The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOE PRICE, )
)
Plaintiff, )
)
v. ) Case No. 18-cv-1050-RJD
)
CHRISTINE BROWN, )
)
Defendant. )
ORDER
DALY, Magistrate Judge:
Plaintiff Joe Price, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this action pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were
violated while he was incarcerated at Pinckneyville Correctional Center (“Pinckneyville”). In his
Second Amended Complaint, Plaintiff alleges he is a 63-year-old, hearing impaired prisoner who
suffers from several chronic mental and physical problems. Plaintiff alleges his inability to hear
caused him to miss meals, yard time, and other privileges. Plaintiff asserts he has been provided
an ADA Individualized Communication Plan in the IDOC and has been approved for various ADA
accommodations, including the issuance of hearing aids, but has had issues with the same.
Following the filing of Plaintiff’s Second Amended Complaint and the Court’s ruling on motions
for summary judgment on the issue of exhaustion of administrative remedies, Plaintiff proceeds
on the following claims:
Count One: Eighth Amendment claim against Defendant Christine Brown for
deliberate indifference to Plaintiff’s serious medical need for
refusing Plaintiff new batteries and filters for his hearing aid.
Count Two: Eighth Amendment conditions of confinement claim against
Defendant Christine Brown for refusing Plaintiff new batteries and
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filters for his hearing aid.
Count Three: Eighth Amendment conditions of confinement claim against
Defendant Christine Brown for refusing Plaintiff ADA
accommodations as a hearing-impaired inmate.
(Docs. 116, 161).
This matter is now before the Court on Defendant Brown’s Motion for Summary Judgment
(Doc. 181). For the reasons set forth below, the Motion is GRANTED.
Factual Background
Plaintiff’s claims arise from his incarceration at Pinckneyville Correctional Center, where
he was housed from late 2017 through 2019 (Deposition of Joe Price, Doc. 182-1 at 2-3). Plaintiff
is a hearing-impaired inmate, and, prior to his incarceration at Pinckneyville, was issued an ADA
Individualized Communication Plan and Permit (“ADA Plan”) (Deposition of Christine Brown,
Doc. 182-2 at 7; Doc. 182-3). Plaintiff’s Communication Plan granted the use of a hearing aid,
an ID identifying him as hard of hearing, special permit items, interpreter services, and a cell door
sign indicating he is hard of hearing (see id.). Defendant did not complete any portion of
Plaintiff’s Communication Plan.
On or about December 13, 2017, the Healthcare Unit Administrator (“HCUA”) at Western
Correctional Center sent an email to Defendant HCUA Brown, who was also the ADA
Coordinator, notifying her that Plaintiff was being transferred to Pinckneyville and advising Brown
that Plaintiff is an ADA offender for hearing impairment and that he had been issued a new hearing
aid (Doc. 182-2 at 6).
Issues Concerning Assistive Devices Excluding Plaintiff’s Hearing Aid
On March 14, 2018, Plaintiff submitted an emergency grievance requesting the ADA Plan
and Permit that was issued and specifically mentioned: (1) alternative notification of auditory
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announcements; (2) I.D. designation; (3) special permit items such as a vibrating watch,
headphones, and an amplifier; (4) auxiliary aids such as visual aids, writing material, and assistive
listening devices; (5) sign language interpreter services; and (6) cell door sign indicating “hearing
impaired” (Doc. 30-2). Plaintiff asserts he wrote letters to Grievance Officer Hale and Defendant
Brown1 concerning the same, but to no avail (id.; see also Doc. 187-1). Plaintiff writes that his
hearing is getting worse, and asserts he is not receiving any assistance from HCUA Coordinator
Brown (id.). Plaintiff makes no specific mention of his hearing aids or issues with the same in
this grievance (Doc. 30-2). Hale sent an email with Plaintiff’s grievance to Brown for review and
a response (Doc. 185-6 at 3). Brown responded on May 16, 2018 stating, in relevant part, that
“[t]he file reflects [Plaintiff] was approved to have his hearing aid sent out to be repaired on
4/23/18. We are in the process of setting up with the company to get it looked at. The ADA
individual plan [Plaintiff] has copied does not reflect anything that I denied, this is from another
facility. He should have a vibrating watch and headphones according to this form in the chart. I
have not received anything from him requesting replacement of these items. He will be called over
next week to discuss where these items are.” (id. at 2-3). Brown’s response was included in the
Grievance Officer’s May 17, 2018 response to Plaintiff’s emergency grievance (see Doc. 30-3).
