Lacy v. Dart et al
Filing
203
Memorandum Opinion and order signed by the Honorable Robert W. Gettleman on 10/8/2015: Plaintiffs' request for a declaratory judgment is denied. Motion for preliminary injunction 18 is granted in part and denied in part. Defendants' report is due by 10/29/2015. Plaintiffs' response is due by 11/12/2015. Status hearing is set for 11/18/2015 at 10:00 a.m. Mailed notice (gds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHNATHAN LACY, KENNETH FARRIS,
MARQUIS BOWERS, MAURICE
BOSTON, KEVIN DAWSON, individually
and for all others similarly situated,
Plaintiffs,
v.
THOMAS DART, SHERIFF OF COOK
COUNTY, COOK COUNTY,
ILLINOIS, SGT. JOHNSON, CORRECTIONAL
OFFICER NAWARA, CORRECTIONAL
OFFICER LOPEZ, CORRECTIONAL
OFFICER WILSON,
Defendants.
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No. 14 C 6259
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER1
Plaintiffs Jonathan Lacy, Kenneth Farris, Marquis Bowers, Maurice Boston, and Kevin
Dawson, filed a putative class action amended complaint against defendants Thomas Dart,
Sheriff of Cook County, Illinois (the “Sheriff”), Cook County, Illinois (the “County”), Sergeant
Johnson, and correctional officers Nawara, Lopez, and Wilson,2 alleging violations of section
202 of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, section 504 of the
Rehabilitation Act (“Rehab Act”), 29 U.S.C. § 794(a), and 42 U.S.C. § 1983. Following oral
1
This opinion contains both findings of fact (“Findings”) and conclusions of law
(“Conclusions”). To the extent any Findings may be deemed conclusions of law, they shall also
be considered Conclusions. To the extent that any Conclusions may be deemed findings of fact,
they shall also be considered Findings. See Miller v. Fenton, 474 U.S. 104, 113–14 (1985).
2
The individual sergeant and officers were sued as a part of plaintiff Lacy’s excessive
force claim only. These claims, however, have been voluntarily dismissed without prejudice.
See doc. no. 193.
arguments and an extensive evidentiary hearing on plaintiffs’ request for preliminary injunctive
relief, this court certified a class under Fed. R. Civ. P 23(b)(2) of “All Cook County Jail
detainees who have been assigned and currently use a wheelchair.” Lacy v. Dart, No. 14-C6259, 2015 WL 1995576 (N.D. Ill. April 30, 2015). Since originally seeking a preliminary
injunction in September 2014, plaintiffs have sought various types of relief. See doc. nos. 43,
120, 143, 162. In their final reply, however, plaintiffs ask the court to:
enter a final declaratory judgment that detainees are being denied rights secured by
the ADA and the Rehabilitation Act when they are transported to and from the Jail
and court appearances and enter a permanent injunction requiring the Sheriff to
change Order 11.14.35.0 to require: Employees of the Sheriff shall push each
detainee who is using a wheelchair up and down ramps in all courthouses.
(Emphasis included).
In the alternative, plaintiffs request that the court “grant this relief in the form of a preliminary
injunction.” For the reasons discussed below, plaintiffs’ motion for injunctive relief is granted in
part and denied in part.
BACKGROUND
Plaintiffs, like all Cook County Jail detainees, attend court periodically in connection
with their underlying criminal cases at either the Leighton Criminal Courthouse in Chicago
(“Leighton”) or one of five suburban courthouses: Maywood; Markham; Skokie; Rolling
Meadows; and Bridgeview. Plaintiffs complain that as wheelchair-using detainees they are
subject to numerous ADA and Rehab Act violations in connection with their criminal court
appearances. Specifically, plaintiffs allege that their rights are violated when being transported
to and from court and while waiting at the courthouses for their cases to be called. Plaintiffs
contend that courthouse ramps, holding cells, and transport vans are not compliant with the ADA
2
and Rehab Act’s architectural accessibility standards (or “structural requirements”) and that
defendants have not provided reasonable accommodations to overcome structural barriers.
The court held seven days of hearings on plaintiffs’ motion for a preliminary injunction.
At the hearings, the evidence focused on a number of subjects, including: (1) the accessibility of
the courthouses under current conditions; (2) accommodations defendants provide to overcome
structural barriers; (3) construction the County was undertaking contemporaneously with the
hearings to remove structural barriers; (4) the credibility of the testifying named plaintiffs and
putative class members; (5) the County’s future plans to make the courthouses compliant with
current ADA structural requirements; and (6) the applicability of the ADA and Rehab Act’s
structural requirements to the courthouses. Since the evidentiary hearing concluded on
February 17, 2015, the parties have submitted numerous status reports concerning defendants’
compliance with existing ADA-policies, implementation of new ADA-policies, and ADAfocused construction at all six courthouses.
DISCUSSION
A.
Defendants’ Statutory Obligations
Plaintiffs claim that defendants have violated section 504 of the Rehab Act and Title II of
the ADA. Section 504 prohibits a “qualified individual with a disability” from being “excluded
from the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance,” as a result of his disability. 29
U.S.C. § 794(a). Similarly, Title II of the ADA provides that, “no 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
3
discrimination by any such entity.” 42 U.S.C. § 12132. Given that the analysis under each
statute is the same (with the exception that the Rehab Act requires receipt of federal funding) and
that plaintiffs can recover under only one of the statutes, the court will analyze the two statutes
as one, referring predominantly to the ADA. See Jaros v. Ill. Dep't of Corr., 684 F.3d 667, 67172 (7th Cir. 2012).
To succeed on a Title II claim, a plaintiff must establish: (1) that he is a “qualified
individual with a disability”; (2) that was denied “the benefits of services, programs, or activities
of a public entity,” or otherwise was discriminated against by the public entity; and (3) that such
denial or discrimination was “by reason of” his disability.3 Love v. Westville Corr. Ctr., 103
F.3d 558, 560 (7th Cir. 1996); 42 U.S.C. § 12132. Title II’s implementing regulations provide
that “[a] public entity shall make reasonable modifications in policies, practices, or procedures
when the modifications are necessary to avoid discrimination on the basis of disability.”
