MANISH S. SHAH, District Judge.
Plaintiff Marque Bowers, a wheelchair-bound inmate, brings this action against defendants, Thomas Dart, Sheriff of Cook County, and Cook County, Illinois, for failing to provide him an accessible toilet and shower in violation of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a). Bowers moves for partial summary judgment on the issue of liability. For the following reasons, Bowers's motion is denied.
Summary judgment is appropriate if 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). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013).
Bowers entered the Cook County Jail on October 20, 2011. [110] ¶ 1.
During a subsequent examination, approximately six months after the attack, Dr. Raskin noted that Bowers complained that he could not move his legs below the knee, that his legs and feet felt "ice cold," and that he felt pain around his spine. [96-5] at 2. He confirmed that he had normal bowel and bladder function, and he denied numbness of his buttocks or genitalia, which indicated to Dr. Raskin that Bowers's lower lumbosacral nerve roots were properly functioning, id.; [110] ¶ 7. Additionally, Dr. Raskin noted: "no voluntary movement of lower extremities [. . .] however, normal tone is present," and no "Hoffman" or "clonus" were detected. [96-5] at 3. "Hoffman" and "clonus" are reflex tests that help doctors determine if a motor neuron disease is present—"Hoffman" tests the upper extremities and "clonus" tests the lower extremities. [96-4] at 29:8-14. When "Hoffman" and "clonus" are not detected, that means there is no sign of motor neuron disease. Id. Using these tests on Bowers, Dr. Raskin concluded that he did not have motor neuron disease in either his upper or lower extremities. Id.; [96-5] at 3.
Dr. Defuniak treated Bowers at the Cermak Health Services Building.
When Bowers returned to Cook County Jail
First, Bowers was assigned to cell 3221 on Cermak 3 West, which was not ADA-compliant. Id. ¶¶ 31, 35. He used cell 3221's toilet by shimmying onto it sideways. [110] ¶ 16. He fell several times in attempting to transfer himself on and off the cell's toilet. [95] ¶ 33. Bowers used the group showers on Cermak 3 West, which did not have a bench or a mounted seat; when he showered there, he had to use a designated shower chair. [79-4] at 99-100, 84:8-85:17. He fell approximately twelve times while trying to bathe himself in the group shower on Cermak 3 West. Id. at 92, 55:8-21. As a result of those falls, Bowers injured his knee, elbow, and back. [95] ¶ 43. He received ice packs for these injuries, but he never saw a doctor. [110] ¶ 17. Additionally, for the first several months of being housed in Cermak 3 West, Bowers said that he "showered" by pouring water over himself with a pail because the shower heads were not placed in a location that would allow a seated person (like him) to be sprayed by the water. [95] ¶¶ 38-39; [79-4] at 91, 51:3-19. On March 19, 2013, Bowers filed a grievance about being assigned to a cell that did not have an accessible toilet, sink, or shower, [95] ¶ 34. Approximately five months later, Bowers filed another grievance about his fall in the Cermak 3 West shower room due to a broken shower chair; he complained that he required assistance from a nurse to get off the floor and back into the shower chair. Id. ¶ 41. In August and September of 2013, defendants installed lower shower heads and more grab bars on the third floor, [110] ¶ 12, which allowed Bowers to shower more safely and conveniently. [79-4] at 51:8-22.
Next, Bowers was assigned to cell 3225 on Cermak 3 North, which was not ADA-compliant. [95] ¶¶ 44-45. Bowers said the crowded conditions in cell 3225 blocked his ability to maneuver to the toilet. Id. ¶ 46. Bowers filed a grievance, stating that the crowded conditions in cell 3225, at one point, caused Bowers to defecate on himself. Id. ¶ 49.
In August 2014, the Residential Treatment Unit opened at Cook County Jail.
The Sheriff was aware that there were "periods when there were more people in wheelchairs in Cermak than could be placed in the limited number of ADA accessible cells." [95] ¶ 23. Despite this knowledge, the Sheriff never made an attempt to move wheelchair users assigned to one of Cermak's non-ADA compliant cells to correctional facilities outside the Cook County Jail.
