Banks v. Patton et al

Filing 199

ORDER signed by Judge Pamela Pepper on 2/22/2017 GRANTING 146 152 Defendants' motions for summary judgment. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TARENCE BANKS,
Plaintiff,
Case No. 14-cv-381-pp

v.
LESLIE PATTON, et al.,

Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 146, 152)
______________________________________________________________________________
Plaintiff Tarence Banks is representing himself.1 On May 27, 2014,
Judge Lynn Adelman screened the complaint under 28 U.S.C. §1915A. He
permitted the plaintiff to proceed on Fourteenth Amendment conditions of
confinement and deliberate indifference to a serious medical need claims
regarding the conditions at the Racine County Jail (RCJ) and the alleged failure
to treat his wound as directed; due process claims related to disciplinary
hearings which resulted in segregation stays2; and an excessive force claim
based on the allegation that defendant Koldeway shouldered the plaintiff,
causing injury. Dkt. No. 8 at 5. On December 30, 2014, the clerk of court
reassigned the case to this court. Almost nine months later, after the plaintiff

 The court recruited counsel to represent the plaintiff during an evidentiary
hearing to determine whether he had exhausted the available administrative
remedies prior to filing this lawsuit. Counsel’s representation of the plaintiff
was limited to that hearing. Dkt. No. 191.
2
 In response to the defendants’ motion for summary judgment, the plaintiff
agreed to waive his due process claims. Dkt. No. 173 at 8. This decision does
not address the due process claims for that reason.    
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sent the court a letter asking for clarification of Judge Adelman’s screening
order, dkt. no. 51, the court also allowed the plaintiff to proceed on claims
under the Americans with Disabilities Act (ADA) and the Rehabilitation Act
(RA). Dkt. No. 67 at 10.
On March 21, 2016, defendants Barker, Friend, Gonzales, Koldeway,
Ledezma, Moran, Noonan, Evans, Schmaling and Wearing (the RCJ
Defendants) filed a motion for summary judgment. Dkt. No. 146. That same
day, the remaining defendants—Coe, Gone, Mehring, and Patton (the Medical
Defendants)—also filed a motion for summary judgment. Dkt. No. 152. Once
the parties had fully briefed those motions, the court began to evaluate them.
The court noted that both sets of defendants had argued that the court should
dismiss the plaintiff’s case because he had failed to exhaust the available
administrative remedies before filing his lawsuit, as required by the Prison
Litigation Reform Act. On August 2, 2016, the court held an evidentiary
hearing to examine whether the defendants’ exhaustion arguments had merit.
As explained below, the court concludes that it must dismiss aspects of
the plaintiff’s conditions of confinement and ADA/RA claims, and his deliberate
indifference claims, because he failed to exhaust the available administrative
remedies with regard to those claims. The court also concludes that the RCJ
Defendants are entitled to summary judgment on the plaintiff’s remaining
claims.

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I.

FACTS3
The plaintiff has sued fourteen defendants. The plaintiff’s medical claims

are directed at four of the defendants (Coe, Patton, Mehring and Gone—the
Medical Defendants), who, during the relevant time, were employed by
Correctional Healthcare Companies to provide healthcare services to inmates at
RCJ. Dkt. No. 154 at ¶13. The plaintiff’s remaining claims are directed at one
or more RCJ officials (Schmaling, Koldeway, Noonan, Gonzales, Moran, Barker,
Friend, Evans, Wearing, and Ledezma—the RCJ defendants).
A.

The Plaintiff’s Allegations

The plaintiff is an amputee; he lost his arm one month prior to his
November 12, 2013 confinement at the RCJ. Dkt. No. 1 at 6; Dkt. No. 154 at
¶6. The plaintiff was housed in an intake cell for his first five days at RCJ. Dkt.
No. 1 at 6. According to the plaintiff, the cell was not handicap-accessible; it
did not have bed or wall rails. Id. As a result, the plaintiff alleges that he
urinated on himself several times because he could not make it out of bed to
the toilet. Id. The plaintiff pressed the cell’s emergency call button numerous
times for help, but never received a response. Id. Three days into his stay, the
plaintiff asked how long he had to remain in the cell, and defendant Evans said

The court takes the facts from the plaintiff’s sworn complaint (Dkt. No. 1),
“Proposed Findings of Fact of Defendants Leslie Patton, Bill Coe, and Dana
Mehring, and Nurse Practitioner Mahita Gone in Support of their Motion for
Summary Judgment” (Dkt. No. 154), “Proposed Findings of Fact” (Dkt. No.
147), “Response to Plaintiff’s Supplemental Proposed Findings of Fact” (Dkt.
No. 186), “Reply to Plaintiff’s Response to RCJ Defendants’ Proposed Findings
of Fact” (Dkt. No. 185), and “Medical Defendants’ Reply to Plaintiff’s Response
to Medical Defendants’ Proposed Findings of Fact” (Dkt. No. 182). Where the
plaintiff failed to dispute the defendants’ proposed facts, the court deems those
facts admitted for the purpose of deciding summary judgment. Civ. L. R.
56(b)(4).
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they hadn’t figured out where to put him yet. Id. The plaintiff told Evans that
he had urinated on himself. Id.
The plaintiff alleges that after five days in the intake cell, he was
transferred to “Med/Seg,” which also was not handicap-accessible. Id. The
plaintiff’s cellmate helped him with many tasks, such as putting on deodorant,
cleaning the cell, putting his clothes in the laundry bag and changing the
bandage on his back injury. Id. at 7. The cellmate, however, “charged” the
plaintiff with food from his meal tray in exchange for the help, so the plaintiff
“starved” at times. Id.; Dkt. No. 147 at ¶17.
The plaintiff states that his mobility during this time was very limited,
and he couldn’t walk more than a few feet. Dkt. No. 1 at 7. He states that he
needed a wheelchair for long distances. Id. The plaintiff’s cellmate also had to
help him get in and out of bed, and sometimes helped him get off of the toilet.
Id. When the plaintiff asked Evans where the handicap-accessible cells were,
Evans replied that they were on the other side of RCJ, but that “[defendant]
Patrick Noonan states you will never see that side!” Id. at 8.
The plaintiff states that he was on a shower restriction. Id. The RCJ
Defendants explain that the plaintiff’s doctor did not want him to get his
bandages wet. Dkt. No. 147 at ¶24. Once the doctor approved the plaintiff for
showers, the RCJ Defendants told him to use the dayroom shower, which is
available daily from 6:00 a.m. to 8:00 a.m. and from 8:00 p.m. and 10:00 p.m.
Dkt. No. 147 at ¶26. The plaintiff complained that the dayroom shower had no
handrails or bars, so the RCJ Defendants provided the plaintiff with a chair.

