Bowers v. Dart et al

Filing 132

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 9/29/2017: Plaintiff's motion for partial summary judgment, 78 , is denied. [For further detail see attached order.] Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARQUE BOWERS,
Plaintiff,

No. 16 CV 2483

v.
THOMAS DART, Sheriff of Cook County,
et al.,

Judge Manish S. Shah

Defendants.
MEMORANDUM OPINION AND ORDER
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.
I.

Legal Standards
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).
II.

Background
Bowers entered the Cook County Jail on October 20, 2011. [110] ¶ 1.1 While

incarcerated there, inmates attacked Bowers. [79-4] at 40, 95:6–9. He was
transported to a hospital for medical treatment. [110] ¶ 2. At the hospital, Dr.
Raskin examined Bowers; her report states: “He has great difficulty articulating in
a more specific or descriptive fashion whether he is experiencing true weakness,
numbness, and/or paresthesias of his limbs.” [96-5] at 5. After performing a number
of tests on Bowers, Dr. Raskin noted, “It is difficult to interpret the patient’s exam
at this time. There is an obvious absence of voluntary effort, coupled with
inconsistent sensory responses and potential pain limitation.” Id. at 6. For example,
Dr. Raskin tested Bowers’s claim of leg paresis (weakness or loss of movement) by
cupping her hands below his heels and asking him to raise one leg. [96-4] at 36:12–
18. A patient who is truly trying to lift his leg, but who may have weakness in that
leg, will try to compensate for any weakness in the moving leg by digging the

Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except in the case of
citations to depositions, which use the deposition transcript’s original page number. The
facts are largely taken from defendants’ responses to Bowers’s Local Rule 56.1 statements,
[95], where both the asserted fact and the opposing party’s response are set forth in one
document. Any arguments raised in the Local Rule 56.1 statements, additional facts
included in responses or replies, and statements that are unsupported by admissible
evidence (or where a party fails to follow Local Rule 56.1’s direction to cite to supporting
material in the record) will be disregarded. Only facts that are properly controverted will be
considered disputed.
1

2

stationary leg into the bed, and the doctor would be able to detect that force in her
hands beneath the patient’s heels. Id. at 36:19–24. When Bowers attempted to raise
one leg, Dr. Raskin did not sense any force in Bowers’s heels, thereby making Dr.
Raskin question the reliability of Bowers’s supposed effort to lift his leg. Id. at 37:3–
5. Dr. Raskin diagnosed Bowers with L1-L4 transverse process fractures, see [110]
¶ 3; but, she testified that a transverse process fracture typically cannot produce a
neurologic deficit or paralysis, of which Bowers was complaining. [96-4] at 9:12–17,
58:20–59:19.
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. [965] 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.

3

Dr. Defuniak treated Bowers at the Cermak Health Services Building.2 [96-6]
at 64:6–7, 70:24–25.3 Consistent with Dr. Raskin’s observations and diagnosis, Dr.
Defuniak noted that Bowers sustained a fractured spinous process, which did not
appear to injure Bowers’s spinal cord. Id. at 72:14–73:3. According to Dr. Defuniak,
a fractured spinous process does not typically cause injury to the spinal cord, nor
does it cause complete paralysis to the lower extremities. Id. at 72:23–73:9. As such,
Dr. Defuniak testified that there was no objective medical evidence that would
confirm that Bowers was paralyzed. Id. at 73:10–13. Dr. Defuniak wanted to
perform further testing on Bowers because he “was concerned [in October 2013] that
we still didn’t have a reason for why [Bowers] was still not able to move his legs.”
Id. at 74:1–9. Bowers refused to undergo further testing, even though Dr. Defuniak
explained that a failure to properly diagnose him could lead to a permanent
condition. Id. at 74:10–15. Under these circumstances, Dr. Defuniak asked Bowers
to sign a refusal to consent to evaluation or treatment; and Bowers signed that form
on October 23, 2013. Id. at 73:22–74:3. Despite Dr. Defuniak’s inability to determine
the cause of Bowers’s reported paralysis, he prescribed Bowers a wheelchair based
solely on Bowers’s subjective complaints.4 Id. at 73:14–18, 74:23–25.

