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Seventh Circuit Questions ADA Applicability to Prisons
The court of appeals for the seventh circuit issued its first ruling on the applicability of the Americans with Disabilities Act (ADA) to prisoners. In doing so it held that claims of incompetent medical treatment are not cognizable under the ADA. It also held a district court must notify pro se litigants of the failure to respond to defendants' motion for summary judgment before dismissing the case. This is only the third circuit court ruling to explore the applicability of the ADA to prisons. The others are Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995) [PLN Mar. '95] and Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1997) [PLN Jan. '97].
Ronald Bryant is an Illinois state prisoner who suffers from paraplegia which causes leg spasms. After being denied bed rails his leg spasms caused him to fall out of bed and injure himself. After a leg operation he was denied pain medication. He filed suit claiming his rights were violated under the eighth amendment and the ADA, 42 U.S.C. 12101. The district court granted the defendants summary judgment based on affidavits from medical practitioners to the effect that Bryant had received adequate medical care. The appeals court reversed and remanded the eighth amendment claim. "In basing his decision on the affidavit and deposition when he did, the district judge jumped the gun, in violation of the rule of Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), that an unrepresented party must be notified of the consequences of failing to respond to evidence presented in support of his opponent's motion for summary judgment with evidence of his own; must be told, in short, that he cannot rest on his pleadings." The court held this was not harmless error and reversed for further proceedings.
In considering the ADA claim the court gave an analysis which ignores recent Department of Justice regulations to the effect that it does apply to prisons [PLN, March, 1996] and noted there was no express inclusion of prisons and jails in the ADA's definition of "public entity" to which it applies. "A total exclusion would mean that the states had no duty to avoid discriminating against, and no duty to accommodate the reasonable needs of persons who wanted to work as correctional officers, lawyers who had clients in jail or prison whom they wanted to visit or, as in Pack v. Arkansas Valley Correctional Facility, 8994 P.2d 34, 39 (Colo.App. 1995), other visitors.
"Even if such persons are protected, however, which we need not decide (for Congress may not have wanted to burden the states with the potentially enormous costs of making their prisons fully accessible to disabled visitors and employees), it would not necessarily follow that prisons or jails that offer educational or vocational programs for prisoners must redesign their programs to accommodate the needs of disabled prisoners. It is very far from clear that prisoners should be considered 'qualified individual[s]' within the meaning of the Act. Could Congress have really intended disabled prisoners to be mainstreamed into an already highly restricted prison society? ....There are formidable practical objections to burdening prisons with having to comply with the onerous requirements of the Act, especially when we reflect that alcoholism and other forms of addiction are disabilities within the meaning of the Act and afflict a substantial proportion of the prison population."
The court cites numerous cases that on their face do not exclude prisoners from their coverage but which the courts have held do not include them. "Judge-made exceptions to laws of general applicability are justified to avoid absurdity... And an exception to the Americans with Disabilities Act for prisoners, though not express, may have textual foundation n the term 'qualified individual.'
"Even if there were (as we doubt) some domain of applicability of the Act to prisoners, the Act would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners. No discrimination is alleged; Bryant was not treated worse because he was disabled. His complaint is that he was not given special accommodation.... The ADA does not create a remedy for medical malpractice."
The court held that based on this standard Bryant had failed to state a claim under the ADA. Thus, the claim was properly dismissed by the district court. The court held that prisoners complaining of medical neglect or malpractice must avail themselves of state court remedies. "Even apart from the prison setting it would be extremely odd to suppose that disabled persons whose disability is treated negligently have a federal malpractice claim by virtue of the Americans with Disabilities Act, whereas a sick or injured but not disabled person,... must be content with the remedy that the state law of medical malpractice provides." See: Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996).
In a second ruling, the appeals court denied the defendants' petition for a rehearing. In their petition the defendants presented an affidavit from a district court clerk stating the Lewis notice had been sent to Bryant but was omitted from the appellate record. The appeals court was not impressed, noting that there was no mention of the notice in the district court record either.
The court held that even if the notice was sent, its prior ruling would stand because the notice was not informative. The notice did not tell Bryant that failure to respond to the defendants' summary judgment motion might result in dismissal. "The entire purpose of Lewis v. Faulkner is to warn an unrepresented party (and in Bryant's case, the unrepresented party was clearly a legally unsophisticated party, as well) of the consequences of failing to respond with affidavits, or other evidence, as distinct from argument. These notices don't do that.... Mere citation of Lewis is not enough, since an unrepresented party, especially as in this case a prisoner, cannot be assumed to have the knowledge required to look up a case and read it with comprehension."
