     Case: 18-50765   Document: 00515257655     Page: 1   Date Filed: 01/03/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                 No. 18-50765
                                                                  January 3, 2020
                                                                   Lyle W. Cayce
APRIL CADENA,                                                           Clerk

             Plaintiff - Appellant

v.

EL PASO COUNTY,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Western District of Texas


Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      April Cadena seeks review of the district court’s dismissal of her claim
against El Paso County under the Americans with Disabilities Act (ADA) and
42 U.S.C. § 1983. We reverse the district court’s summary judgment dismissal
of Cadena’s ADA claim because a reasonable jury could find that the County
intentionally denied Cadena reasonable accommodations. However, we affirm
summary judgment dismissal of Cadena’s § 1983 claim because Cadena cannot
show that she was subjected to an unconstitutional condition of confinement,
or that the medical treatment that she received was so deficient that it
amounted to deliberate indifference to a serious medical need.
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                                 No. 18-50765
                                       I.
      The El Paso police arrested Cadena on June 23, 2014 on an outstanding
warrant for failure to appear. At the time of her arrest, Cadena was in a
wheelchair because she had undergone surgery on her right leg to repair a
broken tibia three days earlier. She was discharged from the hospital only 24
hours before her arrest with instructions stating “no weight bearing” for her
right leg and notes from a physical therapist explaining that she “will not be a
candidate for crutches . . . and will have to be discharged with a wheelchair.”
      Cadena was then taken to the El Paso County Detention Facility, where
a licensed vocational nurse (LVN) conducted a medical intake procedure.
Viewing the facts in the light most favorable to Cadena, she told the LVN that
she could not walk, which was why she had a wheelchair. The intake form
filled out by the LVN indicated that Cadena “had knee surgery yesterday” but
determined that she was “able to stand independently” because Cadena stood
during the intake when asked to do so. Based on the intake procedure, the
County’s physician, Dr. Salazar, gave telephonic orders that Cadena be given
pain medication, that she follow up with an orthopedic physician in two weeks,
that she be given crutches, that she be assigned to a lower bunk, and that she
be given wound care on her right leg. Cadena testified that after intake, her
wheelchair was taken away. She also testified that as she was being led to her
cell, she overheard staff saying “that there was no space in the county for a
person in a wheelchair.”
      A few hours later, Cadena visited the medical clinic and requested a
wheelchair. Cadena told the two officers escorting her to the clinic that she
could not walk with crutches and needed a wheelchair. On the way to the
clinic, she stumbled while attempting to move using crutches, and the officers
had to catch her before she hit the floor. After this, Officer Davila, one of the
officers escorting her, obtained a wheelchair and wheeled Cadena the rest of
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                                  No. 18-50765
the way to the clinic. At the clinic, Cadena testified that Nurse Fuentes told
her that there was no space on the floor for a wheelchair. Cadena testified that
she was left in her cell with only crutches after the clinic visit.
        On June 25, 2014 at 10:30 a.m., two days after her arrival, the medical
staff entered an order allowing Cadena to keep her wheelchair. At about 4:30
p.m. that day, however, Cadena did yet not have a wheelchair at mealtime and
fell in her cell while trying to carry a tray with food on crutches. In Cadena’s
unit, patients were required to walk to the end of the cellblock to retrieve trays
of food and to carry the trays back to their cells to eat. Cadena testified that
Officer Davila, the same officer who had escorted her to the clinic, was
overseeing this process. Cadena testified that she asked Officer Davila to
deviate from this procedure—either by bringing Cadena’s tray to her cell or by
allowing Cadena to eat in the area where the trays were being handed out—so
that Cadena would not have to carry a tray while using crutches. Cadena
testified that Officer Davila refused these requests. Cadena fell while trying
to carry both her tray and her crutches back to her cell.
        Cadena was taken to the jail’s medical clinic, and then to the emergency
room.     The emergency room physician recommended a boot, non-weight
bearing status, and a follow up appointment with Cadena’s orthopedic surgeon
the next day. After her fall, Cadena reported pain in her leg as a 7 out of 10.
