Sipp v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DANIEL SIPP,

Plaintiff,

v. Case No. 18-cv-2141-NJR

ALFONSO DAVID, JOHN COE,

STEPHEN RITZ, and ROB JEFFERYS,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on motions for summary judgment filed by Defendants

Alfonso David, John Coe, Stephen Ritz (Docs. 116, 117), and Rob Jeffreys (Docs. 120, 121).

Plaintiff Daniel Sipp filed a consolidated response to both motions (Doc. 133, 134).

Defendants David, Coe, and Ritz filed a reply brief (Doc. 135).

BACKGROUND

On December 4, 2018, Plaintiff Daniel Sipp, through counsel, filed a Complaint

alleging deliberate indifference in the treatment of his Achilles tendon injury while he was

an inmate of the Illinois Department of Corrections (“IDOC”) at Vienna Correctional Center

(“Vienna”) (Doc. 1). Sipp was no longer incarcerated at the time he filed his Complaint. On

December 10, 2021, Sipp filed his Third Amended Complaint, alleging the following counts:

Count 1: Eighth Amendment deliberate indifference claim against

Alfonso David, Stephen Ritz, and John Coe for the failure to

provide proper treatment for his injury.

Count 2: Rehabilitation Act (“RA”), 29 U.S.C. § 794, et seq., claim against

Rob Jeffreys (official capacity) for failing to provide Sipp with

reasonable accommodations in light of his injury.

Count 3: Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et

seq., claim against Rob Jeffreys (official capacity) for failing to

provide Sipp with reasonable accommodations in light of his

injury.

(Doc. 107).

A. Initial Injury and Care

On December 8, 2016, Sipp reported to the medical staff that he injured his ankle while

playing basketball (Doc. 117-6, p. 24). He was jumping and was pulled out of the air onto the

ground, with all of his weight and two other players’ weight, on his foot (Id.). Two inmates

carried Sipp to the door, and a van took him to the medical unit (Id. at pp. 58-59). Sipp was

first examined by Nurse Winters, who noted a deformity in his Achilles tendon (Doc. 117-1,

p. 24). She noted a moderate amount of swelling, and Sipp was unable to put pressure on the

foot or move his ankle from side to side (Id.). Sipp testified that Winters told him the tendon

was torn (Doc. 117-6, p. 61). Winters referred Sipp to Dr. Alfonso David for further care

(Doc. 117-1, p. 24). Winters called Dr. David because he was on call for Vienna and worked

there one day a week. Vienna was without a medical director at the time (Doc. 117-2, pp. 8,

14). He made recommendations over the phone (Id.). Sipp was provided with an ace wrap,

crutches, and ibuprofen. He was directed to apply ice, elevate the ankle, and not to bear

weight on the ankle (Doc. 117-1, p. 24). He was also sent for an X-ray (Id.). The X-ray showed

no fracture or dislocation (Id. at pp. 25, 250).

The following day, December 9, 2016, Dr. David saw Sipp in person (Docs. 117-2, p. 30;

117-1, p. 27). Generally, Dr. David’s practice was to review the chart before seeing a new

patient (Doc. 117-2, pp. 70, 74). Sipp indicated that the ankle was better, but he could not bear

weight on it (Doc. 117-1, pp. 26-27). Dr. David testified that he did not write in his notes

whether the nurse noted a deformity in the Achilles tendon (Doc. 117-2, p. 74). He examined

Sipp and noted slight edema, tenderness, but no bruising and no deformity (Docs. 117-1,

p. 27; 117-2, pp. 75-76). Dr. David ordered to continue use of crutches with no weight bearing

on the ankle (Doc. 117-2, pp. 76-77). He also ordered a low bunk, low gallery permit (Id.).

Dr. David testified that he was not entirely clear of the exact injury; he had not ruled out a

fracture—the X-ray results were pending (Id. at p. 79, 84, 90). He did not observe a deformity

(Id. at pp. 76, 90-91, 93, 98-99). Dr. David testified that because he saw Sipp the day after his

injury and there was some degree of swelling, the swelling may have prevented him from

palpating the deformity (Id. at pp. 98-99, 100). Sipp testified that the first doctor—on

December 8, 2016—told him he would need surgery and that he could see a disfigurement in

his leg (Doc. 117-6, pp. 27-28).

Dr. David ordered Sipp to continue using crutches and refrain from bearing weight

on the ankle (Doc. 117-1, p. 27). He also continued the order for ibuprofen and issued a low

bunk, low gallery permit for one month (Id.). He indicated that medical staff would schedule

a follow-up appointment for one week or whenever the X-ray results were received (Id.).

On December 13, 2016, the healthcare unit received the X-ray report, which showed

no fracture or dislocation (Doc. 117-1, p. 250). Sipp next saw Dr. Coe in the healthcare unit on

December 16, 2016 (Id. at p. 28). Dr. Coe noted swelling and a deep indentation at his Achilles

tendon (Id. at pp. 28, 143; Doc. 117-3, pp. 13-14). Dr. Coe diagnosed Sipp with a torn Achilles

tendon. He placed the ankle in a brace and provided Sipp with ibuprofen for pain (Id. at

p. 28). He also submitted a request for the collegial review board—a board of doctors who

review and approve medical requests—for an orthopedic evaluation (Id. at pp. 28, 143;

Doc. 117-3, p. 14, 16). The request for collegial review was not marked urgent (Doc. 117-1,

p. 143). Dr. Coe testified that his normal practice at the prison was to send inmates with torn

Achilles tendons to the orthopedic surgeon for evaluation, and the specialist could determine

what additional tests, including an ultrasound, were needed (Doc. 117-3, p. 18).

