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Third Circuit: Showers Part of Prison Operations for ADA and RA Purposes

by David M. Reutter

The Third Circuit Court of Appeals held on August 8, 2019 that the provision of showers “is a part of the programs, activities, or services” referred to by the Rehabilitation Act (RA) and the Americans with Disabilities Act (ADA). The appellate court concluded that prison officials had denied a prisoner showers due to his disability, and were deliberately indifferent for failing to provide a handicapped-accessible shower for more than three months.

The ruling came in an appeal by Pennsylvania prisoner Robert Furgess, who suffers from a neuromuscular disease that inhibits his ability to see, walk, speak and lift things.

Upon his arrival at State Correctional Institution-Albion in 2014, prison officials provided accommodations for his disability. His conditions of confinement, however, drastically changed when he was found guilty of a disciplinary infraction and placed in a Restrictive Housing Unit (RHU) on December 14, 2015. The RHU was not equipped with handicapped-accessible showers.

Furgess’ repeated requests to be provided with an accessible shower went unheeded.

A March 7, 2016 grievance resulted in his move to a handicapped-accessible cell, but he still was not provided access to a shower. It was not until March 16 that Furgess was finally escorted to a shower, but it was not handicapped-accessible.

He was given a rimless plastic chair to sit on, which caused injuries when he tried to exit the shower because the hot water was exacerbating his symptoms. He slipped and fell due to a lack of safety bars and rails.

After completing the grievance process, Furgess sued under Title II of the ADA and Section 504 of the RA for the prison’s failure to provide an accessible shower. The district court granted the defendants’ motion to dismiss, finding that a shower was not a “‘service, program, or activity’ under either statute.”

The Third Circuit disagreed. It found § 504 defines a “program or activity” quite broadly to include ‘“all of the operations’ of a state instrumentality.” While the ADA does not define “services, programs, and activities,” Congress and the courts have recognized the statute provides the same protections as Section 504. The Court of Appeals concluded that “[a] prison’s provision of showers” is one “of the operations” of the facility.

The Court was then tasked with determining whether Furgess suffered discrimination due to his disability. It held that he did, rejecting the defendants’ argument that “but-for his alleged misconduct, he would not be in the RHU and thus deprived of a shower.”

The appellate court wrote that a “prisoner’s misconduct does not strip him of his right to reasonable accommodations, and a prison’s obligation to comply with the ADA and RA does not disappear when inmates are placed in a segregated housing unit, regardless of the reason for which they are housed there.”

The Third Circuit also found prison officials were aware of Furgess’ disability and were deliberately indifferent by failing to provide him with a handicapped-accessible shower for over three months. The district court’s order was reversed. See: Furgess v. Pennsylvania Department of Corrections, 933 F.3d 285 (3d Cir. 2019). 

Related legal case

Furgess v. Pennsylvania Department of Corrections