Cermak was constructed in 1998 and it provides detainees with medical services on site.
[110] ¶ 9.
2

To the extent that deposition testimony from prior related cases is cited here, defendants’
objection to such use is overruled. See Alexander v. Casino Queen, Inc., 739 F.3d 972, 978
(7th Cir. 2014); Shultz v. Dart, No. 13 C 3641, 2016 WL 212930, at *4–5 (N.D. Ill. Jan. 19,
2016).
3

Dr. Defuniak explained that detainees sometimes feign paralysis or an inability to walk
for some type of gain—guaranteeing access to sit in a chair or wanting to look sympathetic.
[96-6] at 62:7–63:10.
4

4

When Bowers returned to Cook County Jail5 from the hospital in January
2013, he used a wheelchair to move from place to place.6 [95] ¶ 29. Bowers says he
is paralyzed from the attack—that he is unable to walk and that he must wear a
diaper. [79-4] at 40, 96:7–11; id. at 41, 98:6–8. He says that he has had trouble
controlling his bladder and bowels since day one, and that it has worsened over
time. [96-7] at 17:12–17. Bowers admits that he can move his legs slightly and that
he can wiggle his toes. [110] ¶ 8. Throughout his incarceration, Bowers was
assigned to several different cells—most of which were not ADA-compliant. See, e.g.,
[95] ¶¶ 51–53.
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
Cook County operates Cermak, and it is responsible for all medical care provided at
Cermak. Everett v. Cook Cty., 655 F.3d 723, 725 (7th Cir. 2011). The Cook County Sheriff’s
Office administers the Cook County Department of Corrections at large, see 55 ILCS 5/315003; and Cermak is one of its correctional facilities. See Clemons v. Dart, 168 F.Supp.3d
1060, 1063 (N.D. Ill. 2016) (“Although county medical staff provide medical care to the
inmates housed at Cermak, ultimately Cermak is a correctional facility that falls under the
control and supervision of defendant Sheriff Thomas Dart, as he administers the Cook
County Department of Corrections at large.”).
5

Bowers had a prescription for a wheelchair from at least September 26, 2014 to August 9,
2016. [95] ¶ 3. Only doctors from Cermak Health Services (the jail’s medical care provider)
prescribe wheelchairs to detainees at the Cook County Jail. Id. ¶ 2.
6

5

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.7 Id. ¶ 55. Bowers was assigned to two different cells in the RTU—cell 8 on

In 2007, Cook County Commissioners approved an eighty-five million dollar construction
budget to build a new treatment and residential correctional detainee center that was
modernized and that complied with the ADA. [110] ¶ 21. Construction on the RTU began in
7

6

Tier 3-A, and cell 8 on Tier 3-E, neither of which had any grab bars near the toilet.
Id. ¶¶ 57–59. In order to go to the bathroom in those cells, Bowers mounted the
toilet by shimmying onto it; on occasion he fell while transferring to the toilets in
the RTU cells.8 Id. ¶ 60. Bowers was able to side transfer onto the bench and use
the shower area in the RTU. [110] ¶ 33.
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.9 Id. ¶ 24.
III.

Analysis
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 entities10 on the basis of an individual’s disability. 42 U.S.C.
§ 12132. Similarly, for any program or activity receiving federal financial
assistance, the Rehabilitation Act prohibits a disabled person from being excluded
from participating in, being denied the benefits of, or being subjected to
2009 with the building opening to full capacity in December of 2014. Id. It opened to
wheelchair users in August 2014. [95] ¶ 55.
During Bowers’s time at the RTU, the only cells designed to comply with the ADA in the
RTU were cells 10 in Tiers 3-A and 3-E. Id. ¶¶ 61, 63.
8

From August 1, 2012, to at least June 9, 2015, inmates remanded to the Cook County
Sheriff’s Office could be housed in other jurisdictions outside of the Cook County
Department of Corrections due to security concerns, overcrowding, and the like. [79-2] at
10:12–11:9; [95] ¶ 22.
9

The ADA defines “public entity” to include “any State or local government” and “any
department, agency [. . .] or other instrumentality of a State.” 42 U.S.C. § 12131(1).
10