Plaintiff submitted paperwork on August 20, 2018 requesting a “hard of hearing”
designation on his ID and a sign on his door (Doc. 182-2 at 10-11). Defendant Brown sent
Plaintiff a “Memorandum” on October 9, 2018, which stated that Plaintiff should be allowed to
place a hard of hearing (“HOH”) sign on his door (id. at 13; see Doc. 182-4). On October 10,
1 At all times relevant, Brown was both the Healthcare Unit Administrator and ADA Coordinator. As ADA
Coordinator, Brown investigated offender grievances and complaints concerning offender ADA accommodations and
works with other staff members and medical suppliers in an attempt to ensure each offender receive his or her
accommodations (Doc. 166 at 2).
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2018, Defendant corresponded with Assistant Warden Love regarding ADA accommodations for
Plaintiff, including cell placement (see Doc. 182-5). Defendant indicated Plaintiff had his
required permits, but security was not allowing Plaintiff to hang his HOH sign in the cell (id.).
Defendant also requested that Plaintiff be moved to the front of the housing unit wing, and
Defendant was subsequently informed that Plaintiff had been moved approximately two weeks
prior to a cell closest to a speaker (id.).
It is undisputed that Plaintiff attended a meeting with the Chicago Hearing Society, along
with other hearing-impaired inmates (Doc. 182-1 at 8). There is a dispute as to whether this
meeting took place in early 2018, as testified to by Defendant Brown (Doc. 182-2 at 9), or in July
2019, as asserted by Plaintiff2. Plaintiff testified he received an ID badge indicating he was
hearing-impaired following this meeting (Doc. 182-1 at 15-16). Plaintiff also received
headphones and an HOH placard for his cell after this meeting (id.). Plaintiff testified he was not
sure when he received his vibrating watch, but believes it was prior to this meeting (id. at 16).
In March 2019, Defendant completed an updated Communication Plan for Plaintiff and
indicated Plaintiff should have a hearing aid for his right ear, a traditional phone, and a vibrating
watch (Doc. 185-10). Another updated Communication Plan was completed by Defendant in July
2019, and Plaintiff was to be provided a hearing aid for both ears, over-the-ear headphones, an
amplified phone, and a vibrating watch (Doc. 185-3).
Issues Related to Plaintiff’s Hearing Aid
Hearing aids require both batteries and earwax filters to work properly (Doc. 182-1 at 5).
2 In support of this fact, Plaintiff cites to his Communication Plan dated July 26, 2019 (see Doc. 185-3). This
document does not evidence that the Chicago Hearing Society meeting took place in July 2019. This discrepancy,
however, is not relevant to any material fact in this case.
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An inmate can obtain new batteries for a hearing aid at Pinckneyville by requesting one directly
from the healthcare unit, asking a nurse during daily medication or supply line, or submitting a
request for the same in a kite directed to the healthcare unit (Doc. 182-2 at 14-16). Inmates can
receive new earwax filters by requesting them from the healthcare unit (id. at 16). Wexford was
responsible for ordering the same (id.). If a hearing aid needed to be replaced or repaired, the
request needed to be submitted to the Medical Director and approved in Wexford’s collegial review
(id. at 18, 20). Inmates are not provided a temporary hearing aid while awaiting a repaired or a
new hearing aid (id. at 18).
Generally, Plaintiff testified that his hearing aid earwax filters lasted one week to one
month, and new batteries were supposed to be issued to him every seven days (Doc. 182-1 at 6,
10).
