Greg Fennell, Plaintiff v. George Simmons, et al., Defendants



Case No. 1:96CV0800



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION



951 F. Supp. 706; 1997 U.S. Dist. LEXIS 2110; 6 Am. Disabilities Cas. (BNA) 1183



January 3, 1997, Decided

January 3, 1997, FILED







DISPOSITION: [**1] Defendants' motion, considered as a Rule 12(c) motion for judgment on the pleadings, denied.



COUNSEL: For GREG FENNELL, plaintiff: George W. MacDonald, Esq., Cleveland, OH.


For GEORGE SIMMONS, Sheriff of Geauga County, Ohio, NEAL HOFSTETTER, WILLIAM REPKE, JAN NOVAK, Commissioners of Geauga County, Ohio, defendants: Andrew Michael Wargo, Esq., Reid, Berry & Stanard, Cleveland, OH.



JUDGES: DAVID S. PERELMAN, United States Magistrate Judge



OPINIONBY: DAVID S. PERELMAN



OPINION:

[*706] MEMORANDUM OPINION AND ORDER

This action was brought by Plaintiff, a paraplegic confined to a wheelchair, against the Sheriff of Geauga County, George Simmons, and the Geauga County Commissioners, Neal Hofstetter, William Repke and Jan Novak, based upon alleged violation of the Americans With Disabilities Act, 42 U.S.C. § 12131 et seq. (hereinafter ADA). n1 The motion now before this Court presents the discreet question whether the ADA applies to a county jail. n2



n1 Although the complaint also alleges violation of 42 U.S.C. § 1983 it is clear that such claim is derivative of the statutory ADA claim and is not based upon alleged violation of any other constitutional right. [**2]




n2 Defendants' motion challenges the general application of the ADA to all prisons and jails, rather than focusing upon the statute's application to the specific facts alleged in the complaint, it being argued that the complaint fails to state a claim upon which relief can be granted by reason of the inapplicability of the ADA to a jail or prison. Therefore, although captioned as a motion for summary judgment it may properly be considered as a Rule 12(a) motion for judgment on the pleadings.


The core of plaintiff's claim for relief is found in the following paragraphs of the complaint:


8. On June 12, 1995, by Order of the Chardon Municipal Court in Chardon, Ohio, Plaintiff was ordered into incarceration in the custody of the Geauga County Sheriff's Department under the direction of Defendant George Simmons, the elected county sheriff.


[*707] 9. Despite being aware that the Geauga County jail was not suited for more than an overnight stay, if that, by a paraplegic, and that it was not suitable for the health and well-being of Plaintiff herein, Defendant, thru persons employed by him and [**3] under his direction and control, received said Plaintiff into custody and placed him in the Geauga County Jail for confinement and incarceration from June 12, 1995 thru June 27, 1995. n3


10. During the time in which Plaintiff was incarcerated in the Geauga County Jail, the following, without limitation, occurred to him: he spent the first 48 hours in a wheel chair, unable to lie down or use toilet facilities; was placed on a toilet which was defective so that the riser on it fell, causing both injury and discomfort to Plaintiff; was unable to shower until on or after June 19, a full week after his incarceration; was required after such date to wear socks and shoes in the shower; was placed in a bed in which he was unable to be properly turned so that he developed serious and long persisting bed sores; and was denied medical care for said sores; and was in general the subject of both physical and medical neglect.





n3 In Defendant's brief it is stated that "On June 12, 1995, due to a violation of his parole, the Chardon Municipal Court ordered Plaintiff to be held without bond in the Geauga County Jail." Plaintiff's brief in turn does not state why he was confined but does state that his conviction was of a misdemeanor, for which the penalty was "six months or less of incarceration in a county municipal facility," with no loss of any rights or privileges of citizenship. As neither of these representations is reflected in the complaint or supported by affidavit this Court cannot give them any credence.


[**4]


Section 12132 of Title 42 provides:


Subject to the provisions of this title, 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.