Bowers brings claims under the ADA and the Rehabilitation Act. Title II of the ADA prohibits discrimination in the provision of services, programs, and activities by public entities
Under the ADA, an individual has a "disability" if he can show one of the following: (1) he has a physical or mental impairment that substantially limits one or more of his major life activities, (2) he has a record of such an impairment, or (3) he is regarded as having such an impairment. 42 U.S.C. § 12102; see also 28 C.F.R. § 35.101 ("The primary object[ive] [. . .] should be whether entities covered under the ADA have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of `disability.' The question of whether an individual meets the definition of `disability' [. . .] should not demand extensive analysis."). Bowers points to the mere fact that he uses a wheelchair to ambulate as evidence that he is a qualified individual with a disability. [80] at 8 (citing Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012)). That is not sufficient in this particular case. The language from Norfleet on which Bowers relies—"[t]o be wheelchair-bound is to be disabled within the [ADA]'s meaning"—is supported by the subsection of the ADA that refers to an individual who has a physical or mental impairment that substantially limits a major life activity. 684 F.3d at 690 (citing 42 U.S.C. § 12102(1)(A)). Although walking is a "major life activit[y]" under the ADA, see 42 U.S.C. § 12102(2)(A)), the asserted fact of Bowers's inability to walk is precisely what defendants dispute.
Defendants contend that a reasonable jury could determine that Bowers is not disabled. [99] at 16 n.4. They note that there is no objective evidence in the record that shows that Bowers is disabled. The doctors who treated Bowers questioned whether Bowers was telling the truth when he told them that he could not move his legs below his knees; and they doubted that he was exerting any effort to move his legs during their physical exams. When the exam results did not provide any insights as to the cause of Bowers's reported paralysis, Dr. Defuniak wanted to perform further testing, but Bowers refused. Dr. Defuniak asked Bowers to sign a refusal to consent to evaluation or treatment. Nevertheless, Dr. Defuniak explained that he prescribed Bowers a wheelchair solely based on Bowers's subjective complaints.
In reply, Bowers argues that he is regarded as wheelchair-dependent and that he has a record of needing a wheelchair to ambulate. [111] at 2 (citing Lacy v. Dart, No. 14 C 6259, 2015 WL 7351752, at *3 n.6 (N.D. Ill. Nov. 19, 2015)).
To be "regarded" as having a disability under the ADA, Bowers must establish that he was subjected to an action that the ADA prohibits because of his actual or perceived impairment. 42 U.S.C. § 12102(3)(A). The only actions defendants took in this case, which could potentially run afoul of the ADA, would be failing to provide Bowers with an accessible toilet and shower in his housing assignments. Even assuming that Bowers could establish that fact, there is nothing in the record to support a finding that the actions defendants took in assigning Bowers to certain cells were because of Bowers actual or perceived inability to walk. From the record, a jury could conclude that defendants placated Bowers by giving him a wheelchair, by providing him a toilet chair or a shower chair, and by allowing him to use the group showers with lowered shower heads, even though his doctors could not find objective medical evidence of his claimed paralysis.
Similarly, the fact that defendants provided Bowers with a wheelchair for several years does not conclusively prove that Bowers had a history of being unable to perform a major life activity—here, walking. See 42 U.S.C. § 12102(1)(B). Although Bowers submits his own deposition testimony to support his assertion that he cannot walk; there is competing deposition testimony from his treating physicians who question the reliability of his claims that he cannot walk and who explain that the various exams they performed on Bowers do not explain his supposed inability to walk, and some of the exams indicated that Bowers may not have been trying to move his legs. Furthermore, the history of Bowers receiving a wheelchair from defendants is not the type of "record" of impairment that the ADA recognizes, because here, the wheelchair prescription was based solely on Bowers's own subjective complaints; it was not based on any objective medical evidence or opinion that he suffered from a physical impairment. See Kotwica v. Rose Packing Co., 637 F.3d 744, 748-49 (7th Cir. 2011) (documents establishing history of hip problems prior to surgery did not satisfy plaintiff's burden to produce evidence establishing a substantial limitation to her ability to engage in a major life activity; and other evidence established that the opposite was true).
In sum, there are disputes of fact as to whether Bowers has a physical impairment that limits a major life activity, whether Bowers has a record of such an impairment, and whether defendants regarded Bowers as having such an impairment. Bowers is not entitled to partial summary judgment on the issue of liability as to his ADA and Rehabilitation Act claims. Although it is not necessary to the decision here, for the sake of completeness, I address the other liability arguments briefed by the parties.