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Dkt. No. 1 at 8; Dkt. No. 147 at ¶27. The plaintiff states that he fell off the
chair staff gave him to use. Dkt. No. 1 at 8. After the plaintiff requested the use
of a handicap-accessible shower, the RCJ Defendants began to escort him
downstairs to use the intake shower, which had handrails. Dkt. No. 1 at 8;
Dkt. No. 147 at ¶28. A chair was placed in that shower at the plaintiff’s
request, but it was the same type of chair from which he had fallen when he
was upstairs. Dkt. No. 1 at 8; Dkt. No. 147 at ¶29. After about two months, the
plaintiff received a medical shower chair, but staff removed the handrails from
the chair, which the plaintiff says rendered it useless. Dkt. No. 1 at 9.
The plaintiff also states that he was not allowed to shower regularly. Id.
The RCJ Defendants explain that they offered him a shower at least three times
each week in the handicap accessible shower, and that he went, at most, five
days without a shower. Dkt. No. 1 at 9; Dkt. No. 147 at ¶30-31. They also
explain that the plaintiff often would refuse the opportunity to shower. Dkt. No.
147 at ¶31. The plaintiff states that he developed a rash as a result of the
infrequent showers. Dkt. No. 1 at 9.
The plaintiff also states in his complaint that an outside doctor ordered
that the plaintiff needed “wet to dry dressing change[s].” Id. He says the gauze
was supposed to be wetted, the wound wiped, and the wet gauze fitted into the
wound, but that this did not happen on a regular basis. Id. The Medical
Defendants disagree, stating that during the eighteen days in November 2013
that the plaintiff was at RCJ, medical staff changed his dressings at least

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fourteen times; and that during December 2013, they changed his dressing at
least twenty-two times. Dkt. No. 154 at ¶27-28.
The plaintiff alleges that as a result of the infrequent bandage changes,
he developed an infection in his arm and back, dkt. no. 1 at 9, but the Medical
Defendants maintain that the plaintiff’s arm and back were infected when he
arrived at RCJ, dkt. no. 154 at ¶15-16. Regardless of when the infection
developed, the plaintiff states that, when he asked defendant Patton, who had
been assigned to help him wash his arm and back, for assistance, she refused,
causing him to develop a rash (in addition to the infection) on his arm and
back. Dkt. No. 1 at 10. The plaintiff states that he was given a cream for the
rash, but that he couldn’t put it on, so he had to rely on his cellmate. Id.
Patton, on the other hand, states that on November 20, 2013, she notified
Gone that the plaintiff’s wound was draining, and that she cleaned the wound
and applied ointment with a bandage. Dkt. No. 154 at ¶29. Gone prescribed
antibiotics on November 20 and again on December 4, 2013, after Patton
reported that the wound was still draining. Id. at at ¶30.
On January 2, 2014, the plaintiff refused to let defendants Patton or Coe
look at or treat his arm and back. Dkt. No. 1 at 12; Dkt. No. 154 at ¶32. The
Medical Defendants state that they provided the plaintiff with bandages and
told him how to change the dressing himself. Dkt. No. 154 at ¶35. The plaintiff
states that, because of his refusal to let them change his bandages, he was
placed in intake and all of his personal belongings were removed. Dkt. No. 1 at

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12. He states that a few days later, he let them see the area, but they did not
provide any treatment. Id.
The plaintiff eventually told RCJ staff that he felt healthy enough to be
transferred to general population, so on January 13, 2014, RCJ staff
transferred him to a cell in a Level 3 maximum security pod (according to the
RCJ Defendants, the plaintiff was classified at the highest custody
classification because of his criminal history and past confinement). Dkt. No.
147 at ¶44, 49. The plaintiff’s new cell was not handicap-accessible. Dkt. No. 1
at 11; Dkt. No. 154 at ¶36. The RCJ Defendants explain that cells and dayroom
showers for Level 3 Maximum inmates do not contain grab rails for safety and
security reasons, including suicide concerns. Dkt. No. 147 at ¶46.
In the plaintiff’s new cell, the plaintiff did not have assistance from an
inmate. Dkt. No. 1 at 11. He had trouble opening the Ziploc food bag for meals,
and his food went flying to the floor. Id. After this happened numerous times
and the plaintiff wasn’t given replacement food, the RCJ staff began to give him
Styrofoam food trays. Id.; Dkt. No. 147 at ¶42. The plaintiff also had trouble
tying his laundry bag and making his bed. Dkt. No. 1 at 12; Dkt. No. 147 at
¶20, 22. The plaintiff asked defendant Wearing when he could be fitted for a
prosthetic arm, but Wearing responded only that RCJ would not pay for it. Dkt.
No. 1 at 11. The RCJ Defendants explain that no medical professional ever
prescribed a prosthetic for the plaintiff because his other (dominant) arm was
functioning. Dkt. No. 147 at ¶37.