"Public entity" is broadly defined in § 12131(1)(B) as including "any department, agency, special purpose district, or other instrumentality of a State or States local government." The term "qualified individual with a disability" is defined as "an individual 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." 42 U.S.C. § 12131(2). For interpretative purposes the proscriptions of the ADA parallel those of the substantially similar Rehabilitation Act (hereinafter Rehab Act), 29 U.S.C. § 794. n4



n4 In signing the ADA into law President Bush discussed fears that the bill was vague and costly, stating in that regard "The Administration worked closely with the Congress to ensure that, wherever possible, existing language and standards from the Rehabilitation Act were incorporated into the ADA. The Rehabilitation Act standards are already familiar to large segments of the private sector that are either federal contractors or recipients of Federal funds." Statement by President of the United States, 26 Weekly Comp. Pres. Doc. 1165 (July 30, 1990).


[**5]

Although the statutory language could be construed as reflecting absolutes, with no escape hatches or safe havens, the regulations adopted pursuant thereto reflect that, as is true with the Rehab Act, see Southeastern Community College v. Davis, 442 U.S. 397, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979), a standard of reasonableness prevails. 28 C.F.R. § 35.150 in pertinent part provides:


(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not--


(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities.

* * *


(3) Require a public entity to take any action that it can demonstrate would [*708] result in a fundamental alteration in the nature of a service, program or activity or in undue financial and administrative burdens. ... n5





n5 The regulation places the burden of proof in such regards upon the public entity.


[**6]

When this court first considered the question of the applicability of the ADA to a county jail the answer appeared to be simple and straightforward, dictated by the rules of statutory construction that a court must first look to the plain language of a statute for guidance, Good Samaritan Hospital v. Shalala, 508 U.S. 402, 124 L. Ed. 2d 368, 113 S. Ct. 2151 (1993), and that such language is controlling except in those "rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters...or when the language is ambiguous." Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 842 (6th Cir. 1994). The syllogism which follows from this is:


1) A county, such as Geauga County is a local government, so as to constitute a "public entity" within the meaning of Section 12132.


2) Administration of a county jail is one or all of a service, program or activity (albeit often an unwelcome one to those confined therein) provided by county government, within the sense of Section 12132.


3) Therefore, the protection afforded by Section 12132 to a disabled individual against exclusion from participation [**7] in or denial of the benefits of a service, program or activity of a public entity, or to acts of discrimination by such public entity extends to an individual confined in a county jail. n6





n6 This is the only point of law at issue under defendant's motion. Whether the conduct alleged by plaintiff in fact arises to the level of exclusion or denial or whether it amounts to discrimination within the purview of the statute is not now before this Court. Similarly, whether the defendant might be excused from compliance with the ADA, in whole or in part, because of the alterations which might be required or the burdens which might be imposed is not now before this Court.


Although this Court perceives no ambiguity in the statute, the legislative history was examined to ascertain whether there is a direct expression of Congressional intent contrary to this Court's interpretation. While none was found, this Court did come across the following in the House Reports which this Court considers to be consistent with [**8] this Court's interpretation:

In order to comply with the non-discrimination mandate, it is often necessary to provide training to public employees about disability. For example, persons who have epilepsy, and a variety of other disabilities, are frequently inappropriately arrested and jailed because police officers have not received proper training in the recognition of and aid for seizures. Often, after being arrested, they are deprived of medications while in jail, resulting in further seizures. Such discriminatory treatment based on disability can be avoided by proper training.


H.R. Rep. No 101-485(III), at 50, reprinted in 1990 U.S.C.C.A.N. vol 4, 473.

Recognizing that in law, as in life, matters are at times not as simple as they may seem, this Court also undertook comprehensive research into precedents under the ADA and Rehab Act in the context of prisons and jails to determine how other courts had dealt with this issue.

What this Court discovered is that with but a few exceptions all of those decisions shared two common factors rendering them of little guidance in this action, those being that (1) The institutions involved were state penitentiaries and the [**9] plaintiffs were convicted felons serving sentences therein and (2) The threshold issue of the applicability of the ADA and/or Rehab Act was apparently not raised/considered and decision turned upon other issues of law and/or fact. See Duffy v. Riveland, 98 F.3d 447, 1996 WL 583384 (9th Cir. 1996); Wagner v. Jett, 1994 U.S. App. LEXIS 27812, 1994 WL 532930 (6th Cir. 1994); Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994); Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994); Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991); Williams v. Meese, 926 F.2d 994 (10th Cir. 1991); Niece v. Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996); Clarkson v. [*709] Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995); Timmons v. New York State Department of Correctional Services, 887 F. Supp. 576 (S.D.N.Y. 1995); Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993); Casey v. Lewis, 834 F. Supp. 1569 (D. Az. 1993); Donnell v. Illinois State Board of Education, 829 F. Supp. 1016 (N.D. Ill. 1993); Sites v. McKenzie, 423 F. Supp. 1190 (N.D. W.Va. 1976).

