1.-F!LEO Case: 1:07-cv-03889 Document #: 1 Filed: 07/11/07 Page 1 of 3 PageID #:1

JUL 11 2007
7-1(-07
MICHAIL W. DOlliNS CLI!IIIIC, U.l. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, Plaintiff
-vs-
Sheriff of Cook County, and Cook County, I11inois,
Defendants.

07CV3889 JUDGE BUCKLO MAG. JUDGE COLE
)
) (jury demand) ) )

COMPLAINT

Plaintiff, by counsel, alleges as follows: I. This is a civil action arising under Section 202 of the Americans with Disabilities Act, 42 U.S.C. §12132, Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and 42 U.S.C. §1983. The jurisdiction of this Court is conferred by 28 U.S.C. §12133, 29 U.S.C. §794a(a)(2), and 28 U.S.C. §1343. 2. Plaintiff Derrick Phipps is a paraplegic resident of the Northern District of Illinois who is wheelchair bound. Plaintiff was a prisoner at the Cook County Jail from April II, 2007 to July 9, 2007. 3. Defendants are the Sheriff of Cook County and Cook County, Illinois. 4. Plaintiffwas assigned to the "Residential Treatment Unit" ("RTU") ofDivision Eight from April II, 2007 to May 13, 2007. 5. While confined at the RTU, plaintiff was discriminated against because of his disability in violation of§ 202 of the Americans with Disabilities Act of 1990(ADA) and§ 504 of the Rehabilitation Act of 1973 because defendants failed to provide appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound
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persons. 6. Plaintiff developed an infection from his bed sores as the direct and proximate
result of the discrimination described above; on or about May 13, 2007, plaintiff was transferred to the hospital wing of Division Eight ("Cermak Hospital") where he remained until he was discharged in July of2007.
7. While confined at Cermak Hospital, plaintiff continued to be discriminated against because of his disability in violation of§ 202 ofthe Americans with Disabilities Act of 1990(ADA) and § 504 of the Rehabilitation Act of 1973 because defendants failed to provide appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound persons.
8. Plaintiff incurred personal injuries as a result of the above described discrimination at the RTU and Cermak Hospital: plaintiff fell on several occasions while trying to maneuver his body from the wheelchair to a non-handicap accessible toilet; and while trying to maneuver his body from the wheelchair to the non-handicap accessible bed; plaintiff was required to shower while sitting in his wheelchair (rather than on a handicap accessible chair) and was unable to clean and dry his body
9. Plaintiff was also denied enlargement from custody at the Cook County Jail through the "Sheriffs Electronic Monitoring" program because of his disability: plaintiff was found qualified for placement in the "Electronic Monitoring" program on his admission to the jail but was denied placement in this program because of the Sheriffs refusal to maintain appropriate policies for the transportation of persons, like plaintiff, who are paraplegic.
10. As a result ofthe foregoing, plaintiff incurred physical injuries, was subjected to emotional distress, and was deprived of equal protection of law, as secured by the
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Fourteenth Amendment to the Constitution of the United States, and was discriminated against in violation of the Americans with Disabilities Act, 42 U.S.C. §12132 and Section 504 of the Rehabilitation Act.
11. Plaintiff hereby demands trial by jury. WHEREFORE, the Plaintiff requests that Judgment be entered in his favor in an amount in excess of one hundred thousand dollars, plus attorney fees and costs, against the Defendants.
Thomas G. Momssey, Ltd. 10249 South Western Avenue Chicago, Illinois 60643 (773) 233-7900 Robert H. Farley, Jr., Ltd. 1155 South Washington Naperville, Illinois 60540 (630)-369-0103 Kenneth N. Flaxman 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604 (312) 427-3200 Attorneys for Plaintiff
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 Case: 1:07-cv-03889 Document #: 322 Filed: 09/17/10 Page 1 of 1 PageID #:3627

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al.,

)

Plaintiffs )

)

-vs-

) No. 07 CV 3889

)

Sheriff of Cook County and Cook ) (Judge Bucklo)

County,

)

)

Defendants. )

ORDER
The Court has reviewed the proposed settlement of this class action and, having held a hearing on the fairness of the settlement, finds that notice of the proposed settlement has been provided to all class members by first class mail to his (or her) last known address and that the proposed settlement is fair, reasonable, and adequate. Accordingly,
IT IS ORDERED that the proposed settlement be, and the same hereby is, approved.
IT IS FURTHER ORDERED: The time for class members to submit claims is extended to November 15, 2010. Defendant Cook County shall, within 30 days, pay incentive awards in the amount of $25,000 to James Grant, Kenneth Courtney, and Derrick Phipps, $15,000 to Kevin House, and $10,000 to David Eldefonso.
Defendant Cook County shall pay to attorneys Kenneth N. Flaxman and Thomas G. Morrissey the sum of $35,000 as reimbursement for expenses and $700,000 as compensation for attorneys fees, the fees to be paid in two installments as set out in the settlement agreement.
The Court reserves jurisdiction to September 1, 2011 to enforce the terms of the settlement agreement.

ENTER: ____________________ 9/17/2010 Elaine E. Bucklo United States District Judge

 
 Phipps v. Sheriff of Cook County, 249 F.R.D. 298 (2008)

249 F.R.D. 298 United States District Court,
N.D. Illinois, Eastern Division.
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.
No. 07 C 3889. | March 26, 2008.
Attorneys and Law Firms
*299 Thomas Gerard Morrissey, Thomas G. Morrissey, Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Chicago, IL, Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, for Plaintiffs.
Daniel Francis Gallagher, Dominick L. Lanzito, Lawrence S. Kowalczyk, Mary Elizabeth McClellan, Paul A. Ogrady, Querrey & Harrow, Ltd., Chicago, IL, for Defendant Sheriff of Cook County.
Jamie Melissa Sheehan, Cook County State’s Attorney, Chicago, IL, for Defendant Cook County, Illinois.
Opinion
*300 MEMORANDUM OPINION AND ORDER
ELAINE E. BUCKLO, District Judge.
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
[1] [2] In order to satisfy Rule 23’s numerosity requirement, a class must be “so numerous that joinder of all members
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Phipps v. Sheriff of Cook County, 249 F.R.D. 298 (2008)
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. Abbott 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.
*301 B. Commonality
[3] [4] 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 Dunn 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 22111093, 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
[5] [6] 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 § 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 plaintiff] and the class members, does not defeat typicality under Rule 23(a)(3).” Chatmon v. Winnebago County, No. 00 C 50084, 2002 WL 424617, at *1 (N.D.Ill. Mar.18, 2002). Therefore, I find that plaintiffs’ claims meet this requirement.
D. Adequacy of Representation
[7] [8] The final requirement of Rule 23(a) is that the class representative must “fairly and adequately protect the interests of the class.” FED.R.CIV.P. 23(a)(4). The adequacy requirement is not met if the class representative has interests that are antagonistic to or in conflict with those of class members. See Uhl v. Thoroughbred Tech. and Telecomms., Inc., 309 F.3d 978, 985 (7th Cir.2002) (citations omitted). Defendant argues that plaintiffs are not appropriate class representatives because they lack credibility. Specifically, defendant points to Phipps’ prior conviction for possession of drugs in April 2007.
I do not find this renders plaintiff an inadequate class representative. Defendant does not identify any interests held by plaintiffs which are antagonistic to or in conflict with those of class members. Moreover, “[c]redibility is not a requirement of a class representative, and whether or not a plaintiff is credible is irrelevant to that person’s ability to be a class representative.” Levie v. Sears, Roebuck & Co., 496 F.Supp.2d 944, 950 (N.D.Ill.2007) (citing Miller v. Material Scis. Corp., No. 97 C 2450, 1999 WL 495490, at *5 (N.D.Ill.1999)). To the extent that Phipps’ credibility on this particular issue were relevant and problematic, the remaining named plaintiffs would
2

Phipps v. Sheriff of Cook County, 249 F.R.D. 298 (2008)
arguably alleviate this concern. Accordingly, this requirement is satisfied.
*302 E. Predominance [9] Federal Rule of Civil Procedure 23(b)(3) requires a plaintiff to demonstrate that questions of law or fact common to all members of the class predominate over any individual questions. Under § 12132 of the ADA, the common questions are whether plaintiffs were subject to discrimination by CCDC, and whether it was “by reason” of their disability. See Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir.1996). For the reasons discussed with respect to commonality and typicality, presently there is no reason to believe that individual questions will predominate over the common questions in this litigation. I find that the predominance requirement of Rule 23(b)(3) is met in this case.
F. Superiority

[10] Federal Rule of Civil Procedure 23(b)(3) also requires that a class action be the superior method of adjudicating the claims at issue. Allowing the present class to proceed would be an efficient use of judicial resources, and would be superior to individual adjudication of the class members’ claims in light of the nature of the claims and alleged damages. See Robledo v. City of Chicago, 444 F.Supp.2d 895, 908 (N.D.Ill.2006). Accordingly, this requirement is met.
III.
For the foregoing reasons, I grant plaintiffs’ motion and certify plaintiffs’ proposed class.
Parallel Citations
36 NDLR P 221
	  

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 Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 1 of 21 PageID #:3603

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al.,

)

)

Plaintiffs,

)

)

-vs-

) No. 07 CV 3889

)

Sheriff of Cook County and ) (Judge Bucklo)

Cook County,

)

)

.

Defendants. )

CLASS SETTLEMENT AGREEMENT
This settlement agreement is entered into by all parties to this action through their respective undersigned counsel to resolve all matters at issue in this action and the related action of Eldefonso v. Cook County Sheriff, No. 09 CV 6682.
RECITALS
1. Nature of litigation. Plaintiffs filed the above captioned action, for themselves and all others similarly situated, in the United States District Court for the Northern District of Illinois alleging violations of section 202 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and section 504 of the Rehabilitation Act ("Rehabilitation Act"), 29 U.S.C. § 794(a).
2. Class Certification. Pursuant to the Court's order of March 6, 2008, this case is proceeding as a class action for:
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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. 3. Important Rulings. On November 25, 2009, the Court denied cross motions for summary judgment. The Court denied defendants’ motion to reconsider on February 19, 2010 and thereafter set the case for trial to begin on April 26, 2010. After the parties filed their joint pre-trial order on March 19, 2010, the Court vacated the trial date, expressing its intent to set a new date for the fall of 2010.
4. Settlement Process. After exchanging drafts of the final pretrial order, counsel for the parties met to discuss the possibility of settlement. These discussions continued after the filing of the final pretrial order and have resulted in a proposed resolution of the claims asserted on behalf of the class and the individual claims asserted for the named plaintiffs, as well as of the claim asserted by the plaintiff in the related action of Eldefonso v. Cook County Sheriff, No. 09 CV 6682 The proposed settlement takes into account the risks, delay and difficulties involved in establishing a right to recovery in excess of that offered by this settlement and the likelihood that the litigation will be further protracted.
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5. Certification by Class Counsel: Class Counsel have investigated the facts and the applicable law and believes that the number of class members is less than two hundred persons. Based on the foregoing, and upon an analysis of the benefits that this Settlement Agreement affords the class. Class Counsel considers it to be in the best interest of the class to enter into this Settlement Agreement.
6. Denial of Liability: Cook County and Sheriff vigorously contests each and every claim in the Action. Cook County and Sheriff maintain that they have consistently acted in accordance with governing laws at all times. Cook County and Sheriff vigorously deny all the material allegations set forth in the Action. Cook County and Sheriff nonetheless have concluded that it is in its best interest that the Action be settled on the terms and conditions set forth in this Stipulation. Cook County reached this conclusion after considering the factual and legal issues in the Action, the substantial benefits of a final resolution of the Action, the expense that would be necessary to defend the Action through trial and any appeals that might be taken, the benefits of disposing of protracted and complex litigation, and the desire of Cook County to conduct its business unhampered by the distractions of continued litigation.
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7. As a result of the foregoing, Cook County and Sheriff enter into this Stipulation without in any way acknowledging any fault, liability, or wrongdoing of any kind. Neither this Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as an admission or concession by Cook County and Sheriff of the truth of any of the allegations made in the Action, or of any liability, fault, or wrongdoing of any kind whatsoever on the part of Cook County or Sheriff, or shall be used as precedent in the future against Cook County and Sheriff in any way.
8. To the extent permitted by law, neither this Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be offered as evidence or received in evidence in any pending or future civil, criminal, or administrative action or proceeding, to establish any liability or admission by Cook County and/or Sheriff, except in any proceedings brought to enforce the Stipulation.
9. Neither this Stipulation, nor any pleading or other paper related in any way to this Stipulation, nor any act or communication in the course of negotiating, implementing or seeking approval of this Stipulation, shall be deemed an admission by Cook County or Sheriff that certification of a class or subclass is appropriate in any other litigation,
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or otherwise shall preclude Cook County or Sheriff from opposing or as-
serting any argument it may have with respect to certification of any
class(es) or subclass(es) in any proceeding or this Action, or shall be
used as precedent in any way as to any subsequent conduct of Cook
County or Sheriff except as set forth herein.
DEFINITIONS
10. In addition to the foregoing, the following terms shall have
the meanings set forth below:
a. “Cook County” means the County of Cook and/or any other successors, assigns or legal representatives thereof.
b. “Sheriff” means the Sheriff of Cook County and/or any other successors, assigns or legal representatives thereof.
c. “Class Counsel” means Kenneth N. Flaxman, Kenneth N. Flaxman P.C., 200 South Michigan Avenue, Suite 1240,Chicago, Illinois 60604; Robert H. Farley, Jr., Robert H. Farley, Jr., Ltd., 1155 South Washington, Naperville, Illinois 60540; and Thomas G. Morrissey, Ltd., 12049 South Western Avenue, Chicago, Illinois, 60643.
d. “Class Member” means any person who is included within the definition of the Class (and that person’s heirs, executors, administrators, successors, and assigns), and who has not timely requested exclusion from the case.
e. “Class Period” means the period commencing July 11, 2005, and continuing through June 15, 2010.
f. “Effective Date” means that date defined in paragraph 26 of this Stipulation.
g. “Final Settlement Hearing” means the hearing at which final approval of the Settlement in this matter is granted.
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h. “Administrator” means class counsel.
i. “Potential Class Members” means all persons who would qualify as part of the Class, prior to the date by which exclusion from the Class must be requested.
j. “Released Claims” means and includes any and all Unknown Claims, known claims, and rights, demands, actions, causes of action, suits, debts, liens, contracts, liabilities, agreements, interest, costs, expenses or losses, for the acts alleged or which are or could have been alleged by the Named Plaintiffs or the Potential Class Members in this Action, or relate in any way whatsoever to this Action regarding alleged discrimination against wheelchair bound inmates at the Cook County Department of Corrections due to their disabilities, including, but not limited to, statutory and non-statutory attorneys’ fees, violation of the ADA, and violation of the Rehabilitation Act, and any cause of action or claim not filed to date in a court of law known or unknown on or before the date of this settlement that arose out of his (or her) incarceration at the jail.
k. “Released Persons” means Cook County, Cook County’s counsel, Sheriff of Cook County, Sheriff’s counsel, and any of Sheriff’s and Cook County’s past, present or future officers, agents, employees and/or independent contractors, and/or any other successors, assigns, or legal representatives thereof.
l. “Class” means all former and current wheelchair bound inmates at the Cook County Department of Corrections who, from July 11, 2005 through June 15, 2010, were subjected to discrimination because of their disability in violation § 202 of the ADA and § 504 of the Rehabilitation Act.
m. “Valid Claim Form” means a Claim Form which includes an affirmation under penalty of perjury stating the Class Member: (1) was or is an inmate at the Cook County Department of Correction from July 11, 2005 through the date of preliminary approval of the settlement; (2) was wheelchair bound during the time she or he was an inmate; (3) the reason why the claimant was wheelchair bound, (4) that the claimant was wheelchair bound for a period in excess of six months, and (5) that
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during the time he or she was a wheelchair bound inmate, he or she was not provided sufficient (a) bathroom, sleeping and/or living facilities; and/or (b) rehabilitation or drug treatment programs.
RELIEF
11. Class Closure Date: As of June 15, 2010, the date of class closure, all ADA qualified wheelchair bound detainees at the Cook County Jail are housed in ADA accessible cells or housing or reasonable accommodations have been made.
12. Monetary Relief to the Class. To resolve all claims at issue in this case involving monetary relief to class members, other than attorneys' fees, expert and consulting witness fees and litigation costs, the parties have agreed that, as part of the consideration for this Agreement, Defendants will establish a fund (the "Settlement Fund") in the amount of $500,000 (five hundred thousand dollars). This amount includes incentive payments to the named plaintiffs. The “Settlement Fund” also includes monies to be distributed to class members to satisfy all claims that have accrued to the date of entry of judgment in accordance with the “distribution algorithm” described in section 15 below.
13. Incentive Payments. Each of the named plaintiffs Grant, Courtney, and Phipps will, subject to the approval of the Court, receive an incentive award of $25,000.00; named plaintiff House will receive an
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incentive award of $15,000 and related Plaintiff Eldefonso will receive an incentive award of $10,000.00 to be paid from the Settlement Fund. Such award shall be in lieu of, and not in addition to, any other awards to which the named plaintiffs may be entitled under this settlement.
14. Administration of the Settlement. An Administration Fund in the amount of $200,000 shall be established. The Administrator shall administer all aspects of the class settlement, other than the issuance of checks. The cost of administration of the settlement, including but not limited to notice to the class, locating class members who cannot be reached by first class mail, establishing class membership, processing of claim forms, mailing of settlement checks and 1099 forms, shall be paid from the Administration Fund in an amount not to exceed two hundred thousand dollars. For purposes of performing any work in the administration of this settlement only, class counsel agrees to a rate of $200.00 per hour for attorney with more than 3 years experience, and a rate of $100.00 per hour for paralegals and lawclerks. Cook County shall reimburse counsel for administrative costs upon receipt of itemized statements, with payments to be made within 30 days of receipt of said statement with a maximum amount not to exceed the Administration Fund of $200,000. Any portion of the $200,000 not ex-
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pended by September 1, 2011 for administrative and notice costs and expenses from the Administration Fund shall revert to Cook County.

15. Payments to Class Members. The parties, while recognizing that each class member with a valid claim has a distinct claim for damages, agree that the expense, uncertainly, and delay of providing each class member with an individual determination of damages outweighs the benefits of a categorical, time-based distribution. Accordingly, payments to class members shall be made according to the following algorithm:

Released day of arrest 2 days through 30 days
More than 30 days

$100
$100 for first day plus $25 day, to a maximum of $825 for the first 30 days
$825 for first 30 days, plus $11 per day, to a maximum award of $4,854

In the event of multiple incarcerations this algorithm will apply to

the total aggregate time for all incarcerations combined. That is, an in-

dividual serving two separate 30 day stays at the jail wll receive damag-

es for 60 total days as calculated above; as a result the individual will be

eligible to $1,155, if qualified.

The actual amount to be paid to each class member will be determined within 60 days after expiration of the date for submission of claim forms. The total amount to be paid to class members, other than the named plaintiffs, will not exceed $400,000 (Four Hundred Thou-
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sand Dollars), and will be determined by class counsel by dividing the sum of claims computed in accordance with the above distribution formula by $400,000. If the sum of the claims exceeds $400,000, each claim shall be reduced by a proportionate amount. If the sum of the claims is less than $400,000, the remainder shall be held by the Cook County Comptroller for a period of one year to allow payment of any claim submitted late with good cause shown. Any funds remaining at the expiration of this one year period shall revert to Cook County.
16. Attorneys’ Fees and Expenses: Attorneys’ fees and costs were not finally negotiated by Class Counsel and counsel for the Released Parties until after full agreement was reached on the monetary relief for the class. Class counsel represented that the total amount of attorneys’ fees and expenses incurred to date is in excess of $735,000 (Seven Hundred and Thirty Five Thousand Dollars). Cook County has agreed not to contest any request by Class Counsel for an award up to this amount. Cook County agrees that it will pay attorneys’ fees and expenses in two installments: the first shall be made within 35 days following the Court’s final approval of the settlement and shall be in the amount of half of the fees awarded and the entirety of the costs awarded; the second installment shall be made on January 15, 2011 for the remaining balance. These precise dates are subject to the feasibility of the Cook County Comptroller.
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NOTICE AND CLAIMS PROCEDURE
17. Within twenty-three days after the Court has given its preliminary approval to this proposed settlement, notice of the proposed settlement, information about the date and time of the fairness hearing, and notice of a right to opt-out (for those members that have not previously received such opportunity) will be sent by first class mail to the last ascertainable address of each class member. As used herein, “opt-out” means a qualified class member who elects not to proceed under this agreement but elects to be removed from the class or instead elects to file an independent cause of action. All “opt-out” requests must be received by September 1, 2010. “Ascertainable” means the last known address as enhanced by the United States Postal Service change of address database. The cost of this notice shall be paid by defendant Cook County. In the event that this settlement obtains final approval from the Court, the cost of notice will be deducted from the sum reserved for payment of costs and administration expenses.
18. To participate in this settlement, each Class Member must submit a sworn Claim Form postmarked no later than September 1, 2010. The Claim Form must provide the information specified in Section 10(m) above and an affirmation under penalty of perjury that the information set forth is true and correct.
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19. The Class Notice will include a forwarding and return address, which will be a Post Office Box controlled by Class Counsel. Class Counsel shall provide Cook County and Sheriff with copies of all claim forms received.
20. Within 45 days of receipt of a claim form, class counsel shall determine whether the claimant appears to be a class member. Class counsel shall inform any claimant deemed by counsel not to be a class member of the reason for this determination and of the claimant’s right to petition the Court for a review of this determination.
21. Class counsel shall promptly notify Cook County and Sheriff of any determination that a claimant appears to be a class member. All such claims shall be paid by Cook County unless, within 30 days of receipt of any such certification, Cook County or Sheriff provides class counsel with written notice of its challenge that a particular claimant is a member of the class. Counsel for the parties shall meet and attempt to resolve any such challenges. If counsel failing to reach an agreement, the dispute shall be submitted to the Court for resolution. The Court specifically reserves jurisdiction to resolve any challenges to class membership. The determination by the Court will be final and nonappealable. Neither Cook County nor Sheriff shall be entitled to any costs, fees, or expenses associated with resolving any challenges to
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class membership. Class counsel shall be compensated from the administrative fund for their non-duplicative services in this regard at the rate set out in paragraph 14 above if, and only if, the claimant prevails.
DECEASED, DISSOLVED, BANKRUPT, OR INCAPACITATED CLASS MEMBERS
22. Where a Class Member is deceased and a payment is due to that Class Member, upon receipt of a proper notification and documentation, the settlement payment shall be made in accordance with Illinois law.
23. Where a Class Member has been declared bankrupt, or is the subject of an open and ongoing bankruptcy proceeding, and a payment is due to the Class Member, upon receipt of proper notification and documentation, the settlement payment shall be made to such Class Member in accordance with applicable United States Bankruptcy Code laws.
COMMUNICATIONS WITH THE CLASS
24. The Class Notice shall list Class Counsels’ addresses and phone numbers. Other than as provided for in this Stipulation, communications relating to the Action or this Settlement with persons receiving Class Notices and Potential Class Members shall be through Class Counsel. Nothing in this Stipulation shall be construed to pre-
-13-

Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 14 of 21 PageID #:3616
vent Cook County, Sheriff, their employees, agents or representatives from communicating with Potential Class Members or Class Members in the normal course of its operations.
CONDITIONS OF SETTLEMENT AND EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION OF STIPULATION
25. If the Court disapproves this Stipulation or fails to rule, or if the Court enters the Final Judgment but it is reversed or vacated on appeal, this Stipulation shall be null and void and of no force and effect. If the Court materially modifies any provision of the Stipulation or proposed Final Judgment, or if either is materially modified on appeal or remanded to the Court for modification, with Cook County and Sheriff determining what is “material” in the use of its reasonable discretion, Cook County, Sheriff or Class Counsel shall have the option of terminating this Stipulation and withdrawing this consent to the entry of the Final Judgment, in which case this Stipulation shall be null and void and of no force and effect.
26. If any financial obligation is imposed upon Cook County in addition to or greater than those specifically set out in this Stipulation, Cook County may withdraw its consent to the entry of the Final Judgment, in which case this Stipulation shall be null and void and of no force and effect. In addition, Cook County or Sheriff, at their option, may withdraw its consent to the entry of the Final Judgment if more
-14-

Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 15 of 21 PageID #:3617
than twenty (20%) percent of the qualified class members opt out of this litigation.
27. The “Effective Date” of this Stipulation shall be the date on which the Court enters an order approving this proposed settlement and subject to paragraph 25 supra.
OBJECTIONS AND REQUESTS FOR EXCLUSION
28. Potential Class Members who have not previously been afforded an opportunity to opt-out of this case may exclude themselves from this settlement by submitting a written request for exclusion by date of the final settlement hearing. Written requests for exclusion must be signed and include the Potential Class Member’s name, address, and telephone number, and expressly state the desire to be excluded from the case. Any class member who has not filed a timely request for exclusion may file a notice of intent to object to the proposed settlement. The written notice of intent to object must be filed with the Clerk of the Court not later than September 10, 2010.
29. Defendants propose that Class Counsel agree that any representation, encouragement, solicitation or other assistance, including but not limited to referral to other counsel, to any person seeking exclusion from the Settlement Class, or any other person seeking to litigate with Cook County, Sheriff of Cook County or their employees over
-15-

Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 16 of 21 PageID #:3618
any of the Released Claims or represent any form of opt-out class from this Settlement, would place Class Counsel in an untenable conflict of interest with the Settlement Class. Class counsel disagree that there would be a conflict of any sort. The parties have agreed to submit this dispute to the Court for resolution. If the Court concludes that there would be a conflict of interest with the Settlement Counsel, defendants ask the Court to order Class Counsel and their respective firms, as well as all other counsel of record in the Action for the Named Plaintiffs, not to represent, encourage, solicit any person in requesting exclusion from the Settlement Class or to benefit financially from any referral. In addition, defendants ask the Court to order Class Counsel and their respective firms not to represent, encourage, solicit or otherwise assist any person who requests exclusion from the Settlement Class, or seeks to represent any form of opt-out class from this Settlement, or any other person, in any subsequent litigation that person may enter into with Cook County, Sheriff of Cook County or their employees regarding the Released Claims or any related claims of this settlement.
REPRESENTATIONS AND WARRANTIES
30. Plaintiffs and Class Counsel warrant and represent that no promise or inducement has been offered or made for the Release in paragraphs 31-32 except as set forth herein, that the Release is executed
-16-

Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 17 of 21 PageID #:3619
without any reliance whatsoever on any statements or representations not contained herein, including but not limited to any statements, conduct, disclosure or non-disclosure or representations regarding discovery in the Action, and that the Release reflects the entire agreement among the parties with respect to the terms of the Release. The warranties and representations made herein shall survive the execution and delivering of the Release and shall be binding upon the parties' heirs, representatives, successors and assigns.
RELEASES
31. Upon the Effective Date, Plaintiffs, all Class Members, and their heirs, trustees, executors, administrators, principals, beneficiaries, assigns and successors will be bound by the Final Judgment and conclusively deemed to have fully released, acquitted and forever discharged, as defined in paragraph 10(j).
32. All people and entities who meet the Class Definition and who have not timely filed “opt out” forms shall be forever barred from prosecuting their own lawsuit asserting any of the claims at issue in this litigation and they and their heirs, executors, administrators, representatives, agents, partners, successors and assigns shall be deemed to have fully released and forever discharged the Released Persons (defined below) from all Released Claims (defined below).
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Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 18 of 21 PageID #:3620
a. “Released Persons” means County of Cook and the Sheriff of Cook County each of their past or present directors, officers, employees, agents, Board members, attorneys, advisors, consultants, representatives, partners, affiliates, parents, subsidiaries, related companies, and divisions, and each of their predecessors, successors, heirs and assigns.
b. “Released Claims” are as defined in paragraph 10(j) above.
MISCELLANEOUS PROVISIONS
33. The parties hereto and their undersigned counsel agree to undertake their best efforts and mutually cooperate to effectuate this Stipulation and the terms of the proposed settlement set forth herein, including taking all steps and efforts contemplated by this Stipulation, and any other steps and efforts which may become necessary by order of the Court or otherwise. The parties hereto further agree to defend this Stipulation against objections made to final approval of the Settlement or in any appeal of the Final Judgment or collateral attack on the Stipulation or Final Judgment. Class Counsel will not seek from Cook County any additional compensation, including attorney fees, cost, expenses or reimbursements for any work that may be involved in defending this agreement.
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Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 19 of 21 PageID #:3621
34. The undersigned counsel represent that they are fully authorized to execute and enter into the terms and conditions of this Stipulation on behalf of their respective clients. This agreement is subject to formal approval by the Cook County Board, which is expected on July 14, 2010.
35. Except as otherwise provided between the parties, this Stipulation contains the entire agreement between the parties hereto, and supersedes any prior agreements or understandings between them. All terms of this Stipulation are contractual and not mere recitals, and shall be construed as if drafted by all parties hereto. The terms of this Stipulation are and shall be binding upon each of the parties hereto, their agents, attorneys, employees, successors and assigns, and upon all other persons claiming any interest in the subject matter hereof through any of the parties hereto, including any Class Member.
36. To the extent permitted by law, this Stipulation may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of this Stipulation.
37. Enforcement and Reservation of Jurisdiction. The parties agree that the Court will reserve jurisdiction to enforce the pro-
-19-

Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 20 of 21 PageID #:3622
visions of this agreement and that the Court may, for good cause, adjust and reset the dates set out in paragraph 18 above for a reasonable period following final approval of this settlement. If the Court approves the settlement, it will enter an order of dismissal that will dismiss the litigation with prejudice as to all Class Members, except those persons who have timely filed “opt out” forms.

Agreed to, this 24th day of June, by the party representatives be-

low who have affixed their signatures showing their assent to the above

Class Settlement Agreement.

Plaintiffs’ Counsel:

/s/ Kenneth N. Flaxman Kenneth N. Flaxman 200 S. Michigan Ave Suite 1240 Chicago, IL 60604-2430 (312) 427-3200

/s/ Thomas G. Morrisey Thomas G. Morrissey 10249 S. Western Ave Chicago, IL 60643 (773) 233-7900

The County of Cook is represented in the litigation by:
/s/ Mary McClellan, ASA (with consent) Mary McClellan, ASA Cook County State's Attorney's Office Richard J. Daley Center 50 W. Washington Room 500 Chicago, IL 60602 (312) 603-6572
The Sheriff of Cook County is represented in the litigation by:
Daniel F. Gallather (with consent)
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Case: 1:07-cv-03889 Document #: 319 Filed: 09/16/10 Page 21 of 21 PageID #:3623 Daniel F. Gallagher Querrey & Harrow, Ltd. 175 W. Jackson Street 16th Floor Chicago, IL 60604 (312) 540-7674
-21-

 
 Case 1:07-cv-03889 Document 38 Filed 10/24/2007 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DERRICK PHIPPS, et al., Plaintiffs, -vs-
SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS,
Defendants.

) ) ) ) No. 07 CV 3889 ) ) (Judge Bucklo) ) ) ) )

PLAINTIFF’S MOTION TO CERTIFY CASE AS A CLASS ACTION
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, plaintiffs, by counsel, moves the Court to order that this case may be maintained as a class action on behalf of:
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 Americans with Disabilities Act of 1990(ADA) and §504 of the Rehabilitation Act of 1973.
Grounds for this motion are as follows:
1. Title II of the ADA, 42 U.S.C. §12132, provides in pertinent part 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."
2. Each member of the proposed class of "former and current wheelchair bound inmates" is a person with a "disability" under the ADA: a person

Case 1:07-cv-03889 Document 38 Filed 10/24/2007 Page 2 of 6 - 2-
who is wheelchair bound is unable to perform the essential life function of walking and, as the Court recognized in Barnes v. Gorman, 536 U.S. 181 (2002), is "disabled" under the standards of the ADA and the Rehabilitation Act.
3. Plaintiffs have been unable to determine the precise number of wheelchair bound inmates who have been at the jail after July 11, 2005. Plaintiffs’ counsel identiﬁed 14 additional class members in the four week period between August 29, 2007 to September 26, 2007, Afﬁdavits from these members of the putative class are attached as Exhibit 1. Based on their experience in other class actions at the jail, plaintiffs’ counsel expect that the class will include more than 50 wheelchair bound individuals and satisfy the numerosity requirement of Rule 23(a). Hernandez v. Chase Bank USA, N.A., 243 F.R.D. 285, 287 (N.D.Ill. 2006) (citing McCabe v. Crawford & Co., 210 F.R.D. 631 (N.D.Ill. 2002) for proposition that "a class of forty is generally sufﬁcient to satisfy Rule 23(a)(1).")
4. Counsel for the parties will be able to determine the identity and number of class members by examining records maintained by the jail and by Cermak Hospital. Plaintiffs therefore request that the Court conditionally conclude that the proposed class satisﬁes the numerosity requirement of Rule 23(a), subject to reconsideration after counsel have examined the relevant records. See, e.g., Kilgo v. Bowman Transp., Inc., 789 F.2d 859 (11th Cir. 1986).
5. Plaintiffs contend that the jail fails to provide appropriate shower facilities and appropriate toilet facilities for wheelchair bound persons. 1 As in Love

Case 1:07-cv-03889 Document 38 Filed 10/24/2007 Page 3 of 6 - 3-

v. Westville, 103 F.3d 558 (7th Cir. 1996), these allegations present "a textbook example of a traditional ADA claim based on the denial of access to services, programs, and activities, based on his physical disability." Id. at 559.

6. Each of the named plaintiffs alleges that he was denied access to appropriate shower facilities and appropriate toilet facilities for wheelchair bound persons. (Amended Complaint, pars. 5-9 (Phipps), pars. 10-11 (House), pars. 12-13 (Courtney), and pars. 14-15 (Grant).)

7. The claims of the named plaintiffs are typical of those of the class:

a. Wheelchair bound prisoners are housed at the jail in its "RTU Unit" and in rooms in the Cermak Health Services building.

b. Plaintiff’s expert, Ken Schoonover, P.E., has inspected the cells in which the named plaintiffs were housed in the "RTU Unit" and at Cermak Health Services. A copy of his report is attached as Exhibit 2.

c. Mr. Schoonover is a Professional Engineer who has worked with

accessibility standards, codes and regulations for more than

30

years, and was a "Public Member" of the United States Architectural

and Transportation Barriers Compliance Board (Access Board), from

_______________
1. The complaint also alleges that the jail fails to provide appropriate "appropriate beds for wheelchair bound persons." (Amended Complaint, par. 5.) Plaintiffs do not seek class certiﬁcation on this issue.

Case 1:07-cv-03889 Document 38 Filed 10/24/2007 Page 4 of 6 - 4-

1998 to March 2005.

d. Mr. Schoonover concluded that "RTU Units C2 and E1 are not readily accessible to and usable by people with disabilities because of inaccessible sinks, toilets, showers and tables." (Schoonover Report vii, reproduced infra at Exhibit 2.)

e. Mr. Schoonover reached identical conclusion about the rooms in the Cermak Health Services building in which plaintiffs were housed (Schoonover Report vii):

patient the named

i. Cermak Health Services 3N Rooms 3247, 3237, 3233, 3231, 3229, 3225, 3213 and 3205 are not readily accessible to and usable by people with disabilities because of inaccessible combination toilet/sink ﬁxtures. Room 3243 has a different style toilet/sink ﬁxture that is of a type designed to be accessible, but the installation is not fully compliant.

ii. Cermak Health Services 3N Shower Rooms 3242 and 3204 are not readily accessible to and usable by people with disabilities because of inaccessible shower units and soap dispensers.

iii. Cermak Health Services 3N Sitz bath room 3248 is not readily accessible to and usable by people with disabilities because of an inaccessible sitz bath ﬁxture and an inaccessible control.

f. The facilities provided to the four named plaintiffs are typical of those provided to the members of the proposed class: Plaintiffs attach to this motion as Exhibit 1 sworn declarations from fourteen

Case 1:07-cv-03889 Document 38 Filed 10/24/2007 Page 5 of 6 - 5-

wheelchair bound persons who are, or were, conﬁned at the jail and who were subject to discrimination because of their disability.

8. Plaintiffs’ claims of discrimination presents common questions of fact and law, including the following:

a. Are wheelchair bound persons conﬁned at the Cook County Jail denied access to shower facilities, wash basins, sinks, and toilet facilities which are appropriate for wheelchair bound persons?

b. Does any such denial of access to shower facilities, wash basins, sinks, and toilet facilities violate the ADA or the Rehabilitation Act?

9. Plaintiffs are represented by competent counsel and will fully and adequately represent each subclass.

10. Class certiﬁcation is appropriate under Rule 23(b)(3) because common

questions predominate over individual issues — questions about the ade-

quacy of shower facilities, wash basins, sinks and

toilet facilities for

wheelchair bound persons are issues that "readily may be resolved for a

class as whole," Murray v. GMAC Mortgage Corp., 434 F.3d 948, 956

(7th Cir. 2006) — and a class action is superior to other methods for the

fair and effective adjudication of the controversy. See, e.g., Robledo v.

City of Chicago, 444 F.Supp.2d 895, 908 (N.D.Ill. 2006); Bullock v.

Sheahan, 225 F.R.D. 227, 230 (N.D.Ill. 2004).

Case 1:07-cv-03889 Document 38 Filed 10/24/2007 Page 6 of 6 - 6-

It is therefore respectfully requested that the Court order that proceed as a class action under Rule 23(b)(3) on behalf of:

the case

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 Americans with Disabilities Act of 1990(ADA) and §504 of the Rehabilitation Act of 1973.

/s/ Kenneth N. Flaxman ________________________
KENNETH N. FLAXMAN ARDC No. 830399 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)
THOMAS G. MORRISSEY 10249 South Western Avenue Chicago, Illinois 60643 (773) 233-7900 (phone) (773) 239-0387 (fax) tgmlaw@ameritech.net
ROBERT H. FARLEY, JR., LTD. 1155 South Washington Naperville, Illinois 60540 (630) 369-0103
attorneys for plaintiffs

 
 Case 1:07-cv-03889 Document 103 Filed 10/02/2008 Page 1 of 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al., Plaintiff,
vs. Sheriff of Cook County and Cook County,
Defendants.

)

)

)

07 C 3889

)

)

Honorable Judge

)

Elaine Bucklo

)

)

Magistrate Judge Cole

)

DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S HIPPA FORMS NOW COMES Defendant COOK COUNTY, by its attorney RICHARD A. DEVINE, State's Attorney of Cook County, through his assistant, JAMIE M. SHEEHAN, and moves this Honorab le Court to strike all HIPAA forms submitted by plaintiff by defendant. In support thereof, Defendant states as follows:
INTRODUCTION On September 11, 2008, this Court held a discovery status. Counsels for the plaintiffs, Messrs. Flaxman and Morrissey wer e both present, as were the undersigned counsel for the County and Ms. McClellan, counsel for the Sheriff. The topic was the waivers tendered by the plaintiff’s pursuant to HIPPA relative to the identification of possible class members. During our conversa tion the Court agreed with counsel for the County that the releases tendered should comply with the following; First, that all forms be obtained only from individuals whom, after answering a few qualifying questions posed by Messrs. Flaxman and Morrissey, appeared likely to be disabled within the meaning of the ADA and fit the class as defined by plaintiff’s in the motion for class certification. Second, that only the Cermak authorization form be used. Third, that the

Case 1:07-cv-03889 Document 103 Filed 10/02/2008 Page 2 of 4
form be signed by the proposed plaintif f. And fourth that it be executed solely for the purpose of obtaining the individuals medical records relative to this litigation. To date, none of the thirty-four forms submitted by Messrs. Flaxman and Morrissey meet these criteria. Thus, defendant moves that they be stricken and that counsel for the plaintiff be made to obtain newly executed forms which are compliant, and that they not be allowed to merely redact forms the forms they already possess as this would be barred by law because they would be mat erial alterations made to the form subsequent to the individual having signed them.
ARGUMENT A. THE FORMS AS EXECUTED SEEK DOCUMENTS NOT RELEVANT TO
THE CASE AT BAR Several of the forms provided have been marked in such a way that they order the County to provide not only the individual’s medical records, but his HIV/AIDS status information, as well as his mental health records. Given that plaintiff’s counsel has defined the class in this case to include individuals who were confined to wheelchairs due to an ADA qualified disability, an individual’s HIV/AIDS status is irrelevant, as is an individual’s psychiatric records. Counsel for the County telephoned Mr. Morrissey and raised this issue with him. His “cure” was to suggest that I redact the forms, black ening out the portions requesting HIV/AIDS information and psychiatric records, prior to submitting them to my client. I explained that to do so would be illegal because I would be making material alterations to the forms, outside the presence of the signa tory and without their permission. I requested that Messrs. Flaxman and Morrissey obtain corrected forms from their clients, however, he declined to do so.

Case 1:07-cv-03889 Document 103 Filed 10/02/2008 Page 3 of 4

Therefore, defendant Cook County requests that the Court direct that these forms

be stricken and tha t new forms which request only the individual’s medical records be

provided.

B. THE FORMS AS EXECUTED ARE FOR A PERIOD OF TIME IN EXCESS OF THAT NEEDED FOR THIS PARTICULAR LITIGATION

Once the County is in receipt of a signed HIPAA waiver, those files are

pulled

within thirty days. Admittedly, however, it does take a longer period of time to

photocopy said documents, but that is in no way relevant to the date of validity

wherein

that date is relevant only to the time frame in which the documents must be pro cured.

Several of the forms submitted by Messrs. Flaxman and Morrissey have validity

dates that expire on December 31, 2009 and some go as far out as December 31, 20 10,

more than two years from now . This can only mean that counsels expect to hold on to

these forms and have them at their disposal for future litigation against th

e County.

Defendant Cook County therefore requests that these forms be stricken and that new

forms be executed by these individuals where redaction is not an option under the law.

C. THE ONLY ACCEPTABLE FORM TO BE USED, PER THE COURT’S DIRECTIVE, IS THE CERMAK HEALTH SERVICES FORM

Despite the Court agreeing with counsel for the County that one uniform type of

waiver be used, specifically the Cermak Health Services form, Messrs. Flaxma n and

Morrissey have nevertheless sent forms supplied by Record Copy Service which is not

even a HIPAA waiver, but is a form granting permission to photocopy certain documents,

and must always be used in conjunction with a properly executed HIPAA form.

Therefore, defendant Cook County asks that any forms of this nature be stricken and that

a properly executed Cermak HIPPA form be tendered in its place.

Case 1:07-cv-03889 Document 103 Filed 10/02/2008 Page 4 of 4
CONCLUSION To date , of the thirty-four HIPPA forms submitted by Messrs. Flaxman and Morrissey, eight seek both AIDS/HIV medical information and psychiatric records in addition to the relevant medical records, while another four seek psychiatric records in addition to the relevant medical records. Of the thirty-four forms submitted, twenty-three have validity dates of December 31, 2009 and an additional nine have dates of December 31, 2010. Of the thirty-four forms submitted, two are forms provided by Record Copy Services and are not Cermak Health Services forms. WHEREFORE YOUR DEFENDANT PRAYS: That the forms submitted by Messrs. Flaxman and Morrissey be stricken and that plaintiff’s counsel be directed to obtain newly executed forms which comply as to type of form used, validity date, and scope of authorization be submitted in their place.
Respectfully Submitted, RICHARD A. DEVINE State's Attorney of Cook County By: __S/ Jamie M. Sheehan_______ Jamie M. Sheehan ARDC # 6257647 Assistant State’s Attorney 500 Richard J. Daley Center Chicago, IL 60602 (312) 603-6772

 
 Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al.,

)

Plaintiffs )

)

-vs-

) No. 07 CV 3889

)

Sheriff of Cook County and Cook ) (Magistrate Judge Cole)

County,

)

)

Defendants. )

PLAINTIFFS’ RENEWED MOTION FOR ENTRY OF A QUALIFIED PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, and 45 C.F.R. 164.512 (e)(1), plaintiffs, by counsel, move the Court to reconsider the entry of a Qualified Protective Order for the release of medical records of current and former inmates at the Cook County Department of Corrections.
In support of this motion, plaintiffs state as follows: 1. Plaintiffs have identified 204 prisoners from “transportation logs” who are likely class members. Defendants have refused to produce medical records for any of those putative class members until plaintiffs produce a medical consent form signed by the putative class member.

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 2 of 25
2. On August 5, 2008, the Court denied without prejudice plaintiffs’ motion to compel defendants to produce medical records of putative class members subject to a protective order. (Docket 97).
3. All parties have an interest in determining the actual number of class members. Plaintiffs will use this information to formulate their strategy about the appropriate remedy; defendant Sheriff expects to use information about the actual size of the class to decertify the class. (Def. Motion for Extension of Time to Complete Discovery, Docket 122.)
4. The issue of whether class members medical records can be disclosed without the prior consent of the individual patients was recently addressed by Judge Hart in Williams v. Blagojevich, No. 05 CV 4673 (January 2, 2008) (attached as Exhibit 1). There, Judge Hart concluded that, subject to a protective order, records were to be produced “without requiring the specific consent of the individual patient.” The pertinent portion of the court’s opinion is set out below:
All the motions to quash raise the issue of privacy concerns regarding the expert examining medical records of the residents without first obtaining the consent of the residents. Protective orders are in place requiring that plaintiffs’ experts and others involved in this litigation keep the medical information confidential, whether the IMD resident is a class member or not. The protective orders comply with requirements of the Health
-2-

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 3 of 25

Insurance Portability and Accountabilty Act (“HIPAA”) that allow disclosure of medical records for litigation purposes without requiring the specific consent of the individual patient. (emphasis supplied)
Williams, supra, Mem.Op., January 2, 2008, 4.

5.

The entry of a protective order covering the review of medical

records of prisoners at the Cook County Jail to assist the attorneys

prosecuting and defending class actions is not uncommon. Recently, a

protective order covering record “protected health information” for a class

consisting of current and former inmates at the Cook County Jail was

entered on November 26, 2008 by Judge Kennelly in Parish v. Sheriff of Cook

County, 07 CV 4369, attached as Exhibit 2.

6. The disclosure of protected health information in the course of

litigation is permitted under 45 C.F.R. 164.512 (e)(1) pursuant to a court

order. A proposed protected order is tendered with this motion as Exhibit 3.

-3-

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 4 of 25
It is therefore respectfully requested that the Court enter a Qualified Protective Order for the release of medical records of current and former inmates at the Cook County Department of Corrections.
/s/ Kenneth N. Flaxman Kenneth N. Flaxman ARDC 830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604 (312) 427-3200 Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, IL. 60643 (773) 233-7900 Attorneys for the Plaintiff Class
-4-

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 5 of 25
Exhibit 1

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 6 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 7 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 8 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 9 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 10 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 11 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 12 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 13 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 14 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 15 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 16 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 17 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 18 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 19 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 20 of 25

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 21 of 25
Exhibit 2

CaCsaes1e:017:0-7cv-c-0v-308483969 DoDcoucmuemnetn1t3623 FFilieledd1121/1/206/2/2000088 PPaaggee212ooff325

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS EASTERN DIVISION

Michael Parish, et al., Plaintiffs, -vs-
Sheriff of Cook County and Cook County,
Defendants.

) ) ) ) No. 07 CV 4369 ) ) (Judge Kennelly) ) ) ) )

PROTECTIVE ORDER
Pursuant to Rule 26 (c) of the Federal Rules of Civil Procedure and 45 C.F.R. §164.512(e)(1), the Court finds good cause for the issuance of a protective order and ORDERS as follows:
1. The parties and their attorneys are hereby authorized to receive, subpoena and transmit “protected health information” pertaining to all persons confined at the Cook County Department of Corrections on and after August 3, 2005 to the extent and subject to the conditions outlined herein.
2. For the purposes of this protective order, “protected health information” shall have the same scope and definition as set forth in 45 C.F.R. §160.103 and §164. 501. Protected health information includes, but is not limited to, health information, including demographic information, relating to either (a) the past, present, or future physical or mental condition of an individual, (b) the provision of care to an individual or (c) the payment for care provided to an individual or which reasonably could be expected to identify the individual.

CaCsaes1e:017:0-7cv-c-0v-308483969 DoDcoucmuemnetn1t3623 FFilieledd1121/1/206/2/2000088 PPaaggee223ooff325
3. All “covered entities” (as defined by 45 C.F.R. §160.13) are hereby authorized to disclose protected health information pertaining to all persons confined at the Cook County Department of Corrections on and after August 3, 2005 to attorneys representing the plaintiff class and defendants in the above captioned litigation.
4. The parties and their attorneys are hereby authorized to use and disclose the protected health information of persons confined at the Cook County Department of Corrections on and after August 3, 2005 for the prosecution or defense of this action, including any appeals. This includes, but is not limited to disclosure to experts, consultants, court personnel, court reporters, copy services, trial consultants, and other entities or persons involved in the litigation process.
5. Before disclosing protected health information of any persons confined at the Cook County Department of Corrections on and after August 3, 2005 to persons involved in this litigation, counsel shall inform each such person that the protected health information may not be used or disclosed for any purpose other than this litigation. Counsel shall take all other reasonable steps to ensure that persons receiving the protected health information do not use or disclose such information for any purpose other than the prosecution or defense of this litigation.
6. Within 45 days after the conclusion of the litigation including appeals, the parties , their attorneys, and any person or entity in possession of protected health information received from counsel pursuant to paragraph four of this Order, shall return the protected health information to the covered entity or destroy any and all copies of protected health information pertaining to current and former persons confined at the Cook County Department of Corrections, except counsel are not required to secure the return or destruction of protected health information submitted to the court.
7. This Order does not control or limit the use of protected health information that comes into the possession of the parties or their attorneys from a source other than a “covered entity,” as that term is defined in 45 C.F.R.

CaCsaes1e:017:0-7cv-c-0v-308483969 DoDcoucmuemnetn1t3623 FFilieledd1121/1/206/2/2000088 PPaaggee234ooff325
§160.103.
8. Nothing in this Order authorizes counsel for the Defendants to obtain medical records or information through means other than formal discovery requests, subpoenas, depositions, pursuant to a patient authorization, or other lawful process.
9. This Order does not authorize either party to seal court filings or court proceedings. The Court will make a good cause determination for filing under seal if and when the parties seek to file Plaintiff’s protected health information under seal.
DATED: November 26, 2008 Enter: ___________________________ Matthew F. Kennelly United States District Judge

Case 1:07-cv-03889 Document 132 Filed 12/10/2008 Page 25 of 25
CERTIFICATE OF SERVICE
I hereby certify that on the 10th day of December, 2008, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Jamie Melissa Sheehan, Ass’t State’s Atty, 50 W Washington St, Room 500, Chicago, IL 60602, and Daniel Francis Gallagher, Esq., Querrey & Harrow, Ltd., 175 W Jackson Blvd, Ste 1600, Chicago, IL 60604-2827 , and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 
 Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al., Plaintiffs -vs-
Sheriff of Cook County and Cook County,
Defendants.

) ) ) ) ) No. 07 CV 3889 ) ) (Judge Bucklo) ) ) )

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON LIABILITY

For many years, defendants, the Sheriff of Cook County and Cook

County, have ignored their duty to accommodate the needs of wheelchair

bound detainees at the Cook County Jail. Plaintiffs have been harmed by

defendants’ disregard of federal law and bring this damages action pursuant

to the Rehabilitation Act, U.S.C. §794, and Title II of the Americans with

Disabilities Act (―ADA‖), 42 U.S.C. §§12131-12165 et seq.

Now before the Court is the motion of the plaintiff class for summary

judgment on liability on their claims concerning accessible toilets, sinks, and

shower facilities.1 Plaintiffs discuss in Part I of this memorandum the impor-

tance of these facilities to wheelchair bound detainees. Plaintiffs then set out

1 Pursuant to the Court’s order of March 26, 2008, this case is proceeding as a class action for
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.

Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 2 of 16
the statutory and regulatory framework of the Rehabilitation Act and the ADA in Part II, and show in Part III that defendants have violated these statutes and their implementing regulations. Plaintiffs demonstrate in Part IV that defendants are unable to show that accommodating the special needs of wheelchair bound detainees would impose an undue burden on the jail.
I. The Importance of Accessible Toilets, Sinks, and Shower Facilities to Wheelchair Bound Detainees
Persons who are wheelchair bound require special toilets, showers, and lavatories. (Plaintiffs’ Rule 56 Statement, ¶¶49-60.) Many wheelchair bound persons rely on a suppository to stimulate a bowel movement and must sit on the toilet for thirty minutes waiting for the medication to take effect. (Plaintiffs’ Rule 56 Statement, ¶¶36, 56.) It is easy for the wheelchair bound detainee to fall of the toilet if there is no grab bar. (Plaintiffs’ Rule 56 Statement, ¶¶36, 64) And it is difficult for the wheelchair bound detainee to transfer to and from a conventional toilet, which is much lower than an ―accessible toilet.‖ (Plaintiffs’ Rule 56 Statement, ¶56.) Moreover, sitting on a low toilet can be painful. (Plaintiffs’ Rule 56 Statement, ¶51.)
An accessible lavatory (or sink) is especially important to wheelchair bound detainees at the Cook County Jail, which does not provide laundry service, but requires detainees to wash their underwear in the lavatory. (Plaintiffs’ Rule 56 Statement, ¶60.) The jail does not provide one-time use catheters (Plaintiffs’ Rule 56 Statement, ¶57), and a catheterized detainee must wash his catheter, as best he can, in the lavatory. (Plaintiffs’ Rule 56
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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 3 of 16
Statement, ¶60.) These tasks are impossible for a wheelchair bound detainee who is unable to reach the sink.
Wheelchair accessible showers are the final aspect of accommodation presented by plaintiffs’ motion for summary judgment. Showers are important to wheelchair bound detainees, who are otherwise unable to attend to personal hygiene needs. (Plaintiffs’ Rule 56 Statement, ¶36.) Many wheelchair bound detainees are unable to shower without an appropriate shower chair. (Plaintiffs’ Rule 56 Statement, ¶¶36, 44, 55, 61.)
II. The Statutory Framework
A. The Rehabilitation Act Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, provides in pertinent part as follows: No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. The Rehabilitation Act applies to all of the operations of a unit of local government, as well as the operations of any instrumentality of a local government, when the local government received federal financial assistance.2 29 U.S.C §794(b). Defendants are subject to the Rehabilitation Act because Cook
2 Congress amended the Rehabilitation Act in the Civil Rights Restoration Act of 1987, Pub.L. No. 100-259, 102 Stat. 28, to overrule Grove City College v. Bell, 465 U.S. 555 (1984) and make the Rehabilitation Act and several other statutes apply to an entire entity if any portion of that entity received federal funds.
-3-

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County receives money from the federal government. (Plaintiffs’ Rule 56 Statement, ¶6.)
The Rehabilitation Act is implemented by regulations issued by the Department of Justice and found at 28 C.F.R. §42.501 et seq.
28 C.F.R. §42.521 applies to facilities in existence on June 3, 1980, such as the ―RTU‖ at the Cook County Jail. (Plaintiffs’ Rule 56 Statement, ¶7.) The rule requires that such facilities become ―readily accessible to and usable by handicapped persons,‖ 28 C.F.R. §42.521(a), within three years.3 28 C.F.R. §42.521(d). Defendants have ignored this rule.
28 C.F.R. §42.522 applies to facilities constructed or modified after June 3, 1980, such as Cermak Hospital (Plaintiffs’ Rule 56 Statement, ¶8) and Division 2. (Plaintiffs’ Rule 56 Statement, ¶10.) The regulation requires that any new or modified facility be ―readily accessible to and usable by handicapped persons‖ 28 C.F.R. §42.522(a), by complying with the ―Uniform Federal Accessibility Standards‖ (―UFAS‖). 28 C.F.R. §42.522(b). The ―UFAS‖ standards set out detailed specifications, inter alia, for accessible lavatories, toilets, and showers in jails. (Plaintiffs’ Rule 56 Statement, ¶9.) Defendants have also ignored this rule.
3 This regulation was originally adopted in 1980 and was reissued on August 26, 2003 to respond to the suggestion in Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999) that regulations issued before enactment of the Civil Rights Restoration Act of 1987, see note 2 above, were invalid. 68 FR 51364, 51335 (August 26, 2003).
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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 5 of 16
B. The Americans with Disabilities Act Title II of the Americans with Disabilities Act (―ADA‖), 42 U.S.C. §§12131-12165 et seq., requires ―public entities‖ to accommodate the needs of persons with disabilities. The Sheriff of Cook County and Cook County are ―public entities‖ subject to the ADA. (Plaintiffs’ Rule 56 Statement, ¶11.) Title II of the ADA requires the Attorney General to promulgate regulations to implement the statute. 42 U.S.C. §12134(a). The regulations adopted by the Attorney General required defendants to modify the RTU ―to avoid discrimination on the basis of disability.‖4 Defendants ignored this rule and failed to retrofit existing fixtures and make simple changes in policies that would have minimized discrimination against wheelchair bound detainees. The regulations also provide that any facility of a ―public entity‖ which is constructed or altered after January 26, 1992 (such as Cermak Hospital or Division 2), must be ―readily accessible to and usable by individuals with disabilities.‖ 28 C.F.R. §35.151(a), (b). The ADA regulations require compliance with either the Uniform Federal Accessibility Standards (―UFAS‖) of the Rehabilitation Act or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (―ADAAG‖). 28 C.F.R. §35.151(c).
4 28 C.F.R. §35.130(b)(7) provide, in pertinent part, that ―[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.‖
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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 6 of 16
Defendants failed to comply with these standards in constructing Cermak Hospital and retrofitting Division 2.
C. Differences between the Rehabilitation Act and the ADA Although ―[t]he Rehabilitation Act is materially identical to and the model for the ADA,‖ Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 483 (7th Cir. 1997), there are significant differences in the regulations implementing the two statutes. The regulations implementing the Rehabilitation Act allowed a three year grace period (which began no later than August 26, 2003, see note 3 above), for recipients of federal aid to make existing facilities ―readily accessible and usable by handicapped persons.‖ 28 C.F.R. §42.521(a). The ADA imposes a lesser burden on public entities, requiring modifications ―to avoid discrimination on the basis of disability.‖ 28 C.F.R. §35.130(b)(7). The regulations also differ for new construction or alterations to existing facilities. The Rehabilitation Act requires compliance with the Uniform Federal Accessibility Standards (―UFAS‖). 28 C.F.R. §42.522(b). The ADA allows use of the standards of either the UFAS or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (―ADAAG‖). 28 C.F.R. §35.151(c).
III. The Cook County Jail Does Not Comply with the Accessibility Requirements of Federal Law
The Rehabilitation Act, the ADA, and the accompanying regulations promulgated require defendants to operate the Cook County Jail so that it is
-6-

Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 7 of 16
―readily accessible and usable‖ by handicapped persons, 28 C.F.R. §42.521(a), and ―individuals with disabilities.‖ 28 C.F.R. §35.150(a). Defendants have failed to make the jail accessible to the wheelchair bound detainees in the plaintiff class and have thereby violated the Rehabilitation Act and the ADA.
One way to make a jail accessible for wheelchair bound detainees is to follow the design guidelines of the ―AFAS‖ or the ―ADAAG.‖ The core of the standards that apply to this case are illustrated in Exhibit 12. (Plaintiffs’ Rule 56 Statement, ¶12.) Relevant to plaintiffs’ motion for summary judgment are the requirements for
1. Toilets — height, accessibility, and grab bars. (Plaintiffs’ Rule 56 Statement, ¶13.)
2. Lavatories — height and accessibility. (Plaintiffs’ Rule 56 Statement, ¶14.)
3. Showers — height of the shower nozzle, shower controls, and soap shelf or dispenser. (Plaintiffs’ Rule 56 Statement, ¶15.)
A. Accessible Toilets An accessible toilet will have rear and side grab bars, clear floor space for wheelchair transfer, and an accessible flush valve, (Plaintiffs’ Rule 56 Statement, ¶15), as illustrated in page 3 of Plaintiff’s Exhibit 8:
-7-

Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 8 of 16
Neither of the two toilets in the intake area (―RCDC‖) is accessible for persons in wheelchairs. The toilets are too high and lack grab bars. (Plaintiffs’ Rule 56 Statement, ¶14.) The predictable result for class member David Knight is that he soiled himself while waiting in the intake area. (Plaintiffs’ Rule 56 Statement, ¶58.) The officers made him put his clothes in a garbage bag, but did not assist Knight to find soap and water to clean up. Id. Knight was required to wait in the holding cell wearing a garbage bag. Id.
The toilets in Cermak Hospital are not ADA compliant. (Plaintiffs’ Rule 56 Statement, ¶26.) For example, the toilet in Room 3247 — the typical fixture at Cermak Hospital — does not have enough clear floor space, is
-8-

Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 9 of 16
too far from the side wall, and does not have grab bars. (Plaintiffs’ Exhibit 10 at 7.)
Defendants’ expert revealed that he had reported to defendants – four or five years before this litigation began — that the toilets in the RTU did not comply with the ADA. (Plaintiffs’ Rule 56 Statement, ¶30.) These toilets were too low, too close to adjacent fixtures, and did not appropriate grab bars. (Plaintiffs’ Exhibit 10 at 7.)
Defendants’ expert conceded that defendants would not have incurred any undue financial expense if they had attempted to make the toilets in the RTU accessible for wheelchair bound detainees. (Plaintiffs’ Rule 56 Statement, ¶30.)
Defendants modified the toilets in Division 2 during the pendency of this case in an attempt to make those toilets wheelchair accessible. (Plaintiffs’ Rule 56 Statement, ¶34.) Plaintiffs’ expert reported on October 22, 2008
-9-

Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 10 of 16
that the toilets were not accessible. (Plaintiffs’ Exhibit 12.) Defendants sought to remedy some of the deficiencies in March of 2009 by installing grab bars, but failed to provide adequate clear floor space to approach the toilet, as illustrated in Plaintiffs’ Exhibit 12:
B. Accessible Lavatories The basic requirement for an accessible lavatory is clearance to allow a forward approach by a person using a wheelchair. (Plaintiffs’ Rule 56 Statement, ¶17.) With two potential exceptions,5 the lavatories in Cermak Hospital are inaccessible to a wheelchair bound person.
5 The lavatories in Rooms 3215 and 3243 are designed to be accessible. The experts disagree about whether the fixtures have been installed properly. Plaintiffs do not ask the Court to resolve this dispute on summary judgment and accept, for the purposes of their present motion, defendants’ contention that the lavatories in Rooms 3215 and 3243 are ADA compliant.
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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 11 of 16
A combination toilet-lavatory is found in most of the rooms in Cermak Hospital and is not ADA compliant because it fails to allow forward approach from a wheelchair. The lavatories in the RTU were similarly deficient: Defendants’ expert concedes that the lavatories in the RTU did not comply with the ADA. (Plaintiffs’ Rule 56 Statement, ¶20.) Defendants’ expert also agreed that correcting this problem would not have involved any undue financial expense. (Plaintiffs’ Rule 56 Statement, ¶30.)
Defendants modified the lavatories in Division 2 during the pendency of this case in an attempt to create two wheelchair accessible lavatories. (Plaintiffs’ Rule 56 Statement, 34.) These lavatories failed to provide enough knee space for a wheel chair bound detainee. (Plaintiffs’ Rule 56 Statement, ¶33.) Defendants installed two handicap accessible sinks in March of 2009. (Plaintiffs’ Rule 56 Statement, ¶34.) The handicap accessible sink is on the right in the photograph below:
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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 12 of 16

C. Showers

Plaintiff’s Exhibit _

To be wheelchair accessible, the shower nozzle and controls must be

not more than 48 inches above the floor. (Plaintiffs’ Rule 56 Statement, ¶18.)

None of the showers at the Cook County Jail meet these standards. (Plain-

tiffs’ Rule 56 Statement, ¶27. Detainees are forced to shower in their wheel-

chairs because the jail does not have appropriate shower chairs. (Plaintiffs’

Rule 56 Statement, ¶55.) Showering in a wheelchair is likely to damage the

wheelchair and doesn’t allow the detainee to ―reach underneath‖ and clean

all parts of his body. (Plaintiffs’ Rule 56 Statement, ¶36.)

D. Defendants Have Not Adopted “Other Curative Methods” In Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008), the Ninth Circuit held that the structural deficiencies in a detention facility would not
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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 13 of 16
violate the ADA if the facility employed ―reasonable alternative methods‖ to avoid discriminating against the disabled. Although the Seventh Circuit has not considered this issue, the record is plain in this case that defendants fail to employ any ―reasonable alternative methods.‖
Defendants do not require correctional officers or medical personnel to assist wheelchair bound detainees in using the toilet. (Plaintiffs’ Rule 56 Statement, ¶59.) Nor do defendants require staff to assist wheelchair bound detainees in using the non-handicap accessible sinks. (Plaintiffs’ Rule 56 Statement, ¶64) Finally, defendants do not require staff to assist wheelchair bound detainees to transfer from their wheelchair to a shower chair.
Defendants cannot plausibly maintain that each of the wheelchair bound detainees at the jail can be housed in the two ―ADA compatible‖ rooms in Cermak Hospital. First, defendants have assigned some wheelchair bound detainees to the dormitories in the RTU and subsequently to Division II. Second, wheelchair bound detainees are not afforded any priority for assignment into these two rooms; the Sheriff makes room assignments on a ―space available‖ basis, without regard to accessibility. (Plaintiffs’ Rule 56 Statement, ¶25.)
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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 14 of 16
IV. Complying with the Rehabilitation Act and the ADA Would Not Impose any “Undue Burden”
In Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir. 1996), the Seventh Circuit held that ADA violations at a prison are not actionable if, ―taking the prison context into account, no reasonable accommodations were possible.‖ Id. at 561 (emphasis in original). The Court made plain that this rule did not permit a financial defense: ―If Westville means that reasonable accommodations existed, but it did not want to spend the money to implement them, this argument is inconsistent with the premise of the ADA. ― Id. The record in this case leaves no doubt that reasonable accommodations were possible.
1. Intake: Defendants could long ago have provided an ADA compliant toilet in the receiving area, and instructed correctional officers and medical personnel to assist wheelchair bound detainees in getting to the toilet.
2. Room Assignment at Cermak: Defendants could have required that wheelchair bound detainees receive a priority in placement into one the two purportedly ―ADA‖ rooms.
3. Toilets in the ―ADA‖ rooms at Cermak: Defendants could have installed grab bars of appropriate length in the ―ADA‖ rooms at Cermak.
4. Lavatories in the ―ADA‖ rooms at Cermak: Defendants could have modified the floor layout to provide for sufficient approach room to the lavatory.
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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 15 of 16

5. The ―ADA‖ shower in Cermak: Defendants could have installed an

ADA compatible shower chair.

6. The RTU: Defendants could have installed accessible toilets with

grab bars, accessible sinks, and added an ADA compatible shower chair.

7. Division 2: Defendants could have installed appropriate grab bars,

removed a toilet to allow access to the ADA accessible toilet, and (as they did

after plaintiffs’ expert inspected Division 2), installed ADA accessible sinks.

V. Conclusion

For the reasons above stated, the Court should enter summary judg-

ment on liability in favor of the plaintiff class.

/s/ Kenneth N. Flaxman

Robert H. Farley, Jr. 1155 S Washington Naperville, Illinois 60540 (630)-369-0103

Thomas G, Morrissey 10249 S. Western Ave. Chicago, IL. 60643 (773) 233-7900

Kenneth N. Flaxman ARDC 830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604 (312) 427-3200

Attorneys for the Plaintiff Class

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Case 1:07-cv-03889 Document 166 Filed 06/30/2009 Page 16 of 16

CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of July, 2009, I electronically ﬁled the

foregoing with the Clerk of the Court using the CM/ECF system which

will

send notiﬁcation of such ﬁling to the following: Jamie M. Sheehan, Ass’t

State’s Atty, 50 W Washington St, Room 500, Chicago, IL 60602-0000, and

Daniel F. Gallagher, Querrey & Harrow, 175 W Jackson Blvd Ste 1600,

Chicago, IL 60604-2827, and I hereby certify that I have

mailed by United

States Postal Service the document to the following non CM/ECF participants:

none.

/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 
 Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION DERRICK PHIPPS, et al.

No. 07 C 3889

Plaintiff,

v.

Judge Elaine Bucklo

SHERIFF OF COOK COUNTY, and COOK COUNTY, ILLINOIS,

Magistrate Judge Cole

Defendants.

THE SHERIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
NOW COMES Defendant, Sheriff of Cook County, by and through his attorneys, Querrey & Harrow, Ltd., and moving for Summary Judgment, states as follows:
INTRODUCTION Increasing accessibility for disabled individuals is important. But limits to this endeavor exist. The ADA recognizes the logistical difficulties in making older buildings accessible. This burden is exacerbated in the correctional context. The prevalence of suicide and theft, along with inmates' penchant for makeshift weapons, mandate that security trump accessibility. Because Plaintiffs' claims are barred by the PLRA, swallowed by exceptions to the ADA, and precluded by precedent, summary judgment is proper. Plaintiffs' case fails because it lacks coherence. Instead of addressing the cause of action, Plaintiffs dredge up any issue with a hint of potential. The result is a disjointed suit: Plaintiffs sue for discrimination, yet base their claim on physical injuries. These "injuries" are preexisting conditions commonly suffered by wheelchair bound persons. Plaintiffs' deposition questions have become a referendum on the CCDOC's shower and toilet heights, items not even governed by the operative

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 2 of 15

ADA section. Underlying this kitchen-sink approach is Plaintiffs' novel theory: suing for disability

discrimination based on preexisting conditions.

BACKGROUND

The Sheriff adopts and incorporates herein the Background section of co-Defendant Cook

County set forth in the County's Summary Judgment Motion.

ARGUMENT

I.

Standard of Review.

Summary judgment is proper when there is no genuine issue as to any material fact and the

moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). Summary judgment

should be granted where the non-moving party "has failed to make a sufficient showing on an

essential element of her case with respect to which she has the burden of proof." Celotex v. Catrett,

477 U.S. 317, 322 (1986). Because the Sheriff satisfies the summary judgment standard, the Court

should grant this Motion.

II. Plaintiffs Did Not Exhaust Their Administrative Remedies.

This suit is barred by the Prison Litigation Reform Act ("PLRA"). 1 Under the PLRA, no

action may be brought regarding prison conditions unless the prisoner has exhausted administrative

remedies. 42 U.S.c. § 1997e(a). There is no exception under the PLRA for claims under the ADA.

Cassidy v. Indiana Dep't. ojCorr., 199 F.3d 374,376-77 (7th Cir. 2000). This Court applied the

exhaustion requirement to an ADA claim in Bolden v. Stroger, 2005 WL 283419 (N.D. Ill. 2005)

(Bucklo). A class of detainees claimed they were restricted from pre-release programs. The Court

found the claim concerned "prison conditions" because it involved "whether detainees are eligible for

1 The present discussion is confined to the ADA, but applies to Plaintiffs' Rehabilitation Act claim also. The Sheriff adopts and incorporates herein the County's argument that the Rehabilitation Act does not apply. The Sheriff also adopts and incorporates herein the County's argument that this matter is precluded by the Duran consent decree.
2

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 3 of 15
participation in the various release programs." Id. at *2. As the plaintiffs did not use the grievance process provided, the ADA count failed.
The fate of the Bolden plaintiffs should befall this class. Plaintiffs have not complied with the exhaustion requirement. The Court can take judicial notice that the CCDOC has a well established grievance procedure set forth in General Order 14.5. (SOF 46-49). A detainee wishing to file a grievance must fill out the Inmate Grievance Form. (SOF 46-49). Within five days of receiving the grievance, the Correctional Rehabilitation Worker provides a written copy of the findings to the detainee. (SOF 46-49). If the detainee wishes to appeal the grievance decision, the detainee has five days from receipt of the decision to appeal to the Administrator of Program Services. (SOF 46-49). The Administrator of Program Services has ten days to review the grievance appeal and to reply to the detainee. Id. All appeal decisions are final. (SOF 46-49).
While the Amended Complaint alleges two members filed gnevances, scrutiny says otherwise. The grievance by Ken Courtney contains two fatal flaws. (SOF 50). First, the grievance did not allege discrimination or physical injury. It merely expressed a desire for a specific shower chair, as Courtney disliked the chair provided. Notably, the chair provided did not preclude Courtney from using the shower. Rather, he found it inconvenient. Thus, the catalyst for Courtney's grievance was not discrimination, physical injury, or lack of a shower chair. In alleging discrimination and denial of services, Plaintiffs sue for things never complained of. As Defendants were not on notice of these claims, they cannot be pursued.
The second problem is that Courtney's gnevance did not follow the necessary timing requirements. Courtney filed a request for a shower chair on November 28, 2006. (SOF 50). A grievance processed as a request is not appealable. (SOF 50). If the detainee is not satisfied with the response, the detainee may resubmit the concern and it will be processed as a grievance. (SOF 50). When processed as a "request," an appeal of the response or action taken cannot be made. (SOF 50).
3

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 4 of 15
Here, the request was not granted, necessitating Courtney file a grievance. (SOF 50). Courtney did so on December 11, 2007. (SOF 50). But Plaintiffs had filed their Complaint six months earlier, on July 11, 2007. As the suit was commenced before Courtney filed his grievance, it crumbles.
An inmate who begins the grievance process but does not complete it is barred under the PLRA for failure to exhaust administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (lOth Cir. 2002). This issue was addressed in Truly v. Sheriff, 2004 U.S. Dist. LEXIS 7112 (N.D. Ill. 2004) aff'd., 135 Fed. Appx. 869 (7th Cir. 2005). Plaintiff filed grievances and received responses to those grievances. However, the plaintiff failed to appeal those grievances, merely filing additional grievances. As CCDOC procedure mandated an appeal, the court found plaintiff failed to exhaust his administrative remedies. Id. at *9. See also Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001) (inmate who complied with administrative procedure but did not see the process to its end did not exhaust remedies). This Court should find similarly. Timelines are unforgiving, and Plaintiffs cannot escape the reality that they began the suit before the grievance process ended.
The Amended Complaint also alleges James Grant filed a grievance. (SOF 1 at ,-r 14). But Grant's grievance concerned items unrelated to the class action. They included medical concerns for pain management, tables, non-working telephones, shower buttons, and barber services. (SOF 22). This grievance did not address the complaints alleged in the Amended Complaint and are therefore unrelated to the issues in this case.
The problems with Grant's grievance are captured by Brazier v. Maricopa County, 2006 U.S. Dist. LEXIS 12538 (D. Ariz. 2006). Brazier involved a suit brought by an inmate who was beaten by fellow inmates. The grievance had sought removal from segregation. It did not address defendant's failure to protect plaintiff from his fellow inmates. The court found plaintiffs grievance unrelated to his allegations and thus held plaintiff failed to exhaust his remedies. See also Howell v. Hall, 2006
4

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 5 of 15
u.s. Dist. LEXIS 60915 (D. Or. 2006) (plaintiff failed to exhaust his remedies because his grievance
was unrelated to the complaint.). In sum, Plaintiffs cannot satisfy the exhaustion requirement. The grievances do not relate to
the allegations of the Amended Complaint. In any event, Courtney's grievance was not appealed before the commencement of this suit. Because Plaintiffs have not exhausted their administrative remedies, summary judgment is warranted. III. Plaintiffs Are Barred by the PLRA Because There Is No Physical Injury.
Even if the Court determines Plaintiffs exhausted the grievance process, the PLRA still applies. The PLRA mandates that Plaintiffs allege a physical injury. They have not.
A. The catalyst of this suit is mental and emotional injuries. The PLRA mandates that no federal civil action may be brought by a prisoner "for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U. S. C. § 1997e(e). Section 1997e(e) "limits the damages available to prisoners not only for constitutional torts, but for violations of federal statutes." Koger v. Bryan, 523 F.3d 789, 804 (7th Cir. 2008). This principle is reflected by Cassidy v. Indiana Dep 't. ojCorr., 199 F.3d 376 (7th Cir. 2000). In Cassidy, an inmate sued under the ADA because the facility denied him access to services. The Seventh Circuit held for the defendant, noting § 1997e(e) "unambiguously states that 'No Federal civil action' shall be brought for mental or emotional damages without a prior showing of physical injury." Id. at 378. Lacking a physical injury that violated the PLRA, the court refused to "carve out exceptions for which Congress did not provide." Id. Cassidy instructs that inmates suing because of denial of services succumb to the PLRA. The basis for this suit is discrimination - the class being those individuals "subjected to discrimination." As discrimination is a mental and emotional injury, the suit is incompatible with the PLRA. In addition to the non-physical basis for this suit, the physical components alleged are unrelated.
5

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 6 of 15
Discrimination did not cause bed sores or falls from wheelchairs. While further discussed below, bed sores and falling from a chair are hazards inherent to life in a wheelchair. These unfortunate realities cannot be the vehicle to circumvent the PLRA. As Plaintiffs already suffered the travails of being in a wheelchair, no connection between the injuries and discrimination exists.
To reiterate, Plaintiffs cannot establish a physical injury due to the class definition. This case is unlike Robinson v. Page, 170 F.3d 747 (7th Cir. 1999). In Robinson, the Seventh Circuit held a prisoner's claims for emotional injury were not barred by the PLRA because it was not yet established if the prisoner could show a physical injury. Id. at 749. Plaintiffs here are tethered to their class definition. Suffering discrimination because one cannot participate in a program is not synonymous with physical injury. There is no precedent for an inmate's ADA discrimination suit based on physical injury. The reason is clear - they are two distinct concepts. Plaintiffs' attempt to pound a square peg into a round hole should be rejected.
B. Bed sores and falling out of a wheelchair are not cognizable injuries. Even if the Court finds a connection between the injuries alleged and denial of services, Plaintiffs still cannot prevail. In the absence of physical injury, Plaintiffs cling to existing medical conditions common to those confined in wheelchairs as a means of meeting the injury requirement of the PLRA. But these symptoms are typical. Moreover, the Plaintiffs have been in wheelchairs for years. They understand routine washing is necessary to minimize bed sores and caution needed when transferring out of the chair. The standard under § 1997e(e) of the PLRA requiring physical injury raises the question, what is a physical injury? While the PLRA does not define it, most courts have determined the physical injury must be more than de minimis. The Seventh Circuit has not explicitly addressed the issue. Other courts that have, including this one, reveals that even if Plaintiffs' conditions are deemed injuries, they are de minimis.
6

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 7 of 15
A physical injury must be "more than de minimis" to overcome the bar of § 1997e(e). Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999). Circuit courts have consistently applied the de minimis approach first adopted in Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997). In Siglar, a prisoner filed a § 1983 claim after guards bruised his ear. The ear was bruised for three days, but he did not seek medical treatment. The Fifth Circuit rejected the prisoner's claim. "Eighth Amendment standards guide our analysis in determining whether a prisoner has sustained the necessary physical injury to support a claim for mental or emotional suffering. That is, the injury must be more than de minimus, but need not be significant." Id. at 193.
This Court also applies the de minimis test. The PLRA barred recovery because "the plaintiff suffered no real physical injury" when he suffered dizziness and headaches in Hammond v. Briley, 2004 U.S. Dist. LEXIS 1122, *14-15 (N.D. Ill. 2004). Headaches, insomnia, and stomach anxiety did not constitute a physical injury sufficient to overcome the PLRA in Cannon v. Burkybile, 2000 U.S. Dist. LEXIS 14139, *19 (N.D. Ill. 2000). Elevated blood pressure, aggravated hypertension, and insomnia were held de minimis in Todd v. Graves, 217 F.Supp.2d 958 (S.D. Iowa 2002). If such claims were permissible, "very few plaintiffs would be barred by the physical injury rule." Id. at 960. These cases reflect common sense. The PLRA would be rendered nugatory if minor injuries survived the PLRA bar.
The conditions Plaintiffs characterize as injuries are bed sores and falling out of wheelchairs when attempting to transfer. These injuries are de minimis in the sense that they were not spawned in the CCDOC. Bed sores were not the result of a CCDOC policy, and while inmates fell out when transferring, their injuries were minor. In other words, these are recurring problems transcending incarceration. Colette Connolly, a clinical nurse specialist with Cermak explained that "99% of the people come to me with bed sores. So they have already had them before they already come into the facility." (SOF 32). The Sheriff does not downplay these conditions, rather, they simply were not
7

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 8 of 15
caused by him. Plaintiffs' attempt to recover for inherent, preexisting conditions strains the tenets of tort law.
Courtney alleges his bed sores have become "infected as a result of not being able to shower." (SOF 1 at ,-r 13). Grant makes a similar allegation. (SOF 1 at ,-r 15). These claims fail. 2 Plaintiffs have never suggested they lacked access to showers due to, for example, steps to the shower preventing their entrance. Rather, their "not being able to shower" stemmed from a personal choice made by Plaintiffs. Dislike for the shower chair is the basis for not showering and the source of worsened bed sores. Personal preference is not a recognized basis for an ADA suit.
Review of the record also exposes the flaws of Plaintiffs' other condition - difficulty transferring from their chairs. Colette Connolly explained that Cermak would not accept inmates "unless they have gone through some type of rehab where they can transfer from at least bed to wheelchair, wheelchair to commode." (SOF 31). Connolly monitored all new inmates' ability to transfer out of their chair. If they could not, Cermak did not accept them. (SOF 33). Thus, the Plaintiffs housed in Cermak would have demonstrated to Connolly that they could transfer from the chair to the toilet and shower chair. (SOF 33). Their allegation that they had difficulties is eviscerated by this fact.
The novelty of Plaintiffs' argument is captured by the absence of similar precedent. Virtually no court addresses whether a preexisting injury can be the basis to survive a PLRA bar. The single case found is Herron v. Patrolman # 1, 111 Fed. Appx. 710, 713 (5th Cir. 2004) . The Fifth Circuit held that "rough handling, which resulted in a temporary increase of pain in his already injured neck" did not constitute more than a de minimis physical injury to plaintiff. Like Herron, Plaintiffs already
2 The Ninth Circuit did recognize bed sores as cognizable in Pierce v. County of Orange, 526 F.3d 1190, 1224 (9th Cir. 2008). But in that case the bed sores were the result of the defendants' refusal to provide a proper mattress. Here, Plaintiffs' bed sores became infected because the Plaintiffs did not like the shower chair provided.
8

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 9 of 15
suffered the ailment of bed sores. Plaintiffs' efforts to capitalize on preexisting conditions should be rejected.
C. Summation. Plaintiffs cannot recover for a preexisting condition when the allegation is discrimination. Moreover, the conditions complained of are not cognizable as they are maladies endemic to life in a wheelchair. As the PLRA applies, summary judgment is warranted. IV. Defendants Did Not Discriminate on the Basis of Disability. The Sheriff's underlying premise is straightforward: Plaintiffs cannot reach the merits. Plaintiffs have neither exhausted the grievance process, alleged a cognizable physical injury, nor alleged the Defendants acted intentionally.3 If Plaintiffs are able to overcome these hurdles, they should ultimately succumb to the merits. A. Shower and toilet heights are not covered by Title II of the ADA. The ADA was designed "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 US.c. § 12101(b)(1). Title II of the ADA provides that "no qualified individuals with a disability" shall be denied access to "services, programs, or activities ofapublic entity." 42 US.c. § 12132. Title II applies to inmates in state and local prisons. Pennsylvania Dep't. of Corr. v. Yeskey, 524 US. 206, 210 (1998). To establish a Title II violation, a plaintiff must show he (1) is a qualified individual with a disability; (2) discriminated against with regard to a public entity's services; and (3) such discrimination was based on that disability. 42 US.c. § 12132. Defendants do not contest that Plaintiffs meet the first prong of the test, they are "qualified individuals with a disability." But Plaintiffs fail on the remaining elements. An inmate cannot be
3 The Sheriff adopts and incorporates herein the County's argument regarding Plaintiffs' failure to allege intentional discrimination and that shower and lavatory access are not programs or services.
9

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 10 of 15
categorically excluded from a beneficial prison program based on his disability alone. Yeskey, 524 US. at 210. But this has not and cannot be shown here. Plaintiffs were not discriminated against because they had access to showers and toilets. Plaintiffs claim the difficulties showering and using the toilet amounted to a denial of services. But this is a barrier removal issue encompassed by Title III, not Title II.
Title III of the ADA prohibits discrimination in places of public accommodation against persons with disabilities. 42 US.c. § 12182(a). Discrimination includes "a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities .. . where such removal is readily achievable." 42 US.c. § 12182(b)(2)(A)(iv). Defendants found no authority in which a jail was subject to Title III. To the contrary, the Title II Technical Assistance Manual states that "public entities are not subject to Title III of the ADA which covers only private entities." (SOF 35-36). Case law also instructs that a jail does not constitute a place of "public accommodation." See Edison v. Douberley, 2008 US. Dist. LEXIS 68152 (M.D. Fl. 2008) (finding public accommodation under Title III to not include state prison); Morgan v. Mississippi, 2008 US. Dist. LEXIS 74001 at *5-6 (S.D. Miss 2008) (same); Brown v. King County, 1998 US. Dist. LEXIS 20152 at *6 (W.D. Wash. 1998) (county correctional facility is not a place of public accommodation). Plaintiffs can point to nothing suggesting Title III applies to jails. As toilet and shower heights concern barrier removal, i.e., Title III, these allegations fail.
B. The RTU Predates the ADA. Even if the Court finds the allegations fall within the ambit of Title II, the RTU is exempted from its most onerous restrictions. Whether Plaintiffs were discriminated against because of shower and toilet accessibility necessitates consideration of when the facility was built. This factor favors the Sheriff. The ADA recognizes three categories of buildings: newly constructed, existing with new
10

Case 1:07-cv-03889 Document 161 Filed 06/30/2009 Page 11 of 15
alterations, and existing without alterations. These distinctions delineate the requisite standard. Each is addressed in turn.
A newly constructed building (built after 1991) is subj ect to the highest standard. It must be readily accessible to individuals with disabilities. "Each facility ... for the use of a public entity shall be designed and constructed in such manner that [it] is readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.151. An intermediate standard is applied to older buildings altered after the ADA's implementation date. Such a facility must, "to the maximum extent feasible, be altered in such a manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.151 (b). The lowest compliance standard is for existing facilities without new alteration. Public entities falling in this category are not required to "modify each facility to provide for access by individuals with disabilities," but must operate all services such that an existing facility is "readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a).
The RTU is a dormitory setting with no cells. It is used exclusively for the housing of handicapped individuals. It was built in 1984 and has never undergone an alteration such that the intermediate standard applies. (SOF 26). Thus, the RTU falls under the existing facilities standard, the least restrictive. (SOF 35-36).
Although the ADA does not provide for reasonable modifications, the implementing regulations provide that "a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.,,4 28 C.F.R. § 35.13 O(b)(7). The regulations also contain an important caveat relevant to the scope of
4 Title II's use of the term "reasonable modifications" is essentially equivalent to Title I's use of the term "reasonable accommodation." See McGary v. City of Portland, 386 F.3d 1259, 1266 (9th Cir. 2004) ("Although Title II of the ADA uses the term 'reasonable modification,' rather than 'reasonable accommodation,' these terms create identical standards").
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the accommodation obligations imposed. A public entity IS not required to provide disabled

individuals with "personal devices, such as wheelchairs; individually prescribed devices, such as

prescription eyeglasses or hearing aids; or services of a personal nature including assistance in eating,

toileting, or dressing." 28 C.F.R. § 35.135. Thus, a demand for a wheelchair under the ADA and the

Rehabilitation Act was rejected in Kerry M v. Manhattan Sch. Dist. # 114, 2006 US. Dist. LEXIS

71109 (N.D. Ill. 2006).

Reasonable accommodations in the RTU could only be satisfied by personal devices such as

removable wheelchair parts, grab bars, shower chairs, and height adapters. The following section sets

forth why these accommodations could not be made.

C.

Institutional security often precludes the availability of reasonable

accommodations in correctional settings.

Title II does not require a fundamental alteration to the nature of the service, and a prison

need not employ every mean to accommodate. Lane v. Tennessee, 541 US. 509, 532 (2004). Thus, a

public entity is not required to provide accommodations that would result in "undue financial and

administrative burdens." Id. A public entity is not required to provide disabled individuals with

personal devices, such as wheelchairs, prescription eyeglasses, or hearing aids. (SOF 58). In the

instant case, what is "reasonable" must also be viewed in the context of the prison environment.

Consideration of a prison's unique need for security, safety, and other penological concerns is

needed. Miller v. King, 384 F.3d 1248, 1266 (11 th Cir. 2004).

Courts have found the standard for reviewing an inmate's ADA rights "to be equivalent to

the review of constitutional rights in a prison setting, as outlined by the Supreme Court in Turner v.

Safley." Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994). Turner instructs that when a prison

regulation impinges on inmates' constitutional rights, the regulation is valid if reasonably related to

legitimate penological interests. Turner v. Safley, 482 US. 78, 89 (1987). Several factors are

12

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considered, including the connection between the regulation and a valid government interest and the impact accommodating the asserted right will have. Id.
Applying these criteria to the facts sub judice reveals the Sheriff s evaluation and denial of personal devices is valid. First, there is a direct connection between precluding personal devices and the government interest of security. That the interests of correctional safety and security are valid is axiomatic. Second, the impact of accommodating the asserted right vindicates the Sheriff s actions. The ADA is not a suicide pact. Indeed, the Seventh Circuit has noted that "[s]ecurity concerns, safety concerns, and administrative exigencies would all be important considerations" in the reasonable accommodation calculation. Love v. Westville Carr. Ctr., 103 F.3d 558,561 (7th Cir. 1996).
Precedent demonstrates security is a higher priority than accommodation, best exemplified by Arreola v. Chaudry, 2007 U.S. Dist. LEXIS 8701 (N.D. Ill. 2007). An inmate with a broken ankle argued a CCDOC policy barring crutches in the general population violated his constitutional rights. The court disagreed. Citing instances in which the Seventh Circuit denied the admission of prescribed medication, it noted, "[d]enial of prescribed medical devices is not materially different." Id. at *24. The Seventh Circuit also acknowledged that crutches can be wielded as a weapon and that it was permissible to confiscate them while an inmate was in the general population in Johnson v. Snyder, 444 F.3d 579, 582 (7th Cir. 2006). The First Circuit held a facility did not violate the ADA when it denied an inmate a cane for security reasons in Kiman v. N.H. Dep't. ojCarr., 451 F.3d 274, 285-86 (lst Cir. 2006). See also 28 C.F.R. § 35.130(b)(7) (public entities are not required to make modifications to their policies when they would "fundamentally alter the nature of the service").
The above authority demonstrates that security is paramount when considering the admission of removable wheelchair parts, grab bars, shower chairs, and height adapters. That items as innocuous as crutches and canes have been deemed too dangerous for the correctional context suggest that the personal devices sought by Plaintiffs were properly denied by the Sheriff.
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Deference to correctional administrators also undermines Plaintiffs' argument. When matters of internal prison security are at issue, "courts should not substitute their judgment for that of prison administrators." Turner, 482 U.S. at 89. Barring the desired modifications is directly related to jail security. Plaintiffs are prohibited from using personal devices in order to protect themselves, other detainees, and correctional officers. The Sheriff has concluded that forbidding items that could be transformed into weapons fosters correctional security. This determination should be respected, as in Baribeau v. City of Minneapolis, 578 F.Supp.2d 1201 (D. Minn. 2008). An inmate sued under the ADA after officers confiscated his prosthetic leg. The court found security justified the jail's action, citing the "discretion of prison officials." Id. at 1222. The logic of Baribeau applies here.
D. Plaintiffs were not denied access to the electronic monitoring program. Plaintiffs further allege they were denied access to the electronic monitoring program. (SOF
1 ,-r 9). This assertion is thwarted by class representative Kevin House's participation in the exact same program. (SOF 57). Plaintiffs apparently believe each class member is entitled to participate in each service offered. This view defies the realities of correctional life.
Participation in the electronic monitoring program is contingent on numerous factors. These factors include underlying charges and criminal history, none of which are related to accessibility. That House was permitted into the program eviscerates Plaintiffs' claim. James Grant claims he was not allowed into to program because he was handicapped. But the real reason was his criminal history. Grant had a gun charge and drug possession, as well as a domestic violence offense. All of these charges prohibited him from entering the program. (SOF 30).
E. Plaintiffs were not denied access to drug rehabilitation. RTU and Cermak are both medical units designed to provide medical needs for detainees
with special needs. The medical staff makes a determination as to a detainee's drug addiction and need for drug rehabilitation. This decision is based on the history the detainee provides at the intake
14

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process, as well as the observation of medical personnel and request of detainees. Derrick Phipps was

in a medical unit the entire time he was a detainee at CCDOC. This is the opportune place to receive

drug rehabilitation. Upon his intake into CCDOC, Phipps did not list as a medical condition a drug

dependency, nor has any grievance been filed regarding the denial of drug rehabilitation. (SOF 9).

F. Summation.

Defendants have not engaged in discrimination. The issues raised in the Complaint do not

relate to a cognizable claim under Title II. If there was a program or service which disabled inmates

were barred access to, Plaintiffs would have a case. But no such evidence is offered. Instead,

Plaintiffs' case rests on an amalgam of disparate conceptions. Title II demands more.

CONCLUSION

A complaint does not exist in a factual vacuum, it must state a legally viable cause of action.

This suit fails that basic premise. Defendants have provided a myriad of reasons why this case cannot

go forward. The Court need only agree with one.

WHEREFORE, the Defendant, Sheriff of Cook County, respectfully requests this Honorable

Court grant his Motion for Summary Judgment and any other relief the Court deems just.

Daniel F. Gallagher, Esq. Mary E. McClellan, Esq. QUERREY & HARROW, LTD. 175 West Jackson, Suite 1600 Chicago, Illinois 60604 Phone: 312-540-7544

Respectfully submitted, Sheriff of Cook County By: sf Daniel F. Gallagher
Daniel F. Gallagher

15

 
 Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al.,

)

)

Plaintiffs,

)

)

-vs-

) No. 07 CV 3889

)

Sheriff of Cook County and Cook ) (Judge Bucklo)

County,

)

)

.

Defendants.

)

CORRECTED

MOTION FOR PRELIMINARY APPROVAL

OF CLASS ACTION SETTLEMENT

Plaintiffs, with the agreement of defendants, move the Court to

grant preliminary approval to the class settlement agreement attached to

this motion as Exhibit 1.

Grounds for this motion are as follows:

1. The parties have agreed to a settlement of this class action.

The proposed settlement allocates $400,000 for distribution to unnamed

class members, with each class member receiving an award ranging from

one hundred dollars to a maximum of four thousand eight hundred and

fifty four dollars ($4,854), determined by the number of days in custody.

The settlement leaves to the Court resolution of any dispute about

whether a claimant is a member of the class. The settlement also

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 2 of 37
incorporates an agreement, subject to the approval of the Court, concerning attorneys’ fees and incentive awards for the named plaintiff.
2. The settlement agreement (paragraph 29) leaves one issue for resolution by the Court. This issue concerns whether class counsel may advise class members that they should opt-out of the settlement and whether class counsel may represent “opt-outs” in any separate action. Plaintiffs suggest that the Court set a briefing schedule on this issue to allow the Court to decide this contested issue of law by the time of the fairness hearing.
3. Plaintiffs believe that class notice can be mailed within 21 days and suggests that the fairness hearing be set for an early date in September of 2010.
4. Attached as Exhibits 2 and 3 are proposed forms of class notice. Exhibit 2 is the proposed notice for potential class members who have not had an opportunity to opt out; Exhibit 3 is the proposed notice for those who have had an opportunity to opt out. The proposed opt-out form is attached as Exhibit 4 and the proposed claim form is attached as Exhibit 5.
-2-

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 3 of 37
It is therefore respectfully requested: A. That the Court grant preliminary approval to the proposed settlement; B. That the Court set a schedule for resolving the disputed issue of law set out in paragraph 29 of the settlement agreement; C. That the Court set a date and time for a fairness hearing, and authorize the parties to provide notice by first class mail in the forms attached as exhibits 2 and 3.
Respectfully submitted,
/s/ Kenneth N. Flaxman Kenneth N. Flaxman ARDC 830399 200 S Michigan Ave, Ste 1240 Chicago, Illinois 60604 (312) 427-3200
Thomas G. Morrissey, Ltd. 10249 S Western Ave. Chicago, IL. 60643 (773) 233-7900 Robert H. Farley, Jr. 1155 South Washington Naperville, Illinois 60540 (630) 369-0103 Attorneys for Plaintiffs
-3-

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 4 of 37
Exhibit 1

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 5 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al.,

)

)

Plaintiffs,

)

)

-vs-

) No. 07 CV 3889

)

Sheriff of Cook County and ) (Judge Bucklo)

Cook County,

)

)

.

Defendants. )

CLASS SETTLEMENT AGREEMENT
This settlement agreement is entered into by all parties to this action through their respective undersigned counsel to resolve all matters at issue in this action and the related action of Eldefonso v. Cook County Sheriff, No. 09 CV 6682.
RECITALS
1. Nature of litigation. Plaintiffs filed the above captioned action, for themselves and all others similarly situated, in the United States District Court for the Northern District of Illinois alleging violations of section 202 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and section 504 of the Rehabilitation Act ("Rehabilitation Act"), 29 U.S.C. § 794(a).

2. Class Certification. Pursuant to the Court's order of

March 6, 2008, this case is proceeding as a class action for: -1-

Plaintiffs' Exhibit 1

Page 1

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 6 of 37
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. 3. Important Rulings. On November 25, 2009, the Court denied cross motions for summary judgment. The Court denied defendants’ motion to reconsider on February 19, 2010 and thereafter set the case for trial to begin on April 26, 2010. After the parties filed their joint pre-trial order on March 19, 2010, the Court vacated the trial date, expressing its intent to set a new date for the fall of 2010.
4. Settlement Process. After exchanging drafts of the final pretrial order, counsel for the parties met to discuss the possibility of settlement. These discussions continued after the filing of the final pretrial order and have resulted in a proposed resolution of the claims asserted on behalf of the class and the individual claims asserted for the named plaintiffs, as well as of the claim asserted by the plaintiff in the related action of Eldefonso v. Cook County Sheriff, No. 09 CV 6682 The proposed settlement takes into account the risks, delay and difficulties involved in establishing a right to recovery in excess of that offered by this settlement and the likelihood that the litigation will be further protracted.

-2Plaintiffs' Exhibit 1

Page 2

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 7 of 37
5. Certification by Class Counsel: Class Counsel have investigated the facts and the applicable law and believes that the number of class members is less than two hundred persons. Based on the foregoing, and upon an analysis of the benefits that this Settlement Agreement affords the class. Class Counsel considers it to be in the best interest of the class to enter into this Settlement Agreement.
6. Denial of Liability: Cook County and Sheriff vigorously contests each and every claim in the Action. Cook County and Sheriff maintain that they have consistently acted in accordance with governing laws at all times. Cook County and Sheriff vigorously deny all the material allegations set forth in the Action. Cook County and Sheriff nonetheless have concluded that it is in its best interest that the Action be settled on the terms and conditions set forth in this Stipulation. Cook County reached this conclusion after considering the factual and legal issues in the Action, the substantial benefits of a final resolution of the Action, the expense that would be necessary to defend the Action through trial and any appeals that might be taken, the benefits of disposing of protracted and complex litigation, and the desire of Cook County to conduct its business unhampered by the distractions of continued litigation.

-3Plaintiffs' Exhibit 1

Page 3

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 8 of 37

7. As a result of the foregoing, Cook County and Sheriff enter into this Stipulation without in any way acknowledging any fault, liability, or wrongdoing of any kind. Neither this Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as an admission or concession by Cook County and Sheriff of the truth of any of the allegations made in the Action, or of any liability, fault, or wrongdoing of any kind whatsoever on the part of Cook County or Sheriff, or shall be used as precedent in the future against Cook County and Sheriff in any way.
8. To the extent permitted by law, neither this Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be offered as evidence or received in evidence in any pending or future civil, criminal, or administrative action or proceeding, to establish any liability or admission by Cook County and/or Sheriff, except in any proceedings brought to enforce the Stipulation.
9. Neither this Stipulation, nor any pleading or other paper related in any way to this Stipulation, nor any act or communication in the course of negotiating, implementing or seeking approval of this Stipulation, shall be deemed an admission by Cook County or Sheriff that certification of a class or subclass is appropriate in any other litigation,

-4Plaintiffs' Exhibit 1

Page 4

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 9 of 37

or otherwise shall preclude Cook County or Sheriff from opposing or asserting any argument it may have with respect to certification of any class(es) or subclass(es) in any proceeding or this Action, or shall be used as precedent in any way as to any subsequent conduct of Cook County or Sheriff except as set forth herein.

DEFINITIONS
10. In addition to the foregoing, the following terms shall have the meanings set forth below:

a. “Cook County” means the County of Cook and/or any other successors, assigns or legal representatives thereof.
b. “Sheriff” means the Sheriff of Cook County and/or any other successors, assigns or legal representatives thereof.
c. “Class Counsel” means Kenneth N. Flaxman, Kenneth N. Flaxman P.C., 200 South Michigan Avenue, Suite 1240,Chicago, Illinois 60604; Robert H. Farley, Jr., Robert H. Farley, Jr., Ltd., 1155 South Washington, Naperville, Illinois 60540; and Thomas G. Morrissey, Ltd., 12049 South Western Avenue, Chicago, Illinois, 60643.
d. “Class Member” means any person who is included within the definition of the Class (and that person’s heirs, executors, administrators, successors, and assigns), and who has not timely requested exclusion from the case.
e. “Class Period” means the period commencing July 11, 2005, and continuing through June 15, 2010.
f. “Effective Date” means that date defined in paragraph 26 of this Stipulation.
g. “Final Settlement Hearing” means the hearing at which final approval of the Settlement in this matter is granted.

-5Plaintiffs' Exhibit 1

Page 5

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 10 of 37

h. “Administrator” means class counsel.
i. “Potential Class Members” means all persons who would qualify as part of the Class, prior to the date by which exclusion from the Class must be requested.
j. “Released Claims” means and includes any and all Unknown Claims, known claims, and rights, demands, actions, causes of action, suits, debts, liens, contracts, liabilities, agreements, interest, costs, expenses or losses, for the acts alleged or which are or could have been alleged by the Named Plaintiffs or the Potential Class Members in this Action, or relate in any way whatsoever to this Action regarding alleged discrimination against wheelchair bound inmates at the Cook County Department of Corrections due to their disabilities, including, but not limited to, statutory and non-statutory attorneys’ fees, violation of the ADA, and violation of the Rehabilitation Act, and any cause of action or claim not filed to date in a court of law known or unknown on or before the date of this settlement that arose out of his (or her) incarceration at the jail.
k. “Released Persons” means Cook County, Cook County’s counsel, Sheriff of Cook County, Sheriff’s counsel, and any of Sheriff’s and Cook County’s past, present or future officers, agents, employees and/or independent contractors, and/or any other successors, assigns, or legal representatives thereof.
l. “Class” means all former and current wheelchair bound inmates at the Cook County Department of Corrections who, from July 11, 2005 through June 15, 2010, were subjected to discrimination because of their disability in violation § 202 of the ADA and § 504 of the Rehabilitation Act.
m. “Valid Claim Form” means a Claim Form which includes an affirmation under penalty of perjury stating the Class Member: (1) was or is an inmate at the Cook County Department of Correction from July 11, 2005 through the date of preliminary approval of the settlement; (2) was wheelchair bound during the time she or he was an inmate; (3) the reason why the claimant was wheelchair bound, (4) that the claimant was wheelchair bound for a period in excess of six months, and (5) that
-6-

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 11 of 37

during the time he or she was a wheelchair bound inmate, he or she was not provided sufficient (a) bathroom, sleeping and/or living facilities; and/or (b) rehabilitation or drug treatment programs.
RELIEF
11. Class Closure Date: As of June 15, 2010, the date of class
closure, all ADA qualified wheelchair bound detainees at the Cook
County Jail are housed in ADA accessible cells or housing or reasonable
accommodations have been made.

12. Monetary Relief to the Class. To resolve all claims at issue in this case involving monetary relief to class members, other than attorneys' fees, expert and consulting witness fees and litigation costs, the parties have agreed that, as part of the consideration for this Agreement, Defendants will establish a fund (the "Settlement Fund") in the amount of $500,000 (five hundred thousand dollars). This amount includes incentive payments to the named plaintiffs The “Settlement Fund” also includes monies to be distributed to class members to satisfy all claims that have accrued to the date of entry of judgment in accordance with the “distribution algorithm” described in section 15 below.

13. Incentive Payments. Each of the named plaintiffs Grant, Courtney, and Phipps will, subject to the approval of the Court, receive an incentive award of $25,000.00; named plaintiff House will receive an

-7Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 12 of 37

incentive award of $15,000 and related Plaintiff Eldefonso will receive an incentive award of $10,000.00 to be paid from the Settlement Fund. Such award shall be in lieu of, and not in addition to, any other awards to which the named plaintiffs may be entitled under this settlement.
14. Administration of the Settlement. An Administration Fund in the amount of $200,000 shall be established. The Administrator shall administer all aspects of the class settlement, other than the issuance of checks. The cost of administration of the settlement, including but not limited to notice to the class, locating class members who cannot be reached by first class mail, establishing class membership, processing of claim forms, mailing of settlement checks and 1099 forms, shall be paid from the Administration Fund in an amount not to exceed two hundred thousand dollars. For purposes of performing ministerial work in the administration of this settlement only, class counsel agrees to a rate of $200.00 per hour. Cook County shall reimburse counsel for administrative costs upon receipt of itemized statements, with payments to be made within 30 days of receipt of said statement with a maximum amount not to exceed the Administration Fund of $200,000. Any portion of the $200,000 not expended by September 1, 2011 for administrative and notice costs and expenses from the Administration Fund shall revert to Cook County.

-8Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 13 of 37

15. Payments to Class Members. The parties, while recognizing that each class member with a valid claim has a distinct claim for damages, agree that the expense, uncertainly, and delay of providing each class member with an individual determination of damages outweighs the benefits of a categorical, time-based distribution. Accordingly, payments to class members shall be made according to the following algorithm:

Released day of arrest 2 days through 30 days
More than 30 days

$100
$100 for first day plus $25 day, to a maximum of $825 for the first 30 days
$825 for first 30 days, plus $11 per day, to a maximum award of $4,854

The actual amount to be paid to each class member will be de-

termined within 60 days after expiration of the date for submission of

claim forms. The total amount to be paid to class members, other than

the named plaintiffs, will not exceed $400,000 (Four Hundred Thou-

sand Dollars), and will be determined by class counsel by dividing the

sum of claims computed in accordance with the above distribution for-

mula by $400,000. If the sum of the claims exceeds $400,000, each

claim shall be reduced by a proportionate amount. If the sum of the

claims is less than $400,000, the remainder shall be held by the Cook

County Comptroller for a period of one year to allow payment of any

-9Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 14 of 37

claim submitted late with good cause shown. Any funds remaining at the expiration of this one year period shall revert to Cook County.
16. Attorneys’ Fees and Expenses: Attorneys’ fees and costs were not finally negotiated by Class Counsel and counsel for the Released Parties until after full agreement was reached on the monetary relief for the class. Class counsel represented that the total amount of attorneys’ fees and expenses incurred to date is in excess of $735,000 (Seven Hundred and Thirty Five Thousand Dollars). Cook County has agreed not to contest any request by Class Counsel for an award up to this amount. Cook County agrees that it will pay attorneys’ fees and expenses in two installments: the first shall be made within 35 days following the Court’s final approval of the settlement and shall be in the amount of half of the fees awarded and the entirety of the costs awarded; the second installment shall be made on January 15, 2011 for the remaining balance. These precise dates are subject to the feasibility of the Cook County Comptroller.
NOTICE AND CLAIMS PROCEDURE
17. Within twenty-three days after the Court has given its preliminary approval to this proposed settlement, notice of the proposed settlement, information about the date and time of the fairness hearing, and notice of a right to opt-out (for those members that have not

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 15 of 37
previously received such opportunity) will be sent by first class mail to the last ascertainable address of each class member. As used herein, “opt-out” means a qualified class member who elects not to proceed under this agreement but elects to be removed from the class or instead elects to file an independent cause of action. All “opt-out” requests must be received by September 1, 2010. “Ascertainable” means the last known address as enhanced by the United States Postal Service change of address database. The cost of this notice shall be paid by defendant Cook County. In the event that this settlement obtains final approval from the Court, the cost of notice will be deducted from the sum reserved for payment of costs and administration expenses.
18. To participate in this settlement, each Class Member must submit a sworn Claim Form postmarked no later than September 1, 2010. The Claim Form must provide the information specified in Section 10(m) above and an affirmation under penalty of perjury that the information set forth is true and correct.
19. The Class Notice will include a forwarding and return address, which will be a Post Office Box controlled by Class Counsel. Class Counsel shall provide Cook County and Sheriff with copies of all claim forms received.

