                         NONPRECEDENTIAL DISPOSITION
                 To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                              Submitted November 6, 2015 *
                               Decided November 9, 2015

                                          Before

                            WILLIAM J. BAUER, Circuit Judge

                            JOEL M. FLAUM, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 15-1082

JONATHAN D. WILKE,                                Appeal from the United States District
    Plaintiff-Appellant,                          Court for the Eastern District of Wisconsin.

       v.                                         No. 12-CV-1231-JPS

CHARLES E. COLE, et al.,                          J.P. Stadtmueller,
    Defendants-Appellees.                         Judge.

                                        ORDER

       Jonathan Wilke, a former Wisconsin inmate now in federal custody, contends that
the defendants, all of them employed by the Department of Corrections, did not respond
appropriately to his paruresis, a type of social phobia that makes it difficult to urinate in
the presence of others. See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 300.23 (5th ed. 2013). Wilke characterized his paruresis as both
a serious medical need and a disability. The defendants, he claimed, had been
deliberately indifferent to the condition in violation of the Eighth Amendment, and also

       *After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-1082                                                                       Page 2

had failed to accommodate his phobia in violation of the Americans with Disabilities
Act, see 42 U.S.C. § 12132. The district court dismissed the Eighth Amendment claim at
screening, see 28 U.S.C. § 1915A, and granted summary judgment for the defendants on
the ADA claim. Wilke challenges both rulings. We affirm the judgment.

       Except as noted the pertinent facts are not disputed. Wilke was at Kettle Moraine
Correctional Institution in early March 2011 when he first complained to a nurse about
having a “shy bladder,” another name for paruresis. Wilke explained that he was having
difficulty urinating in the presence of staff when asked to produce a sample for
urinalysis. The nurse agreed with Wilke that his symptoms were consistent with
paruresis, and she recommended various mental exercises. She added, though, that
there was not any known treatment.

       From March 25 to April 16, 2011, Wilke was confined in segregation, but during
that period he did not report any problems attributable to his paruresis. In May 2011,
however, he contacted William McCreedy, the manager of the Health Services Unit,
asking that his paruresis be accommodated when collecting urine samples. McCreedy
refused with the explanation that Wilke had not been diagnosed with paruresis and that
in the past he had been able to provide samples without accommodation.

       In December 2011, Wilke visited the Psychological Services Unit at Kettle Moraine
and asked about treatment for paruresis and an accommodation for urine testing.
Michelle Wilinski, a psychological associate, promptly added Wilke’s name to the list of
inmates needing accommodation (i.e., being left alone in an empty cell to produce the
sample). In taking that step, Wilinski was following her unit’s policy of automatically
granting a urinalysis accommodation to any inmate who self-reports paruresis. The
parties agree that adding a name to the accommodation list is not intended as a
“diagnosis,” but instead is done to protect inmates who might have paruresis from being
disciplined for not providing a urine sample. Even so, Wilinski noted in the plaintiff’s
medical file that he had made a self-report of paruresis, and she also entered an initial
“diagnosis,” pending further investigation, of “social phobia.” Not long after this
interaction with Wilinski, the plaintiff was asked to produce a urine sample without
accommodation. He complied, but the effort was painful. Afterward, Wilinski clarified
that inmates on the accommodation list must still try each time to produce a sample
without accommodation. In practice, though, Wilke may have been taken immediately
to a vacant cell whenever urine was collected (at summary judgment he gave
inconsistent accounts about whether prison staff required him to first try giving the
sample without accommodation).
No. 15-1082                                                                            Page 3

       A few weeks after Wilke first contacted psychological services, the
Security Director, Dylan Radtke, and the Chief Supervising Psychologist, Toby Watson,
met with him to discuss his paruresis. Dr. Watson provided information about the
services available for further assessment and possible treatment, and also noted that
avoidance is not an effective strategy for addressing the phobia. He instructed Wilke to
contact Wilinski, who then met twice with Wilke, in January and February 2012. She
gave him a pamphlet describing coping techniques, which she discussed with him.

        Shortly after the February meeting with Wilinski, Wilke was placed in
segregation, where he shared a cell. Over the next few days, Wilke repeatedly asked the
supervisor of the segregation unit, as well as the medical- and psychological-services
staff, to assign him to a single cell because his paruresis was making it difficult to urinate
in front of his cellmate. This was the first time, Wilke concedes, that he asked to be
housed alone while in segregation. His requests were denied, and in one response,
another psychological associate, Randy Smith, urged him to use the coping techniques
discussed with Wilinski. Smith explained that, as noted in the pamphlet Wilinski had
provided, avoidance of the problem is not an effective treatment. Dr. Watson also
responded to Wilke’s requests, saying that, after consulting with Radtke, he had decided
against giving Wilke a cell to himself.

        In March and September 2012, during two more periods in segregation, Wilke
again contacted psychological services and requested a single cell as an accommodation
to his paruresis. Once again Smith, the psychological associate, and Dr. Watson followed
up with Wilke, though they did not authorize a single cell. In a letter responding to the
plaintiff’s September request, Watson reminded him about a handout on paruresis,
which Smith had sent Wilke so that they could begin working on a treatment plan.
Watson noted that Wilke had not met regularly with the psychological-services staff
after his last stint in segregation, and the psychologist encouraged Wilke to contact
Smith to begin working with him.

       Wilke was released from segregation on November 17, 2012, and a few days later
requested an appointment with psychological services. On December 4, 2012, he filed
this lawsuit. Another psychological associate, Joshua Dolan, met with him later that
month and also in January 2013. They discussed his symptoms and coping techniques.
After that, however, Wilke did not return, and so Dolan wrote him in April 2013. Dolan
noted that Wilke had not been by in three months and encouraged him to submit a
request if he still needed assistance.
No. 15-1082                                                                         Page 4

       In May 2013, Wilke engaged for the first time Kettle Moraine’s process for
requesting reasonable accommodations under ADA. He asked that he be given a single
cell when sent to segregation. The prison’s “accommodations coordinator” denied that
request in June 2013, writing that she had not found confirmation of a paruresis
diagnosis but noting that, even assuming that Wilke suffers from that condition, a
“single cell would be contraindicated.” The coordinator suggested that Wilke continue
working with health services or psychological services to obtain a recommendation for
this particular accommodation.

        After extensive discovery, both sides moved for summary judgment. Wilke
argued that he has a disability for purposes of the ADA (paruresis impairs the
functioning of his bladder, a major life activity, see 42 U.S.C. § 12102), and he also
contended that the defendants had failed to reasonably accommodate him during
urinalysis and while he was in segregation. The defendants disputed that paruresis is a
disability under the ADA and denied that any qualified medical professional had
officially diagnosed Wilke with that condition. In September 2014 the district judge
denied both motions, explaining that neither side had persuaded him that issues of
material fact did not exist concerning whether Wilke was a qualified individual with a
disability and whether he had been denied reasonable accommodations.

       Meanwhile, Wilke had completed his state sentence in May 2014, and
immediately had been taken into federal custody to begin serving a federal sentence.
When the defendants realized that he no longer was in their custody, they obtained
leave to file a renewed motion for summary judgment. This time the defendants argued
that Wilke’s demand for injunctive relief was now moot and that, because he was left
with only a damages action under Title II of the ADA, the suit must be dismissed on the
basis of Eleventh Amendment immunity. The defendants submitted another statement
of undisputed facts, which included their assertion, citing an affidavit from Smith, the
psychological associate, that “providing a single cell accommodation to someone with
paruresis in most instances would make their paruresis condition worse because
avoidance intensifies the anxiety sufferers experience from being around others while
urinating.” Not only did Wilke fail to object to this statement, he concurred. The district
court agreed with the defendants’ new arguments and, in December 2014, granted
summary judgment in their favor.

        On appeal Wilke first argues that the district court erred in dismissing his Eighth
Amendment claim at screening. The district court reasoned that Wilke’s complaint fails
to state a claim for deliberate indifference to a serious medical need because paruresis is
No. 15-1082                                                                           Page 5

not a condition that would be obvious to a lay person and no physician ever had
diagnosed the condition officially. Moreover, the court continued, Wilke’s complaint
alleges that he was receiving care from the prison’s medical staff, and thus he was not
denied care.

        We are skeptical of the district court’s conclusion that Wilke did not allege that he
suffers from paruresis, simply because an “official” diagnosis was never made. Putting
the complaint to one side, it is clear from the substantial record that the defendants all
along understood Wilke to have paruresis, and that many of the defendants likewise
understood the nature of that phobia. In a different case, then, we might find it necessary
to decide if, or under what circumstances, paruresis constitutes a serious medical need.
Compare Roundtree v. Walton, Civil No. 12-cv-1166-JPG, 2013 WL 1840377 (S.D. Ill. May 1,
2013) (concluding that paruresis was serious medical need when condition allegedly
caused inmate’s suicide attempt), and Hunt v. Houston, No. 4:11CV3086, 2011 WL
3897602 (D. Neb. Sept. 6, 2011) (stating that paruresis was serious medical need because
it triggered post-traumatic stress disorder and hypertension), with Brammer v. Northrop,
No. 06-CV-6520 CJS, 2010 WL 681296 (W.D. N.Y. Feb. 24, 2010) (stating that inmate’s
paruresis was not “objectively sufficiently serious” because it arose only during
urinalysis).

        For purposes here we may assume that paruresis can be a serious medical need.
That assumption cannot help Wilke, though, because he’s already had a full opportunity
to develop evidence supporting his Eighth Amendment claim, and that evidence shows
the claim to be without merit. In reviewing Wilke’s complaint, the district court reasoned
that it actually details adequate treatment, not indifference. Essentially, the court
thought that Wilke had pleaded himself out of court. See Atkins v. City of Chicago, 631
F.3d 823, 832 (7th Cir. 2011) (explaining that plaintiff can “plead himself out of court” by
alleging “facts that show that he has no legal claim”). Whether or not we would agree
with that reading of the complaint, we need not blind ourselves to the record developed
during discovery.

       That record confirms that the defendants did not ignore Wilke’s paruresis. After
self-reporting the condition he was given literature about it and taught strategies for
coping. He also received counseling from the psychological-services staff, including two
psychological associates and the chief supervising psychologist. Wilke was encouraged
to meet regularly with the counselors and participate in formulating a treatment plan,
but he did not. Instead, he simply demanded a private cell when housed in segregation,
even though, as he conceded at summary judgment, that very “accommodation”
No. 15-1082                                                                            Page 6

typically would aggravate paruresis because “avoidance intensifies the anxiety”
experienced when urinating around others. Wilke may have changed his mind about
this concession, but his disagreement with the psychological-services staff about how
best to treat his phobia cannot sustain a claim for deliberate indifference. See Snipes v.
DeTella, 95 F.3d 586, 591 (7th Cir. 1996). The same allegations and evidence underlie both
of Wilke’s claims, and, with the benefit of the record developed at summary judgment
on the surviving ADA claim, we are confident that a jury could not reasonably find for
Wilke on the Eighth Amendment claim. For that reason Wilke could not have been
harmed by the dismissal of the claim at screening, even if that dismissal was too hasty.
See United States v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015); Estate of Davis v.
Wells Fargo Bank, 633 F.3d 529, 538 (7th Cir. 2011).

        Next, Wilke argues that the district court erred when it granted summary
judgment in favor of the defendants on his ADA claim. The parties debate whether the
district court properly determined that the defendants are immune from suit despite the
attempted statutory abrogation of sovereign immunity in Title II of the ADA. The
defendants also argue that it was unnecessary to reach this issue because Wilke’s request
for injunctive relief was mooted by his transfer from federal custody, and Wilke did not
argue that he was subject to intentional discrimination, which they contend is required
to obtain compensatory damages under Title II.

        The defendants are correct, and Wilke concedes, that he can no longer seek
injunctive relief because he was transferred from state custody, see Pearson v. Welborn,
471 F.3d 732, 743 (7th Cir. 2006), and he is therefore limited to seeking compensatory
damages. The defendants state that intentional discrimination is thus required, though
we have never published an opinion explicitly taking this position. But we have
observed that all circuits to address the question have reached this conclusion, see CTL
ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 n.4 (7th Cir. 2014), and we noted
that compensatory damages “may be available only for claims of intentional
discrimination.” Reed v. Columbia St. Mary’s Hosp., 782 F.3d 331 (7th Cir. 2015).
Nevertheless, the circuits are split regarding whether discriminatory animus or only
deliberate indifference is required, see S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729
F.3d 248, 262–63 (3d Cir. 2013) (describing different circuits’ standards). We need not
take a position here because the facts Wilke alleges, at worst, demonstrate negligence,
which cannot meet either standard. The defendants were not deliberately indifferent to
his condition when they chose not to grant him a single cell, which they judged—and
Wilke admitted—would likely make his disorder worse. And the record reflects that
No. 15-1082                                                                     Page 7

Wilke failed to seek the treatment that psychological services advised and which would
enable staff to ascertain whether his requested accommodation was in fact necessary.

                                                                          AFFIRMED.