Dr. Coe did not mark the request as urgent because the injury had occurred the week

before and Sipp would need specialty care (Id. at p. 20). He would not have marked it urgent

even if he had seen Sipp the day of the injury (Id.). There were three types of referrals for

collegial review: emergency, urgent, and non-urgent (Doc. 117-4, p. 21). An emergency

requires no referral and was for “true 911 emergencies” (Id.). Urgent requests for referrals

were usually processed within the same business day but could be reviewed up to 36 or 48

hours after the request (Id.). According to Dr. Coe, marking it urgent also would have

triggered a phone call to the collegial review board (Doc. 117-3, p. 19). A non-urgent request

would be discussed at the regularly scheduled collegial review meeting, which generally took

place weekly (Docs. 117-3, p. 19; 117-4, p. 21). Dr. Coe believed the request would be reviewed

within a week, and the off-site visit would be arranged soon after (Doc. 117-3, pp. 19-20).

The referral request went to Dr. Stephen Ritz, the corporate medical director for

Wexford Health Sources, Inc., who conducted utilization management (Doc. 117-4, pp. 13-

14). Dr. Ritz testified that utilization management “looks at the determination of medical

necessity and clinical appropriateness of the utilization of medical services.” (Id. at p. 15). In

reviewing Dr. Coe’s request for an evaluation by an orthopedic surgeon, Dr. Ritz

recommended an alternative treatment plan of obtaining an ultrasound of the Achilles

tendon to determine definitively the nature of the injury (Docs. 117-1, p. 142, 144; 117-4, p. 48).

The referral to a surgeon was deferred pending the results of the ultrasound (Doc. 117-4,

p. 48). Dr. Ritz testified that generally the primary care physician would evaluate and

determine if the Achilles tendon was injured, including through exams and advanced

imaging studies, before sending an individual to a specialist (Id. at pp. 75-76).

On December 23, 2016, Dr. David again saw Sipp for his injury (Doc. 117-1, p. 31). He

noted the ankle was still tender; he also noted a depression in the tendon (Id.; Doc. 117-2,

p. 98). He referred Sipp for an ultrasound of the tendon and submitted a collegial review

request for the ultrasound (Doc. 117-1, p. 31). On January 17, 2017, Sipp received an

ultrasound of his tendon (Id. at p. 34). The ultrasound showed that the tendon was completely

torn and retracted (Id. at p. 140). On January 25, 2017, Dr. Coe had a follow-up visit with Sipp

(Id. at p. 37). He noted Sipp had a complete tear of the tendon and submitted a request to the

collegial review board for an orthopedic referral (Id.; Doc. 117-3, p. 33). He informed Sipp

that he should use his crutches rigorously until the referral (Doc. 117-3, p. 33).

On February 13, 2017, Sipp met with Dr. Coe and complained about having to come

to the healthcare unit every week to undergo inspection of his crutches (Doc. 117-1, p. 39).

According to Sipp, the inspections were part of a safety measure to ensure an inmate was not

making a weapon out of the crutches (Doc. 117-6, pp. 99-100). Sipp grew tired of walking

from his unit on crutches to the healthcare unit for the inspections (Id.). He testified it was a

mile walk, and he could not keep doing it (Id.). Sipp was informed of the increased risk of

damage to his tendon without the crutches, but he insisted that he did not want to keep

coming back for inspections (Doc. 117-1, p. 39). The crutches were discontinued per Sipp’s

signed refusal (Id.). On February 16, 2018, he complained to the nurse of 10 out of 10 pain in

his tendon and requested the return of his crutches (Id. at p. 41). Dr. Coe saw Sipp that same

day and reinstated Sipp’s crutches (Id. at p. 42). He also noted that Sipp was approved for an

orthopedic consult, but the appointment had not yet been scheduled (Id.). A note made in the

medical record later that same day indicated that Sipp was scheduled for a consult for

February 20, 2017 (Id. at p. 43).

On February 20, 2017, Sipp first met with Dr. Mike Davis at Orthopedic Institute of

Southern Illinois (Doc. 117-5, p. 5). Dr. Davis reviewed the ultrasound results and discussed

treatment options (Id. at p. 6). He diagnosed Sipp with a left Achilles tendon rupture/tear.

He explained the risks and benefits of surgery, and Sipp chose to proceed with a repair of the

torn tendon (Id.). He was provided with a boot until surgery was approved (Id. at p. 4). The

referral for surgery was submitted to the collegial review board on February 24, 2017, and

approved on March 1, 2017 (Doc. 117-1, pp. 48, 151).

On March 16, 2017, Dr. Davis’s office informed the healthcare unit that Dr. Davis

wanted to discuss the case with another specialist before setting a surgery date (Doc. 117-1,

p. 50). The nurse from Dr. Davis’s office indicated she would call back the next week with

more information. On March 28, 2017, Dr. Flowers, another physician at Vienna, contacted

Dr. Davis’s office for an update (Id. at p. 51). Dr. Flowers contacted Dr. Davis’s office again

on March 30, 2017, and was informed the specialists were still discussing the case (Id.). On

March 31, 2017, Dr. Davis’s office contacted Dr. Flowers. They indicated that Dr. Wood would

be conducting the surgery and wanted to see Sipp for an evaluation before scheduling the

surgery (Id. at p. 52). The appointment was scheduled for April 17, 2017 (Id.).

On April 17, 2017, Sipp met with Dr. Wood (Doc. 117-5, pp. 8-9). His examination

indicated a rupture of the Achilles tendon with weakness in the plantarflexion (Id. at p. 9).

He noted mild to moderate swelling (Id.). He ordered X-rays and ultimately diagnosed Sipp

with a chronic Achilles tendon rupture (Id. at pp. 9-10). Dr. Wood recommended an Achilles

tendon reconstruction (Id. at p. 10). Dr. Wood noted that reconstruction was recommended

“[g]iven the chronicity of the element and its lack of improvement with time.” (Id.).

Dr. Wood scheduled the ankle reconstruction for April 28, 2017 (Doc. 117-1, p. 60). Dr.

