Phillip E. Jaros v. Illinois Department of Corrections

The appellees were not served with process in the district å
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 FED. R. APP. P. 34(a)(2)(C).
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2567
PHILLIP E. JAROS,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 11-cv-168-JPG—J. Phil Gilbert, Judge.
SUBMITTED FEBRUARY 15, 2012—DECIDED JULY 3, 2012å
Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Former inmate Phillip E. Jaros
sued the Illinois Department of Corrections, its Director,

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2 No. 11-2567
The district court cited 28 U.S.C. § 1915A, a part of the Prison 1
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).
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. We disagree as to Jaros’s claims under the1
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

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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

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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.

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No. 11-2567 5
Jaros has named the Illinois Department of Corrections as 2
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.
Jaros claims that the Illinois Department of Corrections2
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

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6 No. 11-2567
In his complaint Jaros also demands injunctive relief, but 3
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).
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. The district court did not3
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

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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

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8 No. 11-2567
Jaros has not claimed that any named defendant was delib- 4
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.
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. Because the alleged conditions of Jaros’s4
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.

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No. 11-2567 9
In Georgia the Court expressly declined to decide whether 5
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...)
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, since Jaros can5

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10 No. 11-2567
(...continued) 5
federal funds. See Stanley v. Litscher, 213 F.3d 340, 344
(7th Cir. 2000).
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

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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. ADMIN. CODE tit. 20, § 455.10;
Briggs v. Walker, 875 N.E.2d 164, 165-66 (Ill. App. Ct. 2007).

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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 VACATE the dismissal of Jaros’s statu-
tory claims against the Illinois Department of Corrections
for discrimination and failure to accommodate his disa-
bility, and REMAND for further proceedings on those
claims. In all other respects, the judgment of the district
court is AFFIRMED. 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

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