Phipps v. Sheriff of Cook County

• Decision Date: 19 February 2010
• Docket Number: No. 07 C 3889.,07 C 3889.
• Citation: 681 F. Supp.2d 899
• Parties: Derrick PHIPPS, et al., Plaintiffs, v. SHERIFF OF COOK COUNTY, and Cook County, Illinois, Defendants.
• Court: U.S. District Court — Northern District of Illinois

681 F. Supp.2d 899

Derrick PHIPPS, et al., Plaintiffs, v. SHERIFF OF COOK COUNTY, and Cook County, Illinois, Defendants.

No. 07 C 3889.

United States District Court, N.D. Illinois, Eastern Division.

November 25, 2009.

Opinion Denying Reconsideration February 19, 2010.

Thomas Gerard Morrissey, Thomas G. Morrissey, Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Chicago, IL, Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, for Plaintiffs.

Daniel Francis Gallagher, Dominick L. Lanzito, Lawrence S. Kowalczyk, Mary Elizabeth McClellan, Paul A. O'Grady, Querrey & Harrow, Ltd., Chicago, IL, for Sheriff of Cook County.

Jamie Melissa Sheehan, Cook County State's Attorney, Chicago, IL, for Cook County, Illinois.

MEMORANDUM OPINION AND ORDER

ELAINE E. BUCKLO, District Judge.

Plaintiffs Derrick Phipps ("Phipps"), Kevin House ("House"), Kenneth Courtney, ("Courtney"), and James Grant ("Grant") have brought a class action suit against the Sheriff of Cook County ("the Sheriff") and Cook County, Illinois ("the County") (together, "defendants"), alleging violations of section 202 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794(a).¹ The plaintiffs and each of the defendants have filed cross-motions for summary judgment. For the reasons discussed below, all of the parties' motions are denied.

I.

The plaintiffs are paraplegics and partially-paralyzed pre-trial detainees currently and formerly housed at the Cook County Department of Corrections ("CCDC" or "the Prison") since July 1995. All were assigned to one of two facilities within the CCDC—the Residential Treatment Unit ("RTU") or Cermak Health Services ("Cermak").² In their amended complaint, the plaintiffs allege that the defendants discriminated against them by failing to provide them with wheelchair-accessible toilets, sinks, and shower facilities. They claim to have suffered various injuries as a result of the alleged discrimination, including bed sores, rashes, and infections resulting from an inability to maintain proper hygiene. They also claim to have sustained injuries from falling while attempting to transfer from their wheelchairs to toilet seats, beds, and shower chairs in various areas of the Prison. Finally, certain of the plaintiffs additionally allege that they were denied access to electronic monitoring and drug rehabilitation programs run by the CCDC.

II.

A. Legal Standard

Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue for trial 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant initially bears the burden of "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (quotation marks omitted). Once the movant has met this burden, the non-movant "may not rest upon the mere allegations or denials of the adverse party's pleading," but rather "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). All facts must be construed in the light most favorable to the non-movant, and all justifiable inferences must be drawn in the non-movant's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

Because each of the parties has filed a separate motion for summary judgment, it may be helpful before proceeding to briefly summarize their basic contentions. The plaintiffs argue that the defendants were required by both the Rehabilitation Act and the ADA to provide disabled detainees with accessible toilets, showers, and sinks. Specifically, the plaintiffs claim that toilets in the facilities should be stationed at an appropriate height; equipped with rear and side "grab bars"; surrounded by a sufficient amount of open space to allow them to maneuver in their wheelchairs; and fitted with accessible flush valves. Without these modifications, the plaintiffs claim that it is difficult for them to transfer between their wheelchairs and the Prison's toilets, and to sit on the toilets without falling.

The plaintiffs further claim that the defendants were required to provide them with sinks that are accessible in height, that have properly-installed fixtures, and that allow enough "knee space" for disabled individuals to approach the sinks from a forward direction in their wheelchairs. As for the showers, the plaintiffs claim that the nozzle and control knobs must be located no higher than forty-eight inches above the floor, and that wheelchair-bound detainees must be provided with appropriate shower chairs. According to the plaintiffs, the defendants refused to implement any of these modifications, even though the changes would not have been unduly burdensome.