-11Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 16 of 37
20. Within 45 days of receipt of a claim form, class counsel shall determine whether the claimant appears to be a class member. Class counsel shall inform any claimant deemed by counsel not to be a class member of the reason for this determination and of the claimant’s right to petition the Court for a review of this determination.
21. Class counsel shall promptly notify Cook County and Sheriff of any determination that a claimant appears to be a class member. All such claims shall be paid by Cook County unless, within 30 days of receipt of any such certification, Cook County or Sheriff provides class counsel with written notice of its challenge that a particular claimant is a member of the class. Counsel for the parties shall meet and attempt to resolve any such challenges. If counsel failing to reach an agreement, the dispute shall be submitted to the Court for resolution. The Court specifically reserves jurisdiction to resolve any challenges to class membership. The determination by the Court will be final and nonappealable. Neither Cook County nor Sheriff shall be entitled to any costs, fees, or expenses associated with resolving any challenges to class membership. Class counsel shall be compensated from the administrative fund for their non-duplicative services in this regard at the rate set out in paragraph 14 above if, and only if, the claimant prevails.

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DECEASED, DISSOLVED, BANKRUPT, OR INCAPACITATED CLASS MEMBERS
22. Where a Class Member is deceased and a payment is due to that Class Member, upon receipt of a proper notification and documentation, the settlement payment shall be made in accordance with Illinois law.
23. Where a Class Member has been declared bankrupt, or is the subject of an open and ongoing bankruptcy proceeding, and a payment is due to the Class Member, upon receipt of proper notification and documentation, the settlement payment shall be made to such Class Member in accordance with applicable United States Bankruptcy Code laws.
COMMUNICATIONS WITH THE CLASS
24. The Class Notice shall list Class Counsels’ addresses and phone numbers. Other than as provided for in this Stipulation, communications relating to the Action or this Settlement with persons receiving Class Notices and Potential Class Members shall be through Class Counsel. Nothing in this Stipulation shall be construed to prevent Cook County, Sheriff, their employees, agents or representatives from communicating with Potential Class Members or Class Members in the normal course of its operations.

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 18 of 37
CONDITIONS OF SETTLEMENT AND EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION OF STIPULATION
25. If the Court disapproves this Stipulation or fails to rule, or if the Court enters the Final Judgment but it is reversed or vacated on appeal, this Stipulation shall be null and void and of no force and effect. If the Court materially modifies any provision of the Stipulation or proposed Final Judgment, or if either is materially modified on appeal or remanded to the Court for modification, with Cook County and Sheriff determining what is “material” in the use of its reasonable discretion, Cook County, Sheriff or Class Counsel shall have the option of terminating this Stipulation and withdrawing this consent to the entry of the Final Judgment, in which case this Stipulation shall be null and void and of no force and effect.
26. If any financial obligation is imposed upon Cook County in addition to or greater than those specifically set out in this Stipulation, Cook County may withdraw its consent to the entry of the Final Judgment, in which case this Stipulation shall be null and void and of no force and effect. In addition, Cook County or Sheriff, at their option, may withdraw its consent to the entry of the Final Judgment if more than twenty (20%) percent of the qualified class members opt out of this litigation.

-14Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 19 of 37

27. The “Effective Date” of this Stipulation shall be the date on which the Court enters an order approving this proposed settlement and subject to paragraph 25 supra.
OBJECTIONS AND REQUESTS FOR EXCLUSION
28. Potential Class Members who have not previously been afforded an opportunity to opt-out of this case may exclude themselves from this settlement by submitting a written request for exclusion by date of the final settlement hearing. Written requests for exclusion must be signed and include the Potential Class Member’s name, address, and telephone number, and expressly state the desire to be excluded from the case. Any class member who has not filed a timely request for exclusion may file a notice of intent to object to the proposed settlement. The written notice of intent to object must be filed with the Clerk of the Court not later than September 10, 2010.
29. Defendants propose that Class Counsel agree that any representation, encouragement, solicitation or other assistance, including but not limited to referral to other counsel, to any person seeking exclusion from the Settlement Class, or any other person seeking to litigate with Cook County, Sheriff of Cook County or their employees over any of the Released Claims or represent any form of opt-out class from this Settlement, would place Class Counsel in an untenable conflict of

-15Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 20 of 37

interest with the Settlement Class. Class counsel disagree that there would be a conflict of any sort. The parties have agreed to submit this dispute to the Court for resolution. If the Court concludes that there would be a conflict of interest with the Settlement Counsel, defendants ask the Court to order Class Counsel and their respective firms, as well as all other counsel of record in the Action for the Named Plaintiffs, not to represent, encourage, solicit any person in requesting exclusion from the Settlement Class or to benefit financially from any referral. In addition, defendants ask the Court to order Class Counsel and their respective firms not to represent, encourage, solicit or otherwise assist any person who requests exclusion from the Settlement Class, or seeks to represent any form of opt-out class from this Settlement, or any other person, in any subsequent litigation that person may enter into with Cook County, Sheriff of Cook County or their employees regarding the Released Claims or any related claims of this settlement.
REPRESENTATIONS AND WARRANTIES
30. Plaintiffs and Class Counsel warrant and represent that no promise or inducement has been offered or made for the Release in paragraphs 31-32 except as set forth herein, that the Release is executed without any reliance whatsoever on any statements or representations not contained herein, including but not limited to any statements, con-

-16Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 21 of 37

duct, disclosure or non-disclosure or representations regarding discovery in the Action, and that the Release reflects the entire agreement among the parties with respect to the terms of the Release. The warranties and representations made herein shall survive the execution and delivering of the Release and shall be binding upon the parties' heirs, representatives, successors and assigns.

RELEASES
31. Upon the Effective Date, Plaintiffs, all Class Members, and their heirs, trustees, executors, administrators, principals, beneficiaries, assigns and successors will be bound by the Final Judgment and conclusively deemed to have fully released, acquitted and forever discharged, as defined in paragraph 10(j).

32. All people and entities who meet the Class Definition and who have not timely filed “opt out” forms shall be forever barred from prosecuting their own lawsuit asserting any of the claims at issue in this litigation and they and their heirs, executors, administrators, representatives, agents, partners, successors and assigns shall be deemed to have fully released and forever discharged the Released Persons (defined below) from all Released Claims (defined below).

a. “Released Persons” means County of Cook and the Sheriff of Cook County each of their past or present directors, offic-

-17Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 22 of 37

ers, employees, agents, Board members, attorneys, advisors, consultants, representatives, partners, affiliates, parents, subsidiaries, related companies, and divisions, and each of their predecessors, successors, heirs and assigns.

b. “Released Claims” are as defined in paragraph 10(j) above.

MISCELLANEOUS PROVISIONS
33. The parties hereto and their undersigned counsel agree to undertake their best efforts and mutually cooperate to effectuate this Stipulation and the terms of the proposed settlement set forth herein, including taking all steps and efforts contemplated by this Stipulation, and any other steps and efforts which may become necessary by order of the Court or otherwise. The parties hereto further agree to defend this Stipulation against objections made to final approval of the Settlement or in any appeal of the Final Judgment or collateral attack on the Stipulation or Final Judgment. Class Counsel will not seek from Cook County any additional compensation, including attorney fees, cost, expenses or reimbursements for any work that may be involved in defending this agreement.

34. The undersigned counsel represent that they are fully authorized to execute and enter into the terms and conditions of this Stipulation on behalf of their respective clients. This agreement is

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subject to formal approval by the Cook County Board, which is expected on July 14, 2010.

35. Except as otherwise provided between the parties, this Stipulation contains the entire agreement between the parties hereto, and supersedes any prior agreements or understandings between them. All terms of this Stipulation are contractual and not mere recitals, and shall be construed as if drafted by all parties hereto. The terms of this Stipulation are and shall be binding upon each of the parties hereto, their agents, attorneys, employees, successors and assigns, and upon all other persons claiming any interest in the subject matter hereof through any of the parties hereto, including any Class Member.

36. To the extent permitted by law, this Stipulation may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of this Stipulation.

37. Enforcement and Reservation of Jurisdiction. The parties agree that the Court will reserve jurisdiction to enforce the provisions of this agreement and that the Court may, for good cause, adjust and reset the dates set out in paragraph 18 above for a reasonable period following final approval of this settlement. If the Court approves

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 24 of 37
the settlement, it will enter an order of dismissal that will dismiss the litigation with prejudice as to all Class Members, except those persons who have timely filed “opt out” forms.

Agreed to, this 24th day of June, by the party representatives be-

low who have affixed their signatures showing their assent to the above

Class Settlement Agreement.

Plaintiffs’ Counsel:

/s/ Kenneth N. Flaxman Kenneth N. Flaxman 200 S. Michigan Ave Suite 1240 Chicago, IL 60604-2430 (312) 427-3200

/s/ Thomas G. Morrisey Thomas G. Morrissey 10249 S. Western Ave Chicago, IL 60643 (773) 233-7900

The County of Cook is represented in the litigation by:
/s/ Mary McClellan, ASA (with consent) Mary McClellan, ASA Cook County State's Attorney's Office Richard J. Daley Center 50 W. Washington Room 500 Chicago, IL 60602 (312) 603-6572
The Sheriff of Cook County is represented in the litigation by:
/s/Daniel F. Gallather (with consent) Daniel F. Gallagher Querrey & Harrow, Ltd. 175 W. Jackson Street 16th Floor Chicago, IL 60604 (312) 540-7674

-20Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 25 of 37
Exhibit 2

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 26 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al.,

Plaintiffs,

-vs-

Sheriff of Cook County and Cook County,

.

Defendants.

) ) ) ) ) No. 07 CV 3889 ) ) (Judge Bucklo) ) ) )

NOTICE OF HEARING ON SETTLEMENT OF CLASS ACTION

TO: 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.
A proposed settlement of this case has been submitted to the Court for approval. This document describes the proposed settlement and gives instructions about what you must do if you are a class member and a) wish to participate in the settlement or b) exclude yourself form this case, or c) if you believe that the proposed settlement should not be approved.
PLEASE READ THIS NOTICE CAREFULLY THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU.
YOU MAY BENEFIT FROM READING THIS NOTICE
WHAT THIS CASE IS ABOUT The plaintiffs in this action are the class of persons identified above.
The defendants are the Sheriff of Cook County and Cook County, Illinois. The named plaintiffs filed this action, for themselves and others similarly situated, in the United States District Court for the Northern District of Illinois alleging violations of rights secured by the Americans with Disabilities Act and the Rehabilitation Act involving the treatment of wheelchair bound detainees at the Cook County Jail.
On March 6, 2008, United States District Judge Elaine E. Bucklo ordered that the case may proceed as a class action. Thereafter, after the parties had fully prepared for trial, counsel for the parties were able to negotiate a settlement.

Plaintiffs' Exhibit 2

Page 1

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 27 of 37

THE PROPOSED SETTLEMENT
Counsel for the parties have agreed to a settlement of all claims at issue in this case. Defendants have agreed to pay not more than $1,435,000 to cover damages for class members, incentive awards for the named plaintiffs, fees and costs of counsel, and administrative expenses.

Four hundred thousand dollars ($400,000) is allocated in the settlement for payment to class members. Each class member will receive an award determined by the total number of days spent at the Cook County Jail and the total number of claimants. The maximum award will be $4854. Class counsel estimates that class members will receive the following awards:

Released day of arrest 2 days through 30 days
More than 30 days

$100 $100 for first day plus $25 day, to a maximum of $825 for the first 30 days $825 for first 30 days, plus $11 per day, to a maximum award of $4,854

The named plaintiffs will receive incentive awards ranging from $15,000 to $25,000. Attorneys’ fees, which were negotiated after full agreement had been reached on the monetary relief for the class, will be paid by defendants in an amount up to $735,000.

RELEASE
If you participate in this settlement, you will give the Defendants a “release” which means that you cannot sue about anything not pending in court that arises out of your incarceration at the Cook County Jail.

CLASS COUNSEL’S OPINIONS
The class is represented by attorneys Thomas G. Morrissey, 12049 South Western Avenue, Chicago, Illinois, 60643 (773) 233-7900, Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604 (312) 427-3200 and Robert H. Farley, Jr., 1155 South Washington, Naperville, Illinois 60540. Class Counsel has investigated the facts and the applicable law and consider this settlement to be in the best interest of the class.

NO ADMISSION OF LIABILITY By settling this lawsuit, Defendants are not admitting that they have
done anything wrong. Defendants expressly deny any wrongdoing.

NOW, THEREFORE, NOTICE:

A hearing will be held before this Court in Courtroom 1441, United States Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, on September 17, 2010 at 1:30 p.m., or as soon thereafter as counsel can be heard. The hearing shall be for the purpose of determining whether the terms

-2-

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 28 of 37
of the proposed class settlement are fair, reasonable, and adequate, and whether the proposed settlement should be approved by the Court. This hearing may be adjourned from time to time without further written notice to the class.
Any class member who wishes to be heard either in support or in opposition to the proposed settlement must file his or her written objection or comment with the Clerk of the United States District Court for the Northern District of Illinois, 219 South Dearborn Street, Chicago, Illinois 60604 on or before September 10, 2010. Written objections or comments will be considered whether or not the class member attends the hearing.
YOUR OPTIONS If you are an eligible class member and wish to receive a portion of the
settlement proceeds, you must return the claim form at the end of this notice by September 1, 2010. If the settlement is finally approved by the Court, and if you are an eligible class member, you will receive a check in an amount calculated in the manner explained above.
If you were not wheelchair bound when confined at the Cook County Jail for a condition that required you be in a wheelchair for more than six months you are not an eligible class member and you should do nothing.
If you were wheelchair bound when confined Cook County Jail but do not wish to participate in this case, you have the right to opt-out, which means to exclude yourself from both the class action and the settlement. To opt-out, you must return the opt-out form to one of the attorneys for plaintiff, Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604. The form must be received on or before September 1, 2010.
The foregoing references to the lawsuit and the settlement agreement are only summaries. The settlement agreement and all other papers filed in this action may be examined and copied in the Office of the Clerk, 219 South Dearborn Street, 20th floor, Chicago, Illinois between the hours of 9:00 a.m. and 4:30 p.m. Monday through Friday.
Do not call either the Office of the Clerk or Judge Bucklo for information about the case.
Michael Dobbins Clerk, United States District Court

-3Plaintiffs' Exhibit 2

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 29 of 37
Exhibit 3

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 30 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al.,

Plaintiffs,

-vs-

Sheriff of Cook County and Cook County,

.

Defendants.

) ) ) ) ) No. 07 CV 3889 ) ) (Judge Bucklo) ) ) )

NOTICE OF HEARING ON SETTLEMENT OF CLASS ACTION

TO: 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.
A proposed settlement of this case has been submitted to the Court for approval. This document describes the proposed settlement and gives instructions about what you must do if you are a class member and a) wish to participate in the settlement or b) if you believe that the proposed settlement should not be approved.
.
PLEASE READ THIS NOTICE CAREFULLY THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU.
YOU MAY BENEFIT FROM READING THIS NOTICE
WHAT THIS CASE IS ABOUT The plaintiffs in this action are the class of persons identified above.
The defendants are the Sheriff of Cook County and Cook County, Illinois. The named plaintiffs filed this action, for themselves and others similarly situated, in the United States District Court for the Northern District of Illinois alleging violations of rights secured by the Americans with Disabilities Act and the Rehabilitation Act involving the treatment of wheelchair bound detainees at the Cook County Jail.
On March 6, 2008, United States District Judge Elaine E. Bucklo ordered that the case may proceed as a class action. Thereafter, after the par-

Plaintiffs' Exhibit 3

Page 1

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 31 of 37

ties had fully prepared for trial, counsel for the parties were able to negotiate a settlement.

THE PROPOSED SETTLEMENT
Counsel for the parties have agreed to a settlement of all claims at issue in this case. Defendants have agreed to pay not more than $1,435,000 to cover damages for class members, incentive awards for the named plaintiffs, fees and costs of counsel, and administrative expenses.

Four hundred thousand dollars ($400,000) is allocated in the settlement for payment to class members. Each class member will receive an award determined by the total number of days spent at the Cook County Jail and the total number of claimants. The maximum award will be $4854. Class counsel estimates that class members will receive the following awards:

Released day of arrest 2 days through 30 days
More than 30 days

$100 $100 for first day plus $25 day, to a maximum of $825 for the first 30 days $825 for first 30 days, plus $11 per day, to a maximum award of $4,854

The named plaintiffs will receive incentive awards ranging from $10,000 to $25,000. Attorneys’ fees, which were negotiated after full agreement had been reached on the monetary relief for the class, will be paid by defendants in an amount up to $735,000.

RELEASE
If you participate in this settlement, you will give the Defendants a “release” which means that you cannot sue about anything not pending in court that arises out of your incarceration at the Cook County Jail.

CLASS COUNSEL’S OPINIONS

The class is represented by attorneys Thomas G. Morrissey, 12049 South Western Avenue, Chicago, Illinois, 60643 (773) 233-7900, Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604 (312 427-3200 and Robert H. Farley, Jr., 1155 South Washington, Naperville, Illinois 60540. Class Counsel has investigated the facts and the applicable law and consider this settlement to be in the best interest of the class.
NO ADMISSION OF LIABILITY By settling this lawsuit, Defendants are not admitting that they have
done anything wrong. Defendants expressly deny any wrongdoing.

-2-

Plaintiffs' Exhibit 3

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 32 of 37
NOW, THEREFORE, NOTICE:
A hearing will be held before this Court in Courtroom 1441, United States Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, on September 17, 2010 at 1:30 p.m., or as soon thereafter as counsel can be heard. The hearing shall be for the purpose of determining whether the terms of the proposed class settlement are fair, reasonable, and adequate, and whether the proposed settlement should be approved by the Court. This hearing may be adjourned from time to time without further written notice to the class.
Any class member who wishes to be heard either in support or in opposition to the proposed settlement must file his or her written objection or comment with the Clerk of the United States District Court for the Northern District of Illinois, 219 South Dearborn Street, Chicago, Illinois 60604 on or before September 10, 2010. Written objections or comments will be considered whether or not the class member attends the hearing.
YOUR OPTIONS If you are an eligible class member and wish to receive a portion of the
settlement proceeds, you must return the claim form at the end of this notice by September 1, 2010. If the settlement is finally approved by the Court, and if you are an eligible class member, you will receive a check in an amount calculated in the manner explained above.
If you were not wheelchair bound when confined at the Cook County Jail for a condition that required you be in a wheelchair for more than six months then you are not an eligible class member and you should do nothing.
The foregoing references to the lawsuit and the settlement agreement are only summaries. The settlement agreement and all other papers filed in this action may be examined and copied in the Office of the Clerk, 219 South Dearborn Street, 20th floor, Chicago, Illinois between the hours of 9:00 a.m. and 4:30 p.m. Monday through Friday.
Do not call either the Office of the Clerk or Judge Bucklo for information about the case.
Michael Dobbins Clerk, United States District Court

-3Plaintiffs' Exhibit 3

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Exhibit 4

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 34 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DERRICK PHIPPS, et al., Plaintiffs, -vs-
SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS,
Defendants.

) ) ) ) No. 07 CV 3889 ) ) (Judge Bucklo) ) ) ) )

OPT OUT FORM
I have read the notice which came with this opt-out form and I do not desire to participate as a member of the class in the above named case. I understand that by signing this form, I will not be represented by class counsel, but must proceed on my own.

Dated: ____________________

____________________________________
name

____________________________________________ address

____________________________________________

city

state

zip

If you do not wish to participate in this case, you must return this "opt out" form to the Law Ofﬁces of Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604 by September 1, 2010. This means that the form must be received at the ofﬁce of class counsel by September 1, 2010 (not simply put in the mail by then).

Plaintiffs' Exhibit 4

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Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 35 of 37
Exhibit 5

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 36 of 37

Preprinted Name street address city, state zip BARCODED IDNUMBER

MAKE ADDRESS CORRECTIONS BELOW
__________________________________ Address
__________________________________ City
__________________________________ State and Zip

THIS CLAIM FORM MUST BE RETURNED BY September 1, 2010 TO Claims Administrator P.O. Box 4602
Oak Park, Illinois 60303 (773) 896-9016

YOU MUST FILL OUT THIS FORM IF YOU WERE IN A WHEELCHAIR WHILE AT THE COOK COUNTY JAIL AFTER JULY 11, 2005 AND YOU WANT TO PARTICATE IN THE SETTLEMENT IN Phipps v. Sheriff

1. I was in a wheelchair when I was at the Cook County Jail after July 11, 2005 and before June 15, 2010 for a condition that required I be in a wheelchair for more than six months.
2. I needed a wheelchair because _______________________
_____________________________________________________
_____________________________________________________ 3. During the time I was a wheelchair bound detainee at the jail, I
was not provided sufﬁcient (a) bathroom, sleeping and/or living facilities; and/or (b) rehabilitation or drug treatment programs.
_____________________________________________________

I certify under penalties of perjury as provided by law that the above statements are true.

Dated: ___________________

____________________________ signature

Plaintiffs' Exhibit 5

Page 1

Case 1:07-cv-03889 Document 315 Filed 06/24/10 Page 37 of 37
CERTIFICATE OF SERVICE
I hereby certify that on the 24th day of June, 2010, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Jamie Melissa Sheehan, Ass’t State’s Atty, 50 W Washington St, Room 500, Chicago, IL 60602, and Daniel Francis Gallagher, Esq., Querrey & Harrow, Ltd., 175 W Jackson Blvd, Ste 1600, Chicago, IL 60604-2827 , and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 
 Case 1:07-cv-03889 Document 290 Filed 04/29/10 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al.,

)

)

Plaintiffs,

)

)

-vs-

) No. 07 CV 3889

)

Sheriff of Cook County and Cook ) (Judge Bucklo)

County,

)

)

.

Defendants.

)

PLAINTIFFS’ SUPPLEMENTAL SUBMISSION

Plaintiffs submit the following in response to the questions posed by

the Court:1

I. Cermak Infirmary

Cermak Infirmary, built in 1997, has been used to house some

wheelchair bound detainees throughout this litigation.2 In general, the

wheelchair bound detainees held at Cermak are those with medical prob-

lems.

1 Plaintiffs seek relief under the ADA, 42 U.S.C. §§12131-12165 et seq., as well as the Rehabilitation Act, 28 U.S.C. §794. Any reference in this memorandum to one statute rather than to the other is not intended to be a waiver of any sort.
2 As a structure built after January 26, 1992, the effective date of the ADA, Cermak is required to “meet the accessibility requirements of [28 C.F.R.] §35.151.” 28 C.F.R. §35.150(b)(1).

Case 1:07-cv-03889 Document 290 Filed 04/29/10 Page 2 of 7
Detainees are housed at Cermak in one of three “wings.” Each wing has nine rooms, one of which is intended to be “ADA compliant.”
Plaintiffs’ expert inspected the “north wing” in 2007 and found that the purportedly “ADA compliant” room did not have appropriate grab bars around the toilet, and that the clearance on the sinks was slightly less than what is required for the sink to be fully accessible to a wheelchair bound detainee. (Schoonover Report, October 22, 2007 at 12, filed as Document 167-3 at 12.) Defendants’ expert agrees with these findings. (Graham Dep., 2/25/08, 103-04, filed as Document 167-9 at 471-472.)
Plaintiffs’ expert found that the sinks and toilets in the other rooms on the wing did not come close to being accessible to wheelchair bound detainees. (Schoonover Report, October 22, 2007 at 12, filed as Document 167-3 at 12.) Defendant’s expert agrees. (Graham Dep., 2/25/08, 74, 95-96, filed as Document 167-9 at 442, 463-64.)
Defendants do not consider the need for disability accommodation in making room assignments at Cermak. (Salazar Dep., 2/27/08, 48, filed as Document 167-10 at 347.) Class members have been assigned to the totally non-ADA compliant rooms, while able bodied prisoners were in the “ADA” room. (Courtney Dep., 1/13/09, 34-35, filed as Document 167-9 at 48-49.)
-2-

Case 1:07-cv-03889 Document 290 Filed 04/29/10 Page 3 of 7
Defendants did not provide any accommodation for wheelchair bound detainees who were assigned to the non-accessible rooms.
Plaintiffs’ expert also found in 2007 that the showers at Cermak were not ADA compliant, primarily because a wheelchair bound detainee would not be able to reach the shower controls or nozzle. (Schoonover Report, October 22, 2007 at 12, filed as Document 167-3 at 12.) (The standard for ADA accessibility is that shower controls be 48 inches above the finished floor (“AFF”). The shower controls in Cermak were 63 inches above the finished floor.) Defendants’ expert agrees that this height is not ADA compliant. (Graham Dep., 2/25/08, 80-82, 87, filed as Document 167-9 at 448-50, 455.)
Defendants began to change the height of the shower controls in March of 2010, shortly before the original scheduled trial date. Plaintiffs’ counsel observed that construction was underway on one of the shower rooms when Cermak were re-inspected on March 3, 2010. As depicted in the photographs set out below, it appeared that defendants were finally lowering the shower head and shower controls.
-3-

Case 1:07-cv-03889 Document 290 Filed 04/29/10 Page 4 of 7
Shower Room Construction, Viewed March 3, 2010
Defendants have not as yet come forward with any evidence to show that the shower controls in Cermak are now fully ADA compliant.
II. RTU and Division II
Until the summer of 2008, all wheelchair bound detainees not held at Cermak were housed in the “RTU,” a facility constructed in 1984.3 Defendants’ expert has conceded that the “RTU” did not comply with either the
3 The regulations implementing the ADA require that “[a] public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” 28 C.F.R. §35.150(c). The regulations also require that when structural changes are necessary to comply with the ADA, those changes must be made “within three years of January 26, 1992,” the effective date of the ADA. 28 C.F.R. §35.150(c). Cooper v. Weltner, 1999 WL 10000503 (D.Kan. 1999). The regulations implementing the Rehabilitation Act impose a higher duty. 28 C.F.R. §42.521(a) requires that facilities in existence when the act became effective must become “readily accessible to and usable by handicapped persons,” 28 C.F.R. §42.521(a), within the three year period after the regulation was adopted in 1980. 28 C.F.R. §42.521(d).
-4-

Case 1:07-cv-03889 Document 290 Filed 04/29/10 Page 5 of 7
ADA or the Rehabilitation Act because it did not have sinks, toilets, or showers that were accessible to wheelchair bound detainees. (Graham Dep., 2/25/08, 87, filed as Document 167-9 at 455.)
Defendants knew as early as 2004 that the toilets in the RTU did not comply with the ADA. (Graham Dep., 2/25/08, 13-14, filed as Document 167-9 at 381-82.) Defendants would not have incurred any undue financial expense if they had attempted to make the toilets in the RTU accessible for wheelchair bound detainees. (Graham Dep., 2/25/08, 87, filed as Document 167-9 at 455.) Defendants did not provide any accommodation for wheelchair bound detainees assigned to the “RTU.”
Defendants closed the “RTU” in the summer of 2008 and reassigned wheelchair bound detainees to Dorms “M” and “N” of Division 2. Plaintiffs’ expert inspected these dorms on October 17, 2008 and found that the sinks, toilets, and showers were not accessible for wheelchair bound detainees. (Schoonover Report, October 22, 2008, 6-9, filed as Document 167-5 at 6-9.) Defendants’ expert agrees. (Graham Dep., 4/14/08, 7-13, filed as Document 167-9 at 513-529.)
Defendants made some changes to the sinks and toilets starting in March of 2009 and continuing through June of 2009. Plaintiffs re-inspected dorms “M” and “N” on March 3, 2010. The re-inspection revealed that de-
-5-

Case 1:07-cv-03889 Document 290 Filed 04/29/10 Page 6 of 7
fendants had not corrected the inadequate grab bars around the ADA accessible toilets. Plaintiffs have been advised by class members that this grab bar problem continues to the present time.
Respectfully submitted,
/s/ Kenneth N. Flaxman Kenneth N. Flaxman ARDC 830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604 (312) 427-3200 Thomas G, Morrissey 10249 S. Western Ave. Chicago, IL. 60643 (773) 233-7900 Robert H. Farley, Jr. 1155 S Washington Naperville, Illinois 60540 (630)-369-0103 attorneys for plaintiffs
-6-

Case 1:07-cv-03889 Document 290 Filed 04/29/10 Page 7 of 7
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of April, 2010, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Jamie Melissa Sheehan, Ass’t State’s Atty, 50 W Washington St, Room 500, Chicago, IL 60602, and Daniel Francis Gallagher, Esq., Querrey & Harrow, Ltd., 175 W Jackson Blvd, Ste 1600, Chicago, IL 60604-2827 , and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 
 Case 1:07-cv-03889 Document 280 Filed 03/31/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

DERRICK PHIPPS, et al.,

Plaintiffs,

No. 07 C 3889

v.
SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS,
Defendants.

Judge Elaine Bucklo

DEFENDANTS’ REPLY TO PLAINTIFFS’ MEMORANDUM IN OPPOSITON TO DECERTIFICATION

Plaintiffs, four individuals who are paraplegics or partially-paralyzed individuals, were pre-trial detainees housed at the Cook County Department of Corrections (“CCDC”) between 2006 and 2007.
Plaintiffs’ in this matter concede that this case should proceed to a determination of liability followed by individual damage determinations for each Plaintiff. That is not the proper basis for class certification. The class representatives must show that one of the requirements of Rule 23(b) is met: “that the 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 suit is the superior method “for fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23 (b)(3).
The predominance requirement of Fed.R. Civ. P. 23(b)(3) is more stringent than Rule 23(a)’s commonality requirement that the class members have a shared experience.

Case 1:07-cv-03889 Document 280 Filed 03/31/10 Page 2 of 4
Plaintiffs assert that the Seventh Circuit’s, Harper v. Sheriff of Cook County 581 F.3d 511 (7th Cir. 2009) does not bear any relationship to the case at bar. That is clearly not the case. The issue, whether each plaintiff qualifies under the ADA, is an individualized issue, the determination of which cannot be taken based on Plaintiffs’ unsupported conclusions.
Each class member’s situation is markedly different. Plaintiffs’ arguments are at odds with this as they concede that this case should proceed to liability followed by individualized damage determination. (See Docket N. 272 pg 6-10)
The evidence of alleged "present injury" would necessarily differ according to each plaintiff’s testimony and would require examination of the individual's medical records to establish that injury does indeed exist if they first qualified as being wheelchair bound.
Plaintiffs ignore that three different standards apply to the three different areas of the Jail which are the subject of this litigation. The court is aware that Cermak is being represented by the States Attorney’s office while the remaining portions of the jail are being represented by Special States Attorneys. Cermak was built subsequent to the ADA while the RTU division was built prior to ADA and Division 2 was modified in 2008 where another standard would be applied. A blanket allegation, namely that the detainees were subjected to inappropriate facilities, does not create a fact common to the class. There is no common nucleus of operative facts sufficient to satisfy the commonality and predominance requirements of Rules 23(a)(2) and 23(b)(3).
2

Case 1:07-cv-03889 Document 280 Filed 03/31/10 Page 3 of 4
Indeed, Plaintiffs admit that each member suffered damages unique to them and, after a determination of liability; a trial for each class member will be needed for damages. Proof of causation would raise additional individual issues. The proposed class, though this Court allowed plaintiff over three years to do so, has not been defined. The testimony offered to prove damages would be redundant to that which would be given to establish liability. The plaintiff's have indicated their intentions to conduct separate damage claims as to each class member. Additional variables include how many days each person was incarcerated, and whether they were housed in Cermak or RTU. While Plaintiffs do address this in their response, the allocation of liability under the various comparative fault rules would nevertheless involve analysis as to the knowledge of each plaintiff and would also involve an examination as to whether or not each individual volunteered to remain in the CCDC but waived their opportunity to be released by invoking their rights under the speedy trial act. This individualized factual inquiry is not proper for class actions and the alleged the injury is not a question of law or fact common to the members of the class. Lewis v. O’Grady, 853 F.2d 1366, 1370 (7th Cir. 1988). Therefore, in determining causation and present injury for each member of the proposed class the decision would turn on each plaintiff's individualized facts. Thus, common issues do not predominate over individual issues, making this case inappropriate for class disposition. Fed. R.Civ.P. 23(b)(3).
3

Case 1:07-cv-03889 Document 280 Filed 03/31/10 Page 4 of 4
CONCLUSION This is not an appropriate case for class disposition. The diversity of physical handicaps, injuries complained of, and lengths of stay demonstrate individual issues predominate. WHEREFORE, the Defendants respectfully request the Court decertify the class. Defendants further request any additional relief that the Court deems just.

Respectfully Submitted,
Cook County Sheriff
By: /s/ Daniel Gallagher
Daniel F. Gallagher
Daniel F. Gallagher QUERREY & HARROW, LTD. 175 West Jackson, Suite 1600 Chicago, Illinois 60604 312-540-7000

Anita Alvarez Cook County States Attorney By:/s/ Mary E. McClellan
Mary E. McClellan
Mary E. McClellan Assistant State’s Attorney 50 W. Washington, Suite 500 Chicago, Illinois 60602 312-603-3774

4

 
 Case 1:07-cv-03889 Document 280 Filed 03/31/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

DERRICK PHIPPS, et al.,

Plaintiffs,

No. 07 C 3889

v.
SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS,
Defendants.

Judge Elaine Bucklo

DEFENDANTS’ REPLY TO PLAINTIFFS’ MEMORANDUM IN OPPOSITON TO DECERTIFICATION

Plaintiffs, four individuals who are paraplegics or partially-paralyzed individuals, were pre-trial detainees housed at the Cook County Department of Corrections (“CCDC”) between 2006 and 2007.
Plaintiffs’ in this matter concede that this case should proceed to a determination of liability followed by individual damage determinations for each Plaintiff. That is not the proper basis for class certification. The class representatives must show that one of the requirements of Rule 23(b) is met: “that the 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 suit is the superior method “for fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23 (b)(3).
The predominance requirement of Fed.R. Civ. P. 23(b)(3) is more stringent than Rule 23(a)’s commonality requirement that the class members have a shared experience.

Case 1:07-cv-03889 Document 280 Filed 03/31/10 Page 2 of 4
Plaintiffs assert that the Seventh Circuit’s, Harper v. Sheriff of Cook County 581 F.3d 511 (7th Cir. 2009) does not bear any relationship to the case at bar. That is clearly not the case. The issue, whether each plaintiff qualifies under the ADA, is an individualized issue, the determination of which cannot be taken based on Plaintiffs’ unsupported conclusions.
Each class member’s situation is markedly different. Plaintiffs’ arguments are at odds with this as they concede that this case should proceed to liability followed by individualized damage determination. (See Docket N. 272 pg 6-10)
The evidence of alleged "present injury" would necessarily differ according to each plaintiff’s testimony and would require examination of the individual's medical records to establish that injury does indeed exist if they first qualified as being wheelchair bound.
Plaintiffs ignore that three different standards apply to the three different areas of the Jail which are the subject of this litigation. The court is aware that Cermak is being represented by the States Attorney’s office while the remaining portions of the jail are being represented by Special States Attorneys. Cermak was built subsequent to the ADA while the RTU division was built prior to ADA and Division 2 was modified in 2008 where another standard would be applied. A blanket allegation, namely that the detainees were subjected to inappropriate facilities, does not create a fact common to the class. There is no common nucleus of operative facts sufficient to satisfy the commonality and predominance requirements of Rules 23(a)(2) and 23(b)(3).
2

Case 1:07-cv-03889 Document 280 Filed 03/31/10 Page 3 of 4
Indeed, Plaintiffs admit that each member suffered damages unique to them and, after a determination of liability; a trial for each class member will be needed for damages. Proof of causation would raise additional individual issues. The proposed class, though this Court allowed plaintiff over three years to do so, has not been defined. The testimony offered to prove damages would be redundant to that which would be given to establish liability. The plaintiff's have indicated their intentions to conduct separate damage claims as to each class member. Additional variables include how many days each person was incarcerated, and whether they were housed in Cermak or RTU. While Plaintiffs do address this in their response, the allocation of liability under the various comparative fault rules would nevertheless involve analysis as to the knowledge of each plaintiff and would also involve an examination as to whether or not each individual volunteered to remain in the CCDC but waived their opportunity to be released by invoking their rights under the speedy trial act. This individualized factual inquiry is not proper for class actions and the alleged the injury is not a question of law or fact common to the members of the class. Lewis v. O’Grady, 853 F.2d 1366, 1370 (7th Cir. 1988). Therefore, in determining causation and present injury for each member of the proposed class the decision would turn on each plaintiff's individualized facts. Thus, common issues do not predominate over individual issues, making this case inappropriate for class disposition. Fed. R.Civ.P. 23(b)(3).
3

Case 1:07-cv-03889 Document 280 Filed 03/31/10 Page 4 of 4
CONCLUSION This is not an appropriate case for class disposition. The diversity of physical handicaps, injuries complained of, and lengths of stay demonstrate individual issues predominate. WHEREFORE, the Defendants respectfully request the Court decertify the class. Defendants further request any additional relief that the Court deems just.

Respectfully Submitted,
Cook County Sheriff
By: /s/ Daniel Gallagher
Daniel F. Gallagher
Daniel F. Gallagher QUERREY & HARROW, LTD. 175 West Jackson, Suite 1600 Chicago, Illinois 60604 312-540-7000

Anita Alvarez Cook County States Attorney By:/s/ Mary E. McClellan
Mary E. McClellan
Mary E. McClellan Assistant State’s Attorney 50 W. Washington, Suite 500 Chicago, Illinois 60602 312-603-3774

4

 
 Case 1:07-cv-03889 Document 179 Filed 08/20/2009 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

DERRICK PHIPPS, et al.
v.

Plaintiff,

No. 07 C 3889 Judge Elaine Bucklo

SHERIFF OF COOK COUNTY, and COOK COUNTY, ILLINOIS,

Defendants.

JOINT REPLY IN SUPPORT OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

NOW COME Defendants, Sheriff of Cook County, by and through his attorneys, Querrey

& Harrow, Ltd., and Cook County, by and through its attorney Anita Alvarez, State's Attorney

of Cook County, and in reply to Plaintiffs' Response to Defendants' Motions for Summary

Judgment, state as follows:

INTRODUCTION

Short on nouns and long on adjectives, Plaintiffs deride Defendants' Motions as

"foolhardy," "bold," "frivolous," and even "irresponsible." Defendants concede defeat in the

name calling contest-which they never entered-and turn once more to why Plaintiffs' case is

incompatible with ADA fundamentals.

Defendants' Motions raised a plethora of arguments, two of which embody Plaintiffs'

misconstruction of the ADA. First, Plaintiffs have not satisfied the ADA's physical injury

requirement. Second, Plaintiffs sue under Title II for a Title III claim. Remarkably, these

arguments do not elicit a single word from the Plaintiffs. This silence is the most notable aspect

of the Response.

Case 1:07-cv-03889 Document 179 Filed 08/20/2009 Page 2 of 12
ARGUMENT I. Plaintiffs' Response is Anything But.
The Summary Judgment Motions and Response are like ships passing in the night. Vast swaths of Defendants' Motions go untouched. Plaintiffs' refusal to address Defendants' contentions exemplifies why summary judgment is proper.
The Plaintiffs' truncated approach is manifested in the Response's opening line. Plaintiffs claim Defendants have asserted "three erroneous legal theories." (Resp. at 1). In actuality, Defendants have set forth nine distinct contentions. In the next sentence, Plaintiffs contend the "ne plus ultra of defendants' arguments is the claim that the Court should defer" to the Sheriff s discretion. (Resp. at 1). Plaintiffs' own citation belies this claim. Correctional discretion is, as Plaintiffs cite, not raised by the Sheriff until the waning pages of his Motion. (Sheriff s Mot. at 12). Hardly the preeminent stature Plaintiffs bestow upon it.
Plaintiffs' incompleteness transcends these two sentences. While Plaintiffs' opemng contentions are quickly dispatched, it is what Plaintiffs disregard that IS of critical import. Plaintiffs ignore the following arguments of the Defendants:
1. Plaintiffs' case is premised on Title III, not Title II. (County's Mot. at 6). 2. Plaintiffs have not alleged a physical injury and are thus barred by the PLRA.
(Sheriff s Mot. at 5). 3. Any physical injury sustained IS de minimis and thus not cognizable.
(Sheriff s Mot. at 6). 4. Ajail is not a public entity under Title II. (Sheriffs Mot. at 10). 5. The RTU predates the inception of the ADA. (County's Mot. at 10). 6. The Duran consent decree bars Plaintiffs' case. (County's Mot. at 12).
2

Case 1:07-cv-03889 Document 179 Filed 08/20/2009 Page 3 of 12
7. Plaintiffs are not entitled to the relief sought. (County's Mot. at 11). A response's raison d'etre is refuting the initial argument. But a position cannot be refuted if it is not addressed. Plaintiffs' failure to respond guts their case. Defendants do not highlight Plaintiffs' omissions to score debating points. The consequences of Plaintiffs' silence are severe. The Seventh Circuit concluded a plaintiff abandoned a claim after failing to respond to defendant's argument in a motion for summary judgment in Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 n.2 (7th Cir. 1996). A district court reached a similar conclusion in Johnson v. Saville, 2008 US. Dist. LEXIS 82935 *20 (N.D. Ill. 2009). The court found the plaintiff failed to make any arguments concerning a point, and "accordingly abandoned any such arguments." See also Myatt v. Chicago, 1991 US. Dist. LEXIS 7056, *26 (N.D. Ill. 1991) ("the plaintiff appears to concede this argument since it is not addressed in his response brief'); Combined Counties Police Ass'n v. Evanston, 1991 US. Dist. LEXIS 7996, *4 (N.D. Ill. 1991) (same). Per established precedent, Plaintiffs have conceded the issues they have abandoned. Because the abandoned arguments involve elements of the underlying claim, summary judgment is warranted. II. Plaintiffs' Single Paragraph Does Not Dispel the Reality That No Intentional Discrimination Exists. Even if the Court finds Plaintiffs' concessions do not sink their case, Defendants still prevail. Plaintiffs have not established intentional discrimination, an ADA requirement. The County's Summary Judgment Motion devoted significant attention to Plaintiffs' failure to establish intentional discrimination. (County's Mot. at 8-12). The argument spanned 5 pages and cited 16 cases. To this, Plaintiffs respond with a brief paragraph containing one case.
3

Case 1:07-cv-03889 Document 179 Filed 08/20/2009 Page 4 of 12
The Sheriff will not rehash the case law cited in the opening Motion, other than to note "acts of negligence do not come within the ambit of the ADA." Foley v. City of Lafayette, 359 F.3d 925, 931 (7th Cir. 2004). Plaintiffs address none of Defendants' 16 cases or their holdings. Rather than point to evidence of intentional discrimination, they quibble about the standard of proof. For support, they cite one inapposite case, Wisconsin Community Services v. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006) (en banc).
Plaintiffs' reliance on Wisconsin Community is plagued by factual and legal distinctions. In Wisconsin Community, a provider of treatment to the mentally ill sued under Title II. It sought an injunction ordering the City of Milwaukee to issue a zoning permit that would enable it to move its clinic. The Seventh Circuit described "the legal question before us [as] whether ... a city must modify its zoning standards to prevent them from discriminating against the disabled." Id at 746. The "but for" standard trumpeted by Plaintiffs was thus referenced in the context of the provider's request to modify a zoning ordinance. Id at 754. Wisconsin Community did not discuss the ADA intentional discrimination test of Washington v. Indiana High School Athletic Ass'n, 181 F.3d 840,846 (7th Cir. 1999). As such, Plaintiffs' reliance on Wisconsin Community is misplaced.
In sum, to allege a cause of action under Title II, a plaintiff must allege the defendant intended to discriminate because of the plaintiff s disability. Dabrowski v. Nelson, 2007 U. S. Dist. LEXIS 62444, *7 (N.D. Ind. 2007). See also May v. Sheahan, 1999 U.S. Dist. LEXIS 11347, *3 (N.D. Ill. 1999) ("Plaintiff must allege ... he was denied benefits or discriminated against because of his disability. "). These cases establish Plaintiffs have misread the standard for intentional discrimination. More importantly, they have not shown intentional discrimination. Thus, Plaintiffs cannot survive summary judgment.
4

Case 1:07-cv-03889 Document 179 Filed 08/20/2009 Page 5 of 12
III. Plaintiffs' Efforts to Downplay Deference to Correctional Officials and the Penological Interests of Safety and Security Contravene Precedent. Plaintiffs attack Defendants' case law concerning deference to correctional officials.
They argue the cases are offered in lieu of references to the record. (Resp. at 4). This is incorrect; the cases supplement the Sheriff s policies prohibiting contraband. They further demonstrate that because of security, correctional deference is a sine qua non of a suit against a jail. See Bell v. Wolfish, 441 US. 520, 559 (1979) ("A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.").
Unable to refute the premise of correctional deference, Plaintiffs lob various objections at Defendants' case law. (Resp. at 4). Their impact is minimal. Plaintiffs first attack Miller v. King, 384 F.3d 1248 (lIth Cir. 2004), vacated by 449 F.3d 1149 (lIth Cir. 2006). Plaintiffs are correct, Miller has been vacated, which the Sheriff neglected to mention. (Sheriffs Mot. at 12). This oversight does not change the fact that Miller was vacated on other grounds, namely, whether Title II abrogated state sovereign immunity. Miller, 449 F.3d at 1150, citing United States v. Georgia, 546 US. 151 (2006). The Sheriff cited Miller not for its holding, but a general proposition regarding penological interests. Thus, the language of Miller referenced by the Sheriff is still pertinent. This is evinced by recent decisions citing the opinion: Wiesman v. Hill, 2009 US. Dist. LEXIS 55974, *8 (D. Mass. 2009); Young v. Green, 2008 US. Dist. LEXIS 90870, *11 (D. Mass. 2008); Garcia v. United States, 2008 US. Dist. LEXIS 10672, *9 (E.D. Ky. 2008).
Plaintiffs next cite "defendants' inexplicable reliance on the district court's summary judgment decision in Arreola v. Chaudry." (Resp. at 4). The court in Arreola denied cross
5

Case 1:07-cv-03889 Document 179 Filed 08/20/2009 Page 6 of 12
motions for summary judgment. 2007 U.S. Dist. LEXIS 8701 (N.D. Ill. 2007). While the court did not find outright for the Arreola defendant, the court's rejection of the inmate's summary judgment motion is telling because the jail raised the same security argument made here. Moreover, the basis behind the policy of prohibiting crutches-security-did not trouble the court,
it was that correctional officers determined whether crutches were needed. Id at *17. Arreola is
instructive because it did not reject the security rationale behind the policy barring crutches. Plaintiffs also criticize Defendants' reading of Johnson v. Snyder, 444 F.3d 579 (7th Cir.
2006), because it "makes little sense." (Resp. at 5). Plaintiffs take umbrage with Defendants' comment that the Johnson court found it "permissible to confiscate [the crutches] while an inmate was in the general population." (Resp. at 5, quoting Sheriffs Mot. at 13). Plaintiffs criticize Defendants' interpretation despite Plaintiffs' own summary of Johnson confirming Defendants' reading. Plaintiffs note that the Johnson plaintiff "asserted that various prison officials 'knew of his amputation ... and with this knowledge refused to return his crutch. '" (Resp. at 5, quoting Johnson at 585). As the Seventh Circuit found the officials' actions permissible, Plaintiffs are betrayed by their own words.
Plaintiffs' efforts to downplay Baribeau and Kiman also fall flat. Plaintiffs offer only a
conclusory laced response about Baribeau v. City 0/ Minneapolis, 578 F.Supp. 2d 1201 (D.
Minn. 2009). (Resp. at 6). It is ineffectual in light of the Baribeau court's reliance on the "discretion of prison officials" in upholding the jail's confiscation of a prosthetic leg. Id at 1222. Plaintiffs relegate Kiman v. NH Dep't. o/Corr., 451 F.3d 274 (1st Cir. 2006), to a footnote. (Resp. at 5, n. 6). Plaintiffs do not address the penological interest aspect of the First Circuit's holding. Instead, they claim the decision "reflects a fact specific determination" - a litigant's last resort when attempting to distinguish a case. Thus, Kiman and Baribeau remain standing, and the
6

Case 1:07-cv-03889 Document 179 Filed 08/20/2009 Page 7 of 12
Court should follow their well reasoned logic that safety and security support precluding personal devices from the Jail.
Finally, Plaintiffs cite as support Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir. 1996). Love is distinguishable on several grounds. First, procedural posture. Love was an appeal of a district court's granting of a motion for a new trial. Id at 558. Second, factual. The inmate was "unable to use the prison's recreational facilities, its dining hall, the visitation facilities ..." Id at 558-59. Third, legal. The defendant in Love conceded that the ADA applied to the prison programs at issue. Id at 559. The defendant could not overcome the jury's intentional discrimination finding because it failed to present direct evidence at trial. However, the court noted that "security concerns, safety concerns, and administrative exigencies would all be important considerations." Id at 561.
Plaintiffs misconstrue the concept of deference to correctional officials. It is a legal principle, but Plaintiffs turn it into a factual determination. The Court should reject this maneuver. Correctional deference is an integral factor in correctional suits. See Bell v. Wolfish, 441 U.S. 520 (1979). The importance of Defendants' interest is clear: "central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Pell v. Procunier, 417 U.S. 817, 823 (1974). As the Seventh Circuit explained, Bell v. Wolfish "emphasized what is the animating theme of the Court's prison jurisprudence for the last twenty years: the requirement that judges respect hard choices made by prison administrators." Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995). Bell's elevation of institutional security undermines Plaintiffs' contentions.
A policy permitting entry of personal devices into the Jail would be ripe for abuse. Plaintiffs claim "it is difficult to fathom how providing wheelchair bound detainees with ADA
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accessible toilets, lavatories, or showers could result in the creation of 'weapons. '" (Resp. at 4, n. 5). This is a straw man. It is not accessibility itself; it is the personal devices that Plaintiffs seek in using the toilet and lavatory. Defendants will have to address the consequences of contraband floating into the general population. It is indisputable that correctional inhabitants have a penchant for transforming inherently innocuous items into weapons. While it may be cynical to conclude that personal devices used by wheelchair bound detainees will meet a similar fate, this view is grounded in reality. IV. Plaintiffs' Novel Reading of the ADA Subsumes Title III into Title II, and Thus
Cannot Stand. Title III of the ADA applies to privately owned facilities. It mandates the removal of physical barriers. Title II of the ADA applies to public entities. It only pertains to the accessibility of programs, services, and activities. Given that CCDOC and Cermak are owned and operated by a public entity, it is Title II, rather than Title III, that applies. Yet, Plaintiffs' claims sound in Title III. Plaintiffs employ the simplest technique to deal with this argument: ignore it completely. Title III is never referenced in the Response. The contentions Plaintiffs do make are unavailing. Plaintiffs cite regulations summarized in Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008). (Resp. at 7-9). The lengthy discussion of Pierce supports Defendants' position. The Ninth Circuit's remarks mirror the Title II Technical Assistance Manual, which Defendants have emphasized from the outset. Ultimately, the Jail is a public entity without public access. Plaintiffs' failure to grasp this fact forecloses their case. Plaintiffs also cite Purcell v. Horn, 1998 WL 10236, *9 (E.D. Pa. 1998), for the proposition that 28 C.F.R. § 35.135 "does not apply to custodial situations." (Resp. at 10, n. 9).
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Plaintiffs' reading is incorrect. Purcell never stated the regulation is per se inapplicable. Plaintiffs' placement of Purcell in a footnote reflects their confidence in it. The factual and legal distinctions ofPurcell erode its utility here. In sum, the isolated instance ofPurcell does not give Plaintiffs license to claim 28 C.F.R. § 35.135 "does not apply to custodial situations."
Additionally, Plaintiffs cite Schmidt v. Odell, 64 F.Supp. 2d 1014 (D. Kan. 1999), for the proposition that a basic service of the jail included the toilet and shower. (Resp. at 7). Plaintiffs' reading is incorrect. Schmidt concerned defendant's failure to provide the plaintiff with a wheelchair when he was transported to and from the jail. Wheelchairs were available, but the jailers refused to allow him one. They also failed to provide him with a shower chair. Summary judgment on plaintiff s Eight Amendment claim was denied because the delay in providing a shower chair and making him take a shower on his knees was an unnecessary infliction of pain. Plaintiffs' attempt to invoke Eighth Amendment standards in a Title II ADA setting is misplaced.
Plaintiffs' case law aside, their strategy is simple: pluck portions of the Defendants' arguments and mischaracterize them. For example, according to Plaintiffs, Defendants contend an accessible lavatory, toilet, or shower is a "personal device" under the ADA. This misstates Defendants' position. Defendants assert that a public entity is not required to provide a disabled individual with "personal devices" i. e. wheelchairs, eyeglasses or hearing aids, or services of a personal nature like assistance in eating, toileting, or dressing. 28 C.F.R. §35.135. Additionally, Plaintiffs define a personal device using sources outside the definitions used by Congress-i. e. a cell phone or iPod. (Resp. at 11). Defendants have never claimed that ADA accessible lavatory, toilet, shower controls, and grab bars are personal devices. The Court should reject Plaintiffs' distortions and consider Defendants' positions unadulterated. In doing so, summary judgment becomes apparent.
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V. Defendants Did Not Disregard Rule 36 Admissions. Plaintiffs' argument that Defendants disregard Rule 36 admissions is erroneous.
Plaintiffs claim the Defendants admitted that the RTU and Cermak did not have ADA accessible toilet facilities. This is untrue. The Sheriff denied that the toilet seat height measurements were less than 17 inches or more than 19 inches above the floor. See Dkt. No. 177, pgs. 17,21, 24. At no time did the Sheriff ever admit that the toilet facilities were not ADA accessible. Nevertheless, Plaintiffs attempt to take the measurements and absence of grab bars and argue that the Sheriff admitted the Jail is not ADA compliant. The Court should reject this attempt and find the Rule 36 admissions were not disregarded. VI. The Rehabilitation Act Does Not Apply to Either Defendant.
A. The County Does Not Meet the Definition of an "Entity." A plaintiff seeking relief under the Rehabilitation Act must bring forward affirmative evidence that the program or activity from which he was excluded "itself received or was directly benefited by federal financial assistance." Doyle v. Univ. of Ala., 680 F.2d 1323, 1327 (lIth Cir. 1982). Section 504 of the Rehabilitation Act of 1973, codified as 29 US.CA. § 794, prohibits discrimination against otherwise qualified disabled persons under any program or activity receiving federal financial assistance. In Bentley v. Cleveland County Bd of County Com'rs, 41 F.3d 600, (lOth Cir. 1994), the court determined that Congress intended the definition of a "program or activity" to extend to entire units of a state or local government, as long as there is a sufficient nexus between the federal assistance and the discriminatory practice. Plaintiffs' brief argument fails to demonstrate a nexus exists between any federal assistance and the alleged discriminatory practice.
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B. The Sheriff Receives No Federal Funds. The Rehabilitation Act does not apply to the Sheriff for a simple reason. As Plaintiffs point out, the Rehabilitation Act applies to "organizations" and "entities." (Resp. at 13). The Sheriff is neither. He is an independently elected officer. This distinction eviscerates Plaintiffs' Rehabilitation Act claim. The office of county sheriff is created by article VII of the Illinois Constitution. Ill. Const. 1970, art. VII, § 4(c). A sheriff is an independently elected county officer and is not an employee of the county in which the sheriff serves. Id.; Carver v. Sherif.! ofLaSalle County, 203 Ill. 2d 497, 512 (2003); Moy v. County of Cook, 159 Ill. 2d 519, 530 (1994). The office of the sheriff has no authority to levy taxes or establish a budget and thus has no funds with which to finance its expenses. Carver, 203 Ill. 2d at 516. See also 55 ILCS 5/4-6003; 55 ILCS 5/5-1106. Instead, the office of the sheriff is financed by public funds appropriated to it by the county board.ld. These principles are indisputable. They prove the Sheriff has not received federal funds, for the simple reason that he cannot. As Plaintiffs do not show to the contrary, their Rehabilitation Act claim fails as a matter of law.
CONCLUSION Defendants have laid out a litany of reasons why summary judgment is proper. Plaintiffs have not dissuaded the Court otherwise. They distort Title II, ignore ADA requirements, and succumb to the PLRA. Such deficiencies engender summary judgment.
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WHEREFORE, the Sheriff of Cook County and Cook County respectfully request the Court grant their Motions for Summary Judgment and any other relief the Court deems just.