Wood later rescheduled the surgery for May 12, 2017 (Id.). On May 12, 2017, Dr. Wood

conducted the Achilles tendon reconstruction (Doc. 117-5, p. 1). On June 1, 2017, Sipp had a

follow-up visit with Dr. Wood (Id. at p. 18). The incision looked good, and Sipp was directed

to keep his leg elevated and be non-weight bearing (Id.). Sipp had another follow-up visit on

June 12, 2017 (Id. at p. 19). He was directed to wear a boot with heel lifts and could proceed

to 1/3 weight bearing after two weeks (Id.). He could then remove one heel lift and advance

weight bearing weekly over a three-week period (Id.). Sipp’s next follow-up appointment

with Dr. Wood occurred on July 10, 2017 (Id. at pp. 20-22). At that point, Sipp was eight weeks

post-surgery and was partial weightbearing with the assistance of a crutch (Id. at p. 20). He

had no new complaints (Id.). Dr. Wood noted the wound was well healed, and Sipp

demonstrated “good resisted plantarflexion strength” (Id. at p. 21). Dr. Wood noted a normal

neurovascular exam; Sipp’s skin was normal color, warm, and dry (Id. at p. 21). The records

note that Sipp’s condition was progressing well. He was directed to advance to full

weightbearing in his boot without heel lifts. Sipp could also wean off the crutches and

advance to regular athletic shoes after two weeks (Id.). Sipp was advised to avoid any

jumping, running, or basketball for six months (Id.).

On August 24, 2017, Dr. David submitted a request for another orthopedic

consultation due to Sipp’s continued pain, swelling, and tenderness (Doc. 117-1, pp. 178-79,

186). The referral was approved, and Sipp saw Dr. Wood on October 12, 2017 (Doc. 117-5,

p. 23). Sipp indicated that he had continued discomfort but it was less than previously noted

(Id.). Dr. Wood noted that Sipp was ambulating without assistance and his wound was well

healed with no evidence of infection (Id. at p. 24). Dr. Wood noted that he expected Sipp to

continue to improve over the next year and that he could advance to other activities as

tolerated (Id.).

Sipp paroled from IDOC custody in January 2018 (Doc. 117-6, p. 140). He testified that

his ankle is still tight, he still experiences pain, he is physically not able to run or participate

in activities like he used to before his injury, and that his muscle does not have the same

strength (Id. at pp. 16-17, 22). He does not use any assistive devices but does occasionally use

an ACE wrap (Id. at p. 20). He has not seen a doctor since being paroled (Id. at pp. 19-20).

B. Expert Testimony

1. Dr. Cannestra

Both Sipp and the medical defendants offered expert testimony. Sipp’s expert,

Dr. Vincent Cannestra, is an orthopedic surgeon with Fox Valley Orthopedic Associates

(Doc. 117-7, p. 9). Dr. Cannestra testified in his practice he performed one to two Achilles

tendon repairs a year (Id. at pp. 8-9). As to Sipp’s injury, Dr. Cannestra testified that he

believed Sipp had a full tear of his Achilles tendon on December 8, 2016, given the manner in

which he injured his ankle and the physical exam findings (Id. at p. 5).

Dr. Cannestra could not say whether the gap in Sipp’s tendon worsened between the

time of the injury and the date of the ultrasound (Id. at pp. 18-19). When Sipp injured his

ankle on December 8, 2016, Dr. Cannestra acknowledged that the nature of Sipp’s injury had

not yet been identified (Id. at pp. 20-21). He testified that, in his opinion, Dr. David’s orders

when he received the call from the nurse about Sipp’s injuries were appropriate. This

included the orders to wrap the ankle, ice and elevate it, and use a crutch in order to be non-

weightbearing (Id. at pp. 19-21). He further acknowledged that swelling could mask issues

with the Achilles tendon (Id. at p. 23). He testified that Dr. David made no comment in his

record about the integrity of the Achilles tendon, the range of motion or weakness of the

ankle, or any indention in the tendon (Id. at pp. 27-28). He further testified that when Dr. Coe

saw Sipp on December 16, 2016, he diagnosed Sipp with a tendon injury, placed a brace to

immobilize the ankle, and submitted a request for a referral to an orthopedic surgeon, which

Dr. Cannestra testified was appropriate (Id. at pp. 37-38).

As to the request for ultrasound, Dr. Cannestra acknowledged that it is one of the tools

for identifying an Achilles tendon injury, although not the best tool (Id. at pp. 38-39). He

acknowledged that both magnetic resonance imaging (“MRI”) 1 and ultrasound are

appropriate diagnostic tools (Id. at p. 39). He also referred to an MRI as the gold standard in

diagnosing Achilles tendon injuries (Id. at pp. 39-40). He agreed that an ultrasound could also

be used (Id. at p. 41).

Dr. Cannestra believed that Sipp’s injury was an urgent condition which needed an

ultrasound immediately (Id. p. 69). It took six weeks after the injury to obtain an ultrasound

(Id.). He testified that he believed Sipp should have seen an orthopedic surgeon within three

weeks of his injury (Id. at p. 85). Dr. Cannestra testified that the longer surgery is delayed, a

repair becomes less possible, and a reconstruction of the tendon is needed (Id. at pp. 88-89,

92). According to Dr. Cannestra, surgery should be pursued as soon as possible, with three

weeks being the optimal time for surgery (Id. at p. 85, 88). He testified that approximately

three months after an injury, a patient is no longer a candidate for repair (Id. at pp. 55-56). He

believed that Dr. Coe should have marked “urgent” on the referral form in order for Sipp to

receive a timely imaging study (Id. at p. 87).