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The plaintiff began to request that he be transferred to E-wing, which is a
low security dormitory portion of RCJ that is newer and has more handicap
accommodations, including shower grab rails. Id. at ¶50. RCJ denied the
plaintiff’s movement request for security reasons; however, it continued to let
him use the showers in that area. Id.
In February 2014, the plaintiff was placed in disciplinary segregation for
twenty-five days, during which time his mattress was removed from 8:00 a.m.
until 8:00 p.m. daily, pursuant to RCJ policy. Dkt. No. 1 at 10, 16; Dkt.
No. 147 at ¶39-40. He complained (it is unclear to whom) about the pain from
having to sit on concrete during the day, but was told (again, it is unclear by
whom) that he needed to pay $7.00 for Tylenol. Dkt. No. 1 at 10. The plaintiff
also inquired of defendants Patton, Coe, Wearing, Gonzales, Moran, Friend and
Barker about the removal of his medically-approved extra mattress, extra
blanket, and compression socks, but he received no response. Dkt. No. 1 at 10,
15, 16, 19. The RCJ Defendants explain that inmates in segregation are
allowed to retain hygiene items, including a blanket, and that, when the
plaintiff was in segregation, he was not prescribed an extra blanket or
compression socks. Dkt. No. 147 at ¶40-41.
At some unspecified point, while an officer (not a defendant) escorted the
plaintiff to his shower, defendant Koldeway was walking nearby. Dkt. No. 1 at
12. The plaintiff told the officer that Koldeway was the reason his bandages
weren’t getting changed. Id. At that point, the plaintiff alleges, Koldeway threw
his shoulder into the plaintiff and tried to knock him down. Id. The plaintiff

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states that the officer stopped the plaintiff from falling. Id. The plaintiff states
that he was taken to medical and prescribed antibiotic cream for an abrasion
and ibuprofen for pain. Id. at 13.
II.

DISCUSSION
A.

Exhausting Available Administrative Remedies

According to the PLRA, “No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. §1997e(a).
Various important policy goals give rise to the rule requiring administrative
exhaustion, including restricting frivolous claims, giving prison officials the
opportunity to address situations internally, giving the parties the opportunity
to develop the factual record, and reducing the scope of litigation. Smith v.
Zachary, 255 F.3d 446, 450-51 (7th Cir. 2001).
The RCJ Inmate Handbook provides that, when prisoners have a basis
for a grievance or complaint and informal resolution is not possible, a prisoner
should submit a written complaint to the jail administrator. Dkt. No. 147 at ¶3.
If a prisoner is dissatisfied with a response, he may submit an appeal in writing
to the jail administrator within fifteen days of receiving the response. Id. at ¶5.
If a court determines that an inmate failed to complete any step in the
exhaustion process prior to filing a lawsuit, the court must dismiss the
plaintiff’s complaint. Perez v. Wis. Dept. of Corrs., 182 F.3d 532, 535 (7th Cir.
1999) (“[A] suit filed by a prisoner before administrative remedies have been

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exhausted must be dismissed; the district court lacks discretion to resolve the
claim on the merits.”).
1.

The Parties’ Arguments

According to the RCJ Defendants, the plaintiff filed at least sixty inmate
grievances from November 12, 2013, until April 3, 2014 (the day he filed his
federal lawsuit). Dkt. No. 147 at ¶6. They state that the plaintiff did not appeal
any of his grievances. Id. at ¶7.
The court held the evidentiary hearing on August 2, 2016, to determine
whether the defendants could carry their burden and establish that the
plaintiff had not exhausted the available administrative remedies. At the
hearing, the plaintiff conceded that he had not appealed many of his
grievances, and testified that there were a couple of reasons for this.
First, the plaintiff testified that he did not receive responses to the
majority of his grievances. The plaintiff explained that Wearing was the only
RCJ Defendant who ever responded, and that he responded only to some, not
all, of the grievances the plaintiff addressed to him. The plaintiff did not know
how many responses he had received or when exactly he had received them,
but he said the first time he saw many of the responses in his jail file was after
he filed this lawsuit and he requested a copy of the file through discovery. In
short, the plaintiff argued that he could not appeal decisions or responses that
he never received.
Second, the plaintiff argued that he was unaware of the appeal process.
He explained that, when he arrived at RCJ, he was in bad physical shape. His

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arm recently had been amputated, and because of a bone graft (done in an
attempt to save his arm), he had long incisions on his arm, back and legs. He
said he could not get out of bed without significant assistance. At that time, the
pages of the RCJ Handbook explaining the grievance and appeal procedures
were posted on the dayroom windows. The plaintiff explained that he was
unable to leave his cell to get to the dayroom. The plaintiff argued that he could
not take advantage of an appeal procedure that he did not (and could not)
know about.
The RCJ Defendants responded that, even if the plaintiff was in bad
shape when he arrived at RCJ this time, he had been housed at RCJ at least
forty-five times since 1997. The handbook was available on the dayroom walls
on each of those occasions. In addition, they argued that the plaintiff’s mobility
issues resolved long before he filed his lawsuit, as evidenced through his
reassignment to general population and his lengthy disciplinary history while
at RCJ, which included physical altercations with other inmates.
The RCJ Defendants also argued that the plaintiff had filed multiple,
redundant complaints to various people. The RCJ Defendants contend that
they responded to every topic the plaintiff complained about (either in writing or
by giving the plaintiff what he requested), if not to every complaint. They argued
that it would have been a waste of time and resources to address each and
every complaint, because in many instances the topics of the redundant
complaints already had been addressed by the person best suited to respond.

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Finally, the RCJ Defendants explained that an inmate who desires to
appeal a decision on a complaint can do so by using the same form on which
he files a complaint. In explaining how a complaint can be distinguished from
an appeal of a complaint (given that they may be filed on the same form), the
RCJ Defendants stated that an inmate must make reference the
decision/response he is appealing. This requirement is not stated in the RCJ
Handbook.
2.

