Talley, Timothy v. Dittman, Michael et al
Filing
71
ORDER granting in part and denying in part 52 Motion for Summary Judgment; granting 60 Motion for receipt allowance of a "complete" copy set of all documents filed in this case; granting 70 Motion for Extension of Time. Defendan ts are directed to provide plaintiff with copies of docket nos. 1 to 48 . Defendants Melby and Doe are DISMISSED from the case. The schedule in this case is STRUCK and proceedings are STAYED pending recruitment of counsel for plaintiff. Signed by District Judge James D. Peterson on 10/23/2018. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TIMOTHY TALLEY,
Plaintiff,
v.
OPINION and ORDER
DAVID MELBY, KARL HOFFMAN, DALIA SULIENE,
HEALTH SERVICES UNIT MANAGER JANE DOE,
and CATHY A. JESS,1
14-cv-783-jdp
Defendants.
Plaintiff Timothy Talley, appearing pro se, is an inmate at Columbia Correctional
Institution (CCI). Even after undergoing spinal fusion surgery, he says that he suffers such
severe pain that he cannot walk without assistance. In this lawsuit, he alleges that prison staff
was deliberately indifferent to his severe pain and physical condition. He brings claims under
the Eighth Amendment and the Rehabilitation Act.
Defendants have filed a motion for summary judgment. I will grant that motion in part
and deny it in part. Some of Talley’s claims survive because the facts provided by the parties
raise complex issues concerning the adequacy of the treatment Talley received for his pain, and
the accommodations he received. I will recruit counsel to represent Talley at trial.
1
I will substitute Cathy Jess, the current secretary of the Wisconsin Department of Corrections,
as the defendant concerning Talley’s Rehabilitation Act claim.
PRELIMINARY MATTERS
A. Doe defendant
Talley brings claims against a previously unidentified “Jane Doe” defendant who worked
as the Health Services Unit manager. In his summary judgment opposition, Talley identifies
Nurse Karen Anderson as the CCI Health Services manager during the events in question.
Talley’s identification of Anderson is well past his deadline for doing so. Even if I were inclined
to allow such a late amendment to the complaint, I would not do so here because adding
Anderson would be futile; Talley fails to provide any evidence suggesting that Anderson had
the authority to countermand the treatment decisions of the defendant doctors at issue in this
case. So I will dismiss the Doe defendant from the case.
B. Talley’s legal materials
Talley has filed a motion asking the court for a copy of all of the documents that have
been filed in this case. Dkt. 60. He says that his legal materials, including his copies of his
medical records he had at the time, were taken during a prison lockdown in December 2017
and not returned, even after Talley made numerous inquiries. Defendants respond that there
is no record of Talley’s legal file being taken, and that he has not filed a formal internal
grievance about it. Any legal claims Talley might have for deprivation of his property do not
belong directly in this case. If he means to bring a claim about this deprivation, he will have to
file a new case after exhausting his administrative remedies.
But Talley’s right to access this court by prosecuting this lawsuit is a matter I can
consider. Defendants say that upon court order, they will provide Talley with copies of the
docket. I will direct defendants to provide copies of each court filing up to December 22, 2017,
the date of the alleged confiscation. Those are docket nos. 1 to 48.
2
But this alleged deprivation seems to have little bearing on the summary judgment
briefing; defendants provided the court and Talley with more than 300 pages of medical records
as part of its motion for summary judgment, and Talley does not point to specific information
that he would have provided in opposition but could not. I will address defendants’ summary
judgment motion without waiting for Talley to be provided with copies of previous docket
entries.
C. Defendants’ late responses to Talley’s proposed findings
Defendants have filed a motion to allow belated submission of their responses to
Talley’s proposed findings; counsel states that he inadvertently scheduled a longer internal
deadline for the submission, as if Talley had filed his own motion for summary judgment,
instead of a response opposing defendants’ motion. Dkt. 70, at 1. I will grant the motion,
although I note that defendants’ responses largely reiterate points made in their own proposed
findings and do not have a material effect on my rulings below.
UNDISPUTED FACTS
The following facts are drawn from the parties’ summary judgment materials and are
undisputed unless noted otherwise.
