United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.
plaintiff in this case, Donnell Flora, is a paraplegic who is
confined to a wheelchair. He is unable to care for himself
without assistance. For example, he is able to use a toilet
independently only if he is provided with a raised toilet
with grab bars. He also needs significant accommodations in
order to use a shower. He has sued the Sheriff of Cook County
and the County under Title II of the Americans with
Disabilities Act (ADA), alleging that his rights under the
ADA were violated when he was incarcerated as a pretrial
detainee at the Cook County Jail and when he was transported
to the Leighton Courthouse for hearings on his criminal case.
The Court entered summary judgment in Flora's favor as to
liability on some aspects of his claim. See Flora v.
Dart, No. 15 C 1127, 2017 WL 2152392 (N.D. Ill. May 17,
2017). What remains for trial is the issue of liability on
the remainder of his claim, and the issue of damages. The
case is set for trial on October 12, 2017.
recent status hearing, defendants took the position that the
Prison Litigation Reform Act (PLRA) prohibits Flora from
recovering damages for emotional distress. The Court
understood defendants to be seeking to bar evidence of
emotional distress damages and directed them to file an
appropriate motion. Defendants' filing, however, was not
what the Court expected; they do not ask the Court to
preclude anything. As will become apparent, both
defendants' submission and Flora's response are
insufficient to permit the Court to rule definitively on
anything at this point.
the PLRA, "[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 or the
commission of a sexual act (as defined in section 2246 of
Title 18)." 42 U.S.C. § 1997e(e). Though there is
no definitive authority from the Seventh Circuit, but see
Staggs v. Hollenbeck, 249 F.3d 1159, 2000 WL 1763357, at
*5 (7th Cir. 2000) (unpublished), other circuits have ruled
that the statute requires
minimis" physical injury in order to permit
recovery of emotional distress damages. See, e.g.,
Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003).
aforementioned status hearing, defendants seemed to be
contending that Flora cannot meet this threshold. But their
subsequent filing does not seek a pretrial ruling barring
emotional distress damages. Rather, defendants contend only
that the issue of whether Flora clears the de
minimis threshold should be submitted to the jury at
trial. Flora argues that it is an issue for the Court to
decide either before or during trial.
side has done much of a job briefing the issue of who decides
the point. Defendants argue only that the issue is a question
of fact, evidently assuming that if it is, then the issue is
one for the jury. This is a non sequitur, as
illustrated by another provision of the PLRA, the exhaustion
requirement found in 42 U.S.C. §1997e(a). Exhaustion
frequently involves factual questions, but its determination
is indisputably an issue for the Court. Defendants offer no
authority one way or another regarding whether the de
minimis threshold is an issue for the
does Flora. He seems to contend that the matter is not
legitimately disputed. Specifically, he contends that because
he has testified that he fell in the shower while attempting
to transfer to a portable shower chair and was then treated
by a doctor, the physical injury requirement of section
1997e(e) has been established. But Flora did not seek summary
judgment on this point, and the Court is not prepared to say
that the matter is beyond dispute. (The Court does note,
however, that if it is in fact undisputed-or if it
is demonstrated-that Flora fell and required treatment by a
physician, that likely will be enough to clear the
minimis" threshold.) On the court-vs.-jury issue,
Flora, like defendants, offers no authority establishing that
the issue of whether the threshold is met, even if disputed,
is for the Court to decide, not the jury.
Court would prefer not to strike out on its own to decide
this issue. The parties are directed to submit, by no later
than 9/27/2017, supplemental memoranda of not more than 8
pages focused on the court-vs.-jury issue. If there is no
authority directly on point, the parties should consider,
among other things, appropriate analogies, as well as, of
course, the effect of the Seventh Amendment (if any).
final point. The law is clear that even if Flora ultimately
cannot recover emotional distress damages, the PLRA permits
him to seek and recover nominal and punitive damages,
Washington v. Hively, 695 F.3d 641, 644 (7th Cir.
2012), as well as an injunction if appropriate. Thomas v.
State of Illinois, 697 F.3d 612, 614 (7th Cir. 2012).
Defendants have offered no authority supporting the
proposition that nominal damages are unavailable under the
ADA. Under the PLRA, the amount of damages awarded may impact
any award of attorney's fees, see 42 U.S.C.
§ 1997d, but that is an issue for another day.
ruling date of 9/21/2017 is vacated and is converted to a
status hearing on that same date at 8:30 a.m., in chambers
(Room 2188), so that the Court can discuss with the parties
issues regarding accommodations for Flora during the trial.
 Defendants suggest that Flora's
own testimony cannot suffice to establish the necessary
threshold under section 1997e(e) because it is
"self-serving," but that ...