The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
Plaintiffs Derrick Phipps ("Phipps"), Kevin House ("House"), Kenneth Courtney, ("Courtney"), and James Grant ("Grant") have brought a class action suit against the Sheriff of Cook County ("the Sheriff") and Cook County, Illinois ("the County") (together, "defendants"), alleging violations of section 202 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794(a).*fn1 The plaintiffs and each of the defendants have filed cross-motions for summary judgment. For the reasons discussed below, all of the parties' motions are denied.
MEMORANDUM OPINION AND ORDER
The plaintiffs are paraplegics and partially-paralyzed pre-trial detainees currently and formerly housed at the Cook County Department of Corrections ("CCDC" or "the Prison") since July 1995. All were assigned to one of two facilities within the CCDC -- the Residential Treatment Unit ("RTU") or Cermak Health Services ("Cermak").*fn2 In their amended complaint, the plaintiffs allege that the defendants discriminated against them by failing to provide them with wheelchair-accessible toilets, sinks, and shower facilities. They claim to have suffered various injuries as a result of the alleged discrimination, including bed sores, rashes, and infections resulting from an inability to maintain proper hygiene. They also claim to have sustained injuries from falling while attempting to transfer from their wheelchairs to toilet seats, beds, and shower chairs in various areas of the Prison. Finally, certain of the plaintiffs additionally allege that they were denied access to electronic monitoring and drug rehabilitation programs run by the CCDC.
Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue for trial exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant initially bears the burden of "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quotation marks omitted). Once the movant has met this burden, the non-movant "may not rest upon the mere allegations or denials of the adverse party's pleading," but rather "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). All facts must be construed in the light most favorable to the non-movant, and all justifiable inferences must be drawn in the non-movant's favor. Anderson, 477 U.S. at 255.
Because each of the parties has filed a separate motion for summary judgment, it may be helpful before proceeding to briefly summarize their basic contentions. The plaintiffs argue that the defendants were required by both the Rehabilitation Act and the ADA to provide disabled detainees with accessible toilets, showers, and sinks. Specifically, the plaintiffs claim that toilets in the facilities should be stationed at an appropriate height; equipped with rear and side "grab bars"; surrounded by a sufficient amount of open space to allow them to maneuver in their wheelchairs; and fitted with accessible flush valves. Without these modifications, the plaintiffs claim that it is difficult for them to transfer between their wheelchairs and the Prison's toilets, and to sit on the toilets without falling.
The plaintiffs further claim that the defendants were required to provide them with sinks that are accessible in height, that have properly-installed fixtures, and that allow enough "knee space" for disabled individuals to approach the sinks from a forward direction in their wheelchairs. As for the showers, the plaintiffs claim that the nozzle and control knobs must be located no higher than forty-eight inches above the floor, and that wheelchair-bound detainees must be provided with appropriate shower chairs. According to the plaintiffs, the defendants refused to implement any of these modifications, even though the changes would not have been unduly burdensome.
The County advances three central arguments in support of its motion for summary judgment: (1) that the plaintiffs' Rehabilitation Act claim fails because the defendants are not recipients of federal funds; (2) that the plaintiffs' ADA claim fails because showering and lavatory use do not qualify as "programs" or "activities" covered by the ADA; and (3) the plaintiffs' ADA claim fails because they have failed to allege intentional discrimination.
The Sheriff's motion for summary judgment advances four basic arguments: (1) that the suit is barred by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e, because the plaintiffs failed to exhaust administrative remedies before filing the instant suit; (2) that the suit is barred by the PLRA because the plaintiffs failed to allege any physical injuries as a result of the alleged discrimination; (3) that the plaintiffs' ADA claim fails because, while the plaintiffs purport to assert the claim under Title II of the statute, violations of the type they allege are redressible only under Title III; and (4) that the defendants' failure to accommodate the plaintiffs was reasonable in light of the Prison's need to maintain institutional security.*fn3
As can be seen, the parties' arguments center around three basic statutes -- the PLRA, the RA, and the ADA. The discussion that follows is organized around these statutes, first examining the arguments raised under the PLRA, then moving on to the arguments arising under the RA, and finally discussing the arguments based on the ADA. Before concluding, I also briefly examine the plaintiffs' claims concerning access to drug and monitoring programs.
Congress passed the PLRA as part of an "effort to address the large number of prisoner complaints filed in federal court." Jones v. Bock, 549 U.S. 199, 202 (2007). The purpose behind the legislation was to reduce the number of suits brought by prisoners by separating meritorious claims from frivolous ones. Id. at 204. The defendants claim that the plaintiffs' suit is barred by two of the PLRA's requirements: (1) that plaintiffs exhaust available administrative remedies prior to filing suit; and (2) that the plaintiffs may not seek to recover for psychological and emotional injuries without asserting prior physical injury. Neither of these arguments is persuasive.