28 C.F.R. § 35.130(b)(7). Thus, discrimination can be established by evidence that the
defendant refused to provide a reasonable accommodation. Washington v. Indiana High Sch.
Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999).
Title II’s “reasonable modification requirement can be satisfied in a number of ways.”
Tennessee v. Lane, 541 U.S. 509, 532 (2004). Buildings constructed or renovated after 1992,4
must comply with specific architectural accessibility standards. 28 C.F.R. § 35.151. For
3
To recover damages under either statute, which is currently not an issue before the
court, a plaintiff is required to prove that the defendant intentionally discriminated. CTL ex rel.
Trebatoski v. Ashland School Dist., 743 F.3d 524, 528 n.4 (7th Cir. 2014).
4
As discussed below, the Rehab Act’s architectural accessibility standards have a
different effective date than the ADA.
4
buildings constructed before 1992, “a public entity may comply with Title II by adopting a
variety of less costly measures, including relocating services to alternative, accessible sites and
assigning aides to assist persons with disabilities in accessing services.” Id. (citing 28 C.F.R. §
35.150(b)(1)). The parties agree that the ADA and Rehab Act’s structural requirements do not
apply to the Leighton, Maywood, Markham, and Skokie courthouses because of their early
construction dates. Accordingly, defendants’ statutory obligations with respect to those
courthouses are limited to providing pretrial detainees with reasonable accommodations that
overcome structural barriers. See id.
Plaintiffs argue, however, that the Rehab Act’s structural requirements were applicable to
the Rolling Meadows and Bridgeview courthouses at the time of their construction in the late
1980s. Plaintiffs first argue that the Uniform Federal Accessibility Standards (“UFAS”) imposed
structural requirements on the two courthouses. The parties agree that as of March 7, 1988, the
Rehab Act required buildings constructed or renovated by a state or municipality to comply with
the UFAS. 28 C.F.R. 42.522(b). According to the County, because the Rolling Meadows
courthouse was fully constructed in 1987, the building did not have to be constructed in
compliance with the UFAS.
The County argues that while the Bridgeview courthouse was not opened until 1989, its
construction, including design and permitting, began in 1986, thereby making the UFAS
inapplicable. Defendants do not cite any authority for their position that “the latest event that
could trigger compliance with [the UFAS] is the beginning of construction of the new facility,”
nor could the court find any such authority. However, the court does note that under the ADA
“the commencement of physical construction,” is “the triggering event for application of the
5
2010" structural requirements “for entities covered by title II.” See Guidance on the 2010 ADA
Standards for Accessible Design, “State and Local Government Facilities: Guidance on the
Revisions to 28 CFR 35.151,” U.S. Department of Justice, Sept. 15, 2010,
http://www.ada.gov/regs2010/2010ADAStandards/Guidance2010ADAstandards.htm.
Given the apparent inapplicability of the UFAS to the two courthouses, plaintiffs also
argue that prior to the Rehab Act’s adoption of the UFAS in 1988, the Act imposed other
accessibility standards called the American National Standard Specifications for Making
Buildings and Facilities Accessible to, and Usable by, the Physically Handicapped (“ANSI
requirements”). 28 C.F.R. § 45.522 (1980). According to plaintiffs, the 1980 ANSI
requirements called for the same maximum slope for ramps as today’s statutory construction
standards. As such, plaintiffs argue that despite the Bridgeview and Rolling Meadows’ late1980s construction dates, the County was required to comply with the slope standards specified
in the 1980 ANSI requirements when constructing the ramps at both courthouses.
The court is not persuaded by either of plaintiffs’ arguments. The Rehab Act prohibits
“discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C.
§ 794. The Rehab Act defines “program or activity” as the operations of “a department, agency,
special purpose district, or other instrumentality of a State or of a local government.” 29 U.S.C.
§ 794(b)(1)(A). The defendant County, which is responsible for construction and maintenance
of the courthouses at issue, does not fit this definition. Instead, as found in Schroeder v. City of
Chicago, 715 F. Supp. 222, 225 (N.D. Ill. 1989), the County “embodies an entire local
government,” and “is not a department or instrumentality of a local government.” Through the
Civil Rights Restoration Act of 1987, Congress intended “to include federally funded institutions
6
like hospitals or universities within the amended definition of ‘program or activity.’ By contrast,
nothing in the amendment’s legislative history suggests that Congress contemplated classifying
an entire municipality . . . as a ‘program or activity.’” Id. at 225; see also Hodges by Hodges v.
Public Bldg. Com’n of Chicago, 864 F. Supp. 1493, 1505-06 (N.D. Ill. 1994). As such, the
County’s statutory obligations under the ADA with respect to all six courthouses, including the
Rolling Meadows and Bridgeview courthouses, are limited to providing pretrial detainees with
reasonable accommodations that overcome structural barriers. See Lane, 541 U.S. at 532.
B.
Evidentiary Record5
i.
Transport Vans
Plaintiffs complain that their rights pursuant to the ADA are violated when they are
transported to and from court appearances at the suburban courthouses in the Sheriff’s transport
vans. According to plaintiffs, correctional officers employed by the Sheriff: (1) transport more
wheelchair-using detainees at one time than there are ADA-compliant wheelchair straps; (2) fail
to secure wheelchair-using detainees with ADA straps during transport; and (3) at other times,
fail to properly secure wheelchair-using detainees with the ADA-compliant straps during
transport. Plaintiffs allege that these violations have resulted in injuries to some wheelchairusing detainees.
The evidentiary record establishes that defendant Sheriff utilizes four handicap accessible
vans to transport wheelchair-using detainees to and from court appearances at the suburban
5
The evidentiary record currently before the court includes the seven days of hearings
on plaintiffs’ motion for injunctive relief and the many status reports and additional evidence
that the parties have submitted since the last hearing date on February 17, 2015. Given this
voluminous record, the court does not address every piece of evidence submitted by the parties,
but instead focuses on what it finds to be most relevant.
