Rothman v. Lombardi et al

Filing 152

MEMORANDUM AND ORDER :IT IS HEREBY ORDERED that the motion for summary judgment filed by defendants Ronald Cowley, George Lombardi, and the Missouri Department of Corrections Doc. # 124 is granted. IT IS FURTHER ORDERED that the motion for summary judgment filed by defendants Charles Chastain and Corizon, Inc. Doc. # 127 is granted. IT IS FURTHER ORDERED that the motion to bifurcate the issues for trial filedby plaintiff Doc. # 138 is moot.. Signed by District Judge Carol E. Jackson on 9/11/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHARLES ROTHMAN,
Plaintiff,
vs.
GEORGE LOMBARDI, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:11-CV-639 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion for summary judgment filed by
defendants Missouri Department of Corrections (MDOC), Ronald Cowley, Kyle Webb,
and George Lombardi; the motion for summary judgment filed by defendants Corizon,
Inc. (Corizon) and Dr. Charles Chastain; and the motion to bifurcate filed by plaintiff.
The parties have filed memoranda, and the issues are fully briefed.
I.

Background

Plaintiff brings this action under 42 U.S.C. § 1983, the American with Disabilities
Act (ADA), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973, 42 U.S.C.
§ 701, et seq. At all times relevant to the second amended complaint, plaintiff was in
the custody of the MDOC.
On December 19, 2008, plaintiff was brought to the infirmary at the Eastern
Reception Diagnostic and Correctional Center (ERDCC) for complaints of chest pain.
Plaintiff received a medical lay-in order, which prescribed that he be assigned to a cell
on the lowest tier and that he be given a bottom bunk.1 Plaintiff alleges that on the

1

“Medical lay-ins” are physician-issued documents that contain restrictions on
an inmate’s placement and/or activities because of a medical condition. See Dykes v.
Murphy, No. 4:09-CV-1062 (E.D.Mo. February 25, 2011).

same day, two corrections officers, defendants Webb and Cowley, assigned plaintiff to
a second floor cell and an upper bunk despite being aware of the medical lay-in order.
On December 23, 2008, plaintiff lost his balance and fell while descending a
staircase. Plaintiff was taken to the ERDCC’s emergency room where he was treated
by defendant Chastain, an employee of defendant Corizon. Defendant Corizon has a
contractual agreement with the State of Missouri to provide medical services to
offenders in the MDOC. Defendant Chastain performed a physical examination and
ordered x-rays of plaintiff’s cervical, thoracic, and lumbar spine. Plaintiff was
subsequently admitted into the transitional care unit until December 29, 2008. Plaintiff
was diagnosed with neck and back sprain and contusion of his costal cartilages.
Plaintiff claims that his back pain has continued to the present date and alleges
that he did not receive sufficient treatment or accommodations for his injuries.
Plaintiff brings suit against defendants Webb, Cowley, Chastain, and Corizon pursuant
to § 1983, asserting that their deliberate indifference to his serious medical needs
violated his rights under the Eighth Amendment to the United States Constitution.
Plaintiff also brings suit against defendants MDOC and Lombardi under the ADA and
Rehabilitation Act, asserting that they excluded him from services, programs, and
activities because of his disability.
II.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit

-2-

of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing
v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
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 essential 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).
III.

Discussion
A. Count I: Section 1983 Claims Against Webb and Cowley

Plaintiff alleges that Webb and Cowley disregarded his medical lay-in order and
refused to reassign him to a first floor cell with a lower bunk. Plaintiff alleges that they
were deliberately indifferent to his serious medical needs, in violation of the Eighth
Amendment. Defendants argue that they are entitled to summary judgment because
plaintiff has failed to produce any evidence supporting his deliberate indifference claim.
“To the extent that [a] plaintiff’s claim of placement in a cell contrary to a
medical lay-in order may be construed as a claim of deliberate indifference to a
medical need, ‘it is well established that the Eighth Amendment prohibition on cruel
and unusual punishment extends to prisoners from deliberate indifference to serious

