Adell v. Hepp et al
ORDER signed by Judge J.P. Stadtmueller on 2/14/2018: DENYING 62 Plaintiff's Motion for Reconsideration or an Extension of Time; DENYING 64 Plaintiff's Motion to Appoint Counsel; GRANTING 52 Defendants' Supplemental Motion fo r Summary Judgment; DISMISSING Plaintiff's claims under the Americans With Disabilities Act and the Rehabilitation Act; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Mark Anthony Adell at Wisconsin Secure Program Facility) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK ANTHONY ADELL,
WISCONSIN DEPARTMENT OF
CORRECTIONS and JON LITSCHER,
Case No. 17-CV-267-JPS
Plaintiff Mark Anthony Adell (“Adell”), a prisoner, brought this
action against Defendants, prison officials at Fox Lake Correctional
Institution (“FLCI”), the Wisconsin Department of Corrections (“DOC”),
and the DOC Secretary, Jon Litscher (“Litscher”), for their alleged failure to
properly treat and accommodate Adell’s needs arising from his chronic
ulcerative colitis. Specifically, Adell alleges that he was forced to drink
contaminated water while incarcerated in the restricted housing unit
(“RHU”) at FLCI between December 12, 2016, and January 24, 2017.
The Court allowed Adell to proceed on both constitutional claims
under 42 U.S.C. § 1983 and statutory claims under the Americans With
Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the Rehabilitation Act, 29
U.S.C. § 794. See (Docket #15). On November 1, 2017, Defendants filed a
motion for summary judgment that addressed the constitutional claims
only. (Docket #34). That motion was granted in an order dated December 7,
2017. (Docket #48). Because Defendants did not address the remaining
statutory claims, the Court permitted the parties a brief window in which
to file supplemental dispositive motions as to those claims. Id. at 19–20;
(Docket #50 at 2).
The remaining defendants, the DOC and Litscher,1 filed a
supplemental brief and statement of facts in support of their motion for
summary judgment, this time addressing Adell’s statutory claims, on
December 28, 2017. (Docket #52). Adell did not respond. On the state of the
record before the Court, and in light of Adell’s non-opposition to the
supplemental motion, it will be granted and the case will be dismissed.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that 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 Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). The court must not weigh the evidence presented
or determine credibility of witnesses; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688,
691 (7th Cir. 2010). The party opposing summary judgment “need not
match the movant witness for witness, nor persuade the court that [his] case
Because Litscher is joined only in his official capacity, all references to the
DOC herein should be understood to include Litscher.
Page 2 of 19
is convincing, [he] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
Adell’s Failure to Dispute the Material Facts
The relevant facts are undisputed because, as with the prior
summary judgment motion, Adell did not dispute them. Indeed, in this
instance, unlike last time, Adell simply refused to file anything at all in
response to Defendants’ motion. With respect to the first motion for
summary judgment, the Court explained in some detail why Adell’s noncompliance with the applicable procedural rules could not be forgiven.
(Docket #48 at 2–4). The Court will largely repeat that discussion here to
ensure the completeness of the record, adding to it where appropriate to
catalog Adell’s continued flouting of the Court’s procedural rules and his
obligations as a litigant.
In the Court’s scheduling order, issued on May 10, 2017, Adell was
warned about the requirements for opposing a motion for summary
judgment. (Docket #18 at 3). Accompanying that order were copies of
Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which
describe in detail the form and contents of a proper summary judgment
submission. Most relevant here is Local Rule 56(b)(2), which obligates the
non-movant to file “a concise response to the moving party’s statement of
facts that must contain a reproduction of each numbered paragraph in the
moving party’s statement of facts followed by a response to each
paragraph, including, in the case of any disagreement, specific references
to the affidavits, declarations, parts of the record, and other supporting
materials relied upon[.]” Civ. L. R. 56(b)(2)(B)(i).
