Plaintiff to shower once, on May 16, 2017.3 (Doc. 225, p. 18). Defendants advance two

arguments in opposition. First, Defendants assert that Plaintiff’s shower logs show that

3 There is some discrepancy regarding the time frame in which Plaintiff was not permitted to shower.

See (Doc. 225, p. 19). The common date alleged in both the motion for summary judgment and the response

to the motion for summary judgment is May 9 through May 22, 2017. See (Doc. 232, p. 16).

he refused a shower on May 9, 13, and 18. Id. at p. 19. According to Plaintiff’s medical

records, he then received showers on May 16, 20, and 24. Id.

In response, Plaintiff points out that his shower log and medical records are

inconsistent. (Doc. 232, p. 16). On May 11, Plaintiff’s shower log shows that Plaintiff did

receive a shower. (Doc. 225, Exh. D). However, due to Plaintiff’s disability, each of his

showers were to be noted in his medical records. (Doc. 232, p. 16). Plaintiff’s medical

records do not show that Plaintiff had a shower on that day. Id. Defendants also do not

allege that Plaintiff showered that day in their motion for summary judgment. (Doc. 225,

p. 18-19). Furthermore, Plaintiff points to Defendant Dennison’s deposition, in which

Defendant Dennison stated that on some days, Plaintiff went without a shower, but

officials did not document a refusal and no other explanation, such as a disciplinary

ticket, existed to explain the discrepancy. See, e.g., (Doc. 232, p. 16)(citing to Doc. 225, Exh.

A at 53:22-25, 54:1-4). Typically, showers are offered every other day; but because

Plaintiff’s shower schedule was medically ordered, he was permitted to shower in the

healthcare unit when his schedule aligned with “off days” in the general shower

schedule. (Doc. 225, Exh. A at 54:5-15). There is no indication that Plaintiff received a

shower in the healthcare unit on days when the general shower was not offered. Id. at

54:16. Plaintiff adamantly denies that he refused a shower during that time period. (Doc.

232, p. 17).

As an initial matter, Plaintiff’s shower logs and medical records show that he was

offered the chance to shower twice during the week of May 7, one less time than health

care staff required for Plaintiff. Furthermore, considering the facts in the light most

favorable to the non-moving party, a genuine dispute as to whether Plaintiff refused

showers or was not offered a shower exists. Plaintiff’s shower log does not align with his

medical records, and Plaintiff himself states that he did not refuse a shower. The issue of

whether Plaintiff was permitted to shower and refused or whether Plaintiff was not

permitted to shower should be determined by a trier of fact.

Second, Defendants assert that none of the three defendants had actual knowledge

of Plaintiff’s lack of access to showers. According to Defendants, neither Defendant

Dennison nor Defendant Smoot assist inmates in medical matters, and neither Defendant

was made aware that Plaintiff was not able to shower. (Doc. 225, p. 20). Plaintiff does not

respond to this contention, and the Court finds no evidence in the record that either

Defendant Dennison or Defendant Smoot had actual knowledge that Plaintiff was unable

to shower.

Defendants also claim that Defendant Botarf did not have actual knowledge that

Plaintiff was not adequately permitted to shower. (Doc. 225, p. 20). At the time of the

underlying incidents, Defendant Botarf was one of two correctional officers assigned to

the segregation unit building in which Plaintiff was housed. (Doc. 225, Exh. C). Plaintiff

claims that Defendant Botarf denied him access to showers and forced him to use his

walker while in waist restraints while accessing the shower on May 16, 2017. (Doc. 171,

Exh. A). Defendants point out that Plaintiff only named Defendant Botarf because he was

the one listed as working that day; Defendant Botarf further claims to have no recollection

of Plaintiff. (Doc. 225, Exh. C). This argument, however, is insufficient to resolve genuine

disputes regarding whether or not Defendant Botarf was responsible for denying Plaintiff

showers or for forcing Plaintiff to walk to the shower in waist restraints. Though

Defendant Botarf does not recall Plaintiff, he was listed as working on the day of the

underlying incident. Coupled with Plaintiff’s direct assertions against Defendant Botarf,

it is entirely possible that Botarf was directly involved in the events underlying this

dispute. Therefore, the motion for summary judgment is denied on this issue, as to

Defendant Botarf, but granted as to Defendants Smoot and Dennison.4

II. Whether Defendants Dennison and Smoot are Entitled to Summary

Judgment on Plaintiff’s Conditions of Confinement Claim

In order to succeed on an Eighth Amendment conditions of confinement claim, the

plaintiff must make both an objective and subjective showing. First, the plaintiff must

show that the conditions denied the plaintiff the “minimal civilized measure of life’s

necessities.” Farmer, 511 U.S. at 834. In some circumstances, multiple conditions of

confinement may establish an Eighth Amendment violation, even when each condition

individually would not establish a violation. See Wilson v. Seiter, 501 U.S. 294, 304 (1991).

