United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
William T. Lawrence, Judge.
cause is before the Court on the parties' cross-motions
for summary judgment. The motions are fully briefed, and the
Court, being duly advised, DENIES the Plaintiffs motion (Dkt.
No. 52) and the Defendants' motion (Dkt. No. 60) for the
reasons set forth below.
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate "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." In ruling on a
motion for summary judgment, the admissible evidence
presented by the non-moving party must be believed, and all
reasonable inferences must be drawn in the non-movant's
favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th
Cir. 2009) ("We view the record in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor."). When the Court
reviews cross-motions for summary judgment, as is the case
here, "we construe all inferences in favor of the party
against whom the motion under consideration is made."
Speciale v. Blue Cross & Blue Shield Ass 'n,
538 F.3d 615, 621 (7th Cir. 2008) (quotation omitted).
"'[W]e look to the burden of proof that each party
would bear on an issue of trial.'" Diaz v.
Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th Cir.
2007) (quoting Santaella v. Metro. Life Ins. Co.,
123 F.3d 456, 461 (7th Cir. 1997)). However, a party who
bears the burden of proof on a particular issue may not rest
on its pleadings, but must show what evidence it has that
there is a genuine issue of material fact that requires
trial. Johnson v. Cambridge Indus., Inc., 325 F.3d
892, 901 (7th Cir. 2003). Finally, the non-moving party bears
the burden of specifically identifying the relevant evidence
of record, and "the court is not required to scour the
record in search of evidence to defeat a motion for summary
judgment." Ritchie v. Glidden Co., 242 F.3d
713, 723 (7th Cir. 2001).
Neal has filed an action seeking an injunction enjoining the
Defendants from violating the Rehabilitation Act, 29 U.S.C.
§ 701, et seq., and the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101, et seq.
Specifically, he has requested that the Indiana Department of
Corrections ("IDOC") provide him with a wheelchair
so that he can participate in rehabilitative and vocational
activities offered at Miami Correctional Facility, an Indiana
state prison managed by IDOC. Neal alleges that he is unable
to walk more than a few hundred feet without experiencing
pain and discomfort. He alleges that he would like to
participate in vocational, educational, and rehabilitative
programs offered by IDOC. Specifically, Neal wants to
participate in the Purposeful Living Units Serve
("PLUS") program, which is located in the
"H" dormitory at Miami Correctional Facility. Neal
alleges that to be able to participate in the PLUS program he
needs a wheelchair because he is unable to walk the increased
distance between the "H" dorm and the mess hall and
II of the ADA provides that "no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity." 42
U.S.C. § 12132. A "public entity" includes
"any department, agency, special purpose district, or
other instrumentality of a State or States or local
government." 42 U.S.C. § 12131(1)(B). Section 504
of the Rehabilitation Act provides that "[n]o otherwise
qualified individual with a disability in the United States .
. . shall, solely by reason of his or her disability, be
excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance." 29
U.S.C. § 794(a). The term "program or
activity" includes the operations of state agencies.
Id. § 794(b). The Seventh Circuit has noted
"that the standards applicable to one act are applicable
to the other. Title II of the ADA was modeled after §
504 of the Rehabilitation Act; the elements of claims under
the two provisions are nearly identical, and precedent under
one statute typically applies to the other."
Washington v. Ind. High Sch. Athletic Ass 'n,
Inc., 181 F.3d 840, 845 n.6 (7th Cir. 1999). Further,
"the analysis governing each statute is the same except
that the Rehabilitation Act includes as an additional element
the receipt of federal funds, which all states accept for
their prisons." Jaros v. III. Dep 't of
Corr., 684 F.3d 667, 671 (7th Cir. 2012) (citations
violation of Title II of the ADA may be demonstrated in one
of three ways: (1) by demonstrating that the defendant
intentionally discriminated against the plaintiff based on
his or her disability; (2) by demonstrating that the
defendant has enacted a rule or policy that
disproportionately impacts persons with disabilities; or (3)
by demonstrating that the defendant has failed to reasonably
accommodate the plaintiff. Wise. Cmty. Servs., Inc. v.
City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006)
(citation omitted). In order for Neal to establish a
violation of the Rehabilitation Act, and a concomitant
violation of the ADA, he must demonstrate that (1) he is
qualified to participate in the programs and activities
sought; (2) he has a disability within the meaning of the
statutes; and (3) he is being denied the benefits of
services, programs or activities offered generally to the
inmate population because of his disability, which equates to
the DOC refusing to make a reasonable accommodation.
Jaros, 684 F.3d at 672.
purposes of summary judgment, the parties agree that the
first two requirements are met: Neal has a disability, he is
an otherwise qualified individual who wants to participate in
the PLUS and PEN Products programs, and he meets the minimum
requirements necessary for those programs. The parties also
agree that, should he be accepted into the PLUS program or
the PEN Products program, Neal would be required to live in
dormitories that would increase the distance he would have to
walk to get his meals and medications. However, the parties
dispute the critical issue in the case: whether the cane that
the DOC has provided to Neal is a reasonable accommodation.
an accommodation is "reasonable" requires a
balancing of all the relevant facts, including (1) the size,
facilities, and resources of the defendant, (2) the nature
and cost of an accommodation, (3) the extent to which the
accommodation is effective in overcoming the effects of the
disability, and (4) whether the accommodation would require a
fundamental alteration in the nature of the defendant's
program. See, e.g., 45 C.F.R. § 84.12(c)(1-3);
School Bd. of Nassau County v. Arline, 480 U.S. 273,
288 n. 17 (1987). As such, the reasonableness of an
accommodation is generally a question of fact inappropriate
for resolution on summary judgment. See, e.g., Buskirk v.
Apollo Metals, 307 F.3d 160, 170-71 (3d Cir. 2002)
("Generally, the question of whether a proposed
accommodation is reasonable is a question of fact.");
cf. Oconomowoc Residential Programs v. City of
Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002)
("Whether a requested accommodation [under the Fair
Housing Amendments Act] is reasonable or not is a highly
fact-specific inquiry and requires balancing the needs of the
has presented the following evidence that, if viewed in the
light most favorable to him, demonstrates that a cane is not
a reasonable accommodation. Neal will experience a
significant increase in pain and risk further injury if he is
forced to walk the distances that would be required to access
the PEN or PLUS program. Neal sustained serious injuries in
1999 after being run over by a Suburban SUV. Since that time,
he has suffered from osteoarthritis in his knees and ankles.
In 2014, he was diagnosed with degenerative disc disease. Due
to these chronic conditions, Neal suffers from constant pain
in his ankles, legs, knees, hips, back and neck. He has
muscle weakness in his legs and back, nerve impingement that
causes a pins and needles sensation in his feet, and reduced
range of motion in his knees and ankles. Neal's left
ankle locks up when he stands or walks for too long. Walking
causes Neal's symptoms to increase significantly, and he
is unable to walk more than a few hundred feet at a time
without experiencing significant pain and discomfort: his
legs and ankles swell, and his pain level increases. The more
Neal walks, the more fatigued his legs become, and they
eventually give out. Due to his impairments, Neal has fallen
and suffered injuries several times while incarcerated, and
he faces a real threat of further injury if he attempts to
walk the distances that would be required to access either
the PEN or PLUS program.
Defendants present the following evidence that, if viewed in
the light most favorable to them, demonstrates that the cane
they have provided Neal is a reasonable accommodation:
Ann Myers, a nurse practitioner who has treated Neal,
testified that she has observed Neal walking several times.
"He had a mild limp on the right side. He was walking
with his cane. He was not weight bearing with his cane. He
was keeping stride with all ...