Clemons v. DartClemons v. Dart
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas Clemons, a double amputee confined to a wheelchair, filed this suit alleging that defendants Cook County and the Cook County Sheriff, Thomas Dart,
BACKGROUND
Thomas Clemons was incarcerated at the Cook County Jail from September 23, 2012 to March 9, 2013. Complicating his detention, however, was the fact that Clemons has been wheelchair bound since 2003 when a gunshot wound paralyzed him from the waist down. Pl.’s Local Rule 56.1 Statement of Facts ¶ 23, ECF No. 76 (“PSOF”). In connection with these injuries,' Clemons’ legs were amputated in 2009. Id. at ¶ 26. Because of Clemons disabilities and accompanying medical requirements, he was assigned to the Cook County Sheriff Department of Corrections Cermak Hospital, division 8 (“Cermak”), which was built in 1998. Id. at ¶ 8.
Cermark is staffed with both correctional officers and county medical personnel twenty-four hours a day, seven days a week. 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. Defs.’ Local Rule 56.1 Statement of Facts ¶ 2, ECF No. 84 (“DSOF”). Cermak comprises eight tiers, each of which has thirty to forty inmates at any given time. Doctors check each tier twice daily to address medical issues as needed. Id. at ¶ 13. Each tier also has one registered nurse on call twenty-four hours a day, seven days a week. Id. The nursing staff checks on each detainee once per shift, for a total of three checks in a twenty-four hour period. During these checks, the nurse assists detainees with bathing, feeding, and administering medication. The detainees can also request assistance throughout the day via the nurse call button, which is located in each room.
Although there were multiple ADA compliant cells at the Cermak facility, and notwithstanding his obvious disability, Clemons was not assigned to one. Instead, when Clemons arrived at Cermak he was processed and initially assigned to room 3115, which is an isolation room that houses a single inmate, id. at ¶ 46, and was then later transferred to room 3225. Id. at ¶ 57. Neither room complied with ADA structural requirements. Who assigned Clemons to these cells is subject to dispute between the parties. Clemons insists that correctional officers . made the assignments, while the Sheriff claims that correctional officers played no role in determining Clemons’ housing assignments at Cermak and that it was Cook County medical personnel that determined where Clemons would go based on his medical needs. Defs.’ Resp. to Pl.’s Mot. Summ. J. 15-16, ECF No. 89; Defs.’ Mot. Summ. J. 14-16, ECF No. 82. But even when analyzing fhe defendants’ response to Clemons’ motion and construing the facts in a light that is most favorable to them, the defendants’ position lacks support in the record. The defendants point to the first sentence of the Cook County Health & Hospital System (CCHHS) infirmary operational statement which states that “[o]n the 3rd
Both rooms 3115 and 3225 contained features that did not meet ADA and Rehabilitation Act architectural standards. PSOF ¶ 31, 40. In room 3115, Clemons’ toilet seat was sixteen inches high, rather than the seventeen to nineteen inches required by the ADA. Id. at ¶ 32 (a). The distance from the centerline of the toilet to the side wall was twenty-four inches, rather than the eighteen inches required by the 1991 ADA standards. Id. at ¶ 32 (b). The cell also lacked grab bars near the toilet, as required by the ADA. Id. at ¶ 32 (c). The shower compartment in the room also had a door that was only twenty-eight inches wide, rather than the minimum thirty-two inches required by the ADA, and lacked both a mounted shower seat and grab bars. Id. at ¶ 32 (e). Additionally, the room contained a table with fixed seating, which prevented wheelchair access. Id. at ¶ 32 (h). Because of these noncompliant features, Clemons contends he was unable to use the toilet to empty his colostomy bag on his own and was not regularly provided assistance to do so, which resulted in him suffering personal injury on several occasions when his colostomy bag burst or his catheter leaked. Id. at ¶¶ 33-35. Defendants, however, maintain that Clemons was not only provided adequate medical care, but that the care was so exceptional that it made up for the cell’s structural deficiencies.
