Jett v. Brookhart

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL JETT, )

)

Plaintiff, )

)

vs. ) Case No. 3:17-CV-517-MAB

)

DEE DEE BROOKHART and )

ROB JEFFREYS, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on the amended motion for summary

judgment filed by Defendants Dee Dee Brookhart and Rob Jeffreys (Doc. 77). For the

reasons explained below, Defendants’ motion for summary judgment is granted in part

and denied in part.

BACKGROUND

Plaintiff Michael Jett originally filed this action on May 16, 2017 pursuant to 42

U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act

(“Rehab Act”) for deprivations of his rights at Lawrence Correctional Center (Doc. 1).

Given deficiencies in the complaint and Plaintiff’s representation that he is severely

dyslexic and unable to read or write, counsel was immediately recruited for him (Doc. 7).

Counsel then filed an amended complaint on August 23, 2017, which remains the

operative complaint in this matter (Doc. 12).

The amended complaint alleged that Plaintiff was denied access to programs,

services, and activities at Lawrence because prison officials failed or refused to provide

him with accommodations for his dyslexia (Doc. 12). More specifically, Plaintiff alleged

that he needed but did not receive a qualified and appropriate ADA attendant and/or

other auxiliary aids (such as text-to speech software or a dictation machine) to assist him

with reading and writing. He also needed but did not receive reasonable

accommodations while taking the Test of Adult Basic Education (“TABE”). He alleged

that the inmate channel, which only provides information in a written format and not an

auditory format, was inaccessible. Finally, he alleged that prison officials refused to

transfer him to a different facility that could and would provide him with the

accommodations that he needed.

According to Plaintiff, without accommodations, his access to legal and other

written materials in the law library, during disciplinary hearings, classification reviews,

medical appointments, and religious services was limited. His access to critical

announcements from the prison regarding things such as counts, mealtimes, medical and

legal call-outs, and recreation time, was limited. His communication with his family,

friends, and attorneys was restricted. His access to the grievance process was restricted.

His access to jobs was restricted. And his access to certain educational and vocational

programs was restricted because they require a threshold score on the TABE, which

Plaintiff was unable to achieve without reasonable accommodations that prison officials

refused to provide him.

Following a threshold review of the complaint pursuant to 28 U.S.C. § 1915A,

Plaintiff was permitted to proceed on the following claims:

Count 1: Failure to accommodate Plaintiff’s dyslexia in violation of Title II

of the Americans with Disabilities Act against the Director of the IDOC.1 2

Count 2: Failure to accommodate Plaintiff’s dyslexia in violation of the

Rehabilitation Act against the Director of the IDOC.

Count 5: Fourteenth Amendment Equal Protection claim against Defendant

Dee Dee Brookhart for denying Plaintiff access to educational and

vocational programs without any rational basis for doing so.

(Doc. 17).

Defendants filed their motion for summary judgment on the merits of Plaintiff’s

claims and memorandum in support in June 2019 (Doc. 63), to which Plaintiff filed his

response in opposition (Doc. 69). Defendants then realized that they had inadvertently

filed an unfinished draft of their memorandum (Doc. 64). They were permitted to file an

amended motion for summary judgment, which they did in December 2019 (Docs, 77,

78). Plaintiff filed a response in opposition (Doc. 82), along with a statement of additional,

1 Defendant Rob Jeffreys is the current Director of the IDOC.

2 The amended complaint pertains only to events and issues at Lawrence (see Doc. 12). However, in their

summary judgment briefing, Defendants and Plaintiff present facts and arguments regarding

accommodations provided not only at Lawrence, but also at Taylorville (where Plaintiff was transferred in

December 2017), Pinckneyville (where Plaintiff was transferred in May 2018), and Big Muddy River (where

Plaintiff was transferred in May 2019) (Docs. 78, 82, 82-1, 83, 86). (The IDOC’s online inmate locator

indicates that Plaintiff is currently incarcerated at Dixon.) Any claims that arose out of Plaintiff’s time at

Taylorville, Pinckneyville, or Big Muddy River are not properly before the Court. Plaintiff never sought to

amend his complaint to expand the scope of this lawsuit by adding allegations regarding events at three

additional facilities. And even if he had, it is questionable whether the Court would have permitted such

an amendment. First, litigating claims involving four different facilities together in one lawsuit is

potentially unwieldy. Second, any claim against Big Muddy did not arise until this case had already been

pending for two years and discovery was about to close. Finally, there are no indications or assurances that

any claim regarding Plaintiff’s time at Taylorville, Pinckneyville, and Big Muddy River is fully exhausted.

Consequently, the Court will consider only Plaintiff’s claim pleaded in the amended complaint regarding

his time at Lawrence.

undisputed material facts (Doc. 82-1). Defendants filed a reply in support of their motion

for summary judgment (Doc. 83), and then at the direction of the Court, a response to

Plaintiff’s statement of additional facts (Doc. 86).

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Michael Jett, is an inmate within the IDOC. All of the allegations in the

complaint pertain to his time at Lawrence Correctional Center (“Lawrence”) (Doc. 12),

where he was housed from April 9, 2013 to December 13, 2017 (Doc. 78-3). Plaintiff

testified that he was initially diagnosed with dyslexia by a school psychiatrist in first

grade (Doc. 78-1, p. 19). As an adult, he was diagnosed again with severe dyslexia in 1999

by the Illinois Department of Human Services, after completing testing administered by

the agency (Doc. 78-1, pp. 19, 20; see also Doc. 82-11).