Page 3 of 19
On November 1, 2017, Defendants filed their first motion for
summary judgment. (Docket #34). In the motion, Defendants also warned
Adell about the requirements for his response as set forth in Federal and
Local Rules 56. Id. at 1–2. Defendants provided him with additional copies
of those Rules. See id. at 3–12. In connection with their motion, Defendants
filed a statement of material facts that complied with the applicable rules.
(Docket #35). In response, Adell submitted three documents, none of which
came close to properly responding to Defendants’ statement of facts. See
(Docket #43, #44, #45); (Docket #48 at 3–4).
The Court explained Adell’s failures in its recent decision on the first
motion for summary judgment. It observed that “[d]espite being twice
warned of the strictures of summary judgment procedure, Adell ignored
those rules by failing to properly dispute Defendants’ proffered facts with
citations to relevant, admissible evidence.” (Docket #48 at 4). As a
consequence, even in view of Adell’s pro se status, the Court found that it
would not excuse Adell’s non-compliance. Id. Instead, all of Defendants’
proffered facts were deemed admitted, and those undisputed facts
necessitated dismissal of Adell’s constitutional claims. Id.; Civ. L. R.
56(b)(4); Hill v. Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006).
The Court hoped that after so many warnings, Adell would not
repeat his error in the face of Defendants’ supplemental motion for
summary judgment. Unfortunately, it was not to be. First, after railing
unsuccessfully against the Court’s allowing Defendants to pursue another
dispositive motion, see (Docket #50, #56), Adell simply refused to accept
service of Defendants’ motion when prison officials at his new institution,
the Wisconsin Secure Program Facility (“WSPF”), attempted to give it to
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him on January 3, 2018. See (Docket #59 at 2). He shouted at the correctional
officer and used profanity. Id. at 2–3.
Adell complains that he was required to “verify” his mail before
receipt and, feeling that this was an unlawful request, refused to comply.
(Docket #62 at 2). In reality, prison records reveal that pursuant to DOC
policy, guards must open legal mail in the inmate’s presence. See (Docket
#60-1 at 8). The guard on January 3 asked Adell to confirm that he should
open Adell’s package from Defendants’ counsel, and he refused, angrily.
(Docket #60-2 at 2).
This is a case about FLCI’s compliance with the ADA and the
Rehabilitation Act. The Court refuses to become embroiled in Adell’s
sideline dispute about the propriety of mail delivery procedures at WSPF.
He knew well that Defendants were allowed to file a supplemental
dispositive motion on or before December 28, 2017. When, a few days after
that date, some legal mail arrived for him, it defies credulity that Adell did
not know what it was. To refuse to accept service of a motion is not only
egregious misconduct by any litigant, pro se or represented, it also cannot
conceivably be an excuse for later non-compliance with the Court’s orders.
Whatever Adell thought about the “verification” requirement, he was
under a duty to meet this Court’s deadlines. His juvenile behavior on
January 3 makes things all the worse for him, not better.2
Because he refused to accept his mail that day, Adell believed no
motion had been filed and asked the Court to proceed with trial in a motion
It is noteworthy that despite the voluminous filings and proceedings in
this and Adell’s related case, Adell v. Hepp, 17-CV-448-JPS (E.D. Wis.), this is the
very first time an issue with receipt of legal mail has arisen, casting further doubt
on the credibility of Adell’s representations.
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filed on January 9. (Docket #57). The Court denied the motion on January
12 and directed Adell to comply with the Court’s previously imposed
response deadline of January 18, 2018, which had been in place since the
Court’s disposition of the first summary judgment motion on December 7,
2017. (Docket #58). He did not. Instead, he filed yet another motion for
reconsideration, explaining the scuffle over the January 3 mail delivery and
complaining that January 18 was too soon for him to file anything. (Docket
#62 at 4).
