Hernandez v. The Illinois Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSÉ HERNANDEZ,

Plaintiff,

v. Case No. 3:17-CV-1335-NJR

ILLINOIS DEPARTMENT OF

CORRECTIONS, WEXFORD HEALTH

SOURCES, INC., JOHN COE,

ANNE ELIZABETH TREDWAY,

LORIE CUNNINGHAM,

DEE BROOKHART, and

JON-MICHAEL ALLENDER,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on the motion for partial summary judgment filed

by Plaintiff José Hernandez (Doc. 148), the motion for summary judgment filed by

Defendants Illinois Department of Corrections (IDOC), Dee Brookhart, Lorie

Cunningham, Anne Elizabeth Tredway (“IDOC Defendants”) (Doc. 152), and the motion

for summary judgment filed by Defendants Wexford Health Sources, Inc., John Coe,

M.D., and Jon-Michael Allender1 (“Wexford Defendants”) (Doc. 158). For the reasons set

forth below, the IDOC Defendants are granted judgment as a matter of law. The motion

filed by Hernandez is denied, and the motion filed by the Wexford Defendants is granted

in part and denied in part.

1 The Clerk of Court is DIRECTED to correct Defendant’s name on the docket to Jon-Michael Allender.

FACTS

The following facts are not genuinely disputed for purposes of summary

judgment. Plaintiff José Hernandez is a former inmate of the IDOC who was housed at

Lawrence Correctional Center from July 7, 2014, through July 25, 2016. (Doc. 153-1 at

pp. 4, 22). Hernandez is a partial quadriplegic; he is paralyzed from the chest down and

cannot grasp with his fingers, though he has limited mobility in his arms. (Doc. 148-2 at

pp. 11-12; Doc. 167-3).

Although Hernandez is paralyzed, he can experience pain and discomfort

throughout his body. (Doc. 167-3). For example, quadriplegic patients can develop

painful pressure ulcers if not repositioned approximately every two hours. (Id.). Pressure

ulcers form when bones, like the pelvis, put unrelieved pressure on soft tissue. (Id.). The

pressure in these areas prevents blood from circulating properly, resulting in skin

breakdown. (Id.). Once a pressure wound develops, and even if that pressure wound

heals, there is an extremely high risk the wound will redevelop in the future. (Doc. 158-6

at p. 10). A medical alternating air mattress, in conjunction with turning and

repositioning, can help prevent pressure ulcers from developing or worsening. (Doc. 167-

3). An alternating air mattress consists of a series of tubes that periodically inflate and

deflate to shift the weight of the patient. (Id.).

In 2013, prior to entering Lawrence, Hernandez had pressure ulcers on both his

left and right buttocks. (Doc. 158-2). Upon Hernandez’s arrival at Lawrence in July 2014,

the ulcer on his left buttock had healed, while the ulcer on the right buttock was nearly

closed but was “complicated by a draining fistula.” (Doc. 158-8 at p. 2). Hernandez was

admitted to the infirmary, and Dr. John Coe, the former medical director at Lawrence and

an employee of Wexford Health Sources, Inc., ordered Hernandez an alternating air

mattress in order to avoid further pressure ulcers. (Id. at p. 3; Doc. 168-15 at p. 16).

Wexford provides medical services to inmates in the Illinois Department of Corrections.

(Doc. 1 at ¶ 9).

Dr. Coe testified that Hernandez required “total care,” meaning he used a catheter,

could not control his bowel movements, had a special diet and toothbrush, and could not

adequately turn himself over in bed. (Doc. 148-3 at pp. 36-37). Because Hernandez was

unable to lift the weight of his body using his arms, Dr. Coe also ordered that Hernandez

be repositioned every two hours and upon request until the mattress was available.

(Doc. 158-8 at p. 1; Doc. 148-3 at pp. 35-36; Doc. 167-4). Hernandez stayed in the infirmary

for the entirety of his sentence. (Doc. 148-3 at p. 35).

On August 18, 2014, Hernandez complained to Dr. Coe that the night crew would

not turn him over upon request. (Doc. 168-26 at p. 3). Dr. Coe asked the night staff to

“please reposition him as he requests if he is not too demanding.” (Id.). In September

2014, Hernandez was diagnosed with sepsis and a PICC line was inserted for long-term

antibiotic therapy. (Doc. 158-8 at p. 17). On October 19, 2014, a nurse noted a small red

area approximately half of a centimeter on the crease of the left buttock. (Id. at p. 22). In

January 2015, Hernandez developed a wound on his right hip. (Id. at p. 24). Later that

month, a nurse noted that Hernandez’s left buttock appeared to be red and raw, and Dr.

Coe diagnosed Hernandez with an abscess and stage 1 decubitus ulcer on his right

buttock. (Id. at pp. 25-26). Dr. Coe ordered a culture of the wound, which came back

positive for MRSA. (Id. at pp. 27-28). Dr. Coe prescribed Bactrim. (Id.).

Dr. Coe continued to examine Hernandez’s wounds over the following months. In

February, the wound on Hernandez’s right buttock was four centimeters deep with

drainage. (Id. at p. 29). In March, Dr. Coe noted there was hardly any drainage from the

wound, and in April he found that the ulcer was almost closed. (Id. at pp. 32-33). But by

May 2015, the wound had tunneled about one inch into his right buttock and was again

infected with MRSA. (Id. at pp. 35-36). A nurse later noted a nickel size area on

Hernandez’s upper left buttock that was pink and white in color; however, Hernandez

did not complain of any pain at that time. (Doc. 158-8 at p. 48).