7
courthouses. The Lieutenant of Transportation for the Sheriff, Grant Martin, testified that two of
the vans were purchased in 2014 and that the other two vans had been in service for
approximately four or five years. At the time the new vans were purchased, Lieutenant Martin,
along with four sergeants and two officers, were trained on how to properly use the ADA
restraints in each van. The other Sheriff’s officers were instructed on proper use of the vehicles
during morning roll call.
Lieutenant Martin testified that two Sheriff’s officers are assigned to each van during the
transport of wheelchair-using detainees. There are two S-hook straps attached to the floor of the
vans that are secured to the wheels of a detainee’s wheelchair, and once the straps are tightened
they “keep the wheelchair immobile.” There is also a traditional seatbelt that goes across the
detainee’s body. The officers assigned to each van are required to inspect the vans, including
verifying that the ADA equipment is present and functional, each morning before transporting
any detainees. Lieutenant Martin testified that two to three wheelchair-using detainees are
transported in the vans at one time, depending on how many ADA straps are available. While
the new vans are pre-equipped with two sets of straps, additional straps can be added to the vans
to accommodate a third wheelchair-using detainee. Wheelchair-using detainees are not
handcuffed during transport to and from court. According to Lieutenant Martin, detainees can
remove and adjust both the seat belt and S-hook straps without assistance. Lieutenant Martin
testified that he has received approximately four to six grievances in the last two months from
wheelchair-using detainees concerning van transport and that he had not received any such
grievances previously.
8
Plaintiffs’ ADA expert, Maureen Reagan, testified that she inspected two of the transport
vans used by the Sheriff to take wheelchair-using detainees to court proceedings – one older
model and one newer model. Reagan testified that in one van there were enough restraints to
transport two wheelchair-using detainees at once, while the other van had a single set of S-hook
straps. Reagan testified that with the exception of “lacking a handhold inside,” the vans were
compliant with the 2010 ADA accessibility standards. The vans had ADA-compliant lifts, hooks
to secure each side of a wheelchair, and seatbelts.
Plaintiffs submitted six witnesses – Harold Vaughn, Marquis Bowers, Kevin Dawson,
Shelly Gaston, Daryl Harper, and Cornelius Purnell – who testified about being transported to
and from court in the Sheriff’s transportation vans. The six wheelchair-using detainees testified
about a myriad of experiences, but collectively complained about not having their wheelchairs
secured at all, and on other occasions, being strapped in, but not securely, during transport to
court appearances. Gaston and Harper complained that even when they are properly restrained,
the S-hook straps are too old to ensure that they will not be shaken around during the trip.
Bowers, Vaughn, Purnell, and Dawson testified to falling out of their wheelchairs or tipping over
in their wheelchairs during transport as a result of not having their wheelchairs secured. The
detainees also testified to witnessing other wheelchair-using detainees fall out of their
wheelchairs during transport.
In addition to not being secured in the vans, Dawson and Purnell testified to being
transported with as many as four other wheelchair-using detainees at one time over the past two
years. Both detainees, however, testified that on such occasions two detainees would be taken
out of their wheelchairs and placed in the van’s seats. According to Dawson and Purnell, this
9
practice had recently changed, and over the past several months they had been transported with
only one other wheelchair-using detainee when going to and coming from court.
The detainees testified to the proper way Sheriff’s employees are supposed to secure
wheelchair-using detainees into the vans, with an S-hook strap attached to each wheel of the
detainee’s wheelchair and a seatbelt across each detainee’s chest. However, the detainees
testified that they were unable to secure or unsecure themselves in the vans. Purnell testified that
despite the fact that video evidence showed him picking-up an object from the floor while seated
in his wheelchair, he cannot tighten or loosen the van’s ADA straps because, “[f]irst of all, it’s
the officers’ job to do that. And plus . . . [he doesn’t] know how to work the belt.” Similarly,
Bowers admitted that the latches that tighten the S-hook straps are only a few inches from his
hands, but that he is unable to tighten or loosen the straps himself because “he doesn’t know how
to do the straps.” Video evidence, however, showed Bowers coming out of a transport van on
November 7, 2014, – a day on which Bowers testified to having been properly secured within the
van – without a Sheriff’s officer helping him undo the ADA straps.
Lieutenant Martin testified that an investigation into whether Dawson was properly
secured during transport on January 6, 2015, revealed that he had unstrapped himself upon
arrival to the Skokie courthouse. To address the problem of wheelchair-using detainees
unstrapping themselves while in the transportation vans, the Sheriff’s ADA Coordinator,
Marlene Fuentes, testified about a notice she began drafting in February 2015 to warn detainees
against removing the ADA straps while in the vans. Fuentes explained that she intended to place
the notice in each of the Sheriff’s wheelchair accessible vans.
10
ii.
Ramps
When attending court at any of the five suburban courthouses, wheelchair-using
detainees encounter ramps between the loading dock where they are deposited by the
transportation van and the courthouses’ lower-level holding cells. Similarly, detainees with
appearances at the Leighton courthouse maneuver a ramp in the tunnel between the Cook County
Jail and the courthouse’s lower-level staging area. The parties agree that the ramps leading to
the lower-level holding cells at each of the six courthouses are not compliant with current ADA
slope or landing requirements, and that a reasonable accommodation is for defendants’
employees to push wheelchair-using detainees up and down the ramps. Although defendants’
witnesses testified that there is a policy and practice requiring wheelchair-using detainees to be
pushed up and down the courthouse ramps, plaintiffs complain that wheelchair-using detainees
are frequently unassisted.
Plaintiffs presented three witnesses – Dawson, Harper, and Purnell – who testified that
they are not consistently pushed up and down the courthouse ramps. Harper testified that he
normally pushes himself up the ramp at the Markham courthouse, but that “sometime[s] [he’ll]
get a nice [officer] that will help [him].” Harper has never asked for assistance with
maneuvering the Markham ramp. Purnell testified that he occasionally is given assistance with
the ramp at the Bridgeview courthouse, but that nine out of ten times over the last six months he
was not assisted.