1 MRIs capture soft tissue images, while X-rays provide a good view of bones but not soft tissue or inflammation

2. Dr. Doser

The medical defendants’ expert, Dr. Brandon Doser, is a licensed physician who has

completed a residency and orthopedic fellowship in treatment of the foot and ankle

(Doc. 117-8, p. 51). At the time of his deposition testimony, he was not yet board-certified but

was expecting his certification (Id.). He has performed numerous Achilles tendon surgeries—

approximately one rupture repair a week (Id. at p. 7). He testified approximately 25% of

ruptures require reconstruction, including additional Achilles lengthening and tendon

transfers (Id. at p. 8). Dr. Doser testified that on a 1.7 centimeter gap, the gap in the rupture

Sipp experienced, a repair rather than a reconstruction can be completed most of the time

during the acute phase, or within six weeks of the injury (Id. at p. 10). It is Dr. Doser’s personal

goal in his practice to conduct surgery within six weeks of the injury (Id. at pp. 34-35). Even

if seen within six weeks, if the tendons are too damaged and frayed, then it would require a

reconstruction (Id. at p. 10). It depends on the degeneration of the tendon (Id. at pp. 42-43).

Sometimes an end-to-end repair can be done after six weeks, when the injury goes from acute

to chronic (Id.). Dr. Doser testified that the delay caused by the orthopedic group’s scheduling

of the surgery made an end-to-end repair much less likely to occur (Id. at pp. 52-53).

Dr. Doser was not able to determine the state of Sipp’s injury based on the materials

provided (Id. at pp. 11-12). He testified it was always a judgment call as to whether a rupture

required a repair or reconstruction no matter when the injury occurred, and he could not

determine whether Sipp would have only needed a repair if he had been seen by a specialist

earlier (Id. at p. 44). When a patient is presented with a suspected Achilles rupture, Dr. Doser

testified that he would immobilize the ankle, direct the individual to be non-weightbearing,

and order additional imaging—almost always an MRI (Id. at p. 21). According to Dr. Doser,

an MRI is the gold standard for determining injuries, but Dr. Doser also testified that an

ultrasound was an acceptable form of determining injuries (Id. at pp. 19-20).

As to the initial injury, Dr. Doser testified that there would be an indentation in the

calf or ankle in the weeks following the injury (Id. at p. 26). He testified, however, that it

would not be immediately palpable due to swelling (Id.). Although it could be possible for

there to be an indentation, whether one could feel the injury would depend on the amount

of swelling (Id.). Feeling an indentation in the calf would normally be a good sign of a

ruptured tendon (Id. at p. 27). Although Dr. Doser noted that the nurse indicated an

indentation in Sipp’s leg the first day, as a treating physician he would want to see it and feel

it himself before determining whether there was actually an issue with the tendon (Id. at

pp. 27-28). Dr. Doser testified that when he sees a patient with an ankle injury, he first obtains

an X-ray. If the X-ray is fine, he begins looking for a soft tissue injury (Id. at p. 30). If the injury

appears severe, showing signs of extreme pain, edema, and bruising, then he would usually

obtain an MRI (Id.). As to the decision to obtain an ultrasound of Sipp’s tendon, Dr. Doser

testified that when dealing with an Achilles injury, the more imaging and information

regarding the area is better for treatment (Id. at pp. 32-33).

C. ADA and RA Accommodations

When Dr. David first examined Sipp, he put him on a non-weightbearing restriction

and gave him a medical order for a low bunk, low gallery permit (Doc. 117-1, p. 27). Tammy

Stevens, the healthcare unit administrator at Vienna, testified that when a doctor issues the

low bunk, low gallery permit, the nurse would take the order and hand it to the assignment

office (Doc. 133-1, p. 19). Ryan McClellan, a correctional and assignment officer at Vienna,

also testified that the medical providers would provide the permits, but officers also had the

ability to call the medical records office because a copy was also kept in an individual’s

medical file (Doc. 133-2, pp. 14-16). Once the permit was received, the assignment officer

would obtain the proper placement for the individual (Id. at p. 14).

Despite having a permit, Sipp testified that he was told by correctional officers that

they lacked proof of his permits (Doc. 133-4, p. 2). He was told to wait and informed the issue

would eventually be resolved (Doc. 117-6, p. 183). It never was resolved (Id. at pp. 183-84).

Thus, he was housed in an upper gallery until he suffered a fall in April 2017 (Id. pp. 146-48).

Climbing to the upper galleries was extremely painful and exhausted Sipp’s arms due

to having to use the crutches (Doc. 133-4, p. 2). He also had to make weekly visits to the

healthcare unit for inspections of his crutches—and later his boot (Id. at pp. 2-3). The walk

took him approximately 45 minutes with his crutches, and he often made the walk in the dark

and in cold weather (Id.). He testified that the walks were painful and exhausting. Further,

even with the walking boot, short distances were difficult, and he would have to stop often

(Doc. 117-6, p. 71). Although he complained to correctional officers that he should not be

required to make the long trek to the healthcare unit for inspections, he testified that he

received no other assistance for the checks (Doc. 133-4, p. 3). He also asked correctional

officers to hold the inspections in his own housing unit but was told the request was not

possible (Id.).

Michelle Morgan, an administrative assistant to the chief administrative officer at

Vienna in charge of policies and internal audits, testified that she was not familiar with the

policy regarding low bunk, low gallery assignments but did work with inmates with

disabilities (Doc. 133-5, pp. 7-8, 10-11). When she received a request for an accommodation,

she met with the individual to discuss the disability and the accommodation needed (Id. at

p. 11). She testified that the prison did not make accommodations for temporary disabilities

unless the offender requested an accommodation (Id. at p. 12). She was not aware of a medical

provider requesting an ADA accommodation for an offender, nor did she recall an inmate

ever asking for an accommodation because he used crutches (Id. at pp. 12, 14). She was not

aware of any policies regarding security checks of medical equipment (Id. at p. 22).