In many of those cases the plaintiff's claim[s] foundered on the shoals of qualified immunity. Therefore, it could be said that in light of the decision in [**10] Siegert v. Gilley, 500 U.S. 226, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991) those rulings represent a tacit recognition that the ADA or Rehab Act is applicable to prisons and jails.

In Sieigert the court of appeals had assumed for the sake of decision that the plaintiff had stated a claim for violation of a constitutional right and found the defendant entitled to qualified immunity on the basis that such right was not clearly established. The Supreme Court criticized that approach, stating:


We think the Court of Appeals should not have assumed without deciding, this preliminary issue in this case, nor proceeded to examine the sufficiency of the allegations of malice.


....A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is "clearly established" at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.


Id. at 232.

The approach of assuming a violation as the predicate for a qualified immunity analysis is also contrary to the following rules concerning adjudication of the defense of qualified immunity as set forth in the very recent Sixth Circuit decision in [**11] Dickerson v. McClellan, 101 F.3d 1151, 1996 FED App. 0376 P (6th Cir. 1996).


The first step in a qualified immunity analysis is whether, based on the applicable law, a constitutional violation occurred. Centanni v. Eight Unknown Officers, 15 F.3d 587, 589 (6th Cir.), cert. denied, 129 L. Ed. 2d 860, 114 S. Ct. 2740 (1994); Silver v. Franklin Township, 966 F.2d 1031, 1035 (6th Cir. 1992). If we find a constitutional violation, we examine whether it involved "clearly established constitutional rights of which a reasonable person would have known." Christophel, 61 F.3d 479, 484 (citation omitted). In determining whether a constitutional right is "clearly established" at the time of the actions in question we "look first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits." Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir. 1994) (citation omitted). The standard for qualified immunity "depends substantially upon the level of generality at which the relevant 'legal rule' is to be identified." Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992) (quoting Anderson [**12] v. Creighton, 483 U.S. 635, 639-40, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). Therefore, for a plaintiff to make a successful § 1983 claim, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Russo, 953 F.2d at 1042. "Although it need not be the case that 'the very action in question has previously been held unlawful,...in the light of pre-existing law the unlawfulness must be apparent.


Once it is determined that the right is clearly established, the court must determine "whether the plaintiff has alleged sufficient facts supported by sufficient evidence to indicate what [the officer] allegedly did was objectively unreasonable in light of [the] clearly established constitutional rights." Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994). Summary judgment is not appropriate if there is a genuine factual dispute relating to whether the defendants committed acts that allegedly violated clearly established rights. Buckner, 36 F.3d at 540.


Slip opinion, pp. 10-11.

There is a very cogent jurisprudential consideration underlying the rule calling for initial consideration [**13] of the question whether a constitutional violation has been alleged. So [*710] long as courts persist in adjudicating constitutional claims by moving directly to the question of qualified immunity and rejecting the plaintiff's claim on the basis that the constitutional right alleged to have been violated was not clearly established, without first considering whether there was a viable claim of violation of that constitutional right, it is doubtful that the constitutional right at issue could ever become clearly established, plainly a Catch-22 proposition.

Three circuits have rendered decisions in which the question of the applicability of the ADA and/or Rehab Act to places of confinement was spoken to, although each of those was in the context of a convicted felon in a state penal institution.

The first was the Ninth Circuit, which in Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) flatly rejected the argument that the Rehab Act does not apply to an inmate in a state prison. In so doing that court found no merit in the contention that "it is unlikely that Congress ever intended that Section 504 apply to prisoners," finding that the statutory language, which parallels that of the ADA, [**14] was plain, further noting that "By ensuring that inmates have meaningful access to prison activities, such as disciplinary proceedings and counseling, the goals of both the institution and the Rehabilitation Act are served." Id., at 562.

