United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
who is incarcerated at the Wisconsin Secure Program Facility,
filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated. (Docket
#1). On April 18, 2017, the Court screened his original
complaint and dismissed it, finding that Plaintiff had stated
no actionable claims. (Docket #9). The Court directed
Plaintiff to file an amended complaint, which he filed on
April 24, 2017. (Docket #12).
noted in the first screening order, the Court is required to
screen complaints brought by prisoners seeking relief against
a governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a). The Court
must dismiss a complaint, or portion thereof, if the prisoner
has raised claims that are “frivolous or malicious,
” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. Id. § 1915A(b). All of
the standards cited in the first screening order remain
applicable here. (Docket #9 at 1-3).
amended complaint, Plaintiff alleges that the relevant events
occurred while he was incarcerated at Foxlake Correctional
Institution (“FCI”), from March 11, 2014, until
January 24, 2017. (Docket #12 at 3-4). Plaintiff has chronic
ulcerative colitis as a complication of Crohn's disease,
which means that he has to use the restroom often and that
the need to do so arises urgently and without warning.
Id. at 4.
claims that FCI had a policy of refusing toilet access to
inmates who were using the indoor recreation facility.
Id. at 5. The facility contains both a gym and a
music room. Id. Recreation and music practice
periods last one hour, and inmates can stay for the whole
hour or leave at the thirty-minute mark. Id.
Recreation periods are offered no less than twice per day,
and music practice time is offered once per day. Id.
Additionally, religious and holiday programs, as well as
special sporting events, are held in the recreation facility.
claims that prison policy dictated that no inmate was allowed
access to a toilet-not even the toilet inside the facility,
which is reserved for inmate recreation workers-during
recreation time, music practice time, or during any other
activity held in the recreation facility. Id. He
claims that although he could have left such activities to
use the toilet in his housing unit, the distance between the
two locations meant that he would soil himself before
arriving at his cell if his ulcerative colitis flared.
Id. Additionally, for special programs held in the
facility, no one was allowed to leave early, even to use the
toilet. Id. at 6.
although he wanted to attend recreation time, the toilet ban
prevented Plaintiff from doing so. Id. Likewise,
Plaintiff alleges that he is a musician, but the lack of
toilet access precluded him from participating in any band
activities at FCI. Id. at 6. Finally, Plaintiff
claims that the toilet ban prevented him from attending
religious or other special programs held in the recreation
facility. Id. Plaintiff complained about the toilet
ban and asked that an exception be made for him based on his
condition, but he was told repeatedly that no exceptions
would be made for him, and his inmate grievances on the
matter were rejected at every level of review. Id.
amended complaint, Plaintiff claims that FCI's toilet ban
constituted discrimination and denial of reasonable
accommodations for his disability, in violation of the
Americans with Disabilities Act (“ADA”) and/or
the Rehabilitation Act. Id. at 4, 7-8. He seeks a
declaratory judgment in his favor as well as damages against
the Wisconsin Department of Corrections and its Secretary,
Jon Litscher, in his official capacity. Id. at 7, 9.
the allegations of the amended complaint, the Court is
obliged to conclude that Plaintiff's claims should
proceed. A prima facie case under Title II of the ADA or the
Rehabilitation Act requires a plaintiff to show: (1) that he
suffers from a disability as defined in the statutes, (2)
that he is qualified to participate in the program in
question, and (3) that he was either excluded from
participating in or denied the benefit of that program based
on his disability. Jackson v. City of Chicago, 414
F.3d 806, 810 (7th Cir. 2005).These statutes protect against
both intentional discrimination and failure to make
reasonable accommodations for the plaintiff's disability.
Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737,
746 (7th Cir. 2006). 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.” Love v. Westville Corr.
Ctr., 103 F.3d 558, 561 (7th Cir. 1996); 28 C.F.R.
§ 35.130(h). Determining the reasonableness of a
particular accommodation, especially in the prison context,
is “highly fact-specific” and decided on a
case-by-case basis. Dadian v. Vill. of Wilmette, 269
F.3d 831, 838-39 (7th Cir. 2001). Prison officials sued in
their individual capacities are not amenable to suit under
either statute, but such claims can be made against the state
agency in charge of the prison. See Jaros v. Ill.
Dep't of Corr., 684 F.3d 667, 670-71 (7th Cir.
simply, Plaintiff's claim is that it would have been easy
for FCI to allow him to use the existing toilet in the
recreation facility in light of his bowel condition.
See (Docket #1 at 7-8). Despite this, his repeated
requests for accommodation were denied. This suffices at the
screening stage to state a claim for discrimination or
failure to accommodate under the ADA and the Rehabilitation
Act. As a result, these claims will be permitted to proceed.
reasons stated above, Plaintiff will be permitted to proceed
on the following claims: (1) intentional discrimination
and/or failure to accommodate Plaintiff's ulcerative
colitis, in violation of the ADA, arising from denial of
toilet access in the recreation facility at FCI; and (2)
intentional discrimination and/or failure to accommodate
Plaintiff's ulcerative colitis, in violation of the
Rehabilitation Act, arising from denial of toilet access in
the recreation facility at FCI.
IT IS ORDERED that Plaintiff's amended complaint (Docket
#12) shall be the operative complaint in this action;
FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and
this Court, copies of Plaintiff's amended complaint and
this order will be electronically sent to the Wisconsin
Department of Justice for service on Defendants;
FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and
this Court, Defendants shall file a responsive pleading to
the amended complaint within ...