Torres v. Baldwin

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JUAN J. TORRES, )

)

Plaintiff, )

)

vs. ) Case No. 3:19-CV-299-MAB

)

BOBBY BLUM and ROB JEFREYS, )

in his official capacity, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on Plaintiff Juan Torres’s motion for

partial summary judgment (Doc. 105), and Defendants Bobby Blum and Rob Jeffreys’

motions for summary judgment (Docs. 106, 108).

BACKGROUND

Plaintiff Juan Torres is an inmate of the Illinois Department of Corrections and

currently incarcerated at Pinckneyville Correctional Center. In March 2019, he filed a pro

se civil rights complaint (Doc. 1). Following a threshold review of the complaint, see 28

U.S.C. § 1915A, Plaintiff was permitted to proceed on the following claims:

Count 1: Bob Blum violated the Eighth Amendment when he was

deliberately indifferent to Plaintiff’s urinary tract infection in 2018;

Count 2: The Director of IDOC violated the Americans with Disabilities Act

(“ADA”), and the Rehabilitation Act (“Rehab Act”) by failing to have

handicap accessible bathrooms on the yard.

(Doc. 8).

Plaintiff filed a motion seeking summary judgment on his ADA/Rehab Act claim

(Doc. 105). Before filing a response in opposition to Plaintiff’s motion (Doc. 116),

Defendant Rob Jeffreys filed his own motion for summary judgment on the ADA/Rehab

Act claim (Doc. 109). Plaintiff filed a response in opposition to Jeffreys’ motion for

summary judgment (Doc. 117), to which Jeffreys filed a reply (Doc. 120).

Defendant Bob Blum likewise filed a motion for summary judgment on Plaintiff’s

claim for deliberate indifference (Doc. 106; see also Doc. 107). Plaintiff filed a response in

opposition (Doc. 118), to which Defendant Blum filed a reply (Doc. 119).

FACTS

Plaintiff Juan Torres has been wheelchair-bound since 2016, due to spine issues

and weakness in his right leg (Doc. 105-1, pp. 74, 75; Doc. 105-2). Plaintiff has been

incarcerated at Pinckneyville Correctional Center (“Pinckneyville”) since December 1,

2017 (Doc. 105-1, pp. 73–74; see also Doc. 109-1, p. 1). P

A. Deliberate Indifference Claim

Plaintiff had prostate surgery in 2017 while he was incarcerated at Cook County

Jail (Doc. 107-1, pp. 10–11; Doc. 118-4). Since his surgery, Plaintiff uses a catheter to

urinate (Doc. 118-4). He must insert the catheter each time he has to urinate and then

remove it when he is finished (Id.). He also has recurrent urinary symptoms since his

surgery, such as blood in his urine, strong-smelling urine, cloudy urine, pain, burning,

and itching with urination (Id.).1 Plaintiff testified that under normal circumstances, he

urinates approximately seven times a day and inserting and removing the catheter is

painful (Id.). When he is experiencing the urinary symptoms, however, he urinates

approximately 12-13 times a day and insertion and removal of the catheter is more painful

than normal (Id.). Plaintiff testified, and medical records corroborated, that in April 2017,

when he was experiencing urinary symptoms and his urine culture was positive for

E.coli, a physician at Cook County Hospital diagnosed him with a UTI and prescribed

antibiotics (ciprofloxacin) (Doc. 118-5).

Plaintiff testified via affidavit that in January 2018, he began experiencing pain,

burning, and itching when he urinated, increased urination, and strong-smelling urine

(Doc. 118-4). On January 23, 2018, he presented to nurse sick call complaining of “burning

[with] urination” (Doc. 107-4, p. 4; see also Doc. 107-5, p. 22–23; Doc. 118-4). His vital signs

were normal with the exception of his blood pressure (Doc. 107-4, p. 4; Doc. 107-5, p. 24).

The nurse, Brenda Gale, had Plaintiff submit a urine sample and she advised him to drink

at least eight glasses of water daily (Doc. 107-4, p. 4; Doc. 107-5, p. 22; Doc. 118-4). The

urine specimen was sent off to a lab for a urinalysis and culture and sensitivity and the

nurse also had the Nurse Practitioner evaluate a urine dipstick that day (Doc. 107-4, p. 4;

Doc. 107-5, p. 22; Doc. 118-4).2 Bob Blum was the Nurse Practitioner at Pinckneyville at

1 Dr. Jasmeet Singh, and outside physician who was involved in Plaintiff’s care at Good Samaritan

Hospital, testified that individuals who self-catheterize are at increased risk of UTIs because they are

repeatedly introducing a foreign entity into the urinary tract (Doc. 107-6, p. 63).

2 Dr. Singh testified that a dipstick is “sort of a screening tool to analyze urine samples in the office” (Doc.

107-6, p. 39). The laboratory urinalysis provides a more detailed, comprehensive evaluation of a patient’s

urine sample (Id. at pp. 41–42).

this time (Doc. 107-5, p. 34). The results of the dipstick showed a couple abnormalities,

specifically, Plaintiff’s urine was positive for nitrites and had trace amounts of protein

(Doc. 107-4, p. 5; Doc. 107-5, pp. 31–32). Both NP Blum and Dr. Jasmeet Singh testified

that the positive nitrites could be a false positive and the dipstick did not definitively

identify a UTI (Doc. 107-5, pp. 34–35, 80–81; Doc. 105-6, p. 39).

NP Blum testified that a UTI is not diagnosed based on the results of a urinalysis

alone, particularly for someone like Plaintiff who is male and used catheters (Doc. 107-5,

pp. 34–35, 80–81). Dr. Singh agreed (Doc. 107-6, pp. 34–35, 39, 100–01). The medical

provider must investigate and consider the patient’s entire presentation, including the

patient’s reported urinary symptoms (such as pain or burning when urinating, increased

frequency, foul-smelling urine), a urinalysis and urine culture, and findings on physical

examination (including fever, abdominal or suprapubic tenderness, or rapid heart rate)

(Doc. 107-5, pp. 80–81, 82; Doc. 105-6, pp. 35–36, 68–100–101).

