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Norfleet, v. Gaetz

United States District Court, S.D. Illinois

September 8, 2017

MARC NORFLEET, Plaintiff,
v.
DONALD GAETZ, PATRICK KEANE, CHRISTINE BROWN, MICHAEL EDWARDS, THOMAS SPILLER, EARL WILSON, and the ILLINOIS DEPARTMENT OF CORRECTIONS, Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN, CHIEF JUDGE

         Introduction

         Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Marc Norfleet filed his complaint against various individuals and the Illinois Department of Corrections for retaliation, deliberate indifference to his medical needs, and violations of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). This matter is before the Court on Defendants' motion for summary judgment (Docs. 151, 152). Plaintiff has filed a response (Doc. 160) as well as two supplemental exhibits (Docs. 164, 165). Based on the following, the Court GRANTS in part and DENIES in part Defendants' motion for summary judgment.

         Factual Background

         Plaintiff's complaint, as narrowed by the Court's threshold order (Doc. 17), alleges that Defendants are not providing him access to exercise equipment at Pinckneyville Correctional Center. Specifically, his complaint alleges that: Defendant Keane retaliated against Plaintiff for filing the suit Norfleet v. Benton, Case No. 09-cv-347-JPG, by instructing officials at Pinckneyville and other facilities that they were not required to accommodate Plaintiff's and other disabled inmate's access to recreational equipment and facilities (Count 2); that IDOC violated the Americans with Disabilities Act and the Rehabilitation Act due to Plaintiff being unable to access exercise equipment and facilities at Pinckneyville, including pull-up/dip bars, weight/exercise machines, a usable wheelchair exercise track, handball and basketball courts, and by failing to provide him with a sports wheelchair and/or padded gloves (Count 3); and that Donald Gaetz, Earl Wilson, Christine Brown, Patrick Keane, Michael Edwards, and Thomas Spiller were deliberately indifferent by failing to provide him with accessible exercise equipment and facilities sufficient for him to maintain his physical health (Count 4) (Doc. 17, p. 8-9).

         Plaintiff has been incarcerated within the Illinois Department of Corrections since 2006. He suffers from a condition called radiculopathy, which affects the nerves and causes compression of the spine (Doc. 152-1, p. 3; 160-1, p. 47). He has suffered from the condition since 1999 and is currently confined to a wheelchair (Doc. 152-1 p. 3-4). Plaintiff used a wheelchair prior to his incarceration and continues to use a wheelchair as a result of his condition (Id. at p. 4). Plaintiff also testified that he suffers from twenty-four hour shoulder pain; although he admits his shoulder pain has not been documented by the prison doctors (Id. at p. 4). He testified that a Dr. Shaw diagnosed his shoulder issue as a lactic acid build-up and prescribed Plaintiff with six months of physical therapy while at Pinckneyville (Id. at p. 4, 7). He was directed to use stretch bands on the wall to improve his range of motion (Id. at p. 11). Plaintiff's submitted medical records indicate that he was given physical therapy for shoulder pain with pulleys starting July 10, 2012 (Doc. 160-1, p. 69-71). He last had physical therapy in February 2013 (Doc. 152-1, p. 11). He was also directed to perform in-cell exercises including shrugging his shoulders and rotating his shoulder (Id.). Plaintiff acknowledged that the exercises helped with his stiffness and pain and that he practices the exercises every morning but he is “looking for progression.” (Id.). He still has trouble lifting his hands above his head and there is too much pain when he extends them over his head; he believes that the pain is from the weight of his arms (Id.). He can swing them (Id.). He continues to do shoulder shrugs in the morning, albeit with difficulties as the healthcare unit has taken some of his medications away (Id. at p. 18).

         Plaintiff also suffers from stomach cramps, but he testified that medical professionals are ignoring the issue and that he has never been prescribed medication for the condition (Doc. 152-1, p. 4. 5). He also started suffering from chest pain while at Lawrence Correctional Center (Id. at p. 6). His chest continues to hurt when he coughs and twists a certain way (Id.). He had an EKG six months prior to his January 4, 2017, deposition and was told that he appears fine (Id. at p. 7).