A. Exhaustion of Administrative Remedies
The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Pavey v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008). The Sheriff claims that the plaintiffs were required under the PLRA to avail themselves of the Prison's grievance procedure before filing the current suit. He claims that the plaintiffs failed to do so, and that, as a result, the suit must be dismissed. This argument fails for several reasons.
As an initial matter, the argument has been forfeited. In Jones, the Supreme Court held that a party's failure to exhaust administrative remedies must be asserted as an affirmative defense.
549 U.S. at 211-12. An affirmative defense is waived if it is not asserted in a party's answer or in a subsequent motion to dismiss. See Fed. R. Civ. P. 8(c); see also Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). Here, the Sheriff has raised the failure-to-exhaust claim for the first time in his motion for summary judgment. As a result, the argument has been waived. See, e.g., Venters v. City of Delphi, 123 F.3d 956, 968 (7th Cir. 1997); Baker v. Chicago Fire & Burglary Detection, Inc., 489 F.2d 953, 955 (7th Cir. 1973); MCI Telecomm. Corp. v. Ameri-Tel, Inc., 852 F. Supp. 659, 666 (N.D. Ill. 1994) (affirmative defense raised for first time in response to summary judgment motion was waived); see also Simmons v. Ellena, No. 96 C 6797, 2002 WL 31176161, at *2 (N.D. Ill. Sept. 30, 2002) (defendants waived failure-to-exhaust argument under PLRA by failing to raise it as an affirmative defense).*fn4
Even if the argument had not been forfeited, however, the defendants' appeal to the PLRA is unsuccessful on the merits.
First, the defendants have not convincingly shown that the PLRA even applies to this suit. The PLRA defines the term "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h)). In order to determine whether a plaintiff is a "prisoner confined in jail" for purposes of the PLRA, the court must look to the plaintiff's status at the time he initiates his suit. See, e.g., Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004); see also Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002) (noting that "every court of appeals to have considered the issue has held that the PLRA does not apply to actions filed by former prisoners"); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (per curiam) ("[W]e hold that litigants... who file prison condition actions after release from confinement are no longer 'prisoners' for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this provision.").
In this case, it is undisputed that Phipps and House had been released at the time the suit was filed. See Defs.' Resp. Pls.' 56.1(a) Stmt. ¶¶ 1,2; Pls.' Opp. to Defs.' Summ. J. at 13 n.11. Hence, at the very least, Phipps's and House's claims are not subject to, or barred by, the PLRA. In light of this fact, it is unclear whether it remains incumbent upon other members of the plaintiff class to exhaust their administrative remedies.
Even if the exhaustion requirement were applicable to remaining class members, however, the defendants have failed to show that the requirement has not been met. It is undisputed, for example, that Courtney filed a grievance to complain about the Prison's conditions. The defendants argue that Courtney's grievance does not count for purposes of the exhaustion requirement because the suit was filed before his grievance was denied. They further contend that Courtney's grievance was deficient for failing to allege that he suffered from physical injury. However the record is not sufficiently clear about the way in which the grievance procedure operated in this case.
For example, Courtney first filed a document with the CCDC on November 28, 2006 -- long before the suit was filed -- complaining that he needed a shower chair. According to the defendants, this was deemed a "request" by the CCDC. Defs.' 56.1(a) Stmt. ¶ 50. The defendants further explain that prisoners may not appeal from the denial of requests; instead, if a prisoner disagrees with the Prison's response to his request, he may "resubmit the concern" and it will then be treated as a grievance. Id. However, while the defendants characterize Courtney's initial filing as a request, the plaintiffs claim that it was a grievance. Indeed, the form initially submitted by Courtney bore the title, "Cook County Department of Corrections Detainee Grievance." Pls.' Ex. 31. The defendants do not fully explain why Courtney's initial filing should not have been deemed a grievance. They explain the difference between a request and a grievance, but they do not completely explain why Courtney could not have been regarded as having filed a grievance rather than a request. If the CCDC improperly processed the first form submitted by Courtney as a "request" instead of a grievance, Courtney's apparent failure to comply with the Prison's grievance procedure would not have been his fault, and would not be precluded by the PLRA. See, e.g., Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) ("[A plaintiff] must exhaust only those administrative remedies that are available to him. The Eighth and Fifth Circuits have deemed administrative remedies exhausted when prison officials fail to respond to inmate grievances because those remedies had become "unavailable.".... We join the Eighth and Fifth circuits on this issue because we refuse to interpret the PLRA so narrowly as to permit prison officials to exploit the exhaustion requirement through indefinite delay in responding to grievances.") (citations, quotation marks, brackets, and ellipsis omitted).