However, such a combination only establishes a violation when the conditions have a

“mutually reinforcing effect” which produces a deprivation of a single, identifiable

human need. Id. For example, while low temperatures or a lack of access to blankets are

each insufficient to show a violation individually, the two factors together indicate a lack

of warmth, which is an identifiable human need. See id.

4 The Court notes that Defendants also incorporate an argument alleging that they were not

deliberately indifferent to Plaintiff’s medical needs by providing delayed medical care after Plaintiff injured

his knee into their claims regarding Plaintiff’s access to showers. See (Doc. 225, p. 19-20). However,

Plaintiff’s claim for deliberate indifference regarding his knee injury is contained in Count IV. The Court

dismissed this claim against Dr. David. See (Doc. 239). Accordingly, the Court declines to address that

argument here.

Second, the plaintiff must show that the defendants knew of and disregarded a

substantial risk of serious harm arising from the conditions in question. See Farmer, 511

U.S. at 842. When the underlying conditions are not the result of an emergency situation,

this standard is equivalent to deliberate indifference. See Whitley v. Albers, 475 U.S. 312,

320 (1986)(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff may meet this

standard through circumstantial evidence, including evidence that the risk was so

obvious a jury may reasonably infer the defendants’ actual knowledge. See Hall v. Bennett,

379 F.3d 462, 464 (7th Cir. 2004).

The ability to wash and use the toilet is considered an identifiable human need the

deprivation of which results in unconstitutional conditions of confinement. See Jaros, 684

F.3d at 670-671 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The Seventh Circuit

has consistently held that only a total deprivation of the ability to wash constitutes a

constitutional violation. Id. at 671. There is therefore no violation if an inmate is able to

shower even as little as once a week, see Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th

Cir. 1988), or if an inmate chooses not to shower. See Rodriguez v. Briley, 403 F.3d 952, 953

(7th Cir. 2005).

Plaintiff claims that Defendants Dennison and Smoot were deliberately indifferent

to Plaintiff’s unconstitutional conditions of confinement, which arose when Plaintiff was

denied access to showers, a walker, and necessary medical supplies. (Doc. 101, p. 45).

Plaintiff did not have catheters, diapers, or wipes. Without his walker, Plaintiff was also

not able to access the sink to wash himself nor was he able to take showers. As a result,

Plaintiff alleges he was forced to sit in excrement for seven days prior to his May 16

shower and for another six days before his May 22 shower. (Doc. 232, p. 17). During these

time periods, Plaintiff experienced a total deprivation of the human need to wash and

use the toilet.

Defendants argue that summary judgment is appropriate because Defendants

Dennison and Smoot did not have knowledge of Plaintiff’s intolerable conditions.

Although Defendant Smoot did not have actual knowledge that Plaintiff was not

permitted to shower, she did have actual knowledge that Plaintiff did not have access to

medical supplies or to a walker that would facilitate his use of the sink or toilet on days

in which Plaintiff was not permitted to shower. Such knowledge is predicated,

circumstantially, on her responsibility as Health Care Unit Administrator to review

grievances (Doc. 232, Exh. B, 20:9-11); Plaintiff wrote multiple grievances regarding lack

of access to medical supplies during both interruptions. Even if Defendant Smoot

believed that Plaintiff could shower, she knew Plaintiff had between two or three days

during which he could not use the sink to clean himself and could not medically use the

toilet. Given Plaintiff’s condition, even this short time frame is sufficient for establishing

unconstitutional conditions of confinement. See, e.g., Reed v. McBride, 178 F.3d 849, 853

(7th Cir. 1999)(noting that courts are to evaluate deprivations by considering the length,

severity and consequences of the deprivation).5

5 Plaintiff admits that he did not speak with Defendant Smoot regarding his inability to shower. See

(Doc. 171-1, Exh. B, p. 91). There is no evidence in the record that Plaintiff otherwise grieved his inability

to shower to Defendant Smoot, as he did regarding his lack of access to medical supplies and his walker.

This leaves Defendant Smoot with knowledge that Plaintiff could not use the toilet or clean himself for at

least four days each week, if Defendant Smoot justifiably relied on the assumption that others were

facilitating Plaintiff’s access to showers three times per week as required by Dr. David’s medical orders.