Bowers contends that he was denied access to toilets and showers when he was assigned to cells at Cermak that lacked grab bars near the toilet and mounted seats in the shower, and that he was denied access to toilets when he was assigned to cells at the RTU that lacked grab bars near the toilet. Title II of the ADA may be violated if an inmate with a disability is denied access to a facility's toilets and showers. See Jaros, 684 F.3d at 672. The ADA requires defendants to take reasonable measures to remove structural and other barriers to accessibility. Tennessee v. Lane, 541 U.S. 509, 531 (2004).
The ADA's implementing regulations determine whether a facility is "readily accessible." Id. at 554. For facilities like Cermak, which are built or altered after July 26, 1992, but before September 15, 2010, the regulations require compliance with specific architectural accessibility standards as outlined in the Uniform Federal Accessibility Standards
It is undisputed that defendants assigned Bowers to cells at Cermak that lacked grab bars near the toilet and mounted seats in the shower, and to cells at the RTU that lacked grab bars near the toilet. Notwithstanding, defendants argue that they have not violated the ADA. First, defendants argue that the Cook County Sheriff's Office is not responsible for the facilities in Cermak; that the Cook County Sheriff's Office is only responsible for ensuring that disabled detainees have meaningful access to programs and services at the jail; and that there is evidence in the record that raises the inference that Bowers had meaningful access to programs and services at the jail. [99] at 16-17. Defendants do not cite any authority to support their proposition regarding the responsibility of the Cook County Sheriff's Office over Cermak's facilities; but at least one court in this district has rejected a similar claim in the context of a Title II action, and I am persuaded by that decision. See Clemons v. Dart, 168 F.Supp.3d 1060, 1071-72 (N.D. Ill. 2016) ("the Sheriff points to a line of cases that indicate that Cermak is operated by Cook County [. . .]. But those cases are inapposite here. Clemons' claims relate to his cell assignment and not the provision of inadequate medical treatment, as was the case in each of the [cited] cases.") (collecting cases).
As for defendants' assertion about an inference of meaningful access, I am not convinced. The purpose of the ADA is to "assure equality of opportunity, full participation, independent living, and economic self-sufficiency" for individuals with a disability. See 42 U.S.C. § 12101. The requirements outlined by the 1991 ADA Standards, the UFAS, and the 2010 ADA Standards are all in keeping with this broader purpose—mandating the installation of grab bars near a toilet and of a mounted seat in a shower promotes a disabled person's ability to use those facilities independently, much like a non-disabled person would. The accommodations that defendants say they provided Bowers—(1) portable toilet and shower chairs along with nurses who were available to detainees who needed assistance in using the chairs, see [99] at 19-20; and (2) access to a communal ADA-compliant toilet upon request, per RTU policy, id. at 19 (citing Flora v. Dart, No. 15 C 1127, 2017 WL 2152392, at *5 (N.D. Ill. May 17, 2017)))—stand in stark contrast to the grab bars and mounted shower seat, because such "accommodations" do not allow Bowers to use the jail's facility independently or similarly to how a non-disabled person would use similar facilities.
Second, defendants argue that it was Bowers's burden to show that a reasonable accommodation existed and to establish that it was necessary. [99] at 13, 17. Since Bowers refused defendants' offer to place him in an ADA-compliant cell on May 24, 2013, Bowers cannot claim that his proposed reasonable accommodations— grab bars near the toilet and a mounted seat in the shower—were necessary. Id. at 17. Bowers admits that he refused defendants' offer, [110] ¶ 37, but he adds that the reason for his refusal was that he feared for his safety because he had a problem with another detainee in the proposed room, [111] at 7. Thus, Bowers argues, his refusal cannot be understood as an admission that a reasonable accommodation was not necessary in his case. Furthermore, Bowers suggested that a reasonable accommodation was necessary because he grieved, on three separate occasions, about his housing assignments—first, that his cell did not have an accessible toilet, sink, or shower; second, that he fell in the Cermak 3 West shower room because the shower chair was broken; and third, that he defecated on himself because he was unable to access the toilet due to overcrowding in the cell.