7

discrimination in any such program or activity. 29 U.S.C. § 794(a). The relief
available to Bowers under these statutes is coextensive. Jaros v. Illinois Dep’t of
Corr., 684 F.3d 667, 671 (7th Cir. 2012). To prevail under either claim, Bowers must
establish that he is a “qualified individual with a disability,” and that he was denied
“the benefits of the services, programs, or activities of a public entity” and that the
denial or discrimination was because of his disability. Wagoner v. Lemmon, 778
F.3d 586, 592 (7th Cir.), cert. denied, 136 S. Ct. 321 (2015) (citing Love v. Westville
Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996); 42 U.S.C. § 12132). The Rehabilitation
Act also requires that the relevant entity accepted federal funds. Jaros, 684 F.3d at
672. The relevant entities here, Cook County and the Cook County Sheriff’s Office,
accepted federal funds for Illinois state prisons. Id.
A.

Disability

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)).
8

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)).11 To

In Lacy v. Dart, the court granted the plaintiffs’ motion to certify a class defined as “all
persons presently confined at the [Cook County] Jail who have been classified by Jail

11

9

support this argument, Bowers points to the fact that defendants provided him a
wheelchair beginning in January 2013, [95] ¶ 29, and that a Cermak doctor
prescribed him a wheelchair from at least September 26, 2014, to August 9, 2016,
id. ¶¶ 2–3. While those facts are undisputed, they also must be viewed in the
context of the greater record, which makes clear that the reason Bowers received a
wheelchair was not because the doctor believed that Bowers could not walk, but
only because Bowers claimed he could not walk.
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
officials as requiring a wheelchair.” No. 14 C 6259, 2015 WL 1995576, at *1 (N.D. Ill. Apr.
30, 2015). Bowers was one of the plaintiffs in Lacy. Id. Defendants opposed class
certification for several reasons, including that many of the detainees are not confined to
their wheelchairs and have more mobility than others. Id. at *2. The court disagreed; it
reasoned that the detainees were regarded as having an impairment, or that they had a
record of impairment, because defendants provided them with wheelchairs. Id. In reaching
this conclusion, the court declined to perform individualized evaluations of the plaintiffs’
disabilities. Id. at *2, *5. This conclusion led to the court’s later ruling to grant plaintiffs’
motion for partial summary judgment as to each of their individual ADA and Rehabilitation
Act claims. Lacy v. Dart, No. 14 C 6259, 2015 WL 7351752, at *3 n.6 (N.D. Ill. Nov. 19,
2015) (Notwithstanding “defendants’ argument [that] certain plaintiffs do not qualify as
[disabled], as the court has previously held, plaintiffs are regarded as having a disability or
at least have a record of impairment, 42 U.S.C. § 12102(1), and therefore qualify for
protection under the ADA. Lacy, 2015 WL 1995576 at *2.”). The procedural posture of this
case, however, is different. Bowers is the sole plaintiff here and the record includes several
pieces of evidence that undermine his testimony that he has a disability under the ADA,
and that undermines the suggestion that defendants regarded Bowers as having a
disability.

10

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).

11

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.
B.

Inaccessible Housing Assignments

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 Standards12 or the 1991 ADA Standards for Accessible Design.
See 41 C.F.R. Pt. 101–19.6, App. A (the “Uniform Federal Accessibility Standards”),
available at http://www.access-board.gov/ada-aba/aba-standards-gsa.cfm.
12

12

See 28 C.F.R. § 35.151(c)(1). Both sets of standards require an accessible toilet to
have grab bars installed near the toilet, see 28 C.F.R. Pt. 36, App. D, § 4.17.6; UFAS
§ 4.17.6, and they require an accessible shower to have a mounted shower seat, see
28 C.F.R. Pt. 36, App. D, § 4.21.3; UFAS § 4.21.3. For facilities like the RTU, which
were built or altered on or after March 15, 2012, the regulations require compliance
with the 2010 Standards. See 28 C.F.R. § 35.151(c)(3). The 2010 Standards require
that “[g]rab bars shall be provided on the side wall closest to the water closet and on
the rear wall” of an accessible toilet, see 28 C.F.R. Pt. 36, App. D, § 604.5, and that a
folding seat shall be installed in accordance with 28 C.F.R. Pt. 36, App. D, § 610.
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

13

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,

14

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.13 The status quo and the
policies in practice were not affording Bowers equal access to the jail’s toilets and
showers. Of course, if Bowers was not disabled, then no accommodation was
necessary, but if he establishes that he has a disability, then he has sufficient facts
to suggest that an accommodation was necessary.

