Spence v. Dart et al

Filing 73

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 8/12/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants the defendants' cross-motion for summary judgment on Spence's claims based on his Division 4 housing but otherwise denies this motion [dkt. no. 56]. The Court denies Spence's motion for partial summary judgment on his claim regarding the Cermak ramp [dkt. no. 49] but finds against the defendants on their equivalent access defense. The case is set for a telephone status hearing on August 20, 2020 at 9:30 a.m. to discuss the possibility of settlement and set a trial date, using call-in number 888-684-8852, access code 746-1053. Counsel should wait for the case to be called before announcing themselves. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DEONATRA SPENCE,

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Plaintiff,
vs.
THOMAS DART and
COOK COUNTY, ILLINOIS,
Defendants.

Case No. 18 C 4258

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Deonatra Spence was in custody at the Cook County Jail from March 2018 to
November 2018. During that time, he alleges, he was physically impaired due to an
injury to his right leg. Spence has sued Cook County and its sheriff, Thomas Dart, in his
official capacity, alleging that they violated his rights under the Americans with
Disabilities Act (ADA) and the Rehabilitation Act (RHA). Spence has moved for
summary judgment on the issue of liability, and the defendants have filed a crossmotion for summary judgment.
Background
The following facts are undisputed, except as indicated. On March 15, 2018,
Spence was placed in custody at the Cook County Jail. He was released briefly and
placed on electronic monitoring in the summer of 2018. On September 5, 2018, he was
returned to the Jail and remained there until he was transferred to the Illinois
Department of Corrections on November 1, 2018.

Spence had fractured his right leg in the fall of 2017, prior to his custody at the
Jail. According to Spence, when he was taken into custody in March 2018, his broken
leg was causing him severe pain, and he could not walk—he could only hobble. The
defendants dispute this. They point to records of two medical examinations at the Jail in
March 2018, which indicate that Spence was able to bear weight on his right leg, did not
have any trouble walking without assistance, and was not limping.
Spence was initially housed in Division 4 of the Jail. He contends that the
shower and toilet facilities in Division 4 do not comply with ADA accessibility standards
and that he had difficulty using these while housed there. Spence filed a grievance
regarding his housing in Division 4. The grievance did not mention the toilet or shower
facilities in Division 4. Rather, Spence complained only about having to use stairs to
access his cell.
After a doctor at the Jail examined Spence on March 30, 2018, he was moved to
the Jail's Residential Treatment Unit, in which the housing is ADA-compliant. After the
doctor's medical examination, a "medical alert" for use of crutches was added to
Spence's file at the Jail, and he was given crutches. The medical alert for crutches
terminated on April 27, 2018, when a new alert for use of a cane was added to Spence's
file. This alert remained in effect until November 1, 2018, when he was transferred out
of the Jail.
While at the Jail, Spence alleges that received physical therapy and attended
doctor's appointments at Cermak, the Jail's health services division. Spence accessed
Cermak via a ramp. He contends that moving up and down the ramp caused him pain,
in part because it was so long and steep. In April 2018, Spence filed a grievance with

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the Jail, complaining that it was difficult for him to use the Cermak ramp with his
crutches and that using the ramp caused him pain. In response, Spence was notified
that if he needed assistance with the ramp, he should contact a staff member.
The Jail is run by Sheriff Dart and Cook County. In June 2018, Spence sued
Dart in his official capacity and the County, alleging that his housing in Division 4 and
the Cermak ramp violated his rights under Title II of the ADA, 42 U.S.C. § 12132, and
section 504 of the RHA, 29 U.S.C. § 794(a). Spence has moved for summary judgment
on his claims, and the defendants have filed a cross-motion for summary judgment.
Discussion
A.

Summary judgment standard
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 party may move for summary judgment on a claim or part
of a claim, allowing a court to then "narrow the individual factual issues for trial by
identifying the material disputes of fact that continue to exist." BBL, Inc. v. City of
Angola, 809 F.3d 317, 325 (7th Cir. 2015); Fed. R. Civ. P. 56(a). At the summary
judgment stage, a court must consider all facts in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party's favor. Johnson v.
Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). Summary
judgment is not appropriate if a reasonable jury could find for the nonmoving party. Id.
B.

