Adell v. State of Wisconsin Department of Corrections, et al

Filing 37

ORDER signed by Judge J.P. Stadtmueller on 12/21/2017: GRANTING 23 Defendants' Motion for Summary Judgment 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,
Plaintiff,

v.

STATE OF WISCONSIN DEPARTMENT
OF CORRECTIONS and JON LITSCHER,

Case No. 17-CV-448-JPS

ORDER

Defendants.
Plaintiff Mark Anthony Adell (“Adell”), a prisoner, brings this action
against the Wisconsin Department of Corrections (“DOC”) and its
secretary, Jon Litscher (“Litscher”), for their alleged failure to properly
accommodate his needs arising from his chronic ulcerative colitis.1
Specifically, Adell alleges that he was denied the use of toilet facilities
during recreation time while incarcerated at Fox Lake Correctional
Institution (“FLCI”). The Court allowed Adell to proceed on claims of
intentional discrimination and failure to accommodate under the
Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the
Rehabilitation Act, 29 U.S.C. § 794. See (Docket #13). Defendants filed a
motion for summary judgment on November 1, 2017. (Docket #23). The
motion is fully briefed and, for the reasons stated below, it will be granted.
1.

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

Because Litscher is joined only in his official capacity, all references to the
DOC herein should be understood to include Litscher.
1

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
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).
2.

RELEVANT FACTS
2.1

Adell’s Failure to Dispute the Material Facts

The relevant facts are undisputed because Adell did not properly
dispute them. In the Court’s scheduling order, entered May 24, 2017, Adell
was warned about the requirements for opposing a motion for summary
judgment. (Docket #17 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 on summary judgment to file “a concise response to the
moving party’s statement of facts that must contain a reproduction of each
Page 2 of 20

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).
Next, on November 1, 2017, Defendants filed their motion for
summary judgment. (Docket #23). 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. He was provided with additional copies of those
Rules along with Defendants’ motion. See id. at 3–12. In connection with
their motion, Defendants filed a supporting statement of material facts that
complied with the applicable procedural rules. (Docket #25). It contained
short, numbered paragraphs concisely stating those facts which Defendants
proposed to be beyond dispute, with supporting citations to the attached
evidentiary materials. See id.
In response, Adell submitted four documents, none of which
respond to Defendants’ statement of facts in compliance with the Federal
and Local Rules. The first is his brief in opposition to Defendants’ motion.
(Docket #31). It contains a lengthy prose recitation of his version of the
relevant events, but it neglects to specifically address the numbered
paragraphs set forth in Defendants’ statement of facts. Attached to the brief
are nearly 100 pages of exhibits, including medical records and inmate
grievances. See (Docket #31-1). Similarly, Adell’s other submissions, which
include two of his affidavits and his own proposed findings of fact, provide
few citations to actual evidence (the proposed findings of fact cite evidence
only twice in eighteen numbered paragraphs), and they do not address
Defendant’s statement of facts in any fashion. (Docket #32, #33, #34).

Page 3 of 20

Despite 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.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required
to liberally construe a pro se plaintiff’s filings, it cannot act as his lawyer,
and it cannot delve through the record to find favorable evidence for him.
See Waldridge, 24 F.3d at 922; Herman v. City of Chicago, 870 F.2d 400, 404 (7th
Cir. 1989) (“A district court need not scour the record to make the case of a
party who does nothing.”). Further, while the Court is cognizant that Adell
lacks legal training, his utter failure to comply with the rules of procedure
is not excusable on that ground alone. Thus, the Court will, unless
otherwise stated, deem Defendants’ facts undisputed for purposes of
deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ.
L. R. 56(b)(4); Hill v. Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting
that district courts have discretion to enforce procedural rules against pro se
litigants).
2.2

