Preston Bennett v. THOMAS DART , Sheriff of Cook County, and COOK COUNTY, ILLINOIS

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-8016
P RESTON BENNETT,
Plaintiff-Petitioner,
v.
T HOMAS D ART , Sheriff of Cook County, and C OOK C OUNTY,
ILLINOIS ,
Defendants-Respondents.
____________________
Petition for leave to appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 18-cv-04268 — John Robert Blakey, Judge.
____________________
SUBMITTED OCTOBER 20, 2022 — DECIDED NOVEMBER 14, 2022
____________________
Before EASTERBROOK , R OVNER , and W OOD, Circuit Judges.
P ER C URIAM. Preston Bennett contends that Division 10 of
Cook County Jail does not satisfy the Americans with Disabil-
ities Act, 42 U.S.C. §§ 12131–34, and the Rehabilitation Act, 29
U.S.C. §794, because it lacks the grab bars and other fixtures
that disabled inmates may need in order to use showers and
toilets safely. When seeking certification of a class action,

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2 No. 22-8016
Bennett tried to simplify the case by relying on a regulation
providing that “as of March 7, 1988 … construction[] or alter-
ation of buildings” must comply with the Uniform Federal
Accessibility Standards (UFAS or the Standards). 28 C.F.R.
§42.522(b)(1). The Standards require accessible toilets to have
grab bars nearby, UFAS §4.17.6, and accessible showers to
have mounted seats, UFAS §4.21.3. Division 10 was con-
structed in 1992 and so, Bennett insists, must comply with
these standards.
The district court declined to certify the requested class,
ruling that to do so would entail a premature adjudication of
the merits, which the judge equated to one-way intervention.
We reversed, 953 F.3d 467 (7th Cir. 2020), holding that class
certification would not entail resolution of the merits. Because
a class may lose as well as win, all certification could do
would be to tee up the merits for decision. We remarked:
“Bennett … proposes a class that will win if the Standards ap-
ply (and were violated, to detainees’ detriment) and other-
wise will lose. That’s how class actions should proceed.” 953
F.3d at 469.
On remand the district court certified a class. Although the
class as certified presents what appears to be a straightfor-
ward question about whether Division 10 complies with the
Standards, the case languished in the district court. Then, in
September 2022, more than two and a half years after our de-
cision, the judge decertified the class. 2022 U.S. Dist. LEXIS
171473 (N.D. Ill. Sept. 22, 2022). The judge’s principal reason
is that some class members, although using aids such as
wheelchairs, may not be disabled within the meaning of the
federal statutes—either because they are malingering or be-
cause they can get around without assistance for short

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No. 22-8016 3
distances. Differences among class members would make the
case too complex, the judge stated. Plaintiffs have requested a
second interlocutory review under Fed. R. Civ. P. 23(f). Once
again we grant the petition and reverse.
The district judge did not mention Fed. R. Civ. P. 23(c)(4),
which provides: “When appropriate, an action may be
brought or maintained as a class action with respect to partic-
ular issues.” Our decision in 2020 identified such an issue, one
relevant to every detainee in Division 10. A class certified un-
der Rule 23(c)(4) resolves the issue, not the whole case. Class
members would receive the benefit of a declaratory judgment
(if the class prevails) on the issue but would need to proceed
in individual suits to seek damages; by contrast, if the class
loses, every detainee would be bound through the doctrine of
issue preclusion. We do not see—and the district judge did
not explain—why application of the Standards cannot be de-
termined class-wide, while leaving to the future any particu-
lar inmate’s claim to other relief.
This case is more than four years old. It should be resolved
with dispatch on remand. The petition for leave to appeal is
granted, and the class-decertification order is reversed.

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