Horton v. Sheriff Meyers et al

Filing 60

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 9/27/2017: For the following reasons, defendant Winnebago County Sheriff's Department motion for summary judgment 48 is granted in part and denied in part. At the next hearing, the parties are to discuss with Judge Johnston the scheduling of a settlement conference. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 9/27/2017. Electronic notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Daniel L. Horton,
Plaintiff,
v.
Winnebago County Sheriff’s Department,
Defendant.

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Case No: 14 C 50194

Judge Philip G. Reinhard

ORDER
For the following reasons, defendant Winnebago County Sheriff’s Department motion for
summary judgment [48] is granted in part and denied in part. At the next hearing, the parties are
to discuss with Judge Johnston the scheduling of a settlement conference.
STATEMENT-OPINION
On April 20, 2015, plaintiff Daniel L. Horton filed his second amended § 1983 complaint
against defendant Winnebago County Sherriff’s Department [21], alleging that defendant was
deliberately indifferent to his medical needs.
On October 16, 2016, defendant filed a motion for summary judgment [48],
memorandum in support [50], and Rule 56.1 statement of facts with attachments [49].
Defendant contends that plaintiff has failed to raise a genuine issue of fact as to deliberate
indifference or Monell liability. See [50]. On November 14, 2016, plaintiff filed his response to
the motion [52], response to the statement of facts [51], and Rule 56.1 statement of additional
facts [51], along with an additional appendix of exhibits [53]. On December 4, 2016, defendant
filed its reply [55] and response to plaintiff’s additional facts [54].
On summary judgment, the court construes all facts and draws all inferences in the light
most favorable to the non-moving party. Schepers v. Commissioner, Indiana Dept. of
Corrections, 691 F.3d 909, 913 (7th Cir. 2012). The court does not weigh evidence or determine
the credibility of witness testimony. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th
Cir. 2011). Instead, the court only grants summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). That said, Rule 56 “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
evaluating the motions and the undisputed facts located in the parties’ Local Rule 56.1
Statements of Material Fact with respect to each motion, the court is cognizant of its obligation
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to construe all disputed and undisputed facts in the light most favorable to the plaintiff. See
Schepers, 691 F.3d at 913.
I. Factual Background.
At all relevant times, plaintiff Daniel Horton was confined in the Winnebago County Jail
located in Rockford, Illinois. [51] at ¶ 1. At all relevant times, the Winnebago County Sheriff’s
Department operated the Jail. [51] at ¶ 2. At all times during the plaintiff’s incarceration, the
Jail contracted with the UICOM-R to provide medical care and treatment to inmates at the Jail.
[51] at ¶ 8.
In July 2012, due to a gunshot wound to his spine, the plaintiff became a paraplegic. [51]
at ¶ 19. As a result of his paraplegia, the plaintiff must intermittently self-catheterize himself to
urinate. [51] at ¶ 20. At all relevant times, plaintiff’s standing prescription for catheters was
seven to eight changes per day, which equates to roughly one change every 3-4 hours. [54] at ¶
4. Prior to entering the Jail, plaintiff was instructed by his treating physicians never to reuse
catheters. [54] at ¶ 1. Prior to entering the Jail, plaintiff had never reused a catheter. [54] at ¶ 2.
Prior to his incarceration, the plaintiff received outpatient physical therapy and
occupational therapy at Van Matre HealthSouth Rehabilitation Hospital in Rockford, Illinois
from approximately January 8, 2013 until May, 28, 2013, when he was discharged. [51] at ¶ 21.
When the plaintiff was discharged from Van Matre, he was given physical therapy exercises to
do at home. [51] at ¶ 22. The plaintiff was functionally independent with wheelchair mobility
and was not expected to walk again at the time of his incarceration, and prior to his incarceration
was told by a physician that the chance of him having motor function below the level of
complete injury was zero. [51] at ¶ 23.
While incarcerated in the Jail, the plaintiff was provided with special accommodations
included being lodged in the medical unit run by the UICOM-R for all but one week of his
approximately one year stay. [51] at ¶ 24.
1. Catheters.
The technique the plaintiff used during his incarceration in the Jail when using UICOMR provided catheters was clean intermittent catheterization, which is the insertion and removal of
a catheter several times a day to empty the bladder. [51] at ¶ 30. Upon entering the Jail, plaintiff
was only given one catheter and was informed by UICOM-R staff that he would have to reuse
the catheter each time he needed to urinate. [54] at ¶ 5. At the time plaintiff was confined in the
Jail, UICOM-R stocked “Dover” model number 400612 catheters manufactured by Covidien.
[54] at ¶ 6. The catheters provided to plaintiff by UICOM-R were marked as “single-use-only”
and featured a picture of a “2" crossed out. [54] at ¶ 7. In total, plaintiff received, at most, two
catheters from UICOM-R shortly after entering the Jail. Plaintiff was forced to reuse these
catheters provided by UICOM-R until plaintiff’s family could supply him with outside catheter
kits. [54] at ¶ 8.

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The catheter kits provided by plaintiff’s family were “Cure Catheter Closed System”
catheterization kits. Each kit contained one pair of ambidextrous gloves, three povidone – iodine
swabs, one BZK wipe, one 1500 ml. collection bag, one underbag, one wipe, and the catheter
itself. The “Cure Catheter Closed System” catheter kits feature markings stating “single-useonly,” “sterile unless opened or damaged,” “for single use only,” “do not re-sterilize.” [54] at ¶
9. Plaintiff received approximately 200 Cure Catheter Closed System catheter kits from his
family per month, allowing plaintiff to use a new and sterile catheter each time he needed to
urinate. [54] at ¶ 10.
The UICOM-R allowed plaintiff’s mother and his girlfriend, Dawn Golden, to supply and
bring to the Jail catheters for the plaintiff’s use from October 19, 2013, until the last supply of
catheters Dawn Golden brought to the Jail on September 11, 2014. [51] at ¶ 26. After
September 11, 2014, the plaintiff’s mother and girlfriend stopped delivering catheters to the Jail,
due to the plaintiff’s health insurance, Medicaid, not paying for the catheters as it had done
previously. [51] at ¶ 27.
When his supply of Cure Catheter closed System catheter kits from home ran out in late
September 2014, plaintiff was forced to rely upon his old catheters as well as the catheters
provided by UICOM-R until he was transferred to the Illinois Department of Corrections on
October 23, 2014. [54] at ¶ 11. Plaintiff ran out of his previous supply a “few times,” at which
time he used catheters supplied by the UICOM-R. [51] at ¶ 28. During his entire time he was
incarcerated in the Jail from October 18, 2013 until October 23, 2014, the plaintiff estimated the
number of days he used catheters supplied by the UICOM-R may have been approximately nine
days. [51] at ¶ 29.
Plaintiff was instructed by Valerie Lewis, a UICOM-R nurse, that he should re-sterilize
his already-used catheters by placing them in a solution of vinegar and water. Plaintiff testified
that Valerie Lewis stated she saw this procedure on Youtube.com. [54] at ¶ 12. Plaintiff
testified that he requested additional catheters, but was always only given one catheter to reuse
per week. [49-3] at 108-09. Plaintiff testified that the nurses told him it was jail policy to give
one catheter per week to reuse because there were insufficient catheters to give more. Id. at 142.
Plaintiff also testified that he gave some of his own catheters to other inmates who had been
asked to reuse catheters. Id. at 137. Plaintiff never tried to clean the catheters supplied by the
UICOM-R with a vinegar water mixture given to him by the UICOM-R; according to plaintiff,
he never used it because he was skeptical of re-sterilizing single-use-only catheters in such a
way. [51] at ¶ 33. Instead, plaintiff cleaned the catheters after every time he used one with hot
water and anti-bacteria soap from his cell, heating the water from his cell in a microwave in his
Jail housing unit pod. [51] at ¶ 34.
Plaintiff was provided by the UICOM-R with medical supplies to enable him to selfcatheterize, including, but not limited to, catheters, a cleaning solution, lubrication, a zip lock
bag and a bedside urinal in which to empty his urine in and was observed self-catheterizing by
the UICOM-R nursing staff to ensure that he knew how to do it correctly. According to plaintiff,
he sometimes received the items but denies that he received them with sufficient frequency so as
to avoid a “potentially fatal infection.” [51] at ¶ 32. Further, according to plaintiff, he
commonly did not receive lubrication to aid him in inserting his catheters. Where plaintiff did
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receive lubrication, it was placed in a paper cup and dried up quickly. Accordingly, plaintiff
often used water to lubricate his catheters before using them. [54] at ¶ 13. After multiple reuses,
plaintiff already-used catheters became visibly dirty and caked with urine. [54] at ¶ 15.
As a result of reusing catheters, and despite his paralysis, plaintiff experienced pain and
suffering that he rated at an 8-9 on a scale of 10. [54] at ¶ 16. While being forced to reuse
catheters, plaintiff observed that he was urinating blood. Such blood in plaintiff’s urine was
noted and treated by the medical staff at the IDOC shortly after plaintiff was transferred there on
October 23, 2014. [54] at ¶ 17.
According to UICOM-R physician Dr. Vivek Kantayya who saw the plaintiff in the Jail
as a patient, the single-use label on the catheters provided by the Jail does not automatically
mean that a catheter is incapable of being safely reused and may safely be reused using the clean
intermittent technique described above; according to plaintiff, this opinion does not conform to
the applicable standard of care. [51] at ¶ 35. It is Dr. Kantayya’s opinion that sterile/single use
catheters were not medically necessary for the plaintiff during his incarceration and that repeated
or reuse of the same catheter for multiple catheterizations using a clean technique in the
plaintiff’s case was within the applicable standard of care; plaintiff denies that this opinion
conforms to the applicable standard of care. [51] at ¶ 36. Dr. Kantayya opines that urinary tract
infections and bleeding at the urethra are known and accepted conditions in paralyzed patients
who self-catheterize. [51] at ¶ 37.
At the behest of the UICOM-R, urinalyses were performed on the plaintiff on 11/26/13,
6/10/14, 6/12/14, 7/9/14, 7/16/14, 7/21/14, and 7/22/14 to address the plaintiff’s complaints.
[51] at ¶ 38. It is Dr. Kantayya’s opinion that a urinary tract infection that plaintiff developed in
June of 2014, prior to using catheters supplied by the UICOM-R, was idiosyncratic and treated
promptly and appropriately with Bactrim and did not cause permanent injury. [51] at ¶ 39. He
also opines that any blood in the urine reported by the plaintiff was due to the way in which he
self-catheterized as paralyzed patients oftentimes do not feel pain associated with inserting the
catheter and may inadvertently apply too much force, resulting in benign blood in the urine,
which is not a serious or permanent medical condition. [51] at ¶ 40.
2. Physical Therapy.
According to plaintiff, after entering the Jail, he was informed by UICOM-R staff that he
would not receive assistance in doing his physical therapy exercises. Instead, plaintiff was given
a towel and was told to do physical therapy exercises by himself. [54] at ¶ 21. Plaintiff could
not accomplish his physical therapy exercises to the same extent he could if he were to have
received assistance. [54] at ¶ 22. As a result of not performing his physical therapy exercises to
a sufficient degree, plaintiff experienced pain, suffering, stiffness, and drop foot. [54] at ¶ 23.
On December 16, 2013, the UICOM-R gave the plaintiff a bath towel to use for his leg
lift exercises and a pillow for positioning. [51] at ¶ 46. On December 17, 2013, the UICOM-R
instructed the plaintiff on how to do self-range of motion exercises in his cell and was observed
by the UICOM-R to perform his range of motion exercises. [51] at ¶ 47. On December 21,

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2013, the plaintiff was educated by the UICOM-R on ways to stretch his hip muscles. [51] at ¶
48.
At Dr. Kantayya’s request, on July 24, 2014, the plaintiff was taken out of the Jail to visit
the office of the plaintiff’s own physician, Dr. Andrew Vo, for pain management and
rehabilitation consultation. [51] at ¶ 49. The Jail Corrections staff transported plaintiff to and
back from Dr. Vo’s office. [51] at ¶ 50.
During his office visit, Dr. Vo explained to the plaintiff that he will never be able to walk
again due to the mechanism and nature of his spinal cord injury and that he may do strengthening
exercises for his arms independently; plaintiff notes that Dr. Vo did not rule out additional
physical therapy, but rather “would discuss the situation with the Rehabilitation doctors at Van
Matre hospital to discuss whether or not [plaintiff] would benefit from additional outpatient PT.”
[51] at ¶ 51. In connection with Dr. Vo’s examination of the plaintiff at his office on July 24,
2014, Dr. Vo’s office sent the plaintiff via the UICOM-R at the Jail, a 39-page pamphlet of back
and neck exercises that the plaintiff could do on his own at the Jail. [51] at ¶ 52.
On August 26, 2014, UICOM-R Nurse Practitioner Kellie Gibbons reviewed the
pamphlet of exercises with the plaintiff to ensure that the plaintiff could do them on his own and
provided the pamphlet to him for reference. [51] at ¶ 53.
While the plaintiff was incarcerated in the Jail, Dr. Kantayya and UICOM-R nurse
manager Valerie Lewis were not aware of any medical orders for the plaintiff to do physical
therapy off-site outside of the Jail. [51] at ¶ 44. It is Dr. Kantayya’s opinion that off-site
physical therapy was not medically necessary for the plaintiff; plaintiff denies that this opinion
conforms to the standard of care. [51] at ¶ 45.
3. Grievances.
Inmates at the Jail can electronically file grievances about any aspect of inmate life on a
kiosk system located in the housing unit. [51] at ¶ 54. Inmates can specify on the kiosk system
that medical related grievances are electronically sent directly to the UICOM-R staff who work
in the Jail instead of being sent to corrections officers who work in the Jail. [51] at ¶ 55. During
his confinement at the Jail, plaintiff submitted numerous grievances concerning his physical
therapy. [54] at ¶ 24.
On April 20, 2014, the plaintiff electronically filed a grievance that was routed to
corrections due to being categorized as “general” complaining about not having his “therapy”
and range of motion. [51] at ¶ 60. Within 16 hours of plaintiff filing the grievance, Jail
corrections personnel responded electronically to plaintiff’s grievance in writing by advising
plaintiff to “please address this request with medical”; according to plaintiff, he believed the jail
medical staff worked at UICOM-R but were employed by the Jail. [51] at ¶ 61.
On October 5, 2014, the plaintiff electronically filed a grievance that was routed to
corrections due to being categorized as “general” in which he complained about not receiving
new catheters for two weeks and not getting his range of motion. [51] at ¶ 56. Approximately
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two hours after plaintiff filed his grievance, Jail corrections personnel responded electronically to
plaintiff’s grievance in writing by advising plaintiff to “Submit to Medical Grievance”;
according to plaintiff, he believed the jail medical staff worked at UICOM-R, but were employed
by the Jail. [51] at ¶ 57.
On October 9, 2014, the plaintiff electronically filed a grievance that was routed to
corrections due to being categorized as “general” complaining about reusing catheters; plaintiff
stated that he had been without catheters for three weeks. The Jail representative replied
“medical is aware of the issue and dealing with it according to medical guidelines.” [54] at ¶ 39.
During the time plaintiff was incarcerated in the Jail, former Sheriff of the Department,
Richard Meyers, oversaw corrections operations in the Jail and Andrea Tack, who reported to
Sheriff Meyers, was Superintendent of the Jail. [51] at ¶ 62. Neither Sheriff Meyers nor
Superintendent Tack have a medical background or medical training. [51] at ¶ 63.
Sheriff Meyers never spoke with plaintiff when he was incarcerated in the Jail. [51] at ¶
66. Sheriff Meyers testified that he is not aware of any instance of any inmate in the Jail not
receiving reasonable medical care for his or her necessary medical needs since the UICOM-R
first contracted with Winnebago County and the Sheriff in January of 2005 to provide medical
care and treatment to inmates in the Jail. [51] at ¶ 67. Since January of 2005, Sheriff Meyers
has never directed any UICOM-R medical staff member not to provide medical treatment to a
Jail inmate. [51] at ¶ 68. Since January of 2005, Sheriff Meyers and Superintendent Tack have
never overruled a decision made by UICOM-R medical staff who worked in the Jail to send or
not to send a Jail inmate to a medical provider outside the Jail. [51] at ¶ 69.
After being advised of plaintiff’s complaints, plaintiff’s mother Geraldine Horton
informed Sheriff Meyers of plaintiff’s forced reuse of single-use-only catheters and deprivation
of physical therapy by speaking with him on the telephone twice. One of these conversations
took place in October 2014. [54] at ¶ 25. Sheriff Meyers vaguely recalls speaking with Ms.
Horton on the telephone about medical related issues pertaining to the plaintiff, but does not
recall the specifics of what medical related issues were mentioned. [51] at ¶ 70.
In connection with Ms. Horton’s telephone call to him, Sheriff Meyers testified that he
had no reason to believe he did not do what he typically did when a family member of a Jail
inmate contacted him about inmate medical issues – to tell the family member to speak with
Superintendent Tack, give the family member Superintendent Tack’s office telephone number
and then when he hung up, he would telephone Superintendent Tack to tell her to expect a
telephone call from the family member. [51] at ¶ 71. Superintendent Tack spoke with Ms.
Horton at least two or three times on the telephone and met with her in person once at the Jail.
[51] at ¶ 72.
According to Superintendent Tack, Ms. Horton told Superintendent Tack during all those
conversations that she wanted Superintendent Tack to go to court to get the plaintiff released
from Jail, wanted the plaintiff to go outside the Jail for therapy and wanted the UICOM-R nurses
to give plaintiff his medications while the plaintiff was in bed, but did not recall Ms. Horton
speaking to her about catheters. [51] at ¶ 73. Superintendent Tack told Ms. Horton she would
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pass along her medical concerns about the plaintiff to the UICOM-R because the UICOM-R
were the ones in charge of making medical decisions and also told her that UICOM-R would
follow up with her if the UICOM-R thought it was appropriate. [51] at ¶ 74. Every time
Superintendent Tack spoke with Ms. Horton, she would tell Sheriff Meyers about the content of
her conversation with Ms. Horton, that she made UICOM-R aware of Ms. Horton’s concerns
about plaintiff’s medical care, and that UICOM-R was dealing with Ms. Horton’s concerns. [51]
at ¶ 75. According to Sherriff Meyers, Sheriff Meyers never received word from Superintendent
Tack there were any problems with the medical care of plaintiff during the entire time plaintiff
was incarcerated in the Jail. [51] at ¶ 76.
Due to Ms. Horton’s complaints about her son’s medical care, Superintendent Tack
arranged a meeting on March 4, 2014, in the UICOM-R medical clinic located in the Jail
between plaintiff, herself, Jail Captain Tim Owens, and UICOM-R staff members Dr. Kantayya,
Nurse Practitioner Kellie Gibbons, Nurse Manager Valerie Lewis, and UICOM-R student
physician Dr. Wang, so that plaintiff could present all his medical concerns. [51] at ¶ 77. At the
meeting, plaintiff voiced four medical concerns, none of which involved reusing catheters, and
Dr. Kantayya addressed each of plaintiff’s concerns during the meeting and took action on which
he noted in medical records; plaintiff clarifies that at the meeting in March 2014, plaintiff was
receiving sufficient amounts of catheter kits from his family members and, therefore, at the time
of the meeting was not forced to reuse single-use-only catheters. [51] at ¶ 78.
According to Dr. Kantayya’s records, regarding the plaintiff’s concerns in the meeting of
not getting physical therapy, Dr. Kantayya noted in the records the plaintiff “has been instructed
by our staff on how to do ROM [range of motion] exercises for his lower extremities” and also
noted his plan was to “have staff instruct again how to do self PT [physical therapy] using a
towel or sheet.” [51] at ¶ 79. The UICOM-R, not Meyers, Tack, or Department officers, made
all medical care decisions regarding plaintiff, including his catheterization and whether plaintiff
should be taken to see a doctor outside the Jail. [51] at ¶ 80.
4. Expert Opinions.
Dr. Robert F. Sing, plaintiff’s expert, prepared a report on the propriety of plaintiff’s use
of catheters while he was confined at the Jail. [54] at ¶ 28. In Dr. Sing’s opinion, “providing the
200 sterile urinary catheters with the accompanying required equipment such as sterile gloves,
antiseptic swabs and wipes, and sterile lubricant for catheter passage, is mandatory for this
patient. Anything less would potentially expose this patient to recurrent urethral trauma and
potentially a fatal infection.” [54] at ¶ 29. Dr. Sing also opined that the “clean technique” cited
by Dr. Kantayya was not appropriate because plaintiff had experienced a urinary tract infection
and plaintiff’s jail accommodations were likely not clean enough. [54] at ¶ 30. Dr. Sing also
opined that there was no support in any medical literature for sterilizing catheters with a vinegar
and water solution. [54] at ¶ 31.
Donna Burrough, plaintiff’s aunt, is a registered nurse in the State of Texas and has at
least thirty-five years of experience, including a stint working as a nurse for UICOM-R’s
predecessor at the Jail in the late nineties. [54] at ¶ 32. In her deposition, Ms. Burrough opined
that the U of I’s policy of reusing catheters was “appalling,” that she had never seen such a
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practice in her entire career, and that reusing catheters would significantly increase the risk of a
UTI and kidney infection. [54] at ¶ 33. Ms. Burrough also opined that vinegar and water would
not be sufficient to sterilize a catheter sufficiently and that, even if the catheters could be resterilized, they would not remain so because of the conditions at the jail. [54] at ¶ 34. Ms.
Burrough stated that, as a nurse, she would never recommend that a patient or an inmate reuse a
catheter. [54] at ¶ 35. Ms. Burrough also noted that the consequences of not doing physical
therapy would be permanent muscle contractions, limited range of motion on a permanent basis,
atrophy, phantom pain, and drop foot. [54] at ¶ 36. Furthermore, Ms. Burrough opined that, for
plaintiff specifically, physical therapy was “[e]xtremely important” even if there was no prospect
of plaintiff regaining the ability to walk again. [54] at ¶ 37.
II. Analysis.
The court will first determine whether plaintiff has raised a genuine issue of fact as to his
claim that defendant forced him to reuse catheters over a period of days. Next, the court will
determine whether plaintiff has raised a genuine issue of fact as to his claim that defendant
refused to provide him with outside physical therapy.
A. Reusing Catheters.
Defendant contends that there is insufficient evidence that it can be held liable under §
1983 for UICOM-R’s alleged single-use catheter policy, and that there is insufficient evidence
that the policy was deliberately indifferent.
1. Whether defendant can be liable for UICOM-R’s policies.
First, with regard to whether defendant can be held liable for UICOM-R’s policy,
plaintiff persuasively argues that final policymaking authority for medical decisions was
delegated to UICOM-R. Plaintiff points to King v. Kramer, 680 F.3d 1013 (7th Cir. 2012) to
support the proposition that municipalities can delegate final authority to private health care
provider. In that case, the Seventh Circuit held that “[a] County cannot shield itself from § 1983
liability by contracting out its duty to provide medical services.” See id. at 1020. The Seventh
Circuit noted that “[t]he underlying rationale is not based on respondent superior, but rather on
the fact that the private company's policy becomes that of the County if the County delegates
final decision-making authority to it.” Id. In King, the Seventh Circuit found that the evidence
was sufficient for a jury to find that the County had delegated authority to a private corporation
because the County had contracted for the corporation to provide medical services:
The evidence presented for summary judgment purposes shows that the County's
policy was to entrust final decision-making authority to [the corporation] over
inmates' access to physicians and medications. Nothing in the record as of now
suggests that the County had higher aspirations for the care it was providing, but
that those standards were not met.
....

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The County's express policies as embodied in the contract show that the County
delegated to [the corporation] final authority to make decisions about inmates'
medical care.
Id. at 1020-21.
Here, the court finds that there is sufficient evidence to show that defendant delegated to
UICOM-R final authority to make decisions about inmate’s medical care, including the reuse of
catheters. First, as in King, it is undisputed that defendant “contracted with the UICOM-R to
provide medical care and treatment to inmates at the WCJ including the Plaintiff, with UICOMR employing the medical staff at the WCJ.” See [51] at ¶ 8. Further, defendant explicitly
acknowledges that “[t]he UICOM-R, not [defendant or its officers], made all medical care
decisions regarding plaintiff, including his catheterization[.]” See [51] at ¶ 80. Finally, there is
evidence that defendant’s officers fully delegated decision-making authority to UICOM-R even
in the face of inmate complaints of mistreatment. For example, when plaintiff’s mother spoke to
Sheriff Meyers and then Superintendent Tack about the reuse of catheters, Superintendent Tack
stated that she would pass along plaintiff’s medical concerns to the UICOM-R “because the
UICOM-R were the ones in charge of making medical decisions” and that “UICOM-R would
follow up with [plaintiff’s mother] if the UICOM-R thought it was appropriate.” See [51] at ¶
74. As such, the court finds that this case is analogous to King and that UICOM-R’s policies
were effectively defendant’s policies for purposes of § 1983.
2. Whether UICOM-R had a policy of reusing catheters.
Moving to the alleged policy itself, the court first finds that plaintiff has raised sufficient
evidence that a reasonable jury could find that it was UICOM-R’s explicit policy to provide only
a limited number of single-use catheters to inmates, requiring them to reuse the catheters. As
noted above, plaintiff has testified that he was only allowed one single-use catheter per week
when relying on UICOM-R for catheters because UICOM-R did not have sufficient catheters to
provide inmates with a catheter for each use. Plaintiff also testified that he was instructed by the
various nurses that supplied him with catheters that he was to reuse the catheter using vinegar as
a sanitizing solution. Finally, plaintiff testified that other inmates with catheters were only given
limited catheters and that in some cases he provided other inmates with his own catheters so they
would not need to reuse UICOM-R catheters. The court need not consider whether plaintiff’s
testimony regarding other inmates would be sufficient alone to show a widespread practice;
rather, plaintiff’s testimony is additional evidence supporting the existence of an explicit policy.
Together, plaintiff’s evidence is sufficient to raise a genuine issue of fact as to whether UICOMR had an explicit policy to provide inmates with a limited number of catheters, requiring inmates
to reuse them.
3. Whether the policy to reuse catheters was deliberately indifferent.
Defendant argues that even if such a policy existed, it did not constitute deliberate
indifference with regard to plaintiff. For support, defendant points to Jenkins v. Mohr, 2014 WL
4748619 (S.D. Ohio 2014), a magistrate judge report and recommendation that was later adopted
by the district court in Jenkins v. Mohr, 2014 WL 7403992 (S.D. Ohio 2014). In Jenkins, the
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plaintiff alleged that he was given only three single-use catheters per week instead of one
catheter for each time he needed to urinate. The plaintiff was given a manual for how to sanitize
the catheters using soap and water, and when he complained that this was insufficient, was given
an antiseptic. The plaintiff did not provide support in his complaint from medical experts. The
court found that the plaintiff’s complaint “demonstrates that plaintiff disagrees with defendants
about the frequency with which his catheters should be replaced. Such a disagreement does not,
however, amount to a constitutional violation.” Jenkins, 2014 WL 4748619, at *5 (collecting
cases dismissing claims alleging insufficient replacement of catheters).
As an initial matter, while this court has not located Seventh Circuit precedent related to
the reuse of external catheters, other district courts have found that the failure to provide
sufficient external catheters can constitute deliberate indifference. In Jefferson v. Overton, 2017
WL 3922909 (W.D. Penn. 2017), the court denied the defendants’ motion for summary judgment
after agreeing with the plaintiff that there was sufficient evidence to find that the prison official
defendants “knowingly disregarded the fact that [the plaintiff] was suffering chronic infections as
a result of reusing ‘single use’ catheters in an institutional setting” and the defendants had denied
the plaintiff’s “reasonable requests for infection control measures such as sterile gloves,
antiseptic wipes, and a sufficient number of catheters to comply with ‘single use’ labeling.” See
id. at *6. See also Bentancourt v. Florida Department of Corrections, 2014 WL 10742621
(M.D. Fl. 2014) (finding that “a genuine dispute of material fact exists regarding the sufficiency
of Plaintiff's supply of catheters” where plaintiff “allegedly received a Coloplast catheter that
indicates it is ‘Single Use Only’”); Washington v. Tennessee, 2014 WL 5035217, at *4 (M.D.
Tenn. 2014) (denying motion to dismiss where “the plaintiff alleges that he has recurrent,
painful, and potentially life-threatening bladder infections resulting from the refusal of the
medical care providers . . . to provide a sterile catheter each time he needs to empty his bladder,
or even to provide antiseptic wipes or gloves or other materials to help him clean and sterilize the
catheters that he is required to reuse”); Kozlowski v. United States, 2009 WL 612172 (E.D. Mich.
2009) (noting that “Plaintiff alleges that the catheters were designed for a single use, not
intended to be cleaned and reused” and finding that “Plaintiff's allegation that [the defendant]
authorized one catheter a week instead of twenty eight is enough to state a claim for deliberate
indifference”). As such, the court does not consider the Jenkins decision dispositive of this issue
and will apply normal standards for deliberate indifference as articulated by the Seventh Circuit.
The Seventh Circuit has held that “[t]o state an Eighth Amendment claim based on
deficient medical care, a plaintiff must allege an objectively serious medical condition and an
official's deliberate indifference to that condition.” Perez v. Fenoglio, 792 F.3d 768, 776 (7th
Cir. 2015). “Deliberate indifference may occur where a prison official, having knowledge of a
significant risk to inmate health or safety, administers ‘blatantly inappropriate’ medical
treatment.” Id. at 777. While this court has not found Seventh Circuit precedent directly related
to the subject of external catheters, in the context of indwelling catheters, the Seventh Circuit has
held that “[a] needless delay in providing medical supplies may violate the Eighth Amendment
depending on the seriousness of the condition and the ease of providing treatment and whether
the plaintiff provides independent evidence that the delay exacerbated the injury or unnecessarily
prolonged pain.” Stewart v. Wall, 688 F. App’x. 390 (7th Cir. 2017) (internal quotations and
alterations omitted).

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The normal standards of harm, causation, and deliberate indifference apply. In Stewart,
the Seventh Circuit found that the mere allegation of delays in replacing indwelling catheters
alone was insufficient where there was no evidence of harm or of deliberate indifference:
[The plaintiff] describes a few delays in receiving sterile equipment or
replacement catheters that range from hours to one week. Although he has argued
that these delays cause him pain, he has not sworn to it. More fundamentally
though, he has not argued, let alone furnished evidence, that the staff had control
over the delays in providing these supplies and could have easily avoided these
delays. Without such evidence, the Eighth Amendment claim fails.
Id. at 394.
In Newell v. Ngu, 589 F. App’x. 782 (7th Cir. 2014), the Seventh Circuit found that there
was sufficient evidence for a jury to find harm as a result of delays in changing an indwelling
catheter where the plaintiff proffered evidence of harm and expert testimony that the harm was
caused by delays in changing the indwelling catheters:
We . . . reject [the defendant’s] contention on appeal that [the plaintiff’s]
testimony that he was harmed by the delayed catheter changes should have been
disregarded because the plaintiff lacks “medical training.” Lack of medical
expertise might prevent [the plaintiff] from giving an opinion on causation, but it
doesn't render inadmissible his testimony that he suffered from recurring urinary
tract infections and experienced pain and discomfort during the extended period
that his catheter was not being changed properly. A jury reasonably could infer
that [the plaintiff’s] infections and pain resulted from the lack of appropriate
attention to his catheter, a conclusion that seems frivolous to dispute given the
extensive medical records of treatment for infections and [the plaintiff’s expert’s]
opinion.
Id. at 786. The court in Newell nonetheless found that there was no deliberate indifference
because the defendant physician had ordered appropriate monthly changes, the delay was
attributable to the nursing staff, and “it is not clear what [the defendant] could have done about
the scheduling failure, given his testimony that his job was ‘more of an administrative position’
and that he did not ‘directly’ supervise the nursing staff.” Id. at 787.
Here, plaintiff has proffered evidence that he suffered harm during those incidents where
he had to rely on the Jail’s catheters and was forced to reuse them, in some cases with
insufficient lubricant. Plaintiff testified that he suffered pain and was urinating blood after
reusing the Jail’s catheters. Plaintiff’s expert Dr. Sing opined that reusing catheters in a prison
setting was inappropriate and that plaintiff’s urethral trauma was likely due to reusing catheters
with insufficient lubricant. Plaintiff’s aunt, Ms. Burrough, is a registered nurse and gave
deposition testimony as an expert witness. Ms. Burrough testified that UICOM-R’s policy of
reusing catheters was “appalling,” and she had never seen such a practice in her entire career.
Further, she testified that reusing catheters would significantly increase the risk of a UTI and
kidney infection, and that plaintiff’s pain and bleeding were likely caused by reusing the
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catheters. The court finds that plaintiff has raised a genuine issue of fact as to whether he
suffered harm that was caused by UICOM-R’s policy of reusing catheters.
With regard to deliberate indifference, defendant argues that plaintiff has presented no
more than disagreement as to whether reusing single-use catheters is an appropriate treatment
method for inmates in plaintiff’s position. Defendant points out that Dr. Vivek Kantayya
testified that reusing catheters is within the applicable standard of care and that plaintiff’s
reported symptoms were merely known and accepted conditions in paralyzed patients who selfcatheterize. Defendant argues that plaintiff has, at best, raised an issue of medical malpractice,
not deliberate indifference. As the Seventh Circuit has held, “[m]ere medical malpractice or a
disagreement with a doctor's medical judgment is not deliberate indifference.” Edwards v.
Snyder, 478 F.3d 827, 831 (7th Cir. 2007). On the other hand, “a plaintiffs receipt of some
medical care does not automatically defeat a claim of deliberate indifference if a fact finder
could infer the treatment was so blatantly inappropriate as to evidence intentional mistreatment
likely to seriously aggravate a medical condition.” Id. (internal quotations omitted).
This case presents a close question. On the one hand, plaintiff’s expert Dr. Sing’s report
is arguably too equivocal to support a finding that reusing catheters was “blatantly
inappropriate.” Dr. Sing’s report states “Although Dr. Kantayya describes some arguable points
regarding reusable urinary catheterizations, I frankly disagree with his conclusions.” See [53-1]
at 12. He goes on to say that “Dr. Kantayya noted that reuse catheters ‘using a clean technique’
is accepted practice in medical community, and this may be the case in a patient who has never
had a UTI and is in a much better clean situation, a situation that is not likely found in a prison
cell.” See [53-1] at 13. On the other hand, Ms. Burrough testified that a policy of reusing
catheters in an inmate setting was “appalling,” and she had never seen such a practice in her
entire career. Taking all inferences in favor of plaintiff, the court finds that a reasonable jury
could find that the reuse policy was “blatantly inappropriate” as applied to plaintiff and his
situation. As such, summary judgment is denied with respect to plaintiff’s claim regarding reuse
of the single-use catheters.
2. Physical Therapy.
Plaintiff also claims that defendant was deliberately indifferent for failing to provide him
with outside physical therapy. Defendant argues that there is no evidence that any prison
officials had reason to believe that outside physical therapy was medically necessary. The court
agrees.
The Seventh Circuit has held in similar circumstances that prison officials were not
deliberately indifferent for failing to provide outside physical therapy. In Burton v. Downey, 805
F.3d 776 (7th Cir. 2015), the plaintiff’s outside physician recommended physical therapy and
explained stretching exercises to the plaintiff. Prison officials later contacted the outside
physician, who stated that the plaintiff could do stretches in his cell. Nurses provided the
plaintiff with written instructions as to relevant stretches. The last time the plaintiff saw the
outside physician, he recommended physical therapy to plaintiff if he could convince the courts
that he should receive it. No outside physical therapy was ever authorized. The Seventh Circuit
found that the plaintiff “fails to present evidence that the medical defendants, who contacted [the
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outside physician] and followed his recommendations for treatment, acted with the requisite state
of mind for deliberate indifference.” Id. at 786.
Here, the evidence is similar to that in Burton, which the Seventh Circuit found
insufficient. Prison officials educated plaintiff as to how to do a variety of physical therapy
using a towel in his cell. At Dr. Kantayya’s request, plaintiff was taken out of the Jail to visit Dr.
Andrew Vo, plaintiff’s physician, for pain management and rehabilitation consultation. At that
time, Dr. Vo did not order physical therapy and did not rule it out, but rather told plaintiff he
would discuss the matter with rehabilitation physicians to discuss whether plaintiff would benefit
from further outpatient physical therapy. Dr. Vo also sent plaintiff through UICOM-R a 39-page
pamphlet of back and neck exercises that the plaintiff could do on his own at the Jail. Nurses
provided the pamphlet to plaintiff and reviewed it with him to ensure he understood how to
perform the exercises. Dr. Kantayya’s testified that off-site physical therapy was not medically
necessary for the plaintiff. Neither Dr. Kantayya nor UICOM-R nurse manager Valerie Lewis
were not aware of any medical orders from Dr. Vo or others for the plaintiff to do physical
therapy off-site outside of the Jail.
In short, plaintiff has proffered no evidence that prison officials provided “blatantly
inappropriate” treatment or failed to follow the advice of specialists. To the contrary, the
evidence tends to show that the prison officials followed Dr. Vo’s advice. Plaintiff has failed to
raise a genuine issue of fact as to whether the failure to provide outside physical therapy was
deliberately indifferent. As such, defendant’s motion for summary judgment is granted with
respect to plaintiff’s claims pertaining to physical therapy.
For the foregoing reasons, defendant Winnebago County Sheriff’s Department motion for
summary judgment [48] is granted in part and denied in part. At the next hearing, the parties are
to discuss with Judge Johnston the scheduling of a settlement conference.
Date: 9/27/2017

ENTER:

United States District Court Judge
Electronic Notices. (LC)
Copy to Magistrate Judge Johnston

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