LEGAL STANDARDS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary

judgment is appropriate if the movant shows that there is no genuine dispute as to any

material fact and that the movant is entitled to judgment as a matter of law. Archdiocese of

Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014), citing FED. R. CIV. P. 56(a). Accord

Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of material fact remains

“if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord Bunn v. Khoury Enter.,

Inc., 753 F.3d 676, 681-82 (7th Cir. 2014).

In assessing a summary judgment motion, a district court views the facts in the light

most favorable to, and draws all reasonable inferences in favor of, the nonmoving party.

Anderson, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). As the

Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by examining

the evidence in the light reasonably most favorable to the non-moving party, giving [him]

the benefit of reasonable, favorable inferences and resolving conflicts in the evidence in [his]

favor.” Spaine v. Community Contacts, Inc., 756 F.3d 542 (7th Cir. 2014).

B. Deliberate Indifference

Prison officials violate the Eighth Amendment’s proscription against “cruel and

unusual punishments” if they display deliberate indifference to an inmate’s serious medical

needs. Greeno v. Daley, 414 F.3d 645, 652–53 (7th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S.

97, 104 (1976) (internal quotation marks omitted)). Accord Rodriguez v. Plymouth Ambulance

Serv., 577 F.3d 816, 828 (7th Cir. 2009) (“[D]eliberate indifference to serious medical needs of

a prisoner constitutes the unnecessary and wanton infliction of pain forbidden by the

Constitution.”). 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).

To prevail, a prisoner who brings an Eighth Amendment challenge of constitutionally

deficient medical care must satisfy a two-part test. Arnett v. Webster, 658 F.3d 742, 750 (7th

Cir. 2011) (citing Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006)). The first prong that must

be satisfied is whether the prisoner has shown he has an objectively serious medical need.

Arnett, 658 F.3d at 750. Accord Greeno, 414 F.3d at 653. A medical condition need not be life-

threatening to be serious; rather, it could be a condition that would result in further

significant injury or unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy,

593 F.3d 610, 620 (7th Cir. 2010). Accord Farmer v. Brennan, 511 U.S. 825, 828 (1994) (violating

the Eighth Amendment requires “deliberate indifference to a substantial risk of serious

harm.”) (internal quotation marks omitted) (emphasis added).

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

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

Greeno, 414 F.3d at 653. A plaintiff need not show the individual literally ignored his

complaint, just that the individual was aware of the serious medical condition and either

knowingly or recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008).

ANALYSIS

A. Deliberate Indifference

The medical defendants do not dispute that Sipp suffered from a serious medical

condition. Instead, they argue, when viewing the facts in the light most favorable to Sipp,

there is no evidence to suggest that Defendants acted with deliberate indifference. See Stewart

v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th Cir. 2021) (The court’s “assigned task is

to take the facts in the light most favorable to the non-moving party.”).

1. Dr. David

Simply put, there is no evidence to suggest that Dr. David acted with deliberate

indifference in diagnosing Sipp’s injury. Sipp first presented to the healthcare unit on

December 8, 2016. The nurse noted an injury from playing basketball and documented a

deformity in the Achilles tendon (Doc. 117-1, p. 24). Dr. David was not at the facility but

relayed orders to the nurse over the phone. He ordered that Sipp’s ankle be wrapped, iced

and elevated, that Sipp be provided pain medication and crutches to be non-weightbearing,

and kept him in the infirmary so that he could be monitored. Dr. Cannestra testified these

initial actions by Dr. David, who had not yet seen Sipp’s injury, were appropriate (Doc. 117-

7, pp. 19-21).

Dr. David did not examine Sipp in-person until the next day, December 9, 2016.

Dr. David noted no deformity in Sipp’s ankle (Doc. 117-1, p. 27). Dr. Cannestra testified that

had Dr. David done an adequate exam, the Achilles tendon rupture should have been

obvious to any physician (Doc. 117-7, p. 94). He believed that a proper examination was not

completed because Dr. David did not document the integrity of the tendon, range of motion

of the ankle, any weakness of the ankle, and any indentations in the tendon (Doc. 117-7, p. 27).

Dr. David only documented that there was no deformity in the tendon.

But Dr. Cannestra acknowledged that swelling at the site could mask issues with the

Achilles tendon, and that a doctor could disagree with a nurse’s initial diagnosis (Id. at pp. 22-

23). Defendants’ expert, Dr. Doser, also acknowledged that swelling could make palpitating

the injury to the tendon difficult (Doc. 117-8, p. 26). Dr. Doser further noted that although the

nurse indicated an indentation in Sipp’s leg the first day, as a treating physician, he would

want to see it and feel it himself before determining whether there was an actual injury to the

tendon (Id. at pp. 27-28).

Although the nurse had noted a deformity at the Achilles tendon (Doc. 117-1, p. 24),

Dr. David noted that he found no deformity during his examination (Id. at p. 27). Sipp did

testify that the first doctor he saw on December 8, 2016, noted a disfigurement and stated he

would need surgery (Doc. 117-6, pp. 27-28), but Sipp did not see Dr. David until December

9, 2016. Dr. David testified he saw no deformity and that there was a degree of swelling that

might have prevented him from feeling the tendon (Doc. 117-2, pp. 98-99). He was not quite

sure of the exact nature of the injury and wanted to rule out a fracture, but the X-ray results

were not ready for review (Id. at pp. 79, 84, 90). He directed Sipp to continue to refrain from

bearing weight on the ankle until Dr. David received the X-ray report (Doc. 117-1, p. 27).