         Plaintiff acknowledges that no medical professional has diagnosed his conditions as resulting from lack of exercise (Doc. 152-1, p. 8-9). Plaintiff testified that he has lost shoulder range of motion and can no longer reach up to a top shelf, an activity which he labels an exercise (Id. at p. 9). He believes that the loss of range of motion is due to loss of movement activities (Id. at p. 12). Plaintiff indicated that he goes to the gym for therapy purposes, but he cannot utilize any of the machines in order to practice reaching (Id. at p. 9). He had therapy for a weak chest and he believes he needs exercise to improve his shoulder range of motion and strengthen his chest (Id.). He testified that the medical professionals understood his shoulder pain was from lack of exercise, but later he acknowledged that no doctor has indicated his shoulder pain is due to lack of exercise (Id. at p. 11). Rather, he testified that it's his own “complaint” that his pain is from lack of exercise (Id.). He also believes that he was prescribed therapy for lack of exercise, although he acknowledges that no doctor told him that was the case (Id.). The therapy prescription indicates that it is for shoulder pain (Doc. 160-1, p. 70-71).

         Plaintiff testified that he does not have the access he feels he needs for proper ADA compliant exercise opportunities while at Pinckneyville (Doc. 152-1, p. 5).[1]Plaintiff testified that Level II facilities, except for Lawrence Correctional Center, have proper exercise equipment which is wheelchair accessible (Id.). Plaintiff testified that he goes to the gym every time it is offered, but he does not utilize the equipment in the gym (Doc. 152-1, p. 18). He admitted that the gym is offered nearly every Friday, and he goes every Friday that it is offered (Id. at p. 19). In fact, Plaintiff went to the gym the Friday before his deposition (Id.). Plaintiff stated that no one in a wheelchair can utilize the equipment; although some are able to play ping pong, the wheelchair-bound inmates do not use the equipment (Id.). While non-disabled inmates have several machines in the gym, Plaintiff testified that many of the machines require an inmate to use their legs on the machines or to get out of the wheelchair to utilize the machine (Id. at p. 9, 22). Plaintiff testified that there is nothing in the gym for him to use for movement activities (Id. at p. 12).

         Plaintiff testified that he needs free weights so that he can move and get his blood pressure up (Doc. 152-1, p. 12). He believes that he could lift 10 to 15 pounds and get his blood pressure up (Id.). He believes that if he can do that, then his heart will get stronger (Id.). He believes that free weights will help him because he used them before he was incarcerated (Id. at p. 13). He believes he can use the weights as a form of cardio exercise and, since he is in a wheelchair, his cardio is limited to range of motion exercises (Id. at p. 12). Plaintiff testified that he can swing his arms without weights, for as long as an exercise routine would last, and still not get out of breath (Id. at p. 23). He testified that he needs added weights, up to 25 pounds, in order to get his heart rate up (Id.). He has never had free weights while incarcerated (Id. at p. 13).

         Plaintiff also takes issue with Pinckneyville's ADA compliant track. He acknowledges that Pinckneyville has such a track but that he has not been able to access it since March 2016 (Doc. 152-1, p. 13). Plaintiff received access to the track through February 2016 (Id. at p. 17). The track is six feet wide and “superficial lumpy blacktop” (Id. at p. 22). Plaintiff testified that there are rocks and mud on some parts of the track (Id.). He used to be able to go around the track two times, although not entirely around as there was mud on the track (Id. at p. 24). However, because he lacks gloves he can only go around one time as he develops blisters (Id.). He testified that he cannot get the recommended thirty minutes of exercise a day because he lacks gloves and blisters his hands within the first twenty minutes (Id.). He testified that once he develops blisters he can only “sit there on the yard wishing I could keep doing what I want to” (Id.).

         Plaintiff hasn't gone to the track since March 2016, but he does have access to two other yards (Id. at p. 17). He has access to the basketball courts and rolls across the actual court, though inmates yell at him because they are playing basketball (Id.). He also has access to the handball court but must wait until players miss a ball in order to go around the court (Id.). There are also sidewalks, but he has to wait his turn as there are other inmates walking the sidewalk (Id.). Plaintiff further testified that there are four different yards that he has alternating access to, and there are pull-up bars for inmates with disabilities on three of the yards (Id. at p. 24). However, Plaintiff testified that there is mud near some of them and that he can't reach up to the bar (Id. at p. 25). Plaintiff testified that he is trying to work his way up to being able to reach up that high but he currently cannot use the pull-up bar (Id. at p. 26). He believes that the yards are not ADA compliant (Id. at p. 17).

         Plaintiff testified that, even if he had access to it, he can no longer use the track because he no longer receives a morning muscle relaxer (Id. at p. 13). Plaintiff used to take Neurontin and Baclofen, but he is no longer prescribed Baclofen. His morning dosage of Neurontin was discontinued (Id. at 13-14). He testified that he was able to use the handball and basketball courts for cardio-type exercise until the healthcare unit stopped his medications in October 2016 (Id. at p. 18). Plaintiff also testified that he can only go three quarters of the way around the track (Id. at p. 17).