The court expressed its concern with the vagueness of the notice as well as the clerk's statement that such notices would not be included in the appellate record unless directed by the appeals court. The court noted that in a 1987 order, 7th Cir.R. 10(a), such notices are specifically ordered to be part of the record. "It is essential that the Lewis v. Faulkner notices be included in the appellate record, since unless they are sent to unrepresented parties the grant of summary judgment to their opponents may be invalid." See: Bryant v. Madigan, 91 F.3d 994 (7th Cir. 1996).
Ronald Bryant is an Illinois state prisoner who suffers from paraplegia which causes leg spasms. After being denied bed rails his leg spasms caused him to fall out of bed and injure himself. After a leg operation he was denied pain medication. He filed suit claiming his rights were violated under the eighth amendment and the ADA, 42 U.S.C. 12101. The district court granted the defendants summary judgment based on affidavits from medical practitioners to the effect that Bryant had received adequate medical care. The appeals court reversed and remanded the eighth amendment claim. "In basing his decision on the affidavit and deposition when he did, the district judge jumped the gun, in violation of the rule of Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), that an unrepresented party must be notified of the consequences of failing to respond to evidence presented in support of his opponent's motion for summary judgment with evidence of his own; must be told, in short, that he cannot rest on his pleadings." The court held this was not harmless error and reversed for further proceedings.
In considering the ADA claim the court gave an analysis which ignores recent Department of Justice regulations to the effect that it does apply to prisons [PLN, March, 1996] and noted there was no express inclusion of prisons and jails in the ADA's definition of "public entity" to which it applies. "A total exclusion would mean that the states had no duty to avoid discriminating against, and no duty to accommodate the reasonable needs of persons who wanted to work as correctional officers, lawyers who had clients in jail or prison whom they wanted to visit or, as in Pack v. Arkansas Valley Correctional Facility, 8994 P.2d 34, 39 (Colo.App. 1995), other visitors.
"Even if such persons are protected, however, which we need not decide (for Congress may not have wanted to burden the states with the potentially enormous costs of making their prisons fully accessible to disabled visitors and employees), it would not necessarily follow that prisons or jails that offer educational or vocational programs for prisoners must redesign their programs to accommodate the needs of disabled prisoners. It is very far from clear that prisoners should be considered 'qualified individual[s]' within the meaning of the Act. Could Congress have really intended disabled prisoners to be mainstreamed into an already highly restricted prison society? ....There are formidable practical objections to burdening prisons with having to comply with the onerous requirements of the Act, especially when we reflect that alcoholism and other forms of addiction are disabilities within the meaning of the Act and afflict a substantial proportion of the prison population."
The court cites numerous cases that on their face do not exclude prisoners from their coverage but which the courts have held do not include them. "Judge-made exceptions to laws of general applicability are justified to avoid absurdity... And an exception to the Americans with Disabilities Act for prisoners, though not express, may have textual foundation n the term 'qualified individual.'
"Even if there were (as we doubt) some domain of applicability of the Act to prisoners, the Act would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners. No discrimination is alleged; Bryant was not treated worse because he was disabled. His complaint is that he was not given special accommodation.... The ADA does not create a remedy for medical malpractice."
The court held that based on this standard Bryant had failed to state a claim under the ADA. Thus, the claim was properly dismissed by the district court. The court held that prisoners complaining of medical neglect or malpractice must avail themselves of state court remedies. "Even apart from the prison setting it would be extremely odd to suppose that disabled persons whose disability is treated negligently have a federal malpractice claim by virtue of the Americans with Disabilities Act, whereas a sick or injured but not disabled person,... must be content with the remedy that the state law of medical malpractice provides." See: Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996).
In a second ruling, the appeals court denied the defendants' petition for a rehearing. In their petition the defendants presented an affidavit from a district court clerk stating the Lewis notice had been sent to Bryant but was omitted from the appellate record. The appeals court was not impressed, noting that there was no mention of the notice in the district court record either.
