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Evans v. Page

August 10, 2001

WILLIAM EVANS, PLAINTIFF-APPELLANT
v.
THOMAS PAGE, DEFENDANT-APPELLEE



Appeal from the Circuit Court of Randolph County. No. 98-MR-102 Honorable William A. Schuwerk, Jr., Judge, presiding

The opinion of the court was delivered by: Justice Hopkins

UNPUBLISHED

William Evans (plaintiff), an inmate in the Illinois Department of Corrections (the Department) at Menard Correctional Center (Menard), appeals from the dismissal of his complaint against Thomas Page (defendant), warden of Menard. Plaintiff's complaint seeks relief under the Americans with Disabilities Act of 1990 (the Act) (42 U.S.C. §12101 et seq. (1994)). This court had issued an order affirming the trial court's dismissal of plaintiff's action. Evans v. Page, No. 5-99-0216 (May 5, 2000) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). Plaintiff filed a petition for rehearing, and defendant filed a response. We now grant plaintiff's petition for rehearing and withdraw our order filed May 5, 2000, substituting this disposition in its place.

BACKGROUND

On December 3, 1998, plaintiff, who is paraplegic, filed his complaint, entitled "A.D.A. Complaint," in the Randolph County circuit court. Plaintiff asserted that since November 26, 1997, he was denied transportation to and from court in a wheelchair-accessible vehicle, he was denied wheelchair-accessible recreation and exercise, and the health care unit and library at Menard were not wheelchair accessible. Plaintiff alleged that the transportation he was provided caused him pain and that without a wheelchair-accessible scale to weigh him, the health care unit was unable to provide plaintiff with a comprehensive physical examination. Plaintiff sought $50,000 in damages from defendant.

Plaintiff requested leave to amend the complaint on February 3, 1999. Plaintiff's amended complaint described plaintiff as "a qualified individual with a disability," named Thomas Page as the sole defendant, and asserted that he was entitled to relief under the Act because he was being transported in a van that was not handicapped equipped.

On March 10, 1999, defendant moved to dismiss the complaint pursuant to section 2-615 and section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(a)(9) (West 1998)). Defendant attached an affidavit of Menard's medical records director attesting that plaintiff was seen numerous times by the health care staff at Menard. Defendant also attached plaintiff's medical progress notes, dated November 26, 1997, listing plaintiff's weight. Pursuant to section 2-615, defendant argued that the allegations in the complaint were conclusory and did not state a cause of action. Pursuant to section 2-619(a)(9), defendant argued that plaintiff was not excluded from attending court or going to the hospital or the library or from engaging in recreation and exercise and that, therefore, the complaint failed to state a claim under the Act.

Plaintiff responded on March 19, 1999, to the motion to dismiss, and on March 22, 1999, the circuit court granted defendant's motion. Plaintiff did not seek a ruling on his motion to amend his petition, which was never addressed by the trial court. Plaintiff chose instead to file an appeal.

On appeal, plaintiff asserts that his complaint was sufficient to state a cause of action under the Act and thus was improperly dismissed. He does not argue in his opening brief that the trial court erred because it did not rule on his motion to amend his petition. Thus, plaintiff has waived the issue on appeal, despite his attempt to introduce the issue in his reply brief. Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)) mandates, "points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."

STANDARD OF REVIEW

We review de novo an order granting a motion to dismiss pursuant to section 2-615 or section 2-619. Aboufariss v. City of De Kalb, 305 Ill. App. 3d 1054, 1067 (1999) (citing Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112 (1993)).

DISCUSSION

An analysis of whether plaintiff's allegations can be pursued under the Act must begin with the language of the statute itself. See Watt v. Alaska, 451 U.S. 259, 265, 68 L. Ed. 2d 80, 88, 101 S. Ct. 1673, 1677 (1981). The statute's plain language must be given effect. Connecticut National Bank v. ...


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