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Rights of Prisoners with Disabilities Jailhouse Lawyer Manual

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Rights of Prisoners with Disabilities Jailhouse Lawyer Manual Powered By Docstoc
					A Jailhouse Lawyer’s
       Manual


        Chapter 28:
Rights of Prisoners with
        Disabilities




Columbia Human Rights Law Review
        8th Edition 2009
                                       LEGAL DISCLAIMER

    A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia Human Rights Law
Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended
as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any
information contained herein is intended to or shall constitute a contract between the JLM and any reader,
and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of
the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at
Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful,
because the law changes frequently, we cannot guarantee that all information is current.
                                                  CHAPTER 28
                           RIGHTS OF PRISONERS WITH DISABILITIES∗
                                                   A. Introduction
    This Chapter explains the right of prisoners with physical and/or mental disabilities to be free from
disability discrimination. As a prisoner with one or more disabilities, you have legal rights based in the U.S.
Constitution, federal civil rights laws, and some state laws. These laws forbid discrimination against you
because of your disability.
    Part A of this Chapter gives a summary of the laws protecting prisoners with disabilities. Part B of this
Chapter is about the two major federal laws protecting your rights to be free from disability discrimination:
Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 1 and the Americans with Disabilities Act
(“ADA”).2 It also explains what you need to prove in a legal claim under the ADA.3 Your rights are mostly
the same under Section 504 and Title II of the ADA (“Title II” or “ADA Title II”), so if you file a lawsuit
claiming disability discrimination, you should ask for relief under both statutes.4 Part C of this Chapter
talks about how you can enforce your rights under both Section 504 and Title II, and explains what a court
can and cannot order under the law, including some recently imposed restrictions.
    If you are not receiving the services you need or are being discriminated against because of your
disability, you may have a constitutional claim as well as a Section 504 and Title II ADA claim. For example,
prison officials’ treatment of disabled prisoners—particularly denying them medical care—can sometimes be
bad enough to violate the Eighth Amendment’s prohibition against “cruel and unusual punishment.”5 This
Chapter, however, does not talk about your constitutional rights. To learn more about your constitutional
rights, including your right to adequate medical care, you should read these other JLM chapters: Chapter
23, “Your Right to Adequate Medical Care”; Chapter 26, “Infectious Diseases: AIDS, Hepatitis, and
Tuberculosis in Prison”; and Chapter 29, “Special Issues for Prisoners with Mental Illness.” Other chapters
that are especially useful for all prisoners include Chapter 4, “How to Find a Lawyer”; Chapter 14, “The
Prison Litigation Reform Act”;6 Chapter 15, “Inmate Grievance Procedures”; and Chapter 16, “Using 42
U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of Federal Law.”
    Although the protections given to you by Section 504 and the ADA have been recently weakened by the
courts, they are still important civil rights and anti-discrimination laws. Prisoners with disabilities have
won important victories using these laws, from class action lawsuits to individual suits in many federal


* This Chapter was revised by Amy E. Lowenstein based on a previous version by Robert Lougy. Special thanks to James
Harrington of the Texas Civil Rights Project for his valuable comments.
     1. Rehabilitation Act of 1973, 29 U.S.C. § 794 (2006).
     2. Americans with Disabilities Act, 42 U.S.C. §§ 12101–213 (2006).
     3. The ADA contains many sections. These sections are called “Titles.” Title II of the ADA will be the most
important ADA section for your claims. Title II of the ADA protects you from discrimination because of your disability by
state and local government entities, including prisons and jails. 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.” Americans with
Disabilities Act, 42 U.S.C. §§ 12131–34 (2006).
     4. Americans with Disabilities Act, 42 U.S.C. § 12133 (2006) (“The remedies, procedures, and rights set forth in
section 794a of title 29 [§ 504 of the Rehabilitation Act of 1973] shall be the remedies, procedures, and rights this
subchapter provides to any persons alleging discrimination on the basis of disability in violation of Title II of the ADA.”).
     5. See, e.g., Lawson v. Dallas County, 286 F.3d 257, 263–64 (5th Cir. 2002) (holding a prison’s failure to provide
rehabilitation therapy, adequate toilet facilities, and a bed with an adequate mattress to a paraplegic prisoner was
medical neglect and inhumane treatment that violated the prisoner’s 8th Amendment rights); LaFaut v. Smith, 834 F.2d
389, 392–94 (4th Cir. 1987) (holding deprivation of prescribed rehabilitation therapy and adequate toilet facilities
violated 8th Amendment); see also Miller v. King, 384 F.3d 1248, 1261–62 (11th Cir. 2004) (holding that allegations by a
wheelchair-using paraplegic claiming that the prison failed to provide him wheelchair repairs, physical therapy, medical
consultations, leg braces and orthopedic shoes, wheelchair-accessible showers and toilets, opportunity to bathe, urinary
catheters, and assistance in using the toilet raised a material factual issue under the 8th Amendment), vacated and
superseded on other grounds, 449 F.3d 1149 (11th Cir. 2006); Allah v. Goord, 405 F. Supp. 2d 265, 275–76 (S.D.N.Y.
2005) (holding an allegation by a wheelchair-using prisoner that he was strapped in too loosely in a vehicle and was
injured in sudden stops stated an 8th Amendment claim).
     6. This Chapter is particularly important for you to read, as it discusses important restrictions on prisoners’
lawsuits that could affect your § 504 or ADA claim.
courts. This Chapter will explain how you, as a prisoner with a disability, can use these laws to protect your
rights while incarcerated.
       B. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act
             C. Introduction
     The kinds of claims you can file depend partly on whether you are in a state, federal, or private facility.
Section 504 and Title II are two different laws that protect you in similar ways against discrimination.
Section 504, which applies both to the federal government and to state and local entities that receive federal
financial assistance, was enacted by Congress in 1973. In 1990, Congress passed the ADA, which expanded
and strengthened Section 504’s protections.7 The language of Section 504 and Title II is very similar, and
courts read them to prohibit the same basic forms of discrimination. You should start researching your claim
by reading the two laws carefully because most cases focus on how to interpret the statutes. Because these
two laws offer you basically the same protections, much of the discussion of the ADA in this Chapter will
apply equally to Section 504, and vice versa.
     If you are a prisoner in a federal prison or a non-citizen detainee in a federal detention center, you can
file suit only under Section 504. You cannot use the ADA because the ADA cannot be used to sue the federal
government.8 Also, if you sue a federal agency under Section 504, you can ask only for an injunction, not
money damages.9 (An injunction is a court order requiring the respondent prison or agency to correct the
violation.)
     If you are a prisoner in a privately operated prison, you are probably protected by Title III of the ADA
(“Title III” or “ADA Title III”), which applies to public accommodations,10 but you are probably not protected
by Title II. Title II and Title III are very similar. However, under Title III you must show that the private
prison is a “public accommodation” 11 rather than a “public entity.” Private prisons or other public
accommodations sued under Title III have different legal defenses than states or local governments sued
under Title II lawsuits.12 Although there are these minor differences between Title II and Title III, the

      7. The ADA greatly expands the § 504 protections for persons with disabilities in certain areas of the law. For
instance, the ADA requires private stores, restaurants, and banks to accommodate persons with disabilities. The ADA
also provides persons with disabilities protection against employment discrimination because of their disabilities. But for
prisons, jails, and state and local government entities, the ADA and § 504 are quite similar.
      8. The ADA defines “public entity” as “any department, agency, special purpose district, or other instrumentality
of a State or States or local government.” 42 U.S.C. § 12131(1)(B) (2006). This definition does not include agencies of the
federal government. See Cellular Phone Taskforce v. FCC, 217 F.3d 72, 73 (2000) (noting that the ADA does not apply to
the federal government); Disability Rights Section, U.S. Dep’t of Justice, Americans with Disabilities Act: Title II
Technical Assistance Manual, II-1.2000, available at http://www.usdoj.gov/crt/ada/taman2.html (last visited Jan. 15,
2009). English and Spanish DOJ printed materials on the ADA are available free of charge by contacting the DOJ by
mail or phone. To order materials by mail, write to: U.S. Department of Justice, Civil Rights Division, 950 Pennsylvania
Ave., NW, Disability Rights - NYAV, Washington, D.C. 20530. In your letter, include the name of the publication you are
seeking. To order materials by phone, call the ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TDD).
Automated phone service is available 24 hours a day for recorded information and to order publications. You may also be
able to reach a live person who will answer specific questions about the ADA in English or Spanish if you call Monday to
Friday, 9:30 am to 5:30 pm EST, except on Thursdays, when the hours are 12:30 pm to 5:30 pm. Publications are
available in standard print, large print, audiotape, Braille, and computer disk for people with disabilities.
      9. Lane v. Pena, 518 U.S. 187, 200, 116 S. Ct. 2092, 2100, 135 L. Ed. 2d 486, 497–98 (1996) (holding that Congress
did not waive the federal government’s immunity against awards of monetary damages for violations of the
Rehabilitation Act, which means the federal government can be liable to you and can award you damages).
      10. 42 U.S.C. §§ 12181–89 (2006).
      11. 42 U.S.C. § 12181(7) (2006) (defining “public accommodation”).
      12. Instead of defending itself by arguing that accommodating your disability might create a “fundamental
alteration,” a private prison can defend itself by arguing that correcting the problem is not “readily achievable.” See Part
B(4)(b)(i) of this Chapter to learn more about the fundamental alteration defense. “The term ‘readily achievable’ means
easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is
readily achievable, factors to be considered include: (A) the nature and cost of the action needed under this chapter; (B)
the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such
facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C)
the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the
number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the
covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic
separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.” 42 U.S.C.
§ 12181(9) (2006). See also 42 U.S.C. §§ 12182(b)(2)(A)(iv)–(v) (2006).
discussion of Title II and Section 504 will generally apply to your Title III claim as well. However, you
should still try to read some Title III cases.
                    Section 504 of the 1973 Rehabilitation Act
    Section 504 of the 1973 Rehabilitation Act states:
             No otherwise qualified individual with a disability ... shall, solely by reason of her or
             his 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 or under any program or activity conducted by any [Federal] Executive
             agency...13
    Section 504 guarantees that individuals who are qualified to participate in a program, service, or activity
will have meaningful access if the service or activity is offered by a state or local recipient of federal funds.14
Under Section 504, a “program or activity” is defined very broadly to include “all of the operations” of a state
or local government.15 Thus, Section 504 applies not only to federal facilities but also to any state, county, or
city prison or jail receiving federal financial assistance directly or through a state or local government.16
This, of course, includes almost every state prison and many jails.17
                    Title II of the Americans with Disabilities Act
    One of the major goals of the ADA was to eliminate discrimination against persons with disabilities by
public and private actors.18 The ADA has three main sections (called “Titles”), only one of which applies to
state and local entities. If you pursue an ADA claim against a state prison or a county jail, you will file under
Title II, which applies to all state and local governments. The protections against discrimination provided by
Title II and Section 504 are very similar, but the ADA has stronger regulations. Title II provides:
             [N]o 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.19
    The ADA defines many of the terms in the above paragraph, including: “qualified individual with a
disability,” 20 “disability,” 21 and “public entity.” 22 However, the statute does not define the key phrase


     13. Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2006).
     14. Alexander v. Choate, 469 U.S. 287, 301, 105 S. Ct. 712, 720, 83 L. Ed. 2d 661, 672 (1985) (noting § 504 requires
state and local governments receiving federal funds to provide “meaningful access to the benefit” they offer).
     15. Rehabilitation Act of 1973, 29 U.S.C. §§ 794(b)(1)(A)–(B) (2006) (defining “program or activity” as “all of the
operations of a department, agency, special purpose district, or other instrumentality of a State or a local government; or
the entity of such State or local government that distributes such assistance and each such department or agency (and
each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or
local government”).
     16. Rehabilitation Act of 1973, 29 U.S.C. § 794(b) (2006); Bellamy v. Roadway Exp., Inc., 668 F. Supp. 615, 618
(N.D. Ohio 1987) (noting that “the term ‘federal financial assistance’ has been very broadly construed to encompass
assistance of any kind, direct or indirect”); Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000) (noting that
acceptance of funds by one state agency does not constitute a waiver by the state as a whole, so the state is still subject
to suit).
     17. But see Nolley v. County of Erie, 776 F. Supp. 715, 742–43 (W.D.N.Y. 1991) (holding that a prison that
received money in exchange for housing federal prisoners was not considered to be receiving federal financial assistance,
but was instead receiving money in exchange for performing a service for the federal government), rev’d on other
grounds, 798 F. Supp. 123 (W.D.N.Y. 1992).
     18. Americans with Disabilities Act, 42 U.S.C. § 12101(b)(1) (2006) (stating that one of the goals of the ADA is to
“provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with
disabilities”). The ADA also prohibits discrimination against you because of your association with a person with a
disability. 28 C.F.R. § 35.130(g) (2007); Niece v. Fitzner, 922 F. Supp. 1208, 1216 (E.D. Mich. 1996) (finding possible
violation of ADA where prison officials refused to provide accommodation necessary for prisoner to communicate with his
deaf fiancée).
     19. Americans with Disabilities Act, 42 U.S.C. § 12132 (2006).
     20. Americans with Disabilities Act, 42 U.S.C. § 12131(2) (2006) (defining “qualified individual with a disability”
as anyone “with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of
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 programs or activities provided by a
public entity”).
“services, programs, or activities.” It is very important that you understand how courts have interpreted and
applied both the defined and the undefined terms to claims made by prisoners with disabilities. Parts B(3)–
(5) of this Chapter will discuss these terms.
                     Necessary Elements of an ADA Title II and Section 504 Claim
    You must include several basic elements in your ADA/Section 504 complaint; if you don’t, the court will
dismiss your lawsuit. Fortunately, most of the elements are the same for both statutes, so a well-pleaded
complaint23 for one statute will likely meet the requirements of the other as well.
    To state a Title II ADA claim, your complaint must say that:
    (1) You are an individual with a disability;
    (2) You are “qualified to participate in or receive the benefit of” the particular program or activity of the
        prison or jail that discriminated against you;
    (3) You were excluded from participation in or denied the benefits of the prison or jail’s services,
        programs, or activities, or were in some other way discriminated against; and
    (4) This exclusion, denial of benefits, or discrimination was because of your disability.24
    A claim under Section 504 is very similar to a claim under the ADA, but with one additional
requirement. Section 504 covers all federal facilities and only those state or local facilities that receive
federal funding, so your complaint must state that the federal facility or state prison or jail receives federal
funding. 25 Be sure to state in your complaint that the facility receives federal funding. 26 Other than the
federal funding requirement, a Section 504 claim is very much like an ADA claim. So, your Section 504
complaint must say that:
    a.   You are an individual with a disability;
    b.   You are “otherwise qualified” for the program, activity, or services from which you were excluded;
    c.   You were denied benefits or subject to discrimination solely because of your disability; and
    d.   The program, activity, prison, or jail receives federal financial assistance.27
     If your Section 504 claim is about physical access within a prison or jail, you should state that the
facility violated a statute that has been the law for more than thirty years. By pointing this out, you will be
showing that the prison has little basis for arguing that it was not aware that it had to be accessible to
individuals with disabilities.
     Many of the terms above will be explained in more detail later, but it is important to remember that both
the ADA and Section 504 are anti-discrimination laws. Your complaint should be clear as to how prison
officials or guards have discriminated against you because of your disability. The rest of Part B of this
Chapter gives more detail about how courts have interpreted the ADA and Section 504 in the prison context.



