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"date_created": "2026-09-22T11:34:03.591048-07:00",
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"case_name": "Josiah Clark v. Officer Perry",
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"stt_transcript": "Clark v. Dorrit, Sheriff of Cook County Mr. Clark was residing at Cook County Jail when he was beaten with a wheelchair arm by another detainee. This happened when, in the four years prior to the attack, there had been 16 documented incidents of detainees removing wheelchair parts of serious weapons and using them as serious weapons. Yet, jail officials had not taken any remedial action, and that failure to act resulted in Mr. Clark's injuries. In 2015, before those 16 documented incidents, there was one ADA compliance lawyer who considered looking for other alternatives, and she did start that search and determined that she wasn't going to make a recommendation for another wheelchair. And then, in those four years, between 2015 and 2019, when Mr. Clark was attacked, there were at least 16 other documented incidents, and there wasn't another search conducted or any other investigation. And the district court... Have you... Is there any evidence on the record that, during that interim, there were, in fact, new products on the market that should have been investigated by the Cook County officials? There is evidence in the record that there were other steps they could have taken. That evidence comes from our corrections expert, Bear. And the evidence is that, with a quick search, it would have been discovered that the brand that the ADA compliance lawyer originally ordered had a period of time where there was a defective batch. So, in that period, there were changes to what was available, and that was easily found with a search. I'm not too sure I understand the relevance of that evidence. Well, in 2015, the compliance lawyer considered, on her own, of her own volition, could there possibly be something on the market that would not be used as a weapon? Now, at the time that she was considering that, she had been informed that weapons were being used mostly to destroy property in the jail. So, the inaction in those four years where there was serious harm inflicted upon people, a jury could find was deliberately indifferent, especially considering a jury will hear evidence that, in that time, technology changed, and a jury will also hear evidence from the expert that it was unacceptable, at that point, for jail officials not to reconsider their decision back in 2015. What kind of evidence? Was there a new product? Was there evidence that other penal institutions were, in fact, introducing new wheelchairs that were safer and more secure? Yes, there is evidence that the same company was making a chair with resin that didn't have this defect, and over 400 jails and prisons across the country were using it. And, at this stage, plaintiff does not need to find the perfect wheelchair, just needs to show that there was evidence that rebutted what the ADA compliance attorney said, that the district thought supported deliberate indifference. For example, the expert also said that he had previously worked at a jail where wheelchairs were not accessible to detainees while they were inside their cell sleeping. They only had access to their wheelchairs when they needed to use them. And there's evidence in the record that, at Cook County Jail, there were 70 cells that could be used as two-person or single cells instead of this dorm-style area where Mr. Clark was residing with these wheelchairs that were potentially weapons. So there were solutions that could have been considered. The problem here is that... Was that considered in 2015 or after? There is more that would have been found if the search was continued in 2015, but especially by 2019, there was even more evidence of alternative solutions. But that's not limited in that four period. There were advances before 2015, but Ms. Rivera ordered the one chair. It was defective. She didn't reach back out to the same company to see if it was a problem with that specific chair, didn't ask for a replacement, didn't search for other chairs, didn't talk to people at other correctional facilities that had ordered the chair prior to her ordering the chair. And so there is some evidence that had she continued that search, they could have found other alternatives. And there's evidence that Cook County Jail does, in fact, do this with other things that it considers to be weapons. And they have that authority to go to CIRMAC and say, you know, this is unsafe, it's harming our detainees, and we need to talk about an alternative. The problem here isn't that she never found the perfect one, it's that there was no initiative on the part of jail officials to actually consider if there were going to be better alternatives, especially in 2019. Even though at that time there were other spinoffs of the Weapons Free Committee, such as, you know, the inhalers could be used as shanks. So the medical staff was working with jail officials to determine what can we do about that. We know that people need their inhalers, but we also can't have weapons, especially considering the problems at Cook County Jail with this dorm style where you can have 20 to 30 people sleeping in the same area. And this policy they have where guards can leave their post and leave it to someone in the hallway to supervise. And there also was other evidence in the record that Rivero herself was not considering the risk that she knew this wheelchair was causing, and she instead was assessing ADA litigation risk. So the part that the district court quoted where she said, you know, she didn't reconsider her decision in 2019 because she determined that these incidents, these violent incidents are a drop in the bucket compared to the obligation that Cook County has under the ADA. But our experts said that that's unacceptable to not