where applicable, Plaintiff's allegations amount to nothing more than a failure to provide a non-
discriminatory facility, which is the duty of the County Board.

Title II of the ADA protects inmates with disabilities against discrimination and requires
that their disabilities be reasonably accommodated by their custodian. Pennsylvania Dep't of
Corr. v. Yeskey, 24 U.S. 206, 209 (1998), The Rehabilitation Act is “materially identical” to the
ADA as the ADA was modeled after it. Crawford v. Indiana Dep't of Corr., 115 F.34 481, 483
(7th Cir. 1997), abrogated on other grounds, Florida Prepaid Postsecondary Educ. Expense Bd.
v. College Sav, Bank, 527 U.S, 627 (1999); Kimel v. Florida Bad. of Regents, 528 U.S. 62 (2000).

Under Illinois law, “the Sheriff of each county is the warden of the county jail, and has
custody over all of its prisoners,” DeGenova v. Sheriff. of DuPage County, 209 F.3d 973, 976
(7th Cir. 2000) (citing Moy v. County of Cook, 640 N.E.2d 926 (Il. App. Ct. 1994); 730 ILCS
§ 152/2). The Sheriff's powers are not unlimited, rather, it is the Cook County Board that
“controls the design and funding of the [Jail]."> Stone-el v. Sheahan, 914 F. Supp. 202, 205
(N.D. IH. 1995). For example, in Houston vy, Sheahan, 62 F.3d 902 (7th Cir. 1995), a prisoner
brought a section 1983 action against the Sheriff and Warden, complaining of the overcrowded
Conditions at the Jail. In granting the defendants’ motion to dismiss, the court noted, “[nJeither
the Sheriff nor the Warden designed the Jail; neither has the ability to build a larger facility;
neither controls the number of prisoners assigned there.” Jd. at 903, abrogated on other grounds,

Farmer v. Brennan, 511 U.S. 825 (1994).

> Section 1983 cases are instructive as to the types of powers that the Sheriff is delegated
with, as opposed to powers vested in the County Board. Cf Houston v, Sheahan, 62 F.3d 902
(7th Cir. 1995) (discussing limits on the Sheriff's authority), abrogated on other grounds,
Farmer v. Brennan, 511 U.S. 825 (1994); Stone-el v. Sheahan, 914 F. Supp. 202 (N.D. ILL. 1995)
(same).

-4-


Assoc. of Indian Trails Apts. v. Indian Trails Apts., 496 F. Supp. 522, 525 (N.D. Ill 1980) (“a

pleader need only make one demand for relief regardless of the number of claims he asserts”).

V. Conclusion
For the aforementioned reasons, Defendant’s motion to dismiss the complaint is denied.
Defendant’s motion to strike the claim seeking injunctive relief is granted, and Defendant’s
motion to strike the claim for punitive damages under the ADA is denied.

ENTER ORDER:

2.6L

MARTIN C. ASHMAN
Dated: October 23, 2002. United States Magistrate Judge



UL. Standard of Review
When ruling on a motion to dismiss, we must view the complaint’s allegations in the light
most favorable to the plaintiff. Bontkowski v. First Nat'l Bank of Cicero, 988 F.2d 459, 461 (7th
Cir. 1993). All well-pleaded facts and allegations in the complaint must be taken as true, and the
case will not be dismissed “unless it appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,
45-46 (1957). The plaintiff must sufficiently allege facts setting forth each element of every

cause of action. Gray v. Dane County, 854 F.2d 179, 182 (7th Cir. 1988).

IV. Discussion

Defendant argues that Plaintiff has failed to state a cause of action because it is the
County Board, and not the Sheriff, that is responsible for designing, providing, improving and
maintaining the Jail. See 55 ILCS 5/5-1106 (“It shall be the duty of the county board of each
county . . . [t]o erect or otherwise provide when necessary . . . and keep in repair, a suitable court
house, jail and other necessary county buildings. . . .”). The Plaintiff responds that the Sheriff is
subject to the requirements of the ADA and the Rehabilitation Act, and, as the custodian of the
inmates, had the ability to comply with these Acts in specific situations of which Plaintiff
complains, e.g. “failure to provide adequate seating accommodations for persons in wheelchairs,”
“failure to remove the architectural barriers in the visiting room,” and “failure to provide

reasonable accommodations for persons in wheelchairs in the facility’s showers.” Defendant

replies that although he does have the duty to comply with the ADA and Rehabilitation Act


Nonetheless, the Houston and Stone-el cases, as well as the other cases relied upon by the
Defendant, are distinguishable because Plaintiff is not complaining about the overall general
conditions of the Jail. He is complaining about two specific instances in which he was
discriminated against. At this stage in the case, both the shower and the visitors room situations
seem to be finite things that the Sheriff may have some contro) over, and at oral argument it was
conceded that the Sheriff does have use of discretionary funds for maintenance of the jail. The
Sheriff probably cannot construct a whole new fully accessible visiting room. That would be in
the realm of the County Board. But perhaps he could have removed some of the stools so that
Plaintiff could wheel his chair up to the glass panels. Or perhaps there is another room where
Plaintiff could have met with his visitors. Perhaps someone could have assisted the Plaintiff so
he did not fall. It is too early to say that as a matter of law the Sheriff’s alleged discriminatory
policies could not have been remedied by the Sheriff.

Case law supports this conclusion. In Brant v. Volkert, 99 C 50154, 2001 WL 910106, at
*2 (N.D. Ill. July 5, 2001), the court denied the Stephenson County Sheriff's motion for summary
judgment for an inmate’s ADA claim where the inmate had been denied the use of the toilet by
reason of his disability. Similarly, in Hanson v. Sangamon County Sheriff's Dep't, 991 F. Supp.
1059, 1063 (C.D. Ii}. 1998), the court denied the Sangamon County Sheriff’s motion to dismiss
where the plaintiff, an arrestee, was denied the use of equipment for the hearing impaired. See
also Schmidt v. Odell, 64 F. Supp. 2d 1014, 1033 (D. Kan. 1999) (denying jail official's motion
for summary judgment where wheel-chair bound inmate stated a claim due to the lack of an

accessible toilet and shower); Kaufman v. Carter, 952 F. Supp. 520, 532 (W.D. Mich. 1996)


Copies have been mailed to:

STEVEN R. GREENBERGER, Esq.

Disability Rights Clinic
DePaul College of Law

25 East Jackson Boulevard
Chicago, IL 60604

Attorney for Plaintiff

RICHARD A, DEVINE, Esq.
DONALD R. HALLSTEN, JR., Esq.
Assistant State's Attorney's Office
500 Richard J. Daley Center
Chicago, IL 60602

Attorney for Defendant


Bienen

MinueOider Form (9643)

ep AS MG ATI

United States District Court, Northern District of Illinois

Name of Assigned Jud; i Sitting Judge if Oth
vr Magistrate Judge Martin C. Ashman ‘than Asigned Judge
CASE NUMBER 02 C 824 DATE 10/23/2002
CASE Anthony Cotton vs. Michael Sheahan
TITLE

[In the following box (a) indicate the party filing the motion, ¢.., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.

MOTION:

DOCKET ENTRY:

da) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

@) o Answer briefto motion due___. Reply to answer briefdue___.

(4) o Ruling/Hearing on setfor_ at

(5) Oo Status hearing[held/continued to] {set for/re-set for] on setfor___at

(6) o Pretrial conference[held/continued to] [set for/re-set for] on setfor_ sat

(2) o Trial[set for/re-set for]on____at

(8) a [Bench/Jury trial] [Hearing] held/continuedto___—_—at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OCOFRCP4(m) OlLocal Rule 41.1 CIFRCP41(a)(1)  FRCP41(a)(2).

ao) =x [Other docket entry] | Enter memorandum opinion and order. Defendant’s motion to dismiss

plaintiff’s complaint [8-1] is denied. Defendant’s motion to strike the claim seeking injunctive relief is
granted, and defendant’s motion to strike the claim for punitive damages under the ADA is denied.

al) #

No notices required, advised in open court.

[For further detail see order attached to the original minute order.]

2

No notices required. number of notices

OCT 2 4 Ate

a | Notices mailed by judge's staff.

Notified counsel by telephone.

date docketed
Docketing to mail notices.
Mait AO 450 form. manera tenn antes hid
Copy to judge/magistrate judge. ig 19 po
10/23/2002
col om j a date mailed notice
stro epen at i
1s deputy’s hat s
initials

Date/time received in
central Clerk’s Office

mailing deputy initiats



(denying motion for summary judgment where plaintiff alleged he was denied use of shower and
toilet facilities),

Plaintiff has adequately alleged that the Sheriff's discriminatory policy of withholding
visitation rights from him and of withholding the use of the shower facilities from him violated
the ADA and Rehabilitation Act. The questions of what were reasonable accommodations and
whether the Sheriff really had the ability and authority to provide such accommodations remain
for another day. We cannot say that as a matter of law the Sheriff did not have the power to
change the alleged discriminatory policies.

Moving on, the Sheriff has also requested that Plaintiff's claim for injunctive relief be
stricken as Plaintiff is no longer incarcerated in the Jail. Plaintiff does not object to this motion,
and it is thus granted.

Additionally, the Sheriff has asked the Court to strike Plaintiff's prayer for punitive
damages under the ADA on the grounds that Title II does not provide for punitive damages,
There is a split in this district on this issue. Compare Winfrey v. Chicago, 957 F. Supp. 1014,
1024 (N.D. Ill. 1997) (holding that Title II does not provide for punitive damages), with Dadian
v. Village of Wilmette, No. 98 C 3731, 1999 WL 299887, at *3 (N.D. IL. May 4, 1999) (allowing
punitive damages under Title II), and Garrett v. Chicago School Reform Bd. of Trustees, No.

95 C 7341, 1996 WL 411319, at *4 (N.D. Ill. July 19, 1996) (same). Without deciding this issue
right now, the Court holds that Plaintiff's claim for punitive damages will be allowed to stand
because punitive damages are allowed under Section 504 of the Rehabilitation Act and Plaintiff

is not required to separate out his demands for relief in his complaint. See Concerned Tenants


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ELLINOIS Mei «2 aye

EASTERN DIVISION

ANTHONY COTTON,

Plaintiff, Case No. 02 C 0824

v. Magistrate Judge

Martin C. Ashman
MICHAEL SHEAHAN, Sheriff of Cook
County,

ee SS SE SH SH SH

Defendant.

MEMORANDUM OPINION AND ORDER
I. Introduction —

This case comes before the Court on Defendant Sheriff Michael Sheahan’s motion to
dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), motion to strike the
claim for injunctive relief, and motion to strike Plaintiff’s claim for punitive damages under the
Americans with Disabilities Act. For the reasons set forth below, the Court denies the motion to
dismiss in full, grants the motion to strike the claim for injunctive relief, and denies the motion to

strike the claim for punitive damages under the ADA."

Tl. Background

On February 1, 2002, Anthony Cotton filed this action against Sheriff Sheahan in his
official capacity seeking declaratory, compensatory, punitive, and injunctive relief for

discrimination in violation of the Americans with Disabilities Act (Count I) and the

' The parties have consented to have this Court conduct any and all proceedings,
including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(b).

A

j


Rehabilitation Act (Count I). This motion to dismiss followed. The facts, which we must
assume are true for purposes of this motion, are taken from Plaintiff's complaint.

Plaintiff is confined to a wheelchair. In early 2000, Plaintiff was incarcerated at the Cook
County Jail (the “Jail”). Michael Sheahan is the Cook County Sheriff and is in charge of
operating the Jail. Plaintiff is no longer incarcerated at the Jail.

In February of 2000, Plaintiff went to the visiting room of the Jail to visit relatives. In the
visiting room, the inmates are separated from their visitors by glass panels. The prisoners are
provided with permanently affixed stools to sit upon in front of the glass panels to converse with
their visitors. The stools are flat and smooth and lack arms and a back. Because Plaintiff could
not maneuver his wheelchair close enough to the glass panels to hear what was being said to him,
he transferred himself from the wheelchair to the stool. The transfer was difficult for Plaintiff
because there were no arms and no back on the stool for him to balance himself on. When
Plaintiff attempted to transfer himself back to his wheelchair, he lost his balance and fell to the
floor, injuring his hip, back, and left leg. Plaintiff was taken to Cermak Hospital Emergency
Room where he was treated and given medication.

In late February 2000, Plaintiff attempted to take a shower with a shower seat that he had
been given. The seat was equipped with castor-type wheels and Plaintiff was supposed to wheel
himself into and out of the shower. However, because he could not reach the wheels, Plaintiff
was unable to propel himself very well. After entering the shower, the water suddenly became

very hot. Plaintiff was unable to move out of the water stream quickly and his leg was burned.”

2 Plaintiff does not state whether he sought medical attention for the burn.

-2-