On January 26th, Plaintiff saw NP Blum (Doc. 107-4, p. 8; Doc. 107-5, p. 49). NP

Blum noted that Plaintiff had no fever (“afebrile”) or rapid heart rate (“not tachycardic”),

his abdomen was round, soft, and non-tender, he had positive bowel sounds, and negative

dysuria (Doc. 107-4, p. 8; Doc. 107-5, pp. 102–03) (emphasis added).3 NP Blum testified

that he recorded “negative dysuria” because that is what Plaintiff reported to him (Doc.

107-5, p. 67). NP Blum stated that did not diagnose Plaintiff with a UTI that day because

3 Dr. Singh testified that “dysuria” could mean “a number of things[, but] primarily it’s used to describe

painful urination” (Doc. 107-6, p. 18; see also id. at p. 68). NP Blum likewise testified that “dysuria” was

“painful urination” (Doc. 107-5. P. 29).

he “did not see a UTI at that time” (Id. at p. 68). “When he had negative dysuria, [NP

Blum] no longer believed that he had a UTI” (Id. at p. 69). But Plaintiff testified that he

does not know what “dysuria” means (Doc. 107-2, p. 64). Plaintiff said that he asked NP

Blum for the urinalysis results, Blum “checked some paper,” and then told him that he

“was positive,” which Plaintiff assumed to mean that he had a UTI (Doc. 118-4; Doc. 107-

2, pp. 39–40). Plaintiff testified that he asked Blum for antibiotics and Blum said no and

that he should continue to drink lots of water (Doc. 118-4; Doc. 107-2, p. 40). NP Blum

testified that he did not recall telling Plaintiff to drink lots of water, but he probably did

(Doc. 107-5, p. 51).

On the same day that Plaintiff saw NP Blum, the University of Illinois faxed the

results of the laboratory urinalysis to Pinckneyville (Doc. 107-4, pp. 6–7; Doc. 107-5, p.

37), but apparently the results were not received or reviewed by anyone at the prison for

several days (see Doc. 107-4, p. 9; Doc. 107-5, pp. 40–41). On January 29th, Plaintiff

requested the results of his urinalysis, but they were not yet in his chart (Doc. 107-4, p. 9).

Medical staff had possession of the results by the next day (see id. at pp. 6–7; Doc. 107-5,

pp. 39–41). The results showed that Plaintiff’s urine was indeed positive for nitrites, there

were trace amounts of protein, his white blood cells were high at 22 (normal range was

0–5), bacteria was present, as was a large amount of leukocyte esterase (Doc. 107-4, pp.

6–7). The culture showed that the bacteria was E.coli and it grew more than 100,000 CFUs

(colony form unit) (Id.; Doc. 107-6, p. 45). Dr. Singh testified that these results—namely

the presence of E.coli, the large leukocyte esterase, and the presence of nitrites—indicate

that Plaintiff had a UTI (Doc. 107-6, p. 46).

NP Blum noted on the urinalysis results that he pulled Plaintiff’s chart (Doc. 107-

4, pp. 6–7; Doc. 107-5, pp. 46, 69–70). Blum testified that he looked at everything from the

dipstick onward and concluded Plaintiff’s “problem was taken care of . . . the problem

was treated by increased water consumption” (Doc. 107-5, pp. 69–70). Blum also testified,

however, that he did not independently recall pulling Plaintiff’s chart, (Id. at pp. 70–71),

and he did not record his conclusions anywhere in Plaintiff’s chart (see Doc. 107-4). There

is also no indication that he informed Plaintiff of the results (see Doc. 107-4; Doc. 107-5,

pp. 70).

Two weeks later, on February 12th, NP Blum saw Plaintiff for a follow-up visit

regarding his blood pressure (Doc. 107-4, p. 11). His vital signs were all normal (Id.; Doc

107-5, pp. 64–65). The record does not contain any notes regarding urinary symptoms (see

Doc. 107-4, p. 11; Doc. 107-5, p. 64). NP Blum testified that if Plaintiff reported urinary

symptoms, he “believe[s]” he would have recorded those (Doc. 107-5, pp. 64–65).

Plaintiff, however, testified that he was still experiencing urinary symptoms, including

pain, burning, itching, and foul-smelling urine, and he told Blum about his continuing

symptoms, but Blum just told him to keep drinking water (Doc. 107-2, pp. 48–49; Doc.

118-4, p. 4).

On March 8th, Plaintiff had blood drawn for labs and gave a urine sample (Doc.

107-4, p. 12). Plaintiff testified that he was still having urinary symptoms at this time (Doc.

118-4). The results showed Plaintiff’s urine was now negative for proteins and nitrites

(Doc. 107-4, pp. 13–14). His white blood cells were still out of range but were down to 8

(normal range was 0–5) and the amount of leukocyte esterase was decreased to small (Id.).

E.coli bacteria was still present (Id.). On March 12th, NP Blum reviewed the urinalysis

results (Doc. 107-4, pp. 13–14; Doc. 107-5, pp. 77–78). Once again, Blum did not record his

conclusions anywhere in Plaintiff’s chart and there is also no indication that he informed

Plaintiff of the results (see Doc. 107-4). Plaintiff testified that he was never informed of the

results (Doc. 118-4).

At his deposition, NP Blum acknowledged there were abnormalities on Plaintiff’s

urinalysis, but testified they did not “rule in” or “rule out” that Plaintiff had a UTI (Doc.

107-5, pp. 78–80; see also Doc. 107-6, pp. 51, 100–01). He said he would need to examine

Plaintiff and ask if he was having symptoms to determine if he had a UTI (Doc. 107-5, pp.

81–82). There is no indication, however, that Blum attempted to follow-up with Plaintiff

(see Doc. 107-4). Dr. Singh testified similarly. She indicated that this urinalysis showed

“some abnormal values,” including a small number of leukocyte esterase, the presence of

bacteria, and a high white blood cell count (Doc. 107-6, p. 51). But other values were

negative, including nitrites (Id.). She said this urinalysis was “not definitive” and while it

“would be helpful in diagnosing [UTI] . . . by itself it’s not enough to diagnose UTI” (Id.).

She also testified that based on this urinalysis, when compared to the urinalysis from

January, shows that “the infection is getting better” (Doc. 107-6, p. 54), but was not

resolved.

