The plaintiffs are a certified class of inmates at Division 9 who were prescribed a cane, crutch, or walker by a jail medical provider. They allege the defendants violated Section 202 of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by failing to install accessible fixtures. The court previously certified both a Rule 23(b)(2) class and a Rule 23(b)(3) class — the latter limited to resolving whether the toilets and showers complied with the structural standards required by the ADA and Rehabilitation Act between May 8, 2022, and the date of entry of judgment.
Defendants moved for judgment on the pleadings, arguing that named plaintiff Kavarian Rogers failed to exhaust his administrative remedies as to the toilets in Division 9 before filing suit. The exhaustion dispute turned on Rogers's December 21, 2023 grievance, in which he wrote: "I'm an ICC with ADA conditions. I've been housed in division #9 in a cell that has no ADA accommodations and it is painful and embarrassing; I have to get help from another ICC when I use the toilet (#2) there is no railings, handles or anything for support to sit down on the toilet or get up."
The Sheriff's office rejected that grievance as noncompliant, characterizing it as a duplicate of a prior grievance — but the prior grievance Rogers had filed addressed only the accessibility of Division 9 showers, not the toilets. The response form also stated that the grieved issue could not be appealed and that remedies could not be exhausted.
Judge Mary M. Rowland held that the grievance process was effectively unavailable to Rogers after that response. The form's warning that the issue could not be appealed and that remedies could not be exhausted would reasonably lead Rogers to believe no further steps were open to him, and the court declined to penalize him for the Sheriff's mishandling of the form. The court also noted that the response form itself acknowledged that ADA had been informed of the IIC's issues, satisfying the exhaustion requirement's core purpose of alerting the institution and inviting corrective action.
The court further held that defendants failed to carry their burden on exhaustion because they did not cite any jail policy establishing that Rogers was required to refile his grievance in a compliant format and pursue additional procedures — and inmates cannot be held to procedures they were not told about.
Judge Rowland declined to reach the vicarious exhaustion question but noted that, in any event, defendants moved only against Rogers individually and not against any other class member, providing an independent basis to deny the motion.