United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING CORIZON'S MOTION FOR SUMMARY
JUDGMENT AND DENYING INDIANA DEPARTMENT OF CORRECTION'S
MOTION FOR SUMMARY JUDGMENT
Jane Magnus-Stinson, Chief Judge
Michael McIntosh, a former Indiana state prisoner, alleges
that employees of the Indiana Department of Correction
(“IDOC”) and Corizon, Inc.
(“Corizon”) failed to accommodate his disability.
They allegedly failed to provide him with a portable oxygen
tank and wheelchair after he was transferred to Wabash Valley
Correctional Facility (“Wabash Valley”). As a
result, Mr. McIntosh spent the majority of his time confined
to his prison cell or within its immediate vicinity, in order
to stay close to his oxygen concentrator. This restricted Mr.
McIntosh's opportunities to participate in recreation,
attend church services, or visit the law library. His claims
are brought under the Rehabilitation Act, 29 U.S.C. §
794 et seq., and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et
defendant seeks resolution of the claims alleged against it
through summary judgment. The plaintiff has opposed these
motions. For the reasons explained below,
Corizon's motion for summary judgment, dkt , is
granted and the IDOC's motion, dkt
, is denied.
Standard of Review
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A “material fact”
is one that “might affect the outcome of the
suit.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The Court views the facts in the light
most favorable to the non-moving party and all reasonable
inferences are drawn in the non-movant's favor. Ault
v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). The key
inquiry, is whether admissible evidence exists to support a
plaintiff's claims, not the weight or credibility of that
evidence, both of which are assessments reserved to the trier
of fact. See Schacht v. Wis. Dep't of
Corrections, 175 F.3d 497, 504 (7th Cir. 1999).
applicable substantive law will dictate which facts are
material.” National Soffit & Escutcheons, Inc.,
v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir.
1996) (citing Anderson, 477 U.S. at 248).
Statement of Facts
the standards set forth above, the following statement of
facts give Mr. McIntosh, as the non-moving party, the benefit
of all reasonable inferences.
the State agency in charge of operating Indiana's
correctional facilities. IDOC receives federal funding. Prior
to April of 2017, IDOC contracted with Corizon to provide
medical services to inmates incarcerated at its correctional
McIntosh has multiple medical conditions that affect his
breathing, including chronic obstructive pulmonary disease
(“COPD”), emphysema, and asthma. Prior to his
2012 incarceration, Mr. McIntosh had surgery to remove his
right lung due to lung cancer.
Putnamville Correctional Facility
23, 2012, Nurse Practitioner Jennifer A. Barnes examined Mr.
McIntosh and noted that he was oxygen dependent and
“has increased work of breathing with ANY
activity.” Dkt. 2-2 at 15 (emphasis in original). While
incarcerated at Putnamville Correctional Facility, Mr.
McIntosh's breathing started getting louder and louder.
The medical staff sent him to the hospital.
New Castle Correctional Facility
couple of days later, Mr. McIntosh was transferred to New
Castle Correctional Facility. Mr. McIntosh's breathing
kept getting worse. Mr. McIntosh could not walk very far
without his oxygen levels dropping. On August 13, 2012,
within 90 days of arriving at New Castle Correctional
Facility, a doctor ordered a portable oxygen tank for Mr.
McIntosh after reading his oxygen levels. Two weeks later,
Mr. McIntosh received a wheelchair after a doctor ordered it
portable oxygen tank was an oval shaped, one-and-a-half foot
tall refillable tank. It had a strap on it so Mr. McIntosh
could carry it. It weighed 6-8 pounds. Mr. McIntosh stayed on
oxygen continuously, either by using his portable tank, or an
oxygen concentrator which was stationed next to his bed. When
Mr. McIntosh needed his oxygen tank refilled, he would take
it to the medical staff and they would refill it and give it
back to him. Initially, Mr. McIntosh could walk from his bed
to the dining hall without oxygen, but eventually reached a
point where he couldn't walk to the dining hall, which
necessitated the wheelchair. Mr. McIntosh used the wheelchair
90 percent of the time. Periodically, Mr. McIntosh attempted
to test himself by walking without oxygen, but his breathing
was getting progressively worse.
