IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50765

APRIL CADENA, 

 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. 

United States Court of Appeals

Fifth Circuit

FILED

January 3, 2020

Lyle W. Cayce

Clerk

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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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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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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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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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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-toaccommodate 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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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 wellestablished. 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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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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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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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, nonpunitive 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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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.

 Case: 18-50765 Document: 00515257655 Page: 16 Date Filed: 01/03/2020
No. 18-50765

17

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. 

 Case: 18-50765 Document: 00515257655 Page: 17 Date Filed: 01/03/2020