United States District Court, S.D. Illinois
JAMES E. DUNMORE, Plaintiff,
LOUIS SHICKER, PHIL MARTIN, ILLINOIS DEPARTMENT OF CORRECTIONS, and JOHN B. COE, Defendants.
MEMORANDUM AND ORDER
A. BEATTY UNITED STATES MAGISTRATE JUDGE
before the Court are two motions for summary judgment and
supplements to those motions (Docs. 82, 84, 99, 101), as well
as two motions to exclude the testimony of Plaintiff's
exert witnesses (Docs. 98, 100) all of which were filed by
Defendants Louis Shicker, Phil Martin, the Illinois
Department of Corrections, and John Coe. For the reasons
stated below, Defendant Coe's request for summary
judgment is granted; the IDOC Defendants' request for
summary judgment is denied in part and moot in part; the
motion to exclude the testimony of retained expert Brendan
Tanner is granted; and the motion to exclude the testimony of
retained expert Peter Combs is denied.
James E. Dunmore (“Plaintiff”) brought this
pro se civil rights action pursuant to 42 U.S.C.
§ 1983 alleging that he was wheelchair-bound and prison
officials were not providing him with constitutionally
sufficient physical therapy services or with accessible
toileting facilities on the prison yard. Following a
threshold review of the complaint pursuant to 28 U.S.C.
§1915A, Plaintiff was permitted to proceed on the
Count 1: Phil Martin, Louis Shicker, and John Coe were
deliberately indifferent to Plaintiff's serious medical
condition in violation of the Eighth Amendment when they
“failed to ensure that Plaintiff receive adequate
physical therapy and transfer him to a facility with an
adequate physical therapy program”; and
Count 2: The IDOC violated the Americans with Disabilities
Act and the Rehabilitation Act when it “failed to
install wheelchair accessible toilets” on the prison
15, 2019, Dr. Coe and the IDOC Defendants filed motions for
summary judgment on the merits of Plaintiff's claims
(Docs. 82, 84). Shortly thereafter, however, the Court gave
the parties more time to complete expert discovery, and
allowed supplemental briefing related to the motions for
summary judgment (Doc. 91). Dr. Coe and the IDOC Defendants
filed their supplemental briefs on August 30, 2019, along
with motions to bar the testimony of Plaintiff's physical
therapy expert and ADA expert (Docs. 98, 99, 100, 101).
Plaintiff filed responses in opposition to the motions for
summary judgment and the motions to bar his experts (Docs.
104, 105, 106, and 107). Defendant Coe then filed a reply
brief in support of his motion for summary judgment (Doc.
108). No. other reply briefs were filed.
summary judgment briefing narrowed the scope of the claims in
this case. To begin with, in his response to the IDOC
Defendants' motion for summary judgment, Plaintiff
withdrew his claim for deliberate indifference as to Louis
Shicker and Phil Martin in Count 1 (Doc. 107). Therefore,
Shicker and Martin will be dismissed as Defendants in this
case, and given the current stage of litigation, the
dismissal will be with prejudice. The dismissal renders the
IDOC Defendants' motion for summary judgment moot as to
Shicker and Martin.
after Defendants filed their initial summary judgment
motions, Plaintiff was transferred from Lawrence to Dixon
Correctional Center (Doc. 92). Therefore, to the extent
Plaintiff was seeking injunctive relief as to Count 1 for
deliberate indifference or Count 2 for violations of the ADA/
Rehab Act, that request is now moot. See, e.g., Lehn v.
Holmes, 364 F.3d 862, 871 (7th Cir. 2004) (“[W]hen
a prisoner who seeks injunctive relief for a condition
specific to a particular prison is transferred out of that
prison, the need for relief, and hence the prisoner's
claim, become moot”) (discussing Higgason v.
Farley, 83 F.3d 807, 811 (7th Cir. 1995) (per
curiam)). The only relief that remains available to
Plaintiff on Counts 1 and 2 is money damages.
means the Court is left to decide whether summary judgment is
appropriate for Defendant John Coe on Plaintiff's
deliberate indifference claim in Count 1 and for the IDOC on
Plaintiff's ADA/Rehab Act claim in Count 2.
is eighty-one-years-old and has been in IDOC custody since
2004 (Doc. 107-1, p. 4). He has multiple serious medical
conditions, such as diabetes, hypertension, high cholesterol,
hepatitis C, heart disease, obesity, poor circulation and
various orthopedic problems, including longstanding,
progressively worsening back pain (see, e.g., Doc.
83-3, pp. 4-5; Doc. 83-2, pp. 15, 16). In November 2011,
while Plaintiff was incarcerated at Menard Correctional
Center, he underwent posterior spinal fusion surgery at Saint
Louis University (Doc. 1, p. 3; Doc. 83-3, pp. 2, 39; Doc.