-3-

medical needs.’” Haley v. CMS, Case No. 1:09-CV-144 (E.D. Mo. Sept. 19, 2012)
(quoting Vaughn v. Greene Cty., Ark., 438 F.3d 845, 850 (8th Cir. 2006)); Jaladian v.
Hughes, 2006 WL 1629114, *3 (E.D. Cal. June 9, 2006) (“A prison official who
interferes with the instructions of a physician may be liable for an Eighth Amendment
violation.”).
To establish deliberate indifference, plaintiff “must prove an objectively serious
medical need and that prison officials knew of the need but deliberately disregarded
it.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 531-32 (8th Cir. 2009); see also
Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997); Farmer v. Brennan, 511
U.S. 825, 847 (1994). The second part of the test requires plaintiff to prove that the
prison official was more than negligent. Alberson v. Norris, 458 F.3d 762, 765 (8th Cir.
2006).
1. Defendant Kyle Webb
Webb argues that plaintiff has failed to produce any evidence of his deliberate
indifference to plaintiff’s serious medical needs. In support of this contention,
defendant Webb points to plaintiff’s deposition testimony that he gave his medical layin order to Webb without any further comment or explanation. Webb argues that
because plaintiff took no further action to inform Webb about his serious medical
condition supporting a housing adjustment, Webb had no knowledge of a serious risk
of harm.
There is no dispute that plaintiff was issued a medical lay-in order on December
19, 2008. There is also no dispute about the contents of the order, which do not
include a diagnosis and do not identify a specific medical condition. The substantive
portion of the order consists of the following list of restrictions:

-4-

Assistive device required
Cane
No high places or use of ladders
No prolonged standing
No repetitive bending, stooping, squatting
No running basketball or handball
Requires lower bunk
Requires lower floor
Unable to participate in work activities
[Doc. #125-5]. Plaintiff testified that he gave the order to Webb on the same day it
was issued and that the only statement he made to Webb at the time was, “The doctor
said give this to you.” [Doc. #125-2, at 27].
The Court finds that plaintiff has failed to come forward with sufficient evidence
showing that Webb knew about plaintiff’s serious medical condition and consciously
disregarded his medical needs. It would be unreasonable to assume that a prison
official would be aware of the existence or severity of a serious medical condition by
simply receiving a medical lay-in order from an inmate who did not identify or describe
the reasons for the restrictions.

Although the act of disregarding a doctor’s

prescription can be considered negligent, it cannot constitute deliberate indifference
when the prison official has little or no information regarding the inmate’s condition.
See Hron v. Jenkins, 1999 WL 169394, *2 (10th Cir. 1999) (“Defendants’ failure to
place him in a lower bunk reflects negligence rather than deliberate indifference.”);
Rothman v. Lombardi, 2011 WL 1743831 (E.D. Mo. May 4, 2011) (A lay-in order “is
not the same as showing a serious medical condition.”); Roe v. Elyea, 631 F.3d 843,
857 (7th Cir. 2011) (“[T]he Eighth Amendment does not codify common law torts.”).
Furthermore, the fact that plaintiff was an older man who ambulated with a cane does
not reflect an objectively serious medical need. Accordingly, Webb is entitled to
summary judgment on plaintiff’s § 1983 claim.

-5-

2.

Defendant Ronald Cowley

Cowley also argues that plaintiff has failed to produce any evidence of his
deliberate indifference to plaintiff’s serious medical needs. The Court agrees. Plaintiff
has failed to describe Cowley’s involvement in the underlying matter. Plaintiff testified
in his deposition that he did not know of defendant Cowley and that he only
remembered telling the “bubble officer,” his caseworker, and his cellmates about the
issuance of his medical lay-in order. [Doc. #125-2, at 28, 34-35]. Plaintiff identified
the bubble officer as “Sergeant Webb,” not defendant Cowley. [Doc. #125-2, at 2324]. “There can be no liability under § 1983 unless there is an affirmative link between
a defendant’s actions and the claimed deprivation.” See Jaladian, 2006 WL 1629114,
at *4 (citing Rizzo v. Goode, 423 U.S. 362 (1976)). Although a fellow inmate, Jeffrey
Bidwell, submitted an affidavit stating that he witnessed plaintiff give his medical lay-in
order to Webb and a bubble officer, Mr. Bidwell did not identify Cowley as the bubble
officer. [Doc. #51-1].
Even if the plaintiff could prove that Cowley received a copy of the medical lay-in
order, that would not be sufficient evidence to establish an Eighth Amendment
violation.2 Plaintiff has not come forward with evidence showing that Cowley actually
knew about plaintiff’s serious medical condition and consciously disregarded his
medical needs. Presenting a prison official with a medical lay-in order that contains
neither a description of the medical condition nor a diagnosis is insufficient to show an
official’s awareness of a serious medical condition. Accordingly, Cowley is entitled to
summary judgment on plaintiff’s § 1983 claim.
B. Count II: Section 1983 Claim Against Dr. Chastain
2

