Brady

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

HARLEY M. BRADY, #R13122 )

)

Plaintiff, )

)

vs. ) Case No. 23-cv-295-SMY

)

ILLINOIS DEPARTMENT OF )

CORRECTIONS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, Chief District Judge:

Plaintiff Harley M. Brady, an inmate of the Illinois Department of Corrections (“IDOC”)

currently incarcerated at Centralia Correctional Center, filed this pro se civil action pursuant to 42

U.S.C. § 1983 alleging violations of his constitutional rights and the Americans with Disabilities

Act (“ADA”). Following this Court’s merit review and ruling on Defendants’ motions for

summary judgment on the issue of exhaustion, the remaining claims in the Amended Complaint

are:

Count 2: Eighth Amendment deliberate indifference claim under 42 U.S.C. §

1983 against Defendants Lana Nalewajka and Richard Hubler for

seizing Plaintiff’s medically necessary hearing aids and ADA watch

and against Lana Nalewajka for failing to issue him a tactile pager

watch, depriving Plaintiff of these items and limiting his major life

activities;

Count 5: ADA and/or RA claim against the Illinois Department of

Corrections for depriving Plaintiff of his hearing aid batteries,

hearing aids, ADA watch, and tactile pager watch necessary to

accommodate Plaintiff’s hearing loss, limiting his major life

activities, and for failing to take steps to prevent further

deprivations;

Count 6: Illinois state law medical negligence claim against Lana Nalewajka

for breaching her duty of care to Plaintiff when she deprived him of

functioning hearing aids, his ADA watch, and a tactile pager watch;

Count 7: Illinois state law negligence claim against Clay Wheelan, Sean

Ballantini, Richard Hubler, and Lana Nalewajka for breaching their

duty of care to Plaintiff as described in Counts 1, 2, and 6, causing

him injury.

This matter is now before the Court for consideration of the motion for summary judgment

filed by Defendants IDOC, Nalewajka, Ballantini, Hubler, and Wheelan (Doc. 107) and the motion

for summary judgment filed by Plaintiff (Doc. 109). For the following reasons, Defendants’

Motion is GRANTED and Plaintiff’s Motion is DENIED.

Factual Background

Construed in the light most favorable to the nonmoving party, the evidence and reasonable

inferences establish the following facts relevant to the pending summary judgment motions:

Plaintiff Harley Brady has hearing loss in both ears and suffers from visual impairments

(Doc. 107-1, p. 9). He was incarcerated at Lawrence Correctional Center until July 28, 2021, when

he was transferred to Centralia Correctional Center (Doc. 107-1, p. 14). While at Lawrence, Brady

was issued a pager watch, ADA watch, and hearing aids (Doc. 107-1, p. 11). The batteries for

Brady’s hearing aids died between July 21 and 22, 2021 while he was still incarcerated at

Lawrence. They had not been replaced at the time of his transfer. Id. at p. 14. On July 26, 2021,

Brady packed his hearing aids, ADA watch, and a gold cross necklace in his property box in

preparation for his transfer from Lawrence. Id. at pp. 14-15. Brady returned his tactile pager

watch to staff at Lawrence as those watches are used by each institution. Id. at p. 15.

The nurse who completed Brady’s transfer paperwork at Lawrence did not indicate he had

any disabilities or limitations. Id. at p. 16. Brady testified that when he got to Centralia, they did

not know he was hearing impaired. Id. at p. 16.

Brady’s new ID was issued by Defendants Clay Wheelan and Sean Ballantini, who are

employedin the Bureau of Identification. Id. at p. 17. His new ID did not include a notation that

he was hearing impaired. Id. pp. 16-17. Wheelan and Ballantini instructed Brady to contact the

ADA Coordinator when Brady told them he was hearing impaired. Id. Wheelan and Ballantini

were not responsible for determining whether an inmate’s ID should note they have a disability

(Docs. 107-4; 107-5). When an inmate raised a question regarding such a notation, Wheelan and

Ballantini could only refer the inmate to the ADA coordinator for resolution. Id.

After receiving his property box at Centralia, Brady discovered that his hearing aids, ADA

watch, and necklace had been removed (Doc. 107-1, p. 21). Brady believed his property box had

been searched by Defendant Richard Hubler. Id. at pp. 21-22. Another officer told Brady that his

ADA items would have been taken out and sent to the ADA coordinator. Id. at p. 23. Defendant

Hubler was not familiar with Brady and had no knowledge of his disabilities or medical needs

(Doc. 107-3).

Brady requested the cellhouse staff contact the ADA coordinator about his missing

property on several occasions (Doc. 107-1, p. 24). Brady met with Defendant Lana Nalewajka on

August 20, 2021. Id. Immediately after their meeting, Nalewajka completed the paperwork for

the notation of hearing impairment to be restored to Brady’s ID, ordered a tactile pager watch, and

located his missing property. Id. at pp. 24-25. The hearing aids and watch were returned to Brady.

Id. Nalewajka provided Brady with new batteries for his hearing aid. Id. She sent his necklace

to the facility chaplain who was responsible for determining if religious items were allowed in the

facility. Id. at pp. 25-26.