Overview of ADA and RHA
Spence's claims under Title II of the ADA and section 504 of the RHA are based

on the same alleged conduct by the defendants: housing him in Division 4, which lacked

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accessible showers and toilets, and requiring him to use a long, steep ramp to access
Cermak. Title II of the ADA was modeled after section 504 of the RHA, and thus "the
elements of claims under the two provisions are nearly identical." Lacy v. Cook County,
897 F.3d 847, 852 n.1 (7th Cir. 2018) (quoting Washington v. Ind. High Sch. Athletic
Ass’n, 181 F.3d 840, 845 n.6 (7th Cir. 1999)). To prevail on a claim under these
statutes, a plaintiff must show (1) he was a "qualified individual with a disability"; (2) he
was denied "the benefits of the services, programs, or activities of a public entity"; and
(3) this denial was "by reason of" the plaintiff's disability. Id. at 853.
C.

Cermak ramp claims
Spence claims that the defendants violated the ADA and RHA because the ramp

that he had to use to access Cermak did not comply with ADA structural accessibility
standards. He alleges that, due to his leg injury, it was painful and difficult to use the
ramp.
1.

Qualified individual with a disability

A person may be a "qualified individual with a disability" if he has a physical
impairment that "substantially limits one or more major life activities" or he is regarded
as having such an impairment. Richardson v. Chi. Transit Auth., 926 F.3d 881, 886 (7th
Cir. 2019); 42 U.S.C. § 12102(1). "Whether the plaintiff has an impairment is to be
determined by the fact finder on a case-by-case basis." Geraci v. Union Square Condo.
Ass'n, 891 F.3d 274, 277 (7th Cir. 2018); Dadian v. Village of Wilmette, 269 F.3d 831,
837 (7th Cir. 2001).
There is a genuine dispute over whether Spence was a qualified individual with a
disability while at the Jail. Spence testified during his deposition that he had difficulty

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walking and could not get around without crutches. The defendants point to records
from two examinations of Spence in which Jail medical staff noted that Spence was not
limping, did not have any difficulty walking, and could bear weight on his right leg.
Because the evidence is conflicting on the issue of Spence's impairment, this is an
issue that must be decided by a factfinder at trial. See Geraci, 891 F.3d at 277.
2.

Denial of access to Cermak

Public entities, including correctional facilities, must take "take reasonable
measures to remove architectural and other barriers to accessibility." See Tennessee v.
Lane, 541 U.S. 509, 531 (2004) (citing 42 U.S.C. § 12131(2)). Failure to do so is
discrimination that violates Title II of the ADA, and "[p]erhaps the most obvious example
of such discrimination is when structural barriers prevent people with disabilities from
accessing otherwise available public services." Lacy, 897 F.3d at 853. Title II therefore
requires that buildings constructed after 1992 and before 2010, like Cermak, comply
with ADA structural accessibility standards ("ADA standards") promulgated by the U.S.
Department of Justice. See Lane, 541 U.S. at 532; Lacy, 897 F.3d at 853; 28 C.F.R. §
35.151(c)(1). "Departures" from the standards are permitted "by the use of other
methods . . . when it is clearly evident that equivalent access to the facility . . . is thereby
provided." 28 C.F.R. § 35.151(c)(1). As indicated by the language of this regulation, a
public entity that does not comply with the ADA standards has the burden of
demonstrating that an alternative method provides equivalent access. See Jeffreys v.
City of Greensboro, 430 F. Supp. 3d 54, 62 (M.D.N.C. 2019); Cherry v. City Coll. of
S.F., No. C 04-04981, 2006 WL 6602454, at *5 (N.D. Cal. Jan. 12, 2006).

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a.