Therefore, though Defendant Smoot was not deliberately indifferent to Plaintiff’s medical needs by

In contrast, however, there is no evidence that Defendant Dennison had the

requisite knowledge of Plaintiff’s intolerable conditions of confinement. It is true that

Defendant Dennison talked with Plaintiff regarding his issues regarding medical

supplies on March 20, 2017. See (Doc. 221, Exh. A, 82:18-19; 83: 3-7; 183:5-9). At that time,

however, Plaintiff had not yet been transferred to segregation. Plaintiff did not speak

with Defendant Dennison again until May 24, 2017, at which point Plaintiff had been

transferred out of segregation. Id. at 111:9-12. It was only when Plaintiff lacked access to

medical care, showers, and medical treatment, in totality, that Plaintiff’s conditions

became intolerable in violation of the Eighth Amendment. There is no other evidence in

the record that Plaintiff informed Defendant Dennison of the intolerable conditions of his

segregation cell. Accordingly, summary judgment is granted on this point for Defendant

Dennison.

III. Whether Defendants Jeffreys and Dennison Violated the Americans with

Disabilities Act or the Rehabilitation Act

Count 3 of Plaintiff’s complaint alleges that Defendants Jeffreys and Dennison, in

their official capacities, violated the ADA and Rehabilitation Act. Title II of the ADA

mandates that public entities may not deny participation or the benefits of services to

qualified individuals with a disability by reason of that disability. See 42 U.S.C. § 12132.

Similarly, Section 504 of the Rehabilitation Act prohibits any agency that receives federal

funds from excluding, subjecting to discrimination, or denying the benefits of any of their

ignoring his need to shower, she was deliberately indifferent to his overall conditions of confinement

during the periods in which Defendant Smoot would have evidence that Plaintiff was unable to clean

himself.

programs to otherwise qualified individuals with disabilities. See 29 U.S.C. § 794(a). In

Jaros, the Seventh Circuit found ADA and Rehabilitation Act claims can be analyzed

together since the elements of both claims are the same, except that the Rehabilitation Act

has an additional element of requiring receipt of federal funds. See Jaros, 684 F.3d at 671-

672; see also 29 U.S.C. § 794(a). Because Illinois accepts federal funds to help run its

prisons, that additional element is met here. See id.

Failure to make reasonable accommodations to ensure participation in the public

entity’s programs or services by a person with a disability qualifies as “discrimination.”

42 U.S.C. § 12112(b)(5)(A); Wisc. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753

(7th Cir. 2006). A plaintiff can establish a prima facie case of discrimination under both the

ADA and the Rehabilitation Act by showing that they: (1) suffer from a disability as

defined in the statutes, (2) are qualified to participate in the program in question, and (3)

were either excluded from participating in or denied the benefit of that program based

on a disability. See Novak v. Bd. of Trustees of S. Ill. Univ., 777 F.3d 966, 974 (7th Cir.

2015)(citing Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005)). Refusing to make

reasonable accommodations for a disabled inmate is tantamount to denying that inmate

access. See Jaros, 684 F.3d at 672; see also A.H. by Holzmueller v. Ill. High Sch. Ass'n, 881 F.3d

587, 592 (7th Cir. 2018).

If an inmate is unable to use the showers or toilet because he is housed in a non-

ADA compliant cell, that inmate may establish a claim for a violation under the ADA and

the Rehabilitation Act. See Jaros, 684 F.3d at 672. Furthermore, providing access to such

facilities alone is insufficient to avoid liability; rather, disabled inmates must be afforded

meaningful access under the ADA and Rehabilitation Act. See Banks v. Patton, No. 17-

1586, 743 Fed. Appx. 690, 697 n.1 (7th Cir. July 26, 2018)(citing Alexander v. Choate, 469

U.S. 287, 301 (1985)). For example, a prison must provide maximum-security inmates

with ADA and Rehabilitation Act accommodations even if the only handicapped-

accessible cells are in the minimum-security dormitory. Id. at 697 n.1.

Defendants admit that Plaintiff is an individual with a qualifying disability under

the ADA and Rehabilitation Act. (Doc. 225, p. 24). Though Defendants further summarily

assert that Plaintiff received sufficient accommodations, including access to medical

supplies and showers, it is clear that Plaintiff’s accommodations did not afford him

meaningful access to showers, see supra, p. 18-21, and that, without access to his walker,

Plaintiff could not meaningfully access the toilet. See supra, p. 22-25. However, it is not

altogether clear that Plaintiff was denied such access by reason of his disability.

Defendants argue that Plaintiff was housed in segregation not because of his

disability, but because he received a disciplinary ticket on April 30, 2017. (Doc. 225, p. 24).

The offense underlying this disciplinary ticket included attempting to assault members

of the prison staff. (Doc. 239, p. 2). Plaintiff was transferred from the healthcare unit to

segregation based on this offense. (Doc. 225, p. 24).

Plaintiff cites to Banks and argues that the need to transfer and place him in

segregation is contrary to settled law. (Doc. 232, p. 21-22). However, in Banks, the Court

held that security concerns specific to the offender are neutral reasons for declining

accommodations. 743 Fed. Appx. at 697. When a prisoner continues to pose a

“disciplinary challenge” throughout the relevant time period, a prison’s decision to

remove accommodations is not in violation of the ADA or the Rehabilitation Act because

it is not made on the basis of the inmate’s disability. Id. Therefore, summary judgment is

granted on this issue. Because this is the only count concerning Defendant Jeffreys, the

Court finds that Defendant Jeffreys may be dismissed from the case.

IV. Whether All Defendants are Entitled to Qualified Immunity

Government officials performing discretionary functions are shielded from

liability for civil damages if their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known. See Harlow v.

Fitzgerald, 457 U.S. 800, 817-818 (1982). Courts evaluate whether an official is entitled to

qualified immunity by examining whether the officials violated the plaintiff’s rights as

demonstrated by the alleged facts and whether the right allegedly violated was clearly

established at the time of the violation. See Saucier v. Katz, 533 U.S. 194, 200 (2001), receded

from by Pearson v. Callahan, 555 U.S. 223, 242 (2009)(holding that application of the two-

step Saucier test is discretionary). Based on the facts alleged at this stage of the

proceedings, it is clear that Defendants violated Plaintiff’s Eighth Amendment right to be

free from cruel and unusual punishment by failing to provide him with a walker,

necessary medical supplies, and access to showers. The remaining question is therefore

whether this right was clearly established at the time of the underlying events.

The relevant dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable official that his conduct was

unlawful in the context of the events giving rise to the violation. See Saucier, 533 U.S. at

202. For instance, in Saucier, the plaintiff was arrested during a speech by the Vice

President. Id. at 208. The plaintiff alleged that an officer’s “gratuitously violent shove”

during an arrest violated the Fourth Amendment; lower courts found the defendant was

entitled to qualified immunity on that claim. Id. The Supreme Court agreed, holding that,

under the circumstances, a reasonable officer “hurrying” the plaintiff away from the

scene for the Vice President’s security was an appropriate action within the contours of

the Fourth Amendment. Id.

In contrast, there is no similar justifying interpretation for Defendants’ violations

of Plaintiff’s Eighth Amendment rights. Defendants summarily assert that finding

Plaintiff’s right to access the walker and medical supplies required by his doctors, or

finding that Plaintiff’s right to conditions in which he can clean himself would apply a

“heightened standard” to Eighth Amendment claims; Defendants, however, fail to

explain why that standard would be “heightened.” (Doc. 225, p. 25). The Court rejects

this contention. This situation is not like Saucier where the Fourth Amendment permitted

some undefined degree of physical coercion under certain circumstances. See Graham v.

Connor, 490 U.S. 386, 396 (1989). Here, the Eighth Amendment clearly outlines what

constitutes deliberate indifference and makes clear at what point officials have acted with

such indifference sufficient to violate an inmate’s constitutional rights. See supra, p. 7–25.

Accordingly, the Court finds that Plaintiff’s right to be afforded care without deliberate

indifference to his serious medical needs and to be free from intolerable conditions of

confinement are clearly established. Defendants’ motion for summary judgment on the

basis of qualified immunity is denied.

CONCLUSION

For the above-stated reasons, Defendant’s motion for summary judgment is

GRANTED in part and DENIED in part. Summary judgment is granted in part and

denied in part as to Count 1. Specifically, summary judgment is granted as to Plaintiff's

allegations that Defendants were deliberately indifferent in failing to provide him witha

wheelchair. Summary judgment is also granted as to Defendants Dennison and Smoot

regarding Plaintiff's ability to shower. However, summary judgment is denied as to

Defendants Smoot and Dennison with respect to Plaintiff's claims regarding his walker

and access to medical supplies. Summary judgment is also denied as to Defendant Botarf

regarding Plaintiff's ability to shower. Furthermore, on Count 2, summary judgment is

denied as to Defendant Smoot, but granted as to Defendant Dennison. Defendant

Dennison is therefore dismissed from Count 2. Summary judgment is also granted as to

Count 3. Accordingly, the Court DIRECTS the Clerk of the Court to dismiss Defendant

Jeffreys from the case.

IT IS SO ORDERED. Digitally signed

Dated: March 31. 2021 by Judge Sison

ated: Marc , . Ailing | Sete

Date: 2021.03.31

15:16:17 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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