The County advances three central arguments in support of its motion for summary judgment: (1) that the plaintiffs' Rehabilitation Act claim fails because the defendants are not recipients of federal funds; (2) that the plaintiffs' ADA claim fails because showering and lavatory use do not qualify as "programs" or "activities" covered by the ADA; and (3) the plaintiffs' ADA claim fails because they have failed to allege intentional discrimination.

The Sheriff's motion for summary judgment advances four basic arguments: (1) that the suit is barred by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e, because the plaintiffs failed to exhaust administrative remedies before filing the instant suit; (2) that the suit is barred by the PLRA because the plaintiffs failed to allege any physical injuries as a result of the alleged discrimination; (3) that the plaintiffs' ADA claim fails because, while the plaintiffs purport to assert the claim under Title II of the statute, violations of the type they allege are redressible only under Title III; and (4) that the defendants' failure to accommodate the plaintiffs was reasonable in light of the Prison's need to maintain institutional security.³

As can be seen, the parties' arguments center around three basic statutes—the PLRA, the RA, and the ADA. The discussion that follows is organized around these statutes, first examining the arguments raised under the PLRA, then moving on to the arguments arising under the RA, and finally discussing the arguments based on the ADA. Before concluding, I also briefly examine the plaintiffs' claims concerning access to drug and monitoring programs.

III. The PLRA

Congress passed the PLRA as part of an "effort to address the large number of prisoner complaints filed in federal court." Jones v. Bock, 549 U.S. 199, 202, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The purpose behind the legislation was to reduce the number of suits brought by prisoners by separating meritorious claims from frivolous ones. Id. at 204, 127 S.Ct. 910. The defendants claim that the plaintiffs' suit is barred by two of the PLRA's requirements: (1) that plaintiffs exhaust available administrative remedies prior to filing suit; and (2) that the plaintiffs may not seek to recover for psychological and emotional injuries without asserting prior physical injury. Neither of these arguments is persuasive.

A. Exhaustion of Administrative Remedies

The PLRA provides that "no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Pavey v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008). The Sheriff claims that the plaintiffs were required under the PLRA to avail themselves of the Prison's grievance procedure before filing the current suit. He claims that the plaintiffs failed to do so, and that, as a result, the suit must be dismissed. This argument fails for several reasons.

As an initial matter, the argument has been forfeited. In Jones, the Supreme Court held that a party's failure to exhaust administrative remedies must be asserted as an affirmative defense. 549 U.S. at 211-12, 127 S.Ct. 910. An affirmative defense is waived if it is not asserted in a party's answer or in a subsequent motion to dismiss. See Fed.R.Civ.P. 8(c); see also Massey v. Helman, 196 F.3d 727, 735 (7th Cir.1999). Here, the Sheriff has raised the failure-to-exhaust claim for the first time in his motion for summary judgment. As a result, the argument has been waived. See, e.g., Venters v. City of Delphi, 123 F.3d 956, 968 (7th Cir.1997); Baker v. Chicago Fire & Burglary Detection, Inc., 489 F.2d 953, 955 (7th Cir.1973); MCI Telecomm. Corp. v. Ameri-Tel, Inc., 852 F.Supp. 659, 666 (N.D.Ill.1994) (affirmative defense raised for first time in response to summary judgment motion was waived); see also Simmons v. Ellena, No. 96 C 6797, 2002 WL 31176161, at *2 (N.D.Ill. Sept. 30, 2002) (defendants waived failure-to-exhaust argument under PLRA by failing to raise it as an affirmative defense).⁴

Even if the argument had not been forfeited, however, the defendants' appeal to the PLRA is unsuccessful on the merits. First, the defendants have not convincingly shown that the PLRA even applies to this suit. The PLRA defines the term "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h). In order to...