      21. Americans with Disabilities Act, 42 U.S.C. §§ 12102(2)(A)–(C) (2006) (“The term ‘disability’ means ... a
physical or mental impairment that substantially limits one or more of [a person’s] ... major life activities ... ; a record of
such impairment; or being regarded as having such an impairment.”).
     22. Americans with Disabilities Act, 42 U.S.C. §§ 12131(1)(A)–(B) (2006) (defining “public entity” as “any State or
local government” or “any department, agency, special purpose district, or other instrumentality of a State or States or
local government”).
      23. A well-pleaded complaint is a complaint that “sufficiently sets forth a claim for relief.” It must include
“grounds for the court’s jurisdiction, the basis for the relief claimed, and a demand for judgment.” Black’s Law Dictionary
303 (8th ed. 2004) (definition of “well-pleaded complaint”).
     24. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (discussing requirements for ADA Title II claim); see
also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997) (discussing necessary elements of an ADA Title II claim).
     25. See, e.g., Thomas v. Nakatani, 128 F. Supp. 2d 684, 694 (D. Haw. 2000) (dismissing § 504 claim because it did
not allege that state agency received federal funds), aff’d, 309 F.3d 1203 (9th Cir. 2002); Hamilton v. Ill. Cent. R.R., 894
F. Supp. 1014, 1022 (S.D. Miss. 1995) (dismissing § 504 claim because plaintiff failed to allege that private facility
received federal financial assistance).
     26. When you file your complaint, you probably will not know for sure whether the jail or prison receives federal
funding. This is something you could learn more about during discovery (the process of obtaining information about your
case in preparation for trial). When you are giving documents to the court and you believe something to be true but are
not sure if it is, you should begin your statement with the phrase, “Upon information and belief.” For example, in your §
504 complaint, you should say something like, “Upon information and belief, [the jail or prison you are suing] receives
federal funding.”
     27. Doe v. Pfrommer, 148 F. 3d 73, 82 (2d Cir. 1998) (describing essential elements of § 504 claim).
             D. What is Discrimination?
    The ADA regulations describe certain categories of action by public entities that are considered
“discrimination” under the ADA. The categories are large, and discussing them may be helpful in
understanding what conduct the ADA prohibits. Keeping in mind the main goals of the ADA—preventing
discrimination, integrating people with disabilities into the mainstream, and providing strong and
consistent enforceable standards addressing discrimination against individuals with disabilities28—can help
you understand why particular actions are considered discrimination. The following paragraphs discuss
types of actions that constitute discrimination under the ADA.
    The ADA prohibits public entities from denying an otherwise qualified person with a disability “the
opportunity to participate in or benefit from” a program or service solely because of his disability.29 This is
one of the most common types of discrimination prohibited by the ADA. For instance, under the ADA, if you
meet the requirements for participating in a vocational program, the prison cannot deny you participation in
the program just because of your disability.30
    The ADA requires public entities, like prisons and jails, to provide individuals with disabilities with
benefits or services that are equal to those provided to individuals without disabilities.31 For example, the
ADA prohibits the prison from providing only one therapy session per week to a paraplegic prisoner while
providing two sessions per week to prisoners without this disability, if the disability is the only reason for
giving fewer services. Similarly, if a prison offers GED classes for individuals with hearing disabilities, it
cannot offer a lower quality program than that offered to individuals without disabilities. Something to
consider, however, is that the ADA does not prohibit the prison from canceling both programs.
    A prison may provide “different or separate aids, benefits, or services” to individuals with disabilities,
but only in order to maximize the effectiveness of the program for the people with the disabilities.32 The
prison cannot exclude individuals with disabilities from the non-disability programs if the prisoner wants to
participate in them.33
    It is discrimination if a prison provides “significant assistance to an agency, organization, or person that
discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public
entity’s program.” 34 This prohibition makes clear that not only the prison, but also the state or local
government providing funding for its operations, can be in violation of the ADA by providing “significant
assistance” to a prison—including a private prison—that discriminates on the basis of disability. If you are
in a private prison, this type of claim will help you sue the state or local entity contracting with the prison.
    The ADA prohibits public entities from using criteria or methods of administration that have the effect
of defeating or substantially impairing the accomplishment of the objectives of the public entity’s program
with respect to people with disabilities.35 This means that a prison cannot run its programs in a way that
keeps prisoners with disabilities from being able to participate in them, even if disabled prisoners are not
explicitly excluded. For instance, if a vision-impaired prisoner cannot enroll in a business class because the
print on the enrollment application is too small for him to read, this is discrimination under the ADA. The
prison would have to provide another way of enrolling in the business class that doesn’t exclude the prisoner.
    Not all of the above categories have been dealt with in the prison context. As discussed in Part C of this
Chapter, courts are generally hostile to prisoner lawsuits, including ADA and Section 504 claims. Although
the ADA regulations prohibit certain types of discrimination, courts may still find ways to avoid enforcing
the law against prisons.




     28. Americans with Disabilities Act, 42 U.S.C. §§ 12101(a)(8), (b)(1)–(2) (2006).
     29. 28 C.F.R. § 35.130(b)(1)(i) (2007).
     30. See, e.g., Montez v. Romer, 32 F. Supp. 2d 1235, 1237 (D. Colo. 1999) (noting prisoners’ claim that they could
not participate in vocational training because the prison did not accommodate their disabilities).
     31. 28 C.F.R. § 35.130(b)(1)(ii) (2007).
     32. 28 C.F.R. § 35.130(b)(1)(iv) (2007). See also 28 C.F.R. pt. 35, app. A, at 549 (2007) (discussing 28 C.F.R. §
35.130(b)(1)(iv) (2007), which explains that the Department of Justice “recognizes that promoting integration of
individuals with disabilities into the mainstream of society is an important objective of the ADA and agrees that, in most
instances, separate programs for individuals with disabilities will not be permitted”).
     33. 28 C.F.R. § 35.130(b)(2) (2007).
     34. 28 C.F.R. § 35.130(b)(1)(v) (2007).
     35. 28 C.F.R. § 35.130(b)(3)(ii) (2007).
             E. What is a Disability?
    Under both the ADA and Section 504, you are a person with a disability if: (1) a physical or mental
impairment substantially limits one or more of your major life activities; (2) you have a record of such an
impairment; or (3) you are regarded as having such an impairment.36 If you satisfy any one of these three
tests, you are considered an individual with a disability under the ADA and Section 504. If you currently
have a disability, like an uncorrectable hearing impairment, you would be disabled under the first test.
Under the second test, you might be considered disabled if, for example, you have a record of having cancer
that actually substantially limited your ability to care for yourself in the past, but the cancer is now in
remission.37 Finally, you may have a claim under the third test if prison officials discriminate against you
because they believe you have a mental impairment that substantially limits your ability to learn, when in
fact you do not have a mental impairment, or, if you do, the impairment does not substantially limit your
ability to learn.38
    The definition of disability has two parts. First, the disability at issue must be a physical or mental
impairment. The meaning of “physical or mental impairment” is explored in Subsection (a) below. Second,
the impairment must substantially limit one or more major life activities. The meanings of “substantially
limits” and “major life activity” are discussed in Subsection (b).
                    (a) What is a “Physical or Mental Impairment”?
    The implementing regulations (rules spelling out the details of the law) of the U.S. Department of
Justice (“DOJ”) for the ADA define a “physical or mental impairment” to include a wide range of physical
and mental conditions, diseases, and disorders. The list covers almost every major body system and many
mental and psychiatric conditions. 39 The regulations also list specific diseases and conditions that are
physical or mental impairments. The phrase physical or mental impairment includes, but is not limited to,
contagious and non-contagious diseases and conditions, such as orthopedic, visual, speech and hearing
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether
symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.40 This list is not complete, so
diseases and conditions not listed may still be considered physical or mental impairments if they meet the
definition of impairment given above.
    If you are HIV-positive, you should note that the definition of physical impairment includes
asymptomatic HIV (meaning that you are HIV-positive but are not exhibiting any symptoms). 41 For


     36. Rehabilitation Act of 1973, 29 U.S.C. § 705(20)(B) (2006 & Supp. 2007); Americans with Disabilities Act, 42
U.S.C. § 12102(2) (2006). Note: although the cases that have defined what kinds of disability and impairment must be
shown in order to qualify a person to bring a claim under the ADA mostly have been employment cases, the rules drawn
from the cases apply fully to any claim brought by prisoners. Cases involving claims brought by prisoners have cited
these employment cases as applying generally to all ADA claims. See, e.g., Carter v. Taylor, 540 F. Supp. 2d 522, 528 (D.
Del. 2008) (citing Toyota Motor Mfg. Inc. v. Williams, 534 U.S. 184, 199, 122 S. Ct. 681, 692, 151 L. Ed. 2d 615, 632
(2002)) (applying the “case-by-case manner” standard to a prisoner’s disability claim under the ADA); Smith v.
Masterson, 538 F. Supp. 2d 653, 657 (S.D.N.Y. 2008) (citing Second Circuit’s adoption of the “major life activity”
requirement in the discussion of a Title II ADA claim brought by a prisoner).
     37. See, e.g., EEOC v. R.J. Gallagher Co., 181 F.3d 645, 655–56 (5th Cir. 1999) (noting that a man with a record of
cancer may have a disability under the ADA if the cancer or treatment actually substantially limited him in one or more
major life activities).
     38. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S. Ct. 2139, 2150, 144 L. Ed. 2d 450, 466–67 (1999)
(holding that individuals “regarded as” disabled qualify as “disabled,” within the meaning of the ADA, as long as the
prison has “misperceptions” about the person—the prison “must believe either that one has a substantially limiting
impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is
not so limiting”); see also Murdock v. Washington, 193 F.3d 510, 512 (7th Cir. 1999) (dismissing prisoner’s disability
discrimination claim, because the plaintiff said that he was not HIV-positive, and he did not allege that prison officials
regarded him as disabled).
     39. 28 C.F.R. § 35.104(1)(i) (2007) (defining “physical or mental impairment” as “any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive,
genitourinary, hemic and lymphatic, skin, and endocrine [or] [a]ny mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities”).
     40. 28 C.F.R. § 35.104(1)(ii) (2007).
     41. 28 C.F.R. § 35.104(1)(ii) (2007); see also Bragdon v. Abbott, 524 U.S. 624, 637–41, 118 S. Ct. 2196, 2204–07,
example, if you are asymptomatic HIV-positive and the prison denies you trustee status because of your HIV
status, you have possible ADA and Section 504 claims.42 Drug addiction is also considered an impairment, as
long as are not currently using drugs, and have completed or are currently enrolled in a drug rehabilitation
program. In this situation, the prison cannot discriminate against you on the basis of your past drug
addiction.43 However, the laws and regulations do not prohibit discrimination based on a person’s current
illegal use of drugs.44 Other conditions and diseases that courts have found could be physical or mental
impairments in the prison setting include asthma, 45 deafness and other hearing impairments, 46
quadriplegia, 47 paraplegia, 48 amputations or artificial limbs, 49 certain stomach and digestive problems, 50
blindness or other vision impairments, 51 degenerative disk conditions, 52 and other disabilities. 53 It is

141 L. Ed. 2d 540, 556–59 (1998) (holding that, under the ADA, HIV infection is a physical impairment “from the
moment of infection” and on the facts of the case, an asymptomatic HIV-positive woman was disabled under the ADA).
     42. Harris v. Thigpen, 941 F.2d 1495, 1524 (11th Cir. 1991) (holding that HIV-positive status is a disability under
§ 504 because the correctional system treated HIV-positive people as if they were disabled); Dean v. Knowles, 912 F.
Supp. 519, 522 (S.D. Fla. 1996) (allowing an asymptomatic HIV-positive prisoner to go forward with his discrimination
case against prison officials who denied him trustee status).
     43. 28 C.F.R. §§ 35.131(a)(2)(i)–(iii) (2007) (“A public entity shall not discriminate on the basis of illegal use of
drugs against an individual who is not engaging in current illegal use of drugs and who (i) Has successfully completed a
supervised drug rehabilitation program or has otherwise been rehabilitated successfully; (ii) Is participating in a
supervised rehabilitation program; or (iii) Is erroneously regarded as engaging in such use.”).
     44. 28 C.F.R. § 35.131(a)(1) (2007) (“[T]his part does not prohibit discrimination against an individual based on
that individual’s current illegal use of drugs.”). Section 504 contains similar language. Rehabilitation Act of 1973, 29
U.S.C. § 705(20)(C)(i) (2006). “Current illegal use of drugs” is defined as the illegal use of drugs “recent[] enough to
justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.” 28
C.F.R. § 35.104 (2007). According to the regulation, “[t]he term ‘individual with a disability’ does not include an
individual who is currently engaging in the illegal use of drugs, when the public entity acts on the basis of such use.” 28
C.F.R. § 35.104 (2007).
      45. See, e.g., Wesley v. Vaughn, No. 99-1228, 1999 U.S. Dist. LEXIS 18098, at *14 (E.D. Pa. Nov. 18, 1999)
(unpublished) (finding prisoner with asthma could go forward with his ADA claim that alleged prison’s practice of
locking the shower doors at the end of the shower period discriminated against people with respiratory disabilities);
McIntyre v. Robinson, 126 F. Supp. 2d 394, 408 (D. Md. 2000) (finding that though asthma can be considered a disability
in the prison context, it is subject to a case-by-case analysis, because it is an easily controlled ailment).
     46. See, e.g., Duffy v. Riveland, 98 F.3d 447, 454–55 (9th Cir. 1996) (finding that a deaf prisoner was disabled
under the ADA and § 504 and allowing him to go forward with claim against prison for failure to provide a qualified
interpreter in prison disciplinary and classification hearings); Calloway v. Glassboro Dep’t of Police, 89 F. Supp. 2d 543,
546 (D.N.J. 2000) (finding that a deaf arrestee could go forward with her ADA and § 504 case for failure to provide a
qualified interpreter during questioning at the police station); Niece v. Fitzner, 922 F. Supp. 1208, 1217 (E.D. Mich.
1996) (recommending that a prisoner be allowed to proceed with his case against the Department of Corrections for
failure to provide a Telecommunications Device for the Deaf (“TDD”), which would allow him to communicate with his
deaf girlfriend over the phone); Clarkson v. Coughlin, 898 F. Supp. 1019, 1036–38 (S.D.N.Y. 1995) (finding that failure of
prison to accommodate deaf and hearing-impaired prisoners violated the ADA and § 504).
     47. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (affirming judgment of damages for a
quadriplegic who was denied access to prison programs based on his disability).
     48. See, e.g., Pierce v. County of Orange, 526 F.3d 1190, 1214–22 (9th Cir. 2000) (finding that prisoner with
paraplegia could go forward with his ADA claim).
     49. See, e.g., Schmidt v. Odell, 64 F. Supp. 2d 1014, 1032 (D. Kan. 1999) (finding that double amputee could go
forward with his ADA and § 504 claims and argue that he was denied the benefit of the jail’s basic services because of his
disability); Kaufman v. Carter, 952 F. Supp. 520, 533 (W.D. Mich. 1996) (refusing to give summary judgment against
double amputee because of conditions alleged in his complaint); Outlaw v. City of Dothan, No. CV-92-A-1219-S, 1993
U.S. Dist. LEXIS 21063 (M.D. Ala. Apr. 27, 1993) (unpublished) (finding it significant that prison did not disagree that
prisoner who wore an artificial leg was a “qualified individual with a disability”).
     50. See, e.g., Scott v. Garcia, 370 F. Supp. 2d 1056, 1074–75 (S.D. Cal. 2005) (holding that eating is a major life
activity, and holding that plaintiff with stomach and digestive problems raised a material factual issue under the ADA
when he submitted evidence that he could not partake of the prison meal service because he did not receive enough time
to eat or the option to eat small frequent meals).
     51. See, e.g., Williams v. Ill. Dep’t of Corr., No. 97 C 3475, 1999 U.S. Dist. LEXIS 18190, at *15 (N.D. Ill. Nov. 16,
1999) (unpublished) (holding that defendant’s extreme myopia constituted a disability where the defendant
acknowledged the condition as disabling in the pleading); Armstrong v. Davis, 275 F.3d 849, 857–58 (9th Cir. 2001)
(finding that parole board provided inadequate accommodations to the visually impaired going through the parole
process, which constituted a valid part of an ADA claim).
     52. See, e.g., Saunders v. Horn, 960 F. Supp. 893, 901 (E.D. Pa. 1997) (finding that prisoner with degenerative
disk disorder stated a claim under § 504 and the ADA).
     53. See, e.g., Raines v. State of Florida, 983 F. Supp. 1362, 1372–74 (N.D. Fla. 1997) (holding that a prison policy
important to note that in many of these cases, either the court did not decide the issue of whether the
individual was disabled, or the court ultimately decided that the particular plaintiff was not disabled. These
cases simply give examples of the types of impairments courts have said could qualify as disabilities as long
as the claims are backed up with facts, and if the impairment substantially limits the particular individual
in a major life activity. (What it means to be substantially limited in a major life activity will be discussed in
Subsection (b) below.)
    Being gay, lesbian, bisexual, or transgender is not a “physical or mental impairment” under the ADA.54
(For information on special issues for gay, lesbian, bisexual, and transgendered or transsexual prisoners, see
Chapter 30 of the JLM.) Furthermore, the ADA regulations explicitly exclude certain “conditions” from the
definition of “physical or mental impairment” or “disability,” 55 such as “transvestism, transsexualism,”
“sexual behavior disorders” (such as pedophilia or exhibitionism), and “gender identity disorders not
resulting from physical impairments.”56 If you file a complaint in federal court alleging that one of these
conditions or identities is a disability or impairment, the court will almost certainly dismiss your case.57
However, you may be able to file such a claim under a state statute, so you should consult statutes and case
law for the state in which you live.
                    (b) When is an Impairment a Disability?
    To be considered disabled under the ADA and Section 504, it is not enough for you to prove that you
have a physical or mental impairment. You also will have to show that the impairment substantially limits
you in one or more major life activities.58 The decision about whether an impairment substantially limits a
major life activity is made on a case-by-case basis, meaning the court will look at how an impairment limits
you, not at how an impairment usually limits a person. 59 If you have an impairment (like a vision
impairment) that limits different people in different ways, you must show that your own particular
limitation is substantial.60
    Note that the impairment does not have to be current. If you are discriminated against because you have
a record of an impairment, that is considered discrimination under the ADA.61 A record of an impairment is
when you have a history of having an impairment that substantially limits a major life activity, or when you
have been misclassified as having an impairment that substantially limits a major life activity.62 In addition,
even if you have no history of the impairment, you are disabled under the ADA if you are “regarded as
having such an impairment.” 63 There are three instances when you might be “regarded as having” an
impairment: (1) you have an impairment that does not substantially limit a major life activity but you are
treated as if your impairment does limit you in that way; (2) you have an impairment that limits you in a