With regard to Plaintiff’s hearing aid, the timeframes during which Plaintiff either did not
have his hearing aid or that said hearing aid was not functioning properly because Plaintiff did not
have batteries or a functional earwax filter are not entirely clear. From the record, it appears
Plaintiff presented to nurse sick call on December 20, 2017, February 24, 2018, and March 18,
2018, requesting new hearing aid batteries (Doc. 185-9). Plaintiff’s medical records establish he
was provided batteries in response to these requests on December 20, 2017 and March 19, 2018
(it is not clear when Plaintiff received batteries in response to his February 24, 2018 request) (id.).
It appears Plaintiff was at Pinckneyville for about two to three months prior to requesting new
hearing aid earwax filters (Doc. 182-2 at 6). On March 30, 2018, a notation in Plaintiff’s medical
records indicated Plaintiff’s hearing aid was filling with wax, and Plaintiff was to return if his
symptoms worsened or interfered with daily functioning (Doc. 185-7). On April 9, 2018, Plaintiff
presented to nurse sick call for a hearing aid battery (see Doc. 182-6). The nurse noted the size
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of battery Plaintiff needed was not available at 8:30 a.m.; however, another notation on this date
indicated Plaintiff was provided a battery at 10:30 a.m. (see id.). An email was directed to
Defendant Brown on April 12, 2018, indicating Plaintiff needed a new hearing aid battery and
filter (Doc. 182-9). Defendant responded on the same date that Plaintiff had already been given
a new battery that week and she had to review Plaintiff’s file concerning his filter as he had never
been issued one (id.). Plaintiff returned to nurse sick call again on April 18, 2018, and indicated
he still needed a filter for his hearing aid (Doc. 182-10). The nursing note indicated Plaintiff was
placed on the MD call line for an “eval to be sent out for hearing aid filter” (id.; Doc. 182-2 at 17).
The nurse also indicated she had previously discussed this issue with the HCUA, and Defendant
testified that although she does not specifically recall speaking with the nurse about this issue, if
it was written in the note, then Defendant was sure the nurse had talked to her about it (id. at 17-
18).
Plaintiff’s hearing aid was sent out for repairs on May 7, 2018 to address issues with the
filter (Doc. 185-8). Plaintiff’s hearing aid was returned to him on June 14, 2018, but no battery
was available or provided (Doc. 182-7). The notation in Plaintiff’s medical record indicated that
batteries would be ordered (id.).
At his deposition, Plaintiff testified that at some point when his earwax filter was filling,
he sent Defendant a letter and also advised her of the issue in-person when he saw Defendant in
the healthcare unit (Doc. 182-1 at 6). Defendant told Plaintiff to clear the filter with a toothbrush
(id.). Plaintiff also testified he asked Defendant for new hearing aid batteries through kites and
in-person conversations, but it is not clear when these requests to Defendant were made (Doc. 182-
1 at 7).
Plaintiff testified that while at Pinckneyville he went to the shower with his hearing aid
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still in his ear (Doc. 182-1 at 6). As his hearing aid should not get wet, he placed it on a concrete
divider (id.). An officer came while Plaintiff was in the shower and threw Plaintiff’s hearing aid
on the ground and stepped on it (id.). Following the destruction of his hearing aid, Plaintiff
testified it took approximately six months before he was issued a new hearing aid (id.). Plaintiff
does not recall when this occurred; however, he wrote a grievance on February 3, 2019, in which
he complained that his hearing aid was damaged in the shower (see Doc. 185-4). The Grievance
Officer’s response to this grievance indicates that “per HCUA, “[Plaintiff] is scheduled to go out
to see the Audiologist to replace his hearing aid. He will be responsible to take care of his
replacement hearing aid; they will not continue to buy a new one every six months. The hearing
aids cost over $1,500.00 apiece.” (see id.).