Timothy Talley in an inmate at Columbia Correctional Institution (CCI), located in
Portage, Wisconsin. Defendant Dalia Suliene was a physician at CCI from 2006 to April 5,
2013. Defendant Karl Hoffmann was a physician at CCI from February 12, 2014 to early
2015. Defendant David Melby was employed at CCI as a unit manager for most of 2013 and
2014.
3
On November 16, 2012, Talley had spinal fusion surgery at University of Wisconsin
Hospital and Clinics. He had been diagnosed with L5/S1 spondylolisthesis and L4/5 foraminal
stenosis causing radiculopathy, which means that he suffered compression of the nerves from
the narrowing of disc space in his spine. Talley says that the surgery failed, which I take to
mean that he continued to suffer severe pain after the surgery.
After surgery, Talley was discharged from UW Hospital and he returned to CCI on
November 19. The surgeon issued discharge orders, including orders for oxycodone, 20 mg
extended-release tablets, for ten days, and multiple daily doses of oxycodone, 5 mg tablets, at
doses of 5 to 20 mg concurrently for at least 13 days, with Talley being weaned off the drug
after that.2 Suliene initially prescribed Talley the 20 mg doses as recommended, but she did
not add the concurrent 5 mg doses. Rather, Suliene prescribed two weeks’ worth of 5 mg doses
following the 20-mg doses. The next day, Suliene changed Talley’s order of oxycodone to three
5 mg tablets, four times daily for five days, and then two 5 mg tablets four times daily as
needed, up to 30 tablets total. Suliene says she amended the order “to be more in line with the
recommendations as set forth in the UW discharge papers.” Dkt. 69, ¶ 14.
Suliene prescribed the other medications contained in the surgeon’s discharge orders:
gabapentin (a pain reliever), clonazepam (a muscle relaxant), and medications for constipation.
She also continued other medications that the surgeon ordered to continue, including
acetaminophen, tramadol, and lidocaine ointment for pain relief. Oxycodone and tramadol are
2
Talley’s medical record contains two versions of his “discharge medication list,” the one stated
above, and another including morphine instead of the extended-release oxycodone. Dkt. 59-1,
at 200–201. But Talley now appears to agree that he received oxycodone upon release from
the hospital, and his claims do not hinge on the precise type of narcotic pain medication he
was prescribed.
4
both narcotic medications. Narcotics, especially in the inmate population, are highly restricted
and are not given out freely because the risks for abuse and dependency are high. Suliene also
ordered Talley a front-wheeled walker to help him ambulate post-surgery and physical therapy.
Talley had four sessions with the physical therapist in addition to the initial evaluation
before refusing additional physical therapy treatment. Talley says he refused therapy because
he was in too much pain.
On November 29, 2012, Talley complained that his oxycodone order had ended.
See Dkt. 59-1, at 111. Medical staff told him to use his other pain medications.
On December 10, Suliene saw Talley, who complained of right thigh pain. Suliene
increased the dose of gabapentin due to Talley’s complaints of what appeared to be neurological
pain, and she told him to apply lidocaine topical ointment to his right thigh. Suliene placed a
request for Talley to have electromyography (EMG) testing on the thigh. A UW doctor stated
that Talley had “the classic findings of meralgia paresthetica,” nerve compression of the outer
thigh causing numbness and a burning or tingling sensation without associated muscle
weakness. Id. at 191. But UW did not have an EMG test that could confirm that diagnosis.
Treatment for this malady can be over-the-counter pain medications, loose-fitting clothing, and
physical therapy, or medications like gabapentin if needed.
On December 11, Talley reported falling in his cell and he was sent to the emergency
room at Divine Savior Healthcare in Portage. At this appointment, the provider recommended
that Talley be prescribed 10 tablets of Vicodin for pain in the neck. The next day, Suliene
placed an order for Talley to receive 10 tablets of Vicodin.
On December 14, Talley fell again and he was sent to the emergency room, where he
was given x-rays of his spine. The emergency room noted no fractures and recommended
5
continuing current pain management. Talley had a series of additional falls following this. I
take Talley to be saying that severe back pain at least in part caused his leg to “give out.”