Noncompliance with the ADA standards

The defendants argue that Spence has failed to present evidence that would
permit a reasonable jury to find that the Cermak ramp did not comply with the ADA
standards. Spence points to the following evidence of noncompliance: a schematic
drawing of the Cermak ramp, which includes a notation that the ramp is "47' long
without a landing," Pl.'s L.R. 56.1 Stmt., Ex. 7, and deposition testimony from Eric
Davis, the Deputy Director of the Cook County Department of Capital Planning and
Policy. Davis is the Department's expert on ADA compliance, and he testified that,
under the ADA standards, a ramp cannot have a run longer than thirty feet without an
intermediate landing.
Preliminarily, the defendants contend that the ramp schematic is inadmissible
under Federal Rule of Evidence 803(6) as a business record. Although the diagram
itself is not hearsay, it contains notations that are offered for their truth, including the
statement, "Existing ramp is 47' long without a landing." Pl.'s L.R. 56.1 Stmt., Ex. 7.
For this reason, the document contains inadmissible hearsay unless an exception
applies. Admission under Rule 803(6) requires authentication by a "custodian or other
qualified witness." Fed. R. Evid. 803(6)(D). To satisfy this requirement at the summary
judgment stage, Spence "only need establish that the document has 'sufficient indicia of
trustworthiness to be considered reliable.'" See Thanongsinh v. Bd. of Educ., 462 F.3d
762, 777 (7th Cir. 2006) (quoting Woods v. City of Chicago, 234 F.3d 979, 988 (7th
Cir.2000)). This is typically done by attaching an affidavit from a person who would be
qualified to introduce the record into evidence at trial. Id. Spence has not submitted
such an affidavit but contends that the ramp schematic has been adequately

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authenticated for the purposes of this motion because the defendants produced it to his
counsel pursuant to a court order in another case. The defendants argue that the
production of the document does not authenticate it sufficiently to permit its admission in
evidence.
The authentication requirement concerns whether a document originated from its
purported source. United States v. Brown, 688 F.2d 1112, 1116 (7th Cir. 1982). In
Brown, the court held that business records offered by the government had been
authenticated and were admissible where defendant's counsel had produced them for a
grand jury proceeding and had represented that the source of the documents was the
corporation of which his client was an officer. Id. The court reasoned that under these
circumstances, the defendant had implicitly authenticated the business records. Id.
The circumstances under which Spence's attorney obtained the Cermak ramp
schematic are analogous to those in Brown. The County's attorney had produced the
schematic to Spence's counsel pursuant to an order by a judge of this court ordering
"Defendants" in the case of Lacy v. Dart to "produce . . . the construction
design/drawings for the ramp connecting Cermak Health Center with the Leighton
Courthouse and/or Cook County Jail." Lacy v. Dart, 14 C 6259, Order of July 11, 2019
(dkt no. 517). In August 2019, the County's attorney complied with the judge's order—
effectively acting on behalf of both the County and the Sheriff, the defendants in Lacy—
by e-mailing the ramp schematic to Spence's counsel with a message stating "Attached
is the only Cermak Ramp information . . . ." Pl.'s Stmt. of Add'l Material Facts, Ex. 3, at
1. By producing the diagram pursuant to a court order requiring production of
"construction designs/drawings for the ramp," the County's attorney—acting as an agent

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for the Sheriff and County—admitted that the schematic was exactly that: construction
designs for the ramp. See Brown, 688 F.2d at 1116.
The defendants argue that their act of producing the schematic does not
constitute authentication. In support of this argument, they cite Castro v. DeVry
University, Inc., 786 F.3d 559 (7th Cir. 2015), in which the Seventh Circuit held that
"[t]he mere act of producing a document in response to a discovery request . . . does
not amount to an admission of the document's authenticity." Id. at 578. But "the mere
act of producing a document in response to a discovery request" is not what happened
in this case. Instead, the County's attorney, acting as its agent in responding to a court
order—not a discovery request—sent the schematic to Spence's counsel and
represented that it was "the only Cermak Ramp information." Pl.'s Stmt. of Add'l
Material Facts, Ex. 3, at 1. The court in Castro explained that there is an exception to
the usual requirement of an affidavit authenticating business records where "the party
challenging the document's admissibility . . . conceded the accuracy of the documents."
Id. at 578 (quoting Thanongsinh, 462 F.3d at 778). That is exactly what happened here.
Because the defendants, through their counsel, have already admitted that the
schematic is what Spence contends it is, no further authentication is necessary at this
stage. The schematic is admissible as a diagram of the Cermak ramp at the relevant
time.
The fact that the schematic diagram is admissible, however, does not mean that
it carries the day as a matter of law. The somewhat unorthodox foundation for the
document, though sufficient to allow its admission, arguably affects its weight. And
Spence points to no testimony directly establishing the actual ramp's noncompliance

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with ADA standards. Davis, the County's interim subject matter expert on ADA
compliance, testified that he "believe[d]" the standard in place at the relevant time
precluded a ramp of more than thirty feet without an interim landing—and the schematic
drawing shows a ramp a good deal longer than that without a landing. See Pl.'s L.R.
56.1 Stmt., Ex. 9, at 53:8–54:1. But Davis had never seen the drawing before his
deposition and had no clue about its provenance. And as of the date of his deposition,
he had never measured the actual ramp. Spence does not point to any testimony by
Davis sufficient to establish the ramp's noncompliance as a matter of law. The matter
must be decided by a factfinder.
b.