Third, defendants argue that providing Bowers with an accessible cell, grab bars near the toilet, or a mounted shower seat would have caused a "significant `ripple effect' on fellow inmates [. . .] and the allocation of prison resources generally." [99] at 18 (citing Turner v. Safley, 482 U.S. 78, 90 (1987)). Defendants do not explain how or why that would be the case, nor do they cite anything in the record to give context to this assertion; despite this missing information, defendants urge the court to assess the ADA's reasonableness requirement in light of the "overall institutional requirements," and to find that accommodating Bowers would have been burdensome. [99] at 12 (citing Love, 103 F.3d at 561), 18. As Bowers notes, defendants do not cite any evidence in the record to support their factual argument about a "ripple effect," and more importantly, the cases defendants cite do not, in fact, excuse defendants from the requirement to comply with the ADA. To the extent that defendants argue that Love introduced some discretion on their part when no reasonable accommodations are possible for a disabled inmate, that case is distinguishable here, given that Bowers is requesting a reasonable accommodation that exists—compliance with the ADA Structural Standards.
Finally, defendants emphasize the Department of Justice's Title II Technical Assistance Manual, which is "entitled to controlling weight unless they are `plainly erroneous or inconsistent with the regulation[s]." [99] at 16 (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). The sections defendants rely on from the manual, however, do not excuse them from potential liability here. See [99] at 16 (citing ADATAM § II-3.4000
There is sufficient evidence in the undisputed record that (if disabled, or if regarded as disabled) Bowers was, at times, denied access to toilets and showers in Cermak and to toilets in the RTU.
To recover compensatory damages under the ADA, Bowers must show that defendants discriminated against him intentionally.
Bowers argues that defendants knew his ADA rights were being violated, but that, nevertheless, they continuously denied him access to an ADA-compliant toilet and shower. As early as January 2013, when Bowers returned to the jail from the hospital in a wheelchair, he argues that defendants were on notice that Bowers needed an accessible toilet and shower. Then again, on March 19, 2013, when Bowers filed a grievance, he says that defendants were on notice that he was being housed in inaccessible conditions. Defendants continued to be on notice that Bowers's rights were being violated, he argues, when they assigned him to several cells that did not have grab bars by the toilet and that did not have mounted shower seats, despite the fact that he used a wheelchair to ambulate.
By contrast, defendants argue that a reasonable jury could find that the reasonable accommodations they made for Bowers were evidence that defendants were not deliberately indifferent. Defendants point to evidence that after Bowers's grievance, the Cook County Sheriff's Office requested lowered shower heads and the addition of grab bars in the showers on the third floor of Cermak, and that Cook County facilitated those changes. They argue that there is no evidence to suggest that the time between the grievance and the installation was due to some deliberate conduct by defendants. [99] at 18. Similarly, defendants argue that there is no evidence to suggest that the time it took Cook County to construct the RTU or to renovate Cermak was due to some deliberate conduct. Id. at 20.
There is no explanation in the record as to why these delays occurred; however, the fact that defendants eventually invested time and resources to bring those showers into compliance with ADA requirements, does not provide them immunity for the failure to provide reasonable accommodations for Bowers. Moreover, the clock started ticking for defendants in terms of making changes to the group showers on the third floor of Cermak long before March 2013, when Bowers filed his first grievance. See, e.g., [111] at 9; [110] at 39 (DOJ conducted an architectural survey in February 2011, leading to a report that identifies that the group shower in "Acute Care — Male (3rd Floor, North)" does not have accessible shower features). In other words, the delays lasted for years at a time, which would be enough to suggest deliberate indifference here, because defendants failed to take any other measures or implement other changes in the interim period.
Defendants also reiterate their earlier arguments: they offered an ADA accessible room in Cermak, which he refused; portable toilet and shower chairs were consistently available along with assistance from the nurses; and the RTU had a policy to allow detainees housed in cells that were not ADA-compliant to access the communal ADA-compliant toilet. [99] at 20. Defendants' offers of non-equivalent "accommodations" support, rather than counter, a finding of deliberate indifference. But, if defendants did not regard Bowers as disabled, then there would be no inference of deliberate indifference. In the end, this case turns on whether Bowers was disabled, and a trial is necessary to establish that element of his claims.
Plaintiff's motion for partial summary judgment, [78], is denied.