The court held that even if the notice was sent, its prior ruling would stand because the notice was not informative. The notice did not tell Bryant that failure to respond to the defendants' summary judgment motion might result in dismissal. "The entire purpose of Lewis v. Faulkner is to warn an unrepresented party (and in Bryant's case, the unrepresented party was clearly a legally unsophisticated party, as well) of the consequences of failing to respond with affidavits, or other evidence, as distinct from argument. These notices don't do that.... Mere citation of Lewis is not enough, since an unrepresented party, especially as in this case a prisoner, cannot be assumed to have the knowledge required to look up a case and read it with comprehension."
The court expressed its concern with the vagueness of the notice as well as the clerk's statement that such notices would not be included in the appellate record unless directed by the appeals court. The court noted that in a 1987 order, 7th Cir.R. 10(a), such notices are specifically ordered to be part of the record. "It is essential that the Lewis v. Faulkner notices be included in the appellate record, since unless they are sent to unrepresented parties the grant of summary judgment to their opponents may be invalid." See: Bryant v. Madigan, 91 F.3d 994 (7th Cir. 1996).
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Related legal cases
Bryant v. Madigan
| Year | 1996 |
|---|---|
| Cite | 91 F.3d 994 (7th Cir. 1996) |
| Level | Court of Appeals |
--------------------------------------------------------------------------------
Bryant v. Madigan, 91 F.3d 994 (7th Cir. 08/01/1996)
[Editor's note: footnotes (if any) trail the opinion]
[1] In the United States Court of Appeals For the Seventh Circuit
[2] No. 95-2349
[3] RONALD G. BRYANT,
[4] Plaintiff-Appellant,
v.
[5] DAVID MADIGAN, NANCY GRIFFIN, and DOROTHY MULCAHEY,
[6] Defendants-Appellees.
[7] Appeal from the United States District Court for the Central District of Illinois.
[8] No. 94 C 2153
[9] Harold A. Baker, Judge.
[10] ON PETITION FOR REHEARING
[11] DECIDED AUGUST 1, 1996
[12] Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.
[13] PER CURIAM.
[14] Bryant, an Illinois state prisoner, brought this damages suit against his keepers, complaining that they had refused his request for guardrails for his bed and that as a result he had broken his leg when a severe leg spasm caused him to fall out of bed. (Bryant is a paraplegic, and leg spasms are a symptom of his condition.) He also complained that after the operation to fix his leg he was denied pain medication. He alleged violations of both the Eighth Amendment and the Americans With Disabilities Act, 42 U.S.C. secs. 12101 et seq. The district judge granted summary judgment for the defendants. Bryant appealed. We affirmed the dismissal of his claim under the disabilities act, but reversed the dismissal of his Eighth Amendment claim. In reliance on an affidavit and deposition by medical practitioners, the district judge had concluded that the defendants had not been deliberately indifferent to Bryant's medical needs. We held that in basing his decision on the affidavit and deposition when he did, the district judge had jumped the gun. Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), requires that an unrepresented party be notified of the consequences of failing to respond to evidence presented in support of his opponent's motion for summary judgment with evidence of his own; must be told, in short, that he cannot rest on his pleadings. After the defendants submitted their evidence, the judge "granted [the parties] an additional fourteen days to submit any further materials permitted by Fed. R. Civ. P. 56," but did not say anything about the consequences for Bryant in failing to take up this invitation. It was on this basis that we reversed.
[15] The defendants have asked for rehearing, on the ground that Lewis v. Faulkner notices were sent to the plaintiff and simply omitted by inadvertence from the appellate record. Actually, they don't seem to have been a part of the record in the district court either, as there is no reference to them in the district court docket sheet. The defendants have, however, submitted the affidavit of a deputy clerk of the district court that notices were sent (two identical notices, sent one month apart), together with the copies of the notices, and in his reply to the petition for rehearing the plaintiff does not deny having received them. So we shall assume they were sent. But they are not a good ground for our changing our decision, because they are not informative. All they say, after telling the party that a motion for judgment has been filed by his adversary and that he has 14 days within which to respond, is that "You may respond by affidavits or as otherwise provided in Rule 56. If you do not respond, the motion, if appropriate, shall be entered against you. See generally Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982); Ross v. Franzen, 777 F.2d 1216, 1219 (7th Cir. 1985)." Bryant did respond; only he did not counter the affidavits that the defendants had presented in support of their motion with affidavits (or equivalent evidence) of his own. The notices did not tell him that a failure to respond in that way might be fatal. The entire purpose of Lewis v. Faulkner is to warn an unrepresented party (and in Bryant's case, the unrepresented party was clearly a legally unsophisticated party, as well) of the consequences of failing to respond with affidavits, or other evidence, as distinct from argument. These notices don't do that. Timms v. Frank, 953 F.2d 281, 285-86 (7th Cir. 1992); see also Kincaid v. Vail, 969 F.2d 594, 599 (7th Cir. 1992); Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992). Compare Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (per curiam). Mere citation of Lewis is not enough, since an unrepresented party, especially as in this case a prisoner, cannot be assumed to have the knowledge required to look up a case and read it with comprehension. The notices mention Rule 56 but do not even bother to say "of the Federal Rules of Civil Procedure." The notices are drafted as if addressed to an insider, by which we mean a lawyer rather than an inmate.