Plaintiff testified that his dyslexia affects both his visual and auditory processing

and he is unable to read and write (Doc. 78-1, pp. 20–22; Doc. 82, p. 2). He further testified

that he attended grade school at a special school for students with learning disabilities

(Doc. 78-1, pp. 9–10). He then attended Geneva High School, where everything was given

to him on tape or verbally read to him, and he was allowed to give verbal answers (Doc.

78-1, p. 10; Doc. 82, p. 2). With the assistance, he was able to graduate in 1976, averaging

grades from A to C (Doc. 78-1, p. 9; Doc. 82, p. 2). After finishing high school, Plaintiff

attended college classes at Waubonsee Community College, but he is not sure he even

earned any class credits (Doc. 78-1, p. 11; Doc. 82, p. 2).

As an adult, Plaintiff worked various jobs, including tool and die, press mill

operation, and as a truck driver moving heavy equipment (Doc. 78-1, pp. 11–13; Doc. 82,

p. 2). During his first year at Lawrence, Plaintiff worked as an inmate porter for

approximately six months (Doc. 78-1, p. 42; Doc. 82, p. 3). Defendants did not ask if any

these jobs required Plaintiff to do any reading or writing (see Doc. 78-1). Defendants also

point out that for the job moving heavy equipment, Plaintiff was required to and did

obtain his CDL license (Doc. 78-1, p. 13, Doc. 82, pp. 2–3). But Defendants did not inquire

as to whether he was provided any accommodations during the testing for the CDL

license (see Doc. 78-1, p. 13).

Plaintiff testified that he needed assistance with reading and writing in prison in

order to read “whatever is posted on the inmate TV channel,” to read rules that are posted

in the prison, to read books in the law library, to read mail, to write to family, to write

grievances, and to take the Test of Adult Basic Education (“TABE”) (Doc. 78-1, pp, 22, 23,

24, 29–50, 36, 43). The records submitted to the Court indicate that in July 2013, Plaintiff

showed his counselor a letter from the Illinois Department of Human Services indicating

that Plaintiff had severe dyslexia, and he requested an ADA attendant to assist him with

personal and legal correspondence (Doc. 82-2, p. 19; see also Doc. 78-1, p. 7). An ADA

attendant is a fellow inmate assigned to live in the same cell (see Doc. 78-1, p. 32; Doc. 82-

6, pp. 32–33). Plaintiff again discussed “his issues regarding dyslexia and process for

ADA assistance” with his counselor on September 4th (Doc. 82-2, p. 19). On March 18,

2014, Plaintiff followed up with his counselor on his request for an ADA attendant (Id. at

p. 18). Plaintiff told his counselor that he talked to a social worker and also sent several

requests to healthcare and to the ADA Coordinator (Id.). On April 4th, Plaintiff talked to

Anne Tredway (who appears to have been the Assistant Warden and ADA coordinator

at Lawrence at that time) about his ADA request; Tredway noted that Plaintiff did not

“have a permit for ADA will refer him to Dr. Coe to address his ADA needs” (Id.).

Five days later, on April 9, 2014, Dr. John Coe issued Plaintiff a medical permit

(Doc. 78-7). On the permit, the box labeled “New Order” is check-marked (Id.). There is a

section where “Medical” or “ADA” can be check-marked, and the “ADA” box was

chosen (Id.). Then there is a list of items where the medical provider is supposed to

indicate what type of permit is being issued, e.g., a permit for a cane or a walker, a slow

walk permit, etc. (see id.). Dr. Coe check-marked the box labeled “Other ADA,” next to

which he wrote “Attendant to help with reading and writing” (Id.). The permit was

effective immediately and the expiration date was listed as “indefinite” (Id.).

It is clear that multiple ADA attendants were assigned to help Plaintiff with

reading and writing at Lawrence (Doc. 78-1, pp. 27–28; see also Doc. 82-2, pp. 8, 9, 13, 16

(noting instances where Plaintiff asked for new attendant). Plaintiff testified that he had

three different attendants at Lawrence (Doc. 78-1, pp. 27–28). However, there is no

evidence regarding the time frame each attendant was assigned to him or the total

amount of time Plaintiff had an ADA attendant (see Docs. 78, 82, 82-1, 83, 86). They all

asked to be removed from the position or Plaintiff asked to have them removed (Id. at pp.

27–30; Doc. 78-3). Plaintiff testified that none of them realized “there was [going to be] so

much reading and writing involved with me,” they all had “a tough time” reading and

writing, and they felt they were not qualified to be his ADA attendant (Doc. 78-1, pp. 29–

30). He also claimed all three of his attendants at Lawrence “mentally, verbally, physically

abuse[d him]” and “tr[ied] to extract money from [him] for commissary” (Id. at p. 31).

