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Statutes Affecting Disabled Prisoners

In the past couple of years, there have been a number of changes to federal statutes that provide protections to those confined with disabilities. This article discusses those changes. Additional rights that the disabled may have under federal and state constitutional provisions, such as the Eighth Amendment right to be provided medical care, and under State Constitutions and laws are not addressed in this article.

Americans with Disabilities Act (ADA)

In 1990, the Americans with Disabilities Act was enacted because "current laws [e.g. the Rehabilitation Act] were `inadequate' to combat `the pervasive problems of discrimination that people with disabilities are facing.'" See: Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.) (quoting S.REP. NO. 116, 101st Cong., 1st Sess. 18 (1989)), cert. denied, 516 U.S. 813 (1995). Even though the language of the ADA did not appear to exclude prisons and prisoners from its coverage, many courts refused to apply it to prisoners. See, e.g.: Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995); Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998); Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999) (prior to 1996, not clear that ADA and RA applied to prisoners). It was not until 1998, in Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952 (1998), that the United States Supreme Court held that both the ADA and the Rehabilitation Act (hereafter RA) applied to prisoners. (See supra for discussion of the RA.) However, the Yeskey Court left unresolved for another day the issue of whether Congress properly exercised its power to waive a State's Eleventh Amendment immunity when enacting the ADA. Id at 1955. See infra, for a discussion on Eleventh Amendment Immunity.

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity" To prove that denial of access to a public program or service violated Title II of the ADA, a prisoner must show: (1) s/he is a "qualified individual with a disability" [Love v. Westville Correctional Center, 103 F.3d 558, 560 (7th Cir. 1996)]; (2) s/he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of the disability. See: Weinreich v. Los Angeles County Metropolitan Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997); Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). As an affirmative defense, a defendant may demonstrate that the requested accommodation would constitute an undue burden. See: Gorman v. Bartch, supra at, 911.

The ADA and RA require that otherwise qualified individuals receive "meaningful access" to programs and activities. See: Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir. 1988) (quoting Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712 (1985)). In a lawsuit, the disabled person must be able to show s/he was denied "meaningful access to the claimed ADA or RA violations. Thus, when filing a grievance to exhaust administrative remedies, it is important to state in the grievance how "meaningful access" was denied.

To prevail on an ADA or RA claim, there must be a showing of intentional discrimination based in some part on the victim's disability. See: Wisconsin Correctional Service v. City of Milwaukee, 173 F.Supp.2d 842, 849 (E.D. Wisc. 2001). "Intentional discrimination [against the disabled] does not require personal animosity or ill will it is sufficient that defendant treated plaintiffs unfavorably because of their handicap." See: Oxford House-C v. City of St. Louis, 843 F.Supp. 1556, 1577 (E.D. Mo. 1994).

Intentional discrimination can include actions motivated by stereotypes, unfounded fears, misperceptions, and "archaic attitudes", as well as simple prejudice about people with disabilities. See: School Board of Nassau County v. Arline, 480 U.S. 273, 279, 107 S.Ct. 1123 (1987). To show intentional discrimination it is not necessary that a disabled person prove that defendant's actions were motivated by a malicious desire to discriminate. It is enough that the actions were motivated by or based on consideration of the protected status itself. See: Stewart B. McKinney Foundation, Inc. v. Town Plan and Zoning Commission, 790 F.Supp. 1197. 1210-11 (D. Conn. 1992).

Federal Rehabilitation Act (RA)

The Rehabilitation Act provides, in relevant part: "No otherwise qualified individual with a disability ... shall solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ..." [29 U.S.C. § 794(a).]

The RA defines "program or activity" to include "all of the operations of ... [ ] a department, agency, special district, or other instrumentality of a State or of a local government ... any part of which is extended Federal financial assistance." Thus, in order for the RA to apply, the correction agency or jail must be receiving federal funds. In a complaint, it can be alleged "on information and belief that the DOC is receiving federal funds." Then in discovery, either an admission or other discovery requests can be used to establish that the DOC is receiving federal funds.

The RA provides that no otherwise qualified individual with a disability shall be "excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." [29 U.S.C. § 794(a).] The RA defines "program or activity" to include "all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local government." [29 U.S.C. § 794(b).]

A lawsuit brought pursuant to § 504 must show that the person (1) is an individual with a disability; (2) is otherwise qualified to receive the benefit; (3) was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance. The exclusion from the program must be based solely on the disability to be actionable. See: Wisconsin Correctional Service v. City of Milwaukee, supra at 849.