excluding prisoners physically or mentally unable to perform work from the full benefits of the “incentive gain time”
program may be a violation of the ADA); Armstrong v. Wilson, 942 F. Supp. 1252, 1254 (N.D. Cal. 1996) (finding that a
certified class made up of prisoners with mobility, hearing, vision, kidney, and learning disabilities stated a claim under
the ADA), aff’d, 124 F.3d 1019 (9th Cir. 1997).
     54. 28 C.F.R. §§ 35.104(1)(iii), (5)(i) (2007).
     55. 28 C.F.R. § 35.104 (2007).
     56. 28 C.F.R. § 35.104(5)(i) (2007).
     57. See Chapter 14 of the JLM, “The Prison Litigation Reform Act,” for a discussion of the “three strikes rule” and
other negative consequences of filing a suit that is dismissed.
     58. Rehabilitation Act of 1973, 29 U.S.C. § 705(20)(B)(i) (2006); Americans with Disabilities Act, 42 U.S.C. §
12102(2)(A) (2006); 28 C.F.R. § 35.104 (2007).
     59. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 530 (1999) (noting
that there is a “statutory obligation to determine the existence of disabilities on a case-by-case basis”).
     60. Toyota Motor Mfg. Inc. v. Williams, 534 U.S. 184, 199, 122 S. Ct. 681, 692, 151 L. Ed. 2d 615, 632 (2002)
(stating that an “individualized assessment of the effect of an impairment is particularly necessary when the
impairment is one whose symptoms vary widely from person to person”); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555,
566, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 530–31 (1999) (noting that some impairments may limit people’s major life
activities in different ways and amounts).
     61. 28 C.F.R. § 35.104 (2007) (“Disability means ... a physical or mental impairment that substantially limits one
or more of the major life activities ... [or] a record of such an impairment ...”).
     62. 28 C.F.R. § 35.104 (2007) (“The phrase has a record of such an impairment means has a history of, or has been
misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.”).
     63. 28 C.F.R. § 35.104 (2007).
major life activity only because of other people’s attitudes towards your impairment; or (3) you do not
actually have an impairment that substantially limits a major life activity, but you are treated as if you do.64
     The regulations implementing Title II of the ADA do not define “substantially limits” and almost all of
the cases discussing the term have been about employment discrimination under a different section of the
ADA, Title I.65 (Title I covers employment discrimination. As a prisoner with a disability, you will be filing
under Title II, which applies to discrimination by state or local government agencies.) The regulations for
Title I define “substantially limits” as “[u]nable to perform a major life activity that the average person in
the general population can perform” or “[s]ignificantly restricted as to the condition, manner or duration
under which ... the average person in the general population can perform that same major life activity.”66
You will also have to show that you are substantially limited in a major life activity when your impairment
is in its corrected state or when you are able to take steps to reduce the impact of your impairment.67 For
instance, if you have high blood pressure for which you take medication, you will have the burden of showing
that your high blood pressure substantially limits your activities even when you are medicated.68
     The Supreme Court defined “major life activities” as “those activities that are of central importance to
[most people’s] daily li[ves].”69 Department of Justice regulations provide examples of major life activities,
including “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.”70 For example, if you have vision problems and are unable to
read regular-size print in books and magazines or require Braille materials, then your condition limits the
major life activity of seeing.71 Courts have found other activities, like eating72 and reproduction,73 to be major
life activities. If you believe that you are substantially limited in the major life activity of “working,” you
should be aware that the Supreme Court has questioned whether working is a major life activity, at least in


      64. 28 C.F.R. § 35.104 (2007). It is unclear how easy it will be for you to claim that you are substantially impaired
as a result of other people’s attitudes towards your disability. In Sutton v. United Air Lines, Inc., the Supreme Court
recognized only two ways in which one might be regarded as disabled—when someone mistakenly believes you have an
impairment that substantially limits you, but you do not have such an impairment, or when you have a “nonlimiting
impairment” that someone believes is actually substantially limiting. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489,
119 S. Ct. 2139, 2149–50, 144 L. Ed. 2d 450, 466–67 (1999). However, Sutton was an employment discrimination case
under Title I of the ADA. Your complaint will be under Title II. Since the Department of Justice has defined the meaning
of “regarded as” discrimination in Title II of the ADA as including discrimination caused by other people’s stereotypes or
attitudes, you should cite to the Title II regulations in your complaint.
      65. Americans with Disabilities Act, 42 U.S.C. §§ 12111–17 (2006) (Title I of the ADA covering discrimination in
private employment).
      66. 29 C.F.R. § 1630.2(j)(1) (2007); see also Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 74–75
(2d Cir. 2000) (noting the proper test is whether plaintiff is “substantially limited in the major life activity of reading by
her slow reading speed, or by any other ‘conditions, manner, or duration’ that limits her reading ‘in comparison to most
people’”).
      67. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S. Ct. 2139, 2146, 144 L. Ed. 2d 450, 462 (1999)
(holding courts must consider the negative or positive effects of mitigating or corrective measures in determining
whether a person has a disability that substantially limits a major life activity under the ADA); Murphy v. United Parcel
Serv., 527 U.S. 516, 520–21, 119 S. Ct. 2133, 2137, 144 L. Ed. 2d 484, 489–90 (1999) (noting that determinations of
whether a person has a disability under the ADA are made with respect to mitigating and corrective measures).
      68. Murphy v. United Parcel Serv., 527 U.S. 516, 521, 119 S. Ct. 2133, 2137, 144 L. Ed. 2d 484, 490 (1999) (finding
that “whether an individual’s impairment ‘substantially limits’ one or more major life activities should be made in
consideration of mitigating measures”).
      69. Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 197–98, 122 S. Ct. 681, 691, 151 L. Ed. 2d 615, 631 (2002)
(holding that to be considered “substantially limited in performing manual tasks, an individual must have an
impairment that prevents or severely restricts the individual from doing activities that are of central importance to most
people’s daily lives,” and that the impact of the impairment must be permanent or long-term).
      70. 28 C.F.R. § 35.104 (2007).
      71. Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 642 (2d Cir. 1998) (noting that to determine whether a
particular activity is a “major life activity,” the proper test is whether “that activity is a significant one within the
contemplation of the ADA, rather than whether that activity is important to a particular plaintiff”).
      72. See, e.g., Scott v. Garcia, 370 F. Supp. 2d 1056, 1074 (S.D. Cal. 2005) (holding that eating is a major life
activity, and that a plaintiff with stomach and digestive problems must show that his dietary restrictions are serious
enough to constitute a disability).
      73. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 637–42, 118 S. Ct. 2196, 2204–07, 141 L. Ed. 2d 540, 556–59 (1998)
(holding that a woman infected with HIV, though she was asymptomatic, is an individual with a disability because her
HIV infection substantially limits her ability to reproduce, but refusing to decide whether HIV infection is always a
disability under the ADA).
employment discrimination cases.74 The current test for whether you are substantially limited in your ability
to work requires that you be limited in performing a “class of jobs” that makes use of your skills, not just
limited to performing a “single, particular job.”75
     The Supreme Court has suggested that the negative effects of steps a person takes to correct or reduce
the impact of an impairment should also be considered in determining whether a person is substantially
limited in a major life activity.76 For example, if you take medication for schizophrenia that reduces the
effects of the schizophrenia, but the medication gives you tremors that make it difficult for you to perform
manual tasks, you might be considered substantially limited.
     In the prison context, the requirements of “substantially limits” and “major life activities” are very rarely
a focus of cases under either the ADA or Section 504. If you file a lawsuit against the prison or prison
officials alleging discrimination on the basis of your disability, the case will most likely focus on whether you
are (1) a “qualified individual with a disability,” and (2) whether you were “excluded from participation in
or ... denied the benefits of the services, programs, or activities” of the prison, or discriminated against by
the prison.77 The next two Sections discuss how courts have interpreted these two parts of a disability
discrimination claim in the prison context.
             F. Is Every Person with a Disability Protected by the ADA and Section 504?: The
                Meaning of “Qualified Individual”
    Not everybody meeting the definition of “disability” under the ADA and Section 504 is protected from
discrimination. The ADA and Section 504 prohibit discrimination based on disability only if you are a
“qualified individual with a disability.”78 The ADA defines “qualified individual with a disability” as:
             [a person] with a disability who, with or without reasonable modifications to rules,
             policies, or practices, the removal of 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 programs or activities
             provided by a public entity.79
    Thus, in addition to having a disability, you must also be eligible to participate in or benefit from a
particular program, service, or activity. If you decide to file suit under either the ADA or Section 504, your
complaint must, among other things, state (1) generally what your disability is, and (2) that you are a
“qualified individual with a disability” within the meaning of the ADA and Section 504. The prison, in its
answer to your complaint, might say that even if you do have a disability, you are not a “qualified
individual.” If the prison convinces the court that you are not a qualified individual within the meaning of
the ADA or Section 504, then the court will dismiss your case.
    Just because you are a prisoner does not mean you are disqualified from programs or services. The
Supreme Court firmly established that a prisoner is not excluded from being considered a qualified
individual just because he is in prison.80 The Court rejected a prison’s argument that the language of the
ADA implies that “qualified individuals” could not include “prisoners who are being held against their



     74. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492, 119 S. Ct. 2139, 2151, 144 L. Ed. 2d 450, 468–69 (1999)
(noting that “there may be some conceptual difficulty in defining ‘major life activities’ to include work”).
     75. 29 C.F.R. § 1630.2(j)(3)(i) (2007) (“With respect to the major life activity of working ... substantially limits
means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the major life activity of working.”); see also Murphy v.
United Parcel Serv., 527 U.S. 516, 523–25, 119 S. Ct. 2133, 2138–39, 144 L. Ed. 2d 484, 491–92 (1999).
     76. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S. Ct. 2139, 2146, 144 L. Ed. 2d 450, 462 (1999)
(stating that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of
those measures—both positive and negative—must be taken into account when judging whether that person is
‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act”).
     77. See Americans with Disabilities Act, 42 U.S.C. § 12132 (2006); see also Rehabilitation Act of 1973, 29 U.S.C. §
794(a) (2006).
     78. Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2006); Americans with Disabilities Act, 42 U.S.C. § 12132
(2006).
     79. Americans with Disabilities Act, 42 U.S.C. § 12131(2) (2006) (defining “qualified individual with a disability”).
     80. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210–11, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 219–20 (1998)
(holding that state prisoners are protected by the ADA).
will.”81 The ADA language does not require voluntariness, the Court found, and even if it did, some activities
and services in prisons (such as use of the law library) are voluntary.82 Thus, prisoners are covered by the
ADA and Section 504 as long as they can meet the definition of disability discussed in section B(3) above and
can show they are “qualified individuals.”
    Like many aspects of the ADA and Section 504 that will be important to the success of your suit, the
definition of “qualified individual” has several different parts, each of which the prison might use to try to
defeat your case. Subsection (a) below will discuss what it generally means to be a “qualified individual with
a disability.” Subsection (b) describes the meaning of “reasonable modifications” and the factors the courts
look at in deciding what is reasonable. Subsection (c) discusses auxiliary aids and services, and Subsection
(d) discusses the removal of barriers.
                    (a) The Meaning of “Qualified Individual with a Disability” in General
     To be a “qualified” individual with a disability, you must meet “the essential eligibility requirements
for ... participation in programs or activities.”83 For example, if prisoners convicted of certain offenses are not
allowed to participate in work release, then a person with a disability convicted of that same offense is not
“qualified” for that program.
     There are some situations where you will not be considered a “qualified individual” even if you meet
program or activity requirements. You are not a “qualified individual” if the prison can show that because of
your disability, your participation in a program or activity makes you a “direct threat to the health or safety
of others.” 84 The appendix to the Department of Justice Title II regulations defines direct threat as “a
significant risk to the health or safety of others that cannot be eliminated by a modification of policies,
practices, or procedures, or by the provision of auxiliary aids or services.”85 If prison officials are trying to
decide whether someone with a disability poses a direct threat, they must determine “the nature, duration,
and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures will” reduce or eliminate the risk. 86 (The meaning of
reasonable modifications is discussed below.) In making this decision, prison officials must use “reasonable
judgment that relies on current medical evidence or on the best available objective evidence.”87 The prison
may not rely on “generalizations or stereotypes about the effects of a disability;” instead, they must assess
you and your particular disability.88
     Courts use the direct threat analysis in Title II and Section 504 cases even though the direct threat
language is not clearly stated in the laws.89 Although you will not be considered a “qualified individual” if
you are found to be a direct threat, it is best to look at a direct threat argument as a defense the prison may
raise to try to defeat your claim. Because it is treated as a defense, the prison will have the burden of
proving that you are a direct threat.90
     The direct threat defense to discrimination often comes up for people with infectious diseases, especially
those who are HIV-positive. If you are HIV-positive, you should be aware that several courts have decided
that HIV-positive prisoners, although they are “individuals with a disability,” are not “qualified” for various
prison programs or activities. 91 For example, in Onishea v. Hopper, the Eleventh Circuit rejected


