# Mudica v. McBride

> District Court, N.D. Indiana · March 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10162275

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** March 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10162275

## How later opinions describe it (automated extraction)

- finding deaf inmate stated a claim under the ADA and Rehabilitation Act because the jail failed to ensure he had access to effective means of communication, including auxiliary aids, TDD’s or qualified interpreters, which qualified as a services and/or activities
- noting that meals made available to inmates are considered a “program or activity

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

DONALD E. MUDICA III,

Plaintiff,

v. CAUSE NO. 3:20-CV-593-JD-MGG

JUSTIN MOODY, et al.,

Defendants.

OPINION AND ORDER
Donald E. Mudica III, a prisoner without a lawyer, filed an amended complaint
against three employees of St. Joseph County Community Corrections (SJCCC).1 “A
document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, the court must review

1 According to the St. Joseph County website, “[i]n 1981 Indiana initiated a Community
Corrections program whose purpose is to assist the Indiana Department of Correction in fulfilling its
mission by establishing and operating local corrections and criminal justice programs that protect the
public safety while providing effective alternatives to imprisonment at the state level. Access governing
statutes I.C. 11-12-1. Each year in St. Joseph County nearly 900 adult and 400 juvenile offenders serve
sentences through local corrections programs, and the vast majority of convicted offenders will serve at
least a portion of their sentence under some kind of community supervision. Community Corrections in
St. Joseph County employs a wide variety of programs that ensure public safety through the use of
placements that are tailored to the individual needs of offenders.” See
https://www.sjcindiana.com/149/Community-Corrections (last visited March 10, 2022). The Indiana
Code defines a “community corrections program” as a “community based program that provides
preventative services, services to offenders, . . . [and] services to persons sentenced to imprisonment, . . .
and is operated under a community corrections plan of a county and funded at least in part by the state
subsidy provided in IC 11-12-2.” Ind. Code § 11-12-1.
the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief against

a defendant who is immune from such relief. The court applies the same standard as
when deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal, a
complaint must state a claim for relief that is plausible on its face. Bissessur v. Indiana
Univ. Bd. of Trs., 581 F.3d 599, 602 (7th Cir. 2009).
Mudica was confined at the South Bend Re-entry Facility when he filed this

amended complaint. However, he complains of events that happened at SJCCC2
between March 21, 2018, and January 3, 2019. According to Mudica, SJCCC has
documentation of his hearing disability on file from previous stays. Due to his bilateral
profound sensorineural hearing loss, Mudica cannot hear intercoms or use the push to
talk devices that are required to communicate with staff. When he arrived at SJCCC on

March 21, 2018, he was not seen by a case manager to discuss those hearing issues and
address reasonable accommodations. Instead, he was placed in a regular unit where he
was unable to participate in activities, hear announcements, set doctor appointments, or
communicate with his family. Mudica began writing to Michael Wells, his prior case

2 Mudica lists the address of the SJCCC program he was housed in as 4161 Lathrop St. South
Bend, IN 46628. See ECF 15 at 2. The St. Joseph County official website describes this location as the “St.
Joseph County Community Corrections – DuComb Center” which was “one of the first work release
facilities in the state of Indiana. It is a community-based residential facility located near the South Bend
Airport. Funded through the Indiana Department of Corrections (sic) and user fees, DuComb Center is
administered by the Community Corrections Advisory Board. It serves as an alternative to incarceration,
and provides programming in job readiness, substance abuse and cognitive skills.” See
http://www.stjosephcountyindiana.com/departments/SJC_correction/ducomb_center/ (last visited
March 10, 2022).
manager, for help, but Wells failed to respond. Instead, he told another employee, “Mr.
Mudica has been here six times he knows how this works.” ECF 15 at 2.

On March 22, 2018, Mudica asked Tomilla Hopkins, the officer in charge, for
assistance. She accused him of faking his disability, refused him any help, and warned
him that he would face consequences if he missed any announcements. Because he was
unable to hear them, he was denied medication more than thirty times, and he was
disciplined. He was also removed from the second phase of an outpatient therapy
program and was not able to accrue points for participation.

Shortly after his arrival, Mudica was transported to an outside hospital where he
was diagnosed with impetigo and was referred to an oncologist. He was informed that
he was not eligible for Medicaid while incarcerated, so the SJCCC purchased the
medication for his contagious condition but refused to fill medications for his other
conditions or arrange for a visit to the oncologist. When he complained to Case

Manager Wells, he was told to apply for insurance through Indiana’s Family and Social
Services Administration (FSSA) even though Case Manager Wells knew Mudica had
already been denied. He alleges he was “left to suffer in pain for months without
prescriptions and access to medical treatment ordered by doctors.” Id. at 3. In August of
2018, when he did finally obtain insurance, no one at SJCCC would help him set up

doctor appointments which made it difficult because there are no TTY machines at
SJCCC.
Between April 5, 2018, and December 26, 2018, Mudica filed several grievances
regarding the fact that he needed accommodations for his hearing disability. Officer
Hopkins received his grievances, but Mudica never received a response. Instead, he was
written up for multiple violations which Mudica describes as frivolous. On December

26, 2018, Justin Moody, the program manager at SJCCC, “used the conduct reports to
remove the minimal points [he] had to violate my placement.” Id. at 3. Mudica believes
Program Manager Moody wanted him out of the facility “because [he] was disabled.”
Id. He told Mudica to plead guilty to the reports in court, and he would recommend
home detention. However, the judge “refused to allow a step down into home
detention,” and the “scheme backfired landing [him] back in IDOC for an additional

three years.” Id.
Mudica has sued Program Manager Moody, Case Manager Wells, and Officer
Hopkins for compensatory damages. He also asks the court to “order SJCCC to abide by
the policies that ensure the disabled accommodations mandated by the Americans with
Disabilities Act.” Id. at 4.

Title II of the Americans with Disabilities Act (ADA) provides that qualified
individuals with disabilities may not “be excluded from participation in or be denied
the benefits of the services, programs or activities of a public entity.” 42 U.S.C. § 12132.
Prisons and correctional facilities are public entities within the purview of Title II. See
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Officials can be sued under the ADA

for declaratory and injunctive relief. Radaszweski ex rel. Radaszewski v. Maram, 383 F.3d
599, 606 (7th Cir. 2004). Where an inmate seeks monetary damages, the Seventh Circuit
has suggested replacing a prisoner’s ADA claim with a parallel claim under the
Rehabilitation Act, 29 U.S.C. § 701, given the uncertainty about the availability of
damages under Title II and because the relief available is “coextensive.” Jaros v. Ill. Dep’t
of Corr., 684 F.3d 667, 671–72 (7th Cir. 2012). Under the Rehabilitation Act, damages are

available against a state that accepts federal assistance for prison operations, as all states
do. Id. To state a claim under the Rehabilitation Act, a plaintiff must allege that (1) he is
a qualified person (2) with a disability and (3) the defendant denied him access to a
program, service, or activity or otherwise discriminated against him because of his
disability.3 Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). “Refusing to make
reasonable accommodations is tantamount to denying access.” Jaros, 684 F.3d at 672

(citation omitted). Additionally, a plaintiff can establish intentional discrimination
through a showing of deliberate indifference. Lacy v. Cook Cty., Illinois, 897 F.3d 847, 863
(7th Cir. 2018). In other words, discrimination occurs when the defendant knows that a
violation of these rights is “substantially likely” yet fails to act. Id. (citation omitted). A
claim under either the ADA or Rehabilitation Act cannot be brought against individual

employees but may be brought against the department head of the facility in his or her
official capacity. Jaros, 684 F.3d at 670 & n.2.
Here, Mudica alleges his bilateral profound sensorineural hearing loss
substantially limits his ability to hear and that this impairment was documented with

3 “[W]ith respect to this lawsuit, the analysis governing each statute is the same except that the
Rehabilitation Act includes as an additional element the receipt of federal funds, which all states accept
for their prisons.” Jaros, 684 F.3d at 670; see also Conners v. Wilkie, 984 F.3d 1255, 1260 (7th Cir. 2021)
(noting that the standards under the ADA and the Rehabilitation Act are the same except that under the
Rehabilitation Act “the plaintiff’s disability must be the sole reason for the alleged discriminatory action”
while the ADA “requires only that [it] be a reason for the challenged action”) (emphasis in original).
SJCCC. Accordingly, he has plausibly alleged he is a qualified person with a disability.4
Additionally, Mudica alleges he was unable to use the intercoms or push to talk devices

that were necessary to communicate with staff, so he was unable to participate in
various facility programs, services, and activities (including meals, medical
appointments, an outpatient therapy program, disciplinary hearings, and telephone
calls) because of his disability. See Jaros, 684 F.3d at 672 (noting that meals made
available to inmates are considered a “program or activity); see also Hanson v. Sangamon
Cty. Sheriff’s Dep’t, 991 F.Supp. 1059, 1062–63 (7th Cir. 1998) (finding deaf inmate stated

a claim under the ADA and Rehabilitation Act because the jail failed to ensure he had
access to effective means of communication, including auxiliary aids, TDD’s or
qualified interpreters, which qualified as a services and/or activities). Giving Mudica
the benefit of the inferences to which he is entitled at this stage, he will be allowed to
proceed past the pleading stage on a Rehabilitation Act claim against Program Manager

Moody in his official capacity for monetary damages and injunctive relief.5 Moreover,
because the scope of the ADA is slightly more broad than the Rehabilitation Act, see
supra note 3, he will be allowed to proceed against Program Manager Moody in his
official capacity for injunctive relief under the ADA as well.6

4 For purposes of this order, the court will also assume both that SJCCC meets the statutory
definition of a “public entity” and that it receives federal funding though the distribution of Indiana
Department of Correction allocations. See supra notes 1, 2, & 3.
5 Although the Eleventh Amendment generally bars suits for money damages against a state or
state agency, the Seventh Circuit has held that states waived their Eleventh Amendment immunity under
the Rehabilitation Act by accepting federal funds. Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000).
6 That said, any Rehabilitation Act or ADA claims against Case Manager Wells and Officer
Hopkins will be dismissed because, as noted above, such claims cannot be brought against individual
Mudica also alleges the defendants retaliated against him. To establish a First
Amendment retaliation claim, he must allege “(1) he engaged in activity protected by

the First Amendment; (2) he suffered a deprivation that would likely deter First
Amendment activity in the future; and (3) the First Amendment activity was at least a
motivating factor in the [defendant’s] decision to take the retaliatory action.” Gomez v.
Randle, 680 F.3d 859, 866 (7th Cir. 2012) (quotation marks and citation omitted).
Mudica states he filed multiple grievances regarding the fact he needed
accommodations for his hearing disability. Filing a prison grievance is a protected

activity for purposes of a First Amendment retaliation claim. Id. He alleges Officer
Hopkins received his grievances, deliberately ignored them, and instead he was written
up for frivolous violations shortly thereafter. He also alleges Program Manager Moody
then used those unjustified write-ups as a pretext to remove program points he had
accrued and to violate his placement at SJCCC because he wanted Mudica transferred

out of the facility. Receiving allegedly false write-ups, the subsequent removal of points,
and a transfer to a less desirable facility could deter a person of ordinary firmness from
continuing to engage in protected activity. See Beatty v. Henshaw, 826 Fed.Appx. 561,
563–64 (7th Cir. 2020) (even threats of “manufacture[d] disciplinary charges” or a
transfer to a facility that would present a “serious change[] of circumstance” could deter

an inmate from complaining); see also Howard v. Koeller, 756 Fed.Appx. 601, 605 (7th Cir.
2018) (finding false statements in a conduct report could deter a person of ordinary

employees and must instead be brought against the department head of the facility in his official
capacity. Jaros, 684 F.3d at 670 & n.2.
firmness from engaging in protected speech). Giving Mudica the benefit of the
inferences to which he is entitled at this stage, it is plausible the grievances filed were at

least a motivating factor in the actions taken against him. Thus, Mudica may proceed on
a First Amendment retaliation claim for monetary damages against Program Manager
Moody and Officer Hopkins in their individual capacities.
Finally, Mudica’s complaint can be read to allege he believes the defendants
were deliberately indifferent to his medical needs. To establish liability for claims of
inadequate medical care, a prisoner must satisfy both an objective and subjective

component by showing: (1) his medical need was objectively serious; and (2) the
defendant acted with deliberate indifference to that medical need. Farmer, 511 U.S. at
834. A medical need is “serious” if it is one that a physician has diagnosed as mandating
treatment, or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). On

the second prong, inmates are “not entitled to demand specific care,” Walker v. Wexford
Health Sources, Inc., 940 F.3d 954, 965 (7th Cir. 2019), nor are they entitled to “the best
care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Mudica alleges that, shortly after his arrival at SJCCC on March 21, 2018, he was
diagnosed with impetigo and was referred to an oncologist. However, he claims he

suffered in pain without his prescriptions and without access to medical treatment for
several months even though he complained to Case Manager Wells in writing of his
situation. Construing Mudica’s allegations generously, it can plausibly be inferred that
his referral to the oncologist—coupled with severe pain—was an objectively serious
medical need to which Case Manager Wells was deliberately indifferent because he
knew Mudica was receiving no medical care at all. As such, Mudica may proceed on an

Eighth Amendment deliberate indifference claim for monetary damages against Case
Manager Wells.
For these reasons, the court:
(1) GRANTS Donald E. Mudica III leave to proceed against Justin Moody,
Program Manager at St. Joseph County Community Corrections, in his official capacity
for monetary damages on a claim for violating his rights under the Rehabilitation Act

from March 21, 2018, to January 3, 2019, with regard to his bilateral profound
sensorineural hearing loss;
(2) GRANTS Donald E. Mudica III leave to proceed against Justin Moody,
Program Manager at St. Joseph County Community Corrections, in his official capacity
for injunctive relief to ensure accommodations are provided at St. Joseph County

Community Corrections for program participants with profound hearing loss in
accordance with the Rehabilitation Act and Title II of the Americans with Disabilities
Act;
(3) GRANTS Donald E. Mudica III leave to proceed against Justin Moody,
Program Manager at St. Joseph County Community Corrections, and Tomilla Hopkins,

Officer in Charge at St. Joseph County Community Corrections, in their individual
capacities for monetary damages for retaliating against him in violation of the First
Amendment for filing grievances from April 5, 2018, to December 26, 2018, about the
lack of accommodations at St. Joseph County Community Corrections related to his
bilateral profound sensorineural hearing loss;

(4) GRANTS Donald E. Mudica III leave to proceed against Michael Wells, Case
Manager at St. Joseph County Community Corrections, in his individual capacity for
monetary damages pursuant to the Eighth Amendment for being deliberately
indifferent to his serious medical needs—including the need to see an oncologist, the
lack of prescription medication, and severe pain—from March 21, 2018, to January 3,
2019;

(5) DISMISSES all other claims;
(6) DIRECTS the clerk, under 28 U.S.C. § 1915(d), to request Waiver of Service
from (and if necessary, the United States Marshals Service to use any lawful means to
locate and serve process on) Justin Moody, Program Manager at St. Joseph County
Community Corrections, Tomilla Hopkins, Officer in Charge at St. Joseph County

Community Corrections, and Michael Wells, Case Manager at St. Joseph County
Community Corrections, at St. Joseph County Community Corrections, with a copy of
this order and the amended complaint (ECF 15);
(7) ORDERS St. Joseph County Community Corrections to provide the full name,
date of birth, and last known home address of any defendant who does not waive

service if it has such information; and
(8) ORDERS, under 42 U.S.C. § 1997e(g)(2), Justin Moody, Program Manager at
St. Joseph County Community Corrections, Tomilla Hopkins, Officer in Charge at St.
Joseph County Community Corrections, and Michael Wells, Case Manager at St. Joseph
County Community Corrections, to respond, as provided for in the Federal Rules of
Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for which the plaintiff has

been granted leave to proceed in this screening order.
SO ORDERED on March 11, 2022
/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10162275. Public record. Not legal advice.