Dawson complained that he rarely receives assistance going up and down the Skokie and
Leighton courthouse ramps. At least five videos (dated December 30, 2014, January 6, 2015,
April 2, 2015, April 3, 2015, and August 4, 2015) submitted by plaintiffs show Dawson using the
11
ramps without assistance. Video footage from December 30, 2014, and April 2, 2015, depicts
Dawson maneuvering up and down the Leighton courthouse ramp unassisted (despite allegedly
requesting help on April 2, 2015). Video evidence from August 4, 2015, shows Dawson rolling
himself down the Leighton courthouse ramp. The videos submitted by plaintiffs from Dawson’s
April 3, 2015, visit to the Leighton courthouse show him both receiving and not receiving
assistance up and down the ramps.
Although video footage from the Skokie courthouse ramp area on January 6, 2015,
depicts Dawson pushing himself up the ramp, video footage from the loading dock area shows
Dawson leaving the loading dock without the guards. Lieutenant Martin testified that because
operation of the van lift requires the vehicle to remain on, Sheriff’s officers must secure the
transport van before escorting detainees to the lower-level holding cells. According to
Lieutenant Martin, it is possible for a detainee to leave the loading dock area while the officers
are securing the vehicle.
Some of the videos submitted by plaintiffs also depict Dawson receiving the assistance
he denies obtaining. For example, on August 24, 2015 (long after the hearings had concluded),
plaintiffs moved to submit additional video evidence of three occasions on which Dawson was
allegedly not assisted with the ramps. However, in two of the three videos (dated July 16, 2015,
and August 4, 2015), Dawson was provided assistance going up the courthouse ramps. Bowers
and Farris (who was called as a witness by defendants) both testified to always receiving
assistance when maneuvering the ramps at the Maywood and Bridgeview courthouses. Gaston
did not testify concerning whether he is routinely given assistance with the ramp at the Markham
courthouse, but did testify to being helped up the ramp on December 10, 2014.
12
James Banks, Assistant Chief of the Leighton courthouse, testified that it is policy and
practice for court services officers to push wheelchair-using detainees up and down the ramps at
the Leighton courthouse, but that most of the time detainees do not want assistance. Likewise,
both Lieutenant Martin and ADA Coordinator Fuentes testified that it is the Sheriff’s policy and
practice to push wheelchair-using detainees up and down the ramps at all of the courthouses.
Fuentes testified that she has conducted training on this policy, and Lieutenant Martin testified
that he has reminded the Sheriff’s officers of the policy at least twice a week during morning roll
call over the past year.
The first ADA complaint Fuentes received concerning a wheelchair-using detainee not
receiving assistance with the courthouse ramps was on November 12, 2014, from Dawson. As
with the notices to be placed in the transport vans, Fuentes began drafting a notice in February
2015 warning wheelchair-using detainees against traversing courthouse ramps without the
assistance of a Sheriff’s or court services officer. Fuentes testified that she planned on posting
these notices at the top and bottom of the ramps at each of the six courthouses. On March 13,
2015, the Sheriff issued a general order (“Sheriff’s Order 11.14.35.0"), effective March 27, 2015,
stating that “When practicable, [Sheriff’s officers] shall provide assistance to wheelchair-bound
subjects who are in CCSO custody,” including “[p]ushing subjects up and down ramps in CCSO
facilities.”
iii.
Holding Cells
Plaintiffs complain that the holding cells wheelchair-using detainees are housed in while
awaiting appearances at all of the six courthouses are not accessible, and that defendants have
not provided reasonable accommodations to overcome structural barriers in the cells.
13
Specifically, plaintiffs contend that: (1) the lower-level holding cells at the suburban courthouses
do not have accessible bathroom facilities; (2) none of the holding cells adjacent to the
courtrooms in any of the six courthouses have accessible toilets; and (3) there is no accessible
toilet facility in bullpen 34/5, where detainees are held prior to being transported to the Leighton
courthouse. Defendants do not dispute that the holding cells at all six courthouses are not
compliant with the 2010 ADA architectural accessibility standards. However, defendants
contend that they have provided reasonable accommodations to overcome any structural barriers,
and beyond this statutory obligation, have begun construction to make holding cells at each of
the six courthouses compliant with the current accessibility requirements.
1.
Leighton Courthouse
Since at least December 2014, wheelchair-using detainees attending court at the Leighton
courthouse are brought from their living quarters in the morning to bullpen 34/5 at the lowerlevel exit of Division 5 of the Cook County Jail. Originally, bullpen 34/5's bathroom facility
consisted of a toilet/sink combination, without grab bars. In May 2014, ADA Coordinator
Fuentes placed a work order for grab bars to be placed in bullpen 34/5, which were installed in
November 2014. ADA Compliance Project Director for Cook County, Michael Gumm, testified
that he became involved with bullpen 34/5 improvements in September or October of 2014. On
October 2, 2014, Gumm drafted a memo with a scope of work to make bullpen 34/5 compliant
with the 2010 ADA standards. At the time of Gumm’s testimony on January 20, 2015, the toilet
in bullpen 34/5 was ADA-compliant, but the newly installed sink was too close to the toilet and
did not comply with ADA clearance standards. By the end of March 2015, a new, ADAcompliant sink was installed in bullpen 34/5.
14
From bullpen 34/5, wheelchair-using detainees are brought through a tunnel to a staging
area below the Leighton courthouse, known as “the bridge.” Wheelchair-using detainees are
staged outside of a large holding cell in the bridge area until their court cases are called. While a
large holding cell in the bridge has toilet facilities, it is reserved for non-wheelchair-using
detainees who are held in the cell. If a wheelchair-using detainee wishes to use the restroom
while staged in the bridge, he must request that a court services officer escort him to a bathroom
in what is referred to as the “old female lockup” area, which is adjacent to the bridge.
According to Assistant Chief Banks, there is a sign posted in the bridge area alerting
wheelchair-using detainees to the fact that they can request to use the old female lockup
restroom. The old female lockup bathroom has a combination toilet/sink, over which a portable
commode chair was placed in the spring of 2014. In January 2015, a privacy wall that was next
to the toilet/sink combination was torn down and a grab bar was added to the wall next to the
toilet to make the facility more accessible. Gumm testified that a grab bar could not be added
behind the toilet/sink combination, as required by the 2010 ADA standards, because of structural
reasons. Defendants argue that these adjustments make the restroom accessible to wheelchairusing detainees.