Facts Material to Defendants’ Motion

Adell has chronic ulcerative colitis as a complication of Crohn’s
disease. According to him, this condition means that he has to use the
restroom often and that the need to do so arises urgently and without
warning.
From March 11, 2014 until January 24, 2017, Adell was housed at
FLCI. The prison has a general population recreation area and recreation
building which are located close to the housing units. The recreation
building contains a gymnasium with basketball courts, handball courts, a
music room, and a weight room. There are also several baseball fields and
basketball courts in the outdoor general population recreation area. In
Page 4 of 20

addition to the general population recreation area and building, each
housing unit has a “passive recreation area,” which is a concrete area with
a basketball hoop.
The recreation schedule is posted in all housing units. Each unit is
eligible to participate in two one-hour recreation periods per day at the
general population recreation building. When inmates report to recreation,
they are required to stay in the recreation area until the end of the period or
leave halfway through, i.e., after thirty minutes. FLCI implemented the
“halftime” rule so inmates who wish to may leave recreation early because
they are finished with their exercise, or to go to the bathroom, or for medical
issues. Inmates participating in recreation are expected to wait until
“halftime” to return to their unit so the patrol staff can monitor their
movement. Exceptions are made for visits, scheduled appointments,
medical emergencies, or with staff permission. These rules are contained in
the inmate handbook.
There is generally one officer monitoring the recreation area on first
shift and two or more on second shift, along with non-security staff
members called recreation leaders. Depending on the number of inmates at
recreation and the availability of staff, another officer may assist in
monitoring the recreation activities. The officer is either located at the
officer’s desk, which is located near the entrance of the recreation building
where inmates sign in, or the officer walks around the recreation building
and area monitoring the inmates’ activities.
There is one bathroom located inside the recreation building near the
officer’s desk. The bathroom has a shower area, one bathroom stall, and two
urinals. When entering the bathroom there is a divider wall approximately
eight to ten feet long. After nine or ten steps into the bathroom, there is an
Page 5 of 20

open shower area to the left and, to the right, there is a bathroom stall and
two urinals.
Based on the layout of the bathroom, it is difficult for staff to
effectively monitor inmates who are inside. Consequently, prison officials
discovered that inmates had been gathering in the bathroom and engaging
in disruptive, threatening, and violent conduct such as gang activity, fights,
contraband exchanges, and sexual activity. The security director, along
with

the

recreation

department

supervisor,

therefore

made

the

recommendation to the warden to discontinue the inmates’ access to the
recreation bathroom. The warden agreed.
On November 20, 2007, the security director and the corrections
program supervisor sent a memorandum to all inmates and staff to notify
them that inmates would not be allowed to use the bathroom facilities in
the recreation building anymore. The memo noted that “[i]n the event an
inmate does need to use a bathroom after he arrives at rec, he will be sent
back to his housing unit, and the recreation staff will notify the unit staff
that he is on the way back to the housing unit. The inmate will not be
allowed to return to recreation during that period.” (Docket #25 ¶ 34). The
memorandum also stated that “[i]nmates who have medical needs that may
require use of the bathroom will be provided appropriate accommodation
on an as-needed basis. Prior medical verification will be required in these
cases.” Id. ¶ 35. An updated memorandum verifying this protocol was sent
to all inmates and staff on September 22, 2016.
Adell transferred to FLCI on March 11, 2014. Throughout his stay at
FLCI, Adell had several stints in restrictive housing units, which are
generally used to house inmates who violate institution rules or pose a
heightened security risk. Inmates housed in restrictive housing are not
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eligible to go to recreation in the general population area but must use the
recreation facilities in their unit. Pertinent here is Adell’s final run in
restrictive housing, which occurred from December 12, 2016 until January
24, 2017. On January 24, 2017, Adell was transferred from FLCI to another
state prison, the Wisconsin Secure Program Facility (“WSPF”).
Upon intake to FLCI, inmates are given a copy of the FLCI Inmate
Handbook and Resource Guide. 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 Request form. The ADA coordinator makes
a determination as to the appropriateness of the requested accommodation
to ensure that services and activities, such as recreation, are accessible to
inmates with disabilities. At FLCI, Sarah Feltes (“Feltes”) is the ADA
coordinator.
When an inmate submits a DOC-2530 form, Feltes reads it to
determine what accommodation the inmate is requesting. She then consults
with staff from FLCI’s health services unit or psychological services unit
and reviews WICS, the Corrections database program, to see if the inmate’s
alleged disability is documented. If the accommodation is for a disability
that has already been verified—for example, an inmate asking for a sign
language interpreter who has a documented hearing loss—then Feltes
decides if FLCI has the capability to accommodate it, or if the
accommodation will need to be reviewed by security. Feltes may meet with
the inmate if she needs further explanation or clarification.
Adell never submitted a DOC-2530 form to request toilet access in
the

recreation

building.

