Jaros v. Illinois Department of Corrections

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2567

P HILLIP E. JAROS,

Plaintiff-Appellant,

v.

ILLINOIS D EPARTMENT OF C ORRECTIONS,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 11-cv-168-JPG—J. Phil Gilbert, Judge.

S UBMITTED F EBRUARY 15, 2012—D ECIDED JULY 3, 2012 Œ

Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.

W ILLIAMS, Circuit Judge. Former inmate Phillip E. Jaros

sued the Illinois Department of Corrections, its Director,

Œ

The appellees were not served with process in the district

court and are not participating in this appeal. After examining

the appellant’s brief and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted

on the brief and record. See F ED . R. A PP . P. 34(a)(2)(C).

2 No. 11-2567

and several employees claiming violations of the Rehab-

ilitation Act, 29 U.S.C. §§ 794–94e, the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12111–213, and the

Eighth Amendment. All of Jaros’s claims arise from his

allegations that administrators at the Vandalia Correc-

tional Center ignored his need for placement in an ADA-

compliant facility, and also refused to consider him for

a work-release program solely because he walks with a

cane. The district court screened the complaint before

service on the defendants and held that it fails to state

a claim.1 We disagree as to Jaros’s claims under the

Rehabilitation Act for failure to accommodate his

physical impairments and for intentional discrimination.

Jaros’s suit was dismissed at the pleading stage, so

for now we assume the truth of the facts set out in the

1

The district court cited 28 U.S.C. § 1915A, a part of the Prison

Litigation Reform Act, as authority for screening Jaros’s com-

plaint. By the time that review occurred, Jaros had finished

serving his sentence and been released. On appeal he argues

that it was error to screen his complaint under § 1915A

because he no longer was a “prisoner” as defined by 28 U.S.C.

§ 1915(h). This argument fails because “prisoner” status under

the PLRA turns on whether the plaintiff was confined when

the suit was filed. Witzke v. Femal, 376 F.3d 744, 750 (7th Cir.

2004). And in any event, when a district court has authorized

a plaintiff to proceed in forma pauperis—as happened in this

litigation—the court may screen the complaint on the

authority of 28 U.S.C. § 1915(e)(2). DeWalt v. Carter, 224 F.3d

607, 611 (7th Cir. 2000); Rowe v. Shake 196 F.3d 778, 783 (7th

Cir. 1999).

No. 11-2567 3

complaint and attachments. See Smith v. Peters, 631 F.3d

418, 419 (7th Cir. 2011); Guzell v. Hiller, 223 F.3d 518, 519

(7th Cir. 2000). Medical records submitted with his com-

plaint show that Jaros suffers from several physical

ailments, including advanced osteoarthritis and vascular

necrosis in his right hip. A hip replacement has been

recommended by private physicians. Jaros requires a

cane to walk. Walking for more than a few minutes

tires him, and he suffers chronic, severe pain whether

walking, sitting, standing, or lying down.

Jaros was convicted of driving on a suspended license

and sentenced to 2 years in prison. In May 2010 he was

sent to Vandalia, which is not ADA-compliant and

lacks grab bars for the handicapped near toilets and in

showers and walkways. Two days after arriving he told

Teanah Harter, a grievance counselor and one of the

defendants, that he required grab bars to shower and use

the toilet, and also to navigate the prison hallways.

Harter replied that, true enough, Vandalia is not ADA-

compliant but advised Jaros “to just deal with it” be-

cause administrators at the facility “did not do” medical

transfers. Jaros filed a grievance with then-warden

Ronald Meeks, also a defendant, demanding that admin-

istrators either install grab bars in the toilets, showers,

and hallways or else transfer him to an ADA-compliant

facility. Harter reviewed this grievance and recom-

mended that Meeks deny it, which he did in July 2010.

On the one hand, Meeks explained, Vandalia is not re-

quired to install grab bars because the Department of

Corrections has not designated the facility as a handicap

prison. On the other hand, he continued, Jaros could not

4 No. 11-2567

be moved to an ADA-compliant prison because he was

up for parole in 8 months and, under department

policy, only inmates with at least a year to serve

could be transferred. Jaros remained at Vandalia until

March 2011. He feared falling when using the toilet or

shower and thus limited himself to taking only four

showers monthly. He also missed meals on occasion

because he could not walk fast enough to the cafeteria.