Assistant Chief Banks testified that in April 2014 he toured the Leighton courthouse and
observed that there are no handicap accessible toilet facilities in the holding cells behind the
courtrooms. Banks communicated these observations to his supervisor, Chief of Courts Eddie
Avant, and Leighton building staff in an April 19, 2014, memorandum. The memo, which was
read at the following ten roll calls, instructed court services officers to, “[i]n the event of
emergency,” escort a wheelchair-using detainee from the lockup area to a public, ADA-
15
compliant restroom. Banks’ memo articulated that “[t]hese measures are to be used only in
emergencies until the facility is ADA compliant.” Banks testified that since the memo was
published, he was not aware of any detainee being taken to a public restroom.
According to Banks and ADA Coordinator Fuentes, the policy and practice of the court
services officers at the Leighton courthouse is to bring wheelchair-using detainees directly from
the bridge area to their courtroom and back down again to the bridge area immediately following
the court appearance. Dawson, however, testified that on December 4, 2014, he was held in a
holding cell outside of his courtroom in the Leighton courthouse for over an hour. In addition,
video footage from the Leighton courthouse on December 30, 2014, depicts Dawson waiting in
that same holding cell for approximately two hours after his court appearance.
Dawson testified that on November 5, 2014, while waiting in the bridge, he requested
that an officer take him to the old female lockup bathroom. According to Dawson, the officer
told him that she did not know about an old female lockup restroom. Instead, Dawson was
escorted to bullpen 34/5. Dawson testified that he could not use the restroom in bullpen 34/5
because it did not have grab bars. As a result, Dawson testified that he soiled himself prior to
going to court. Dawson filed a grievance about this incident, to which Fuentes responded that
grab bars had subsequently been installed in the bullpen. When Dawson returned to court on
December 4, 2014, he observed that grab bars were now in bullpen 34/5. However, he testified
that despite the grabs bars it was still difficult for him to use the toilet because it was too low.
2.
Suburban Courthouses
ADA Coordinator Fuentes testified that in June or July of 2014 she inspected the
detention areas at all of the suburban courthouses. During her tour, Fuentes observed that all of
16
the bathroom facilities in the holding cells at each of the five suburban courthouses had
combination toilet/sinks. In addition, with the exception of the Maywood courthouse where two
upper-level holding cells were compliant with current ADA standards, none of the bathroom
facilities had grab bars. Following her tour of the suburban courthouses, and after receiving a
grievance from a wheelchair-using detainee about not being able to access the toilet facilities at a
suburban courthouse, Fuentes delivered portable commode chairs provided by the Cermak
Infirmary to each of the suburban courthouses.
Fuentes testified that a holding cell in the lower-level of each suburban courthouse was
chosen for wheelchair-using detainees to be held in. A portable commode chair was placed in
each of the selected lower-level holding cells. Fuentes then posted signs alerting detainees at
each of the five courthouses that commode chairs were available upon request and also spoke to
the wheelchair-using detainees in their housing units about being able to request a commode
chair. Fuentes also instructed court services officers to provide wheelchair-using detainees with
commode chairs when they are placed in a suburban court holding cell. Fuentes, however, did
not train the officers on how to assist a detainee using a commode chair, even though the chairs
have a manufacturer’s warning on them requiring that they be used with assistance.
Fuentes testified that she did not supply the upper-level holding cells with commode
chairs because the Sheriff’s policy at the suburban courthouses is, as it is at the Leighton
courthouse, to escort wheelchair-using detainees up to their respective courtrooms immediately
before their case is called and escort them back to the lower-level holding cells immediately
thereafter. However, Purnell testified to being kept in a holding cell outside of his courtroom at
the Bridgeview courthouse for up to two hours before his court appearance.
17
Plaintiffs’ witnesses collectively testified to the bathroom facilities being inaccessible in
the suburban courthouses. Even with the commode chairs in the lower-level holding cells, the
witnesses complained that they could not safely transfer onto the chairs because some of the
commode chairs did not have removable arms. Moreover, the detainees testified that because the
chairs were not secured to the floor, they shift when being mounted. While some of the
detainees were able to access the holding cell sinks, others testified that they could not use the
sinks at all, or only with difficulty. Gaston testified that during his December 10, 2014, visit to
Markham he was provided with a commode chair upon request, but that the court services officer
told him that he could not help him use the chair. The officer, however, took Gaston to a public,
accessible restroom on the lower-level of the courthouse.
Dawson testified to being able to use the toilet with the commode chair in the lower-level
Skokie holding cell, but complained that transferring to the chair was difficult and not always
successful. Video footage from November 18, 2014, depicts Dawson transferring to a commode
chair; however, he testified that he could not use the facility because the chair shifted away from
the toilet while he was transferring. Dawson testified that he cannot use the combination
toilet/sink in the holding cell outside of his courtroom at the Skokie courthouse because his
wheelchair does not fit past the privacy glass next to the toilet.
Harper testified that while at the Markham courthouse on December 10, 2014, he was
provided with a commode chair, but that the officer told him that he could not provide assistance
using the chair. Harper testified that he could not use the bathroom facilities, even with the
commode chair, because the handrails on the commode chair do not allow for a side transfer.
18
Harper testified to defecating on himself five months prior to his testimony because he was
unable to use the toilet in the Skokie holding cell.
Video evidence from October 21, 2014, showed Purnell transferring to a commode chair
in a lower-level Bridgeview courthouse holding cell. Although Purnell was eventually able to
make the transfer, it took a substantial amount of time. As with the other detainee witnesses,
Vaughn testified that the commode chair available at the Markham courthouse was not stable
when trying to transfer.
iv.
ADA Construction
The evidentiary record establishes that defendants began contemplating the need for
ADA-related improvements in detention areas at the six courthouses prior to the filing of the
instant lawsuit in August 2014. In February 2014, the Sheriff hired ADA Coordinator Fuentes,
who was responsible for handling all inmate-related ADA issues for the Sheriff, ensuring that the
Sheriff’s policies and practices were compliant with the ADA, and conducting regular
assessments of Cook County Department of Correction facilities and equipment for ADAcompliance. Fuentes began conducting ADA-related training for Sheriff’s employees in March
2014. In July 2015, Fuentes resigned from her position as ADA Coordinator. The court has
been informed by the Sheriff that he is currently searching for an individual to fill the position.
