Opinion

Robert McDaniel v. Salam Syed

Court: Court of Appeals for the Seventh Circuit
Filed: Sep 16, 2024
Status: Published
Author: Brennanconcurs and dissents
On the bench: Brennanconcurs and dissents
Cited by: 0 cases
Authority: More cited than 30.6%

revers- ing summary judgment; depriving prisoner of sixteen meals in twenty-three days was suﬃciently serious deprivation of a life necessity to establish Eighth Amendment violation

How later courts described this case

revers- ing summary judgment; depriving prisoner of sixteen meals in twenty-three days was suﬃciently serious deprivation of a life necessity to establish Eighth Amendment violation
“A district court does not abuse its discretion when, in imposing a penalty for a litigant’s non-compliance with Local Rule 56.1, the court chooses to ignore and not consider the ad- ditional facts that a litigant has proposed.”
“[A] declaration under § 1746 is equivalent to an aﬃ- davit for purposes of summary judgment.”
“a prisoner [does not] need to show that he was literally ignored”

Written by the judges who cited it.

The opinion

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-2946

ROBERT MCDANIEL, as Executor of

the Estate of Carl Joseph McDaniel,

Plaintiff-Appellant,

SALAM SYED, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:17-cv-01493-WCG — William C. Griesbach, Judge.

____________________

ARGUED JANUARY 13, 2022 — DECIDED SEPTEMBER 16, 2024

____________________

Before HAMILTON, BRENNAN, and JACKSON-AKIWUMI,

Circuit Judges.

HAMILTON, Circuit Judge. Carl McDaniel was a Wisconsin

prisoner for more than fourteen years. He had many serious

medical conditions, including some that caused problems

with mobility and incontinence. McDaniel sued the Wiscon-

sin Department of Corrections under Title II of the Americans

with Disabilities Act (ADA), 42 U.S.C. § 12131, and Section 504

2 No. 20-2946

of the Rehabilitation Act, 29 U.S.C. § 794. He asserted that the

Department violated his rights under both statutes by deny-

ing him a cell (a) in a no-stairs unit, (b) that was single-occu-

pancy, and (c) with a bed without a top bunk above it.

McDaniel also brought an Eighth Amendment claim against

a prison physician, Dr. Salam Syed, alleging he was deliber-

ately indiﬀerent to McDaniel’s medical needs. The district

court granted summary judgment for the Department on all

claims and for Dr. Syed on the Eighth Amendment claim.

McDaniel appealed. 1

After we heard oral argument, McDaniel was released

from prison, but he later died, in February 2024. His son Rob-

ert McDaniel represents his father’s estate and is now the

plaintiﬀ.

We aﬃrm in part and reverse in part. We aﬃrm summary

judgment for defendants on the claims for a single-occupancy

cell and no top bunk, as well as on the Eighth Amendment

claim against Dr. Syed. We reverse on the refusal to assign

McDaniel to a no-stairs unit. McDaniel presented evidence

that having to make his way up and down stairs to get to

meals, the inﬁrmary, and other prison programs eﬀectively

denied him access to those programs, and that the Depart-

ment knew its refusal to place McDaniel in a no-stairs unit

was having that eﬀect. In particular, McDaniel presented evi-

dence that denial of a no-stairs unit caused him to miss about

600 meals in just the one year he was in the Columbia

1 After plaintiff McDaniel appealed the grant of summary judgment,

we recruited counsel for him. Attorneys Thomas G. Hungar and Andrew

G.I. Kilberg and the firm of Gibson, Dunn & Crutcher LLP have ably

represented plaintiff McDaniel before the panel. They have the thanks of

the court.

No. 20-2946 3

Correctional Institution, and that prison staﬀ knew he was

missing meals and medication because of his pain and diﬃ-

culty in getting up and down stairs. He presented this evi-

dence with suﬃcient clarity to the district court so that the

district court and we are required to treat those facts as true.

On these facts, which we hope are unusual, a reasonable jury

could ﬁnd that the denial of a no-stairs unit amounted to an

intentional violation of rights under the ADA and the Reha-

bilitation Act.

McDaniel’s release from prison rendered moot his request

for injunctive relief, but his ADA and Rehabilitation Act

claims for compensatory damages survive his release from

prison and his death and are still available. A jury could ﬁnd

prison oﬃcials were deliberately indiﬀerent to McDaniel’s

lack of access to various prison programs. Because a jury

could also ﬁnd this same conduct—deliberate indiﬀerence to

McDaniel’s inability to access, in particular, regular meals—

violated the Eighth Amendment, the Department is not enti-

tled to sovereign immunity, and compensatory damages may

be available under the ADA for failure to accommodate his

disabilities.

I. Procedural Issue

Before turning to the merits, we ﬁrst address a key proce-

dural issue in the district court’s handling of the facts on sum-

mary judgment. The district court declined to treat as true

McDaniel’s evidence that the defendants’ refusal to assign

him to a no-stairs cell caused him to miss roughly 600 meals

in one year and that defendants were aware of this conse-

quence. The district court’s refusal was an error.

4 No. 20-2946

McDaniel litigated in the district court pro se, including

the summary judgment motions. (There was a brief exception;

court-recruited counsel drafted his amended complaints and

then withdrew.) As part of the summary judgment proceed-

ings, the defendants ﬁled their proposed ﬁndings of fact sub-

ject to Civil Local Rule 56 of the Eastern District of Wisconsin.

In the absence of an agreed statement of undisputed facts, the

rule requires the moving party to ﬁle a statement of proposed

material facts. See E.D. Wis. Civ. Local Rule 56(b)(1). These

statements must contain numbered paragraphs and speciﬁc

citations to support the factual assertions. Local Rule

56(b)(1)(c)(i). The opposing party is then required to respond

to the moving party’s statement of material facts by identify-

ing which facts, if any, are in dispute, and citing record evi-

dence to support the party’s assertions. Local Rule 56(b)(2).

The rule says the record citations must be “speciﬁc” but does

not specify a particular form for those record citations.

Consistent with our decision in Lewis v. Faulkner, 689 F.2d

100, 102 (7th Cir. 1982), the district court promptly issued a

notice to McDaniel advising him as follows:

Plaintiﬀ Carl Joseph McDaniel, who is repre-

senting himself, ﬁled a complaint under 42

U.S.C. § 1983. On June 29, 2020, the defendants

ﬁled a motion for summary judgment. (ECF No.

159.) Under Civil L. R. 56(b)(2), McDaniel’s re-

sponse materials are due within thirty days of

service of the motion, or by Wednesday, July 29,

2020. In responding to the defendants’ motion

for summary judgment, McDaniel must re-

spond to each of the defendants’ proposed ﬁnd-

ings of fact by agreeing with each proposed fact

No. 20-2946 5

or explaining why he disagrees with a particu-

lar proposed fact. If he does not indicate one

way or the other, the court will assume that he

agrees with the proposed fact. McDaniel must

support every disagreement with a proposed

fact by citing to evidence. He can do that by re-

lying on documents that he attaches to his re-

sponse or by telling the court his version of what

happened in an aﬃdavit or an unsworn decla-

ration under 28 U.S.C. § 1746.1 An unsworn dec-

laration is a way for a party to tell his side of the

story while declaring to the court that every-

thing in the declaration is true and correct.

McDaniel must also respond to the legal argu-

ments in the defendants’ brief.

_______________

At the bottom of his declaration he should

state: “I declare under penalty of perjury that

the foregoing is true and correct. Executed on

[date]. [Signature].” 28 U.S.C. § 1746(2).

Dkt. No. 169.

McDaniel took the court’s notice to heart. On August 14,

2020, he ﬁled seven documents (docket entries 176–82), in-

cluding a response to the defendants’ proposed ﬁndings of

fact, a brief, a separate “reply to defense argument,” and re-

sponses to four aﬃdavits submitted by the defendants. The

documents totaled 33 pages.

Plaintiﬀs’ documents responded paragraph by paragraph

to the defendants’ proposed statements of fact, and even par-

agraph by paragraph to each aﬃdavit the defendants

6 No. 20-2946

submitted and paragraph by paragraph to the defendants’

brief. He also submitted his own statements of undisputed

and disputed facts.

In most of his response paragraphs, however, McDaniel

did not provide speciﬁc docket number citations to the record.

Still, he did in places refer by name to various documents in

the record when directly responding to paragraphs in the de-

fendants’ summary judgment brieﬁng that included such rec-

ord citations. For example, he referred to “the ‘Initial’ Dr. Paul

Order” for the proposition that his surgeon recommended he

not lift more than ﬁve to ten pounds. This was in his num-

bered response to paragraph 11 of defendants’ proposed

statement of facts, which included a record citation to the

same doctor’s report that McDaniel cited by name.

Most important, though, and consistent with the district

court’s directions, McDaniel signed all of those documents

under penalty of perjury under 28 U.S.C. § 1746. That meant

that all of those documents had the legal eﬀect of aﬃdavits.

They provided evidence that could be considered on sum-

mary judgment to the extent that McDaniel’s factual asser-

tions were within his personal knowledge and were otherwise

admissible. See Owens v. Hinsley, 635 F.3d 950, 955 (7th Cir.

2011) (“[A] declaration under § 1746 is equivalent to an aﬃ-

davit for purposes of summary judgment.”); Ford v. Wilson, 90

F.3d 245, 246–47 (7th Cir. 1996) (complaint veriﬁed under pen-

alty of perjury amounted to aﬃdavit that could be relied upon

to oppose summary judgment).

In its summary judgment ruling, however, the district

court wrote that “not all of his responses or his own proposed

ﬁndings of fact cite to an aﬃdavit, declaration, or speciﬁc part

of the record to support them.” SA 4. The court added that it

No. 20-2946 7

would consider plaintiﬀ’s proposed facts and responses to de-

fendants’ proposed facts only “to the extent they comply with

the local rules,” without specifying further the failures or the

aﬀected portions of plaintiﬀ’s submissions. Id. The court re-

lied primarily on the defendants’ version of the facts in decid-

ing the summary judgment motions. 2

McDaniel contends this decision was an abuse of discre-

tion. An appellate court reviews the decision of a district court

to enforce its local rules for an abuse of discretion. Hinterberger

v. City of Indianapolis, 966 F.3d 523, 528 (7th Cir. 2020). District

courts “may require strict compliance with their local rules,”

id., and we have held that enforcing such rules in the event of

non-compliance is generally not an abuse of discretion. See

Cichon v. Exelon Generation Co., 401 F.3d 803, 809–10 (7th Cir.

2005) (“A district court does not abuse its discretion when, in

imposing a penalty for a litigant’s non-compliance with Local

Rule 56.1, the court chooses to ignore and not consider the ad-

ditional facts that a litigant has proposed.”); see also Ammons

v. Aramark Uniform Services, Inc., 368 F.3d 809, 817 (7th Cir.

2004) (“Substantial compliance is not strict compliance.”). A

district court is not authorized, however, to reject a party’s

summary judgment submissions for failure to comply with

unwritten requirements.

2 McDaniel did not, as Local Rule 56.1(b)(2)(B)(i) requires, reproduce

each numbered paragraph in the defendants’ statement of facts. That re-

quirement would be onerous as applied to a prisoner who has only limited

access to a defective typewriter, and the district court does not appear to

have relied on that failing. See also Fed. R. Civ. P. 83 (a)(2) (“A local rule

imposing a requirement of form must not be enforced in a way that causes

a party to lose any right because of a nonwillful failure to comply.”).

8 No. 20-2946

This is one of the rare cases in which the district court went

a step too far, at least with respect to one key fact. In his re-

sponse to the defendants’ proposed ﬁndings of fact, McDaniel

testiﬁed that he was “missing [h]undreds of state meals” at

the Columbia Correctional Institution. In his response to de-

fendant Dr. Syed’s aﬃdavit, McDaniel said the prison “de-

nied [me] over 600 state meals.” His brief echoed these points,

saying that he “missed over 600 state meals in less than a year

because of severe pain,” and “Defendants were all aware of

the ongoing constitutional violations of the [o]ver 600 … state

meals.” Defendants’ own summary judgment submissions

also show that they were aware of plaintiﬀ’s complaints that

he was missing many meals and medications because of pain

and diﬃculty getting up and down stairs. See Def. Proposed

Findings of Fact ¶¶ 30 36, 38, 39, Dkt. No. 167.

Local Rule 56.1 did not require plaintiﬀ to cite other aﬃ-

davits in his aﬃdavits. This seems to be the principal point of

our disagreement with the district court and with our dissent-

ing colleague. Where the moving party asserts as an undis-

puted fact “X is the case,” and plaintiﬀ responds in the corre-

sponding paragraph “X is not the case,” and where the plain-

tiﬀ’s response is attested under § 1746 and within his personal

knowledge, that is enough to dispute whether X is true or

false. See Owens, 635 F.3d at 955; Ford, 90 F.3d at 246–47 (7th

Cir. 1996). Moreover, defendants’ summary judgment papers

did not even try to contradict directly plaintiﬀ’s complaints

about missing meals and medications because of his pain and

diﬃculty with stairs. We are required to treat as true

No. 20-2946 9

plaintiﬀ’s factual assertions that were supported with evi-

dence, including his own aﬃdavits. 3

It is evident that McDaniel, a pro se litigant, tried to com-

ply with the district court’s instructions. See Nichols v. Michi-

gan City Plant Planning Dep’t, 755 F.3d 594, 600 (7th Cir. 2014)

(“[A] trial court is obligated to give a liberal construction to a

pro se plaintiﬀ’s ﬁlings.”). We know well that rules like Local

Rule 56 are intended “to make the summary judgment pro-

cess less burdensome on district courts, by requiring the par-

ties to nail down the relevant facts and the way they propose

to support them.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394,

398 (7th Cir. 2012) (evaluating parallel local rule from another

district). That process can help a busy district court determine

which facts are supported by the record and which are not. It

also gives the court and the opposing party notice of which

legal and factual issues are up for debate. At the same time,

we have also explained that local rules—and instructions on

how to comply with them—are “not intended to provide a

maze of technical traps to complicate and delay litigation

without advancing the merits.” Stevo v. Frasor, 662 F.3d 880,

887 (7th Cir. 2011) (district court did not abuse discretion by

overlooking moving parties’ technical failures to comply with

local rule on summary judgment materials). Unfortunately,

3 McDaniel was not consistent about how many hundreds of meals he

missed. In the amended complaint, he said the number was approxi-

mately 500. In his testimony submitted on summary judgment, that num-

ber was over 600. In one place in his brief in opposition to summary judg-

ment, he said an individual employee knew he missed over 450 meals,

again citing by name exhibits attached to that official’s declaration in the

record. The difference between 450 and 600 meals was not the basis for the

district court’s rejection of evidence that McDaniel missed hundreds of

meals.

10 No. 20-2946

that is what occurred here, primarily because the district court

may not have appreciated that plaintiﬀ could rely on his own

factual assertions in his own declarations without citing any

other documents.

One could criticize plaintiﬀ for not having organized his

summary judgment submissions as coherently and persua-

sively as an experienced lawyer might have. That does not

justify overlooking, however, plaintiﬀ’s speciﬁc factual asser-

tions made under penalty of perjury. Even for excellent law-

yers, it can be diﬃcult to provide a clearly organized response

to a motion for summary judgment. Local rules like this one

allow the moving party to organize the facts and the narra-

tive. The non-moving party is required to follow that organi-

zation, at least with respect to proposed facts. That can make

it diﬃcult for a non-moving party with a solid case to weave

the evidence into a coherent narrative and to show how dif-

ferent facts and theories are related. For pro se parties, the

challenge can be especially daunting. In this case, however,

we conclude that McDaniel’s 33 pages of summary judgment

submissions told the district court with suﬃcient clarity that

he was relying on his own testimony about missing hundreds

of meals and medications, and about defendants’ awareness

of that consequence of his pain and mobility limits. And he

made that point in the portion of his brief addressing his ADA

and Rehabilitation Act claims. See Dkt. No. 177 at 10.

To be sure, McDaniel’s submissions were not “by any

measure ideal.” Sojka, 686 F.3d at 398. Many of his supposed

facts were conclusory and argumentative. That is also often

true of submissions by counsel, of course, and a district court

is entitled to disregard such conclusory assertions even if a

party tries to ground them in record citations. Cichon, 401 F.3d

No. 20-2946 11

at 808, 809–10 (no abuse of discretion in disregarding conclu-

sory submissions that lacked factual support). But the fact

that some proposed facts are conclusory or argumentative

does not mean a court is free to disregard the ones that are

factual and speciﬁc. See Fed. R. Civ. P. 56(e) advisory commit-

tee’s note to 2010 amendment (“If there is a proper response

or reply as to some facts, the court cannot grant summary

judgment without determining whether those facts can be

genuinely disputed.”).

We conclude the district court abused its discretion in dis-

regarding McDaniel’s factual assertion sworn under penalty

of perjury that he had missed approximately 600 meals in one

year at Columbia and that prison staﬀ knew he was regularly

missing meals due to his pain and diﬃculty in moving up and

down stairs. McDaniel was entitled to have the court assume

those facts in his favor in deciding the defendants’ motions

for summary judgment.

In the following portions of this opinion, we ﬁrst summa-

rize the material facts, ﬁltering the evidence through the lens

of summary judgment procedure. Next, we turn to McDan-

iel’s ADA and Rehabilitation Act claims. We explain why dis-

putes of material fact remain related to the failure of the De-

partment of Corrections to accommodate McDaniel by refus-

ing him a no-stairs unit and why Eleventh Amendment sov-

ereign immunity does not bar his request for money damages

for this claim. We then explain why summary judgment for

defendants was proper on McDaniel’s two other failure-to-ac-

commodate claims. Finally, we explain why we aﬃrm sum-

mary judgment for Dr. Syed on McDaniel’s separate Eighth

Amendment claim for deliberate indiﬀerence.

12 No. 20-2946

II. Factual and Procedural History

We set forth the facts in the light most favorable to McDan-

iel and give him the beneﬁt of all reasonable inferences in his

favor, as required on summary judgment. E.g., Navratil v. City

of Racine, 101 F.4th 511, 516 (7th Cir. 2024). For more than four-

teen years, Carl McDaniel was a prisoner in the custody of the

Wisconsin Department of Corrections. When he ﬁled this ap-

peal, McDaniel was in his early sixties and had extensive med-

ical problems, including hypertension, hyperthyroidism,

chronic obstructive pulmonary disease, stage 3 chronic kid-

ney disease, bladder tumors, type 2 diabetes complicated by

neuropathy, gout, ﬁbromyalgia, anxiety, post-traumatic

stress disorder, bipolar disorder, chronic pain, peptic ulcer

disease, asthma, and degenerative joint disease in his spine

with spinal stenosis. McDaniel had developed some of these

ailments before his incarceration and others during.

While incarcerated, McDaniel received medical treatment

for those ailments, including spinal surgery in the summer of

2017. Before that surgery, McDaniel used a wheelchair. After-

ward, he could move using a four-wheel walker. But McDan-

iel continued to experience other medical problems, including

degenerative joint disease of the spine and incontinence is-

sues, resulting in signiﬁcant back pain and diﬃculty control-

ling urination and defecation. Following his spinal surgery,

the treating physician gave McDaniel several post-operative

instructions: he was to avoid “strenuous exercising,” “lift[ing]

more than 5–10 pounds,” and “bending, lifting, carrying,

twisting,” but the physician said he could “climb stairs.”

No. 20-2946 13

A. Problems at the Columbia Correctional Institution

A few months after the spinal surgery, the Department of

Corrections transferred McDaniel to the Columbia Correc-

tional Institution. Before the transfer, McDaniel had re-

strictions in his ﬁle for a low-tier ﬂoor, no-stairs unit, low

bunk, and walker. At the new facility, however, a physical

therapist evaluated McDaniel and recommended changing

those restrictions. As part of the evaluation, McDaniel had

successfully walked up and down just six stairs. The therapist

concluded the no-stairs and low-tier restrictions were no

longer necessary. McDaniel’s eventual cell assignment, he

said, required him to walk up and down the stairs at least six-

teen times each day to access prison programs and activities,

including meals and the inﬁrmary. Defendant Dr. Syed, one

of the facility’s treating physicians, approved discontinuing

those restrictions. McDaniel then received a walker, a cane,

and a double-occupancy cell with a low bunk, but in a unit

that was accessible only by stairs. 4

The cell assignment created problems for McDaniel almost

immediately. For one, the stairs impeded his access to meals

and medications since the cafeteria and inﬁrmary were on an-

other ﬂoor. McDaniel complained from the start that he was

not able to get out of his cell to eat or to retrieve his pain med-

ication. He eventually stopped attending most meals and tak-

ing his medications because of the pain from going up and

down the stairs to access those services. In the end, McDaniel

4 At some point during McDaniel’s time at Columbia, he was moved

to a different double-occupancy cell. There were no relevant differences

between these two cells. Both required using stairs to attend meals and

retrieve medications.

14 No. 20-2946

testiﬁed, he missed some 600 meals during his year at Colum-

bia.

When McDaniel was able to navigate the stairs, he did so

with help. For instance, McDaniel would often purchase food

from the prison commissary. To pick up his orders, McDaniel

would use the goods he brought from the commissary to

“pay” other prisoners to help him up and down the stairs.

Other prisoners carried McDaniel’s walker for him while he

used the railing to move or sat and scooted down the stairs.

Sometimes other prisoners would even put their arms around

him and walk McDaniel up the stairs. But prison staﬀ eventu-

ally forbade McDaniel from asking prisoners, guards, or any-

one else for help. Staﬀ also told McDaniel he had to stop scoot-

ing down the stairs on his buttocks or he would get a “conduct

report.” 5

McDaniel also had diﬃculty navigating his cell. In double-

occupancy cells that contain a toilet, people sometimes use so-

called “courtesy screens” to create some privacy. Most of the

time, McDaniel could use his walker to access the toilet. When

a courtesy screen was up, however, there was simply not

enough room to hold onto the walker when using the toilet.

5 In McDaniel’s version of events, the walker did little to solve the

stairs problem: “It’s made out of steel and it’s got a chair on it…. I couldn’t

hold it with one hand.… But I couldn’t hold that and hold the rail and get

up and down the stairs….” McDaniel asserted under penalty of perjury

that his walker weighed about twenty-five pounds, well over the five-to-

ten-pound lifting restriction he was prescribed after his surgery. McDaniel

likewise contends that the cane did not help. To use the cane, McDaniel

also had to carry his walker since the walker was necessary to move once

he made his way up or down the stairs. Carrying both a walker and a cane,

he said, was too much for him to handle.

No. 20-2946 15

As a result, McDaniel emphasizes, he had multiple falls mov-

ing around his cell and when using the toilet, which lacked

railings and support to hold.

Toilet access was especially important for McDaniel. Since

he had diﬃculty controlling his bladder and bowels, at least

one doctor told McDaniel to practice timed voiding (going to

the bathroom in ﬁxed time intervals, rather than by demand).

Without his own toilet and the ability to practice timed void-

ing, he would often soil himself. His cellmates, McDaniel

says, had diﬃculty with his timed voiding and accidents. He

contends that animosity contributed to a diﬃcult living envi-

ronment that caused him signiﬁcant stress and led to an alter-

cation with one cellmate.

In addition, McDaniel’s bed also had a top bunk where a

cellmate slept. Due to what McDaniel described as a “lack of

ﬂexibility in my entire spine,” he often hit his head and neck

on that bunk, contributing further to his pain. His cellmate

would also often hit McDaniel when climbing into the top

bunk.

B. Requests for Accommodations

McDaniel submitted several requests for accommodations

of his disabilities at Columbia. All were denied. A few days

after receiving his cell assignment, McDaniel asked for a “feed

in cell” restriction. His request was denied after a staﬀ mem-

ber saw McDaniel walking around the unit. McDaniel later

sent two accommodation requests to the facility’s ADA coor-

dinator because of his “Fibromyalgia, Diabetes, (painful)

Neuropathy, [arthritis] of my Spinal Cord/Knees, need for

Mobility Impairment Device (walker).” The requests docu-

mented his falls trying to “access[] [the] unsafe toilet;”

16 No. 20-2946

instances where he struck his “Head/Neck on bunk;” and a

general “inability to access meds, food, services, programs,

and beneﬁts from exacerbated pain [from] transitioning [the]

stairwell.” McDaniel also submitted a “Health Service Re-

quest” for a “handicap accessible cell.” The ADA Coordinator

responded to these submissions by explaining that McDan-

iel’s low-tier and no-stairs restrictions had been removed, so

he did not qualify for a “handicap cell.” No other actions were

taken.

At an appointment with the facility’s Health Services

Unit—where Dr. Syed worked—McDaniel again asked for a

single-occupancy, wheelchair-accessible cell. He explained

that he “has pains and has no medication,” and “cannot go up

or down stairs.” Health Services staﬀ told him that he did not

meet the criteria for a single-occupancy or wheelchair-acces-

sible cell and that “many/most ppl live w/ pain and he will

endure if he wants to do the activity.”

McDaniel had more appointments with the Health Ser-

vices Unit. His complaints continued. McDaniel told the staﬀ

about his chronic pain, lack of access to meals, and inconti-

nence issues. Despite these consistent complaints, Dr. Syed

and others did not modify McDaniel’s restrictions and contin-

ued to refuse him a cell on a ﬂoor where he would not need

to use stairs to access services, including meals. When

McDaniel again told Health Services staﬀ that he was not tak-

ing his medications because it was too painful to go up and

down the stairs to retrieve them, staﬀ members instructed

him to “take your medication as prescribed.” Others told him

to try physical therapy. Staﬀ members told McDaniel that

movement would help him to avoid developing muscle atro-

phy. In the end, Health Services staﬀ evaluated McDaniel at

No. 20-2946 17

least forty-nine times during his year in the Columbia Correc-

tional Institution.

While prison staﬀ members, including Dr. Syed, contin-

ued to deny McDaniel any new accommodations or signiﬁ-

cant changes in medical treatment, various doctors outside of

the facility assessed McDaniel. Those doctors came to diﬀer-

ent conclusions about McDaniel’s care.

To start, a nephrologist who treated McDaniel’s kidney

conditions visited him in his cell to conduct an exam. At that

time, McDaniel did not have a cellmate. The nephrologist

wrote that the “current singled cell is providing him this op-

tion [to do timed voiding] and I would recommend this to

continue as to avoid further complications and stress associ-

ated with” incontinence. Shortly after the nephrologist’s visit,

however, the facility gave McDaniel a cellmate and continued

to oﬀer him diapers to help with his accidents. When the

nephrologist followed up with McDaniel a few months later,

she noted a signiﬁcant decline in his condition. She wrote in

his chart that the “single cell status was previously signiﬁ-

cantly helpful in minimizing issues and stress surrounding

bowel and bladder concerns,” and that timed voiding was

critical for treating his chronic kidney disease. McDaniel con-

tinued to live in a double-occupancy cell with a cellmate.

Other doctors expressed similar opinions that contra-

dicted Health Services staﬀ. A pain specialist, for instance, as-

sessed McDaniel and recommended that he be “put in [a] cell

with no top bunk,” which would help mitigate instances

18 No. 20-2946

where he would hit his head and neck. McDaniel’s sleeping

arrangements did not change. 6

C. Procedural History

McDaniel ﬁled this lawsuit against the Wisconsin Depart-

ment of Corrections, Dr. Syed, and others seeking both injunc-

tive and monetary relief. He alleged that the Department vio-

lated his rights under the ADA and the Rehabilitation Act by

refusing to accommodate his disabilities. McDaniel also al-

leged that Dr. Syed and others violated the Eighth Amend-

ment in various ways. 7

6 After McDaniel had been at Columbia for just over a year, the De-

partment transferred him to the New Lisbon Correctional Institution.

Here, the facility shuffled McDaniel between no-stairs cells, normal dou-

ble-occupancy cells, and even a so-called “dry cell” (lacking a toilet). After

McDaniel filed this lawsuit, the facility changed course. It gave him a sin-

gle-occupancy cell with a toilet and a medical mattress. The staff lowered

the bottom bunk and raised the top bunk so McDaniel would not hit his

head getting in and out of bed. The facility also instituted a wheelchair

restriction for long distances, a shower chair restriction, and gave McDan-

iel diapers to help with his incontinence issues. While the vast majority of

McDaniel’s arguments concern the accommodations he was denied at Co-

lumbia, he also contends that New Lisbon’s accommodations were not

reasonable. The evidence underlying those claims is lacking by compari-

son and underdeveloped. We agree with the district court that no reason-

able jury could find for McDaniel on those claims, and we focus our dis-

cussion on Columbia.

7 McDaniel initially brought claims against other prison officials at

Columbia and New Lisbon but did not pursue those claims on appeal. He

had also sought a preliminary injunction demanding accommodations of

his disabilities. The district court denied the injunction after the Depart-

ment assured the court it would keep McDaniel in a single-occupancy wet

cell for the length of the case. After the district court granted summary

judgment, the Department moved McDaniel to yet another facility where

No. 20-2946 19

McDaniel litigated in the district court pro se, with one ex-

ception. The district court appointed counsel for the limited

purpose of helping McDaniel ﬁle an amended complaint. The

appointed counsel then withdrew with court approval. Upon

the close of discovery, the defendants moved for summary

judgment. As discussed above, the district court granted the

defendants’ motion after largely discounting McDaniel’s fac-

tual statements.

After we heard oral argument in this appeal, McDaniel

was released from prison, which rendered moot his requests

for injunctive relief. In February 2024, McDaniel died. We

granted his son’s motion to be substituted as the plaintiﬀ in

this case, acting as executor of McDaniel’s estate. See Fed. R.

App. P. 43(a)(1); Smith v. First Hospital Laboratories, Inc., 77

F.4th 603, 607 (7th Cir. 2023) (proceeding with appeal after

substituting executor of plaintiﬀ’s estate as plaintiﬀ). 8

III. Eleventh Amendment Sovereign Immunity

Sovereign immunity bears on whether a federal court may

hear a case, so we address it before reaching the merits. See

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64–65 (1996).

The district court quite reasonably chose to avoid “thorny

questions of sovereign immunity” under the ADA by

he claimed he faced challenges similar to those complained of here. See

McDaniel v. Wisconsin Dep’t of Corrections, No. 21-3048, 2022 WL 1965902

(7th Cir. June 6, 2022) (vacating denial of preliminary injunction).

8 Wisconsin law provides for survival of a plaintiff’s claims for per-

sonal injuries like McDaniel’s. Wis. Stat. § 895.01(1)(am)(7) (causes of ac-

tion for “other damage to the person” survive death of plaintiff); see, e.g.,

Sawyer v. Midelfort, 227 Wis. 2d 124, 151–54, 595 N.W.2d 423, 436–38 (1999)

(claim for psychological damage caused by medical malpractice survived

death of plaintiff).

20 No. 20-2946

analyzing McDaniel’s reasonable accommodation claims un-

der the Rehabilitation Act. See McDaniel v. Syed, No. 17-cv-

01493, 2020 WL 5570401, at *7 (E.D. Wis. Sept. 17, 2020), citing

Jaros v. Illinois Dep’t of Corrections, 684 F.3d 667, 671–72 (7th

Cir. 2012). Because of McDaniel’s release from prison and

later death, however, the only remedy available if McDaniel

succeeds on his reasonable accommodation claim is money

damages. This makes the issue of Eleventh Amendment state

sovereign immunity more critical. Relief available under Title

II of the ADA and the Rehabilitation Act is “coextensive,” Ja-

ros, 684 F.3d at 671, and Wisconsin has waived its immunity

from suits for damages under the Rehabilitation Act as a con-

dition of its receipt of federal funds. See Stanley v. Litscher, 213

F.3d 340, 344 (7th Cir. 2000). We do not think this ends our

inquiry, though. We think it prudent to address whether sov-

ereign immunity would bar McDaniel from seeking money

damages under Title II of the ADA.

Congress may abrogate state sovereign immunity when

exercising its enforcement power conferred by section 5 of the

Fourteenth Amendment. College Savings Bank v. Florida Prepaid

Postsecondary Education Expense Bd., 527 U.S. 666, 670 (1999).

The ADA provides: “A State shall not be immune under the

eleventh amendment to the Constitution of the United States

from an action in Federal or State court of competent jurisdic-

tion for a violation of this chapter.” 42 U.S.C. § 12202. The Su-

preme Court has recognized this statement as an unequivocal

expression of Congress’s intent to abrogate state sovereign

immunity. See United States v. Georgia, 546 U.S. 151, 154 (2006);

Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356,

363–64 (2001); see also Seminole Tribe, 517 U.S. at 55 (“In order

to determine whether Congress has abrogated the States’ sov-

ereign immunity, we ask two questions: ﬁrst, whether

No. 20-2946 21

Congress has ‘unequivocally expresse[d] its intent to abrogate

the immunity,’ and second, whether Congress has acted ‘pur-

suant to a valid exercise of power.’” (alteration in original)

(quoting Green v. Mansour, 474 U.S. 64, 68 (1985))).

Whether Congress validly exercised its section 5 enforce-

ment power in the ADA is a separate question. The Supreme

Court explored this question in United States v. Georgia, 546

U.S. 151 (2006), and explained that there are two paths by

which Congress could have validly abrogated state sovereign

immunity under Title II of the ADA.

First, a plaintiﬀ can show that his claim falls into the cate-

gory of valid prophylactic legislation Congress enacted under

section 5 following the three-step inquiry articulated in Ten-

nessee v. Lane: (1) identify the rights at issue, (2) identify the

pattern of violations the legislation is designed to remedy and

prevent, and (3) determine whether the legislation is congru-

ent with and proportional to the pattern of violations. 541 U.S.

509, 522–34 (2004); see also City of Boerne v. Flores, 521 U.S. 507,

520 (1997) (holding that Congress may enact prophylactic leg-

islation to remedy or prevent unconstitutional discrimination

under section 5 of the Fourteenth Amendment if the legisla-

tion exhibits “a congruence and proportionality between the

injury to be prevented or remedied and the means adopted to

that end”).

Alternatively, as in Georgia, Title II of the ADA validly ab-

rogates state sovereign immunity for conduct that also repre-

sents a violation of the Fourteenth Amendment. A plaintiﬀ

taking this route need not satisfy the congruence and propor-

tionality inquiry under Lane and Boerne because the plaintiﬀ

does not seek to hold a state liable for damages for conduct

that is constitutional. In these cases, ADA Title II liability acts

22 No. 20-2946

not as “prophylactic” legislation but as a remedy for an actual

constitutional violation.

We explain below that the deprivation of food that

McDaniel argues violates Title II of the ADA would also vio-

late the Eighth Amendment’s prohibition on cruel and unu-

sual punishment, as incorporated against the states through

the Fourteenth Amendment (or at least a reasonable jury

could ﬁnd as much). Therefore, regardless of whether relief is

granted under the Rehabilitation Act or Title II of the ADA,

the Wisconsin Department of Corrections is not immune from

liability for money damages under the Eleventh Amend-

ment. 9 We return to this issue in more detail below, after ad-

dressing the merits of McDaniel’s ADA and Rehabilitation

Act claims, including the availability of money damages.

IV. ADA and Rehabilitation Act Claims

We review de novo the district court’s grant of summary

judgment, giving the non-moving party the beneﬁt of

9 McDaniel could recover damages under either the ADA or the Re-

habilitation Act but not both. He could have only one recovery for the

same injury. See Duran v. Town of Cicero, 653 F.3d 632, 639 (7th Cir. 2011)

(a plaintiff may have but one recovery); Calero–Cerezo v. United States Dep't

of Justice, 355 F.3d 6, 11 n. 1 (1st Cir. 2004) (dismissal of ADA claim had no

effect on scope of remedy because Rehabilitation Act claim remained). De-

spite this, some recent court decisions have still considered the issue of

sovereign immunity under both statutes before resolving plaintiffs’ claims

on the merits, as we have done here. See, e.g., Durham v. Kelley, 82 F.4th

217, 227–29 (3d Cir. 2023); but see Bennett-Nelson v. Louisiana Bd. of Regents,

431 F.3d 448, 455 (5th Cir. 2005) (explaining that “having already held that

sovereign immunity does not bar the appellants’ claim under [the Reha-

bilitation Act], we need not address at this juncture the issue of abrogation

under Title II of the ADA, because the rights and remedies under either

are the same for purposes of this case”).

No. 20-2946 23

conﬂicts in the evidence and all reasonable inferences in his

favor. Navratil, 101 F.4th at 518. Summary judgment is appro-

priate when the moving party shows there is no genuine dis-

pute as to any material fact and it is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). “A dispute of material fact

is genuine ‘if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.’” Johnson v.

Dominguez, 5 F.4th 818, 824 (7th Cir. 2021), quoting Zaya v.

Sood, 836 F.3d 800, 804 (7th Cir. 2016).

A. Legal Standard

McDaniel contends that the Wisconsin Department of

Corrections violated the ADA and the Rehabilitation Act by

refusing to accommodate his physical impairments, resulting

in the denial of access to programs and services. Title II of the

ADA provides that “no qualiﬁed individual with a disability

shall, by reason of such disability, be excluded from partici-

pation in or be denied the beneﬁts of the services, programs,

or activities of a public entity, or be subjected to discrimina-

tion by any such entity.” 42 U.S.C. § 12132. Section 504 of the

Rehabilitation Act provides: “No otherwise qualiﬁed individ-

ual with a disability … shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the

beneﬁts of, or be subjected to discrimination under any pro-

gram or activity receiving Federal ﬁnancial assistance.” 29

U.S.C. § 794(a). The relief available under the ADA and the

Rehabilitation Act is “coextensive.” Jaros, 684 F.3d at 671.

“‘[C]ourts construe and apply [the statutes] in a consistent

manner,’ and our evaluation of [a plaintiﬀ’s] claims under

both [requires] the same analysis.” A.H. ex rel. Holzmueller v.

Illinois High School Ass’n, 881 F.3d 587, 592 (7th Cir. 2018),

24 No. 20-2946

quoting Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599,

607 (7th Cir. 2004). 10

To avoid summary judgment under the ADA and the Re-

habilitation Act, McDaniel must oﬀer evidence that “(1) he is

a qualiﬁed person (2) with a disability and (3) the Department

of Corrections denied him access to a program or activity be-

cause of his disability.” Jaros, 684 F.3d at 672. The Department

disputes only the third element. If McDaniel oﬀers evidence

that could support a jury ﬁnding in his favor on that element,

“the burden shifts to the [Department] to prove that the re-

quested accommodation would impose an undue hardship.”

Conners v. Wilkie, 984 F.3d 1255, 1261 (7th Cir. 2021); see also

Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300

F.3d 775, 784 (7th Cir. 2002) (“An accommodation is unreason-

able if it imposes undue ﬁnancial or administrative burdens

or requires a fundamental alteration in the nature of the pro-

gram.”). 11

10 There are a few differences between the ADA and the Rehabilitation

Act, but they do not affect the merits of McDaniel’s claims at summary

judgment. See Jaros, 684 F.3d at 671 (Rehabilitation Act claim requires as

additional element the receipt of federal funds, which all states accept for

their prisons); see also, e.g., Reed v. Columbia St. Mary’s Hospital, 915 F.3d

473, 484 (7th Cir. 2019) (noting key difference between ADA and Rehabil-

itation Act regarding defendant’s intent).

11 Reasonable accommodation claims under Title II of the ADA and

Section 504 of the Rehabilitation Act are firmly part of both statutes, even

though they do not contain specific language on point. See A.H., 881 F.3d

at 592 (“While Title II and Section 504 of the Rehabilitation Act lack such

specific reasonable accommodation language, their corresponding regula-

tions employ language indicating that entities must provide reasonable

accommodations to the disabled.”); see also Reed, 915 F.3d at 484 (“The

Rehabilitation Act does not contain an explicit accommodation

No. 20-2946 25

It is well established that “[r]efusing to make reasonable

accommodations is tantamount to denying access.” Jaros, 684

F.3d at 672. Just as an employer is not obliged to provide an

employee with a disability the particular accommodation he

requests or prefers, Mobley v. Allstate Insurance Co., 531 F.3d

539, 546 (7th Cir. 2008), prison oﬃcials are not required to pro-

vide a prisoner with disabilities the particular accommoda-

tions he requests or prefers. Rather, “the [defendant] need

only provide some reasonable accommodation,” id. (internal

quotation omitted), that ensures that the person with disabil-

ities has “equal access to the beneﬁts of” programs or activi-

ties. See Wisconsin Community Services, Inc. v. City of Milwau-

kee, 465 F.3d 737, 748 (7th Cir. 2006) (en banc) (zoning re-

strictions aﬀecting health care for persons with disabilities,

addressed under Rehabilitation Act and Title II of ADA).

In a prison, qualifying programs and activities include

meals, medical care, showers, toilets, and the like. See Georgia,

546 U.S. at 157; Jaros, 684 F.3d at 672. Whether an accommo-

dation satisﬁes these requirements is a “highly fact-speciﬁc

inquiry,” whether in employment or in prison. See McAllister

v. Innovation Ventures, LLC, 983 F.3d 963, 968 (7th Cir. 2020)

(internal quotation omitted).

To win compensatory damages under the statutes,

McDaniel must also oﬀer evidence that the Department of

Corrections was intentionally discriminatory or at least delib-

erately indiﬀerent to its violation. Lacy v. Cook County, 897

F.3d 847, 862–63 (7th Cir. 2018) (agreeing with most circuits

that deliberate indiﬀerence is suﬃcient to prove intentional

requirement, but the Supreme Court has located a duty to accommodate

in the statute generally.”).

26 No. 20-2946

discrimination under failure-to-accommodate claims). That

requires “both (1) knowledge that a harm to a federally pro-

tected right is substantially likely, and (2) a failure to act upon

that likelihood.” Id. at 863, quoting S.H. ex rel. Durrell v. Lower

Merion School District, 729 F.3d 248, 263 (3d Cir. 2013) (internal

quotation omitted). 12

B. Reasonable Accommodations

McDaniel asserts that the Department of Corrections

failed to provide reasonable accommodations by denying him

(1) a no-stairs unit, (2) a single-occupancy wet cell, and (3) a

cell without a top bunk. We take these issues in turn.

1. No-Stairs Unit

After McDaniel was transferred to Columbia, Dr. Syed re-

moved his low-tier, no-stairs restriction upon a recommenda-

tion by the physical therapist who evaluated McDaniel. He

was then placed in a cell in a unit that would require him to

go up and down stairs in his daily activities. We assume that

the initial cell assignment was reasonable at ﬁrst. The health-

care professionals at the facility believed McDaniel needed to

use stairs to improve mobility and to avoid atrophy after his

recent spinal surgery. That accommodation was also in line

with the spinal surgeon’s post-operative instructions. The

question for us, however, is whether the denial of a no-stairs

unit became unreasonable after McDaniel’s problems access-

ing services became evident and the Department still refused

his repeated requests for a no-stairs unit.

12 A plaintiff can win compensatory damages under the Rehabilitation

Act but not damages for emotional distress. Cummings v. Premier Rehab

Keller, P.L.L.C., 596 U.S. 212, 230 (2022).

No. 20-2946 27

On this record, the evidence on denial of access is suﬃ-

cient to defeat summary judgment for the Department.

McDaniel needed to make his way up and down stairs to par-

ticipate in various prison programs and activities, including

ones as basic as meals and medical care. McDaniel oﬀered ev-

idence that, during his year at Columbia, he missed some 600

meals and many doses of his medications because the stairs—

which he often could not climb or descend due to the pain of

doing so—impeded his access. Accommodations must give

“meaningful access to the beneﬁt that the grantee oﬀers.” Al-

exander v. Choate, 469 U.S. 287, 301 (1985). A reasonable jury

could ﬁnd that missing nearly two meals a day on average

meant McDaniel did not have “meaningful access” to meals.

The same is true of his access to medications. On this record,

a reasonable jury could ﬁnd that requiring McDaniel to walk

up and down stairs for meals and medications was not rea-

sonable.

The district court, however, found that McDaniel’s cell as-

signment was reasonable because he was physically able to

walk up and down stairs to access prison programs, even if it

was more painful to do so. The court pointed to the fact that

some prison oﬃcials had observed McDaniel managing to go

up or down stairs a few times. That reasoning may or may not

be persuasive at trial, but it is not consistent with the sum-

mary judgment standard. McDaniel presented evidence that

he could not navigate the stairs often enough to meet his basic

needs on a daily basis. He also explained that the occasions

when prison oﬃcials had observed him navigate the stairs

were the rare times that he tried the stairs to request accom-

modations or to avoid starvation.

28 No. 20-2946

Giving McDaniel the beneﬁt of conﬂicting evidence, we

cannot say beyond reasonable dispute that the Department

was reasonable in choosing to keep housing him in a unit re-

quiring him to go up and down stairs many times each day to

gain access to prison programs, beneﬁts, and services, includ-

ing meals and medications. Ample evidence could support a

jury ﬁnding of the exact opposite—that it was unreasonable

to refuse McDaniel’s requests to be placed in a no-stairs unit.

That holds true even if McDaniel could and did manage to go

up and down stairs occasionally, and often with help. 13

The district court also suggested that McDaniel’s walker

was an adequate accommodation for the stair problem, so that

McDaniel was not denied access to programs or services by

living in a unit with stairs. Applying the summary judgment

standard, we again must disagree. McDaniel oﬀered evidence

that his walker weighed about twenty-ﬁve pounds, and he

was directed not to lift more than ten pounds. He also pro-

vided evidence that he could not use the walker to move up

and down stairs and often relied on other prisoners to carry

his walker for him so he could hold onto the railing. If a pris-

oner needs help from other prisoners to access programs,

however, the general rule is that the accommodation is inef-

fective and inadequate. Wright v. New York State Dep’t of Cor-

rections, 831 F.3d 64, 74, 79 (2d Cir. 2016) (reversing summary

judgment for defense); see also American Council of the Blind v.

13 The evidence McDaniel offered that he had access on average to

only one meal per day is consistent with prison officials noting they some-

times saw McDaniel using the stairs successfully. The issue is whether a

reasonable jury would be required to find that McDaniel’s access to only

one meal per day constituted “meaningful access” to the relevant prison

program, meals. See Alexander, 469 U.S. at 301.

No. 20-2946 29

Paulson, 525 F.3d 1256, 1269, 1274 (D.C. Cir. 2008) (aﬃrming

summary judgment for plaintiﬀ; Rehabilitation Act’s empha-

sis on self-suﬃciency should ensure that “enjoyment of a pub-

lic beneﬁt is not contingent upon the cooperation of third per-

sons”). The walker aided McDaniel in attending meals only if

a friend carried the walker up the stairs, which then allowed

him to use the walker to move freely around the cafeteria. A

reasonable accommodation cannot be one that requires the

aid of other prisoners. 14

a. Medical Judgment?

The Department contends that the decision to house

McDaniel in a unit with stairs was a form of medical treat-

ment, which it says dooms his claim. As a general matter, the

ADA and the Rehabilitation Act do not apply to issues of al-

legedly inadequate medical treatment. See Reed, 915 F.3d at

486 n.6 (“The Rehabilitation Act and the Americans with Dis-

abilities Act do not create a remedy for medical malprac-

tice.”); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (ex-

plaining that ADA is not violated by “a prison’s simply failing

to attend to the medical needs of its disabled prisoners”).

As the Department sees the issue, McDaniel must prove

that medical decisions had no bearing on the denials of his

accommodation requests for a no-stairs unit because other-

wise he cannot show that he was denied access to programs

or services because of his disability. A contrary rule, the De-

partment says, “would lead to the absurd result of creating

litigation risk whenever medical staﬀ deny [a prisoner’s]

14 The cane likewise failed to solve the problem. It required McDaniel

to walk with a cane while also carrying his walker. McDaniel contends

that he could not use or carry both simultaneously.

30 No. 20-2946

requested treatment based on their medical judgments and

observations.” In this case, the Department contends, it de-

nied McDaniel a no-stairs unit because it was deferring to the

reasoned medical judgment of the facility’s staﬀ that he did

not need such a restriction.

The Department’s general point is correct. When prisoners

are unhappy with the medical care they have received, legal

redress may be available through medical malpractice suits or

Eighth Amendment suits, not under the ADA or the Rehabil-

itation Act. But when it comes to issues of mobility aﬀecting

access to programs (here, principally meals and medical care),

that argument runs against the weight of recent authority, at

least as applied to McDaniel’s evidence.

Starting with the Supreme Court, in Georgia, the Court ad-

dressed whether a prisoner with a disability in state prison

could sue the state for damages under Title II of the ADA. 546

U.S. at 153. When discussing whether the conduct at issue vi-

olated the Act in the ﬁrst place, the Court explained that an

“alleged deliberate refusal of prison oﬃcials to accommodate

[a plaintiﬀ’s] disability-related needs in such fundamentals as

mobility” could constitute an ADA violation because those de-

cisions could lead to the “‘exclu[sion] from participation in or

… deni[al of] the beneﬁts of’ the prison’s ‘services, programs,

or activities.’” Id. at 157 (alterations and omission in original;

emphasis added), quoting 42 U.S.C. § 12132. That statement

clearly assumes that the ADA and the Rehabilitation Act ad-

dress mobility issues that aﬀect a prisoner’s ability to partici-

pate equally in programs and services, even if they might also

relate to medical decisions. At the very least, those decisions

are not entirely oﬀ-limits from scrutiny under the ADA and

Rehabilitation Act.

No. 20-2946 31

Since Georgia, other circuits have treated decisions related

to a prisoner’s mobility as disability accommodation issues,

not just as issues of allegedly inadequate medical treatment,

even when medical staﬀ were directly involved in denying a

prisoner a claimed reasonable accommodation.

For example, in Wright, the Second Circuit treated the de-

cision to deny a prisoner a motorized wheelchair as an accom-

modation issue. 831 F.3d at 69, 74. Wright had received a

“quad cane, a manual wheelchair, use of his customized cush-

ion, knee pads, wheelchair accessible living space, and access

to mobility aides from the mobility assistance program.” Id. at

73. But he testiﬁed that even with those accommodations, he

was “unable to visit the law library,” “missed multiple morn-

ing sick calls, doctor appointments, and meals,” and “defe-

cated or urinated on himself on more than one occasion” be-

cause he could not reach the bathroom quickly enough. Id.

The court found it obvious that these shortcomings were

“examples of Wright being denied meaningful access to

prison services, programs, and activities.” Id. The court also

took particular issue with Wright’s forced reliance on other

prisoners to navigate prison programs, which was “funda-

mentally in tension with the ADA and [the Rehabilitation

Act’s] emphasis on independent living and self-suﬃciency.”

Id. at 74–75 (internal quotation omitted). The Second Circuit

reversed summary judgment for the defendants, concluding

that a reasonable jury could ﬁnd that a motorized wheelchair

was a reasonable accommodation. 15

15 The Department of Corrections tries to distinguish Wright because

the prison there failed to engage in an individual assessment of the pris-

oner’s needs when it denied him a wheelchair. In Wright the prison had

32 No. 20-2946

In another similar case, the Fifth Circuit recognized the

ADA could oﬀer relief for a denial of accommodations the

plaintiﬀ needed to move within a jail. In Cadena v. El Paso

County, 946 F.3d 717 (5th Cir. 2020), Cadena was incarcerated

for failing to appear in court. Three days before her arrest, she

had undergone surgery on her right leg. She used a wheel-

chair as she recovered. Upon arrival at the jail, a nurse con-

ducted an intake evaluation. The nurse determined that Ca-

dena could stand “independently” because she had “stood

during the intake when asked to do so.” Id. at 721. Cadena,

however, told the nurse that she could not walk, given her re-

cent surgery. The facility physician decided that Cadena

needed crutches but not a wheelchair. The facility also denied

her requests for “a modiﬁed food delivery procedure, and

various forms of medical care.” Id. at 725. At least one person,

but not the treating physician, told Cadena that the facility

could not accommodate a wheelchair.

The crutches, like the stairs for McDaniel, created prob-

lems for Cadena from the start. She could not safely navigate

the facility on crutches and told staﬀ members at least three

times that she needed a wheelchair. One oﬃcer testiﬁed that

she saw Cadena fall as she tried to use the crutches. The

crutches also impeded her ability to access meals. She could

maintained a blanket policy banning motorized wheelchairs. Here, by

contrast, McDaniel was evaluated many times by prison staff, and they

determined his requested accommodations were not medically necessary.

Whether individualized assessments occurred, however, does not resolve

the issue of whether the accommodations resulting from such assessments

were reasonable. Defendants cannot avoid liability under the statutes by

conducting individualized assessments if the result is a failure to provide

reasonable accommodations ensuring meaningful access to programs or

activities. This is an issue for trial.

No. 20-2946 33

not carry her food tray and use the crutches at the same time.

But jail oﬃcials “continued to refuse the requested accommo-

dation despite indications that further accommodation was

necessary.” Id. at 726.

In reversing summary judgment for the defense on the

reasonable accommodation issue, the Fifth Circuit rejected

the defendant’s argument that it properly deferred to the phy-

sician’s “medical judgment that Cadena did not need a wheel-

chair.” Id. The court ﬁrst explained that the Supreme Court

and the Second Circuit had treated “mobility aids” as “disa-

bility accommodations.” Id., citing Georgia, 546 U.S. at 157,

and Wright, 831 F.3d at 73. In addition, there were reasons to

doubt whether the physician actually intended for Cadena

not to have access to a wheelchair, and other staﬀ had explic-

itly recommended that she receive one. Thus, “the [defend-

ant’s] characterization that it was merely deferring to a rea-

soned medical judgment [was] inaccurate.” Id. at 727.

These cases indicate a general principle that decisions im-

peding a prisoner’s ability to move freely throughout a facility

and discouraging his participation in prison activities can be

addressed under the ADA and the Rehabilitation Act. See also

Koon v. North Carolina, 50 F.4th 398, 401–02, 405–06 (4th Cir.

2022) (treating medical professionals denying prisoner a

handicap pass to use library without climbing stairs as an ac-

commodation issue under the ADA); Brooks v. Colorado Dep’t

of Corrections, 12 F.4th 1160, 1164–65, 1172 (10th Cir. 2021) (re-

versing summary judgment for defendants under ADA; trial

required to decide whether provision of adult diapers was a

reasonable accommodation for prisoner with ulcerative colitis

that caused him to miss hundreds of meals per year after

prison’s clinical services denied prisoner a movement pass

34 No. 20-2946

that would have allowed him to access meals more ﬂexibly);

see also Furgess v. Pennsylvania Dep't of Corrections, 933 F.3d

285, 291 (3d Cir. 2019) (explaining “complaints about not be-

ing provided an accessible shower are not allegations of med-

ical malpractice or disagreements about medical treatment.

They are requests for reasonable accommodations so that in-

mates with disabilities can take a shower—just like able-bod-

ied inmates”). Such claims are not barred as a matter of law

even if the denial of an accommodation can be described in

some respects as a “medical decision.”

Our decision in Bryant, 84 F.3d at 246, does not conﬂict

with this view; the case is readily distinguishable from this

situation. Bryant was a prisoner with paraplegia. He sued a

prison after it had refused his request for guardrails for his

bed and as a result, he fell out of his bed and broke his leg.

Bryant also complained that he was denied medication after

surgery to ﬁx his broken leg. Bryant argued these actions vio-

lated, in part, the ADA. We rejected his claim.

We emphasized two important points. First, Bryant had

not complained “of being excluded from some prison service,

program, or activity.” Id. at 249. Instead, he took issue with

“incompetent treatment of his paraplegia,” which the ADA

does not address. Id. Second, we emphasized that

“[s]tandards of medical care are not irrelevant to the [ADA].

Disabled people often cannot participate in programs and ac-

tivities unless special attention is given to their medical

needs.” Id. That was not Bryant’s case because he did not

claim he was denied access to a program or activity. McDan-

iel, by contrast, has oﬀered evidence that he was in fact denied

No. 20-2946 35

access to qualifying programs and services because the De-

partment refused to assign him to a no-stairs unit. 16

We read these cases, taken together, as establishing a few

general principles. First, the ADA and the Rehabilitation Act

do not apply when a prisoner simply disagrees with his

course of medical treatment. Second, simple disagreement

with treatment is diﬀerent from cases where, as here, a plain-

tiﬀ oﬀers evidence that the choice to reject his accommodation

requests directly aﬀected his mobility, preventing him from

moving freely throughout the facility and impairing or pre-

venting his participation in prison activities. “Disabled people

often cannot participate in programs and activities unless spe-

cial attention is given to their medical needs.” Bryant, 84 F.3d

at 249. Consistent with Georgia and the later circuit cases cited

above, the evidence here raises issues under the ADA and the

16 The Department also relies on Fitzgerald v. Corrections Corp. of Amer-

ica, 403 F.3d 1134 (10th Cir. 2005), but the situation there is also readily

distinguishable from McDaniel’s mobility issues. Fitzgerald broke his hip

while incarcerated. The treating physician advised the prison that a surgi-

cal procedure was the best form of treatment, but that another acceptable

course of treatment was to do nothing. The facility chose to do nothing.

Fitzgerald sued, asserting that the physician’s recommendation that the

facility may “do nothing” violated his rights under the ADA and the Re-

habilitation Act. The Tenth Circuit rejected his claim, explaining that a sur-

gery is something that Fitzgerald “would not have been ‘otherwise quali-

fied’ for … in the absence of his alleged disability.” Id. at 1144. Whether to

have surgery or not was “the sort of purely medical decision[] that we

have held [does] not ordinarily fall within the scope of the ADA or the

Rehabilitation Act.” Id. Fitzgerald did not argue that he was denied access

to a program or service because of his disability. The sole issue was his

disagreement with the treatment he received.

36 No. 20-2946

Rehabilitation Act, not just medical malpractice or Eighth

Amendment health-care claims.

Whether to house McDaniel in a unit with stairs presented

an accommodation issue since it directly related to his mobil-

ity. If McDaniel could not access the cafeteria if he lived in a

unit with stairs but could if he lived in a unit without them,

then a no-stairs restriction could qualify as a mobility aid. The

choice to assign him to a unit with stairs aﬀected his ability to

move freely around the prison, and, according to McDaniel’s

evidence, resulted in his missing 600 meals in one year, as well

as many doses of medications.

McDaniel has shown a material dispute as to whether

housing him in a unit with stairs was a reasonable accommo-

dation. McDaniel never claimed he was incapable of ever

making his way up and down stairs. His case has always been

that stairs were too diﬃcult and painful for him to access

meals and medications on a regular basis. The Department’s

justiﬁcation that the cell assignment was necessary because

movement, like walking up and down stairs, could help

McDaniel avoid developing muscle atrophy does not compel

summary judgment in its favor. Even if the decision was rea-

sonable when McDaniel was ﬁrst transferred and was recov-

ering from his spinal surgery, McDaniel’s evidence shows

that as time went on, he struggled to the point that he was

missing medications and an average of two meals a day.

Faced with that evidence, a jury could ﬁnd that it eventually

became unreasonable for the prison to deny a non-stairs as-

signment. We recognize, of course, that doctors often give

treatment instructions that patients do not agree with and

may even ﬁnd painful, such as stressing movement after sur-

gery. But our task is assessing whether McDaniel received

No. 20-2946 37

meaningful access to prison programs, and to make that as-

sessment by giving McDaniel the beneﬁt of conﬂicts in the ev-

idence. As months went by and he was relegated to asking

other prisoners for assistance or even scooting up and down

stairs on his buttocks for meals, medications, and other ser-

vices, there is a genuine factual dispute over whether the cell

assignment continued to be reasonable.

McDaniel has oﬀered evidence to establish a prima facie

case that denying him a no-stairs unit amounted to a failure

to accommodate his disabilities. The Department has not ar-

gued that McDaniel’s requested accommodation—a no-stairs

unit—would have imposed an undue hardship on prison of-

ﬁcials. McDaniel’s evidence thus supports a triable claim that

the Department violated his rights under the ADA and the

Rehabilitation Act during his time at Columbia.

b. Compensatory Damages

The next issue is whether a reasonable jury could award

McDaniel compensatory damages, which, under the ADA

and Rehabilitation Act, would require a ﬁnding that the De-

partment was at least deliberately indiﬀerent to his lack of ac-

cess. Lacy, 897 F.3d at 863. Deliberate indiﬀerence, again, re-

quires that “the defendant knew that harm to a federally pro-

tected right was substantially likely and … failed to act on that

likelihood.” Id. at 862 (omission and emphases in original; in-

ternal quotation omitted).

As explained, McDaniel oﬀered evidence that the stairs

prevented his access to meals and medication. He and the de-

fendants also oﬀered evidence that he conveyed that fact re-

peatedly to various facility staﬀ members during his year at

Columbia. All his requests for a no-stairs unit were denied,

38 No. 20-2946

and his cell assignment went unchanged. A reasonable jury

could ﬁnd that the Department, by refusing to change

McDaniel’s disability-related restrictions and to place him in

a no-stairs unit, even after knowing he was missing meals and

medication dosages, was deliberately indiﬀerent to violations

of McDaniel’s “federally protected right[s]” under the ADA

and the Rehabilitation Act. Id. (internal quotation omitted). At

bottom, McDaniel has oﬀered enough evidence to defeat sum-

mary judgment on this failure-to-accommodate claim for

money damages. We reverse the district court’s decision to the

contrary.

c. Eleventh Amendment Sovereign Immunity and the

Eighth Amendment’s Prohibition on Cruel and Un-

usual Punishment

Having set out the merits of McDaniel’s reasonable-ac-

commodation claim regarding the denial of a no-stairs unit,

we return to the issue of sovereign immunity. If a reasonable

jury could conclude that one or more responsible prison oﬃ-

cials were deliberately indiﬀerent to McDaniel’s federally

protected rights under the ADA, then a reasonable jury could

also ﬁnd that same conduct violated the Eighth Amendment.

This point is important, because it means that, for purposes of

McDaniel’s ADA Title II claim for money damages, Congress

could validly abrogate state sovereign immunity under the

Eleventh Amendment. See Georgia, 546 U.S. at 159 (“[I]nsofar

as Title II creates a private cause of action for damages against

the States for conduct that actually violates the Fourteenth

Amendment, Title II validly abrogates state sovereign im-

munity.” (emphasis original)).

We discuss below McDaniel’s Eighth Amendment claim

against Dr. Syed for deliberate indiﬀerence to medical needs.

No. 20-2946 39

McDaniel’s Title II ADA claim is comparable to a “conditions

of conﬁnement” claim under the Eighth Amendment. See

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (explaining that

Eighth Amendment imposes duties on prison oﬃcials to

“provide humane conditions of conﬁnement”).

“Adequate food and facilities to wash and use the toilet are

among the ‘minimal civilized measure of life’s necessities’

that must be aﬀorded prisoners.” Jaros, 684 F.3d at 670, quot-

ing Rhodes v. Chapman, 452 U.S. 337, 347 (1981), and citing Wil-

son v. Seiter, 501 U.S. 294, 304 (1991). The Supreme Court has

recognized that the food prisoners are fed is a “condition” of

conﬁnement. Wilson, 501 U.S. at 303. Prison oﬃcials are liable

under the Eighth Amendment for depriving an inmate of hu-

mane conditions of conﬁnement if the oﬃcial is deliberately

indiﬀerent to a substantial risk of harm from that deprivation.

See Farmer, 511 U.S. at 837.

We explained above why a reasonable jury could conclude

that prison oﬃcials were deliberately indiﬀerent to McDan-

iel’s lack of access to prison programs, including meals. We

also think it obvious that depriving a prisoner of nearly two

meals a day for an entire year can amount to a substantial risk

of harm. See Reed v. McBride, 178 F.3d 849, 853–54 (7th Cir.

1999) (reversing summary judgment; prisoner missing meals

three to ﬁve days at a time was a “suﬃciently serious” depri-

vation to constitute an Eighth Amendment violation); accord,

Foster v. Runnels, 554 F.3d 807, 812–13 (9th Cir. 2009) (revers-

ing summary judgment; depriving prisoner of sixteen meals

in twenty-three days was suﬃciently serious deprivation of a

life necessity to establish Eighth Amendment violation); Sim-

mons v. Cook, 154 F.3d 805, 807–09 (8th Cir. 1998) (upholding

damage award for Eighth Amendment violation where

40 No. 20-2946

paraplegic prisoners missed four consecutive meals because

their wheelchairs could not access food tray slots, depriving

them of “the minimal civilized measure of life’s necessities,”

quoting Farmer, 511 U.S. at 834); Cooper v. Sheriﬀ, Lubbock

County, 929 F.2d 1078, 1083 (5th Cir. 1991) (deprivation of ad-

equate food for signiﬁcant periods of time is a “form of cor-

poral punishment” forbidden by the Eighth Amendment). Be-

cause the conduct that supports McDaniel’s Title II ADA

claim would also amount to a violation of the Eighth Amend-

ment, the Eleventh Amendment does not bar him from seek-

ing money damages against the Wisconsin Department of

Corrections. He is seeking recompense for an actual constitu-

tional violation.

2. Single-Occupancy Wet Cell

We turn now to McDaniel’s assertion that placing him in a

double-occupancy cell failed to accommodate his disabilities.

Again, to survive summary judgment on this issue, McDaniel

needed to oﬀer evidence that the Department of Corrections

denied him access to a program or activity because of his dis-

ability. Unlike his claim for a no-stairs unit, this claim pre-

sented a medical treatment dispute. Relief is not available un-

der the ADA and the Rehabilitation Act, and the district court

properly granted summary judgment on the claim.

McDaniel contended that the double-occupancy wet cell

was not a reasonable accommodation for his incontinence and

therefore impeded his access to the toilet. Staﬀ at Columbia

denied McDaniel’s request for a single-occupancy cell be-

cause they did not believe one was medically necessary. These

conﬂicting positions indicate the core dispute was and contin-

ues to be over the best treatment of incontinence, not McDan-

iel’s access to a toilet.

No. 20-2946 41

We draw our understanding from the nephrologist her-

self, whose recommendations McDaniel relies upon here. She

said that the “current single[] cell is providing him this option

[to do timed voiding] and I would recommend this to con-

tinue as to avoid further complications and stress associated

with” incontinence; and in a follow-up, “single cell status was

previously signiﬁcantly helpful in minimizing issues and

stress surrounding bowel and bladder concerns.” Her recom-

mendations for a single-occupancy cell were based on what

she believed McDaniel needed to treat his incontinence issues

and to practice timed voiding. The Department denied

McDaniel a single-occupancy cell because it disagreed with

the nephrologist and McDaniel that one was medically neces-

sary. These disagreements are more akin to Bryant and that

plaintiﬀ’s concerns with the prison’s alleged “incompetent

treatment of his paraplegia.” 84 F.3d at 249. In this case,

McDaniel took issue with what he saw as incompetent treat-

ment of his incontinence. This seems more like a treatment is-

sue, not an accommodation issue.

McDaniel tried to present this issue as one regarding toilet

access, but we are not convinced. McDaniel testiﬁed that he

would often fall oﬀ the toilet because he could not access it

with his walker, which he needed for balance, when the cour-

tesy screen was up in his cell. If a prisoner could not access a

toilet because the bathroom could not accommodate a wheel-

chair, for instance, that could present potential issues under

the ADA and the Rehabilitation Act. See Georgia, 546 U.S. at

155, 157 (ADA violation was “quite plausible” since bathroom

was not equipped for wheelchair access). If the concern were

simply the courtesy screen blocking his ability to access the

toilet, that would be one thing. But McDaniel went a step fur-

ther: he contended the only way to remedy this situation was

42 No. 20-2946

to give him his own cell with his own toilet, not just so that he

could use his walker while using the toilet, but so that he

could practice timed voiding. McDaniel’s proposed solution

constitutes a form of medical treatment for his incontinence.

This reasoning undermines McDaniel’s attempt to character-

ize this claim as an access issue.

3. No Top Bunk

McDaniel contended further that having a bed with a top

bunk failed to accommodate his disabilities. McDaniel had a

lower bunk. While he hit his head on the top bunk a few times

when getting into his bed, he has not oﬀered evidence that the

top bunk prevented him from accessing programs or services.

To the extent the pain specialists believed McDaniel should

have had a bed without a top bunk, that decision was related

to decreasing the number of opportunities where McDaniel

might aggravate his pain. That rationale does not show a de-

nial of access to programs or services. A reasonable jury could

not ﬁnd that the top bunk prevented or discouraged his par-

ticipation in prison activities.

To summarize our conclusions under the Rehabilitation

Act and the ADA, McDaniel met his burden to defeat sum-

mary judgment on the theory that the Department of Correc-

tions failed to accommodate and was deliberately indiﬀerent

to his disability-related needs when it denied him a cell in a

unit that would not require him to go up or down stairs for

routine activities. We reverse the district court’s grant of sum-

mary judgment on that claim. We aﬃrm the court’s grant of

summary judgment on the other claims under those statutes.

No. 20-2946 43

V. Eighth Amendment Claim Against Dr. Syed

We turn now to McDaniel’s Eighth Amendment claim

against Dr. Syed, a physician at the Columbia Correctional In-

stitution. According to McDaniel, Dr. Syed expressed skepti-

cism toward him in their ﬁrst interaction, saying he could not

“possibly have” all his diagnosed medical issues. Later, how-

ever, Dr. Syed referred McDaniel to the Waupun Memorial

Hospital pain clinic in response to his complaints. Dr. Syed

continued to treat McDaniel, prescribing new medications

when necessary and refusing others after concluding that

McDaniel was likely engaging in “attention-seeking and

drug-seeking behavior.” Dr. Syed did not alter the disability

restrictions in McDaniel’s ﬁle at any point.

McDaniel contended that Dr. Syed was deliberately indif-

ferent to his medical needs in two ways: ﬁrst, by failing to fol-

low medical recommendations of outside specialists, and sec-

ond, by failing to change his course of treatment when it was

not adequately treating McDaniel’s pain. Given the demand-

ing standard under the Eighth Amendment, a reasonable jury

could not ﬁnd for McDaniel on either theory.

A. Legal Standard

The Eighth Amendment prohibits “cruel and unusual

punishment” of a prisoner. It is well established that a prison

oﬃcial’s “deliberate indiﬀerence” to a prisoner’s “serious

medical needs” violates that mandate. Farmer, 511 U.S. at 835

(internal quotation omitted); Perez v. Fenoglio, 792 F.3d 768,

776 (7th Cir. 2015). To support a claim of deliberate indiﬀer-

ence, McDaniel needed to oﬀer evidence that (1) he had an

objectively serious medical condition, and (2) Dr. Syed acted

with deliberate indiﬀerence to that condition. See Petties v.

44 No. 20-2946

Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc). Dr. Syed

disputes only the second element.

Deliberate indiﬀerence depends on the defendant’s “sub-

jective state of mind.” Id. The question is whether McDaniel

provided evidence to support a ﬁnding that Dr. Syed “actually

knew of and disregarded a substantial risk of harm.” Id. (em-

phasis in original); see also Farmer, 511 U.S. at 837 (“[T]he of-

ﬁcial must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.”). Negligence or even

objective recklessness—the “fail[ure] to act in the face of an

unjustiﬁably high risk that is so obvious that it should be

known”—is not enough to satisfy that standard. Petties, 836

F.3d at 728 (emphasis in original).

Under the Eighth Amendment, a medical professional

who has treated a prisoner “is entitled to deference in treat-

ment decisions unless no minimally competent professional

would have so responded under those circumstances.” Camp-

bell v. Kallas, 936 F.3d 536, 545 (7th Cir. 2019), quoting Sain v.

Wood, 512 F.3d 886, 894–95 (7th Cir. 2008) (internal quotation

omitted). To violate the Eighth Amendment, a treatment de-

cision must be “such a substantial departure from accepted

professional judgment, practice, or standards, as to demon-

strate that the person responsible actually did not base the de-

cision on such a judgment.” Sain, 512 F.3d at 895, quoting Col-

lignon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998).

Equally important, however, the “receipt of some medical care

does not automatically defeat a claim of deliberate indiﬀer-

ence if a fact ﬁnder could infer the treatment was ‘so blatantly

inappropriate as to evidence intentional mistreatment likely

to seriously aggravate’ a medical condition.” Edwards v.

No. 20-2946 45

Snyder, 478 F.3d 827, 831 (7th Cir. 2007), quoting Snipes v. De-

Tella, 95 F.3d 586, 592 (7th Cir. 1996); see also Arnett v. Webster,

658 F.3d 742, 751 (7th Cir. 2011) (“a prisoner [does not] need

to show that he was literally ignored”).

B. Disagreement with Specialists

McDaniel ﬁrst asserts that Dr. Syed was deliberately indif-

ferent to his serious medical needs by acting contrary to the

recommendations of outside specialists. Deliberate indiﬀer-

ence can occur when a prison oﬃcial acts contrary to the rec-

ommendations of specialists for non-medical reasons. See Pe-

rez, 792 F.3d at 778 (collecting cases). That is not what oc-

curred here. The undisputed evidence shows that Dr. Syed’s

actions were based on “his own legitimate medical judg-

ment[s].” Id. at 779; see Estate of Cole v. Fromm, 94 F.3d 254, 261

(7th Cir. 1996) (“Mere diﬀerences of opinion among medical

personnel regarding a patient’s appropriate treatment do not

give rise to deliberate indiﬀerence.”). McDaniel has not of-

fered evidence that the care he received was “blatantly inap-

propriate” or that Dr. Syed’s decisions were “substantial de-

partures from accepted professional judgment, practice, or

standards.”

Take the no-stairs issue ﬁrst. Dr. Syed agreed to discon-

tinue McDaniel’s no-stairs restriction after a physical thera-

pist made that recommendation shortly after McDaniel ar-

rived at Columbia. McDaniel argues that by including certain

restrictions in the post-operative instructions (which pre-

ceded his transfer), the spinal surgeon eﬀectively recom-

mended that he live in a unit that would not require him to

go up and down stairs routinely. McDaniel contended that a

reasonable jury could ﬁnd that Dr. Syed was deliberately

46 No. 20-2946

indiﬀerent to his medical needs by acting against that sup-

posed recommendation.

There are several problems with this argument. First, it is

not clear that the post-operative instructions support McDan-

iel’s position. He points to the instruction that said he should

lift no more than ﬁve to ten pounds. McDaniel asserted under

penalty of perjury that his walker weighed twenty-ﬁve

pounds (recall it had four wheels and an attached chair). But

for this argument to have traction, Dr. Syed would have

needed to have been aware of that weight and to have under-

stood that McDaniel needed to use the walker to go up and

down stairs, requiring him to lift more than ten pounds each

time. (Recall that as part of the evaluation, the physical thera-

pist had McDaniel walk up and down six stairs without the

aid of a walker, which he did successfully. Dr. Syed consulted

these notes in changing McDaniel’s restrictions.) Putting

those evidentiary holes aside, the post-operative instructions

also said that McDaniel may “climb stairs.” A reasonable jury

could not ﬁnd that Dr. Syed acted with deliberate indiﬀerence

to McDaniel’s serious medical needs by agreeing with the spi-

nal surgeon’s suggestion that McDaniel could “climb stairs.”

Next, consider the recommendation by the outside pain

specialist that McDaniel live in a cell without a top bunk.

McDaniel contends that the top bunk exacerbated his pain be-

cause he would often hit his head on the bunk due to his lim-

ited mobility in his back and that his cellmate would some-

times hit him getting in and out of bed. When McDaniel com-

plained of these issues to the Health Services Unit, staﬀ mem-

bers were not able to corroborate his complaints. Dr. Syed as-

sessed McDaniel’s condition and did not believe that a no-

top-bunk restriction was medically necessary. McDaniel has

No. 20-2946 47

not oﬀered evidence that Dr. Syed’s conclusion was a substan-

tial departure from acceptable professional standards, even if

it did conﬂict with the outside pain specialist’s recommenda-

tion. Holloway v. Delaware County Sheriﬀ, 700 F.3d 1063, 1074

(7th Cir. 2012) (“[T]he prison physician, as the [prisoner’s] act-

ing primary care doctor, is free to make his own, independent

medical determination as to the necessity of certain treat-

ments or medications, so long as the determination is based

on the physician’s professional judgment and does not go

against accepted professional standards.”).

Finally, McDaniel points to the recommendation by the

nephrologist that he live in a single-occupancy wet cell to aid

in his timed voiding. At an appointment a few months into his

stay at Columbia, McDaniel told Dr. Syed that he had issues

with “fecal incontinence” and that he had “problems [with]

cell[mate] when defecating.” Dr. Syed did not change McDan-

iel’s cell assignment. Then, a nephrologist visited McDaniel

twice and concluded that a single-occupancy wet cell would

help treat his incontinence issues. Dr. Syed, however, contin-

ued the same course of treatment: diapers and a double-occu-

pancy cell with a toilet. Other Health Services staﬀ agreed

with Dr. Syed that McDaniel’s cell assignment did not need to

change.

McDaniel has again failed to introduce a disputed fact that

Dr. Syed’s decision was devoid of medical judgment or to

show that the prison was required to adopt the nephrologist’s

recommendation. Deliberate indiﬀerence is a demanding

standard, and McDaniel did not oﬀer evidence that Dr. Syed’s

decision to keep his treatment the same was a substantial de-

parture from acceptable professional standards. Snipes, 95

F.3d at 592 (“[T]he Constitution is not a medical code that

48 No. 20-2946

mandates speciﬁc medical treatment.”). The recommenda-

tions by the nephrologist do not support such a conclusion on

their own. See Reck v. Wexford Health Sources, Inc., 27 F.4th 473,

484–85 (7th Cir. 2022) (disagreement among physicians did

not, without more, establish reckless disregard for patient

harm and pain required for constitutional violation).

C. Pain Treatment

McDaniel also asserted that a reasonable jury could ﬁnd

that Dr. Syed was deliberately indiﬀerent to his pain. We dis-

agree. “[T]he Eighth Amendment does not entitle incarcer-

ated patients to their preferred pain medication, nor does it

impose the unrealistic requirement that doctors keep patients

completely pain-free.” Arce v. Wexford Health Sources Inc., 75

F.4th 673, 681 (7th Cir. 2023) (internal citations omitted).

In response to McDaniel’s complaints of pain early in his

stay at the Columbia Correctional Institution, Dr. Syed re-

ferred him to the Waupun Memorial Hospital pain clinic. He

also prescribed McDaniel new medications to help address

his pain. Later, Dr. Syed assessed McDaniel, concluded that

he was likely engaging in “attention-seeking and drug-seek-

ing behavior,” and refused to change his medications. Dr.

Syed said that his conclusion was based on his medical assess-

ment, a past cardiac work-up, and how McDaniel presented

himself during their interaction. “The administration of pain

killers requires medical expertise and judgment. Using them

entails risks that doctors must consider in light of the bene-

ﬁts.” Snipes, 95 F.3d at 591.

McDaniel has again not oﬀered evidence that Dr. Syed’s

decision constituted a substantial departure from acceptable

professional standards or that the treatment he did receive

No. 20-2946 49

was “‘so blatantly inappropriate as to evidence intentional

mistreatment likely to seriously aggravate’ his condition.”

Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005), quoting

Snipes, 95 F.3d at 592; see also Lee v. Young, 533 F.3d 505, 511

(7th Cir. 2008) (“Prison oﬃcials are expected to act responsi-

bly under the circumstances that confront them but are not

required to act ﬂawlessly.” (internal quotation omitted)). That

strikes us as especially true when other staﬀ members in the

Health Services Unit came to similar conclusions regarding

McDaniel’s care. Cf. Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir.

2014) (doctor not deliberately indiﬀerent when decision to

forgo MRI was “implicitly endorsed by every other doctor

who examined [the plaintiﬀ]”).

* * *

The district court’s grant of summary judgment for the De-

partment on McDaniel’s ADA and Rehabilitation Act failure-

to-accommodate claim based on the denial of a no-stairs unit

at the Columbia Correctional Institution is REVERSED. In all

other respects the judgment of the district court is

AFFIRMED, and the case is REMANDED for proceedings

consistent with this opinion.

50 No. 20-2946

BRENNAN, Circuit Judge, concurring in part and dissenting

in part. My colleagues and I agree that the defendants are en-

titled to summary judgment on most of Carl McDaniel’s case.

We part ways on his claim under Section 504 of the Rehabili-

tation Act, as applied to the denial of his placement in a no-

stair unit during his incarceration at Columbia Correctional

Institution. Because review is limited to the evidence that was

properly before the district court, I would aﬃrm the district

court’s grant of summary judgment to the defendants in full.

The district court correctly concluded that McDaniel’s

submissions disregarded the local rules. McDaniel did not

even try to identify the evidence on which he now relies for

his claim to be housed in a no-stair unit. The district court de-

clined to scour the record. Instead, it considered McDaniel’s

responses to the defendants’ proposed facts and his own pro-

posed facts only when they complied with the local rules.

That decision was a matter within the district court’s sound

discretion.

A. Civil Local Rule 56 – Summary Judgment

Under our case law, district courts have broad discretion

to compel compliance with their local rules governing sum-

mary judgment proceedings. These rules serve a crucial func-

tion for district judges, who face the diﬃcult task of managing

and prioritizing hundreds of cases and thousands of motions.

In particular, the local rules on summary judgment require a

party to direct the judge to the portions of the record that sup-

port the party’s factual assertions or its opposition to those of

its counterparty. Hinterberger v. City of Indianapolis, 966 F.3d

523, 529 (7th Cir. 2020). “The rules of each district court

No. 20-2946 51

structuring the summary-judgment process cannot serve their

function if parties can later go to the court of appeals and se-

cure a reversal based on evidence the district judge may not

have known was present.” Johnson v. Cambridge Indus., Inc.,

325 F.3d 892, 898 (7th Cir. 2003).

In the Eastern District of Wisconsin, a party moving for

summary judgment must ﬁle a statement of proposed mate-

rial facts. Civil Local Rule 56(b)(1)(C). Each fact must be con-

tained within its own separate, numbered paragraph. Id. The

party opposing summary judgment must reproduce each

numbered paragraph in the moving party’s statement. Civil

Local Rule 56(b)(2)(B). For any disagreement, the nonmovant

must submit “speciﬁc references to the aﬃdavits, declara-

tions, parts of the record, and other supporting materials re-

lied upon.” Id. The nonmoving party also must ﬁle “a state-

ment, consisting of short numbered paragraphs, of any addi-

tional facts that require the denial of summary judgment, in-

cluding references to the aﬃdavits, declarations, parts of the

record, and other supporting materials relied upon to support

the facts described in that paragraph.” Civil Local Rule

56(b)(2)(B). 1

Time and again, we have recognized that district courts

“may require strict compliance with their local rules.” Hinter-

berger, 966 F.3d at 528; see also Ammons v. Aramark Unif. Servs.,

1 The current iteration of Civil Local Rule 56 has been in eﬀect since

2010. This court has upheld the enforcement of earlier versions of the rule,

which date back decades. See Huey v. United Parcel Serv., Inc., 165 F.3d 1084,

1085 (7th Cir. 1999) (upholding then-Civil Local Rule 6.05, which required

the submission of speciﬁc evidentiary materials to dispute particular facts

at summary judgment); Kunik v. Racine Cnty., Wis., 106 F.3d 168, 171, 174

(7th Cir. 1997) (same).

52 No. 20-2946

Inc., 368 F.3d 809, 817 (7th Cir. 2004). When a district court

decides that a litigant has violated those rules, we review that

decision solely for abuse of discretion. Cichon v. Exelon Gener-

ation Co., 401 F.3d 803, 808–09 (7th Cir. 2005) (considering

Northern District of Illinois Local Rule 56.1, closely analogous

to the Eastern District of Wisconsin local rule here). And we

have repeatedly stressed that district courts may decline to

consider the noncompliant portions of submissions. “[A]

court does not abuse its discretion when it opts to disregard

facts presented in a manner inconsistent with the rules.” Fab-

riko Acquisition Corp. v. Prokos, 536 F.3d 605, 607–08 (7th Cir.

2008) (upholding district court decision under predecessor

E.D. of Wis. Civil Local Rule 56.2(b) to limit factual record

when litigant failed to specify citations to evidentiary materi-

als).

Contrary to McDaniel’s arguments, requiring adherence

to local rules is not empty formalism. Rather, it is essential to

the proper functioning of the district courts. Johnson, 325 F.3d

at 898. In our adversarial system of litigation, the parties have

the duty to identify “what facts are truly disputed and may

require resolution at a trial.” Hinterberger, 966 F.3d at 529. A

district court has no such duty. Id.

B. McDaniel’s Noncompliance

The defendants followed the local rule by submitting a 93-

paragraph statement of proposed material facts. McDaniel’s

responses to those proposed facts failed to comply with the

local rule. Few, if any, of McDaniel’s responses cited aﬃda-

vits, declarations, or speciﬁc portions of the record. Many re-

sponses contain no citation, while some list a vague authority

such as “policy.” That falls short under our case law. See

McKinney v. Oﬀ. of Sheriﬀ of Whitley Cnty., 866 F.3d 803, 808–

No. 20-2946 53

09 (7th Cir. 2017); Ammons, 368 F.3d at 817–18 (stating that a

denial “must include a speciﬁc reference to the aﬃdavit or

other part of the record. … Citations to an entire transcript of

a deposition or to a lengthy exhibit are not speciﬁc and are,

accordingly, inappropriate.”).

Even in the few places where McDaniel’s responses ap-

pear to reference speciﬁc documents, the responses do not tell

the district court where to ﬁnd those documents. Several of

McDaniel’s responses also improperly contain legal argu-

ments. Many times, we have held that such responses violate

local rules on summary judgment. See Hinterberger, 966 F.3d

at 528–29; Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219

(7th Cir. 2015); FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627,

634 (7th Cir. 2005); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.

2003); Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524,

528–29 (7th Cir. 2000).

McDaniel’s statement of additional material facts was also

deﬁcient. His submission includes some citations to docu-

ments in the record, but for the most part it does not contain

facts, and instead quotes legal arguments made in the parties’

briefs.

McDaniel points to two cases to argue that the district

court should excuse his noncompliance, but neither is analo-

gous. In Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394 (7th Cir.

2012), it was an abuse of discretion for the district court to re-

fuse to consider evidence just because it was included in the

nonmovant’s statement of material facts but not in his accom-

panying memorandum of law. 686 F.3d at 397. There, the non-

movant “did not make the district court scour the record; he

followed [the local rule] … and brought to the district court’s

attention the evidence in the record supporting his opposition

54 No. 20-2946

to summary judgment.” Id. at 398. Here, though, McDaniel

would have the district court search the record, and he did not

follow Civil Local Rule 56(b)(2)(B). Sojka therefore does not

help McDaniel.

Likewise, in McKinney, this court ruled that a district court

abused its discretion by disregarding the “speciﬁc guidance”

as to pertinent record evidence that the nonmovant provided

at summary judgment. 866 F.3d at 808. There, the nonmovant

provided the district court with “a detailed and organized

guide to [the] evidence supporting his assertions of disputed

facts and his legal arguments.” Id. at 809. McDaniel provided

no such detailed and organized guide, so the district court

was within its discretion to disregard evidence that was not

identiﬁed in compliance with the local rule.

Per McDaniel, the district court lacked discretion to en-

force the local rule against him for two other reasons. The ﬁrst

is that McDaniel represented himself before the district court.

The second concerns the district court permitting him to re-

spond to the defendants’ statement of material facts by sub-

mitting an aﬃdavit or unsworn declaration.

Neither reason is persuasive. First, given the procedural

history here, McDaniel was not entitled to special solicitude

because he litigated pro se. The district court recruited an ex-

perienced, knowledgeable attorney to assist McDaniel with

prosecuting his claims. But McDaniel became dissatisﬁed

with his attorney’s legal strategy, and he asked the court to

terminate his services. The attorney therefore withdrew.

McDaniel chose to litigate pro se, so he cannot use that status

to claim an entitlement to disregard the district court’s local

rules. In any event, pro se litigants are not excused from com-

plying with procedural rules, Pearle Vision, Inc. v. Romm, 541

No. 20-2946 55

F.3d 751, 758 (7th Cir. 2008), or court orders. DJM Logistics,

Inc. v. FedEx Ground Package Sys., Inc., 39 F.4th 408, 415 (7th

Cir. 2022). That principle applies to rules governing summary

judgment. Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir. 2016)

(citing Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001)).

Second, the district court did not coax McDaniel into non-

compliance with Civil Local Rule 56. To the contrary, the

court advised him in a plain language Notice and Order that

he “must support every disagreement with a proposed fact by

citing to evidence.” As McDaniel notes, the court allowed him

to do so “by relying on documents that he attaches to his re-

sponse or by telling the court his version of what happened in

an aﬃdavit or an unsworn declaration under 28 U.S.C.

§ 1746.” But nothing in the court’s Notice and Order excused

McDaniel from providing “a detailed and organized guide to

[the] evidence supporting his assertions of disputed facts and

his legal arguments.” McKinney, 866 F.3d at 809. McDaniel did

not meet that standard. So, the district court was within its

discretion to decide the summary judgment motion without

ﬁrst sifting through this case’s extensive record to try to locate

and examine evidence that McDaniel failed to identify or re-

spond to.

C. The Majority Opinion’s View of the Facts

My colleagues conclude that the district court went too far

with respect to one fact—that McDaniel missed meals because

he was not assigned to a no-stairs unit. Because McDaniel

signed all his summary judgment submissions under penalty

of perjury, the majority opinion concludes that they provide

a factual record that satisﬁes the applicable federal and local

rules. Then the majority opinion pulls statements about the

56 No. 20-2946

meals missed from McDaniel’s submissions, citing them as

the evidence that survives summary judgment.

On review, though, the selected quotes from McDaniel’s

ﬁlings repeated in the majority opinion do not qualify as facts

defeating summary judgment. All but one relate to claims dif-

ferent than his placement in a no-stairs unit. 2 The only state-

ment the majority opinion cites that is connected to McDan-

iel’s Rehabilitation Act claim 3 still violates Civil Local Rule

56(b)(2)(B) by failing to be a concise response to the movant’s

statement of facts that speciﬁes references to the record relied

upon.

2 McDaniel’s statement that he was “missing [h]undreds of state

meals” is in R. 178 ¶ 46, his response to defendants’ proposed findings of

fact concerning his claim not to have a top bunk.

McDaniel’s statement that the prison “denied [me] over 600 state

meals” is in R. 179, his response to the declaration of Dr. Salam Syed, who

played no role in McDaniel’s ADA/Rehabilitation Act claim. This state-

ment was in response to ¶ 26 of Dr. Syed’s declaration about McDaniel’s

medications, not his request to be assigned to a no-stairs unit.

And McDaniel’s statements that he “missed over 600 state meals in

less than a year because of severe pain” and “Defendants were all aware

of the ongoing constitutional violations of the [o]ver 600 … state meals”

are from R. 177, his “Reply to Defense Argument,” at pp. 10 and 12 of that

filing, in its section concerning his conditions of confinement claim, not

his Rehabilitation Act claim.

3 McDaniel’s statement that “[m]issing over 600 state meals because

of severe unrelenting pain and being fed by modifying a program, which

defendants never did, is not a comfort consideration, it is a “Life-Giving”

requirement of the defendants” is from R. 177, his “Reply to Defense Ar-

gument,” at p. 10 of that filing, in its section concerning his Rehabilitation

Act claim.

No. 20-2946 57

The irony, of course, is that by not upholding the local

rule, we are left performing the very task that rule is supposed

to preclude—combing the record for statements and consid-

ering them as evidence on a dispositive motion.

A district court cannot ignore facts brought to its attention.

But under the federal and local rules, parties must properly

present the factual record for the court to resolve a summary

judgment motion. This sorting function of parties identifying

evidence for the court on a dispositive motion is critical. It

forms the backbone of all the case law discussed above. It is

not overly formalistic to ask that this requirement be com-

plied with, something McDaniel failed to do. He certainly did

not provide “a detailed and organized guide to [the] evidence

supporting his assertions of disputed facts and his legal argu-

ments,” McKinney, 866 F.3d at 809, as this court requires.

My colleagues conclude that the declarations McDaniel

added to each of his submissions rendered his missing-meals

statement admissible evidence that precludes summary judg-

ment on his no-stairs claim. Yet that conclusion fails to recog-

nize the sorting function of the local rule. That rule’s point is

to focus the district court and the litigants on admissible evi-

dence pertinent to the dispositive motion. If declarations can

bootstrap into evidence all of a pro se litigant’s submissions,

the local rule is undermined.

Unlike my colleagues, I do not see the district court mis-

apprehending that his declaration must itself incorporate af-

fidavits, or that court failing to appreciate that McDaniel

could rely on his own declaration. If the court did believe ei-

ther of those things, it would not have worded the Notice and

Order in the disjunctive:

58 No. 20-2946

McDaniel must support every disagreement

with a proposed fact by citing to evidence. He

can do that by relying on documents that he at-

taches to his response or by telling the court his

version of what happened in an affidavit or an

unsworn declaration … .

(emphasis supplied).

The majority opinion also criticizes the district court for

holding McDaniel to an “unwritten requirement” by consid-

ering his submissions only to the extent they complied with

the local rule. But this critique shifts from the litigant to the

court the local rule’s requirement to enumerate the applicable

evidence. To demand more from the district court—per the

majority, to “specify[] further the failures or the affected por-

tions of plaintiff’s submissions”—reads into the local rule an

obligation that is not there. Failing to take a step that the local

rule does not call for is not an abuse of discretion.

Beyond McDaniel’s failure to aﬃrmatively oﬀer evidence

to defeat summary judgment, he also failed to adequately

contest several proposed factual ﬁndings which doom the no-

stair-unit theory of his Rehabilitation Act claim. Most perti-

nent are three ﬁndings proposed by the defendants:

• A physical therapist at Columbia evaluated

McDaniel’s mobility in January 2018. During

that assessment, McDaniel managed to as-

cend and descend six stairs, and the physical

therapist decided he was safe to ambulate

stairs. McDaniel agreed with that ﬁnding,

though he argued that the physical therapist

did not suﬃciently account for safety.

No. 20-2946 59

• Michael Fink, a Corrections Unit Supervisor

at Columbia, observed McDaniel success-

fully climbing the stairs more than once to

report concerns. Again, McDaniel agreed

this was true. His response referenced “the

multiple times [he] did have to use stairs.”

• McDaniel was “encouraged to get out of his

cell for meals and use his cane for the stairs

because muscle atrophy from lack of move-

ment could result in the inability to walk in

the future.” For support, the defendants

cited the declaration of Dr. Syed, a physician

at Columbia who oversaw McDaniel’s treat-

ment and evaluated him several times.

McDaniel failed to even acknowledge this

proposed ﬁnding, declining to oﬀer any re-

sponse.

Because McDaniel did not competently dispute any of these

facts, the district court was within its discretion to treat them

as admitted. See Fabriko Acquisition Corp., 536 F.3d at 607–08;

Cichon, 401 F.3d at 809–10.

I turn now to the substance of McDaniel’s claim under Sec-

tion 504 of the Rehabilitation Act. By the statute’s terms, “[n]o

otherwise qualiﬁed individual with a disability … shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the beneﬁts of, or be subjected to

discrimination under any program or activity receiving Fed-

eral ﬁnancial assistance.” 29 U.S.C. § 794(a). The analysis is

the same that applies to a claim under the Americans with

60 No. 20-2946

Disabilities Act (“ADA”). Jaros v. Ill. Dep’t of Corr., 684 F.3d

667, 671 (7th Cir. 2012). To recover, McDaniel must prove that

“(1) he is a qualiﬁed person (2) with a disability and (3) the

Department of Corrections denied him access to a program or

activity because of his disability.” Id. at 672.

The dispute here is over the third element—whether

McDaniel was denied access to a program or activity because

of his disability. The meals that prisons make available to in-

mates qualify as programs or activities under the statute. Id.

So, the question is whether a reasonable jury could ﬁnd that

McDaniel was denied access to meals. Under Section 504, re-

fusing to make reasonable accommodations amounts to deny-

ing access, id., but only when the result is that the qualiﬁed

person cannot access programs or activities at all. Wagoner v.

Lemmon, 778 F.3d 586, 593 (7th Cir. 2015); see also Hildreth v.

Butler, 960 F.3d 420, 431 (7th Cir. 2020) (applying this principle

in the identical ADA context). A prison’s institutional prerog-

atives factor into whether an accommodation is considered

reasonable. Hildreth, 960 F.3d at 431 (citing Love v. Westville

Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996)).

Considering only the facts properly before the district

court, it knew that both the physical therapist and Fink ob-

served McDaniel safely ambulate stairs. The court also knew

that McDaniel was given a rationale, which was based on

medical judgment, for why his placement in a no-stair unit

would not have been beneﬁted his long-term health. Taken

together, these facts show the absence of a genuine dispute of

material fact as to whether McDaniel required a no-stair unit

to access meals. The burden therefore shifts to McDaniel, the

nonmoving party, to provide evidence of speciﬁc facts creat-

ing a genuine dispute of material fact and thus precluding

No. 20-2946 61

summary judgment. See Cincinnati Life Ins. Co. v. Beyrer, 722

F.3d 939, 951 (7th Cir. 2013); Carroll v. Lynch, 698 F.3d 561, 564

(7th Cir. 2012).

Under the facts as described supra section I, McDaniel did

not cite any such evidence to the district court. On appeal, he

relies on two portions of his deposition testimony. In the ﬁrst,

McDaniel testiﬁed he did not attend programs and activities

at Columbia because it was “too painful” for him to walk up

the stairs. And in the second, McDaniel stated he could not

get up and down the stairs without assistance from other in-

mates.

Before the district court, though, McDaniel did not iden-

tify these passages. They are not mentioned in his responses

to the defendants’ proposed ﬁndings of fact, his own state-

ment of undisputed facts, or his summary judgment brief.

McDaniel did not even cite his deposition more generally,

though that would have been insuﬃcient. See McKinney, 866

F.3d at 808–09; Ammons, 368 F.3d at 817–18. Only by

“scour[ing] the record,” Sojka, 686 F.3d at 398, and “doing the

work for” McDaniel by “identifying what facts [were] truly

disputed,” Hinterberger, 966 F.3d at 529, could the district

court have located these portions of his deposition and ana-

lyzed their import. As noted earlier, that goes beyond what is

required of district courts and of this court on appeal.

As discussed above, McDaniel was observed successfully

using the stairs at Columbia more than once. Placement in a

no-stair unit also would have been contrary to the medical

judgment of trained professionals. The other accommoda-

tions McDaniel was given, including the cane that he was di-

rected to use when climbing stairs, were reasonable because

they permitted him to access meals and activities while also

62 No. 20-2946

accounting for other considerations. See Hildreth, 960 F.3d at

431 (reaching this conclusion about a diﬀerent accommoda-

tion in the prison context).

These facts make the disposition of the no-stair theory of

McDaniel’s Rehabilitation Act claim straightforward. Recall

that to recover, McDaniel has to prove that a no-stair unit was

a reasonable accommodation, the absence of which denied

him access to programs or activities. Jaros, 684 F.3d at 672. The

refusal to adopt a speciﬁc accommodation requested by a

prisoner is not a denial of access unless the prisoner cannot

use the program or participate in the activity. Wagoner, 778

F.3d at 593. This is so even if the requested accommodation

would signiﬁcantly ease the inconvenience to the prisoner. Id.

* * *

Based on the facts properly before the district court, place-

ment in a no-stair unit would not have been necessary for

McDaniel to get his meals because he could safely use the

stairs. No reasonable jury could conclude that the Wisconsin

Department of Corrections violated the Rehabilitation Act

when it declined to place McDaniel in a no-stair unit. I there-

fore respectfully concur in part and dissent in part.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.