Dunmore v. Duncan et al
Filing
114
ORDER DENYING in part and MOOTING in part 112 Motion for Reconsideration. This matter will be set by separate order for a status conference to discuss scheduling the Final Pretrial Conference and jury trial. Signed by Magistrate Judge Mark A. Beatty on 5/19/20. (klh2)
Case 3:16-cv-00171-MAB Document 114 Filed 05/19/20 Page 1 of 9 Page ID #1694
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES E. DUNMORE,
Plaintiff,
vs.
LOUIS SHICKER, PHIL MARTIN,
ILLINOIS DEPARTMENT OF
CORRECTIONS, and JOHN B. COE,
Defendants.
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Case No. 3: 16-CV-171-MAB
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
Currently pending before the Court is the motion to reconsider filed by Defendant
Illinois Department of Corrections (“IDOC”) (Doc. 112). The IDOC asks the Court to
reconsider its previous decision denying summary judgment on Plaintiff’s claim under
the Americans with Disabilities Act and the Rehabilitation Act (Count 2) (Doc. 112; see
also Doc. 111). The IDOC also asks the Court to reconsider its previous decision granting
Plaintiff leave to formally amend his ADA/Rehab Act claim to include allegations
regarding the terrain at Lawrence and the bathroom in Plaintiff’s cell (Doc. 112; see also
Doc. 111). The latter request is moot because Plaintiff opted not to amend his complaint
(Doc. 113). The former request is denied because the law is clear and the Court remains
convinced that its analysis thoroughly outlined in its previous Order is correct.
The Court has inherent power to reconsider interlocutory orders at any time prior
to the entry of final judgment. E.g., Marconi Wireless T. Co. of Am. v. United States, 320 U.S.
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1, 47–48 (1943); Terry v. Spencer, 888 F.3d 890, 893 (7th Cir. 2018); FED. R. CIV. P. 54(b). That
being said, the Court’s prior rulings “are not intended as mere first drafts, subject to
revision and reconsideration at a litigant’s pleasure.” Berger v. Xerox Ret. Income Guar.
Plan, 231 F. Supp. 2d 804, 820 (S.D. Ill. 2002) (citing Rhone–Poulenc, Inc. v. Int’l Ins. Co., 877
F.Supp. 1170, 1173–74 (N.D. Ill. 1995)). Reconsideration of an interlocutory order is only
appropriate when a court has misunderstood a party, made a decision outside the
adversarial issues presented to the court by the parties, made an error not of reasoning
but of apprehension, or where a significant change in the law or the facts has occurred
since the submission of the issue to the court. Bank of Waunakee v. Rochester Cheese Sales,
Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). See also Entm't USA, Inc. v. Moorehead Commc'ns,
Inc., 897 F.3d 786, 795 (7th Cir. 2018) (“[M]otions to reconsider exist to spare parties and
courts unnecessary appeals.”) “Such problems rarely arise and the motion to reconsider
should be equally rare.” Bank of Waunakee, 906 F.2d at 1191.
To recap, the purpose of the ADA is to ensure equal treatment, equal opportunity,
and equal access so that individuals with disabilities are fully integrated and able to
participate in all aspects of society and to live independently (Doc. 111, pp. 30–35). The IDOC
is obligated under the ADA to provide “reasonable accommodations” to ensure that
disabled individuals can access the benefits of the programs, services, and activities that
it offers (Doc. 111, pp. 30–35). When it comes to facility access, because Lawrence
Correctional Center was built after the ADA took effect in January 1992, the reasonable
accommodation requirement is satisfied by strict compliance with specific architectural
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accessibility standards (Id.). Tennessee v. Lane, 541 U.S. 509, 532 (2004); 28 C.F.R. §
35.151(a)(1). Those standards require that if an exterior toilet is provided, it must comply
with certain specifications in order to make the toilet fully accessible (Doc. 111, p. 33).1
Deviating from the specific standards may be permissible only “when it is clearly evident
that equivalent access to the facility . . . is provided” (Doc. 111, pp. 30–35). 28 C.F.R. §
35.151(c)(1). Equivalent access means equal or greater access for the disabled individual
than the prescribed accessibility standards would provide. Clemons v. Dart, 168 F. Supp.