The Ninth Circuit reiterated this general proposition in Gates v. Rowland, 39 F.3d 1439, 1446-47 (9th Cir. 1994), in which the court cited Bonner as representing the Ninth Circuit's position that the Rehab Act applies to prisons receiving federal financial assistance. The court then went on to address the proper application of that Act taking into consideration the "reasonable requirements of effective prison administration," holding that a prisoner's rights pursuant to the Act could be circumscribed by "legitimate penological interests."

Although some courts have suggested that this represents a retreat from the Bonner decision as to the basic applicability of the Rehab Act to state prisons, see, e.g. Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), it is the opinion of this Court that such is not the case. That the holding in Bonner was not disturbed, but, rather, reinforced by Gates is confirmed by the Ninth Circuit's [**15] later decision in Duffy v. Riveland, 98 F.3d 447, 1996 WL 583384 (9th Cir. 1996), in which the propriety of the application of the ADA to a prison setting was assumed.

In 1995 the Fourth Circuit handed down its decision in Torcasio, supra, in which an inmate in a state prison brought suit advancing claims for recovery under both the ADA and the Rehab Acts. The district court held as a general proposition that both Acts applied to such an action, and proceeded to uphold in part and reject in part (on a claim specific basis) the defense of qualified immunity. Some of the plaintiff's claims were dismissed based upon findings that the constitutional rights which the plaintiff alleged had been infringed were not clearly established. Others failed upon findings that the plaintiff's rights had not been violated by the conduct in question. The trial court, however, also ruled that other claims were actionable under the ADA and/or Rehab Act. The circuit court held that all of the plaintiff's claims failed for the reason that "it was not clearly established at that time that the ADA and Rehabilitation Act --the two acts upon which Torcasio's claim of a right to modification of services and facilities [**16] is predicated -- applied to state prisons." 57 F.3d at 1343.

Although this Court could distinguish Torcasio on the basis that it turned upon a finding of qualified immunity rather than directly addressing the question of the applicability of the ADA and/or Rehab Act to a prison setting, to do so would be to ignore the reality of the extended explication by the Fourth Circuit, dictum though it may be, as to why those acts should not be deemed applicable to state prisons (and those confined therein). That court began its analysis in such regard with a discussion of what it considered to be the "facial ambiguity of the legislation," stating "we are not persuaded that this language, however, even viewed in isolation from the arguably narrowing text found elsewhere in the acts, brings state prisons 'squarely' within the reach of these acts." Id. at 1344. Proceeding from that premise that court then reviewed a series of Supreme Court holdings in a variety of prison [*711] civil rights actions which recognized the need of prison authorities to exercise discretionary authority in order to maintain order and discipline in their institutions, concluding that those rulings stand for the proposition [**17] that Congress is, or should be, so loath to interfere with the running of state prisons that only a clear mandate by Congress would permit application of legislation such as the ADA and/or Rehab Act to such a setting. Failing to find that clear mandate in the statutes the court expressed the opinion that the statutes should not be deemed applicable to the plaintiff's claims, although only squarely holding that such applicability was not clearly established, n7 so as to entitle the defendants to judgment on all of Torcasio's claims of relief on the basis of qualified immunity.



n7 The court considered the Bonner decision as the only relevant precedent.


The year following the Torcasio decision the Seventh Circuit almost joined forces with the Fourth in Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996). This Court's use of the word "almost" is in recognition of the fact that in Bryant the court disavowed deciding the precise question of the applicability of the ADA to a state prison, n8 while expressing [**18] jurisprudential/philosophical observations akin to some contained in Torcasio.



n8 In part the opinion states "Even if such persons are protected, however, which we need not decide (for Congress may not have wanted to burden the states with the potentially enormous costs of making their prisons fully accessible to disabled visitors and employees)," id at 248, and "Even if there were (as we doubt) some domain of applicability of the Act to prisoners, the Act would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners." id at 249. Among the considerations mentioned in that ruling was that prisoners incarcerated on felony convictions suffer some losses of civil rights, a factor which would have no bearing in the case of a pretrial detainee or one convicted of a misdemeanor.


This Court's research has revealed only two decisions, both at the district court level, in which the question of the applicability of the ADA to other than a state penal institution [**19] has been squarely faced, and those courts reached opposite conclusions.

