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McIntosh v. Corizon, Indiana Department of Correction

United States District Court, S.D. Indiana, Terre Haute Division

March 23, 2018



          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff 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 seq.[1]

         Each defendant seeks resolution of the claims alleged against it through summary judgment. The plaintiff has opposed these motions.[2] For the reasons explained below, Corizon's motion for summary judgment, dkt [230], is granted and the IDOC's motion, dkt [229], is denied.

         I. Standard of Review

         Summary 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).

         “The 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).

         II. Statement of Facts

         Applying the standards set forth above, the following statement of facts give Mr. McIntosh, as the non-moving party, the benefit of all reasonable inferences.

         IDOC is 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 facilities.

         Mr. 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.

         A. Putnamville Correctional Facility

         On May 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.

         B. New Castle Correctional Facility

         A 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 for him.

         The 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.

         C. Wabash Valley Correctional Facility

         Mr. 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 oxygen concentrator.

         Mr. 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.

         The 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.

         At 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.

         D. Requests for Accommodation

         To 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

         On 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

         On 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.

         Amy 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.

         In 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.

         December ...

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