85-2, p. 17; Doc. 106-5, p. 24). Following a week in the
hospital, he was sent back to Menard, where he was housed in
the infirmary (Doc. 107-1, p. 9). Plaintiff did not have any
physical therapy at Menard (Id. at p. 10). He was
transferred from Menard to Lawrence Correctional Center on
August 12, 2012, in order to receive physical therapy to help
with his recovery (Id.). At the time he arrived at
Lawrence, he was wheelchair bound, and unable to walk
(Id. at pp. 10, 35).
medical records indicate Plaintiff was evaluated at Lawrence
by Dr. Emily Thomann, a physical therapist, on October 31,
2012 (Doc. 83-3, p. 39-40; Doc. 85-2, p. 17). She ordered a
four-week course of physical therapy, the goal of which was
for Plaintiff to increase his leg strength and to be able to
walk at least 50 feet with a walker (Doc. 83-3, pp. 39-40;
Doc. 85-2, pp. 7, 17). If he was able to walk at least 50
feet, he would be able to ambulate within his cell house and
from his cell to the ADA shower (Doc. 85-2, p. 7).
this initial course of physical therapy, Plaintiff was able
to ambulate short distances with assistance, albeit with
considerable pain (Doc. 85-2, pp. 7-10). Dr. Thomann
reevaluated Plaintiff on November 28th and continued his
physical therapy because he demonstrated improved strength in
his legs and he was progressing towards walking with an
assistive device (Doc. 85-2, pp. 11, 18). Plaintiff's
ambulation continued to improve during his next two sessions,
however, he reported that his pain was always present, and
nothing seemed to help (Id. at pp. 11-12). At his
next session, however, he reported that he had fallen twice
because his legs gave out (Id. at p. 13). The
physical therapy assistant noted that Plaintiff “states
he is unable to walk. The pain makes him cry. Reports that he
stays in bed most of the time” (Doc. 107-1, p. 19).
Thomann evaluated Plaintiff for a third time on January 9,
2013 (Doc. 85-2, p. 13; Doc. 83-3, pp. 42-43). Plaintiff told
Dr. Thomann that his legs were getting weaker, his back pain
had increased, and he had ceased doing his home exercise
program (Doc. 85-2, p. 19). Dr. Thomann noted that Plaintiff
was not making any progress with physical therapy and was
declining physically (Id.). Consequently, she
discharged him from physical therapy and recommended that he
follow up with the medical doctor (Id. at pp. 13-14,
claims “it was his understanding” from Dr.
Thomann that the physical therapy program at Lawrence was not
“advanced enough to help [him]” and he needed
“to be in a more advanced physical therapy
program” (Doc. 107-1, pp. 20, 29). Dr. Thomann,
however, testified that she did not believe that the program
at Lawrence was inadequate or lacked any equipment that might
benefit him (Doc. 83-4, pp. 14-15). Plaintiff's expert
witness, Dr. Brendan Tanner, opined that the plan of care and
the physical therapy treatment he received was appropriate
(Doc. 104-1, p. 3). He did not believe “physical
therapy services at a difference facility would have altered
the outcome, based on the patient's pain level and
medical status” (Id.).
the discontinuation of physical therapy, Plaintiff followed
up with the medical staff as instructed (Doc. 106-4, p. 8).
An x-ray of his back was taken and showed that the hardware
in his back was intact and the appearance of his spine was
unchanged (Id. at p. 24). He was given prescriptions
for Ultram and Neurontin to manage his pain (Id. at
pp. 8, 11, 12).
Dr. John Coe became the medical director at Lawrence in May
2013 (Doc. 83-2, pp. 2, 15). He saw the Plaintiff for the
first time in early August 2013 at a Chronic Clinic visit for
Plaintiff's other medical problems (Doc. 83-3, pp. 4-5).
At that visit, Dr. Coe renewed Plaintiff's prescriptions
for Neurontin and Ultram, and scheduled him for another visit
to fully evaluate his chronic pain issues (Id. at
pp. 4-6). At the second visit on August 26, 2013, Dr. Coe
diagnosed Plaintiff with partial paraplegia from spinal
stenosis, meaning that “his spinal cord was pinched off
enough that he was having the paraplegia problems, which
means muscle weakness, possibly spasm, pain, numbness”
(Id.; Doc. 83-2, p. 10). The doctor determined
Plaintiff should continue to take Neurontin and Ultram to
help with his pain, and he also ordered a physical therapy
consult (Doc. 83-3, p. 6). For reasons unknown to Dr. Coe,
Plaintiff was never scheduled to see the physical therapist
(Doc. 83-2, pp. 12, 15). According to Dr. Coe, the nurses
were responsible for taking his order and then coordinating
with the physical therapists to get Plaintiff scheduled
(Id. at p. 12).
saw Plaintiff multiple times over the next ten months,
primarily for issues other than his back pain (see
Doc. 83-3, pp. 8-13). During this time, Dr. Coe continued to
prescribe Plaintiff Neurontin and Ultram for his pain, and he
also prescribed Baclofen (Id. at p.