     81. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 211, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 220 (1998).
     82. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 211, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 220 (1998).
     83. Americans with Disabilities Act, 42 U.S.C. § 12131(2) (2006).
     84. 28 C.F.R. pt. 35, app. A, at 553 (2007) (analyzing the regulations on Title II of the ADA).
     85. 28 C.F.R. pt. 35, app. A, at 553 (2007).
     86. 28 C.F.R. pt. 35, app. A, at 553 (2007).
     87. 28 C.F.R. pt. 35, app. A, at 553 (2007).
     88. 28 C.F.R. pt. 35, app. A, at 553 (2007).
     89. See, e.g., Doe v. County of Centre, 242 F.3d 437, 447 (3d Cir. 2001) (explaining the “direct threat” analysis in
an ADA Title II and § 504 case); Dadian v. Village of Wilmette, 269 F.3d 831, 840 n.6 (7th Cir. 2001) (stating that
whether an individual is “otherwise qualified” depends on whether he poses a threat to the safety of others that cannot
be reduced by reasonable accommodation); Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d
725, 735 (9th Cir. 1999) (holding that a person who poses a direct threat or “significant risk” to others is not a qualified
individual under Title II of the ADA).
     90. Dadian v. Village of Wilmette, 269 F.3d 831, 840–41 (7th Cir. 2001) (holding that the burden of showing a
direct threat due to a disability is on the entity claiming there is a direct threat).
     91. See Chapter 26 of the JLM, “Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prison,” for additional
information on the rights of HIV-positive prisoners.
constitutional and Section 504 claims of prisoners who were not allowed to participate in prison recreational,
religious, and educational programs because they were HIV-positive.92 These HIV-positive prisoners could
only participate in a limited number of programs separate from the programs available to the general
population.93 The lower court held HIV-positive prisoners were not “otherwise qualified” to participate in
programs with the general population because of the possibility of high-risk behavior, like violence,
intravenous drug use, and sex.94 The Eleventh Circuit agreed, and found the risk of HIV transmission is
“significant” because of the severe consequences of HIV infection, even if the probability of transmission is
low.95 The Onishea opinion allows a prison to disqualify HIV-positive prisoners from participating in many
programs and significantly reduces Section 504 and Title II’s protections for these prisoners.96
    Although the Onishea court claimed to require a program-by-program decision about whether HIV-
positive prisoners are qualified for programs, 97 the decision has the effect of preventing HIV-positive
prisoners from participating in most programs with the general population. Other courts have looked more
closely at the requirements of specific programs to decide whether HIV-positive prisoners are qualified. In
Bullock v. Gomez, the court allowed an HIV-positive prisoner who was excluded from participating in the
conjugal visit program with his HIV-positive wife to continue with his ADA claim because there were
disputed facts as to whether he was otherwise qualified for the program.98 In Doe v. Coughlin, the court
looked at specific program requirements before ultimately deciding that an HIV-positive prisoner was not
qualified for the family reunion program because the program required applicants to be free of
communicable diseases.99
    Looking at disability discrimination cases brought by HIV-positive prisoners in your circuit (federal
appellate jurisdiction) will help you to get a better idea of how a court in your area may look at your
discrimination claim. Also, for more information on segregation (separation) of HIV-positive prisoners from
the general population, and other issues of concern to HIV-positive prisoners, see Chapter 26 of the JLM,
“Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prison.”
                    (b) Reasonable Modifications
    The ADA requires state and local entities to make “reasonable modifications” to policies, rules, and
practices in order to accommodate (make changes for) people with disabilities100 so that they can participate
in public programs and services. A reasonable modification is basically a change in the way things are
normally done that will allow you, as a person with a disability, to take part in a program or activity, or gain
access to a facility. Reasonable modifications may be simple, like changing a rule that forbids prisoners from
storing food in their cells to allow a person who is diabetic to have some food so that he can keep his “blood
sugar at an appropriate level.”101 Other modifications are more complicated.


     92. Onishea v. Hopper, 171 F.3d 1289, 1296–97 (11th Cir. 1999) (reading § 504’s definition of “individual with a
disability” as not including a person “who has a currently contagious disease or infection and who, by reason of such
disease or infection, would constitute a direct threat to the health or safety of other individuals”). The Onishea court
relied on 29 U.S.C. § 705(20)(D) (2006), a section of the Rehabilitation Act that excludes from employment people who
are a direct threat to others because they have a currently contagious disease or infection.
     93. Onishea v. Hopper, 171 F.3d 1289, 1292–93 (11th Cir. 1999).
     94. Onishea v. Hopper, 171 F.3d 1289, 1293, 1295 (11th Cir. 1999).
     95. Onishea v. Hopper, 171 F.3d 1289, 1299 (11th Cir. 1999) (holding “that when transmitting a disease inevitably
entails death, the evidence supports a finding of ‘significant risk’ if it shows both (1) that a certain event can occur and
(2) that according to reliable medical opinion the event can transmit the disease ... [E]vidence of actual transmission of
the fatal disease in the relevant context is not necessary to a finding of significant risk”).
     96. Onishea v. Hopper, 171 F.3d 1289, 1305 (11th Cir. 1999) (Barkett, J., dissenting). A dissenting opinion is an
opinion, written by a judge on the court, which disagrees with the court’s decision in a particular case. Dissenting
opinions are not controlling law in any jurisdiction, but you may use them to suggest arguments with which other courts
may agree in future cases.
     97. Onishea v. Hopper, 171 F.3d 1289, 1293 (11th Cir. 1999).
     98. Bullock v. Gomez, 929 F. Supp. 1299, 1305 (C.D. Cal. 1996) (finding that the prison’s reasons for excluding the
prisoner from the conjugal visit program—transmission of tuberculosis and other strains of HIV—may not be justified,
given that evidence showed the risk of such transmission was low).
     99. Doe v. Coughlin, 71 N.Y.2d 48, 61, 518 N.E.2d 536, 544, 523 N.Y.S.2d 782, 790 (1987).
     100. Americans with Disabilities Act, 42 U.S.C. § 12131(2) (2006).
      101. Disability Rights Section, U.S. Dep’t of Justice, Commonly Asked Questions about the Americans with
Disabilities Act and Law Enforcement (2006), available at http://www.ada.gov/q%26a_law.htm. English and Spanish
DOJ printed materials on the ADA are available free of charge by contacting the DOJ by mail or phone. Publications are
    Whether a modification is considered “reasonable” will depend on the specific circumstances and the
modification you are requesting. To decide what is a “reasonable modification,” courts balance the needs of
prisoners with disabilities and the structural, financial, and administrative concerns of the prison. In
particular, courts look at: whether the modification will “fundamentally alter” (result in a large change to) a
program or activity,102 the cost of the modification, and the burden that making the modification would have
on administration of the prison.103 Some courts also look at penological (prison) concerns, such as safety.104
    The defendant prison has the burden of showing that a modification would “result in a fundamental
alteration in the nature of a service, program, or activity or in undue [extreme] financial and administrative
burdens,”105 but it is important for you to be prepared for the prison to make these kinds of arguments. Keep
in mind that even if the prison succeeds in showing that changes would fundamentally alter a program or
cause an undue financial or administrative burden, it must still “take any other action” that would “ensure
that individuals with disabilities receive the benefits or services provided” by the prison.106 This means they
are supposed to come up with other ways of making sure you get the benefits that are offered. The following
Subsections briefly describe the fundamental alteration defense, the undue burden defense, and the
penological interests defense a prison might use against your ADA and Section 504 claims.
                         (ii)     Modifications That Result in a Fundamental Alteration to the Prison’s
                                  Programs, Services, or Activities are Not Considered Reasonable.
    Prisons do not have to make modifications to a service, program, or activity if doing so would
“fundamentally alter the nature of the service, program, or activity.”107 A fundamental alteration is a change
that is so significant that something essential to the service, program, or activity is lost. This allows prisons
to balance the rights of disabled prisoners against the prison’s interest in preserving the integrity of its
programs.108 If you are seeking a change that would make it difficult for the prison to provide the particular
service or program to other prisoners, this could be considered a fundamental alteration that the prison does
not have to provide.109
                         (ii)    Modifications that Cause an Undue Financial or Administrative Burden
                                 are Not Considered Reasonable.
   Prisons also do not have to make modifications that would result in “undue financial and administrative
burdens.”110 For example, in Onishea v. Hopper, discussed above, the court found that hiring additional
guards to prevent high-risk behavior so that HIV-positive prisoners could participate in programs with the


also available from the ADA Website at http://www.ada.gov. For instructions on ordering materials by mail or phone, see
footnote 8 above.
     102. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), 35.164 (2007).
     103. 28 C.F.R. §§ 35.150(a)(3), 35.164 (2007).
     104. See, e.g., Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (noting that the prison could present
evidence that giving an interpreter to a deaf prisoner at his disciplinary hearings created safety and security concerns);
Love v. Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996) (noting that the defendant prison could justify its refusal
to make reasonable accommodations because of the overall needs of running a prison).
     105. See 28 C.F.R. § 35.130(b)(7) (2007) (general application of fundamental alteration defense); 28 C.F.R. §
35.150(a)(3) (2007) (fundamental alteration and undue burden defenses for existing facilities); 28 C.F.R. § 35.164 (2007)
(fundamental alteration and undue burden defense to providing effective communication). Furthermore, the “decision
that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her
designee after considering all resources available for use in the funding and operation of the service, program, or activity
and must be accompanied by a written statement of the reasons for reaching that conclusion.” 28 C.F.R. §§ 35.150(a)(3),
35.164 (2007).
     106. 28 C.F.R. §§ 35.150(a)(3), 35.164 (2007).
     107. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), 35.164 (2007).
     108. See Galusha v. N.Y. State Dept. of Envtl. Conservation, 27 F. Supp. 2d 117, 123 (N.D.N.Y. 1998) (noting that
the Supreme Court struck this balance in Alexander v. Choate, 469 U.S. 287, 300, 105 S. Ct. 712, 720, 83 L. Ed. 2d 661,
671 (1985)).
     109. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 604, 119 S. Ct. 2176, 2189, 144 L. Ed. 2d 540, 560 (1999)
(“Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation
would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs
would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large
and diverse population of persons with mental disabilities.”).
    110.   28 C.F.R. §§ 35.150(a)(3), 35.164 (2007).
general population would not be a “reasonable accommodation” because it would be too expensive and
therefore an undue financial burden.111 In Spurlock v. Simmons, the court said that it would be an undue
burden on prison officials if a deaf prisoner was allowed unlimited access to a TDD (a telephone for people
who are deaf or have limited hearing) since prison staff had to unlock the office containing the TDD every
time the prisoner needed to make a call.112
    The DOJ’s view of its ADA regulations indicates that the undue burden test was supposed to be
prisoner-friendly and difficult for a public entity to meet except in “the most unusual cases.”113 However, the
above examples show that prisons have succeeded in defeating requests for modifications with the undue
burden defense in situations that the DOJ may not have anticipated.
                         (ii)     Overall Institutional Concerns and Penological Interests
    The ADA regulations only mention fundamental alterations and undue burdens as arguments prisons
can use to avoid making modifications to accommodate a prisoner with a disability. However, courts have
shown hostility to prisoners’ ADA and Section 504 claims, and have said that prisons may justify not making
modifications because of the “overall institutional requirements” of prisons, such as “[s]ecurity concerns,
safety concerns and administrative” needs.114 In considering these types of justifications for not making
modifications, some courts strongly presume (take for granted) that prison policies are acceptable (this
strong presumption is called deference to prison management).115 In jurisdictions that use this approach, you
will have to provide a lot of evidence to overcome this presumption that prison concerns are legitimate.116
                    (c) The Turner Test in ADA and Section 504 Claims
    Federal circuit courts have used the Turner v. Safley117 “reasonably related” test in ADA and Section 504
cases to decide when a prison policy can legally discriminate against prisoners with disabilities. Under this
test, prison policies are valid if “reasonably related to legitimate penological interests,” meaning the policies




     111. Onishea v. Hopper, 171 F.3d 1289, 1303–04 (11th Cir. 1999).
     112. Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1196 (D. Kan. 2000) (holding a deaf prisoner had “meaningful
access” to TDD when he was allowed to use it at least twice a week and more frequently if he had a legitimate reason).
     113. 28 C.F.R. pt. 35, app. A, at 564 (2007) (discussing 28 C.F.R. § 35.150 and noting that “Congress intended the
‘undue burden’ standard in Title II to be significantly higher than the ‘readily achievable’ standard in Title III” and that
“the program access requirement of Title II should enable individuals with disabilities to participate in and benefit from
the services, programs, or activities of public entities in all but the most unusual cases”); see also Disability Rights
Section, U.S. Dep’t of Justice, Commonly Asked Questions about the Americans with Disabilities Act and Law
Enforcement (2006), available at http://www.ada.gov/q%26a_law.htm (noting that new jails and prisons “must be made
fully accessible to, and usable by, individuals with disabilities,” that there is “no undue burden limitation for new
construction,” and that “if an agency alters an existing facility for any reason—including reasons unrelated to
accessibility—the altered areas must be made accessible to individuals with disabilities”). English and Spanish DOJ
printed materials on the ADA are available free of charge by contacting the DOJ by mail or phone. For information on
ordering publications, see footnote 8 above.
     114. Love v. Westville Corr. Ctr, 103 F.3d 558, 561 (7th Cir. 1996) (noting that the defendant prison could, but did
not attempt to, justify its refusal to make reasonable accommodations because of the overall needs of running a prison);
Miller v. King, 384 F.3d 1248, 1266 (11th Cir. 2004) (“[C]ourts must be mindful of the necessary balance between the
ADA’s worthy goal of integration and a prison’s unique need for security, safety, and other penological concerns.”),
vacated and superseded on other grounds, 449 F.3d 1149 (11th Cir. 2006).
     115. Gates v. Rowland, 39 F.3d 1439, 1448 (9th Cir. 1994) (noting that separation of powers issues, especially in
regards to state penal systems, favors judicial deference to prison authorities).
     116. Armstrong v. Davis, 275 F.3d 849, 874 (9th Cir. 2001) (noting the prisoner has the burden of refuting that
there were legitimate interests behind prison action); see also Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994).
     117. Turner v. Safley, 482 U.S. 78, 89–91, 107 S. Ct. 2254, 2261–62, 96 L. Ed. 2d 64, 79–80 (1987) (setting out a
reasonableness test to use when a court looks at prisoners’ constitutional challenges to prison regulations).
have to make some sense and be related to an actual prison concern or goal.118 Some courts have used this
test to decide what is a “reasonable” modification under the ADA for prisoners with disabilities.119
     The Turner test is usually used to decide your constitutional claims, not statutory claims like the ADA
and Section 504. Some experts believe the Turner reasonableness standard is inappropriate in ADA cases.120
It is better for you when courts do not use the Turner standard, because the ADA and Section 504 require
prisons to make reasonable accommodations to your disabilities, including expensive physical renovations or
other expenditures, 121 In comparison, the Turner reasonableness standard requires only minimal-cost
solutions. However, some courts think the two standards should not be very different from one another.
Some cases require that courts interpret the ADA/Section 504 standard to be consistent with122 or informed
by123 the Turner reasonableness standard.
     Gates v. Rowland124 is one of the earlier cases where a court used the Turner test for a prisoner’s Section
504 claim. In Gates, HIV-positive prisoners sued under Section 504 to be allowed to work as food preparers
and servers in a prison food service program. The prison argued that excluding the prisoners based solely on
their HIV status was justified on the grounds that other prisoners “frequently have irrational suspicions or
phobias” about people with HIV that will not be stopped by educating them on the real facts about HIV, as
the Gates plaintiffs suggested.125 Prison officials claimed that allowing HIV-positive prisoners to serve food
could lead to violence from other prisoners directed toward the HIV-positive prisoners and the prison staff.126
     The Gates court concluded that the Turner test was the correct test for deciding how far-reaching
prisoners’ rights are under Section 504, even though the Turner test is normally only used for prisoners’