The parties agree that the inmate grievance procedure at Cook County Jail is an
instrument of the Cook County Sheriff’s Office. [110] ¶ 38. Defendant Cook County argues
that, “[c]onsequently, it cannot be said Cook County had knowledge of the risk of harm to
[Bowers’s] rights secured by the ADA and failed to act.” [99] at 20. I disagree. Although
Cook County may not have been aware of Bowers’s grievances, it is undisputed that Cook
County knew that Bowers returned to the jail in a wheelchair and that he was
subsequently assigned to cells that were not ADA-compliant; thus, they were on notice of
the risk of harm to Bowers’s rights.

13

15

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

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16 (citing ADATAM § II-3.400014; id. § II-3.410015; id. § II-3.610016). For example,
defendants argue that the DOJ permitted the use of portable shower chairs in lieu
of mounted seats in Cermak, and they argue that this exception is “an example of a
separate program to be implemented to avoid discrimination.” [99] at 18 (citing
ADATAM § II-3.4000, § II-3.4100). Yet, as Bowers points out, DOJ’s permission did
not go into effect until December 16, 2014, which was approximately four months
after Bowers was moved out of Cermak and into the RTU. [111] at 9 (citing [96-9] at
10). In any event, I have already concluded that such chairs, in Bowers’s case, did
not ensure an equal opportunity to benefit from the facility because they did not
provide the requisite amount of independence. See ADATAM § II-3.4000, § II3.4100.
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.

“A primary goal of the ADA is the equal participation of individuals with disabilities in
the ‘mainstream’ of American society. The major principles of mainstreaming are -- 1)
Individuals with disabilities must be integrated to the maximum extent appropriate. 2)
Separate programs are permitted where necessary to ensure equal opportunity. A separate
program must be appropriate to the particular individual. 3) Individuals with disabilities
cannot be excluded from the regular program, or required to accept special services or
benefits.” ADATAM § II-3.4000.

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“A public entity may offer separate or special programs when necessary to provide
individuals with disabilities an equal opportunity to benefit from the programs. Such
programs must, however, be specifically designed to meet the needs of the individuals with
disabilities for whom they are provided.” Id. § II-3.4100.
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“A public entity must reasonably modify its policies, practices, or procedures to avoid
discrimination. If the public entity can demonstrate, however, that the modifications would
fundamentally alter the nature of its service, program, or activity, it is not required to make
the modification.” Id. § II-3.6100.
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C.

Compensatory Damages

To recover compensatory damages under the ADA, Bowers must show that
defendants discriminated against him intentionally.17 CTL ex rel. Trebatoski v.
Ashland Sch. Dist., 743 F.3d 524, 528 n.4 (7th Cir. 2014). The Seventh Circuit has
not addressed the standard for establishing intentional discrimination, see
Strominger v. Brock, 592 Fed.App’x. 508, 511 (7th Cir. 2014); but, the majority of
circuits that have addressed this issue have adopted a deliberate indifference
standard. See Reed v. Illinois, 119 F.Supp.2d 879, 885 (N.D. Ill. 2015). Deliberate
indifference “requires both knowledge that a harm to a federally protected right is
substantially likely, and a failure to act upon that likelihood.” Duvall v. Cty. of
Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001) as amended on denial of reh’g (Oct. 11,
2001); see also Olson v. Morgan, 750 F.3d 708, 713 (7th Cir. 2014) (applying the
deliberate indifference standard to inmate’s Eighth Amendment claim).
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
It is sufficient to show that personnel from Cook County or the Cook County Sheriff’s
Office acted with deliberate indifference. See Flora, 2017 WL 2152392 at *6; Mapp v. Bd. of
Trustees of Cmty. Coll. Dist. No. 508, No. 15 C 3800, 2016 WL 4479560, at *4 (N.D. Ill. Aug.
25, 2016).
17

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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

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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.
IV.

Conclusion
Plaintiff’s motion for partial summary judgment, [78], is denied.

ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: September 29, 2017

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