Despite Dr. Coe’s indication that the permit was “indefinite,” Defendants contend

that “medical permits are only permitted to last for a period of one year before the inmate

must be seen again to determine if the permit is still necessary” and Plaintiff’s permit was

never renewed (Doc. 78, p. 3; Doc. 78-3, pp. 1–2). It appears that Plaintiff’s ADA attendant

was taken away some time after April 1, 2016 (see Doc. 82-2, p. 8 (notes from April 14,

2016 and May 2, 2016)). By that time, Dee Dee Brookhart was the Assistant Warden of

Programs and the ADA Coordinator at Lawrence (Doc. 82-6, p. 5). The cumulative

counseling summary indicates that Plaintiff asked Deanna Brookhart on May 2nd “why

his ADA attendant was removed” and Brookhart told him that “Per IDOC Legal we do

not assign ADA attendants due to learning disabilities.” (Doc. 82-2, p. 8; see id. p. 7).

Plaintiff testified that Dr. Coe “pull[ed] it back” but then corrected himself and said “[i]t

was Warden Tredway. . . . Warden Tredway wanted it pulled back, and then she turned

around and reissued it—or they reissued it.” (Doc. 78-1, p. 27).

The records indicate that another medical permit was issued to Plaintiff on

December 21, 2016 (Doc. 82-3). The box labeled “Other ADA” was check-marked and next

to it was written “attendant to read and write for Inmate Jett” (Id.). The permit was

effective immediately and the expiration date was listed as “indef” (Id.), which the Court

presumes to mean “indefinite.” There is no evidence as to whether another attendant was

assigned to Plaintiff after this permit was issued (see Docs. 78, 82, 86).3

3 Plaintiff alleges in the complaint that as of August 23, 2017, no ADA attendant had been assigned to him

despite his renewed medical permit for an attendant (Doc. 12, p. 9).

Defendants contend there are a variety of ways that an inmate who is unable to

read or write can receive help that do not require an ADA attendant to live in their cell

(Doc. 78-3). For example, the inmate can go to the dayroom and ask another offender for

assistance, ask his counselor to read something to him, and/or visit the law library and

ask a law clerk to read or write something for him (Doc. 78-3). However, Plaintiff testified

that asking a counselor to read attorney/client privileged documentation in a case against

the IDOC is not an option (Doc. 78-1, pp. 34–35). He further testified that the law clerks

at the law library refuse to help him because it is a “self-help center” (Doc. 78-1, pp. 35–

36, 40). And when asked “Have you found that other people are willing to help you write

these grievances?”, Plaintiff responded, “Not very many people are willing to help me.”

(Doc. 78-1, p. 38). He claimed there was “maybe a handful. Maybe five” inmates across

all of the institutions he was housed at who helped him write grievances (Doc. 78-1, pp.

39–40).

Despite Plaintiff’s testimony that he was unable to use the law library without an

ADA attendant (Doc. 78-1, pp. ), the records demonstrate that he nevertheless went to the

law library 89 times (an average of three to four times per month) during a two year

stretch from December 2015 to December 2017 (Doc. 78-3; Doc. 78-8). Additionally, while

Plaintiff testified that he went for stretches with no ADA attendant at Lawrence and had

trouble finding other people to write for him, the records demonstrate that he submitted

well over 100 grievances at the Lawrence and sent 151 to the ARB in the span of

approximately four years (see Doc. 78-2; Doc. 82-2). In fact, he submitted so many

grievance at Lawrence, prison officials talked to him on a number of occasions about his

misuse and abuse of the grievance process (Doc. 82-2, pp. 5, 6). He also submitted dozens

upon dozens of written requests at Lawrence for various things (see Doc. 82-2).

As it pertains to the TABE, the evidence is murky as to whether Plaintiff was

required to take the test, when he took it, what his score was, and the consequences of

not achieving a higher score. Defendant Brookhart asserts that Plaintiff was not required

to take the TABE due to the fact that he already had a high school diploma and completed

some college classes (Doc. 78, p. 4; Doc. 78-3). However, Plaintiff denied that was true

and submitted an Administrative Directive that provides inmates “shall” take a

standardized academic achievement test—which is presumably the TABE—when they

arrive at a facility in order to determine their academic achievement level (Doc. 82-10, p.

3). See also 20 ILL. ADMIN. CODE § 405.50. The directive further provides, however, that if

the offender scores below a 6.0 grade level, they must attend a minimum of 90

instructional days in an Adult Basic Education program for reading and mathematics,

unless they are exempted (Doc. 82-10, p. 3) (emphasis added). See also 20 ILL. ADMIN. CODE

§ 405.50. The cumulative counseling summary indicates that Plaintiff received such an

exemption at Lawrence (Doc. 82-2, pp. 13, 14, 18; see also Doc. 78-1, p. 41).

Plaintiff testified that he never took the TABE test at Lawrence (Doc. 78-1, p. 41).

But Plaintiff’s attorney and defense counsel both assert that he did take the TABE at

Lawrence in 2013 (Doc. 78, p. 4; Doc. 82, p. 6; Doc. 82-1, p. 5). They do not, however, agree

on his score. Defendants claims he scored a 4.4 (Doc. 78, p. 4; Doc. 78-3; see also Doc. 78-

4), while his attorney says he scored a 1.0 (Doc. 82, p. 6; Doc. 82-1, p. 5). A note in the

cumulative counseling summary from July 9, 2013 indicates that Plaintiff’s TABE score

was 1.0, but it does not indicate when or where Plaintiff took the test (Doc. 82-2, p. 19).

Neither party produced any actual testing or academic records from Lawrence regarding

Plaintiff’s TABE score (see Docs. 78, 82, 82-1, 83, 86).