Equivalent access

The defendants argue that even if the Cermak ramp does not comply with the
ADA standards, the question of whether they provided equivalent access is genuinely
disputed, thus precluding entry of summary judgment in Spence's favor. As indicated in
the previous section, Spence's claims must proceed to trial in any event. The Court
nonetheless addresses the equivalent access issue to assist the parties in preparing for
trial.
The defendants contend that the evidence shows that there was equivalent
access to Cermak because wheelchairs were located throughout the Jail complex and
were available upon the request of an inmate. The entirety of the evidence cited by the
defendants on this point is a brief excerpt from the deposition of Sabrina RiveroCanchola, the ADA compliance coordinator for the Sheriff's Office. Rivero-Canchola
stated (the previous question and answer are provided for context):
Q:
Does somebody have to walk up or down an incline at the end of the
tunnel to reach Cermak?
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A:

I don't know if there's an incline at the end of the tunnel. I don't know.

Q:

Is there a wheelchair available at that area upon request from an inmate?

A:
There's always a wheelchair available at any area at the request of an
inmate. We could always bring one.
Q:

Where is the wheelchair located?

A:

There are wheelchairs located throughout the compound.

Q:

I'm talking about at the lower level of Cermak where the incline is.

A:
Your question assumes a lot of facts, so I am not aware that there's any
incline at the lower level of Cermak or anything that you're stating in this fishing
expedition, so I don't know.
Q:
Is there a sign located at the incline leading to Cermak that a wheelchair is
available upon request?
A:

I don't know what incline you're talking about, so I don't know.

Defs.' Stmt. of Add'l Material Facts, Ex. G at 75:5-76:4.
Rivero-Canchola's somewhat petulant and non-responsive answers toward the
end of this passage are not helpful to the defendants' cause. For this reason, all one
can reasonably draw from her testimony is that there are wheelchairs available
"throughout the compound," i.e. throughout the Jail complex—nothing about their
proximity to the structure at issue in this case, nothing about how readily available they
are, and nothing about how long it takes to get one for a detained person who says he
needs one.
Spence, in reply, cites testimony from Lieutenant Johnice Brumfield-Greer, who
works at Cermak. Brumfield-Greer testified as follows:
Q:
Have you ever been told by anybody at the Sheriff's Office that
wheelchairs are available upon request for inmates to use –

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A:

No.

Q:

– to move up and down ramps?

A:

No.

Q:
Is there a wheelchair near the Cermak incline for an inmate with a cane to
use upon request?
A:

No. The wheelchairs are in the urgent care area.

Q:

I'm just talking about the ramp.

A:

No.

Q:
So you're not aware of any wheelchair available on request for an inmate
to move up and down the ramp?
A:

No.

Pl.'s Stmt. of Add'l Material Facts, Ex. 1 at 42:17-43:9.
The defendants object that Brumfield-Greer's testimony is from a different case
and that Spence did not disclose her as a witness in the present case. The Court is
inclined to agree; there does not seem to be any justification for her non-disclosure
here.
But even if one disregards Brumfield-Greer's testimony, that does not help
defendants. As indicated earlier, the issue of equivalent access is a point on which the
defendants bear the burden of persuasion. Even if one assumes that wheelchair
availability may amount to equivalent access, the defendants have offered nothing to
that would support a finding that wheelchairs are reasonably available for a detained
person who needs one to get up the ramp. The proposition that there are wheelchairs
"throughout the compound"—i.e., at various places in the very large Jail complex—
simply does not cut it.