In Outlaw v. City of Dothan, 1993 U.S. Dist. LEXIS 21063, 1993 WL 735 802 (M.D. Ala.) the court held the ADA applicable in an action brought by a disabled individual n9 serving a twelve-day sentence upon a DUI conviction in the Dothan Municipal Jail. As this Court believes is correct, that court rejected the contention that operation of the jail was not a service, program or activity of a public entity, holding that "under common usage and understanding of the terms the jail and all of its facilities, including the shower, constitutes a service, program or activity of the City of Dothan to which the ADA applies." Slip opinion at p. 4.



n9 The plaintiff wore an artificial leg due to an injury suffered in a house explosion, and was required to take medication on a regular basis as a consequence of burns he sustained in that incident.


In Little v. Lycoming County, 912 F. Supp. 809 (M.D. Pa. 1996) the court held "The Fourth Circuit's well reasoned approach [in [**20] Torcasio] is, we conclude, the correct interpretation. The ADA should not be held applicable to facilities provided for prisoners in state prisons in the absence of a clear expression of congressional intent that that be the case, and we are not convinced that such intent has been expressed." Id at 809. This Court is constrained to observe that while the foregoing refers to "facilities provided for prisoners in state prisons," the plaintiff in that case was seeking redress under the ADA for events which occurred while she was confined for a little more than three months in the Lycoming County Prison, n10 which it must be presumed was a function of county government in light of the fact that Lycoming County was the primary defendant.



n10 The opinion sheds no light upon whether that confinement was pre-trial or post-conviction.


This Court is also at a loss to understand the citation in Little to the holding in Crowder v. True, 1993 U.S. Dist. LEXIS 17983, 1993 WL 532455 (N.D. Ill. 1993) that the ADA does not apply to the [**21] Federal Bureau of Prisons as support for the conclusion that the Act does not apply to a non-federal institution. The fact that the Federal Bureau of Prisons is explicitly excluded from the operation of the ADA in that legislation does not, in this Court's opinion, reflect that [*712] arms of state government are entitled to a similar exclusion. Indeed, a cogent argument could be made that if Congress saw the need to specifically exempt the Federal Bureau of Prisons from the expansive language of the ADA the failure to provide a comparable exemption to non-federal facilities is implicitly reflective of legislative intent that they are included.

Having given the Torcasio decision extended consideration, this Court, for several reasons, is not swayed from the conclusion initially stated herein.

Of primary significance to this Court is that in Torcasio the court did not explicitly decide the threshold issue of the applicability of the ADA or the Rehab Act to a place of confinement. Instead, it specifically avoided that threshold issue, finding that even if these Acts applied to such setting that application was not clearly established at the time the action arose. In addition to this [**22] analysis being inappropriate in light of Siegert v. Gilley, 500 U.S. 226, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991) (see fn # 7 supra), it avoids the very issue Defendants argue it resolves.

Furthermore, this court is unable to agree with the Torcasio court in its determination that the statutory language is unclear, so as to permit looking beyond the terms of the ADA to find its proper interpretation. In the opinion of this Court the language of 42 U.S.C. § § 12131 and 12132 is not unclear or ambiguous. That the Supreme Court has held in other contexts that the administration of state prisons should be as autonomous as possible provides no indication that Congress intended to exclude state prisons from the reach of the ADA (and the limited legislative history on the subject suggests the opposite).

Exploration of the Supreme Court precedents constituting the foundation of the Torcasio opinion only serves to strengthen this Court's perception on this issue. In this Court's opinion, none of the Supreme Court precedents looked to by the Fourth Circuit in Torcasio mandate the conclusion reached therein. In Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973) the issue before [**23] the Supreme Court was the interplay between 28 U.S.C. § 2255, the habeas corpus statute, and 42 U.S.C. § 1983 as regards a convicted defendant's ability to challenge that conviction in a civil rights action. Rhodes v. Chapman, 452 U.S. 337, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981) was an Eighth and Fourteenth Amendment attack upon double ceiling at a particular jail. The issue in Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974) was whether prison regulations restricting personal correspondence of inmates violated the First Amendment. Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) in large part pertained to rights of pretrial detainees, n11 but it also turned upon First, Fourth, Fifth and Eighth Amendment considerations. It is plain from each of those decisions, as it is from constitutional jurisprudence in general, that when dealing with constitutional doctrines which have no precise boundaries a balance may be drawn between the constitutional right or privilege claimed by an individual and societal interests opposing those of the individual. Those considerations do not come into the picture when the issue is whether [**24] a statute by its very terms applies to a static factual predicate.



n11 Although not addressed at great length in that decision, it is clear that in Bell the Supreme Court recognized that pretrial detainees retain greater rights and are entitled to more protection than is true of sentenced prisoners.