[16] We are distressed not only by the vagueness of the notices but also by the statement in the deputy clerk's affidavit that her understanding of the rules of this court is that "Notices [including notices required by Lewis v. Faulkner] are not to be sent as part of the Record on Appeal." As the basis for this understanding she cites an order by this court, issued on June 13, 1984, amending 7th Cir. R. 4(a)(1) to direct that among the items not to be included in the appellate record unless directed by this court were "notices and filings." Alas, the amendment was in error; "and" should have been "of." The error was corrected by order of March 1, 1987 (see 7th Cir. R. 10(a), the successor to Rule 4(a)(1)), as we take this opportunity to remind any other district court clerks who may have missed the correction. It is essential that the Lewis v. Faulkner notices be included in the appellate record, since unless they are sent to unrepresented parties the grant of summary judgment to their opponents may be invalid.
[17] The petition for rehearing is DENIED.
19960801
Bryant v. Madigan, 91 F.3d 994 (7th Cir. 08/01/1996)
[Editor's note: footnotes (if any) trail the opinion]
[1] In the United States Court of Appeals For the Seventh Circuit
[2] No. 95-2349
[3] RONALD G. BRYANT,
[4] Plaintiff-Appellant,
v.
[5] DAVID MADIGAN, NANCY GRIFFIN, and DOROTHY MULCAHEY,
[6] Defendants-Appellees.
[7] Appeal from the United States District Court for the Central District of Illinois.
[8] No. 94 C 2153
[9] Harold A. Baker, Judge.
[10] ON PETITION FOR REHEARING
[11] DECIDED AUGUST 1, 1996
[12] Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.
[13] PER CURIAM.
[14] Bryant, an Illinois state prisoner, brought this damages suit against his keepers, complaining that they had refused his request for guardrails for his bed and that as a result he had broken his leg when a severe leg spasm caused him to fall out of bed. (Bryant is a paraplegic, and leg spasms are a symptom of his condition.) He also complained that after the operation to fix his leg he was denied pain medication. He alleged violations of both the Eighth Amendment and the Americans With Disabilities Act, 42 U.S.C. secs. 12101 et seq. The district judge granted summary judgment for the defendants. Bryant appealed. We affirmed the dismissal of his claim under the disabilities act, but reversed the dismissal of his Eighth Amendment claim. In reliance on an affidavit and deposition by medical practitioners, the district judge had concluded that the defendants had not been deliberately indifferent to Bryant's medical needs. We held that in basing his decision on the affidavit and deposition when he did, the district judge had jumped the gun. Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), requires that an unrepresented party be notified of the consequences of failing to respond to evidence presented in support of his opponent's motion for summary judgment with evidence of his own; must be told, in short, that he cannot rest on his pleadings. After the defendants submitted their evidence, the judge "granted [the parties] an additional fourteen days to submit any further materials permitted by Fed. R. Civ. P. 56," but did not say anything about the consequences for Bryant in failing to take up this invitation. It was on this basis that we reversed.
