Title II The Americans with Disabilities Act (ADA), codified as Title 42
of the United States Code, Section 12131 (42 USC §12131, herein after
§12131), applies to “any State or local government, any department,
agency, special purpose district, or other instrumentality of a State or
States or local government…” (§12131[1][A][B]). The ADA defines a
“qualified individual with a disability [as] an individual with a
disability who, with or without reasonable modifications to rules,
policies, or practices, the removal or architectural, communication, or
transportation barriers, or the provision of auxiliary aids and
services, meets the essential eligibility requirements for the receipt
of services or the participation in program or activities provided by a
public entity.”(§12131[2]).
Disabled prisoners in state facilities come under the auspices of ADA
provisions.
“[S]tate prisons fall squarely within definition in 42 USCS
§12131(1)(B), of ‘public entity’ subject to Title II, (2) text of ADA
provides no basis for distinguishing recreational activities, medical
services, and educational and vocational programs provided to prison
inmates from ‘services, programs, or activities’ provided by other
public entities …[.] [T]itle II’s definition of ‘qualified individual
with disability’ […] which refers to ‘disability’ requirements and
‘participation’ in programs, does not exclude prisoners.”(Pennsylvania
Department of Corrections v. Yeskey, 118 S.Ct. 1952)
In the landmark case Ball v. LeBlanc, 792 F.3d 584, the U.S.
Court of Appeals for the 5th Circuit held: Under the ADA, Louisiana
state prisoners on Angola’s death row were to be considered disabled if:
“[They have] ‘a physical or mental impairment that substantially limits
one or more major life activities.’ (42 U.S.C. § 12102[1][A]). The
statute defines a major life activity in two ways. First, major life
activities include, but are not limited to: caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading,
thinking, communicating, and working.
“Second, a major life activity includes ‘the operation of a major bodily
function.’ Such functions include, but are not limited to: the immune
system, normal cell growth, digestive, bowel, bladder, neurological,
endocrine, and reproductive functions. The prisoners can prove
themselves disabled if their ailments substantially limit either a major
life activity or the operation of a major bodily function.”(42 U.S.C. §
12102 [2][A][B])
The ADA requires prison officials to reasonably accommodate disabled
prisoners in regard to all activities afforded able-bodied prisoners.
“[D]eliberate refusal of prison officials to accommodate inmate’s
disability-related needs ([in] virtually all [ ] prison programs)
constituted exclusion from participation in or denial of benefits of
prison services, programs, or activities. ‘[P]ublic entity’ under 42
USCS §12131(1) includes prisons.”(United States v. Georgia, 126
S.Ct. 877; Loye v. County of Dakota, 625 F.3d 494)
Though the ADA bestows on disabled state prisoners the right to
reasonably participate in all prison activities, probably of paramount
importance to disabled prisoners is participation in requisite programs
that must be attended per consideration for early release from prison to
limited liberty on parole. The ADA ensures disabled prisoners access to
these activities as well.(United States v. Georgia, supra.;
Yeskey, supra.; Jaros v. Illinois Department of
Corrections, 684 F.3d 667; Gorman v. Bartch, 152 F.3d 907;
Paulone v. City of Frederick, 787 F.2d 360; Raines v.
Florida, 983 F. Supp. 1362)
An organizational tactic that disabled prisoners might employ in
combating discriminatory exclusion from prison programs, activities,
and/or services, could be to pursue litigation as a class, or group, of
plaintiffs pursuant to Federal Rule of Civil Procedure (FRCP) Rule #23.
To identify as a class, disabled prisoners must establish “numerosity,
commonality, and typicality.”(Kerrigan v. Philadelphia Board of
Elections, 248 FRD 470; Marcus v. Department of Revenue, 206
FRD 509)
In short, a contingent of disabled prisoners must convince the Federal
court there is a significant number of “similarly situated” prisoners
being denied their rights and entitlements guaranteed by the ADA,
thereby identifying a class the court can certify as such.(Armstrong
v. Schwarzenegger, 261 FRD 173) Once a class has been certified, any
injunctive relief enforcing the ADA encompasses all prisoners identified
as the class of prisoner plaintiffs.(Schwarzenegger, supra;
Benjamin v. Department of Public Welfare, 807 F.Supp.2d 201)
Monetary damage awards can be obtained if the state actors are
deliberately indifferent to prisoners’ disability or if violations of
the ADA are intentional.(United States v. Georgia, supra;
Tennessee v. Lane, 124 S.Ct. 1978; Panzardi-Santiago v.
