Preston Bennett v. Thomas Dart ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-8005
PRESTON BENNETT,
Plaintiff-Petitioner,
v.
THOMAS DART, Sheriff of Cook County, and COOK COUNTY,
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 MARCH 4, 2020 — DECIDED MARCH 16, 2020
____________________
Before WOOD, Chief Judge, and EASTERBROOK and ROVNER,
Circuit Judges.
PER CURIAM. When Preston BenneU was locked up in the
Cook County Jail, he was assigned to Division 10, which
houses detainees who need canes, crutches, or walkers. He
alleges in this suit under the Americans with Disabilities Act,
42 U.S.C. §§ 12131–34, and the Rehabilitation Act, 29 U.S.C.
§794, that Division 10 lacks the grab bars and other fixtures
2 No. 20-8005
needed for such persons to use showers and bathrooms safe-
ly. BenneU adds that he fell and was injured as a result of
this deficiency.
BenneU wants to represent a class of detainees who need
canes, crutches, or walkers. The district court denied his ini-
tial application, ruling that the appropriate accommodation
of any detainee’s situation depends on personal characteris-
tics, so common questions do not predominate. See Fed. R.
Civ. P. 23(b)(3). BenneU proposed an alternative class that
would avoid all person-specific questions by contending that
Division 10, which was constructed in 1992, violates a regu-
lation providing that “as of March 7, 1988 … construction[]
or alteration of buildings” must comply with the Uniform
Federal Accessibility Standards (UFAS or the Standards). 28
C.F.R. §42.522(b). 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. The district court re-
jected this proposal too, writing:
for this Court to determine whether the ADA and Rehab Act’s
Structural Standards control—thereby mooting the reasonable
accommodation inquiry—it would need to rule on the merits of
Plaintiff’s case.
The judge thought that such a decision would “run[] afoul of
the rule against one-way intervention.”
BenneU has asked for our leave to take an interlocutory
appeal under Rule 23(f). That petition is granted, and we
summarily reverse. (The papers proposing and opposing in-
terlocutory review explore the legal questions in detail.) The
judge was right to say that, to determine whether the Stand-
ards control, he would need to decide a big chunk of the
merits. But that’s not necessary.
No. 20-8005 3
Rule 23(a) and (b) provides a list of requirements for class
certification, all of which must be met, see Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338 (2011), but surety of prevailing on
the merits is not among them. Classes can lose as well as
win. The district judge’s view that a class cannot be certified
unless the plaintiff has already prevailed on the central legal
issue is a formula for one-way intervention rather than a
means to avoid it. BenneU, by contrast, proposes a class that
will win if the Standards apply (and were violated, to de-
tainees’ detriment) and otherwise will lose. That’s how class
actions should proceed.
The district court’s class-certification decision is vacated,
and the case is remanded for the certification of an appropri-
ate class if all applicable standards of Rule 23(a) and (b) have
been met.