[15] The defendants have asked for rehearing, on the ground that Lewis v. Faulkner notices were sent to the plaintiff and simply omitted by inadvertence from the appellate record. Actually, they don't seem to have been a part of the record in the district court either, as there is no reference to them in the district court docket sheet. The defendants have, however, submitted the affidavit of a deputy clerk of the district court that notices were sent (two identical notices, sent one month apart), together with the copies of the notices, and in his reply to the petition for rehearing the plaintiff does not deny having received them. So we shall assume they were sent. But they are not a good ground for our changing our decision, because they are not informative. All they say, after telling the party that a motion for judgment has been filed by his adversary and that he has 14 days within which to respond, is that "You may respond by affidavits or as otherwise provided in Rule 56. If you do not respond, the motion, if appropriate, shall be entered against you. See generally Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982); Ross v. Franzen, 777 F.2d 1216, 1219 (7th Cir. 1985)." Bryant did respond; only he did not counter the affidavits that the defendants had presented in support of their motion with affidavits (or equivalent evidence) of his own. The notices did not tell him that a failure to respond in that way might be fatal. The entire purpose of Lewis v. Faulkner is to warn an unrepresented party (and in Bryant's case, the unrepresented party was clearly a legally unsophisticated party, as well) of the consequences of failing to respond with affidavits, or other evidence, as distinct from argument. These notices don't do that. Timms v. Frank, 953 F.2d 281, 285-86 (7th Cir. 1992); see also Kincaid v. Vail, 969 F.2d 594, 599 (7th Cir. 1992); Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992). Compare Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (per curiam). Mere citation of Lewis is not enough, since an unrepresented party, especially as in this case a prisoner, cannot be assumed to have the knowledge required to look up a case and read it with comprehension. The notices mention Rule 56 but do not even bother to say "of the Federal Rules of Civil Procedure." The notices are drafted as if addressed to an insider, by which we mean a lawyer rather than an inmate.
[16] We are distressed not only by the vagueness of the notices but also by the statement in the deputy clerk's affidavit that her understanding of the rules of this court is that "Notices [including notices required by Lewis v. Faulkner] are not to be sent as part of the Record on Appeal." As the basis for this understanding she cites an order by this court, issued on June 13, 1984, amending 7th Cir. R. 4(a)(1) to direct that among the items not to be included in the appellate record unless directed by this court were "notices and filings." Alas, the amendment was in error; "and" should have been "of." The error was corrected by order of March 1, 1987 (see 7th Cir. R. 10(a), the successor to Rule 4(a)(1)), as we take this opportunity to remind any other district court clerks who may have missed the correction. It is essential that the Lewis v. Faulkner notices be included in the appellate record, since unless they are sent to unrepresented parties the grant of summary judgment to their opponents may be invalid.
[17] The petition for rehearing is DENIED.
19960801
Bryant v. Madigan
| Year | 1996 |
|---|---|
| Cite | 84 F.3d 246 (7th Cir. 1996) |
| Level | Court of Appeals |
RONALD G. BRYANT, Plaintiff-Appellant, v. DAVID MADIGAN, NANCY GRIFFIN, and DOROTHY MULCAHEY, Defendants-Appellees.
No. 95-2349
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
84 F.3d 246; 1996 U.S. App. ; 5 Am. Disabilities Cas. (BNA) 833
March 14, 1996, Submitted
May 17, 1996, Decided
SUBSEQUENT HISTORY: [**1] Rehearing Denied August 1, 1996, Reported at: 1996 U.S. App. LEXIS 18989.
PRIOR HISTORY: Appeal from the United States District Court for the Central District of Illinois. No. 94 C 2153. Harold A. Baker, Judge.
DISPOSITION: AFFIRMED IN PART AND REVERSED IN PART.
COUNSEL: Ronald G. Bryant, Plaintiff - Appellant, Submitted, [COR LD NTC pro], Urbana, IL, USA.
For DAVID MADIGAN, Sheriff of Champaign County, NANCY GRIFFIN, Program Coordinator, DOROTHY MULCAHEY, Head of Nursing, Defendants - Appellees: Lorna K. Geiler, MEYER, CAPEL, HIRSCHFELD, MUNCY, JAHN & ALDEEN, Champaign, IL, USA. James C. Dedman, OFFICE OF THE STATE'S ATTORNEY OF CHAMPAIGN COUNTY, Urbana, IL, USA.
JUDGES: Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.
OPINIONBY: POSNER
OPINION:
[*247] POSNER, Chief Judge. Bryant, an Illinois state prisoner, brought this damages suit against his keepers, complaining that they had refused his request for guardrails for his bed and that as a result he had broken his leg when a severe leg spasm caused him to fall out of bed. (Bryant is a paraplegic, and leg spasms are a symptom of his condition.) He also complains that after the operation to fix his leg he was denied pain medication. He claims that the defendants' conduct violated both the Eighth [*248] Amendment and the Americans With Disabilities [**2] Act, 42 U.S.C. § § 12101 et seq. The district judge granted summary judgment for the defendants. In reliance on an affidavit and deposition by medical practitioners he concluded that the defendants had not been deliberately indifferent to Bryant's medical needs. And he held that the disabilities act is inapplicable to Bryant's claim.