The Court has taken great care to explain to Adell his obligations as
a litigant and his responsibility to timely respond appropriately when the
serious matter of summary judgment arises. He defied those instructions,
behaved inappropriately, and now expects additional time to rectify his
error. Although a pro se litigant’s filings are to be construed generously, the
Court is neither Adell’s lawyer nor his keeper. The Court will not extend
his response deadline, and in light of his conduct, Adell can hardly expect
sympathy. As the deadline to respond to Defendants’ motion has long since
passed, the Court will take as undisputed all the facts stated in Defendants’
supplemental statement of material facts. (Docket #53).3
For similar reasons, the Court will deny Adell’s motion requesting the
appointment of counsel, filed on January 24, 2018. (Docket #64). First, Adell has
requested the appointment of counsel several times before, and each time he failed
to present sufficient evidence supporting the request. See (Docket #20, #37). The
present motion does not cure that deficiency. The Court continues to believe that
Adell has the ability to competently litigate this case, when he chooses to do so.
The facts in this case are not complex, particularly those key facts Adell needed to
dispute in order to save his claims from dismissal, as will be seen below. Second,
and more importantly, Adell’s motion seeks the aid of counsel to respond to
Defendants’ supplemental dispositive motion, yet the request was filed after
Adell’s response deadline had already passed. Adell was fully able to understand
this deadline and no knowledge or skill of counsel could remedy his failure to
comply with it.
Page 6 of 19
Facts Material to Defendants’ Motion4
As detailed in the Court’s prior ruling, Adell complains that during
his confinement in the RHU at FLCI, he was not afforded clean drinking
water. Adell claims that he needs clean water at all times and in great
quantities because he suffers from ulcerative colitis. According to him, not
only will contaminated water aggravate his symptoms, he also needs water
to combine with powdered Gatorade mix to help alleviate his symptoms.
FLCI experienced some water quality issues that led to an agreement
in 2014 with the Wisconsin Department of Natural Resources (“DNR”) to
improve water quality. Nothing about that process ever involved a finding
that the water was unsafe for human consumption. The agreement was
terminated in December 2016 in light of FLCI’s successful efforts to improve
Between March 11, 2014 and January 24, 2017, Adell was housed at
FLCI. From December 12, 2016 to January 24, 2017, Adell was housed in the
RHU. When he was first taken to the RHU, a correctional officer attempted
to place him in a cell with another inmate. When Adell refused, he was
assigned to a single-person cell, which he occupied for the entire time he
was in the RHU. He was separately issued a conduct report for his
disobedience. On January 24, 2017, Adell was transferred to WSPF.
The facts recited herein come from the parties’ original and supplemental
factual briefing. See (Docket #35, #47, #53). As noted above, the Court directed
Defendants to file a second motion for summary judgment, see (Docket #48 at 19),
but instead they decided to supplement their existing filing with a new brief and
an additional statement of material, undisputed facts. Adell might well have
complained about importing facts from an earlier motion for consideration in
connection with this one, but his failure to respond to either motions’ statement of
facts means that the complaint is merely hypothetical.
Page 7 of 19
Elevated levels of manganese and iron were detected at FLCI
following testing in June 2016. Iron and manganese compounds are
common in Wisconsin groundwater and only affect its appearance and
taste, not its safety. The test results also showed that lead and copper levels
were well below EPA-mandated thresholds. On June 30, 2016, FLCI’s
warden sent a notice to all inmates and prison staff explaining that lead and
copper testing showed both to be within acceptable limits.
The DNR notified FLCI in a letter dated October 10, 2016 that the
elevated levels of iron and manganese were above aesthetic levels but did
not create a health risk. DNR required that FLCI post a notice to warn
inmates and staff about these elements. The notice explained that the water
remained safe to drink, although it might not look, smell, or taste very good.
It also stated that infants, young children, and those with liver disease were
at risk of health problems if they had prolonged exposure to high levels of
manganese in water. The notice said nothing about auto-immune diseases.
Abigail Cantor (“Cantor”), an engineer hired to help remediate
FLCI’s water quality problems, testified at her deposition in a related case
that some unknown event around October 31, 2016, perhaps in the prison’s
well or in the piping system, caused a disturbance in the water system
which released some additional iron into the water supply, discoloring it.