Prison records show that Cowley was assigned to work the bubble officer shift
on December 19, 2008. [Doc. #149-2].
-6-

Defendant Chastain was plaintiff’s treating physician on December 23, 2008, the
day of plaintiff’s fall, and continued to treat plaintiff until he was transferred out of the
ERDCC in April 2009. [Doc. ##125-6, at 33; 125-8, at 3-6]. Plaintiff alleges that
Chastain’s failure to determine whether plaintiff sustained an injury to his spinal cord
was deliberately indifferent to his serious medical needs in violation of the Eighth
Amendment.
Defendant Chastain argues that he is entitled to summary judgment because
plaintiff cannot establish that he deliberately disregarded a serious medical need. In
support, Chastain points to evidence reflecting that plaintiff received immediate and
continuing medical attention following his fall. Chastain further points to plaintiff’s
medical records to show that examinations and x-rays did not demonstrate any
evidence of a spinal injury.
In order to establish deliberate indifference, plaintiff must show more than even
gross negligence. Williams v. Jackson, 600 F.3d 1007, 1014 (8th Cir. 2010). A plaintiff
“must prove an objectively serious medical need and that prison officials knew of the
need but deliberately disregarded it.” Nelson, 583 F.3d at 531-32. An inmate’s mere
disagreement with the type of treatment he receives is not actionable. See Long v.
Nix, 86 F.3d 761, 765 (8th Cir. 1996) (prison officials do not violate the Eighth
Amendment when, in exercising professional judgment, they refuse to implement an
inmate’s requested course of treatment); Alberson, 458 F.3d at 765. “Moreover,
nothing in the Eighth Amendment prevents prison doctors from exercising their
independent medical judgment.” Long, 86 F.3d at 765.
The medical record reflects that plaintiff was taken to the infirmary on December
23, 2008 as a result of his fall. Plaintiff complained of pain in his left anterior ribs,

-7-

neck, and back. Defendant Chastain wrote that plaintiff suffered from a costal cartilage
contusion and sprain of the neck and back. Plaintiff was given Tylenol with codeine
elixer. [Doc. #129-3, at 11-12]. On December 24, 2008, x-rays were taken of
plaintiff’s cervical, thoracic, and lumbar spine. The results reflected mild degenerative
changes in the lower cervical spine with some disk space narrowing at C-6, C-7, no
bony abnormalities in the thoracic spine, evidence of fusion in the lumbar spine at L4L5, S1, and no acute fractures. [Doc. #129-3, at 13-14]. Plaintiff continued to be seen
by Chastain from December 25-27, 2008, during which time plaintiff’s condition was
monitored. [Doc. #129-3, at 16-20]. On December 29, 2008, it was noted that plaintiff
“moves better” and that the “sprain and contusion of back improved.” [Doc. #129-3,
at 20]. Plaintiff was released from the transitional care unit and given Naproxen.3
On January 20, 2009, plaintiff was seen for complaints of “cold feet.” [Doc. #21,
at 21]. On January 22, 2009, plaintiff was seen for complaints of pedal edema, which
is swelling of the feet and legs. [Doc. #129-3, at 22; Doc. #125-6, at 39]. On January
26, 2009, plaintiff was seen for medication passes. [Doc. 129-3, at 22]. On January
28, 2009, plaintiff was seen for eye pain. [Doc. #129-3, at 23]. On February 5, 2009,
plaintiff was seen for cardiovascular issues and low back pain. [Doc. #129-3, at 2226]. The treatment notes record plaintiff’s comments that Naproxen was not effective.
Chastain replaced the Naproxen with Elavil H.S. Amitriptyline. [Doc. #129-3, at 26].
On March 24, 2009, plaintiff was seen for a rash. [Doc. #129-4, at 2]. On April 12,
2009, plaintiff was seen for complaints of chronic back pain. [Doc. #129-4, at 3-4].