3d 1060, 1069 (N.D. Ill. 2016) (citing 28 C.F.R. § 35.151(c)(1)); Flora v. Dart, No. 15 C 1127,
2017 WL 2152392, at *5 (N.D. Ill. May 17, 2017) (citing Caruso v. Blockbuster-Sony Music
Entm't Ctr. at Waterfront, 193 F.3d 730, 739 (3d Cir. 1999)).
Plaintiff is wheelchair bound (Doc. 111, p. 4). There is a portable toilet on the yard
at Lawrence Correctional Center, but it is not wheelchair accessible (Doc. 111, pp. 11–14;
Doc. 112, p. 5). It is undisputed that by providing a toilet on the yard to only non-disabled
inmates, the IDOC failed to comply with the ADA’s accessibility standards (Doc. 111, pp.
29–36). The IDOC nevertheless asserted that it did not violate the ADA because Plaintiff
was provided with “sufficient accommodations,” in particular Plaintiff could ask a guard
to take him back into the cell house to use the indoor toilet (Doc. 85, pp. 14–15; see also
Doc. 111, pp. 11–14; Doc. 112, p. 5).2 Plaintiff presented undisputed testimony, however,
These specifications include, for example, the height of the toilet, the location and height of grab bars,
toilet paper dispensers, flush controls, mirrors, operation of the door, and the amount of clear floor space
required (Doc. 111, p. 33).
1
The IDOC also claims that the inmate could have their ADA attendant take them back into the cell house
to use the restroom (Doc. 112, p. 5). The IDOC does not, however, cite to any evidence in the record to
2
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that there were instances where he was not able to get a guard’s attention or they refused
to escort him inside (Doc. 111, pp. 11–14, 34–36). Plaintiff also presented undisputed
testimony that there were instances where guards would not allow him to go back out to
the yard after he was finished using the restroom (Id.). Furthermore, if a non-disabled
inmate had to use the restroom while out on the yard, they simply went to the portable
toilet and then resumed their activities on the yard, without ever having to notify a guard
or request assistance (Id.). The Court concluded that based on the evidence submitted by
the parties, a question of fact existed as to whether Lawrence provided disabled inmates
with equivalent access to the restroom while out on the yard (Id.). In reaching this
conclusion, the Court cited to three district court cases that all held equivalent access did
not exist where disabled individuals had to request and rely on assistance from another
person to use the restroom but non-disabled people did not (Id.).3
support that assertion (see id.). The Court notes that the IDOC made the same assertion in their motion for
summary judgment (Doc. 85, p. 14), and cited to Plaintiff’s deposition in support (Id. at p. 7, citing Doc. 851, p. 123). However, in his deposition, Plaintiff simply affirmed that he could “use” his ADA attendant “for
going to chow, going to yard, helping type your legal papers, all kinds of things . . . .” (Doc. 85-1, p. 123).
Plaintiff did not indicate that he was free to have his ADA attendant wheel him back and forth between the
cell house and the yard whenever he had to use the restroom (see Doc. 85-1). The IDOC has not pointed to,
and the Court is unaware of any evidence to that effect, most notably evidence from a prison official that
such a practice was authorized (see Doc. 85, Doc. 112). Furthermore, Plaintiff testified that there were
stretches of time when he did not have an attendant, including the times when he wet himself on the yard
(Doc. 85-1, p. 133).