After beginning the Baclofen, Plaintiff reported to Dr. Coe
that his cramps and spasms were “nearly gone, ”
his legs were not sore, and he could move his legs better
(Doc. 83-3, p. 14). Shortly thereafter, however, Plaintiff
fell out of his wheelchair and complained to a nurse of
severe back pain (Doc. 83-3, pp. 15-16; Doc. 106-4, p. 18).
He was placed in the infirmary for 23-hour observation (Doc.
83-2, p. 11; Doc. 106-4, pp. 18- 19). Plaintiff reported to
Dr. Coe the next day that he was back to his regular level of
pain (Doc. 83-3, p. 17). An x-ray of Plaintiff's lumbar
spine showed his spine was unchanged (Id. at p. 18;
Doc. 106-4, p. 25).
saw Plaintiff a week later and Plaintiff again reported that
he was back to his regular level of pain (Doc. 83-3, p. 18).
Plaintiff also told Dr. Coe that he wanted “to go to
Dixon, where he believes he will get physical therapy that
will get him walking. He claims [physical therapy] was
inadequate” (Id.). Dr. Coe wrote in the
medical records, “PT was talked to and could
re-evaluate. At this time I will not change anything”
(Id.; Doc. 83-2, p. 11-12). Dr. Coe testified this
note meant that “I talked to physical therapy, and they
would - - they said they would reevaluate him” (Doc.
83-2, pp. 11-12). It is unclear, however, if Dr. Coe ever
actually wrote an order for a physical therapy evaluation
(see Doc. 83-3). Dr. Coe has no knowledge of the
capabilities of the medical facility at Dixon, including
whether Dixon offered better physical therapy than Lawrence
(Doc. 83-2, p. 20).
next saw Plaintiff in June 2014, and he documented that
Plaintiff's back and left hip pain was worse (Doc. 83-3,
p. 19). He ordered Motrin three times a day (Id.).
Dr. Coe saw Plaintiff several times in August and September
2014 for issues other than his back pain (Doc. 83-3, pp.
20-27). Plaintiff was next evaluated by a nurse in October
2014 for complaints of mid back, right shoulder, and right
arm numbness and pain (Doc. 83, pp. 5-6; Doc. 106, p. 4). He
was referred to Dr. Coe, who ordered cervical spine x-rays
(Doc. 83, pp. 5-6; Doc. 106, p. 4). Dr. Coe noticed some
abnormalities on the x-ray, and he prescribed Plaintiff a
“sling and permit” (Doc. 83-3, p. 27). At a
follow-up visit on December 4th, Dr. Coe prescribed a
cervical collar for Plaintiff (Id. at p. 28). Dr.
Coe testified that the pain medications that he had already
prescribed for Plaintiff's back pain would have also been
effective for his neck, shoulder, and arm pain (Doc. 83-2, p.
15). Dr. Coe further testified that Plaintiff's neck,
shoulder, and arm pain were new problems, unrelated to his
lumbar spine problems, and it was not appropriate for
Plaintiff to do physical therapy for his back at this time
because he would have needed to use his arms to help him walk
on the parallel bars or with a walker and “that would
be a problem while . . . the neck was acting up”
next time Dr. Coe saw Plaintiff for his pain was in August
2015 (Doc. 83-3, p. 30). Dr. Coe noted that Plaintiff was
“getting worse as always with pain, ” despite the
pain medication he was taking (Id.) Plaintiff also
had edema (fluid retention) in both his legs, which Dr. Coe
testified was likely because Plaintiff had decreased
circulation since he could not use his legs very well, was
sitting in a wheelchair all the time, inactive, and
overweight (Doc. 83-2, p. 12). In Dr. Coe's opinion,
physical therapy would not have been helpful for
Plaintiff's leg edema (Id.). Instead, Dr. Coe
ordered TED (compression) hose and a diuretic (water pill)
for the edema, as well as Ultram and Neurontin for
Plaintiff's pain (Doc. 83-3, p. 30).