Nor

did

Adell

submit

an

informal

interview/information request to the ADA coordinator regarding the toilet
Page 7 of 20

accommodation. If Adell had used an interview/information request as an
ADA accommodation request form, Feltes would have returned the request
to him along with a blank DOC-2530 form to complete.
FLCI also has a Special Needs Committee (the “Committee”)
through the institution’s health services unit for inmates who need a special
accommodation for the management of a medical condition. The purpose
of the Committee is to determine whether an inmate requires a medical
restriction or special need based upon medical necessity. The Committee is
comprised of a staff representative from health services, a staff
representative from security, and a non-security staff representative.
Adell never submitted any requests to health services or the
Committee to use the recreation building bathroom as a special need
accommodation for the management of his ulcerative colitis. Nor did Adell
ever speak to his treating clinicians about a special need to use the
recreation building bathroom.
In an inmate grievance dated November 18, 2016, Adell complained
about several issues, including the water quality at FLCI and the recreation
bathroom prohibition. He requested, among other things, that he be
immediately transferred to a different institution. The inmate complaint
examiner returned the grievance because it violated DOC rules by raising
multiple issues at once. See Wis. Adm. Code § DOC 310.09(1)(e). The
examiner also instructed Adell to first attempt to resolve his issues by
contacting the health services manager and the corrections program
director before seeking intervention through the grievance process. Adell
did not contact either person but simply tried to resubmit the grievance on
November 28, 2016. The examiner therefore recommended dismissal of the

Page 8 of 20

grievance, and the reviewing authority adopted that disposition on
December 1, 2016.
Adell filed another grievance on December 5, 2016. In it, Adell raised
the issue about his access to the recreation building bathroom and again
sought a transfer to a different institution. The next day, the examiner
returned the complaint to Adell with instructions to attempt resolution of
the issue by contacting the corrections program director and the health
services unit manager. Adell again refused to cooperate with the examiner’s
directions and refiled the complaint on December 7. On December 9, the
examiner recommended dismissal of the complaint due to Adell’s refusal
to cooperate. The reviewing authority dismissed the complaint on
December 15, 2016.
Adell’s only other grievance relevant to the claims in this case was
submitted on February 20, 2017, nearly a month after he was transferred to
WSPF. In this grievance, he says he was denied recreation at FLCI because
of a policy prohibiting inmates from using the recreation bathroom. The
complaint was rejected because it was not filed within fourteen days of the
complained-of incident, as required under Wis. Adm. Code § DOC
310.09(6).
3.

ANALYSIS
Adell claims that the DOC denied him access to the toilet facilities in

the recreation building during indoor recreation and music recreation as an
accommodation for his ulcerative colitis, in violation of Title II of the ADA
and the Rehabilitation Act.2 Both the ADA and the Rehabilitation Act

In his brief, Adell freely intermingles the standards applicable to a
conditions-of-confinement claim under the Eighth Amendment with his ADA and
2

Page 9 of 20

generally protect 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.
3.1

Americans With Disabilities Act

At the outset, the Court must set the ADA claim to the side. 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
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 allegations did not state a claim for constitutional violations of
the Eighth and Fourteenth Amendments. (Docket #13 at 3 n.2). Thus, it is
unlikely that Adell can continue to maintain an ADA claim.
This defect has, however, no practical 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
to Adell’s claims. 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

Rehabilitation Act claims, but the Court did not allow him to proceed on a
constitutional claim. See (Docket #31 at 7–8); (Docket #13 at 3 n.2).