Plaintiff testified that he placed the damaged hearing aid in a bag and gave it to a nurse
(Doc. 182-1 at 16). The nurse told Plaintiff that Defendant was going to see if she could get it
repaired (id.). On February 26, 2019, Defendant sent Plaintiff a memorandum stating: “[a]s I
have told you previously, we have submitted to collegial and are waiting for approval for audiology
for your hearing aids.” (Doc. 182-8). Defendant testified that approval for a new hearing aid was
required by Wexford because Plaintiff had gone through more than two hearing aids in two years
(Doc. 182-2 at 16). Defendant also testified that she is not responsible for ordering medical
supplies (id. at 20). While he was without a hearing aid, Plaintiff spoke with Defendant in-person
while he was in the healthcare unit and asked about his hearing aid (Doc. 182-1 at 7). Defendant
told Plaintiff she was “working on it.” (id.). Plaintiff testified he went without a hearing aid for
approximately six months and, while awaiting receipt of a new hearing aid, he submitted numerous
grievances and letters concerning the same (id. at 6). Plaintiff testified he suffered “quite a few”
seizures during the six-month period he did not have a hearing aid because he was “so depressed”
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and was worrying about not knowing what was going on around him (Doc. 182-1 at 14-15).
Plaintiff also testified that while he was without a hearing aid he missed chow time, ADA gym,
and day room (id. at 17).
Summary Judgment Standard
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-
Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is
made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at
248). In assessing a summary judgment motion, the district court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital,
Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Discussion
Counts One and Two
In Counts One and Two, Plaintiff asserts Defendant Brown violated his Eighth Amendment
rights by refusing him new batteries and filters for his hearing aid. Plaintiff brings this claim
under a both a theory of deliberate indifference and unconstitutional conditions of confinement.
As a preliminary matter, the Court notes that the summary judgment briefing of the parties
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appears to expand the scope of these claims. Plaintiff’s Second Amended Complaint was filed
on November 8, 2019. Prior to the filing of the Second Amended Complaint, Plaintiff asserts his
hearing aid was destroyed by a correctional officer and he went without the same for approximately
six months. Plaintiff has not sought leave to amend his complaint and include these allegations
in either Counts One or Two. Defendant, however, has not objected to expanding the scope of
the claims from issues beyond the replacement of new hearing aid batteries and filters. The Court
also acknowledges that a court may conform the pleadings to the evidence at the summary
judgment stage even where there has been no formal motion by the parties. Molex Inc. v. Wyler,
No. 04-C-1715, 2005 WL 497812, at *2 (N.D. Ill. Feb. 17, 2005) (citations omitted). As such,
the Court will also consider whether Defendant Brown violated Plaintiff’s Eighth Amendment
rights in failing to ensure Plaintiff had an operable hearing aid after his was allegedly destroyed in
2019.
“[A] prison official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and disregards an excessive
risk to inmate health or safety; the 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 that inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the context of medical claims brought under
the Eighth Amendment, a plaintiff must show that his medical condition was “objectively,
sufficiently serious” and second, that the “prison officials acted with a sufficiently culpable state
of mind.” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (citations and quotation marks
omitted). In that same vein, courts evaluating claims of unconstitutional conditions of
confinement must consider: (1) whether the defendant prison officials acted with the requisite state
of mind (the subjective component) and (2) whether the alleged deprivations were sufficiently
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serious to rise to the level of a constitutional violation (the objective component). Wilson v.
Seiter, 501 U.S. 294, 298 (1991).
In this instance, Plaintiff’s Eighth Amendment claims in Counts One and Two fail as there
is no evidence by which a reasonable jury could find Defendant Brown acted with a “sufficiently
culpable state of mind” in her handling of Plaintiff’s hearing aid issues.
The Court acknowledges the record is replete with instances in which Plaintiff requested
hearing aid batteries or filters, or an entire replacement hearing aid. Indeed, taking Plaintiff at his
word, hearing aids require significant upkeep insofar as the batteries and earwax filters may need
to be replaced up to once per week. While Plaintiff was at Pinckneyville, it appears he
experienced some issues receiving hearing aid batteries and earwax filters, having at least three
occasions where batteries were not available immediately upon demand, and one occasion where
Plaintiff was made to wait about one month before a repair related to his earwax filter was
completed. There is no evidence, however, that these delays amounted to deliberate indifference
or an unconstitutional condition of confinement; or moreover, that Defendant Brown was culpable
under the Eighth Amendment in what actions she took or failed to take to respond to the same.