3

Naproxen is the generic name for Naprosyn, a nonsteroidal anti-inflammatory
drug used for relief of tendonitis and pain management. See Phys. Desk Ref. 2769-70
(60th ed. 2006).
-8-

On April 13, 2009, plaintiff requested Darvocet,4 which was not provided. [Doc. #1294, at 4-5]. On April 14, 2009, plaintiff refused assessment, but stated that he was
“moving so much better.” [Doc. #129-4, at 6]. According to the medical records, this
was the last time Chastain saw plaintiff.
Chastain testified in his deposition that he conducted a physical examination of
plaintiff after the fall, which included review of tender areas, heart, lungs, abdomen,
legs, and sensorium. [Doc. #125-6, at 40, 43].

Chastain also testified that he

performed a musculoskeletal exam and a neurological exam by watching plaintiff’s
movements. [Doc. #125-6, at 43]. He stated that he did not see any bruises, that
plaintiff’s cartilages were tender on the left, his lungs were clear, and that he had
edema of his legs. [Doc. #125-6, at 42]. Plaintiff did not complain of numbness. [Doc.
#125-6, at 44].

Chastain did not order an MRI because he did not see any major

neurological changes or signs of spinal nerve compression, spinal stenosis, or multiple
sclerosis. [Doc. ##125 at 53, 125-7, at 1]. He testified that he did not prescribe
Darvocet for plaintiff’s pain because of MDOC rules regarding narcotics and because
he believed it was a “very dangerous” drug. [Doc. #125-7, at 8-9]. Chastain believed
that plaintiff was capable of walking without a wheelchair, but that he was unwilling
to do so. Chastain testified that plaintiff did not want to walk unless he was prescribed
Darvocet. [Doc. #125-7, at 36-37].
The record supports the conclusion that plaintiff has failed to establish a
constitutional violation. Plaintiff received ongoing medical treatment, ambulatory
devices, and prescription medication for his back pain. Although plaintiff may be

4

Darvocet is a centrally acting narcotic analgesic agent indicated for relief from
mild to moderate pain. It can produce dependence. See Phys. Desk Ref. 3497 (60th
ed. 2006).
-9-

displeased that he is confined to a wheelchair or may disagree with Chastain’s
treatment plan or may believe that his symptoms were disregarded, such grievances
are not sufficient to support a claim of deliberate indifference. Accordingly, defendant
Chastain is entitled to summary judgment on plaintiff’s § 1983 claim.
C.

Count III: Section 1983 Claim Against Corizon

Plaintiff alleges that each time he was transferred to a different institution within
the MDOC he informed Corizon employees of the injuries he sustained as a result of
his December 2008 fall.5 Plaintiff alleges that Corizon employees failed to determine
whether plaintiff sustained a spinal injury and deprived him of essential medical care.
Plaintiff alleges that Corizon maintains a policy, practice, or custom of deliberate
indifference to the serious medical needs of persons similar to plaintiff. Plaintiff argues
that Corizon’s deliberate indifference amounted to cruel and unusual punishment in
violation of the Eighth Amendment.
“Corporations acting under color of state law are liable under § 1983 for their
own unconstitutional policies or customs.” Floyd v. Cabrera, Case No. 2:11-CV-16
(E.D.Mo. Nov. 14, 2012) (citing Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 97576 (8th Cir. 1993)). “The proper test is whether there is a policy, custom or action by
those who represent official policy that inflicts injury actionable under § 1983.”
Sanders, 984 F.2d at 976 (citing Monell v. Dept. of Social Servs., 436 U.S. 658, 690
(1978)). Corporations acting under color of state law may not be held vicariously liable
for the unconstitutional acts of their employees under the theory of respondeat
superior. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995).