On December 17, Suliene ordered another walker for Talley for three months in hopes
that it would help him move better on his own and alleviate the risk of falling. According to
Suliene, there was no known reason for Talley’s repeated falling other than the nerve
compression of his outer thigh. His leg pain should not have been related to his surgery; the
pain should only have been improved by surgery. Medical staff reported that Talley did not
always use his walker, and he was seen throwing his walker in his cell, yet he continued to ask
for more medication. Talley says that he continued to be in pain and that it was difficult to use
the walker, particularly going up and down stairs.
Throughout the few months after surgery, Talley had a TENS unit available to him
twice daily, but he repeatedly refused it, which led to it being discontinued towards the end of
February 2013. Talley says that it was ineffective in treating his pain. Suliene retired in April
2013.
Prison doctors following Suliene diagnosed Talley with “post lumbar laminectomy
syndrome” as the result of a “failed back surgery.” Id. at 335. Outside doctors considered
prescribing an implanted “spinal cord stimulator” to treat his pain. Id. at 155, 335. By
December 2013, Talley was prescribed methadone to treat his pain. Talley says that the
methadone treated his pain effectively enough that at one point he was able to walk without
assistance.
Talley was first seen by defendant Hoffman on February 27, 2014. Talley complained
to Hoffmann of increased back pain and he wanted higher doses of methadone. The parties
agree that Hoffman did not like prescribing methadone and would rather wean him off it.
6
Talley says that Hoffman told him, “The first thing we need to do is get you off this medication.
I don’t like these drugs. They are very bad drugs.” Dkt. 67, ¶ 23. Talley asked Hoffmann if he
knew how bad Talley’s pain was, and Hoffman responded that he did not, and that he had not
read Talley’s file at that point. Hoffman said that he would review Talley’s history and schedule
him for another appointment the next week.
On March 10, 2014, Hoffmann saw Talley at his cell. Talley refused to come out of his
cell to be examined in the HSU exam room. Instead, he lay on his back and repeated his
complaints of back pain. Later in the day, Hoffmann saw Talley again, and this time he was
able to examine Talley in the HSU exam room. Talley continued to seek an increase in his
methadone prescription. Hoffmann noted that Talley’s deep tendon reflexes remained intact,
so he ordered lab work and noted consideration for an EMG for further evaluation. Hoffman
thought that Talley was exaggerating his symptoms because his reflexes would not remain intact
if his nerves were damaged or compressed. Talley had a history of intravenous drug use, and
Hoffman suspected that Talley was dependent on the medication. Talley disputes that his
reflexes were intact. Hoffman obtained approval to schedule an EMG at UW Hospital to
determine the extent of Talley’s nerve damage.
On April 2, 2014, Talley was seen again by Hoffman. Talley said that he had to crawl
to the toilet because he was too weak to stand. He said that his pain control was not adequate
at night and his pain was exacerbated by physical therapy. Talley’s EMG was conducted on
April 9. On April 14, Talley met with Hoffman to discuss the EMG results. The report stated
that the results were “consistent with, but not diagnostic for, chronic, inactive right L4 and
tight S1 radiculopathy.” Dkt. 59-1 at 157. From the term “inactive,” I take defendants to be
saying that Talley was not then suffering from radiculopathy and there was no reason for him
7
to be suffering severe back pain. Because of these test results, Hoffman went ahead with his
plan to taper Talley off of methadone. Talley’s final dose was on October 5, 2014.
Talley says that he suffered more pain because he was weaned off of methadone.
Hoffman says that Talley showed increased mobility during the weaning process, although
Talley denies this.
Hoffman says that he would have weaned Talley off of methadone regardless of the
EMG results because of the cardiac- and addiction-related risks associated with that drug. After
methadone was completely removed from Talley’s medications, he was still prescribed tramadol
and acetaminophen for pain. Hoffman intended to wean Talley off of tramadol as well, because
of risks associated with narcotic medications, like risk of dependency, withdrawal symptoms,
and tolerance issues. Talley says he never experienced problems with tramadol.
Besides treatment for pain, Talley brings claims about being denied proper
accommodations for his condition. Inmates may submit a request for a special-needs
accommodation to the “Special Needs Committee.” Members of the committee are appointed
by the warden for the purpose of determining whether an inmate requires a medical restriction
or has a special need based upon a medical necessity. Special needs include things such as a
no-floor or low-bunk placement, having meals in-cell, extra showers, medical equipment such
as splints or braces, and activity or work restrictions. If a treating physician feels that an inmate
needs a special-need item or accommodation, then the physician can also place an order for
that item without seeking approval from the committee, although the doctor may also refer
requests to the committee to assess the necessity of the item or accommodation. Unit managers
did not have the authority to order items or move prisoners, although they would be involved
in a discussion about moving a prisoner once a referral was made by medical staff.