In basing his decision on the affidavit and deposition when he did, the district judge jumped the gun, in violation of the rule of Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), that an unrepresented party must be notified of the consequences of failing to respond to evidence presented in support of his opponent's motion for summary judgment with evidence of his own; must be told, in short, that he cannot rest on his pleadings. After the defendants submitted their evidence, the judge "granted [the parties] an additional fourteen days to submit any further materials permitted by Fed. R. Civ. P. 56," but did not say anything about the consequences for Bryant in failing to take up this invitation. We cannot say that the error was harmless, and we must therefore remand Bryant's Eighth Amendment claim to the district court.
The second question presented [**3] by the appeal is the applicability of the disabilities act to correctional facilities. The question has divided the circuits. See Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), which discusses the cases interpreting the Americans With Disabilities Act and the materially identical Rehabilitation Act, 29 U.S.C. § 794. Title II of the ADA, the title that concerns public services, provides that "no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity." 42 U.S.C. § 12131. The term "public entity" is defined to include any instrumentality of state or local government. § 12131(1). There is no express exclusion of jails and prisons. A total exclusion would mean that the states had no duty to avoid discriminating against, and no duty to accommodate the reasonable needs of, persons who wanted to work as correctional officers, lawyers who had clients in jail or prison whom they wanted to visit, or, as in Pack v. Arkansas Valley Correctional Facility, 894 P.2d 34, 39 (Colo. App. 1995), other visitors. [**4]
Even if such persons are protected, however, which we need not decide (for Congress may not have wanted to burden the states with the potentially enormous costs of making their prisons fully accessible to disabled visitors and employees), it would not necessarily follow that prisons or jails that offer educational or vocational programs for prisoners must redesign their programs to accommodate the needs of disabled prisoners. It is very far from clear that prisoners should be considered "qualified individuals" within the meaning of the Act. Could Congress really have intended disabled prisoners to be mainstreamed into an already highly restricted prison society? Most rights of free Americans, including constitutional rights such as the right to free speech, to the free exercise of religion, and to marry, are curtailed when asserted by prisoners; and there are formidable practical objections to burdening prisons with having to comply with the onerous requirements of the Act, especially when we reflect that alcoholism and other forms of addiction are disabilities within the meaning of the Act and afflict a substantial proportion of the prison population. Although there is authority [**5] that prisoners employed in the prison may be protected by Title VII of the Civil Rights Act of 1964, Baker v. McNeil Island Corrections Center, 859 F.2d 124, 128 (9th Cir. 1988), there is contrary authority, Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991); and arguments that prisoners employed within the prison (as distinct from prisoners on work release) are protected by the Fair Labor Standards Act and thus entitled to the federal minimum wage have been uniformly rejected. E.g., Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992); Morgan v. MacDonald, 41 F.3d 1291 (9th Cir. 1994); McMaster v. Minnesota, 30 F.3d 976 (8th Cir. 1994); Henthorn v. Department of the Navy, 308 U.S. App. D.C. 36, 29 F.3d 682 (D.C. Cir. 1994); Hale v. Arizona, 993 F.2d 1387, 1392-98 (9th Cir. 1992) (en banc). Judge-made exceptions, see id. at 1392, to [*249] laws of general applicability are justified to avoid absurdity. Cf. Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490 (7th Cir. 1993). And an exception to the Americans With Disabilities Act for prisoners, though not express, may have textual foundation in the term "qualified individual."
Even if there were (as we doubt) some domain of applicability of the Act to [**6] prisoners, the Act would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners. No discrimination is alleged; Bryant was not treated worse because he was disabled. His complaint is that he was not given special accommodation. Unlike the prisoner plaintiffs in Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 1995), or Donnell v. Illinois State Bd. of Education, 829 F. Supp. 1016, 1020 (N.D. Ill. 1993), he is not complaining of being excluded from some prison service, program, or activity, for example an exercise program that his paraplegia would prevent him from taking part in without some modification of the program. He is complaining about incompetent treatment of his paraplegia. The ADA does not create a remedy for medical malpractice.