Page 10 of 20

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.
3.2

Rehabilitation Act

This leaves Adell’s Rehabilitation Act claim to consider. The Act
provides, in relevant part:
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
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).3 With respect to Adell’s
intentional discrimination theory, the Seventh Circuit has yet to decide
whether discriminatory animus or deliberate indifference must be proven.

Defendants concede for purposes of this motion that Adell has a disability
that relates to his ulcerative colitis. (Docket #29 at 12).
3

Page 11 of 20

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. County 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 to the recreation bathroom ban on his behalf. Refusing to
make reasonable accommodations, including making changes to applicable
rules or policies when necessary, 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). Thus, a defendant can
violate the Act by refusing to modify a rule that disproportionately impacts
the access of disabled people to a program where necessary to ensure their
equal access to the program’s benefits. See Washington v. Ind. High Sch.
Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999); Wis. Cmty. Servs., Inc. v.
City of Milwaukee, 465 F.3d 737, 747 (7th Cir. 2006). In the prison context,
whether accommodations are reasonable must be judged “in light of the
overall institutional requirements,” including “[s]ecurity concerns, safety
concerns, 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 case-by-case basis. Dadian, 269 F.3d at 838.
Adell’s Rehabilitation Act claim cannot proceed under either of his
proffered theories. First, the DOC did not deny Adell access to recreation
Page 12 of 20

because of his disability; he was allowed to attend when he was eligible—
that is, not in restrictive housing. More to the point, the recreation bathroom
prohibition was not put in place to discriminate against individuals with
disabilities or prevent them from accessing recreation programs. Rather, it
was created because the bathroom was difficult to effectively monitor and
inmates were engaging in illegal activities while inside.
After the warden approved the decision, the security director and
program director issued a memorandum to all staff and inmates providing
notice of the recreation building bathroom closure. The memo specifically
carved out an exception for inmates who have medical needs that may
require immediate use of the bathroom. The security director notified the
inmates in the memoranda that they would need to provide medical
verification of their need for the accommodation to use the recreation
building bathroom.
As a result, the record confirms that the restriction on the recreation
building bathroom 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, Adell does not contest that he never
notified the DOC prior to November 2016 that he wished to attend
recreation but could not without an exception to the bathroom ban.
Consequently, it cannot be said that the prison knew Adell’s rights were in
jeopardy and failed to act. See Duvall, 260 F.3d at 1139. At worst—and this
is a generous stretch, to be sure—Adell might be able to show that the DOC
was negligent in failing to realize that needed an accommodation, but this
is not enough. Strominger, 58 F. App’x at 512. Thus, Adell’s intentional
discrimination claim fails.

Page 13 of 20

Similarly, the DOC did not deny Adell a reasonable accommodation
to access recreation. The undisputed facts reveal that Adell never utilized
the processes available to him for requesting such an accommodation,
whether through the ADA coordinator or the health services unit. A couple
of months before his transfer to WSPF, Adell filed a few inmate grievances
on the matter, demanding to be transferred to a different institution, but
then failed to cooperate in the grievance resolution process. Had Adell
followed the directions from the complaint examiner, his request for
accommodation would have been routed to the appropriate individuals
who could help him. In short, Adell never asked the DOC for a reasonable
accommodation regarding the bathroom, and thus he never gave prison
officials the opportunity to make one.
It is also notable that once the DOC did receive notice of Adell’s
bathroom issues, Adell was no longer “otherwise qualified” to receive an
accommodation. A person with a disability must be “otherwise qualified”
for the activity he seeks to join. See Mallett v. Wis. Div. of Vocational Rehab.,
130 F.3d 1245, 1257 (7th Cir. 1997). “An otherwise qualified person is one
who is able to meet all of a program’s requirements in spite of his
handicap.” Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). Before his inmate
grievance of November 18, 2016, no one knew that Adell had any issue
related to the recreation building bathroom. Beginning on December 12,
when Adell was placed in restrictive housing, he was no longer eligible to
participate in general population recreation or music recreation pursuant
to separate prison policies which he does not challenge here. He remained
in restricted housing until his transfer to WSPF on January 24, 2017. Thus,
Adell took himself out of the Rehabilitation Act’s protections for much of

