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Prisoner – ADA and Rehabilitation Act Violation

7th Circuit Court of Appeals

Case Name: Damon Turnage v. Thomas J. Dart, et al.,

Case No.: 20-3167

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Prisoner – ADA and Rehabilitation Act Violation

Damon Turnage contends that on September 21, 2016, he fell from an upper bunk at Cook County Jail and suffered a broken ankle plus other injuries. He seeks damages under §202 of the Americans with Disabilities Act, 42 U.S.C. §12132, and §504 of the Rehabilitation Act, 29 U.S.C. §794(a), on the ground that the Jail knew that he is subject to occasional seizures but failed to enforce his lower-bunk permit (which had been issued to reduce the risk of falling during a seizure).

Turnage is using the ADA and the Rehabilitation Act to pursue, in federal court, what is effectively a state-law tort claim. And there is no tort without injury. Rozenfeld v. Medical Protective Co., 73 F.3d 154, 156 (7th Cir. 1996). These statutes may be available to protest exposure to unjustified risks, but a prisoner or other litigant is free to wait until the risk comes to pass. Forget about §1997e(a) for a moment and suppose that Turnage had filed a common-law tort suit on September 10, 2018, more than two years after his placement into an upper bunk but less than two years after his fall and injury. (Two years is a normal limit for tort suits.) A court would deem that suit timely, because injury, coupled with knowledge of its cause, marks the claim’s accrual. See United States v. Kubrick, 444 U.S. 111 (1979). For the same reason, a grievance that is timely with respect to an injury satisfies §1997e(a) when the suit seeks damages for that injury.

Turnage has exhausted the administrative remedies available to him. The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and remanded

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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