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Deviations from the ADA standards are permitted only if it is "clearly evident" that
a public entity's alternative method provides "equivalent access to the facility." 28
C.F.R. § 35.151(c)(1). For all anyone can tell from Rivero-Canchola's testimony, a
detained person needing a wheelchair to use the ramp could be forced to wait
indefinitely, which could not under any stretch of the imagination be considered
equivalent access. Equivalent access "entail[s] more than simple physical access"—it
requires that the alternative method offers an individual with a disability "the same
degree of independence that a structural accommodation would provide." Flora v. Dart,
No. 15 C 1127, 2017 WL 2152392, at *5-6 (N.D. Ill. May 17, 2017), vacated by
agreement of the parties (Oct. 19, 2017); see also Clemons v. Dart, 168 F. Supp. 3d
1060, 1066 (N.D. Ill. 2016) ( "[T]he availability of staff assistance upon request does not
constitute equivalent access under the applicable regulations."). The defendants had
ample opportunity to provide more evidence regarding the availability of wheelchairs for
use on the ramp, but they have offered only Rivero-Canchola's back-of-the-hand
response. No reasonable jury could find her testimony, which stands alone, sufficient to
carry the defendants' burden of proof on the equivalent access defense.
For these reasons, the Court strikes the defense of equivalent access; it is not a
genuinely disputed issue for trial.
3.

"By reason of" disability

To establish discrimination "by reason of" his disability, a plaintiff must show that
"but for his disability, he would have been able to access the services or benefits
desired." A.H. by Holzmueller v. Ill. High Sch. Ass'n, 881 F.3d 587, 593 (7th Cir. 2018)
(quoting Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 754 (7th Cir.

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2006)). This element is genuinely disputed and will remain an issue for trial. Spence's
medical records from the Jail contain notations reflecting that despite his right leg
fracture, he was able to walk without difficulty, and he testified that he was able to get
up and down Cermak ramp. Spence also testified, however, that it was difficult and
painful for him to use the Cermak ramp with his crutches. He complained in his April
2018 grievance that it was challenging for him to use the Cermak ramp. This conflicting
evidence raises a triable issue regarding whether Spence's alleged disability was the
"but for" cause of his denial of access to services at Cermak.
4.

Deliberate indifference

To establish liability under ADA at trial, Spence has to show that the defendants
acted with deliberate indifference, which has two elements: "knowledge that a harm to a
federally protected right is substantially likely" and failure to act upon that likelihood.
See Lacy, 897 F.3d at 863.
This issue is likewise genuinely disputed and will have to be determined at trial.
Spence points to the medical alerts reflecting that he needed crutches or a cane to walk
and his grievance in which he complained that it was painful for him to use the Cermak
ramp. The defendants point to medical records that contain notations to the effect that
Spence was able to walk without difficulty and Spence's testimony that he was able to
use the Cermak ramp. This conflicting evidence leaves a triable issue regarding
whether the defendants failed to act despite knowledge that it was "substantially likely"
that the long run of the ramp violated Spence's ADA rights by denial of access to
Cermak.

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D.

Division 4 claim
Spence also claims that the defendants violated the ADA and RHA by housing

him for a time in Division 4, which lacks ADA-compliant shower and toilet facilities. The
defendants argue that they are entitled to summary judgment on this claim because
Spence failed to exhaust administrative remedies before filing suit.
Under the Prison Litigation Reform Act (PLRA), "[a] prisoner cannot bring a
cause of action under federal law regarding prison conditions 'until such administrative
remedies as are available are exhausted.'" Hernandez v. Dart, 814 F.3d 836, 841 (7th
Cir. 2016) (quoting 42 U.S.C. § 1997e(a)). This exhaustion requirement applies to RHA
and ADA claims based on a correctional facility's denial of access to services or
programs by reason of disability. See Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir.
2015). Spence's Division 4 claim is based on the lack of ADA-compliant shower and
toilet facilities there, and it is therefore a challenge to conditions of confinement subject
to the PLRA's exhaustion requirement. Spence argues that he exhausted this claim by
filing (and subsequently appealing) a grievance complaining about his Division 4
housing. But this grievance does not satisfy the exhaustion requirement, because it
makes no mention of the Division 4 shower or toilet facilities. Instead, Spence only
complained about having to use stairs to access his Division 4 cell.
For these reasons, defendants are entitled to summary judgment on Spence's
Division 4 claims.
Conclusion
For the foregoing reasons, the Court grants the defendants' cross-motion for
summary judgment on Spence's claims based on his Division 4 housing but otherwise

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denies this motion [dkt. no. 56]. The Court denies Spence's motion for partial summary
judgment on his claim regarding the Cermak ramp [dkt. no. 49] but finds against the
defendants on their equivalent access defense. The case is set for a telephone status
hearing on August 20, 2020 at 9:30 a.m. to discuss the possibility of settlement and set
a trial date, using call-in number 888-684-8852, access code 746-1053. Counsel
should wait for the case to be called before announcing themselves.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: August 10, 2020

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