Wabash Valley Correctional Facility
McIntosh was transferred to Wabash Valley on February 8,
2013. Mr. McIntosh was physically transported in a van. IDOC
took Mr. McIntosh out of his wheelchair to seat him in the
van. The wheelchair stayed at New Castle. Mr. McIntosh kept
his portable oxygen tank while the van was in transit. When
Mr. McIntosh arrived at Wabash Valley, one of the officers
said that he had to take the portable oxygen tank with him
back to New Castle, and he did. Mr. McIntosh was immediately
taken to the hospital at Wabash Valley, where he received an
McIntosh's oxygen concentrator was placed in his cell. An
oxygen concentrator uses air to make oxygen for the patient
and plugs into the wall and has tubing and a nasal cannula
attached for the patient to breathe in the oxygen. The tube
is approximately 5 feet long.
concentrator was rectangular and about two-and-a-half feet
long, two-and-a-half feet high, and a-foot-and-a-half wide.
It had four wheels but no handle. The concentrator weighed
approximately 45 pounds. Mr. McIntosh attempted to move the
oxygen concentrator, but he could not carry it. Mr. McIntosh
tried to grab it by the cord and pull on it, but officers
told him not to move it that way. Mr. McIntosh could only
take the concentrator to places where it could be plugged in.
If it was not plugged in within a minute of being moved, Mr.
McIntosh would run out of air.
Wabash Valley, Mr. McIntosh was enrolled in the Chronic Care
Clinic, which means he was seen by a medical provider every
90 days for his chronic conditions. A provider is either a
doctor or nurse practitioner. When Mr. McIntosh was taken to
the infirmary for his appointments, an IDOC guard would take
him there in a wheelchair with a portable oxygen tank. Dkt.
236-2 at p. 47.
Requests for Accommodation
request health care, inmates at Wabash Valley were required
to fill out a Heath Care Request Form and put it in a box to
be reviewed by medical staff. Mr. McIntosh submitted multiple
Health Care Request Forms and grievances requesting a
portable oxygen tank and/or wheelchair.
March 24, 2013, Mr. McIntosh filled out a Health Care Request
Form seeking a portable oxygen tank. Dkt. 2-2 at 17. Mr.
McIntosh wrote that he needed an oxygen source that he could
take outside for recreation and whenever he needed to go
somewhere. He wrote that he was told that he could not pull
the oxygen concentrator by its cord, but that he had no other
way of carrying it. He wrote that he could not help that he
was handicapped, but wished he could. He also wrote that he
had not eaten since Saturday because he could not carry the
oxygen concentrator and that he did not want a write-up.
Marla Gadberry, R.N., responded to Mr. McIntosh's
request. Nurse Gadberry wrote that Mr. McIntosh could take
his oxygen concentrator out of his cell as needed and plug it
into the day room.
December 7, 2013, Mr. McIntosh submitted another Health Care
Request Form. Mr. McIntosh wrote that he needed a portable
air tank so that he could go to outside recreation, the gym,
and to church if he wanted to go. Dkt. 236-1 at 17.
Wright, R.N., responded to Mr. McIntosh's request. Nurse
Wright responded that Mr. McIntosh's oxygen was
“ordered only as needed, ” and that he didn't
have to “wear it all the time.” When Nurse Wright
received Mr. McIntosh's request, she looked up Mr.
McIntosh's oxygen orders in the computer. She did not do
anything else. Mr. McIntosh's order for a portable oxygen
tank at New Castle Correctional Facility did not show up in
Wabash Valley's computer records. Nurse Wright's
response was entirely based on her review of the computer
records, and not any personal observations of Mr. McIntosh.
order for Mr. McIntosh to receive a portable oxygen tank or
wheelchair, it needed to be ordered by a doctor or nurse
practitioner. At her deposition, Nurse Wright did not recall
considering speaking with a doctor about Mr. McIntosh's
request for a portable oxygen tank. Nurse Wright did not
recall telling Mr. McIntosh that she could not order one for
him, that any other nurse could not order one for him, or
that he needed to schedule an appointment with a physician.