The Court’s Analysis

The parties agree that the plaintiff filed a lot of complaints during the five
months between his incarceration and the filing of his complaint. The sheer
number of complaints, many of which were redundant, coupled with RCJ’s
informal and disorganized filing system, made it difficult for the parties and the
court to track which complaints the RCJ staff responded to, which they
ignored, and which, if any, the plaintiff appealed. The difficulty in tracking the
complaints was further compounded by the plaintiff’s inconsistent and
imprecise recollection of which complaints he received responses to and when
he received them.
The RCJ Defendants’ argument that they have carried their burden
because none of the many complaints contained the word “appeal,” or
specifically reference a prior response, is too simplistic. Such an argument has
merit only if: (1) the RCJ Defendants responded to the complaints in the first
place so that there was something for the plaintiff to appeal; and (2) it was
clear to the plaintiff that he needed to include the word “appeal,” or specifically

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reference a prior response for his subsequent complaint, to identify something
as an appeal. Neither of those factors is as clear-cut as the RCJ Defendants
imply.
But the plaintiff’s argument that the administrative remedies were not
adequately communicated to him and therefore were not available is not
credible. Although the plaintiff had difficulty moving around when he first
arrived at RCJ in November 2013, it appears from the testimony that his
mobility returned months before he filed this lawsuit. Even if he was unable to
get to the dayroom to see the posted handbook initially, that situation did not
last long. In addition, the RCJ Defendants explained that the plaintiff had been
at RCJ numerous times before—so many, in fact, that the plaintiff couldn’t
even offer a precise number. Given that he had access to the RCJ Handbook on
those prior occasions, his argument that the policy was not communicated to
him doesn’t pass muster.
With regard to the evidence presented at the hearing, the RCJ
Defendants provided a “sample” of the complaints and responses they assert
were sent to the plaintiff; however, they did not perform the tedious task of
organizing all of the complaints by claim and showing whether, when, and how
the RCJ Defendants responded. Given that the plaintiff cannot appeal a
decision he never received, the RCJ Defendants needed to demonstrate that the
lack of an appeal was because of the plaintiff’s failure to avail himself of the
available administrative remedies, and not because the RCJ Defendants
effectively prevented him from doing so by never responding to him.

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The court reviewed the copies of the complaints and responses provided
by the plaintiff and the RCJ Defendants. Because the plaintiff testified that he
received many of the responses only after he had filed his lawsuit (i.e., months
after he had made the complaint), and because the RCJ Defendants did not
establish when or whether any of the responses were delivered to the plaintiff,
the court disregarded any response that was not dated or signed. In addition,
because the plaintiff testified that Captain Wearing was the only RCJ
Defendant to respond to his complaints, the court credited only those
responses that were signed and dated by Wearing. With these parameters in
mind, the court concludes the following:
a.

Shower Complaints

The plaintiff filed repeated complaints to multiple people about the
housing unit showers not being handicap-accessible and the fact that he had
to use the intake showers (which have grab rails) and was not allowed to
shower daily. See Dkt. No. 194, Ex. 1003A, BANKS 067, 071, 110, 112, 115;
Pl’s. Ex. 2, TB 002; Pl’s. Ex. 8, TB 008; Pl’s. Ex. 12, TB 0012. The first of the
complaints on these topics is dated December 13, 2013 (Id., at Ex. 1003A,
BANKS 067); the last of the complaints on these topics (prior to the plaintiff’s
lawsuit) is dated March 26, 2014 (Id. at Ex. 1003A, BANKS 115). On March 28,
2014, Wearing responded to the plaintiff’s complaint, explaining that the
posted shower times were only for the housing unit showers, but that the
intake shower that the plaintiff uses is available all day, every day. Id. Wearing

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also highlighted that the plaintiff had pointed out that he was entitled to a
shower three times per week versus a shower every three days. Id.
The defendants assert that the plaintiff did not appeal this response (they
assert generally that the plaintiff did not appeal any response). The plaintiff did
not rebut this assertion with evidence, and the court was not able to find any
complaint (let alone an appeal) filed between March 28, 2014, and April 3,
2014 (the date the plaintiff filed his complaint). The court concludes that the
plaintiff did not exhaust the available administrative remedies with regard to
his claims that: (1) the housing unit showers were not handicap-accessible; (2)
he had to use the intake showers; and (3) he was not able to take a shower
daily even though the inmates using the housing unit showers were given this
option. The court will dismiss these claims without prejudice.
b.

Medical Care Complaints

Although the Medical Defendants did not present evidence at the
evidentiary hearing, they argued in their motion for summary judgment that
only two of the many complaints the plaintiff filed can be said to relate to the
treatment of his arm wound: one he filed on February 7, 2014, and one he filed
the next day. Dkt. No. 153 at 13. The Medical Defendants assert that both
complaints were denied by a jail captain (Wearing) on February 12, 2014, and
that the plaintiff did not appeal that denial. Id.
A review of the complaints provided reveals that the plaintiff filed
complaints about the treatment of his arm on December 12, 2013 and
December 16, 2013. Dkt. No. 194, Pl’s. Ex. 4, TB 004; Ex. 1005, Dkt. No. 176-

15 

1 at 6. The court could find no responses to these complaints from anyone at
RCJ, although defendant Friend testified at the evidentiary hearing that
complaints about medical issues are generally forwarded to the medical staff.
The plaintiff filed similar complaints on February 6 and 7, 2014; these
complaints were directed to a different RCJ Defendant and they did not
reference his prior complaints or the lack of response to those complaints. Dkt.
No. 194, Ex. 1003A, BANKS 096. On February 12, 2014, Wearing responded to
the two February complaints, informing the plaintiff that he had spoken with
medical and that they had stated that they had showed the plaintiff how to
address his issues. Id. The court did not find any other complaints dealing with
issues related to the plaintiff’s medical care.
The Medical Defendants assert that the plaintiff did not appeal Wearing’s
February 12 response, and the plaintiff did not rebut this assertion with
evidence. The court was not able to find any complaint (or appeal) filed between
February 12, 2014, and April 3, 2014 (the date the plaintiff filed his complaint).
The court concludes that the plaintiff did not exhaust the available
administrative remedies with regard to his claim that the Medical Defendants
were deliberately indifferent to his serious medical needs, and the court will
dismiss this claim without prejudice.
c.

Excessive Force

On January 7, 2014, the plaintiff submitted a complaint stating that
Koldeway had “turn[ed] around and come at [him] real aggressive and threw his
body into [the plaintiff’s] body causing [him] to fall backward. C/O Pearson had

16 

to put his hand behind [the plaintiff] to stop [him] from falling, and use the
other hand to stop Deputy Kol[d]eway from coming at [him.]” Id., Ex. 1003A,
BANKS 254. On January 13, 2014, someone (the signature is unreadable)
responded, “The incident is being investigated . . . .” Id. The plaintiff testified at
the hearing that he did not receive any other response, and the RCJ
Defendants do not argue that they ever communicated the results of the
investigation or otherwise updated the plaintiff in response to his complaint.
The court concludes that this response was insufficient to trigger the
plaintiff’s obligation to appeal, because there was no decision to appeal. In
essence, the RCJ Defendants told the plaintiff that they were in the process of
making a decision on how to respond to his complaint, but never told him the
outcome. It would be unfair to prevent the plaintiff from pursuing his lawsuit
because he failed to appeal a decision he never received. Because the
administrative remedies were not available to the plaintiff with regard to this
particular claim, he may proceed with his excessive force claim.
d.

Handicap-Accessible Cell

Based on the parties’ submissions to the court, it appears that the
plaintiff complained about not being held in a handicap-accessible cell on
December 2, 8, and 17. See Id., Pl’s Ex. 2, TB 002; Ex. 8, TB 008; Ex. 1003A,
BANKS 070. An undated response to his December 17 grievance states, “You
are placed through classification. You are provided showers in Intake, in a
handicap accessible shower.” Id., Ex. 1003A, BANKS 070.

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On December 30, 2013, the plaintiff sent a complaint to the sheriff
repeating his request for an answer as to why he was not being housed in a
handicap-accessible cell. Id., Pl’s. Ex. 6, TB 006. There is no indication that the
sheriff responded to this complaint. On the same day, the plaintiff sent the
same complaint to Wearing. There is no indication that Wearing responded to
this complaint. The court could not find (and the parties did not identify) any
other requests or responses on this topic.
The court finds that, assuming the plaintiff received the response to his
December 17 complaint, he attempted to appeal this response by escalating the
complaint to the sheriff on December 30. Although the plaintiff did not
reference the response and although the plaintiff did not specifically use the
word “appeal” in his complaint, the court finds that, based on the lack of
specificity in the RCJ Handbook on the appeal process, the plaintiff’s attempt
to move his complaint up the ladder to a person with greater authority is
sufficient to satisfy the appeal requirement. Further, assuming the plaintiff did
not receive the undated response to his December 17 complaint, the court
finds that the plaintiff is relieved of his obligation to appeal because the RCJ
Defendants never provided the plaintiff with a response to appeal. The court
concludes that the plaintiff may proceed with his claims relating to him not
being moved to a handicap accessible cell.

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e.

The Removal of Medically-Approved Items while in
Segregation, the Use of a Food Tray, and the
Prosthetic Arm

The plaintiff alleges in his complaint that his medically-approved
property items—including an extra mattress, compression socks, and an extra
blanket—were taken from him while he was in disciplinary segregation for
twenty-five days. The plaintiff also complains that the single mattress he was
allowed was removed from his cell between 8:00 a.m. and 8:00 p.m., pursuant
to RCJ policy. The court reviewed the copies of the grievances submitted by the
parties and could not locate any grievance that the plaintiff submitted on this
topic. Because the plaintiff did not submit a grievance, he did not avail himself
of the available administrative remedies, and the court will dismiss these
claims.
The plaintiff also alleges that the RCJ Defendants refused to schedule an
appointment for him to be fitted for a prosthetic arm. The plaintiff complained
about this refusal on January 18, 2014. Id., Ex. 1003A, BANKS 089. Wearing
responded on January 30, 2014. Id. On February 27, 2014, the plaintiff wrote
to the sheriff to complain about the response he had received. Id., Ex. 1003A,
BANKS 108. The plaintiff’s attempt to escalate his complaint up the RCJ
hierarchy is sufficient to establish that the plaintiff exhausted his
administrative remedies on this claim. The plaintiff may proceed on this claim.
Finally, the plaintiff complained on January 19 and February 3, 2014,
that he was unable to open the Ziploc-bagged meals, and that RCJ staff
refused to provide him meals on a Styrofoam tray despite his requests. Id., Pl’s.

19 

Ex. 9, TB 009; Pl’s. Ex. 10, TB 010. The defendants state that they responded
to the plaintiff’s complaints by giving him what he asked for: his meals on a
Styrofoam tray. While this may be relevant to the determination of the merits of
the plaintiff’s claim, it is irrelevant to the determination of whether the plaintiff
exhausted his administrative remedies. In short, the RCJ Defendants did not
provide a written response to the plaintiff’s complaint. In failing to do so, the
RCJ Defendants effectively prevented the plaintiff from filing an appeal
(because there was nothing to appeal). The plaintiff may proceed with this
claim.
To summarize, the court will dismiss the following claims without
prejudice based on the plaintiff’s failure to exhaust the available administrative
remedies prior to filing his lawsuit: (1) the ADA/RA and conditions claims
relating to handicap-accessibility issues with the shower and the frequency
with which he was permitted to shower; (2) the deliberate indifference claims
against the Medical Defendants; (3) the conditions of confinement and
deliberate indifference claims relating to the removal of his medically-approved
property while he was in disciplinary segregation; and (4) the conditions of
confinement claim relating to the removal of his mattress during the day while
he was in disciplinary segregation.
Because the parties have fully briefed the merits of the remaining claims,
the court will proceed to determine whether, as a matter of law, the RCJ
Defendants are entitled to summary judgment on the following claims: (1) the
excessive force claim; (2) the ADA/RA and conditions of confinement claims

20 

relating to the handicap accessibility of the plaintiff’s cell and the presentation
of the plaintiff’s meals in Ziploc bags; and (3) the deliberate indifference claim
relating to the RCJ Defendants’ failure to schedule the plaintiff for an
appointment to fit a prosthetic arm.
B.