Plaintiff testified he requested batteries from Defendant in-person and through kites, but he failed
to identify when these requests were made or how long he was made to wait for a battery in
response to any particular request. As such, the Court cannot attribute any significant delay in
Plaintiff’s receipt of hearing aid batteries to Brown.
With regard to the earwax filter, there is evidence Defendant Brown was advised of
Plaintiff’s issues with same on April 12, 2018. However, there is no evidence Defendant had the
ability to order earwax filters; rather, the evidence establishes the request needed to go through
collegial review. Ultimately, Plaintiff’s hearing aid was sent out for repairs to address issues with
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the filter on May 7, 2018. Although it was not returned to Plaintiff until June 14, 2018, there is
no evidence Defendant had any control over the timeliness of the repair.
Finally, Plaintiff contends Defendant’s failure to ensure he had an operable hearing aid
from February 3, 2019 through June 28, 20193 was deliberately indifferent insofar as Defendant
did not provide Plaintiff any additional assistance during this time. Again, while it may have
taken an extended period of time for Plaintiff to receive a new hearing aid in 2019, there is no
evidence Defendant Brown had any control over the process or the vendor that ultimately supplied
said hearing aid. Further, Plaintiff’s claim that Defendant failed to provide any additional
assistance during this time is contradicted by the record, including Plaintiff’s own testimony that
he had a vibrating watch during this time and he used the same to alert him for chow time (Doc.
182-1 at 11).
Insofar as Plaintiff attempts to hold Defendant accountable for her staff member’s failure
to timely provide batteries or the like, there is no respondeat superior liability for government
officials under § 1983 and Defendant cannot be held liable under such a theory.
For these reasons, the Court finds no reasonable jury could find Defendant Brown acted
with the requisite state of mind to substantiate an Eighth Amendment violation of either deliberate
indifference or unconstitutional conditions of confinement. Defendant Brown is entitled to
summary judgment on Counts One and Two of Plaintiff’s Second Amended Complaint.
Count Three
In Count Three, Plaintiff alleges Defendant Brown violated the Eighth Amendment by
3 Plaintiff failed to set forth any evidence showing Plaintiff received his hearing aid back on June 28, 2019, and
Plaintiff’s citation to the record does not support this fact. In any event, the particular date on which Plaintiff’s new
hearing aid was issued is not dispositive.
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refusing Plaintiff ADA accommodations as a hearing-impaired inmate.
In this Count, Plaintiff equates any deviation from the ADA Communication Plan drafted
in 2014 at another institution as deliberate indifference. This is not the standard under the Eighth
Amendment. The question is whether Defendant Brown’s failure to provide certain ADA
accommodations violated the Eighth Amendment. Plaintiff has failed to set forth any evidence
by which a reasonable jury could make such a determination. At all times relevant, the evidence
establishes Plaintiff had at least one accommodative device, including a hearing aid, a vibrating
watch, or headphones. Although Plaintiff was apparently frustrated with the timeliness of receipt
of certain accommodations, such as a “hard of hearing” cell door sign, the only evidence
concerning Defendant’s involvement with this accommodation was her approval of the same.
Simply put, there is no evidence demonstrating Defendant Brown disregarded a substantial risk to
Plaintiff’s health or safety in her handling of accommodations for Plaintiff’s hearing impairment.
For these reasons, Defendant Brown is entitled to summary judgment on Count Three.
Conclusion
Based on the foregoing, Defendant Brown’s Motion for Summary Judgment (Doc. 181) is
GRANTED. The Clerk of Court is directed to enter judgment in favor of Defendant Christine
Brown and against Plaintiff Joe Price, and close this case.
IT IS SO ORDERED.
DATED: March 9, 2023
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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