According to Plaintiff, he suffered negative effects from not being able to retake

the TABE with adequate accommodations (Doc. 78-1, p. 12). He claimed his low TABE

score meant that he could not enroll in vocational or college classes (Id.). His assertion is

corroborated to an extent by a note in the cumulative counseling summary from an

associate dean at Lakeland College (Doc. 82-2, p. 15). The note explains in order for an

inmate to enroll in college programs offered at Lawrence through Lakeland College, the

inmate must achieve “the minimum TABE score for the particular college program (Id.).4

However, that same note also states that an inmate would be referred to take the TABE if

all other requirements were met, including proof of a high school diploma or GED, there

was a space open in the program, and there was no waiting list (Id.). In other words, if a

minimum TABE score was the only thing standing in the way of an inmate being able to

enroll in college, then he would be referred to take the test (Id.). The note goes on to state

that there was no space in any of the programs and Plaintiff would have to be placed on

a waitlist, and therefore the dean was not going to refer him to retake the TABE test (Id.).

A different note in the cumulative counseling summary indicates that vocational classes

at the institution were limited and there was a very lengthy wait list (Doc. 82-1, p. 5).

Plaintiff was told that when he is enrolled in the class, he would be provided an ADA

4 The parties did not submit any evidence as to what a minimum TABE score might be, but presumably it

is something higher than a 1.0 or a 4.4.

attendant (Id.). Dee Dee Brookhart testified that she does not make decisions regarding

an inmate’s placement into education programs (Doc. 78-3, p. 3).

Plaintiff also testified in a conclusory fashion that his low TABE score prevented

him from getting “a good-paying job” (Doc. 78-1, p. 45). Just prior to that testimony,

however, he testified that his TABE score did not hold him back from any jobs and a

woman named Ms. Woods had told him, “Mr. Jett, we're just going to waive the TABE

test for you, and you can get any job in the house.” (Id. at p. 41). Furthermore, the

administrative directive that he submitted appears to contradict his assertion (Doc. 82-10,

p. 4). The directive indicates that if the warden exempts an inmate from the adult basic

education requirements then their job pay is not restricted (Doc. 82-10, p. 4), and the

cumulative counseling summary indicates that Plaintiff received such an exemption at

Lawrence (Doc. 82-2, pp. 13, 14, 18; see also Doc. 78-1, p. 41). The cumulative counseling

summary demonstrates that Plaintiff applied for a multitude of jobs at Lawrence,

including as a porter and for positions in the commissary, print shop, clothing, laundry,

inside grounds (Doc. 82-2). Dee Dee Brookhart testified that she does not make decisions

regarding an inmate’s placement into work programs (Doc. 78-3, p. 3).

DISCUSSION

Summary judgment is proper when the moving party “shows that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a). “Factual disputes are genuine only if there is sufficient

evidence for a reasonable jury to return a verdict in favor of the non-moving party on the

evidence presented, and they are material only if their resolution might change the suit’s

outcome under the governing law.” Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir.

2013) (citation and internal quotation marks omitted). In deciding a motion for summary

judgment, the court’s role is not to determine the truth of the matter, and the court may

not “choose between competing inferences or balance the relative weight of conflicting

evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hansen v. Fincantieri

Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014)(citations omitted); Doe v. R.R. Donnelley

& Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). Instead, “it must view all the evidence in the

record in the light most favorable to the non-moving party and resolve all factual disputes

in favor of the non-moving party.” Hansen, 763 F.3d at 836.

I. Defendants’ Admissions

In April 2018, Plaintiff served Defendants with requests for admission asking

Defendants to admit the following pertinent things:

• Michael Jett has been diagnosed with dyslexia by the IDOC.

• Michael Jett is dyslexic to an extent that qualifies him as an “individual

with a disability” pursuant to the Americans with Disabilities Act.

• A reasonable accommodation for a person with dyslexia is an attendant

to assist with reading and writing, a Dictaphone, an audio TABE Test,

and an audio calculator.

• Michael Jett is entitled to receive an attendant to read and write for him

under the ADA.

(Doc. 41; Doc. 82-4, p. 9).

Defendants did not respond to the requests for admission within thirty days as

required by Rule 36(a)(3) (Doc. 39; Doc. 40; Doc. 86, pp. 2–3). FED. R. CIV. P. 36(a)(3). Their

failure to respond is deemed an admission. FED. R. CIV. P. 36(a)(3); see also, e.g., Fabriko

Acquisition Corp. v. Prokos, 536 F.3d 605, 607 (7th Cir. 2008). In July 2018, Defendants

sought to withdraw their admissions (Docs. 39–41), but their request was summarily

denied by Magistrate Judge Donald Wilkerson (Doc. 43). Consequently, under Rule 36(b),

the matters in the requests to admit are conclusively established. FED. R. CIV. P. 36(b) (“A

matter admitted under this rule is conclusively established, unless the court, on motion,

permits the admission to be withdrawn or amended.”).

II. ADA/REHAB ACT CLAIMS (Counts 1 and 2)

Both the ADA and the Rehab Act prohibit discrimination against the disabled. CTL

ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014); 42 U.S.C. §12132; 29

U.S.C. § 794(a). Title II of the ADA mandates that “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of the

Rehab Act similarly provides “No otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his disability, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity.” 29 U.S.C. § 794(a). Because the two statutes, as well as the federal

regulations implementing them, are “materially identical,” they are interpreted and

applied in a consistent manner. A.H. by Holzmueller v. Illinois High Sch. Ass'n, 881 F.3d

587, 592 (7th Cir. 2018) (citing Steimel v. Wernert, 823 F.3d 902, 909 (7th Cir. 2016)).5 For

5 The only notable difference is that the Rehab Act includes as an additional requirement the receipt of

federal funds, but this element is incontrovertible because all states accept it for their prisons. Wagoner v.

