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Dunmore v. Shicker

United States District Court, S.D. Illinois

January 7, 2020

JAMES E. DUNMORE, Plaintiff,



         Pending 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.

         Procedural Background

         Plaintiff 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 following claims:

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”;[1] 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 yard

(Doc. 7).

         On May 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.

         The 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.

         Second, 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.

         That 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.

         Factual Background

         Plaintiff 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).[2] 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).

         The 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).

         During 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).

         Dr. 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, 19).

         Plaintiff 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.).

         Following 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).[3]

         Defendant 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).

         Dr. Coe 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. 12).[4] 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).

         Dr. Coe 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).

         Dr. Coe 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).[5] 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” (Id.).

         The 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).

         In 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).

         In June 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).

         Plaintiff 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 pp. 20-21).

         Plaintiff 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).

         A. Facts Related to Plaintiff's ADA Claim

         As 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).[6][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.[8] 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).[9] 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 himself (Id.).

         Plaintiff 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.).

         For 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 memorandum stated:

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 ...

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