Thompson v. Dir. of the Ill. Dep't of Corr.

DENNIS THOMPSON, Plaintiff, v. DIRECTOR OF THE ILLINOIS DEPARTMENT OF CORRECTIONS,RICHARD HARRINGTON, KIMBERLY BUTLER,and JACQUELINE LASHBROOK, Defendants.

Case No. 3:15-cv-850-NJR-DGW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

September 27, 2018

MEMORANDUM AND ORDER

ROSENSTENGEL, District Judge:

This matter is before the Court on the Motion for Summary Judgment filed by the Director of the Illinois Department of Corrections ("IDOC"), Richard Harrington, Kimberly Butler, and Jacqueline Lashbrook ("Defendants") (Doc. 174) and the Motion for Summary Judgment filed by Plaintiff Dennis Thompson (Doc. 178). For the reasons set forth below, both motions are granted in part and denied in part.

BACKGROUND

Thompson, an IDOC inmate at Menard Correctional Center, is morbidly obese and suffers from a number of related health conditions. Since 2010, Thompson has complained to his doctor of back, neck, hip, and knee pain, for which he has received pain medication (See Doc. 178-2, pp. 44-54, Doc. 178-3, pp. 1-36). His doctor diagnosed him with myospasm of the cervical spine (muscle contractions), paresthesia (tingling sensation), mild polyarthritis, mild to moderate osteoarthritis, and degenerative changes (Doc. 178-2, pp. 32-34). Thompson's doctor believed that exercise and weight loss would improve his conditions and symptoms and would be beneficial to his overall health.

On November 19, 2013, Thompson was moved from the South Cell House at Menard to the North Two Cell House ("North Two") (Doc. 175-1). Thompson claims that the cells in North Two are too small for him to do his exercises. Thompson also testified that while housed in North Two, he was subjected to other inmates' noises, including banging on desks/doors and singing "all day and night," which caused him anxiety, the inability to concentrate, and the inability to hear his own television (Doc. 178-5, p. 35). He was compelled to interact with inmates with higher aggressive levels and on segregation status. The gym in North Two was merely a converted lunch room with limited facilities. Walking on its concrete floor exacerbated his knee and hip pain, there was no separate area for weights, and there were only two basketball rims (Id., p. 36). The gym was "basically useless" (Id.). In addition to the cells being too small to exercise in, Thompson's yard time and gym time were often cancelled due to lockdowns, weather conditions, and other reasons (Doc. 177).

Thompson claims that the decision to move him to North Two, and the subsequent refusal to move him back, was made by Defendants Harrington and Butler in retaliation for filing lawsuits. Thompson testified that he had a verbal run-in with former Warden Harrington and Defendant Butler shortly after he had been moved to North Two. Thompson testified that Warden Harrington said to him:

Thompson, do you really believe me and my staff have time to be answering lawsuits? We take lawsuits and threats—and we take lawsuits as threats, and this is what we do to prisoners who file them. We put your ass back here in north 2 where you can sit with the psych and segregation staff as status prisoners and listen to them yell and beat on the bars and decks all day. Thompson, you had it made. You were in the South lower, the suburbs of the prison. I personally ordered for you to be moved back here. (Doc. 179-1, p. 112).

The lawsuits Warden Harrington was referring to were Thompson v. Tourville, et al., 3:13-cv-333-NJR-DGW, Thompson v. Nwaobasi, et al., 3:12-cv-770-MJR-PMF, and a case in the Central District of Illinois, Thompson v. Pfister, et al., 13-3032-SEM-BGC (Id., pp. 121-22). The Nwaobasi case had been dismissed for failure to pay the filing fee, and Thompson had written a letter to the trust fund office expressing his displeasure that his case had been dismissed due to the staff's inaction.

Thompson testified that Defendant Butler was with Harrington during this entire conversation. It is clear from Thompson's testimony, however, that Butler was unaware of both his litigation history and the letter he sent to the trust fund office regarding the dismissed case (Doc. 179-1, p. 112). There is no evidence Butler had anything to do with Thompson's transfer or any knowledge of his previous lawsuits prior to his transfer.