While this Court recognizes the very strong language in several Supreme Court decisions counseling the exercise of judicial restraint as regards interference by the federal courts in management of state prisons, this Court believes that one of the strongest of those expressions when considered in full context reflects that this Court's determination is not in conflict with the Supreme Court's guiding hand. In Procunier the Court stated:


Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, [**25] this attitude springs from complementary perceptions about the nature [*713] of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate [**26] prison authorities. n12


416 U.S. 396, 405, 94 S. Ct. 1800, 40 L. Ed. 2d 224. Having so clearly and forcefully articulated the considerations militating against judicial intervention, the Supreme Court then stated:


But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. ...This is such a case.


Id. At 405. n13



n12 Although in Torcasio the court did not quote at length the above language in Procunier the court did cite to this portion of the Supreme Court decision in support of its position that the ADA and Rehab Acts should not be applied to prisons and jails.

n13 Ultimately the court held that in several regards the prison policies under consideration could not withstand constitutional scrutiny and set them aside.


This Court has no hesitancy [**27] in paraphrasing the above by stating:


A policy of judicial restraint cannot encompass any failure to take cognizance of valid statutory claims whether arising in a federal or state institution. When a county jail regulation or practice offends a federal statutory mandate, federal courts will discharge their duty to enforce the mandate. This may be such a case.

Finally, this Court believes that the factors spoken to in Torcasio (and the authorities it drew upon) as warranting non-intervention in the affairs of state prisons do not necessarily apply with equal force in a case involving management of and/or conditions in a county or municipal jail, a facility designed primarily to house individuals charged with but not convicted of criminal offenses (often not at the felony level). This is not to say that those who bear the burden of administering the latter category of institutions do not have their own panoply of problems to solve and crosses to bear, only that it should be recognized that there may be differences between state and local facilities which could account for differing conclusions.

Before closing, this Court, in an abundance of caution and at the risk of [**28] repetitiveness, must make absolutely clear what is and is not implicated in this ruling. The only question of law presented by defendants' motion is does the ADA apply to a county jail, a question this Court answers in the affirmative. The motion does not seek judgment based on the contention that the facts alleged in the complaint are insufficient to state a claim for relief under the ADA, and this decision does not address that issue. n14 The motion does not seek judgment based on qualified immunity, and this decision does not address that issue. The motion does not, and could not, present the question whether defendants can establish that in order to satisfy whatever needs this plaintiff may have would result in a fundamental alteration in the nature of a [*714] service, program or activity or in undue financial and administrative burdens, and this decision does not address that proposition.



n14 A claim for relief under the ADA requires proof of elements different from those which might underlie a claim for relief based upon negligence or medical malpractice.


[**29]

Defendants' motion, considered as a Rule 12(c) motion for judgment on the pleadings, is denied.

IT IS SO ORDERED

DAVID S. PERELMAN

United States Magistrate Judge


DATE: January 3, 1997

LEONARD KAUFMAN, Plaintiff, -vs- CAROL CARTER, et al., Defendants.



Case No. 1:95-CV-313



UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION



952 F. Supp. 520; 1996 U.S. Dist. LEXIS 19277



December 9, 1996, Decided

December 9, 1996, filed







DISPOSITION: [**1] Defendants' motion for summary judgment as to plaintiff's Fourteenth Amendment claim GRANTED as to defendants Edmonds and Kalamazoo County, and DENIED as to defendants Carter and Waligursky. Defendants' motion for summary judgment as to plaintiff's claims under the Rehabilitation Act and Title II of the ADA DENIED. Plaintiff's claim for injunctive relief DISMISSED.