Cadena testified that her leg was twisted with her foot facing the middle of her
body, and her medical records confirm that her tibia was “malaligned.” The
County made a follow-up appointment for Cadena to see an orthopedic surgeon
at Texas Tech Orthopedic Clinic on July 14, 2014, which was the earliest
appointment available at that clinic.        Cadena was also transferred to the
housing unit adjacent to the medical clinic.
        On July 14, Cadena went to an appointment at the Texas Tech
Orthopedic Clinic. On July 18, 2014, Cadena attended a court hearing, after
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                                No. 18-50765
which she was discharged from custody into a Women’s Substance Abuse
Treatment Facility (WSAT).     On July 22, 2014, while residing at WSAT,
Cadena underwent a second surgery.        Cadena’s medical records from her
surgery at Texas Tech state that Cadena was “in extreme varus” and “in
extreme pain” before corrective surgery.     Even after the second surgery,
Cadena alleges that she has continuing nerve damage in her right leg and that
she cannot engage in recreational activities or ambulate normally.
      On June 21, 2016, Cadena filed a complaint in the Western District of
Texas against El Paso County, Corizon Health Inc., and Dr. Salazar. Cadena
claims that El Paso County violated Title II of the ADA and Section 504 of the
Rehabilitation Act by failing to provide her with reasonable accommodations.
Cadena also claims that the County was deliberately indifferent to her serious
medical needs in violation of the Fourteenth Amendment. Cadena alleges that
these constitutional violations were the result of the County’s unlawful
policies, procedures, and customs.
      On August 25, 2017, Corizon Health and Dr. Salazar filed a motion for
summary judgment on Cadena’s claims against them. On October 13, 2017, El
Paso County filed a separate motion for summary judgment on Cadena’s claims
against it. On March 26, 2018, the district court adopted the Magistrate’s
report and recommendation granting Corizon Health and Dr. Salazar’s motion
for summary judgment and dismissing Cadena’s claims against those
defendants. The district court then adopted in part and reversed in part the
Magistrate’s report and recommendation regarding El Paso County’s motion,
dismissing the remainder of Cadena’s claims.
      On August 30, 2018, Cadena appealed the district court’s order granting
the County’s motion for summary judgment.




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                                  No. 18-50765
                                        II.
      This court reviews the district court’s summary judgment ruling de novo.
Windham v. Harris Cty., 875 F.3d 229, 234 (5th Cir. 2017).              Summary
judgment is appropriate when “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.” Fed. R. Civ. P. 56(a). Courts must view the evidence in the
light most favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor. SEC v. Kahlon, 873 F.3d 500, 504 (5th Cir. 2017). We
may affirm a grant of summary judgment on any ground the record supports.
United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 323 (5th Cir.
2017).
                                       III.
      A.    ADA Claim
      Title II of the ADA provides: “[N]o 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. It
defines “public entities” to include local governments. 42 U.S.C. § 12131(1)(A).