According to NP Blum, the first choice of treatment for a UTI is to drink more

water (Doc. 107-5, pp. 90–91). He explained that he was taught “antibiotic stewardship,”

meaning he should be judicious when prescribing antibiotics to avoid contributing to or

exacerbating the problem of antibiotic-resistant bacteria (Id.). He testified that he would

only begin treating with antibiotics if “you become tachycardic, have a fever, [or] have

leukocytosis on your CBC” (meaning a blood draw showed elevated white blood cells)

(Id.). NP Blum does not believe antibiotics were the proper treatment for Plaintiff in

January 2018 or March 2018 (Doc. 107-5, pp. 87–88). Dr. Singh, however, testified that

antibiotics are the first line treatment for a symptomatic bacterial UTI that is confirmed

on laboratory tests (Doc. 107-6, pp. 60–64). She further testified that she would never

“prescribe just water as a treatment” for such an infection (Id. at pp. 63–64). She said water

is not a “definitive treatment” but is a supplemental recommendation that can be helpful

for a UTI but does not “necessarily treat” the UTI (Id. at pp. 61, 63).

There is no indication in the medical records that Plaintiff reported urinary

symptoms to any medical provider at the prison in March, April, or May 2018, (see Doc.

107-4), however, he testified that he was still experiencing the same symptoms (Doc. 107-

2, p. 57; Doc. 118-4). On May 16th, Plaintiff was sent to Pinckneyville Community

Hospital after he reported having chest pain (Doc. 107-8, p. 1). Notably, the doctor wrote

that Plaintiff was “negative for dysuria, frequency, and urgency.” (Id. at p. 2). On exam,

he was negative for fever but was tachycardic and had “mild abdominal tenderness” in

the periumbilical area (Id. at p. 3). A urinalysis was done and it showed Plaintiff’s urine

was cloudy, positive for trace amounts of leukocytes and blood, and had abnormal results

for white blood cells, bacteria, and crystals (Id. at pp. 4–5). Based on the results of the

urinalysis, Plaintiff was given a dose of the antibiotic levofloxacin (Levaquin) before

being transferred to Good Samaritan Hospital for further work up of his chest pain (see

id. at pp. 4, 6, 7).

At Good Samaritan Hospital, Dr. Singh examined Plaintiff upon his arrival (Doc.

107-9, p. 2; Doc. 107-6, pp. 19–20). His pulse was elevated, but he had no fever, his blood

pressure, respirations, and oxygen levels were normal, he had “no appreciable

suprapubic tenderness,” and no abdominal tenderness (Doc. 107-9, p. 2; Doc. 107-6, pp.

77–78). His blood draw showed his white blood cells were within range (see Doc. 107-9,

p. 2; see also Doc. 107-6, p. 78). Dr. Singh testified that Plaintiff did not report dysuria to

her (Doc. 107-6, pp. 76–77). No urinalysis was done, Dr. Singh did not diagnose Plaintiff

with a UTI and did not prescribe him antibiotics (Doc. 107-6, pp. 79–80). The next day, on

May 17th, a second physician saw Plaintiff and noted, in pertinent part, that Plaintiff’s

urinalysis was positive for white blood cells and bacteria but Plaintiff had no dysuria, no

trouble voiding, and no blood in his urine (“hematuria”) (Doc. 107-9, pp. 4–5). This doctor

also did not diagnose or treat Plaintiff for a UTI (see id. at p. 6). On May 18th, a nurse from

Pinckneyville Community Hospital spoke to a nurse at Good Samaritan Hospital around

11:15a.m. to inform her that Plaintiff’s urine culture had come back positive for E.coli

(Doc. 107-8, p. 8). Plaintiff then received an intravenous dose of Levofloxacin, and the

doctor ordered one subsequent oral dose of Levofloxacin (Doc. 107-9, pp. 8–10). Plaintiff

was discharged from the hospital on May 19th (Id. at p. 10). The discharge summary

indicates that Plaintiff’s hospital stay included treatment for “bladder outlet

obstruction/UTI” (Id. at p. 11). The doctor notes that Plaintiff’s “urine culture came back

positive E.coli from Pinckneyville ED. . . . He is having dysuria symptoms for past couple

months which is not the base line. He is treated with Levaquin and discharged with

Levaquin. No leukocytosis.” (Id.).

Plaintiff was given his dose of Levaquin as ordered after he arrived back at

Pinckneyville (Doc. 107-4, pp. 18–20). He testified that after he received the antibiotics, he

felt relief from the urinary symptoms that he had been experiencing since January (Doc.

118-4). According to Plaintiff, he was subsequently diagnosed with a UTI and treated

with antibiotics by a medical professional at Pinckneyville in 2019 and 2022 (Doc. 118-4).

Neither party provided medical records from those time periods.

B. ADA Claim

There are four yards at Pinckneyville (Doc. 105-3, pp. 11, 12). Major Derek Cleland

was a Shift Commander at Pinckneyville, and one of his job duties was setting up

schedules, including for the yard, the gym, and the day room (Doc. 105-3, p. 43). He

testified that inmates were assigned to yards by housing unit (Id. at pp. 25–26). For

security reasons, inmates could not request to go to a different yard (Id. at pp. 28–29). He

further testified that if an inmate did not want to go to the yard, they could stay in their

housing unit (Id. at p. 37), but they were not allowed to go to the gym instead of the yard

(Id. at p. 46).

Plaintiff is wheelchair-bound and is housed in an ADA wing at the prison and

lives in an ADA cell (Doc. 105-1, pp. 74, 75; Doc. 105-2). On August 4, 2018, Plaintiff

attended yard for the first time at Pinckneyville (Doc. 105-1, pp. 84–85; Doc. 105-2, ¶¶4,

6). His cell house wing was assigned to Yard 1 (Doc. 109-3; Doc. 105-3, p. 35). Yard 1 had

one toilet (Doc. 105-1, pp. 82, 83; Doc. 105-2, ¶6). When Plaintiff wheeled himself into the

Yard 1 restroom to use it, he could not use the toilet because there was no handicap rail

for him to use to transfer himself from the wheelchair to the toilet (Doc. 105-1, pp. 87–88;

Doc. 105-2, ¶¶8–10). Because he was unable to lift himself onto the toilet and was unable

to stop himself from having a bowel movement, he defecated in his pants in the

wheelchair (Doc. 105-2, ¶11). Plaintiff further testified, and Defendant did not dispute

(see Doc. 116; see also Doc. 120), that he had to wait in the yard for approximately one hour

and 15 minutes with feces on himself because he could not leave before yard time was

over (Doc. 105- 2, ¶¶11, 12). Defendant Rob Jeffreys, the Director of IDOC, admitted, “on

August 4, 2018, yard one did not have rails in the bathroom. Defendant admits that rails

were not installed in the yard one bathroom until August 29, 2018.” (Doc. 29, p. 3).