At most, Dr. David’s failure to diagnose the injury to the Achilles tendon amounted

to negligence. Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016). Although Dr. Cannestra

described Dr. David’s examination as “mediocre,” Dr. David did examine Sipp and sought

additional testing (Doc. 117-7, pp. 35-36). There is no evidence to suggest that Dr. David

inexplicably delayed care for Sipp as he was waiting for the X-ray to rule out a fracture. Even

when taking the facts in the light most favorable to Sipp and assuming that Dr. David told

Sipp he would need surgery, there is no evidence to suggest that his decision to await the X-

ray results was a substantial departure from professional judgment or practice. When “the

evidence shows that a decision was based on medical judgment, a jury may not find

deliberate indifference, even if other professionals would have handled the situation

differently.” Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 241 (7th Cir. 2021); Petties, 836

F.3d at 729 (“[E]vidence that some medical professionals would have chosen a different course

of treatment is insufficient to make out a constitutional claim.”). Although Dr. Cannestra

testified that he believed Dr. David could have diagnosed the injury, he acknowledged that

swelling of the ankle might prevent a treating physician from immediately identifying a

tendon injury. He further acknowledged that an X-ray was an appropriate tool to rule out

a fracture (Doc. 117-7, p. 34). Dr. Doser also testified that when he first sees a patient with a

suspected injury, the patient is X-rayed to rule out a fracture (Doc. 117-8, p. 30). There is

simply no evidence from which a jury could find that Dr. David’s decision to wait for the X-

ray results, while continuing with the care and instructions already ordered the day before,

amounted to deliberate indifference. Given the expert testimony, the decision was not “so far

afield of accepted professional standards” to suggest it was not based on medical judgment.

Dean, 18 F.4th at 241 (quoting Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006)). Thus,

Dr. David is entitled to summary judgment.

2. Dr. Coe

Turning to Dr. Coe, Sipp acknowledges that Dr. Coe properly identified his injury as

a torn Achilles tendon. (Docs. 117-1, p. 28; 134, p. 23). Further, Dr. Coe submitted the request

for an orthopedic consult for collegial review (Id. at pp. 28, 143). Dr. Cannestra testified that

Dr. Coe acted appropriately in diagnosing Sipp, placing a brace, and referring the patient for

an orthopedic appointment (Doc. 117-7, pp. 37-38). Instead, Sipp takes issue with the fact that

Dr. Coe failed to mark the collegial review request as “urgent” (Doc. 117-1, p. 143). He further

maintains that Dr. Coe did not have to submit the case to the collegial review board, nor did

he have to submit Sipp for an ultrasound after receiving Dr. Ritz’s response from the collegial

review board.

Sipp makes much of the failure of Dr. Coe to mark “urgent” on the request for an

orthopedic referral. But the difference between “urgent” collegial requests and normal

referrals were a few days. Dr. Ritz testified that “urgent” requests were reviewed within 36 to

48 hours, and non-urgent requests were reviewed on a weekly basis (Doc. 117-4, p. 21). The

referral in this case was processed within six days (Doc. 117-1, p. 144). Further, at the time

Dr. Coe made the referral, Sipp was well within the three weeks that Dr. Cannestra indicated

was the optimal time for treatment and the three-month period Dr. Cannestra indicated was

the acceptable time for treating an Achilles tendon. It was also well within the six-week time

frame identified by Dr. Doser as his personal goal for repairing Achilles tendons (Doc. 117-8,

pp. 34-35).

Further, there is no evidence that Dr. Coe was involved in submitting the request for

an ultrasound to the collegial review board or in scheduling the ultrasound (Doc. 117-1,

p. 31). Nor is there any evidence to suggest that he participated in the decision to obtain an

ultrasound rather than send Sipp directly to an orthopedic surgeon. The records indicate that

Dr. Ritz reviewed Dr. Coe’s request for an orthopedic referral and ordered additional

information in the form of an ultrasound. Further, it was Dr. David, not Dr. Coe, who

examined Sipp after Dr. Ritz’s request, and referred him for an ultrasound on December 23,

2016 (Doc. 117-1, pp. 31, 145). There is no evidence to suggest that Dr. Coe participated in

Sipp’s care again before Sipp had the ultrasound on January 17, 2017. He submitted the

request for a referral well within the optimal time frame identified by both expert witnesses.

Even though he did not mark the referral as urgent, the request was reviewed well within

the acceptable time frames. Thus, Dr. Coe is also entitled to summary judgment.

3. Dr. Ritz

As to the claim against Dr. Ritz, Sipp alleges that Dr. Ritz acted with deliberate

indifference when he denied Dr. Coe’s request for Sipp to be seen by an orthopedist and,

instead, submitted him for an ultrasound. Dr. Ritz testified he sought an ultrasound to

determine the definitive nature of the injury (Doc. 117-4, p. 48). Both experts testified that an

ultrasound was an appropriate method for diagnosing an Achilles injury. But Sipp had

already been diagnosed with an indentation to the Achilles tendon (Docs. 117-1, p. 28; 117-3,

pp. 14-15). Dr. Coe testified that his impression was a torn Achilles tendon, and he put

information in the request for collegial review to indicate those findings (Doc. 117-3, p. 14).

Dr. Coe further did not see the need for any kind of imaging due to the position of the tendon

(Id. at pp. 14-15). Dr. Coe testified his experience in the prison system was that individuals

with torn Achilles tendons were sent to an orthopedic surgeon who could then decide if

further imaging was needed prior to surgery (Id. at p. 18). Dr. Cannestra testified that he had

performed tendon repairs without any imaging (Doc. 117-7, p. 48). Although Dr. Doser

testified that additional imaging was helpful (Doc. 117-8, pp. 32-33), there remains an issue

of fact as to whether the decision to seek additional imaging rather than refer Sipp directly to

the specialist was based on medical judgment. In fact, Dr. Coe testified that the decision to

seek additional imaging was not even his normal experience in the prison system.