Respectfully submitted,

SHERIFF OF COOK COUNTY

ANITA ALVAREZ STATES ATTORNEY OF COOK COUNTY

By: lsi Daniel F. Gallagher One of his attorneys
Daniel F. Gallagher Mary E. McClellan QUERREY & HARROW, LTD. 175 West Jackson, Suit 1600 Chicago, IL 60604 Tel: (312) 540-7000 Fax: (312) 540-0578

By: lsi Jamie M. Sheehan Jamie M. Sheehan
Jamie M. Sheehan Assistant State's Attorney ARDC # 6257647 500 Richard J. Daley Center Chicago, IL 60602 Tel: (312) 603-6772 Fax: (312) 603-3000

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 Case 1:07-cv-03889 Document 183 Filed 08/20/2009 Page 1 of 27

IN TH E UNITE D STATE S DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
E ASTE RN DIVISION

Der r ick P h ipps, et al., Plaintiffs -v s -
Sh er iff of Cook Cou n t y a n d Cook Cou n t y,
Defen d an ts.

) ) ) ) ) No. 07 CV 3889 ) ) (J u d ge B u cklo) ) ) )

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defen da n t s m ou n t a t h r ee pr on ged a t t a ck on pla in t iffs‟ m ot ion for su m m a r y ju dgm en t , ch a llen gin g t h e la r gely u n dispu t ed fa ct s, in t er posin g lega l object ion s wh ich r a n ge fr om t h e fr ivolou s t o t h e biza r r e, a n d seekin g t o ba r a s “u n disclosed” t h e exper t wh ose r epor t pla in t iffs su bm it t ed a s a n exh ibit t o t h eir m ot ion for cla ss cer t ifica t ion .1 Th e Cou r t sh ou ld r eject t h is pet t ifoggin g a n d gr a n t su m m a r y ju dgm en t t o t h e pla in t iff cla ss on lia bilit y.
I. Groundless Challenge to Undisputed Facts: The Plaintiff Class of Wheelchair Bound Inmates Is Protected by the ADA and the Rehabilitation Act
Defen da n t s a sser t t h a t pla in t iffs h a ve fa iled t o sh ow t h a t t h e pla in t iff cla ss con sist s of per son s wh o a r e “qu a lified in dividu a ls wit h a disa bilit y.” (Cou n t y Mem o, Recor d It em No. 169 a t 3.) Defen da n t s fa il t o su ppor t t h is a sser t ion wit h a ny coh er en t a r gu m en t .

1 P la in t iffs r espon d t o t he m ot ion t o ba r exper t in a sepa r a t e pleadin g.

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Th e Cou n t y a dm it t ed in it s r espon se t o pla in t iffs‟ fir st r equ est t o a dm it t h a t ea ch of t h e n a m ed pla in t iffs is “disa bled” wit h in t h e m ea n in g of t h e ADA.2 Recor d It em No. 56, pa r s, 3, 7, 10, a n d 14, r epr odu ced a s E xh ibit 9 t o P la in t iffs‟ Ru le 56 St a t em en t , Recor d It em No. 167. Th e Cou n t y‟s a dm ission wa s com pelled by t h e fa ct t h a t ea ch n a m ed pla in t iff h a s a per m a n en t con dit ion t h a t pr even t s h im fr om en ga gin g in t h e “m a jor life a ct ivit y” of wa lkin g.3
Th e cla ss defin it ion lim it s pa r t icipa t ion in t h is ca se t o per son s, like t h e n a m ed pla in t iffs, wh o a r e wh eelch a ir bou nd. Typica l cla ss m em ber s a r e An t on J oh n son , wh o h a d been wh eelch a ir bou nd sin ce 2000 (P la in t iffs‟ Ru le 56 St a t em en t , Recor d It em No. 167, pa r . 49), Da vid Kn igh t , wh o h a s been pa r a plegic sin ce h e wa s sh ot in 1989 (P la in t iffs‟ Ru le 56 St a t em en t , pa r . 54), a n d Cedr ic Tu cker , wh o h a s been wh eelch a ir bou n d sin ce 1992. (P la in t iffs‟ Ru le 56 Statement, par. 67.)
Defen da n t s con ceded in t h eir cr oss-m ot ion s for su m m a r y ju dgm en t t h a t “P la in t iffs … a r e „qua lified in dividu a ls wit h a disa bilit y,‟” (Sh er iff Su m m a r y J u dgm en t Mem or a n du m , Recor d It em No. 161 a t 9, a n d t h a t “[pla in t iffs] r equ ir e wh eelch a ir a ssist a n ce.” (Cou n t y Mot ion t o Su m m a r y J u dgm en t ,
2 Th e Sh er iff a dm it t ed t h a t ea ch n a m ed pla int iff h as a per m a n en t disa bilit y t h at su bst a n t ia lly lim it s a m a jor life a ct ivit y, bu t object ed t o t h e “lega l con clu sion ” t h at ea ch pla in t iff is disa bled u n der t h e ADA. Sh er iff‟s Respon se t o F ir st Requ est t o Adm it , Recor d It em No. 52, pa r s. 1-14, r epr oduced as E xh ibit 1 infra. 3 Befor e t h e effect ive dat e of t h e 2008 am en dm en t s t o t h e ADA, t he Seven t h Cir cu it a gr eed wit h t h e E E OC r egu la t ions, 29 C.F .R. §1630.2(i), t h a t a per son wh o, beca use of a per m a n en t or lon g t er m condit ion , was “su bst a n t ia lly lim it ed” in h is (or her ) a bilit y t o en ga ge in t h e “m a jor life a ct ivit y” of wa lkin g was “disa bled” un der t h e ADA. E .E .O.C. v. S ears, R oebu ck & Co. 417 F .3d 789, 801-02 (7t h Cir . 2005). Th e 2008 a m en dm en t s in cor por at ed in t o t h e st a t ut e t h e defin it ion of “m a jor life a ct ivit ies” set ou t in t h e E E OC r egu la t ion s. S ee Win sley v. Cook Cou n ty, 563 F .3d 598, 603 & n .2 (7t h Cir . 2009).
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Recor d It em N o. 162 a t 1.) Defen da n t s‟ pr esen t a r gu m en t t h a t t h e m em ber s of t h e pla in t iff cla ss a r e n ot pr ot ect ed fr om discr im in a t ion by t h e ADA is wh olly wit h ou t m er it .

II. Deliberate Flouting of Local Rule 56

Defen da n t s h a ve r espon ded t o pla in t iffs‟ Ru le 56.1 st a t em en t wit h “a r gu m en t , eva sion, a n d im pr oper den ia ls.” B ord elon v. Ch icago S ch ool R eform B d . of T ru stees, 235 F .3d 524, 528 (7t h Cir . 2000). Ra t h er t h a n a dm it pla in t iffs‟ con t en t ion s wh ich ca n n ot be dispu t ed, a n d follow t his Cou r t ‟s dir ect ion in B u llock v. Dart, 599 F .Su pp.2d 947 (N.D.Ill. 2009) t o “a dd, in a sepa r a t e n u m ber ed st a t em en t , wha t ever fa ct u a l m a t er ia l t h ey believe is n ecessa r y t o com plet e t h e pict u r e,” id . a t 950, defen da n t s u se t h eir Ru le 56.1(b)(3) st a t em en t a s a pla t for m t o a dva n ce t h eir m er it less lega l a r gu m en t (see in fra a t __-__), t ha t t h is ca se in volves viola t ion s of Tit le III of t h e ADA, wh ich does n ot a pply t o pu blic en t it ies, r a t h er t h a n Tit le II, wh ich a pplies t o defen da n t s. (Defen da n t s‟ Ru le 56.a (1)(3) Respon se, Recor d It em No. 172, pa r .s 16, 17, 18, 20, 21, 26, 27, 28, 30, 31, 33, and 34.)
Defen da n t s a lso disr ega r d t h eir obliga t ion t o “den y t h e a llega t ion s in t h e n u m ber ed pa r a gr a ph wit h cit a t ion s t o su ppor t in g eviden ce,” J u piter Alu m in u m Corp. v. H om e In s. Co., 225 F .3d 868, 871 (7t h Cir . 2000), a n d sim ply “dispu t e t h e fa ct s” wit h ou t a n y cit a t ion t o su ppor t in g eviden ce. Th is t ype of im pr oper r espon se is illu st r a t ed in Con t en t ion 13:

Con t en t ion 13: Respon se:

Th e Sh er iff does n ot h a ve a n y exper t ise in ADA com plia n ce a n d r elies on "F a cilit ies Ma n a gem en t ." (E xh ibit 26, Ku r t ovich Dep., 5/1/08, 18.) Defen da n t s dispu t e t h e fa ct s in pa r a gr a ph 13.

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Defen da n t s offer sim ila r den ia ls wit h ou t recor d cit a t ion s t o con t en t ion s 16, 17, 18, 21, 26, 27, 28, 30, 31, 33, 34, 36, 37, 38, 39, a n d 42. This is a n in su fficien t den ia l. B u sin ess S ystem s E n gin eerin g, In c. v. In tern ation al B u sin ess M ach in es, 520 F .Su pp.2d 1012, 1014 n .2 (N.D.Ill. 2007).
P la in t iffs r ecogn ize t h a t , wh en con fr on t ed wit h a su m m a r y ju dgm en t pa per s wh ich “obfu sca t es, r a t h er t h a n cla r ifies, a ny gen uin e fa ct u a l dispu t es,” Illin ois Du n eslan d Preservation S ociety v. Illin ois Departm en t of N atu ral R esou rces, 587 F .Su pp.2d 1012, 1016 (N.D.Ill. 2008), t h e Cou r t m a y be in clin ed t o sim ply den y su m m a r y ju dgm en t a n d r esolve t h e fa ct u a l dispu t es a t t r ia l. P la in t iffs u r ge t h e Cou r t t o r esist t h is t em pt a t ion beca u se t h e rea l dispu t es in t h is ca se a r e a bou t lega l, r a t h er t h a n fa ct ua l, issu es.
III. There Is No Factual Dispute that the Jail Lacks Accessible Facilities for Wheelchair Bound Detainees
Defen da n t s do n ot dispu t e t h a t beca u se of t h eir disa bilit y, wh eelch a ir bou n d pr ison er s a t t h e ja il h a ve significa n t difficu lt ies in u sin g t h e t oilet s,4 a s well a s difficu lt ies in sh ower in g,5 a n d in u sin g t h e la va t or ies.6 Defen da n t s a gr ee t h a t n eit h er t h e m edica l st a ff a t Cer m a k n or cor r ect ion a l officer s a r e a va ila ble t o a ssist disa bled in m a t es – defen da n t s a ffir m a t ively st a t e t h a t t h ey a r e n ot r equ ir ed t o “pr ovide a ssist a n ce.” Defen da n t s‟ Ru le 56.a (1)(3) Respon se, Recor d It em No. 172, pa r . 22.
4 Defen da n t s‟ Response t o Ru le 56.a(1)(3) St a t em en t , Recor d It em No. 172, r esponse t o con t en t ion s 43, 51, 56, 59, 63, 64, 68. 5 Defen da n t s‟ Response t o Ru le 56.a(1)(3) St a t em en t , Recor d It em No. 172, r esponse t o con t en t ion s 46, 53, 55, 61, a n d 69. 6 Defen da n t s‟ Response t o Ru le 56.a(1)(3) St a t em en t , Recor d It em No. 172, r esponse t o con t en t ion s 45, 53, 60, a n d 69.
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Th e pu r e qu est ion of la w pr esen t ed in t h is ca se is t h er efor e wh et h er t h e ADA or t h e Reh a bilit a t ion Act pr ovides a r em edy for t h e a ccessibilit y pr oblem s wit h t oilet s, sh ower s, a n d sin ks exper ien ced by wh eelch a ir bou nd pr ison er s a t t h e Cook Cou n t y J a il. P la in t iffs s h ow below t h a t t h is qu est ion sh ou ld be a n swer ed in t h eir fa vor
IV. A Bizarre Legal Objection: The Bogus Title III Defense Th r ou gh ou t t h is lit iga t ion , pla in t iffs h a ve m a de pla in t ha t t h eir ADA cla im a r ises u n der 42 U.S.C. §12132, t h e discr im in a t ion pr ovision of Tit le II t h a t a pplies t o pu blic en t it ies.7 Defen da n t s con cede t h a t ea ch is a pu blic en t it y a n d do n ot dispu t e t h a t Tit le II a pplies t o ja ils. Pen n sylvan ia Dept. of Correction s v. Y esk ey, 524 U.S. 206 (1998). Defen da n t s seek t o a r gu e t h a t pla in t iffs‟ cla im s of in a ccessible t oilet s, sin ks, a n d sh ower s a r e n ot cover ed by Tit le II of t h e ADA, bu t a r e on ly a ddr essed in Tit le III, a sect ion of t h e ADA t h a t does n ot a pply t o pu blic en t it ies. (Sh er iff‟s Mem or a n du m , Recor d It em No. 171, 4-6; Cou n t y Mem or a n du m , Recor d It em No. 169, 4-6.) Th a t defen da n t s a r e pr esen t in g t h is a r gu m en t for t h e fir st t im e in t en yea r s of defen din g Tit le II cla im s a t t h e ja il bespea ks of it s fr ivolit y. On e of t h e fir st Tit le II ADA ca ses t o be brou gh t a ga in st defen da n t s wa s M ay v. S h eah an , 99-CV-395. Th er e, t h e pla in t iff a r gu ed, in ter alia, t h a t t h e
7 42 U.S.C. §12132 pr ovides a s follows: Su bject t o t h e pr ovisions of t h is su bch a pt er , n o qu a lified in dividu a l wit h a disa bilit y sh a ll, by r ea son of su ch disa bilit y, be exclu ded fr om pa r t icipa t ion in or be den ied t h e ben efit s of t h e ser vices, pr ogr am s, or a ct ivit ies of a pu blic en t it y, or be su bject ed t o discr im in at ion by a n y su ch en t it y. -5-

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Sh er iff h a d discr im in a t ed u n der Tit le II of t h e ADA a ga in st a per son a fflict ed wit h AIDS wh o, like t h e m em ber s of t h e pla in t iff cla ss in t h is ca se, wa s “su bst a n t ia lly lim it ed in t h e m a jor life a ct ivit ies of wa lkin g.” 1999 WL 543187 *3. In den yin g t h e Sh er iff‟s m ot ion t o dism iss, J u dge Coa r h eld t h a t t h e pr ison er h a d st a t ed a cla im u n der Tit le II for t h e Sh er iff‟s fa ilu r e t o m a ke a r ea son a ble a ccom m oda t ion t h a t wou ld h a ve a llowed t h e pr ison er t o a t t en d t o h is “per son a l ca r e.” (Th e ADA issu e wa s n ot befor e t h e Cou r t of Appea ls in a qu a lified i m m u n it y a ppea l in M ays, 226 F .3d 876 (7t h Cir 2000).)
J u dge Coa r a ga in con sider ed a Tit le II ADA cla im a ga in st defen da n t Sh er iff in J on es v. S h eah an , 97-CV-3471, 1999 WL 1024535 (N.D.Ill. 1999). Th e pla in t iff in J on es, like t h e m em ber s of t h e pla in t iff cla ss in t his ca se, wa s a pa r a plegic wh o cou ld n ot en ga ge in t h e ever yda y a ct ivit y of wa lkin g. Th e pla in t iff cla im ed, in ter alia, t h a t t h e t oilet a n d sh ower s wer e in a ccessible t o h im beca u se of h is disa bilit y. 1999 WL 1024535 a t *3-*4. Th e Sh er iff did n ot dispu t e t h a t t h ese cla im s wer e a ct ion a ble un der Tit le II, bu t secu r ed su m m a r y ju dgm en t on t h e u n r ebu t t ed a ffida vit of Wa r r ick Gr a h a m . 1999 WL 1024535 a t *4. (Th e Sh er iff en ga ged Gr a h a m t o r epor t on ADA com plia n ce in t h is ca se; in con t r a st t o J on es, t h e Sh er iff n ow ign or es Gr a h a m ‟s fin din gs, wh ich pla in t iffs cit e t o su ppor t t h eir cr oss -m ot ion for su m m a r y ju dgm en t . See P la in t iffs‟ Ru le 56.1 Statement, pars. 7, 16, 18, 20, 24, 26, 27, 28, 30, 31, and 33.)
Defen da n t Sh er iff wa s a ga in su ed u n der Tit le II of t h e ADA in Cotton v. S h eah an , No. 02-CV-824, 2002 WL 31409575 (N.D.Ill. 2002). Th er e, a wh eelch a ir bou n d pr ison er com pla in ed a bou t t h e Sh er iff‟s fa ilu r e t o pr ovide a dequ a t e sea t in g a ccom m oda t ion s in t h e visit in g r oom for per son s in wh eelch a ir s, a s well a s t h e Sh er iff‟s fa ilu r e t o r em ove ba r r ier s in t h e visit in g r oom a n d t o
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pr ovide r ea son a ble a ccom m oda t ion s for per son s in wh eelch a ir s in t h e fa cilit y's sh ower s. 2002 WL 31409575 *2. In den ying t h e Sh er iff‟s m ot ion t o dism iss t h e Tit le II cla im , Ma gist r a t e J u dge Ash m a n h eld t h a t t h e pr ison er ‟s cla im t h a t t h e Sh er iff h a d fa iled t o m a ke r ea son a ble a ccom m oda t ion s for h is disa bilit y st a t ed a n a ct ion a ble cla im . Id . a t *3.
ADA ca ses u n der Tit le II a r isin g fr om t oilet s a n d sh ower s t h a t a r e in a ccessible t o wh eelch a ir bou n d pr ison er s a r e n ot u n iqu e t o t h e Nor t h er n Dist r ict of Illin ois. S ee, e.g., Kim an v. N ew H am psh ire Dept. of Correction s, 451 F .3d 274, 287-88 (1st Cir . 2006) (a ccessible sh ower fa cilit ies); Pierce v. Cou n ty of Oran ge, 526 F .3d 1190, 1218, 1220, 1224 n .44 (9t h Cir . 2008) (sin ks, t oilet s, a n d sh ower s); S ch m id t v. Od ell, 64 F .Su pp.2d 1014, 1033 (D.Ka n . 1999) (in a ccessible t oilet a n d sh ower ); Ou tlaw v. City of Doth an , Ala., 1993 WL 735802 (M.D.Ala 1993) (sh ower ).
Defen da n t s‟ biza r r e Tit le III t h eor y is on ly sligh t ly less fr ivolou s t h a n defen da n t s‟ fa n cifu l a r gu m en t t h a t Tit le II of t h e ADA does n ot pla ce a n a ffir m a t ive du t y on ja il officia ls t o m a ke t h e ja il a ccessible t o wh eelch a ir bou n d pr ison er s a n d in st ea d a llows ja il officia ls t o discr im in a t e a ga in st wh eelch a ir bou n d pr ison er s.
V. Title II Mandates Accessible Facilities and Prohibits Discrimination
Defen da n t s a sser t t h a t Tit le II of t h e ADA does n ot m a n da t e t h a t ja il fa cilit ies be a ccessible t o t h e disa bled. (Cou n t y Mem o, Recor d It em No. 169, a t 5; Sh er iff Mem o, Recor d It em No. 171, a t 8.) Neit h er t h e Cou n t y n or t h e Sh er iff seeks t o r econ cile t h is bold cla im wit h t h e r egu la t ion s pr om u lga t ed u n der Title II.
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Tit le II of t h e ADA r equ ir es t h e At t or n ey Gen er a l t o pr om u lga t e r egu la -
t ion s t o im plem en t t h e st a t u t e. 42 U.S.C. §12134(a ). Th ese r egu la t ion s r equ ir e
a pu blic en t it y, like t h e ja il, t o “oper a t e ea ch ser vice, pr ogr a m , or a ct ivit y so
t h a t t h e ser vice, pr ogr a m , or a ct ivit y, wh en viewed in it s en t ir et y, is r ea dily
a ccessible t o a n d u sa ble by in dividu a ls wit h disa bilit ies.” 28 CF R §35.150(a ).
Th e r egu la t ion s set ou t a va r iet y of wa y in wh ich a pu b lic en t it y m a y m a ke a fa cilit y “r ea dily a ccessible.”8 Releva n t t o t h is ca se is “a lt er a t ion of
exist in g fa cilit ies a n d con st r u ct ion of n ew fa cilit ies ,” a n opt ion wh ich “m u st m eet t h e a ccessibilit y r equ ir em en t s of §35.151.”9 28 C.F .R. §35.150(b)(1).
Defen da n t s a gr ee t h a t t h ey con st r u ct ed Cer m a k H ospit a l a ft er t h e effec-
t ive da t e of t h e ADA, Defen da n t s‟ Ru le 56.a (1)(3) Respon se, Recor d It em No.
172, pa r . 8, bu t a r e u n a ble t o expla in wh y t h e sh ower s in Cer m a k do n ot
8 28 C.F.R. §35.150(b)(1) pr ovides a s follows: (1) General. A pu blic ent it y m a y com ply wit h t h e r equ ir em ent s of t h is se ct ion t h r ou gh su ch m ean s a s r edesign of equ ipm en t , r ea ssign m en t of se r vices t o accessible bu ildin gs, assign m en t of aides t o ben eficia r ies, hom e visit s, deliver y of ser vices a t a lt er n a t e a ccessible sit es, a lt er a t ion of exis t in g fa cilit ies a n d const r u ct ion of new fa cilit ies, use of accessible r ollin g st ock or ot h er con veya nces, or a n y ot h er m et h ods t h at r esu lt in m aking it s ser vices, pr ogr a m s, or a ct ivit ies r ea dily accessible t o a n d u sa ble by in d ividu a ls wit h disa bilit ies. A pu blic en t it y is n ot r equ ir ed t o m a ke st r u ct u r a l ch a n ges in exist in g fa cilit ies wh er e ot h er m et hods a r e effect ive in a chie vin g com plia n ce wit h t his sect ion . A pu blic en t it y, in m a kin g alt er at ions t o exist in g bu ildin gs, sh a ll m eet t h e a ccessibilit y r equ ir em ent s of §35.151. In ch oosin g a m on g a va ila ble m et h ods for m eet ing t h e r equ ir em en t s of t h is sect ion , a pu blic en t it y sh a ll give pr ior it y t o t hose m et h ods t h a t offer se r vices, pr ogr am s, a n d a ct ivit ies t o qu a lified in dividu a ls wit h disa bilit ies in t h e m ost int egr a t ed set t in g a ppr opr iat e.
9 Th ese “a ccessibilit y r equ ir em ent s” ar e t h e Un ifor m F eder a l Accessibilit y St a n dar ds (“UF AS”) or t h e Am er ica n s wit h Disa bilit ies Act Accessibilit y Gu idelines for Bu ildin gs a n d F a cilit ies (“ADAAG”) discu ssed in pla in t iffs‟ openin g m em or a n du m , Recor d It em No. 166, a t 4-6.
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com ply wit h t h e ADA. 10 Defen da n t s‟ Ru le 56.a (1)(3) Respon se, Recor d It em No.
172, par. 27.
Sim ila r ly, defen da n t s a lt er ed Division 2 in 200 8 wh en t h ey m oved wh eelch a ir bou n d det a in ees fr om t h e RTU t o Division 2. Defen da n t s‟ Ru le
56.a (1)(3) Respon se, Recor d It em No. 172, pa r . 32. Defen da n t s a r e u n a ble t o
expla in wh y t h ey fa iled t o m a ke t h e t oilet s a n d t h e la va t or ies in t h e r em odeled Division 2 com ply wit h t h e ADA.11 Defen da n t s‟ Ru le 56.a (1)(3) Respon se,
Recor d It em No. 172, pa r . 33.
Befor e t h e m ove t o Division 2, wh eelch a ir bou n d pr ison er s, ot h er t h a n t h ose in Cer m a k H ospit a l, wer e h ou sed in t h e RTU.12 Th e pa r t ies a gr ee t h a t
t h e RTU wa s n ot su bject t o t h e r egu la t ion s gover n in g “a lt er a t ion of exist in g
10 Con t en t ion 27 st a t es a s follows: “Th e sh ower s in Cer m ak do n ot com ply wit h t he ADA beca u se t h e shower con t r ols a n d soap h older s a r e t oo h igh off t h e gr ou n d. (E xh ibit 20, Gr a h am Dep., 2/ 25/ 08, 80-82, 87.) It wou ld n ot be a n u n du e fin a n cia l bu r den t o fix t h is pr oblem wit h t h e sh ou lder s. (E xh ibit 20, Gr a h a m Dep. 2/ 25/ 08, 88.) Defenda n t s r espon d wit h a m ot ion t o st r ike a n d a n u nsu bst a n t iat ed “Defen da n t s disput e t h e fa ct s in par a gr a ph 27.” Defen dan t s‟ Ru le 56.a (1)(3) Response, Recor d It em No. 172, par . 27.
11 Con t en t ion 33 st at es a s follows: “Befor e t he m ove, defenda n t s un der t ook som e m odifica t ion s of Division 2. (E xh ibit 26, Ku r t ovich Dep., 11/14/08, 13) Th ese m odificat ion s fa iled t o m ake Division 2 com plia n t wit h t h e st a n da r ds of t he ADA a n d t h e Reh a bilit a t ion Act : n eit h er t h e t oilet s nor t he la va t or ies wer e accessible t o wh eelch a ir bou n d det a in ees. (E xh ibit 21, Gr a h am Dep., 4/14/08, 7-13.)” Defenda nt s r espon d wit h a m ot ion t o st r ike a n d an u n su bst a n t iat ed “Defen da n t s disput e t h e fa ct s in par a gr a ph 33.” Defenda n t s‟ Ru le 56.a (1)(3) Response, Recor d It em No. 172, pa r . 33.
12 Defenda n t s a ffir m at ively a sser t in con t ent ion s 26 a n d 29 of t h eir J oin t Ru le 56 St a t em en t , Recor d It em No. 163, t h a t disa bled pr ison er s wer e hou sed in t h e RTU a nd Cer m a k H ospit a l. Nonet h eless, defen da nt s den y P la in t iffs‟ Cont en t ion 29 (“Un t il som et im e in 2008, m a le wh eelch a ir bou n d det a in ees wh o wer e n ot assign ed t o Cer m a k H ospit al wou ld be h eld in t h e RTU ”) “a s un su ppor t ed by t h e r ecor d .” Defen da nt s‟ Ru le 56.a(1)(3) Respon se, Recor d It em No. 172, pa r . 29.
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fa cilit ies a n d con st r u ct ion of n ew fa cilit ies .”13 Defen da n t s offer on ly lega l a r gu m en t a n d a n u n su ppor t ed den ia l t o Con t en t ion s 30 a n d 31 of P la in t iffs‟ Ru le 56 St a t em en t t ha t “[d]efen da n t s h a ve kn own sin ce a t lea st 2004 t h a t t h e t oilet s in t h e RTU do n ot com ply wit h t h e ADA,” a n d t h a t “[t ]h e RTU does n ot h a ve a ccessible t oilet s or sin ks for wh eelch a ir bou n d det a in ees.” Defen da n t s‟ Ru le 56.a (1)(3) Respon se, Recor d It em No. 172, pa r s. 30, 31. Th u s, t h e qu est ion of la w pr esen t ed on t h e cr oss-m ot ion s for su m m a r y ju dgm en t is wh et h er t h e ADA r equ ir ed defen da n t s t o m a ke t oilet s a n d sin ks in t h e RTU a ccessible t o wh eelch a ir bou n d det a in ees.
An iden t ica l qu est ion wa s a n swer ed by t h e dist r ict cou r t in Cooper v. Weltn er, 1999 WL 10000503 (D.Ka n . 1999). Th er e, a disa bled pr ison er a lleged t h a t t h e sh ower fa cilit y a t a cou n t y ja il “la cked h a n dr a ils, a n on -skid su r fa ce, a sh ower h ose, a n d a sca ld pr even t er .” Th e defen da n t s a r gu ed t h a t t h eir ja il h a d been con st r u ct ed befor e en a ct m en t of t h e ADA a n d wa s t h er efor e n ot r equ ir ed t o in clu de a n ADA a ccessible sh ower . 1999 WL 10000503 a t *5. The Cou r t r eject ed t h is a r gu m en t , r elyin g on 28 C.F .R. §35.150(a ), wh ich pr ovides t h a t “A pu blic en t it y sh a ll oper a t e ea ch ser vice, pr ogr a m , or a ct ivit y so t h a t t h e ser vice, pr ogr a m , or a ct ivit y, wh en viewed in it s en t ir et y, is r ea dily a ccessible t o a n d u sa ble by in dividu a ls wit h dis a bilit ies.” Id . Th e Cou r t a lso n ot ed t h a t §35.150(c) r equ ir ed t h a t “a n y st r u ct u r a l ch a n ges u n der t a ken t o com ply wit h t h e obliga t ion s est a blish ed by t h e r egu la t ion sh a ll be m a de wit h in t h r ee yea r s
13 Th e pa r t ies a gr ee t h a t t h e RTU was bu ilt befor e en a ct m ent of t h e ADA. P la int iffs a r e n ot awa r e of a n y eviden ce t h a t t h e RTU was m at er ia lly a lt er ed aft er en a ct m en t of t h e ADA.
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of J a n u a r y 26, 1992, „bu t in a n y even t a s expedit iou sly a s p ossible.‟” 1999 WL 10000503 a t *6.
Cooper v. Weltn er, su pra, cor r ect ly a pplied t h e ADA t o a cou n t y ja il t ha t h a d been con st r u ct ed befor e en a ct m en t of t h e ADA a n d sh ou ld be followed in t h is ca se wit h r espect t o t h e RTU. Mor eover , t h er e is n o gen uin e dispu t e in t h is ca se t h a t , a s defen da n t s‟ exper t con ceded, “[d ]efen da n t s wou ld n ot h a ve in cu r r ed a n y u n du e fin a n cia l expen se if t h ey h a d a t t em pt ed t o m a ke t h e t oilet s in t h e RTU a ccessible for wh eelch a ir bou n d det a in ees.” Defen da n t s‟ Ru le 56.a (1)(3) Respon se, Recor d It em No. 172, pa r s. 30. Defen da n t s viola t ed t h e ADA wh en t h e fa iled t o m a ke t h e r equisit e m in or m odifica t ion s.
VI. The Rehabilitation Act: A Pure Question of Law Th e pa r t ies a gr ee t h a t defen da n t s‟ lia bilit y u n der Sect ion 504 of t h e Reh a bilit a t ion Act , 29 U.S.C. §794, t u r n s on t h e r eceipt of feder a l fu n ds.14 P la in t iffs a sser t ed in pa r a gr a ph 6 of t h eir Ru le 56 st a t em en t t h a t “[d]efen da n t s h a ve r eceived F eder a l fin a n cia l a ssist a n ce in 2003 a n d ea ch yea r following,” a n d su ppor t ed t h a t con t en t ion wit h excer pt s fr om t h e Cook Cou n t y Bu dget . (E xh ibit s 1-7 t o P la int iff‟s Ru le 56 St a t em en t , Recor d It em No. 167.) Defen da n t s do n ot den y t h a t t h ey r eceived F eder a l fin a n cia l a ssist a n ce, bu t a ffir m a t ively st a t e t h a t t h ey h a ve n ot “r eceived feder a l fin a ncia l a ssist a n ce for pr ogr a m s or ser vices u n der t h e ADA.”15 Defen da n t s‟ Ru le 56.a (1)(3) Re-
14 Th e Reh a bilit a t ion Act , a n d it s im plem en t in g r egu la t ions, im pose a h igh er bu r den t h a n t h e ADA. See pla in t iffs‟ openin g m em or an du m , Recor d It em No. 166, a t 6. 15 Th e Cou n t y does n ot r eceive a n y feder a l fu nds specifica lly design a t ed “for pr ogr a m s or ser vices u n der ADA Cer m a k H ealt h Ser vices or … for t h e m a kin g of pr ogr a m s a n d ser vices accessible t o t h ose qu a lified u n der t h e ADA.” Affida vit of J oh n Mor ales, E xh ibit 15 t o Recor d It em No. 163, pa r . 3. Sim ila r ly, n on e of t h e feder a l fu n ds r e-
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spon se, Recor d It em No. 172, pa r . 6. Th e pa r t ies t h u s pr esen t t h e Cou r t wit h a pu r e qu est ion of la w a bou t t h e qu a n t u m of F eder a l fin a n cia l a ssist a n ce r equ ir ed t o t r igger t h e Reh a bilit a t ion Act .
P la in t iffs con t en d t h a t defen da n t s a r e su bject t o t h e Reh a bilit a t ion Act beca u se t h e Sh er iff a n d Cook Cou n t y ea ch r eceive m on ey fr om t h e feder a l gover n m en t .16
In S ch roed er v. City of Ch icago, 927 F .2d 957 (7t h Cir . 1991), t h e S even t h Cir cu it r ecogn ized t h a t t h e Reh a bilit a t ion Act “m a kes it u n la wfu l for a n y „pr ogr a m or a ct ivit y‟ r eceivin g feder a l fin a n cia l a ssist a n ce t o discr im in a t e a ga in st t h e h a n dica pped [a n d t h a t t ]h e st a t u t e, a s a m en ded in 1988, defin es pr ogr a m or a ct ivit y t o m ea n „a ll t h e oper a t ion s‟ of a depa r t m en t , a gen cy, dist r ict , or ot h er in st r u m en t a lit y of st a t e or loca l gover n m en t t h a t r eceives or dispen ses feder a l fin a n cia l a ssist a n ce.” Id . a t 962. Th e specific h oldin g of S ch roed er is t h a t discr im in a t ion by t wo depa r t m en t s of t h e Cit y‟s fir e depa r t m en t wou ld n ot in fect t h e en t ir e cit y gover n m en t . Id .
Th e Cou r t in S ch roed er qu ot ed la n gu a ge fr om t h e legisla t ive h ist or y of t h e Civil Righ t s Rest or a t ion Act of 1987 t h a t is ger m a n e t o t h is ca se:
ceived by t h e Sh er iff a r e ea r m a r ked “for pr ogr a m s or ser vices u n der [t h e] ADA for t he Cook Cou n t y Depa r t m en t of Cor r ect ions or … for t h e m akin g of pr ogr am s a nd ser vi ces accessible t o t h ose qu a lified u n der t h e ADA.” Affida vit of Alexis H er r er a, E xh ibit 10 t o Recor d It em No. 163, pa r . 3. 16 Th e gover n m ent websit e a t www.usa spen din g.gov sh ows t h a t t h e Sher iff r eceived feder a l gr a n t s fr om t h e Depa r t m en t of J u st ice in 2004, 2005, a n d 2006 t ot a lin g m or e t h a n on e m illion dollar s. Copies of t h e r eleva nt web pa ges a r e r epr odu ced in E xh ibit 1, a t t a ched. Th e Cou n t y m a kes n o secr et of it s r eceipt of feder a l fu n ds; t h e Cook Cou n t y Bu r ea u of H ea lt h boa st s on it s websit e of it s r eceipt of feder a l fu nds. h t t p://m edicin e.joh n st r oger h ospit a l.or g/ir b/h ekt oen .h t m l (visit ed Au gu st 18, 2009).
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If feder a l h ea lt h a ssist a n ce is ext en ded t o a pa r t of a st a t e h ea lt h depa r t m en t , t h e en t ir e h ea lt h depa r t m en t wou ld be cover ed in a ll of it s oper a t ion s. If t h e office of a m a yor r eceives feder a l fin a n cia l a ssist a n ce a n d dist r ibu t es it t o loca l dep a r t m en t s or a gen cies, a ll of t h e oper a t ion s of t h e m a yor 's office a r e cover ed a lon g wit h t he depa r t m en t s or a gen cies wh ich a ct u a lly get t h e a id . S.Rep. No. 64, 100t h Con g., 2d Sess. 16 (1988), U.S. Code Con g. & Adm in . News 1988, 3, 18
Th e Ten t h Cir cu it a pplied t h is br oa d la n gu a ge t o a cou n t y in B en tley v.
Clevelan d Cou n ty B oard of Cou n ty Com m ission ers, 41 F .3d 600 (10t h Cir .
1994). Th er e, t h e pla in t iff cla im ed t h a t t h e Cou n t y h a d la id off a disa bled
em ployee beca u se of h is disa bilit y. 41 F .3d a t 602. Th e Cou n t y con ceded t h a t it
h a d r eceived feder a l fu n ds for r oa d m a in t en a n ce, bu t a r gu ed t h a t it wa s n ot
su bject t o t h e Reh a bilit a t ion Act “beca u se Con gr ess did n ot in t en d en t ire
cou n t y gover n m en t s t o be pr ogr a m s or a ct ivit ies a s defin ed in t h e Act .” Id . a t
603. Th e Cou r t of Appea ls r eject ed t h is a r gu m en t , dist in gu ish ed S ch roed er v.
City of Ch icago, su pra, a n d h eld t h a t Congr ess h a d in t en ded t o m a ke en t ir e
cou n t y gover n m en t s su bject t o t h e Reh a bilit a t ion Act . Id
Th e r egu la t ion s im plem en t in g t h e Reh a bilit a t ion Act su ppor t pla in t iffs‟
posit ion t h a t defen da n t s a r e su bject t o t h e Act . 28 C.F .R. §42.102(d) pr ovides
a s follows:
(d) Th e t er m s program or activity a n d program m ea n a ll of t h e oper a t ion s of a n y en t it y descr ibed in pa r a gr a ph s (d)(1) t h r ou gh (4) of t h is sect ion , a n y pa r t of wh ich is ext en ded F eder a l fin a n cia l a ssist a n ce:
(1)(i) A depa r t m en t , a gen cy, specia l pu r pose dist r ict , or ot h er in st r u m en t a lit y of a St a t e or of a loca l gover n m en t ; or
(ii) Th e en t it y of su ch St a t e or loca l gover n m en t t h a t dist r ibu t es su ch a ssist a n ce a n d ea ch su ch depa r t m en t or a gen cy (a n d ea ch ot her St a t e or loca l gover n m en t en t it y) t o wh ich t h e a ssist a n ce is ext en ded , in t h e ca se of a ssist a n ce t o a St a t e or loca l gover n m en t ;
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Th e feder a l gover n m en t “ext en ds” fu n ds dir ect ly t o Cook Cou n t y a s well a s t o t h e Sh er iff of Cook Cou n t y. See n ot e 14 an te. Bot h en t it ies a r e t h er efor e su bject t o t h e Reh a bilit a t ion Act .
VII. Defendants Transform Three Disjunctive Methods of Proof into a “Three Part Test”
In Wash in gton v. In d ian a H igh S ch ool Ath let ic Ass’n , 181 F .3d 840 (7t h Cir . 1999), t h e Seven t h Cir cu it set ou t t h r ee differ en t wa ys in wh ich a pla in t iff cou ld pr ove a cla im un der t h e Reh a bilit a t ion Act or Tit le II of t h e ADA. Id . at 847. Defen da n t s com bin e t h ese t h r ee m et h ods in t o a single, t h r ee pa r t t est , blit h ely su bst it u t ing a n “a n d” for a n “or .” (Cou n t y Mem o, Recor d It em No. 169, 7.) Th e Cou r t sh ou ld r eject t h is a t t em pt t o ch a n ge t h e la w.
Th e Cou r t sh ou ld a lso r eject defen da n t s‟ a r gu m en t t h a t t h e eviden ce fa ils t o sh ow deliber a t e in differ en ce.17 Th e r ecor d in t h is ca se sh ows t h a t defen da n t s h a ve sh own “deliber a t e in differ en ce t o t h e st r on g likelih ood t h a t pu r su it of it s qu est ion ed policies will likely r esu lt in a viola t ion of feder a lly pr ot ect ed r igh t s.” Access L ivin g of M etropolitan Ch icago v. Ch icago T ran sit Au th ority, 2001 WL 492473 *7 (N.D.Ill. 2001). Defen da n t s kn ew sin ce a t lea st 2004 t h a t t h e t oilet s in t h e RTU did n ot com ply wit h t h e ADA. (P la in t iffs‟ Ru le 56 St a t em en t , Recor d It em No. 167, pa r . 30.) Defen da n t s did not a t t em pt t o fix t h is pr oblem , even t h ou gh m a kin g t h ose t oilet s a ccessible wou ld n ot h a ve ca u sed a n y u n du e fin a n cia l bu r den . (P la in t iffs‟ Ru le 56 St a t em en t , Recor d
17 Alt h ou gh t h e Nin t h Cir cu it r equ ir es t h e pla in t iff in a Tit le II ADA cla im t o show “deliber a t e in differ en ce,” Duvall v. Cou n ty of Kitsap, 260 F .3d 1124, 1138 (9t h Cir . 2001), t h e Sevent h Cir cu it h a s n ever a dopt ed t h is st a nda r d, bu t em ploys t h e “bu t for ” st a n dar d set ou t in Wiscon sin Com m u nity S ervices, In c. v. City of M ilw au kee, 465 F .3d 737, 747 (7t h Cir . 2006).
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It em No. 167, pa r . 30.) Sim ila r ly, defen da n t s fa iled t o a ffor d a pr ior it y t o pla cin g wh eelch a ir bou n d det a in ees in t he m or e a ccessible r oom s in Cer m a k H ospit a l, (P la in t iffs‟ Ru le 56 St a t em en t , Recor d It em No. 167, pa r . 25), a n d fa iled t o in su r e t h a t t h e m odifica t ion s t o Division 2 (u n der t a ken du r in g t h e pen den cy of t h is la wsu it ) com plied wit h ADA a ccessibilit y st a n da r ds. (P la in t iffs‟ Ru le 56 St a t em en t , Recor d It em No. 167, pa r . 33.)
VIII. Conclusion F or t h e r ea son s a bove st a t ed a n d t h ose pr eviou sly a dva n ced, t h e Cou r t sh ou ld gr a n t pla in t iffs‟ m ot ion for su m m a r y ju dgm en t on lia bilit y.
Respect fu lly su bm it t ed,
/s/ Ken n et h N. F la xm a n Kenneth N. Flaxman ARDC 830399 200 S Mich iga n Ave, St e 1240 Ch ica go, IL 60604 (312) 427-3200 Th om a s G, Mor r issey 10249 S. West er n Ave. Ch ica go, IL. 60643 (773) 233-7900 Rober t H . F a r ley, J r . 1155 S Wa sh ingt on Na per ville, Illin ois 60540 (630) 369-0103 Attorn eys for th e Plain tiff Class
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Exhibit 1

Case 1:07-cv-03889 Document 183 Filed 08/20/2009 Page 17 of 27
Awards for 2004
http://www.usaspending.gov/faads/faads.php?datype=H&detail=4&recipient_ name=%27Cook%20County%20Sheriffs%27&fiscal_year=2004&recipient_state_co de=17&recipient_city_name=Chicago&agency_code=1550 (visited 8/20/2009)

Plaintiffs' Exhibit 1

Page 1

Federal Assistance for Recipient Name : 'Cook County Sheriffs', Recipien... http://www.usaspending.gov/faads/faads.php?datype=H&detail=4&recipi...
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031

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16.544

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GANG-FREE SCHOOLS AND COMMUNITIES-COMMUNITY BASED GANG INTERVENTION

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GANG RESISTANCE EDUCATION AND TRAINING (GREAT)

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Fiscal Year

2004

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20044

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$188,897

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12/31/2004

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Plaintiffs' Exhibit 1

1714000 ILLINOIS

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Principal Place County or City CHICAGO

Total transactions for fiscal year 2004: 1 Federal funding (within this search) for the year : $188,897

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Awards for 2005
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Plaintiffs' Exhibit 1

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GANG RESISTANCE EDUCATION AND TRAINING (G.R.E.A.T.) PROGRAM

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(Award or Aggregate # 1)

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2005

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20054

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continuation (funding in succeeding budget period which stemmed from prior agreement to fund - amount of the current action)

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$188,897

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$0

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$188,897

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06/30/2006

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Plaintiffs' Exhibit 1

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ILLINOIS

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Total transactions for fiscal year 2005: 1 Federal funding (within this search) for the year : $188,897

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Awards for 2006
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Plaintiffs' Exhibit 1

Page 7

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14000

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20064

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06/30/2007

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Plaintiffs' Exhibit 1

1714000 ILLINOIS

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Principal Place County or City CHICAGO

Award Or Aggregate # 2

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(Award or Aggregate # 2) COOK COUNTY SHERIFFS OFC

Recipient City Code

14000

Recipient City Name

CHICAGO

Recipient County Code

031

Recipient County Name

COOK COUNTY

Recipient State Code

Illinois

Recipient State Name

ILLINOIS

Recipient Zip Code

60602

Congressional District

IL90: Illinois unknown districts

Recipient Congressional District 90

Recipient Category

Government

Recipient Type

county government

Recipient DUNS Number

Project and Award Info

Major Agency

Department of Justice

Agency Code

1550: DOJ - Office of Justice Programs

Agency Name

DOJ-OFFICE OF JUSTICE PROGRAMS

Federal Award ID

2006JVFX0045

State Application ID Number SAI NOT AVAILABLE

CFDA Program Number

16.737

CFDA Program Title

GANG RESISTANCE EDUCATION AND TRAINING

Assistance Category

Grants & Cooperative Agreements

Assistance Type

project grant

Project Description

GANG RESISTANCE EDUCATION AND TRAINING

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Program Source Account

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Ac t ion

(Award or Aggregate # 2)

Fiscal Year

2006

Fiscal Year / Quarter

20064

Action Type

new assistance action

Federal Funding Amount

$143,245

Non-Federal Funding Amount

$0

Total Funding Amount

$143,245

Obligation / Action Date

09/14/2006

Starting Date

07/01/2006

Ending Date

06/30/2007

Record Type

individual action

Principal Place

Principal Place Code

1714000

Principal Place State

ILLINOIS

Principal Place County or City CHICAGO

Total transactions for fiscal year 2006: 2 Federal funding (within this search) for the year : $982,389

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Plaintiffs' Exhibit 1

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Illi i

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Case 1:07-cv-03889 Document 183 Filed 08/20/2009 Page 27 of 27
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of August, 2009, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Jamie Melissa Sheehan, Ass’t State’s Atty, 50 W Washington St, Room 500, Chicago, IL 60602, and Daniel Francis Gallagher, Esq., Querrey & Harrow, Ltd., 175 W Jackson Blvd, Ste 1600, Chicago, IL 60604-2827 , and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 
 Case 1:07-cv-03889 Document 19 Filed 09/14/2007 Page 1 of 6

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al., Plaintiff,
vs. Sheriff of Cook County and Cook County,
Defendants.

)

)

)

07 C 3889

)

)

Honorable Judge

)

Elaine Bucklo

)

)

Magistrate Judge Cole

)

DEFENDANTS’ ANSWER TO PLAINTIFF’S AMENDED COMPLAINT NOW COME Defendants COOK COUNTY SHERIFF TOM DART and COOK COUNTY, by their attorney RICHARD A. DEVINE, State’s Attorney of Cook County, through his Assistant State’s Attorney, Jamie M. Sheehan, and answer Plaintiff’s Complaint as follows: 1. This is a civil action arising under Section 202 of the Americans with Disabilities Act, 42 U.S.C. §12132, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and 42 U.S. C. §1983. The jurisdiction of this Court is conferred by 28 U.S.C. § 12133, 29 U.S.C. § 794a(a)(2), and 28 U.S.C. §1343. ANSWER: Defendants admit that jurisdiction is proper. 2. Plaintiffs Derrick Phipps, Kevin House, Kenneth Courtney, and James Grant are residents of the Northern District of Illinois who are wheelchair bound. ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph two. 3. Defendants are the Sheriff of C ook County and Cook County, Illinois. ANSWER: Defendants admit the allegations contained in paragraph three.

Case 1:07-cv-03889 Document 19 Filed 09/14/2007 Page 2 of 6
4. Plaintiff Phipps is a paraplegic. He was assigned to the “Residential Treatment Unit” (RTU”) of Division Eight from April 11, 2007 to May 13, 2 007.
ANSWER:
5. While confined at the RTU, Plaintiff Phipps was discriminated against because of his disability in violation of §202 of the Americans with Disabilities Act of 1990 (ADA) and § 504 of the Rehabilitation Act of 1973 because defendants fail ed to provide appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound persons.
ANSWER: Defendants deny the allegations contained in paragraph five. 6. Plaintiff Phipps developed an infection from his bed sore s as the direct and proximate result of the discrimination described above; on or about May 13, 2007, plaintiff was transferred to the hospital wing of Division Eight (“Cermak Hospital”) where he remained until he was discharged in July of 2007. ANSWER: Defendants deny the allegations contained in paragraph six. 7. While confined at Cermak Hospital, Plaintiff Phipps continued to be discriminated against because of his disability in violation of §202 of the Americans with Disabilities Act of 1990 (ADA) and § 504 of the Rehabilitation Act of 1973 because defendants failed to provide appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheel chair bound persons. ANSWER: Defendants deny the allegations contained in paragraph se ven. 8. Plaintiff Phipps incurred personal injuries as a result of the above described discrimination at the RTU and Cermak Hospital: plaintiff fell on several occasions while trying to maneuver his body from the wheelchair to a non -handicap accessible toilet; and while trying

Case 1:07-cv-03889 Document 19 Filed 09/14/2007 Page 3 of 6
to maneuver his body from the wheelchair to the non -handicap accessible bed; plaintiff was required to shower while sitting in his wheelchair (rather than on a handicap accessible chair) and was unable to clean and dry his body.
ANSWER: Defendants deny the allegations contained in paragraph eight. 9. Plaintiff Phipps was also denied enlargement from custody at the Cook County Jail through the “Sheriff’s Electronic Monitoring” program because of his disability: plaintiff was found qualified for placement in the “Electronic Monitoring” program on his admission to the jail but was denied placement in this program because of the Sheriff’s refusal to maintain appropriate policies for the transportation of persons, like plaintiff, who are pa raplegic. ANSWER: Defendants deny the allegations contained in paragraph nine. 10. Plaintiff Kevin House is a paraplegic. He was assigned to Cermak Health from March 15, 2007 through April 6, 2007. While confined to Cermak Hospital, Plaintiff House was discriminated against because of his disability in violation of ADA and Sect. 504 of the Rehabilitation Act of 1973 because defendants failed to provide him appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bo und persons. ANSWER: Defendants deny the allegations contained in paragraph ten. 11. Plaintiff House incurred personal injuries as a result of the above described discrimination at Cermak Hospital: plaintiff fell on several occasions while attempted to t ransfer to a non-accessible chair in the shower area. ANSWER: Defendants deny the allegations contained in paragraph eleven. 12. Plaintiff Courtney is a paraplegic. Since entering the Jail on June 6, 2006, Plaintiff Courtney has been assigned to Cermak Hospital. He is being discriminated against at Cermak Hospital because of his disability in violation of ADA and Sect. 504 of the

Case 1:07-cv-03889 Document 19 Filed 09/14/2007 Page 4 of 6
Rehabilitation Act of 1973 because defendants have not provided him with appropriate shower facilities, washbasins and appropriate beds for wheelchair bound persons. Since entering Cermak Hospital, Plaintiff Courtney has been unable to take a shower because the showers are not accessible. Plaintiff Courtney has filed a grievance and exhausted the administrative remedies available at the Jail prior to filing this action.
ANSWER: Defendants deny the allegations contained in paragraph twelve. 13. Plaintiff Courtney has suffered personal injuries as a result of the above -described discrimination at Cermak Hospital. Plaintiff ha s fallen on several occasions attempting to transfer from his inaccessible bed to his wheelchair. Courtney’s bedsores have also become infected as a result of not being able to shower. ANSWER: Defendants deny the allegations contained in paragraph thir teen. 14. Plaintiff James Grant has a spinal cord injury and is partially paralyzed on his left side. Since March of 2007, Plaintiff Grant has been assigned to Cermak Hospital and is being discriminated against because of his disability in violation of A DA and Sect. 504 of the Rehabilitation Act of 1973 because defendants have failed to provide him appropriate shower facilities, toilets, washbasins and appropriate beds for wheelchair bound persons. Since entering Cermak Hospital, Plaintiff Grant has bee n unable to take a shower because the showers are not accessible. Plaintiff Grant has filed a grievance and exhausted the administrative remedies available at the Jail prior to filing this action. ANSWER: Defendants deny the allegations contained in para graph fourteen. 15. Plaintiff Grant has suffered personal injuries as a result of the above described discrimination at Cermak Hospital: Plaintiff Grant has fallen on several occasions attempting to

Case 1:07-cv-03889 Document 19 Filed 09/14/2007 Page 5 of 6
transfer to and from the toilet and he has developed ra shes on his body as a result of not being able to shower.
ANSWER: Defendants deny the allegations contained in paragraph fifteen.
16. As a result of the foregoing, the plaintiffs have incurred physical injuries, were subjected to emotional distress, and were deprived of equal protection of law, as secured by the Fourteenth Amendment to the Constitution of the United States, and were discriminated against in violation of the Americans with Disabilities Act, 42 U.S.C. §12132 and Section 504 of the Rehabilitation Act.
ANSWER: Defendants deny the allegations contained in paragraph sixteen. 17. Plaintiffs bring this action for a class of all former and current wheelchair bound inmates at the Cook County Department of Corrections who on or after July 12, 2005 were subjected to discrimination because of their disability in violation of §202 of the Americans with Disabilities Act of 1990 (ADA) and §504 of the Rehabilitation Act of 1973 because defendants failed to provide appropriate shower facilities, appropria te toilet facilities, and appropriate beds for wheelchair bound persons. The proposed class satisfies each of the requirements of Rule 23(a) of the Federal Rules of Civil Procedures. The relief sought is appropriate damages for each person subjected to the aforementioned discrimination and class certification is appropriate under Rule 23 (b)(3). ANSWER: Defendants admit that this is a putative case for damages brought on behalf of four plaintiffs, defendants, however, deny the remaining allegations and further state that this case is not suitable for class action.