According to Plaintiff, he did not ask to be taken back to the cell house to use the

bathroom or after he defecated on himself because inmates were not allowed to leave the

yard until yard time was over (Doc. 105-1, p.103; Doc. 105-2, ¶12). Defendant Jeffreys,

however, asserts that Plaintiff was able to ask security staff on the yard to take him back

to the cell house to use the restroom (Doc. 109, p. 3, ¶13). Jeffreys cites to Major Cleland’s

testimony that inmates would be brought back to their housing unit “if there was a need

to bring [them] back for a medical reason or any type of reason like that” (Doc. 105-3, p.

49). Major Cleland testified that there was no specific procedure or process, written or

otherwise, for wheelchair-bound inmates to request assistance in using the bathroom on

the yard or for bringing an inmate back to the cell house from the yard (Id. p. 49, 50–51).

He said an inmate would be brought back inside only on request, and that request could

be made to the yard officer (there was one yard officer for all four yards) (Id. at pp. 50,

51). If the request was granted, the “walk staff” would bring the inmate back inside (Id.

at p. 52). When asked if inmates were notified that they could make a request to come

back to the cell house from the yard, Major Cleland did not provide a straight answer but

rather responded, “[t]here was no procedure for that. It would just be if they did request

that.” (see id. at p. 52).

After the incident on August 4, 2018, Plaintiff filed a grievance, indicating that he

was unable to use the bathroom on the yard because it was not accessible, and he soiled

himself (Doc. 105-5). He asked that the bathroom on the yard be made handicap

accessible with rails (Id.). The grievance officer’s response indicates that, per the ADA

Coordinator:

The only yard with a handicap toilet is yard 4 therefore if an offender goes

to yard in a wheel chair he needs to go to yard 4 or be allowed to go back

to his yard. . . . The offender is also offered ADA gym which is extra yard

time if he does not want to have another accident until more rails are

installed.

(Id.).

Christine Brown is the Health Care Unit Administrator and ADA Coordinator at

Pinckneyville (Doc. 105-4, p. 9–10). Her testimony on the subject of an ADA gym was

brief and not entirely clear (see id. at pp. 64–65).

Q: [F]or an offender who is in a wheelchair, would an ADA disability

accommodation include grab bars or handrails in a bathroom that the

offender could access?

A: Some patients may need handrails, but others -- some other handicaps

do not. There may be another reasonable accommodation[s] that could be

made. . . . We have a gym line here for those in a wheelchair, and so they

could go to a different gym, which is an accommodation. They actually get

two yards.

Q; Okay. So could you clarify, please, what you mean by gym line?

A: We have a wheelchair -- actually, it's physical immobility line. And those

offenders who are in wheelchairs back in '17, I think it was called physically

challenged line. Those that are in wheelchairs or have like an artificial leg,

can't maneuver out on the yard, there was a separate yard line or gym line

for them so they could go to the gym and exercise and use different

equipment that's in the gym above and beyond the yard.

Major Cleland testified that gym time and yard time were scheduled separately,

and an inmate would not get both on the same day (Doc. 105-3, p. 40). He further testified

that ADA gym is additional time in the gym beyond the regular gym for “physically

challenged” inmates “for rehabilitation or to give them more ample time to get into the

gym, away from the other population.” (Doc. 105-3, p. 55). He testified unequivocally that

during the time an inmate was scheduled for yard, they could not opt to go to the gym

instead (Id. at p. 46). Plaintiff likewise testified that inmates at Pinckneyville did not have

such choices (Doc. 105-1, p. 104).

DISCUSSION

Summary judgment is proper only if the movant shows that there is no genuine

issue as to any material fact and they are entitled to judgment as a matter of law. FED. R.

CIV. P. 56(a). “Factual disputes are genuine only if there is sufficient evidence for a

reasonable jury to return a verdict in favor of the non-moving party on the evidence

presented, and they are material only if their resolution might change the suit’s outcome

under the governing law.” Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir. 2013) (citation

and internal quotation marks omitted). In deciding a motion for summary judgment, the

court’s role is not to determine the truth of the matter, and the court may not “choose

between competing inferences or balance the relative weight of conflicting

evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hansen v. Fincantieri

Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (citations omitted); Doe v. R.R. Donnelley

& Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). Instead, “it must view all the evidence in the

record in the light most favorable to the non-moving party and resolve all factual disputes

in favor of the non-moving party.” Hansen, 763 F.3d at 836.

A. COUNT 1 – DELIBERATE INDIFFERENCE

To succeed on a claim of deliberate indifference, the plaintiff must demonstrate

that he suffered from an “objectively serious medical condition” that the defendant

responded to with a “sufficiently culpable state of mind,” namely deliberate indifference.

Goodloe v. Sood, 947 F.3d 1026, 1030, 1031 (7th Cir. 2020) (citing Petties v. Carter, 836 F.3d

722, 728 (7th Cir. 2016)). Defendant Blum does not argue that Plaintiff’s medical condition

was not objectively serious (see Doc. 107, p. 18). Therefore, Plaintiff’s claim turns on the

subjective component and whether he has created a genuine issue of fact as to whether

NP Blum responded with deliberate indifference to his complaints of urinary symptoms.

Deliberate indifference requires the plaintiff to show that the prison official knew

of or was aware of a serious risk to the prisoner’s health, but they consciously disregarded

that risk. Holloway v. Delaware Cty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). In other

words, “[t]he defendant must know facts from which he could infer that a substantial risk

of serious harm exists and he must actually draw the inference.” Rasho v. Elyea, 856 F.3d

469, 476 (7th Cir. 2017) (quoting Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016)). Deliberate

indifference “is a high bar ‘because it requires a showing [of] something approaching a

total unconcern for the prisoner's welfare in the face of serious risks.’” Rasho v. Jeffreys, 22

F.4th 703, 710 (7th Cir. 2022) (quoting Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012)).

