Gakuba v. Swells

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

PETER GAKUBA, )

)

Plaintiff, )

)

vs. ) Case No. 3:20-cv-00277-SMY

)

PENNY GEORGE, )

ROB JEFFREYS, and )

KIMBERLY BIRCH, )

)

Defendant. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

This matter is before the Court on Defendants’ Motions for Summary Judgment (Docs.

122, 132). For the following reasons, the motions are GRANTED.

BACKGROUND

Plaintiff Peter Gakuba filed this action pursuant to 42 U.S.C. § 1983, alleging deprivations

of his constitutional rights at Vienna Correctional Center from September 4, 2019, through April

of 2021. (Doc. 1). Following the Court’s threshold review (Doc. 18), Plaintiff proceeded on the

following claims:

Count 1: ADA and RA claim against Rob Jeffreys for ignoring Plaintiff’s

physical/mental disabilities by denying him permanent medical permits for

bottom bunk and relief from job assignments and exertion (bending,

twisting and lifting over 20 pounds); refusing to transfer him; ignoring his

sick call requests for relief from heat; and hindering his access to legal

boxes.

Count 2: Eighth Amendment deliberate indifference claim against Dr. Birch and

Penny George for deliberate indifference to Plaintiff’s physical/mental

conditions as described in Count 1

Count 3: Fourteenth Amendment equal protection claim against Dr. Birch for

refusing to transfer Plaintiff to another prison when another similarly

situated prisoner was granted a transfer in the Summer of 2018 due to the

risks he faced from the heat at Vienna.

Count 4: Medical negligence and/or medical malpractice claim against Dr. Birch and

Penny George for denying that Plaintiff suffered from any physical/mental

disabilities and failing to treat his conditions, including requiring him to

sleep on a steel slab causing back and neck pain and exposing him to harm

from the heat.

Count 5: Gross negligence/negligence claim against Dr. Birch for failing to grant him

a transfer to an air-conditioned prison with a spring bed, destroying his foam

bed pad, and placing his legal boxes where he could not lift or move them.

At the close of discovery Defendants filed motions for summary judgment (Docs. 122,

132). Plaintiff did not respond to either motion. Therefore, the facts are taken from Defendants’

motions and supporting evidence, but are construed in the light most favorable to Gakuba.

FACTS1

Plaintiff was admitted to the custody of the Illinois Department of Corrections (IDOC) at

the Stateville Reception and Classification Center. An Offender Medical History form dated July

2, 2015, from Stateville indicated no allergies. (Doc. 133-4 at 110). He self-reported

autism/Asperger’s and frequent heat strokes. (Doc. 133-4 at 110).

In July 2015, Plaintiff transferred to Robinson Correctional Center and went briefly on a

court writ to Dixon Correctional facility where he reported no allergies, but reiterated that he was

sensitive to heat. (Doc. 133-4 at 120). Plaintiff was seen for heat exhaustion or heat stroke at

Dixon on July 17, 2015. (Doc. 133-4 at 122, 124-125). Plaintiff returned to Robinson by July 29,

2015.

Plaintiff injured his back while moving a property box at Robinson in August 2016. (Doc.

1 For ease of comprehension, the Court will provide a basic overview of Plaintiff’s incarceration and medical

incarceration history and will organize pertinent facts by medical condition.

133-4 at 169). An x-ray was ordered and performed. (Doc. 133-4 at 175; Doc. 133-4 at 22).

Plaintiff transferred to East Moline Correctional Center in October 2017. (Doc. 133-4 at

231, 233). At East Moline, security staff once brought him to the healthcare unit for examination

of his eye, and it was noted that he had “nevus of ota,” a bluish pigmentation on and around his

right eye. (Doc. 133-4 at 248). While being seen for his eye discoloration, Plaintiff also wanted

to speak with the doctor about a seafood allergy, which the doctor noted had never been

documented before. (Doc. 133-4 at 249).

Plaintiff was transferred back to Robinson in June 2018. (Doc. 133-4 at 269). He reported

no allergies upon his return but did request medications and permits for back pain. (Doc. 133-4 at

273). On August 30, 2019, Plaintiff made a request for mental health services because he did not

believe he should be transferred to another prison based on his medical conditions. (Doc. 133-4

at 294).

Plaintiff was transferred to Vienna Correctional Center on September 4, 2019 and remained

there until his release from IDOC in April 2021.

Seafood Allergy

Plaintiff did not report his seafood allergy upon admission to IDOC custody. He testified

during his deposition that it began during childhood. (Doc. 133-4 at 110; Plaintiff’s Deposition,

Doc. 123-3 at 183:7-17). He also testified that his seafood exemption was honored at Robinson

but challenged at East Moline, even though staff at East Moline helped him to avoid seafood.

(Doc. 123-3 at 178: 4-12).

Upon arrival at Vienna, Plaintiff self-reported a seafood allergy. (Doc. 123-2 at 431). On

November 1, 2019, a nurse practitioner at Vienna recommended a no seafood diet, but it is not

clear if it was implemented. (Doc. 133-4 at 322).

Plaintiff was seen by Dr. Birch for follow-up regarding his alleged seafood allergy on

February 7, 2020. (Doc. 123-2 at 451). Dr. Birch noted that there was no documentation of a

seafood allergy in his file and informed him that documentation from his doctor would be needed.

Dr. Birch offered a blood test to quickly confirm the allergy, but Plaintiff declined in favor of

trying to contact his father for proof of his allergy. (Doc. 123-2 at 450-454). Plaintiff raised a

concern about weight loss, which Dr. Birch noted was not significant at the time. She offered to

run other lab tests to determine if he had thyroid problems or other health issues. (Doc. 123-2 at

451). Plaintiff agreed to the labs, but later refused them. (Doc. 123-2 at 451, 455). Dr. Birch also

ordered monthly weight checks to track any appreciable weight loss. (Id. at 452).

Dr. Birch followed-up on the refused labs on February 19, 2020. Plaintiff expressed

concern that he was being tricked into an allergy test, which she denied. He indicated he still

wished to try to contact his parents about his allergy. Dr. Birch scheduled a follow-up in three

months to keep track of the situation. (Doc. 123-2 at 456).

In late May 2020, Dr. Birch noted that Plaintiff’s weight had dropped from 154 to 133

pounds since February 2020.2 She saw him regarding his dietary issues and discussed labs to

check for other health issues. She indicated she would look into his food allergy issue further by

reviewing his commissary purchases and dietary meals. (Doc. 123-2 at 524-527). She ultimately

ordered a no seafood diet on June 1, 2020, because Plaintiff did not buy food from commissary

and she believed he may nutritionally need a substitute for fish given his weight loss. (Doc. 123-

2 at 528-29).

2 Dr. Birch noted Plaintiff had been refusing the monthly weight checks that she ordered in February 2020, but she

became aware of his weight loss because he allowed his weight to be recorded for a separate reason in May 2020.

(Doc. 123-2 at 524).

Plaintiff was seen on July 29, 2020 for follow-up on his weight because he was refusing

weight checks that were previously ordered by Dr. Birch. (Doc. 123-2 at 542-556). He refused to

have his weight checked at that time and reiterated his request for a non-seafood diet. (Id.). He

indicated that at the time of the visit that he had not been receiving any seafood on his trays. (Id.

at 552). The provider recommended that Plaintiff be placed on observation to record his dietary

habits because he was refusing diagnostic testing to assess his nutrition and weight. (Id. at 554-

556). Plaintiff was placed in observation from July 28, 2020 to July 30, 2020, when he agreed to

the diagnostic labs. (Doc. 123-2 at 556-572). His weight was recorded as 155 pounds on July 30,

2020. (Id. at 574).

Nevus of the Ota

On January 26, 2018, Plaintiff was seen by medical staff who documented nevus of the ota

(“nevus”). (Doc. 133-4 at 248). Plaintiff reported during a nurse sick call on September 13, 2019

that heat from the outdoors “seems to irritate” his nevus. (Doc. 133-4 at 308). Plaintiff testified

that when he irritated his nevus, he would spritz or splash his face with water that was accessible

in his cell. (Doc. 123-2, Plaintiff Dep. 163:21-164:2). According to Dr. Birch, a nevus of the ota

is a benign skin condition that is not associated with heat sensitivity. (Doc. 133-1, Birch

Declaration at ¶ 5n).

Back pain

On September 13, 2019, Plaintiff reported to a nurse that his low back pain was caused by

a fractured back at age 11. (Doc. 133-4 at 309). He saw a nurse practitioner on September 18,

2019, at which time he reported low back pain and requested a low bunk permit/medically

unassigned status and a thick mattress. (Doc. 133-4 at 311). The nurse practitioner allowed a

temporary low bunk permit and unassigned status. (Id.). She ordered a back x-ray, which Plaintiff

declined on September 23, 2019. (Id., 312).

Dr. Birch first saw Plaintiff on October 4, 2019 to follow-up regarding his x-ray refusal

and heat related concerns. (Birch Decl., 123-1 at ¶ 5k). He requested a thick mattress with special

springs to address his chronic back pain. (Id.). Dr. Birch noted that his physical exam a month

prior was normal, and that he refused x-rays to assess his back. (Id. at ¶ 5l). Prior x-rays from

October 2016 revealed mild degenerative disk disease but did not show any other injuries. (Id. at

¶ 5l). Despite being unable to confirm a specific injury, Dr. Birch issued low bunk and medically

assigned permits for a year. (Id. at ¶ 5l).

Plaintiff went to nurse sick call for ongoing back pain on November 19, 2019. He reported

the cause of pain was a June 2016 injury and requested a low gallery permit. (Doc. 133-4 at 327).

No physical findings or abnormalities were noted. Plaintiff was submitted for a follow-up. (Id.).

Plaintiff went to nurse sick call on January 3, 2020 following a reported fall walking

downhill. He refused a follow-up doctor’s appointment a few days later. (Doc. 123-2 at 436-439).

He was seen later the day of the refusal and asked about how to get a low gallery permit. He was

told that because he had no injuries other than superficial abrasions, he did not qualify for the

permit. (Doc. 123-2 at 440-442).

Plaintiff saw Dr. Birch for his back pain in January 2020. He reported that he slipped and

fell on stairs in the rain and needed a low gallery permit. (Id. at ¶ 5s). He stated he normally had

no problems traversing stairs. Dr. Birch determined that a low gallery permit was not medically

necessary. (Id. at ¶ 5s).

Plaintiff went to a doctor sick call on February 26, 2020. He complained of neck pain and

problems with his bed. He was prescribed Robaxin. (Doc. 123-2 at 462).

Plaintiff saw Dr. Birch about his seafood diet in May 2020. He also complained that he

had neck pain in association with his back pain. Dr. Birch discussed his refusal to have x-rays to

better assess his problems. (Doc. 123-2 at 526). Plaintiff then stated that his Robaxin prescription

was okay for his pain. (Id.).

Plaintiff’s low bunk permit was continued for a year on August 10, 2020, without

explanation at a doctor’s visit. (Doc. 123-2 at 584). Plaintiff re-presented multiple times in August

2020 concerning his back/low bunk, which he said he needed for a 2016 injury. (Doc. 123-2 at

587-99). On August 31, 2020, the low bunk permit was revoked, and it was noted he did not

qualify. (Doc. 123-2 at 600).

Plaintiff returned to nurse sick call on September 25, 2020 and expressed concerns about a

bottom bunk permit which he claimed he needed because he had autism which makes him

“stumbly.” (Doc. 123-2 at 466).

Plaintiff returned to nurse sick call on October 6, 2020. He stated he needed a low bunk

because of multiple fractures, sciatica, autism, heat strokes, and various other health issues. (Doc.

123-2 at 469).

Plaintiff followed up about his low bunk concerns with a doctor on October 12, 2020, who

explained he did not meet the requirements for a low bunk. (Doc. 123-2 at 470-71). Plaintiff

reiterated that he needed the bunk permit for clumsiness. (Id.).

Heat strokes

Plaintiff suffered a heat stroke or heat exhaustion at Dixon in July 2015. (Doc. 133-4 at

122-125). He suffered another heat stroke on September 10, 2019, while attempting to carry a

heavy property box up a flight of outdoor stairs. He was taken to the healthcare unit where he

rested and was observed in air conditioning overnight. (Doc. 133-4 at 299-302). A nurse

practitioner evaluated him and discharged him to his housing unit. She noted he raised concerns

such as permits, a hunger strike, and the need for a transfer to an air-conditioned facility. (Id. at

302). Plaintiff reported his heat stroke concerns to a nurse practitioner on September 18, 2019,

and indicated he believed he should be transferred to an air-conditioned facility. (Doc. 133-4 at

311).

Plaintiff reiterated his heat stroke concerns during nurse sick call on October 1, 2019. He

self-reported multiple additional heat stroke/exhaustion issues in intervening days. At the time of

the visit, his vital signs were normal, and a heat stroke was not indicated. (Doc. 133-4 at 314-315;

Dr. Birch Decl., Doc. 123-1 at ¶ 5j).

Plaintiff and Dr. Birch discussed his heat related concerns on October 4, 2019, and he

expressed his desire to be returned to a facility with air conditioning, which he believed was

essential to his health. (Dr. Birch Decl., Doc. 123-1 at ¶ 5k). Dr. Birch concluded that because it

was then fall, air-conditioning was not necessary. (Id. at ¶ 5k).

Dr. Birch next saw Plaintiff and discussed his heat related concerns on June 25, 2020. (Dr.

Birch Decl., Doc. 123-1 at ¶ 5ii). Plaintiff stated he would dismiss her and her subordinates from

pending civil lawsuits if she would transfer him to an air-conditioned prison. (Id. at ¶ 5ii). Dr.

Birch refused to engage Plaintiff’s negotiation attempt, but at Plaintiff’s request, indicated she

would consult the Robinson medical director about his heat stroke issues. (Id.). Dr. Birch had no

further interactions with Plaintiff about his heat sensitivity.

In August and September 2020, Plaintiff again complained about heat sensitivity and was

seen both on nurse sick call and by a doctor. (Doc. 123-2 at 598-99, 604-05, 608-610). At the

doctor’s visit September 21, 2020, he insisted he should be provided a fan and/or should be

transferred to facility with air conditioning. (Doc. 123-2 at 608-10). The doctor noted he had

experienced no subsequent episodes of diagnosed heat stroke. (Doc. 123-2 at 609).

Plaintiff testified at his deposition that he prevented subsequent heat strokes by limiting his

movement and activity during the hottest times. (Doc. 123-2, Plaintiff Dep. 132:14-20, 150:4-18).

Chronic Allergies

Plaintiff was seen in March 2020 for chronic seasonal allergies. He reported his

prescription for Zyrtec was not working. (Doc. 123-2 at 514). Dr. Birch saw him for complaints

of chronic allergies and noted his improper usage of Zyrtec (he reported taking 2-3 pills a day).

(Doc. 123-2 at 516). She recommended that he take Zyrtec as prescribed and added Singulair.

(Doc. 123-1, Dr. Birch Declaration at ¶ 5z).

Plaintiff was seen at nurse sick call on March 18, 2021, concerning his allergies, at which

time he reported he was taking three Zyrtec pills at a time and asked for more pills. (Doc. 123-2).

The nurse educated Plaintiff on proper dosage and asked him to retrieve any medications he had

in his cell to establish the quantity he possessed. (doc. 123-2 at 488-89). Plaintiff produced six

pills and reported discarding others. (Id. at 489). The nurse had security search his cell, at which

time his cellmate reported that Plaintiff sells his medications in his housing unit. (Id. at 489-90).

Plaintiff was informed he could no longer keep the medications in his cell. (Id. at 489-90).

A week later Plaintiff sought healthcare because he believed his allergy medications had

not been working for the past few months. He argued with staff about not being able to keep them

in his cell any longer. (Doc. 123-2 at 496-501). He threatened to sue staff if they did not return

his medications. (Id. at 498-99).

Plaintiff refused a physical examination on March 26, 2021. Given his complaints about

his allergy medications, Claritin was added to his medication. (Doc. 123-2 at 502). On April 5,

2021, Plaintiff asked that his Singulair and Claritin be discontinued. (Doc. 123-2 at 508).

Asperger’s

Defendants submitted mental health records that do not reflect a formal Asperger’s

diagnosis. (Doc. 133-5). In a September 22, 2020 mental health session, Plaintiff suggested that

his autism caused him to be clumsy and should provide a reason for his low bunk permit to be

renewed. (Doc. 133-5 at 86). Plaintiff testified that Asperger’s made him prefer continuity over

change, and that he wanted to have access to more reading materials to stimulate his intellectual

capacity. (Doc. 123-3, Plaintiff Dep. At 83:18-84:14). He also testified that he wanted a mental

health professional to diagnose him and to provide a treatment plan to make incarceration more

tolerable for him. (Id. at 85:11-21).

DISCUSSION

Summary judgment is proper if there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party bears

the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment is

made, the adverse party must identify specific facts in the record showing that genuine issues of

material fact exist precluding summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). In deciding a motion for summary judgment, the court “…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 v. Finantieri Marine Grp., LLC, 763 F.3d 832, 836

(7th Cir. 2014).

Dr. Birch – (Doc. 122)

The Eighth Amendment prohibits deliberate indifference to the serious medical needs of

prisoners. Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) (citing Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). An inmate proceeding on a claim of deliberate indifference to

medical needs must offer evidence that he suffered from an objectively serious medical condition,

and that the defendant knew of and disregarded a substantial risk of harm. Murphy v. Wexford

Health Sources Inc., 962 F.3d 911, 915 (7th Cir. 2020).

A medical condition is objectively serious if it “has been diagnosed by a physician as

mandating treatment” or is “so obvious that even a lay person would perceive the need for a

doctor’s attention.” Perry v. Sims, 990 F.3d 505, 511 (7th Cir. 2021) (quoting Greeno v. Daley,

414 F.3d 645, 653 (7th Cir. 2005). An inmate may establish deliberate indifference to such a

condition by demonstrating that the treatment he received was blatantly inappropriate. Greeno,

414 F.3d at 654. Medical professionals are entitled to deference in treatment decisions unless “no

minimally competent professional would have so responded under those circumstances.” Sain v.

Wood, 512 F.3d 886, 894-95 (7th Cir. 2008). Disagreement between an inmate and his doctor, or

even between two medical professionals, about the proper course of treatment generally is

insufficient, by itself, to establish an Eighth Amendment violation. Johnson v. Doughty, 433 F.3d

1001, 1013 (7th Cir. 2006). Dr. Birch argues she is entitled to summary judgment because

Plaintiff’s conditions did not present objectively serious medical issues, and even if they did, her

course of care did not constitute deliberate indifference. The Court agrees.

A refusal to participate in confirmatory diagnostic testing can negate a claim for deliberate

indifference. See, Walker v. Peters, 233 F.3d 494, 502 (7th Cir. 2000) (affirming summary

judgment in favor of doctors who offered confirmatory testing for HIV that an inmate refused to

accept). At the time of Plaintiff’s initial visit with Dr. Birch on October 4, 2019, Plaintiff had

refused an x-ray to determine the origin of his back pain. Nevertheless, Dr. Birch provided

Plaintiff accommodations and treatment for these conditions. She reviewed the most recent x-ray

films in his prison file from 2016 which showed fairly mild arthritic deterioration. She gave him

low bunk and medically unassigned permits for a year. She also provided pain medication when

he reported he had developed neck pain in relation to his back pain. Against this backdrop, it

cannot be said that Dr. Birch was deliberately indifferent to Plaintiff’s chronic back pain.

With respect to Plaintiff’s self-reported seafood allergy, Dr. Birch offered a confirmatory

blood test, which Plaintiff refused. When she became concerned about Plaintiff’s weight loss in

May 2020, Dr. Birch offered other diagnostic labs to assess his overall health and removed seafood

from Plaintiff’s diet despite her inability to confirm the allergy. Plaintiff refused to participate in

ongoing weight checks and refused routine allergy testing as ordered and refused by Dr. Birch. He

insisted that because previous facilities had simply acted on his self-reported allergy, Dr. Birch

should follow along. But his self-report of an allergy without medical evidence cannot support a

finding of deliberate indifference. See e.g., Steele v. Zwiers, 2014 WL 631698 (E.D. Wisc. Feb.

18, 2014) (finding that prison doctors were not deliberately indifferent to an inmate’s medical

needs where the inmate had no confirmed tomato allergy and relied on self-reporting and dietary

preferences at past institutions to seek a special diet).

Plaintiff also reported a predisposition to heat stroke/heat exhaustion to Dr. Birch during

his initial visit with her on October 4, 2019. Obviously, at that time, the risk of him suffering with

that condition had abated for the year, and no action was required by Dr. Birch. She next saw

Plaintiff for complaints related to heat on June 25, 2020, at which time she indicated she would

attempt to verify his concerns with the Robinson medical director at Plaintiff’s request. Whether

she did so before she left her employment at Vienna on July 21, 2020 (Doc. 123-1, Birch Decl., at

¶ 5kk) is both unclear and insignificant because other than the September 2019 incident at Vienna,

there is no documentation of Plaintiff suffering a heat stroke during the course of Dr. Birch’s

treatment. Moreover, Plaintiff testified that he learned to manage his sensitivity to heat at Vienna

by limiting his movement on the hottest days and applying cool cloths. As such, there is no

evidence in the record the heat stroke/exhaustion was a serious medical issue for Plaintiff or that

he suffered any harm to support his deliberate indifferent claim.

Plaintiff’s claim based on his nevus of the ota fares no better. While Plaintiff testified

during his deposition about how the nevus condition could pose a risk to his eye health, this

speculation alone does not establish an objectively serious medical issue. And Dr. Birch indicated

via signed declaration that nevus is not negatively impacted by heat. On this record, no reasonable

jury could conclude that Dr. Birch was deliberately indifferent with respect to this condition.

Finally, as a matter of law, Dr. Birch was not deliberately indifferent for her treatment of

Plaintiff’s seasonal allergies. The seriousness of seasonal allergies as a medical condition is

debatable, but even assuming Plaintiff’s allergies are sufficiently serious, as Dr. Birch prescribed

additional medication to manage his discomfort, she did not exhibit deliberate indifference in this

regard. She is therefore entitled to summary judgment on Count 2.

Dr. Birch is also named in Count 3, for allegedly violating Plaintiff’s right to equal

protection by denying him transfer to an air-conditioned facility, despite having allowed transfer

for another inmate with severe burns on his face. Under the Fourteenth Amendment’s Equal

Protection Clause, a plaintiff who does not allege that he is a member of a protected class may

bring a claim of discrimination under a “class-of-one” theory.” 145 Fisk, LLC v. Nicklas, 986 F.3d

759, 770-71 (7th Cir. 2021). To sustain such a claim, a plaintiff must provide evidence from which

a reasonable jury could infer he was treated differently from others similarly situated and that there

was no rational basis for the difference in treatment. Id. at 771. “To be similarly situated, a

comparator must be identical or directly comparable to the plaintiff in all material respects.” Miller

v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015).

As Dr. Birch argues, there is not sufficient evidence to suggest that Plaintiff and this other

inmate are similarly situated for purposes of a class-of-one equal protection claim. Plaintiff

suggested in his pleadings and his deposition that the inmate who was transferred had sustained

severe disfigurement and burns on his face, which were exacerbated by heat. Plaintiff’s condition,

for which he argued he should be transferred, was nevus, which Dr. Birch averred in her

declaration was benign and not exacerbated by heat. Thus, even crediting Plaintiff’s testimony

that he suffered some discomfort related to nevus, he has failed to produce evidence on the record

sufficient to established that his birthmark like condition is similar in “all material” respects, such

that the other inmate was a fair comparator. Therefore, Dr. Birch is entitled to summary judgment

on Count 3.

This leaves the state law negligence claims against Dr. Birch in Counts 4 and 5. To

minimize frivolous medical malpractice lawsuits, Illinois law requires the plaintiff to file a

physician’s certificate of merit and accompanying report with every malpractice complaint. See

Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000) (citing 735 Ill. Comp. Stat. 5/2-622). Here,

Plaintiff has not submitted a verifying medical affidavit (which is required at summary judgment)

for Count 4, in which he asserts a medical negligence claim against Dr. Birch for failing to address

his back and neck pain and heat sensitivity. Consequently, Count 4 is subject to dismissal.

Count 5 alleges simple negligence against Dr. Birch for refusing a transfer to an air-

conditioned prison and does not require the same certification. Nevertheless, because all federal

claims against Dr. Birch will be dismissed, the Court declines to exercise supplemental jurisdiction

over this claim; Count 5 will be dismissed as well. See 28 U.S.C. § 1367(c)(3).

Penny George (Doc. 132)

Plaintiff’s only allegation against Defendant George is that she, as healthcare administrator,

knowingly ignored his nurse sick call slips at least nine times from September to October of 2019

when he was suffering from heat stroke/exhaustion. In support of this allegation, Plaintiff supplied

purported copies of sick call slips dated September 13, 2019 through September 17, 2019 (daily)

and from September 26, 2019 through September 29, 2019 (again daily). (Doc. 1 at 32-36). He

notes in writing on these exhibits that he sought medical care nine times but was seen by nurse

sick call zero times. (Doc. 1 at 36). However, Plaintiff’s assertion is plainly contradicted by the

medical records submitted by Defendants.

The medical records contain nurses notes from September 13, 2019 (Doc. 123-2 at 282),

September 19, 2019 (Doc. 123-2 at 288), September 23, 2019 (indicating that Plaintiff refused x-

rays on September 23, 2019) (Doc. 1 at 287), and October 1, 2019 (Doc. 123-2 at 290-91). The

notes reflect the medical staff’s attempts to assess and be responsive to Plaintiff’s stated needs.

Additionally, a temporary medical permit for low bunk and medically unassigned status issued on

September 18, 2019 and extended for a year on October 4, 2019 (Doc. 1 at 30, 31).

Significantly, George was not a licensed physician and was not able to diagnose conditions

or prescribe a particular course of treatment. (Doc. 154, George Decl. at ¶ 3). Faced with this

evidence, no reasonable jury could find that George was deliberately indifferent to Plaintiff’s

medical needs in September or October 2019.3 Summary judgment will be granted in George’s

favor on Count 2.

3 Penny George left her employment at Vienna in June of 2020. To the extent Plaintiff had medical issues beyond

that date, George was not involved. (Doc. 154, George Decl. at ¶ 1).

George also seeks summary judgment on the gross negligence/negligence claim asserted

against her in Count 5. She argues this claim must be dismissed because Plaintiff did not submit

the medical certification required by Illinois law, but as previously noted, a general or simple

negligence claim does not require certification. That said, because the only federal claim against

George will be dismissed, the Court declines to exercise supplemental jurisdiction the state law

negligence claim asserted against her in Count 5; it will be dismissed as well. See 28 U.S.C. §

1367(c)(3).

Rob Jeffreys (Doc. 132)

In Count 1, Plaintiff brings an ADA/Rehabilitation Act claim against Defendant Rob

Jeffreys in his official capacity as the former IDOC Director. Jeffreys argues that Plaintiff’s

medical conditions did not qualify him as disabled for purposes of the ADA, that the

accommodations he sought were not reasonable, and that he did not establish deliberate

indifference for purposes of compensatory damages.

“Discrimination claims under the ADA and Rehabilitation Act are governed by the same

standards, with one exception related to causation[.]” Bowers v. Dart, 1 F.4th 513, 519 (7th Cir.

2021). Under both statutes, a plaintiff must prove he is a qualified individual with a disability, and

that he was denied access to a service, program, or activity because of his disability. Id., citing

Shuhaiber v. Ill. Dep’t of Corr., 980 F.3d 1167, 1170 (7th Cir. 2020). The ADA defines a disability

as either “a physical or mental impairment that substantially limits one or more major life

activities”; “a record of such an impairment”; or “being regarded as having such an impairment.”

42 U.S.C. § 12102(1); see also 29 U.S.C. § 705(9)(b) (Rehabilitation Act’s definition of disability

refers to the ADA). Major life activities include walking, standing, bending, and caring for oneself.

Jaros, 684 F.3d at 672. An “impairment need not prevent, or significantly or severely restrict, the

individual from performing a major life activity in order to be considered substantially limiting.”

Id.; see also Hirmiz v. New Harrison Hotel Corp., 865 F.3d. 475, 476 (7th Cir. 2017). Factors

relevant to a court’s determination include “the nature and severity of the impairment, the duration

or expected duration of the impairment, and the permanent or long-term impact of the impairment.”

Smith v. Concentra, Inc., 240 F. Supp. 3d 778, 786 (N.D. Ill. 2017).

An individual is “regarded as” having a qualifying impairment if subjected to a prohibited

action “because of an actual or perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(1)(C), 3(A).

“To meet the ‘regarded as’ prong, the [defendant] must believe, correctly or not, that the [plaintiff]

has an impairment that substantially limits one or more of the major life activities.” Bowers, 1

F.4th at 520, citing Povey v. City of Jeffersonville, 697 F.3d 619, 622 (7th Cir. 2012).

Under the ADA or the RA, a reasonable accommodation does not require a perfect cure for

the problem. See Stewart v. County of Brown, 86 F.3d 107, 112 (7th Cir. 1996); see also Wagoner,

778 F.3d at 593. In defining a reasonable accommodation in in the correctional facility context,

courts consider the accommodation “in light of the overall institutional requirements,” including

security and safety concerns and “administrative exigencies.” Love, 103 F.3d at 561. This

determination is “highly fact-specific” and requires a case-by-case analysis. Dadian v. Village of

Wilmette, 269 F.3d 831, 838 (7th Cir. 2001).

To recover damages under the ADA, a plaintiff must identify intentional conduct (not mere

negligence) by a named defendant. See Barnes v. Gorman, 536 U.S. 181, 187–89, 122 S.Ct. 2097,

153 L.Ed.2d 230 (2002) (analyzing § 202 of the ADA and § 504 of the Rehabilitation Act). This

requires the plaintiff to plausibly allege that the defendant acted with deliberate indifference to

rights conferred by the Act. See Lacy v. Cook County, 897 F.3d 847, 862–63 (7th Cir. 2018).4

Defendants argue that Plaintiff’s heat sensitivity and his self-reported Autism/Asperger’s

do not render him a qualified individual under the ADA/RA because they do not cause major

impairments of his life activities, and that nevus of ota is not a disability at all. They also contend

that while his back pain and seafood allergies could be considered qualifying disabilities, they

were neither adequately documented in medical records or otherwise supported by the case record,

nor was he regarded as having these impairments. Finally, Defendants argue that even if any of

these conditions are sufficient to warrant some accommodation, the accommodations Plaintiff

requested were not reasonable, and that he has not established deliberate indifference to warrant

compensatory damages.

The evidence in the record would not support a finding that Plaintiff’s susceptibility to heat

stroke/exhaustion limits a major life activity, given “the nature and severity of the impairment, the

duration or expected duration of the impairment, and the permanent or long-term impact of the

impairment.” Shaw v. Williams, 2018 WL 3740665 *8 (N.D. Ill Aug. 7, 2018), citing Smith v.

Concentra, Inc., 240 F.Supp.3d 778, 786 (N.D. Ill. 2017). Taking Plaintiff’s deposition testimony

at face value, although he described unpleasantries associated with heat sensitivity, such as need

to remain still on the hottest days, or to perform activities slowly, he did not describe an inability

to carry on with the basic tasks of life such as eating, sleeping, working on his legal cases, etc.

Likewise, Plaintiff fails to satisfy the second and third prongs for establishing an ADA

claim – that the condition either be recorded, or that he be regarded has having this disability. The

4By contrast, Plaintiff cannot recover monetary damages under the Rehabilitation Act. Because Plaintiff has been

released from custody, this aspect of his claim in Count 1 is MOOT. See e.g., Lane v. Pena, 518 U.S. 187, 192-97

(1976) (the Rehabilitation Act only allows claims for injunctive relief).

medical records contain many notes reflecting Plaintiff’s self-reported heat sensitivity, but no

actual diagnosis. During his deposition, he stated he was never specifically diagnosed with a heat

sensitivity condition and that he avoided problems with his sensitivities throughout his life by

minimizing his exposure to heat. Nor does the evidence in the record establish that the prison

regarded him as a having a predisposition to heat strokes or heat exhaustion. Thus, the Court finds

as a matter of law that Plaintiff’s heat sensitivity did not qualify as a disability for purposes of the

ADA, and the prison did not need to provide accommodations for that condition.

Plaintiff also alleged that his nevus of the ota was impacted by heat. Nevus was

documented in Plaintiff’s medical records in a few instances, including one occasion when he told

a nurse that it ‘burned’ a bit. Despite this one report, there is no evidence in the record that nevus

impacted his ability to function for any significant period. And, brief periods of impairment do

not support a finding that Plaintiff suffered a disability within the meaning of the ADA. See, Shaw,

2018 WL 3740665 at *9 (N.D. Ill. Aug. 7, 2018). In sum, the evidence on record is also insufficient

to establish that Plaintiff’s nevus constituted a disability under the ADA.

Plaintiff has also failed to establish that he qualifies under the ADA for accommodation

based on his seafood allergy; there is no medical record of the allergy while Plaintiff was at Vienna,

and he was not regarded as allergic to seafood. In fact, there are many places in the record where

providers explicitly noted the lack of a record or proof that Plaintiff has a seafood allergy. And

although some previous facilities omitted seafood from his diet, this appears to have been done

only at his request and not because he had a diagnosed allergy. At Vienna, Plaintiff repeatedly

refused testing to confirm it.

Eventually, when she discovered that Plaintiff had a significant weight loss, Dr. Birch

allowed a no-seafood diet because Plaintiff’s refusal of diagnostic testing left her with essentially

no options to address the weight loss. Even if the allergy were considered a qualifying disability,

and a no-seafood diet was a reasonable accommodation.

Similarly, Plaintiff has not established that IDOC was deliberately indifferent for their

handling of his seafood complaints. Vienna offered testing to pinpoint his allergy and eventually

offered an alternative diet when Plaintiff’s refusal to cooperate left no other avenue to address his

weight loss. Against this backdrop, it cannot be said the facility was deliberately indifferent in

this respect.

Finally, the evidence regarding Plaintiff’s chronic back pain would not support a finding

in his favor on his ADA claim. There is evidence that Plaintiff suffered an acute back injury in

2016, which may have been the source of chronic back pain and discomfort. As a result, prisons

in which Plaintiff was incarcerated prior to 2019 gave him permits for a low bunk and medically

unassigned status (no prison job), and he alleges they also gave him special mattress

accommodations.

The low bunk/unassigned permits were continued at Vienna. To specifically diagnose his

back complaints, the medical team attempted to schedule him for an additional x-ray, but he

refused to undergo the testing. Thus, there was no clear diagnosis of a permanent injury.

Nevertheless, the evidence may support a finding that IDOC regarded Plaintiff as disabled because

they issued the low bunk/unassigned permits, but this is not the end of the inquiry.

To succeed on his failure to accommodate claim, Plaintiff must also establish that he was

denied the benefits of services, programs or activities by reason of his disability. Wagoner v.

Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). And he would also have to show that the sought after

accommodations were reasonable. Love, 103 F.3d 558, 560 (7th Cir. 1996). The evidence does

not support him on either of these inquiries.

Plaintiff has not demonstrated that he was denied services, programs, or activities by reason

of his chronic back pain. He does not identify anything specific that he was unable to do because

of his chronic back pain. He complains that it was inconvenient for him to access his personal

legal files in one warehouse building and to access the law library in a separate building, but he

does not claim he was unable to do it – Inconvenience is not enough to support a failure to

accommodate claim. See e.g., Wagoner, 778 F.3d at 593.

Additionally, Plaintiff has not shown that the accommodations he received were

insufficient and that it would also have been reasonable to give him the accommodation he wanted

(a special mattress). He testified he was told the mattress he transferred to Vienna with was not

approved due to security concerns; it was viewed as a fire hazard. Despite the mattress not being

immediately available, the medical staff offered to further assess his back issues, but he refused to

participate in diagnostic x-rays. On this evidence the jury could not reasonably conclude that the

additional accommodation was necessary or reasonable. Moreover, even if Plaintiff met the

requirements to demonstrate he had a qualifying disability and that he should have received further

reasonable accommodations, the only damages he could receive now that he has been released

from prison are monetary. But that would require him to also prove that IDOC’s handling of his

disability issue amounted to deliberate indifference, which for the reasons previously noted, he

could not do.

Plaintiff’s ADA claim concerning his self-reported Asperger’s fails as a matter of law as

well. There is no verified record that Plaintiff has Asperger’s, and it does not appear that the prison

regarded him as such. He has not identified any programs or services from which he was excluded

based on this alleged disability. Nor has he identified specific accommodations to which he

believes he was entitled. Summary Judgment will be granted on Count 1 as well.

CONCLUSION

For the foregoing reasons, Defendant Dr. Birch and Defendants George and Jeffreys’

Motions for Summary Judgment (Docs. 122, 132) are GRANTED in their entirety. The Clerk of

Court is DIRECTED to enter judgment consistent with this Order and to close this case.

IT IS SO ORDERED.

DATED: September 29, 2023

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge

If Plaintiff wishes to appeal this Order, he must file a notice of appeal with this Court within

thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). If Plaintiff chooses to appeal, he

will be liable for the $505.00 filing fee irrespective of the outcome of the appeal. See FED. R. APP.

P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-56 (7th Cir. 2008).

Moreover, if the appeal is found to be without merit or frivolous, Plaintiff may incur another

“strike” under 28 U.S.C. § 1915(g).

A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may

toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no

later than 28 days after the entry of judgment, and this 28-day deadline cannot be extended.