      118. Turner v. Safley, 482 U.S. 78, 89–91, 107 S. Ct. 2254, 2261–62, 96 L. Ed. 2d 64, 79–80 (1987). In Turner, the
Supreme Court identified four factors used to determine the “reasonableness” of a challenged prison regulation: (1)
whether there is a “‘valid rational connection’ between the prison regulation and the legitimate governmental interest
put forward to justify it”; (2) whether there are other ways a prisoner can exercise the right that is at issue; (3) “the
impact [that] accommodation … will have on guards and other inmates, and on the allocation of prison resources
generally”; and (4) whether there are “ready alternatives” to the regulation. The “Turner test” is generally used when
prisoners claim that their constitutional rights have been violated. See Chapter 16 of the JLM, “Using 42 U.S.C. § 1983
and 28 U.S.C § 1331 to Obtain Relief From Violations of Federal Law” for further discussion of the Turner test.
      119. See, e.g., Thompson v. Davis, 295 F.3d 890, 894 n.4 (9th Cir. 2002) (noting that a prison might be able to give
legitimate penological justifications for considering certain disabilities in parole decisions, particularly where the
disability is a history of substance abuse); Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (noting that prison
should be allowed to present evidence that giving interpreter to deaf prisoner at disciplinary hearings created safety and
security concerns); Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999) (allowing the use of a test almost identical to
the Turner “reasonably related to legitimate penological interests” test, despite explicitly stating that the Turner test
“does not, by its terms, apply to” the ADA); Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 487 (7th Cir. 1997) (noting that
what is “reasonable” or an “undue” burden is different in the prison context and that concerns about security are
relevant to whether accommodations for disabled prisoners are “feasible”); Gates v. Rowland, 39 F.3d 1439, 1447–48 (9th
Cir. 1994) (applying Turner test to uphold policy of excluding HIV-positive prisoners from food service assignments);
Kaufman v. Carter, 952 F. Supp. 520, 532 (W.D. Mich. 1996) (noting that the idea that prisoners’ ADA rights are limited
by “legitimate penological interests” is sensible).
      120 . See Christopher J. Burke, Note, Winning the Battle, Losing the War?: Judicial Scrutiny of Prisoners’
Statutory Claims Under the Americans with Disabilities Act, 98 Mich. L. Rev. 482, 495–98 (1999) (arguing that (1)
Turner’s rationale regarding the restrictions of constitutional rights are not applicable to statutory rights because
statutes represent congressional determinations of policy and resource allocation; (2) statutory rights allow Congress to
provide guidance to prison administrators as well as allow flexibility and modification if the statute is found unworkable;
and (3) legislation such as the ADA provides a great amount of detail to courts and prison administrators, whereas
constitutional rights are necessarily dependent upon judicial determinations).
      121. But see Olmstead v. L.C., 527 U.S. 581, 607, 119 S. Ct. 2176, 2190, 144 L. Ed. 2d 540, 562 (1999) (holding
that a state’s ADA obligations are determined “taking into account the resources available to the State”).
      122. Gates v. Rowland, 39 F.3d 1439, 1446–47 (9th Cir. 1994) (holding Turner standard applicable to review of
ADA statutory rights). Compare further with Amos v. Md. Dep’t of Public Safety & Corr. Servs., 178 F.3d 212, 220 (4th
Cir. 1999) (rejecting application of Turner as inconsistent with Yeskey, which noted that statutory privileges need not
always be limited in the same ways as constitutional protections), judgment vacated on other grounds, 205 F.3d 687 (4th
Cir. 2000). But see Pierce v. County of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008) (acknowledging debate over Gates’
application of Turner reasonableness rule, but not reaching the question of whether Yeskey effectively overruled Gates).
      123. Onishea v. Hopper, 171 F.3d 1289, 1300–01 (11th Cir. 1999) (en banc) (holding that a court can consider the
Turner standard when applying the ADA).
      124. Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994).
      125. Gates v. Rowland, 39 F.3d 1439, 1448 (9th Cir. 1994).
      126. Gates v. Rowland, 39 F.3d 1439, 1447–48 (9th Cir. 1994).
constitutional claims.127 Using the Turner test, the court upheld the policy that discriminated against HIV-
positive prisoners, stating that the prison authorities had a “reasonable basis for [the] restriction based on
legitimate penological concerns.”128
    Courts that follow the Gates approach of deciding whether a prison policy is reasonably related to real
penological interests often uphold challenged discriminatory conduct. However, this is not always the
case.129 In your complaint, be sure to provide the court with the appropriate language from the ADA, Section
504, and the regulations for these laws. The ADA and Section 504 (as written by Congress) and the ADA
regulations (as implemented by the DOJ) are generally more protective of your rights as a prisoner with
disabilities than many courts recognize. You should emphasize the extent to which the laws and regulations
plainly protect your rights.130
                    (d) Provision of Auxiliary Aids and Services
     The ADA and Section 504 also require a prison or jail to provide you with auxiliary aids or services that
will help you, as a prisoner with a disability, to participate in the programs and activities of the prison or
jail. As with modifications, the prison or jail only has to provide these aids or services if they are considered
reasonable. Examples of aids and services for hearing impaired people include
             Qualified interpreters, notetakers, transcription services, written materials,
             telephone handset amplifiers, assistive listening devices, assistive listening systems,
             telephones compatible with hearing aids, closed caption decoders, open and closed
             captioning, telecommunications devices for deaf persons (TDD’s), [or] videotext
             displays.131
    Examples of aids and services for people with visual impairments include “[q]ualified readers, taped
texts, audio recordings, Brailled materials, [or] large print materials.” 132 Other aids and services might
include providing a prisoner who is an amputee with a wheelchair, shower chair, and similar assistive
devices.133
    If you meet all of the eligibility requirements for a program, but cannot participate without an aid,
services such as those mentioned above, or other devices and services, then the ADA requires the prison to
provide those aids and services that will allow you to participate. But, as with modifications, a prison may
justify not providing aids and services by saying the request is not reasonable and then using the undue
burden defense or even the Turner test to justify its actions or lack of action.
    Prisoners with hearing impairments have been particularly successful with ADA and Section 504 claims
that prisons discriminated against them by failing to provide auxiliary aids and services such as sign
language interpreters and other devices to assist them in communicating. Courts have found that prisons
violate the ADA and Section 504 by failing to provide qualified interpreters during reception and
classification, counseling sessions, administrative or disciplinary hearings, and medical treatment and
diagnosis.134 Some courts have also found that a lack of interpreters in such settings violates prisoners’ due


      127. Gates v. Rowland, 39 F.3d 1439, 1447–48 (9th Cir. 1994).
      128. Gates v. Rowland, 39 F.3d 1439, 1448 (9th Cir. 1994).
      129. See, e.g., Chisholm v. McManimon, 275 F.3d 315, 327 (3d Cir. 2001) (refusing to decide whether the Turner
test is appropriate in ADA and § 504 claims, but noting that the prison’s mention of “security” concerns without evidence
showing these security concerns were legitimate would not be enough under the Turner test even if it were used);
Armstrong v. Davis, 275 F.3d 849, 874 (9th Cir. 2001) (finding that the state failed to meet its burden under the Turner
test by not presenting “any justification, rational or not,” for its parole hearing policies that discriminated against
prisoners and parolees with hearing and vision impairments and learning and developmental disabilities).
      130. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843–44, 104 S. Ct. 2778, 2782, 81 L. Ed.
2d 694, 703 (1984) (holding where Congress gives an agency power to interpret a law with regulations, the regulations
have “controlling weight unless they are arbitrary, capricious,” or clearly contrary to the law).
      131. 28 C.F.R. § 35.104 (2007).
      132. 28 C.F.R. § 35.104 (2007).
      133. See Schmidt v. Odell, 64 F. Supp. 2d. 1014, 1031–33 (D. Kan. 1999) (allowing a double amputee prisoner to go
forward with his ADA and § 504 suit against the county jail that delayed in providing him with a shower chair and
refused to transfer him to a jail that had enough space for him to use a wheelchair).
      134. Clarkson v. Coughlin, 898 F. Supp. 1019, 1034–35 (S.D.N.Y. 1995) (holding that failure to provide hearing
impaired prisoners with qualified interpreters and other assistive devices for numerous programs, services and activities
violated the ADA and § 504). See also Duffy v. Riveland, 98 F.3d 447, 453–56 (9th Cir. 1996) (allowing deaf prisoner to go
forward with claim that the prison failed to provide him with a qualified interpreter for classification and disciplinary
process, Eighth Amendment, and constitutional privacy rights.135 The term qualified interpreter is defined as
“an interpreter who is able to interpret effectively, accurately, and impartially both receptively and
expressively, using any necessary specialized vocabulary.” 136 Thus, a prison guard with only basic sign
language ability is not a qualified interpreter, because he is not impartial nor is he able to interpret
effectively. Also, an individual who knows Signed English is not a qualified interpreter for a prisoner with a
hearing impairment who primarily communicates in American Sign Language (“ASL”), or vice versa.137
    Interpreters are not the only services hearing-impaired prisoners have successfully demanded under the
ADA and Section 504. The ADA also requires public entities to provide persons with disabilities the
opportunity to request chosen auxiliary aids and services and give “primary consideration to the requests of
the individual with disabilities.”138 The regulations also impose duties on the prison to provide persons with
disabilities notice of protections the ADA affords them,139 and to make a grievance mechanism available to
individuals claiming the state or local agency has failed to make programs and services accessible to
disabled individuals.140 In Clarkson v. Coughlin, the court held the prison violated the ADA and Section 504
by failing to provide various adaptations for the deaf, including telephone communication devices (“TDD”),
closed-caption decoders for the televisions, and alarms visually alerting prisoners to fire.141 Other courts
have held that a failure to provide TDD for the deaf fiancée of a prisoner may violate the ADA.142
                     (e) Architectural Barriers
    If your complaint is about physical access within the prison or jail, keep in mind that the regulations
implementing the ADA are prisoner-friendly, because they do not allow the prison to defend its action by
claiming that providing you with the services is an “undue burden.”143 Facilities such as this are considered
“new construction.” For example, if you are housed in a cellblock that was built or changed significantly
since 1992 and you cannot use your wheelchair when accessing the bathrooms or showers because the
entrances are too narrow, the prison cannot say it would cost too much to make modifications that would
allow you to use your wheelchair. If you are in or need to access a unit, cellblock, or compound created or
significantly altered after 1992—even if the rest of the prison was built before 1992—and your complaint is



hearings in violation of the ADA and § 504).
      135. Clarkson v. Coughlin, 898 F. Supp. 1019, 1033, 1042 (S.D.N.Y. 1995) (holding that, by failing to provide
qualified interpreters or other needed assistive devices for medical and mental health treatment, the Department of
Corrections and prison officials violated deaf prisoners’ 14th Amendment substantive due process rights, the 8th
Amendment’s ban on cruel and unusual punishment, and the constitutional right to privacy).
      136. 28 C.F.R. § 35.104 (2007).
      137. Clarkson v. Coughlin, 898 F. Supp. 1019, 1026–27, (S.D.N.Y. 1995) (indicating that an interpreter who uses
Signed English is not qualified to interpret for a prisoner who uses American Sign Language).
      138. 28 C.F.R. § 35.160(b)(2) (2007); see Section II-7.1100, Primary consideration, Disability Rights Section, U.S.
Dep’t of Justice, Technical Assistance Manual, Title II, ADA, available at http://www.usdoj.gov/crt/ada/taman2.html (last
visited Oct. 21, 2008) (discussing the importance of considering the choice of aids of the individual with a disability).
      139. 28 C.F.R. § 35.106 (2007) (describing requirement that public entities notify people with disabilities of their
rights under the ADA); see also 28 C.F.R. § 35.163(a) (2007) (“A public entity shall ensure that interested persons,
including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible
services, activities, and facilities.”).
      140. 28 C.F.R. § 35.107(b) (2007) (“A public entity that employs 50 or more persons shall adopt and publish
grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be
prohibited by this part.”).
      141. Clarkson v. Coughlin, 898 F. Supp. 1019, 1047 (S.D.N.Y. 1995). But see Spurlock v. Simmons, 88 F. Supp. 2d
1189, 1196 (D. Kan. 2000) (holding that providing deaf prisoner only limited telephone access, while permitting other
prisoners unlimited access, did not violate the ADA because the request for unlimited access was unreasonable and
prisoner failed to suggest any accommodation). Clarkson also held deaf female prisoners were discriminated against
based on sex because New York had a special prison unit that could accommodate many of the needs of deaf and
hearing-impaired male prisoners, but did not have a similar unit for female prisoners. Clarkson v. Coughlin, 898 F.
Supp. 1019, 1051 (S.D.N.Y. 1995).
      142. Niece v. Fitzner, 922 F. Supp. 1208, 1216 (E.D. Mich. 1996) (finding possible violation of ADA in prison
officials’ refusal to provide accommodations necessary for the prisoner to communicate with his deaf fiancée).
      143. 28 C.F.R. §§ 35.151(a)–(b) (2007) (“Each facility or part of a facility altered by, on behalf of, or for the use of a
public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the
maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and
usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.”).
about your ability to physically access those parts of the facility, you should point out in your complaint the
fact that significant changes have been made since 1992 and cite to the regulations.
    If you have a disability that restricts your mobility or requires that you use a cane, wheelchair, or other
assistive device, many courts have said that prisons must make reasonable accommodations for your
disability. Although some courts have found that the ADA does not create any right for a prisoner to be
housed at a specific prison,144 at least one court has found that where a specific unit exists for treatment of
prisoners with particular disabilities, transfers of eligible prisoners out of, or refusals to transfer eligible
prisoners into, that unit for disciplinary, safety, medical, or mental health reasons violates the ADA and
Section 504 unless the prison can provide the needed services in other facilities.145
    Even if no special unit exists for prisoners with disabilities, prisons and jails must make reasonable
accommodations for prisoners with mobility impairments. Courts have found that using the bathroom and
restroom facilities is a basic activity of jail, and that prisons that do not provide shower chairs, handrails, or
guard rails in the shower and toilet, or shower hoses to prisoners with disabilities, violate the ADA and
Section 504.146 An architectural barrier that restricts access or creates risks of injury to prisoners with
disabilities also violates the ADA.147 Make sure to carefully describe any barriers in your complaint with lots
of details, instead of just stating that they exist.148
             G. What are “Services, Programs, or Activities”?
    Under both the ADA and Section 504, if reasonable modification of the services, programs, or activities
would allow you to participate, prison authorities cannot exclude you on the basis of your disability from
those “services, programs, or activities.” Almost everything you do in prison—from your work assignment, to
your use of the recreation yard, to your use of the library, to your visitation privileges—is a program or
service offered by the prison. 149 Prisoners with disabilities have argued that prisons and jails must
accommodate their needs in the use of the following programs: boot camp,150 conjugal visitation programs,151


      144. Garrett v. Angelone, 940 F. Supp. 933, 942 (W.D. Va. 1996), aff’d, 107 F.3d 865 (4th Cir. 1997) (finding that
“inmates have no constitutional right to be housed in any particular prison or housing unit”).
      145. Clarkson v. Coughlin, 898 F. Supp. 1019, 1050–51 (S.D.N.Y. 1995) (finding that prison’s transfer and
placement practice violated the ADA by making adequate accommodations conditional).
      146. See, e.g., U.S. v. Georgia, 546 U.S. 151, 157, 126 S. Ct. 877, 881 (finding that “it is quite plausible that the
alleged deliberate refusal of prison officials to accommodate Goodman's disability-related needs in such fundamentals as
mobility, hygiene, medical care, and virtually all other prison programs constituted ‘exclu[sion] from participation in or
... den[ial of] the benefits of’ the prison's services, programs, or activities.’”); Pierce v. County of Orange, 526 F.3d 1190,
1196 (9th Cir. 2008) (holding a county in violation of the ADA because disabled prisoners were denied access to prison
facilities like the bathroom and showers by physical barriers); Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 286–88 (1st
Cir. 2006) (holding denial of access to a shower chair (as well as other necessary accommodations) to a prisoner with
disabilities raised an issue of material fact regarding defendant’s failure to provide the prisoner with reasonable
accommodations as required by the ADA); Grant v. Schuman, No. 96-3760, 1998 U.S. App. LEXIS 16852, at *7–8 (7th
Cir. July 16, 1998) (unpublished) (allowing prisoner with left-side paralysis and nerve pain to go forward with ADA
claim regarding lack of hand rails in toilet and shower areas); Cotton v. Sheahan, No. 02 C 0824, 2002 U.S. Dist. LEXIS
20539, at *9 (N.D. Ill. Oct. 23, 2002) (unpublished) (allowing prisoner who used wheelchair to go forward with claim that
he was denied access to shower); Schmidt v. Odell, 64 F. Supp. 2d 1014, 1032–33 (D. Kan. 1999) (noting possible
violation of ADA even though prisoner was able to use most of the services because doing so required exceptional and
painful exertion that was against the orders of his physician); Cooper v. Weltner, No. 97-3105-JTM, 1999 U.S. Dist.
LEXIS 17292, at *19–20 (D. Kan. Oct. 27, 1999) (unpublished) (allowing prisoner who used a wheelchair to go forward
with his ADA claim that prison discriminated against him by failing to provide assistive devices for shower); Kaufman v.
Carter, 952 F. Supp. 520, 532–33 (W.D. Mich. 1996) (allowing bilateral amputee prisoner to pursue claim that jail
violated the ADA by failing to provide accessible shower and commode); Outlaw v. City of Dothan, No. CV-92-A-1219-S,
1993 U.S. Dist. LEXIS 21063, at *11–12 (M.D. Ala. Apr. 27, 1993) (unpublished) (holding that the ADA requires city jail
to make its showers accessible to and useable by disabled prisoners).
      147. See, e.g., Montez v. Romer, 32 F. Supp. 2d 1235, 1243 (D. Colo. 1999) (allowing prisoners to go forward with
ADA and § 504 suit that included claim that physical barriers in the prison created safety risks).
      148. See, e.g., Barr v. Abrams, 810 F.2d 358, 363 (“[C]omplaints relying on the civil rights statutes are insufficient
unless they contain some specific allegations of fact indicating a deprivation of rights, instead of litany of general
conclusions that shock but have no meaning.”); Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 443 (dismissing
claim because prisoner’s claim did not allege that he was prevented from accessing law library and infirmary).
      149. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 219 (1998)
(stating that “[m]odern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational
and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners”).
      150. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 219 (1998)
libraries and law libraries, 152 educational programs, 153 vocational training, 154 job opportunities, 155
commissary and dispensary,156 transition programs,157 dining halls,158 visitation,159 telephone calls,160 church
services, 161 eligibility for trustee status, 162 substance abuse classes, 163 access to reading materials and
television,164 college classes,165 and access to medical care.166 One court has determined that granting parole
is an “activity,” and thus the actions of the parole board must comply with the ADA. 167 Disciplinary

(noting that the prison’s motivational boot camp for first-time offenders is a program).
      151. See, e.g., Bullock v. Gomez, 929 F. Supp. 1299, 1303–04 (C.D. Cal. 1996) (noting prisoner was able to show he
was excluded from conjugal visit program, although issue of whether he was “otherwise qualified” was still open).
      152 . See, e.g., Love v. Westville Corr. Ctr, 103 F.3d 558, 558–59 (7th Cir. 1996) (upholding decision that
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to the prison library and law
library).
      153. See, e.g., Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 483 (7th Cir. 1997) (“[T]here is no doubt that an
educational program is a program.”). See also Garrett v. Angelone, 940 F. Supp. 933, 942 (W.D. Va. 1996), aff’d, 107 F.3d
865 (4th Cir. 1997) (holding that the ADA does not require a prison to implement a specific type of rehabilitation or
education program that is not already available).
      154. See, e.g., Montez v. Romer, 32 F. Supp. 2d 1235, 1237 (D. Colo. 1999) (noting that prisoners argued they were
unable to participate in vocational training because the prison did not accommodate their disabilities).
      155. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (upholding decision that quadriplegic
prisoner’s rights under the ADA were violated when he was denied access to “work programs”).
      156. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 558–59 (7th Cir. 1996) (upholding decision that
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to the prison commissary);
Kiman v. N.H. Dep't of Corr., 451 F.3d 274, 286–87 (1st Cir. 2006) (finding that access to medication is one of the
“services, programs, or activities” covered by the ADA).
      157. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 558–59 (7th Cir. 1996) (upholding decision that
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to transition programs).
      158. See, e.g., Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 483 (7th Cir. 1997) (noting that use of the dining hall
is an activity under the ADA); Rainey v. County of Delaware, No. CIV.A.00-548, 2000 U.S. Dist. LEXIS 10700, at *5
(E.D. Pa. Aug. 1, 2000) (unpublished) (allowing claim to go forward that disabled prisoner was given insufficient time to
travel to the dining hall, thereby depriving him of food).
      159. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 558–59 (7th Cir. 1996) (upholding decision that
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to “visitation facilities that were
open to the general inmate population”).
      160. See, e.g., Clarkson v. Coughlin, 898 F. Supp. 1019, 1030 (S.D.N.Y. 1995) (granting summary judgment under
the ADA where deaf prisoner was denied telephone communication devices for the deaf or amplified headsets).
      161. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (upholding decision that quadriplegic
prisoner’s rights under the ADA were violated when he was denied access to church services).
      162. See, e.g., Dean v. Knowles, 912 F. Supp. 519, 522 (S.D. Fla. 1996) (allowing an asymptomatic HIV-positive
prisoner to go forward with discrimination case against prison officials who denied him trustee status).
      163. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 558–59 (7th Cir. 1996) (upholding decision that
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to substance abuse programs);
Clarkson v. Coughlin, 898 F. Supp. 1019, 1024, 1030, (S.D.N.Y. 1995) (granting summary judgment under the ADA
where deaf prisoner was denied access to drug and alcohol rehabilitation programs).
      164. See, e.g., Walker v. Snyder, 213 F.3d 344, 345 (7th Cir. 2000) (stating that district court had declared prison’s
failure to provide books on tape as a violation of ADA); overruled on other grounds, 324 F.3d 906 (7th Cir. 2003);
Clarkson v. Coughlin, 898 F. Supp. 1019, 1032–33 (S.D.N.Y. 1995) (granting summary judgment under the ADA where
deaf prisoners were denied a closed-caption decoder for televisions).
      165. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 558–59 (7th Cir. 1996) (upholding decision that
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to the prison educational
programs).
      166. Most courts have held that the ADA does not provide a cause of action for inappropriate medical care. See,
e.g., Moore v. Prison Health Servs., Inc., 24 F. Supp. 2d 1164, 1168 (D. Kan. 1998) (holding that claim of inadequate
medical care is not appropriate under ADA), aff’d, 201 F.3d 448 (10th Cir. 1999). Courts have, however, upheld claims
alleging discriminatory access to medical care because of the prisoner’s disability. See, e.g., Roop v. Squadrito, 70 F.
Supp. 2d 868, 877 (N.D. Ind. 1999) (allowing defendant to go forward with ADA claim that, among other things, alleged
his medication was not dispensed properly by the prison because of his HIV); McNally v. Prison Health Servs., 46 F.
Supp. 2d 49, 50–51 (D. Me. 1999) reh’g denied, 52 F. Supp. 2d 147, 148 (D. Me. 1999) (allowing prisoner to go forward
with claim that prison violated ADA by refusing to administer HIV medication because of his HIV status). The 8th
Amendment may provide an alternative cause of action for inappropriate or inadequate medical care. See, e.g., Clarkson
v. Coughlin, 898 F. Supp. 1019, 1033 (S.D.N.Y. 1995) (holding that failure to provide sign-language interpreters
prevented deaf prisoners from receiving adequate medical care, in violation of their due process and 8th Amendment
rights).
      167. Thompson v. Davis, 295 F.3d 890, 898–99 (9th Cir. 2002) (holding that parole proceedings are subject to the
measures—such as shackling—also have been challenged as violating the ADA and constitutional
protections because they affect prisoners with disabilities in a harsher way. 168 In addition, prison
disciplinary hearings are subject to the ADA.169
    It is impossible to list all the programs and services that a prison offers, as the programs will be different
in each prison. The ADA and Section 504 define programs and activities very broadly, and courts have rarely
dismissed a prisoner suit because the activity in question did not qualify as a program.170 If you are an
individual with a disability, are qualified for the activity and program (even if it is not listed above), and the
prison refuses to allow you to participate, you may have a claim under the ADA and Section 504.
             H. State Accessibility Laws and Regulations
    Many states have accessibility and anti-disability discrimination statutes similar to the ADA. If you live
in a state that has a law that provides such protection, you should include a claim under that state law in
your lawsuit as well. Most states do have laws that require public and governmental facilities to be
physically accessible to people with disabilities, 171 and some states have laws that clearly require state
services or programs to provide modifications or accommodations for people with disabilities. 172 When
researching state laws to see if they cover the type of disability discrimination you are encountering, be sure
to read the statutory language carefully and review cases interpreting the statute to see if the law applies to
you. Some of these laws may have broader definitions of “disability” than the ADA so they are more friendly
to you (or more helpful). Also note that the constitutional challenges to the ADA discussed in the very
beginning of this Chapter do not apply to state accessibility statutes.
                       I. Enforcing Your Rights under the ADA and Section 504
    This Part talks about some of the other issues that you should think about when deciding whether to file
a claim. These issues are (1) the possibility of finding an attorney to take your case; (2) filing a complaint
with the DOJ versus filing a claim in court; (3) what kind of damages you can ask for in your lawsuit; and (4)
whether you can use your state’s laws against disability discrimination as well as the federal laws. Before
deciding to file a lawsuit under the ADA, Section 504, or any other civil rights statute, you MUST read
Chapter 14 of the JLM on the Prison Litigation Reform Act (“PLRA”). If you fail to follow the PLRA’s
requirements, you may lose your good time credit and/or your right to bring future claims in federal court
without paying the full filing fee at the time you file your claim. Make sure that your attorney also knows
about the PLRA, since many attorneys do not.


requirements of the ADA).
     168. Armstrong v. Davis, 275 F.3d 849, 859 (9th Cir. 2001) (affirming district court’s order stopping prison from
shackling hearing-impaired prisoners or prisoners who used sign language to communicate during parole hearings).
     169. Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996) (holding that prison disciplinary hearings are subject to
the requirements of the ADA).
     170. But see Aswegan v. Bruhl, 113 F.3d 109, 110 (8th Cir. 1997) (holding that provision of cable television is not a
“service, program or activity” within the meaning of the ADA).
     171. See, e.g., Ala. Code §21-4-1 to 4 (2008); Alaska Stat. §35.10.015 (2006); Ariz. Rev. Stat. Ann. §41-1492 et seq.
(2008); Cal. Civ. Code §54 (2007); Conn. Gen. Stat. Ann. §46a-7 (2004); Del. Code Ann. tit. 16 §9502 (2003); Fla. Stat. §§
255.21, 553.501 et seq. (2007); Ga. Code Ann. §30-3-2 to 5 (2007); Haw. Rev. Stat. Ann. §103-50 (2006); Kan. Stat. Ann.
§58-1303 to 1304 (2006); Ky. Rev. Stat. Ann. §198B.260 (2007); La. Rev. Stat. Ann. §§ 40: 1731 et seq. (2007); Me. Rev.
Stat. Ann. Tit. 5, §4591 (2002); Mass. Gen. Laws ch. 22, §13A (2003); Mo. Ann. Stat. §8.620 (2008); Mont. Code Ann. §
50-60-201 (2008); N.J. Stat. Ann. § 52:32-4 (2007); N.M. Stat. §28-7-3 (2008); N.Y. Pub. Bldgs. §51 (2007); N.C. Gen. Stat.
§168-2 (2007); N.D. Cent. Code. §§ 48-01.2–24 (2007); Ohio. Rev. Code. Ann. §3781.1111 (2006); Okla. Stat. tit. 61, §11
(2008); Or. Rev. Stat. §§ 447.210–280 (2007); Pa. Stat. Ann. tit. 35, § 7210.102 (2008); R.I. Gen. Laws § 37-8-15 (2007);
S.C. Code Ann. §§ 10-5-210 to 330 (2007); S.D. Codified Laws § 5-14-12 (2004); Tenn. Code Ann. §§ 68-120-201 to 205
(2006); Tex. Gov’t Code Ann. §§ 469.000 et seq. (2004); Utah Code Ann. §§ 26-29-1 to 4 (2007); Vt. Stat. Ann. tit. 20,
§§2900–2907 (2007); Wash. Rev. Code §§ 70.92.100–170 (2007); Wis. Stat. Ann. § 101.13 (2004). A number of states have
laws simply requiring equal rights of full and free use of facilities for the disabled. See, e.g., Ark. Code Ann. §20-14-303
(2005); Colo. Rev. Stat. §24-34-601 (2008); Iowa Code §216C.3 (2007); Md. Code Ann. Human Servs. §7-704 (2007); Mich.
Comp. Laws. §37.1102 (2008); Minn. Stat. §363A.11 (2008); Neb. Rev. Stat. § 233.010 (2007); Nev. Rev. Stat. § 167-C:2
(2007); N.H. Rev. Stat. Ann. § 20-127 (2007); Va. Code Ann. § 51.5–44 (2006); Wyo. Stat. Ann. § 35-13-201 (2007).
     172. See, e.g., Conn. Gen. Stat. § 46a-7 (2008); Fla Stat. § 110.215 (2007); 775 Ill. Comp. Stat. 5/5-101 et seq. (2001
& Supp. 2008); La. Rev. Stat. Ann. §§ 46-2252 to 2256 (2008); Md. Code. Ann., Human Servs. §§ 7-127 to 132 (2007); N.C.
Gen. Stat. §168A-7 (2007); Or. Rev. Stat. § 410.060 (2007); R.I. Gen. Laws § 42-87-2 (2007); S.C. Code Ann. § 43-33-520
(2007); S.D. Codified Laws § 20-13-23.7 (2004); Tex. Hum. Res. Code Ann. §§ 22.010–.011(Vernon 2001); Utah Code Ann.
§ 62A-5-102 (2006); Va. Code Ann. § 51.5-40 (2005).
             1. Finding an Attorney
    You probably already know that there are not enough lawyers willing and able to represent prisoners
because often prisoner lawsuits do not pay lawyers well enough. But the ADA and Section 504 do allow for
the recovery of attorney’s fees:173 attorneys (and plaintiffs who are representing themselves) can ask for
attorney’s fees from defendants after winning a case. Courts have found that the PLRA, which limits
recovery of attorney’s fees in prisoner lawsuits,174 does not apply to ADA or Section 504 claims.175 If you do
decide to bring a lawsuit to enforce your rights under the ADA and Section 504, you might want to contact
lawyers or disability rights groups in the area to see if they can assist you. Even if you do not have a lawyer,
you should still ask for compensation for lawyer’s fees under the ADA and Section 504. You are also entitled
to recover any court or in pauperis (poor person) fees that you have paid.
    You may wish to contact your state’s Protection & Advocacy (“P&A”) organization for advice and/or
representation. P&As are organizations, usually non-profits, that advocate on behalf of persons with
disabilities, including those in criminal and civil institutions. 176 Your P&A may be able to help you by
providing information, referrals or advice, helping you file your complaint, or representing you. To find the
name and contact information of the P&A in your area, contact the National Disability Rights Network, 900
Second Street, NE, Suite 211, Washington, D.C. 20002; Telephone: (202) 408-9514.
             2. Filing a Complaint
    If you believe you have been discriminated against because of your disability, you may file a complaint
with the DOJ177 and/or bring a lawsuit in court.178 Neither Title II nor Section 504 requires you to file with
the DOJ, but the PLRA may require you to first file with the DOJ. Several federal courts in New York had
held prisoners must file a complaint with the DOJ before filing a complaint in federal court because the
PLRA requires prisoners to exhaust all administrative remedies.179 But, in a 2005 decision by the Second
Circuit Court of Appeals, the New York Department of Corrections (“DOCS”) stated it would stop requiring
prisoners to file their ADA claims with the DOJ before bringing suits in federal court.180 While most courts


      173. 29 U.S.C. § 794a(b) (2006) (“In any action or proceeding to enforce or charge a violation of [the Rehabilitation
Act] ..., the court, in its discretion, may allow the prevailing party ... reasonable attorney's fee as part of the costs.”);
Americans with Disabilities Act, 42 U.S.C. § 12205 (2006) (“In any action or administrative proceeding commenced
pursuant to this Chapter, the court or agency, in its discretion, may allow the prevailing party ... a reasonable attorney’s
fee, including litigation expenses, and costs.”); see also 28 C.F.R. pt. 35, app. A., at 572 (2007) (discussing 28 U.S.C. §
35.175 and specifying that “attorneys fees” include “litigation expenses and costs” including “items such as expert
witness fees, travel expenses, etc.”).
      174. Prison Litigation Reform Act, 42 U.S.C. § 1997e(d) (2006) (discussing attorney’s fees in suits by prisoners).
      175. Armstrong v. Davis, 318 F.3d 965, 974 (9th Cir. 2003) (holding that the restrictions on attorney’s fees
contained in the PLRA do not apply to claims brought under the ADA or § 504 because the two laws have their own
attorney’s fees provisions); Beckford v. Irvin, 60 F. Supp. 2d 85, 88 (W.D.N.Y. 1999) (holding that the PLRA’s restrictions
on attorneys’ fees do not apply to prisoners’ claims brought under the ADA).
      176. Protection and Advocacy of Individual Rights (PAIR), 29 U.S.C. § 794e (2006) (supporting “a system in each
State to protect the legal and human rights of individuals with disabilities”); Protection and Advocacy for Individuals
with Mental Illness (“PAIMI”) 42 U.S.C. §§ 10803, 10805 (2006) (requiring the establishment of systems in every state
“designed to protect and advocate the rights of individuals with mental illness; and investigate incidents of abuse and
neglect of individuals with mental illness,” and stating that the system “shall have the authority to ... pursue
administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are
receiving care or treatment in the State”); Protection and Advocacy for Persons with Developmental Disabilities
(“PADD”), 42 U.S.C. § 15043 (2006) (listing the requirements of the system).
      177. 28 C.F.R. § 35.170(a) (2007).
      178. 28 C.F.R. § 35.172(b) (2007).
      179. See, e.g., Porter v. Nussle, 534 U.S. 516, 520. 122 S. Ct. 983, 986, 152 L. Ed.2d 12, 19 (2002) (holding that the
PLRA requires prisoners to exhaust all administrative remedies before filing an ADA claim); Burgess v. Garvin, No. 01-
Civ. 10994, 2004 U.S. Dist. LEXIS 14419, at *3, *9 (S.D.N.Y. Aug. 19, 2003) (unpublished) (holding that the PLRA
requires prisoners to exhaust all administrative remedies, including remedies with the DOJ, before filing an ADA claim:
“The plain language of [the PLRA] requires the prisoner to exhaust ‘such administrative remedies as are available.’ It is
not limited to administrative redress within the prison system in which the prisoner is being held, or to administrative
remedies provided by any particular sovereign.”), reconsideration granted on other grounds, 2004 WL 527053 (S.D.N.Y.
Mar. 16, 2004); William G. v. Pataki, 2005 U.S. Dist. LEXIS 16716, at *4 (S.D.N.Y. Aug. 12, 2005) (unpublished) (“The
DOJ remedies, to the extent that they are available to Plaintiffs, must be exhausted pursuant to the plain language of
the PLRA.”).
      180. Rosario v. Goord, 400 F.3d 108, 109 (2d Cir. 2005) (per curiam) (stating that DOCS does not now intend to
have not decided whether the PLRA’s administrative exhaustion requirement requires prisoners to first file
with the DOJ, you may wish to do so in order to avoid having your ADA or Section 504 lawsuit dismissed.
For more information on the PLRA, see Chapter 14 of the JLM, “The Prison Litigation Reform Act.”
             3. Filing a Claim with the U.S. Department of Justice (“DOJ”)
    You have 180 days from the date of the discrimination you experienced to file a complaint with the
DOJ.181 The DOJ will either investigate the complaint,182 or, if your complaint includes a Section 504 claim
and the DOJ feels that another federal agency can better investigate the complaint, refer your complaint to
that agency.183 If the agency or DOJ finds a violation of your rights, it will try to negotiate with the prison to
get the prison to comply with the law.184 If the prison does not comply, the agency will refer your case to the
U.S. Attorney General’s office.185 The Attorney General can sue the prison, but does not have to—and, in
most cases, will not.
    To file a disability discrimination complaint with the DOJ, contact the Department and ask for a “Title
II of the Americans with Disabilities Act Section 504 of the Rehabilitation Act of 1973 Discrimination
Complaint Form.”186 The contact information for the DOJ is:
     U.S. Department of Justice - Civil Rights Division
     950 Pennsylvania Avenue, NW
     Disability Rights Section - NYAV
     Washington, D.C. 20530
     Tel. (800) 514-0301
     TTY (800) 514-0383
    If you do not have time to request a form, send a letter to the DOJ that includes the following:
    (1)   Your name and full address;
    (2)   The name of the institution that discriminated against you (for example, the prison);
    (3)   The full address and telephone number of the institution that discriminated against you;
    (4)   A description of the acts of discrimination including the names of any individuals who discriminated
          against you;
    (5)   The date(s) that you encountered the discrimination (if the discrimination is still going on, indicate
          that as well);
    (6)   Whether you have complained to the prison, filed a formal grievance, and what the status of your
          complaint or grievance is;
    (7)   Whether you have complained to any other agencies (such as a state human rights commission) or
          filed with a court about the discrimination, and give the names and addresses of the agencies or
          courts you have filed with;
    (8)   Whether you plan to file with another agency or court, and the address of the agency or court (if you
          say you do not plan to file with any other agency or court, you may change your mind later); and
    (9)   Your signature and the date.187
             4. Filing a Lawsuit


challenge lawsuits on the grounds that administrative remedies have not been exhausted because complaints were not
first filed with the DOJ). But see William G. v. Pataki, No. 03 Civ. 8331 (RCC), 2005 U.S. Dist. LEXIS 16716, at *4
(S.D.N.Y. Aug. 12, 2005) (unpublished) (applying the DOJ exhaustion requirement to a proposed class action on behalf of
parole detainees with disabilities housed in New York city jails, where defendants were not DOCS but the State of New
York, the New York State Division of Parole, and Offices of Mental Health and of Alcohol and Substance Abuse
Services).
      181. 28 C.F.R. § 35.170(b) (2007).
      182. 28 C.F.R. § 35.172 (2007).
      183. 28 C.F.R. § 35.171(a)(2)(ii) (2007).
      184. 28 C.F.R. § 35.173(a)(2) (2007).
      185. 28 C.F.R. § 35.174 (2007).
      186. Form DOJ - ADA-II OMB Approval No. 1190-0009 (exp. 4-30-07), Title II of the Americans with Disabilities
Act Section 504 of the Rehabilitation Act of 1973 Discrimination Complaint Form, available at
http://ada.gov/t2cmpfrm.htm (last visited Feb. 4, 2007).
      187. Form DOJ - ADA-II OMB Approval No. 1190-0009 (exp. 4-30-07), Title II of the Americans with Disabilities
Act Section 504 of the Rehabilitation Act of 1973 Discrimination Complaint Form, available at
http://ada.gov/t2cmpfrm.htm (last visited Feb. 4, 2007)
    As mentioned above, the ADA and Section 504 do not require that you file with the DOJ, although you
may have to because of the Prison Litigation Reform Act. If you are in a jurisdiction that does not require
you to file with the DOJ first, you may go directly to court. If you do file with the DOJ, you can bring a
lawsuit even if the DOJ does not find a violation of your rights. The statute of limitations (deadline) for filing
a lawsuit under Title II and Section 504 depends on your state. Because neither law has its own statute of
limitations, most federal courts use the statute of limitations for personal injury claims in a state.188 Other
federal courts use the statute of limitations for the most similar state law.189 Note: some of these deadlines
are fairly long (six years in Minnesota),190 while others are very short (180 days in North Carolina).191
             5. What Kind of Damages You Can Ask for Against a State
                    (a) Money Damages
    There have been many challenges to private individuals’ abilities to sue states in federal court under
Title II and Section 504. While the Supreme Court recently held that Title II suits for money damages are
permitted against the state, at least where the issue involves access to the courts,192 it is not clear whether
courts will permit Title II suits against state prisons.193 If you live within a federal circuit that decides to
prohibit such suits, you can still file a lawsuit against the state, but even if you win, you will be able to
receive only injunctive and declaratory relief, not money.194
    Different courts have different rules about whether or not you can bring a lawsuit against a state for
money damages under Section 504. While most Courts of Appeals that have addressed this issue have held
that you may sue the state for monetary damages under Section 504,195 the Second Circuit Court of Appeals


     188. See, e.g., Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1998) (holding that Georgia’s two-
year personal injury statute of limitations applies to ADA Title II and § 504 claims, since Georgia does not have its own
law that is “identical to the Rehabilitation Act”); Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir. 1992)
(applying Texas’ two-year personal injury statute of limitations to § 504 claim); Noel v. Cornell Univ. Med. Coll. Ctr., 853
F. Supp. 93, 94 (1994) (holding that § 504 claims have a three-year statute of limitations in New York), aff’d without
opinion, 41 F.3d 1502 (2d Cir. 1994).
     189. See, e.g., Wolsey v. Med. Coll. of Hampton Roads, 1 F.3d 222, 224 (4th Cir. 1993) (holding that the statute of
limitations for the most similar state statute should also be applied to Rehabilitation Act suits).
     190. Faibisch v. Univ. of Minn., 304 F.3d 797, 802 (8th Cir. 2002) (holding that Minnesota’s six-year personal
injury statute of limitations should be used for Rehabilitation Act suits).
     191. McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 132 (4th Cir. 1994) (holding that the statute of
limitations for Rehabilitation Act claims is determined by the most similar state law, here a state anti-discrimination
law with a deadline of 180 days, and finding that therefore deadline for filing a § 504 complaint in North Carolina was
180 days). The McCullough court noted that it was following its decision in Wolsky v. Medical College of Hampton Rds.,
1 F.3d 222, 223 (4th Cir. 1993) where it found that because Virginia has its own act protecting disabled individuals with
the same purpose as the Rehabilitation Act, the Virginia Act was the most analogous statute and the one-year statute of
limitations should be used, as opposed to using a personal injury statute of limitations. McCullough v. Branch Banking
& Trust Co., 53 F.3d 127, 130 (4th Cir. 1994).
     192. Tennessee v. Lane, 541 U.S. 509, 531, 124 S. Ct. 1978, 1993, 158 L. Ed. 2d 820, 842 (2004) (holding “Title II
unquestionably is valid legislation as it applies to the class of cases implicating the accessibility of judicial services”).
     193. Klingler v. Dep't of Revenue, 455 F.3d 888, 891 (8th Cir. 2006) (discussing the uncertainty over whether Title
II can abrogate sovereign immunity for conduct that does not violate the 14th Amendment); United States v. Georgia,
546 U.S. 151, 159, 126 S. Ct. 877, 881–82 163 L. Ed. 2d 650, 660 (2006) (stating that lower courts should determine, “on
a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not
violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of
conduct is nevertheless valid”).
     194. Remember that in lawsuits against the federal government you can ask for only injunctive (a court-ordered
act or prohibition) and declaratory relief (the judge’s determination of each party’s rights), and not monetary damages.
     195. See Garrett v. Univ. of Ala., 344 F.3d 1288, 1293 (11th Cir. 2003) (allowing suits under the Rehabilitation Act
to go forward and finding that states waive immunity under all of the acts listed by accepting certain federal funds);
A.W. v. Jersey City Pub. Sch., 341 F.3d 234, 238 (3d Cir. 2003) (rejecting state education department’s claim of
constitutional immunity in suit under the Individuals with Disabilities in Education Act and Rehabilitation Act); Doe v.
Nebraska, 345 F. 3d 593, 604 (8th Cir. 2003) (finding that State waived 11th Amendment immunity by accepting federal
funds for programs under § 504 of the Rehabilitation Act); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003)
(finding that State waived 11th Amendment immunity for suits under the Americans with Disabilities Act and the
Rehabilitation Act); Carten v. Kent State Univ., 282 F.3d 391, 398 (6th Cir. 2002) (holding that State waived 11th
Amendment immunity for suits brought under the Rehabilitation Act); see also Pace v. Bogalusa City Sch. Bd., 403 F.3d
272, 289 (5th Cir. 2005) (en banc) (holding that by accepting federal financial assistance the state could be sued under §
has held that you may not be able to get money damages from states under Section 504 since states only
agreed to be sued for money damages under Title II.196
    Remember, this area of the law is rapidly changing, and, if you are planning to file a Title II or Section
504 lawsuit, you should thoroughly research this issue to determine the current law governing the circuit in
which you live. See Chapter 2 of the JLM, “Introduction to Legal Research,” for more information on
determining what is “current law.” Note that even if you are able to sue for money damages, you cannot
receive punitive damages under Title II or Section 504.197
                     (b) Injunctive Relief
    Even if you cannot sue the state for money damages, you can still ask for injunctive relief.198 (Injunctive
relief is when the court orders the prison to take certain actions— such as providing interpreters to hearing-
impaired prisoners during disciplinary hearings199 —or not to take certain actions—for example, to stop
excluding prisoners with HIV from certain programs.200) If you are seeking injunctive relief, you must make
your claim for an injunction against individual prison officials in their official capacities.201 Under the ADA
and Section 504, you cannot sue individual officials in their individual capacities. For example, if you sue
the prison warden you will be suing him as the warden, not as an individual. Although practically speaking
it will be the state that will have to support the relief that is granted, the law insists that the officials be the
ones from whom you request injunctive relief. (If you are suing a county, however, you can ask for injunctive
relief directly from the county or the county jail.)
                     (c) Eleventh Amendment Immunity
    Eleventh Amendment immunity (also called sovereign immunity) only presents a problem if you are
bringing a suit against a state. The immunity does not protect the federal government from suits; nor does it
protect local governments from suits.202