“[M]ere negligence” or even civil “objective recklessness” simply “is not enough.” Petties,

836 F.3d at 728. See also McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (“Deliberate

indifference is not medical malpractice.”).

In the context of medical professionals, the deliberate indifference standard has

been described as the “professional judgment standard.” Sain v. Wood, 512 F.3d 886, 895

(7th Cir. 2008). Treatment decisions are entitled to deference so long as they are based on

professional judgment, meaning they are “fact-based with respect to the particular

inmate, the severity and stage of his condition, the likelihood and imminence of further

harm[,] and the efficacy of available treatments.” Roe v. Elyea, 631 F.3d 843, 859 (7th Cir.

2011); Rasho v. Elyea, 856 F.3d at 476.

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.

Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016) (quoting Zaya, 836

F.3d at 805).

“But deference does not mean that a defendant automatically escapes liability any

time he invokes professional judgment as the basis for a treatment decision.” Zaya, 836

F.3d at 805 (emphasis in original). “[W]here evidence exists that the defendant knew

better than to make the medical decision that he did, then summary judgment is

improper.” Whiting, 839 F.3d at 662 (citation omitted). The Seventh Circuit has identified

a variety of circumstances that can permit a jury to reasonably infer deliberate

indifference. Brown v. Osmundson, 38 F.4th 545, 550 (7th Cir. 2022) (citing Petties, 836 F.3d

at 729–30). In particular, deliberate indifference can be inferred when a doctor failed to

act in the face of an obvious risk, made a treatment decision that is “a substantial

departure from accepted professional judgment, practice, or standards,” continued

ineffective treatment, or chose “an easier and less efficacious treatment.” Brown, 38 F.4th

at 550; Petties, 836 F.3d at 729–30. See also Roe, 631 F.3d at 857 (“[W]e have stated that a

medical professional is entitled to deference in treatment decisions unless no minimally

competent professional would have so responded under those circumstances.”) (citation

omitted).

In this instance, the Court has little trouble concluding that Plaintiff established a

material issue of fact as to whether NP Blum was deliberately indifferent to his UTI.

Plaintiff reported urinary symptoms on January 23, 2018, and laboratory analysis of a

urine specimen taken that day definitively showed that he had a urinary tract infection.

While NP Blum testified that by the time he got the laboratory analysis on January 30th,

he believed Plaintiff’s infection had resolved itself because Plaintiff had reported a couple

days prior that he was experiencing “no dysuria.” But a reasonable factfinder could easily

choose to discredit NP Blum’s explanation.

To begin with, there is evidence that NP Blum’s decision not to prescribe

antibiotics conflicted with standard treatment protocols. Dr. Singh that the standard

protocol for treating a symptomatic UTI that is confirmed through urinalysis is

antibiotics. Water is not going to cut it, and she would never treat a confirmed UTI with

only water. Furthermore, Plaintiff submitted evidence that on four other occasions when

he experienced urinary symptoms, he was treated with antibiotics. A reasonable jury

could conclude from this evidence that NP Blum’s decision not to prescribe antibiotics

went beyond a mere difference of opinion between practitioners and instead evidenced

a decision that was blatantly inappropriate and “far afield of accepted professional

standards.” See Petties, 836 F.3d at 729 (failure to follow standard treatment protocols can

support an inference of deliberate indifference); Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.

2014) (“A prisoner may establish deliberate indifference by demonstrating that the

treatment he received was ‘blatantly inappropriate.’”) (citation omitted); Norfleet v.

Webster, 439 F.3d 392, 396 (7th Cir. 2006) (“To infer deliberate indifference on the basis of

a physician's treatment decision, the decision must be so far afield of accepted

professional standards as to raise the inference that it was not actually based on a medical

judgment.”); Steele v. Choi, 82 F.3d 175, 179 (7th Cir.1996) (“If the symptoms plainly called

for a particular medical treatment—the leg is broken, so it must be set; the person is not

breathing, so CPR must be administered—a doctor's deliberate decision not to furnish

the treatment might be actionable under § 1983.”).

Furthermore, the accuracy of NP Blum’s “no dysuria” notation on January 26th is

questionable. All we know is that Blum wrote “no dysuria,” and Plaintiff does not know

what “dysuria” means. Blum could not independently recall the visit or offer any details

about the genesis of that notation. If leaves the Court wondering what questions Blum

asked Plaintiff and how far Blum went to elicit information from Plaintiff about his

urinary symptoms. In other words, was this a cursory examination or did Blum actually

make a real effort to clarify whether Plaintiff’s symptoms had in fact dissipated. There is

no evidence that Blum made any effort to follow-up with Plaintiff after he received the

lab report even though Plaintiff had recently requested the results. A reasonable

factfinder might find it telling that Plaintiff asked for the results (more than once if his

testimony is believed). It could signify that he was still experiencing symptoms and

wanted to know if the urinalysis confirmed the cause. Similarly, a reasonable factfinder

could find it telling that Plaintiff requested antibiotics from Blum (if his testimony is

believed). This could signify that he was still experiencing symptoms and looking for

relief. “An official may not escape liability by ‘refus[ing] to verify underlying facts that

he strongly suspect[s] to be true.’” Conley v. Birch, 796 F.3d 742, 747 (7th Cir. 2015)

(quoting Farmer, 511 U.S. at 843 n. 8).

A material question of fact also exists as to whether NP Blum’s actions after

January 30th evidence deliberate indifference. When Plaintiff saw Blum on February 12th,

Blum knew that the laboratory urinalysis demonstrated Plaintiff had a UTI, and Plaintiff

testified that he told Blum he was still experiencing urinary symptoms. It is undisputed

that Blum still did not prescribe Plaintiff any antibiotics. Rather, Plaintiff says that Blum

told him to keep drinking water. This testimony, if believed, could give rise to an

inference that NP Blum continued to ignore standard treatment protocols and persisted

in an ineffective course of treatment.