Who To Sue Under the ADA or RA

Courts have held that prison staff cannot be sued in their individual capacities to recover damages or injunctive relief under the ADA and RA. See: Key v. Grayson, 163 F.Supp.2d 697, 715 (E.D. MI. 2001). Under both the ADA and RA, the governmental entity is to be the named defendant. See: Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000). Liability may be imposed on the agency for the statutory violations of its agent since "the liability of the master is derived from and is dependent upon the liability of the servant." See: EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279 (7th Cir. 1995) (ADA); Bonner v. Lewis, supra at 566-67 (RA); Norwalk v. AirWay Elec. Appliance Corp., 87 F.2d 317, 319 (2d Cir. 1937); accord Rodick v. City of Schenectady, 1 F.3d 1341, 1348 (2d Cir. 1993).

There is a split in authorities whether it is sufficient to just sue prison staff in their official capacities instead of also suing the agency. If staff is named in their official capacity, it is highly advised that the only prison staff named in the lawsuit is the director of the correction agency or jail.

Eleventh Amendment Immunity

The United States Supreme Court, in Bd. of Trustees v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), held that States were entitled to Eleventh Amendment immunity for any damage actions under Title I of the ADA. Note that counties are not protected from damage lawsuits under the Eleventh Amendment, which means that jails are subject to damage actions under Federal disabilities statutes. See Hess v. Port Authority TransHudson Corp., 513 U.S. 30, 45-6, 115 S.Ct. 394 (1994). The Court did not decide whether Title II of the ADA was enacted in a manner that the Eleventh Amendment immunity of the States was waived as to damage claims. Recently, the Sixth Circuit held that a damage claim under Title II for alleging a violation of equal protection principles is barred by the Eleventh Amendment immunity. The Sixth Circuit went on to hold that a damage claim based on disability in a due process-type claim is not barred. See: Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div., 276 F.3d 808 (6th Cir. 2001) (en banc), reversing 227 F.3d 627 (2000).

In 1996, the United States Supreme Court held that States do not have immunity under the Eleventh Amendment from lawsuits brought pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended. See: Lane v. Pena, 518 U.S. 187, 116 S.Ct. 2092 (1996).

Qualified Immunity

Qualified immunity protects individual governmental officials from damage liability in civil rights cases unless they violate "clearly established statutory or constitutional rights of which a reasonable person would have known." See: Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982). It only applies to officials sued in their individual capacities for money damages; it does not protect municipalities or officials sued in their official capacities [Owen v. Independence, 445 U.S. 622, 100 S.Ct. 1398 (1980)], and it does not apply to claims for injunctive relief [Newman v. Burgin, 930 F.2d 955, 957 (1st Cir. 1991)]. Qualified immunity does not protect private parties who are acting under color of state law. See: Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1829, 1833-34 (1992).

Courts have held that qualified immunity is a personal defense that does not apply to institutional defendants in suits under federal statutes. This means that when the correction agency or jail is sued it cannot raise the defense of qualified immunity, i.e., that the defendant cannot be liable since the law was not clearly established at the time the violation occurred. See: Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2000), for a discussion as to the elements of qualified immunity. See also: Comstock v. McCrary, 273 F.3d 693 (6th Cir. 2001). This would also apply if the director of the correction agency or jail has been named in his or her official capacity. See: Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358 (1991) .


Title II of the ADA and the provisions of RA require a plaintiff to prove intentional discrimination on the part of the defendant to recover compensatory damages. See: Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998); Alexander v. Sandoval, 531 U.S. 1049, 121 S.Ct. 1511, 1517 (2001). To prove intentional discrimination, most courts have required the plaintiff to show "deliberate indifference" rather than a "discriminatory animus." See: Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). "Deliberate indifference" requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood." The prison staff must be put on notice of the disability and the need for an accommodation. See: Duvall v. County of Kitsap, supra.; Bartlett v. New York State Board of Law Examiners, 156 F.3d 321, 331 (2d Cir. 1998). This is one of the reasons it is important to file a detailed grievance and to grieve each factual detail of the alleged wrong. Once the entity, through it staff, has been placed on notice, it has a duty "to undertake a fact specific investigation to determine what constitutes a reasonable accommodation,..." [Duvall v. County of Kitsap, supra.] "[M]ere [ ] speculat[ion] that a suggested accommodation is not feasible falls short of the reasonable accommodation requirement; the Acts create a duty to gather sufficient information from the [disabled individual] and qualified experts as needed to determine what accommodations are necessary." See: Wong v. Regents of the University of California, 192 F.3d 807, 818 (9th Cir.1999).

The U.S. Supreme Court has held that punitive damages are not available under either the ADA or the RA. See: Barnes v. Gorman, 122 S.Ct. 2097 (2002).

Injunctive Relief

In order to establish a claim for injunctive relief under the ADA or the RA, a plaintiff must show that s/he is a "qualified" individual with a disability [42 U.S.C. § 12132] that the requested relief would not work a "fundamental change" to the services being requested [28 CFR § 35.130(b)(7)], that the relief is "reasonable,", and that it is "necessary, ...."

Courts have defined these terms since when they are used in this statute they are not susceptible to common usage. The terms "necessary" within the context of the ADA means capable of providing direct amelioration of a problem facing qualified individuals with disabilities. See: Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.1995). The term "reasonableness" means primarily whether the requested accommodation will impose an undue financial or administrative burden on the defendant. See: School Board of Nassau County v. Arline, supra 480 U.S. at 287 (citation omitted).

Attorney Fees

Under the American Rule, attorney's fees may be granted only if the relevant statute provides for such an award. See: Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 257, 95 S.Ct. 1612 (1975). The U.S. Supreme Court has abolished the use of the "catalyst theory" as a basis of receiving attorney fees when the plaintiff has received all the relief sought but no judgment was entered by the court. See: Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 601-08, 121 S.Ct. 1835 (2001). The ADA provides for the award of attorney's fees: "In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs...." [42 U.S.C. § 12205; accord 28 C.F.R. § 36.505.]

The Rehabilitation Act also provides for the award of attorney's fees: "In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." See: 29 U.S.C. § 794a(b); Noe v. Ambach, 542 F.Supp. 70, 72 (S.D. N.Y. 1982).

In determining under the ADA or RA whether a plaintiff is a "prevailing party," a court is to explain the standard established for determining whether a plaintiff is a "prevailing party" under § 1988. See: J.C. v. Regional School Dist. 10, Bd. of Educ., 278 F.3d 119, 125 (2d Cir. 2002) (citations omitted). "Prevailing party" has been defined as: "[A] plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." The Court explained that "a material alteration of the legal relationship occurs [when] the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant." In these situations, the legal relationship is altered because the plaintiff can force the defendant to do something he otherwise would not have to do. See: Farrar v. Hobby, 506 U.S. 103, 11112, 113 S.Ct. 566 (1992).

Some courts have held that the Prison Litigation Reform Act, 42 U.S.C. § 1997e(d), does not apply to ADA and RA cases. See, e.g., Beckford v. Irvin, 60 F.Supp.2d 85, 88 (W.D. N.Y. 1999) ("The PLRA does not limit the award of attorney's fees to a prevailing [ADA or RA inmate-]plaintiff whose award is authorized under a statute separate from § 1988."), contrary, Cassidy v. Indiana Dept. of Corrections, 199 F.3d 374, 376 (7th Cir. 2000) ((dictum) § 1997e(d) limits recovery of attorney's fees available to inmates under § 1988 and ADA). Section of 1997e(d) imposes limits on attorney fees that can be obtained under 42 U.S.C. § 1988. The fees limitations imposed by the PLRA are that the defendant is not required to pay more than 150 per cent of any judgment and that the hourly rate is no greater than 150 per cent of the Criminal Justice Act local rate [42 U.S.C. § 1997e(d)]. Unlike 42 U.S.C. § 1988, the ADA also allows prevailing parties to recover their expert witness fees. See: Lovell v. Chandler, 302 F.3d 1039 (9th Cir. 2002).

Exhaustion of Administrative Remedies

Before a lawsuit can be filed under the disabilities laws cited herein, prisoners must exhaust their administrative remedies [42 U.S.C. § 1997e(a)]. See Booth v. Churner, 531 U.S. 956, 121 S.Ct. 1819, 1825 (2001). Unlike exhaustion when bringing a § 1983 civil rights claim which requires that the named defendant be included in the grievance [Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001)], exhaustion prior to bringing a lawsuit pursuant to a disability statute requires that the claims raised in the lawsuit be presented to the agency for its resolution. [Note: There are some cases that hold exhaustion is not required when an ADA or RA lawsuit is filed, however, based upon the language in the PLRA, it is the professional opinion of this writer that exhaustion will be required.]


Many of the statutory provisions and changes discussed above are favorable toward prisoners. However, prison officials continue to curtail the few disabled rights that prisoners retain. If a prisoner's disability rights are being violated, exhaustion of administrative remedies must be completed before filing any lawsuit. Claims should be pursued under both the ADA and RA until the U.S. Supreme Court has decided whether the violations of Title II of the ADA was constitutionally past by Congress. When bringing an action under the RA, ensure that the defendant is receiving federal funds. To litigate a disability lawsuit is not as hard as it looks. g

Daniel E. Manville, a 1981 graduate of Antioch School of Law also has a Master Degree in Criminal Justice, Michigan State University. He concentrates his practice in the area of the rights of prisoners. He is the author of several self-help manuals for inmates (Prisoners' Self-Help Litigation Manual (3ed) and Prison Disciplinary Manual (to be published in 2003)), and is a former chairperson of the Michigan State Bar's Prisons and Corrections Committee.

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