This may have formed the predicate for Adell’s first complaint of
contaminated water. On November 16, 2016, he filed an offender complaint,
alleging in part that “[t]he water here at FLCI is contaminated and the water
report itself confirms that people with the type of medical problems I have
(autoimmune) are at a high risk. . . . While at recreation the water is unsafe
as it pertains to my consumption.” (Docket #38-1 at 11–12). He asked to be
transferred to another institution. Id.
Page 8 of 19
The complaint was returned to Adell because it contained more than
one issue, in violation of DOC regulations. He was instructed to address his
medical issues to the health services manager and his issues with restroom
use, water quality, and requesting an institution transfer to the program
director. Adell failed to do so and the complaint was dismissed by the
inmate complaint examiner. Chris Krueger (“Krueger”), the deputy
warden, affirmed the dismissal.
Cantor testified that there has only been one notable lead release
event since she has monitored FLCI. That event occurred in December 2016,
and was caused during maintenance on the prison’s fire protection system,
which is connected to the municipal water system. Cantor theorizes that the
fire suppression contractor opened and closed the valves quickly during
testing, which likely resulted in the disturbance of accumulations, which in
turn caused discolored water. If discolored water is discovered at FLCI, the
facilities manager and water systems operator flush the system to get the
disturbed accumulation out, and they did so in January 2017.
Adell submitted another complaint on December 16, 2016, four days
after entering the RHU, stating that “[t]he water at FLCI is contaminated.
Advisory memos suggest that we allow the water to run in advance of
drinking it to allow contaminants to be flushed. But for the new plumbing
system installed at the seg building that is impossible. The system restricts
use of water to 4 pushes per hour. . .every cup of water contains small metal
flakes that settle at the bottom of the cup. There is no possible way to flush
the system because it will lock you out.” (Docket #38-2 at 7). Adell did not
request any remediation of this problem; he simply warned the prison that
he would seek money damages in a lawsuit. See id. at 8. This complaint was
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rejected as moot because Adell was transferred to WSPF before the
complaint was investigated. Krueger affirmed the rejection.
On December 22, 2016, a public notice was posted at FLCI
concerning the close-out of the DNR agreement earlier that month and the
most recent water test results, which demonstrated that lead and copper
levels were well below the established thresholds for compliance. The
notice warned that if the inmates wanted to further reduce their exposure
to lead and copper in the drinking water, they could run the faucet briefly
Adell submitted one other relevant complaint, on January 14, 2017.
The complaint states that the water in his toilet and sink “had a brown tinge
and sulfuric scent. Due to the water restrictions limited access to
water/toilet usage, I was unable to flush the system—doing so would cause
the water to lock me out of the system for one hour—only a few
flushes/water button pushes allowed.” (Docket #38-3 at 7). Adell asserted
that the water quality, coupled with the limitations in the water system, put
him at “an unreasonable risk due to my medical condition which is
autoimmune.” Id. at 7–8. He again demanded transfer to another
institution. Id. at 8. This complaint was rejected as moot because Adell had
already been transferred to WSPF. Krueger again affirmed the rejection.
Toilets in the RHU at FLCI operate via an electronic controller
system. This system was installed in the RHU in October 2016. After an
inmate presses the flush button for the toilet, the controller operates a water
valve for ten seconds and the toilet flushes. When a flush cycle is completed,
the inmate may initiate an additional flush. If an inmate attempts to flush
the toilet more than three times in approximately fifteen minutes or less, the
flushing system shuts down for approximately one hour, at which time the
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system will reset and continue working. This is to prevent inmates from
purposely overflowing their toilet. In an hour, an inmate could flush his
toilet approximately twelve times without the system locking him out.
The faucets in each RHU cell operate via the same system. Water
from the faucet is timed to run for about ten seconds before it shuts off. The
amount of water run from the faucet during each use varies between six
and eight ounces. If an inmate attempts to use the faucet button more than
three times in approximately fifteen minutes or less, the faucet button shuts
down for approximately one hour, at which time the system will reset and
continue working. This is to prevent inmates from purposely overflowing
their sink. In one hour, an inmate could run a hot or cold faucet button
about twelve times each without the system locking him out, for a total of
approximately 72–96 ounces of water per hour.