COUNSEL: For LEONARD KAUFMAN, pltf: Daniel E. Manville, Daniel E. Manville, PC, Ann Arbor, MI. Michael J. Steinberg, Michael J. Steinberg Law Office, Ann Arbor, MI.


For CAROL CARTER, Nurse, sued in her individual capacity, deft: Steven E Burnham, Kalamazoo County Corporation Counsel, Kalamazoo, MI. For CAROL WALIGURSKY, Nurse, sued in her individual capacity, deft: Steven E Burnham, (See above). For THOMAS EDMONDS, Sheriff of Kalamazoo County Jail, sued in his individual capacity, deft: Steven E Burnham, (See above). For KALAMAZOO, COUNTY OF, deft: Steven E Burnham, (See above).



JUDGES: Douglas W. Hillman, Senior District Judge



OPINIONBY: Douglas W. Hillman



OPINION:

[*523] OPINION ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff Leonard Kaufman brings constitutional and statutory claims [**2] against defendants Carol Carter and Carol Waligursky, nurses employed in the Kalamazoo County Jail, in their individual capacities. Also named as defendants are Sheriff Thomas Edmonds, in his individual and official capacities, and Kalamazoo County. This court now reviews plaintiff's objections to the Magistrate Judge's Report and Recommendation ("R&R") which recommended summary judgment be granted to defendants on all counts.

I. BACKGROUND

Plaintiff, a bilateral amputee, is missing his left leg from above the knee and his right leg from below the knee as a result of a 1974 train accident. He uses a wheelchair and, on occasion, walks with the aid of prostheses. As a parole violator awaiting trial on new charges, plaintiff was incarcerated in the Kalamazoo County Jail from June 19, 1992 until October 22, 1992. He now brings a claim under 42 U.S.C. § 1983, alleging that defendants were deliberately indifferent to his serious medical needs in violation of the Fourteenth Amendment, as interpreted under the standards of the Eighth Amendment. He also claims that the conditions of his confinement violated the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans [**3] with Disabilities Act (the "ADA"), 42 U.S.C. § § 12131-12134. He initially brought an additional claim under the Michigan Handicapper's Act, Mich. Comp. Laws § § 37.1101 et seq., but has waived his appeal as to the Magistrate Judge's recommendation to grant summary judgment on this claim.

First, plaintiff claims that the jail was deliberately indifferent to his serious medical needs in violation of the Fourteenth Amendment. During his confinement, plaintiff alleges, he requested rubbing alcohol so that he could clean his prosthetic limbs and "ace wraps" so that he could maintain the size of his leg stumps while not wearing his prostheses. He claims that these requests were refused. As a result, his stumps swelled and he was not able to use his prostheses. He asserts that he was confined to his wheelchair until March 31, 1995, when he was able to have new prostheses fitted.

Plaintiff also alleges that Sick Bay No. 3, the five-person cell where he was confined, violated the Rehabilitation Act and the ADA in a number of ways. He alleges that the shower was too narrow to accommodate his wheelchair. Also, because it lacked handrails and non-slip flooring materials, he faced great difficulty [**4] in transferring himself from his wheelchair to the shower bench. He claims that this arrangement caused him to fall at one point while attempting to use the shower. As a result, he was taken by ambulance to a local emergency room and diagnosed as having pulled a back muscle. Plaintiff further claims he was unable to maintain proper hygiene due to his difficulties with the shower, and was harassed by cellmates due to his odor. Plaintiff also asserts that the toilet in Sick Bay No. 3 was inaccessible to [*524] him. He claims that it lacked both handrails and a seat, and was set into a narrow stall into which he could not maneuver his wheelchair. He claims that on occasion he either fell to the floor while attempting to transfer between his wheelchair and the toilet, or fell directly into the toilet water, which required his cellmates to pull him out of the bowl. These events, he asserts, left him bruised and humiliated. He claims that the cell's drinking fountain and sink were inaccessible to him, and that their design once caused him to fall while attempting to get a drink of water. He also claims that he could not reach the telephone without assistance from fellow inmates. Plaintiff alleges [**5] that he informed defendant nurses of each of these inadequacies, to no avail. He acknowledges that defendants installed a new bed in response to his complaints, but claims that it remained deficient in several respects.