The decision to seek an ultrasound rather than send Sipp directly to the surgeon

resulted in a delay in treatment. Sipp did not receive an ultrasound until January 17, 2017,

and he did not see the surgeon until February 20, 2017. “In cases where prison officials

delayed rather than denied medical assistance to an inmate, courts have required the plaintiff

to offer ‘verifying medical evidence’ that the delay (rather than the inmate’s underlying

condition) caused some degree of harm. That is, a plaintiff must offer medical evidence that

tends to confirm or corroborate a claim that the delay was detrimental.” Jackson v. Pollion, 733

F.3d 786, 790 (7th Cir. 2013) (internal citations omitted); Dean, 18 F.4th at 242 (a plaintiff must

show “the delay exacerbated the injury or unnecessarily prolonged pain.”).

There remains a dispute of fact as to whether the delay in this case caused harm to

Sipp. Dr. Cannestra testified that the delay resulted in Sipp having a reconstruction instead

of a repair of his tendon. He testified that a patient would no longer be a candidate for repair

three months after the injury, and the optimal time for a repair was three weeks after the

injury (Doc. 117-7, p. 54, 55-56). He could not say whether the gap in the tendon worsened

between the time of the injury and the ultrasound (Id. at pp. 18-19). Dr. Doser testified that

he was unable to determine the extent of Sipp’s injury with the materials provided (Doc. 117-

8, p. 11-12).

But the medical records from Dr. Wood indicate that he recommended a

reconstruction, rather than repair, of Sipp’s tendon due to “the chronicity of the element and

its lack of improvement with time.” (Doc. 117-5, p. 10). He also noted that the injury “occurred

quite some time ago.” (Id. at p. 8). Further, there is evidence in the record indicating Sipp was

in pain during the time before surgery, and he testified to having pain and difficulties

walking, even at the time of his deposition (Doc. 117-6, p. 23).

There remains a dispute as to whether the need for a reconstruction was caused by

the delay in Sipp seeing a surgeon or the delay after he saw the surgeon. He saw Dr. Davis

on February 20, 2017, but did not have surgery until almost three months later, on May 12,

2017 (Doc. 117-5, p. 2). But there is evidence to suggest a delay in seeing the surgeon due to

Dr. Ritz’s requirement that Sipp obtain an ultrasound prior to being referred out for care.

Thus, the Court finds that Dr. Ritz is not entitled to summary judgment at this time.

B. ADA and RA Claims

Defendant Rob Jeffreys argues that he is entitled to summary judgment on Sipp’s

ADA and RA claims. Jeffreys argues that Sipp did not have a qualifying disability and, even

if he did, he was provided reasonable accommodations.

In order to make out a prima facie case of discrimination under both the ADA and the

RA, a plaintiff must show: (1) that he suffers from a disability as defined in the statutes,

(2) that he is qualified to participate in the program in question, and (3) that he was either

excluded from participating in or denied the benefit of that program based on his disability.

Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005). The RA further requires that a

plaintiff show that the program in which he was involved received federal financial

assistance. Id. at 810 n.2; see also 29 U.S.C. § 794(a). Novak v. Bd. of Trustees of S. Ill. Univ., 777

F.3d 966, 974 (7th Cir. 2015). But the relief under both of the provisions is co-extensive, and

the analysis is the same. Jaros v. Illinois Dep’t of Corrs., 684 F.3d 667, 671 (7th Cir. 2012); King

v. Hendricks Cnty. Comm’rs, 954 F.3d 981, 988 (7th Cir. 2020) (claims under the Rehabilitation

Act are “functionally identical” to ADA and the two are considered together.).

Jeffreys first argues that Sipp did not qualify as a disabled individual for his Achilles

tendon injury. The ADA defines a disability as “a physical or mental impairment that

substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1);

see also 29 U.S.C. § 705(9)(b) (RA’s definition of disability refers to the ADA). Major life

activities under the statute “include, but are not limited to, caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,

breathing, learning, reading, concentrating, thinking, communicating, and working.”

42 U.S.C. §12102(2)(A).

Here, Sipp offers facts from which a jury could find that he qualified as a disabled

individual. An individual can be considered a disabled individual due to difficulties with

walking. See Jaros, 684 F.3d at 672 (plaintiff demonstrated he was a qualified individual due

to his difficulties walking). But “[t]o qualify as disabling, a limitation on the ability to walk

must be permanent or long term, and considerable compared to the walking most people do

in their daily lives.” Fredrickson v. United Parcel Service, Co., 581 F.3d 516, 522 (7th Cir. 2009).

The record reflects that Sipp could not use his ankle to walk directly after his injury. He was

instructed not to place weight on his ankle and was given crutches to help him walk. See

Fredrickson, 581 F.3d at 522 (citing EEOC v. Sears, Roebuck, & Co., 417 F.3d 789, 793-94, 802 (7th

Cir. 2005) (plaintiff’s neuropathy substantially limited her ability to walk where she could

not walk one city block without losing sensation in her legs, she walked with a cane and had

to balance against a wall, and she was under doctor’s orders to avoid excessive walking)).

Sipp experienced difficulties walking long distances to the chow hall and to the healthcare

unit. Even walking with crutches, he had to stop and take breaks (Doc. 117-6, pp. 104-105).

He also experienced difficulties walking the approximately one mile distance to the medical

unit for inspections, so much so that he gave up his crutches for a short time because he could

not keep making the trek with crutches (Id. at p. 99). He also testified that even walking short

distances, he had to stop and “take breathers” (Id. at p. 71). There is also some evidence from

which a jury could find that his limitations on walking were long term. Although he was able

to ambulate without assistive devices by October 2017, Sipp testified that he still experienced

difficulties walking (Id. at pp. 139-140, 23). He specifically testified that, at the time of his

deposition, he could not walk with regular movement in his stride (Id. at p. 23). He testified

that standing for a while hurt his back and caused him “a lot of pain.” (Id. at p. 22).

Jeffreys cites to Homan v. Triplett, Case No. 17-cv-4710, 2020 WL 5570039, at * 8-9 (N.D.