On October 2, 2012, correctional officers transferred Clemons to Room 3225, where he remained until his release on March 9, 2013. Id. at ¶ 39. Clemons shared this room with between five to eleven cellmates. Id. at ¶ 41. Room 3225 had ADA deficiencies similar to those in Room 3115. Id. at ¶ 40. The toilet seat was fifteen and one half inches high, rather than the required seventeen to nineteen inches high. Id. at ¶ 43 (a). The distance from the cen-terline of the toilet seat to the side wall was twenty-three inches, instead of the eighteen inches required by the applicable 1991 ADA standards. Id. .at ¶ 43 (b). The clearance width of the toilet area perpendicular to the side wall was 55 inches, rather than the sixty inches required by law. Id. at ¶ 43 (c). The toilet area also lacked ADA required grab bars. Id. at ¶ 43 (d). The sink, which was located behind the toilet, could not be reached by a person using a wheelchair, as required by the 1991 ADA standards. Id. at ¶ 43 (e). Just as in Room 3115, the group shower room, which Clemons had access to while he stayed in room 3225, lacked a mounted shower seat and grab bars. The defendants provided a portable shower chair, but it had a seat height of twenty inches, rather than a height of seventeen to nineteen inches required by the ADA. The presence of inmates in portable beds, known colloquially as “boats,” compounded the problems created by the non-ADA compliant room features, as it was more difficult for wheelchair-bound inmates, such as Clemons, to move about the room. Id. at ¶ 44. On December 3, 2012, Clemons fell in the shower while attempting to transfer from his wheelchair to the portable shower chair. Id. at ¶ 51. As a result of the fall, Clemons suffered a number of personal injuries that required pain medication. Id. at ¶ 52.
DISCUSSION
To prevail on a summary judgment motion, the movant must demonstrate that there is no genuine dispute as to any material fact and that he is entitled to judgment
I. Clemons’ Title II ADA and Rehabilitation Act Claims
Both Clemons and the Sheriff seek summary judgment on Clemons’ ADA and Rehabilitation Act claims. Broadly stated, Title II of the ADA forbids discrimination in the provision of services, programs, and activities by public entities on the basis of an individual’s disability.
A. Denial of Services
To prevail on his ADA claim, Clemons must establish that he was denied
If a plaintiff was housed in a facility that satisfies statutory architectural standards, then the defendants have satisfied their obligation to provide reasonable access and cannot be said to have “denied access” to programs or services. See 28 C.F.R. § 35.151(c)(1). There is no dispute, however, that the cells to which Clemons was assigned were not ADA compliant. Notwithstanding the Cermak facility’s noncompliance with statutory structural requirements, however, the Sheriff asserts that Clemons was provided “equivalent access” to the facility’s programs and ser'vices. Essentially, Dart maintains that access to around-the-clock nursing care, which Cermak provided, constituted “equivalent access” to ADA-compliant fixtures because it was always available to Clemons to request assistance from the nursing staff. Def.’s Resp. to PSOF at ¶ 31; Def s Motion for SJ at 3 (“any room in that building can be made ADA accessible because there are multiple qualified medical professionals on hand in each tier, every hour of every day, to assist detainees with any and all needs, including using devices like basins and shower or toilet chairs”).
Although the issue is not free from doubt, the Court agrees with Clemons’ view that the availability of staff assistance upon request does not constitute equivalent access under the applicable regulations. The applicable regulation for determining whether the defendants have satisfied the “reasonable measures” requirement is 28 C.F.R. § 35.151(c)(1). That regulation states:
If physical construction or alterations [of a facility] commence after July 26, 1992 ... then new construction and alterations subject to this section must comply with either UFAS or the 1991 Standards ... [departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.
Id. Thus, if a facility is constructed after 1992 — as was Cermak — it must comply with federal architectural standards. Id. But even if a facility constructed after 1992 fails to comply with those structural requirements, its shortcomings do not violate the ADA if the facility can clearly establish that equal access was provided notwithstanding its noncompliance with federal structural requirements. Id.
