Fenderson v. Illinois Department of Corrections et al

Filing 23

IT IS HEREBY ORDERED that Count 2 is broadened to include claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701, et seq. IT IS FURTHER ORDERED that COUNT 2 is DISMISSED against Defendants Hodge, Coe, and Martin. The CLERK is directed to REINSTATE Defendant ILLINOIS DEPARTMENT OF CORRECTIONS as a defendant, for purposes of Count 2 only. In light of the fact that IDOC has not yet been served, IT IS ORDERED that the C lerk of Court shall prepare for defendant ILLINOIS DEPARTMENT OF CORRECTIONS (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 3/21/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AL-TAKKEY J. FENDERSON, # R32200, )
)
Plaintiff,
)
)
vs.
)
)
ILLINOIS DEPARTMENT OF
)
CORRECTIONS, et al.,
)
)
Defendants.
)

Case No. 13-cv-01296-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter comes before the Court for sua sponte reconsideration of “Count 2” in the
referral order (Doc. 6, p. 4). For the reasons set forth below, Count 2 shall be broadened to
include a claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
and the Rehabilitation Act, 29 U.S.C. § 701, et seq. Plaintiff shall be allowed to proceed with
Count 2 against Defendant Illinois Department of Corrections (“IDOC”), and this claim shall be
dismissed against Defendants Hodge, Coe, and Martin.
Discussion
In the complaint, Plaintiff alleges that he was placed on the “disabled list” at Lawrence
Correctional Center, after he broke his lower right leg and corrective surgery failed (Doc. 1,
pp. 6-7). Plaintiff’s right leg does not support his body weight, so he has difficulty moving
around his cell (Doc. 1, p. 7). Plaintiff allegedly requires a cell with handrails. His requests for a
different cell have been denied.
Upon preliminary review of the complaint under 28 U.S.C. § 1915A, the Court found that
the complaint states a viable ADA claim (Count 2), and this Order does not disturb that finding.

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However, the complaint did not mention the Rehabilitation Act. Upon further review, the Court
now expands Count 2 to include a Rehabilitation Act claim.
Courts “are supposed to analyze a litigant’s claims and not just legal theories that he
propounds,” particularly when a litigant is proceeding pro se. See Norfleet v. Walker, 684 F.3d
688, 690 (7th Cir. 2012) (citations omitted). To state a claim under the Rehabilitation Act, the
complaint must only allege that: (1) Plaintiff is a qualified person; (2) with a disability; and
(3) the IDOC denied him access to a program or activity because of his disability.
Jaros v. Illinois Department of Corrections, 684 F.3d 667, 672 (7th Cir. 2012) (citing 29 U.S.C.
§ 705(2)(B)). The Supreme Court “has located a duty to accommodate in the statute generally,”
and refusing to make reasonable accommodations is tantamount to denying access.

Id.

(citing Wis. Cmty. Serv., 465 F.3d 737, 747 (7th Cir. 2006); Alexander v. Choate, 469 U.S. 287,
300-01 (1985)).
In order to satisfy the pleading standards for this claim, Plaintiff is required to plead facts
that “plausibly (even if improbably) support each element of his claim.” Jaros, 684 F.3d at 672
(citing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Arnett v. Webster, 658 F.3d 742, 751-52 (7th Cir.
2011)).

The complaint satisfies this standard.

In fact, the analysis under the ADA and

Rehabilitation Act is the same in this particular suit, except that the Rehabilitation Act includes
as an additional element the receipt of federal funds, which all states accept for their prisons. See
Jaros, 684 F.3d at 671. Accordingly, Plaintiff shall be allowed to proceed with the ADA claim,
as well as a Rehabilitation Act claim, under Count 2.1

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As a practical matter, dismissal of one of these claims would have no effect on the scope of Plaintiff’s
remedy. Jaros, 684 F.3d at 671-72. The relief available to Plaintiff under the ADA and the
Rehabilitation Act is coextensive. See 29 U.S.C. § 794A; see also 42 U.S.C. §12117 (both incorporating
42 U.S.C. § 2000e-5 for a private right of action). Plaintiffs may have only one recovery. Jaros,
684 F.3d at 671. Given the early stage in litigation, however, the Court will allow Plaintiff to proceed on
both claims under Count 2.

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Turning to the issue of who to sue, the Court notes that Count 2 cannot proceed against
the individual defendants named in connection with this claim, including Defendants Hodge,
Coe, and Martin.
Rehabilitation Act.

Individual employees of the IDOC cannot be sued under the ADA or
Jaros, 684 F.3d at 670.

The proper defendant is the relevant state

department or agency. See 42 U.S.C. § 12131(1)(b); Jaros, 684 F.3d at 670 n. 2 (individual
capacity claims are not available; the proper defendant is the agency or its director (in his official
capacity)). Plaintiff named the IDOC as a defendant, and he shall be allowed to proceed with
Count 2 against the IDOC. Therefore, the IDOC shall be reinstated as a defendant for purposes
of Count 2, and this claim shall be dismissed against Defendants Hodge, Coe, and Martin.
Disposition
IT IS HEREBY ORDERED that Count 2 is broadened to include claims under the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act,
29 U.S.C. § 701, et seq.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED against Defendants
Hodge, Coe, and Martin. The CLERK is directed to REINSTATE Defendant ILLINOIS
DEPARTMENT OF CORRECTIONS as a defendant, for purposes of Count 2 only.
In light of the fact that IDOC has not yet been served, IT IS ORDERED that the Clerk
of Court shall prepare for defendant ILLINOIS DEPARTMENT OF CORRECTIONS
(1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6
(Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
complaint (Doc. 1), the referral order (Doc. 6), and this Memorandum and Order to the Director
of IDOC, S.A. Godinez, 1301 Concordia Court, P.O. Box. 19277, Springfield, IL 62794. If the
defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk

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within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect
formal service on the defendant, and the Court will require the defendant to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the plaintiff shall serve upon the defendant (or upon
defense counsel once an appearance is entered), a copy of every pleading or other document
submitted for consideration by the Court. Plaintiff shall include with the original paper to be
filed a certificate stating the date on which a true and correct copy of the document was served
on the defendants or counsel. If the plaintiff is incarcerated in a correctional facility that
participates in the Electronic Filing Program, service may be made in accordance with General
Order 2012-1 describing service under that program. Any paper received by a district judge or
magistrate judge that has not been filed with the Clerk or that fails to include a certificate of
service will be disregarded by the Court.
The defendant is ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: March 21, 2014
s/ J. Phil Gilbert
United States District Judge
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