Case 1:07-cv-03889 Document 19 Filed 09/14/2007 Page 6 of 6

Defendants demand trial by jury.

JURY DEMAND
Respectfully submitted,
RICHARD A. DEVINE State’s Attorney of Cook County
By: S:/ Jamie M. Sheehan Jamie M. Sheehan Assistant State’s Attorney 500 Richard J. Daley Center Chicago, Illinois 60602 (312) 603-6772 ARDC# 6257647

 
 Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Derrick Phipps, et al., Plaintiffs,
-vsSheriff of Cook County and Cook County,
Defendants

) ) ) ) No. 07 CV 3889 ) ) (Judge Bucklo) ) ) )

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
Plaintiffs have asked the Court to allow this case to proceed as a class
action under Rule 23(b)(3) on behalf of wheelchair bound persons who have been
and who are detained at the Cook County Jail.
Defendant Sheriff of Cook County opposes class certification; defendant
Cook County has not filed a response to the motion. Plaintiffs demonstrate in this
memorandum that the Sheriff’s objections have been rejected in other litigation in
this district and continue to be without merit. Accordingly, the Court should order
that the case may proceed as a class action for
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 Sec. 202 of the Americans with Disabilities Act of 1990 (ADA) and Sec. 504 of the Rehabilitation Act of 1973.

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 2 of 56
I. The Sheriff’s Challenge to the Merits of Plaintiffs’ Claims Have No Place on this Motion for Class Certification
The Sheriff acknowledges (Sheriff Mem. 2-3) the holding of Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 178 (1974), that a motion for class certification is not a mini-trial on the merits, but is limited to the question of whether the proposed class satisfies the requirements of Rule 23. Nonetheless, the Sheriff argues that class certification should be denied because plaintiffs will not prevail. (Sheriff Mem. 7-8, 11-12.) This argument is based on a misunderstanding of plaintiffs’ claims.
Plaintiffs alleged that they and other wheelchair bound inmates at the Cook County Jail were not provided with “appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound persons.” (Amended Complaint, par. 5.) Named plaintiff Derrick Phipps, a paraplegic, incurred personal injuries when he fell while trying to maneuver his body from the wheelchair to a non-handicap accessible toilet. (Amended Complaint, par. 8.) Named plaintiff Kevin House, also a paraplegic, incurred personal injuries when he fell while attempting to transfer from his wheelchair to a non-handicap accessible chair in the shower area. (Amended Complaint, par. 11.) Named plaintiff Kenneth Courtney, another paraplegic, was unable to shower because of the lack of accessible facilities (Amended Complaint, par. 12); Courtney’s inability to shower resulted in infected bed sores. (Amended Complaint, par. 13.) Named plaintiff James Grant, who is partially paralyzed on his left side, was also unable to shower;
-2-

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 3 of 56
Grant’s inability to shower resulted in rashes on his body. (Amended Complaint, par. 15.)
The Sheriff seeks to ignore plaintiffs’ specific allegations, and asks the Court to view plaintiffs’ claims as based on “percentages and other factors.” (Sheriff Mem. 12.) The Sheriff argues that plaintiffs cannot prevail because “the Architectural and Transportation Barriers Compliance Board did not opt to require that the accessible cells be dispersed within the same security level, allowing facilities to cluster accessible cells together.” (Sheriff Mem. 7.) The Sheriff also argues that plaintiffs’ claim under the Rehabilitation Act will fail because plaintiffs have not alleged that federal funds are used in the operation of the jail.1 (Sheriff Mem. 4.)
The Sheriff’s arguments are hard to follow and appear to be based on the meritless legal theory that class certification should be denied because plaintiffs are “doomed to lose the lawsuit.” Young v. County of Cook, No. 06 C 558 (Mem.Op., April 25, 2007, 15, attached hereto as Exhibit 3.) Judge Kennelly
1 The receipt of federal funds is an element of a claim under the Rehabilitation Act. Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 755 (7th Cir. 2006). Under the Federal Rules of Civil Procedure, however, a complaint need not allege each element of a cause of action. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12 (2002). Moreover, the fact that Cook County will receive 123 million dollars in federal funds in 2008 (a fact which appears in the Cook County Revenue Estimate for 2008, attached hereto as Exhibit 1, and which is therefore subject to judicial notice, Pension Fund v. Blackmore Sewer Const., 298 F.3d 600, 607 (7th Cir. 2002), “plausibly suggest[s],” Bell Atlantic Corp. v. Twombly, 127 1955, 1964 (2007), that the plaintiffs have a right to relief on their Rehabilitation Act claim.
-3-

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 4 of 56
roundly condemned this argument in his order granting class certification in Young, supra. (Mem.Op., April 25, 2007, 15-16, Exhibit 3 at 15-16.) Moreover, this “doomed to lost” argument flies in the face of the principle established nearly 30 years ago in United States Parole Commission v. Geraghty, 445 U.S. 388 (1980) that even a ruling that a plaintiff’s claim is “unsound doesn’t mean that a class action by the plaintiff is doomed to failure.” Wiesmueller v. Kosobucki, ___ F.3d ___, ___ (No. 07-2601, 7th Cir., Jan. 29, 2008, slip op. 4). The remaining arguments advanced by the Sheriff in opposition to class certification are equally without merit.
II. The Proposed Class Definition Is “Well Defined”
An essential element of a properly certified class is that the class be “well defined,” i.e., that it is “administratively feasible” to determine the identity of class members. Wallace v. Chicago Housing Authority, 224 F.R.D. 420, 425 (N.D.Ill. 2004). In its decision certifying a class in Bullock v. Sheahan, 225 F.R.D. 227 (N.D.Ill. 2004), this Court rejected the Sheriff’s argument that plaintiffs had not “presented a definable class.” Bullock, 225 F.R.D. at 229. The Sheriff makes the same argument in this case, asserting that plaintiffs’ proposed class definition would require the Court “to make individual factual inquiries into the circumstances surrounding each inmate’s incarceration.” (Sheriff Mem. 9.)
Pursuant to Cook County Department of Corrections General Order 7.4 (attached hereto as Exhibit 2), jail personnel evaluate all persons being processed
-4-

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 5 of 56
into the jail for “various handicaps.” (General Order 7.4, Section III, Exhibit 2 at 1.) Jail personnel then assign wheelchair bound inmates to one of several housing units. (General Order 7.4, Section III(3).) This housing assignment involves the same “individual factual inquiry” required to determine membership in the proposed class. It is folly to suggest that there will be unspecified “administrative burdens” (Sheriff Memo. 10), for the Sheriff to continue to determine the identity of the inmates who require a wheelchair. Moreover, ascertaining whether an inmate requires a wheelchair is quite different from inquiring into the “putative class members' states of mind” which precluded class certification in Schmidt v. United States DAV, 218 FRD 619, 638 (E.D. Wis. 2003), the primary case cited (Sheriff Mem. 11) by the Sheriff to support this meritless argument.
This Court concluded in Bullock that plaintiffs had “proposed a sufficiently well-defined class,” Bullock, 225 F.R.D. at 229, because the Sheriff could “determine, prior to any need for a strip search of an inmate returning from court, whether a given inmate will be released pursuant to the court order or will be reentering the jail population.” Id. In this case, as an ordinary part of running the jail, the Sheriff determines which inmates requires a wheelchair. As in Bullock, plaintiffs have proposed a well-defined class and the Court should reject the Sheriff’s meritless arguments to the contrary.
-5-

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 6 of 56
III. The Proposed Class Satisfies Rule 23(a)
A. Numerosity Plaintiffs pointed out in paragraph three of their motion for class certification that, in addition to the four named plaintiffs, at least 12 wheelchair bound inmates were at the jail in the four week period between August 29, 2007 and September 26, 2007. Plaintiffs also demonstrated through sworn declarations that each of these wheelchair bound persons was denied wheelchair accessible toilets and shower at the jail. Plaintiffs’ counsel estimated from this snapshot that the proposed class includes more than 50 wheelchair bound inmates.2 (Class Motion, par. 3.). The Sheriff agrees that the numerosity requirement of Rule 23(a) can be satisfied by counsel’s “reasonable estimate of the number of class members," (Sheriff Mem. 5), and cites a case (at Sheriff Mem. 5), which notes that “courts have found this element satisfied when the putative class consists of as few as 10 to 40 members.”3
2 A class size of 50 exceeds the “rule of thumb” of 40 endorsed by this Court in Hernandez v. Chase Bank USA, N.A., 243 F.R.D. 285, 287 (N.D.Ill. 2006). 3 Block v. Abbott Laboratories, 2002 WL 485364, *3 (N.D.Ill. 2002). See. e.g., Rosario v. Cook County, 101 F.R.D. 659, 661 (N.D. Ill. 1983) (class of 20); Allen v. Isaac, 99 F.R.D. 45, 53 (N.D. Ill. 1983) (class of 17); Davy v. Sullivan, 354 F.Supp. 1320, 1325 (M.D. Ala. 1973) (class of 10).
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 7 of 56
The Sheriff is unable to argue that plaintiffs’ counsel lack the requisite experience to make a “reasonable estimate.” Nor does the Sheriff seek to argue that counsels’ estimate that the class will exceed 50 persons is unreasonable. As in Young v. County of Cook, No. 06 C 558, counsel’s estimate “is rooted in common sense, not speculation.” 4 (Young, Mem.Op., April 25, 2007, 6, Exhibit 3 at 6.)
The Sheriff’s only objection to plaintiffs’ estimate of class size is that it is supported by statements which “are not notarized, contain corrections/amendments without being initialed by the person providing the statement, and are clearly not the statements of the individual, as all of the `individual statements’ contain nearly identical language.” (Sheriff Mem. 5.) This groundless and irresponsible accusation seeks to hide the fact that the Sheriff had an ample opportunity to depose the named plaintiffs as well as the persons who submitted the sworn declarations: plaintiffs filed their motion for class certification on October 24, 2007; the Sheriff obtained an extension of time to January 14, 2008 to file his response. At no time during this 82 day period did the Sheriff seek to depose any of the plaintiffs or members of the proposed class.
In its order certifying a class in Bullock, the Court noted that, after initially arguing that the proposed class lack numerosity, the Sheriff estimated the size of
4 The size of the class was estimated in Young “[f]rom publicly available data” of admissions to the jail “over a four-day period in January, 2007.” Young, supra, Mem.Op., April 25, 2007, 6, attached hereto as Exhibit 3.
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 8 of 56
the class “between 60,000 and 120,000 individuals.” Bullock, 225 F.R.D. at 230 n.2. The class proposed by plaintiffs in this case will not be as large, but will satisfy Rule 23(a) because it will be sufficiently numerous to make joinder impracticable. As in Bullock, the Court should reject the Sheriff’s numerosity objections.
B. Commonality and Typicality The Sheriff agrees that the commonality requirement of Rule 23(a) requires that “class members share common questions of law or fact.” (Sheriff Mem. 5, quoting Rosario v. Livaditis, 963 F.2d 1013, 1028 (7th Cir. 1992).) The Sheriff also agrees that the typicality requirement of Rule 23(a) is “closely related to the commonality requirement” (Sheriff Mem. 6, quoting Ruiz v. Stewart Assoc., Inc., 171 F.R.D. 238, 242 (N.D.Ill. 1997). Finally, the Sheriff does not challenge this Court’s holding in Bullock that “[t]ypicality is shown when the named plaintiffs’ claims arise from the same event or practice as the claims of the proposed class and are based on the same legal theory.” 225 F.R.D. at 230. Plaintiffs identified in their class motion the common question of fact of whether “the jail fails to provide appropriate shower facilities and appropriate toilet facilities for wheelchair bound persons.” (Class Motion, par. 5.) The Sheriff concedes that each plaintiff alleges that he was denied such appropriate facilities while at the jail. (Sheriff Mem. 1.) The Sheriff also concedes that each plaintiff asserts the same legal claim of unlawful discrimination based on a physical
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 9 of 56
disability. Id. Nonetheless, the Sheriff seeks to argue that plaintiffs “cannot prove their alleged ADA claims are common or typical to the alleged claims of the socalled class members.” (Sheriff Mem. 6.) The Sheriff supports this argument with the same tired and meritless contentions which have been repeatedly rejected in this district
According to the Sheriff, this case cannot proceed as a class action because “each Plaintiff’s experience is unique as to where they were housed and to what standard of accessibility applied to the different facilities while being detained at CCDOC.” (Sheriff Mem. 7.) This Court rejected a similar argument in Bullock because “[p]otential factual differences . . . are bit sufficient to defeat typicality.” 225 F.R.D. at 230. Judge Coar rejected the same legal theory in Jackson v. Sheriff, 06-C-493, noting that the defendants “rely too much on select factual determinations that might vary on a case-by-case basis.” Jackson, supra, Mem.Op., Dec. 14, 2006, 8, Exhibit 4 at 8. Judge Kennelly rejected likewise rejected the Sheriff’s argument in Young v. County of Cook, No. 6-C-552, citing De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) for the proposition that “[t]he likelihood of some range of variation in how different groups of new detainees were treated does not undermine the fact that the claims of each class share a common factual basis and legal theory.” (Young, Mem.Op., April 25, 2007, 10, Exhibit 3 at 10.)
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 10 of 56
In this Court, the Sheriff seeks to repackage his tired and meritless legal theory about differences between class members by arguing that wheelchair bound inmates are “housed in different facilities” at the jail and by asserting that these facilities (the “RTU or “Residential Treatment Unit” and Cermak Hospital) were “built at different time and are subject to different requirements under Title II of the ADA.” (Sheriff Mem. 6.) This argument has been repeatedly rejected in ADA class actions.
In Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994), a state-wide challenge to wheelchair accommodations at movie theaters, the Court concluded that “[i]nadequate wheelchair accommodations at particular theaters are very likely to affect all wheelchairs-users in the same way.” Id. at 449. The Court found that the proposed class satisfied the commonality and typicality requirements because “the state of such accommodations at defendant’s various theaters, and the legal adequacy of those accommodations, are issue of fact and law common to all of those disabled persons affected by them. Id
The district court in Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Ca. 2004) stated the accepted and ordinary rule that applies here: “where people who use wheelchairs encounter the same types of barriers at a number of commonlyowned or affiliated public accommodations, commonality is established and class certification is appropriate.” Id. at 609 . (citations omitted).
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 11 of 56
In the instant case, the legal adequacy of the accommodations of the Residential Treatment Unit and Cermak (irrespective of when they were built or altered) present issues of fact and law common to the putative class. The manner in which the named plaintiffs have been harmed by the Sheriff’s discriminatory barriers and policies are typical of the claims asserted for the class. This case therefore satisfies the commonality and typicality requirements of Rule 23(a); the Court should reject the Sheriff’s arguments to the contrary.
C. Adequacy of Representation The Sheriff appears to concede that the named plaintiffs are represented by attorneys who are skilled and experienced in litigating class actions.5 The Sheriff also appears to concede that none of the named plaintiffs has any interest which is conflict with the interests of the members of the proposed class. The Sheriff’s only challenge to compliance with the adequacy of representation requirement of Rule 23(a)(4) is that the named plaintiffs cannot represent a class because each named plaintiff has “been in the jail multiple times over many years.” (Sheriff Mem. 9.) This argument is preposterous. Inmates at the jail are the only persons aggrieved by the Sheriff’s alleged discrimination against wheelchair bound inmates. Thus, all conceivable named
5 As this Court noted in Halperin v. Interpark Inc., 2007 WL 4219419 (N.D.Ill. 2007), “the adequacy of class counsel is part of a Rule 23(a)(4) determination.” (citing Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993).
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 12 of 56
plaintiffs, as well as all members of the proposed class, will be persons who have “been in the jail.” The Sheriff’s argument, as Judge Coar observed in rejecting the identical argument in Jackson v Sheriff, “is not convincing . . . particularly where class membership is made up entirely of prisoners many of whom have a history of criminality and/or drug abuse. (Jackson, supra, Mem.Op., Dec. 14, 2006 at 10, Exhibit 4 at 10.)
The Sheriff bases his meritless argument on the Second Circuit’s decision in Savino v. Computer Credit, Inc., 164 F.3d 81 (2d Cir. 1998), a case where the named plaintiff "repeatedly changed his position as to whether he received the [letter]" that was the focus of the claim under the Fair Debt Collection Practices Act. Id. at 87. This case does not present any issue remotely analogous to an FDCPA action. Nor has any named plaintiff "changed his position" on any fact material to this case.
The named plaintiffs are represented by competent counsel and will adequately protect the interests of the proposed class. The Court should reject the Sheriff’s challenge to the adequacy of the named plaintiffs as class representatives.
IV. The Proposed Class Complies With Rule 23(b)(3)
The Sheriff recognizes that class certification under Rule 23(b)(3) requires plaintiffs to show first that “questions of law or fact common to the members predominate over questions affecting only individual members” and second, “that a class action is superior to other available methods for the fair and efficient
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 13 of 56
adjudication of the controversy. “ (Sheriff Mem. 10, quoting Rule 23(b)(3).) The Sheriff appears to concede that plaintiffs have demonstrated the supe-
riority of a class action over individual actions. This concession is not surprising: as in Robledo v. City of Chicago, 444 F.Supp.2d 895 (N.D.Ill. 2006):
Plaintiffs allege constitutional violations on the part of defendants. It is likely that this conduct would go otherwise unchallenged if a class was not certified because the value of the individual claims in this case is likely not large enough to justify individual prosecution. Additionally, because the claims of all plaintiffs turn on the same law and standardized practices, individual adjudication of the claims of each class member would be an inefficient use of judicial resources. Robledo, 444 F.Supp.2d at 908. The Sheriff asserts that common questions do not predominate and offers an incomprehensible argument (Sheriff Mem. 11-12), which concludes with the assertion that “not every cell in every facility must be accessible.” (Sheriff Mem. 12.) Plaintiffs, of course, do not contend that “every cell in every facility must be accessible.” Plaintiffs claim, individually and for the proposed class, that the Sheriff has failed to provide wheelchair bound inmates with adequate shower facilities, wash basins, sinks and toilet facilities. These are issues which may "readily may be resolved for a class as whole," Murray v. GMAC Mortgage Corp., 434 F.3d 948, 956 (7th Cir. 2006) and predominate over any individual issues.
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 14 of 56
V. Conclusion
For the reasons above stated, the Court should grant plaintiffs' motion and
certify plaintiffs' proposed class: 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 Sec. 202 of the Americans with Disabilities Act of 1990(ADA) and Sec. 504 of the Rehabilitation Act of 1973. The Court should also appoint Kenneth Flaxman, Thomas G. Morrissey,
and Robert H. Farley as counsel for the class. /s/ Kenneth N. Flaxman Kenneth N. Flaxman, ARDC #830399 200 South Michigan Avenue, Ste 1240 Chicago, Illinois 60604 (312) 427-3200 Thomas G. Morrissey. 10249 South Western Avenue Chicago, Illinois 60643 (773) 233-7900 Robert H. Farley, Jr. 1155 South Washington Naperville, Illinois 60540 (630)-369-0103 Attorneys for Plaintiff
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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 15 of 56
Exhibit 1

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 16 of 56

T(JDD H STROGER PRESiOENT
~j'.J.f"t'iC OF :::;OUNTY f;;;'OMMIS.5l0NgR.:$

COUNTY OF COOK OFFiCE OF THE COMPTROLLER
118 NORTH CLARK STREET ROOM 500
CHICAGO, ILLINOIS 60602(31 2) 603-5601
FAX (312) 603-6122

Oct.()bf~r 16, 2e07

JOSEPH M, FRATTo
COUNTY (;<'),~,Pl·A:Ot.Lf.;R

The Honorable President and Members of the Bc}a.rd c)f C~ook' (~()1.1rlt.·y· c..--:;orrlmif.~sic)rlerS

Ladies and Gentlemen:

Transmi t ted here in are the E:stirna.tes of ReVentleS 8.nd A'vailable R2S0urces for fiscal year 2008, including estimates of the financial condition of the funds of Cook County at the close of fiscal year 2007.
For the ninth consecutive year, the total property tax levy will remain constant at $720.5 million. For the fiscal year 2008 budget three increases of Home Rule Taxes are proposed:

(:c)u,nt .:/ Sa.le.3 '"faz:. C()l;nt:y Park:i"nq Tax

:!;;..:2timated 2008 Collect5cn~
_Li-rr",.ffi.:hJ..1.;_QD:$.,),.

.75% to 2.75%

$.142.20

$.06 to $.12

74.25

$0.50/1.00 daily to

22.80

$1.00/2.00 daily;

$2.50/5.00 weekly to

$5.00/10.00 weekly;

$20/monthly to $40/monthly

.~.r;. Ei.E3cal ')le;3.J: 2C07, hC)ITi8 R.1J.J..e t.axes a_l~e: e.x.};)ect,ed. tc; })e :~l.:.:. ,_, rnilliorl }ligller than budgeted cue prj.mal~i.ly to greater than
Olnt ici.pe.ted Count.y salE;s Lax, cigarette tax and amusement c.ax. Howe'v"er, fee reV811ue is expected to be $7],.8 million less ttlarl

Plaintiffs' Exhibit 1

Page 1

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 17 of 56

budgeted due primarily to lower patient fees, Federal Medicaid Intergovernmental Transfer and Recorder of Deeds filings.
Comparing the fiscal year 2008 budgeted revenues to the fiscal year 2007 revenue estimates, Fee Revenues are expected to decrease $46.4 million primarily due to a decline in the Federal Medicaid Intergovernmental Transfer, lower patient fees and Recorder of Deeds filings.
Home Rule Taxes for fiscal year 2007 are projected to increase $217.4 million due primarily to the proposed increase in County Sales, Gas and Parking taxes.
For fiscal year 2007, when the books are closed and final balances determined, we will report to the President and the County Board the revised and final amounts. We would be pleased to respond to any questions you may have or provide you with any additional information you may require.
Sincerely,

Donna L. Dunnings Chief Financial Offic

&,0ShM: Fratto
County Comptroller

Plaintiffs' Exhibit 1

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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 18 of 56

Plaintiffs' Exhibit 1

Page 3

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 19 of 56

Plaintiffs' Exhibit 1

Page 4

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 20 of 56

Plaintiffs' Exhibit 1

Page 5

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 21 of 56

Plaintiffs' Exhibit 1

Page 6

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 22 of 56
Exhibit 2

.... . .~::p Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 23 of 56

"'i~

--------.,..------------~-.,..---------- -

Cook CountY Depll..-eut , : ~f.COr:rectiou

, Divisi~nal Procedures

Efteetive Date: 315197 '.

, Policy No_? lOSO

ReViewed Date: 8l1l05·

HANDICAPPED, HOUSING

,&laUd G.O.: 7.4

Page 10f2

I. tURPOSE

,To identifY hoUsing ~riteria for detainees classified to Division 3/8 that are placed within the

Division. '

..

'.

n.. 'COLICY

them T~ provide hailcijcapped de~ees housing and program. avaUability.in.a tnannerthat allows

satety~ security an.d accessibility.

.

,'. . IIL PROCEI!'URE

As·a uSpeclal Needs·' Divisio~ RTU, Di~on 3 and Cennak Health Services all h8'Ve

oapabilities to. tlcCQmmodat.e detainees with various handicaps. The extem or nature Ofth~

hmldicap is dependent'1lpon an ~l.l.ation by Cenlialc, Health Services and their subsidiaxy .

~'1det$. All deei$ioDS related to handicapped hol,lSing will be the responsibility of C~

Health $ervices. A representative example cifthe tYPes. offj:equem ~dicaps encountered is

defined below:

..

1. Paraplegic/quadriplegic detainees C$ be housed in Ce1'rl1ak; ifthey fire in pre-pi'osthetic

stages. Iftbe detainee was admitted in the department witb.·pi'o$1Detic(s), they can be

evaluated fo~ placement in RTU (m,ale) or Division 3 (femate).'

.

2. Detainees requiring wheel.cha;i1'$ c~ be accomm~datedin Cermak 3 'North, 3 W~ 3' East or

RTU.,

.

'. 3~ .Detainees !equiring the usc ofambulatory assi~ via walker~ cam:, crotches, etc. can be

acc.ommodated ~ithe:rin. ce.nita' k. 3 N. o~ 3 W. est, 3 East or RTU.

.' .

4. When'bedS become unavailable in Ce~the m.edicid stafl' will evaluate eurtent detainees

to .

'se.e

if,they

can

be

moved .

to

RTU,

Division

3.

or

Gen.eral

PopUhrtion

per

classi.ficat.iOIl;

.

.5. ' Casts~ post-surgiCaI recovery.and related disabling devices i:an be accommodated. in Cermak . 3 North. 3 West or RID. Female detainees' can be acconnuod8ted·jn the'Ac~ Care Unit
(~cu),2 ~est or ~. ~t ofCennak Health Facill.ty.

I

6. ·Post-sur6ical.recovery (co.~ostomy,eto.) can be accommodatedin,RTU, C~ 3 North.

. Female detainees can be accommodated in the ACU 2 West or 3 East of Cerm8k Health

. Facility.

.

.

Plaintiffs' Exhibit 2

Page 1 OH000053

Case 1:07-cv-03889 Document 64

< 1:18f'tl,t/28B7 1:19: 25
9'l

773-869-3994

Filed 02/04/2008 Page 24 of 56 SUPT St:>LAZM, DIV 3/8

PflGE 82/a2

Cook County Depal"C:mettt
of Cortee1ioaas
" 'Division 3~

Divisional Pro~edures
P.oliey No.: 1050

Effective ~ate: 3/5/97
Reviewed Date: 811105

HANDICAPPED "lIQUSING

.Related
G.O.; 7.4

" 'Page 2012

:mOC~lJRE(cont.l

7.

Detainee

with

oeulat

imp..a' irment

will

be:

housed

after

evaluation )."

by

Cennak

Health

Semces.

In all instances ofdetainee's- ~cap, sncl1 services will be provided on a need basis,. This '
usually consists of a shower chair, handi~pped railings,in the ltivatory area, etc.

Det:aine~'s ~s s.uch as law h1>ratY, chape.l. and oomtoiSsai-y'~ not be abridged due 10'the psychical ~t8tions Qfthe detainee. SpeCi~ considerations will·be developed. in compliance
with ~licable la~ to ,~the right of access for aU handi~ed detainees.:

receive _,Detain~s ho~ in Cermak Health Service on 3 North will

comtniss81j'; which will be

limi~ed by Medjcai sta£r as to wliich items may be allowed. DetaiD.eest uni~lIms will13e

supplied by DOC, ~c.a'l gowns and slipper sockrby ~a1l;H~tliService.' , .

AU.DIT SCHEDULE.
~s policY.:Will.be audited within appropriate schedules in. Division 3/8

Plaintiffs' Exhibit 2

Page 2
QH000054

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 25 of 56
Exhibit 3

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 26 of 56

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KIM YOUNG, RONALD JOHNSON, and

)

WILLIAM JONES, on behalf of themselves )

and a class of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF COOK, et al.,

)

)

Defendants.

)

No. 06 C 552

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Kim Young, Ronald Johnson, and William Jones have sued the Sheriff of Cook County,

certain high ranking Sheriff’s employees, Cook County, and certain Cook County employees.

Plaintiffs allege that the defendants violated plaintiffs’ Fourth and Fourteenth Amendment rights

while they were confined as pretrial detainees at the Cook County Jail (CCJ). Plaintiffs have

moved to certify two classes pursuant to Federal Rule of Civil Procedure 23(b)(3). For the

reasons stated below, the Court grants plaintiffs’ motion.

Facts

In their second amended complaint, plaintiffs allege that the Sheriff and certain Sheriff’s

Department personnel “implemented, enforced, and/or condoned” a policy of strip searching

every detainee that enters the CCJ, irrespective of the nature of the charge against the detainee.

2d Am. Compl. ¶¶ 16-17. They contend that suspicionless strip searches of detainees accused of

misdemeanors and other minor offenses are unconstitutional. Plaintiffs also allege that the

searches of male detainees were conducted in a degrading manner that was significantly different

Plaintiffs' Exhibit 3

Page 1

Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 27 of 56

than the manner in which females were searched. Young alleges that on January 13, 2005, she was arrested on an outstanding traffic
warrant and taken to the CCJ. Shortly after arriving there, a female guard made her stand behind a partition, take her clothes off, squat down, and cough. Young put her clothes back on, and the guard led her, along with thirty other women, to a hallway lined with chairs, where the women waited while they took turns going into a small room for STD testing. Young claims that she did not consent to the strip search or the STD testing. Briefing on plaintiffs’ request to certify a class on their claims relating to the STD testing is being handled separately.
Johnson alleges that on April 18, 2005, he was arrested for felony possession of a controlled substance. Shortly after he was booked in the CCJ, guards ordered him and onehundred other men to strip naked in a hallway. The guards then instructed them to face a wall, bend over, and spread their buttocks with their hands, as the guards proceeded to visually inspect them. The men remained naked in each other’s presence for more than thirty minutes, during which, Johnson contends, the guards made comments that the men were unbathed and stank. He alleges that the hallway was poorly ventilated and that the air reeked of body odor.
Jones alleges that on December 30, 2005, he was arrested on an outstanding traffic warrant. He says that shortly after he was booked in the CCJ, he was strip searched in a hallway along with one hundred other men. According to Jones, there was no heat in the hallway, the temperature felt like it was less than fifty degrees Fahrenheit, and the men were shivering during the approximately forty minute period they remained in the hallway. The hallway was poorly ventilated, and the air reeked of body odor. Jones alleges that the guards repeatedly poked fun at the men.
2

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Plaintiffs contend that the strip searches performed on Johnson and Jones were conducted in a manner violative of the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. They also allege that because jail officials strip searched Johnson and Jones in a group setting but did not perform strip searches on similarly situated females in a group setting, the searches of the men violated the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs also contend that in view of the nature of the charges against Jones and Young, it violated the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment to strip search them. Plaintiffs have also made state law respondeat superior and indemnification claims against Cook County.
The plaintiffs have moved the Court to certify two classes. The first proposed class consists of all males who were, on or after January 30, 2004, subjected as new CCJ detainees to a strip search (a term the Court will use to cover both strip searches and visual body cavity searches). The second proposed class consists of all males and females detained for misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search as new CCJ detainees on or after January 30, 2004.
Discussion Federal Rule of Civil Procedure 23 authorizes a court to certify a case as a class action if the party seeking certification meets all of the requirements of Rule 23(a) and one of the requirements of Rule 23(b). Under Rule 23(a)(1)-(4), a plaintiff seeking certification of a class bears the burden of proving that the class is so numerous that joinder of all members is impracticable; there are common questions of law or fact; the representatives’ claims are typical of those of the class; and the representatives fairly and adequately protect the interests of the
3

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class. FED. R. CIV. P. 23(a). Once a party satisfies the requirements of Rule 23(a), she must meet one of the
requirements delineated in Rule 23(b). In this case, plaintiffs seek certification under Rule 23(b)(3). As a result, they must show that “questions of law or fact common to the members of the class predominate over any questions affecting 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). Plaintiffs “assume[] the burden of demonstrating that [class] certification is appropriate.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). 1. Rule 23(a) requirements
Rule 23(a)(1) requires that a class be so numerous that joinder of all its members is impracticable. Courts may rely on common sense assumptions or reasonable inferences as to the size of a class. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). The plaintiff is not required to show the exact number of class members so long as impracticability is apparent from good faith estimates. Lopez v. City of Chicago, No. 01 C 1823, 2002 WL 31415767, at *4 (N.D. Ill. Oct. 25, 2002). Mere speculation, however, is insufficient to prove numerosity. Roe v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th Cir. 1990) (citations omitted).
Rule 23(a)(2) requires the existence of questions of law or fact common to the class, and Rule 23(a)(3) requires that the class representatives’ claims be typical of those of the class. These requirements are closely related. See General Telephone Co. v. Falcon, 457 U.S. 147, 156 (1982). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (quoting
4

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Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). A common set of operative facts is ordinarily present when the defendants are claimed to have engaged in “standardized conduct toward the members of the proposed class.” Id.
The typicality requirement of Rule 23(a)(3) focuses on “whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Retired Chicago Police Ass’n, 7 F.3d at 596-97. “A plaintiff’s claim is typical if it arises from the same event 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) (citations and internal quotation omitted). Factual distinctions between the claims of the named and represented plaintiffs do not defeat typicality. See Retired Chicago Police Ass’n, 7 F.3d at 596-97. The claims of the named plaintiffs must, however, have “the same essential characteristics” as those of the proposed class. See id. at 597.
Rule 23(a)(4) requires that the named plaintiffs fairly and adequately represent the class as a whole. To fulfill this requirement, both class counsel and the class representatives must be adequate. See id. at 598. A named plaintiff is generally considered to be adequate so long as his or her claims neither conflict with nor are antagonistic to those of other class members. See id.; Rosario, 963 F.2d at 1018.
a. Numerosity Proposed class one consists of all males who were, as new CCJ detainees, subjected to a strip search at any time on or after January 30, 2004. Since the beginning of the class period, approximately 250,000 men have been processed and searched at the CCJ’s Receiving Classification and Diagnostic Center (“RCDC”). Plaintiffs allege that strip searches of new male
5

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detainees were conducted in the same manner throughout the class period. Given the immense number of male detainees processed and searched in the same manner, proposed class one fulfills the numerosity requirement of Rule 23(a)(1).
Proposed class two consists of all males and females charged with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search as new CCJ detainees on or after January 30, 2004. Plaintiffs sought database discovery from the Cook County Sheriff’s Department (“Department”) to determine the size of this proposed class. The Department claimed that it could not extract the information from its computers and has not provided information on the database system enabling plaintiffs to determine if they can extract the information themselves. As a result, plaintiffs have not yet received sufficient discovery to prove the exact size of proposed class two.
From publicly available data, however, plaintiffs discovered that seventeen persons encompassed within proposed class two were admitted to the jail over a four-day period in January 2007. Plaintiffs contend that by extrapolating this figure over the class period, it is obvious that the members of the proposed class are sufficiently numerous that their joinder as individual parties would be impracticable. The Court agrees; plaintiffs’ analysis is rooted in common sense, not speculation. See Lopez, 2002 WL 31415767, at *4 (holding that plaintiffs “need not demonstrate the exact number of class members” as long as a court can draw a conclusion as to numerosity based on plaintiffs’ good faith estimates).
Certain of the defendants argue that there is no “identifiable” class, but their actual argument seems to be that the strip searches conducted on incoming detainees are justified and should be declared legal. See Sheahan Resp. at 7-9. That is not an appropriate inquiry on a
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motion for class certification. In Szabo v. Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir. 2001), the Seventh Circuit made it clear that a court need not accept all of the allegations of the plaintiff’s complaint in assessing whether to certify a class and “should make whatever factual and legal inquiries are necessary under Rule 23.” Id. at 675, 676. In this case, however, defendants’ proffered justification for their strip search policy has nothing to do with whether the proposed classes are sufficiently numerous, whether their claims present common issues, whether the named plaintiffs’ claims are typical of those of the class, whether the named plaintiffs are adequate class representatives, or whether the requirements of Rule 23(b) have been met. Thus inquiry into the merits is not, in the words of Szabo, “necessary under Rule 23” to determine the appropriateness of class certification.
Nor does the Court read Szabo as saying that it is appropriate to deny class certification – in the absence of a meritorious motion to dismiss or motion for summary judgment – on the ground that the plaintiff is likely to lose the case. And even if Szabo were read that way, it would be particularly unjust and inappropriate to apply such a rule in this case. All parties agreed to defer “merits” discovery pending the completion of class discovery and determination of plaintiffs’ class certification motion. Allowing defendants to defeat class certification by arguing that the evidence demonstrates that the policy of strip searching all new detainees is justified (a contention that, in any event, only addresses the claims of proposed class two) would amount to requiring the plaintiffs to fight blindfolded, standing on one leg, with their hands tied behind their backs. The issue is more appropriately addressed at a later stage of the case.
b. Commonality and typicality Plaintiffs contend that the claims of each of the proposed classes present common
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questions of law and fact and that the named plaintiffs’ claims are typical of those presented by their fellow class members. Defendants argue that proposed class one is not viable because it includes men charged with all types of crimes with varied criminal histories. Defendants argue that this class definition is unworkable because it includes, for example, detainees accused of felonies or drug crimes, who, defendants say, properly can be strip searched.
Defendants’ argument misses the point. The claims of proposed class one concern not the propriety of conducting a strip search but rather the manner in which searches were conducted. In a nutshell, the claims of this class are that jail officials searched all men in an unreasonable and unnecessarily degrading manner and that the disparities between the search procedures for male and female detainees lack a substantial relationship to an important state purpose. In other words, the nature of the charges against particular detainees has no bearing (or, at most, a minimal bearing) on the claims of proposed class one.
To satisfy Rule 23(a)’s commonality requirement, a plaintiff need only show that there is at least one question of fact common to the class. Dunn v. City of Chicago, 231 F.R.D. 367, 372 (N.D. Ill. 2005). As a general rule, when “the defendants have engaged in standardized conduct towards members of the proposed class,” the class meets Rule 23(a)’s commonality requirement. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). In this case, the claims of both proposed classes are premised upon contentions that the defendants acted pursuant to policies and standard practices that were common to all class members.
Courts have consistently held that class actions challenging blanket strip search policies satisfy Rule 23(a)(2)’s commonality requirement. See, e.g., Bullock v. Sheahan, 225 F.R.D. 227, 229 (N.D. Ill. 2004) (“Plaintiffs allege that defendants’ policy of strip searching male inmates
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under the stated conditions violates their Fourth and Fourteenth Amendment rights. That issue is central to the claims of the proposed class; the commonality requirement is met.”); Calvin v. Sheriff of Will County, No. 03 C 3086, 2004 WL 1125922, at *3 (N.D. Ill. May 17, 2004); see also, Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1267 (7th Cir. 1983) (“Although the circumstances surrounding the arrests and detentions of each of the plaintiffs-appellees in these consolidated cases are not identical, the situations involve the following common elements: each woman was arrested for a misdemeanor offense and each was subjected to the strip search policy of the City of Chicago.”).
The claims of proposed class one, which consists of male detainees, are that they were strip searched in a manner that affords no privacy from other detainees using search methods that are unreasonable and punitive and were treated in a way significantly different from female detainees without good reason. It can scarcely be questioned that the claims of the members of this proposed class have numerous issues in common.
The claim of proposed class two is that it is unreasonable and violative of the Constitution to strip search detainees who are charged only with misdemeanors or lesser offenses not involving weapons or drugs, absent some particularized suspicion that the particular detainee is hiding contraband. As with proposed class one, proposed class two challenges a standard policy of the CCJ (the existence of which, the Court notes, the defendants do not appear to dispute). Because both classes challenge what they characterize as standard policies and practices, common issues of fact and law permeate their claims.
A named plaintiff’s claims are not atypical simply because there are “factual distinctions between ... [their claims] and those of other class members.” See De La Fuente, 713 F.2d at 232.
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Under Rule 23(a), the commonality and typicality requirements “tend to merge . . . [and] serve as guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Falcon, 457 U.S. at 158 n.13. In this case, the named plaintiffs are challenging the same strip search policies and methods as the classes they seek to represent. The likelihood of some range of variation in how different groups of new detainees were treated does not undermine the fact that the claims of each class share a common factual basis and legal theory. De La Fuente, 713 F.2d at 232.
Defendants argue that the named plaintiffs’ claims are not typical of those of the classes because some new detainees likely favor blanket strip searches because they result in confiscation of weapons and other items that might be used to harm them and because blanket searches may prevent some detainees from being victimized by others who might force them to conceal contraband. That may well be true, but it does not defeat the typicality of the named plaintiffs’ claims. Among other things, because certification is sought only under Rule 23(b)(3), members of the class will be permitted to opt out of the litigation. If the results of the opt-out process reflect a sufficient degree of antagonism among class members to suggest an absence of the requisite typicality, numerosity, or other relevant factors, the Court will be open to reexamination of the issue of certification of proposed class two. (The proposition that some detainees may prefer blanket strip searches has little to do with the propriety of certifying proposed class one, whose claims concern the manner of conducting strip searches, not whether they should be conducted to begin with.)
For these reasons, the Court finds that the named plaintiffs’ claims fulfill Rule 23(a)(3)’s
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commonality and typicality requirements.
c. Adequacy Defendants do not dispute the adequacy of plaintiffs’ counsel. The Court has no doubt that plaintiffs’ counsel will be able to represent fairly the interests of the proposed classes. Defendants argue that Jones and Young, the proposed representatives of class two, are inadequate representatives of that class because they were charged with felony offenses, not misdemeanors. A proposed class representative must be a member of the class she wishes to represent. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). The evidence reflects, however, that like the other members of proposed class two, both Jones and Young were arrested on misdemeanor charges, not felonies. Specifically, Jones was arrested for driving on a suspended license, and Young was arrested for driving while her license was suspended or revoked, both of which are misdemeanors under Illinois law. See Pl. Reply at 4 & Exs. A & B; 625 ILCS 5/6-303(a). In short, based on the evidence presented, Jones and Young are members of the class. Defendants point out that the CCJ’s records appear to have stated that Jones and Young were charged with felonies. This gives rise to a legitimate question as to whether they are adequate class representatives; their individual claims may be subject to particularized defenses. See J.H. Cohn & Co. v. Amer. Appraisal Assocs., Inc., 628 F.2d 994, 998-99 (7th Cir. 1980) (representative’s claim may not be typical of those of the class – a requirement closely related to the adequacy of representation requirement – if it is likely to become a focus of the litigation). But this is far from apparent at this relatively early stage of the case, and the Court is unconvinced that any individual defenses are likely to be a significant focus of the case. That
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said, as the case develops, the Court will not hesitate to reexamine this issue if asked and will, if it becomes appropriate, require substitute representatives for class two (and, if none are offered, will consider decertifying that class).
d. Conclusion For these reasons, the Court finds that both proposed classes satisfy the requirements of Rule 23(a).
2. Rule 23(b) requirements Plaintiffs seek certification of both classes under Rule 23(b)(3), which requires the “court
[to] find[] that the 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).
When a class challenges a uniform policy or practice, the validity of that policy or practice tends to be the predominant issue in the ensuing litigation. See, e.g., Falcon, 457 U.S. at 147 n.20; Calvin, 2004 WL 1125922, at *4 (strip search case); Blihovde v. St. Croix County, 219 F.R.D. 607, 620 (W.D. Wis. 2003). Both proposed classes challenge what plaintiffs contend are uniform policies. The predominant focus of the litigation of proposed class one’s claims is likely to involve the justifications for, and propriety of, non-private strip searches.
Defendants argue, with regard to proposed class one, that the reasonableness of the way strip searches were conducted must be determined on a case-by-case basis. They point out that groups of incoming detainees varied in size from day to day. There is also the potential that the specifics of what correctional officers said to detainees before or during the searches, the room
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temperature, and other factors may have differed from day to day. Though these are valid points,
the Court is persuaded that the predominant issues in the litigation of proposed class one’s
claims will concern the alleged lack of privacy and differences in the way male and female
detainees were treated, not whether (for example) there were fifteen as opposed to eighty male
detainees who came in on a particular date. In any event, from the limited evidence that
plaintiffs have developed to date, there is a basis to believe that it was relatively common for
correctional officers to make offensive comments to detainees. Thus, even if the specifics may
have differed on different dates, there is no reason to believe that those sorts of particulars will
become a major focus of the litigation.
With regard to proposed class two, it appears to be largely undisputed that the CCJ
searches all incoming detainees, irrespective of the characteristics of the particular detainee or
the nature of the charge against him. Defendants contend, however, that the Court will have to
make an inquiry, individual to each class member, regarding whether the facts known to CCJ
officials gave rise to a proper basis to conduct a search. This, defendants argue, precludes
certification under Rule 23(b)(3). The Court disagrees. We can put it no better than our
colleague Judge Robert Gettleman did in certifying a class of similar plaintiffs in a case
involving the Will County Jail:
Defendants misconceive the way in which reasonable suspicion factors into the class. Plaintiffs allege that under the uniform strip search policy adopted by the Sheriff, jail personnel never undertook reasonable suspicion or probable cause inquiries. Thus, the ultimate legal question is not whether jail personnel made erroneous reasonable suspicion determinations regarding each individual, but whether the Sheriff’s policy avoided all such inquiry, thus depriving those individuals of their Fourth and Fourteenth Amendment rights. The question of the validity of the Sheriff’s policy thus predominates over any “individualized questions.”
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Calvin, 2004 WL 1129522, at *4. In sum, the Court finds that plaintiffs have established that common questions
predominate over individual issues for both proposed classes. The Court also finds that plaintiffs have shown that a class action is the superior method
for pursuing plaintiffs’ claims. From the standpoint of judicial economy, handling even a modest portion of the potential claims of detainees likely would overwhelm the docket in this District. This is a case in which “class action treatment is appropriate and [ ] permitted by Rule 23 [because] the judicial economy from consolidation of separate claims outweighs any concern with possible inaccuracies from their being lumped together in a single proceeding for decision by a single judge or jury.” Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910, 911 (7th Cir. 2003).
Defendants also argue that the superiority requirement is not met because the treatment of pretrial detainees at the CCJ is already subject to monitoring pursuant to a consent decree entered in the case of Duran v. Sheahan, Case No. 74 C 2949. They contend that “[p]laintiffs covered by a consent decree cannot bring claims for equitable relief outside of a contempt order initiated before [the] court [that issued the consent decree].” Sheahan Resp. at 14. The Court addressed this issue when it considered defendants’ motion to dismiss. See Young v. County of Cook, No. 06 C 552, slip op. at 11-14 (N.D. Ill. Aug. 25, 2006). Defendants have made no new points in this regard, so the Court will summarize the pertinent portions of its earlier ruling. First, the contention that the issues in this case were at issue in Duran “is utterly unsupported and borders on the frivolous.” Id. at 12. The defendants have made no effort to show that strip searching of detainees at intake “was so much as discussed with the court prior to its approval of the Duran decree, let alone that those issues were disputed, litigated, or decided.” Id. Second,
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defendants “have not pointed to any part of the Duran consent decree that addresses anything like the intake strip search . . . procedures that are at issue in this case.” Id. at 13. As a result, the Duran decree does not preclude the proposed classes’ injunctive relief claims, and the Seventh Circuit has held that the decree has no preclusive effect on claims for damages. Id. (citing Martin v. Davies, 917 F.2d 336, 340 (7th Cir. 1990)). In short, the contention that the claims in this case may be brought, if at all, only as part of the Duran case is entirely lacking in merit. 3. Cook County
In its memorandum opposing class certification, Cook County argues, as it did in a motion to dismiss, that it cannot be held liable for the acts of the Sheriff. As the Court ruled, however, the County is a necessary party to this case. Id. at 8 (citing Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003), and Robinson v. Sappington, 351 F.3d 317, 338-39 (7th Cir. 2003)). In any event, the County’s argument presents no basis to decline certification of the proposed classes. 4. Final points
If anything “predominates” in this case, it is defendants’ strenuous and repeated arguments whose apparent aim is to convince the Court that the plaintiffs are doomed to lose the lawsuit. See, e.g., Sheahan Mem. at 3 & 6 (citing sixty-one instances in which strip searches revealed attempted smuggling), 4 (argument that there are good reasons for treating male detainees differently from females), 7-8 (arguing the legal validity of strip searches); Cook County Mem. at 6 (arguing that strip searches are legal), 11-14 (arguing that the search procedures are reasonable). These arguments are misplaced in the present context. As the Court has discussed, though it is appropriate to go behind the pleadings when necessary to assess the
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factors for certification under Rule 23, none of these arguments actually concerns Rule 23’s factors. Moreover, defendants agreed to defer discovery on the merits, and as a result plaintiffs are effectively precluded at this stage from responding to defendants’ proffered justifications for the challenged policies. For those reasons, defendants cannot defeat class certification by arguing that plaintiffs are pursuing a losing cause.
If defendants want a decision on the merits – as seems to be the case – they should move for summary judgment. That will allow the Court to determine what discovery plaintiffs are entitled to take in order to address the merits. At the current stage of the litigation, however, a ruling that amounts to a decision on the merits of the plaintiffs’ claims would be premature.
Conclusion For the foregoing reasons, the Court grants plaintiffs’ motion for class certification [docket no. 75]. The Court certifies the following classes under Rule 23: (1) all males who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004; and (2) all persons charged only with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.

Date: April 25, 2007

__________________________________________ MATTHEW F. KENNELLY United States District Judge

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Exhibit 4

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT JACKSON, JOSEPH McGRATH, and DERRELL SMITH
Plaintiffs,
v.
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS and DIRECTOR, CERMAK HEALTH SERVICES,
Defendants.

) ) ) ) ) No. 06 C 0493 ) ) HONORABLE DAVID H. COAR ) ) ) ) )

MEMORANDUM OPINION AND ORDER Now before this court is the Motion to Certify Plaintiff Class filed by plaintiffs Robert Jackson (“Jackson”), Joseph McGrath (“McGrath”), and Derrell Smith (“Smith”) (collectively “Plaintiffs”) against Defendants Sheriff of Cook County (“Sheriff”), Cook County of Illinois (“Cook County”), and Director of Cermak Health Services (“Cermak”) (collectively “Defendants”). For the reasons set forth below, Plaintiffs’ motion for class certification is GRANTED.
BACKGROUND1 The instant Plaintiffs were admitted to the Cook County Jail as pre-trial detainees at varying dates,2 where they were allegedly forced to undergo a screening test for sexually

1For the purposes of this motion, Plaintiff’s well-pleaded allegations are taken as true. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974).
2Jackson was admitted on February 4, 2004, McGrath on December 27, 2005, and Smith on July 20, 2004.
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transmitted disease (“STD screening”). Though some details of their accounts vary, the general process was the same in all cases. Upon arriving at the jail, Plaintiffs signed medical release forms and questionnaires as part of the admission procedure. One of these forms contained a “Consent for Treatment” decree, apparently signed by all three putative representatives, that read as follows:
I consent to a medical and mental health history and physical including screening for tuberculosis and sexually transmitted diseases as part of the intake process of the Cook County Jail....[signed by prisoner]. See Resp. to Cert. Mot. Ex. A at 18, Ex. B at 16, Ex. C at 17. All admitted prisoners were lined up to enter an examination room within the medical intake area. Once inside, a medical technician from Cermak Health Services asked the prisoners to lower their pants. The technician would then insert a cotton swab into the tip of each prisoner’s penis, apparently in order to collect a tissue sample for testing.3 At all times, jail deputies were nearby, though it is not entirely clear where they were usually stationed with respect to the examination area.4 On January 27, 2006, Plaintiff Jackson filed a complaint alleging violation of his constitutional rights under the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983. The Complaint was amended on January 31, 2006 to include additional Plaintiffs McGrath and Smith, and corrected on February 1, 2006. Plaintiffs in this case have now filed a motion for class certification. The putative plaintiff class consists of “[a]ll male prisoners at the Cook County Jail who, on and after January 27, 2004, was [sic] subjected to the non-consensual
3The particulars of this particular point in the process vary, as some accounts claim that: the swabbing was done over a garbage can; the technician failed to change his glove before administering the test to subsequent prisoners; and that either the prisoner held his own penis during the procedure or his penis was held by the technician.
4See, e.g., Smith Dep. at 51 (placing the guard in the doorway of the room). -2-

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insertion of a swab into this penis as part of his admission to the jail.” Cert. Mot. at 1. In
support of their motion to certify the class, Plaintiffs have submitted fourteen (14) “Sworn
Declarations” from men who had been admitted into the Cook County Jail.5 See Cert. Mot., Ex.
1. These declarations rely upon roughly identical text to state their support of the class and the
declarant’s potential membership in it:6
The undersigned, under penalties of perjury, certifies that the following statement are [sic] true: 1-2. [summary of individual’s biographical information, including
name, date of admission, CIMIS number, and age at the time] 3. On admission to the Cook County Jail, I was subjected to a
procedure which I understand to be known as the insertion of a urethral swab into my penis. 4. I did not consent to this procedure [and tried to refuse]. 5. I would not have agreed to undergo this procedure if I had been given a choice. 6. The procedure was painful and an embarrassing intrusion into a private part of my body. 7. I was in pain for [___] day(s) after the procedure. 8. The person who performed the procedure held my penis with his hand while inserting the swab. Id.