Then Plaintiff had a second urinalysis done in March 2018. Blum highlights that

these results supposedly showed the infection “was improving” and therefore “there was

no medical reason to change course and give Plaintiff an antibiotic” (see Doc. 107, pp. 18,

21). But crucially, the urinalysis results could also be read to mean that the infection still

had not completely resolved some six weeks later—that a water-only course of treatment

obviously had not worked. But Blum took no action to address the possibility of a

lingering UTI. He did not follow-up with Plaintiff or otherwise investigate whether

Plaintiff was still having urinary symptoms. He just assumed Plaintiff was not. A

reasonable factfinder could easily conclude that Blum acted with deliberate indifference.

For these reasons, the Court concludes that Plaintiff’s claim of deliberate

indifference survives summary judgment.

B. COUNT 2 – VIOLATION OF THE ADA/REHAB ACT

Both the ADA and the Rehab Act prohibit discrimination against the disabled. CTL

ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014); 42 U.S.C. §12132; 29

U.S.C. § 794(a). Because the two statutes, as well as the federal regulations implementing

them, are “materially identical,” they are interpreted and applied in a consistent manner.

A.H. by Holzmueller v. Illinois High Sch. Ass'n, 881 F.3d 587, 592 (7th Cir. 2018)

(citing Steimel v. Wernert, 823 F.3d 902, 909 (7th Cir. 2016)).4 For the sake of ease, the Court

refers only to the ADA throughout the course of the analysis, but the analysis applies to

both the ADA and Rehab Act claims, unless otherwise stated.

To succeed on his claim of disability discrimination, Plaintiff must prove three

basic elements: (1) he was a qualified individual with a disability; (2) he was excluded

4 The only notable difference is that the Rehab Act includes as an additional requirement the receipt of

federal funds, but this element is incontrovertible because all states accept it for their prisons. Wagoner v.

Lemmon, 778 F.3d 586, 592 (7th Cir. 2015); Jaros v. Illinois Dep't of Corr., 685 F.3d 667, 671–72 (7th Cir. 2012).

from or denied the benefits of the services, programs, or activities of a public entity or

otherwise subjected to discrimination; and (3) the exclusion, denial of benefits, or

discrimination was because of his disability. Shuhaiber v. Illinois Dep't of Corr., 980 F.3d

1167, 1170 (7th Cir. 2020), cert. denied, 141 S. Ct. 2475 (2021) (citing Wagoner v. Lemmon, 778

F.3d 586, 592 (7th Cir. 2015)). Furthermore, in order for Plaintiff to recover compensatory

damages, he must show “intentional conduct (and not mere negligence)” which has been

interpreted to mean he must show the defendant “acted with deliberate indifference to

rights conferred by the ADA and Rehabilitation Act.” Shaw v. Kemper, 52 F.4th 331, 334

(7th Cir. 2022) (citations omitted). See also Hildreth v. Butler, 960 F.3d 420, 431 (7th Cir.

2020) (quoting Lacy v. Cook County, Illinois, 897 F.3d 847, 862 (7th Cir. 2018)).

It is well-established that the IDOC is a public entity within the meaning of the

ADA and has always been subject to the nondiscrimination and accessibility

requirements of Title II. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (per

curiam). The IDOC does not contest that Plaintiff was a qualified individual with a

disability (see Docs. 109, 116). The IDOC likewise does not contest that a toilet is a service

and that the toilet on the yard was not handicap accessible (see Docs. 109, 116). See Shaw

v. Kemper, 52 F.4th 331, 334 (7th Cir. 2022) (that “a handicapped-accessible toilet for

disabled prisoners amounts to a service,” the denial of which could establish a claim

under both the ADA and the Rehab Act. (citing United States v. Georgia, 546 U.S. 151, 157

(2006)). Furthermore, it is self-evident that Plaintiff unable to use the toilet because of his

disability. See 42 U.S.C. § 12132; 29 U.S.C. § 794(a); Wisconsin Community Services v. City of

Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006) (To establish this element, Plaintiff must

“show that, ‘but for’ his disability, he would have been able to access the services or

benefits desired.”). Defendant Jeffreys nevertheless argues that no discrimination

occurred because the prison provided Plaintiff with reasonable accommodations (Doc.

109, pp. 5–6).

The ADA and the Rehab Act not only prohibit prisons from intentionally

discriminating against disabled inmates, but they also require the prisons to make

“reasonable accommodations” or “reasonable modifications” to their polices and

practices to avoid denying inmates a service on account of their disability. Shaw v. Kemper,

52 F.4th 331, 334 (7th Cir. 2022). It is well established that a failure to make ‘reasonable

modifications in policies, practices, or procedures’ can constitute discrimination . . . .”

Lacy v. Cook Cty., Illinois, 897 F.3d 847, 853 (7th Cir. 2018). See also Jaros v. Illinois Dep't of

Corr., 684 F.3d 667, 672 (7th Cir. 2012) (“Refusing to make reasonable accommodations is

tantamount to denying access.”). Structural barriers that impede access by persons with

disabilities to public services are “[p]erhaps the most obvious example of . . .

discrimination.” Lacy, 897 F.3d at 853. See also 28 C.F.R. § 35.149 (disabled individuals

cannot be excluded from or denied the benefits of the public entity’s services, programs,

or activities because the entity's “facilities are inaccessible to or unusable by individuals

with disabilities.”); Tennessee v. Lane, 541 U.S. 509, 531 (2004) (“Congress required the

States to take reasonable measures to remove architectural and other barriers to

accessibility.”).

Facilities like Pinckneyville that were built or altered after January 26, 1992—

which was the effective date of the ADA—must be “readily accessible to and usable by

individuals with disabilities,” meaning they must comply with specific structural

accessibility standards.5 Lane, 541 U.S. at 532; Lacy, 897 F.3d at 853; 28 C.F.R. §§

35.151(a)(1), (b)(1). See also Hummel v. St. Joseph Cty. Bd. of Comm'rs, 817 F.3d 1010, 1016

(7th Cir. 2016) (“For public facilities built or altered after January 26, 1992, the public

entity must ensure that the facility is not just possibly accessible but ‘readily accessible.’”).

When it comes to toilets, the accessibility standards dictate things such as the height of

the toilet, the location and height of grab bars, and the amount of clear floor space. 1991

Standards § 4.1.2(6).6 “Departures” from the accessibility standards “by the use of other

methods” are only permitted “when it is clearly evident that equivalent access to the

facility . . . is thereby provided.”