Page 14 of 20

the short period during which the DOC was notified of his need for an
accommodation.
Adell’s response to the evidence is that he was never told he could
request an accommodation, and that prison staff made indications to him
that no exception to the bathroom ban would be entertained. First, he claims
that during an inmate orientation in March 2014, he was told by members
of the FLCI recreation staff and other inmates that bathroom access was
strictly prohibited during recreation time, without exception. (Docket #31
at 1). He was advised to “plan ahead.” (Docket #32 at 1). Additionally, says
Adell, Bruce Siedschlag (“Siedschlag”), the FLCI program supervisor, told
him during an in-person meeting in April 2015 that the policy was a total
bathroom ban during recreation. (Docket #31 at 2). Adell also points to
allegedly contradictory and discriminatory application of the rule,
inasmuch as inmates who worked at the FLCI recreation facility were
allowed to use the restroom there but he was not. Id. at 12.
Adell contends that the “great distance” between the recreation
building and the housing units meant that if he had to traverse the distance
upon feeling the urge to use the bathroom, he would invariably soil himself.
Id. at 13. He never attended recreation as a result of this worry. (Docket #32
at 3). However, other than his generalized fear of this happening, he does
not point to a single instance when it actually occurred.
Adell denies that he was ever provided a copy of the September 2016
memo about the recreation bathroom or a copy of the inmate handbook, id.
at 2, although he admitted that he did receive such materials through his
failure to dispute Defendants’ statement of material facts, see supra Part 2.2.
In either event, Adell asserts that the inmate handbook was unhelpful to
him, as it did not explain that his ulcerative colitis constituted a qualifying
Page 15 of 20

disability for ADA purposes. (Docket #31 at 14). Because of this lack of
clarity, Adell did not conclude that he would be entitled to make a claim
for an accommodation. Adell represents that he did not discover his right
to demand an accommodation until late 2016 after doing legal research, and
thereafter filed inmate complaints on the issue. (Docket #31 at 2).
The thrust of Adell’s complaint in this case, then, is not necessarily
that he was denied an accommodation from November 2016 to January
2017, although he certainly takes issue with the denials of his inmate
grievances during that period, which he believes were done for purposes of
delay and obfuscation. Instead, his central point is that he suffered three
years at FLCI without recreation because no one told him he might be
eligible for an accommodation. (Docket #31 at 6). In other words, Adell
reads into the Act an obligation on the part of the DOC to undertake
“reasonable effort[s]” to notify him about the possibility of an
accommodation. Id. at 11–12. The prison’s failure to unilaterally offer Adell
an accommodation during recreation time is, to his mind, evidence of a
pattern of ongoing, intentional discrimination against him based on his
disability. Id. at 15–16.
Adell’s theory is replete with problems. First, his proffered facts
were not properly presented in accordance with the summary judgment
procedures that were twice explained to him. See (Docket #36). Second, even
if the Court accepted as true Adell’s version of events, it would make no
difference. Adell was told in the inmate handbook and September 2016
memo—which he admitted he received—the nature of the bathroom ban
and the availability of ADA accommodation request procedures.
Third, Adell’s lack of understanding of the ADA or the inmate
handbook did not actually hinder him from raising the issue of whether he
Page 16 of 20

could receive an accommodation. In ADA and Rehabilitation Act cases,
“the standard rule is that a plaintiff must normally request an
accommodation before liability. . .attaches.” Jovanovic v In-Sink-Erator Div.
of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000); E.E.O.C. v. Sears,
Roebuck & Co., 417 F.3d 789, 803–04 (7th Cir. 2005); 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
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).
Adell’s ulcerative colitis, while well known to the staff at FLCI, see
(Docket #31 at 4), did not hinder him from taking the first step to ask what
accommodations might be available for him. In this way, his case is less like
Bultemeyer, where the plaintiff suffered bipolar disorder and paranoid
schizophrenia, impairing his ability to even ask for an accommodation,
Bultemeyer, 100 F.3d at 1285, and is more like Preddie, where the Seventh