The Supreme Court has held that prisons are public entities that may not
exclude disabled individuals from participation in or deny them the benefits of
their services, programs, or activities. Pennsylvania Dep’t of Corr. v. Yeskey,
524 U.S. 206, 210 (1998).
      Similarly, the Rehabilitation Act prohibits any “otherwise qualified
individual with a disability in the United States” from being “excluded from
the participation in, be[ing] denied the benefits of, or be[ing] subjected to
discrimination under any program or activity receiving Federal financial
assistance,” including any instrumentality of a local government. 29 U.S.C. §
794. The remedies, procedures, and rights available under the Rehabilitation
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                                        No. 18-50765
Act parallel those available under the ADA. Delano-Pyle v. Victoria Cty., 302
F.3d 567, 574 (5th Cir. 2002) (quoting 42 U.S.C. § 12133).                              “Thus,
‘[j]urisprudence interpreting either section is applicable to both.’” Id. (quoting
Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000)). 1
       To make out a prima facie case under Title II or the Rehabilitation Act,
a plaintiff must show “(1) that he is a qualified individual within the meaning
of the ADA; (2) that he is being excluded from participation in, or being denied
benefits of, services, programs, or activities for which the public entity is
responsible, or is otherwise being discriminated against by the public entity;
and (3) that such exclusion, denial of benefits, or discrimination is by reason of
his disability.” Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th
Cir. 2004). “In addition to their respective prohibitions of disability-based
discrimination, both the ADA and the Rehabilitation Act impose upon public
entities an affirmative obligation to make reasonable accommodations for
disabled individuals.” Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454
(5th Cir. 2005); see also Jin Choi v. Univ. of Tex. Health Sci. Ctr. at San
Antonio, 633 Fed. App’x 214, 215 (5th Cir. 2015) (adapting the failure-to-
accommodate standard from Title I to Title II); Ball v. LeBlanc, 792 F.3d 584,
596 n.9 (5th Cir. 2015) (same). For this type of claim, a plaintiff must show
that the entity knew of the disability and its consequential limitations, either
because the plaintiff requested an accommodation or because the nature of the
limitation was open and obvious. Windham, 875 F.3d at 236–37 (citing Taylor
v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir. 1996)). A plaintiff’s
requested accommodation must also be “reasonable,” meaning that it does not


       1       The Acts do have different causation requirements. Under the Rehabilitation
Act, the exclusion must be “solely by reason of her or his disability,” 29 U.S.C. § 794(a), where
under Title II of the ADA, “discrimination need not be the sole reason” for the exclusion.
Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (quoting Soledad v.
U.S. Dep’t of Treasury, 304 F.3d 500, 503–04 (5th Cir. 2002)).
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                                   No. 18-50765
impose undue financial or administrative burdens or “fundamentally alter the
nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7); see also
Frame v. City of Arlington, 657 F.3d 215, 232 (5th Cir. 2011) (en banc).
       Finally, to recover compensatory damages, a plaintiff must also prove
that the discrimination was intentional. 2 Delano-Pyle, 302 F.3d at 574. This
court has hesitated to “delineate the precise contours” of the standard for
showing intentionality. Miraglia v. Bd. of Supervisors of La. State Museum,
901 F.3d 565, 575 (5th Cir. 2018). But the cases to have touched on the issue
require “something more than ‘deliberate indifference,’” despite most other
circuits defining the requirement as equivalent to deliberate indifference. Id.
(quoting Delano-Pyle, 302 F.3d at 575). In practice, this court has affirmed a
finding of intentional discrimination when a county deputy knew that a
hearing-impaired suspect could not understand him, rendering his chosen
method of communication ineffective, and the deputy made no attempt to
adapt. Delano-Pyle, 302 F.3d at 575–76. The court has also found that a
plaintiff created a genuine dispute as to intentional discrimination when the
evidence indicated that “on several occasions, an interpreter was requested but
not provided,” and one of the forms of communication that a hospital used to
speak with a hearing-impaired patient was often ineffective. Perez v. Doctors
Hosp. at Renaissance, Ltd., 624 F. App’x 180, 185 (5th Cir. 2015).
       There is no dispute that Cadena was a qualifying individual under the
ADA.       And a disabled inmate’s right to mobility within a prison is well-
established. See United States v. Georgia, 546 U.S. 151, 157 (2006) (“[I]t is
quite plausible that the alleged deliberate refusal of prison officials to
accommodate [the plaintiff’s] disability-related needs in such fundamentals as



       2    The ADA creates a private right of action against public entities for both
monetary and equitable relief. See 42 U.S.C. § 12133.
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mobility . . . constituted ‘exclu[sion] from participation in or ... deni[al of] the
benefits of’ the prison’s ‘services, programs, or activities.’” (quoting 42 U.S.C.
§ 12132)). Cf. Frame, 657 F.3d at 231 (reaffirming that public entities must
make reasonable accommodations for mobility-impaired individuals). Cadena
repeatedly requested various types of accommodations, and her disability was
open and obvious. Therefore, the County was obligated to provide Cadena with
reasonable accommodations that allowed her to access its services. Cadena
has pointed to several different types of requests that the County denied. A
reasonable jury could find that some, or all, of these requests were reasonable,
and that the County violated the ADA by refusing to accommodate Cadena.