During this same conversation, Thompson conveyed to Butler and Harrington that his cell does not accommodate his exercise and medical needs (Id., pp. 112-13). He explained that he had degenerative joint disease in his spine, shoulders, and knees, and that he needed to exercise throughout the day (Id., p. 113). He demonstrated to them that his cell — which was only 4'6" wide and 10'6" long—was so narrow he could not exercise as medical professionals have instructed him to do (Id.; Doc. 178-2, p. 5).¹ In response, Warden Harrington said: "Thompson, you should have thought about all this before you filed those lawsuits" (Doc. 179-1, p. 113). He also told Thompson he would not contact the healthcare unit regarding Thompson's medical needs (Id., pp. 113, 131).

Harrington's term as Warden of Menard ended on April 16, 2014 (Doc. 175, p. 3). That same day, Kimberly Butler became the Warden, and Jacqueline Lashbrook became the Assistant Warden (Doc. 175, p. 3). Thompson avers that "at one time or another" he told each Defendant about his medical conditions, the exercises he was directed to perform, and medical records that confirm the same (Doc. 179-1, p. 101). However, "each Defendant stated to me that they did not care about my medical condition or housing needs as I should have thought about my medical needs (housing as well) before I filed the suits I had filed and 'threaten' to file more" (Id.).

Since his move to North Two, Thompson's cell conditions and lack of exercise have caused him to walk with a noticeable limp, he is in pain, and he has a loss of range of motion in his hip (Doc. 178-5, p. 36; Doc. 178-3, p. 31). Medical records from 2014 forward reveal complaints of neck pain, arthritis, shoulder pain, hip pain, and back pain. Various radiographic reports reveal degenerative changes in his spine, knee, shoulder, and hip (Doc. 178-3, pp. 23-26).

While his physical state was determined to be "normal" on May 30, 2015, Thompson's complaints of generalized joint pain appear to be unremitting (Doc. 178-3, pp. 3). A December 2015 radiographic report noted progression of degenerative disc disease in his lumbar spine (Id., p. 27). The following month, another report revealed moderate to severe osteoarthritis in the right hip (Id., p. 28). In March 2016, a prison doctor referred Thompson for an orthopedic referral for hip pain and apparent hip dysplasia (Doc. 178-3, p. 18). The consultation revealed "acetabular dysplasia of the right hip," and it was recommended that he be given pain medication and physical therapy (Id., p. 32). A subsequent request for a consultation with a specialist was denied by medical personnel in June 2017 (Id., p. 22). In August 2017,Thompson's physical therapist gave him instructions on how to perform various exercises (Doc. 178-5, p. 30). The instructions outline standing and sitting range-of-motion exercises to be performed twice a day (Id.).

After various court orders, Thompson is now proceeding in this lawsuit on four counts (Docs. 16, 109). In Count 3, Thompson claims Defendants Harrington and Butler retaliated against him for filing lawsuits by moving him to North Two and by refusing to transfer him out of North Two, in violation of the First Amendment. In Count 4, Thompson claims the IDOC Director and Defendant Butler's policy, custom, or practice of making housing decisions without input from the medical staff violates his rights under the Eighth Amendment. In Count 5, Thompson asserts the IDOC Director violated his rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (the "ADA") and/or the Rehabilitation Act, 29 U.S.C. §§ 794-94e (the "RA"), by denying him accommodations for his degenerative joint and disc disease and his obesity by placing him in a larger cell. Finally, in Count 6, Thompson avers Defendants Harrington, Lashbrook, and Butler subjected him to unconstitutional conditions of confinement, in violation of the Eighth Amendment, when they assigned him to the North Two Cell House.

LEGAL STANDARD

Summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v.S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha Cty., 391 F.3d 837, 841 (7th Cir. 2004).

A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).

DISCUSSION

I. Count 3: Retaliation

In Count 3, Thompson alleges that Defendants Harrington and Butler retaliated against him for filing lawsuits by transferring him to North Two cell house and later refusing to move him out of North Two.

"An act taken in...