5These declarations were made by: Kamal J. Davis, Troy O. Hampton, Lawrence A. Howard, Crasseros Jackson, Jerome Johnson, Thomas Kelly, Sylvester Kimbrew, Larry E. Lawson, Kevin McDuffie, Calvin K. Odisho, Vincent D. Papaccio, Leonard Pitman, Michael Rodriguez, and John O. Williams.
6Bracketed language indicates wording that varied from one declaration to another, or which was absent from one or more of the declations.
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LEGAL BACKGROUND The federal Rules of Civil Procedure provide the federal district courts with broad discretion to determine whether certification of a class-action lawsuit is appropriate. Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998). When evaluating a motion for class certification, the court accepts as true all well-pleaded allegations made in support of certification. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974); Hardin v. Harshberger, 814 F.Supp. 703, 706 (N.D.Ill. 1993). The party seeking class certification bears the burden of showing that the requirements for the class certification have been met. Carlisle, 417 U.S. at 179; see also Patterson v. Gen. Motors Corp., 631 F.2d 476, 480 (7th Cir.1980), cert. denied, 451 U.S. 914 (1981). Failure to establish any one of the requirements precludes class certification. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584 (7th Cir. 1993). Rule 23 of the Federal Rules of Civil Procedure governs the requirements of class certification. Under that rule, deciding a motion for certification requires a two-step analysis. First, the named plaintiff must satisfy the four threshold pre-requisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Second, the action must qualify under one of the three subsections of Rule 23(b); in this instance, the Plaintiffs seek to qualify under 23(b)(3), meaning they must establish that questions common to all members of the class predominate and that a class action would be the most effective approach to resolving the matter. In order to determine whether or not these criteria have been met, it is not appropriate to examine the substantive merits of the case itself. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974) (finding that the court deciding certification has no “authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether

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it may be maintained as a class action”). Nonetheless, it is necessary to “make a ‘preliminary inquiry...that has as its focus not the substantive strenth or weakness of the plaintiffs’ claims but rather the merits of those allegations that bear on the suitability of a case for class treatment under Rule 23(a) and (b).’” Rahim v. Sheahan, 2001 WL 1263493 at *10 (N.D.Ill. Oct. 19, 2001) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)).
ANALYSIS Because the Plaintiff have met all of the prerequisites of 23(a), as well as the criteria of 23(b)(3), their motion for class certification is GRANTED.
Numerosity Rule 23(a)(1) is satisfied if “the class is so numerous that joinder of all members is impracticable.” This places a positive burden on the party seeking to certify the class to show that there are enough class members that it would not make sense to bring them all into court. Plaintiffs are not required to specify the exact number of class members. Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978). An approximation of the proposed class size can be based on common-sense assumptions and estimates. Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (D. Ill. 1996). However, failure to provide an estimate, or means for making such an estimate, can prove fatal to a certification motion. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989) (holding that plaintiffs “cannot rely on conclusory allegations that joinder is impractical or on speculation as to the size of the class in order to prove numerosity”) (citing Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976)). While there is no set minimum number of plaintiffs required for class certification, Courts have generally recognized that joinder is impracticable where a class contains more than 40 members. Johnson v. Rohr-Ville Motors, Inc., 189 F.R.D.

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363, 368 (D. Ill. 1999) (citing Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969).
Defendants are correct that Plaintiffs have not given this Court a definite idea of how many members its putative class will contain. At present, it is only clear from the record that seventeen current or former prisoners have a potential claim against Defendants; the three named Plaintiffs and the additional fourteen declarants.7 While the definiteness of the total number of class members is a factor to consider in weighing considerations for or against certification, in this instance it is nonetheless clear that the putative class will be sufficiently large. As Plaintiffs previously stated, the alleged “invasive procedure has been applied to more than one thousand persons from January 27, 2004 to the present.” Cert. Mot. at at 1. The class will likely expand to include nearly all prisoners admitted into the Cook County Jail within the Plaintiffs’ proposed temporal range. Though somewhat variable due to prisoners who opt out, or unusual cases in which the roughly standardized procedures were not applied, it is clear that this putative class is sufficiently numerous for determining that certification would be more efficient than resolution through joinder or multiple legal actions.8

7Defendants maintain that because the supporting declarations use boilerplate language their veracity as personalized accounts is suspect and they should not be given significant weight. However, repeated language does not prove that the experience was not common to all of these declarants, and there was in fact some effort to individualize the declarations, e.g., the medical technician's approach, or the number of days of pain following the procedure, differed from one account to another.
8 Plaintiffs’ fourteen declarations were collected by contacting only three days’ worth of prisoners admitted into the Cook County Jail. Cert. Mot. at 2-4; Resp. to Cert. Mot. at 5. Even if class membership were limited to prisoners who sign such a declaration, Plaintiffs have thus far gained an average of 4b additional members for every considered day of admission into the jail. The proposed definition of the class, which would cover all prisoners admitted since January 27, 2004, would cover hundreds of days, and would therefore provide the requisite
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Defendant maintains that a mailing was sent to all prisoners currently held in the Cook County Jail system. Plaintiffs admit that this is true. Reply in Supp. of Cert. Mot. at 4 . Defendant also argues that Plaintiffs have had adequate time to seek out declarants regarding the typicality of the allegations and have only had limited success in their efforts. Resp. to Cert. Mot. at 5. However, Plaintiffs failure to more definitely determine the ultimate size of the class, despite their time and effort, is not terminal. As stated above, this class action will likely include a large majority of prisoners who have had the screening process applied to them, and a sufficiently high number of class members to warrant the greater efficiency of the class action process. Because enough information has been provided to make this determination, Plaintiffs have relied on more than mere “conclusory allegations that joinder is impractical or on speculation as to the size of the class in order to prove numerosity.” See Marcial, 880 F.2d at 957. Rather, they have provided adequate information from which a large, if indefinite, number of class members can be discerned.
Commonality/Typicality9 Rule 23(a)(2) calls for the "existence of at least one issue of fact or law common to all class members." Meiresonne v. Marriott Corp., 124 F.R.D. 619, 622 (D. Ill. 1989). "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2),” id., and under the rule the existence of some factual variation among class members will not defeat a class action, Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992).

numerosity.
9These two criteria are often analyzed together, see Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992), as this Court now does.
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Plaintiffs assert that there are several common questions of fact or law, namely: Is the procedure undertaken without consent? And, if so, is consent required by the Fourth and/or Fourteenth Amendments? Does the Procedure violate rights secured by the Fourth and/or Fourteenth Amendments? Is the manner in which the procedure is performed reasonably calculated to spread disease and, if so, is this a violation of rights secured by the Fourth and/or Fourteenth Amendments?
Pl.’s Cert. Mot. at 4-5. While there are some factual discrepancies among members of the putative plaintiff class, there are nonetheless common issues of fact and law to justify class certification.
Defendants rely too much on select factual determinations that might bary on a case-bycase basis, and which in some way might affect the screening process for individual putative class members. Rather than seeking to establish that the prisoner consent was valid in some instances and invalid in others, Plaintiffs maintain that, as a rule, the manner in which the screening process is conducted precludes valid consent: “Plaintiffs intend to show in their impending motion for summary judgment that the totality of circumstances at the receiving unit makes it impossible for anyone to give a valid consent to the insertion of the urethral swab.” Pl.’s Reply in Supp. of Class Cert. at 11. This framing of the issue effectively shifts the debate toward questions that are resolvable without delving into an individualized analysis of minor factual discrepancies. See, e.g., Murray v. GMAC Mortgage Corp., 434 F.3d 948, 955 (7th Cir. 2006) (upholding class certification despite member differences because the answers to the distinguishing question – the presence or absence of a firm offer – were not dispositive of the ultimate legal determinations).

-8Plaintiffs' Exhibit 4

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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 51 of 56

Similarly, the class definition satisfies the demands of Rule 23(a)(3), which requires that the claims of the class representatives be typical of those of other class members. A typical claim 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). Further, “similarity of legal theory may control even in the face of different facts.” Id. Here, the underlying factual basis was the same for all prisoners admitted to the Cook County jail; they were all admitted and screened, and a variety of different factors may or may not have combined to invalidate the boilerplate consent that they gave. The legal argument that comes out of this is that the prisoners’ constitutional rights under the Fourth and/or Fourteenth Amendments were violated. Despite minor difference in how the underlying process was executed, this indeed suffices to establish that all prisoners that underwent this screening share a common nucleus of facts, and that the Plaintiffs’ legal theory would carry over to any of them.
Representativeness Rule 23(a)(4) requires that the named plaintiff “fairly and adequately protect the interests of the class.” This inquiry is generally broken into two component parts: (1) whether Plaintiff's counsel possesses the sufficient qualifications and experience to litigate a class action lawsuit in federal court; and (2) whether Plaintiff has interests that are antagonistic to or in conflict with those of other class members. Defendant has not challenged the general adequacy of counsel in this case, and this Court sees no reason to doubt that it is adequate. Defendant does raise a question about the techniques used by Plaintiffs’ counsel in finding their clients in this instance. Resp. to Cert. Mot. at 4.

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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 52 of 56

However, this is unavailing – whether or not Plaintiffs were fully aware of their constitutional protections before they were approached by Mr. Flaxman and Mr. Morrissey has little to do with counsel’s ability to zealously advocate for the entire class from this point forward.
In addition, there is nothing to indicate that the Plaintiffs’ interests will be “antagonistic to those of the rest of the class.” While Defendants make a great deal out of the Second Circuit’s choice to consider Plaintiffs’ credibility of individuals, Resp. to Cert. Mot. at 8-9, they have not advanced evidence of dishonesty that would make this Court question their ability to stand as class representatives. Defendants’ suggestion that McGrath’s status as an “admitted heroin addict” should make his credibility “highly suspect” is not convincing, see Resp. to Cert. Mot. at 9, particularly where class membership is made up entirely of prisoners, many of whom have a history of criminality and/or drug abuse.
Predominance of Common Questions Rule 23(b)(3), which provides the grounds for Plaintiffs’ motion, 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.” Amchem Prods. v. Windsor, 521 U.S. 591, 615 (1997). “The matters pertinent to the finding [under Rule 23(b)(3)] include: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action.” Fed. R. Civ. P. 23(b)(3). In considering these

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requirements, “the court must review the substantive elements of plaintiffs’ cause of action, the proof necessary for the various elements and the manageability of the trial on these isuses.” Rodriguez v. Ford Motor Credit Co., 2002 WL 655679 at *4 (N.D. Ill. Apr. 18, 2002) (citing Simer, 661 F.2d at 672)). “Where liability determinations are both individual and fact-intensive, class certification under Rule 23(b)(3) is improper.” Oshawa, 225 F.R.D. at 584 (citing Rodriguez, 2002 WL 655679 at *4)).
The “predominant” question is whether or not Defendants unconstitutionally performed the screening process without achieving valid consent from the prisoners. Largely because of the manner in which Plaintiff has framed this question – as a categorical determination that applies to all individuals subjected to that process – there is no reason to think that minor factual discrepancies will counterbalance the importance of this overarching issue. The most difficult and all-encompassing question of consent, and Defendants’ alleged nefarious intent, can be decided and applied to all potential members. These questions will predominate, addressing far weightier factual and legal issues than minor individual deviations from the standard jail practices in question.
The second part of 23(b)(1)(3) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” It is true that individualized factfinding with respect to each putative class member can undermine the potential benefits of class action status. See Fisher v. Britol-Myers Squibb Co., 181 F.R.D. 365, 373 (N.D. Ill. 1998) (finding that there is little efficiency when court would need to engage in“extensive individualized proceedings regardless of whether we certify a class”); Crato v. Estate of Kassel, 63 F.R.D. 18 (S.D.N.Y. 1974) (finding certification of plaintiff class, or subgroups of a plaintiff

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class, inappropriate in case of fraud because each member would be required to testify on the representations that were made to them). However, in this instance the factual determination required in every given instance would be a relatively straightforward one; if the Plaintiffs successfully establish that the screening process was necessarily non-consensual, determining membership would be a simple matter of deciding who went through that process. Any additional factual analysis of individual circumstances would be limited, as stated above.
Even if it were necessary to conduct a mini-hearing to establish that each of the individual putative class members was indeed subject to the practices outlined in Plaintiffs’ allegations, which should not be the case, this would still be more efficiently done if this court is first able to categorically address the alleged unconstitutional process itself. To rehear this same question for each prisoner defies logic, and the case therefore demands the efficiency of scale that Rule 23 provides. As the matter is framed by Plaintiffs, membership in the class will be determined by whether or not a given prisoner underwent the STD screening. This is well within the realm of reasonable membership determinations that courts of this circuit have found appropriate in the past.
This outcome is supported by the application of another, implicit requirement that this circuit has read into the explicit criteria of Rule 23; that the definition of the proposed class be "adequately defined and clearly ascertainable." Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981). If Plaintiffs were in fact arguing that some of the prisoners admitted into the Cook County Jail had consented, the margins of that class would be subjective and difficult to determine without a thorough factual analysis of each prisoner's experience. If that were the case, Plaintiffs would fail to meet the implicit criterion adopted by the Seventh Circuit. Id. However where, as here,

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the Plaintiffs maintain that the process itself is constitutionally suspect, they have presented an issue that can and should be addressed categorically with respect to all similarly-situated prisoners.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for class certification is GRANTED.
Enter:

Dated: December 14, 2006

/s/ David H. Coar David H. Coar United States District Judge

-13Plaintiffs' Exhibit 4

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Case 1:07-cv-03889 Document 64 Filed 02/04/2008 Page 56 of 56
CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of February, 2008, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Jamie Melissa Sheehan, Ass’t State’s Atty, 50 W Washington St, Room 500, Chicago, IL 60602, and Daniel Francis Gallagher, Esq., Querrey & Harrow, Ltd., 175 West Jackson Boulevard, Suite 1600, Chicago, IL 60604-2827 , and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 
 Derrick Phipps, et al., Plaintiffs, -vs- Sheriff of Cook County, and Cook County, Illinois, Defendants.
No. 07 CV 3889
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
2007 U.S. Dist. Ct. Pleadings 44399; 2007 U.S. Dist. Ct. Pleadings LEXIS 7450
July 12, 2007
Complaint
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s)
Other: Miscellaneous Expert Witness Filing(s)
COUNSEL: [*1] Thomas G. Morrissey, Ltd., 10249 South Western Avenue, Chicago, Illinois 60643, (773) 233-7900.
Robert H. Farley, Jr., Ltd., 1155 South Washington, Naperville, Illinois 60540, (630)-369-0103.
Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604, (312) 427-3200.
Attorneys for Plaintiffs.
JUDGES: Elaine Bucklo; Magistrate Judge Cole
TITLE: AMENDED COMPLAINT
TEXT: (jury demand) Plaintiffs, by counsel, alleges as follows: 1. This is a civil action arising under Section 202 of the Americans with Disabilities Act, 42 U.S.C. ß12132, Section
504 of the Rehabilitation Act, 29 U.S.C. ß794(a), and 42 U.S.C. ß1983. The jurisdiction of this Court is conferred by 28 U.S.C. ß12133, 29 U.S.C. ß794a(a)(2), and 28 U.S.C. ß1343.
2. Plaintiffs Derrick Phipps, Kevin House, Kenneth Courtney, and James Grant are residents of the Northern District of Illinois who are wheelchair bound.
3. Defendants are the Sheriff of Cook County and Cook County, Illinois. 4. Plaintiff Phipps is a paraplegic. [*2] He was assigned to the "Residential Treatment Unit" ("RTU") of Division Eight from April 11, 2007 to May 13, 2007. 5. While confined at the RTU, Plaintiff Phipps was discriminated against because of his disability in violation of ß 202 of the Americans with Disabilities Act of 1990(ADA) and ß 504 of the Rehabilitation Act of 1973 because defendants failed to provide appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound persons. 6. Plaintiff Phipps developed an infection from his bed sores as the direct and proximate result of the discrimination described above; on or about May 13, 2007, plaintiff was transferred to the hospital wing of Division Eight ("Cermak Hospital") where he remained until he was discharged in July of 2007. 7. While confined at Cermak Hospital, Plaintiff Phipps continued to be discriminated against because of his disability in violation of ß 202 of the Americans with Disabilities Act of 1990(ADA) and ß 504 of the Rehabilitation Act of

1973 because defendants failed to provide appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound persons.
8. Plaintiff Phipps [*3] incurred personal injuries as a result of the above described discrimination at the RTU and Cermak Hospital: plaintiff fell on several occasions while trying to maneuver his body from the wheelchair to a nonhandicap accessible toilet; and while trying to maneuver his body from the wheelchair to the non-handicap accessible bed; plaintiff was required to shower while sitting in his wheelchair (rather than on a handicap accessible chair) and was unable to clean and dry his body
9. Plaintiff Phipps was also denied enlargement from custody at the Cook County Jail through the "Sheriff's Electronic Monitoring" program because of his disability: plaintiff was found qualified for placement in the "Electronic Monitoring" program on his admission to the jail but was denied placement in this program because of the Sheriff's refusal to maintain appropriate policies for the transportation of persons, like plaintiff, who are paraplegic.
10. Plaintiff Kevin House is a paraplegic. He was assigned to Cermak Hospital from March 15, 2007 through April 6, 2007. While confined to Cermak Hospital, Plaintiff House was discriminated against because of his disability in violation of ADA and Sect. 504 of [*4] the Rehabilitation Act of 1973 because defendants failed to provide him appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound persons.
11. Plaintiff House incurred personal injuries as a result of the above described discrimination at Cermak Hospital: plaintiff fell on several occasions while attempted to transfer to a non -accessible chair in the shower area.
12. Plaintiff Courtney is a paraplegic. Since entering the Jail on June 6, 2006, Plaintiff Courtney has been assigned to Cermak Hospital. He is being discriminated against at Cermak Hospital because of his disability in violation of ADA and Sect. 504 of the Rehabilitation Act of 1973 because defendants have not provided him with appropriate shower facilities, wash basins and appropriate beds for wheelchair bound persons. Since entering Cermak Hospital, Plaintiff Courtney has been unable to take a shower because the showers are not accessible. Plaintiff Courtney has filed a grievance and exhausted the administrative remedies available at the Jail prior to filing this action.
13. Plaintiff Courtney has suffered personal injuries as a result of the above described discrimination [*5] at Cermak Hospital. Plaintiff has fallen on several occasions attempting to transfer from his inaccessible bed to his wheelchair. Courtney's bed sores have also become infected as a result of not being able to shower.
14. Plaintiff James Grant has a spinal cord injury and is partially paralyzed on his left side. Since March of 2007, Plaintiff Grant has been assigned to Cermak Hospital and is being discriminated against because of his disability in violation of ADA and Sect. 504 of the Rehabilitation Act of 1973 because defendants have failed to provide him appropriate shower facilities, toilets, wash basins and appropriate beds for wheelchair bound persons. Since entering Cermak Hospital, Plaintiff Grant has been unable to take a shower because the showers are not accessible. Plaintiff Grant has filed a grievance and exhausted the administrative remedies available at the Jail prior to filing this action.
15. Plaintiff Grant has suffered personal injuries as a result of the above described discrimination at Cermak Hospital: Plaintiff Grant has fallen on several occasions attempting to transfer to and from the toilet and he has developed rashes on his body as a result of not being [*6] able to shower.
16. As a result of the foregoing, the plaintiffs have incurred physical injuries, were subjected to emotional distress, and were deprived of equal protection of law, as secured by the Fourteenth Amendment to the Constitution of the United States, and were discriminated against in violation of the Americans with Disabilities Act, 42 U.S.C. ß12132 and Section 504 of the Rehabilitation Act.
17. Plaintiffs bring this action for a class of all former and current wheelchair bound inmates at the Cook County Department of Corrections who on or after July 12, 2005 were subjected to discrimination because of their disability in violation of ß 202 of the Americans with Disabilities Act of 1990(ADA) and ß 504 of the Rehabilitation Act of 1973 because defendants failed to provide appropriate shower facilities, appropriate toilet facilities, and appropriate beds for wheelchair bound persons. The proposed class satisfies each of the requirements of Rule 23(a) of the Federal Rules of Civil Procedures. The relief sought is appropriate damages for each person subjected to the aforementioned discrimination [*7] and class certification is appropriate under Rule 23(b)(3).
18. Plaintiffs hereby demands trial by jury.

WHEREFORE, the Plaintiffs requests certification of a class under Rule 23(b)(3) and Judgment be entered in favor of the plaintiffs in an amount in excess of one hundred thousand dollars, plus attorney fees and costs, against the Defendants.
Thomas G. Morrissey, Ltd. 10249 South Western Avenue Chicago, Illinois 60643 (773) 233-7900
Robert H. Farley, Jr., Ltd. 1155 South Washington Naperville, Illinois 60540 (630)-369-0103
Kenneth N. Flaxman 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604 (312) 427-3200
Attorneys for Plaintiffs

 
 Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 1 of 24
CASREF, COLE, PROTO, TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 4.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:07−cv−03889

Phipps v. Sheriff of Cook County et al Assigned to: Honorable Elaine E. Bucklo Demand: $100,000 Cause: 42:1983 Civil Rights Act
Plaintiff
Derrick Phipps

Date Filed: 07/11/2007 Date Terminated: 09/17/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Thomas Gerard Morrissey Thomas G. Morrissey 10249 South Western Avenue Chicago, IL 60643 (773) 233−7900 Email: tgmlaw@ameritech.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth N Flaxman Kenneth N. Flaxman, P.C. 200 South Michigan Avenue Suite 1240 Chicago, IL 60604−6107 (312) 427−3200 Email: knf@kenlaw.com ATTORNEY TO BE NOTICED
Robert Hugh Farley , Jr. Robert H. Farley, Jr., Ltd. 1155 South Washington Naperville, IL 60540 (630) 369−0103 Fax: (630) 369−0195 Email: farleylaw@aol.com ATTORNEY TO BE NOTICED

V. Defendant Sheriff of Cook County

represented by Daniel Francis Gallagher Querrey &Harrow, Ltd. 175 West Jackson Boulevard Suite 1600 Chicago, IL 60604−2827 (312) 540−7000 Email: dgallagher@querrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jamie Melissa Sheehan Cook County State's Attorneys Office (50 W) 50 West Washington Avenue Chicago, IL 60602 (312) 603−6772 Email: jsheeh@cookcountygov.com TERMINATED: 11/19/2007 LEAD ATTORNEY

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 2 of 24

Dominick L Lanzito Querrey &Harrow, Ltd. 175 West Jackson Boulevard Suite 1600 Chicago, IL 60604 (312) 540−7592 Email: dlanzito@querrey.com ATTORNEY TO BE NOTICED

Lawrence S. Kowalczyk Querrey &Harrow, Ltd. 175 West Jackson Boulevard Suite 1600 Chicago, IL 60604−2827 (312) 540−7000 Email: lkowalczyk@querrey.com ATTORNEY TO BE NOTICED

Mary Elizabeth McClellan Cook County States Attorney Torts/Civil Rights Litigation 50 W. Washington St, Suite 500 Chicago, IL 60602 312−603−3374 Fax: 312−603−5440 Email: mary.mcclellan@cookcountyil.gov ATTORNEY TO BE NOTICED

Paul A OGrady Querrey &Harrow, Ltd. 175 West Jackson Boulevard Suite 1600 Chicago, IL 60604 (312) 540−7000 Email: pogrady@querrey.com ATTORNEY TO BE NOTICED

Defendant Cook County, Illinois

represented by Jamie Melissa Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Elizabeth McClellan (See above for address) ATTORNEY TO BE NOTICED

Michael David Jacobs Cook County States Attorney's Office Daley Ctr. 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−3401 Fax: (312) 603−3000 Email: michael.jacobs@cookcountyil.gov ATTORNEY TO BE NOTICED

Movant Peter Poole, III

represented by Peter Poole, III R−44418 Pinckneyville − PCC PO Box 999 Pinckneyville, IL 62274 PRO SE

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 3 of 24

Date Filed 07/11/2007 07/11/2007 07/11/2007 07/11/2007 07/12/2007 07/12/2007 07/15/2007 07/19/2007 07/19/2007
07/19/2007
07/20/2007
07/20/2007
07/24/2007
08/08/2007 08/30/2007 08/30/2007 08/30/2007 09/14/2007 09/14/2007
09/25/2007

# Docket Text
1 COMPLAINT filed by Derrick Phipps; Jury Demand.(rp, ) (Entered: 07/12/2007)
2 CIVIL Cover Sheet. (rp, ) (Entered: 07/12/2007)
3 ATTORNEY Appearance for Plaintiff Derrick Phipps by Thomas G. Morrissey. (rp, ) (Entered: 07/12/2007)
5 SUMMONS Issued as to Defendants Sheriff of Cook County, Cook County, Illinois. (rp, ) (Entered: 07/12/2007)
6 Plaintiffs' AMENDED complaint by Derrick Phipps against all defendants (Morrissey, Thomas) (Entered: 07/12/2007)
7 NOTICE by Derrick Phipps Amended Complaint (Morrissey, Thomas) (Entered: 07/12/2007)
8 ATTORNEY Appearance for Plaintiff Derrick Phipps by Robert Hugh Farley, Jr (Farley, Robert) (Entered: 07/15/2007)
9 ATTORNEY Appearance for Defendants Sheriff of Cook County, Cook County, Illinois by Jamie Melissa Sheehan (Sheehan, Jamie) (Entered: 07/19/2007)
10 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for extension of time to file answer or otherwise plead (Sheehan, Jamie) (Entered: 07/19/2007)
11 NOTICE of Motion by Jamie Melissa Sheehan for presentment of motion for extension of time to file answer 10 before Honorable Elaine E. Bucklo on 8/1/2007 at 09:30 AM. (Attachments: # 1 Certificate of Service)(Sheehan, Jamie) (Entered: 07/19/2007)
12 RESPONSE by Derrick Phipps to MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for extension of time to file answer or otherwise plead 10 (Morrissey, Thomas) (Entered: 07/20/2007)
13 NOTICE by Derrick Phipps Plaintiffs' Response to Defendants' Motion For An Extension of Time To Answer or Otherwise Plead (Morrissey, Thomas) (Entered: 07/20/2007)
14 MINUTE entry before Judge Elaine E. Bucklo :Defendants' motion for extension of time until 9/14/07 to answer or otherwise plead 10 is granted.Scheduling Conference set for 9/28/2007 at 09:30 AM. At least three days prior to the conference, the parties shall meet and submit to the court a report in the form found on Judge Bucklo's web page under Report of Parties' Planning Meeting.Mailed notice (mpj, ) (Entered: 07/24/2007)
15 ATTORNEY Appearance for Plaintiff Derrick Phipps by Kenneth N Flaxman (Flaxman, Kenneth) (Entered: 08/08/2007)
16 Agreed Protective Order by Sheriff of Cook County, Cook County, Illinois (Sheehan, Jamie) (Entered: 08/30/2007)
17 NOTICE by Sheriff of Cook County, Cook County, Illinois (Attachments: # 1 Certificate of Service)(Sheehan, Jamie) (Entered: 08/30/2007)
18 AGREED PROTECTIVE Order Signed by Judge Elaine E. Bucklo on 8/30/2007.(rp, ) (Entered: 09/06/2007)
19 ANSWER to amended complaint by Sheriff of Cook County, Cook County, Illinois(Sheehan, Jamie) (Entered: 09/14/2007)
20 NOTICE by Sheriff of Cook County, Cook County, Illinois re answer to amended complaint 19 (Attachments: # 1 Certificate of Service)(Sheehan, Jamie) (Entered: 09/14/2007)
21 REPORT of Rule 26(f) Planning Meeting by Derrick Phipps, Sheriff of Cook County, Cook County, Illinois (Farley, Robert) (Entered: 09/25/2007)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 4 of 24

09/25/2007 09/27/2007 09/27/2007 10/03/2007
10/03/2007 10/03/2007
10/10/2007 10/11/2007 10/11/2007 10/12/2007 10/12/2007 10/15/2007 10/16/2007 10/16/2007 10/16/2007 10/17/2007
10/24/2007

22 NOTICE by Derrick Phipps Of Filing Of Parties Planning Meeting (Farley, Robert) (Entered: 09/25/2007)
23 MINUTE entry before Judge Elaine E. Bucklo :On court's own motion, Scheduling Conference set for 9/28/07 is reset for 10/2/2007 at 09:45 AM.Mailed notice (mpj, ) (Entered: 09/27/2007)
24 MINUTE entry before Judge Elaine E. Bucklo :Pursuant to parties' request, Scheduling Conference set for 10/2/07 is reset for 10/3/2007 at 09:30 AM.No notice (mpj, ) (Entered: 09/27/2007)
25 MINUTE entry before Judge Elaine E. Bucklo :Status hearing held on 10/3/2007 and the court approved parties' scheduling order. Plaintiff shall comply with FRCP(26)(a)(2) by 11/16/07. Defendant shall comply with FRCP(26)(a)(2) by 12/16/07.Dispositive motions with supporting memoranda due by 5/1/2008. Pretrial Order due by 9/2/2008.Status hearing set for 3/14/2008 at 10:00 AM. This case is referred to Magistrate Judge Cole for supervision of discovery and judge Cole is requested to set deadlines for discovery. Mailed notice (mpj, ) (Entered: 10/03/2007)
26 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Magistrate Judge Jeffrey Cole for the purpose of holding proceedings related to: Supervision of discovery.(mpj, )Mailed notice. (Entered: 10/03/2007)
27 MINUTE entry before Judge Elaine E. Bucklo :Plaintiff's motion for class certification will be due by 10/24/07; response by 11/21/07; and any reply by 12/12/07. Target date for ruling by mail set for 1/11/08.Mailed notice (mpj, ) (Entered: 10/03/2007)
28 MINUTE entry before Judge Jeffrey Cole : Initial status hearing before Magistrate Judge Cole is set for 10/17/07 at 9:00 a.m. (kef, ) (Entered: 10/10/2007)
29 MOTION by Plaintiff Derrick Phipps to compel Defendants to produce documents (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Farley, Robert) (Entered: 10/11/2007)
30 Plaintiffs NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion to compel 29 before Honorable Jeffrey Cole on 10/17/2007 at 08:30 AM. (Farley, Robert) (Entered: 10/11/2007)
31 RESPONSE by Sheriff of Cook County, Cook County, Illinoisin Opposition to MOTION by Plaintiff Derrick Phipps to compel Defendants to produce documents 29 (Sheehan, Jamie) (Entered: 10/12/2007)
32 NOTICE by Sheriff of Cook County, Cook County, Illinois re response in opposition to motion 31 to compel production (Attachments: # 1 Certificate of Service)(Sheehan, Jamie) (Entered: 10/12/2007)
33 MINUTE entry before Judge Jeffrey Cole :Status hearing before Magistrate Judge Cole is set for 10/18/2007 at 09:00 AM.Mailed notice (jms, ) (Entered: 10/15/2007)
34 REPLY by Derrick Phipps to response in opposition to motion 31 Motion to Compel (Morrissey, Thomas) (Entered: 10/16/2007)
35 NOTICE by Derrick Phipps Plaintiffs' Reply to Defendants's Response to Motion to Compel (Morrissey, Thomas) (Entered: 10/16/2007)
36 MINUTE entry before Judge Jeffrey Cole : Status hearing date of 10/18/07 is stricken. Status hearing date of 10/17/2007 at 8:30 am shall stand.Mailed notice (jms, ) (Entered: 10/16/2007)
37 MINUTE entry before Judge Jeffrey Cole : Motion hearing held. MOTION by Plaintiff Derrick Phipps to compel Defendants to produce documents 29 is granted in part and denied in part as outlined in open court. The parties are directed to submit a proposed protective order to chambers.Status hearing set for 11/19/2007 at 08:30 AM.Advised in open court (jms, ) (Entered: 10/17/2007)
38 MOTION by Plaintiff Derrick Phipps to certify class (Attachments: # 1 Exhibit Exhibit 1 (Sworn Declarations)# 2 Exhibit Expert Report# 3 Certificate of Service

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 5 of 24

10/24/2007 10/30/2007
11/19/2007
11/19/2007 11/19/2007 11/19/2007 11/19/2007 11/19/2007
11/21/2007
11/26/2007 11/26/2007
11/27/2007
12/13/2007 01/09/2008 01/09/2008 01/10/2008 01/10/2008 01/10/2008 01/10/2008 01/10/2008

Certificate of Service)(Flaxman, Kenneth) (Entered: 10/24/2007)
39 QUALIFIED PROTECTIVE Order signed by Judge Jeffrey Cole on 10/24/2007:Mailed notice (tlm) (Entered: 10/28/2007)
40 MINUTE entry before Judge Elaine E. Bucklo :Set deadlines/hearing as to plaintiff's motion to certify class 38 : Responses due by 12/14/2007, Replies due by 1/4/2008. Target date for ruling by mail set for 2/8/08.Mailed notice (mpj, ) (Entered: 10/30/2007)
41 ORAL MOTION by counsel Jamie Melissa Sheehan to withdraw as attorney for Defendants Sheriff of Cook County, Cook County, Illinois. (cdh, ) (Entered: 11/19/2007)
42 ATTORNEY Appearance for Defendant Sheriff of Cook County by Daniel Francis Gallagher (Gallagher, Daniel) (Entered: 11/19/2007)
43 ATTORNEY Appearance for Defendant Sheriff of Cook County by Lawrence S. Kowalczyk (Kowalczyk, Lawrence) (Entered: 11/19/2007)
44 ATTORNEY Appearance for Defendant Sheriff of Cook County by Dominick L Lanzito (Lanzito, Dominick) (Entered: 11/19/2007)
45 ATTORNEY Appearance for Defendant Sheriff of Cook County by Mary Elizabeth McClellan (McClellan, Mary) (Entered: 11/19/2007)
46 MINUTE entry before Judge Jeffrey Cole: Status hearing held and continued for 1/22/2008 at 8:30 A.M. Ms. Jamie Melissa Sheehan's oral motion for leave to withdraw as counsel for defendants is granted. Mailed notice (tlm) (Entered: 11/20/2007)
47 MINUTE entry before Judge Jeffrey Cole :Minute order of 11/19/07 is corrected as follows: Status hearing held and continued to 1/22/08 at 8:30 a.m. Ms. Jamie Sheehan's oral motion for leave to withdraw as counsel for defendant Sheriff of Cook County is granted. Mailed notice (cdh, ) (Entered: 11/21/2007)
48 MOTION by Defendant Sheriff of Cook County for extension of time (McClellan, Mary) (Entered: 11/26/2007)
49 NOTICE of Motion by Mary Elizabeth McClellan for presentment of extension of time 48 before Honorable Elaine E. Bucklo on 11/29/2007 at 09:30 AM. (McClellan, Mary) (Entered: 11/26/2007)
50 MINUTE entry before Judge Elaine E. Bucklo :Defendant's motion for extension of time 48 until 1/14/08 to respond to motion for class certification is granted. Accordingly, reply is extended to 1/28/08. Target date for ruling by mail set for 2/8/07 is reset for 2/29/08.Mailed notice (mpj, ) (Entered: 11/27/2007)
51 ATTORNEY Appearance for Defendant Sheriff of Cook County by Paul A OGrady (OGrady, Paul) (Entered: 12/13/2007)
52 Defendant's Responses to Plaintiff's First Request to Admit by Sheriff of Cook County (Gallagher, Daniel) (Entered: 01/09/2008)
53 NOTICE by Sheriff of Cook County (Gallagher, Daniel) (Entered: 01/09/2008)
54 Defendant's Responses to Plaintiffs' Second Request to Admit by Sheriff of Cook County (Gallagher, Daniel) (Entered: 01/10/2008)
55 NOTICE by Sheriff of Cook County (Gallagher, Daniel) (Entered: 01/10/2008)
56 Defendant Cook County's Response to Plaintiff's First Request to Admit by Cook County, Illinois (Sheehan, Jamie) (Entered: 01/10/2008)
57 NOTICE by Cook County, Illinois re other 56 (Attachments: # 1 Certificate of Service)(Sheehan, Jamie) (Entered: 01/10/2008)
58 Defendant Cook County's Response to Plaintiff's Second Request to Admit by Cook County, Illinois (Sheehan, Jamie) (Entered: 01/10/2008)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 6 of 24

01/10/2008 01/14/2008 01/14/2008 01/18/2008 01/22/2008 02/04/2008 03/13/2008 03/14/2008 03/14/2008 03/17/2008 03/17/2008 03/19/2008
03/26/2008 03/26/2008 03/27/2008
04/10/2008
04/21/2008 04/21/2008

59 NOTICE by Cook County, Illinois re other 58 (Attachments: # 1 Certificate of Service)(Sheehan, Jamie) (Entered: 01/10/2008)
60 MEMORANDUM by Sheriff of Cook County in Opposition to motion to certify class 38 (Gallagher, Daniel) (Entered: 01/14/2008)
61 NOTICE by Sheriff of Cook County (Gallagher, Daniel) (Entered: 01/14/2008)
62 MINUTE entry before Judge Elaine E. Bucklo :Pursuant to plaintiff's request, reply brief on motion for class certification is extended to 2/4/08.Mailed notice (mpj, ) (Entered: 01/18/2008)
63 MINUTE entry before Judge Jeffrey Cole :Magistrate Judge Status hearing held on 1/22/2008 and continued to 3/27/2008 at 09:00 a.m. Advised in open court. (cdh, ) (Entered: 01/22/2008)
64 RESPONSE by Derrick Phippsin Support of MOTION by Plaintiff Derrick Phipps to certify class 38 (Flaxman, Kenneth) (Entered: 02/04/2008)
65 MINUTE entry before Judge Elaine E. Bucklo :On court's own motion, status hearing set for 3/14/08 is reset for 4/30/2008 at 09:30 AM.Mailed notice (mpj, ) (Entered: 03/13/2008)
66 MOTION by Defendant Sheriff of Cook County to quash Deposition of Zelda Whittler (Gallagher, Daniel) (Entered: 03/14/2008)
67 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to quash 66 before Honorable Jeffrey Cole on 3/19/2008 at 08:30 AM. (Gallagher, Daniel) (Entered: 03/14/2008)
68 RESPONSE by Derrick Phippsin Opposition to MOTION by Defendant Sheriff of Cook County to quash Deposition of Zelda Whittler 66 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Morrissey, Thomas) (Entered: 03/17/2008)
69 NOTICE by Derrick Phipps Response to Defendant's Motion to Quash (Morrissey, Thomas) (Entered: 03/17/2008)
70 MINUTE entry before Judge Honorable Jeffrey Cole:Motion hearing held. Defendant, Sheriff of Cook County's motion to quash deposition of Zelda Whittler 66 is denied. The deposition may be taken at Ms. Whittler's office, according to her schedule and may last one hour. If more time is necessary parties shall contact chambers at that time. Advised in open court. (cdh, ) (Entered: 03/20/2008)
71 MINUTE entry before Judge Honorable Elaine E. Bucklo: plaintiffs' motion to certify class(38) is granted. See Memorandum Opinion and Order for details.Mailed notice (mpj, ) (Entered: 03/26/2008)
72 MEMORANDUM Opinion and Order Signed by Judge Honorable Elaine E. Bucklo on 3/26/2008:Mailed notice(mpj, ) (Entered: 03/26/2008)
73 MINUTE entry before Judge Honorable Jeffrey Cole: Status hearing held. Initial target date for discovery to identify the class members is set for 07/28/08. Status hearing schedule is as follows: 4/10/2008 at 9:00 A.M.; 4/23/2008 at 9:00 AM. 5/21/08 at 9:00 a.m.; 6/26/2008 at 9:00 AM. Mailed notice (tlm) (Entered: 03/31/2008)
74 MINUTE entry before Judge Honorable Jeffrey Cole:Magistrate Judge Status hearing held and continued to May 2, 2008 at 9:00 a.m. Previously scheduled depositions will go forward, other discovery will be stayed pending further order of court and decision by the USCA on the appeal of the class certification. On May 2, 2008 the opposing views of further merits based may be discussed. Mailed notice (cdh, ) (Entered: 04/10/2008)
75 MOTION by Plaintiff Derrick Phipps to compel (Morrissey, Thomas) (Entered: 04/21/2008)
76 Motion to Compel NOTICE of Motion by Thomas Gerard Morrissey for presentment of before Honorable Jeffrey Cole on 4/24/2008 at 08:30 AM. (Morrissey, Thomas) (Entered: 04/21/2008)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 7 of 24

04/24/2008
04/30/2008
05/02/2008 05/02/2008 05/16/2008 05/16/2008 05/19/2008 05/21/2008 05/21/2008 05/21/2008 05/22/2008
05/22/2008
05/29/2008 05/29/2008 06/09/2008

77 MINUTE entry before Judge Honorable Jeffrey Cole:Motion hearing held. Plaintiff's motion to compel the defendant to produce a 30(b)(6) witness 75 is denied as moot in light of leave to the plaintiff to propound additional requests to admit and leave to the defendant to amend its present answers to requests to admit. Advised in open court. (cdh, ) (Entered: 04/25/2008)
143 CERTIFIED ORDER from USCA dated 4/30/2008. The following are before the court: 1. Defendant Sherrif of Cook county's petition for leave to appeal the grant of class certification pursuant to Rule 23(f) of the federal rules of civil procedure, filed on 4/7/2008, by counsel for the petitioner. 2. Response of plaintiffs−respondents to petition for permission to appeal, filed on April 15, 2008, by counsel for the respondents. IT IS ORDERED that #1 is DENIED. (ef, ) (Entered: 02/06/2009)
78 MINUTE entry before Judge Honorable Jeffrey Cole:Status hearing held and continued to May 27, 2008 at 9:30 a.m. Plaintiff shall provide a census of inmates name, ID number and location as discussed in court. Advised in open court. (cdh, ) (Entered: 05/02/2008)
79 MINUTE entry before Judge Honorable Jeffrey Cole:Corrected minute order of 5/2/08 is as follows: Status hearing held and continued to May 27, 2008 at 9:30 a.m. Defendants' shall provide a census of inmates name, ID number and location as discussed in court. Advised in open court. (cdh, ) (Entered: 05/02/2008)
80 MOTION by Plaintiff Derrick Phipps to approve form of class notice (Flaxman, Kenneth) (Entered: 05/16/2008)
81 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 80 before Honorable Elaine E. Bucklo on 5/22/2008 at 09:00 AM. (Flaxman, Kenneth) (Entered: 05/16/2008)
82 MINUTE entry before the Honorable Jeffrey Cole:Status hearing set for 5/21/08 is stricken. Status hearing set for 5/27/08 at 9:30 a.m. still stands. Mailed notice (cdh, ) (Entered: 05/19/2008)
83 MINUTE entry before the Honorable Elaine E. Bucklo:MOTION by Plaintiff Derrick Phipps to approve form of class notice is referred to Magistrate Judge Cole.Mailed notice (slb, ) (Entered: 05/21/2008)
ORAL MOTION by Parties' for hearing on motion to approve form of class notice 80 on 5/22/08 at 8:30 a.m. (cdh, ) (Entered: 05/21/2008)
84 MINUTE entry before the Honorable Jeffrey Cole:Oral motion for hearing on motion to approve form of class notice 80 is granted. Motion hearing is set for 5/22/08 at 8:30 a.m. Telephoned and mailed notice (cdh, ) (Entered: 05/21/2008)
85 MINUTE entry before the Honorable Jeffrey Cole:Motion hearing held. Response to plaintiffs motion to approve form of class notice 80 is due by June 6, 2008. Reply shall be due by June 13, 2008. Motion hearing and ruling on the plaintiffs motion to approve form of class notice 80 is set for Monday, June 16, 2008 at 8:30 a.m. Status hearing set for May 27, 2008 is stricken. Notices mailed by Judicial Staff. (cdh, ) (Entered: 05/23/2008)
86 EXECUTIVE COMMITTEE ORDER:Case referred to the Honorable Jeffrey Cole; Perform such additional duties as are not inconsistent with the Constitution and laws of the United States. Plaintiff's motion to approve form of class notice is referred. Signed by Executive Committee on 5/22/2008. (ef, ) (Entered: 05/29/2008)
87 MINUTE entry before the Honorable Jeffrey Cole: Plaintiffs motion to approve form of class notice 80 is granted with the modification discussed in court on 5/22/08.Mailed notice (ca, ) (Entered: 05/30/2008)
88 TRANSCRIPT of proceedings for the following dates: 10/17/2007; Before the Honorable Jeffrey Cole. (Document not Scanned). (ef, ) (Entered: 05/30/2008)
89 MOTION by Plaintiff Derrick PhippsPost Class Notice (Morrissey, Thomas) (Entered: 06/09/2008)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 8 of 24

06/09/2008 06/12/2008
06/16/2008
07/28/2008 07/29/2008 07/29/2008 07/31/2008 07/31/2008 08/05/2008 09/02/2008 09/02/2008 09/05/2008 09/08/2008
09/11/2008 10/02/2008 10/02/2008 10/03/2008

90 Post Class Notice NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for miscellaneous relief 89 before Honorable Jeffrey Cole on 6/12/2008 at 08:30 AM. (Morrissey, Thomas) (Entered: 06/09/2008)
91 MINUTE entry before the Honorable Jeffrey Cole:Motion hearing held. Plaintiff's motion to post class notice 89 is granted. The notice shall be prominently posted in the following areas: RCDC area (intake area); Third floor common areas of Cermak Hospital and if there is an area or floor for women in that common area; RTU recreation room and areas where wheel chair bound detainees are housed; Division Three Womens Housing, on the floor or floors where wheel chair bound female inmates are housed. Notice shall be posted until further order of court. Notices mailed by Judicial Staff. (cdh, ) (Entered: 06/12/2008)
92 MINUTE entry before the Honorable Jeffrey Cole:Motion hearing held. Notice for mailing is approved as submitted. Notice for posting is approved as amended in open court. Status hearing set for 6/26/08 is stricken. Mailed notice (cdh, ) (Entered: 06/16/2008)
95 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held and continued to 8/4/08 at 8:30 a.m. Mailed notice (ef, ) (Entered: 07/30/2008)
93 MOTION by Plaintiff Derrick Phipps to compel (Morrissey, Thomas) (Entered: 07/29/2008)
94 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to compel 93 before Honorable Jeffrey Cole on 8/5/2008 at 08:30 AM. (Morrissey, Thomas) (Entered: 07/29/2008)
ORAL MOTION by Plaintiff to reset the status hearing of 8/4/08 at 8:30 a.m. to 8/5/08 at 8:30 a.m. (cdh, ) (Entered: 07/31/2008)
96 MINUTE entry before the Honorable Jeffrey Cole:Plaintiff's oral motion to reset the status hearing of 8/4/08 to 8/5/08 at 8:30 is granted. Mailed notice (cdh, ) (Entered: 07/31/2008)
97 MINUTE entry before the Honorable Jeffrey Cole:Motion hearing held. Plaintiffs' motion to compel 93 is denied without prejudice. Status hearing is set for 9/11/08 at 8:30 a.m. Mailed notice (ef, ) (Entered: 08/07/2008)
98 MOTION by Defendant Sheriff of Cook County for extension of time (Gallagher, Daniel) (Entered: 09/02/2008)
99 NOTICE of Motion by Daniel Francis Gallagher for presentment of extension of time 98 before Honorable Elaine E. Bucklo on 9/8/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 09/02/2008)
100 MINUTE entry before the Honorable Elaine E. Bucklo:Defendants' motion for extension of time reset for 9/8/2008 at 09:15 AM.Mailed notice (mpj, ) (Entered: 09/05/2008)
101 MINUTE entry before the Honorable Elaine E. Bucklo:Defendants' motion for extension of time 98 heard on 9/8/08 and the motion is granted as unopposed. Status hearing set for 11/26/2008 at 09:30 AM. Discovery is extended to 12/8/08. Any dispositive motion will be due by 2/9/09. Mailed notice (mpj, ) (Entered: 09/08/2008)
102 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held and continued to 11/26/08 at 9:30 a.m.Mailed notice (jj, ) (Entered: 09/11/2008)
103 MOTION by Defendant Cook County, Illinois to strike plaintiffs HIPAA waivers (Sheehan, Jamie) (Entered: 10/02/2008)
104 NOTICE of Motion by Jamie Melissa Sheehan for presentment of motion to strike 103 before Honorable Jeffrey Cole on 10/8/2008 at 08:30 AM. (Attachments: # 1 Certificate of Service)(Sheehan, Jamie) (Entered: 10/02/2008)
105 RESPONSE by Plaintiff Derrick Phipps Defendants' Motion To Strike HIPPA Forms (Morrissey, Thomas) (Entered: 10/03/2008)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 9 of 24

10/03/2008 10/03/2008 10/03/2008 10/08/2008
10/31/2008 10/31/2008 11/05/2008 11/06/2008 11/06/2008
11/17/2008

106 NOTICE by Derrick Phipps Response To (Morrissey, Thomas) (Entered: 10/03/2008)
107 RESPONSE by Plaintiff Derrick Phipps Corrected Response To Defendants' Motion To Strike HIPPA Forms (Morrissey, Thomas) (Entered: 10/03/2008)
108 NOTICE by Derrick Phipps Corrected Notice of Filing Plaintiffs' Response To Defendants' Motion To Strike Hippa Forms (Morrissey, Thomas) (Entered: 10/03/2008)
109 MINUTE entry before the Honorable Jeffrey Cole:Motion hearing held. Defendant's motion to strike plaintiff's HIPPA Forms 103 is granted. Forms submitted that do not comply with the agreement made in court need not be honored, and the plaintiff shall re−submit the forms asking for the medical information only. The defendants shall produce forthwith on a rolling production, if necessary, the medical records called for by the forms that are properly executed. Mailed notice (cdh, ) (Entered: 10/08/2008)
110 MOTION by Defendant Sheriff of Cook County to quash 30(b)(6) Witnesses (Gallagher, Daniel) (Entered: 10/31/2008)
111 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to quash 110 before Honorable Jeffrey Cole on 11/6/2008 at 08:30 AM. (Gallagher, Daniel) (Entered: 10/31/2008)
112 RESPONSE by Derrick Phippsin Opposition to MOTION by Defendant Sheriff of Cook County to quash 30(b)(6) Witnesses 110 (Flaxman, Kenneth) (Entered: 11/05/2008)
113 MINUTE entry before the Honorable Jeffrey Cole:Motion hearing held. Motion by Sheriff of Cook County to quash 30(b)(6) witnesses 110 is denied without prejudice to its refiling. Mailed notice (cdh, ) (Entered: 11/06/2008)
114 MINUTE entry before the Honorable Jeffrey Cole:Amended minute order of 11/6/08: Motion hearing held. Motion by Sheriff of Cook County to quash 30(b)(6) witnesses 110 is denied without prejudice to its refiling. See: McWilliams v. McWilliams, 2006 W.L. 3775952 (N.D. Ill.2006); Kyles v. J.K. Guardian Security Services, 236 F.R.D. 400 (N.D. Ill 2006).Mailed notice (cdh, ) (Entered: 11/06/2008)
115 TRANSCRIPT OF PROCEEDINGS held on 09−08−08 before the Honorable Elaine E. Bucklo. Court Reporter Contact Information: michael_snyder@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

11/24/2008
11/24/2008 11/24/2008 11/25/2008

Redaction Request due 12/8/2008. Redacted Transcript Deadline set for 12/18/2008. Release of Transcript Restriction set for 2/16/2009. (Snyder, Michael) (Entered: 11/17/2008)
116 MINUTE entry before the Honorable Jeffrey Cole:Judge Bucklo has forward to me a letter received from Dean C. Powell regarding 07c3889. The case is called for status hearing on 11/26/2008 at 8:30 a.m. to discuss further steps to be taken with this letter.Mailed notice (cdh, ) (Entered: 11/24/2008)
117 MINUTE entry before the Honorable Jeffrey Cole:Minute order of 11/24/08 is amended to reflect a time change for the status hearing. Status hearing is set for 11/26/2008 at 9:30 AM. Mailed notice (cdh, ) (Entered: 11/24/2008)
118 STATUS Report by Derrick Phipps (Flaxman, Kenneth) (Entered: 11/24/2008)
119 MINUTE entry before the Honorable Elaine E. Bucklo:On court's own motion, status hearing reset for 12/22/2008 at 09:30 AM.Mailed notice (mpj, ) (Entered:

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 10 of 24

11/25/2008 11/26/2008
11/26/2008
12/01/2008 12/01/2008 12/02/2008 12/02/2008 12/02/2008 12/03/2008 12/03/2008 12/03/2008 12/03/2008
12/05/2008 12/05/2008
12/10/2008

11/25/2008)
124 ENTERED Video Writ 121 . Mailed notice (tlm) (Entered: 12/02/2008)
120 MINUTE entry before the Honorable Jeffrey Cole: Status hearing held. It is respectfully requested that the officials Dixon Correctional Center arrange for Dean Charles Powell IDOC # N12450 be allowed to have an attorney telephone conference with Mr. Ken Flaxman 312−427−3200 on December 2, 2008 at time most convenient with Dixon authorities. This will help facilitate the video conference with Mr. Powell that has been ordered for December 3, 2008 at 9:30 a.m. (tlm) (Entered: 12/01/2008)
121 MINUTE entry before the Honorable Jeffrey Cole: Status hearing held. The defendant shall provide the outstanding discovery of qualified names and medical records of wheelchair bound prisoners from the 14 individuals to the plaintiff by 11/30/08. Video writ conference is set for Wednesday, 12/03/08 at 9:30 a.m. Mailed notice (tlm) (Entered: 12/01/2008)
122 MOTION by Defendant Sheriff of Cook County for extension of time to complete discovery (Gallagher, Daniel) (Entered: 12/01/2008)
123 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for extension of time to complete discovery 122 before Honorable Elaine E. Bucklo on 12/4/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 12/01/2008)
125 OBJECTIONS by Derrick Phipps to MOTION by Defendant Sheriff of Cook County for extension of time to complete discovery 122 (Flaxman, Kenneth) (Entered: 12/02/2008)
126 RESPONSE by Defendant Sheriff of Cook County to objections 125 of Plaintiffs to Sheriff's Motion for Extension of Time (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gallagher, Daniel) (Entered: 12/02/2008)
127 NOTICE by Sheriff of Cook County re Response 126 to Plaintiffs' Objections to Sheriff's Motion for Extension of Time (Gallagher, Daniel) (Entered: 12/02/2008)
128 MINUTE entry before the Honorable Elaine E. Bucklo:Defendant's motion for extension of time to complete discovery 122 is referred to the assigned Magistrate Judge for resolution. Status hearing reset for 1/29/2009 at 09:30 AM.Mailed notice (mpj, ) (Entered: 12/03/2008)
ORAL MOTION by Defendants' to set a hearing on the motion for extension of time to complete discovery 122 for 12/4/08 at 9:30 a.m. (cdh, ) (Entered: 12/03/2008)
129 MINUTE entry before the Honorable Jeffrey Cole:Oral motion by Defendants' to set a hearing on the motion for extension of time to complete discovery 122 for 12/4/08 at 9:30 a.m. is granted. Mailed notice (cdh, ) (Entered: 12/03/2008)
130 MINUTE entry before the Honorable Jeffrey Cole:Video conference held with Mr. Dean Powell and counsel for the parties. Mr. Powell has reported to the court that the misunderstanding that led to his letter to Judge Bucklo has been resolved to his complete satisfaction following a 45 minute telephone call with Mr. Flaxman. (ef, ) (Entered: 12/04/2008)
ORAL MOTION by Defendant Cook County, Illinois to join Sheriff of Cook County's motion for extension of time to complete discovery 122 . (cdh, ) (Entered: 12/05/2008)
131 MINUTE entry before the Honorable Jeffrey Cole: Motion hearing held. Defendant Cook Countys oral motion to join Sheriff of Cook Countys motion for extension of time to complete discovery 122 is granted. Sheriff of Cook Countys motion for extension of time to complete discovery 122 is granted. Discovery is shall close on 3/17/09. Status hearing is set for 1/7/09 at 9:30 a.m. Mailed notice (cdh, ) (Entered: 12/05/2008)
132 MOTION by Plaintiff Derrick Phipps for protective order [renewed] (Flaxman, Kenneth) (Entered: 12/10/2008)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 11 of 24

12/10/2008 12/16/2008 12/18/2008 12/22/2008 01/07/2009
01/09/2009 01/09/2009 01/09/2009 01/28/2009 02/02/2009 03/17/2009 03/17/2009
03/23/2009 03/23/2009

133 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for protective order 132 before Honorable Jeffrey Cole on 12/16/2008 at 08:30 AM. (Flaxman, Kenneth) (Entered: 12/10/2008)
134 MINUTE entry before the Honorable Jeffrey Cole:Motion hearing held. Plaintiffs motion for renewed protective order 132 is granted. Parties are to submit an agreed protective order.Mailed notice (ef, ) (Entered: 12/17/2008)
135 MINUTE entry before the Honorable Jeffrey Cole:Emergency hearing held regarding joint oral motion for protective order. Joint oral motion for protective order is granted. Enter Order. (For further details see separate order.) (ef, ) (Entered: 12/24/2008)
136 JOINT PROTECTIVE Order Signed by the Honorable Jeffrey Cole on 12/22/2008.(ef, ) (Entered: 12/24/2008)
137 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held. On 11/26/09 the defendant, Cook County, was ordered to provide the outstanding discovery of medical records of 14 specified individuals to the plaintiff by 11/30/08. Counsel for plaintiff, reports that the record of 5 individuals, have not been produced. The Cook County Director of Medical Records, Linda Camp, is ordered to appear on 1/9/09 at 9:00 a.m. to show cause why sanctions should not be imposed for violation of the order. If the 5 outstanding medical records are produced to the plaintiffs counsel by Thursday, 1/9/09, plaintiffs counsel shall contact the court and the hearing will be canceled and the rule discharged. Further status hearing is set for 2/2/09 at 9:30 a.m. subject to cancellation by the parties if they conclude a hearing on that date is not necessary. In that event, further status will be held on 3/17/09 at 9:30 a.m. Advised in open court. (cdh, ) (Entered: 01/07/2009)
138 MINUTE entry before the Honorable Jeffrey Cole:Plaintiffs counsel has notified the court that the 5 outstanding files have been produced. The rule to show cause hearing set for 1/9/09 is stricken. The rule is discharged. Mailed notice (cdh, ) (Entered: 01/09/2009)
139 MINUTE entry before the Honorable Jeffrey Cole:Defendant is given leave to depose Kevin House who is currently housed at the Big Muddy Correctional Center, Ina, Illinois. Enter Order. (For further details see separate order.) Mailed notice (ef, ) (Entered: 01/13/2009)
140 ORDER Signed by the Honorable Jeffrey Cole on 1/9/2009.(ef, ) (Entered: 01/13/2009)
141 MINUTE entry before the Honorable Elaine E. Bucklo:On court's own motion, Status hearing reset for 3/27/2009 at 10:00 AM.Mailed notice (mpj, ) (Entered: 01/28/2009)
142 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held on 2/2/2009 and continued to 3/17/2009 at 09:30 AM. Mailed notice(air, ) (Entered: 02/02/2009)
ORAL MOTION by Defendants' to extend discovery to 5/18/09. (cdh, ) (Entered: 03/19/2009)
144 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held and continued to 5/18/09 at 9:30 a.m. Defendants' oral motion to extend discovery to 5/18/09 is granted. The discovery extension applies only to the defendants and only to issues arising from the materials they received at the close of fact discovery on 3/17/09 with 72 new names of possible wheelchair−bound inmates. Advised in open court. (cdh, ) (Entered: 03/19/2009)
145 MOTION by Plaintiff Derrick Phipps to amend/correct order on motion for extension of time,, magistrate judge status hearing,, ruling on motion hearing,, set/reset hearings, 144 (Flaxman, Kenneth) (Entered: 03/23/2009)
146 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to amend/correct, motion for relief,,, 145 before Honorable Jeffrey Cole on 3/26/2009 at 08:30 AM. (Flaxman, Kenneth) (Entered: 03/23/2009)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 12 of 24

03/24/2009 03/26/2009 03/26/2009 03/27/2009
04/06/2009

147 AMENDED NOTICE of Motion by Kenneth N Flaxman for presentment of motion to amend/correct, motion for relief,,, 145 before Honorable Jeffrey Cole on 4/1/2009 at 09:15 AM. (Flaxman, Kenneth) (Entered: 03/24/2009)
ORAL MOTION by Plaintiff to reset Plaintiff's Motion to Amend Order of March 19, 2009 from 4/1/09 to 4/8/09. (cdh, ) Modified on 3/26/2009 (cdh, ). (Entered: 03/26/2009)
148 MINUTE entry before the Honorable Jeffrey Cole:Motion by Plaintiff to reset Plaintiff's Motion to Amend Order of March 19, 2009 from 4/1/09 to 4/8/09 at 9:30 a.m. is granted. Mailed notice (cdh, ) (Entered: 03/26/2009)
149 MINUTE entry before the Honorable Elaine E. Bucklo:Status hearing held on 3/27/2009. Cross−motions for summary judgment with supporting memoranda due by 6/30/2009. Responses due by 7/30/2009. Replies due by 8/20/2009. Target date for ruling by mail set for 9/25/09. Status hearing set for 10/16/2009 at 09:30 AM.Mailed notice (mpj, ) (Entered: 03/27/2009)
150 TRANSCRIPT OF PROCEEDINGS held on March 17, 2009, before the Honorable Jeffrey Cole. Court Reporter Contact Information: Laura LaCien, 312−408−5032, laura_lacien@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

04/08/2009 04/08/2009 04/08/2009
04/10/2009 04/10/2009 04/13/2009 05/13/2009

Redaction Request due 4/27/2009. Redacted Transcript Deadline set for 5/7/2009. Release of Transcript Restriction set for 7/6/2009. (Lacien, Laura) Modified on 4/7/2009 (ef, ). (Entered: 04/06/2009)
151 RESPONSE by Sheriff of Cook County to MOTION by Plaintiff Derrick Phipps to amend/correct order on motion for extension of time,, magistrate judge status hearing,, ruling on motion hearing,, set/reset hearings, 144 145 to Amend Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gallagher, Daniel) (Entered: 04/08/2009)
152 NOTICE by Sheriff of Cook County (Gallagher, Daniel) (Entered: 04/08/2009)
153 MINUTE entry before the Honorable Jeffrey Cole:Motion hearing held. Plaintiff's Motion to Amend Order of March 19, 2009 145 is granted in part and denied in part. The Order of 3/17/09 144 is amended as follows: The discovery extension to 5/18/09 is limited to issues arising from the material the defendants received at the close of fact discovery on 3/17/09 with 72 new names of possible wheelchair−bound inmates. The extension shall also include any discovery seasonably served prior to the close of discovery but which was not completed at the time by the agreement of the parties. Plaintiffs' motion to amend is denied to the extent that it seeks to have the extension of discovery "unrestricted as to subject matter.", (Motion, at paragraph 5).Mailed notice (cdh, ) (Entered: 04/08/2009)
154 MOTION by Defendant Sheriff of Cook County for extension of time to Complete Discovery (Gallagher, Daniel) (Entered: 04/10/2009)
155 NOTICE of Motion by Daniel Francis Gallagher for presentment of extension of time 154 before Honorable Jeffrey Cole on 4/16/2009 at 08:30 AM. (Gallagher, Daniel) (Entered: 04/10/2009)
156 MINUTE entry before the Honorable Jeffrey Cole:Defendant, Sheriff of Cook County, Motion for Extension of Time to Complete Limited Discovery to June 15, 2009 154 is granted. No appearance is necessary on April 16, 2009. Mailed notice (cdh, ) (Entered: 04/13/2009)
157 MINUTE entry before the Honorable Jeffrey Cole:Status hearing set for Monday, May 18, 2009 is reset to Wednesday, May 20, 2009 at 9:30 a.m. Mailed notice (cdh, ) (Entered: 05/13/2009)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 13 of 24

05/20/2009 06/12/2009
06/30/2009 06/30/2009 06/30/2009 06/30/2009
06/30/2009 06/30/2009 06/30/2009 07/01/2009
07/01/2009

158 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held. Status hearing set for June 12, 2009 shall stand. Mailed notice (cdh, ) (Entered: 05/20/2009)
159 MINUTE entry before the Honorable Jeffrey Cole: Status hearing held. Discovery closed on June 15, 2009. The Parties' report to the Court that settlement is not feasible. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Mailed notice (cdh, ) (Entered: 06/12/2009)
160 MOTION by Defendant Sheriff of Cook County for summary judgment (Gallagher, Daniel) (Entered: 06/30/2009)
161 MEMORANDUM by Sheriff of Cook County in support of motion for summary judgment 160 (Gallagher, Daniel) (Entered: 06/30/2009)
162 MOTION by Defendant Cook County, Illinois for summary judgment and Memorandum in Law in support of Motion (Sheehan, Jamie) (Entered: 06/30/2009)
163 RULE 56.1 Statement by Sheriff of Cook County, Cook County, Illinois regarding motion for summary judgment 162 , motion for summary judgment 160 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19)(Gallagher, Daniel) (Entered: 06/30/2009)
164 NOTICE by Cook County, Illinois Motion for Summary Judgment and Memorandum in Support (Sheehan, Jamie) (Entered: 06/30/2009)
165 NOTICE by Sheriff of Cook County re memorandum in support of motion 161 , Rule 56 statement,, 163 , MOTION by Defendant Sheriff of Cook County for summary judgment 160 (Gallagher, Daniel) (Entered: 06/30/2009)
166 MOTION by Plaintiff Derrick Phipps for summary judgment (Flaxman, Kenneth) (Entered: 07/01/2009)
167 RULE 56 1(a)(2) Statement by Derrick Phipps regarding motion for summary judgment 166 (Attachments: # 1 Exhibit 1−9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13a, # 6 Exhibit 13 part 2, # 7 Exhibit 14, # 8 Exhibit 15−21, # 9 Exhibit 22−30)(Flaxman, Kenneth) (Entered: 07/01/2009)
168 TRANSCRIPT OF PROCEEDINGS held on 09−08−08 before the Honorable Elaine E. Bucklo. Court Reporter Contact Information: michael_snyder@ilnd.uscourts.gov (312) 435−5563.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

07/30/2009 07/30/2009 07/30/2009
07/30/2009

Redaction Request due 7/22/2009. Redacted Transcript Deadline set for 8/3/2009. Release of Transcript Restriction set for 9/29/2009. (Snyder, Michael) (Entered: 07/01/2009)
169 RESPONSE by Defendant Cook County, Illinois to Plaintiff's Motion for Summary Judgment (Sheehan, Jamie) (Entered: 07/30/2009)
170 NOTICE by Cook County, Illinois re Response 169 (Sheehan, Jamie) (Entered: 07/30/2009)
171 RESPONSE by Sheriff of Cook County to MOTION by Plaintiff Derrick Phipps for summary judgment 166 (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 07/30/2009)
172 RULE 56.1(b)(3) Statement in Response to Plaintiffs' 56.1(a)(3) Statement of Facts (Gallagher, Daniel) (Entered: 07/30/2009)

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07/30/2009 07/30/2009 07/30/2009
07/30/2009 07/30/2009 07/30/2009 08/20/2009 08/20/2009 08/20/2009 08/20/2009 08/20/2009 08/20/2009 08/20/2009 08/24/2009 08/24/2009 08/26/2009 10/15/2009 11/12/2009 11/25/2009

173 MOTION by Defendant Sheriff of Cook County to strike Plaintiffs' Undisclosed Expert Submitted in Response to Motion for Summary Judgment (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 07/30/2009)
174 MOTION by Defendant Sheriff of Cook County to strike Plaintiffs' Rule 56.1 Statement of Facts (Gallagher, Daniel) (Entered: 07/30/2009)
175 NOTICE by Sheriff of Cook County re MOTION by Defendant Sheriff of Cook County to strike Plaintiffs' Undisclosed Expert Submitted in Response to Motion for Summary Judgment 173 , response to motion 171 , Rule 56 statement 172 , MOTION by Defendant Sheriff of Cook County to strike Plaintiffs' Rule 56.1 Statement of Facts 174 (Gallagher, Daniel) (Entered: 07/30/2009)
176 MEMORANDUM by Derrick Phipps in Opposition to motion for summary judgment 162 , motion for summary judgment 160 (Flaxman, Kenneth) (Entered: 07/30/2009)
177 RULE 56.1(b)(3) Statement by Derrick Phipps regarding motion for summary judgment 162 , motion for summary judgment 160 (Flaxman, Kenneth) (Entered: 07/30/2009)
178 MOTION by Plaintiff Derrick Phipps to strike Rule 56 statement,, 163 [designated paragraphs] (Flaxman, Kenneth) (Entered: 07/30/2009)
179 REPLY by Defendants Sheriff of Cook County, Cook County, Illinois in Support of Defendants' Motion for Summary Judgment (Gallagher, Daniel) (Entered: 08/20/2009)
180 RESPONSE by Defendants Sheriff of Cook County, Cook County, Illinois to Plaintiffs' Additional Statement of Facts (Gallagher, Daniel) (Entered: 08/20/2009)
181 RESPONSE by Defendants Sheriff of Cook County, Cook County, Illinois to Plaintiffs' Motion to Strike Defendants' Rule 56.1 Statement (Gallagher, Daniel) (Entered: 08/20/2009)
182 NOTICE by Sheriff of Cook County, Cook County, Illinois (Gallagher, Daniel) (Entered: 08/20/2009)
183 REPLY by Derrick Phipps to response to motion 171 of plaintiffs for summary judgment (Flaxman, Kenneth) (Entered: 08/20/2009)
184 RESPONSE by Derrick Phippsin Opposition to MOTION by Defendant Sheriff of Cook County to strike Plaintiffs' Undisclosed Expert Submitted in Response to Motion for Summary Judgment 173 (Flaxman, Kenneth) (Entered: 08/20/2009)
185 RESPONSE by Derrick Phippsin Opposition to MOTION by Defendant Sheriff of Cook County to strike Plaintiffs' Rule 56.1 Statement of Facts 174 (Flaxman, Kenneth) (Entered: 08/20/2009)
186 MOTION by Plaintiff Derrick Phipps to strike reply 179 [false statements therein] (Flaxman, Kenneth) (Entered: 08/24/2009)
187 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to strike, motion for relief 186 before Honorable Elaine E. Bucklo on 8/27/2009 at 09:30 AM. (Flaxman, Kenneth) (Entered: 08/24/2009)
188 MINUTE entry before the Honorable Elaine E. Bucklo:plaintiff's motion to strike reply 186 is taken under advisement. No appearance will be necessary on 8/27/09.Mailed notice (mpj, ) (Entered: 08/26/2009)
189 MINUTE entry before the Honorable Elaine E. Bucklo:On court's own motion, Status hearing set for 10/16/09 is reset for 11/13/2009 at 10:00 AM.Mailed notice (mpj, ) (Entered: 10/15/2009)
190 MINUTE entry before the Honorable Elaine E. Bucklo:On court's own motion, Status hearing set for 11/13/09 is reset for 12/4/2009 at 09:30 AM.Mailed notice (mpj, ) (Entered: 11/12/2009)
191 MINUTE entry before the Honorable Elaine E. Bucklo: For the reasons discussed in the memorandum opinion and order, motion by Defendant Sheriff of Cook

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11/25/2009 11/30/2009 11/30/2009 12/04/2009
12/04/2009 12/07/2009 12/09/2009
12/09/2009 12/09/2009

County for summary judgment 160 is denied; motion by Defendant Cook County, Illinois for summary judgment 162 is denied; motion by Plaintiff Derrick Phipps for summary judgment 166 is denied; motion by Defendant Sheriff of Cook County to strike Plaintiffs' Undisclosed Expert Submitted in Response to Motion for Summary Judgment 173 is denied; motion by Defendant Sheriff of Cook County to Strike Plaintiffs' Rule 56.1 Statement of Facts 174 is denied; motion by Plaintiff Derrick Phipps to strike Rule 56 statement 178 is denied; and motion by Plaintiff Derrick Phipps to strike reply 186 is denied.MOTION for summary judgment 160 is denied; MOTION for summary judgment 162 is denied; Motion to strike 173 is denied; Motion to strike 178 is denied; Motion to strike 186 is deniedMailed notice (mpj, ) (Entered: 11/25/2009)
192 MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 11/25/2009:Mailed notice(mpj, ) (Entered: 11/25/2009)
193 MOTION by Plaintiff Derrick PhippsMotion to set a date for the submittal of pretrial order and a date for the trial (Morrissey, Thomas) (Entered: 11/30/2009)
194 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for miscellaneous relief 193 before Honorable Elaine E. Bucklo on 12/4/2009 at 09:30 AM. (Morrissey, Thomas) (Entered: 11/30/2009)
195 MINUTE entry before the Honorable Elaine E. Bucklo:Plaintiff's motion to set trial 193 is granted. Status hearing held on 12/4/2009. Jury Trial (3−5 days) set for 4/26/2010 at 09:30 AM. Pretrial order will be due by 3/12/10; and response to any motions in limine by 3/26/09. Pretrial Conference set for 4/7/2010 at 04:00 PM. Defendants' proposed motion to reconsider due by 12/9/09; response by 1/8/10; and any reply by 1/13/10. Target date for ruling by mail set for 1/22/10. This case is referred to Magistrate Judge Cole for settlement conference.Mailed notice (mpj, ) (Entered: 12/04/2009)
196 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Jeffrey Cole for the purpose of holding proceedings related to: settlement conference.(mpj, )Mailed notice. (Entered: 12/04/2009)
197 MINUTE entry before the Honorable Jeffrey Cole:Status hearing is set for 12/9/2009 at 9:15 a.m. to discuss a date for settlement conference. Mailed notice (cdh, ) (Entered: 12/07/2009)
198 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held. Settlement Conference is set for 1/21/2010 at 2:30 p.m. All parties are directed to refer to Judge Cole's "Settlement Conference Procedures", found on "www.ilnd.uscourts.gov" and to comply with its directives before appearing at the settlement conference. Parties with full authority to settle must be present at the conference. As provided in the instructions, plaintiff's counsel shall deliver copies of the required settlement letters to chambers from both plaintiff and defendant by no later than (4) calendar days before the conference. All settlement documents must have protruding tabs separating exhibits or attachments, pursuant to Local Rule 5.2(e). Non−compliance with the 4−day Rule makes it difficult and often impossible for the conference to proceed effectively. Failure to comply with the 4−day Rule may necessitate cancellation of the conference. Parties cannot unilaterally agree to cancel a scheduled settlement conference. Permission not to proceed must be obtained from the court pursuant to written motion, and any party wishing to vary any of the procedures set forth in the standing order must make an appropriate request by written motion prior to the exchange of settlement letters described above. Parties are instructed to have a face−to−face settlement conference prior to the submission of the position papers that are called for by the above order. Mailed notice (cdh, ) (Entered: 12/09/2009)
199 MOTION by Defendant Sheriff of Cook County to amend/correct the November 25, 2009 Court Order (Gallagher, Daniel) (Entered: 12/09/2009)
200 NOTICE by Sheriff of Cook County re MOTION by Defendant Sheriff of Cook County to amend/correct the November 25, 2009 Court Order 199 (Gallagher, Daniel) (Entered: 12/09/2009)

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12/09/2009 12/09/2009 12/11/2009 12/11/2009 12/17/2009
12/18/2009 12/21/2009 12/31/2009 12/31/2009 12/31/2009 12/31/2009 01/11/2010 01/13/2010 01/13/2010 01/13/2010 01/15/2010
01/15/2010

201 MOTION by Defendant Cook County, Illinois to amend/correct the November 25, 2009 Order (Attachments: # 1 Exhibit A)(Sheehan, Jamie) (Entered: 12/09/2009)
202 NOTICE of Motion by Jamie Melissa Sheehan for presentment of motion to amend/correct 201 before Honorable Elaine E. Bucklo on 12/15/2009 at 09:30 AM. (Sheehan, Jamie) (Entered: 12/09/2009)
203 MOTION by Plaintiff Derrick Phipps to reassign case (09 CV 6682) based on relatedness (Flaxman, Kenneth) (Entered: 12/11/2009)
204 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to reassign case 203 before Honorable Elaine E. Bucklo on 12/17/2009 at 09:30 AM. (Flaxman, Kenneth) (Entered: 12/11/2009)
205 MINUTE entry before Honorable Elaine E. Bucklo:Motion hearing held on plaintiffs' motion (203) to reassign on 12/17/2009 and the motion is entered and continued upon representation by plaintiffs' counsel that they would move to file an amended complaint in the case before Judge Lefkow. Then defendants will have until 12/31/09 to file any objection to motion to reassign. Ruling will be made by mail. Mailed notice (mpj, ) (Entered: 12/17/2009)
206 MOTION by Plaintiff Derrick Phipps to supplement motion for reassignment based on relatedness (Flaxman, Kenneth) (Entered: 12/18/2009)
207 MINUTE entry before Honorable Elaine E. Bucklo:Plaintiff's motion to supplement 206 motion for reassignment is granted.Mailed notice (mpj, ) (Entered: 12/21/2009)
208 MEMORANDUM by Sheriff of Cook County in Opposition to motion to reassign case 203 (Gallagher, Daniel) (Entered: 12/31/2009)
209 NOTICE by Sheriff of Cook County re memorandum in opposition to motion 208 (Gallagher, Daniel) (Entered: 12/31/2009)
210 MOTION by Defendant Cook County, Illinois to join in and adopt the sheriff's memorandum objecting to plaintiff's motion to reassign (Attachments: # 1 Exhibit A)(Sheehan, Jamie) (Entered: 12/31/2009)
211 NOTICE by Cook County, Illinois re MOTION by Defendant Cook County, Illinois to join in and adopt the sheriff's memorandum objecting to plaintiff's motion to reassign 210 (Sheehan, Jamie) (Entered: 12/31/2009)
212 REPLY by Derrick Phipps to memorandum in opposition to motion 208 (Flaxman, Kenneth) (Entered: 01/11/2010)
213 REPLY by Defendant Sheriff of Cook County to motion to amend/correct 199 Order of November 25, 2009 (Gallagher, Daniel) (Entered: 01/13/2010)
214 NOTICE by Sheriff of Cook County re reply 213 (Gallagher, Daniel) (Entered: 01/13/2010)
215 MOTION by Plaintiff Derrick Phipps to file instanter (Flaxman, Kenneth) (Entered: 01/13/2010)
216 MINUTE entry before Honorable Elaine E. Bucklo: Plaintiff's motion (203)to reassign the case of David Eldefonso vs Dart, 9 C 6682 to this court as a case related to the present case under Local Rule 40.4 is granted. The present case and Eldefonso certainly involve the same issues of law, the facts overlap, and indeed Eldefonso is a member of the plaintiff class in Phipps. While he does raise a second issue and is seeking injunctive relief, it really makes no sense to have two judges rule on essentially identical legal and nearly identical factual issues. Some additional discovery may need to be done but it does not appear significant. All of the requirements of Local Rule 40.4 (b) are met in this case. The parties are given 60 days to complete whatever additional discovery is needed with regard to the Eldefonso complaint. Motion to join 210 is granted. Motion to file instanter 215 is also granted. Mailed notice (mpj, ) (Entered: 01/15/2010)
217 MOTION by Defendant Cook County, Illinois to continue Defendants' Joint Motion to Continue Settlement Conference (Sheehan, Jamie) (Entered: 01/15/2010)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 17 of 24

01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010
01/19/2010
01/20/2010 01/22/2010
01/22/2010 01/25/2010 01/25/2010 02/12/2010 02/12/2010 02/18/2010

218 NOTICE of Motion by Jamie Melissa Sheehan for presentment of motion to continue 217 before Honorable Elaine E. Bucklo on 1/20/2010 at 08:30 AM. (Sheehan, Jamie) (Entered: 01/15/2010)
219 NOTICE of Motion by Jamie Melissa Sheehan for presentment of motion to continue 217 before Honorable Elaine E. Bucklo on 1/20/2010 at 08:30 AM. (Sheehan, Jamie) (Entered: 01/15/2010)
220 Corrected NOTICE of Motion by Jamie Melissa Sheehan for presentment of motion to continue 217 before Honorable Jeffrey Cole on 1/20/2010 at 08:30 AM. (Sheehan, Jamie) (Entered: 01/15/2010)
221 MEMORANDUM by Derrick Phipps in opposition to motion to reconsider. (ea, ) (Entered: 01/19/2010)
222 MINUTE entry before Honorable Jeffrey Cole: Motion Hearing 217 set for 1/20/2010 at 8:30 a.m. is reset to 1/20/2010 at 9:15 a.m. Mailed notice (cdh, ) (Entered: 01/19/2010)
223 MOTION by Defendant Sheriff of Cook County to join (Gallagher, Daniel) (Entered: 01/19/2010)
224 NOTICE by Sheriff of Cook County re MOTION by Defendant Cook County, Illinois to continue Defendants' Joint Motion to Continue Settlement Conference 217 (Gallagher, Daniel) (Entered: 01/19/2010)
225 MINUTE entry before Honorable Jeffrey Cole:Defendants' Joint Motion to Continue Settlement Conference 217 is granted. No appearance is necessary on 1/20/2010. Status hearing is set for 3/10/2010 at 9:15 a.m. Mailed and telephoned notice. (cdh, ) (Entered: 01/19/2010)
226 MINUTE entry before Honorable Jeffrey Cole:Amended Minute Order of 1/19/2010: Defendants' Joint Motion to Continue Settlement Conference 217 is granted over the plaintiffs objection for the reasons discussed in the phone conversation last week with the parties counsel. No appearance is necessary on 1/20/2010. Status hearing is set for 3/10/2010 at 9:15 a.m. Mailed and telephoned notice. (cdh, ) (Entered: 01/19/2010)
227 MINUTE entry before Honorable Jeffrey Cole:Defendants' Motion to Join in and Adopt Cook County's Motion to Continue Settlement Conference 223 is granted. Mailed notice (cdh, ) (Entered: 01/20/2010)
228 MOTION by Defendant Sheriff of Cook County for leave to file Cook County Sheriff's Reply in Support of Motion to Alter or Amend the Court's November 25, 2009 Order Instanter (Attachments: # 1 Exhibit A)(Gallagher, Daniel) (Entered: 01/22/2010)
229 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for leave to file 228 before Honorable Elaine E. Bucklo on 2/25/2010 at 09:30 AM. (Gallagher, Daniel) (Entered: 01/22/2010)
230 MOTION by counsel for Defendant Sheriff of Cook County to withdraw as attorney (McClellan, Mary) (Entered: 01/25/2010)
231 NOTICE of Motion by Mary Elizabeth McClellan for presentment of motion to withdraw as attorney 230 before Honorable Elaine E. Bucklo on 2/25/2010 at 09:30 AM. (McClellan, Mary) (Entered: 01/25/2010)
232 MOTION by Plaintiff Derrick Phipps to compel compliance with order of January 15, 2010 (Flaxman, Kenneth) (Entered: 02/12/2010)
233 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to compel 232 before Honorable Jeffrey Cole on 2/18/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 02/12/2010)
236 MINUTE entry before Honorable Jeffrey Cole:Motion hearing held. Plaintiffs' Motion to Compel Compliance with Order of January 15, 2010 232 is granted subject to the qualifications discussed in court today and the specific qualification that matters relating to paragraph 8 of the 30(b)(6) motion, which is attached as an

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02/19/2010 02/19/2010 02/24/2010 02/24/2010 03/05/2010
03/11/2010
03/15/2010 03/16/2010 03/16/2010 03/16/2010

exhibit to the motion to compel, are denied without prejudice. Mr. Morrissey and Mr. Flaxman have represented today that they will not substitute Mr. Eldefonso for Mr. Phipps as the class representative in the Phipps litigation. Discovery is closed in the Phipps case. The discovery allowed today, although useable by agreement of the parties in the Phipps case − if that evidence is relevant and otherwise admissible − is being taken in the Eldefonso case. The Sheriff is given leave to depose Mr. Eldefonso, who is currently in custody at the Cook County Jail. Settlement conference is set for 3/5/2010 at 12:00 noon. All parties are directed to refer to my "Instructions and Procedures for Settlement Conferences," available at "www.ilnd.uscourts.gov" and to comply with its directives before appearing at the settlement conference. Parties with full authority to settle must be personally present at the conference. Participation by telephone will not be permitted as explained in my Instructions and Procedures of Settlement Conferences. As provided in the instructions, plaintiff's counsel shall deliver copies of the required settlement letters to chamber from both plaintiff and defendant by no later than (4)calendar days before the conference. All settlement documents must have protruding tabs separating exhibits or attachments, pursuant to Local Rule 5.2(e). Non−compliance with the 4−day Rule makes it difficult and often impossible for the conference to proceed effectively. Failure to comply with the 4−day Rule may necessitate cancellation of the conference. Parties cannot unilaterally agree to cancel and scheduled settlement conference. Permission not to proceed must be obtained from the court pursuant to written motion, and any party wishing to vary any of the procedures set forth in the standing order must make an appropriate request by written motion prior to the exchange of settlement letters described above. Mailed notice (ea, ) (Entered: 02/24/2010)
234 MINUTE entry before Honorable Elaine E. Bucklo: Defendants motions for reconsideration (199 and 201) are denied.Motion for leave to file 228 is granted.Mailed notice (mpj, ) (Entered: 02/19/2010)
235 MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 2/19/2010:Mailed notice(mpj, ) (Entered: 02/19/2010)
237 MINUTE entry before Honorable Elaine E. Bucklo:Motion to withdraw by Mary E. McClellan as attorney 230 is granted.Mailed notice (mpj, ) (Entered: 02/24/2010)
238 MINUTE entry before Honorable Elaine E. Bucklo: Motion to withdraw appearance by Mary E. McClellan on behalf of Sheriff of Cook county is granted. Mailed notice (ea, ) (Entered: 02/25/2010)
239 MINUTE entry before Honorable Jeffrey Cole:Settlement conference held. Settlement is not feasible. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Mailed notice (cdh, ) (Entered: 03/05/2010)
240 MINUTE entry before Honorable Elaine E. Bucklo:At parties' joint request, pretrial order will be due by 3/19/10; and response to any motions in limine by 4/2/10. Final Pretrial Conference set for 4/7/10 is reset for 4/13/2010 at 10:30 AM.Mailed notice (mpj, ) (Entered: 03/11/2010)
241 ATTORNEY Appearance for Defendant Cook County, Illinois by Mary Elizabeth McClellan (McClellan, Mary) (Entered: 03/15/2010)
242 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County to bar Plaintiffs' March 14, 2010 Fed. R. Civ. P. 26 Disclosures (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 03/16/2010)
243 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to bar 242 before Honorable Jeffrey Cole on 3/17/2010 at 08:00 AM. (Gallagher, Daniel) (Entered: 03/16/2010)
244 MINUTE entry before Honorable Jeffrey Cole:Motion hearing set for 3/17/2010 at 8:00 a.m. is reset to 3/17/2010 at 9:15 a.m. 242 . Mailed notice (cdh, ) (Entered: 03/16/2010)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 19 of 24

03/16/2010
03/16/2010 03/16/2010 03/16/2010 03/17/2010 03/17/2010
03/19/2010 03/19/2010 03/19/2010 03/19/2010 03/19/2010 03/19/2010 03/19/2010 03/19/2010 03/19/2010

245 MINUTE entry before Honorable Jeffrey Cole:The defendants have filed a motion to bar certain witnesses. The parties should be prepared to address the concepts discussed in Finwall v. City of Chicago, 239 F.R.D. 494 (N.D.Ill. 2006) and their relationship to the issues raised in the motion. Mailed notice (cdh, ) (Entered: 03/16/2010)
246 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Jeffrey Cole for the purpose of holding proceedings related to: Defendants' motion (242) to bar plaintiffs' March 14, 2010 disclosures.(mpj, )Mailed notice. (Entered: 03/16/2010)
247 MOTION by Defendants Cook County, Illinois, Sheriff of Cook CountyDecertification of Class (McClellan, Mary) (Entered: 03/16/2010)
248 EMERGENCY NOTICE of Motion by Mary Elizabeth McClellan for presentment of motion for miscellaneous relief 247 before Honorable Elaine E. Bucklo on 3/18/2010 at 09:30 AM. (McClellan, Mary) (Entered: 03/16/2010)
249 MINUTE entry before Honorable Elaine E. Bucklo:Defendants' motion to decertify class 247 is entered and continued. At parties' request, set deadlines/hearing as to motion to decertify (247] : Responses due by 3/24/2010. Replies due by 3/31/2010. Ruling set for 4/9/2010 at 09:30 AM. Mailed notice (mpj, ) (Entered: 03/17/2010)
250 MINUTE entry before Honorable Jeffrey Cole:Motion hearing held. Response to Defendants', Cook County, Illinois and Sheriff of Cook County, to bar Plaintiffs' March 14, 2010 Fed. R. Civ. P. 26 Disclosures 242 shall be due 3/24/2010; Reply shall be due 3/29/2010; Status hearing on the motion is set for 4/1/2010 at 8:00 a.m. There was an extensive discussion about the motion and the circumstances surrounding the untimely disclosures. I suggested to Mr. Flaxman that his response brief should develop fully the facts that justify the late disclosures and that, where appropriate, as in the case with Mr. Andersen, his response brief should contain appropriate and comprehensive affidavits or declarations explaining the circumstances discussed in court today. It has been agreed that there will be no arguments raised under Rule 901, Federal Rules of Evidence, to the photographs taken by Mr. Anderson. The photographs are to be turned over immediately to the defendants. The parties dispute whether the Phipps case is to be tried separately or consolidated with another case in which Mr. Flaxman and Mr. Morrissey are counsel. Mr. Morrissey observed that perhaps "mature reflection" may make unnecessary the calling of the four possible witnesses discussed in court today and that if that occurred, he would promptly notify the court and counsel. In that even, the motion to bar would be moot. Mailed notice(ea, ) (Entered: 03/19/2010)
251 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 1 (Gallagher, Daniel) (Entered: 03/19/2010)
252 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 2 (Gallagher, Daniel) (Entered: 03/19/2010)
253 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 3 (Gallagher, Daniel) (Entered: 03/19/2010)
254 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 4 (Gallagher, Daniel) (Entered: 03/19/2010)
255 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 5 (Gallagher, Daniel) (Entered: 03/19/2010)
256 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 6 (Gallagher, Daniel) (Entered: 03/19/2010)
257 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 7 (Gallagher, Daniel) (Entered: 03/19/2010)
258 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 8 (Gallagher, Daniel) (Entered: 03/19/2010)
259 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 9 (Gallagher, Daniel) (Entered: 03/19/2010)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 20 of 24

03/19/2010 03/19/2010 03/19/2010
03/19/2010 03/19/2010 03/19/2010 03/22/2010 03/22/2010 03/23/2010 03/23/2010 03/24/2010 03/24/2010 03/24/2010 03/25/2010
03/26/2010

260 MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 10 (Gallagher, Daniel) (Entered: 03/19/2010)
261 motion for clarification by Cook County, Illinois, Sheriff of Cook County (Sheehan, Jamie) (Entered: 03/19/2010)
262 NOTICE by Cook County, Illinois, Sheriff of Cook County re MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 7 257 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 5 255 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 4 254 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 3 253 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 9 259 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 8 258 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 10 260 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 6 256 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 2 252 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 1 251 (Gallagher, Daniel) (Entered: 03/19/2010)
263 clarification NOTICE of Motion by Jamie Melissa Sheehan for presentment of before Honorable Elaine E. Bucklo on 3/24/2010 at 09:30 AM. (Sheehan, Jamie) (Entered: 03/19/2010)
264 PROPOSED Pretrial Order (Flaxman, Kenneth) (Entered: 03/19/2010)
265 MOTION by Plaintiff Derrick Phippsin limine (Flaxman, Kenneth) (Entered: 03/19/2010)
266 Motion for clarification by Cook County, Illinois, Sheriff of Cook County (Sheehan, Jamie) (Entered: 03/22/2010)
267 RE NOTICE of Motion by Jamie Melissa Sheehan for presentment of before Honorable Elaine E. Bucklo on 3/24/2010 at 09:30 AM. (Sheehan, Jamie) (Entered: 03/22/2010)
268 Re−Notice for Defendant motion for Clarification by Cook County, Illinois, Sheriff of Cook County (Sheehan, Jamie) (Entered: 03/23/2010)
269 RE NOTICE of Motion by Jamie Melissa Sheehan for presentment of before Honorable Elaine E. Bucklo on 3/24/2010 at 09:30 AM. (Sheehan, Jamie) (Entered: 03/23/2010)
270 MINUTE entry before Honorable Elaine E. Bucklo:Defendants' motion for clarification heard on 3/24/2010 and the motion is entered and continued. Status hearing set for 3/26/2010 at 10:00 AM.Mailed notice (mpj, ) (Entered: 03/24/2010)
271 RESPONSE by Derrick Phippsin Opposition to MOTION by Defendants Cook County, Illinois, Sheriff of Cook County to bar Plaintiffs' March 14, 2010 Fed. R. Civ. P. 26 Disclosures 242 (Flaxman, Kenneth) (Entered: 03/24/2010)
272 MEMORANDUM by Derrick Phipps in Opposition to motion for miscellaneous relief 247 (Flaxman, Kenneth) (Entered: 03/24/2010)
273 MINUTE entry before Honorable Jeffrey Cole:There is presently pending a motion to bar certain disclosures by the plaintiff 242 . On 3/17/10, I entered a minute order relating to the motion and set a briefing schedule. 250 , However, it now appears that considerations of judicial efficiency counsel against my deciding the motion since it may in part depend upon Judge Bucklo's consideration of consolidation of this case with another pending on her docket. After discussing the matter with Judge Bucklo, it has been decided that judicial efficiency is best served by having her decide the pending motion. Accordingly, the referral is closed and the matter returned to the assigned judge. Mailed notice (cdh, ) (Entered: 03/25/2010)
274 MINUTE entry before Honorable Elaine E. Bucklo:Status hearing held on 3/26/2010. Status hearing set for 4/7/2010 at 10:00 AM.Mailed notice (mpj, ) (Entered: 03/26/2010)

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 21 of 24

03/26/2010 03/26/2010 03/26/2010
03/29/2010 03/29/2010 03/31/2010 03/31/2010 04/07/2010 04/08/2010 04/09/2010 04/12/2010 04/12/2010 04/14/2010 04/15/2010 04/27/2010

275 RESPONSE by Cook County, Illinois, Sheriff of Cook Countyin Opposition to MOTION by Plaintiff Derrick Phippsin limine 265 (Gallagher, Daniel) (Entered: 03/26/2010)
276 NOTICE by Sheriff of Cook County re response in opposition to motion 275 − Defendants' Responses to Plaintiffs' Motions in Limine. (Gallagher, Daniel) (Entered: 03/26/2010)
277 RESPONSE by Derrick Phipps to MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 7 257 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 5 255 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 4 254 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 3 253 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 9 259 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 8 258 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 10 260 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 6 256 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 2 252 , MOTION by Defendants Cook County, Illinois, Sheriff of Cook Countyin limine No. 1 251 (Flaxman, Kenneth) (Entered: 03/26/2010)
278 REPLY by Cook County, Illinois, Sheriff of Cook County to response in opposition to motion 271 − Defendants' Reply in Support of their Motion to Bar Plaintiffs' March 14, 2010 Fed. R. Civ. P. 26 Disclosures (Gallagher, Daniel) (Entered: 03/29/2010)
279 NOTICE by Sheriff of Cook County re reply to response to motion 278 − Defendants' Reply in Support of their Motion to Bar Plaintiffs' March 14, 2010 Fed. R. Civ. P. 26 Disclosures (Gallagher, Daniel) (Entered: 03/29/2010)
280 REPLY by Cook County, Illinois, Sheriff of Cook County to memorandum in opposition to motion 272 to Decertification (McClellan, Mary) (Entered: 03/31/2010)
281 NOTICE by Cook County, Illinois, Sheriff of Cook County re reply to response to motion 280 in opposition to decertification (McClellan, Mary) (Entered: 03/31/2010)
282 MINUTE entry before Honorable Elaine E. Bucklo:Status hearing held on 4/7/2010. Status hearing set for 4/8/2010 at 10:00 AM.Mailed notice (mpj, ) (Entered: 04/07/2010)
283 MINUTE entry before Honorable Elaine E. Bucklo:Status hearing held on 4/8/2010 and concluded.Mailed notice (mpj, ) (Entered: 04/08/2010)
284 MINUTE entry before Honorable Elaine E. Bucklo:Status hearing held on 4/9/2010. Trial set for 4/26/10 and pretrial conference set for 4/13/10 are now vacated. Ruling on the pending motions will be made by mail. Status hearing set for 4/30/2010 at 09:30 AM.Mailed notice (mpj, ) (Entered: 04/09/2010)
285 MOTION by Plaintiff Derrick PhippsTo hold evidentiary hearing on issue of receipt of federal funds (Flaxman, Kenneth) (Entered: 04/12/2010)
286 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 285 before Honorable Elaine E. Bucklo on 4/15/2010 at 09:30 AM. (Flaxman, Kenneth) (Entered: 04/12/2010)
287 ATTORNEY Appearance for Defendant Cook County, Illinois by Michael David Jacobs (Jacobs, Michael) (Entered: 04/14/2010)
288 MINUTE entry before Honorable Elaine E. Bucklo:Plaintiffs' motion 285 for evidentiary hearing heard on 4/15/10 and the motion is entered and continued. Parties to file their statements on class, as discussed in court, before next status set for 4/30/10. Mailed notice (mpj, ) (Entered: 04/15/2010)
289 MINUTE entry before Honorable Elaine E. Bucklo:On court's motion, Status hearing reset for 4/30/2010 at 01:30 PM.Mailed notice (mpj, ) (Entered: 04/27/2010)

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04/29/2010 04/29/2010 04/29/2010 04/29/2010 04/29/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010
05/18/2010 05/18/2010
05/25/2010
05/26/2010

290 MEMORANDUM by Derrick Phipps [in response to questions posed by Court] (Flaxman, Kenneth) (Entered: 04/29/2010)
291 Defendants' Position Paper by Cook County, Illinois, Sheriff of Cook County (Gallagher, Daniel) (Entered: 04/29/2010)
292 NOTICE by Cook County, Illinois, Sheriff of Cook County re other 291 (Gallagher, Daniel) (Entered: 04/29/2010)
293 Position Paper by Cook County on ADA and Rehabilitation Act by Cook County, Illinois (McClellan, Mary) (Entered: 04/29/2010)
294 NOTICE by Cook County, Illinois re other 293 Position Paper (McClellan, Mary) (Entered: 04/29/2010)
295 Defendant Sheriff of Cook County's Amended Position Paper by Sheriff of Cook County (Gallagher, Daniel) (Entered: 04/30/2010)
296 NOTICE by Sheriff of Cook County re other 295 (Gallagher, Daniel) (Entered: 04/30/2010)
297 MOTION by Plaintiff Derrick Phipps for reconsideration regarding memorandum opinion and order 192 on plaintiffs' (Flaxman, Kenneth) (Entered: 04/30/2010)
298 AMENDED DEFENDANT COOK COUNTY POSITION PAPER (McClellan, Mary) (Entered: 04/30/2010)
299 NOTICE by Cook County, Illinois Amended Position Paper (McClellan, Mary) (Entered: 04/30/2010)
300 MINUTE entry before Honorable Elaine E. Bucklo:Status hearing held on 4/30/2010. Status hearing set for 6/8/2010 at 09:30 AM.Mailed notice (mpj, ) (Entered: 04/30/2010)
301 MOTION by Plaintiff Derrick Phipps TO AUTHORIZE SUPPLEMENTAL CLASS NOTICE (Flaxman, Kenneth) (Entered: 05/18/2010)
302 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 301 before Honorable Elaine E. Bucklo on 5/25/2010 at 09:30 AM. (Flaxman, Kenneth) (Entered: 05/18/2010)
303 MINUTE entry before Honorable Elaine E. Bucklo:Plaintiff's motion 301 to authorize supplemental class notice heard on 5/25/10 and the motion is granted as discussed in court. Mailed notice (mpj, ) (Entered: 05/25/2010)
304 TRANSCRIPT OF PROCEEDINGS held on 04/09/10 before the Honorable Elaine E. Bucklo. Court Reporter Contact Information: Michael P Snyder (312) 435−5563 michael_snyder@ilnd.uscourts. gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

05/26/2010

Redaction Request due 6/16/2010. Redacted Transcript Deadline set for 6/28/2010. Release of Transcript Restriction set for 8/24/2010. (Snyder, Michael) (Entered: 05/26/2010)
305 TRANSCRIPT OF PROCEEDINGS held on 04/15/10 before the Honorable Elaine E. Bucklo. Court Reporter Contact Information: Michael P Snyder (312) 435−5563 michael_snyder@ilnd.uscourts. gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy

Case: 1:07-cv-3889 As of: 07/27/2011 09:35 PM CDT 23 of 24

06/03/2010 06/07/2010 06/07/2010 06/09/2010
06/09/2010
06/14/2010
06/17/2010 06/23/2010 06/24/2010 06/24/2010 06/24/2010
08/16/2010

Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 6/16/2010. Redacted Transcript Deadline set for 6/28/2010. Release of Transcript Restriction set for 8/24/2010. (Snyder, Michael) (Entered: 05/26/2010)
306 MINUTE entry before Honorable Elaine E. Bucklo:On court's own motion, Status hearing reset for 6/8/2010 at 09:00 AM.Mailed notice (mpj, ) (Entered: 06/03/2010)
307 MINUTE entry before Honorable Elaine E. Bucklo:On court's won motion, Status hearing set for 6/8/10 is reset for 6/9/2010 at 09:30 AM.Mailed notice (mpj, ) (Entered: 06/07/2010)
308 MEMORANDUM by Derrick Phipps in support of motion for miscellaneous relief 285 (Flaxman, Kenneth) (Entered: 06/07/2010)
309 MINUTE entry before Honorable Elaine E. Bucklo:Status hearing held on 6/9/2010. Defendants' response to plaintiffs' brief regarding the receipt of federal funds will be due by 6/24/10. Ruling set for for 6/24/2010 at 10:00 AM.Mailed notice (mpj, ) (Entered: 06/09/2010)
310 MINUTE entry before Honorable Elaine E. Bucklo:The order entered today is amended with respect to the deadline for defendants' response to plaintiff's brief on receipt of federal funds as follows: Response will be due by 6/14 and any reply by 6/16/10. Mailed notice (mpj, ) (Entered: 06/09/2010)
311 MINUTE entry before Honorable Elaine E. Bucklo:At parties' request, briefing set on the receipt of federal funds is vacated. Parties having represented to the court that they have reached a settlement, ruling set for 6/24/10 is vacated and status hearing set for 6/17/2010 at 10:00 AM.Mailed notice (mpj, ) (Entered: 06/14/2010)
312 MINUTE entry before Honorable Elaine E. Bucklo:Status hearing held on 6/17/2010 and concluded.Mailed notice (mpj, ) (Entered: 06/17/2010)
313 MINUTE entry before Honorable Elaine E. Bucklo: Status hearing set for 6/24/2010 at 10:00 AM.Mailed notice (mpj, ) (Entered: 06/23/2010)
314 MOTION by Plaintiff Derrick Phipps to approve consent judgment [preliminary approval of class action settlement] (Flaxman, Kenneth) (Entered: 06/24/2010)
315 MOTION by Plaintiff Derrick Phipps to approve consent judgment [corrected] (Flaxman, Kenneth) (Entered: 06/24/2010)
316 MINUTE entry before Honorable Elaine E. Bucklo:Plaintiffs' motion to approve consent judgment 314 is denied as moot. Plaintiffs' motion for preliminary approval of Class Action Settlement Agreement 315 heard on 6/24/10 and the motion is granted. Status hearing held. Notices of the proposed settlement to be mailed out within 23 days of this order. Opt out request to be received by 9/1/10. Fairness hearing set for 9/17/2010 at 01:30 PM.Mailed notice (mpj, ) (Entered: 06/25/2010)
317 TRANSCRIPT OF PROCEEDINGS held on 05/25/10 before the Honorable Elaine E. Bucklo. Court Reporter Contact Information: Michael P Snyder michael_snyder@ilnd.uscourts.gov (312) 435−5563.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 9/7/2010. Redacted Transcript Deadline set for 9/16/2010. Release of Transcript Restriction set for 11/15/2010. (Snyder, Michael) (Entered: 08/16/2010)

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09/15/2010 09/16/2010 09/16/2010 09/17/2010
09/17/2010 12/02/2010 06/14/2011

318 MEMORANDUM IN SUPPORT OF APPROVAL OF PROPOSED SETTLEMENT (Flaxman, Kenneth) (Entered: 09/15/2010)
319 AMENDED memorandum in support of motion 318 Exhibit 1 Class Settlement Agreement (McClellan, Mary) (Entered: 09/16/2010)
320 NOTICE by Cook County, Illinois, Derrick Phipps re amended document 319 Agreed (McClellan, Mary) (Entered: 09/16/2010)
321 MINUTE entry before Honorable Elaine E. Bucklo:Fairness hearing held on 9/17/2010. IT IS ORDERED that the proposed settlement be, and the same hereby is, approved. Any pending motion in this case is terminated as moot. See Order for details.Civil case terminated. Mailed notice (mpj, ) (Entered: 09/17/2010)
322 ORDER Signed by the Honorable Elaine E. Bucklo on 9/17/2010:Mailed notice(mpj, ) (Entered: 09/17/2010)
323 PETITION for review by Rodney McKinney. (Exhibits) (ea, ) (Entered: 12/06/2010)
324 MOTION to intervene in class action by Peter Poole III; Notice. (ea, ) (Entered: 06/16/2011)

 
 681 F.Supp.2d 899 (2009)
Derrick PHIPPS, et al., Plaintiffs, v.
SHERIFF OF COOK COUNTY, and Cook County, Illinois, Defendants.
No. 07 C 3889.
United States District Court, N.D. Illinois, Eastern Division.
November 25, 2009. Opinion Denying Reconsideration February 19, 2010.
904 *904 Thomas Gerard Morrissey, Thomas G. Morrissey, Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Chicago, IL, Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, for Plaintiffs.
Daniel Francis Gallagher, Dominick L. Lanzito, Lawrence S. Kowalczyk, Mary Elizabeth McClellan, Paul A. O'Grady, Querrey & Harrow, Ltd., Chicago, IL, for Sheriff of Cook County.
Jamie Melissa Sheehan, Cook County State's Attorney, Chicago, IL, for Cook County, Illinois.
MEMORANDUM OPINION AND ORDER
ELAINE E. BUCKLO, 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).[1] 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.
I.
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 CCDC0907the Residential Treatment Unit ("RTU") or Cermak Health Services ("Cermak").[2] 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.
II.
A. Legal Standard
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, 106 S.Ct. 905 2548, 91 L.Ed.2d 265 (1986). A genuine issue for *905 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548 (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, 106 S.Ct. 2505.
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 wheelchairbound 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.[3]
906 *906 As can be seen, the parties' arguments center around three basic statutes 0907the 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.
III. The PLRA
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, 127 S.Ct. 910, 166 L.Ed.2d 798 (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, 127 S.Ct. 910. 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, 127 S.Ct. 910. 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).[4]
907 *907 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 0907long before the suit was filed0907complaining 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 908 *908 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).[5] 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.
B. Physical Injury
The defendants' second argument under the PLRA claims that the plaintiffs' suit is precluded because they have 909 not alleged *909 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 0907 think that "prisoner" refers to the plaintiff's status at the time of the injury rather than at the time the litigation begins0907the 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 0907namely, 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 910 mention emotional or psychological *910 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 contradicts any suggestion that the suit does not seek to recover for physical injuries. On the contrary, the complaint alleges that each of the named plaintiffs suffered physical injury.
In any event, even if the Sheriff's argument on this point were correct, it would show at most only that the class definition was inadequate. If that were true, it would be necessary only to alter the class definition; see, e.g., Gates v. Towery, 456 F.Supp.2d 953, 966 (N.D.Ill.2006) ("[A]fter certifying a class, the Court retains broad power to modify the definition of the class if it believes that the class definition is inadequate."); it would not constitute grounds for awarding summary judgment in the defendants' favor.
Finally, the Sheriff contends that the plaintiffs fail to meet the PLRA's physical injury requirement because any physical injuries asserted by the plaintiffs are purely de minimis. According to the Sheriff, virtually all wheelchairbound individuals suffer from bed sores and infections. He therefore insists that the plaintiffs would have sustained the injuries they complain of regardless of whether they were incarcerated. As a result, he argues, the plaintiffs cannot seek to recover for such injuries here.
In support of this claim, the Sheriff relies on the testimony of Colette Connolly, a clinical nurse specialist at Cermak, who stated that "99% of the people come to me with bed sores. So they have already have had them before they already come into the facility." Defs.' 56.1(a) Stmt. ¶ 32. The defendants also cite Connolly's testimony that Cermak would not accept detainees who were unable to transfer into and out of their wheelchairs. Defs.' 56.1(a) Stmt. ¶ 33. Connolly further testified that she monitored all inmates to ensure that they were able to perform the necessary maneuvers. Defs.' 56.1(a) Stmt. ¶¶ 31, 33. In other words, since everyone admitted to

Cermak has been found capable of adroitly operating his wheelchair, the defendants argue that the plaintiffs could not have sustained physical injuries from falling while incarcerated by the Prison.
I am not persuaded. First, even if the plaintiffs had bed sores and rashes prior to entering the CCDC, it does not follow that the defendants bear no fault for sores and rashes that developed after the plaintiffs' incarceration. Conditions in the CCDC may have aggravated the plaintiffs' conditions, making them much worse than ordinary, or reopening sores that otherwise would have healed. Phipps and Courtney make precisely this claim, arguing that their bed sores were worsened by their inability to shower and maintain proper hygiene. See Am. Compl. ¶¶ 6, 13. The plaintiffs may also have developed a greater number of sores and other ailments than would have been the case if they had not been incarcerated. Further, Connolly's testimony does not provide a sufficient basis for the Sheriff's claims. For one thing, the plaintiffs dispute her claim that detainees entering the Cermak facility are tested for their ability to transfer from their chairs to beds, toilets, and the like. See Pls.' L.R. 56.1(b) Stmt. ¶ 33. Moreover, Connolly's testimony addresses only the Cermak facility and thus provides no basis for summary judgment insofar as the plaintiffs' claims are based on conditions existing in the RTU.
911 Nor, finally, do the cases cited by the defendants support their argument. Specifically, *911 the Sheriff cites cases in which dizziness, headaches, insomnia, "stomach anxiety," and aggravated hypertension were found to be de minimis. However, these injuries are qualitatively different from the types of injury claimed by the plaintiffs here0907bed sores, rashes, and injuries caused by falling from chairs and toilets. Moreover, the extent of any particular injury is almost inherently a fact-specific matter. Some bed sores are more obviously severe than others. Thus, even if bed sores had been declared de minimis in other cases, it would not follow that the bed sores alleged by the plaintiffs here were de minimis.[6] In short, the plaintiffs' suit is not foreclosed by the PLRA's physical injury requirement.
C. Summary
For the reasons discussed above, the defendants are not entitled to summary judgment on the basis of the PLRA. The defendants have forfeited any appeal to the PLRA's exhaustion-of-remedies requirement. Even on the merits, however, the remedy-exhaustion argument fails. Since Phipps and House were not incarcerated at the time the suit was filed, the requirement does not apply to them. Nor, to the extent that it is necessary for other class members to satisfy the requirement, have the defendants shown that the remaining plaintiffs have failed to do so. In particular, the defendants failed to address the question of whether the requirement might have been met by means of vicarious exhaustion.
The defendants' reliance on the PLRA's physical injury requirement is similarly unavailing, both because the requirement is clearly inapplicable to Phipps and other plaintiffs who were not incarcerated when the suit was filed, and also because, in any event, the plaintiffs allege that they have suffered physical injuries.
IV. The Rehabilitation Act
I turn now to the defendants' arguments concerning the plaintiffs' Rehabilitation Act claim. The RA provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Accordingly, in order to make out a prima facie case under the RA, a plaintiff must show: "(1) that he is a `handicapped individual' under the Act, (2) that he is `otherwise qualified' for the [benefit] sought, (3) that he was [discriminated against] solely by reason of his handicap, and (4) that the program or activity in question receives federal financial assistance." Grzan v. Charter Hosp. of Nw. Indiana, 104 F.3d 116, 119 (7th Cir.1997) (alterations omitted).
With the exception of factor (4) singled out above0907i.e., the federal-funding requirement 0907the elements of an RA claim are identical to those of an ADA claim. See, e.g., Jackson v. City of Chicago, 414 F.3d 806, 811 n. 2 (7th Cir.2005). For this reason, the parties' discussion of the RA turns entirely on whether the defendants meet the federal-funding requirement. The remaining elements of the RA claim are discussed in conjunction with the plaintiffs' ADA claim. Both the Sheriff and the County assert that they do not receive federal funds. As a result,

912 both argue that *912 they are not subject to the requirements of the RA, and that the plaintiffs' claim under the RA fails. I disagree.
The County begins by arguing that, for purposes of the RA, it is not enough to show that the County receives federal funds; rather, the County contends that, in order to trigger liability under the RA, the federal funds must be received by the specific entity or department within the County that engaged in the alleged discrimination. County's Br. at 6. The County therefore goes on to assert that the CCDC does not receive federal funds, and that the RA's requirements accordingly do not apply here.
This argument is not supported by the record. The defendants' Local Rule 56.1 Statement asserts: "The [CCDC] does not receive federal funds or federal financial assistance for programs or services under ADA for the Cook County Department of Corrections or any federal funds for the making of programs and services accessible to those qualified under the ADA." Defs.' L.R. 56.1(a) Stmt. ¶ 4. But the question is not whether the CCDC receives federal funds "for programs under the ADA" or for making programs and services "accessible to those qualified under the ADA." Rather, for purposes of the RA, the question is whether the program or activity in question receives federal financial assistance, full stop. See 29 U.S.C. 794(a) ("No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.") (emphasis added). Thus, even assuming the truth of the statements on which the County relies, the County still would not have shown that it is free from the RA's requirements. The County must point to evidence that the CCDC receives no federal funds of any sort.
The Sheriff similarly argues that he is not subject to the RA's requirements on the ground that he receives no federal funds. This argument founders at the very outset because the defendants cite no evidence in support of this claim. While the defendants' Local Rule 56.1 Statement mentions the CCDC 0907and even specifically mentions the Cermak facility[7]0907it is silent on the question whether the Sheriff's Office receives federal funds.
Even on its face, however, the Sheriff's claim is unpersuasive. For example, in his brief, the Sheriff argues that the RA does not apply to him because the "Sheriff does not receive federal financial assistance for programs and services under the ADA." Sheriff's Resp. at 3. As with the CCDC, however, the fact that the Sheriff's Office does not receive federal funds "for programs and services under the ADA" is irrelevant: for purposes of the RA, it is not necessary that the federal funding be connected in any way with the ADA, or indeed with any other particular federal statute.
In the defendants' joint reply brief, the Sheriff makes a slightly different argument, contending that the RA applies only to "organizations" and "entities," and arguing that the RA does not apply to him because he is neither an 913 organization nor an entity, but instead an "independently elected officer." Defs.' Reply at 11. This *913 argument borders on sophistry. By its plain language, the RA applies to "programs or activities" that receive federal financial assistance, not "organizations" or "entities." Moreover, the statute goes on to define "program or activity" as "any department, agency, special purpose district, or other instrumentality of a State or of a local government." 29 U.S.C. § 794(b)(1)(A). Under any natural reading, the Sheriff's Office incontrovertibly falls under this definition.
The defendants further claim that "the office of the sheriff has no authority to levy taxes or establish a budget and thus has no funds with which to finance its expenses. Instead, the office of the sheriff is financed by public funds appropriated to it by the county board." Reply Br. at 7. But this argument is a non sequitur: the fact that the Sheriff's Office has no ability to raise its own funds obviously does not show that the Sheriff's Office receives no federal funds. It is entirely possible, for example, that a portion of the public funds appropriated by the County Board for the Sheriff's Office might originate with the federal government. In any event, the plaintiffs have submitted evidence indicating that the Cook County Sheriff's Office has received federal funds since at least 2003.[8] Thus, like the County, the Sheriff has failed to show that he does not receive federal funds. He therefore cannot claim that he is beyond the reach of the RA's requirements.

In sum, the defendants have failed to show that they are not recipients of federal funds. Accordingly, I deny their motions for summary judgment on the plaintiffs' RA claim insofar as the motions rest on their claim that they do not meet the RA's federal funding requirement.
V. The ADA
A. The ADA Title II Framework
Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir. 2006) (citing 42 U.S.C. § 12101(b)(1), (b)(4)). The Act "forbids discrimination against persons with disabilities in three major areas of public life: (1) employment, which is covered by Title I of the statute; (2) public services, programs and activities, which are the subjects of Title II; and (3) public and private lodging, which is covered by Title III." Id. (citations omitted). It is now well-settled that prisons and correctional facilities are covered by Title II. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 213, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (holding that the "plain text of Title II of the ADA unambiguously extends to state prison inmates").
In order to prove a violation of Title II, the plaintiff must show: "[1] that he is a `qualified individual with a disability,' [2] that he was denied `the benefits of the services, programs, or activities of a public entity' or otherwise subjected to discrimination by such an entity, and [3] that the denial or discrimination was `by reason of his disability." Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir.1996) (quoting 42 U.S.C. § 12132). Moreover, 914 Title II's implementing regulations provide that "[a] public entity shall *914 make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity." 28 C.F.R. § 35.130(b)(7).
Both the plaintiffs and the defendants seek summary judgment on the plaintiffs' ADA claims. The defendants argue, first, that the plaintiffs have failed to state a claim under the ADA as a matter of law because: (1) while their suit is premised on Title II of the ADA, the plaintiffs' claim is cognizable only under Title III; (2) showering, toileting, lavatory use, and other activities at issue in the case do not qualify as "programs" or "services" subject to ADA requirements; and (3) the plaintiffs fail to allege that they were subjected to intentional discrimination, which is necessary in order to recover compensatory damages under Title II. In addition to these arguments, the defendants contend that even if the plaintiffs were to succeed in stating a claim under the ADA, the suit would ultimately fail because the accommodations that the plaintiffs request are unreasonable. On top of all of this, the defendants have filed two motions to strike certain of the plaintiffs' filings.
For their part, the plaintiffs (in addition to attempting to rebut the defendants' arguments) contend that they seek only reasonable modifications of the showers, toilets, and sinks, and that in failing to make the modifications, the defendants violated the ADA.
I conclude that neither party is entitled to summary judgment on the plaintiffs' ADA claim: the defendants fail to show that they are entitled to summary judgment as a matter of law; and the central question concerning the reasonableness of making the plaintiffs' requested accommodations is much too fact-sensitive to be resolved on the basis of any of the parties' arguments. These issues are examined below, beginning with the defendants' motion to strike.
B. Motions to Strike
As noted above, the defendants have filed two motions to strike. The first of these seeks to strike the plaintiffs' Rule 56.1 Statement of Material Facts. The second motion seeks to strike the report of Ken Schoonover ("Schoonover"), the plaintiffs' expert witness. Both motions are denied.

In their motion to strike the plaintiffs' Rule 56.1 Statement, the defendants argue that the plaintiffs have violated Local Rule 56.1 in several ways: by combining several factual statements in a single paragraph; by asserting legal conclusions instead of factual claims; and by failing to support certain of their assertions with citations to the record. See N.D. Ill. L.R. 56.1(a) ("The statement ... shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph."). While certain of the plaintiffs' statements do suffer from one or more of these defects, the vast majority do not. Thus, insofar as the defendants' motion seeks to strike the plaintiffs' Rule 56.1 Statement in its entirety, it is without merit.[9] However, to the extent that certain of the plaintiffs' statements were properly objected to, I have not relied upon them in deciding the present matter.
915 *915 The defendants' motion to strike Schoonovers' report is also denied. In support of their motion, the defendants claim that the plaintiffs failed to timely disclose their intention to use Schoonever as an expert witness. In addition, the defendants claim that the plaintiffs violated Fed.R.Civ.P. 26(a)(2) by virtue of the fact that their attorney failed to sign Schoonever's expert report. Neither of these contentions is persuasive.
To begin with, the plaintiffs point out that Schoonover's report was referenced in, and attached to, their motion for class certification0907which was submitted well before the deadline for disclosing expert witnesses. As a factual matter, therefore, the defendants are incorrect in claiming that Schoonover and his report were not disclosed to them in a timely fashion.
It is true that Schoonever's report was not signed by plaintiffs' counsel, but 0907despite defendants' protestations to the contrary no 0907 such thing is required under the Federal Rules of Civil Procedure. Rule 26(g)(1) provides that "[e]very disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name." However, expert disclosures are controlled by Rule 26(a)(2), which Rule 26(g)(1) specifically fails to mention. Rule 26(a)(2) makes clear that the expert's report must be signed by the expert, not the attorney. Fed.R.Civ.P. 26(a)(2) ("Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report 0907prepared and signed by the witness[.]") (emphasis added). Nor do this District's Local Rules contain any requirement that expert reports be signed by counsel. Accordingly, the motion to strike Schoonover's expert report is denied.[10]
C. Title II and Title III: Accommodation
As indicated earlier, the defendants argue on several grounds that the plaintiffs' ADA claim fails as a matter of law. Their main argument on this point is that the claim fails because whereas the plaintiffs travel under Title II of the statute, violations of the type they allege are redressible only under Title III. According to the defendants, the plaintiffs do not claim that they have been affirmatively denied access to the prison facilities in question, but instead seek the removal of existing physical barriers that prevent them from accessing the facilities. The defendants argue that such "barrier removal" claims are cognizable only under Title III. Because the plaintiffs' claims relate to prison conditions, however, they are covered by Title II.
The logic of this argument is elusive. The defendants fail to cite any case authority for the proposition that barrierremoval claims are the province of the Title III and not Title II. The defendants expend much energy in showing that Title III does not apply to prisons (an issue that no one disputes), and that Title III covers barrier-removal claims (another issue not in dispute here); however, the defendants do not show that claims for barrier removal can somehow be asserted only under Title III.
916 *916 In point of fact, case authority is to the contrary. Many courts have considered cases brought by prisoners under Title II seeking relief similar or identical to that sought here. See, e.g., Kutrip v. City of St. Louis, 329 Fed.Appx. 683, 684-85 (8th Cir.2009); Pierce v. County of Orange, 526 F.3d 1190, 1220 (9th Cir.2008) (district court erred in denying relief to challenge by mobility- and dexterity-impaired detainees to inaccessibility of prison's bathrooms, sinks, showers, and other fixtures); Kiman v. New Hampshire Dept. of Corr., 451 F.3d 274, 288 (1st Cir.2006); Foster v. Morris, 208 Fed.Appx. 174 (3d Cir.2006); Armstrong v. Schwarzenegger, 261 F.R.D. 173, 177-79 (N.D.Cal.2009); Lee v. Sherrer, No. 06-2716, 2009 WL 901777 (D.N.J. Mar. 31, 2009); Cotton v.

Sheahan, No. 02 C 0824, 2002 WL 31409575, at *3 (N.D.Ill. Oct. 24, 2002) (Ashman, Mag. J.); Schmidt v. Odell, 64 F.Supp.2d 1014, 1032 (D.Kan. 1999); Kaufman v. Carter, 952 F.Supp. 520, 532 (W.D.Mich.1996).
In short, the fact that the plaintiffs seek to remove existing barriers that hinder their access to the prison's facilities, and the fact that their ADA claim is brought under Title II instead of Title III, affords no basis for granting the defendants summary judgment.
D. Programs and Services
Next, the defendants argue that the plaintiffs' ADA claim fails because the statute requires a showing that the plaintiffs were denied the benefit of the "services, programs, or activities of a public entity." 42 U.S.C. § 12132. According to the defendants, the facilities to which the plaintiffs claim to have been denied access 0907showers, toilets, and sinks do 0907 not count as "services" or "programs" for purposes of the ADA. This is simply incorrect. The County cites two cases in support of its position0907Crawford v. Indiana Dept. of Corr., 115 F.3d 481 (7th Cir.1997), abrogated on other grounds by Erickson v. Bd. of Governors of State Coll. and Univs. for Northeastern Illinois Univ., 207 F.3d 945 (7th Cir.2000), and Bryant v. Madigan, 84 F.3d 246 (7th Cir.1996). These cases held only that sleeping and mere incarceration were not "programs" or "services" within the meaning of the ADA. Neither decision suggests that showering, or using the sink or toilet, cannot be viewed as programs or services in the relevant sense. On the contrary, the ADA prison condition cases cited above involved challenges to conditions identical or similar to those challenged here. See, e.g., Pierce, 526 F.3d at 1218 (toilets, sinks, showers, hot water dispensers, telephones, and water fountains); Kutrip, 329 Fed.Appx. at 684 (showering); Foster, 208 Fed.Appx. at 176 (access to showers and toilets); Armstrong, 261 F.R.D. at 177-78 (access to showers and bathrooms); Lee, 2009 WL 901777 at *2 (showering); Cotton, 2002 WL 31409575, at *3 (access to showers and visiting room); Schmidt, 64 F.Supp.2d at 1032-33 (use of toilet, shower, recreational areas, and obtaining meals); Kaufman, 952 F.Supp. at 532 (access to shower, toilet, water fountain, and telephone).
In these cases, showering, toileting, and lavatory use were regarded as programs and/or services under the ADA. The defendants have given no reason for departing from those cases here.
E. Intentional Discrimination
The County next argues that the plaintiffs' ADA claim fails because the plaintiffs fail to allege that the defendants discriminated against them intentionally. The defendants point out that a showing of intentional discrimination must be made in order to recover compensatory damages under the ADA. They further note that the plaintiffs' 917 complaint seeks only compensatory damages. The defendants therefore conclude that the plaintiffs' failure *917 to allege intentional discrimination is fatal to their ADA claim.[11]
The plaintiffs devote surprisingly little attention to rebutting this argument: they simply deny that it is necessary to show intentional discrimination to make out an ADA claim. Rather, they contend, they need only show that, but for their disabilities, they would not have been discriminated against. The plaintiffs are incorrect. It is true that not all ADA claims require a showing of intentional discrimination. See, e.g., Washington v. Indiana High School Athletic Ass'n, Inc., 181 F.3d 840, 846-47 (7th Cir.1999) ("We cannot accept the suggestion that liability under Title II of the Discrimination Act must be premised on an intent to discriminate on the basis of disability.... In our view ... discrimination under both [the RA and the ADA] may be established by evidence that (1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant's rule disproportionally impacts disabled people.").
However, it is necessary to show intentional discrimination in order to recover compensatory damages (as opposed, say, to injunctive relief). Title II of the ADA incorporates by reference the enforcement scheme found in section 505 of the Rehabilitation Act. See 42 U.S.C. § 12133 ("The remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title."). In turn, section 505 Rehabilitation Act, incorporates the remedies found in Title VI of the Civil Rights Act of 1964. 29 U.S.C. § 794a(a) (2) ("The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C.2000d et

seq.) (and in subsection (e)(3) of section 706 of such Act (42 U.S.C.2000e-5), applied to claims of discrimination in compensation) shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title."). In Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), the Supreme Court held that private individuals could recover compensatory damages under Title VI for intentional discrimination. Id. at 607 n. 27, 103 S.Ct. 3221.
As a result, courts have almost unanimously taken Guardians to mean that compensatory damages are similarly available under Title II of the ADA if0907and only if 0907the plaintiff shows discriminatory intent. See, e.g., NievesMarquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir.2003) ("[P]rivate individuals may recover compensatory damages under § 504 and Title II only for intentional discrimination."); Delano-Pyle v. Victoria County, Tex., 302 F.3d 567, 574 (5th Cir.2002) ("A plaintiff asserting a private cause of action for violations of the ADA or the RA may only recover compensatory damages upon a showing of intentional discrimination."); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152-53 (10th Cir.1999) (district court committed reversible error in failing to instruct jury that plaintiff needed to show intentional discrimination to recover compensatory damages); Ferguson 918 v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998) (holding that "compensatory damages *918 are not available under Title II or § 504 absent a showing of discriminatory intent"); Wood v. President and Trustees of Spring Hill Coll. in City of Mobile, 978 F.2d 1214, 1219-20 (11th Cir.1992); Kennington v. Carter, No. IP02-0648-C-T/K, 2004 WL 2137652, at *7 (S.D.Ind. June 28, 2004) ("Proof of intentional discrimination is necessary before a plaintiff may recover compensatory damages under Title II of the ADA."); Access Living of Metro. Chicago v. Chicago Transit Auth., No. 00 C 0770, 2001 WL 492473, at *6 (N.D.Ill. May 9, 2001). Thus, while the Seventh Circuit has never squarely addressed the question, the weight of authority clearly suggests that compensatory damages are available under the ADA in the absence of intentional discrimination.
The plaintiffs' ADA claim remains viable, however, because even though they mistakenly claim that it is unnecessary to show intentional discrimination, they have correctly asserted that the record contains sufficient evidence from which intentional discrimination can be inferred. See Pls.' Resp. Br. at 13; Pls.' Reply Br. at 14. The issue is complicated by the fact that the precise standard for showing "intentional discrimination" in the ADA context remains somewhat ill-defined. The defendants contend that intentional discrimination is shown by showing deliberate indifference. There is some case authority to support this view. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir.2001) (adopting the "deliberate indifference" standard over the "discriminatory animus" standard); Bartlett v. New York State Bd. of Law Exam'rs, 156 F.3d 321, 331 (2d Cir.1998) ("In the context of the Rehabilitation Act, intentional discrimination against the disabled does not require personal animosity or ill will. Rather, intentional discrimination may be inferred when a policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the challenged policy ... or custom.") (citations, brackets, and quotation marks omitted), rev'd on other grounds by, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999); Powers, 184 F.3d at 1153 ("We agree with the course charted by our sister circuits and hold that entitlement to compensatory damages under section 504 of the Rehabilitation Act requires proof the defendant has intentionally discriminated against the plaintiff. Further, intentional discrimination can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights."); Kennington, 2004 WL 2137652, at *7 ("Though the Seventh Circuit has not addressed the issue, several circuits have held that the appropriate test for intentional discrimination is the `deliberate indifference' standard.").
Even assuming the defendants' deliberate indifference standard applies, however, the plaintiffs have adduced enough evidence to survive summary judgment on the issue of intentional discrimination. Deliberate indifference "can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights." Powers, 184 F.3d at 1153; see also Duvall, 260 F.3d at 1139 ("Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood."); Kennington, 2004 WL 2137652, at *7.
The defendants assert that they were not deliberately indifferent because they attempted to accommodate the plaintiffs by providing them with shower chairs. The defendants claim that the plaintiffs rejected the chairs simply 919 because they *919 were unfamiliar with them or wanted better ones. Thus, for example, the defendants cite Colette Connolly's remark that "some of the patients that have been disabled for many years, they have custom

chairs at home ... and they have all the bells and whistles that make it easy for them." Defs.' L.R. 56.1 Stmt. As the County claims, "the Defendants provided shower chairs, and although they were not the precise chairs sought by the inmates, there is no authority mandating that they must be." County's Br. at 11.
This argument is unconvincing. As an initial matter, the argument addresses only the issue of shower chairs. The defendants are silent concerning the plaintiffs' other requested accommodations, such as grab bars and accessible sinks. Thus, even if the defendants were correct in claiming that they were not deliberately indifferent to the plaintiffs' need for shower chairs, they would not be entitled to summary judgment with respect to all of the issues in the case. Moreover, even with respect to the matter of the shower chairs, the defendants are unable to show that they were not deliberately indifferent as a matter of law. As a factual matter, it is unclear whether the shower chairs were inadequate or whether they simply were not to the plaintiffs' liking.
Importantly, the fact that the defendants may have thought that the chairs were an adequate accommodation does not preclude a finding of deliberate indifference on their part. This can be seen in Love v. Westville Corr. Cent., 103 F.3d 558 (7th Cir.1996), one of the few cases in which the Seventh Circuit has addressed the issue of deliberate indifference in the context of an ADA case involving prison conditions. The plaintiff in Love was a quadriplegic incarcerated in Westville Correctional Center in Indiana ("WCC"). Id. at 558. He claimed that the prison had violated the ADA by failing to provide him with access to various programs and activities. Id. at 558-59. A jury concluded that while the WCC had violated Love's rights, the violation had not been intentional. Id. at 559. Love moved for a new trial.
In granting the motion, the district court stated, "[t]he jury found that WCC discriminated against Mr. Love, and the record is absolutely devoid of any evidence that would support a finding that discrimination was not intentional." ( Love v. McBride, 896 F.Supp. 808, 809 (N.D.Ind. 1995)). The district court also stated:
WCC knew that it was not providing Mr. Love full access to services, programs, and activities, knew that Mr. Love's disability was the reason he was not receiving full access to those programs, knew that Mr. Love repeatedly requested access, knew that WCC had a legal duty to provide Mr. Love with reasonable access, and knew that Mr. Love had a right to reasonable access. WCC may not have known that the access they were affording Mr. Love was unreasonable, but ... WCC voluntarily and deliberately denied Mr. Love's requests for greater access to the programs, and did so because of this known disability, not because of mistake, accident, negligence, or another innocent reason. Mr. Love was not required to prove anything more to establish that the discrimination (a separate issue) was intentional.
Id. at 810.
The WCC appealed, arguing, among other things, that they had not intentionally discriminated against Love. The Seventh Circuit rejected the claim, holding: "[t]he record at the first trial amply supports the trial judge's conclusion on the motion for new trial that Westville indeed committed `intentional' discrimination against Love. Its specific knowledge of the ADA's reasonable accommodation requirement is legally irrelevant to this finding." 920 Love v. *920 Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir.1996).
The same reasoning applies here: the defendants were aware that the plaintiffs had a right to reasonable access to showers, toilets, and sinks, and the defendants refused to provide the accommodations suggested by the plaintiffs. The fact that the defendants might have believed that they were providing the plaintiffs with reasonable access is beside the point. If the requested modifications were reasonable, the defendants could be found to have acted with deliberate indifference.
None of this is to say that the requested accommodations were in fact reasonable or that the plaintiffs were treated in a discriminatory fashion. It is only to say that if the plaintiffs were treated discriminatorily, a jury could reasonably find that the discrimination was "intentional" for purposes of the ADA. Thus, I conclude that the plaintiffs have asserted "intentional discrimination" within the meaning of the ADA, and that as a result, they may be awarded compensatory damages if they prevail.

F. Reasonableness of the Requested modifications
Having rejected the defendants' other arguments, the question central to the plaintiffs' ADA claim becomes whether the modifications to the prison facilities requested by the plaintiffs were reasonable. As noted above, Title II's central implementing regulation provides that "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity." 28 C.F.R. § 35.130(b)(7). However, the implementing regulations further clarify that the strictness of Title II's requirements varies depending on the age of the facility in question. The Supreme Court has summarized the basic regulatory framework in this way:
Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs. It requires only "reasonable modifications" that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service. As Title II's implementing regulations make clear, the reasonable modification requirement can be satisfied in a number of ways. In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards. 28 CFR § 35.151 (2003). But in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services. § 35.150(b)(1). Only if these measures are ineffective in achieving accessibility is the public entity required to make reasonable structural changes. Ibid. And in no event is the entity required to undertake measures that would impose an undue financial or administrative burden, threaten historic preservation interests, or effect a fundamental alteration in the nature of the service. §§ 35.150(a)(2), (a)(3).
Tennessee v. Lane, 541 U.S. 509, 531-32, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004); see also Oconomowoc 921 Residential Programs v. *921 City of Milwaukee, 300 F.3d 775, 783 (7th Cir.2002).
Moreover, the Seventh Circuit has stated that determining the reasonableness of a particular accommodation entails a highly fact-specific inquiry:
Whether a requested accommodation is reasonable is highly fact-specific, and determined on a case-by-case basis by balancing the cost to the defendant and the benefit to the plaintiff. Whether the requested accommodation is necessary requires a showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability. The overall focus should be on whether waiver of the rule in the particular case at hand would be so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change.
Dadian v. Village of Wilmette, 269 F.3d 831, 838-39 (7th Cir.2001) (citations and quotation marks omitted).
The inquiry is somewhat more complex when considering Title II claims in the prison context. Many courts have held that in such cases, the reasonableness inquiry should apply the factors discussed in the Supreme Court's decision in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). See, e.g., Kutrip v. City of St. Louis, 329 Fed.Appx. 683, 684 (8th Cir.2009); Pierce v. County of Orange, 526 F.3d 1190, 1216 (9th Cir.2008). In Turner, the Court singled out four factors to be considered in assessing the constitutionality of restrictions on prisoners' rights: (1) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right that remain open to the prisoners; (3) the impact that accommodation of the prisoner's alleged constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and (4) whether "there is a ready alternative to the policy `that fully accommodates the prisoner's rights at de minimis cost to valid

penological interests,'" See. e.g., Russell v. Richards, 384 F.3d 444, 447 (7th Cir.2004) (quoting Turner, 482 U.S. at 90, 107 S.Ct. 2254).
The Seventh Circuit has yet to address the question whether the Turner factors should be applied in prisoncondition cases brought under the ADA. But it is not necessary to decide the issue here, because even assuming that the Turner standard applies, a triable issue of fact remains as to whether the accommodations cited by the plaintiffs are reasonable.[12]
To begin with, it is important to note that the defendants do not claim that the plaintiffs were provided with their requested accommodations. As noted above, it is true that the defendants provided the plaintiffs with shower chairs in at least some cases. However, a factual question remains as to adequacy of the chairs. While the plaintiffs cite evidence indicating that chairs were unsatisfactory, see Pls.' L.R. 56.1(b) Stmt. ¶ 59, the defendants maintain that the plaintiffs simply did not like the chairs, see Defs.' Rule 56.1 Stmt. ¶ 34. In any event, the shower chair represents only a single accommodation, leaving unaddressed the plaintiffs' complaints regarding their 922 inability to use the sink or the toilet. Indeed, the shower chairs did *922 not even fully address the plaintiffs' complaints about the showers. For, in addition to shower chairs, the plaintiffs also complained about the height of the soap dispenser, as well as the placement of shower nozzles and other shower controls. The defendants make no claim to have addressed any of these concerns.
It is also true that portions of the defendants' 56.1 Statements imply, or in some cases dogmatically assert, that certain parts of the CCDC were in compliance with the ADA. See, e.g., Defs.' L.R. 56.1(b) Stmt. § 27 (asserting that the RTU is equipped with grab bars and shower chairs); ¶ 30 (stating that "Cermak has handicapped accessible rooms that are equipped with handicap toilets and sinks located on 3 North and 3 West"); ¶ 45 (stating that "[i]nmates were able to use the sinks to wash their hands."). But, with the exception of Statement 30, these claims are disputed by the plaintiffs. See Pls'. L.R. 56.1(b) Stmt. ¶¶ 27, 45. Moreover, even if all of these issues were undisputed, that still would not suffice to show that the CCDC's accommodations were adequate for purposes of the ADA. These address only parts of the CCDC and are not responsive to all of the areas where the plaintiffs allege that access was lacking.
Nor do the defendants appeal to concerns over cost to justify their refusal to make the modifications in question. Instead, the defendants claim that accommodating the plaintiffs would have posed a threat to prison safety. Specifically, the Sheriff claims that he "concluded that forbidding items that could be transformed into weapons fosters correctional security." Sheriff's Br. at 14.
This argument raises far too many disputed questions of fact to serve as a basis for summary judgment. For example, the plaintiffs dispute the claim that the Sheriff ever made an actual assessment of the safety concerns raised by the requested accommodations. See Pls.' Stmt. Add'l Facts ¶ 9. More importantly, even assuming that the Sheriff made a safety evaluation, a factual question remains concerning the reasonableness of the Sheriff's determination that making the accommodations would have posed a threat to prison safety. Even under the deferential Turner standard it would be possible for a reasonable jury to find that the Sheriff's concern about, say, grab rails, was not a reasonable basis for refusing to install them. The Sheriff suggests that prisoners might fashion weapons out of grab rails, see Sheriff's Resp. Br. at 7-9; but since these are presumably embedded in the prison walls, it might be doubted whether making this modification would really present any danger. Nor does the Sheriff explain how adjusting the height of toilets, sinks, shower controls, and soap dispensers in the shower might compromise prison safety. The defendants' appeal to concerns over prison safety are perhaps also difficult to reconcile with the fact that the defendants were provided with shower chairs. If the Sheriff determined that shower chairs did not pose a threat to prison safety, a jury might reasonably wonder why the installation of grab rails should have been deemed a threat.
Finally, it should be noted that none of the defendants' arguments addresses accommodations at Cermak. Thus, even if the defendants were entitled to summary judgment insofar as the RTU was concerned, it would not follow that they were entitled to summary judgment with respect to the plaintiffs' complaints about Cermak. Indeed, the case for summary judgment is even more difficult in connection with Cermak since it was built after the ADA's passage. As a result, Cermak is subject to the requirements of 28 C.F.R. § 35.151, which are more stringent than those to which the RTU is subject as a structure built prior to the ADA.

923 *923 G. The Plaintiffs' Motion for Summary Judgment
The foregoing discussion shows that disputed issues of fact remain concerning the reasonableness of the requested modifications to the Prison's facilities. This conclusion precludes summary judgment in the plaintiffs' favor as much as it precludes summary judgment in favor of the defendants. For completeness, however, I examine the plaintiffs' chief argument in support of their motion for summary judgment. The argument centers on the standards set forth in the Americans with Disabilities Act Accessability [sic] Guidelines for Buildings and Facilities ("ADAAG"), 28 C.F.R. pt. 36 app. A, and the Uniform Federal Accessability Standards ("UFAS"), 41 C.F.R. part 101-19.6, Appendix A. The ADA's implementing regulations provide that "any part of a public entity's facility constructed after January 26, 1992 must be designed and constructed in conformance with the Uniform Federal Accessibility Standards or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities." Pierce v. County of Orange, 526 F.3d 1190, 1216 (9th Cir.2008) (citations and quotation marks omitted). These guidelines specify in great detail the proper height for toilets, sinks, and showers, and set forth a wide range of additional accessibility standards necessary for compliance with the ADA. The plaintiffs have submitted several reports authored by their expert, Ken Schoonover, that compare various areas of the CCDC against these standards. See Pls.' Exhibits 10-12. The reports identify many areas and facilities that fall short of both the ADAAG and the UFAS.
In response, the Sheriff notes that these standards apply only to newly constructed buildings and those that have undergone recent alteration. As a result, the guidelines are inapplicable to the RTU, which was built in the 1980s. Furthermore, the Sheriff argues that the standards do not apply to Cermak because Title II's Technical Assistance Manual states that the ADAAG's standards do not apply to correctional facilities. This leaves only the UFAS's standards, and their application only to Cermak.
Even here, however, factual disagreements persist. For example, the plaintiffs argue that the CCDC fails to comply with a UFAS regulation which requires the accessibility of "5 percent of residential units available, or at least one unit, whichever is greater; [and of] all common use, visitor use, or areas which may result in employment of physically handicapped persons." UFAS § 4.1.3(9). The defendants respond that § 4.1.3(9) does not apply to Cermak because Cermak's units consist of hospital rooms, not prison cells. Moreover, the defendants observe that certain portions of Cermak are maintained as dormitories and have no individual rooms or cells. In these areas, it is unclear whether, or in what way, § 4.1.3(9) applies. The defendants further contend that certain of the dorms are equipped with thirty beds, and that in these dorms, ten of the beds are accessible. As a result, they claim, § 4.1.3(9)'s five percent requirement is met. While these considerations and back-of-theenvelope calculations are hardly definitive, they are sufficient to raise a question of fact as to whether UFAS standards should be applied to Cermak under these circumstances. This is especially so given the plaintiffs' failure to make any rejoinder to these arguments.
In sum, both the plaintiffs' and the defendants' motions for summary judgment on the plaintiffs' ADA claim are denied.
VI. Electronic Monitoring & Drug Rehabilitation Programs
924 In addition to their claims concerning access to shower, toilet, and lavatory facilities, the plaintiffs' complaint also *924 alleges that certain of the plaintiffs were excluded from an electronic monitoring program and a drug rehabilitation program run by the CCDC. The Sheriff briefly argues that the plaintiffs' exclusion from these programs was unrelated their disabilities. For example, the Sheriff claims that House's participation in the electronic monitoring program was denied not because he was confined to a wheelchair but because of his criminal history. Similarly, the Sheriff claims that Phipps was never denied access to the Prison's drug rehabilitation program, but instead was not included because he never gave any indication that he suffered from drug dependency.
In their briefing on the summary judgment motions, the plaintiffs almost completely ignore their claims relating to these programs. Rather than advancing arguments or evidence of their own, they merely assert that the Sheriff

has failed to adduce any admissible evidence in support of his arguments that the plaintiffs were not wrongfully excluded from the programs. Indeed, the plaintiffs conclude that, as a result of this alleged failure, they are entitled to summary judgment with respect to this claims.
This represents a misunderstanding of the parties' relative burdens of proof. The claims in question are asserted by the plaintiffs. At trial, therefore, the plaintiffs would obviously bear the burden of showing that they were excluded from the programs for discriminatory reasons. See, e.g., Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir.2000). Accordingly, the plaintiffs have the same burden as the party moving for summary judgment: they cannot simply fall back on the defendants' alleged failure to show that they did not engage in discrimination. Rather, the plaintiffs must "establish affirmatively the lack of sufficient evidence favoring the nonmoving party." Branham v. Snow, 392 F.3d 896, 907 (7th Cir.2004) (quotation marks omitted).
The plaintiffs have not even attempted to make the necessary showing here. Accordingly, I deny their motion for summary judgment insofar as it relates to the electronic monitoring and drug rehabilitation programs.
VII.
For the reasons explained above, the parties' motions for summary judgment are denied.
MEMORANDUM OPINION AND ORDER
In this class action suit, paraplegic and partially-paralyzed pre-trial detainees currently and formerly housed at the Cook County Department of Corrections ("CCDC" or "the Prison") allege that the Sheriff of Cook County ("the Sheriff"), and Cook County, Illinois ("the County") (together, "defendants"), have violated, inter alia, section 202 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132. In June 2009, all of the parties filed crossmotions for summary judgment. On November 25, 2009, I issued a memorandum opinion and order denying all of the parties' motions. Phipps v. Sheriff of Cook County, No. 07 C 3889, 2009 WL 4146391 (N.D.Ill. Nov.25, 2009) ("the November 25 opinion" or "the opinion"). The defendants subsequently filed this motion pursuant Rule 59(e) of the Federal Rules of Civil Procedure, seeking reconsideration of the decision. For the reasons explained below, the motion is denied.
I.
As the Seventh Circuit has repeatedly observed, "[m]otions for reconsideration serve a limited function: to correct 925 manifest errors of law or fact or to present newly discovered evidence." Caisse Nationale *925 de Credit Agricole
v. CBI Industries, Inc., 90 F.3d 1264, 1269(7th Cir.1996) (quotation marks omitted). "Such problems rarely arise and the motion to reconsider should be equally rare." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990). "A party seeking to defeat a motion for summary judgment is required to `wheel out all its artillery to defeat it.'" Caisse Nationale, 90 F.3d at 1269 (quoting Employers Ins. of Wausau v. BodiWachs Aviation Ins. Agency, 846 F.Supp. 677, 685 (N.D.Ill.1994)). Accordingly, "[b]elated factual or legal attacks are viewed with great suspicion ... [and r]econsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Id.
Here, the defendants' motion for reconsideration contends that the November 25 opinion erred in three ways: (1) by concluding that the record contained sufficient evidence from which a jury could find that the defendants intentionally discriminated against the plaintiffs; (2) by holding that disputed questions of material fact existed as to whether the defendants failed to reasonably accommodate the plaintiffs' disabilities; and (3) by declining to grant the defendants summary judgment motion with respect to the plaintiffs' claims concerning access to the prison's electronic monitoring and drug rehabilitation programs.
Despite their protestations to the contrary, the defendants' motion consists almost entirely of arguments presented-and rejected0907in their original summary judgment motions. Their motion to reconsider furnishes no

reason for revisiting those arguments here. However, the motion does succeed in raising a small number of novel issues. While none of these ultimately affects the reasoning or result of the November 25 opinion, I briefly address them here in the interest of clarification and completeness.
First, as part of their argument that I erred in declining to grant them summary judgment with respect to the issue of intentional discrimination, the defendants request that the case be certified for interlocutory review. Here, the defendants seize upon the opinion's passing observation that different Circuits have adopted different formulations of the "intentional discrimination" standard in ADA cases. In particular, the opinion noted that while some Courts of Appeals have used a "deliberate indifference" standard, others have employed a "discriminatory animus" standard. The opinion also noted that the Seventh Circuit had yet to address the specific question of the how the notion of intentional discrimination should be understood for purposes of the ADA. The defendants therefore urge that the case be certified for interlocutory review so that the Seventh Circuit might issue a definitive ruling on the matter.
The defendants' request is denied. "Interlocutory appeal is appropriate when (1) the appeal presents a question of law; (2) it is controlling; (3) it is contestable; (4) its resolution will expedite the resolution of the litigation, and (5) the petition to appeal is filed in the district court within a reasonable amount of time after entry of the opinion sought to be appealed." Boim v. Quranic Literacy Inst. and Holy Land Foundation For Relief And Development, 291 F.3d 1000, 1007 (7th Cir.2002). The defendants have not even come close to showing that these criteria are met in this case. They fail to provide even the most cursory discussion of the deliberate indifference and discriminatory animus standards. Nor do they explain in what sense the issue represents a contestable or 926 controlling issue of law. The defendants make no attempt to assess the relative *926 merits of the different standards. Indeed, the defendants make no attempt even to determine whether, in the ADA context, there is a meaningful distinction between the two standards, or whether the difference between them is merely verbal.
Moreover, this issue was never raised in the parties' briefing on the summary judgment motion, and the defendants offer no explanation for their failure to raise the issue earlier. Instead, the defendants insisted throughout that deliberate indifference was the applicable standard. The November 2005 opinion simply assumed without deciding that the defendants' standard applied, and concluded that on the defendants' own standard, they were not entitled to summary judgment on the issue of intentional discrimination.[1]See, e.g., Harris v. Giant Eagle Inc., 133 Fed.Appx. 288, 292 n. 1 (6th Cir.2005) (assuming without deciding that plaintiff's federal claim was timely because neither party raised the issue); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 125 (2d Cir.2002) (Because both parties assumed that the law of Puerto Rico rather than New York governed, and because neither side identified any pertinent difference between the laws of the two jurisdictions, the court would likewise assume without deciding that the law of Puerto Rico applied); Kaiser Foundation Health Plan of Mid-Atlantic States v. Clary & Moore, P.C., 123 F.3d 201, 204 (4th Cir. 1997) (because neither party questioned the applicability of Virginia law, the court would assume without deciding that Virginia law applied).
The defendants' second contention 0907regarding the defendants' failure to provide the plaintiffs with reasonable accommodations 0907was already largely covered in the original summary judgment motion. In the motion to reconsider, the defendants argue with particular vigor that the accommodations were never requested. I disagree. At the very least, the record is unclear on this point. In any event, however, the defendants are wrong in assuming that it was necessary for the plaintiffs to have requested the specific accommodations in question. Strictly speaking, the ADA embodies no such requirement. Rather, where "a disabled individual's need for an accommodation is obvious, the individual's failure to expressly `request' one is not fatal to the ADA claim." Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1197 (10th Cir.2007); Kiman v. New Hampshire Dept. of Corrs., 451 F.3d 274, 283 (1st Cir.2006) ("[T]he ADA's reasonable accommodation requirement usually does not apply unless `triggered by a request.' This is because a person's disability and concomitant need for accommodation are not always known ... until the person requests an accommodation. However, sometimes the 927 person's need for an accommodation will be obvious; and in such cases, different *927 rules may apply.") (citations, quotation marks, and brackets omitted). Thus, the plaintiffs' alleged failure to request accommodations from the defendants provides no basis for reconsidering the November 25 opinion's conclusions.
In their final argument for reconsideration, the defendants maintain that the November 25 opinion erred in failing to grant them summary judgment with respect to the claim that certain of the plaintiffs were wrongly excluded

from electronic monitoring and drug rehabilitation programs run by the CCDC. The defendants are perhaps justified in pointing out that opinion's discussion of this issue is somewhat truncated. In particular, the opinion addresses only whether the plaintiffs were entitled to summary judgment on the claims regarding these programs. Having denied the plaintiffs' motion on this point, the opinion did not take the additional step of considering the defendants' cross-motion for summary judgment concerning these programs. The omission is ultimately of no moment, however, because the defendants' arguments for summary judgment on this point are without merit.
The claims relating to the prison's electronic monitoring program chiefly involve plaintiffs Phipps and Grant. Against their contention that they were excluded from the program because of their disabilities, the defendants insist that Phipps and Grant were excluded because of their criminal histories. Specifically, the defendants claim that individuals who have been charged with, or convicted of, certain crimes are barred by prison regulations from participating in the electronic monitoring program. Quite simply, the defendants' position is not borne out by the record.
In support of their argument, the defendants rely almost exclusively on a single exhibit consisting of two memoranda from the Cook County Sheriff's Office. See Defs.' Ex. 14. These memos list the various charges and offenses that can result in exclusion from the electronic monitoring program.[2] The defendants first argue that Phipps and Grant were denied access to the program because both had been charged with possession of a controlled substance. However, neither of the memos state that being charged with (or convicted for) possession of a controlled substance will result in exclusion from the program. Rather, they say that "[a] ny narcotic charges other than Marijuana involving more than 100 grams disqualify the accused from EM [electronic monitoring]." The defendants do not point to any evidence showing that this proscription applies to Grant. The portion of his deposition cited by the defendants says merely that Grant had been incarcerated for eight months because his 928 son "made some allegations about drugs and guns." Def.'s Ex. 3, Grant Dep. at 8:12-9:8. Neither the *928 drug nor the quantity of the drug in question is specified in the cited portion of the deposition.
The record is also unclear as to whether the exclusion applies to Phipps. Although Phipps had previously been charged with felony drug possession, the charge for which he was incarcerated during the time in question was for probation violation. Defs.' Ex 4, Phipps Dep. at 9:1-10:22. The defendants point to nothing in the memos suggesting that having been charged with drug possession at some prior time would constitute a reason for excluding a prisoner currently incarcerated for a different offense.
Moreover, even assuming that this provision, or some other provision, were applicable to Phipps and Grant, that still would not require that they necessarily be excluded from the electronic monitoring program. Notably, before listing the various reasons for exclusion, certain of the memos state that a "[a] charge alone within the last 12 months of any of the following offenses will be sufficient to disqualify an inmate from Electronic Monitoring unless the charge was dismissed or discharged." Ex. 14 at 4. Significantly, this language does not suggest that an inmate must be excluded from the program if his criminal history includes any of the listed charges or offenses; it says only that such a criminal history will be "sufficient" for exclusion. The memo goes on to add that "[i]n each case, the candidate will be judged on an individual basis for his/her acceptance." Id. This suggests that admittance to the this program can depend on factors other than prisoners' criminal histories. If so, the question remains open as to precisely why Phipps and Grant were excluded.
As an alternative ground for Grant's exclusion, the defendants note that under the relevant guidelines, "[a]nyone currently charged with Domestic Violence or convicted of Domestic Violence within the last 3 (three) months is not eligible." Defs.' Ex. 14 at 4. The defendants point to Grant's admission in his deposition that he had earlier been convicted for domestic violence. However, Grant's testimony in his deposition also makes clear that he was unable to remember precisely when he had been convicted. The record thus leaves unclear whether Grant's conviction was within three months of the relevant date. As a result, the domestic violence exclusion provides no ground for his exclusion.
As for Phipps's exclusion from the prison's drug rehabilitation program, the only evidence the defendants offer is Phipps's "intake form," which indicates that Phipps's answered in the negative when asked whether he smoked

tobacco, drank alcohol, or used illicit drugs. Defs.' Ex. 18. This single document is hardly sufficient to show the lack of any issue of triable fact concerning the reason for Phipps's exclusion from the program.[3]
Thus, the defendants are not entitled to summary judgment with respect to the plaintiffs' exclusion from the electronic monitoring and drug rehabilitation programs.
II. Conclusion
For the reasons explained above, the defendants' motion for reconsideration is denied.
[1] The plaintiffs' amended complaint also asserted a claim under 42 U.S.C. § 1983.
[2] Cermak serves as the CCDC's hospital and provides inmates with medical and psychiatric care.
[3] Although the defendants make these arguments separately in their respective briefs, they end up adopting most of each other's arguments. As a result, I generally discuss the defendants' arguments without regard to whether they were originally advanced by the County or the Sheriff.
[4] It is true that courts have sometimes allowed affirmative defenses to be raised for the first time in summary judgment motions where the defendant has not first filed an answer, see, e.g., Nobles v. Discover Fin. Servs., Inc., No. 02 C 2446, 2004 WL 1197417, at *2 (N.D.Ill. May 28, 2004), or where the opposing party would not be prejudiced by the delay, see, e.g., Best v. City of Portland, 554 F.3d 698, 700 (7th Cir.2009). Here, however, the defendants answered before filing their summary judgment motion, see Doc. # 19 (9/14/2007), and they have made no argument that asserting the defense at this stage of the litigation would not be prejudicial to the plaintiffs. Indeed, the Sheriff appears to concede that the argument has been forfeited, since he offers no response to the plaintiffs' argument on this point.
[5] While some courts appear to suggest that the vicarious exhaustion doctrine should apply only where a class has been certified under Rule 23(b)(2), see, e.g., Hattie v. Hallock, 8 F.Supp.2d 685, 689 (N.D.Ohio 1998), others have found vicarious exhaustion where, as here, the class has been certified under Rule 23(b)(3), see, e.g., Rahim v. Sheahan, No. 99 C 0395, 2001 WL 1263493, at *8 (N.D.Ill. Oct. 19, 2001) (Schenkier, Mag. J.).
[6] In discussing these issues, the County also argues that the individualized nature of the damages sought by the plaintiffs "defies" the case's "class action status." County's Br. at 12. This issue has already been resolved in deciding the plaintiffs' motion for class certification, Phipps v. Sheriff of Cook County, No. 07-3889, slip op. at 7 (N.D. Ill. June 30, 2009), and will not be revisited here.
[7] See Defs.' L.R. 56.1(a) Stmt. ¶ 5 (stating that Cermak "does not receive any federal funds or federal financial assistance for programs or services under ADA for the Cook County Department of Corrections or any federal funds for the making of programs and services accessible to those qualified under the ADA").
[8] The plaintiffs offer this evidence as part of a motion to strike the Sheriff's assertions that he is not a recipient of federal funds. The plaintiffs' evidence is sufficient to create a disputed question of material fact with respect to the RA's federal-funding requirement. Since this is enough to defeat the Sheriff's motion for summary judgment as to the RA, formally striking the defendants' statements is unnecessary. Accordingly, the motion to strike is denied.
[9] It should be noted that many of the defendants' own statements suffer from the same errors as those they purport to identify in the plaintiffs' Rule 56.1 Statement. See, e.g., Defs.' 56.1 Statement of Facts ¶¶ 34, 35.
[10] The plaintiffs also have filed two motions to strike. The first motion, which seeks to strike the Sheriff's statements that he does not receive federal funds, has already been addressed above in connection with the plaintiffs' RA claim. The second motion seeks to strike various assertions included in the defendants' Rule 56.1 Statement. It is unnecessary to discuss each of these statements individually. Suffice it to say, once again, that in deciding this matter, I have not relied on any of the defendants' statements to which proper objection has been made.

[11] The County further argues that even if the plaintiffs could be construed as requesting injunctive relief in addition to compensatory damages, the claim would be foreclosed by the consent decree entered by Judge Shadur in Duran v. Elrod, No. 74 C 2949 (N.D.Ill. 1974). It is unnecessary to discuss that issue here, however, since the plaintiffs do not dispute the defendants' claim that the plaintiffs seek only compensatory damages.
[12] Turner requires substantial deference to prison officials, state prison officials. See, e.g., Beard v. Banks, 548 U.S. 521, 528, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006). Thus, if the defendants are not entitled to summary judgment under that standard, they would not be able to prevail under another standard. In any case, the defendants themselves argue that Turner applies here.
[1] For their part, the plaintiffs maintained that it was unnecessary to make any showing of intentional discrimination at all. Nor did the plaintiffs attempt to make such a showing. The plaintiffs' failure to sufficiently attend to this issue does not automatically compel entry of summary judgment in the defendants' favor. Even where one party fails entirely to respond to another party's motion for summary judgment, it is incumbent upon the court to determine whether the moving party has met its burden of showing the absence of any issue of triable fact. See, e.g., Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994) ("Even if the opposing party completely fails to respond to a summary judgment motion, Rule 56(e) permits judgment for the moving party only if appropriate0907that is, if the motion demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Thus, even where many or all of the material facts are undisputed, the court still must ascertain that judgment is proper as a matter of governing law.") (citations and quotation marks omitted).
[2] The defendants cite only to the exhibit in its entirety and fail to indicate the specific portions of the memos on which they seek to rely. This is especially problematic here, because some of the documents purport to supersede others, and because it is not entirely clear from the documents themselves which charges or offenses the defendants believe are applicable to Phipps and Grant. This constitutes a violation of Local Rule 56.1 and would alone provide sufficient grounds for summarily rejecting the defendants' argument. Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir.2004) ("[W]here a non-moving party denies a factual allegation by the party moving for summary judgment, that denial must include a specific reference to the affidavit or other part of the record that supports such a denial. Citations to an entire transcript of a deposition or to a lengthy exhibit are not specific and are, accordingly, inappropriate. A court should not be expected to review a lengthy record for facts that a party could have easily identified with greater particularity.").
[3] There seems to be one exception to the foregoing considerations 0907namely, plaintiff House 0907who apparently did participate in the monitoring program.
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