Standards of medical care are not irrelevant to the statute. Disabled people often cannot participate in programs and activities unless special attention is given to their medical needs. But incarceration, which requires the provision of a place to sleep, is not a "program" or "activity." Sleeping in one's cell is not a "program" or "activity." Even apart from the prison setting it would be extremely odd [**7] to suppose that disabled persons whose disability is treated negligently have a federal malpractice claim by virtue of the Americans With Disabilities Act, whereas a sick or injured but not disabled person--a person suffering from an acute viral infection, perhaps, or who has broken his leg, or who has a hernia or an inflamed gall bladder--must be content with the remedy that the state law of medical malpractice provides. Moreover, the courts have labored mightily to prevent the transformation of the Eighth Amendment's cruel and unusual punishments clause into a medical malpractice statute for prisoners. We would be exceedingly surprised to discover that Congress had made an end run around these decisions in the Americans With Disabilities Act.
In light of our conclusion that Bryant failed to state a claim under the ADA, we need not decide whether he named the proper parties as defendants to that claim.
We have not considered the possible bearing on this suit of the new Prison Litigation Reform Act, enacted on April 26, 1996, as part of the federal omnibus fiscal year 1996 appropriations measure. That will be a matter for the district court to consider on remand.
The judgment dismissing [**8] Bryant's suit is
AFFIRMED IN PART AND REVERSED IN PART.
No. 95-2349
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
84 F.3d 246; 1996 U.S. App. ; 5 Am. Disabilities Cas. (BNA) 833
March 14, 1996, Submitted
May 17, 1996, Decided
SUBSEQUENT HISTORY: [**1] Rehearing Denied August 1, 1996, Reported at: 1996 U.S. App. LEXIS 18989.
PRIOR HISTORY: Appeal from the United States District Court for the Central District of Illinois. No. 94 C 2153. Harold A. Baker, Judge.
DISPOSITION: AFFIRMED IN PART AND REVERSED IN PART.
COUNSEL: Ronald G. Bryant, Plaintiff - Appellant, Submitted, [COR LD NTC pro], Urbana, IL, USA.
For DAVID MADIGAN, Sheriff of Champaign County, NANCY GRIFFIN, Program Coordinator, DOROTHY MULCAHEY, Head of Nursing, Defendants - Appellees: Lorna K. Geiler, MEYER, CAPEL, HIRSCHFELD, MUNCY, JAHN & ALDEEN, Champaign, IL, USA. James C. Dedman, OFFICE OF THE STATE'S ATTORNEY OF CHAMPAIGN COUNTY, Urbana, IL, USA.
JUDGES: Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.
OPINIONBY: POSNER
OPINION:
[*247] POSNER, Chief Judge. Bryant, an Illinois state prisoner, brought this damages suit against his keepers, complaining that they had refused his request for guardrails for his bed and that as a result he had broken his leg when a severe leg spasm caused him to fall out of bed. (Bryant is a paraplegic, and leg spasms are a symptom of his condition.) He also complains that after the operation to fix his leg he was denied pain medication. He claims that the defendants' conduct violated both the Eighth [*248] Amendment and the Americans With Disabilities [**2] Act, 42 U.S.C. § § 12101 et seq. The district judge granted summary judgment for the defendants. In reliance on an affidavit and deposition by medical practitioners he concluded that the defendants had not been deliberately indifferent to Bryant's medical needs. And he held that the disabilities act is inapplicable to Bryant's claim.
In basing his decision on the affidavit and deposition when he did, the district judge jumped the gun, in violation of the rule of Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), that an unrepresented party must be notified of the consequences of failing to respond to evidence presented in support of his opponent's motion for summary judgment with evidence of his own; must be told, in short, that he cannot rest on his pleadings. After the defendants submitted their evidence, the judge "granted [the parties] an additional fourteen days to submit any further materials permitted by Fed. R. Civ. P. 56," but did not say anything about the consequences for Bryant in failing to take up this invitation. We cannot say that the error was harmless, and we must therefore remand Bryant's Eighth Amendment claim to the district court.