In June 2014, the County hired Gumm to act as the County’s ADA Compliance Project
Director. In this position, Gumm focuses on implementing ADA improvements, including
developing ADA-compliant designs for both larger capital projects and smaller facilities
management projects. Gumm testified that when he first began working for the County in June
19
2014, he assisted the Director of Capital Planning in developing a 2015 capital improvement
plan for ADA-renovations of the detention areas at the Leighton courthouse.
In November 2014, the Cook County Board approved $8.3 million in funding for ADA
renovations to the Leighton courthouse holding cells as a part of its 2015 budget. Since the
evidentiary hearing, defendant County has undertaken a number of construction projects to bring
the detention areas at both the Leighton and suburban courthouses into compliance with the 2010
ADA accessibility standards. On September 3, 2015, the County submitted an affidavit by ADA
Project Coordinator Gumm attesting to the status of the ADA construction at each of the six
courthouses. According to Gumm’s affidavit, as of September 1, 2015, the County had executed
a contract with Prima Engineering for the renovation design of the holding cells in the lower and
upper-levels at the Leighton courthouse.
Gumm testified that the Leighton courthouse construction will be completed in three
phases over the course of 34 months (10 months for design and 24 months for construction).
The first phase of construction will renovate the lower level/bridge holding cells, the second
phase will renovate the holding cells behind the courtrooms on floors one and two, and the third
phase will renovate the holding cells behind the courtrooms on floors three through seven. As
specified in the County’s Request for Proposal No. 1555-14596, the Leighton renovations
include “removing cell doors, cell walls, and plumbing fixtures & related piping, the
reconfiguration of cell layouts, plumbing fixtures & piping . . . . in compliance with” current
ADA structural requirements.
As of September 1, 2015, renovation of the lower-level holding cells at the Skokie,
Rolling Meadows, and Markham courthouses had been completed, making the cells compliant
20
with the 2010 ADA accessibility standards. Renovations to widen the lower-level holding cell
doors at the Markham courthouse had also begun. In addition, the affidavit asserts that a
purchase order had been issued for a new ADA-compliant dock and intake ramp at the Skokie
courthouse, with installation projected to take place in October 2015. According to the affidavit,
a contractor was in the process of providing cost estimates to the County for new docks and
intake ramps at the Rolling Meadows and Markham courthouses, with installation projected to
take place in the winter of 2015.
Gumm further asserts in the affidavit that renovations on the lower-level holding cell
bathroom facilities at the Maywood and Bridgeview courthouses were projected to be completed
in September 2015. As with the other suburban courthouses, as of September 1, 2015, a
contractor was in the process of providing costs to the County for new ADA-compliant docks
and intake ramps at both courthouses, with installation projected to take place in the winter of
2015.
C.
Declaratory Judgement
Plaintiffs request that regardless of what injunctive relief – preliminary or permanent –
that the court imposes, it find that “detainees are being denied rights secured by the ADA and the
Rehabilitation Act when they are transported to and from the Jail and court appearances.”
Plaintiffs argue that “[t]he evidence presented at trial demonstrates that wheelchair-using
detainees at the Cook County Jail are discriminated against when they are transported to and
from court and while they wait at the courthouse for their cases to be heard.” According to
plaintiffs, defendants’ efforts to accommodate wheelchair-using detainees in overcoming
structural barriers at the six courthouses are inadequate.
21
To succeed on a Title II claim, a plaintiff must establish: (1) that he is a “qualified
individual6 with a disability”; (2) who was denied “the benefits of services, programs, or
activities of a public entity,” or otherwise was discriminated against by the public entity; and (3)
that such denial or discrimination was “by reason of” his disability.7 Love, 103 F.3d at 560. As
previously discussed by this court, plaintiffs and the class members they represent are qualified
individuals with a disability. Lacy, 2015 WL 1995576 at *2. Because defendant Sheriff
provides plaintiffs and class members with wheelchairs to use during their court proceedings,
they “are regarded as having an impairment, or at least have a record of impairment,” id., and
therefore are considered persons with disabilities pursuant to § 12102(1) of the ADA. Likewise,
plaintiffs’ constitutional right to attend their criminal court proceedings, Lane, 541 U.S. 509,
ensures that they are qualified to make use of the services, programs, and activities in question.
Transportation to court appearances and the facilities made available to detainees at the
six courthouses are services provided by defendants within the meaning of the ADA. See, e.g.,
Jaros, 684 F.3d at 672 (showers and meals made available to inmates qualify as a program or
activity); Bramlett v. Dart, No. 14-C-5939, 2015 WL 4148711, at *3 (N.D. Ill. July 9, 2015)
(showers, toilets, and transportation made available to inmates are services). Defendants,
6
Persons with disabilities are “qualified” if they, “with or without reasonable
modifications to rules, policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, meet[ ] the essential
eligibility requirements for the receipt of services or the participation in programs or activities
provided by a public entity.” 42 U.S.C. § 12131(2).
7
As noted previously, to recover under section 504 of the Rehab Act, a plaintiff must
also establish receipt of federal funds. Jaros, 684 F.3d at 671. In addition, to recover damages
under either statute, a plaintiff is required to prove that the defendant intentionally discriminated.
CTL, 743 F.3d at 528 n.4.
22
however, rely on Wagoner v. Lemmon, 778 F.3d 586 (7th Cir. 2015), to argue that plaintiffs’
allegations do not amount to a denial of these services. In Wagoner, the Seventh Circuit held
that the plaintiff’s complaints about “longer waits and humiliation, as when he had to crawl off
the regular [Illinois Department of Corrections] van because it did not accommodate his
wheelchair . . . . do not amount to a denial of services within the meaning of either” the ADA or
Rehab Act. Id. at 593. According to defendants, “[t]here is no evidence suggesting [they]
denied access to any activities, programs, or services.”