Lemmon, 778 F.3d 586, 592 (7th Cir. 2015); Jaros v. Illinois Dep't of Corr., 685 F.3d 667, 671–72 (7th Cir. 2012).

the sake of ease, the Court refers only to the ADA throughout the course of the analysis.

To succeed on his claim of disability discrimination, Plaintiff must prove three

basic elements: (1) he was a qualified individual with a disability; (2) he was excluded

from or denied the benefits of the services, programs, or activities of a public entity or

otherwise subjected to discrimination; and (3) the exclusion, denial of benefits, or

discrimination was because of his disability. E.g., Lacy v. Cook Cty., Illinois, 897 F.3d 847,

853 (7th Cir. 2018) (citation omitted). In order to receive compensatory damages, Plaintiff

must also show deliberate indifference, meaning defendants “knew that harm to a

federally protected right was substantially likely and . . . failed to act on that likelihood.”

Hildreth v. Butler, 960 F.3d 420, 431 (7th Cir. 2020) (quoting Lacy, 897 F.3d at 862).

It is well-established that the IDOC is a public entity within the meaning of the

ADA and has always been subject to the nondiscrimination and accessibility

requirements of Title II and the Rehab Act. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S.

206, 210 (1998) (per curiam). And Defendants do not dispute that the things at issue—e.g.,

the law library, the grievance process, the TABE, written communication with family and

friends, and institutional announcements—constitute “service[s], program[s], or

activit[ies]” within the meaning of the ADA (see Doc. 85). 28 C.F.R. § 35.102(a) (The ADA

applies to “all services, programs, and activities provided or made available by public

entities.”); 28 C.F.R. § Pt. 35, App. B (2011) (“[T]itle II applies to anything a public entity

does.”). Rather, they argue that Plaintiff’s ADA/Rehab Act claims must fail because he

was not disabled, or in the event that he was disabled, he was provided reasonable

accommodations (Docs. 78, 83).

A. “Disabled” as Defined by ADA

Defendants argue that Plaintiff’s dyslexia does not constitute a disability under the

ADA (Doc. 78, pp. 9–10). Specifically, Defendants contend that Plaintiff’s

accomplishments prior to incarceration and his ability to obtain and complete jobs while

incarcerated show that his major life activities were not substantially limited by his

dyslexia (Id.). The Court disagrees.

The ADA defines “disability” as “A) a physical or mental impairment that

substantially limits one or more major life activities of [an] individual; B) a record of such

an impairment; or C) being regarded as having such impairment.” 42 U.S.C. § 12102(1).

The federal regulations interpreting the ADA indicate that a “specific learning disability”

can constitute a mental impairment, and the regulations explicitly mention dyslexia as an

example of a mental impairment. 28 C.F.R. § 35.108(b)(1)(ii), (b)(2). Major life activities

include reading, writing, learning, and communicating. Id. at § 35.108(c)(1)(i). And “[a]n

impairment does not need to prevent, or significantly or severely restrict, the individual

from performing a major life activity in order to be considered substantially limiting.” Id.

at § 35.108(d)(1)(v).

Here, there is evidence from which a reasonable jury could conclude that Plaintiff’s

dyslexia is a disability under subsection (A) or (B). Plaintiff has been clinically diagnosed

with severe dyslexia (Doc. 82-10). He testified he is unable to read or write and he has

received accommodations for his dyslexia throughout the course of his entire life. For

example, he attended a special school for grade school, he received assistance with

reading and writing in high school, and as an adult he received assistance through the

Illinois Department of Human Services (Doc. 78-1). The fact that he held jobs prior to and

during his incarceration does not necessarily mean his dyslexia was not substantially

limiting, especially when none of the jobs he held—construction, making tools and die,

operating a press mill, moving heavy equipment, inmate porter, and kitchen worker—

seem to involve much reading or writing, and Defendants did not provide any evidence

to the contrary (see Docs. 78, 83, 86). Furthermore, as previously explained, Defendants

admitted that Plaintiff’s dyslexia constitutes a disability under the ADA. See supra, pp.11-

12.

For these reasons, Defendants are not entitled to summary judgment on the issue

of whether Plaintiff’s dyslexia constituted an disability under the ADA and the Rehab

Act.

B. Failure to Reasonably Accommodate

Defendants next argue that even if Plaintiff was disabled, they provided him with

reasonable accommodations for his disability (Doc. 78, pp. 10–14). Public entities are

obligated to provide “reasonable modifications” for the disabled to ensure they have

meaningful access to the benefits of the programs, services, and activities that such

entities provide. 42 U.S.C. § 12182(b)(2)(A)(ii) (“[D]iscrimination includes . . . a failure to

make reasonable modifications in policies, practices, or procedures . . . .”); 28 C.F.R. §

35.130(b)(7)(i) (“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.”).