On the night of June 6, 2015, Hernandez was experiencing severe pain and needed

to be turned and repositioned by one of the Wexford staff members. (Doc. 148-4 at pp. 17-

18). The infirmary had a call button system that could be used to alert staff when an

offender needed assistance. (Doc. 167-2 at p. 143). Each cell in the infirmary had several

call buttons in it. (Id.). Pressing the button would create a sound and a flashing light at

the nurses’ station. (Id. at p. 144). A correctional officer would then unlock the door for

the nurse to enter the ward. (Doc. 167-7 at p. 72). Hernandez could not press the call

button himself, so he asked another inmate to press the call button to alert staff that he

needed medical attention. (Id.). No one responded. (Id. at p. 18). Because he was in severe

pain, Hernandez attempted to turn himself over by wedging his arm in the bedframe,

fracturing his left forearm in the process. (Id.; Doc. 148-5).

Dr. Coe examined Hernandez’s arm on June 8, 2015, and ordered an x-ray.

(Doc. 148-7). The x-ray, performed on June 10, 2015, confirmed Hernandez’s ulna, one of

the bones of the forearm, was fractured. (Doc. 148-8). Dr. Coe decided to splint

Hernandez’s arm for six weeks and send him for another x-ray in three weeks. (Doc. 148-

3 at p. 41). He also prescribed Tylenol and Neurontin. (Doc. 158-8 at p. 42). Dr. Coe

testified that the decision was made not to send Hernandez to an orthopedic specialist

because “the fracture was not particularly displaced,” and only one bone in his forearm

was fractured. (Doc. 148-3 at pp. 41-42). Minimally displaced ulnar fractures commonly

heal without surgical intervention. (Doc. 158-5 at p. 9).

Hernandez received the second x-ray on July 6, 2015. (Doc. 148-10). Although the

fracture was “healing,” the bone was still broken. (Id.; Doc. 148-3 at p. 48). On July 16,

2015, Dr. Coe discontinued the splint for Hernandez’s arm, as it was causing an ulcer on

his wrist. (Doc. 148-3 at p. 51). Dr. Coe did not request an additional x-ray or send

Hernandez to a specialist. (Id.).

At a follow-up visit in early August 2015, Dr. Coe physically manipulated

Hernandez’s arm and determined the bone was solid and had obvious callus, meaning it

was bigger than it originally would have been and it was bridging the other bone. (Id. at

pp. 59-60, 62). The bone also did not “want to move.” (Id. at p. 62). Dr. Coe testified that

the center of the bone may not be filled in yet, but the callus would have connected the

bones. (Id. at p. 63). Based on his clinical judgment, Dr. Coe determined Hernandez did

not need another x-ray. (Id. at p. 61). Also at that visit, Hernandez requested a trapeze,

but Dr. Coe noted that Hernandez had no grip to use a trapeze. (Doc. 158-8 at p. 52).

On October 7, 2015, Hernandez complained to Dr. Coe about his mattress deflating

from a large hole. (Id. at p. 55). The request for a replacement alternating air mattress was

approved during Wexford’s collegial review process on October 20, 2015. (Id. at p. 56).

Hernandez again complained about his mattress leaking air, this time to a nurse,

on February 17, 2016. (Id. at p. 60). His air mattress was replaced with a “regular foam

mattress.” (Id.). On March 4, 2016, Dr. Coe noted that Hernandez had no particular

complaints and “feels OK.” (Id. at p. 61).

On May 19, 2016, Hernandez was seen by Physician’s Assistant James for a follow-

up examination. PA James wrote that Hernandez complained of arm pain from over one

year ago.2 (Doc. 148-16). Hernandez next saw Dr. Coe on June 6, 2016, and complained

about his air mattress leaking air.3 (Doc. 158-8 at p. 62). Dr. Coe noted that he would have

“Nancy” look into the mattress. (Id.). A week and a half later, the mattress was still

leaking air. (Id. at p. 63). Hernandez reported to another PA that the mattress did not

provide adequate support, it was causing him significant discomfort, and he felt like he

was in a hole when lying on his side. (Id.). The PA noted that he or she discussed

Hernandez’s concerns about the mattress with Jon-Michael Allender, the Director of

Nursing.

Allender, a Wexford employee, planned to check the mattress adjustments to

ensure it was properly functioning and inflated. (Id.). Even though Allender believed the

mattress was functioning, he got a different air mattress out of storage and provided it to

Hernandez. (Doc. 158-4 at p. 21). Allender believed this mattress functioned properly

2 At this point, Hernandez’s injury had occurred over 11 months prior, but not more than one year.

3 It is unclear when the regular foam mattress was switched to another air mattress.

because he plugged it in and aired it up. (Id.). When Allender checked in with Hernandez

the following day or within a few days, Hernandez said things were going fine. (Id.).

On June 27, 2016, Hernandez again complained to Dr. Coe about the mattress. (Id.

at p. 64). Dr. Coe noted that the mattress “has a temporary fix to it.” (Id.). That same day,

Hernandez filed a grievance stating that his air mattress was not working, leaving his

body sunk in the center and causing him extreme pain in his neck and left shoulder and

arm. (Doc. 167-14). Hernandez further stated in his grievance that he told Defendants Dr.

Coe, Lorie Cunningham, Allender, and Dee Brookhart about the mattress not working,

that an open wound on his right buttock was getting bigger, and that he had a burning

discomfort in his left buttock. (Id.). The grievance stated that Dr. Coe told Hernandez he

would not replace the air mattress since he was so close to his release date of July 25, 2016.

(Id.).

Defendant Anne Tredway was the Assistant Warden of Programs at Lawrence

from August 2012 through September 2015. (Doc. 153-3). As the Assistant Warden of

Programs, Tredway’s duties included overseeing the programming for inmates at

Lawrence as well as overseeing multiple departments, including the Health Care Unit.

(Id.). Defendant Brookhart was the Assistant Warden of Programs at Lawrence from

February 2016 through January 1, 2019. (Doc. 153-2). Brookhart also served as the

Americans with Disabilities Act (ADA) Coordinator. (Id.). Defendant Cunningham, a

registered nurse currently employed by the IDOC, has been the Health Care Unit

Administrator (“HCUA”) at Lawrence since December 22, 2015. Prior to that, she was the

Director of Nursing and an employee of Wexford. (Id.). As the HCUA, Cunningham’s job

responsibilities were to direct, coordinate, and review activities of healthcare operations

in conjunction with the Medical Director and the Nursing Director. (Id.). Tredway,

Brookhart, and Cunningham could not make decisions regarding the medical care of

individual inmates, nor could they order any outside medical consultations or prescribe

any type of medical device. (Id.). While Cunningham was the Director of Nursing,

however, she ensured an alternating air mattress was ordered for Hernandez, after a

doctor prescribed it. (Id.; Doc. 153-6).

Although they did not provide medical care, Defendants Tredway, Brookhart, and

Cunningham were required to conduct rounds in the infirmary, listen to patients’

complaints, investigate those complaints, and ensure that Wexford and its staff were

addressing patients’ medical needs and complying with IDOC policy. (Doc. 167-6 at

pp. 26-27; Doc. 167-7 at pp. 55-60; Doc. 167-2 at pp. 173-74).

According to Brookhart, there were periods of time when the call button system

in the infirmary did not work reliably. (Id. at p. 69). Cunningham testified that the

batteries in the call buttons would sometimes run out and need to be replaced. (Doc. 167-

2 at p. 145). Additionally, Cunningham explained, the call button alert could be silenced

by the correctional officers, although it was never permissible for staff to ignore a call

button request. (Id. at pp. 145-47).

According to Tredway, once a call button was pressed, it should be responded to

within a few minutes. (Doc. 167-6 at p. 56). She admitted, however, that offenders

sometimes complained that the call button was being ignored. (Id. at pp. 56-57). When an

inmate complained, Tredway would talk to the nurses to make sure they realized they

needed to respond to call buttons promptly. (Id. at p. 59). Tredway recalled Hernandez

specifically complaining to her about the nurses not responding to the call button in a

timely manner. (Id. at pp. 70-72). When Hernandez complained to her, Tredway would

talk to the nurses about their responsibilities and take the complaint to the HCUA and

the Director of Nursing. (Id. at p. 73). Hernandez testified, however, that the problem

with the call button continued even after he talked to Tredway. (Doc. 167-1 at p. 57).

Hernandez was released from Lawrence on July 25, 2016. He attested that he had

open wounds on his left and right buttocks at that time.4 (Doc. 171-1). Hernandez also

was experiencing pain in his left arm after his release, so he saw a doctor who performed

an x-ray. (Doc. 148-4 at pp. 22, 26). The x-ray performed on December 2, 2016, showed

that Hernandez’s arm was still broken. (Id. at p. 22; Doc. 148-11 at p. 5). Hernandez had

surgery to repair the fracture on February 2, 2017, which required the use of a bone graft,

as well as a metal plate and screws. (Doc. 148-17). Hernandez still experiences pain in his

left arm. (Doc. 148-4 at p. 21).

Hernandez filed his Complaint in this matter on December 12, 2017 (Doc. 1), and

a First Amended Complaint on April 25, 2018 (Doc. 49). Hernandez also filed a complaint

in a separate case, which ultimately was consolidated with this matter. (See Doc. 68; Case

No. 18-cv-1442, Doc. 1). After several court orders dismissing Hernandez’s respondeat

superior claims, the following counts remain in this case:

4 The Wexford Defendants have moved to strike the affidavits of Hernandez and his mother, Dora

Hernandez, because they allegedly contain medical opinions that neither affiant is qualified to provide.

The Court disagrees; their statements that Hernandez had “open wounds” are not medical opinions.

Rather, the affidavits are based on Hernandez’s and his mother’s personal knowledge and observations of

his wounds and disabilities. Accordingly, the Motion to Strike (Doc. 172) will be denied.

Count 1: Violation of the Americans with Disabilities Act, 42 U.S.C.

§ 12101 et seq., against the IDOC;

Count 2: Violation of the Rehabilitation Act (“RA”), 29 U.S.C. § 794 et

seq., against the IDOC;

Count 3: Eighth Amendment deliberate indifference claims against

Treadway, Coe, Cunningham, Allender, and Brookhart; and

Count 4: Eighth Amendment deliberate indifference claims against

Wexford based on its policies or customs.

Hernandez has moved for partial summary judgment as to Count 3 as it relates to

Dr. Coe. (Doc. 148). Defendants have moved for summary judgment on all claims.

(Docs. 152, 154).

LEGAL STANDARD

Summary judgment is only appropriate if the movant “shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED.

R. CIV. P. 56(a)). Once the moving party sets forth the basis for summary judgment, the

burden then shifts to the nonmoving party who must go beyond mere allegations and

offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P.

56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 232-24 (1986).

In determining whether a genuine issue of fact exists, the Court must view the

evidence and draw all reasonable inferences in favor of the party opposing the motion.

Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[i]nferences that rely upon speculation or

conjecture are insufficient.” Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014). “Where

the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party, there is no ‘genuine issue for trial.” Id. (citation omitted).

DISCUSSION

I. Deliberate Indifference to a Serious Medical Need

The Eighth Amendment prohibits cruel and unusual punishments and deliberate

indifference to the “serious medical needs of a prisoner constitutes the unnecessary and

wanton infliction of pain forbidden by the Constitution.” Rodriguez v. Plymouth Ambulance

Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to “reasonable measures to

meet a substantial risk of serious harm”—not to demand specific care. Forbes v. Edgar, 112

F.3d 262, 267 (7th Cir. 1997). A prisoner’s dissatisfaction with a medical professional’s

prescribed course of treatment does not give rise to a successful deliberate indifference

claim unless the treatment is so “blatantly inappropriate as to evidence intentional

mistreatment likely to seriously aggravate the prisoner’s condition.” Snipes v. DeTella, 95

F.3d 586, 592 (7th Cir. 1996) (quoting Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974)).

To succeed on an Eighth Amendment deliberate indifference claim, a plaintiff

must show: (1) that he suffered from an objectively serious medical condition; and (2) that

the individual defendant was deliberately, that is subjectively, indifferent to that

condition. Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir.), cert. denied, 140 S. Ct. 50, 205 L.

Ed. 2d 38 (2019). A medical condition is objectively serious if “ ‘a physician has diagnosed

it as requiring treatment, or the need for treatment would be obvious to a layperson.’”

Lockett v. Bonson, 937 F.3d 1016, 1023 (7th Cir. 2019) (quoting Pyles v. Fahim, 771 F.3d 403,

409 (7th Cir. 2014)).

Prevailing on the second prong requires a prisoner to show that a prison official

has subjective knowledge of—and then disregards—an excessive risk to inmate health.

Gayton v. McCoy, 593 F.3d 610, 653 (7th Cir. 2010). The plaintiff need not show the

individual “literally ignored” his complaint, but that the individual was aware of the

condition and either knowingly or recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516,

524 (7th Cir. 2008). “Something more than negligence or even malpractice is required” to

prove deliberate indifference. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).

Assessing the subjective prong is more difficult in cases alleging inadequate care

as opposed to a lack of care. Without more, a “mistake in professional judgment cannot

be deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th

Cir. 2016). The Seventh Circuit has explained:

By definition a treatment decision that’s based on professional judgment

cannot evince deliberate indifference because professional judgment

implies a choice of what the defendant believed to be the best course of

treatment. A doctor who claims to have exercised professional judgment is

effectively asserting that he lacked a sufficiently culpable mental state, and

if no reasonable jury could discredit that claim, the doctor is entitled to

summary judgment.

Id. (citing Zaya v. Sood, 836 F.3d 800, 805-06 (7th Cir. 2016)). A medical professional’s

choice of an easier, less efficacious treatment can rise to the level of violating the Eighth

Amendment, however, where the treatment is known to be ineffective but is chosen

anyway. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).

A. The Wexford Defendants

1. Fractured Forearm

Hernandez and Dr. Coe have both moved for summary judgment on Count 3 as it

relates to Dr. Coe’s alleged deliberate indifference to Hernandez’s fractured forearm.

(Docs. 148, 154). There is no dispute that Hernandez suffered from an objectively serious

medical condition or that Dr. Coe knew of that condition. Thus, the only question is

whether Dr. Coe was deliberately indifferent to Hernandez’s condition—i.e., whether he

knowingly or recklessly disregarded it.

Based on the summary judgment record, a reasonable jury could conclude Dr. Coe

was deliberately indifferent to Hernandez’s broken arm. Dr. Coe discontinued the use of

a splint for Hernandez’s fractured ulna on July 15, 2015, just nine days after an x-ray

showed the bone was still broken. While Dr. Coe prescribed pain relievers to Hernandez,

no further treatment for the broken arm was provided after Dr. Coe physically

manipulated the arm and found that a callus had formed.

Dr. Paul Lamberti, Hernandez’s retained expert witness, is a licensed orthopedic

surgeon. (Doc. 158-5). Dr. Lamberti opined that “Dr. Coe’s refusal to provide Mr.

Hernandez with any treatment for his fractured arm after removing the splint at six

weeks, despite the fact that (1) the July 6 x-ray showed incomplete healing, suggesting a

risk of non-union, and (2) Mr. Hernandez complained for a year following the date of his

injury, constitutes a gross deviation from acceptable healthcare.” (Doc. 148-11).

Indeed, Dr. Coe admitted that he brought up Hernandez’s fracture during

collegial review, but that, “for one thing, sending him out is going to be a real problem”

due to his partial quadriplegia. (Doc. 168-4 at p. 175). Additionally, he testified, “the

fracture itself was kind of like, well, you know, he’s not exactly somebody that’s going to

be out digging ditches in the future.” (Id.). When asked what he meant by that, Dr. Coe

explained: “It’s not going to be like he’s a laborer and has to have a great outcome with

his fracture. His arms are weak and he doesn’t use them that much. You know, basically

he stays in bed, gets carried around, put in wheelchairs, pushed around, you know. If he

goes out to the gym where basically it’s just kind of a socializing experience, he doesn’t

really do anything but sit in a wheelchair and talk with other wheelchair patients . . . .”

(Id. at p. 176). Accordingly, the decision was made to “try to take care of it there at the

prison and not send him to Champaign-Urbana.” (Id.).

According to Dr. Lamberti, however, numerous medical studies confirm that arms

are the most important limbs for patients with quadriplegia and that Dr. Coe’s

explanation of his refusal to refer Hernandez to an orthopedic specialist to have his

broken arm evaluated “is not based on any medical judgment.” (Doc. 148-11 at p. 5).

Furthermore, there is evidence that Hernandez continued to complain about pain

in his arm. Hernandez complained that his forearm still hurt when Dr. Coe physically

manipulated it on August 4, 2015, during a visit with a PA eight days later, and during a

May 19, 2016 visit with a PA (Doc. 148-3 at pp. 58, 65, 69-70; Docs. 148-15, 148-15, 148-16).

Hernandez also testified that he had “massive pain” in his arm when using his wheelchair

and that he asked Dr. Coe to check his arm again. (Doc. 148-4 at p. 7; Doc. 148-2 at p. 16).

When Hernandez told Dr. Coe he was having a lot of pain, Dr. Coe would say “well, you

broke it,” and he would laugh and walk away. (Id. at p. 21).

At the same time, however, a jury could find that Dr. Coe exercised his

professional judgment in deciding to discontinue treatment, and a disagreement with a

physician’s professional judgment is insufficient to make a prima facie case of deliberate

indifference. Dr. Lamberti testified that the fracture of Hernandez’s forearm was reduced,

meaning the bones were lined up with one another such that a callus could form and the

fracture could heal without surgical intervention. (Doc. 158-5 at p. 9). Dr. Coe also

testified that, in his clinical judgment, another x-ray was not required after he physically

manipulated Hernandez’s forearm in August 2015 and felt that a callus had formed.

(Doc. 158-3 at p. 200). Finally, Dr. Coe submits there is a question of fact as to whether

Hernandez continued to experience ongoing pain in his left forearm in the years

following the fracture. Dr. Coe testified that the medical record prepared by a PA on May

19, 2016, does not indicate the amount of pain or where the arm hurt, and that Hernandez

had Tylenol 3, Motrin, gabapentin, and baclofen for pain. (Doc. 148-3 at pp. 70-71).

Based on this evidence, the Court finds there are outstanding questions of fact and

thus neither party is entitled to summary judgment on Hernandez’s claim of deliberate

indifference to his fractured forearm. Both motions are denied on those grounds.5

2. Alternating Air Mattress

Dr. Coe and Allender next argue they are entitled to summary judgment on

Hernandez’s claim of deliberate indifference regarding his need for a functioning air

5 Hernandez also moved for summary judgment on the Wexford Defendants’ affirmative defenses of

Eleventh Amendment sovereign immunity and the Prison Litigation Reform Act’s requirement that a

prisoner must disclose his litigation history. The Wexford Defendants have withdrawn these defenses

(Doc. 166); thus, Hernandez’s motion as it applies to Wexford’s affirmative defenses is moot.

mattress in order to avoid pressure ulcers. Specifically, Dr. Coe argues that (1) he

immediately ordered an alternating air mattress when Hernandez arrived at Lawrence;

(2) he ordered that Hernandez be turned regularly pending receipt of that mattress; and

(3) when the air mattress needed to be replaced, he did so immediately. Allender asserts

he is entitled to summary judgment because there is no evidence that he denied

Hernandez access to a working alternating air mattress. Both Defendants argue that even

Hernandez’s expert admitted the pressure ulcer on his right buttock healed because of

the medical care he received at Lawrence. (Doc. 158-6 at p. 14).

In response, Hernandez argues it is undisputed that he complained in-person to

both Coe and Allender about his mattress deflating, and both defendants had the ability

to obtain a new mattress for him. Moreover, whether Hernandez’s pressure ulcers

became worse in 2016 because of the malfunctioning air mattress must be resolved by a

jury.

The Court agrees with Hernandez. The evidence in the record, construed in the

light most favorable to Hernandez, indicates that he complained to Dr. Coe about his

mattress leaking air on June 6, 2016. Hernandez also filed a grievance stating that he told

Allender about the leak and that his pressure wounds were getting worse. Yet, Allender

never ordered a new mattress. Instead, he retrieved one from storage that also

malfunctioned. Hernandez then complained to Dr. Coe again in late June 2016 about the

deflating mattress, but Dr. Coe told Hernandez he would not get a new mattress so close

to his release date. There is also evidence that Hernandez’s right buttock wound

worsened and he developed a left buttock wound while at Lawrence. On this record, a

jury could find Dr. Coe and Allender were deliberately indifferent to a serious risk of

harm to Hernandez by failing to provide him with a functioning air mattress in 2016.

3. Trapeze

The Wexford Defendants next argue they are entitled to summary judgment as to

any claim regarding the failure to provide Hernandez with a trapeze. Hernandez does

not dispute this point; therefore, Defendants are entitled to summary judgment on this

ground.

3. Monell Claim Against Wexford

In Count 4, Hernandez asserts Wexford had a practice of failing to enforce its

policy requiring infirmary staff to respond to inmates’ calls for help and it knew that

doing so posed a substantial risk that patients would be deprived of their constitutional

rights.

While Wexford is a private corporation, under Seventh Circuit law, a private

company that has contracted to provide essential government services, such as health

care for prisoners, can be held liable if the constitutional violation was caused by an

unconstitutional policy, practice, or custom of the corporation itself. Hildreth v. Butler, 960

F.3d 420, 426 (7th Cir. 2020), cert. denied, 141 S. Ct. 1527, 209 L. Ed. 2d 260 (2021); Shields v.

Illinois Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014). To support a claim under 42 U.S.C.

