Jeffrey Akard v. Wexford of Indiana, LLC

the defendants denied him treatment for his medical conditions in violation of his rights under the Eighth and Fourteenth Amendments, see 42 U.S.C. § 1983, and failed to accommodate his disability in violation of the Rehabilitation Act, see 29 U.S.C. §§ 701-

797. The district court dismissed some of Akard's claims at screening and entered summary judgment for three of the defendants. We affirm.

I.

Because Akard challenges the dismissal of some of his claims at screening, see 28 U.S.C. § 1915A, we begin with the allegations in his complaint. As he alleges, this case stems from the care he received for his medical conditions—gastroesophageal reflux disease (GERD) and chronic back and shoulder pain—while incarcerated within the Indiana Department of Correction, first at Wabash Valley Correctional Facility in Carlisle, Indiana (2019-2020), and later at New Castle Correctional Facility in New Castle, Indiana.

Akard sued the Commissioner of the Indiana Department of Correction; Mark Sevier, the superintendent at New Castle; Wexford of Indiana, LLC (which provided medical care for the Indiana Department of Correction from 2019 to July 2021); and Centurion Health of Indiana, LLC (which thereafter took over as the Department's health-care provider). In his operative complaint, Akard asserted that Wexford and Centurion were deliberately indifferent to his serious medical conditions in violation of his rights under the Eighth Amendment. He alleged, for instance, that Wexford's and Centurion's policies resulted in the cancellation of his prescribed GERD medication, the denial of his requests to be prescribed a different medication (Omeprazole), and the denial of a bottom-bunk pass to accommodate his chronic shoulder and back pain. Next, he alleged that the Department of Correction and Sevier subjected him to unconstitutional conditions of confinement because prison rules prevented him from leaving his cell to prepare special "GERD-friendly" meals using a microwave or hot water machine. Akard also alleged that all four defendants violated his rights under the Rehabilitation Act by denying him accommodations for his disability, including a special mattress, a lumbar roll, and a prison job that did not involve prolonged standing or repetitive use of his left shoulder. Finally, he alleged that he was denied equal protection in violation of the Fourteenth Amendment because the treatment of his conditions while in state custody differed from the treatment he received during his prior federal custody.

2

The district court screened Akard's operative complaint, see 28 U.S.C. § 1915A(b)(1), and dismissed his equal protection claim because he did not allege that he was treated differently than similarly situated incarcerated persons. The district court dismissed his Rehabilitation Act claims against all defendants except the Commissioner (in his official capacity) because there was no personal liability under the statute. The court allowed Akard to proceed against Wexford and Centurion with his deliberate-indifference claims that the two providers had policies, practices, or customs that caused him to be denied medication and a bottom-bunk pass. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). Finally, the court allowed Akard to move forward on his claim against Sevier (in his official capacity) that New Castle's policies prevented him from leaving his cell to prepare his own meals.¹

After discovery, each defendant individually moved for summary judgment. The evidence, which we view in Akard's favor, see Thomas v. Blackard, 2 F.4th 716, 720 (7th Cir. 2021), fills out the picture of how the defendants handled Akard's requests for medication and bunk accommodations. First, Wexford providers stated in affidavits that nationwide supply shortages led to the initial cancellation of his prescription in 2020. Additionally, Wexford and Centurion providers attested that their policies— informed by new medical research and concerns about long-term use—limited prescriptions of certain medications, including Omeprazole, and that Akard's condition did not meet the qualifying criteria. Medical staff therefore denied his requests and instructed him to obtain over-the-counter medication from the commissary, which Akard admitted during discovery that he was able to do. As for the bottom-bunk pass, Wexford and Centurion introduced evidence that they limited bottom-bunk availability to prisoners with specific conditions that Akard was determined—after a physician's evaluation—not to have. And after Centurion took over his care in 2021, Akard did not renew his requests for a bottom-bunk pass.

In separate but similarly worded orders, the court entered summary judgment for Wexford and Centurion. The court concluded that no reasonable jury could find an Eighth Amendment violation because there was no evidence suggesting that Wexford's and Centurion's decision-makers knew that their policies would cause patients to go untreated or face a substantial risk of harm. As to the medication, Akard admitted that he had "never gone without" some medication and could obtain over-the-counter medication from the commissary to manage his symptoms. As for the bottom-bunk

3

passes, the court emphasized that the policies gave physicians the discretion to request exceptions, that Wexford providers denied Akard's request after a thorough evaluation, and that Akard never renewed his request after Centurion took over his care. The court, however, denied the Commissioner's motion for summary judgment on Akard's Rehabilitation Act claim, finding that fact questions remained over whether Akard had been denied reasonable accommodations related to his sleep, self-care, and work. (The parties later settled this claim.)

II.

On appeal, Akard generally challenges the court's entry of summary judgment on his claims that Wexford and Centurion were deliberately indifferent to his serious medical needs based on policies that caused him to be denied medication and a bottom- bunk pass. See Monell, 436 U.S. at 690. Regarding the denial of medication, he asserts that the court overlooked facts that bore upon Wexford's and Centurion's knowledge of the substantial risk to his health posed by their policies limiting Omeprazole prescriptions: the intermittent unavailability of alternative over-the-counter medications for purchase at the commissary, the daily limits on purchases of over-the- counter medication at the commissary, and the necessity that these limitations created to buy unspecified medication from other inmates at a higher price. The district court properly entered summary judgment on this claim because no reasonable jury could conclude there was an underlying constitutional violation giving rise to liability under Monell. See Gaetjens v. City of Loves Park, 4 F.4th 487, 495 (7th Cir. 2021). As the court concluded, there is no indication that Wexford or Centurion acted with conscious disregard toward a substantial risk of harm to Akard. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The record reflects that Wexford's and Centurion's policy of limiting Omeprazole prescriptions was based on medical concerns about side effects associated with long-term use. And Akard admitted in a deposition that he had

"never gone without" some medication for his GERD, noting that he was able to obtain it from the commissary or through other means. Even if Akard's preferred medication was at times unavailable at the commissary, no reasonable jury could find a pattern, practice, or custom that caused a constitutional deprivation, much less one that Wexford and Centurion consciously disregarded. See Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021).

As for the denial of the bottom-bunk pass, Akard contends that the court overlooked evidence that Wexford's and Centurion's policies reflected conscious

4

disregard for health risks. He suggests that the companies knew of his disability and acted in bad faith by minimizing the severity of his condition. But the court did not err. Akard's purported evidence would not allow a reasonable jury to find that the companies knew their policies would lead to constitutional violations. The record shows that Akard was carefully evaluated by a Wexford physician who concluded based on his medical judgment that Akard did not meet Wexford's standard criteria for a bottom-bunk pass. See Clemons v. Wexford Health Sources, Inc., 106 F.4th 628, 635 (7th Cir. 2024). And after Centurion took over his care, Akard did not renew his request for a bottom-bunk pass.

Akard turns next to the district court's screening order, see 28 U.S.C. § 1915A(b)(1), and asserts that the court wrongly dismissed his Rehabilitation Act claim against Wexford, Centurion, and Sevier for lack of personal liability. Here too the court did not err. To proceed on his claims under the Rehabilitation Act against all defendants, Akard needed to plausibly allege that each defendant intentionally denied him access to a service or program "solely by reason of … his disability." 29 U.S.C. § 794(a); see Shaw v. Kemper, 52 F.4th 331, 335 (7th Cir. 2022). The court rightly noted that Sevier was not a proper defendant because there is no personal liability under the Act. See Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 644 (7th Cir. 2015). And because Akard did not allege in his second amended complaint that Wexford and Centurion—both private companies—receive federal funds (thus subjecting them to suit under the Act), the court correctly dismissed Akard's claims against them. See Jaros v. Illinois Dep't of Corr., 684 F.3d 667, 671-72 (7th Cir. 2012). Akard also challenges the court's dismissal, at screening, of his equal protection claim, which, he asserts, he later supplemented with allegations that similarly situated prisoners were prescribed GERD medication and received accommodations for meal preparation. But he filed these supplemental allegations too late. The court had warned him that failure to include all relevant facts in his second amended complaint could result in dismissal, see Vexol, S.A. de C.V. v. Berry Plastics Corp., 882 F.3d 633, 637-38 (7th Cir. 2018), and Akard already had made repeated, unsuccessful attempts to state an equal-protection claim.

Akard lastly challenges the denials of his repeated efforts to obtain counsel. The court had denied one such motion early in the litigation on grounds that Akard was competent to litigate the case himself. The court gave a similar explanation when Akard

5

twice renewed his request while discovery was underway.²These rulings were well within the court's discretion. For each motion, the court correctly applied the standard under Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc), and considered Akard's unsuccessful efforts to recruit counsel before determining—based on the nature of the case and the relative clarity of Akard's filings—that he appeared competent to litigate the case himself. For similar reasons, we DENY Akard's motion for reconsideration of our order of June 10, 2025, denying his motion for recruitment of counsel. We have considered Akard's other arguments, and none requires discussion.

AFFIRMED

6