5

Plaintiff was injured at the ERDCC in Bonne Terre, Missouri. In 2009, plaintiff
was transferred to Southeast Correction Center in Charleston, Missouri. In 2012,
plaintiff was transferred to Western Missouri Correctional Center in Cameron, Missouri.
-10-

“A ‘policy’ is an official policy, a deliberate choice of a guiding principle or
procedure made by the municipal official who has final authority regarding such
matters.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). A § 1983 plaintiff
must “demonstrate that, through its deliberate conduct, the municipality was the
‘moving force’ behind the injury alleged.” Board of County Com’rs of Bryan County,
Oklahoma v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original).
Plaintiff argues that Corizon failed to establish a policy governing diagnostic or
treatment decisions relating to back injuries. Thus, plaintiff contends that “Corizon was
deliberately indifferent to the fact that a deprivation of inmates’ right to the treatment
of serious medical needs would be a ‘plainly obvious consequence’ of its policy, custom
and practice of failing to train and supervise its doctors’ diagnosis and treatment of
inmates’ serious medical needs.” This argument fails because plaintiff has not pointed
to or provided any evidence of a deliberate official policy instituted by Corizon that
promotes a deliberate indifference to the medical needs of prisoners.
In contrast to the evidence required to establish an official policy, proof of a
“custom” requires “(1) The existence of a continuing, widespread, persistent pattern
of unconstitutional misconduct by the government entity’s employees; (2) Deliberate
indifference to or tacit authorization of such conduct by the governmental entity’s
policymaking officials after notice to the officials of that conduct; and (3) That plaintiff
was injured by acts pursuant to the governmental entity’s custom[.]” John Doe A. v.
Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990) (emphasis added). Plaintiff must
demonstrate that the supervisory defendants had notice that the training procedures
and supervision were inadequate and likely to result in a constitutional violation.
Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001) (quoting Andrews v. Fowler, 98

-11-

F.3d 1069, 1078 (8th Cir. 1996)). “The deprivations that constitute widespread abuse
sufficient to notify the supervising official must be obvious, flagrant, rampant and of
continued duration, rather than an isolated occurrence.” Brown v. Crawford, 906 F.2d
667, 671 (11th Cir. 1990).
Even if the Court accepts that Chastain was a supervising official who could
impute liability to Corizon, plaintiff has failed to present any evidence showing that he
or any other Corizon official was aware of widespread abuses resulting from the lack
of an official policy for treating back injuries. See Marsh v. Butler County, Ala., 268
F.3d 1014, 1037 (11th Cir. 2001) (dismissing a claim for deliberate indifference to
serious medical needs where plaintiff failed to show that the sheriff knew or should
have known of the need for additional training or supervision with respect to the
medical-care policies at issue); Butler ex rel. Estate of Butler v. County of Bucks, 2005
WL 639721, n. 7 (Mar. 18, 2005) (“Plaintiff’s failure to train and supervise claims fail
because she has not shown that a responsible municipal policymaker had
contemporaneous knowledge of the offending occurrence or knowledge of a pattern
of prior incidents of similar violations of constitutional rights.”). Accordingly, defendant
Corizon is entitled to summary judgment on plaintiff’s § 1983 claim.
D.

Count IV: ADA Claim Against MDOC and Lombardi

Title II of the ADA provides that “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 (emphasis added). “To state a
prima facie claim under the ADA, a [p]laintiff must show: 1) he is a person with a
disability as defined by the statute; 2) he is otherwise qualified for the benefit in

-12-

question; and 3) he was excluded from the benefit due to discrimination based upon
his disability.” Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir. 1999).
The second amended complaint alleges that defendants Lombardi and the MDOC
violated the ADA when they “excluded [plaintiff] from participation in, or denied [him]
the benefits of, the services, programs or activities Defendant provided, including
medical services, or activities that required [him] to use the stairs” and “failed to or
refused to make reasonable accommodations for Plaintiff that would have enabled him
to participate in or benefit from such services, programs or activities.”
Previously, the Court liberally construed plaintiff’s second amended complaint
and found that he sufficiently pled an ADA claim. See Rothman v. Lombardi, Case No.
4:11-CV-639 (E.D.Mo. Mar. 28, 2013) (denying Lombardi’s and MDOC’s motion to
dismiss plaintiff’s ADA claim). The Court construed plaintiff’s complaint to allege that
the denial of his medical lay-in order, which forced him to reside in a second floor cell,
consequently denied him access to services, programs, or activities that required him
to use the stairs. Id. However, plaintiff has failed to present any evidence showing that
he was denied any services, programs, or activities due to his placement in a second
floor cell. In fact, plaintiff testified that despite having trouble “getting up,” he was able
to ascend and descend the stairs three to six times a day in order to obtain meals and
medical treatment. [Doc. #125-3, at 9-10].
Plaintiff attempts to clarify his second amended complaint by explaining that he
is actually “challenging Defendants’ ongoing denial of medical services for over four
years since he first became confined to a wheelchair.” [Pl’s. Response Brief, Doc.
#132, at 6]. Plaintiff attempts to support this claim by stating that his injury has never
been diagnosed and that he has not been provided with meaningful treatment to help

