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Adell v. State, Department of Corrections

United States District Court, E.D. Wisconsin

December 21, 2017

MARK ANTHONY ADELL, Plaintiff,
v.
STATE OF WISCONSIN DEPARTMENT OF CORRECTIONS and JON LITSCHER, Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         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 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 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).

         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 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 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 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 ...


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