         Plaintiff also has problems with his wheelchair. Plaintiff states that his front wheel has fallen off of his wheelchair in the yard (Doc. 152-1, p. 14). He testified that IDOC provides the cheapest equipment they can (Id.). He testified that the healthcare unit refuses to provide him with another wheelchair (Id.). The wheels and the legs fall off all the time (Id. at p. 18, 22). The brakes have also fallen off multiple times (Id. at p. 22). He has filed grievances asking for a new wheelchair but has been told that the healthcare unit is on a budget and that his chair is ADA compliant (Id.). Because of the condition of the wheelchairs, no wheelchair-bound inmate can utilize the handball or basketball courts (Id. at p. 18).

         Plaintiff also takes issue with the gloves he has been given to use with his wheelchair. Plaintiff testified that he used to receive “driver's gloves” from the healthcare unit so that he could push himself around the track (Doc. 152-1, p. 23). He used to be able to push himself around the track, though he would have to weave around people and stop for joggers and walkers because it is only six feet wide (Id.). But without gloves, he gets blisters on his hand, and he is afraid he will get diseases and infections from the blisters (Id.). He notes that MRSA is a problem in the prison (Id.).

         He has been told that eventually his hands will callous over from the blisters and he doesn't need gloves (Id.). Plaintiff testified that Wexford prescribes the gloves and that he was given adequate gloves in 2007, but the gloves were lost in 2008 during a transfer from another facility (Id. at p. 23-24). He has received another pair of gloves, but he claims they are not adequate as they are slippery (Id.). He does not wear them (Id.).

         Plaintiff's complaint also alleges that Patrick Keane is retaliating against him.

         Plaintiff testified that Keane testified in a preliminary injunction hearing in another case regarding the compliance of Menard Correctional Center's ADA facilities and, at that time, Keane assured Plaintiff and the Court that accommodations would be made for Plaintiff to exercise (Doc. 152-1, p. 19). However, he was transferred to Pinckneyville and there was no ADA compliant equipment (Id.). Plaintiff testified that in Keane's deposition in the other case, Keane testified that he does not have to provide Plaintiff with reasonable accommodations for exercise (Id.). Keane's testimony was in response to a question that asked:

Q: From what you have just told me previously, the Department of Corrections does not have an obligation to ensure that a wheelchair-bound offender could access or use [the] pull-up bar [on the yard]?
Keane: During recreation time I believe so, yes.

(Doc. 160-1, p. 44). Thus, Plaintiff testified that when he writes a grievance regarding lack of ADA compliant equipment the grievance goes to Keane, the ADA Compliance Officer, who denies it and does not provide wheelchair-bound inmates with ADA equipment (Doc. 152-1, p. 19). Plaintiff testified that correctional staff sends grievances to Patrick Keane, who denies them, and then the director signs off on the denial (Id. at p. 20). Keane makes the final decision regarding ADA compliance according to Plaintiff (Id.). Plaintiff testified that he is not receiving appropriate equipment and access to ADA facilities because Keane denies those requests (Id.). Plaintiff testified that Keane promised Plaintiff in his other case that he would have accommodations when he arrived at Pinckneyville and then he did not provide those accommodations (Id.). Plaintiff indicated that he believed the failure to accommodate his needs was intentional on Keane's part (Id. at p. 21).

         Plaintiff acknowledged, however, that none of his grievances to the ARB had Keane's signature on them and that does he not know for a fact that Keane responds to the grievances, instead testifying that they are marked ADA disability and that Keane's job is ADA compliance (Doc. 152-1, p. 20). Plaintiff later testified that Sherry Benton reviews the grievances and that she does not refer the grievances to Keane, even though she is supposed to do so (Id. at p. 21). Plaintiff testified that in the grievances Sherry Benton identifies Keane and his responsibilities (Id. at p. 26). He believes that Keane denied him accommodation because he testified in Plaintiff's other case (Id. at p. 21).

         Plaintiff's complaint also alleges that several individual defendants were deliberately indifferent to his need for accessible exercise equipment and facilities. Plaintiff testified that all of the individual defendants were aware that he was being denied opportunities for physical exercise and that they are in positions to have his disability accommodated (Doc. 152-1, p. 25). According to Plaintiff, those individuals are in the middle of the chain to Springfield and the director and they can have IDOC accommodate his disability (Id.). Plaintiff testified that Earl Wilson was the warden over ADA services at Pinckneyville from 2011-2012 and that he lied in a grievance indicating that exercise was offered seven days a week (Id. at p. 26). Plaintiff testified that Wilson also had a duty to contact Keane and provide him with annual reports (Id. at p. 26-27). ...


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