The ADA Accessibility Guidelines for Buildings and Facilities, which construe and provide' technical specifications relevant to the 1991 Standards, make clear that the purpose of the equivalent facilitation provision is to allow for flexibility in design for unique and special circumstances and to facilitate the application of
In support of his reading of the equivalent facilitation provision, the Sheriff points to section 35.150 (b)(1) of the ADA, which states that “[a] public entity may comply with the requirements of this section through such means as ... acquisition of equipment ... assignment of aides to beneñciaries ... [a] public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section.” 28 C.F.R. § 35.150(b)(1). But that provision applies to existing facilities that were built before 1992, and was drafted in order to reduce the need for existing facilities to engage in costly renovations. Id. Cermak was built in 1998, however, making the defendant’s reliance on the language of 35.150 (b)(1) untenable. The omission of similar language in § 35.151 — the provision that does apply to post-1991 facilities like Cermak- — -is telling; as it indicates that the drafters likely did not intend the existing facilities equivalent facilitation provision to encompass “the assignment of aids or beneficiaries.” See 28 C.F.R. § 35.151(c)(1). '
There is scant case law interpreting these regulations, but the distinction between architectural and operational accommodations is consistent with the reading the Supreme Court gave to the Title II implementing regulations in Tennessee v. Lane,
Although the ADA does not provide detailed examples of what would be an appropriate new design or technology for toilets and showers in a jail cell, the guidelines do include examples of permissible alternatives to the ADA structural requirements for other areas. See Americans With Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities, 56 FR 85408-01, Comment 2.2. These examples further support a reading of the equivalent facilitation provision as only applying to new designs or technologies. For example, in the case of alterations to an existing facility, the guidelines permit an elevator car to have different dimensions when usability can be demonstrated and all other elements required to be accessible comply with the applicable provisions. Id. The guidelines also permit the use of a portable text telephone if it is readily available for use with a nearby public pay telephone that is equipped with a shelf; an electrical outlet within, or adjacent to, the telephone enclosure; and a long enough telephone handset cord to allow connection of the text telephone and the telephone receiver if an acoustic coupler is used. Id. The guidelines additionally note that teller counters in stores, banks, and hotels that lack an ADA compliant counter are permitted to have a folding shelf attached to the main counter that allows a disabled person to write and handle materials that are exchanged back and forth. Id. But conspicuously absent from any of the Eve specific provisions provided by the rule makers is any mention of an entity providing a “service” that would be an appropriate accommodation. Instead, all of the provided examples focus on varying structural designs as alternatives to the structural designs provided by the ADA.
A final point supports Clemons’ argument. Title II of the ADA requires affirmative, proactive accommodations necessary to ensure meaningful access to public services and programs, not accommodation upon request. See 28 C.F.R. § 35.130(b)(7) (“A public entity shall make reasonable modifications”); Robertson v. Las Animas County Sheriff’s Dept.,
Because Cermak cells 3151 and 3225 did not comply with the ADA’s structural requirements, and the Sheriffs Department has failed to show that Clemons was provided equivalent access, there can be no dispute that the defendants failed to comply with Article II of the ADA and therefore denied Clemons with access to programs and services. See Lane,
B. Intentional Discrimination
Next, to prevail on his summary judgment motion for his ADA claims, Clemons must establish that the Sheriff intentionally discriminated against him because of his disability. CTL ex rel. Trebatoski v. Ashland Sch. Dist.,
In applying the deliberate indifference standard to ADA cases, courts have held that 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. County of Kitsap,
As to the first prong of the deliberate indifference analysis — knowledge that harm was likely — it could hardly have been more apparent that Clemons, who spends his every waking moment confined to a wheelchair, was in need of ADA compliant facilities. The Sheriff maintains that because Clemons could request assistance at any time, there was no basis to foresee that he could be harmed by the non-compliant aspects of his cells, but that argument rests on the same rejected premise that providing assistance upon request satisfied the Sheriffs duty under the ADA; the Sheriff cannot prevail by pointing to legally insufficient compliance measures as a reason that harm resulting from noncompliance was not foreseeable. The Sheriff also argues that Clemons was not harmed by the fact that some of the fixtures in question were not ADA-compliant; most notably, for example, a compliant toilet — one at the required height and equipped with grab bars- — -would not have been of any help to Clemons, who would have been unable to use such a fixture in its normal fashion because he uses a colostomy bag and a catheter to eliminate waste from his body. Similarly, while it is undisputed that Room 3115 contained a fixed chair that-prevented Clemons from accessing a writing surface, it is undisputed that Clemons was bedridden for most of his stay in Room 3115; the Sheriff maintains that Clemons would therefore have been unable to use even an ADA compliant desk. And with respect to the “boats” — the temporary beds — that Clemons said limited his access to the shower room, the Sheriff argues that the failure to have them removed would, at best, amount to an isolated act of negligence. Foley v. City of Lafayette, Ind.,
But other aspects of the cells’ non-compliance did affect Clemons, such as his
Further, that “[t]here is no evidence that Plaintiff requested a reasonable accommodation,” as the Sheriff argues, is beside the point. Defs.’ Mot. for Summ. J. 16, ECF 82. As discussed above, Clemons did not need to file a formal request for accommodation to trigger the ADA’s protections, as Title II of the ADA “embodies no such requirement.” Phipps.,
As to the second prong of the deliberate indifference analysis, the record supports only a finding that the defendants failed to prevent Clemons’ federal statutory rights from being violated. Once a plaintiff has shown that the defendant had knowledge that “harm to a federally protected right is substantially likely,” he must show that the defendant “fail[ed] to act upon that likelihood.” Duvall,
In support of his attempt to divorce himself from the conduct of the Cermak facilities’ correctional officers, the Sheriff points to a line of cases that indicate that
Sheriff Dart’s position that responsibility for Clemons’ housing assignments at Cermak was entirely within the discretion of Cook County medical personnel, moreover, is simply not supported by the record. The defendants point to the first sentence of the Cook CHHS infirmary operational statement which states that “[o]n the 3rd floor medical unit, an RN or LPN reviews the admission orders and assigns a bed.” DSOF ¶ 1. But in the very next sentence the policy states that “[t]he nurse must confer with Correctional Officers to incorporate both clinical and security considerations when assigning a bed.” Id. Thus, it is apparent that even though CCHHS medical personnel had some say in where prisoners were housed, Sheriff Department employees did too. Further undermining the defendants’ claim is the defendants’ admission during discovery that Correctional Officers assigned Clemons to the non-ADA compliant rooms. PSOF ¶ 28. Thus, there can be no dispute that the Sheriffs personnel had some role in assigning Clemons to a non-ADA complaint cell and failed to act in a manner that prevented Clemons’ federally protected rights from being violated.
Given Clemons’ obvious need for an ADA compliant cell and the presence of those cells within the Cermak facility, a reasonable juror could only find that the defendants acted with deliberated indifference and “fail[ed] to act” upon the likelihood that Clemons’ would be denied the access to the needed “programs and services.” That the Sheriff and the County have devoted substantial resources to improving their compliance with ADA requirements, as the Sheriffs brief in support of his motion details, is commendable but it does not provide immunity for the failure to provide reasonable accommodations with respect to Clemons’ housing assignment. Accordingly, Clemons’ motion for summary judgment on his ADA and rehabilitation act claims is granted, and the Sheriffs cross motion for summary judgment on those same claims is denied.
II. Clemons’ 1983 Claim
The defendants also move for summary judgment on Clemons’ 1983 claim against the Sheriff, which is predicated on a Monell theory of liability. Under Monell, a local governmental entity is liable for damages only if a plaintiff can show that the alleged constitutional violation occurred as a result of an official policy, custom, or practice. Monell v. Dept. of Social Services,
The Sheriff asserts that Clemons’s Monell claim fails as a matter of law because Clemons’ allegations fail to provide sufficient evidence of a widespread custom or practice that deprived him of ADA compliant housing. Clemons contends that the Sheriff had a policy of “housing disabled detainees like plaintiff in accessible housing units” which resulted in a violation of his Fourteenth Amendment rights. PL’s Resp. to Defs.’ Mot. for Summ. J. 12, ECF 92. Because Clemons does not allege that the Sheriff had an explicit policy that resulted in the assignment of inmates to inaccessible cells, his argument rests on a finding that there was an implicit policy resulting in a “wide-spread practice, that ... is so permanent and well settled as to constitute a custom or usage with the force of law.” Klebanowski,
Clemons’ argument falls well short. Where the alleged constitutional deprivation resulted from an implicit policy, a plaintiff must present evidence of a widespread practice, not simply an isolated event. Grieveson v. Anderson,
Similarly here, Clemons’ Monell claim fails because his allegations pertain exclusively to his own experience at Cermak. Clemons contends that by assigning him to inaccessible cells the defendants subjected him to cruel and unusual punishment and violated his constitutional rights via the Fourteenth Amendment. But even accepting this allegation as true, much like the plaintiff in Grieveson, Clemons fail to provide any particular evidence that this was a widespread practice or policy because although he maintains that he was assigned to an inaccessible cell by correctional officers, he has failed to provide specific evidence that other inmates were routinely subjected to the same treatment. Certainly the fact that some other law suits by dis
' Instead, Clemons asserts that “[d]efen-dant does not point to facts showing that there was no such policy.” PL’s Resp. to Defs.’ Summ. J. Mot. 12, ECF No. 92. In making that argument, however, Clemons improperly attempts to shift the burden of proof to the Sheriff. But with respect to the defendants’ summary judgment motion, the Sheriff has no burden to disprove Clemons’ claims; rather, he need only show that Clemons has failed to offer any facts that could lead a reasonable juror to find in his favor. By highlighting Clemons’ failure to offer any facts supporting his allegation that the defendants had a discriminatory policy — whether explicit or implicit — the defendants have done just that. Accordingly, defendants’ summary judgment motion with respect to Clemons’ 1983 claim is granted.
***
In conclusion, Clemons’ motion for summary judgment on his ADA and Rehabilitation Act claims is granted. The defendants’ summary judgment motion with respect to those claims is denied. But their motion for summary judgment on Clemons’ 1983 claim is granted, as Clemons has failed to provide sufficient evidence of a widespread custom or practice that caused his alleged constitutional violation.
Notes
. See Pl.'s Am. Compl. at ¶ 3; DSOF ¶ 2. Clemons' initially sought to impose individual liability against Sheriff Dart, but later amended to complaint to sue him in his official capacity only. See PL’s Am. Compl. at ¶ 3; DSOF ¶ 2.
. Insofar as the factual assertions provided are supported by a specific reference to the record, Ammons v. Aramark Uniform Servs., Inc.,
. Although contested by the defendants, it is well settled that prisons and correctional facilities are public entities within the purview of Title II. See Pennsylvania Dept. of Corrections v. Yeskey,
. Sheriff Dart does not dispute that Clemons is a "qualified individual” under the ADA. Norfleet v. Walker,
. The record is clear that the Cook County Sheriff's Department received Federal financial assistance.
. Were the Court to conclude that providing assistance could substitute for compliance with required design standards, fact issues as to the availability and adequacy of the nursing assistance provided by the Sheriff to compensate for the non-compliant features of Clemons' cells would preclude summary judgment. Clemons claims, for example, that he was not provided the necessary assistance in emptying and cleaning his colostomy bag and catheter, PSAF ¶ 6, and that he was only allowed to shower once during the course of his stay in Room 3115. PSAF ¶ 9. Additionally, while residing in Room 3225, Clemons claims that the group shower room was the only place he could properly wash his hands and that it was available during limited hours. PSAF ¶ 14. The Sheriff disputes these assertions. DSOF ¶¶ 13, 35, 41.
. To the extent that the Sheriff argues that his inability to assign Clemons to a compliant cell is a result of overcrowding, and therefore does not reflect deliberate indifference to Clemons’ need for ADA accommodation, he has failed to adduce any evidence to support the contention that there was no ADA cell available when Clemons’ assignment was made.
. There is no evidence of record that any correctional officer objected in any way to Clemons’ assignment to non-compliant cells.