United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON
THE PLEADINGS, DENYING PLAINTIFF'S MOTION FOR A STAY AND
TO AMEND THE COMPLAINT, AND DISMISSING CASE
WILLIAM C. GRIESBACH, DISTRICT JUDGE UNITED STATES DISTRICT
Mark Anthony Adell, an inmate at Waupun Correctional
Institution (WCI) who is representing himself, is proceeding
against Defendant the Wisconsin Department of Corrections
(WDOC) on a claim of discrimination under the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12132, and the
Rehabilitation Act, 29 U.S.C. § 794. Defendant has moved
for judgment on the pleadings. Dkt. No. 18. Plaintiff opposes
the motion. Dkt. No. 22. He also moves to hold in abeyance
Defendant's motion for judgment on the pleadings because,
he alleges, Defendant has yet to produce certain documents he
requested relevant to “the WDOC's Policies and
Procedures governing ADA, single cell[, ] and other
mandates.” Dkt. No. 19 at 1. Because the court
previously granted Defendant's motion for a stay of the
discovery deadline (Dkt No. 27), there is no current
obligation to produce documents on either party. Therefore,
Plaintiff's motion to hold Defendant's motion in
abeyance (Dkt. No. 19) is DENIED as moot. To
the extent Plaintiff seeks leave to amend his complaint
(see Dkt. No. 19 at 3), that request also is
DENIED. This order will address
Defendant's motion for judgment on the pleadings.
alleges that he suffers from multiple intestinal ailments
that cause him the frequent and unpredictable need for a
toilet. He has requested placement in a single
cell at WCI to accommodate his medical issues and to prevent
conflict with, or embarrassment in front of, other inmates.
The court allowed Plaintiff to proceed against the WDOC on
his claim that it violated the ADA and Rehabilitation Act by
denying his requests for placement in a single cell. Dkt. No.
9 at 9.
motion for judgment on the pleadings, Defendant asserts that,
as a department of a state, it is immune from suit under the
Eleventh Amendment against Plaintiff's claims. Dkt. No.
18 at 3. This is so, Defendant argues, because the State of
Wisconsin may be sued under the ADA only if Plaintiff alleges
a violation of the Fourteenth Amendment, which Defendant
contends he has not. Id. at 3-4. Defendant further
asserts that Plaintiff does not state a claim under either
the ADA or the Rehabilitation Act because he fails to allege
that he faced discrimination on the basis of his purported
disability. Id. at 4-5.
responds that his claim is not one of denial of an
accommodation but rather is “a clear cut case of
discrimination.” Dkt. No. 22 at 6. As evidence of that
discrimination, Plaintiff points to the WDOC's policy of
permitting prisoners single cells based on their seniority,
rather than a health-based need for one. Id. at 7.
He reiterates that “the severity of his impairments
demand assignment of a single cell” and asserts that,
without a single-cell assignment, he does not have access to
showers and toilets “on the same basis as other
12(c) provides that “[a]fter the pleadings are
closed-but early enough not to delay trial-a party may move
for judgment on the pleadings.” Fed.R.Civ.P. 12(c).
Such a motion is evaluated under the same standards that
govern a Rule 12(b)(6) motion to dismiss. See Adams v.
City of Indianapolis, 742 F.3d 720, 727-28 (7th Cir.
2014). The court may not look beyond the pleadings in ruling
on a motion under Rule 12(c), accepts as true all facts
alleged in the complaint, and construes all reasonable
inferences in favor of the non-moving party. See Lodholtz
v. York Risk Servs. Grp., 778 F.3d 635, 639 (7th Cir.
2015) (citations omitted); United States v. Wood,
925 F.2d 1580, 1581 (7th Cir. 1991).
is correct that, as a department of the state, it is immune
from suit as the state itself is. See Stevens v. Illinois
Dep't of Transp., 210 F.3d 732, 735 n.1 (7th Cir.
2000) (citing Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100-01 (1983)). Yet, § 5 of
the Fourteenth Amendment empowers Congress to abrogate that
immunity through private suits for damages, which includes a
cause of action under Title II of the ADA. See United
States v. Georgia, 546 U.S. 151, 158-59 (2006). The
cause of action created by Title II, however, only applies to
“conduct that actually violates the Fourteenth
Amendment.” Id. at 159; see Stevens,
210 F.3d at 740 (“It is only when the States themselves
are engaged in conduct that violates the Fourteenth Amendment
that Congress is authorized to step in under Section 5 to
remedy and prevent those violations.”). Only
compensatory damages, and not punitive damages, are available
under the ADA (or the Rehabilitation Act). See Barnes v.
Gorman, 536 U.S. 181, 189 (2002).
complaint no longer alleges that the state, and therefore
Defendant, is engaging in conduct that violates the
Fourteenth Amendment. Plaintiff's claims under the Eighth
Amendment, which is incorporated into the Fourteenth, were
dismissed at screening. Instead, Plaintiff alleges that the
WDOC grants single-cell placements based on seniority without
regard to medical need. In doing so, Plaintiff contends, the
WDOC is discriminating against him based on his medical
issues, which he contends renders him disabled.
“Disabled individuals, like any class, are protected by
the Equal Protection Clause of the Fourteenth
Amendment.” Stevens, 210 F.3d at 737 (citing
City of Cleburne v. Cleburne Living Center, 473 U.S.
432, 446 (1985), and United States v. Harris, 197
F.3d 870, 876 (7th Cir. 1999)). But Plaintiff's
allegations do not demonstrate that the WDOC discriminated
against him based on his disability when choosing who is
placed in a single cell. Plaintiff has not received a single
cell not because his disability has garnered him unequal
treatment but because he has not yet achieved the level of
seniority needed to receive one. Because Plaintiff does not
allege that the WDOC's system of seniority-based
single-cell placement discriminates against him based on his
disability, he does not state a Fourteenth Amendment claim.
The WDOC is therefore immune from Plaintiff's ADA
Plaintiff's allegations amount to a violation of the
Rehabilitation Act. Under the Rehabilitation Act, a plaintiff
must allege that “(1) he is a qualified person (2) with
a disability and (3) the [WDOC] denied him access to a
program or activity because of his disability.”
Jaros v. Illinois Dep't of Corr., 684 F.3d 667,
672 (7th Cir. 2012) (citing 29 U.S.C. §
705(2)(B)). It can be assumed that Plaintiff is a
qualified person who suffers from a disability, but Defendant
contends that toilet access is neither a program nor an
activity. Dkt. No. 18 at 5-7. The law in this Circuit
suggests otherwise. See Id. (noting that “the
meals and showers made available to inmates” qualify as
a program or activity and citing cases); cf. Phipps v.
Sheriff of Cook Cty., 681 F.Supp.2d 899, 916 (N.D. Ill.
2009) (citing cases concluding that access to toilets and
showers are programs or activities under the ADA). Even so,
Plaintiff has had access to his toilet the same as every
non-disabled double-celled inmate, which is all but those of
highest seniority who have received a single cell. He was not
denied access to a toilet because of his disability. He was,
at most, not given the additional accommodation of a single
cell because his seniority at WCI has not yet matured to the
point that he has earned one.
extent Plaintiff bases his Rehabilitation Act claim on the
theory that the WDOC failed to accommodate his disability by
providing him a single cell, he still fails to state a claim.
Plaintiff seeks continual, uninterrupted access to a toilet
without compromise by, for example, his cellmate who may use
it or need to use it. That accommodation is not
“reasonable, ” particularly for an inmate. Having
to contend with limited resources and share living quarters
with another inmate is a fact of prison life. And sharing a
bathroom or toilet is, for most, a fact of non-prison life,
as well. Plaintiff does not need to sit on the toilet,
uninterrupted, every hour of the day. No. one, even with
Plaintiff's health issues, requires that. His request for
unimpeded, twenty-four access to his own toilet does not
state a claim under the Rehabilitation Act.
also asserts that he was not given leave to amend his
complaint and seeks leave to amend now. (Dkt. No. 19 at 3).
But he has never properly requested leave to amend his
complaint. A plaintiff seeking to file an amended complaint
must “state specifically what changes are sought by the
proposed amendments” and file the proposed amended
pleading as an attachment to the motion to amend. Civil L. R.
15(b). Plaintiff has never submitted a proposed amended
pleading or detailed the proposed changes. Nor has he
complied with these rules in his pending request to amend.
His request to amend is DENIED.
IS THEREFORE ORDERED that Defendant's motion for
judgment on the pleadings, Dkt. No. 18, is