8
On February 27, 2014, the committee denied Talley’s request for a cane. On April 24,
2014, the committee denied Talley’s request for daily showers. Talley had already been offered
daily showers on the unit he was on at that time, but he declined, instead taking two a week.
None of the defendants named in this case were on either of the committees that denied his
requests.
Inmates are offered showers on different days based on the unit they are housed in. In
restrictive housing, showers are offered twice a week on Wednesdays and Saturdays. In
observation status, showers are offered as needed based on the inmate’s length of stay and are
generally offered upon release from observation status. In general population units, showers
are offered once a day.
For much of the time from Talley’s surgery up to the filing of his complaint, he was in
units that had accessible showers, with rails and without thresholds. But when he was in
restricted-housing units and not in observation, the showers were not accessible. Those periods
were from January 8, 2013 to February 21, 2013; February 27, 2013 to March 20, 2013; and
June 4, 2013 to March 10, 2014. Defendants say that during those times, he accepted the offer
to shower on 69 occasions and refused on 53 occasions. Talley says that his refusals were
because he could not physically accomplish the task.
ANALYSIS
To succeed on a motion for summary judgment, the moving party must show that there
is no genuine issue of material fact and that he is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of
material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a
9
jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692
(7th Cir. 2005). All reasonable inferences from the facts in the summary judgment record must
be drawn in the nonmoving party’s favor. Baron v. City of Highland Park, 195 F.3d 333, 338
(7th Cir. 1999). If the nonmoving party fails to establish the existence of an essential element
on which that party will bear the burden of proof at trial, summary judgment for the moving
party is proper. Celotex, 477 U.S. at 322.
A. Eighth Amendment claims
Talley alleges that defendants violated his Eighth Amendment rights in various ways in
failing to properly treat his back problems and associated pain.
The Eighth Amendment prohibits prison officials from acting with deliberate
indifference toward prisoners’ serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103–04
(1976). A “serious medical need” is a condition that a doctor has recognized as needing
treatment or one for which the necessity of treatment would be obvious to a lay person. Johnson
v. Snyder, 444 F.3d 579, 584–85 (7th Cir. 2006). A medical need is serious if it is life
threatening, carries risks of permanent serious impairment if left untreated, results in needless
pain and suffering, significantly affects an individual’s daily activities, Gutierrez v. Peters, 111
F.3d 1364, 1371–73 (7th Cir. 1997), or otherwise subjects the prisoner to a substantial risk of
serious harm. Farmer v. Brennan, 511 U.S. 825, 847 (1994). For a defendant to be deliberately
indifferent to such a need, the defendant must know of the need and disregard it. Id. at 834.
Talley also alleges that he fell multiple times from his pain and the lack of adequate
treatment. So I also considered his allegations under an Eighth Amendment theory that
defendants failed to protect plaintiff from the harm that occurred from his falls. To succeed on
this theory, a plaintiff must show that that (1) he faced a “substantial risk of serious harm”
10
and (2) the named prison officials acted with “deliberate indifference” to that risk. Farmer v.
Brennan, 511 U.S. 825, 834 (1994); Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005).
1. Initial oxycodone prescription
Talley alleges that defendant Suliene canceled the pain medication that he had been
prescribed upon discharge from UW Hospital after 11 days, causing him to suffer severe pain
and withdrawal symptoms. The undisputed facts show that this is not exactly correct. Suliene
did not abruptly cancel the oxycodone; instead, she made an initial decision to modify the
hospital’s discharge plan. Under the hospital’s plan, Talley was to receive 20 mg extendedrelease tablets of oxycodone for ten days, and multiple daily 5 to 20 mg doses of oxycodone
concurrently for at least 13 days, with Talley being weaned off the drug after that. Suliene
initially prescribed Talley the 20 mg doses as recommended, but she did not add the concurrent
5 mg doses. Rather, she prescribed two weeks’ worth of 5 mg doses following the 20 mg doses.