See Clemons v. Dart, 168 F. Supp. 3d 1060, 1066 (N.D. Ill. 2016) (denying summary judgment where inmate
was housed in non-ADA-compliant cell but had access to around-the-clock nursing care because “requiring
[inmate] to rely on nursing assistance, rather than providing the means for [inmate] to address his own
basic needs” does not constitute equivalent access); Roberts v. Dart, No. 16 C 5560, 2018 WL 1184735, at *4
(N.D. Ill. Mar. 7, 2018) (denying summary judgment where inmate was housed in non-ADA-compliant cell
but could ask officers to let him out of his cell to use the toilet in the dayroom because “requiring him to
first obtain the permission of the correctional officers” to use the bathroom “rendered him completely
dependent on others” and “no reasonable fact finder could determine this constituted equivalent access.”);
Tyler v. City of Manhattan, 857 F. Supp. 800, 819 (D. Kan. 1994) (finding arrangement where disabled
3
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In its motion to reconsider, the IDOC rehashes its argument that, although there
was no accessible portable toilet on the yard, a reasonable accommodation was
nevertheless provided to Plaintiff because Lawrence had a policy requiring guards to
escort disabled inmates from the yard to their cell house when they had to use the
bathroom and then take them back out to the yard when they were finished (Doc. 112, p.
6). The IDOC once again observes that Plaintiff only wet/soiled himself three times in a
two-year period and that Plaintiff only complained about one or two correctional officers
(whom Plaintiff cannot even identify) not following the policy (Id.). The only new aspect
of the IDOC’s argument is its attempt to distinguish one of the three cases cited to by the
Court (Doc. 112, p. 6; see also Doc. 85). In particular, the IDOC claims that Roberts v. Dart,
No. 16 C 5560, 2018 WL 1184735 (N.D. Ill. Mar. 7, 2018) is different than the case at hand
(Doc. 112, p. 6). The IDOC’s entire argument is as follows:
[The p]laintiff in Roberts was confined to a cell without an ADA accessible
toilet. [Roberts] had to flag down a guard to go to the day room every time
individual was required to request a key to use the only accessible bathroom did not comport with Title
II).
The Court has since found two other cases that reached the same conclusion. Bowers v. Dart, No. 16 CV
2483, 2017 WL 4339799, at *6 (N.D. Ill. Sept. 29, 2017) (denying summary judgment where disabled inmate
was housed in non-ADA-compliant cell but given a portable toilet chair, a nurse to assist with using the
chair, and access to a communal ADA-compliant toilet upon request because accommodations did not
allow him “to use the jail’s facility independently or similarly to how a non-disabled person would use
similar facilities.”); Flora v. Dart, No. 15 C 1127, 2017 WL 2152392, at *6 (N.D. Ill. May 17, 2017) (denying
summary judgment where disabled inmate was housed in non-ADA-compliant cell but had 24-hour access
to nurses and was allowed to leave his cell to use ADA-compliant toilet in dayroom because the
accommodations “required him to get assistance from a nurse or an officer in order to use the bathroom . .
. and thus rendered him completely dependent on others to perform [this] necessary activit[y].”) The
summary judgment order in Flora was later vacated, not because the decision was problematic or incorrect,
but because the IDOC insisted on the order being vacated as one of the terms of its settlement with the
plaintiff. See Flora v. Dart, No. 15 C 1127, 2018 WL 2765919, at *1 (N.D. Ill. June 9, 2018).
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he needed to use the restroom. There was testimony [that the defendants]
frequently failed to allow Roberts to leave his cell to use the day room
facilities. Furthermore, Roberts was completely dependent on others daily
to use the dayroom facilities. In the case at hand, Plaintiff admitted he was
able to be brought back into the cell house to the use the facilities and he
also admitted he only soiled himself three times in a two[-]year period. The
case at hand did not involve a daily issue as the Roberts case did.
(Id.).
The IDOC’s argument, stated differently, is that the accommodation in Roberts did
not pass muster because the plaintiff needed assistance from guards to get to the
bathroom multiple times a day, and such assistance was frequently not provided. In
contrast, the IDOC believes the accommodation at issue here was acceptable because
Plaintiff only needed assistance to get to the bathroom a handful of times per week, and
such assistance was almost always provided.