The regulations pertinent to this lawsuit provide that “[a] public entity shall take

appropriate steps to ensure that communications with . . . participants . . . with disabilities

are as effective as communications with others.” 28 C.F.R § 35.160(a)(1). A public entity

is required to “furnish appropriate auxiliary aids and services where necessary to afford”

disabled individuals “an equal opportunity to participate in, and enjoy the benefits of”

its services, programs, and activities. Id. at § 35.160(b)(1).

The type of auxiliary aid or service necessary to ensure effective

communication will vary in accordance with the method of communication

used by the individual; the nature, length, and complexity of the

communication involved; and the context in which the communication is

taking place. In determining what types of auxiliary aids and services are

necessary, a public entity shall give primary consideration to the requests

of individuals with disabilities. In order to be effective, auxiliary aids and

services must be provided in accessible formats, in a timely manner, and in

such a way as to protect the privacy and independence of the individual

with a disability.

Id. at § 35.160(b)(2).

Ultimately, “[w]hether a requested accommodation is reasonable or not is a highly

fact-specific inquiry and requires balancing the needs of the parties.” Oconomowoc

Residential Programs v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002) (citation

omitted). See also 1 AMERICANS WITH DISABILITIES: PRACTICE & COMPLIANCE MANUAL, §

2:88. In the prison context, whether accommodations are reasonable must be judged “in

light of the overall institutional requirements,” including “[s]ecurity concerns, safety

concerns, and administrative exigencies.” Hildreth v. Butler, 960 F.3d 420, 431 (7th Cir.

2020) (quoting Love v. Westville Correctional Center, 103 F.3d 558, 561 (7th Cir. 1996)). “[T]he

three key elements of a reasonable accommodation [are] ‘reasonable,’ ‘necessary,’ and

‘equal opportunity.’” Oconomowoc Residential Programs, 300 F.3d at 784. “An

accommodation is reasonable if it is both efficacious and proportional to the costs to

implement it.” Id. (citation omitted). “An accommodation is unreasonable if it imposes

undue financial or administrative burdens or requires a fundamental alteration in the

nature of the program.” Id. (citation omitted). “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.”’ Id.

(citation omitted). In other words, the plaintiff must show that without the required

accommodation he will be denied meaningful access to the services, programs, or

activities. Id.

To begin with, making Plaintiff solicit gratuitous assistance from other inmates

does not satisfy the prison’s duty to accommodate Plaintiff’s disability. Cf. 28 C.F.R §

35.160(c)(1), (2) (providing that a public entity cannot require a disabled individual to

bring another individual with them to facilitate communication and cannot rely on an

adult accompanying the disabled individual to facilitate communication except in an

emergency or when all parties agree to it). Defendants also do not provide any

explanation or legal authority as to how or why relying on his counselor for all of his

reading and writing needs might constitute an acceptable accommodation under the

ADA (see Docs. 78, 83, 86). As Plaintiff testified, there are obvious problems with relying

on his counselors for help in reading and writing items related to legal action against the

IDOC (Doc. 78-1, pp. 34–35).

With respect to the ADA attendant, Defendants admitted this was a reasonable

accommodation and Plaintiff was entitled to receive an attendant. There is evidence

Plaintiff repeatedly asked for an attendant and nine months went by before he was

referred to a doctor for the medical permit he needed in order to receive the

accommodation. He received the necessary permit in April 2014, but it is unclear when

an attendant was actually assigned to him; entries in the cumulative counseling summary

suggest it took several more months (see Doc. 82-2, p. 17). Defendants did not offer any

explanation for the delay (see Docs. 78, 83, 86). See 28 C.F.R § 35.160(b)(2) (“In order to be

effective, auxiliary aids and services must be provided . . . in a timely manner . . . .”).

Defendants admit there were other gaps in time when Plaintiff did not have an ADA

attendant assigned to him (Doc. 86, p. 22; see also Doc. 82-2), although the precise lengths

of these gaps is unknown. Plaintiff also testified that none of the ADA attendants that

were assigned to him were qualified or properly trained to assist him with reading and

writing. And by April 2016, Plaintiff’s attendant was taken away and it appears that he

was left without any accommodations whatsoever.

Defendants also admitted that a Dictaphone, an audio TABE Test, and an audio

calculator were reasonable accommodations, but it is undisputed that none of these were

provided to Plaintiff at Lawrence.

Furthermore, while the frequency of Plaintiff’s visits to the law library and his

prolific grievance-filing cast some doubt on whether accommodations were actually

necessary to provide Plaintiff with meaningful access to the services, programs, or

activities at issue, standing alone, it is not enough to entitle Defendant Jeffreys to

summary judgment. To begin, Defendants admitted and it has been conclusively

established that, irrespective of Plaintiff’s visits to the law library and the volume of

grievances he submitted, an ADA attendant was a reasonable accommodation and

Plaintiff was entitled to receive an attendant. Furthermore, the simple fact that Plaintiff

went to the law library often and submitted a high volume of grievances does not

necessarily mean that he was able to meaningfully access the law library and the

grievance process. For example, Plaintiff testified that he could not read and when he

went to the library, he looked at the books and did his best to decipher what they said

(Doc. 78-1, pp. 49–50). So he might have gone to the library, but it remains in dispute

whether he was able to gain any benefit from the books and materials available in the

library. Plaintiff also testified he was unable to draft grievances alone without any

assistance, and Defendants did not put forth any competent evidence to counter his

testimony. Even assuming Plaintiff did write the grievances himself, there is no evidence

that the content sufficiently communicated his issues to prison officials or that he was

able to figure out what the responses said.