1. Defendant Jeffrey’s Motion for Summary Judgment

Defendant Jeffreys argues that the IDOC did not violate the ADA because Plaintiff

was provided with reasonable accommodations (Doc. 109, p. 6). Specifically, Jeffreys

claimed that Plaintiff could be brought back in from the yard to use the indoor toilet or

Plaintiff could use the ADA gym, where the toilet was accessible (Doc. 85, p. 14). The

Court is unpersuaded by this argument.

5 Pinckneyville Correctional Center opened in October 1998. ILL. DEP’T. OF CORR., Pinckneyville Correctional

Center, https://idoc.illinois.gov/facilities/allfacilities/facility.pinckneyville-correctional-center.html (last

visited March 28, 2023).

6 The Department of Justice issued the Americans with Disabilities Act Accessibility Guidelines for

Buildings and Facilities (ADAAG) in 1991 (“the 1991 Standards”), and they were revised in 2010. Scherr v.

Marriott Int'l, Inc., 703 F.3d 1069, 1076 (7th Cir. 2013). Given that Pinckneyville was opened in 1998, the 1991

Standards should be used to determine compliance. 28 C.F.R. § 35.151(c)(1). The 1991 Standards are

available at https://www.ada.gov/1991standards/adastd94-archive.pdf.

It is undisputed on August 4, 2018, the toilet on Yard 1 was not handicap accessible

because it did not have grab bars. Thus, the Court can only conclude the IDOC did not

comply with the specific requirements set forth in the accessibility standards. 28 C.F.R. §

35.151(c)(1). Deviating from the accessibility standards is only permitted if it is “clearly

evident that equivalent access” to the facility was provided. 28 C.F.R. § 35.151(c)(1). Even

if the “equivalent access” provision applies to architectural accommodations, but see

Clemons v. Dart, 168 F. Supp. 3d 1060, 1067 (N.D. Ill. 2016), Defendant made no effort to

explain how the accommodations provided at Pinckneyville provided equivalent access,

and there are material issues of fact surrounding the purported accommodations. While

Major Cleland and Christine Brown both provided very general testimony that Plaintiff

could have asked to be brought back inside from the yard to use the toilet, there is no

evidence that Plaintiff (or any other inmates) were notified of this option. Plaintiff

explicitly testified that he could not ask to come inside. There is also no evidence as to

where the “yard officer” is located or how an inmate would go about getting the officer’s

attention and making their request. There is no evidence as to how long a disabled inmate

might have to wait before being escorted back to the cell house. And there is no evidence

as to whether the inmate would be allowed to return to the yard after using the bathroom

indoors.

Furthermore, case law indicates that equivalent access does not exist if disabled

inmates have to request assistance from a guard to use the bathroom while non-disabled

inmates can freely use the bathroom as needed without notifying a guard. See Dunmore

v. Shicker, No. 16-CV-171-MAB, 2020 WL 65057, at *15 (S.D. Ill. Jan. 7, 2020) (holding that

reasonable jury could easily conclude disabled inmates did not have equivalent access to

toilet while on the yard where they had to get a guard to escort them back into cell house

but non-disabled inmates could use a porta potty); Clemons v. Dart, 168 F. Supp. 3d 1060,

1066 (N.D. Ill. 2016) (holding inmate did not have equivalent access to the jail’s toilets

and showers when he was housed in non-ADA-compliant cell but had access to around-

the-clock nursing care because “the availability of staff assistance upon request does not

constitute equivalent access” under Title II); Roberts v. Dart, No. 16 C 5560, 2018 WL

1184735, at *4 (N.D. Ill. Mar. 7, 2018) (holding inmate did not have equivalent access to

the toilets at the jail when he was housed in non-ADA-compliant cell but could ask

officers to let him out of his cell to use the toilet in the dayroom); Tyler v. City of Manhattan,

857 F. Supp. 800, 819 (D. Kan. 1994) (finding arrangement where disabled individual was

required to request a key to use the only accessible bathroom did not comport with Title

II).

As for using the ADA gym instead of the yard, its readily apparent that an indoor

gym cannot be considered equivalent to the outdoor recreation yard. At any rate, the

IDOC did not provide any evidence regarding the frequency and duration of the trips

per week to the ADA gym for disabled inmates as compared to the outdoor yard for non-

disabled inmates. Consequently, there is a dearth of evidence from which the Court could

conclude the ADA gym provided equivalent access.

For these reasons, Defendant Jeffreys is not entitled to summary judgment on

Plaintiff’s ADA/Rehab Act claim, and this aspect of the motion is denied.

As for the issue of damages, Defendant Jeffreys argues that he is entitled to

summary judgment on Plaintiff’s claim for injunctive relief because Plaintiff is not

entitled to any injunctive relief given that handrails were installed in the restroom in

question on August 29, 2018 (Doc. 109, pp. 7–8). While Plaintiff does not contest

Defendant’s argument (see Doc. 117), the Court is not convinced that injunctive relief is a

moot issue. The evidence demonstrates that the housing units at Pinckneyville are

assigned to the various yards on a rotating basis (Doc. 105-3, p. 54; see also Doc. 109-3).

That means Plaintiff’s housing unit attends Yards 1, 2, 3, and 4. The Court therefore

believes that Plaintiff’s claim for injunctive relief would only be moot if there was

evidence that the bathrooms on all four yards are accessible, not just in “the restroom in

question” on Yard 1. While there is evidence that the bathroom on Yard 1 is now

accessible, and it seems that the bathroom on Yard 4 is also accessible, Defendant did not

point to any evidence regarding the bathrooms on Yards 2 and 3. Consequently, the Court

is not prepared to enter summary judgment for Defendant on Plaintiff’s request for

injunctive relief, or even to declare that request moot.

With respect to compensatory damages, as mentioned previously, Plaintiff must

show prison officials acted with deliberate indifference, meaning they “knew that harm

to a federally protected right was substantially likely and . . . failed to act on that

likelihood.” Hildreth, 960 F.3d at 431 (quoting Lacy, 897 F.3d at 862). Defendant argues

that Plaintiff cannot establish deliberate indifference because there is no evidence that

Plaintiff or any other inmate informed any prison official that the bathroom on Yard 1

was not accessible (Doc. 109, p. 9), seemingly implying that Plaintiff cannot establish the

knowledge requirement of deliberate indifference. This argument is a non-starter.