While at Vandalia, Jaros also applied to participate in

a work-release program. He was turned down in Septem-

ber 2010. His counselor, Harter, explained that Jaros

could not be approved for work release because a

“medical hold” had been placed in his file by Mary

Halford, the nursing director. Jaros informed Halford

that Dr. Cleveland Rayford, the Vandalia medical

director, had deemed him healthy enough for work

release, but Halford refused to relent. In her words, “No

one with a cane can go on work release.” Jaros filed a

grievance, and while waiting for a response he asked

Debbie Magnus, who was in charge of the Health Care

Unit, to lift the hold. She would not, she said, because

“that’s just how we do it here.” Then in October 2010,

only a month after he first applied for work release,

Jaros received word that, in response to his grievance,

his application for work release had been considered

despite the medical hold. He was rejected, though,

because it was decided that he was “appropriately

placed” at Vandalia.

No. 11-2567 5

Jaros claims that the Illinois Department of Corrections 2

violated the Rehabilitation Act and the ADA by refusing

to accommodate his physical impairments. He also

claims that the Department of Corrections refused his

application for work release on account of his cane, and

thus discriminated against him in violation of both stat-

utes. (Several of the individual defendants are named

in these statutory claims, but employees of the Depart-

ment of Corrections are not amenable to suit under the

Rehabilitation Act or the ADA. See 29 U.S.C. § 794(b);

42 U.S.C. § 12131; see Foley v. City of Lafayette, 359 F.3d

925, 928 (7th Cir. 2004); see also Garcia v. S.U.N.Y. Health

Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (col-

lecting authority).) Jaros further contends, in a claim

2

Jaros has named the Illinois Department of Corrections as

a defendant in the caption—but not the body—of his complaint.

The district court reasoned that the omission from the body

means that the agency is not a defendant. Yet this is the sort

of pleading gaffe that, ordinarily, district courts should give

pro se plaintiffs a chance to correct by amendment. See Smith

v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012); Jackson

v. Kotter, 541 F.3d 688, 696-97 (7th Cir. 2008). And more im-

portantly here, the court’s conclusion is incorrect, since

Jaros also named the Director of the Department of Corrections

as a defendant in both the title and body of the complaint.

The Director (she has since been replaced) is named in her

official capacity, and thus the suit is against the agency.

See Zambrano v. Reinert, 291 F.3d 964, 975-76 (7th Cir. 2002)

(Easterbrook, J., concurring); Carver v. Sheriff of Lasalle Cnty.,

243 F.3d 379 (7th Cir. 2001). We have altered the caption

accordingly.

6 No. 11-2567

brought under 42 U.S.C. § 1983, that Warden Meeks,

counselor Harter, and two other defendants violated

the Eighth Amendment by refusing either to transfer

him or to install grab bars throughout Vandalia.

In dismissing the lawsuit, the district court first

rejected the Eighth Amendment claim. The court

reasoned that Jaros does not state a claim for deliberate

indifference because, as detailed in his complaint, the

staff at Vandalia gave him a cane, prescribed pain med-

ication, and issued permits allowing him to use a lower

bunk, wear soft-soled shoes, and walk slowly when

traveling in the facility. The district court, citing United

States v. Georgia, 546 U.S. 151 (2006), then rejected Jaros’s

claims under the ADA for failure to accommodate and

discrimination. Although the discussion of the point is

brief, we infer from the reliance on Georgia (and the

dismissal of these claims without prejudice) that the

court deemed the Department of Corrections to be pro-

tected by sovereign immunity from Jaros’s claims for

damages under the ADA.3 The district court did not

mention the Rehabilitation Act. Jaros challenges these

rulings on appeal.

We start with Jaros’s claim under the Eighth Amend-

ment. Adequate food and facilities to wash and use the

3

In his complaint Jaros also demands injunctive relief, but

his release from Vandalia has mooted that prospect. See Koger

v. Bryan; 523 F.3d 789, 804 (7th Cir. 2008); Lehn v. Holmes, 364

F.3d 862, 871 (7th Cir. 2004); Nelson v. Murphy, 44 F.3d 497,

500 (7th Cir. 1995).

No. 11-2567 7

toilet are among the “minimal civilized measure of life’s

necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981),

that must be afforded prisoners. See Wilson v. Seiter, 501

U.S. 294, 304 (1991); Vinning-El v. Long, 482 F.3d 923, 924

(7th Cir. 2007); Gillis v. Litscher, 468 F.3d 488, 493 (7th

Cir. 2006); Thompson v. Colorado, 278 F.3d 1020, 1032

(10th Cir. 2001); LaFaut v. Smith, 834 F.2d 389, 392-94 (4th

Cir. 1987) (Powell, J., sitting by designation). But Jaros does

not allege that he was deprived of any of these. Instead,

he says only that his use of the toilets and showers at

Vandalia was made more difficult by the absence of

grab bars. Jaros admits, however, that he showered four

times a month, and limiting inmates to weekly showers

does not violate the Eighth Amendment. See Rodriguez

v. Briley, 403 F.3d 952, 952 (7th Cir. 2005); Henderson v.

Lane, 979 F.2d 466, 468-69 (7th Cir. 1992); Davenport

v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988). Jaros

also alleges that he sometimes missed the morning meal

because he could not walk fast enough to the cafeteria

using only his cane without hallway railings, but he

does not allege that occasionally skipping breakfast

endangered his health. See Reed v. McBride, 178 F.3d 849,

853 (7th Cir. 1999) (explaining that extent, duration, and

consequences are relevant in assessing whether depriva-

tion of food violates Eighth Amendment); Berry v. Brady,

192 F.3d 504, 507 (5th Cir. 1999) (noting that even two

meals per day on “regular, permanent basis” may satisfy

Eighth Amendment if nutritionally adequate). Despite the

lack of grab bars, Jaros managed to use the toilet and

showers, attend meals, and work at the prison library.

Jaros also alleges that he experienced severe pain in his

8 No. 11-2567

hip while showering and using the toilet—the wanton

infliction of pain violates the Eighth Amendment, see

Forrest v. Prine, 620 F.3d 739, 744 (7th Cir. 2010)—but the

presence of grab bars would not have made a dif-

ference because Jaros concedes that he experiences the

same “severe pain” whether walking, sitting, standing, or

lying in bed.4 Because the alleged conditions of Jaros’s

confinement did not deprive him of life’s necessities, the

district court correctly dismissed this claim. See Johnson

v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006) (questioning

whether amputee’s disability constituted objectively

serious medical need requiring accommodation with

grab bars or benches or crutch, where inmate could

walk with a prosthesis and use toilets and showers

without assistance); see also Davenport, 844 F.2d at 1316;

cf. Tesch v. Cnty. of Green Lake, 157 F.3d 465, 476 (7th Cir.

1998) (concluding that jailers did not violate arrestee’s

right to due process by detaining him unattended for

two nights in cell that, although designed to accom-

modate his wheelchair, was equipped with toilet and

sink he struggled to use without assistance and bed he

could not reach). As the facts Jaros alleges do not

describe an Eighth Amendment violation, the district

court was correct to dismiss his § 1983 claim.

4

Jaros has not claimed that any named defendant was delib-

erately indifferent to his chronic pain. He does mention that

Dr. Rayford, the Vandalia medical director, refused to

prescribe stronger pain medication, but Rayford is not a

defendant. Nor has Jaros alleged any facts that plausibly

suggest deliberate indifference by Rayford.

No. 11-2567 9

We turn next to Jaros’s statutory claims under the

ADA and the Rehabilitation Act for failure to accommo-

date his physical impairments. The relief available to

Jaros under these provisions is coextensive. Compare 29

U.S.C. § 794A with 42 U.S.C. § 12117 (both incorporating

42 U.S.C. § 2000e-5 for private right of action); see Barnes

v. Gorman, 536 U.S. 181, 189 & n.3 (2002); Morris v.

Rumsfeld, 420 F.3d 287, 290 (3d Cir. 2005); Washington v.

Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 845 n.6

(7th Cir. 1999). And, with respect to this lawsuit, the

analysis governing each statute is the same except that

the Rehabilitation Act includes as an additional ele-

ment the receipt of federal funds, which all states accept

for their prisons. See Cutter v. Wilkinson, 544 U.S. 709,

716 n.4 (2005); Gratzl v. Office of Chief Judges, 601 F.3d 674,

678 (7th Cir. 2010); Foley, 359 F.3d at 928; Ozlowski v.

Henderson, 237 F.3d 837, 842 (7th Cir. 2001). As a practical

matter, then, we may dispense with the ADA and the

thorny question of sovereign immunity,5 since Jaros can

5

In Georgia the Court expressly declined to decide whether

states are immune from suits for damages arising from condi-

tions that violate the ADA but not the Constitution. Georgia,

546 U.S. at 159. Jaros alleges that he was confined under condi-

tions which, for the reasons we have explained, would

not have violated the Eighth Amendment even if those

same conditions would give rise to a claim under the ADA.

That distinction has no practical import to Jaros because

Illinois has waived its immunity from suits for damages

under the Rehabilitation Act as a condition of its receipt of

(continued...)

10 No. 11-2567

have but one recovery. See Duran v. Town of Cicero, Ill.,

653 F.3d 632, 639 (7th Cir. 2011) (plaintiffs may have

but one recovery); Calero-Cerezo v. United States Dep’t

of Justice, 355 F.3d 6, 11 n.1 (1st Cir. 2004) (dismissal of

ADA claim had no effect on scope of remedy because

Rehabilitation Act claim remained).

To state a claim under the Rehabilitation Act, Jaros

need only allege that (1) he is a qualified person (2) with

a disability and (3) the Department of Corrections

denied him access to a program or activity because of

his disability. See 29 U.S.C. § 705(2)(B); Wis. Cmty. Serv. v.

City of Milwaukee, 465 F.3d 737, 746 (7th Cir. 2006); Foley,

359 F.3d at 928; Grzan v. Charter Hosp. of Nw. Ind., 104

F.3d 116, 119 (7th Cir. 1997). Refusing to make reasonable

accommodations is tantamount to denying access; al-

though the Rehabilitation Act does not expressly

require accommodation, “the Supreme Court has located

a duty to accommodate in the statute generally.” Wis.

Cmty. Serv., 465 F.3d at 747; see also Alexander v. Choate,

469 U.S. 287, 300-01 (1985). Jaros must plead facts

which plausibly (even if improbably) support each

element of his claim. See Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949-50 (2009); Arnett v. Webster, 658 F.3d 742, 751-52

(7th Cir. 2011).

Plausibility is not an exacting standard, and Jaros has

met it. Disability includes the limitation of one or more

5

(...continued)

federal funds. See Stanley v. Litscher, 213 F.3d 340, 344

(7th Cir. 2000).

No. 11-2567 11

major life activities, which include walking, standing,

bending, and caring for oneself, see 42 U.S.C. § 12102(2)(A),

all of which Jaros finds difficult because of his hip. Al-

though incarceration is not a program or activity, the

meals and showers made available to inmates are.

See Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374, 375 (7th

Cir. 2000); Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 483

(7th Cir. 1997); Shomo v. City of New York, 579 F.3d 176, 185

(2d Cir. 2009); Kiman v. N.H. Dep’t of Corr., 451 F.3d 274,

287-88 (1st Cir. 2006); Garfield v. Cook County, No. 08 C 6657,

2009 WL 4015556, at *3 (N.D. Ill. Nov. 19, 2009). The

refusal to accommodate Jaros’s disability kept him

from accessing meals and showers on the same basis

as other inmates. Jaros was placed in a classic Catch-22:

the Department of Corrections will not add grab bars

at Vandalia because other prisons in the system already

are equipped for handicapped inmates, but Jaros could

not be transferred to one of those facilities because he

would not be incarcerated long enough to meet the

agency’s transfer criteria. We conclude that he has

pleaded a plausible claim for failure to make rea-

sonable accommodations under the Rehabilitation Act.

That leaves Jaros’s further claim under the Rehabil-

itation Act that the Department of Corrections discrimi-

nated against him by blocking him from considera-

tion for work release because he walks with a cane. Jaros

alleges that he was qualified for work release, having

met all eligibility requirements for the program, in-

cluding being within two years of release and classified

as minimum security. See ILL. A DMIN. C ODE tit. 20, § 455.10;

Briggs v. Walker, 875 N.E.2d 164, 165-66 (Ill. App. Ct. 2007).

12 No. 11-2567

His theory is that Halford, the nursing director, blocked

his application by placing a “medical hold” on his

file—solely because he uses a cane—thus keeping him

out of the program “by reason of” his disability, as re-

quired to state a claim of discrimination under the Rehab-

ilitation Act. See 29 U.S.C. § 794; Alexander, 469 U.S. at

290; Wis. Cmty. Serv., 465 F.3d at 748; Peters v. City of

Mauston, 311 F.3d 835, 841 (7th Cir. 2002). And although

the institutional assignment committee at Vandalia ulti-

mately reviewed and then denied his application after

concluding that he was “appropriately placed,” Jaros

asserts that the decision was a pretext for further dis-

crimination. We do not know who serves on Vandalia’s

institutional assignment committee: The committee may

have consisted entirely of Halford, who placed the hold,

and Debbie Magnus, the heath care unit administrator

who refused to remove it. Because such an allegation is

plausible (even if perhaps improbable), see Arnett, 658

F.3d at 751-52, we conclude that Jaros may proceed

with this claim as well.

Accordingly, we V ACATE the dismissal of Jaros’s statu-

tory claims against the Illinois Department of Corrections

for discrimination and failure to accommodate his disa-

bility, and R EMAND for further proceedings on those

claims. In all other respects, the judgment of the district

court is A FFIRMED . In light of the complexity of Jaros’s

claims, we note that he and the district court both

would benefit from having counsel enlisted to represent

Jaros on remand.

7-3-12