      Viewing the facts in the light most favorable to Cadena, the County
provided Cadena with crutches, but it denied her other accommodations, such
as a wheelchair, a modified food delivery procedure, and various forms of
medical care. The County is not required to acquiesce to Cadena’s choice of
accommodations merely because Cadena requested them. See Wells v. Thaler,
460 F. App’x 303, 313 (5th Cir. 2012) (“[W]e accord the officials at [prisons]
deference in their determination of an appropriate accommodation.”). But it is
required to provide her with reasonable accommodations that give “meaningful
access to the benefit that the grantee offers” without posing an undue burden
to the County. Alexander v. Choate, 469 U.S. 287, 301 (1985). Providing an
individual with a broken leg with crutches may reasonably accommodate most
individuals with this disability. But here, a jury could find that crutches did
not provide Cadena with meaningful access to the County’s services, in part
because she could not safely ambulate within the facility on crutches. Cadena
testified that she could not walk with crutches, and she informed the staff that
she needed a wheelchair at least three times. Further, Officer Davila testified
that she witnessed Cadena fall as she attempted to use crutches, and Cadena’s


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                                  No. 18-50765
treating physician from Providence indicated that Cadena “will not be a
candidate for crutches . . . and will have to be discharged with a wheelchair.”
       A related accommodation that Cadena requested was that the County
use an alternative process to deliver her food to her. Even if crutches were a
reasonable accommodation, a jury could find that the County violated the ADA
by forcing Cadena to carry a tray of food while using crutches. In the moments
leading up to Cadena’s fall, Cadena testified that she was attempting to carry
her crutches and a tray full of food despite surgery to her right leg days earlier.
Cadena testified that she told Officer Davila, the same officer who had seen
her fall while using crutches a few days earlier, that she needed help
transporting her tray because of her crutches. She testified that Davila “kept
on telling [Cadena] that [she] had to come out of [her] room and get it” despite
Cadena’s requests. A jury could find that the County’s mandate that Cadena
walk with crutches while holding a tray of food in order to eat violated the
ADA.    Thus, taken together, Cadena’s requested accommodations and the
County’s refusal to provide them create material disputes of fact as to whether
the County violated the ADA.
       The district court did not credit Cadena’s testimony about the County’s
refusal to modify food delivery procedures, citing a rule that self-serving
testimony does not create a material dispute of fact. It is true that affidavits
setting forth ultimate or conclusory facts and conclusions of law are insufficient
to either support or defeat a motion for summary judgment.             Galindo v.
Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).           But Cadena’s
detailed deposition testimony, which is largely unrefuted and consistent with
other sources, such as Officer Davila’s testimony and her medical records,
cannot be classified as the type of “vague” and “conclusory” evidence that fails
to create a dispute of material fact. Kariuki v. Tarango, 709 F.3d 495, 505 (5th
Cir. 2013). Rule 56 allows the use of deposition testimony to show that a fact
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                                 No. 18-50765
is genuinely disputed. Fed. R. Civ. P. 56(c)(1)(A). “[A]t the summary judgment
stage[,] the judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There is no
evidence that Cadena’s testimony is in bad faith or is contradictory. Indeed,
Cadena’s testimony is not the only evidence of her fall. Officer Real testified
that she found Cadena “just laying on the floor, and there was a plate of food.”
Cadena’s testimony therefore creates a material dispute as to whether the
County denied Cadena a reasonable accommodation when it refused to modify
the food delivery procedure.