But the next day she modified the prescription in a way that appears to have provided less
oxycodone: three 5 mg tablets, four times daily for five days, and then two 5 mg tablets four
times daily as needed, up to 30 tablets for this second period. The 30-tablet restriction starting
on day six meant that if Talley took the maximum doses, he would run out on about day nine.
Which is close to what happened: on November 29, 2012, Talley complained that his
oxycodone order had ended. See Dkt. 59-1, at 111.
So although Suliene did not “cancel” the hospital’s plan, she did modify it in a way that
ended provision of oxycodone after about nine days. But she also followed the hospital’s
recommendation for gabapentin, tramadol, and acetaminophen. And notably, I do not take
Talley to be saying that his oxycodone prescription was insufficient while he received it. Nor
does he explain his withdrawal symptoms in anything more than conclusory fashion. Given the
11
cocktail of pain medications that Suliene did prescribe for the period past the initial postsurgical period, no reasonable jury could conclude that Suliene was indifferent to Talley’s pain
when she authored the initial oxycodone regimen.
2. Pain medication following termination of oxycodone
But Suliene’s treatment of Talley’s pain after the oxycodone was terminated could be
the result of deliberate indifference. Following the termination of the oxycodone, Talley
frequently complained about the amount of pain he was in. He also fell quite often. From my
own review of Talley’s medical records, he claims to have fallen on at least 11 separate occasions
between December 2012 and March 2013. See Dkt. 59-1, at 65–105. He blames these falls on
the pain, saying that it was so bad that his leg would give out. He also says that his pain was
so severe that he could not walk, so he was forced to crawl around his cell.
Suliene says that she was not deliberately indifferent to Talley’s pain or physical
condition because she prescribed him pain medication, physical therapy and a TENS unit, and
referred him to an outside provider when he complained of thigh pain. She also gave him two
walkers, one in November 2012 and a different one in December 2012, yet Talley would not
always use a walker, or even throw it against his cell wall. Defendants suggest that Talley was
malingering or seeking narcotic drugs for addiction-based reasons rather than medical ones.
But Talley says that these treatments did not work for him. He says that he was in severe,
disabling pain, but Suliene would not give him stronger medication. He also says that the
walkers were difficult to use, particularly on stairs.
Whether Suliene was deliberately indifferent is not a question that I can resolve at
summary judgment. I cannot simply credit Suliene’s stated rationale for her decisions and
dismiss the case. See Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016), as amended (Aug. 25,
12
2016) (“[E]xcept in the most egregious cases, plaintiffs generally lack direct evidence of actual
knowledge. Rarely if ever will an official declare, “I knew this would probably harm you, and I
did it anyway!”). Defendants are correct when they say that I must look at the totality of care
that Suliene provided Talley. Id. But a prison medical provider can still violate the Eighth
Amendment despite providing some care, if the provider’s decision is “such a substantial
departure from accepted professional judgment, practice, or standards as to demonstrate that
the person responsible did not base the decision on such a judgment,” or the provider “persists
in a course of treatment known to be ineffective.” Id. at 729–30. That is a matter in dispute.
This is the type of issue that the Court of Appeals for the Seventh Circuit has suggested
would benefit from recruitment of counsel or appointment of a medical expert. See, e.g., Perez
v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015) (litigation is “even more challenging in cases,
like Perez’s, where complex medical evidence (including expert testimony) is needed to assess
the adequacy of the treatment received”); Garner v. Sumnicht, 554 F. App’x 500, 501 (7th Cir.
2014) (“Under these circumstances, the district court should have attempted to recruit a lawyer
for Garner, who appears to be unable to present a case dependent on medical evidence—yet
has enough of a substantive claim that the court cannot dismiss it as obviously deficient.”).
Although Talley has not requested the court’s assistance in recruiting him counsel in this case,
I conclude that this claim has potential merit but that it would be very difficult for him to
proceed further without the assistance of counsel. So I conclude that it is appropriate to recruit
counsel to assist Talley with the complex medical issues raised by this and other claims
surviving summary judgment discussed below.3 Accordingly, I will stay the proceedings pending
recruitment of counsel.
3
Defendants raise a qualified immunity defense, but it is clearly established that prison officials
13
3. Weaning from methadone
For similar reasons, I will deny defendants’ summary judgment on Talley’s claim
regarding defendant Hoffman’s decision to wean him off methadone. Defendants say that
Hoffman had good reason to be wary of using methadone to treat Talley’s pain even if Talley
was telling the truth about it, and that in any event, tests show that Talley was malingering.
Disagreements among doctors do not in themselves show that a particular doctor is
acting with deliberate indifference, see, e.g., Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.
2010), but from the various doctors’ treatment decisions here, Hoffman appears to be alone in
his view that Talley doesn’t have anything wrong with him. It is certainly possible that Hoffman
truly believed that Talley was malingering. But that is not the only reasonable inference that
can be drawn from these facts. And Hoffman says that ultimately, he would have weaned Talley
off of narcotic medications regardless whether Talley was telling the truth about his pain. The
legitimacy of weaning a patient off narcotic mediation even if he truly suffered from debilitating
pain is a complex medical question that I have already concluded is beyond Talley’s capabilities.
So I will deny defendants’ motion for summary judgment on this claim.
4. Hospital-prescribed medication after fall
Not all of Talley’s claims survive summary judgment. Talley alleged that after one or
more of his falls, he was taken to the hospital, where staff prescribed him painkilling medication
that defendant Suliene would not let him have. But at summary judgment, the only instance
mentioned by either party in which Talley was prescribed drugs after a fall was after his
cannot act with deliberate indifference toward treatment of inmates’ medical needs. This is a
case in which defendants’ immunity depends on disputed facts, so that defense is not available
at this point.
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December 11, 2012 fall. A doctor prescribed 10 tablets of Vicodin. It is undisputed that Suliene
placed an order for that medication. Talley says that he was never given the medication by CCI
medical staff, but he provides no specifics about this denial, and in particular he does not
suggest that Suliene played any role in this denial. So I conclude that he has failed to meet his
burden of presenting evidence sufficient for a jury to return a verdict in his favor on this claim.
5. Claims against defendant Melby
Talley brings Eighth Amendment medical care and failure-to-protect claims against
defendant Unit Manager Melby for failing to move him to a new unit or provide him with
better accommodations. But defendants state that Melby did not have the authority to provide
Talley with accommodations in his cell; that was the Special Needs Committee’s or a doctor’s
responsibility. They provide evidence showing that the committee denied Talley’s request for
a cane, and I have already discussed Suliene’s provision of walkers. Talley asserts, without any
supporting evidence, that Melby “was the responsible party” for controlling his
accommodations, but his unsupported say-so is not enough to create a genuine dispute of
material fact. With regard to his cell assignment, had there been a referral from medical staff
to move Talley to a special unit, Melby would likely have been involved in that decision-making
process. But Talley never received such a referral, so Melby was never involved in discussions
about movement to a special unit, and he could not initiate those discussions himself. Melby
cannot be held liable for failing to do something he had no responsibility for. See Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir. 2009) (rejecting “contention that any public employee
who knows (or should know) about a wrong must do something to fix it”). So I will grant
summary judgment in defendants’ favor on the claims against Melby.
15
B. Rehabilitation Act
Talley also brings a claim that prison officials violated the Rehabilitation Act, 29 U.S.C.
§ 701 et seq., by failing to provide him with showers that he could access despite being disabled
by back pain. To establish a violation of the Rehabilitation Act, Talley must show that (1) he
is a qualified person (2) with a disability and (3) the DOC denied him access to a program or
activity because of his disability. Jaros v. Illinois Dep’t of Corr., 684 F.3d 667, 672 (7th Cir.
2012). “An otherwise qualified person is one who is able to meet all of a program’s requirements
in spite of his handicap, with reasonable accommodation.” Knapp v. Northwestern Univ., 101
F.3d 473, 482 (7th Cir. 1996) (internal quotation omitted). Disability includes the limitation
of one or more major life activities, which includes care for oneself, see 42 U.S.C.
§ 12102(2)(A). In the context of cases like this one, “refusing to make reasonable
accommodations [for a program or activity] is tantamount to denying access.” Jaros, 684 F.3d
at 672. In screening the complaint, I considered access to showers to be a “program or activity,”
Dkt. 28, at 8, and defendants do not challenge that assessment. Whether a requested
accommodation is reasonable is highly fact-specific and determined on a case-by-case basis by
balancing the cost to the defendant and the benefit to the plaintiff. Bronk v. Ineichen, 54 F.3d
425, 429 (7th Cir. 1995).
Defendants show that for much of the time at issue in this case, Talley was in units with
accessible showers. But there were extended periods when he was not, so the mere fact that he
was often accommodated is not enough to defeat the claim. Defendants also say that Talley
showered 69 times during his stints in the units without accessible showers, and he refused 53
times, over periods totaling about 11 months. The sheer number of shower opportunities is not
particularly helpful here. Talley was offered two showers a week, which is compatible with the
16
Eighth Amendment, see, e.g., Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988), but
Talley says that the reason he refused showers was his physical incapability.
If Talley missed the occasional shower because of physical problems, the Rehabilitation
Act might not apply. But Tally refused almost half the opportunities, and many of the refusals
were bunched together. My own review of the shower logs provided by defendants, Dkt. 61-2,
shows that Talley appears to have not showered at all for significant chunks of time.4 For
instance, he appears to have gone without a shower from February 9, 2013, to March 6, 2013,
and from October 5, 2013, to November 25, 2013. If the true reason for these gaps was Talley’s
physical inability to use the non-accessible showers, this data could support a Rehabilitation
Act claim.
Defendants also contend that the claim should be dismissed because Talley did not ask
for or receive a shower accommodation from the Special Needs Committee. In most situations,
a plaintiff must first request a reasonable accommodation before any liability for failure to
accommodate is triggered. Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899
(7th Cir. 2000). The one special-needs request he made regarding showers was for daily
showers, which is not the issue here. But Talley says that he repeatedly asked defendant Melby
to be moved to a different unit, with accessible showers.
The proposed findings showing that it was not Melby’s responsibility to reassign
prisoners is enough for Melby to escape Eighth Amendment liability, but it is enough to let the
state off the hook on a Rehabilitation Act claim? Defendants say that Talley didn’t make a
4
The logs appear to be taken from more than one log book, the pages are not completely
arranged in date order, and some pages are missing dates. The page numbers of the various
documents provide insight into the sequence of the dates on which prisoners were offered
showers. I will resolve any ambiguities in those dates in Talley’s favor.
17
request through the proper channel—the Special Needs Committee. But they do not develop
this argument; in particular, they do not provide authority suggesting that a request must be
placed through the particular channel designated by the defendant to meet the notice element
of a Rehabilitation Act claim. Given Talley’s medical history, history of falls, and the provision
of walkers, it is fair to say that prison officials were well aware that Talley claimed to be disabled
by his back problems, yet they still failed to accommodate his access to showers for long
stretches of time. So I will deny defendants’ motion for summary judgment on this claim.
CONCLUSION
The following claims survive summary judgment:
•
Eighth Amendment claims against defendant Suliene for failing to provide
Talley with adequate pain medication after he complained following termination
of oxycodone.
•
An Eighth Amendment claim against defendant Hoffman for weaning Talley off
methadone.
•
A Rehabilitation Act claim against the state for failing to provide Talley with
accessible showers.
I will strike the upcoming trial date and associated pretrial deadlines, and a new schedule will
be set following recruitment of counsel for Talley.
ORDER
IT IS ORDERED that:
1. DOC Secretary Cathy A. Jess is substituted for defendant Jon E. Litscher.
2. Plaintiff Timothy Talley’s motion for copies of court documents, Dkt. 60, is
GRANTED. Defendants are directed to provide plaintiff with copies of docket nos.
1 to 48.
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3. Defendants’ motion for an extension of time to file responses to plaintiff’s proposed
findings of fact, Dkt. 70, is GRANTED.
4. Defendants’ motion for summary judgment, Dkt. 52, is GRANTED in part and
DENIED in part as discussed in the opinion above.
5. Defendants Melby and Doe are DISMISSED from the case.
6. The schedule in this case is STRUCK and proceedings are STAYED pending
recruitment of counsel for plaintiff. If I find counsel willing to represent plaintiff, I
will advise the parties of that fact. Soon thereafter, a status conference will be held
to establish a new schedule for resolution of the case.
Entered October 23, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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