United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
Adam Pegues, a former inmate of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant
to 42 U.S.C. § 1983, alleging that his constitutional
rights were violated while he was incarcerated at Lawrence
Correctional Center (“Lawrence”). Specifically,
Plaintiff alleges Defendant failed to provide him with access
to bathroom facilities at certain times. Following threshold
review, Plaintiff proceeds on one Count:
Count 1:ADA and Rehabilitation Act claims
against Director of Illinois Department of Corrections
(official capacity only) for failing to accommodate
Plaintiff's need for bathroom access while in the prison
matter is currently before the Court on Defendant's
Motion for Summary Judgment (Doc. 41). Plaintiff failed to
timely respond to the Motion. Pursuant to Local Rule 7.1(c),
the Court considers Plaintiff's failure to respond an
admission of the merits of the motion. For the following
reasons, Defendant's motion is GRANTED.
Adam Pegues was housed in segregation at Lawrence from May 6,
2015 through June 6, 2015 (Plaintiff's Deposition, Doc.
41-1 at 20). During this time, Pegues was taking the
prescription drug Lactulose, which caused him to have
frequent bowel movements (Id. at 25).
18, 2015, Pegues was in the dayroom to take a shower and
requested permission to be let back into his cell to use the
bathroom (Id. at 28). He was denied access to his
cell and had an uncontrollable bowel movement resulting in
diarrhea on his body and clothing (Id. at 29). He
had to stand by the steps in segregation for approximately 30
minutes before being allowed back into his cell to wash up
and change his clothes (Id. at 30).
Pegues was released from segregation and back in the general
population, he continued to have issues with being denied
bathroom access while in the dayroom (Id. at 40).
When he complained to staff that he needed access to the
washroom in his cell, he was told that it was a security risk
for him to come and go from his cell during his time in the
dayroom (Id. at 26-27).
sometimes takes the Lactulose in the morning and sometimes in
the afternoon, depending on what time he wakes up
(Id. at 43). He generally has a bowel movement
within 20 to 30 minutes of taking the medication
(Id. at 23). Even if he uses the bathroom before he
leaves his cell for dayroom, he often needs to use the
bathroom again before dayroom time ends (Id. at 57).
Pegues is permitted to miss dayroom if he needs to be close
to a bathroom (Id. at 61). Dayroom time alternates
every other day - one day it will be an hour and a half in
the morning, the next day it is two hours and a half in the
afternoon (Id. at 66). When Pegues is in the dayroom
and his bowels move before he can get to a bathroom, he goes
to the shower and washes his boxers out (Id. at 52,
57). Pegues was not aware of any other inmates with ADA
accommodations being granted a permit to use the bathroom
whenever they wanted (Id. at 69). He has not
experienced any skin irritation as a result of his bowel
movements (Id. at 53).
time he filed suit, Pegues was seeking money damages and a
permit to be able to use the bathroom whenever he needed
while he was in the dayroom (Id. at 68). Since
filing suit however, he has been released from prison,
rendering his request for injunctive relief moot.
judgment is appropriate only if the moving party can
demonstrate “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); Celotex Corp.
v. Catrett, 477 U.S. 317, 322(1986); see also
Ruffin-Thompkins v. Experian Information Solutions,
Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving
party bears the initial burden of demonstrating the lack of
any genuine issue of material fact. Celotex, 477
U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth
specific facts showing there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Estate
of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017)
(quoting Anderson, 477 U.S. at 248). When
considering a summary judgment motion, the Court views the
facts in the light most favorable to, and draws all
reasonable inferences in favor of, the nonmoving party.
Apex Digital, Inc. v. Sears, Roebuck & Co., 735
F.3d 962, 965 (7th Cir. 2013) (citation omitted).
II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of
the services, programs or activities of a public entity, or
be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. Similarly, Section 504 of the
Rehabilitation Act prohibits any agency that receives federal
funds from excluding, subjecting to discrimination, or
denying the benefits of any of their programs to otherwise
qualified individuals with disabilities. 29 U.S.C. §
794(a). Failure to make reasonable accommodations to ensure
participation in the public entity's programs or services
by a person with a disability qualifies as
“discrimination.” 42 U.S.C. §
12112(b)(5)(A); Wisc. Cmty. Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006).
prison context, a plaintiff can make out a prima facie case
of discrimination under both the ADA and the Rehabilitation
Act by showing: (1) he is a qualified person (2) with a
disability and (3) the Department of Corrections denied him
access to a program or activity because of his disability.
Jaros v. Illinois Dep't of Corr., 684 F.3d 667,
672 (7th Cir. 2012), citing 29 U.S.C. § 705(2)(B);
Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737,
746 (7th Cir.2006); Foley v. City of Lafayette, 359
F.3d at 928 (7th Cir.2004); Grzan v. Charter
Hosp. of Nw. Ind., 104 F.3d 116, 119 (7th Cir.1997).
Refusing to make reasonable accommodations is tantamount to
denying access. Although the Rehabilitation Act does not
expressly require accommodation, “the Supreme Court has
located a duty to accommodate in the statute
generally.” Id. ...