In sum, Defendants’ admissions, the evidence in the record, as well as facts that

are conspicuously missing from the record, collectively establish a material issue of fact

as to whether Plaintiff was provided with reasonable accommodations at Lawrence and

prevent summary judgment for Defendant Jeffreys on the merits of Plaintiff’s ADA and

Rehab Act claims.

III. EQUAL PROTECTION CLAIM (Count 5)

Plaintiff is proceeding in Count 5 on a claim that Defendant Dee Dee Brookhart

violated the Fourteenth Amendment Equal Protection clause by denying him access to

educational and vocational programs without any rational basis for doing so (Doc. 12,

Doc. 17). Considering Plaintiff’s equal protection claim requires shifting gears mentally

and thinking differently than the ADA claim required. The Fourteenth Amendment

offers significantly less protection to disabled individuals than the ADA, and conduct

that is illegal under the ADA might still be constitutionally permissible under the

Fourteenth Amendment. Stevens v. Illinois Dep't of Transp., 210 F.3d 732, 738 (7th Cir.

2000); See also Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 372–73 (2001)

(providing examples of ADA-imposed restrictions that far exceed those of the Fourteenth

Amendment’s Equal Protection Clause).

The Equal Protection Clause of the Fourteenth Amendment protects against

government action that discriminates on the basis of membership in a protected class or

infringes on a fundamental right, and it also protects against so-called “class-of-one”

discrimination in which the government arbitrarily and irrationally singles out one

person for discriminatory treatment. E.g., Reget v. City of La Crosse, 595 F.3d 691, 695 (7th

Cir. 2010) (citations omitted). In an abundance of caution, Plaintiff was permitted to

proceed on his Equal Protection claim against Brookhart under the theory that he was

treated differently based on his membership in a class as well as the “class of one” theory

(Doc. 17, p. 10).

For an equal-protection claim based on membership in this class, the relevant

standard of review is rational basis review. Garrett, 531 U.S. at 367; City of Cleburne v.

Cleburne Living Center, 473 U.S. 432, 446 (1985); Stevens, 210 F.3d at 737–38. “Rational basis

review requires the plaintiff to prove that (1) the state actor intentionally treated [him]

differently from others similarly situated; (2) this difference in treatment was caused by

[his] membership in the class to which [he] belongs; and (3) this different treatment was

not rationally related to a legitimate state interest.” Srail v. Vill. of Lisle, Ill., 588 F.3d 940,

943 (7th Cir. 2009) (citing Smith v. City of Chicago, 457 F.3d 643, 650–51 (7th Cir. 2006)).

Proceeding on a “class of one” equal protection claim means, “for practical purposes,”

that the plaintiff “need not demonstrate the second element of an equal protection

challenge.” Srail, 588 F.3d at 940. See also Williamson v. Curran, 714 F.3d 432, 449 (7th Cir.

2013) (“[A] class-of-one equal protection claim . . . at a minimum would require proof

that the defendants intentionally treated [plaintiff] differently from others situated

similarly to her for no rational reason.”).6 That means for either type of equal protection

claim, Plaintiff must prove that the disparate treatment he was subjected to was not

rationally related to a legitimate state interest. “This deferential standard of review is a

notoriously ‘heavy legal lift for the challenger[ ].’” Monarch Beverage Co. v. Cook, 861 F.3d

678, 681 (7th Cir. 2017) (quoting Indiana Petroleum Marketers & Convenience Store Ass'n v.

Cook, 808 F.3d 318, 322 (7th Cir. 2015). Accord Srail, 588 F.3d at 946 (rational basis “is an

onerous test to overcome”); Smith, 457 F.3d at 652 (rational basis is “a lenient standard”).

Under the rational basis standard, states may treat disabled individuals differently

or refuse to make accommodations for them so long as “there is a rational relationship

6 It remains unresolved in the Seventh Circuit whether the plaintiff in a “class of one” claim must also

demonstrate that the discriminatory treatment was based on improper motive, hostile intent, or personal

animus. Chicago Studio Rental, Inc. v. Illinois Dep't of Commerce, 940 F.3d 971, 979 (7th Cir. 2019) (citing Del

Marcelle v. Brown Cty. Corp., 680 F.3d 887(7th Cir. 2012). See also Brunson v. Murray, 843 F.3d 698, 706 (7th

Cir. 2016) (explaining the doctrinal disagreement that occurred in Del Marcelle and remains unresolved).

between the disparity of treatment and some legitimate governmental purpose.”

Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 282 (7th Cir. 2003) (citing

Garrett, 531 U.S. at 367) (“States are not required by the Fourteenth Amendment to make

special accommodations for the disabled, so long as their actions toward such individuals

are rational.”). The state’s actions have “a strong presumption of validity.” Indiana

Petroleum Marketers, 808 F.3d at 322 (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307,

314–15 (1993)). Accord Stevens, 210 F.3d at 738 (“[I]t is presumed that distinctions made

by the State that are based on disability are rational and legitimate.”) And “[t]he

government need not have articulated a reason for the challenged action at the time the

decision was made.” Smith, 457 F.3d at 652 (citing Garrett, 531 U.S. at 367). It can “defend

the rationality of its action on any ground it can muster . . . . ” Smith, 457 F.3d at 652. The

burden is on the plaintiff “to eliminate any reasonably conceivable state of facts that could

provide a rational basis for the classification.” Srail, 588 F.3d at 946 (quoting Smith, 457

F.3d at 652). Accord Stevens, 210 F.3d at 738 (“The burden rests on the individual to

demonstrate that the government’s claimed purpose is illegitimate or that the means used

to achieve that purpose are irrational.”). In other words, “[a]ll it takes to defeat the

plaintiffs' claim is a conceivable rational basis for the difference in treatment.” D.B. ex rel.