Summary Judgment Standard

“The court shall grant 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); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute
over “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be disputed or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information,
affidavits
or
declarations,
stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be

21 

admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
1.

Excessive Force

The Eighth Amendment to the United States Constitution prohibits cruel
and unusual punishments. Where prison officials are accused of using
excessive physical force in violation of the Cruel and Unusual Punishments
Clause, the “core judicial inquiry” is “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010) (quoting Hudson v.
McMillian, 503 U.S. 1, 7 (1992)). Several factors are relevant in making that
determination, including the need for the application of the force, the amount
of force applied, the threat an officer reasonably perceived, the effort made to
temper the severity of the force used, and the extent of the injury that force
caused to an inmate. Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004) (citing
DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 1999)).
A discernable injury is not required to sustain an Eighth Amendment
excessive force claim, for “[w]hen prison officials maliciously and sadistically
use force to cause harm, contemporary standards of decency always are
violated” and “[t]his is true whether or not significant injury is evident.”
Wilkins, 130 S. Ct. at 1178 (quoting Hudson, 503 U.S. at 9). However, not
“every malevolent touch by a prison guard gives rise to a federal cause of
action.” Id. (quoting Hudson, 503 U.S. at 9). An excessive force claim cannot be
predicated on a de minimis use of force. Fillmore, 358 F.3d at 504. “Thus, not

22 

every push or shove by a prison guard violates a prisoner’s constitutional
rights.” DeWalt, 224 F.3d at 620 (citing Hudson, 503 U.S. at 9). “Even if an
officer’s use of force serves no good-faith disciplinary purpose, the force may be
so ‘de minimus’ that it does not violate the Eighth Amendment.” Hendrickson v.
Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (citations omitted).
The plaintiff states that, after he pointed at Koldeway and made a
harmless comment, Koldeway “threw his shoulder into [him] trying to knock
[him] down.” Dkt. No. 1 at 12. The plaintiff stumbled backwards, but another
officer steadied the plaintiff and kept him from falling down.
Koldeway’s act of shoving or bumping into the plaintiff qualifies as the
kind of de minimus use of force that does not constitute cruel and unusual
punishment. See DeWalt, 224 F.3d at 620. The contact “was a single and
isolated act, unaccompanied by further uses of force.” Id. Further, although the
plaintiff states that he experienced pain in his wound, the shove does not
appear to have caused serious injury. Although the court “does not condone
the unjustified use of force by prison guards,” the plaintiff’s statements about
Koldeway’s use of force against him—even viewed in the light most favorable to
him—fall short of what is required to establish a claim for excessive force under
the Eighth Amendment. Accordingly, Koldeway is entitled to summary
judgment, and the court dismisses this claim.
2.

Conditions Claim Relating to the Plaintiff’s
Cells and Food.

As a pretrial detainee, the plaintiff’s claims arise under the Due Process
clause of the Fourteenth Amendment instead of the Eighth Amendment’s Cruel
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and Unusual Punishment clause, which applies to convicted prisoners.
Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). The
distinction is one without a difference here, because the claims are analyzed
under the same standard. Whiting v. Marathon Co. Sheriff’s Dept., 382 F.3d
700, 703 (7th Cir. 2004).
Prison conditions can be considered cruel and unusual punishment if
they are so severe that they deny an inmate “the minimal civilized measure of
life’s necessities.” Hudson v. McMillian, 503 U.S. 1, 20 (1992); Gillis v. Litscher,
468 F.3d 488, 491 (7th Cir. 2006). To state a claim that his constitutional
rights were violated, a plaintiff must show that: (1) the prison conditions were
serious enough to deny him of basic human needs; and (2) the officers acted
with a culpable state of mind, which at the minimum level, requires “deliberate
indifference.” McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1993).
The plaintiff explains that the RCJ Defendants housed him in cells that
did not contain bed rails or wall rails and that, as a result, he had difficulty
getting in and out of bed and using the toilet. The plaintiff also explains that he
had difficulty eating his meals because they were delivered in Ziploc bags
instead of on a tray. The RCJ Defendants do not dispute these allegations.
Instead, they argue that, even assuming the allegations are true, the plaintiff
has failed to establish a violation of the Constitution as a matter of law. The
court agrees.
The Court of Appeals for the Seventh Circuit has explained that
“[a]dequate food and facilities to wash and use the toilet are among the

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‘minimal civilized measure of life’s necessities.’” Jaros v. Illinois Dept. of
Corrections, 684 F.3d 667, 670 (7th Cir. 2012) (citations omitted). The court
has clarified, however, that to state a violation of the Constitution, a plaintiff
must allege that he was deprived of these things, not just that his use of, or
access to, them was difficult. Id. at 671.
The plaintiff has not alleged that he was deprived the use of a bed or
toilet; he alleges only that his use of them was more difficult because the cell
did not contain grab bars. Similarly, while the plaintiff had difficulty opening
the Ziploc bags of food—and on occasion, chose to give his food away in
exchange for help, or spilled his food on the ground and therefore didn’t eat it—
he does not allege that the missed meals endangered his health, or that the
RCJ Defendants denied him food. Because the facts the plaintiff alleged, even
viewed in the light most favorable to him, do not give rise to a constitutional
violation, the court will dismiss this claim.
3.

ADA/RA Claim Relating to the Plaintiff’s
Cells and Meals

To establish a violation of Title II of the ADA, “the plaintiff must prove
that he is a ‘qualified individual with a disability,’ that he was denied ‘the
benefits of the services, programs, or activities of a public entity’ or otherwise
subjected to discrimination by such an entity, and that the denial or
discrimination was ‘by reason of’ his disability.” Wagoner v. Lemmon, 778 F.3d
586, 592 (7th Cir. 2015) (quoting Love v. Westville Corr. Ctr., 103 F.3d 558,
560 (7th Cir. 1996)); see also 42 U.S.C. §12132. Analysis under the ADA and
the RA is essentially the same, except that the RA includes an additional
25 

element requiring that the entity denying access be a recipient of federal funds.
Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 671-72 (7th Cir. 2012). The
relief available to the plaintiff under each Act is coextensive. Id. at 672. The
RCJ Defendants have conceded that, for purposes of their summary judgment
motion, the minor differences between the ADA and RA are irrelevant. Dkt. No.
148 at 21. Thus, as one claim succeeds or fails, so does the other, and for
brevity, the court will refer only to the ADA going forward.
The court makes one final acknowledgment before discussing the merits
of the plaintiff’s claim: that is, “because the ADA addresses its rules to
employers, places of public accommodation, and other organizations, not to the
employees or managers of these organizations,” the proper defendant is RCJ.
Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000) (overruled on other
grounds). The plaintiff has sued the RCJ Defendants, including Sheriff
Christopher Schmaling, in both their official and individual capacities. Because
they are sued in their official capacities, each of those defendants stands in as
a proxy for RCJ. Id. None of them can be held personally liable on these claims.
Id. Further, this is the only official capacity claim that the plaintiff states. All
other claims are against the RCJ Defendants in their individual capacities only.
See Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991).
For the plaintiff to prevail on his ADA claim, he must establish that RCJ
denied him the benefits of services, programs, or activities and that they did so
because of his disability. Jaros, 684 F.3d at 672. Courts have held that access
to toilet facilities and meals is considered a program or activity within the

26 

meaning of the ADA. Id.; Phipps v. Sheriff of Cook Cnty., 681 F.Supp.2d 899,
916 (N.D. Ill. 2009). “Public entities, such as correctional facilities, must ‘take
reasonable measures to remove architectural and other barriers that deny
access to such services. Clemons v. Dart, Case No. 13-C-2356, 2016 WL
890697 at *4 (N.D. Ill. Mar. 9, 2016) (citations omitted).
The plaintiff explains that RCJ denied him the benefits of services and
programs because he was housed in cells that did not comply with ADA
structural requirements (i.e., there were no grab bars by the bed or toilet). He
states that on several occasions when no one was available to help him, he did
not make it to the toilet on time and urinated on himself.
The plaintiff does not state that once his leg healed from surgery and he
was able to move more easily that he continued to be unable to get in and out
of bed or on and off the toilet. In fact, the plaintiff’s many requests to be moved
to a “handicap accessible” cell in E-wing never explained why he needed the
grab bars; he simply argued that he was entitled to a “handicap accessible cell”
because he has only one arm.
The RCJ Defendants explain that the plaintiff made numerous requests
to be moved out of different housing units. Dkt. No. 148 at 23. For the first five
days, the plaintiff was housed in an intake cell while RCJ decided where to
place him. RCJ then moved him to “medical segregation” at the request of
medical staff. Id. Following the plaintiff’s requests to be moved out of medical
segregation, the RCJ Defendants moved him (with the medical staff’s approval)
to the maximum classification “General Population.” Id. At that point, the

27 

plaintiff began to request a move to the E-wing, which is a low security
dormitory portion of RCJ that has more “handicap” accommodations. Id. RCJ
denied these requests.
The court finds that the RCJ Defendants are entitled to summary
judgment because “there was no reasonable accommodation that would have
entitled the plaintiff to participate in the programs or services that he
complains about being excluded from.” See Crawford v. Indiana Dept. of
Corrections, 115 F.3d 481, 487 (7th Cir. 1997) (overruled on other grounds).
First, the plaintiff states that for the first five days he was at RCJ he
experienced extreme difficulty in getting out of bed and using the toilet. He
states that he needed help to do either, and urinated on himself several times
because he wasn’t able to get to the toilet in time. RCJ then moved the plaintiff
to medical segregation, where the plaintiff says he could only move a few feet at
time without help. He states he needed help getting out of bed and “sometimes”
he needed help moving off the toilet. Once the plaintiff healed from his
surgeries, he was moved to another cell in general population. The plaintiff
does not state that he needed help in and out of bed or on and off the toilet
once he was in general population.
The court finds that the plaintiff’s difficulties in getting out of bed4 and
getting to the toilet appear to have been a result of the fact that he was
recovering from surgery, and not a result of his disability. Once the plaintiff

 It is questionable whether having easy access to one’s bed is a “program” or
“activity,” but the court need not make that determination here. See Bryant v.
Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“But incarceration, which requires
the provision of a place to sleep, is not a “program” or “activity.” Sleeping in
one’s cell is not a “program” or “activity.”)
4

28 

healed from his surgery and moved to general population, he did not complain
about having difficulty getting in and out of bed or on and off the toilet. The
plaintiff really appears to be complaining that RCJ staff did not properly treat
him while he was recovering from surgery5, not that they were excluding him
from some prison service, program, or activity because of his disability. See
Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create
a remedy for medical malpractice.”)
Further, the RCJ Defendants are entitled to summary judgment on this
claim because they have shown that there was no reasonable accommodation
that would have enabled the plaintiff to be housed in a handicap-accessible
cell. The RCJ Defendants explain that RCJ has handicap-accessible cells only
in E-wing, which is a newer part of RCJ and is a low-security, dormitory-style
housing unit. The plaintiff initially was placed in medical segregation at the
advice of the medical staff, who wanted to make sure he healed properly from
his surgeries. They needed to locate him in a section of RCJ that was closely
monitored by medical staff to make sure the plaintiff was healing properly.
Once the plaintiff was approved to be released to general population, RCJ
determined, based on the plaintiff’s significant criminal and behavioral history,
that he should be classified at a Level 3 Maximum security classification. Dkt.
No. 148 at 23. The RCJ Defendants explain that to house the plaintiff in a lowsecurity portion of RCJ would have placed both other inmates and RCJ staff at
risk. Id. Further, the RCJ Defendants explain (and the plaintiff does not