§ 1983 on this theory, Hernandez must show: (1) Wexford’s practice violated his

constitutional rights; and (2) the practice was “so pervasive that acquiescence on the part

of policymakers was apparent and amounted to a policy decision.” Id. “This requires

more than a showing of one or two missteps.” Id. (quotation omitted). There must be

“systemic and gross deficiencies,” of which policymakers were aware and failed to

correct them, thereby “manifesting deliberate indifference.” Id.

Here, Dr. Roderick Matticks, Wexford’s lead regional medical director and

corporate representative, testified that Wexford requires its employees to respond to a

call button system and, furthermore, expects its staff to respond to patient needs,

however they are made aware of the need for assistance. (Doc. 168-8 at pp. 30, 33-34, 44).

Dr. Matticks also stated that it is the Director of Nursing’s responsibility to ensure staff

are hearing the calls for help from inmates in the infirmary. (Id. at p. 35). Dr. Matticks

testified that Wexford relies on its Medical Director and Director of Nursing to ensure its

policies are being followed, as well as reports from IDOC staff. (Id. at pp. 51-52).

According to Dr. Matticks, prior to this lawsuit, Wexford was unaware that nurses at

Lawrence were not responding to calls for help from infirmary patients. (Id. at p. 50).

Dr. Matticks also indicated that the IDOC would contact Wexford if there were an urgent

need or problem with a particular patient. (Id. at p. 52). In this case, Wexford was unaware

of any issue with Hernandez, including his grievance that staff were turning off the call

button system. (Id.).

Defendant Allender, the Director of Nursing, testified that he would ensure the

nurses were complying with Wexford policies by doing spot checks, reviewing the

nurses’ notes in the medical records, and checking in with patients. (Doc. 168-21 at p. 19).

With regard to patient calls for help, Allender stated he never had any complaints that

nurses were not responding to calls. (Id. at pp. 20, 68). Allender testified that he would

ask patients how things were going, and if a complaint was brought to his attention, he

would address it at that point in time. (Id. at pp. 20-21). With regard to Hernandez

specifically, Allender did not recall him ever complaining about nurses failing to respond

to the call button. (Id. at p. 107).

Hernandez disputes these facts, pointing to evidence that it was “common

knowledge” among inmates in the infirmary and among IDOC staff that Wexford staff

often failed to respond to call button requests. For example, in November 2014, Tredway

reported in her IDOC Monthly Inspection Form that inmates in the infirmary complained

that nurses were not responding to the call button promptly. (Doc. 168-9 at p. 2).

Hernandez testified that the inmates knew when Wexford staff turned the call button off

because they would not hear any beeping sound upon pressing the button. (Doc. 148-4 at

p. 16). The nurses would also tell the inmates in the infirmary that the call button system

was off. (Id.). Hernandez further produced an affidavit from a fellow inmate who also

resided in the infirmary and who witnessed the medical staff failing to respond to the call

button, especially at night. (Doc. 148-6).

Hernandez also points to Wexford’s interrogatory responses, in which it admits it

did not “investigate, analyze, uncover, prevent, or determine the prevalence of any

misconduct, deficiency, shortcoming, or other problem related to Wexford policies and

procedures” regarding medical and nursing care for inmates in the Lawrence infirmary

at any point between July 1, 2014, and July 31, 2016. (Doc. 168-24). Hernandez argues

Wexford cannot avoid its constitutional obligations by simply failing to investigate

conduct or facts that it suspected to be true.

From this evidence, the Court concludes there is a triable issue of fact as to whether

Wexford had an unwritten practice of failing to enforce its policies with regard to the call

button system in the infirmary. IDOC staff were aware that the call button was not being

responded to in a timely manner, and Wexford relied on IDOC staff reports—like

Tredway’s—to ensure its policies were being followed. A reasonable jury could therefore

find that while Wexford had a written policy requiring medical staff to timely respond to

the call button, the staff failed to do so, Wexford knew it, Wexford did nothing about it,

and Hernandez’s constitutional rights were violated as a result. Thus, Wexford’s motion

for summary judgment on Count 4 is denied.

B. IDOC Defendants

1. Personal Involvement of IDOC Defendants

The IDOC Defendants—Tredway, Brookhart, and Cunningham—argue they

cannot be held liable for deliberate indifference to Hernandez’s medical needs because

they had insufficient personal involvement in his medical care. In fact, Defendants aver,

Hernandez admitted none of these Defendants had involvement in his actual medical

care. Therefore, they did not have the requisite personal involvement to be found liable

under Section 1983.

Section 1983 makes public employees liable “for their own misdeeds but not for

anyone else’s.” Burns v. Fenoglio, 525 F. App’x 512, 515 (7th Cir. 2013) (quoting Burks v.

Raemisch, 555 F.3d 592, 596 (7th Cir. 2009)). “[T]op-level administrators are entitled to

delegate to others the responsibility for specific prison functions, including providing

medical care.” Id. “If a prisoner is under the care of medical experts . . . a non-medical

prison official will generally be justified in believing that the prisoner is in capable

hands.” Giles, 914 F.3d at 1049 (quoting Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005)).

Non-medical prison officials can be held liable for deliberate indifference, however,

where they have actual knowledge or a reason to believe that prison medical staff are

mistreating or failing to treat a prisoner. Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011)

(citing Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008) “Non-medical defendants cannot

simply ignore an inmate’s plight.” Id.