Wagoner, however, is distinguishable from the present case because the Seventh Circuit
in Wagoner held that the plaintiff’s allegations of inconvenience and humiliation did not
sufficiently allege a denial of access to services. Id. Here, as in Bramlett, plaintiffs argue that
“defendants failed to make reasonable accommodations to provide [them] with access to critical
services . . . on the same basis as other inmates.” Bramlett, 2015 WL 4148711 at *3; see also
Jaros, 684 F.3d at 672 (“The refusal to accommodate [plaintiff’s] disability kept him from
accessing meals and showers on the same basis as other inmates.”). Moreover, failing to provide
a reasonable accommodation, which plaintiffs are alleging here, is sufficient to establish
discrimination under Title II. See Washington, 181 F.3d at 847.
i.
Transport Vans
With respect to the transport vans, the court is not convinced that Sheriff’s employees,
and not the detainees themselves, are responsible for failing to adequately secure wheelchairusing detainees during transport to and from court appearances. The record establishes that the
Sheriff uses four ADA-compliant vehicles to transport wheelchair-using detainees and that
Sheriff’s personnel are trained on how to use the ADA restraints in the vehicles and are required
23
to inspect the equipment prior to use. While six witnesses testified to not being secured properly
in the vans, the court questions the credibility of their testimony on this topic given the fact that
the witnesses knew how the ADA straps are supposed to be attached to their wheelchairs, but
denied knowing how to secure the straps themselves. Unlike with the ramps and holding cells,
the witnesses’ testimony was not supported by other evidence, such as video footage, calling into
question the Sheriff’s practice of securing wheelchair-using detainees prior to transport. Instead,
video evidence of Bowers coming out of the transport van without assistance on a day he
testified to being properly restrained supports Lieutenant Martin’s testimony that detainees can
secure and un-secure themselves within the transport vans.
ii.
Ramps
The evidentiary record, however, establishes that plaintiffs’ rights under the ADA have
been violated in the past with respect to the courthouse ramps. As discussed above, plaintiffs
have submitted video evidence, including video footage taken as recently as August 4, 2015, of
wheelchair-using detainees not being pushed up and down courthouse ramps. Although
defendants presented evidence that it is their policy and practice to assist wheelchair-using
detainees maneuvering the courthouse ramps as a reasonable accommodation to overcome the
ramps’ steep slopes, such a policy can qualify as a reasonable accommodation only if it is
consistently practiced. The evidence here, however, establishes that the policy was not in fact
consistently observed in the past.
iii.
Bathroom Facilities
More significantly, the evidentiary record establishes that plaintiffs have historically been
denied access on the same basis as non-disabled detainees to bathroom facilities at the six
24
courthouses. As discussed in detail above, none of the holding cell bathroom facilities in any of
the six courthouses (with the exception of two upper-level holding cells at the Maywood
courthouse) were ADA complaint at the time this lawsuit was filed in August 2014. To
overcome structural barriers in accessing the toilet facilities, defendants began providing
wheelchair-using detainees with portable commode chairs in the Spring of 2014. However, the
record is devoid of any evidence that the commode chairs actually assisted wheelchair-using
detainees use the restroom facilities, let alone solved accessibility problems with the holding cell
sinks that were located behind the toilets.
ADA Coordinator Fuentes testified that the commode chairs are not considered ADAcompliant, and despite the fact that the manufacturer of the chairs specifically instructs that the
chairs be used with assistance, no such assistance was provided. Plaintiffs’ witnesses
consistently and credibly testified to being unable to use the toilet facilities or being able to do so
only with great difficulty, even when provided with a commode chair. As such, the portable
commode chairs were not a reasonable accommodation to overcome the structural barriers faced
by wheelchair-using detainees trying to access bathroom facilities in the courthouse holding
cells. Because the commode chairs were not a reasonable accommodation, defendants’ policy
and practice of bringing wheelchair-using detainees to and from their court appearances directly
from the lower-level holding cells was also not a reasonable accommodation to overcome the
lack of accessible bathroom facilities in the upper-level courthouse holding cells.
Even assuming arguendo that the commode chairs were a reasonable accommodation,
they were not supplied to the Leighton courthouse until early 2014 and to the suburban
courthouses until mid-2014. Accordingly, wheelchair-using detainees were without this
25
accommodation prior to those periods. Likewise, defendants’ policy and practice of bringing
wheelchair-using detainees to a public accessible restroom was not implemented (if at all) until
April of 2014. Given that defendants did not consistently assist wheelchair-using detainees up
and down courthouse ramps or provide a reasonable accommodation to allow wheelchair-using
detainees to use holding cell bathroom facilities on the same basis as non-disabled detainees, the
court finds that defendants have, in the past, violated plaintiffs’ rights pursuant to the ADA.
Although the court has found past ADA violations, plaintiffs are not entitled to the
declaratory judgment they request, that “detainees are being denied rights secured by the ADA
and the Rehabilitation Act when they are transported to and from the Jail and court
appearances.” (Emphasis added.) To begin with, contrary to the underlying purpose of such
relief, the declaratory judgment plaintiffs request would do nothing to protect the plaintiffs “with
regard to some future acts,” Global Parking Sys. of Indiana, Inc. v. Parking Solutions, Inc., No.
13-CV-00284, 2015 WL 1186787 (S.D. Ind. March 16, 2015), nor would it help define the
parties’ rights going forward. Moreover, in light of the injunctive relief plaintiffs seek, a
declaratory judgment would not serve a “useful purpose.” See Cohn v. Guaranteed Rate Inc.,
No. 14-C-9369, 2015 WL 5307625, at *5 (N.D. Ill. Sept. 10, 2015) (declining to exercise its
jurisdiction over plaintiff’s claim for declaratory judgment, because it was duplicative of
plaintiff’s other claims). Finally, contrary to evidencing present ADA violations, the record
establishes that defendants have undertaken extensive construction, beyond what is required of
them by the ADA or the Rehab Act, that has remedied the majority of the violations about which
plaintiffs complain.
26
D.