 The court dismissed the plaintiff’s deliberate indifference claim against the
Medical Defendants based on his failure to exhaust the available administrative
remedies prior to filing his lawsuit.   
5

29 

dispute) that grab rails are not in maximum security cells for security reasons,
including suicide concerns. Id. at 24. To require RCJ to install grab rails in the
maximum security cells would have implicated security concerns. Id. The
Seventh Circuit Court of Appeals has indicated that security concerns “are
highly relevant to determining the feasibility of the accommodations that the
disabled prisoners need in order to have access to desired programs and
services.” Crawford, 115 F.3d at 487.
Finally, as discussed above, once in general population, it does not
appear that the plaintiff needed grab bars. The plaintiff’s only complaints were
that he had trouble tying his laundry bag, making his bed, and opening the
Ziploc bags containing his meals. First, the plaintiff does not state that he was
denied these “programs” or “services” (assuming they can be classified as
such), only that he struggled to perform these tasks and often had to ask
others for help. Second, moving the plaintiff to a handicap-accessible cell that
had grab rails would not have aided him in any of these tasks. Finally, at least
with regard to the plaintiff being able to access his meals, RCJ accommodated
the plaintiff’s request for assistance and began to deliver his food on a tray
instead of in Ziploc bags.6

6

 The plaintiff argues that it doesn’t matter if his food was delivered on a tray

because, at least initially, he was too weak to get out of bed to even reach it.
Once again, however, the plaintiff’s inability to access his food when he first
arrived at RCJ was due to his weakened state from surgery, not due to his
disability. The plaintiff does not allege that, once healed from the surgery, he
could not get to his food—only that he could not open the bags. The ADA
protects the disabled, not the sick or injured. See Bryant v. Madigan, 84 F.3d
at 249.  
30 

The plaintiff has failed to create a question of material fact on his
ADA/RA claims, and the RCJ Defendants are entitled to summary judgment as
a matter of law.
4.

Prosthetic Arm

The plaintiff argues that the RCJ Defendants were deliberately indifferent
to his serious medical needs because they failed to schedule him for an
appointment to be fitted for a prosthetic arm. The RCJ Defendants explain that
no medical professional at RCJ prescribed a prosthetic arm for the plaintiff and
that, to the contrary, the medical staff determined that a prosthetic arm was
not medically necessary because the plaintiff still had a functioning arm. The
plaintiff clarifies that he did not want RCJ to provide him with a prosthetic; he
wanted RCJ staff to transport him to an appointment to be fitted for a
prosthetic arm that his insurance would pay for. Wearing explained in
response to the plaintiff’s RCJ grievances that he would not schedule such an
appointment until he received confirmation from the plaintiff’s insurance
company that it would pay for the prosthetic. On March 5, 2014, Wearing
notified the plaintiff that he still had not received the pre-authorization from
his insurance company. Dkt. No. 149-1; Dkt. No. 194, Ex. 1003A at BANKS
108.
"Prison officials violate the Eighth [and Fourteenth] Amendment's
proscription against cruel and unusual punishment when their conduct
demonstrates 'deliberate indifference to serious medical needs of prisoners.'"

31 

Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997)7. This standard
contains both an objective element (i.e., that the medical needs be sufficiently
serious) and a subjective element (i.e., that the officials act with a sufficiently
culpable state of mind). Id.
As a matter of law, the plaintiff cannot establish either prong. First, the
RCJ Defendants have explained that the medical staff decided that the plaintiff
did not need a prosthetic arm because he still had the use of his dominant
arm. The plaintiff states that his outside doctor indicated that he would benefit
from a prosthetic, but this does not mean that one was medically necessary. In
any event, a disagreement over treatment does not constitute a claim under the
Constitution. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996). Because a
prosthetic arm was not medically necessary, the plaintiff cannot establish that
his lack of a prosthetic arm was an objectively serious medical condition.
Second, even assuming the plaintiff had established an objectively
serious medical condition, the court finds as a matter of law that the RCJ
Defendants were not deliberately indifferent to that condition. Wearing notified
the plaintiff that, because RCJ would not pay for the prosthetic arm, the
plaintiff needed confirmation from his insurance company that it would pay for
the prosthetic. This makes sense; the plaintiff is indigent. It would be a waste
of time and resources for RCJ to transport him to an appointment that he
could not pay for to be fitted for a prosthetic arm (which was not medically

7

 Again, because the plaintiff was a pretrial detainee, his claims arise under the

Fourteenth Amendment. The standard for medical care claims under the
Fourteenth and Eighth Amendments are the same. See Cavalieri v. Shepard,
321 F.3d 616, 620 (7th Cir. 2003).  
32 

necessary) that he could not pay for. Because the RCJ Defendants had been
told that the plaintiff did not need the prosthetic, there was no urgency in
scheduling an appointment, let alone scheduling one prior to the plaintiff
demonstrating that he could afford the associated costs. The RCJ Defendants
are entitled to summary judgment on this claim.
III.

CONCLUSION
The court ORDERS that the RCJ Defendants’ motion for summary

judgment (Dkt. No. 146) is GRANTED. The court further ORDERS that the
Medical Defendants’ motion for summary judgment (Dkt. No. 152) is
GRANTED. The Clerk of Court will enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must

33 

be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 22nd day of February, 2017.

34