“A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”
How later courts described this case
- “A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EDGAR TORRES, )
)
Plaintiff, )
)
v. ) Case No. 21-cv-468-RJD
)
RON SKIDMORE and ROB JEFFREYS, )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff Edgar Torres, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were
violated while he was incarcerated at Menard Correctional Center (“Menard”). Plaintiff alleges
Menard staff was deliberately indifferent to his need for hearing aids. Plaintiff’s complaint was
screened pursuant to 28 U.S.C. § 1915A and he proceeds on the following claims:
Count One: Eighth Amendment deliberate indifference claim against Ron
Skidmore for denying Plaintiff outside care for his hearing loss.
Count Two: ADA claim for denying Plaintiff a hearing aid.
Rob Jeffreys was added as a defendant only in his official capacity as the IDOC Director
as the proper defendant for Plaintiff’s ADA claim (see Doc. 8 at 4). Pursuant to Rule 25(d), the
current IDOC Director, Latoya Hughes, is automatically substituted for Jeffreys.
This matter is now before the Court on the Motion for Summary Judgment filed by
Defendants Ron Skidmore and Rob Jeffreys (Doc. 40). Along with their motion, Defendants filed
a Rule 56 Notice informing Plaintiff of his obligation to file a response to their motion for summary
judgment and advising him of the perils of failing to respond (see Doc. 42). Plaintiff’s response
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to Defendants’ motion was due by March 27, 2023. No response, or any other filings, have been
received from Plaintiff as of the date Defendants’ filing1. The Court notes, however, that Plaintiff
verified his complaint. The Seventh Circuit has recognized that although it does not “commend”
the practice, a party may rely on the portions of a verified complaint that satisfy the requirements
set forth in Federal Rule of Civil Procedure 56(c) in responding to a motion for summary judgment.
Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996). As such, and in light of Plaintiff’s status as
a pro se litigant, the Court will accept Plaintiff’s verified complaint as a response to the motion for
summary judgment.
Factual Background
Plaintiff’s claims arose while he was incarcerated at Menard Correctional Center
(Deposition of Edgar Torres, Doc. 41-1 at 18). Around early 2000, Plaintiff noticed he had
trouble hearing in his left ear due to a gun being fired near his ear prior to his incarceration (id. at
22). Plaintiff underwent a hearing screening at Menard on September 21, 2020 (id. at 24; see
Doc. 41-4 at 6-8). Plaintiff passed the screening for his right ear, but did not pass the screening
for his left ear (id.). It was noted that Plaintiff was to be referred to a medical provider to request
an audiogram (id.).
Plaintiff filed a grievance dated October 16, 2020 advising the institution that he failed his
left ear hearing screening and was awaiting a referral for an audiogram so he could receive a
hearing aid (Doc. 41-1 at 27-28; see Doc. 1 at 14-15). The Grievance Officer responded on
October 19, 2020, stating in part, “The ADA Coordinator advised that the offender passed the
1 Prior to the filing of Defendants’ motion, Plaintiff filed a Motion to Withdraw Complaint (Doc. 34) on December
27, 2022, wherein he requested that the Court withdraw his complaint if the undersigned declined to appoint him
counsel. The Court denied his motion, declined to appoint him counsel for reasons stated in the record, and advised
Plaintiff that if he did not wish to proceed on his claims in this case that he needed to file a motion to voluntarily
dismiss the same (Doc. 35). No motion seeking to voluntarily dismiss the claims was filed.
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onsite hearing test on 4/5/2019 and 9/21/2020” (Doc. 1 at 17). At the time of the Grievance
Officer’s response, Defendant Ron Skidmore was a Corrections Nurse Supervisor and ADA
Coordinator (Declaration of Ron Skidmore, Doc. 41-2 at ¶ 1).
Following submission of his October 2020 grievance, Plaintiff contacted an outside entity,
Equip for Equality, regarding his hearing screening and complaint concerning a lack of a referral
to an outside specialist (Doc. 41-1 at 29). Equip for Equality was initially advised by the IDOC
that Plaintiff passed his September 2020 hearing test, but at the urging of Plaintiff and upon further
inquiry, Equip for Equality notified Plaintiff in a letter dated March 3, 2021 that IDOC advised
they were “working on correcting their mistake of mis-recording [Plaintiff’s] initial failed hearing
screening to the ADA Coordinator” and had scheduled Plaintiff to see an audiologist (Doc. 1 at
18-21).
On February 16, 2021, a note in Plaintiff’s medical record indicates that his case was
presented to “collegial” on February 11, 2021 for an audiology evaluation and the request was
approved (Doc. 41-1 at 44; see Doc. 41-4 at 1). Another note in Plaintiff’s medical record on
June 8, 2021 indicates that Plaintiff was scheduled for an audiology evaluation, and he was seen
by an outside physician specializing in Otolaryngology on September 2, 2021 (see Doc. 41-4 at 2,
12-19). The result of the September 2, 2021 evaluation indicated that Plaintiff had “a
false/exaggerated hearing loss in his left ear” (see id. at 19). The provider found Plaintiff had
normal middle ear function in both ears (see id.). No follow-up was recommended (see id.).
Plaintiff has never been informed by a medical provider that he needed hearing aids, nor has he
been prescribed hearing aids by a medical provider (Doc. 41-1 at 47-48).
Plaintiff testified that his hearing issues caused him to miss meal and call lines, and he
needs to ask people to repeat themselves (Doc. 41-1 at 50-51). Plaintiff also asserted he is in
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constant pain (Doc. 1 at ¶ 16).
Summary Judgment Standard
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-
Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is
made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at
248). In assessing a summary judgment motion, the district court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital,
Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Discussion
Count One – Eighth Amendment deliberate indifference claim against Ron Skidmore
Plaintiff contends Ron Skidmore was deliberately indifferent for denying him outside care
for his hearing loss. More specifically, in his complaint, Plaintiff alleges Skidmore, the ADA
Coordinator at Menard at all times relevant, “lied” in responding to Plaintiff’s October 16, 2020
grievance insofar as Skidmore erroneously indicated that Plaintiff had passed his hearing test.
Skidmore asserts he is entitled to summary judgment on Plaintiff’s Eighth Amendment
claim because Plaintiff cannot establish that his hearing loss constituted a serious medical need,
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there is no evidence Plaintiff suffered any harm, and no reasonable jury could find that Skidmore
acted with deliberate indifference.
The Supreme Court recognizes that “deliberate indifference to serious medical needs of
prisoners” may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). In order to prevail on such a claim, Plaintiff must show first
that his condition was “objectively, sufficiently serious” and second, that the “prison officials acted
with a sufficiently culpable state of mind.” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005)
(citations and quotation marks omitted).
With regard to the first showing, the following circumstances could constitute a serious
medical need: “[t]he existence of an injury that a reasonable doctor or patient would find important
and worthy of comment or treatment; the presence of a medical condition that significantly affects
an individual’s daily activities; or the existence of chronic and substantial pain.” Hayes v. Snyder,
546 F.3d 516, 522-23 (7th Cir. 2008) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.
1997)); see also Foelker v. Outagamie Cnty., 394 F.3d 510, 512-13 (7th Cir. 2005) (“A serious
medical need is one that has been diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”).
A prisoner must also show that prison officials acted with a sufficiently culpable state of
mind, namely, deliberate indifference. “Deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain’.” Estelle, 429 U.S. at 104
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “The infliction of suffering on prisoners
can be found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless
in the criminal law sense.” Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985).
Negligence, gross negligence, or even recklessness as that term is used in tort cases, is not enough.
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Id. at 653; Shockley v. Jones, 823, F.2d 1068, 1072 (7th Cir. 1987). Put another way, the plaintiff
must demonstrate that the officials were “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists” and that the officials actually drew that inference.
Greeno, 414 F.3d at 653. A plaintiff does not have to prove that his complaints were “literally
ignored,” but only that “the defendants’ responses were so plainly inappropriate as to permit the
inference that the defendants intentionally or recklessly disregarded his needs.” Hayes, 546 F.3d
at 524 (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).
Plaintiff’s claim against Skidmore clearly does not survive summary judgment because no
jury could find that Skidmore acted with deliberate indifference to Plaintiff’s complaints of hearing
loss. While it is undisputed that there was an error made by the institution and, based on
reasonable inferences, possibly Defendant Skidmore, in informing the Grievance Officer that
Plaintiff had passed his September 2020 hearing screening, said error was ultimately corrected
and, within four months of this error, Plaintiff’s case was presented to collegial for review in
February 2021. While it ultimately took until September 2, 2021 for Plaintiff’s hearing to be
evaluated by an outside specialist, Skidmore is not able to make referrals to outside specialists, as
those determinations are made by medical doctors (Doc. 41-2 at ¶ 2). Thus, even when viewing
all of the evidence in the light most favorable to Plaintiff, no jury could find that a brief delay in
processing Plaintiff through collegial review to see an outside specialist evidenced deliberate
indifference to his condition. This is even more pronounced when, as here, there is no evidence
Plaintiff was harmed by this delay. Indeed, upon referral to a specialist it was determined Plaintiff
required no follow-up or any additional treatment related to his hearing. Because there is no
evidence in the record by which a reasonable jury could find Defendant Skidmore acted with
deliberate indifference, he is entitled to summary judgment on Count One. Based on this finding,
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the Court need not consider Skidmore’s additional arguments, including qualified immunity.
Count Two – Claim under the Americans with Disabilities Act (ADA)
In Count Two, Plaintiff contends the IDOC violated the Americans with Disabilities
(ADA) for failing to provide him with a hearing aid. Defendant Latoya Hughes is the proper
defendant in this Count in her official capacity as the current Acting Director for the IDOC.