The second question presented [**3] by the appeal is the applicability of the disabilities act to correctional facilities. The question has divided the circuits. See Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), which discusses the cases interpreting the Americans With Disabilities Act and the materially identical Rehabilitation Act, 29 U.S.C. § 794. Title II of the ADA, the title that concerns public services, provides that "no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity." 42 U.S.C. § 12131. The term "public entity" is defined to include any instrumentality of state or local government. § 12131(1). There is no express exclusion of jails and prisons. A total exclusion would mean that the states had no duty to avoid discriminating against, and no duty to accommodate the reasonable needs of, persons who wanted to work as correctional officers, lawyers who had clients in jail or prison whom they wanted to visit, or, as in Pack v. Arkansas Valley Correctional Facility, 894 P.2d 34, 39 (Colo. App. 1995), other visitors. [**4]
Even if such persons are protected, however, which we need not decide (for Congress may not have wanted to burden the states with the potentially enormous costs of making their prisons fully accessible to disabled visitors and employees), it would not necessarily follow that prisons or jails that offer educational or vocational programs for prisoners must redesign their programs to accommodate the needs of disabled prisoners. It is very far from clear that prisoners should be considered "qualified individuals" within the meaning of the Act. Could Congress really have intended disabled prisoners to be mainstreamed into an already highly restricted prison society? Most rights of free Americans, including constitutional rights such as the right to free speech, to the free exercise of religion, and to marry, are curtailed when asserted by prisoners; and there are formidable practical objections to burdening prisons with having to comply with the onerous requirements of the Act, especially when we reflect that alcoholism and other forms of addiction are disabilities within the meaning of the Act and afflict a substantial proportion of the prison population. Although there is authority [**5] that prisoners employed in the prison may be protected by Title VII of the Civil Rights Act of 1964, Baker v. McNeil Island Corrections Center, 859 F.2d 124, 128 (9th Cir. 1988), there is contrary authority, Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991); and arguments that prisoners employed within the prison (as distinct from prisoners on work release) are protected by the Fair Labor Standards Act and thus entitled to the federal minimum wage have been uniformly rejected. E.g., Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992); Morgan v. MacDonald, 41 F.3d 1291 (9th Cir. 1994); McMaster v. Minnesota, 30 F.3d 976 (8th Cir. 1994); Henthorn v. Department of the Navy, 308 U.S. App. D.C. 36, 29 F.3d 682 (D.C. Cir. 1994); Hale v. Arizona, 993 F.2d 1387, 1392-98 (9th Cir. 1992) (en banc). Judge-made exceptions, see id. at 1392, to [*249] laws of general applicability are justified to avoid absurdity. Cf. Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490 (7th Cir. 1993). And an exception to the Americans With Disabilities Act for prisoners, though not express, may have textual foundation in the term "qualified individual."
Even if there were (as we doubt) some domain of applicability of the Act to [**6] prisoners, the Act would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners. No discrimination is alleged; Bryant was not treated worse because he was disabled. His complaint is that he was not given special accommodation. Unlike the prisoner plaintiffs in Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 1995), or Donnell v. Illinois State Bd. of Education, 829 F. Supp. 1016, 1020 (N.D. Ill. 1993), he is not complaining of being excluded from some prison service, program, or activity, for example an exercise program that his paraplegia would prevent him from taking part in without some modification of the program. He is complaining about incompetent treatment of his paraplegia. The ADA does not create a remedy for medical malpractice.
Standards of medical care are not irrelevant to the statute. Disabled people often cannot participate in programs and activities unless special attention is given to their medical needs. But incarceration, which requires the provision of a place to sleep, is not a "program" or "activity." Sleeping in one's cell is not a "program" or "activity." Even apart from the prison setting it would be extremely odd [**7] to suppose that disabled persons whose disability is treated negligently have a federal malpractice claim by virtue of the Americans With Disabilities Act, whereas a sick or injured but not disabled person--a person suffering from an acute viral infection, perhaps, or who has broken his leg, or who has a hernia or an inflamed gall bladder--must be content with the remedy that the state law of medical malpractice provides. Moreover, the courts have labored mightily to prevent the transformation of the Eighth Amendment's cruel and unusual punishments clause into a medical malpractice statute for prisoners. We would be exceedingly surprised to discover that Congress had made an end run around these decisions in the Americans With Disabilities Act.
In light of our conclusion that Bryant failed to state a claim under the ADA, we need not decide whether he named the proper parties as defendants to that claim.
We have not considered the possible bearing on this suit of the new Prison Litigation Reform Act, enacted on April 26, 1996, as part of the federal omnibus fiscal year 1996 appropriations measure. That will be a matter for the district court to consider on remand.
The judgment dismissing [**8] Bryant's suit is
AFFIRMED IN PART AND REVERSED IN PART.