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Phipps v. Sheriff of Cook County

March 26, 2008

DERRICK PHIPPS, KEVIN HOUSE, KENNETH COURTNEY, AND JAMES GRANT, INDIVIDUALLY AND ON BEHALF OF A CLASS, PLAINTIFFS,
v.
SHERIFF OF COOK COUNTY, AND COOK COUNTY, ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Derrick Phipps, Kevin House, Kenneth Courtney, and James Grant have brought a class action complaint against defendants the Sheriff of Cook County and Cook County, Illinois alleging violations of section 202 of the Americans with Disabilities Act ("ADA") , 42 U.S.C. § 12132, section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and 42 U.S.C. § 1983. Plaintiffs have now moved to certify a class defined as All former and current wheelchair bound inmates at the Cook County Department of Corrections who after July 11, 2005 were subjected to discrimination because of their disability in violation of § 202 of the [ADA] and § 504 of the Rehabilitation Act.

Defendant the Sheriff of Cook County ("defendant") opposes class certification on the grounds that plaintiffs cannot establish numerosity, commonality and typicality, adequacy of representation and predominance of questions of law or fact common to the class members. For the following reasons, plaintiffs' motion is granted.

I.

Plaintiffs are paraplegics or partially paralyzed individuals who were pre-trial detainees housed at the Cook County Department of Corrections ("CCDC") between 2006 and 2007. The complaint alleges plaintiffs were discriminated against when defendants failed to provide appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound individuals. (Am. Compl. at ¶ 5.) Plaintiffs allege they have suffered various injuries as a result of the discrimination, including bed sores, rashes, other physical injuries - as a result of falling when attempting to utilize the non-handicapped facilities - and emotional distress.

II.

In assessing plaintiffs' motion for class certification, I must determine whether the four prerequisites of Federal Rule of Civil Procedure 23(a) are met, and whether plaintiff can maintain his suit under Rule 23(b)(1), (2), or (3). The four prerequisites of Rule 23(a) are that (1) the proposed class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims of the representative party are typical of the claims of the class; and (4) the representative party will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). Plaintiff's motion for class certification proceeds under Rule 23(b)(3), which requires that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." FED. R. CIV. P. 23(b)(3). I address each of these requirements below.

A. Numerosity

In order to satisfy Rule 23's numerosity requirement, a class must be "so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). Plaintiffs are not required to allege the exact number or identity of the class members and I am permitted to make common sense assumptions in order to find support for numerosity. See Block v. Abbot Laboratories, No. 99 C 7457, 2002 WL 485364, at *3 (N.D. Ill. Mar. 29, 2002) (citations omitted). Here, plaintiffs have identified four named plaintiffs and 12 additional class members who were housed at the CCDC during the period of August 29, 2007 to September 26, 2007. Plaintiffs estimate that since July 2005 more than 50 wheelchair bound individuals have been housed at the CCDC and will be part of the class. This is a sensible estimate which satisfies the numerosity requirement. See, e.g., id. (citations omitted) ("courts have found this element satisfied when the putative class consists of as few as 10 to 40 members"). Although defendants take issue with the reliability of the statements by the 12 identified additional class members, plaintiffs' estimate is still reasonable based the number of wheelchair bound inmates identified thus far, the size of the CCDC, and the time period for which they seek to certify a class. I find this requirement met.

B. Commonality

The second requirement of Rule 23(a) is that "there are questions of law or fact common to the class." FED. R. CIV. P. 23(a)(2). The commonality requirement is satisfied by showing "a common nucleus of operative fact." Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (citation omitted). In this case, the common nucleus of operative fact is be the discrimination resulting from the conditions and accessibility of the shower and toilet facilities to wheelchair bound individuals. Defendant points out that the named plaintiffs were housed in different housing units within the CCDC. This does not defeat commonality, however, as the plaintiffs sufficiently allege a common discriminatory practice throughout the CCDC. See Dimm v. City of Chicago, 231 F.R.D. 367, 372 (N.D. Ill. 2005) ("[t]he variations identified by defendant in the actual treatment of certain detainees [] do not eliminate the common nucleus of fact"); Moeller v. Taco Bell Corp., 220 F.R.D. 604, 608-10 (N.D. Cal. 2004) (architectural differences among defendants' locations did not defeat commonality for purposes of certifying class under the ADA); see also Humphrey v. Int'l Paper, No. 02 C 4147, 2003 WL 2211093, at *16 (N.D. Ill. Sept. 11, 2003) ("the common thread that unifies the claim of discrimination in the terms and conditions of employment is that the alleged actions were motivated . . . by racial animus; the fact that plaintiffs allege that they experienced this animus in somewhat different ways with respect to the terms and conditions of employment does not defeat commonality.").

C. Typicality

The third requirement of Rule 23(a) is that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." FED. R. CIV. P. 23(a)(3). "'A plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.'" De La Fuente v. Stokely-Van Camp Inc., 713 F.2d 225, 232 (7th Cir. 1983) (quoting Herbert Newberg, NEWBERG ON CLASS ACTIONS ยง 1115(b) (1977)). Again, defendant takes issue with the fact that the named plaintiffs were housed within different facilities within the CCDC, which are subject to different standards of accessibility. This does not defeat typicality, however. "That the particular conditions may differ slightly from one cell block to the next, or that there are factual distinctions between the actual injuries suffered by [the named ...


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