-13-

him walk without a wheelchair. However, this claim also fails because plaintiff does not
present any facts or evidence showing how he was denied treatment. “In the face of
medical records indicating that treatment was provided and physician affidavits
indicating that the care provided was adequate, an inmate cannot create a question
of fact by merely stating that [he] did not feel [he] received adequate treatment.”
Dulany, 132 F.3d at 1240.
Defendants Lombardi and the MDOC have produced medical records showing
that treatment was provided to plaintiff. [Doc. ##129-3, 129-4]. The medical records
reflect that x-rays were taken of plaintiff’s spine, that a diagnosis was established,
that plaintiff was provided with various prescription medications, and that the medical
staff continued to monitor his mobility and pain even after he was issued a wheelchair.
Furthermore, Chastain continued to see plaintiff until he was transferred to another
facility. [Doc. #125-8]. Chastain testified that he encouraged plaintiff to stop relying
on a wheelchair and walk. In Chastain’s opinion, plaintiff was capable of walking
without an assistive device. [Doc. #125-8, at 36-37]. While plaintiff may disagree with
the aggressiveness of treatment provided to him, an inmate cannot base an ADA claim
on medical treatment decisions. See Burger v. Bloomberg, 418 F.3d 882 (8th Cir.
2005) (medical treatment decisions not a basis for ADA claims); Simmons v. Navajo
County, 609 F.3d 1011, 1022 (9th Cir. 2010) (“The ADA prohibits discrimination
because of a disability, not inadequate treatment for a disability.”). The evidence fails
to support plaintiff’s claim of denial of adequate medical care.
Lastly, an allegation that plaintiff was denied his physician-prescribed medical
lay-in is not, by itself, sufficient to support an ADA claim. Plaintiff must provide
sufficient evidence that he was denied access to a service, program or activity at the

-14-

MDOC, which he has failed to do. See Redding v. Hanlon, 2008 WL 762078, *16 (D.
Minn. Mar. 19, 2008) (dismissed plaintiff’s ADA claim where plaintiff alleged that
defendants had denied him the single cell accommodation ordered by his doctor, not
that he had been denied access to any service or program). Accordingly, defendants
Lombardi and the MDOC are entitled to summary judgment on plaintiff’s ADA claim.
E.

Count V: Rehabilitation Act Claim Against MDOC and Lombardi

The analysis of a claim based on the Rehabilitation Act is the same as that in an
ADA claim, “except that the Rehabilitation Act includes as an additional element the
receipt of federal funds, which all states accept for their prisons.” See Jaros v. Illinois
Dept. of Corrections, 684 F.3d 667, 671-672 (7th Cir. 2012). Because there is
insufficient evidence to establish that plaintiff was denied access to a service, program
or activity, plaintiff’s Rehabilitation Act claim will also fail. Accordingly, defendants
Lombardi and the MDOC are entitled to summary judgment on plaintiff’s Rehabilitation
Act claim.
***
In summary, defendants have established that there are no genuine disputes
of material fact and that they are entitled to judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that the motion for summary judgment filed by
defendants Ronald Cowley, George Lombardi, and the Missouri Department of
Corrections [Doc. #124] is granted.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
defendants Charles Chastain and Corizon, Inc. [Doc. #127] is granted.

-15-

IT IS FURTHER ORDERED that the motion to bifurcate the issues for trial filed
by plaintiff [Doc. #138] is moot.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 11th day of September, 2013.

-16-