January 2016, Dr. Coe gave Plaintiff an ice permit, at
Plaintiff's request, so that he could use ice to
alleviate his arthritic pain (Doc. 83-3, p. 32). In February
2016, Plaintiff told Dr. Coe that he wanted
“rehabilitation” (Doc. 83-3, p. 33). Dr. Coe
noted “[inmate] had PE a long time ago, he [illegible]
for new consult. Discussed w/ Lorie Cunningham HCUA. We will
order a new PT eval to see if offender is willing to get
PT” (Id.). Once again, there is no indication
that the physical therapy evaluation was ever scheduled or
performed (see Doc. 83-3; Doc. 83-2, pp. 12, 15).
2016, Plaintiff told Dr. Coe that he “want[ed] more
Neurontin” and Dr. Coe increased his prescription (Doc.
83-3, p. 34). In July 2016, Dr. Coe saw Plaintiff multiple
times for cellulitis in his leg, and Dr. Coe also renewed
Plaintiff's permit for ice (Id. at pp. 35-38).
Dr. Coe left his employment as the medical director at
Lawrence on July 31, 2016 (Doc. 83-2, p. 12).
finally underwent a physical therapy evaluation by Dr.
Thomann on January 4, 2017 (Doc. 83-3, pp. 44-45). The goal
of therapy was no longer to get Plaintiff walking; this time
it was to help manage his pain (Doc. 83-4, pp. 13, 18-19). A
month later, Plaintiff told Dr. Thomann that his back
“feels terrible and [physical therapy] is not
helping” (Doc. 83-3, p. 46; Doc. 83-4, p. 20). He told
her he was “sleeping in his wheelchair because he
cannot lay down because of pain” and he “cannot
always do home exercise program stretch [because] of
pain” (Doc. 83-4, p. 20). Dr. Thomann discharged
Plaintiff from physical therapy because he did not meet his
goals and was no longer progressing, and she felt he had
reached “max rehab potential” (Id. at
was sent back for a third round of physical therapy in June
2018 (Doc. 83-3, p. 48; Doc. 83-4, pp. 21-22). Dr. Thomann
discharged Plaintiff approximately a month and a half later,
however, because he had not made any progress and the therapy
exercises increased his pain (Doc. 83-4, pp. 22-23; Doc.
83-3, p. 50).
Facts Related to Plaintiff's ADA Claim
previously mentioned, Plaintiff could not walk on his own by
the time he was transferred to Lawrence and he was confined
to a wheelchair (Doc. 107-1, pp. 10, 35). ADA inmates, like
Plaintiff, are allowed to go to the yard at Lawrence (Doc.
85, p. 7; Doc. 107, p. 4). There is a porta-potty on the
yard, but it is not wheelchair-accessible (Doc. 107-2, p.
10). According to Plaintiff, there were three occasions over
a two-year period when he wet himself while out on the yard
because he was not able to get an officer to escort him back
into the cellhouse to use the bathroom (Doc. 107-1, pp. 34,
35). The first was on March 28, 2013 (Id. citing
Doc. 1, p. 7). At that time, according to Plaintiff, ADA
inmates on the yard were not allowed to go back to the
cellhouse to use the bathroom. In the event they managed to get
a guard to take them inside to use the bathroom, they were
not allowed to go back out to yard after they were finished
(see Doc. 1, p. 7; Doc. 107-1, p. 34). Plaintiff claims
that he asked a number of times to go into the cell house to
use the restroom but he was ignored by correctional officers
(Doc. 1, p. 7). As a result of being ignored, he urinated on
testified that “at some point” before Deana
Brookhart became the assistant warden of programs at
Lawrence, “they started letting us go back in” to
the cellhouse to use the bathroom, but “we couldn't
come back to the yard, we'd lose our yard privileges if
we had to use the bathroom” (Doc. 107-1, p. 34).
Plaintiff acknowledged that since Dr. Brookhart came to
Lawrence, the policy is that ADA inmates on the yard can go
into the cellhouse to use the bathroom and then go back out
to the yard (Id.). However, he could not say whether
the policy was actually followed because he stopped going to
the yard (Id.). He testified that he did not
“want to be caught in that position again where I
soiled myself” and he did not trust that the problem
had been resolved, stating “I don't trust it . . .
I don't go to the yard because I don't trust them. .
. . I just don't trust the system” (Id.).
their part, Defendants presented evidence that on May 15,
2013- approximately a month and a half after Plaintiff
allegedly soiled himself on the yard- Beth Tredway, the
assistant warden of programs at Lawrence at the time, issued
a memorandum to “security staff” at Lawrence
regarding ADA offenders on the yard (Doc. 85-10). The
When ADA Offenders are out on the yard for the two hours and
need to use the bathroom, security must cooperate with this
need and escort the offender back into their ...