Injunctive Relief
According to plaintiffs, “[t]he record in this case shows the need for” a permanent
injunction, “requiring the Sheriff to change Order 11.14.35.0 to require: Employees of the
Sheriff shall push each detainee who is using a wheelchair up and down ramps in all
courthouses.” (Emphasis included). On June 10, 2010, the court held that it would rule on
plaintiffs’ motion for a preliminary injunction only, despite the fact that it had previously
combined the evidentiary hearing with a trial on the merits. However, in light of plaintiffs’ most
recent request for a permanent injunction, and the fact that the evidentiary record has continued
to grow since this issue was last addressed, preliminary injunctive relief is no longer before the
court. Accordingly, the court now considers plaintiffs’ request for a permanent injunction.
As discussed above, on March 13, 2015, the Sheriff issued a general order effective
March 27, 2015, stating that “When practicable, [Sheriff’s officers] shall provide assistance to
wheelchair-bound subjects who are in CCSO custody,” including “[p]ushing subjects up and
down ramps in CCSO facilities.” Plaintiffs argue that “when practicable” does not ensure that
wheelchair-using detainees will be given assistance up and down courthouse ramps. Defendants,
however, contend that the “when practicable” language is necessary because an emergency
situation, such as instances requiring all available officers to respond to a security matter, may
arise in which no officer is available to provide ramp assistance. According to the Sheriff,
“[t]hese circumstances rarely occur; yet the Sheriff should be allowed the latitude to craft
policies and procedures to permit officers flexibility when they do.” The Sheriff, however,
concedes that it “is not opposed to changing language within the Order.” Doc. no. 158.
27
A permanent injunction “requires a showing that: (1) the plaintiffs have suffered
irreparable harm; (2) monetary damages are inadequate to remedy the injury; (3) an equitable
remedy is warranted based on the balance of hardships between the plaintiffs and defendant; and
(4) the public interest would be well served by the injunction.” Kartman v. State Farm Mut.
Auto. Ins. Co., 634 F.3d 883, 892 (7th Cir. 2011). Given the court’s ruling that defendants have
discriminated against wheelchair-using detainees by failing to consistently push them up and
down courthouse ramps, plaintiffs have succeed on the merits of their ADA claim with respect to
this alleged statutory violation. Notwithstanding this finding, the ramps at some or all of the six
courthouses remain non-compliant with current ADA standards and plaintiffs have established
that defendants’ current policy and practice of helping detainees maneuver the ramps continues
to be applied sporadically, despite the Sheriff’s order. As such, the court’s finding does not
rectified plaintiffs’ injuries. See Walgreen Co. v. Sara Creek Prop. Co., B.V., 966 F.2d 273, 275
(7th Cir. 1992) (“‘Irreparable’ in the injunction context means not rectifiable by the entry of a
final judgment.”). Although plaintiffs seek to recover damages pursuant to Title II, these
damages are not an adequate remedy because they are meant to compensate plaintiffs for past
instances of discrimination, but, if rewarded, will do nothing to protect plaintiffs’ rights going
forward.
Where, as here, the plaintiff requests a mandatory injunction requiring defendants to
perform an affirmative act, the balance of harms inquiry is particularly important as a part of the
court’s evaluation of whether injunctive relief is appropriate. See Kartman, 634 F.3d at 892.
Defendants adamantly assert that they already provide the relief requested and have expressed
their willingness to revise the Sheriff’s order to ensure that all wheelchair-using detainees
28
receive the required assistance. As such, there is no significant harm imposed by requiring
defendants to alter the order at issue. Conversely, without injunctive relief, plaintiffs’ rights
under the ADA and Rehab Act will likely continue to be violated. Because the balance of harms
favors plaintiffs and an injunction protecting their federal rights is in the public interest,
plaintiffs have established their right to permanent injunctive relief.
Although plaintiffs are entitled to permanent injunctive relief, their proposed
amendments to the Sheriff’s order do not adequately take into account the corrections context
under which the order will be imposed. As discussed above, defendants have expressed a
legitimate concern that plaintiffs’ proposed order, requiring an officer to push wheelchair-using
detainees up and down the ramps no matter the circumstances, may cause safety and security
issues in the event of an emergency. However, as the evidence has established, the Sheriff’s
order is presently too broad and indefinite to protect plaintiffs’ federal rights under the ADA.
For example, an officer may not find it “practicable” to push a wheelchair-using detainee up a
courthouse ramp when carrying something in his hands. Accordingly, cognizant of defendants’
concerns and the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626(a),8 which requires
injunctive relief to be narrowly drawn in the corrections setting, defendants should be given an
opportunity to propose an amended Sheriff’s order that more specifically addresses the
exceptional circumstances about which they are concerned.
8
Although the instant case predominantly involves conditions at the six respective
courthouses and not “prison conditions,” as specified by the PLRA, the parties appear to agree
that the PLRA is applicable to any injunction this court may enter. Because plaintiffs and class
members are incarcerated during their time at the courthouses, the court agrees that the PLRA is
applicable.
29
CONCLUSION
For the foregoing reasons, it is hereby ordered:
1.
Plaintiffs’ request for a declaratory judgment is denied;
2.
Plaintiffs’ request for mandatory injunctive relief requiring defendants to alter
Sheriff’s Order 11.14.35.0 to state that: “Employees of the Sheriff shall push each
detainee who is using a wheelchair up and down ramps in all courthouses,” is
denied, in light of paragraph 3 below;
3.
Defendant Sheriff is directed to amend the order referenced in paragraph 2 above
with language ensuring that wheelchair-using detainees are consistently assisted
when maneuvering courthouse ramps that are not compliant with the ADA,
explaining clearly what exigent circumstances would excuse such assistance. The
Sheriff is directed to submit a proposed amended order on or before October 29,
2015;
4.
Defendants are ordered to submit a verified report on the status of the ADArelated construction at the six courthouses in question on or before October 29,
2015;
5.
Plaintiffs may respond to defendants’ submissions on or before November 12,
2015;
6.
This matter is set for a hearing on the status of the matters discussed above on
November 18, 2015, at 10:00 a.m.
ENTER:
October 8, 2015
__________________________________________
Robert W. Gettleman
United States District Judge
30
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