United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
Berl McKinnie, a detainee in Cook County Jail, filed a
complaint bringing claims pursuant to 42 U.S.C. § 1983,
the Americans with Disabilities Act (ADA), 42 U.S.C. §
12131 et seq., and the Rehabilitation Act, 29 U.S.C.
§ 794. McKinnie, who has a prosthetic leg, alleges that
Thomas Dart, Sheriff of Cook County, Illinois, and Cook
County, Illinois (collectively “Defendants”)
violated his constitutional and statutory rights by (1)
failing to provide McKinnie with an accessible shower in his
housing unit; and (2) failing to adopt a policy providing
non-wheelchair-bound, disabled detainees with an accessible
toilet while in lockup at the Leighton Courthouse. McKinnie
has now moved for partial summary judgment against Defendants
on his ADA claim relating to the accessible shower. For the
reasons that follow, the Court denies McKinnie's motion.
McKinnie has been detained at the Cook County Jail since
September 17, 2014. Pl.'s LR 56.1(a)(3) Stmt. ¶ 1,
ECF No. 39. McKinnie's right leg is amputated below the
knee and he wears a prosthetic leg, which he must remove to
shower. Id. ¶¶ 2, 3.
March 2016, McKinnie was housed in Division 8, Tier 3F.
Id. ¶ 9. Tier 3F has five shower stalls, one of
which is an accessible stall for people with mobility
disabilities, with a fixed bench and grab bars, as required
by ADA design standards. Id. ¶ 13. While none
of the showers in the tier have doors, the ADA-compliant
shower is the least private because of its location, near a
window that people walk by. Defs.' LR 56.1(b)(3)(C) Stmt.
¶¶ 30, 31, ECF No. 46; id., Ex. A,
Rivero-Canchola Dep. at 21:14-23, ECF No. 46-2. McKinnie
testified that he always enters the shower fully clothed and
undresses in the shower, rather than wearing a towel into the
shower area. Pl.'s LR 56.1(a)(3) Stmt., Ex. 2, McKinnie
Dep. at 36:18-23, ECF No. 39. When using the
ADA-compliant shower, McKinnie sits on the fixed bench to
take off his clothes and prosthesis. Defs.' LR
56.1(b)(3)(C) Stmt. ¶ 32.
to McKinnie, he always uses the ADA-compliant shower except
when it is malfunctioning. McKinnie Dep. at 9:22-10:7. As of
March 15, 2016, the ADA-compliant shower in the tier had been
malfunctioning for more than three months. Pl.'s
LR 56.1(a)(3) Stmt. ¶ 14. The water in the ADA-compliant
shower stall would not shut off, with the lower shower head
constantly running. Id. ¶ 15. As a result,
there was always standing water in the ADA-compliant shower
area. Id.; Defs.' LR 56.1(b)(3)(C) Stmt.
¶¶ 33, 34.
parties dispute whether the shower was usable while it was
malfunctioning. See Pl.'s LR 56.1(a)(3) Stmt.
¶ 14; Defs.' Resp. Pl.'s LR 56.1(a)(3) Stmt.
¶ 14, ECF No. 45. According to the ADA Compliance
Officer, Sabrina Rivero-Canchola, the shower was
“usable” at all times because the water was
running and the temperature was adequate. Rivero-Canchola
Dep. at 30:14-24. But McKinnie testified that, due to the
standing water, he would need to hop on one leg to use the
malfunctioning ADA-compliant shower, a move he claims is
“extremely dangerous.” McKinnie Dep. at 19:10-18;
Pl.'s LR 56.1(a)(3) Stmt. ¶ 19. Further, he claimed
that, when the water was running, he could not sit on the
bench to take his clothes off in the ADA-compliant stall, and
the only other option would be to “take your clothes
off in your living area and walk in the bathroom
naked.” McKinnie Dep. at 19:3-9. Defendants dispute
that it is necessary for McKinnie to hop into the shower,
contending that he could have removed his clothes in his
living unit and simply walked to the shower. Defs.' Resp.
Pl.'s LR 56.1(a)(3) Stmt. ¶ 19 (citing McKinnie Dep.
at 19:3-9, 19-24).
March 16, 2016, McKinnie had complained about the
malfunctioning ADA-compliant shower to Officer
Rivero-Canchola, every officer in his tier, and several
sergeants at the jail. Pl.'s LR 56.1(a)(3) Stmt. ¶
20. Workers had attempted to repair the ADA-compliant shower
repeatedly without success. Id. ¶ 21. McKinnie
had not, however, filed any formal grievances regarding the
shower. Defs.' LR 56.1(b)(3)(C) Stmt. ¶ 13.
was permitted to use a plastic activity chair to shower in
non-ADA shower stalls when the ADA-compliant shower was
malfunctioning. Pl.'s LR 56.1(a)(3) Stmt. ¶ 24;
Defs.' Resp. Pl.'s LR 56.1(a)(3) Stmt. ¶ 24. The
plastic activity chair is not a “shower chair”
for people with mobility disabilities to use while showering.
Rivero-Canchola Dep. at 18:23-20:8. Moreover, McKinnie
experienced pain using the chair in a non-ADA stall that he
would not have experienced in a functional ADA-compliant
shower. Pl.'s LR 56.1(a)(3) Stmt. ¶¶ 24, 25;
McKinnie Dep. at 21:5-7.
March 16, 2016, Sergeant Daily, a correctional officer,
refused to give McKinnie permission to use the plastic chair
to shower in a non-ADA stall, even though McKinnie explained
that the ADA-compliant shower was broken. Pl's. LR
56.1(a)(3) Stmt. ¶¶ 27, 28. McKinnie directed the
correctional officer's attention to a sign posted in the
tier that stated that a shower chair is available for people
with disabilities. Id. ¶¶ 30, 31. The
sergeant still refused to allow McKinnie to use the activity
chair. Id. ¶ 32. McKinnie then
complained to two nurses and an officer about the
sergeant's conduct, but he was not provided with a chair.
Id. ¶ 33. A few hours later, McKinnie attempted
to shower in a non-ADA stall despite not having the chair.
Id. ¶ 34; McKinnie Dep. at 22:15-23:14. He
first sat on the floor, removed his clothes and prosthetic
leg, placed them outside the shower, and then maneuvered to a
standing position on his left leg. Pl's. LR 56.1(a)(3)
Stmt. ¶ 35. McKinnie was in pain while standing on his
one leg. Id. ¶ 36. He then lost his balance,
fell backwards, and hit his head. Id. ¶ 37.
McKinnie was transported to Stroger Hospital for treatment.
Id. ¶ 38.
to Rivero-Canchola, McKinnie spoke to her about the broken
shower a few days after his fall, when McKinnie's
grievance about the shower reached her desk. See
Rivero-Canchola Dep. at 27:22-28:9. Rivero-Canchola claims
that McKinnie told her that “he fell because he tried
to use the regular shower, and he wanted more privacy, and
then he said he fell because he didn't have a shower
chair, and then he said he fell because the shower was
broken.” Id. at 28:10-16. According to
Rivero-Canchola, the first thing McKinnie told her was that
he wanted to shower in a non-ADA shower for privacy reasons.
Id. at 31:8-16; Defs.' LR 56.1(b)(3)(C) Stmt.
¶ 29. McKinnie disputes that he spoke to Rivero-Canchola
during the relevant time period and asserts that he never
told her that he wanted to use the non-ADA stall “for
privacy reasons or any reason other than the unusability of
the accessible stall.” See Pl.'s Resp.
Defs.' LR 56.1(b)(3)(C) Stmt. ¶ 18, ECF No. 53;
id. Ex. 18, McKinnie Declaration ¶ 4.
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). To survive summary judgment,
the nonmoving party must “do more than simply show that
there is some metaphysical doubt as to the material facts,
” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and instead must
“establish some genuine issue for trial such that a
reasonable jury could return a verdict in her favor.”
Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73
(7th Cir. 2012).
reviewing a motion for summary judgment, the Court gives the
nonmoving party “the benefit of conflicts in the
evidence and reasonable inferences that could be drawn from
it.” Grochocinski v. Mayer Brown Rowe & Maw,
LLP, 719 F.3d 785, 794 (7th Cir. 2013). The Court must
not make credibility determinations or weigh ...