Here, there is evidence that the IDOC Defendants—while not personally involved

in providing Hernandez’s medical care—had actual knowledge of the medical staff’s

failure to treat him. All three IDOC Defendants testified that they were required to

conduct rounds in the infirmary, listen to patients’ complaints, investigate complaints,

and ensure that medical staff were addressing patients’ needs and complying with IDOC

policy. (Doc. 167-6 at pp. 26-27; Doc. 167-7 at pp. 55-60; Doc. 167-2 at pp. 173-74). On June

27, 2016, Hernandez stated in a grievance that he told Cunningham and Brookhart, the

HCUA and an Assistant Warden, respectively, that his alternating air mattress was not

working, that an open wound on his right buttock was getting bigger, and that he had a

burning discomfort in his left buttock. (Doc. 167-14). And Tredway specifically recalled

Hernandez complaining to her about the nurses not responding to the call button in a

timely manner. (Doc. 167-6 at pp. 70-72). Based on this evidence, the Court finds that the

personal involvement requirement is satisfied.

2. Evidence of Deliberate Indifference

The IDOC Defendants next argue that even if they were personally involved, there

is no evidence that they were deliberately indifferent to Hernandez’s medical needs. On

this point, the Court agrees.

Defendant Tredway testified that when Hernandez told her about the nurses not

responding to the call button, she would ensure the issue was addressed by informing

the HCUA and the Director of Nursing and by making sure the nurses were present

during her rounds in the infirmary. (Doc. 167-6 at p. 73). She also would talk to the nurses

about their responsibilities. (Id.). Tredway also attested that because Hernandez only

brought up the issue of the call button to her once, and she made almost daily rounds in

the infirmary, she believed that his issue was adequately addressed. (Doc. 153-3). She

further noted that the call button was functioning properly when she inspected the

infirmary on her rounds, and that the nurses were present and attending to the

individuals in the infirmary during one of her monthly surprise inspections. (Id.).

Tredway recalled one other occasion when Hernandez complained about his mattress

and, while she did not remember the specifics, she attested that she would have followed

up with the HCUA and the Director of Nursing to ensure his complaints were addressed.

(Id.). Tredway attested she did not ignore Hernandez’s complaints. (Id.). And Hernandez

admitted it was possible that Tredway could have talked to the nurses about responding

to the call button, but that the nurses did not follow her direction. (Doc. 167-1 at p. 58).

Brookhart attested that she does not recall Hernandez complaining directly to her

or writing any grievances about issues he had with his alternating air mattress, but that

if he had, she would have referred the complaint to the HCUA or the Director of Nursing.

(Doc. 153-2). She further attested that she did not and does not ignore inmate complaints.

(Id.). According to Hernandez, he told Brookhart about his mattress during a face-to-face

conversation on a walk to the ADA gym. (Doc. 153-1 at p. 72). He could not, however,

recall when the conversation took place or what he told her, and he admitted he does not

know if Brookhart assisted with him getting a new mattress. (Id. at p. 73).

Cunningham testified that she does not recall any complaints or grievances from

Hernandez about his alternating air mattress, but as the HCUA, she would have referred

the issue to the Director of Nursing to address. (Doc. 161 at p. 2). She attested that she

would not have ignored an inmate’s complaints. (Id.). Hernandez testified that he got

Cunningham’s attention one time and told her about the mattress, though he was not

sure when the conversation occurred. (Doc. 153-1 at p. 75). He also was not sure whether

Cunningham helped to get him a new mattress. (Id.).

Hernandez argues that Defendants’ testimony about what they “would have

done” when presented with complaints is not reliable evidence. The Court is not

convinced. Tredway gave competent testimony as to how she handled Hernandez’s

complaints. Brookhart and Cunningham could not recall any specific complaints from

Hernandez, and Hernandez also did not know the specifics of any conversations he had

with these Defendants or if they took any action. Furthermore, Brookhart and

Cunningham were not medical practitioners, were unable to order medical devices, and

were entitled to rely on the judgment of medical professionals. See Giles, 914 F.3d at 1050

(non-medical officials who referred complaints to medical staff had no duty to do any

more than they did, in light of their knowledge of the situation).

Based on this evidence, no reasonable jury would find that Defendants Tredway,

Brookhart, or Cunningham deliberately disregarded a known risk of harm to Hernandez

or turned a blind eye to his plight. Accordingly, the IDOC Defendants are granted

summary judgment on the deliberate indifference claim in Count 3.

II. ADA and Rehabilitation Act

The IDOC asserts it is entitled to judgment as a matter of law on Hernandez’s

claims that it violated the ADA and the Rehabilitation Act by failing to provide a

reasonably comfortable and safe place to sleep and by failing to accommodate his request

to ensure infirmary staff did not ignore his calls for help turning over in bed.

Under the ADA, “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. 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 programs to otherwise qualified individuals with

disabilities. 29 U.S.C. § 794(a). 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).

“In the prison context, a plaintiff can make out a prima facie case of discrimination

under both the ADA and the Rehabilitation Act by showing: (1) he is a qualified person;

(2) with a disability; (3) the Department of Corrections denied him access to a program

or activity because of his disability or otherwise subjected him to discrimination; and

(4) the denial or discrimination was by reason of his disability.” Farris v. Kurr, No. 16-CV-

272-SMY-RJD, 2018 WL 3036130, at *3 (S.D. Ill. June 19, 2018) (citing Jaros v. Illinois Dep’t

of Corr., 684 F.3d 667, 672 (7th Cir. 2012)).

Evaluating the reasonableness of a particular accommodation in the prison context

is particularly fact-intensive and determined on a case-by-case basis by balancing the cost

to the defendant and the benefit to the plaintiff. Golden v. Illinois Dep’t of Corr., No. 12-CV-

7743, 2016 WL 5373056, at *4 (N.D. Ill. Sept. 26, 2016) (citing Dadian v. Vill. of Wilmette, 269

F.3d 831, 838 (7th Cir. 2001); Holmes v. Godinez, 311 F.R.D. 177, 226 (N.D. Ill. 2015)).

“Security concerns, safety concerns, and administrative exigencies [are] important

considerations to take into account.” Id. (citing Love v. Westville Corr. Ctr., 103 F.3d 558,

561 (7th Cir. 1996)). The key question is whether the inmate was able to participate in the

activities in question, given his disability, with or without reasonable accommodations

from the prison. Love, 103 F.3d at 560.

Here, it is undisputed that Hernandez is a qualified individual with a disability

and that IDOC is a public entity. Thus, the only question is whether the IDOC denied him

access to a program or activity because of his disability.

The IDOC argues Hernandez was provided with appropriate accommodations,

including a bed assignment in the infirmary where he was provided with an alternating

air mattress to accommodate his medical needs. Defendant contends Hernandez is

merely complaining that he received incompetent treatment for his disability, which does

not constitute a violation of the ADA.

Hernandez, on the other hand, asserts that case law establishes sleeping is an

activity or program under the ADA, and prisons are required to provide inmates with

sleeping accommodations that accommodate their disability-related needs. Each case

cited by Hernandez, however, was the district court’s preliminary review of a Section

1983 complaint under 28 U.S.C. § 1915A, where the court determines whether a claim has

any arguable basis in either law or fact. These cases were in a very different procedural

posture and hardly establish that sleeping is an activity or program under the ADA. See

Rosario v. Wexford Health Care, No. 15-CV-1008-MJR, 2015 WL 5935244 (S.D. Ill. Oct. 13,

2015); Simmons v. Ill. Dep’t of Corr., No. 14-cv-479-JPG, 2014 WL 2159000 (S.D. Ill. May 23,

2014); Legore v. Allsup, No. 16-CV-01137-MJR, 2017 WL 131578 (S.D. Ill. Jan. 13, 2017).

Even if sleeping qualified as a program or activity under the ADA, the IDOC did

not deny Hernandez access to a bed that accommodated his disability-related needs. The

IDOC provided Hernandez with permanent quarters in the infirmary with alternating air

mattresses to help avoid new or worsening pressure ulcers. Hernandez complains that

the air mattresses malfunctioned and that the nurses did not turn him often enough, but

the ADA is not violated “by a prison’s simply failing to attend to the medical needs of its

disabled prisoners.” Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996); see also Johnson v.

Redmond, No. 17 C 50210, 2017 WL 6813706, at *2 (N.D. Ill. Oct. 30, 2017); Wilson v. Murphy,

No. 14-CV-222-BBC, 2016 WL 1248993, at *6 (W.D. Wis. Mar. 29, 2016) (medical treatment

decisions are outside the scope of the ADA and RA). While the Court is sympathetic to

Hernandez’s needs, the record here does not establish a violation of the ADA or

Rehabilitation Act. See Nesbitt v. Williams, No. 13 C 9241, 2017 WL 1079240, at *3 (N.D. Ill.

Mar. 21, 2017) (“As Nesbitt’s desire for a softer mattress is a means to treat his medical

condition, the Court also holds that the alleged failure to provide him with a softer

mattress does not state a claim under the ADA.”); Boston v. Dart, No. 14 CV 8680, 2016

WL 5373083, at *7 (N.D. Ill. Sept. 26, 2016) (“The ADA does not require [Defendant] to

ensure that [Plaintiff] is free from any and all effects of his paraplegia.”).

For these reasons, the IDOC is entitled to summary judgment on Hernandez’s

claims in Counts 1 and 2 under the ADA and the Rehabilitation Act.6

CONCLUSION

For these reasons, the Motion for Partial Summary Judgment filed by Plaintiff José

Hernandez (Doc. 148) is DENIED in part and deemed MOOT in part. The motion for

summary judgment filed by Defendants Illinois Department of Corrections, Dee

Brookhart, Lorie Cunningham, and Anne Elizabeth Tredway (Doc. 152) is GRANTED.

The motion for summary judgment filed by Defendants Wexford Health Sources, Inc.,

John Coe, M.D., and Jon-Michael Allender (Doc. 158) is GRANTED in part and DENIED

in part. The Wexford Defendants are entitled summary judgment on Hernandez’s claim

of deliberate indifference as to his request for a trapeze. And, as set forth in footnote 4,

the Motion to Strike (Doc. 172) is DENIED.

6 Hernandez moved for summary judgment on the IDOC Defendants’ affirmative defense that injunctive

relief is barred as a matter of law, noting that he does not seek injunctive relief in this case. (Doc. 148). As

noted by Defendants, however, Hernandez also would not be entitled to compensatory damages on his

ADA or Rehabilitation Act claims, as compensatory damages are only available for those claims when a

plaintiff shows deliberate indifference on behalf of a state actor. Hildreth v. Butler, 960 F. 3d 420 (7th Circ.

2020). That is, the plaintiff must show the defendants “knew that harm to a federally protected right was

substantially likely and ... failed to act on that likelihood.” Id. at 431. Because Hernandez has not

demonstrated any deliberate indifference on behalf of the IDOC Defendants, he also would not be entitled

to compensatory damages under the ADA or Rehabilitation Act.

Hernandez shall now proceed to trial on his remaining claims in Counts 3 and 4

against the Wexford Defendants. A status conference will be set by separate order to

select a firm trial date.

IT IS SO ORDERED.

DATED: August 2, 2021 7 2

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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