Evans v. Page

755 N.E.2d 105, 324 Ill. App. 3d 241, 258 Ill. Dec. 24, 2001 Ill. App. LEXIS 638
Appellate Court of Illinois·Decided August 10, 2001·No. 5 — 99—0216·Published·Cited by 2 cases

Opinion

JUSTICE HOPKINS

delivered the opinion of the court:

William Evans (plaintiff), an inmate in the Illinois Department of Corrections (the Department) at Menard Correctional Center (Menard), appeals from the dismissal of his complaint against Thomas Page (defendant), warden of Menard. Plaintiffs complaint seeks relief under the Americans with Disabilities Act of 1990 (the Act) (42 U.S.C. § 12101 et seq. (1994)). This court had issued an order affirming the trial court’s dismissal of plaintiffs action. Evans v. Page, No. 5 — 99— 0216 (May 5, 2000) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). Plaintiff filed a petition for rehearing, and defendant filed a response. We now grant plaintiffs petition for rehearing and withdraw our order filed May 5, 2000, substituting this disposition in its place.

BACKGROUND

On December 3, 1998, plaintiff, who is paraplegic, filed his complaint, entitled “A.D.A. Complaint,” in the Randolph County circuit court. Plaintiff asserted that since November 26, 1997, he was denied transportation to and from court in a wheelchair-accessible vehicle, he was denied wheelchair-accessible recreation and exercise, and the health care unit and library at Menard were not wheelchair accessible. Plaintiff alleged that the transportation he was provided caused him pain and that without a wheelchair-accessible scale to weigh him, the health care unit was unable to provide plaintiff with a comprehensive physical examination. Plaintiff sought $50,000 in damages from defendant.

Plaintiff requested leave to amend the complaint on February 3, 1999. Plaintiffs amended complaint described plaintiff as “a qualified individual with a disability,” named Thomas Page as the sole defendant, and asserted that he was entitled to relief under the Act because he was being transported in a van that was not handicapped equipped.

On March 10, 1999, defendant moved to dismiss the complaint pursuant to section 2 — 615 and section 2 — 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 — 615, 2 — 619(a)(9) (West 1998)). Defendant attached an affidavit of Menard’s medical records director attesting that plaintiff was seen numerous times by the health care staff at Menard. Defendant also attached plaintiffs medical progress notes, dated November 26, 1997, listing plaintiffs weight. Pursuant to section 2 — 615, defendant argued that the allegations in the complaint were conclusory and did not state a cause of action. Pursuant to section 2 — 619(a)(9), defendant argued that plaintiff was not excluded from attending court or going to the hospital or the library or from engaging in recreation and exercise and that, therefore, the complaint failed to state a claim under the Act.

Plaintiff responded on March 19, 1999, to the motion to dismiss, and on March 22, 1999, the circuit court granted defendant’s motion. Plaintiff did not seek a ruling on his motion to amend his petition, which was never addressed by the trial court. Plaintiff chose instead to file an appeal.

On appeal, plaintiff asserts that his complaint was sufficient to state a cause of action under the Act and thus was improperly dismissed. He does not argue in his opening brief that the trial court erred because it did not rule on his motion to amend his petition. Thus, plaintiff has waived the issue on appeal, despite his attempt to introduce the issue in his reply brief. Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)) mandates, “[p]oints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

STANDARD OF REVIEW

•1 We review de nova an order granting a motion to dismiss pursuant to section 2 — 615 or section 2 — 619. Aboufariss v. City of DeKalb, 305 Ill. App. 3d 1054, 1067 (1999), citing Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112 (1993).

DISCUSSION

An analysis of whether plaintiffs allegations can be pursued under the Act must begin with the language of the statute itself. See Watt v. Alaska, 451 U.S. 259, 265, 68 L. Ed. 2d 80, 88, 101 S. Ct. 1673, 1677 (1981). The statute’s plain language must be given effect. Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 117 L. Ed. 2d 391, 397, 112 S. Ct. 1146, 1149 (1992).

•2 The Act states in pertinent part as follows:

“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity! ] or be subiected to discrimination by any such entity.” 42 U.S.C. § 12132 (1994).

A “qualified individual with a disability” is broadly defined as “an individual with a disability *** who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2) (1994). The term “public entity” is defined to include “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B) (1994). In Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 141 L. Ed. 2d 215, 118 S. Ct. 1952 (1998), the Supreme Court found that the Act covered inmates in state prisons.

Thus, to prevail on a claim under the Act, plaintiff must show that he is a qualified individual with a disability who was denied participation in, or the benefits of, the services, programs, or activities of a public entity because of his disability. 42 U.S.C. § 12132 (1994). Defendant may raise as an affirmative defense that the requested accommodation of plaintiffs disability would constitute an undue burden requiring “ ‘a fundamental alteration in the nature of a service, program, or activity or in undue financial or administrative burdens.’ ” Gorman v. Bartch, 152 E3d 907, 912 (8th Cir. 1998), quoting 28 C.F.R § 35.150(a)(3) (1996).

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Evans v. Page, 755 N.E.2d 105, 324 Ill. App. 3d 241, 258 Ill. Dec. 24, 2001 Ill. App. LEXIS 638 (Ill. Ct. App. 2001).

755 N.E.2d 105 (Evans v. Page) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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