weigh the security risks of a medical device in the name. I must say I don't understand what this has to do with the Constitution as opposed to state law. It sounds like you're making an argument that in tort litigation would be called a crash-worthiness argument, that Ford has to design its cars to be resistant against crashes. But under the Constitution, the need is to show that the sheriff chose a particular wheelchair because he wanted harm to come to prisoners, not that it's not a crash-worthy chair. So how is this a constitutional argument at all as opposed to an ordinary tort case? Well, this is not a case where there was an express policy by the sheriff where he said, I want weapons in prison so that detainees can do whatever they want with them. This was a decision by jail officials that after each repeated incident where they could see there's a weapon being used, there was never a decision to have wheelchairs made for prisons or jails. Yeah, that's why this sounds like a crash-worthiness case. Ford knows that its cars get into crashes, so it has to design a collapsible steering wheel. I understand that. It's a tort theory that is widely used. But what does it have to do with the Constitution of the United States? Well, the theory is a little different here. It's that jail officials knew based on what they know about the dangerousness of jail and based on this pattern. That's the nature of a crash-worthiness claim. If you know that your cars get into accidents, you have to do the following things. But the Supreme Court says that to show an Eighth Amendment or Fifth Amendment problem, negligence is not enough. You have to want harm to come to prisoners. What is the evidence of that? What we have here is a—we have notice, evidence of that risk, and then inaction. Or I guess you could say it as an— No, that's why it's a crash-worthiness case. What you haven't shown is compliance with the need to show that the defendants intend harm to come to prisoners. If you think about Farmer against Brennan, the Supreme Court says guards know that prisoners attack each other, but they don't have a duty to prevent that as absolute liability. Only when they show deliberate indifference to it or when they want it to happen is there a problem. You seem to be making the tort argument without the constitutional argument. That's my concern. The deliberate indifference argument would be under Gleason or under JKJ that with awareness of this serious risk, they chose to disregard the risk. That's the deliberate indifference. They chose to do nothing about it, even though this harm kept happening, when they had the ability to intervene. And in fact, the authority and the duty under the 14th Amendment to intervene. You know in these assault cases, the courts keep saying you have to know there was a particular risk to a particular prisoner, and you closed your eyes to that particular risk. Not that you knew about general risks that prisoners attack each other. Well, you can have the general risk that prisoners attach each other with detachable wheelchair arms, and that's our case cited in the brief. Prisoners attack each other with bed sheets, with bed slats, with knives made by whittling down bed slats. Are all of those things constitutional violations? The constitutional violation is the duty to decrease or mitigate or eliminate a serious person. No, it is not. The Supreme Court has rejected exactly that line of argument. Okay, your time has expired. Thank you, Your Honor. Mr. Cassis. Good morning. May it please the Court, Counsel. I'd like to address a couple of issues right up front based on counsel's arguments today. First off, the argument regarding no new products being identified and whether the issue of the first batch being defective and 400 other jails around the country using it that their expert had commented on. None of that is in the opening brief. That was never raised, and therefore that issue was waived. Further, the discussion regarding cells at the jail having to do with the dormitory settings and the availability of individual cells, that also was never in the brief and not raised. The issue here is simple to, is directly towards the question of whether the jail should have tamper-proof wheelchairs. That's something that was simply – it's a very narrow issue, and it should not be expanded to include – I would say it's not remotely a narrow issue. As I said to your adversary, the very same arguments can be used when prisoners misuse bed slats or sheets or take kitchen pails and knock each other on the head and so on. If accepted, it is a staggeringly broad conclusion. Yes, Your Honor, and at best, a general risk of violence is not enough in the jail, as Your Honor indicated. Anything can be made into a weapon, and perfection is not required, and officers and officials are not required to foresee anything that could happen. Also, I would like to point out that the discussions regarding the chairs itself and how one batch was tested, the expert called the owner of Merlexi, who said that they're the only correctional wheelchair in use, and that is the exact product that we tested. So the idea that we would be expected to repurchase the same product and then have that – take the chance of that breaking again and being created into shanks is not reasonable. When was that phone call made, according to the record? I believe it was in – I'd have to check the exact date. I believe it was in 2018, but I'm not certain. Counsel, Judge Rippo is not in the screen. I apologize. You should face the camera. Thank you. I do not know the date. It was not 2018. I believe it was in – I believe 2021, but I am not positive. If there's no further questions, we'd like to stand on our briefs and ask that the court affirm the granting of summary judgment in the district court. Thank you very much. Thank you, Your Honor. The case is taken under advisory."
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