University of Puerto Rico, 200 F.Supp.2d 1).
The ADA enjoins prison systems to provide disabled prisoners auxiliary
or adaptive aid devices ensuring disabled prisoners are reasonably able
to participate in prison programs, activities, and/or services.
(Robertson v. Las Animas County Sheriff’s Department, 500 F.3d
1185). This means if you are disabled or impaired as recognized per the
provisions of the ADA, the state must provide you with implements and
apparatus so as to assist you in participating in common daily and
required programmatic activities.
In sum, to prevail on an ADA violation claim, a disabled state prisoner
would submit to a Federal district court with jurisdiction a civil
rights violation complaint pursuant to 42 USC §1983 (United States v.
Georgia, supra) (a §1983 form can be obtained from the clerk in the
district in which the civil suit is to be filed) citing §12131 as
statutory provision authorizing the claim. In the complaint a
prospective plaintiff must show they are a qualified person with a
disability, they were excluded from participation in or denied benefits
of a prison system’s programs, activities, and/or services, and the
exclusion and/or denial of benefits was due to the prisoner’s
disabilities.(United States v. Georgia, supra;
Panzardi-Santiago, supra; Constantino v. Madden, 16 FLW
Fed D 321)
Prison administrators are to be trained, and to train or to have trained
prison officials and personnel that are to supervise and have contact
with disabled prisoners.(Gorman, supra) Moreover, it is important
disabled prisoners be aware non-medical prison officials can in no way
supersede any medical directive affecting a prisoner’s disability or
accommodation thereof. (Chisolm v. McManimon, 275 F.3d 328;
Beckford v. Irvin, 49 F. Supp. 2d 170; Saunders v. Horn,
959 F. Supp. 689; Arnold on Behalf of H.B. v. Lewis, 803 F. Supp.
246)
The above is a very brief and truncated overview of the ADA as it
applies to state prisoners and should not be construed as a
comprehensive examination of disability law as it pertains to prisoners.
This article is no more than a primer meant to initiate disabled
prisoners with their legal rights and remedies. If a disabled prisoner
is experiencing abuse and discrimination at the hands of prison
officials, the disabled prisoner should take it upon themselves to
research pertinent precedents and authorities necessary in remedying the
situation and pursue those via the various avenues of relief.
The U.S. Department of Justice provides a free 211 page booklet entitled
“ADA Title II Regulations: Non-discrimination on the Basis of Disability
in State and Local Government Services.” The booklet can be had in large
print, audiotape, Braille, and DVD. The booklet can also be provided in
Cambodian, Chinese, Hmong, Japanese, Korean, Laotian, Spanish, Tagalog
and Vietnamese. Or it could be, that is until the Jingoist xenophobe
Trump took the imperialist helm. The DOJ can be contacted at:
U.S. DOJ
Civil Rights Division
Disability Rights Sec.
950
Pennsylvania Ave, NW
Washington, DC 20530
There are a number of non-governmental organizations that assist
disabled prisoners on a pro bono basis. The DOJ can provide contact
information for disability rights advocates in your area.
Finally, the law library at your facility may have available for review
the annotated version of §12131. This annotated edition of Title II of
the ADA provides synoptic court rulings of the rights afforded disabled
prisoners.
Very important is to document and keep records of all acts of disability
discrimination and violations of the ADA – incidents, names, dates,
witnesses, etc. This can best be accomplished via the administrative
grievance procedure at your prison, while at the same time executing the
required exhaustion of administrative remedies prior to filing suit.
In closing, it is my sincere desire that this overview proves to be of
effective utility to those disabled prisoners facing the barbarous
conditions of existence imposed on them by the enforcers of the carceral
state.
To any able-bodied prisoners that may read this brief overview, I would
remind you, an injury to one is an injury to all!