Page 17 of 20

Circuit held that the employer’s duty to accommodate was not triggered
simply because it knew the plaintiff was diabetic, Preddie v. Bartholomew
Consolidated Sch. Corp., 799 F.3d 806, 813 (7th Cir. 2015). The court noted that
“[a]lthough it is fair to assume that the [employer] was aware of Mr.
Preddie’s diabetic condition, there is no evidence to suggest that Mr.
Preddie ever requested an accommodation for this condition,” thus
dooming his later suit for failure to accommodate. Id. Adell’s condition had
no effect on his powers of communication—his lengthy history of inmate
grievances makes that plain—and so there is no reason to excuse his failure
to request an accommodation.
Moreover, even if one viewed Adell’s condition as obviously in need
of accommodation, see Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 976
(7th Cir. 2009), Adell concedes that he never attended recreation in nearly
three years at FLCI out of fear of soiling himself. If the key in these cases is
placing the defendant on notice that the plaintiff needs an accommodation,
Adell’s failure to ever engage in the activity for which he needed an
accommodation, or to ever indicate that he would engage in such activity if
he had an accommodation, means that the Court cannot fairly charge the
DOC with notice about Adell’s need for an accommodation with respect to
the recreation bathroom policy.
Nor can the Court say, on the state of the record before it, that Adell
was unable to request an accommodation because of vague “impression[s]”
given to him by the prison staff about the finality of the bathroom ban.
(Docket #31 at 14). Again, if Adell had a desire to use the recreation facilities
but felt he could not without an accommodation for his medical conditions,
it behooved him to initiate the process with a request for the same, even if
he felt it might result in summary denial. His situation is analogous to the
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exhaustion of remedies requirement for inmate lawsuits under 42 U.S.C. §
1997e. That requirement exists “to alert prison officials to perceived
problems and to enable them to take corrective action without first
incurring the hassle and expense of litigation.” Cannon v. Washington, 418
F.3d 714, 719 (7th Cir. 2005). As a result, prisoners are required to engage
the prison’s grievance, even if they feel it will be futile. Thornton v. Snyder,
428 F.3d 690, 694 (7th Cir. 2005). So too, here, the structure and purpose of
the disability statutes is to attach liability to a defendant only if it chooses
not to accommodate after a request for the same, or turns a blind eye to a
glaring need. Whether Adell believed that prison officials would rebuke
him does not matter; he never gave them a chance.
Finally, none of Adell’s evidence excuses his failure to participate in
good faith in the grievance process, if that could be construed as the
interactive negotiation envisioned by the Act to arrive at a reasonable
accommodation. See Beck, 75 F.3d at 1135. Adell says that the inmate
complaint examiner could have done more to advise him about the
possibility of an accommodation, see (Docket #31 at 2–3), but the handbook
was always there for him to read, as was the September 2016 memo
regarding the recreation facility bathroom. If Adell had difficulty
navigating the grievance review process, id. at 3, it was of his own making.
As noted in Beck:
[N]either party should be able to cause a breakdown in the
process for the purpose of either avoiding or inflicting
liability. Rather, courts should look for signs of failure to
participate in good faith or failure by one of the parties to
make reasonable efforts to help the other party determine
what specific accommodations are necessary. A party that
obstructs or delays the interactive process is not acting in
good faith. A party that fails to communicate, by way of
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initiation or response, may also be acting in bad faith. In
essence, courts should attempt to isolate the cause of the
breakdown and then assign responsibility.
Beck, 75 F.3d at 1135. Adell flouted the instructions of the complaint
examiner, and thus the collapse in the negotiation cannot be attributed to
the DOC.
Because the evidence in the case establishes that Adell was not
subject to discrimination based on his disability and never gave the DOC
the opportunity to grant him a reasonable accommodation, his
Rehabilitation Act claims must be dismissed.
4.

CONCLUSION
Viewing the record evidence in the light most favorable to Adell,

there is insufficient evidence to raise triable issues of fact as to either of his
claims. The record and the relevant authorities oblige the Court to dismiss
this case in its entirety.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #23) be and the same is hereby GRANTED;
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.
Dated at Milwaukee, Wisconsin, this 21st day of December, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Court

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