Furthermore, in the class action context, many courts have adopted a theory of "vicarious exhaustion," under which the PLRA's exhaustion requirement will be deemed satisfied for the entire class so long as the requirement has been met by at least one class member. See Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) ("We hold that a class of prisoner-plaintiffs certified under Rule 23(b)(2) satisfies the PLRA's administrative exhaustion requirement through 'vicarious exhaustion,' i.e., when 'one or more class members ha[s] exhausted his administrative remedies with respect to each claim raised by the class.'") (quoting Jones v. Berge, 172 F. Supp. 2d 1128, 1133 (W.D. Wis. 2001)). Although the Seventh Circuit has not specifically addressed the question, many courts have accepted the vicarious exhaustion theory. See, e.g., Meisberger v. Donahue, 245 F.R.D. 627, 629 (S.D. Ind. 2007)(collecting cases).*fn5 As previously observed:
[I]n the PLRA context, the purpose of affording prison officials an opportunity to address complaints internally is met when one plaintiff in a class action has exhausted his administrative remedies. To require each inmate with the same grievance to exhaust their administrative remedies would be wasteful, and as long as prison officials have received a single complaint addressing each claim in a class action, they have the opportunity to resolve disputes internally and to limit judicial intervention in the management of prisons.
Lewis v. Washington, 265 F. Supp. 2d 939, 942 (N.D. Ill. 2003) (brackets and quotation marks omitted).
Applying vicarious exhaustion here, if any single member of the plaintiff class exhausted the available remedies, the entire class can be deemed to have done so. Since the failure-to-exhaust argument is an affirmative defense, the burden is on the defendants to prove it. See, e.g., Salas v. Wisconsin Dept. of Corr., 493 F.3d 913, 922 (7th Cir. 2007)("A plaintiff's failure to exhaust administrative remedies is an affirmative defense, which is the defendant's burden to prove."). Here, however, the defendants have not asserted, much less shown, that none of the class members has exhausted the available administrative remedies. For this reason, too, the Sheriff's PLRA argument fails.
The defendants' second argument under the PLRA claims that the plaintiffs' suit is precluded because they have not alleged physical injuries. The PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(h). The defendants point out that the plaintiffs' allegations of discrimination form the basis for their suit. According to the defendants, the harm caused by discrimination is mental and emotional in nature, not physical. As a result, they argue, in alleging discrimination, the plaintiffs have alleged only mental and emotional injury. Consequently, they conclude that the plaintiffs' suit is precluded by the PLRA.
Like the previous argument, the defendants' physical injury argument fails for multiple reasons. To begin with, the PLRA's physical injury requirement, like the exhaustion requirement, does not apply to individuals who were not prisoners at the time the litigation was initiated. The statute's plain language makes clear that it applies only to suits brought by prisoners confined in a jail or correctional facility. As the Seventh Circuit has explained:
A "prisoner" cannot bring an action for mental injury unless he has suffered physical injury too. Just in case anyone might be tempted to equate "prisoner" with "ex-prisoner" -- to think that "prisoner" refers to the plaintiff's status at the time of the injury rather than at the time the litigation begins -- the statute says that its object is a "prisoner confined in a jail, prison, or other correctional facility".... The statutory language does not leave wriggle room; a convict out on parole is not a "person incarcerated or detained in any facility who is... adjudicated delinquent for, violations of... the terms and conditions of parole".... So by waiting until his release from prison Kerr avoided § 1997e(e). And a distinction between current and former prisoners makes a modicum of sense: Congress deemed prisoners to be pestiferous litigants because they have so much free time on their hands and there are few costs to filing suit. Opportunity costs of litigation rise following release, diminishing the need for special precautions against weak suits.
Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998) (citations omitted); see also Harris v. Garner, 216 F.3d 970, 975 (11th Cir. 2000). As noted above, neither Phipps nor House was a "prisoner" at the time this action was filed. At the very least, therefore, the PLRA would not preclude Phipps's and House's claims, or the claims of other class members who were not incarcerated at the time the suit was filed.
The deeper problem with the defendants' argument, however, is that it rests on a faulty premise -- namely, that the plaintiffs have failed to assert physical injuries. The plaintiffs complain of bed sores, infections, and injuries resulting from falling to the ground from their wheelchairs. These injuries are undeniably physical. The fact that the plaintiffs have also alleged mental and emotional harm does not mean that they have run afoul of the PLRA. The PLRA does not forbid any recovery for emotional and psychological harm; it merely forbids recovery for such injuries "without a prior showing of physical injury." 42 U.S.C. § 1997e(e).
The defendants further argue that the class definition makes no mention of physical injuries. According to the Sheriff, this somehow shows that, by definition, the plaintiffs' suit does not seek recovery for physical harm. This is unconvincing. While the class definition does not specifically mention physical harm, it also does not explicitly mention emotional or psychological harm. Nevertheless, the Sheriff concedes that the plaintiffs seek recovery for psychological and emotional injury. On the defendants' own view, therefore, the mere fact that the class definition does not specifically mention physical harm does not mean that the plaintiffs do not seek to recover for physical injury. And the plaintiffs' amended complaint directly ...