Kurtis B. v. Kopp, 725 F.3d 681, 686–87 (7th Cir. 2013) (citing Heller v. Doe, 509 U.S. 312, 320

(1993); see also Srail, 588 F.3d at 946–47 (“[A]ny rational basis will suffice . . . .”).

Here, the scope of Plaintiff’s Equal Protection claim is limited: he alleges that his

inability to participate in educational and vocational programs was a product of

discrimination by Defendant Brookhart and her refusal to provide him with reasonable

accommodations for his dyslexia (Doc. 12, Doc. 17). According to Plaintiff, his ability to

take college courses or vocational courses offered at Lawrence hinged on his TABE score

(Doc. 12, pp. 7–8, 11–12; see also, e.g., Doc. 82, p. 14). More specifically, he says he needed

to earn an unspecified minimum TABE score in order to take college courses or vocational

courses. In order to achieve that score, he needed to take the TABE with reasonable

accommodations. But Defendant Brookhart refused to give him the opportunity to do so.

Consequently, he says, he could not take any of the college or vocational courses. And he

says, without those courses, he also could not get a higher paying prison job. Plaintiff

further contends that while Defendant Brookhart refused to provide him with reasonable

accommodations in order to access the educational or vocational programs, other

disabled inmates who were, for example, blind or deaf, were given accommodations for

their disabilities (Doc. 82, pp. 21–22; Doc. 82-1, p. 7; Doc. 82-6, pp. 15–16). In other words,

individuals with learning disabilities were treated differently than individuals with

physical disabilities.

However, Plaintiff’s claims are simply not supported by any evidence in the

record. There is nothing aside from Plaintiff’s unadorned and unsupported assertions

that his low TABE score precluded him from taking any educational or vocational classes

(see Doc. 78-1, pp. 45, 46). Rather, the evidence shows that Plaintiff was exempted from

taking the TABE and able to apply for whatever college courses and vocational

programming he wanted (Doc. 78-1, p. 41; Doc. 78-3; Doc. 82-2, pp. 13, 14, 18). See also 20

ILL. ADMIN. CODE § 405.20 (providing offenders may be eligible to enroll in IDOC

vocational education “regardless of test scores” and college vocational programs or

academic degree programs “if they have a verified GED certificate or high school

diploma”). To the extent he was not able to get into any of the classes he applied for, the

evidence in the record suggests only that it was due to high demand and lack of space in

the programs, not his low TABE score. In fact, he was told that if he got off the waitlist at

Lakeland College, he would be referred to retake the TABE if he did not meet the

minimum score requirement. And Defendant Brookhart told Plaintiff that if he got off the

waitlist and enrolled in the vocational programs at the facility, he would be provided an

ADA attendant (Doc. 82-1, p. 5). Finally, despite Plaintiff’s speculation that Defendant

Brookhart determines which inmates attend classes (Doc. 78-1, p. 61), she testified that

once an inmate applied for a class, it was not her decision whether or not he was accepted

to participate in such programming (Doc. 78-3).

Simply put, Defendant Brookhart provided an explanation as to why Plaintiff was

not administered the TABE with accommodations and why he was not able to take any

college or educational courses. Plaintiff offered only his own conjecture to negate her

justification or otherwise show that it was wholly impossible for her actions to relate to a

legitimate government objective (see Doc. 82, pp. 21–22), which is, of course, insufficient

to survive summary judgment. Bass v. Joliet Pub. Sch.Dist. No. 86, 746 F.3d 835, 841 (7th

Cir. 2014) (“Speculation is no substitute for evidence at the summary judgment stage.”);

Stephens v Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (noting that “inferences relying on

mere speculation or conjecture will not suffice”). See also Fares Pawn, LLC v. Ind. Dep't of

Fin. Insts., 755 F.3d 839, 845 (7th Cir. 2014) (“If [the court] can come up with a rational

basis for the challenged action, that will be the end of the matter . . . .”). Defendant

Brookhart is therefore entitled to summary judgment on Plaintiff’s Equal Protection

claim. In light of this ruling, the Court need not reach Defendant Brookhart’s argument

that she was entitled to qualified immunity (see Doc. 78, pp. 15–16).

CONCLUSION

The amended motion for summary judgment filed by Defendants Dee Dee

Brookhart and Rob Jeffreys (Doc. 77) is GRANTED in part and DENIED in part. It is

granted as to Plaintiff’s equal protection claim against Defendant Brookhart (Count 5).

Count 5 and Defendant Brookhart are DISMISSED with prejudice from this matter and

judgment will be entered in her favor at the close of the case. Summary judgment is

denied as to Plaintiff’s claims under the ADA and the Rehabilitation Act (Counts 1 and

2). This matter will proceed to trial on these claims.

IT IS SO ORDERED.

DATED: September 18, 2020

/s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge