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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DORIAN COTLEDGE,

Plaintiff,

v.

THOMAS DART, SHERIFF, et. al,

Defendants.

Case No. 20-cv-2629

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Plaintiff Dorian Cotledge, a prisoner at Cook County Department of Corrections, 

alleges that despite his requests for accommodation, Defendants have not allowed 

him to use his CPAP machine for his sleep apnea in violation of his rights under the 

Americans with Disabilities Act (ADA). Sheriff Thomas Dart and Cook County 

(Defendants) have moved to dismiss for failure to state a claim pursuant to Federal 

Rule of Civil Procedure 12(b)(6). For the reasons explained below, the Court denies

the Rule 12(b)(6) motion [14].

I. Background

Cotledge was processed into the Cook County Department of Corrections 

(CCDOC) on September 22, 2018. (Complaint, Dkt. 1 ¶ 2). Cotledge suffers from sleep 

apnea, a condition which substantially limits his ability to sleep. (Id. ¶ 5). Since 

approximately 2014 Cotledge has required a CPAP machine to sleep. (Id.). Shortly 

after entering the CCDOC Cotledge was provided a CPAP machine at all times, but 

beginning in February 2020 he was not provided the machine for an hour in the 

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morning, and then on or about March 20, 2020, his CPAP machine was removed by 

Defendants. (Id. ¶¶ 6, 7, 11). Without this machine Cotledge is unable to sleep 

through the night, gags, suffers from headaches, and shortness of breath. (Id. ¶¶ 8, 

11). Cotledge has requested in writing for his CPAP machine to be returned and for 

an accommodation in order to be able to sleep but Defendants have refused. (Id. ¶12).

Based on these allegations, Cotledge claims Defendants have violated his rights 

under Section 202 of the Americans with Disabilities Act, 42 U.S.C. §12132.1

II. Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of the case. 

Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). “To survive a motion 

to dismiss under Rule 12(b)(6), the complaint must provide enough factual 

information to state a claim to relief that is plausible on its face and raise a right to 

relief above the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887 

F.3d 329, 333 (7th Cir. 2018) (quotations and citation omitted). See also Fed. R. Civ. 

P. 8(a)(2) (requiring a complaint to contain a “short and plain statement of the claim 

showing that the pleader is entitled to relief.”). A court deciding a Rule 12(b)(6) 

motion accepts plaintiff’s well-pleaded factual allegations as true and draws all 

permissible inferences in plaintiff’s favor. Fortres Grand Corp. v. Warner Bros. Entm't 

Inc., 763 F.3d 696, 700 (7th Cir. 2014). A plaintiff need not plead “detailed factual 

allegations”, but “still must provide more than mere labels and conclusions or a 

formulaic recitation of the elements of a cause of action for her complaint to be 

1 This case is related to case nos. 20-cv-01459 and 20-cv-01381.

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considered adequate under Federal Rule of Civil Procedure 8.” Bell v. City of Chi., 

835 F.3d 736, 738 (7th Cir. 2016) (citation and internal quotation marks omitted).

Dismissal for failure to state a claim is proper “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 558, 127 S. Ct. 1955, 1966 (2007). Deciding the 

plausibility of the claim is “‘a context-specific task that requires the reviewing court 

to draw on its judicial experience and common sense.’” McCauley v. City of Chi., 671 

F.3d 611, 616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 

1937, 1950 (2009)).

III. Analysis

Under Title II of the ADA, “no qualified individual with a disability shall, by 

reason of such disability, be excluded from participation in or be denied the benefits 

of the services, programs, or activities of a public entity, or be subjected to 

discrimination by any such entity.” 42 U.S.C. § 12132. Defendants argue that 

dismissal with prejudice is warranted because Cotledge is not a qualified individual 

with a disability, has not been denied a program, service or activity, does not allege 

any physical injury for purposes of the Prisoner Litigation Reform Act (PLRA), and 

is not entitled to injunctive relief. The Court addresses each argument in turn.

A. Qualified individual with a disability

Defendants first contend that Cotledge failed to allege that he is a qualified 

individual with a disability. The ADA defines “disability” as “(A) a physical or mental 

impairment that substantially limits one or more major life activities of such 

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individual; (B) a record of such an impairment; or (C) being regarded as having such 

an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1).

Defendants acknowledge that sleeping is a major life activity2 but argue that sleep 

apnea is not a disability under the ADA. To support their argument, Defendants rely 

on out-of-circuit summary judgment cases that did not involve sleep apnea. Anderson 

v. Discovery Commc'ns, LLC, 517 F. App'x 190 (4th Cir. 2013), as amended (May 3, 

2013); Ramage v. Rescot Sys. Grp., Inc., 834 F. Supp. 2d 309 (E.D. Pa. 2011) (plaintiff 

did not provide enough evidence that her difficulties sleeping showed substantial 

limitation in sleeping).3 Defendants concede that these cases involve “courts 

weigh[ing] evidence.” (Dkt. 18 at 3). Moreover, in Ramage, the court cited Peter v. 

Lincoln Tech. Inst., Inc., 255 F. Supp. 2d 417 (E.D. Pa. 2002) in which the court found 

plaintiff did create an issue of fact about whether her sleep apnea substantially 

impaired her ability sleep, and recognized that the “ADA requires an individualized, 

2 Major life activities are “[c]aring for oneself, performing manual tasks, seeing, hearing, 

eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, 

learning, reading, concentrating, thinking, communicating, interacting with others, and 

working.” 29 C.F.R. § 1630.2.

3 In their motion and reply brief, Defendants maintain that sleep apnea is not a disability 

under the ADA. Even assuming the cases cited (see Dkt. 18 at 3) are binding on this court, 

which they are not, they do not require dismissal here. In Kolecyck-Yap v. MCI Worldcom, 

Inc., 2001 WL 245531 (N.D. Ill. Mar. 12, 2001), the court recognized that sleep apnea can 

substantially limit major life activities of breathing and sleep but on summary judgment in 

that case, plaintiff did not provide enough evidence to show a substantial limitation. Keyes v. 

Catholic Charities of the Archdiocese of Philadelphia, 415 F. App'x 405 (3d Cir. 2011) was 

also decided on summary judgment and the court found that the evidence did not support 

plaintiff’s claim that his sleep apnea symptoms were severe. Finally, notably, plaintiff in 

Ramage did not have sleep apnea. And the Ramage court did not find as a matter of law that 

sleep apnea is not a disability under the ADA. Rather, the court, on review of the record, did 

not find evidence supporting plaintiff’s claim that her difficulty sleeping was severe enough 

to substantially impair her ability to sleep. 834 F. Supp. 2d at 320-21. 

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case-by-case approach to evaluating whether a plaintiff’s impairment is severe 

enough to constitute a disability.” Id. at 431, 434. The Seventh Circuit has similarly 

stated that the question of whether an individual is disabled is “an individualized 

one, and must be determined on a case-by-case basis.” DePaoli v. Abbott Labs., 140 

F.3d 668, 672 (7th Cir. 1998) (internal citation and quotations omitted); see also 29 

C.F.R. § 1630.2(j) (“The determination of whether an impairment substantially limits 

a major life activity requires an individualized assessment”). The Seventh Circuit 

also acknowledged, in a Section 1983 case, that “sleep apnea can result in death.” 

Orlowski v. Milwaukee Cty., 872 F.3d 417, 423 (7th Cir. 2017).

Accordingly, Cotledge has plausibly alleged that he is qualified individual with a 

disability, and further factual development will reveal the extent to which his 

condition limits one or more major life activities.4 Therefore the Court declines 

Defendants’ invitation to find as a matter of law at this early stage that Cotledge’s 

sleep apnea does not qualify him as an individual with a disability.

B. Denial of the benefit of a service, program, or activity

Defendants argue that Cotledge’s complaint should be dismissed because sleeping 

is not a program or activity of the public entity under the ADA. Defendants rely on 

Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996). However, courts in this district have 

distinguished that case. In Simmons v. Godinez, 2017 WL 3568408 (N.D. Ill. Aug. 16, 

2017), the court relied on United States v. Georgia, 546 U.S. 151 (2006), which was 

decided after Bryant and in which the Supreme Court explained that “the alleged 

4 For this reason, the Court need not address Defendants’ alternative argument at this time 

that Cotledge is not “regarded as” having such an impairment.

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deliberate refusal of prison officials to accommodate [plaintiff’s] disability-related 

needs in such fundamentals as mobility, hygiene, medical care, and virtually all other 

prison programs constituted ‘exclu[sion] from participation in or ... deni[al of] the 

benefits of’ the prison's ‘services, programs, or activities.’” 546 U.S. at 157.

Defendants reference Simmons in their reply brief, but do not acknowledge that the 

court there specifically rejected IDOC’s argument that sleeping is not an activity or 

program under the ADA or Rehabilitation Act, and held that “[b]ecause Plaintiff 

sufficiently alleges that Wexford and IDOC failed to take steps that would allow 

Plaintiff to access a bed...the Court finds that Plaintiff has stated a plausible claim 

under the ADA and Rehabilitation Act at this early stage.” Simmons, 2017 WL 

3568408, at *6.

In another case, Paine ex re. Eilman v. Johnson, 2010 WL 785397, at *8 (N.D. Ill. 

Feb. 26, 2010), the court noted that the Bryant plaintiffs alleged poor treatment or 

medical malpractice, not failure to reasonably accommodate, and “[v]iolations of a 

public entity’s duty to accommodate disabilities can provide a basis for liability under 

Title II of the ADA.” Moreover, since Bryant, the Seventh Circuit has recognized, for 

example, outdoor recreation and meals and showers as programs or activities at a 

prison under the Rehabilitation Act. Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 

2012); Jaros v. Illinois Dep't of Corr., 684 F.3d 667, 672 (7th Cir. 2012).5

5 In addition, Defendants’ reliance on Harper v. Dart for support is not convincing. First,

Harper did not involve sleep apnea. Second, the Harper court was clear that plaintiff there 

“[came] close, but fail[ed], to state a claim under the ADA and the Rehabilitation Act” and “it 

would not have taken much to adequately allege a failure to provide equal access.” 2015 WL 

6407577, at *4 (N.D. Ill. Oct. 21, 2015). Because plaintiff there merely alleged he had “’great 

difficulty’ showering, toileting, and getting into bed,” the court found “[t]hose two words alone 

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Defendants assert that Cotledge does not claim that they have prevented him from 

sleeping during the designated time that all detainees are permitted to sleep. (Dkt. 

14 at 8). But Cotledge’s claim is not about being permitted a “designated time” to 

sleep; it is about not being able to sleep because Defendants failed to provide him 

with a needed accommodation. He alleges that he is unable to sleep in the same way 

as similarly situated non-disabled inmates and experiences shortness of breath, gags,

is unable to sleep through the night, and suffers from headaches without the CPAP 

machine. (Compl. ¶¶8, 9, 11). 

Here, unlike in Bryant, Cotledge does not bring a disguised medical malpractice 

or inadequate medical treatment case. Rather he alleges a failure to accommodate 

his sleep-related disability, giving rise to the permissible inference that such failure 

constituted a denial of the benefits of the prison’s services, programs, or activities.

That is sufficient at this pleading stage.

C. By reason of his disability

Defendants next argue that Cotledge fails to plead denial or discrimination by 

reason of his alleged disability because he does not allege why Defendants removed 

his CPAP machine. First, Defendants’ cases are not convincing because they involve

deliberate indifference claims decided on summary judgment. See Forbes v. Edgar, 

do not explain how [plaintiff] was denied equal access.” Id. Here Cotledge’s complaint alleges 

more than that. He alleges that his sleep apnea substantially limits his ability to sleep and

since 2014 he has required a CPAP machine in order to sleep. (Compl. ¶5). He alleges that 

although he was initially provided a CPAP machine at all times after entering the CCDOC

that changed in February 2020. (Id. ¶¶6, 7). Without the machine he gags, experiences 

shortness of breath, is unable to sleep through the night, and suffers from headaches. (Id. 

¶¶8, 11). He has specifically requested the return of the machine. (Id. ¶12). These allegations 

meet the threshold pleading requirement.

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112 F.3d 262, 267 (7th Cir. 1997); Harrison v. Cty. of Cook, 2011 WL 4036115 (N.D. 

Ill. Sept. 12, 2011). (Defendants also cite to Bryant and Harper again but those cases 

are distinguishable for the reasons already discussed).

Second, although Defendants may have had a good reason for removing the CPAP 

machine, at the pleading stage, the Court takes Cotledge’s allegations as true that he 

was denied accommodation for his disability and as a result was unable to sleep on a 

basis equal to that of non-disabled inmates. (Compl., ¶¶ 8-12). Deciding or accepting

Defendants’ reason for removing the machine at this stage would be inappropriate. 

See Fortres Grand, 763 F.3d at 700; see also Boyce v. Martella, 2014 WL 4947681, at 

*3 (N.D. Ill. Oct. 1, 2014) (court cannot resolve factual disputes on motion to dismiss).

D. Prisoner Litigation Reform Act (PLRA)

Defendants contend that Cotledge does not meet the PLRA standard for a more 

than de minimus physical injury because Cotledge alleges that sleeping without a 

CPAP machine causes him “shortness of breath, gagging, headache, and restless 

night’s sleep” which are not physical injuries. (Dkt. 14 at 12). However, the case law 

cited by Defendants does not support their specific contention here. By contrast, in 

Love v. Godinez, 2018 WL 2096375, at *4 (N.D. Ill. May 7, 2018), for example, the 

court held that plaintiff set forth a sufficient showing on summary judgment that he 

suffered a physical injury from sleep deprivation for purposes of the PLRA. And in

Gurley v. Sheahan, 2009 WL 2178685 (N.D. Ill. July 21, 2009), the court explained 

that it could “think of no reason why sleep deprivation and headaches would not 

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constitute physical injury.” Id. at *7. See also Orlowski, 872 F.3d at 423 (recognizing 

sleep apnea can result in death).

Accordingly Cotledge’s allegations give rise to a plausible inference that he 

suffered de minimus physical injury in order to survive Defendants’ motion to 

dismiss.

E. Injunctive Relief

Finally, Defendants argue that Cotledge fails to state facts sufficient to entitle 

him to injunctive relief. Defendants argue that “shortness of breath and paused 

breathing only rise to de minimis injuries, if injuries at all.” (Dkt. 18 at 15). However, 

drawing permissible inferences in Cotledge’s favor as it must at this point, the Court 

finds that he has plausibly alleged injury: without the CPAP machine, his sleeprelated condition causes him to have shortness of breath, gag, get headaches, and not 

be able to sleep. For similar reasons to the reasoning discussed related to de minimus

physical injury, Cotledge has made a sufficient showing of injury at this pleading 

stage.

IV. Conclusion

For the stated reasons, Defendants’ motion to dismiss [14] is denied.

Dated: December 10, 2020

E N T E R:

MARY M. ROWLAND

United States District Judge

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