A plaintiff can satisfy the knowledge element of the deliberate indifference test by

showing that she “alerted the public entity to [their] need for accommodation or . . . the

need for accommodation is obvious or required by statute or regulation.” Updike v.

Multnomah Cnty., 870 F.3d 939, 951 (9th Cir. 2017) (internal parentheses omitted); Accord

Havens v. Colo. Dep't of Corr., 897 F.3d 1250, 1266 (10th Cir. 2018) (similar); McCullum v.

Orlando Reg'l Healthcare Sys., Inc., 768 F.3d 1135, 1147 (11th Cir. 2014) (similar); Carter v.

City of Chicago, 520 F. Supp. 3d 1024, 1033 (N.D. Ill. 2021) (citation omitted). See also Farmer

v. Brennan, 511 U.S. 825, 842 (1994) (“[A] factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was obvious.”)

Here, by the time Plaintiff tried to use the toilet on the yard in August 2018, the

law was very well-settled for nearly three decades that Pinckneyville could not provide

a toilet on the yard for only non-disabled inmates. They also had to provide an accessible

toilet for disabled inmates, like Plaintiff. See, e.g., Ashby v. Warrick Cty. Sch. Corp., 908 F.3d

225, 232 (7th Cir. 2018) (“The mandate of Title II . . . is clear: whenever a public entity or

federal funding recipient ‘does . . . anything,’ it must extend ‘the benefits of,’ and cannot

‘discriminat[e]’ in, that thing on the basis of disability.”); Frame v. City of Arlington, 657

F.3d 215, 226 (5th Cir. 2011) (“[W]hen a city decides to build or alter a sidewalk but makes

that sidewalk inaccessible to individuals with disabilities without adequate justification,

the city discriminates within the meaning of Title II. Such a sidewalk benefits persons

without physical disabilities, yet that benefit is unnecessarily denied to similarly situated

persons with physical disabilities.”); Chisolm v. McManimon, 275 F.3d 315, 329 (3d Cir.

2001) (“To the extent that other, non-disabled inmates had access to communication by

telephone, MCDC was required to provide Chisolm with such access on

nondiscriminatory terms.”) Pinckneyville was obviously aware of the accessibility

requirements for toilets because it is undisputed that the toilet in Plaintiff’s ADA cell met

those requirements. Yet, for whatever reason, Pinckneyville officials chose not to comply

with the accessibility standards for the toilets on the yards, even though disabled inmates

were assigned to those yards. Jeffreys cannot escape liability now by arguing that the

prison was unaware the toilet was inaccessible because no wheelchair-bound prisoner

had told prison officials. The prison had a duty to ensure that the outdoor toilet complied

with the requirements of the federal regulations and the accessibility standards from the

moment that it was constructed/installed. And the prison apparently ignored the

requirements of federal law.

For these reasons, Defendant Jeffreys’ motion for summary judgment as to

Plaintiff’s ADA/Rehab Act claim is denied in its entirety.

2. Plaintiff’s Motion for Summary Judgment

Plaintiff’s motion does not suffer from the same infirmities that Defendant Jeffreys’

does. He has demonstrated that there is no material issue of fact as to whether he was

denied a service of the prison because of his disability. It is undisputed on August 4, 2018,

the toilet on Yard 1 did not have grab bars and therefore the IDOC failed to comply with

the structural accessibility standards that it was bound by. 28 C.F.R. § 35.151(c)(1). It is

likewise undisputed that without grab bars, it was impossible for Plaintiff to use the

toilet, and therefore it is self-evident that Plaintiff was denied a service of the prison

because of his disability. And Defendant has failed to show “clear evidence” that

“equivalent access” to the bathroom was provided for disabled inmates. See 28 C.F.R.

35.151(c)(1). Defendant’s only argument is that while Plaintiff could not access the toilet

on the yard, he could have asked a guard to take him back into the cell house to use the

indoor toilet or he could have attended ADA gym. Defendant did not provide any details

about these two options (see Doc. 116; see also Doc. 109). As such, there is no evidence

from which a reasonable jury could find that disabled inmates were given equivalent

access to the bathroom. Consequently, Plaintiff is entitled to summary judgment on his

ADA/Rehab Act claim.

Plaintiff has also demonstrated there is no material issue of fact as to whether the

IDOC was deliberately indifferent. By the time Plaintiff tried to use the toilet on the yard

in August 2018, the law was very well-settled that if only one toilet was provided on the

yard, it had to be accessible to disabled inmates. The prison could not provide a toilet on

the yard for only non-disabled inmates. Yet Pinckneyville did just that. Defendant

Jeffreys tries to escape liability by arguing that Plaintiff “[did] not provide any evidence

that Defendant knew on August 4, 2018 that there were no hand rails in the bathroom of

Yard 1” (Doc. 116, p. 4). But this argument misses the point. As stated above, the toilet

was constructed/installed after 1992 and therefore the prison had an affirmative

obligation to ensure that it complied with accessibility standards from the moment it was

constructed. The prison is not allowed to ignore that requirement until a disabled

prisoner complains. Even construing the facts in a light most favorable to Defendant, no

reasonable jury could find in his favor. Plaintiff is entitled to summary judgment on the

issue of deliberate indifference and he may collect compensatory damages, the amount

of which is to be determined by the trier of fact.

CONCLUSION

Defendant Bobby Blum’s motion for summary judgment as to Count 1 for

deliberate indifference (Doc. 106) is DENIED. Defendant Rob Jeffreys’ motion for

summary judgment as to Count 2 for violations of the ADA and Rehab Act (Doc. 108) is

DENIED. Plaintiff’s motion for summary judgment as to Count 2 (Doc. 105) is

GRANTED.

This matter shall proceed to trial on Plaintiff’s claim for deliberate indifference

(Count 1), and on the issue of damages as to Plaintiff’s claim for violations of the ADA

and Rehab Act (Count 2).

A status conference to discuss the trial schedule and the utility of a settlement

conference will be set by a separate Order.

IT IS SO ORDERED.

DATED: March 31, 2023

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge