Hernandez v. The Illinois Department of Corrections et al

Filing 180

ORDER: The 148 Motion for Partial Summary Judgment filed by Plaintiff Jose Hernandez is DENIED in part and deemed MOOT in part. The 152 Motion for Summary Judgment filed by Defendants Illinois Department of Corrections, Dee Dee Brookhart, Lorie C unningham, and Anne Elizabeth Tredway is GRANTED. The 158 Motion for Summary Judgment filed by Defendants Wexford Health Sources, Inc., John Coe, M.D., and Jon-Michael Allender is GRANTED in part and DENIED in part. The 172 Motion to Strike is DENIED. Signed by Chief Judge Nancy J. Rosenstengel on 8/2/2021. Signed by Chief Judge Nancy J. Rosenstengel on 8/2/2021. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSÉ HERNANDEZ,
Plaintiff,
v.

Case No. 3:17-CV-1335-NJR

ILLINOIS DEPARTMENT OF
CORRECTIONS, WEXFORD HEALTH
SOURCES, INC., JOHN COE,
ANNE ELIZABETH TREDWAY,
LORIE CUNNINGHAM,
DEE BROOKHART, and
JON-MICHAEL ALLENDER,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on the motion for partial summary judgment filed
by Plaintiff José Hernandez (Doc. 148), the motion for summary judgment filed by
Defendants Illinois Department of Corrections (IDOC), Dee Brookhart, Lorie
Cunningham, Anne Elizabeth Tredway (“IDOC Defendants”) (Doc. 152), and the motion
for summary judgment filed by Defendants Wexford Health Sources, Inc., John Coe,
M.D., and Jon-Michael Allender 1 (“Wexford Defendants”) (Doc. 158). For the reasons set
forth below, the IDOC Defendants are granted judgment as a matter of law. The motion
filed by Hernandez is denied, and the motion filed by the Wexford Defendants is granted
in part and denied in part.

1

The Clerk of Court is DIRECTED to correct Defendant’s name on the docket to Jon-Michael Allender.

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FACTS
The following facts are not genuinely disputed for purposes of summary
judgment. Plaintiff José Hernandez is a former inmate of the IDOC who was housed at
Lawrence Correctional Center from July 7, 2014, through July 25, 2016. (Doc. 153-1 at
pp. 4, 22). Hernandez is a partial quadriplegic; he is paralyzed from the chest down and
cannot grasp with his fingers, though he has limited mobility in his arms. (Doc. 148-2 at
pp. 11-12; Doc. 167-3).
Although Hernandez is paralyzed, he can experience pain and discomfort
throughout his body. (Doc. 167-3). For example, quadriplegic patients can develop
painful pressure ulcers if not repositioned approximately every two hours. (Id.). Pressure
ulcers form when bones, like the pelvis, put unrelieved pressure on soft tissue. (Id.). The
pressure in these areas prevents blood from circulating properly, resulting in skin
breakdown. (Id.). Once a pressure wound develops, and even if that pressure wound
heals, there is an extremely high risk the wound will redevelop in the future. (Doc. 158-6
at p. 10). A medical alternating air mattress, in conjunction with turning and
repositioning, can help prevent pressure ulcers from developing or worsening. (Doc. 1673). An alternating air mattress consists of a series of tubes that periodically inflate and
deflate to shift the weight of the patient. (Id.).
In 2013, prior to entering Lawrence, Hernandez had pressure ulcers on both his
left and right buttocks. (Doc. 158-2). Upon Hernandez’s arrival at Lawrence in July 2014,
the ulcer on his left buttock had healed, while the ulcer on the right buttock was nearly
closed but was “complicated by a draining fistula.” (Doc. 158-8 at p. 2). Hernandez was

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admitted to the infirmary, and Dr. John Coe, the former medical director at Lawrence and
an employee of Wexford Health Sources, Inc., ordered Hernandez an alternating air
mattress in order to avoid further pressure ulcers. (Id. at p. 3; Doc. 168-15 at p. 16).
Wexford provides medical services to inmates in the Illinois Department of Corrections.
(Doc. 1 at ¶ 9).
Dr. Coe testified that Hernandez required “total care,” meaning he used a catheter,
could not control his bowel movements, had a special diet and toothbrush, and could not
adequately turn himself over in bed. (Doc. 148-3 at pp. 36-37). Because Hernandez was
unable to lift the weight of his body using his arms, Dr. Coe also ordered that Hernandez
be repositioned every two hours and upon request until the mattress was available.
(Doc. 158-8 at p. 1; Doc. 148-3 at pp. 35-36; Doc. 167-4). Hernandez stayed in the infirmary
for the entirety of his sentence. (Doc. 148-3 at p. 35).
On August 18, 2014, Hernandez complained to Dr. Coe that the night crew would
not turn him over upon request. (Doc. 168-26 at p. 3). Dr. Coe asked the night staff to
“please reposition him as he requests if he is not too demanding.” (Id.). In September
2014, Hernandez was diagnosed with sepsis and a PICC line was inserted for long-term
antibiotic therapy. (Doc. 158-8 at p. 17). On October 19, 2014, a nurse noted a small red
area approximately half of a centimeter on the crease of the left buttock. (Id. at p. 22). In
January 2015, Hernandez developed a wound on his right hip. (Id. at p. 24). Later that
month, a nurse noted that Hernandez’s left buttock appeared to be red and raw, and Dr.
Coe diagnosed Hernandez with an abscess and stage 1 decubitus ulcer on his right
buttock. (Id. at pp. 25-26). Dr. Coe ordered a culture of the wound, which came back

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positive for MRSA. (Id. at pp. 27-28). Dr. Coe prescribed Bactrim. (Id.).
Dr. Coe continued to examine Hernandez’s wounds over the following months. In
February, the wound on Hernandez’s right buttock was four centimeters deep with
drainage. (Id. at p. 29). In March, Dr. Coe noted there was hardly any drainage from the
wound, and in April he found that the ulcer was almost closed. (Id. at pp. 32-33). But by
May 2015, the wound had tunneled about one inch into his right buttock and was again
infected with MRSA. (Id. at pp. 35-36). A nurse later noted a nickel size area on
Hernandez’s upper left buttock that was pink and white in color; however, Hernandez
did not complain of any pain at that time. (Doc. 158-8 at p. 48).
On the night of June 6, 2015, Hernandez was experiencing severe pain and needed
to be turned and repositioned by one of the Wexford staff members. (Doc. 148-4 at pp. 1718). The infirmary had a call button system that could be used to alert staff when an
offender needed assistance. (Doc. 167-2 at p. 143). Each cell in the infirmary had several
call buttons in it. (Id.). Pressing the button would create a sound and a flashing light at
the nurses’ station. (Id. at p. 144). A correctional officer would then unlock the door for
the nurse to enter the ward. (Doc. 167-7 at p. 72). Hernandez could not press the call
button himself, so he asked another inmate to press the call button to alert staff that he
needed medical attention. (Id.). No one responded. (Id. at p. 18). Because he was in severe
pain, Hernandez attempted to turn himself over by wedging his arm in the bedframe,
fracturing his left forearm in the process. (Id.; Doc. 148-5).
Dr. Coe examined Hernandez’s arm on June 8, 2015, and ordered an x-ray.
(Doc. 148-7). The x-ray, performed on June 10, 2015, confirmed Hernandez’s ulna, one of

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the bones of the forearm, was fractured. (Doc. 148-8). Dr. Coe decided to splint
Hernandez’s arm for six weeks and send him for another x-ray in three weeks. (Doc. 1483 at p. 41). He also prescribed Tylenol and Neurontin. (Doc. 158-8 at p. 42). Dr. Coe
testified that the decision was made not to send Hernandez to an orthopedic specialist
because “the fracture was not particularly displaced,” and only one bone in his forearm
was fractured. (Doc. 148-3 at pp. 41-42). Minimally displaced ulnar fractures commonly
heal without surgical intervention. (Doc. 158-5 at p. 9).
Hernandez received the second x-ray on July 6, 2015. (Doc. 148-10). Although the
fracture was “healing,” the bone was still broken. (Id.; Doc. 148-3 at p. 48). On July 16,
2015, Dr. Coe discontinued the splint for Hernandez’s arm, as it was causing an ulcer on
his wrist. (Doc. 148-3 at p. 51). Dr. Coe did not request an additional x-ray or send
Hernandez to a specialist. (Id.).
At a follow-up visit in early August 2015, Dr. Coe physically manipulated
Hernandez’s arm and determined the bone was solid and had obvious callus, meaning it
was bigger than it originally would have been and it was bridging the other bone. (Id. at
pp. 59-60, 62). The bone also did not “want to move.” (Id. at p. 62). Dr. Coe testified that
the center of the bone may not be filled in yet, but the callus would have connected the
bones. (Id. at p. 63). Based on his clinical judgment, Dr. Coe determined Hernandez did
not need another x-ray. (Id. at p. 61). Also at that visit, Hernandez requested a trapeze,
but Dr. Coe noted that Hernandez had no grip to use a trapeze. (Doc. 158-8 at p. 52).
On October 7, 2015, Hernandez complained to Dr. Coe about his mattress deflating
from a large hole. (Id. at p. 55). The request for a replacement alternating air mattress was

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approved during Wexford’s collegial review process on October 20, 2015. (Id. at p. 56).
Hernandez again complained about his mattress leaking air, this time to a nurse,
on February 17, 2016. (Id. at p. 60). His air mattress was replaced with a “regular foam
mattress.” (Id.). On March 4, 2016, Dr. Coe noted that Hernandez had no particular
complaints and “feels OK.” (Id. at p. 61).
On May 19, 2016, Hernandez was seen by Physician’s Assistant James for a followup examination. PA James wrote that Hernandez complained of arm pain from over one
year ago.2 (Doc. 148-16). Hernandez next saw Dr. Coe on June 6, 2016, and complained
about his air mattress leaking air. 3 (Doc. 158-8 at p. 62). Dr. Coe noted that he would have
“Nancy” look into the mattress. (Id.). A week and a half later, the mattress was still
leaking air. (Id. at p. 63). Hernandez reported to another PA that the mattress did not
provide adequate support, it was causing him significant discomfort, and he felt like he
was in a hole when lying on his side. (Id.). The PA noted that he or she discussed
Hernandez’s concerns about the mattress with Jon-Michael Allender, the Director of
Nursing.
Allender, a Wexford employee, planned to check the mattress adjustments to
ensure it was properly functioning and inflated. (Id.). Even though Allender believed the
mattress was functioning, he got a different air mattress out of storage and provided it to
Hernandez. (Doc. 158-4 at p. 21). Allender believed this mattress functioned properly

2
3

At this point, Hernandez’s injury had occurred over 11 months prior, but not more than one year.
It is unclear when the regular foam mattress was switched to another air mattress.

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because he plugged it in and aired it up. (Id.). When Allender checked in with Hernandez
the following day or within a few days, Hernandez said things were going fine. (Id.).
On June 27, 2016, Hernandez again complained to Dr. Coe about the mattress. (Id.
at p. 64). Dr. Coe noted that the mattress “has a temporary fix to it.” (Id.). That same day,
Hernandez filed a grievance stating that his air mattress was not working, leaving his
body sunk in the center and causing him extreme pain in his neck and left shoulder and
arm. (Doc. 167-14). Hernandez further stated in his grievance that he told Defendants Dr.
Coe, Lorie Cunningham, Allender, and Dee Brookhart about the mattress not working,
that an open wound on his right buttock was getting bigger, and that he had a burning
discomfort in his left buttock. (Id.). The grievance stated that Dr. Coe told Hernandez he
would not replace the air mattress since he was so close to his release date of July 25, 2016.
(Id.).
Defendant Anne Tredway was the Assistant Warden of Programs at Lawrence
from August 2012 through September 2015. (Doc. 153-3). As the Assistant Warden of
Programs, Tredway’s duties included overseeing the programming for inmates at
Lawrence as well as overseeing multiple departments, including the Health Care Unit.
(Id.). Defendant Brookhart was the Assistant Warden of Programs at Lawrence from
February 2016 through January 1, 2019. (Doc. 153-2). Brookhart also served as the
Americans with Disabilities Act (ADA) Coordinator. (Id.). Defendant Cunningham, a
registered nurse currently employed by the IDOC, has been the Health Care Unit
Administrator (“HCUA”) at Lawrence since December 22, 2015. Prior to that, she was the
Director of Nursing and an employee of Wexford. (Id.). As the HCUA, Cunningham’s job

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responsibilities were to direct, coordinate, and review activities of healthcare operations
in conjunction with the Medical Director and the Nursing Director. (Id.). Tredway,
Brookhart, and Cunningham could not make decisions regarding the medical care of
individual inmates, nor could they order any outside medical consultations or prescribe
any type of medical device. (Id.). While Cunningham was the Director of Nursing,
however, she ensured an alternating air mattress was ordered for Hernandez, after a
doctor prescribed it. (Id.; Doc. 153-6).
Although they did not provide medical care, Defendants Tredway, Brookhart, and
Cunningham were required to conduct rounds in the infirmary, listen to patients’
complaints, investigate those complaints, and ensure that Wexford and its staff were
addressing patients’ medical needs and complying with IDOC policy. (Doc. 167-6 at
pp. 26-27; Doc. 167-7 at pp. 55-60; Doc. 167-2 at pp. 173-74).
According to Brookhart, there were periods of time when the call button system
in the infirmary did not work reliably. (Id. at p. 69). Cunningham testified that the
batteries in the call buttons would sometimes run out and need to be replaced. (Doc. 1672 at p. 145). Additionally, Cunningham explained, the call button alert could be silenced
by the correctional officers, although it was never permissible for staff to ignore a call
button request. (Id. at pp. 145-47).
According to Tredway, once a call button was pressed, it should be responded to
within a few minutes. (Doc. 167-6 at p. 56). She admitted, however, that offenders
sometimes complained that the call button was being ignored. (Id. at pp. 56-57). When an
inmate complained, Tredway would talk to the nurses to make sure they realized they

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needed to respond to call buttons promptly. (Id. at p. 59). Tredway recalled Hernandez
specifically complaining to her about the nurses not responding to the call button in a
timely manner. (Id. at pp. 70-72). When Hernandez complained to her, Tredway would
talk to the nurses about their responsibilities and take the complaint to the HCUA and
the Director of Nursing. (Id. at p. 73). Hernandez testified, however, that the problem
with the call button continued even after he talked to Tredway. (Doc. 167-1 at p. 57).
Hernandez was released from Lawrence on July 25, 2016. He attested that he had
open wounds on his left and right buttocks at that time. 4 (Doc. 171-1). Hernandez also
was experiencing pain in his left arm after his release, so he saw a doctor who performed
an x-ray. (Doc. 148-4 at pp. 22, 26). The x-ray performed on December 2, 2016, showed
that Hernandez’s arm was still broken. (Id. at p. 22; Doc. 148-11 at p. 5). Hernandez had
surgery to repair the fracture on February 2, 2017, which required the use of a bone graft,
as well as a metal plate and screws. (Doc. 148-17). Hernandez still experiences pain in his
left arm. (Doc. 148-4 at p. 21).
Hernandez filed his Complaint in this matter on December 12, 2017 (Doc. 1), and
a First Amended Complaint on April 25, 2018 (Doc. 49). Hernandez also filed a complaint
in a separate case, which ultimately was consolidated with this matter. (See Doc. 68; Case
No. 18-cv-1442, Doc. 1). After several court orders dismissing Hernandez’s respondeat
superior claims, the following counts remain in this case:

4

The Wexford Defendants have moved to strike the affidavits of Hernandez and his mother, Dora
Hernandez, because they allegedly contain medical opinions that neither affiant is qualified to provide.
The Court disagrees; their statements that Hernandez had “open wounds” are not medical opinions.
Rather, the affidavits are based on Hernandez’s and his mother’s personal knowledge and observations of
his wounds and disabilities. Accordingly, the Motion to Strike (Doc. 172) will be denied.

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Count 1:

Violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq., against the IDOC;

Count 2:

Violation of the Rehabilitation Act (“RA”), 29 U.S.C. § 794 et
seq., against the IDOC;

Count 3:

Eighth Amendment deliberate indifference claims against
Treadway, Coe, Cunningham, Allender, and Brookhart; and

Count 4:

Eighth Amendment deliberate indifference claims against
Wexford based on its policies or customs.

Hernandez has moved for partial summary judgment as to Count 3 as it relates to
Dr. Coe. (Doc. 148). Defendants have moved for summary judgment on all claims.
(Docs. 152, 154).
LEGAL STANDARD
Summary judgment is only appropriate 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.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED.
R. CIV. P. 56(a)). Once the moving party sets forth the basis for summary judgment, the
burden then shifts to the nonmoving party who must go beyond mere allegations and
offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P.
56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 232-24 (1986).
In determining whether a genuine issue of fact exists, the Court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion.
Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[i]nferences that rely upon speculation or
conjecture are insufficient.” Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014). “Where

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the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.” Id. (citation omitted).
DISCUSSION
I.

Deliberate Indifference to a Serious Medical Need

The Eighth Amendment prohibits cruel and unusual punishments and deliberate
indifference to the “serious medical needs of a prisoner constitutes the unnecessary and
wanton infliction of pain forbidden by the Constitution.” Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to “reasonable measures to
meet a substantial risk of serious harm”—not to demand specific care. Forbes v. Edgar, 112
F.3d 262, 267 (7th Cir. 1997). A prisoner’s dissatisfaction with a medical professional’s
prescribed course of treatment does not give rise to a successful deliberate indifference
claim unless the treatment is so “blatantly inappropriate as to evidence intentional
mistreatment likely to seriously aggravate the prisoner’s condition.” Snipes v. DeTella, 95
F.3d 586, 592 (7th Cir. 1996) (quoting Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974)).
To succeed on an Eighth Amendment deliberate indifference claim, a plaintiff
must show: (1) that he suffered from an objectively serious medical condition; and (2) that
the individual defendant was deliberately, that is subjectively, indifferent to that
condition. Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir.), cert. denied, 140 S. Ct. 50, 205 L.
Ed. 2d 38 (2019). A medical condition is objectively serious if “ ‘a physician has diagnosed
it as requiring treatment, or the need for treatment would be obvious to a layperson.’”
Lockett v. Bonson, 937 F.3d 1016, 1023 (7th Cir. 2019) (quoting Pyles v. Fahim, 771 F.3d 403,
409 (7th Cir. 2014)).

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Prevailing on the second prong requires a prisoner to show that a prison official
has subjective knowledge of—and then disregards—an excessive risk to inmate health.
Gayton v. McCoy, 593 F.3d 610, 653 (7th Cir. 2010). The plaintiff need not show the
individual “literally ignored” his complaint, but that the individual was aware of the
condition and either knowingly or recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516,
524 (7th Cir. 2008). “Something more than negligence or even malpractice is required” to
prove deliberate indifference. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
Assessing the subjective prong is more difficult in cases alleging inadequate care
as opposed to a lack of care. Without more, a “mistake in professional judgment cannot
be deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th
Cir. 2016). The Seventh Circuit has explained:
By definition a treatment decision that’s based on professional judgment
cannot evince deliberate indifference because professional judgment
implies a choice of what the defendant believed to be the best course of
treatment. A doctor who claims to have exercised professional judgment is
effectively asserting that he lacked a sufficiently culpable mental state, and
if no reasonable jury could discredit that claim, the doctor is entitled to
summary judgment.
Id. (citing Zaya v. Sood, 836 F.3d 800, 805-06 (7th Cir. 2016)). A medical professional’s
choice of an easier, less efficacious treatment can rise to the level of violating the Eighth
Amendment, however, where the treatment is known to be ineffective but is chosen
anyway. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).

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A.

The Wexford Defendants
1.

Fractured Forearm

Hernandez and Dr. Coe have both moved for summary judgment on Count 3 as it
relates to Dr. Coe’s alleged deliberate indifference to Hernandez’s fractured forearm.
(Docs. 148, 154). There is no dispute that Hernandez suffered from an objectively serious
medical condition or that Dr. Coe knew of that condition. Thus, the only question is
whether Dr. Coe was deliberately indifferent to Hernandez’s condition—i.e., whether he
knowingly or recklessly disregarded it.
Based on the summary judgment record, a reasonable jury could conclude Dr. Coe
was deliberately indifferent to Hernandez’s broken arm. Dr. Coe discontinued the use of
a splint for Hernandez’s fractured ulna on July 15, 2015, just nine days after an x-ray
showed the bone was still broken. While Dr. Coe prescribed pain relievers to Hernandez,
no further treatment for the broken arm was provided after Dr. Coe physically
manipulated the arm and found that a callus had formed.
Dr. Paul Lamberti, Hernandez’s retained expert witness, is a licensed orthopedic
surgeon. (Doc. 158-5). Dr. Lamberti opined that “Dr. Coe’s refusal to provide Mr.
Hernandez with any treatment for his fractured arm after removing the splint at six
weeks, despite the fact that (1) the July 6 x-ray showed incomplete healing, suggesting a
risk of non-union, and (2) Mr. Hernandez complained for a year following the date of his
injury, constitutes a gross deviation from acceptable healthcare.” (Doc. 148-11).
Indeed, Dr. Coe admitted that he brought up Hernandez’s fracture during
collegial review, but that, “for one thing, sending him out is going to be a real problem”

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due to his partial quadriplegia. (Doc. 168-4 at p. 175). Additionally, he testified, “the
fracture itself was kind of like, well, you know, he’s not exactly somebody that’s going to
be out digging ditches in the future.” (Id.). When asked what he meant by that, Dr. Coe
explained: “It’s not going to be like he’s a laborer and has to have a great outcome with
his fracture. His arms are weak and he doesn’t use them that much. You know, basically
he stays in bed, gets carried around, put in wheelchairs, pushed around, you know. If he
goes out to the gym where basically it’s just kind of a socializing experience, he doesn’t
really do anything but sit in a wheelchair and talk with other wheelchair patients . . . .”
(Id. at p. 176). Accordingly, the decision was made to “try to take care of it there at the
prison and not send him to Champaign-Urbana.” (Id.).
According to Dr. Lamberti, however, numerous medical studies confirm that arms
are the most important limbs for patients with quadriplegia and that Dr. Coe’s
explanation of his refusal to refer Hernandez to an orthopedic specialist to have his
broken arm evaluated “is not based on any medical judgment.” (Doc. 148-11 at p. 5).
Furthermore, there is evidence that Hernandez continued to complain about pain
in his arm. Hernandez complained that his forearm still hurt when Dr. Coe physically
manipulated it on August 4, 2015, during a visit with a PA eight days later, and during a
May 19, 2016 visit with a PA (Doc. 148-3 at pp. 58, 65, 69-70; Docs. 148-15, 148-15, 148-16).
Hernandez also testified that he had “massive pain” in his arm when using his wheelchair
and that he asked Dr. Coe to check his arm again. (Doc. 148-4 at p. 7; Doc. 148-2 at p. 16).
When Hernandez told Dr. Coe he was having a lot of pain, Dr. Coe would say “well, you
broke it,” and he would laugh and walk away. (Id. at p. 21).

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At the same time, however, a jury could find that Dr. Coe exercised his
professional judgment in deciding to discontinue treatment, and a disagreement with a
physician’s professional judgment is insufficient to make a prima facie case of deliberate
indifference. Dr. Lamberti testified that the fracture of Hernandez’s forearm was reduced,
meaning the bones were lined up with one another such that a callus could form and the
fracture could heal without surgical intervention. (Doc. 158-5 at p. 9). Dr. Coe also
testified that, in his clinical judgment, another x-ray was not required after he physically
manipulated Hernandez’s forearm in August 2015 and felt that a callus had formed.
(Doc. 158-3 at p. 200). Finally, Dr. Coe submits there is a question of fact as to whether
Hernandez continued to experience ongoing pain in his left forearm in the years
following the fracture. Dr. Coe testified that the medical record prepared by a PA on May
19, 2016, does not indicate the amount of pain or where the arm hurt, and that Hernandez
had Tylenol 3, Motrin, gabapentin, and baclofen for pain. (Doc. 148-3 at pp. 70-71).
Based on this evidence, the Court finds there are outstanding questions of fact and
thus neither party is entitled to summary judgment on Hernandez’s claim of deliberate
indifference to his fractured forearm. Both motions are denied on those grounds. 5
2.

Alternating Air Mattress

Dr. Coe and Allender next argue they are entitled to summary judgment on
Hernandez’s claim of deliberate indifference regarding his need for a functioning air

Hernandez also moved for summary judgment on the Wexford Defendants’ affirmative defenses of
Eleventh Amendment sovereign immunity and the Prison Litigation Reform Act’s requirement that a
prisoner must disclose his litigation history. The Wexford Defendants have withdrawn these defenses
(Doc. 166); thus, Hernandez’s motion as it applies to Wexford’s affirmative defenses is moot.

5

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mattress in order to avoid pressure ulcers. Specifically, Dr. Coe argues that (1) he
immediately ordered an alternating air mattress when Hernandez arrived at Lawrence;
(2) he ordered that Hernandez be turned regularly pending receipt of that mattress; and
(3) when the air mattress needed to be replaced, he did so immediately. Allender asserts
he is entitled to summary judgment because there is no evidence that he denied
Hernandez access to a working alternating air mattress. Both Defendants argue that even
Hernandez’s expert admitted the pressure ulcer on his right buttock healed because of
the medical care he received at Lawrence. (Doc. 158-6 at p. 14).
In response, Hernandez argues it is undisputed that he complained in-person to
both Coe and Allender about his mattress deflating, and both defendants had the ability
to obtain a new mattress for him. Moreover, whether Hernandez’s pressure ulcers
became worse in 2016 because of the malfunctioning air mattress must be resolved by a
jury.
The Court agrees with Hernandez. The evidence in the record, construed in the
light most favorable to Hernandez, indicates that he complained to Dr. Coe about his
mattress leaking air on June 6, 2016. Hernandez also filed a grievance stating that he told
Allender about the leak and that his pressure wounds were getting worse. Yet, Allender
never ordered a new mattress. Instead, he retrieved one from storage that also
malfunctioned. Hernandez then complained to Dr. Coe again in late June 2016 about the
deflating mattress, but Dr. Coe told Hernandez he would not get a new mattress so close
to his release date. There is also evidence that Hernandez’s right buttock wound
worsened and he developed a left buttock wound while at Lawrence. On this record, a

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jury could find Dr. Coe and Allender were deliberately indifferent to a serious risk of
harm to Hernandez by failing to provide him with a functioning air mattress in 2016.
3.

Trapeze

The Wexford Defendants next argue they are entitled to summary judgment as to
any claim regarding the failure to provide Hernandez with a trapeze. Hernandez does
not dispute this point; therefore, Defendants are entitled to summary judgment on this
ground.
3.

Monell Claim Against Wexford

In Count 4, Hernandez asserts Wexford had a practice of failing to enforce its
policy requiring infirmary staff to respond to inmates’ calls for help and it knew that
doing so posed a substantial risk that patients would be deprived of their constitutional
rights.
While Wexford is a private corporation, under Seventh Circuit law, a private
company that has contracted to provide essential government services, such as health
care for prisoners, can be held liable if the constitutional violation was caused by an
unconstitutional policy, practice, or custom of the corporation itself. Hildreth v. Butler, 960
F.3d 420, 426 (7th Cir. 2020), cert. denied, 141 S. Ct. 1527, 209 L. Ed. 2d 260 (2021); Shields v.
Illinois Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014). To support a claim under 42 U.S.C.
§ 1983 on this theory, Hernandez must show: (1) Wexford’s practice violated his
constitutional rights; and (2) the practice was “so pervasive that acquiescence on the part
of policymakers was apparent and amounted to a policy decision.” Id. “This requires
more than a showing of one or two missteps.” Id. (quotation omitted). There must be

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“systemic and gross deficiencies,” of which policymakers were aware and failed to
correct them, thereby “manifesting deliberate indifference.” Id.
Here, Dr. Roderick Matticks, Wexford’s lead regional medical director and
corporate representative, testified that Wexford requires its employees to respond to a
call button system and, furthermore, expects its staff to respond to patient needs,
however they are made aware of the need for assistance. (Doc. 168-8 at pp. 30, 33-34, 44).
Dr. Matticks also stated that it is the Director of Nursing’s responsibility to ensure staff
are hearing the calls for help from inmates in the infirmary. (Id. at p. 35). Dr. Matticks
testified that Wexford relies on its Medical Director and Director of Nursing to ensure its
policies are being followed, as well as reports from IDOC staff. (Id. at pp. 51-52).
According to Dr. Matticks, prior to this lawsuit, Wexford was unaware that nurses at
Lawrence were not responding to calls for help from infirmary patients. (Id. at p. 50).
Dr. Matticks also indicated that the IDOC would contact Wexford if there were an urgent
need or problem with a particular patient. (Id. at p. 52). In this case, Wexford was unaware
of any issue with Hernandez, including his grievance that staff were turning off the call
button system. (Id.).
Defendant Allender, the Director of Nursing, testified that he would ensure the
nurses were complying with Wexford policies by doing spot checks, reviewing the
nurses’ notes in the medical records, and checking in with patients. (Doc. 168-21 at p. 19).
With regard to patient calls for help, Allender stated he never had any complaints that
nurses were not responding to calls. (Id. at pp. 20, 68). Allender testified that he would
ask patients how things were going, and if a complaint was brought to his attention, he

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would address it at that point in time. (Id. at pp. 20-21). With regard to Hernandez
specifically, Allender did not recall him ever complaining about nurses failing to respond
to the call button. (Id. at p. 107).
Hernandez disputes these facts, pointing to evidence that it was “common
knowledge” among inmates in the infirmary and among IDOC staff that Wexford staff
often failed to respond to call button requests. For example, in November 2014, Tredway
reported in her IDOC Monthly Inspection Form that inmates in the infirmary complained
that nurses were not responding to the call button promptly. (Doc. 168-9 at p. 2).
Hernandez testified that the inmates knew when Wexford staff turned the call button off
because they would not hear any beeping sound upon pressing the button. (Doc. 148-4 at
p. 16). The nurses would also tell the inmates in the infirmary that the call button system
was off. (Id.). Hernandez further produced an affidavit from a fellow inmate who also
resided in the infirmary and who witnessed the medical staff failing to respond to the call
button, especially at night. (Doc. 148-6).
Hernandez also points to Wexford’s interrogatory responses, in which it admits it
did not “investigate, analyze, uncover, prevent, or determine the prevalence of any
misconduct, deficiency, shortcoming, or other problem related to Wexford policies and
procedures” regarding medical and nursing care for inmates in the Lawrence infirmary
at any point between July 1, 2014, and July 31, 2016. (Doc. 168-24). Hernandez argues
Wexford cannot avoid its constitutional obligations by simply failing to investigate
conduct or facts that it suspected to be true.
From this evidence, the Court concludes there is a triable issue of fact as to whether

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Wexford had an unwritten practice of failing to enforce its policies with regard to the call
button system in the infirmary. IDOC staff were aware that the call button was not being
responded to in a timely manner, and Wexford relied on IDOC staff reports—like
Tredway’s—to ensure its policies were being followed. A reasonable jury could therefore
find that while Wexford had a written policy requiring medical staff to timely respond to
the call button, the staff failed to do so, Wexford knew it, Wexford did nothing about it,
and Hernandez’s constitutional rights were violated as a result. Thus, Wexford’s motion
for summary judgment on Count 4 is denied.
B.

IDOC Defendants
1.

Personal Involvement of IDOC Defendants

The IDOC Defendants—Tredway, Brookhart, and Cunningham—argue they
cannot be held liable for deliberate indifference to Hernandez’s medical needs because
they had insufficient personal involvement in his medical care. In fact, Defendants aver,
Hernandez admitted none of these Defendants had involvement in his actual medical
care. Therefore, they did not have the requisite personal involvement to be found liable
under Section 1983.
Section 1983 makes public employees liable “for their own misdeeds but not for
anyone else’s.” Burns v. Fenoglio, 525 F. App’x 512, 515 (7th Cir. 2013) (quoting Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir. 2009)). “[T]op-level administrators are entitled to
delegate to others the responsibility for specific prison functions, including providing
medical care.” Id. “If a prisoner is under the care of medical experts . . . a non-medical
prison official will generally be justified in believing that the prisoner is in capable

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hands.” Giles, 914 F.3d at 1049 (quoting Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005)).
Non-medical prison officials can be held liable for deliberate indifference, however,
where they have actual knowledge or a reason to believe that prison medical staff are
mistreating or failing to treat a prisoner. Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011)
(citing Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008) “Non-medical defendants cannot
simply ignore an inmate’s plight.” Id.
Here, there is evidence that the IDOC Defendants—while not personally involved
in providing Hernandez’s medical care—had actual knowledge of the medical staff’s
failure to treat him. All three IDOC Defendants testified that they were required to
conduct rounds in the infirmary, listen to patients’ complaints, investigate complaints,
and ensure that medical staff were addressing patients’ needs and complying with IDOC
policy. (Doc. 167-6 at pp. 26-27; Doc. 167-7 at pp. 55-60; Doc. 167-2 at pp. 173-74). On June
27, 2016, Hernandez stated in a grievance that he told Cunningham and Brookhart, the
HCUA and an Assistant Warden, respectively, that his alternating air mattress was not
working, that an open wound on his right buttock was getting bigger, and that he had a
burning discomfort in his left buttock. (Doc. 167-14). And Tredway specifically recalled
Hernandez complaining to her about the nurses not responding to the call button in a
timely manner. (Doc. 167-6 at pp. 70-72). Based on this evidence, the Court finds that the
personal involvement requirement is satisfied.
2.

Evidence of Deliberate Indifference

The IDOC Defendants next argue that even if they were personally involved, there
is no evidence that they were deliberately indifferent to Hernandez’s medical needs. On

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this point, the Court agrees.
Defendant Tredway testified that when Hernandez told her about the nurses not
responding to the call button, she would ensure the issue was addressed by informing
the HCUA and the Director of Nursing and by making sure the nurses were present
during her rounds in the infirmary. (Doc. 167-6 at p. 73). She also would talk to the nurses
about their responsibilities. (Id.). Tredway also attested that because Hernandez only
brought up the issue of the call button to her once, and she made almost daily rounds in
the infirmary, she believed that his issue was adequately addressed. (Doc. 153-3). She
further noted that the call button was functioning properly when she inspected the
infirmary on her rounds, and that the nurses were present and attending to the
individuals in the infirmary during one of her monthly surprise inspections. (Id.).
Tredway recalled one other occasion when Hernandez complained about his mattress
and, while she did not remember the specifics, she attested that she would have followed
up with the HCUA and the Director of Nursing to ensure his complaints were addressed.
(Id.). Tredway attested she did not ignore Hernandez’s complaints. (Id.). And Hernandez
admitted it was possible that Tredway could have talked to the nurses about responding
to the call button, but that the nurses did not follow her direction. (Doc. 167-1 at p. 58).
Brookhart attested that she does not recall Hernandez complaining directly to her
or writing any grievances about issues he had with his alternating air mattress, but that
if he had, she would have referred the complaint to the HCUA or the Director of Nursing.
(Doc. 153-2). She further attested that she did not and does not ignore inmate complaints.
(Id.). According to Hernandez, he told Brookhart about his mattress during a face-to-face

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conversation on a walk to the ADA gym. (Doc. 153-1 at p. 72). He could not, however,
recall when the conversation took place or what he told her, and he admitted he does not
know if Brookhart assisted with him getting a new mattress. (Id. at p. 73).
Cunningham testified that she does not recall any complaints or grievances from
Hernandez about his alternating air mattress, but as the HCUA, she would have referred
the issue to the Director of Nursing to address. (Doc. 161 at p. 2). She attested that she
would not have ignored an inmate’s complaints. (Id.). Hernandez testified that he got
Cunningham’s attention one time and told her about the mattress, though he was not
sure when the conversation occurred. (Doc. 153-1 at p. 75). He also was not sure whether
Cunningham helped to get him a new mattress. (Id.).
Hernandez argues that Defendants’ testimony about what they “would have
done” when presented with complaints is not reliable evidence. The Court is not
convinced. Tredway gave competent testimony as to how she handled Hernandez’s
complaints. Brookhart and Cunningham could not recall any specific complaints from
Hernandez, and Hernandez also did not know the specifics of any conversations he had
with these Defendants or if they took any action. Furthermore, Brookhart and
Cunningham were not medical practitioners, were unable to order medical devices, and
were entitled to rely on the judgment of medical professionals. See Giles, 914 F.3d at 1050
(non-medical officials who referred complaints to medical staff had no duty to do any
more than they did, in light of their knowledge of the situation).
Based on this evidence, no reasonable jury would find that Defendants Tredway,
Brookhart, or Cunningham deliberately disregarded a known risk of harm to Hernandez

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or turned a blind eye to his plight. Accordingly, the IDOC Defendants are granted
summary judgment on the deliberate indifference claim in Count 3.
II.

ADA and Rehabilitation Act
The IDOC asserts it is entitled to judgment as a matter of law on Hernandez’s

claims that it violated the ADA and the Rehabilitation Act by failing to provide a
reasonably comfortable and safe place to sleep and by failing to accommodate his request
to ensure infirmary staff did not ignore his calls for help turning over in bed.
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. Similarly, Section 504 of the Rehabilitation Act prohibits any
agency that receives federal funds from excluding, subjecting to discrimination, or
denying the benefits of any of their programs to otherwise qualified individuals with
disabilities. 29 U.S.C. § 794(a). Failure to make reasonable accommodations to ensure
participation in the public entity’s programs or services by a person with a disability
qualifies as “discrimination.” 42 U.S.C. § 12112(b)(5)(A).
“In the prison context, a plaintiff can make out a prima facie case of discrimination
under both the ADA and the Rehabilitation Act by showing: (1) he is a qualified person;
(2) with a disability; (3) the Department of Corrections denied him access to a program
or activity because of his disability or otherwise subjected him to discrimination; and
(4) the denial or discrimination was by reason of his disability.” Farris v. Kurr, No. 16-CV272-SMY-RJD, 2018 WL 3036130, at *3 (S.D. Ill. June 19, 2018) (citing Jaros v. Illinois Dep’t

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of Corr., 684 F.3d 667, 672 (7th Cir. 2012)).
Evaluating the reasonableness of a particular accommodation in the prison context
is particularly fact-intensive and determined on a case-by-case basis by balancing the cost
to the defendant and the benefit to the plaintiff. Golden v. Illinois Dep’t of Corr., No. 12-CV7743, 2016 WL 5373056, at *4 (N.D. Ill. Sept. 26, 2016) (citing Dadian v. Vill. of Wilmette, 269
F.3d 831, 838 (7th Cir. 2001); Holmes v. Godinez, 311 F.R.D. 177, 226 (N.D. Ill. 2015)).
“Security concerns, safety concerns, and administrative exigencies [are] important
considerations to take into account.” Id. (citing Love v. Westville Corr. Ctr., 103 F.3d 558,
561 (7th Cir. 1996)). The key question is whether the inmate was able to participate in the
activities in question, given his disability, with or without reasonable accommodations
from the prison. Love, 103 F.3d at 560.
Here, it is undisputed that Hernandez is a qualified individual with a disability
and that IDOC is a public entity. Thus, the only question is whether the IDOC denied him
access to a program or activity because of his disability.
The IDOC argues Hernandez was provided with appropriate accommodations,
including a bed assignment in the infirmary where he was provided with an alternating
air mattress to accommodate his medical needs. Defendant contends Hernandez is
merely complaining that he received incompetent treatment for his disability, which does
not constitute a violation of the ADA.
Hernandez, on the other hand, asserts that case law establishes sleeping is an
activity or program under the ADA, and prisons are required to provide inmates with
sleeping accommodations that accommodate their disability-related needs. Each case

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cited by Hernandez, however, was the district court’s preliminary review of a Section
1983 complaint under 28 U.S.C. § 1915A, where the court determines whether a claim has
any arguable basis in either law or fact. These cases were in a very different procedural
posture and hardly establish that sleeping is an activity or program under the ADA. See
Rosario v. Wexford Health Care, No. 15-CV-1008-MJR, 2015 WL 5935244 (S.D. Ill. Oct. 13,
2015); Simmons v. Ill. Dep’t of Corr., No. 14-cv-479-JPG, 2014 WL 2159000 (S.D. Ill. May 23,
2014); Legore v. Allsup, No. 16-CV-01137-MJR, 2017 WL 131578 (S.D. Ill. Jan. 13, 2017).
Even if sleeping qualified as a program or activity under the ADA, the IDOC did
not deny Hernandez access to a bed that accommodated his disability-related needs. The
IDOC provided Hernandez with permanent quarters in the infirmary with alternating air
mattresses to help avoid new or worsening pressure ulcers. Hernandez complains that
the air mattresses malfunctioned and that the nurses did not turn him often enough, but
the ADA is not violated “by a prison’s simply failing to attend to the medical needs of its
disabled prisoners.” Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996); see also Johnson v.
Redmond, No. 17 C 50210, 2017 WL 6813706, at *2 (N.D. Ill. Oct. 30, 2017); Wilson v. Murphy,
No. 14-CV-222-BBC, 2016 WL 1248993, at *6 (W.D. Wis. Mar. 29, 2016) (medical treatment
decisions are outside the scope of the ADA and RA). While the Court is sympathetic to
Hernandez’s needs, the record here does not establish a violation of the ADA or
Rehabilitation Act. See Nesbitt v. Williams, No. 13 C 9241, 2017 WL 1079240, at *3 (N.D. Ill.
Mar. 21, 2017) (“As Nesbitt’s desire for a softer mattress is a means to treat his medical
condition, the Court also holds that the alleged failure to provide him with a softer
mattress does not state a claim under the ADA.”); Boston v. Dart, No. 14 CV 8680, 2016

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WL 5373083, at *7 (N.D. Ill. Sept. 26, 2016) (“The ADA does not require [Defendant] to
ensure that [Plaintiff] is free from any and all effects of his paraplegia.”).
For these reasons, the IDOC is entitled to summary judgment on Hernandez’s
claims in Counts 1 and 2 under the ADA and the Rehabilitation Act.6
CONCLUSION
For these reasons, the Motion for Partial Summary Judgment filed by Plaintiff José
Hernandez (Doc. 148) is DENIED in part and deemed MOOT in part. The motion for
summary judgment filed by Defendants Illinois Department of Corrections, Dee
Brookhart, Lorie Cunningham, and Anne Elizabeth Tredway (Doc. 152) is GRANTED.
The motion for summary judgment filed by Defendants Wexford Health Sources, Inc.,
John Coe, M.D., and Jon-Michael Allender (Doc. 158) is GRANTED in part and DENIED
in part. The Wexford Defendants are entitled summary judgment on Hernandez’s claim
of deliberate indifference as to his request for a trapeze. And, as set forth in footnote 4,
the Motion to Strike (Doc. 172) is DENIED.

Hernandez moved for summary judgment on the IDOC Defendants’ affirmative defense that injunctive
relief is barred as a matter of law, noting that he does not seek injunctive relief in this case. (Doc. 148). As
noted by Defendants, however, Hernandez also would not be entitled to compensatory damages on his
ADA or Rehabilitation Act claims, as compensatory damages are only available for those claims when a
plaintiff shows deliberate indifference on behalf of a state actor. Hildreth v. Butler, 960 F. 3d 420 (7th Circ.
2020). That is, the plaintiff must show the defendants “knew that harm to a federally protected right was
substantially likely and ... failed to act on that likelihood.” Id. at 431. Because Hernandez has not
demonstrated any deliberate indifference on behalf of the IDOC Defendants, he also would not be entitled
to compensatory damages under the ADA or Rehabilitation Act.

6

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Hernandez shall now proceed to trial on his remaining claims in Counts 3 and 4
against the Wexford Defendants. A status conference will be set by separate order to
select a firm trial date.
IT IS SO ORDERED.
DATED: August 2, 2021
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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