The Court is unpersuaded by the IDOC’s argument and its attempt to distinguish
Roberts. The Court has always understood and appreciated the factual distinctions
between the instant case and Roberts but determined that those distinctions were not
outcome-determinative at the summary judgment stage. It is important to note the
IDOC’s argument rests on an assumption that equivalent access to the bathroom can be
achieved by implementing a policy that requires guards to render assistance to disabled
inmates and escort them to an ADA-compliant bathroom. In other words, according to
the IDOC, the policy itself is fine and problems only arise in the application of the policy.
But the court in Roberts explicitly held otherwise. See Roberts, 2018 WL 1184735, at *4.
There was a problem with the application of the policy because the guards disobeyed it,
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but there was also a problem with the policy itself—“even if Defendants had consistently
provided [the plaintiff] with access to the dayroom-toilet, requiring him to first obtain the
permission of the correctional officers to do so rendered him completely dependent on
others to be able to use a toilet. . . . [N]o reasonable fact finder could determine this
constituted equivalent access . . . [and] there is no genuine dispute of material fact that
Defendants denied access to a toilet to Roberts on a basis equal to non-disabled persons.”
Id. Stated differently, a policy requiring disabled inmates, but not non-disabled inmates,
to rely on staff assistance to access the toilet is fundamentally inconsistent with the ADA
and does not provide equivalent access to the bathroom regardless of whether the policy
was consistently adhered to. See supra pp. 4–5, n.2. The IDOC ignored this crucial aspect
of the Roberts decision (see Doc. 122).
As other courts have explained, the ADA accessibility standards ensure that
disabled inmates have access to a toilet they are able to use independently in the same
manner as non-disabled inmates. Flora, 2017 WL 2152392, at *6. Therefore, deviations
from the ADA’s structural requirements would only be permitted if the alternative still
allowed disabled inmates to use the toilet independently. Id.; see also Clemons, 168 F. Supp.
3d at 1069; Bowers, 2017 WL 4339799, at *6. But a policy that requires disabled inmates to
rely on staff assistance to get to the toilet strips disabled inmates of their ability to
independently use the toilet and renders them completely dependent on others to do so.
A reasonable jury could therefore find that such a policy does not provide disabled
inmates with equivalent access to the bathroom, and summary judgment for the IDOC is
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not appropriate. Clemons, 168 F. Supp. 3d at 1069; Flora, 2017 WL 2152392, at *5; Bowers,
2017 WL 4339799, at *6.
Alternatively, even if the Court assumed, like the IDOC does, that such a policy
could in theory provide disabled inmates with equivalent access to the toilet, the Court
would still have to consider whether the policy in practice actually did so. In other words,
did the guards sufficiently adhere to the policy so that disabled inmates were able to use
the toilet as needed? A number of factual issues would bear on this question, including
the frequency with which Plaintiff had to rely on assistance from guards to use the
bathroom, the availability of the guards’ assistance, and the number of occasions when
Plaintiff was entirely excluded from using the bathroom. Here, it is undisputed that there
were at least three instances over the course of two years where Plaintiff was unable to
get a guard’s attention or the guards refused to escort him inside, and Plaintiff wet
himself as a result. Based on the simple fact there were instances when Plaintiff was
completely excluded from using the toilet while out on the yard, a reasonable jury could
certainly find that the policy as implemented and practiced at Lawrence did not provide
disabled inmates with equivalent access to the toilet. Summary judgment for the IDOC is
therefore not appropriate.
For these reasons, the IDOC’s motion to reconsider (Doc. 112) is DENIED in part
and MOOT in part. It is denied as to the request to reconsider the denial of summary
judgment on Count 2. It is moot as to the request to reconsider granting Plaintiff leave to
amend Count 2. This matter will be set by separate order for a status conference to discuss
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scheduling the Final Pretrial Conference and jury trial.
IT IS SO ORDERED.
DATED: May 19, 2020
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge
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