In the prison context, a plaintiff can make out a prima facie case of discrimination under
the ADA by showing: (1) he is a qualified person; (2) with a disability; (3) the Department of
Corrections denied him access to a program or activity because of his disability or otherwise
subjected him to discrimination; and (4) the denial or discrimination was by reason of his disability.
Jaros v. Illinois Dep't of Corr., 684 F.3d 667, 672 (7th Cir. 2012), citing 29 U.S.C. § 705(2)(B);
Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737, 746 (7th Cir. 2006); Foley v. City of Lafayette,
359 F.3d at 928 (7th Cir.2004); Grzan v. Charter Hosp. of Nw. Ind., 104 F.3d 116, 119 (7th Cir.
1997). Furthermore, in order for Plaintiff to recover compensatory damages, he must show
“intentional conduct (and not merely negligence),” which has been interpreted to mean he must
show the defendant “acted with deliberate indifference” to rights conferred by the ADA. Shaw v.
Kemper, 52 F.4th 331, 334 (7th Cir. 2022) (citations omitted).
The ADA designates three categories of disability: (1) a physical or mental impairment
that substantially limits one or more of the major life activities of such individual; (2) a record of
such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2).
Defendant asserts Plaintiff cannot meet his threshold burden because there is not sufficient
evidence in the record that he is a qualified individual with a disability under the ADA. In support
of this argument, Defendant relies on the fact that no medical provider has informed Plaintiff he is
a candidate for hearing aids or that Plaintiff was ever prescribed the same. In effect, Defendant
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urges the Court to find that Plaintiff does not have the hearing loss and disability he complains of
based on the lack of corroborating medical evidence. At this stage of the proceedings, such
discrepancies in the record are merely genuine issues of material fact.
The record, however, does not support a finding that Plaintiff is entitled to any damages
under the ADA. First, Plaintiff’s complaint makes no request for injunctive relief (see Doc. 1 at
7). Moreover, even if the Court could interpret the complaint as requesting injunctive relief,
Plaintiff’s complaint regarding his hearing aid occurred at Menard, but he is no longer at that
institution. It is well established that when a prisoner is transferred or released from IDOC
custody his claims for injunctive relief are moot. See Easterling v. Pollard, 528 F.App’x 653,
656 (7th Cir. 2013) (citing Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012); Vinning-El v.
Evans, 657 F.3d 591, 592 (7th Cir. 2011)); see also Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.
1996). Said relief is moot unless the prisoner “can demonstrate that he is likely to be
retransferred.” Higgason, 83 F.3d at 811 (citation omitted); see also Maddox v. Love, 655 F.3d
709, 716 (7th Cir. 2011). Here, there is no evidence that Plaintiff is likely to be transferred back
to Menard. For these reasons, no injunctive relief is available to Plaintiff under Count Two.
With regard to the issue of compensatory damages under the ADA, 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 v. Butler, 960 F.3d 420, 431 (7th Cir. 2020) (quoting Lacy v. Cook Cnty.,
897 F.3d 847, 862 (7th Cir. 2018)) (emphasis in original). As fully explained above, there is no
basis for finding Defendant Skidmore acted with deliberate indifference in failing to ensure
Plaintiff was provided a hearing aid. Indeed, the record establishes the opposite regarding
Skidmore and Menard staff generally. At most, the staff was negligent in failing to accurately
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report Plaintiff’s hearing screening results from September 2020. Ultimately, this error was
corrected and Plaintiff was sent to an outside specialist who determined Plaintiff required no
further treatment or any follow-up. There is also no evidence Plaintiff has been prescribed or
otherwise advised by a medical professional that he requires a hearing aid. As such, there is no
basis to find that prison officials acted with deliberate indifference to Plaintiff’s hearing condition
and, therefore, there is no basis for awarding Plaintiff the compensatory damages Plaintiff seeks
under the ADA.
As the above presents a basis for summary judgment on Count Two that was not raised by
Defendant Hughes, Federal Rule of Civil Procedure 56(f) requires Plaintiff receive notice and a
reasonable time to respond. Accordingly, on or before August 21, 2023, Plaintiff shall file his
objections to the decision to grant summary judgment in favor of Defendant Hughes on Count
Two on the basis that there is no relief available for Plaintiff under the ADA.
Conclusion
Based on the foregoing, the Motion for Summary Judgment filed by Defendants Ron
Skidmore and Rob Jeffreys (Latoya Hughes) (Doc. 40) is GRANTED as to Count One and
TAKEN UNDER ADVISEMENT as to Count Two.
The Clerk of Court shall enter judgment in favor of Defendant Ron Skidmore and against
Plaintiff Edgar Torres.
Plaintiff is advised that his failure to provide his objections to the Court’s decision to grant
summary judgment in favor of Defendant Hughes on Count Two on or before August 21, 2023
will result in the entry of summary judgment in favor of Defendant Hughes.
IT IS SO ORDERED.
DATED: August 1, 2023
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s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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