While Brady was without his hearing aids and ADA watch, he missed several meals and

yard time because he could not hear staff announcing when those activities began (Doc. 107-1, p.

28).

Discussion

Summary judgment is proper only if the moving party can demonstrate that there is no

genuine issue as to any material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). The moving party is entitled to summary judgment where the non-moving party

“has failed to make a sufficient showing on an essential element of her case with respect to which

she has the burden of proof.” Celotex, 477 U.S. at 323. If the evidence is merely colorable, or is

not sufficiently probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249–50 (1986). Any doubt as to the existence of a genuine issue of material fact

must be resolved against the moving party. Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th

Cir. 2004). Cross-motions for summary judgment do not automatically mean that all questions of

material fact have been resolved. Franklin v. City of Evanston, 384 F.3d 838, 842 (7th Cir. 2004).

Therefore, the Court must evaluate each motion independently, making all reasonable inferences

in favor of the nonmoving party with respect to each motion. Id. at 483.

Deliberate Indifference (Count 2)

Brady moves for summary judgment, contending that Defendant Hubler was deliberately

indifferent and negligent when he removed Brady’s ADA hearing aids and watch from his property

box. Brady also contends that Defendant Nalewajka was deliberately indifferent and negligent by

allowing his ADA hearing aids and watch to be taken out of his property box.

The Eighth Amendment prohibits “cruel and unusual punishment” of a prisoner. A prison

official's “deliberate indifference” to a prisoner's “serious medical needs” violates that mandate.

Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). To support a claim of deliberate indifference,

a plaintiff must offer evidence that (1) he had an objectively serious medical condition, and (2) the

defendant acted with deliberate indifferenceto that condition. SeePettiesv.Carter, 836 F.3d 722,

728 (7th Cir. 2016) (en banc). “Negligence, gross negligence, or even ‘recklessness’ as that term

is used in tort cases, is not enough.” Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir. 1987)

(citation omitted).

Hubler worked the morning shift at Centralia. He was assigned to review incoming inmate

property and to remove items that were contraband or that required additional approval for the

inmate to possess. Brady believes Hubler searched his property box and removed the hearing aids,

ADA watch, and gold cross necklace. The items were given to a nurse and Hubler had no further

involvement with Brady’s property.

“The standard [for deliberate indifference] is a subjective one: The defendant must know

facts from which he could infer that a substantial risk of serious harm exists and he must actually

draw the inference.” Rasho v. Elyea, 856 F.3d 469, 476 (7th Cir. 2017) (quoting Zaya v. Sood,

836 F.3d 800, 804 (7th Cir. 2016)). Here, there is no evidence that Hubler was familiar with Brady

or that he had knowledge of his disabilities or medical needs. On these facts, a reasonable jury

could not find that Hubler was deliberately indifferent to Brady’s medical needs.

Nalewajka was the ADA Coordinator for Centralia. She was not made aware of Brady’s

missing property until his grievance was forwarded to her on August 6, 2021. Nalewajka initiated

a search for the items on the next working day. Although it took several weeks, she was able to

locate and return Brady’s hearing aids and watch. She provided Brady with new batteries for the

hearing aids and initiated the process of designating him as hearing impaired on his ID badge.

Again, based on this evidence, no reasonable jury could find that Nalewajka was deliberately

indifferent to Brady.

Accordingly, Defendants Hubler and Nalewajka are entitled to judgment as a matter of law

on Brady’s deliberate indifference claims in Count 2 of the Amended Complaint.

ADA Claim (Count 5)

Brady claims the denial of his hearing aids and watches violated the Americans with

Disability Act (“ADA”) and the Rehabilitation Act (“RA”). Under the ADA, “no qualified

individual with a disability shall, by reason of such disability, be excluded from participation in or

be denied the benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. The RA also prohibits discrimination

against qualified individuals based on physical or mental disability. See 29 U.S.C. §§ 794-94e.

Discrimination under both Acts includes failure to accommodate a disability. Jaros v. Ill. Dep’t

of Corr., 684 F.3d 667, 671 (7th Cir. 2012).

To prevail on a claim under the ADA and the RA, Brady must prove (1) he is a qualified

person with a disability, (2) the Defendants excluded him from participating in or denied him the

benefits of a public entity's services, programs, or activities or otherwise discriminated against

him, and (3) the exclusion, denial, or discrimination was by reason of or because of his disability.

See Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). And to recover compensatory

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

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

conferred by the ADA. Shaw v. Kemper, 52 F.4th 331, 334 (7th Cir. 2022) (citations omitted). In

other words, Brady must show that prison officials “knew that harm to a federally protected right

was substantially likely and ... failed to act on that likelihood.” Hildreth v. Butler, 960 F.3d 420,

431 (7th Cir. 2020) (quoting Lacy v. Cook Cnty., 897 F.3d 847, 862 (7th Cir. 2018)) (emphasis in

original).