      Although a closer question, a jury could also reasonably determine that
the County’s refusal to accommodate Cadena constituted intentional
discrimination. Cadena was admitted in a wheelchair, which she contends was
taken away by jail staff. A few hours later, she attempted to walk on crutches
in the presence of two County employees and was too unstable to do so. The
record shows that the employees were aware that the crutches were unsafe
because they obtained a wheelchair and wheeled Cadena the rest of the way to
the clinic. And two days later, the County medical staff agreed that Cadena
required a wheelchair. Further, Cadena testified that, once at the clinic, she
requested a wheelchair, but the nurse who saw her denied the request because
the facility did not have space for a person in a wheelchair. Finally, the same
employee who had seen Cadena fall while using crutches two days earlier then
required Cadena to not only use crutches, but also to carry a tray on crutches,
in order to eat.
      These facts are analogous to those in Delano-Pyle and Perez, in which
defendants continued to refuse the requested accommodation despite
indications that further accommodation was necessary. Delano-Pyle, 302 F.3d
at 575–76; Perez, 624 F. App’x at 185. By contrast, this was not a situation in
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                                No. 18-50765
which there was “confusion amongst the . . . staff as to the procedure for”
obtaining the requested accommodations.       Back v. Tex. Dep’t of Criminal
Justice Institutional Div., 684 F. App’x 356, 358 (5th Cir. 2017) (affirming a
grant of summary judgment when a denial of leg braces and similar medical
equipment was the result of negligence and confusion rather than being
intentional).   The County clearly had wheelchairs at its disposal because
Cadena was admitted in a wheelchair and she was allowed to use one to travel
to the clinic on her first day. A jury could find, therefore, that its ongoing
refusal to let her use a wheelchair or to otherwise modify its policies was
intentional.
      The County argues that even if it refused Cadena’s requests for a
wheelchair, Cadena has no claim under the ADA because the court must defer
to Dr. Salazar’s reasoned medical judgment that Cadena did not need a
wheelchair. Courts confirm that the ADA does not typically provide a remedy
for negligent medical treatment. See, e.g., Nottingham v. Richardson, 499 F.
App’x 368, 377 (5th Cir. 2012) (“The ADA is not violated by a prison’s simply
failing to attend to the medical needs of its disabled prisoners.” (internal
quotation marks omitted)). But mobility aids have been characterized by the
Supreme Court and the Second Circuit as disability accommodations. See
Georgia, 546 U.S. at 157 (“[I]t is quite plausible that the alleged deliberate
refusal of prison officials to accommodate [the plaintiff’s] disability-related
needs in such fundamentals as mobility” constituted a violation of the ADA
(emphasis added)); Wright v. New York State Dep’t of Corr., 831 F.3d 64, 73 (2d
Cir. 2016) (treating a request for a motorized wheelchair as a request for a
reasonable accommodation rather than medical treatment).          Further, Dr.
Salazar explained that his order providing crutches to Cadena was meant to
indicate that Cadena have access to crutches in addition to, not in lieu of, a
wheelchair. Finally, the County’s medical staff explicitly recommended on an
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inmate special medical instructions form that “inmate keep wheelchair” on the
morning of June 25, 2014. For these reasons, the County’s characterization
that it was merely deferring to a reasoned medical judgment is inaccurate.
      Cadena has shown a material dispute as to whether the County denied
her reasonable accommodations in violation of the ADA.            Accordingly, we
reverse the district court’s grant of summary judgment as to Cadena’s claim
under the ADA.
      B.      Section 1983 Claim
      As a pretrial detainee contesting the conditions of her confinement,
Cadena’s §1983 claim invokes the protections of the Fourteenth Amendment.
See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc) (citing
Bell v. Wolfish, 441 U.S. 520 (1979)); Thompson v. Upshur Cty., TX, 245 F.3d
447, 457 (5th Cir. 2001). The standard is the same as that for a prisoner under
the Eighth Amendment. Garza v. City of Donna, 922 F.3d 626, 634 (5th Cir.
2019).     A pretrial detainee may prove a constitutional violation either by
demonstrating      an   unconstitutional     condition   of   confinement    or   by
demonstrating an unconstitutional episodic act or omission. Hare, 74 F.3d at
644–45.
      For a conditions of confinement claim, “the proper inquiry is whether
those conditions amount to punishment of the detainee.” Bell, 441 U.S. at 535.