504, which requires states to waive their immunity from suit brought under it if they receive federal funds).
     196. Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 114 (2d Cir. 2001) (holding state did not
knowingly waive immunity against suit under remedies provision of the Rehabilitation Act by accepting federal funds for
state university). This case does not say the state can never be sued for money damages under § 504, but it requires that
the state had to have known it could be sued for money damages by accepting federal financial assistance. It is not clear
at what point states will be said to know they can be sued. See Press v. S.U.N.Y. at Stony Brook, 388 F. Supp. 2d 127,
132 (E.D.N.Y. 2005) (discussing subsequent treatment of Garcia). As such, if you are in the Second Circuit, you may
want to include a claim for money damages under § 504 (although you should keep in mind the three strikes provision of
the PLRA). See Chapter 14 of the JLM, “The Prison Litigation Reform Act,” to learn more about the PLRA.
     197. Barnes v. Gorman, 536 U.S. 181, 189, 122 S. Ct. 2097, 2102–03, 153 L. Ed. 2d 230, 238–39 (2002) (finding
punitive damages are not compensatory and therefore not within the scope of remedies for invasion of legal rights).
      198 . See, e.g., Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001) (noting a “private party may seek
prospective injunctive relief in federal court against a state official, even if the state is otherwise protected by Eleventh
Amendment immunity”). When you sue a state official in his official capacity for injunctive relief, this is called an Ex
parte Young suit. In the Ex parte Young case, the Supreme Court ruled that state officials could be sued for injunctive
relief, even if the state itself could not be sued in federal court. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714
(1908).
     199. Duffy v. Riveland, 98 F.3d 447, 455–56 (9th Cir. 1996) (holding that a deaf prisoner was disabled and could
make a claim under § 504 and might be entitled to a certified interpreter in disciplinary hearings).
     200. See Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of
Federal Law” (discussing the different types of relief and remedies available in a lawsuit).
     201. Henrietta D. v. Bloomberg, 331 F.3d 261, 287–88 (2d Cir. 2003) (stating the defendant is “not the state
herself” but is rather “a state officer sued here in her official capacity”); Bruggeman v. Blagojevich, 324 F.3d 906, 912–13
(7th Cir. 2003) (stating a suit “seeking injunctive relief against state officials in their official capacity … is a suit against
the state”); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187–88 (9th Cir. 2003) (stating Title II of the ADA does not
prohibit injunctive relief against state officials acting in their official capacities, because those individuals represent a
“public entity” under Title II); Carten v. Kent State Univ., 282 F.3d 391, 395–96 (6th Cir. 2002) (holding officials who
violate Title II of the ADA may be held responsible in their official capacities, even though they do not represent “the
state,” because Title II applies to public entities); Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001) (“[A] state
party may seek prospective injunctive relief in federal courts against a state official, even if the state is otherwise
protected by Eleventh Amendment immunity.”). See also Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374
n.9, 121 S. Ct. 955, 968 n.9, 148 L. Ed. 2d 866, 884 n.9 (2001) (noting that its decision that states may not be sued for
money damages under ADA Title I does not prevent a person from bringing a claim for injunctive relief).
     202. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 369, 121 S. Ct. 955, 965, 148 L. Ed. 2d 866, 880
(2001) (noting that “the Eleventh Amendment does not extend its immunity to units of local government” (citing Lincoln
    Although the Supreme Court decided in Pennsylvania Department of Corrections v. Yeskey that the ADA
applies to state prisoners,203 the rights of prisoners with disabilities and the protections given to you by the
ADA and Section 504 are the subject of much debate. In recent years, there have been many constitutional
challenges to the application of the ADA and Section 504 to the states. These constitutional challenges argue
that Congress did not have the authority in enacting the ADA and Section 504 to allow states to be sued in
federal court for damages. Under the Eleventh Amendment to the U.S. Constitution, states have what is
called sovereign immunity, and they are free from being sued for money by individuals in federal courts. But,
in some circumstances, Congress does have the power to make states subject to lawsuits for money. The
challenges to the ADA and Section 504 argue that Congress did not have this power when it enacted these
laws, and so people bringing claims under the ADA or Section 504 should not be able to win money damages
against the states. When courts decide states cannot be sued for money damages, individuals suing the
states can receive only injunctive relief, which can be quite difficult to obtain.
    States have used the Eleventh Amendment, which restricts Congress’ ability to make states subject to
suit in federal court, to defend themselves against ADA and Section 504 lawsuits. Recently, however, the
Supreme Court held that Title II validly abrogates (takes away) the states’ Eleventh Amendment protection
against prisoners’ damage claims, at least insofar as they involve actual violations of the Constitution.204 In
United States v. Georgia, the plaintiff alleged Eighth Amendment violations, but the decision does not
restrict the constitutional violations that might be actionable under the ADA to the Eighth Amendment.205
The question remains open whether it is also valid as to violations of the ADA that do not independently
violate any constitutional provision. There is no issue of the statute’s validity as to injunctive claims.206
             6. Filing an ADA or Section 504 Claim Against a County, City or Town
     The constitutional challenges to the ADA and Section 504 do not apply to local entities like counties,
cities, and towns.207 Therefore, you can ask for both compensatory money damages and injunctive relief if
you sue a county, city, or town for violating your rights under these laws. Remember, no punitive damages
are available under Title II or Section 504. 208 Also, if you are in a private prison that receives federal
financial assistance, you can sue the prison for money damages and injunctive relief under Section 504.
             J. Filing in State or Federal Court
    Most litigation concerning the rights of prisoners with disabilities has occurred in the federal courts.
However, because the Supreme Court continues to weaken the protections of the ADA and as federal courts
show a similar hostility to the protections of those rights, the state courts have become a possible alternative
place to receive relief. As noted above, state laws sometimes incorporate or expand upon the protections of
the ADA and do not have the constitutional vulnerabilities of the ADA and Section 504. If you are in a state
where the controlling federal case law has limited your ability to sue the state, you should research the
possibility of filing in state court using state law.
    In Tennessee v. Lane, the Supreme Court recently held that states may be sued for money damages for
violations of Title II, at least when the violation relates to a disabled person’s access to the courts.209 Then, in


County v. Luning, 133 U.S. 529, 530, 10 S. Ct. 363, 363, 33 L. Ed. 766, 767 (1890))).
      203. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952, 1956, 141 L. Ed. 2d 215, 221 (1998) (holding
that Title II of the ADA applied to prisoners in state prisons); Harris v. Thigpen, 941 F.2d 1495, 1522 n.41 (11th Cir.
1991) (ruling that § 504 applies to prisoners in state prisons because state prisons receive money from the federal
government); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988) (ruling that § 504 applies to state correctional
institutions which receive federal money).
      204. United States v. Georgia, 546 U.S. 151, 153–54, 126 S. Ct. 877, 880–82, 163 L. Ed. 2d 650, 658–59 (2006).
      205. United States v. Georgia, 546 U.S. 151, 160–61, 126 S. Ct. 877, 883, 163 L. Ed. 2d 650, 661 (2006) (Stevens,
J., concurring).
      206. United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006); Miller v. King,
384 F.3d 1248, 1263–67 (11th Cir. 2004), vacated and superseded on other grounds, 449 F.3d 1149 (11th Cir. 2006).
      207. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 369, 121 S. Ct. 955, 965, 148 L. Ed. 2d 866, 880
(2001) (noting that “the Eleventh Amendment does not extend its immunity to units of local government” and therefore
local entities are “subject to private claims for damages under the ADA”).
      208. Barnes v. Gorman, 536 U.S. 181, 189, 122 S. Ct. 2097, 2103, 153 L. Ed. 2d 230, 239 (2002) (stating that,
“[b]ecause punitive damages may not be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it
follows that they may not be awarded in suits brought under § 202 of the ADA and § 504 of the Rehabilitation Act”).
      209. Tennessee v. Lane, 541 U.S. 509, 531, 124 S. Ct. 1978, 1993, 158 L. Ed. 2d 820, 842 (2004).
United States v. Georgia, the Supreme Court held that prisoners may sue states for money damages under
Title II, at least in situations where the misconduct alleged actually violates the Fourteenth Amendment.210
    The Supreme Court has taken the middle road between allowing and not allowing state prisons to be
sued for money damages. The current rule established by the Supreme Court in United States v. Georgia is
that prisoners may sue states for money damages under Title II when the state prison’s misconduct actually
violates the Fourteenth Amendment.211 What this means is that if a state prison system violates any of the
rights which are part of the Fourteenth Amendment, in addition to violating Title II, then the state can be
sued for monetary damages. The rights that are part of the Fourteenth Amendment are most of the rights in
the first eight Amendments of the Bill of Rights.
    It appears that after Lane and Georgia, lower courts will take a case-by-case approach, considering the
particular circumstances presented, in determining whether the plaintiff can sue the state for money
damages.212 While some courts will generally permit Title II suits for money damages against the State,
others will not.213
    It should be noted that, prior to Lane (2004), most Circuit Courts of Appeals and district courts held that
states may not be sued for money damages.214 If you are considering bringing a disability discrimination


     210. United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006).
     211. United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006).
     212. See United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006). In United
States v. Georgia, the Court held that lower courts were in the best position to determine (1) which aspects of the State’s
alleged conduct violated Title II of the ADA; and (2) to what extent such misconduct also violated the 14th Amendment.
Additionally, the Supreme Court held that when lower courts find that the State’s alleged misconduct violated Title II
but did not violate the 14th Amendment, lower courts should determine whether Congress intended that people should
have a right to sue the states for money damages for that type of misconduct anyway. Since United States v. Georgia, a
number of courts have allowed prisoners to sue for money damages when they have been able to establish both that the
state prison system violated Title II of the ADA and that the actions of the state prison system violated the prisoners’
14th Amendment rights. See, e.g., Degrafinreid v. Ricks, 417 F. Supp. 2d 403, 409 (S.D.N.Y. 2006) (ruling a prisoner
could bring a claim for money damages against his prison system for confiscating and destroying his hearing aid because
the prison’s actions may have violated the prisoner’s 8th Amendment right to be free of cruel and unusual punishment).
But, when a State’s actions violate Title II but do not violate a prisoner’s constitutional rights, courts have been hesitant
to allow the prisoner to sue for monetary damages. See, e.g., Miller v. King, 384 F.3d 1248, 1264–65 (11th Cir. 2004),
vacated and superseded on other grounds, 449 F.3d 1149 (11th Cir. 2006) (holding that Title II damages suits may only
be brought where a “fundamental right” is affected and holding that a prisoner may not bring a Title II damages suit
against the state); Flakes v. Franks, 322 F. Supp. 2d 981, 983 (W.D. Wisc. 2004) (noting it was not clear whether
prisoner’s Title II claim for money damages would be proper).
     213. See, e.g., Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 792–93 (9th Cir. 2004) (upholding prior decision
permitting a prisoner to bring a Title II claim for damages against the state); see also Carasquillo v. City of N.Y., 324 F.
Supp. 2d 428, 442 (S.D.N.Y. 2004) (noting that Lane permits Title II claims for money damages against state and local
governments but dismissing claim on other grounds).
     214. Prior to Lane, the First, Fourth, Fifth, Seventh, Eighth, and 10th Circuit Courts of Appeals ruled that
individuals may not receive money damages under Title II of the ADA. See Kiman v. N.H. Dep’t of Corr., No.01-134-B,
2001 U.S. Dist. LEXIS 21894 (unpublished) (D.N.H. Dec. 19, 2001) (agreeing with the Second, Fifth, and 10th Circuits
that, under Garrett, the 11th Amendment deprives courts of jurisdictions to hear Title II claims against states), aff’d en
banc, 332 F.3d 29 (1st Cir. 2003), vacated, 541 U.S. 1059, 124 S. Ct. 2387, 158 L. Ed. 2d 961 (2004); Wessel v.
Glendening, 306 F.3d 203, 215 (4th Cir. 2002) (holding that “[a]lthough Congress properly and clearly expressed its
intent to [abrogate state sovereign immunity], it acted on the basis of an inadequate record and imposed a remedy that is
neither congruent nor proportional to the problem it identified.”), overruled by Constantine v. Rectors & Visitors of
George Mason Univ., 441 F.3d 474 (4th Cir. 2005); Reickenbacker v. Foster, 274 F.3d 974, 983 (5th Cir. 2001) (holding
that Title II and § 504 of the Rehabilitation Act are not proportional and congruent responses to legislative findings of
unconstitutional discrimination by the States against the disabled), overruled by Pace v. Bogalusa City Sch. Bd., 403
F.3d 272, 277 n.14 (5th Cir. 2005); Thompson v. Colorado, 278 F.3d 1020, 1022 (10th Cir. 2001) (holding that Title II
cannot be found to be a proportional and congruent response to constitutional violations if Congress has not identified a
history and pattern of unconstitutional discrimination by the states); Walker v. Snyder, 213 F.3d 344, 347 (7th Cir. 2000)
(holding that like Title I, Title II of the ADA is barred by the 11th Amendment), overruled by Bruggeman v. Blagojevich,
324 F.3d 906, 912–13 (7th Cir. 2003); Alsbrook v. City of Maumelle, 184 F.3d 999, 1002 (8th Cir. 1999) (Title II is not a
valid exercise of Congress’ power under § 5 of the 14th Amendment and so Arkansas retains its 11th Amendment
immunity). The Second Circuit ruled that individuals may not receive money damages under Title II of the ADA unless
they can show that the state acted with “discriminatory animus or ill will” toward the disabled. Garcia v. S.U.N.Y.
Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 111 (2d Cir. 2001). The Sixth Circuit only allowed money damages against
the state under Title II if the discrimination amounted to a violation of an individual’s due process rights under the 14th
Amendment. Lane v. Tennessee, 315 F.3d 680, 682 (6th Cir. 2003) (holding that “it was reasonable for Congress to
conclude that it needed to enact [the ADA] to prevent states from unduly burdening” rights protected by the 14th
claim under Title II, it is extremely important that you look at how the decisions in Lane and Georgia are
analyzed and interpreted by other courts, disability rights organizations, and academics. See Chapter 2 of
the JLM for information on performing legal research.
    You may also bring constitutional challenges to Section 504, arguing that Congress did not properly
make states open to money damages under that law either. The arguments against money damages under
Section 504 are weaker because the law applies to agencies that receive federal funding in exchange for
complying with Section 504. However, in some courts you also may not be able to get money damages
against a state under Section 504. Thus, as stated above, you should always cite both statutes when filing
your claim. If the Supreme Court rules that Congress exceeded its power in enacting Title II, your complaint
will still be viable against a state prison if it includes claims under Section 504 and you are in a jurisdiction
that allows suits for money damages under Section 504.
                                                K. Conclusion
    If you are a prisoner with a physical or mental disability, Section 504 and the Americans with
Disabilities Act (and maybe state law as well) guarantee you certain rights and protections. To realize your
protections under these laws, you will need to make sure you meet the elements of the various statutes. You
may be able to obtain an attorney to assist you with your complaint as both Section 504 and the ADA allow
for the recovery of attorneys’ fees. Although you might not be able to recover money damages, you may be
able to change the practices that are preventing you from participating in particular prison programs or
activities. Before filing your complaint, make sure to refer to Chapter 14 of the JLM for information about
the Prison Litigation Reform Act (PLRA, which may impose additional requirements before filing a lawsuit)
and your state statute of limitations if you are alleging a violation of a state statute.




Amendment), aff’d, 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004). Only the Ninth Circuit had held that
individuals may sue the state for money damages under Title II of the ADA. Hason v. Med. Bd. of Cal., 279 F.3d 1167,
1171 (9th Cir. 2002) (holding that Congress validly abrogated states’ 11th Amendment immunity when enacting Title
II).

				
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