Here, Brady does not offer any evidence that establishes or would permit a jury to infer

that Defendants were intentionally discriminating against him or deliberately indifferent as

required to warrant compensatory damages under the ADA or RA. He was afforded

accommodations to address his hearing, including hearing aids, a tactile pager watch, and an ADA

watch. Brady turned in the tactile pager watch prior to his transfer and placed the hearing aids and

ADA watch in his personal property box. Hubler’s only duty relevant to this case was to review

Brady’s incoming property and identify contraband or items that required additional review. He

performed that function and gave the removed items to a nurse for additional handling. There is

no evidence that Hubler acted with deliberate indifference to Brady.

Defendants Ballantini and Wheelan’s only role was to issue new IDs to incoming inmates.

They advised Brady to contact the ADA coordinator for any additional designations. As for

Nalewajka, once she was notified that Brady’s hearing aids and watch were missing, the evidence

establishes that she immediately initiated a search to find his property and returned the items to

Brady. On this record, Defendants are entitled to judgment on Count 5.

Medical Negligence (Count 6)

Citing Youngv. UnitedStates, 942 F.3d 349, 351-52(7thCir. 2019), Defendants assert that

Defendant Nalewajka is entitled to summary judgment of Plaintiff’s medical negligence claim

because he failed to provide an affidavit or report pursuant to 735 ILCS § 5/2-622 stating that there

is a “reasonable and meritorious cause” for pursuing his medical negligence claim.

In Berk v. Choy, 607 U.S. —, 146 S. Ct. 546 (2026), the United States Supreme Court

recently “rejected the reasoning behind the Seventh Circuit’s approach to apply the affidavit-of-

merit requirement at summary judgment ‘to the extent that it is a rule of substance,’ Young, 942

F.3d at 351 (emphasis in original), because ‘the substantive nature of a state law, or its substantive

purpose, makes no difference.’ So the “affidavit law does not apply in federal court.” Sereda v.

Northwestern Memorial Hospital, 2026 WL 858754, N.D.Ill. (citing Berk, 146 S. Ct. at 557)

(emphasis in original).

That said, to prevail on a medical negligence claim under Illinois law, a plaintiff must

establish (1) the proper standard of care against which a medical provider’s conduct is measured,

(2) a failure to comply with the applicable standard of care, and (3) a resulting injury proximately

caused by the provider’s lack of skill or care. Sullivan v. Edward Hosp., 209 Ill.2d 100, 282 Ill.Dec.

348, 806 N.E.2d 645, 653 (2004) (identifying elements of “a negligence medical malpractice

case”). Generally, the plaintiff bears the burden of proving all threeelements through the testimony

of medical experts. Wilbourn v. Cavalenes, 398 Ill.App.3d 837, 338 Ill.Dec. 77, 923 N.E.2d 937,

949 (1st Dist.2010); Bergman v. Kelsey, 375 Ill.App.3d 612, 313 Ill.Dec. 862, 873 N.E.2d 486, 500

(1st Dist.2007) (“A plaintiff must generally prove theelements of amedical negligence cause of

action through medical expert testimony.”) (citing Knauerhaze v. Nelson, 361 Ill.App.3d 538, 296

Ill.Dec. 889, 836 N.E.2d 640, 652 (1st Dist.2005)).

Here, Brady has not produced the requisite medical expert opinion evidence to establish a

medical negligence claim. Accordingly, Defendant Nalewajka is entitled to summary judgment

on Count 6.

Negligence (Count 7)

Brady’s negligence claims against the defendants are based on the same facts as his federal

claims. In Illinois, to succeed on a negligence claim, a plaintiff must show the defendant owed the

plaintiff a duty of care, breached that duty, and that the breach was the proximate cause of the

plaintiff’s injury. Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011) (citing Iseberg v. Gross, 879

N.E.2d 278 (2007)).

Defendants argue that any duty owed to Plaintiff arose out of their state employment and

therefore, Plaintiff’s negligence claims are barred by the Eleventh Amendment. See Turpin v.

Koropchak, 567 F.3d 880 (7th Cir. 2009) ([w]here an alleged act of misconduct arose out of the

State employee's breach of a duty that is imposed on him solely by virtue of his State Employment,

sovereign immunity will bar maintenance of the action in any court other than the Illinois Court

of Claims); T. S. v.Cnty. of Cook, Illinois, 67 F.4th 884, 892 (7th Cir. 2023).

Defendants are correct. Brady’sallegations of negligence arose while each defendant was

performing a function within the scope of their duties as employees at Centralia. Hubler reviewed

Brady’s property because he was a correctional officer assigned to the property office. Ballantini

and Wheelan issued an ID to Brady because they were assigned to the Bureau of Identification

within Centralia. Nalewajka responded to Brady’s grievance related to his lost property in her

capacity as the ADA coordinator at Centralia. There is no evidence the defendants acted beyond

the scope of their authority and the complained-of actions involve maters ordinarily within each

employee’s normal and official functions of the State. As such, Brady’s negligence claims against

the defendants are claims against the State of Illinois and are therefore barred by its sovereign

immunity statute.

Conclusion

For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc. 107) is

GRANTED. Plaintiff’s Motion for Summary Judgment (Doc. 109) is DENIED. Plaintiff’s

claims are DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment

accordingly.

IT IS SO ORDERED.

DATED: June 5, 2026.

STACI M. YANDLE

Chief United States District Judge

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