Upon intake at FLCI, inmates are given a copy of the inmate
handbook. The handbook notifies inmates that to initiate the process for an
accommodation under the ADA, they must contact the ADA coordinator
by completing a DOC-2530 Reasonable Modification/Accommodations
Sarah Feltes (“Feltes”) is the ADA coordinator at FLCI. She reviews
inmate ADA requests that are submitted on a DOC-2530 form. When an
inmate submits such a form, Feltes reads it to see what accommodation the
inmate is requesting. She will then consult with staff members from FLCI’s
Health Services Unit or Psychological Services Unit, as well as review
WICS, a DOC database program, to see if the inmate’s alleged disability is
documented. Finally, Feltes determines whether FLCI can meet the
inmate’s request or if it is an accommodation that needs to be reviewed by
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security personnel. Feltes may meet with the inmate if further explanation
or clarification is needed.
In Feltes’s capacity as the ADA coordinator, she has searched the
relevant DOC records and found that Adell has never submitted a DOC2530 form asking for an accommodation at FLCI. If Adell had used the more
common interview/information request form incorrectly as an ADA
information/interview request to Adell along with a blank DOC-2530 form
and directed him to complete the proper form. As far as DOC records show,
Adell never requested an accommodation at FLCI allowing him a single cell
or access to cleaner drinking water or toilet facilities while in the RHU.
Adell claims that the DOC denied him access to clean drinking water
in the RHU at FLCI, in violation of Title II of the ADA and the Rehabilitation
Act. He further asserts that the institution violated these statutes by failing
to either single-cell him in the RHU or transfer him to a different institution
with cleaner water. Both the ADA and the Rehabilitation Act apply to state
prisoners. Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374, 375 (7th Cir. 2000). The
Court will address each statute in turn.
Americans With Disabilities Act
The Court must dismiss the ADA claim without reaching its merits.
Whether the DOC has sovereign immunity against claims under the ADA
is an open question, except in instances in which the alleged ADA violation
is also a violation of a constitutional right, such as a right under the Eighth
Amendment. United States v. Georgia, 546 U.S. 151, 158–59 (2006); Jaros v. Ill.
Dep’t of Corr., 684 F.3d 667, 672 & n.5 (7th Cir. 2012). In Georgia, the Court
expressly declined to decide whether states are immune from suits for
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damages arising from conditions that violate the ADA but not the
Constitution. Georgia, 546 U.S. at 159. The Court has already determined
that Adell’s claims for constitutional violations were without merit. (Docket
#48). Thus, it is unlikely that Adell can continue to maintain an ADA claim.
This defect has, however, no real import in this case. The
Rehabilitation Act is “materially identical to and the model for the ADA
except that it is limited to programs that receive federal financial
assistance.” Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 483 (7th Cir. 1997);
Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). Because Wisconsin
receives federal funds for its prisons, this latter element is no impediment.
Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000). The relief under the ADA
and Rehabilitation Act is also coextensive. Jaros, 684 F.3d at 671. As a
practical matter, then, the Seventh Circuit has dismissed a state inmate’s
ADA claim when stated alongside a Rehabilitation Act claim without
addressing the issue of sovereign immunity because the inmate can have
but one recovery. See id. at 672. This Court will do the same.
This leaves Adell’s Rehabilitation Act claim. The Act provides, in
No otherwise qualified individual with a disability in the
United States. . .shall, solely by reason of her or his disability,
be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or
activity receiving Federal financial assistance.
29 U.S.C. § 794(a). “Otherwise qualified” means the plaintiff must show
that, were it not for his disability, he would have qualified for the benefit,
treatment, or program which he was denied. Grzan v. Charter Hosp. of Nw.
Ind., 104 F.3d 116, 120–21 (7th Cir. 1997). “Program or activity” is defined in
Page 13 of 19
the Act, in pertinent part, as the operation of a “department, agency, special
purpose district, or other instrumentality of a state or local government.”
29 U.S.C. § 297(b)(1)(A).
Adell’s Rehabilitation Act claim is premised on both intentional
discrimination and a failure to provide reasonable accommodations. Either
claim requires a showing that: (1) Adell is a qualified person; (2) with a
disability; and (3) the DOC denied him access to a program or activity solely
because of his disability. Jaros, 684 F.3d at 672; Reed v. Columbia St. Mary’s
Hosp., 236 F. Supp. 3d 1091, 1105 (E.D. Wis. 2017). With respect to Adell’s
intentional discrimination theory, the Seventh Circuit has yet to decide
whether discriminatory animus or deliberate indifference must be proven.
Strominger v. Brock, 582 F. App’x 508, 511 (7th Cir. 2014). The majority of
Circuits that have addressed the issue have adopted a deliberate
indifference standard. See Reed v. Illinois, 119 F. Supp. 3d 879, 885 (N.D. Ill.
2015). Deliberate indifference “requires both knowledge that a harm to a
federally protected right is substantially likely, and a failure to act upon that
likelihood.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001), as
amended on denial of reh’g (Oct. 11, 2001). Under either standard, however,
“[m]ere negligence is insufficient[.]” Strominger, 58 F. App’x at 512.
Adell’s alternative theory is that the DOC failed to make reasonable
accommodations for his condition by refusing to single-cell him in the RHU
and then refusing to transfer him to another prison. Failing to make
reasonable accommodations is tantamount to denying access to a covered
program. Alexander v. Choate, 469 U.S. 287, 300–01 (1985); Dadian v. Vill. of
Wilmette, 269 F.3d 831, 838 (7th Cir. 2001). In the prison context, whether
accommodations are reasonable must be judged “in light of the overall
institutional requirements,” including “[s]ecurity concerns, safety concerns,
Page 14 of 19
and administrative exigencies.” Love v. Westville Corr. Ctr., 103 F.3d 558, 561
(7th Cir. 1996); 28 C.F.R. § 35.130(h). Determining the reasonableness of a
particular accommodation is “highly fact-specific” and is decided on a caseby-case basis. Dadian, 269 F.3d at 838.
Adell’s Rehabilitation Act claim cannot proceed under either of his
proffered theories. First, the RHU’s water system exists to keep inmates
from purposefully overflowing their toilets or sinks. The system was not
put in place because of any animus against the disabled. Strominger, 592 F.
App’x at 511.
Even under the less-stringent deliberate indifference standard, the
claim fails. Adell complained in November 2016 and January 2017 that he
was at a high risk of harm from poor water quality because of his
autoimmune disease. Of course, he had no evidence of this, and nothing in
the notices distributed to inmates suggested that people like him were
especially vulnerable. Adell was instructed to pursue relief with the health
services staff, but failed to follow through.
His first complaint about the RHU water system in particular came
on December 16, 2016. He misstated the functioning of the system, claiming
it only allowed four water bursts per hour. Similarly, on January 14, 2017,
he claimed, incorrectly, that he could only get a few flushes of the toilet per
hour. Prison officials knew he was wrong. Further, because they had no
notice that the full water supply available to Adell in the RHU was
inadequate in light of his condition, it cannot be said that the prison knew
Adell’s health was in jeopardy and failed to act. See Duvall, 260 F.3d at 1139.
Thus, Adell’s intentional discrimination claim fails.
Similarly, the DOC did not deny Adell a reasonable accommodation
while he was housed in the RHU. His request for single-celling was in fact
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granted.5 And as to the institution transfer request, the undisputed facts
reveal that Adell never utilized the processes available to him for
requesting an accommodation, whether through the ADA coordinator or
the health services unit. He had a copy of the handbook that laid out his
options, but he never availed himself of the opportunity to seek a
cooperative resolution. Granted, Adell filed a few inmate grievances on the
matter, but this was not the proper way to request an accommodation
under the prison’s rules.
In ADA and Rehabilitation Act cases, the plaintiff must normally
request an accommodation before liability attaches. Jovanovic v In-SinkErator Div. of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000); Fleishman v.
Continental Cas. Co., 698 F.3d 598, 608 (7th Cir. 2012). This duty is “dictated
by common sense[,] lest a disabled employee keep his disability a secret and
sue later for failure to accommodate.” Beck v. Univ. of Wis. Bd. of Regents, 75
F.3d 1130, 1134 (7th Cir. 1996). The plaintiff’s request then triggers the
defendant’s obligation to make reasonable efforts to reach a mutually
agreeable and effective accommodation. Jovanovic, 201 F.3d at 899. As the
Seventh Circuit has explained:
[r]easonable accommodation under the ADA is a process, not
a one-off event. The process begins with the employee, who
has the initial duty to inform the employer of the disability.
See Sears, 417 F.3d at 803–04. Absent special circumstances,
like a severe cognitive disability or mental illness, see
Bultemeyer v. Ft. Wayne Cmty. Schs., 100 F.3d 1281, 1285–87 (7th
Adell complains that he received an unwarranted conduct report for
requesting single-celling, but this is immaterial to whether the accommodation
was made. Moreover, Adell’s refusal to accept a double cell as ordered by an
officer was a proper basis for a conduct report; if he wanted to receive singlecelling as an accommodation, he should have submitted an ADA accommodation
request, but he did not.
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Cir. 1996), the employee’s initial duty requires that he or she
“indicate to the employer that she has a disability and desires
an accommodation,” Sears, 417 F.3d at 803.
Cloe v. City of Indianapolis, 712 F.3d 1171,1178 (7th Cir. 2013), overruled on
other grounds, Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016). In this
case, Adell has not contended, nor could he credibly contend, that his
disability affected his powers of communication. There is no reason
justifying his non-compliance with the prison’s ADA procedures.
Further, it must be remembered that Adell submitted no evidence to
FLCI officials or this Court showing that he in fact needed any
accommodation for his ulcerative colitis. All the evidence suggests that
Adell had ample access to clean drinking water. He could flush his RHU
toilet approximately twelve times per hour. He could also run his faucet
twelve times each hour, for a total of 72–96 ounces of water. Even if he used
some flushes to run the water to clear it of visible particulate matter, he
easily had access to more than twenty ounces of water per hour. This
provided Adell a steady supply of drinking water for him to consume and
mix his Gatorade drinks. Adell has nothing, other than his own steadfast
belief, to support the notion that he needed special treatment in light of his
bowel condition. He cannot bootstrap a need for accommodation into
existence by the strength of his conviction.6
It is also worth noting that the Court determined in the first summary
judgment decision that the water at FLCI was safe. (Docket #48 at 10). The levels
of copper, lead, manganese, and iron in the water did not exceed any EPA health
standards in December 2016 or January 2017 when Adell was housed in the RHU.
Id. at 13. Moreover, Adell “proffered no evidence that he, in light of his medical
condition, had special water purity requirements that were more stringent than
the EPA dictated.” Id. at 17. That lack of evidence concerning Adell’s condition
continues to fatally undermine his claims.
Page 17 of 19
Because the evidence in the case establishes that Adell was not
subject to discrimination based on his disability and neither requested nor
needed an accommodation therefor, his Rehabilitation Act claims must be
Viewing the record evidence in the light most favorable to Adell,
there is insufficient evidence to raise triable issues of fact as to any of his
remaining claims. The record and the relevant authorities oblige the Court
to dismiss this case in its entirety.
IT IS ORDERED that Plaintiff’s January 17, 2018 motion for
reconsideration or an extension of time (Docket #62) be and the same is
IT IS FURTHER ORDERED that Plaintiff’s motion requesting the
appointment of counsel (Docket #64) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ supplemental motion
for summary judgment (Docket #52) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s claims under the
Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the
Rehabilitation Act, 29 U.S.C. § 794, be and the same are hereby
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Page 18 of 19
Dated at Milwaukee, Wisconsin, this 14th day of February, 2018.
BY THE COURT:
J. P. Stadtmueller
U.S. District Court
Page 19 of 19
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