Ill. Sept. 17, 2020), to support his argument that Sipp was not a disabled individual. In that

case, the district court found the plaintiff was not a qualified individual because he testified

that he could walk up and down stairs on his ankle and climb up into his bunk after an Achilles

injury. But the evidence in this case demonstrates that Sipp could not use his ankle and

experienced difficulties in performing tasks such as walking up the stairs and long distances.

When he gave up his crutches for a short time, he had to hop back to the unit, stopping to

rest between hops (Doc. 117-6, p. 104). He did not put weight on his ankle during the period

without his crutches (Id.). He also experienced difficulties walking up the stairs to his gallery

and fell on April 11, 2017, injuring his back (Id. at pp. 146-147, 189). Thus, Sipp has offered

evidence from which a jury could find that his injury significantly impacted his ability to

perform everyday tasks.

Sipp also has offered evidence that he was denied access to services or programs

because of his disability. Access to meals, certain housing facilities such as showers and

toilets, and access to medical services are among the programs and activities protected by the

Acts. See Rodesky v. Wexford Health Sources, Inc., 582 F. Supp.3d 594, 601 (C.D. Ill. Aug. 19,

2020). If participating in a service or activity, such as seeking medical attention, comes with

a risk of injury, then an inmate could be denied the benefits of those services under the Acts.

Id. at 602. See also Miller v. Wisconsin Dep’t of Corrs., Case No. 08-cv-62-bbc, 2008 WL 2563154,

at * 5 (W.D. Wis. April 22, 2008) (individual could be denied services when forced to walk

long distances in severe pain to seek out prescribed medication without the use of a cane).

Sipp testified in his affidavit that walking to the upper galleries was extremely painful and

exhausted his arms because he was required to use crutches (Doc. 133-4, p. 2). He fell on one

occasion. He also had to walk, unassisted, to the healthcare unit for equipment inspections,

often in the cold and dark, on a weekly basis (Id. at pp. 2-3). Sipp sought the accommodations

of a low bunk, low gallery permit and requested to have the safety inspections conducted in

his own housing area. Although Sipp was told that the inspections were for safety and

security, Jeffreys fails to offer any evidence that the inspections had to be conducted in the

healthcare unit. Nor has he offered any evidence that the request for a lower gallery and

lower bunk was unreasonable.

Finally, Jeffreys argues that Sipp is not entitled to compensatory damages because he

failed to show intentional discrimination. In order to recover compensatory damages, an

individual must show intentional discrimination. Lacy v. Cook Cnty., Ill., 897 F.3d 847, 862 (7th

Cir. 2018). See also Strominger v. Brock, 592 F. App’x 508, 511 (7th Cir. 2014). In Lacy, the

Seventh Circuit joined with the majority of courts in finding that intentional discrimination

in a damages action can be established by showing deliberate indifference. Lacy, 897 F.3d at

863. The Seventh Circuit requires a two-part test: a plaintiff must show “both (1) ‘knowledge

that a harm to a federally protected right is substantially likely,’ and (2) ‘a failure to act upon

that likelihood.’” Lacy, 897 F.3d at 863 (quoting S.H. ex rel. Durrell v. Lower Merion School Dist.,

729 F.3d 248, 263 (3rd Cir. 2013)).

Here, there is evidence in the record of deliberate indifference. Sipp was issued a low

gallery, low bunk permit (Doc. 117-1, p. 27). Sipp testified that he informed correctional

officers and wrote grievances about his low bunk and low gallery permit (Doc. 117-6, pp. 145-

147, 182-184). But despite assignment officer McClellan’s testimony that IDOC personnel

could call to check on the permits, there is no evidence that anyone at the prison picked up a

phone to inquire about the status of Sipp’s permit (Doc. 133-2, pp. 15-16). Instead, they kept

telling him to wait, and the issue would be sorted out by staff (Doc. 117-6, pp. 183-84, 197).

When he tried to ask medical staff, they indicated that correctional officers were in charge of

bedding charts (Id. at p. 197). Sipp testified that he kept waiting for the issue to be sorted out,

but it never was, and he ended up falling down the stairs as a result of correctional officers

not acknowledging his permit (Id. at pp. 197-98). Thus, there is evidence from which a jury

could find that staff acted with deliberate indifference as to the request for a low bunk, low

gallery permit.

As to the safety checks in the healthcare unit, Sipp testified that he complained to

correctional officers that he should not be required to travel to the healthcare unit for the

checks. He asked that the checks be conducted in his housing unit but was told that was not

possible (Doc. 133-4, p. 3). But there has been no evidence from Jeffreys to indicate a safety

or security reason for having the checks in the healthcare unit, nor has he shown why it was

impossible to have the checks in the housing unit. Healthcare unit administrator Tammy

Stevens was not aware of the security checks on medical equipment (Doc. 133-1, p. 18), nor

was McClellan aware of the process of security checks for equipment (Doc. 133-2, p. 11). Thus,

there remains an issue of fact as to whether staff at Vienna acted with deliberate indifference

in failing to obtain reasonable accommodations for Sipp. Thus, Jeffreys’s motion for summary

judgment is DENIED.

CONCLUSION

For the reasons stated above, the summary judgment motion by John Coe, Alfonso

David, and Stephen Ritz is GRANTED in part and DENIED in part. Summary judgment is

GRANTED as to Dr. Coe and Dr. David but DENIED as to Dr. Ritz. Rob Jeffreys’s summary

judgment is also DENIED.

To the extent the remaining parties believe that a settlement conference would be

beneficial on the remaining claims, Defendants and Sipp are DIRECTED to file a notice with

the Court by April 17, 2023, indicating their amenability to participating in a settlement

conference. The Court will then either refer the matter for mediation or set a telephone

conference for the purpose of setting a firm trial date.

IT IS SO ORDERED.

DATED: March 20, 2023 Tl

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NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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