If “the condition of confinement is not reasonably related to a legitimate, non-
punitive governmental objective,” it is assumed that “by the municipality’s
very promulgation and maintenance of the complained-of condition, that it
intended to cause the alleged constitutional deprivation.” Scott v. Moore, 114
F.3d 51, 53 (5th Cir. 1997). Our court has said that a condition may take the
form of “a rule,” a “restriction,” “an identifiable intended condition or practice,”
or “acts or omissions” by a jail official that are “sufficiently extended or
pervasive.” Estate of Henson v. Wichita Cty. Tex., 795 F.3d 456, 468 (5th Cir.
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2015) (quoting Duvall v. Dallas Cty., 631 F.3d 203, 207 (5th Cir. 2011)). “In
some cases, a condition may reflect an unstated or de facto policy, as evidenced
by a pattern of acts or omissions ‘sufficiently extended or pervasive, or
otherwise typical of extended or pervasive misconduct by [jail] officials, to
prove an intended condition or practice.’” Shepherd v. Dallas Cty., 591 F.3d
445, 452 (5th Cir. 2009) (quoting Hare, 74 F.3d at 645). But “isolated examples
of illness, injury, or even death, standing alone, cannot prove that conditions
of confinement are constitutionally inadequate.” Id. at 454. To prevail on a
claim of unconstitutional conditions of confinement, a plaintiff must show: “(1)
‘a rule or restriction or . . . the existence of an identifiable intended condition
or practice . . . [or] that the jail official’s acts or omissions were sufficiently
extended or pervasive’; (2) which was not reasonably related to a legitimate
governmental objective; and (3) which caused the violation of [the inmate’s]
constitutional rights.” Duvall, 631 F.3d at 207 (quoting Hare, 74 F.3d at 645).
      To establish municipal liability in an episodic-act case, a plaintiff must
show “(1) that the municipal employee violated [the pretrial detainee’s] clearly
established constitutional rights with subjective deliberate indifference; and
(2) that this violation resulted from a municipal policy or custom adopted and
maintained with objective deliberate indifference.” Brumfield v. Hollins, 551
F.3d 322, 331 (5th Cir. 2008) (quoting Olabisiomotosho v. City of Houston, 185
F.3d 521, 528–29 (5th Cir. 1999)). Under the first prong, “[a] serious medical
need is one for which treatment has been recommended or for which the need
is so apparent that even laymen would recognize that care is required.” Gobert
v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006). The plaintiff must also
demonstrate deliberate indifference, which requires that the defendant act
with “something more than mere negligence” but “less than acts or omissions
for the very purpose of causing harm or with knowledge that harm will result.”
Farmer v. Brennan, 511 U.S. 825, 835 (1994). “Deliberate indifference is an
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extremely high standard to meet.” Crumbliss v. Darden, 469 F. App’x 325, 327
(5th Cir. 2012) (quoting Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009)).
Finally, to prevail against a municipality, a plaintiff must show either “written
policy statements, ordinances, or regulations” or “a widespread practice that is
‘so common and well-settled as to . . . fairly represent[] municipal policy’” that
was the moving force behind the violation. James v. Harris Cty., 577 F.3d 612,
617 (5th Cir. 2009) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 579
(5th Cir. 2001)).
      Cadena has not put forth evidence that creates a material dispute of fact
as to whether she was subjected to unconstitutional conditions of confinement.
She points to the County’s use of LVNs to perform medical intake procedures,
its policy of making medical matters the sole province of the treating physician,
its requirement that inmates on crutches carry their food trays back to their
cells, its failure to provide prompt medical care for non-medical reasons, and
its decision to use a single preferred provider for outside medical services.
However, Cadena has not shown that a jury could find that any of these
practices amounted to an unconstitutional condition of confinement. Cadena
provides no evidence that most of these conditions, such as using LVNs to
perform intake, giving treating physicians control over medical matters, short
delays in follow-up appointments with outside providers, and using a preferred
outside provider, violated her constitutional rights. Shepherd, 591 F.3d at 454
(“[A] detainee challenging jail conditions must demonstrate a pervasive
pattern of serious deficiencies in providing for [her] basic human needs”).
Cadena has not shown that these policies caused her extreme suffering or
resulted in adverse medical outcomes serious enough to establish a
constitutional violation. Cf. id. (finding a constitutional violation when the
plaintiff had “demonstrated that serious injury and death were the inevitable
results of the jail’s gross inattention to the needs of inmates with chronic
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illness”). Indeed, Cadena has not shown that the treatment she would have
received in the absence of these policies would have been meaningfully better
than the care she did receive.
      Cadena also has not put forth evidence that these conditions were
sufficiently extended or pervasive. She has identified only one other instance
in which an inmate on crutches was allegedly required to carry a food tray and
only three other instances in which inmates filed grievances alleging delayed
medical care.    A few isolated events do not amount to a condition of
confinement.    See id.   In instances where this court has found that an
unconstitutional condition was sufficiently pervasive, the plaintiff’s evidence
has been more exhaustive or authoritative.         See id. at 453 (upholding a
condition of confinement claim as to a de facto policy of failing to properly treat
inmates with chronic illness on the basis of “a comprehensive evaluative report
commissioned by the County, the DOJ report, affidavits from employees of the
jail and its medical contractor attesting to the accuracy and applicability of the
reports, and a plethora of additional documentary evidence”); Duvall, 631 F.3d
at 209 (finding a sufficient evidentiary basis for a custom or practice when the
jury heard testimony from “[c]ounty officials and outside experts [who] stated
that the County failed to take the well-known steps needed to control the
infection,” in addition to other evidence). Accordingly, Cadena cannot prevail
on a conditions of confinement theory.
      Nor could a reasonable jury find for Cadena under an episodic act theory.
Cadena relies on many of the same acts that form the basis of her ADA claim,
but Cadena’s §1983 claim is inapposite because the Eighth Amendment does
not require that the County affirmatively accommodate Cadena with, here,
mobility aids. Thus, Cadena’s § 1983 claim amounts to complaints about the
quality of medical care that she received while incarcerated. A prisoner’s
disagreement with medical treatment, and even medical malpractice, does not
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                                No. 18-50765
constitute deliberate indifference absent exceptional circumstances. Gobert,
463 F.3d at 346. “For an episodic act claim relying on an alleged denial or
delay of medical care, [a prisoner] can show deliberate indifference by
demonstrating that an official ‘refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct that
would clearly evince a wanton disregard for any serious medical needs.’”
Baughman v. Hickman, 935 F.3d 302, 309 (5th Cir. 2019) (quoting Perniciaro
v. Lea, 901 F.3d 241, 258 (5th Cir. 2018)); see also Sama v. Hannigan, 669 F.3d
585, 590 (5th Cir. 2012).
      Cadena has not shown that the County refused to treat her or ignored
her complaints. While her medical care was not “the best that money could
buy,” the County was responsive to Cadena’s medical needs. Mayweather v.
Foti, 958 F.2d 91, 91 (5th Cir. 1992). It immediately assessed her medical
needs, assigned her to a lower bunk, gave her crutches, and provided her with
pain medication. After her fall, the County took her to the emergency room
the same night.     The County then scheduled a follow-up surgery, which
occurred approximately a month after Cadena’s fall.          See Banuelos v.
McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (“Medical records of sick calls,
examinations, diagnoses, and medications may rebut an inmate’s allegations
of deliberate indifference.”). Cadena has made no showing that any lapses in
medical care amounted to constitutional violations. As to her claim that the
County made inmates on crutches carry food trays, Cadena has not put forth
evidence that would allow a jury to conclude that this practice amounted to a
policy or custom that was “so widespread as to have the force of law.” Bd. of
County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997).
Thus, the district court correctly dismissed her claim under § 1983 and the
Fourteenth Amendment.


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                               No. 18-50765
                                    IV.
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Cadena’s § 1983 claim. We REVERSE the district court’s dismissal of Cadena’s
ADA claim, and we REMAND the case for further proceedings consistent with
this opinion.




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