Plaintiff seeks injunctive relief and money damages in response to these alleged violations of his rights.

Defendants moved alternatively to dismiss plaintiff's claims and for summary judgment. The magistrate judge recommended granting summary judgment to defendants on all of plaintiff's claims. Thereafter the magistrate judge granted leave for plaintiff to file his objections to the R&R out of time.

II. ANALYSIS

A. Standard of Review

This court reviews de novo those portions of the R&R to which objections are made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court may accept, reject, or modify any or all of the magistrate judge's findings or recommendations. Id.

B. Summary Judgment Standards

Summary judgment facilitates the overall goals of the Federal Rules of Civil Procedure, which are "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, [**6] 106 S. Ct. 2548 (1986). A motion for summary judgment will be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is on the moving party to show that no genuine issues of material fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

Once the moving party presents a prima facie showing that he or she is entitled to judgment as a matter of law, the party opposing the motion may not rest upon the mere allegations or denials in its pleadings but must set forth specific facts showing that a genuine issue for trial exists. Anderson, 477 U.S. at 256-57. "The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and upon which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. However, "the evidence of the [**7] non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

C. Plaintiff's Deliberate Indifference Claim

Plaintiff claims that the named defendants violated his Eighth and Fourteenth Amendment rights by their deliberate indifference to his serious medical needs. He alleges that defendants intentionally failed to provide him with the rubbing alcohol and wrapping materials needed to maintain the stumps of his amputated legs in a condition that would accept prostheses. As a result, he claims, he lost the ability to ambulate until new prostheses could be fitted to his enlarged stumps in 1995.

The magistrate judge noted that plaintiff admitted receiving some medical care from defendants, and concluded that plaintiff's deliberate indifference claim essentially concerns the adequacy of his treatment rather than whether his needs were ignored. The R&R also addressed the constitutional status of plaintiff's conditions of confinement. This claim was never directly raised by plaintiff, [*525] and the magistrate judge apparently addressed it in response to issues raised by defendants. Nevertheless, the magistrate judge recommended [**8] granting summary judgment for defendants on both claims, concluding that plaintiff's claims failed under either Eighth Amendment theory.

Plaintiff's objection to the R&R speaks only to the recommendation regarding whether the conditions of plaintiff's confinement were unconstitutional. As plaintiff did not plead in his complaint a claim regarding condition of confinement, I decline to address it at this time.

Because plaintiff made no objection to the magistrate judge's recommendation that defendants' motion for summary judgment be granted as to his deliberate indifference claim, he has effectively waived review of that claim. See 28 U.S.C. § 636(b)(1)(C); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). However, this rule is procedural rather than jurisdictional. "While [§ 636(b)(1)(C)] does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 154, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985). Because of the importance of this claim, this court will exercise [**9] its discretionary review over the magistrate judge's recommendation notwithstanding plaintiff's failure to properly preserve this claim.

The constitutional standards pertaining to the Eighth Amendment also govern the conditions of pretrial detention. A pretrial detainee is not, strictly speaking, undergoing punishment, as he or she has not been judged guilty of an offense. See Danese v. Asman, 875 F.2d 1239, 1242 (6th Cir. 1989), cert. denied, 494 U.S. 1027, 108 L. Ed. 2d 610, 110 S. Ct. 1473 (1990), citing Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). However, "the eighth amendment rights of prisoners are analogized to those of detainees under the fourteenth amendment, to avoid the anomaly of extending greater constitutional protection to a convict than to one awaiting trial." Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985).

Under the Eighth Amendment, the government is required to "provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Estelle v. Gamble, 429 U.S. 97, 103, [**10] 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Because of the prisoner's absolute dependance on prison officials, "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment." Id. at 104 (citation omitted). "Serious medical needs" need not involve a risk of permanent physical injury: "in less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose." Id. at 103.

This indifference must be "deliberate," for "an inadvertent failure to provide adequate medical care [i.e.] a complaint that a physician has been negligent . . . does not state a valid claim of medical mistreatment under the Eighth Amendment." Id. at 106. This standard requires a plaintiff to show "that the [prison] official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1981, 128 L. Ed. 2d 811 (1994). Such knowledge is, of course, "subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a factfinder may [**11] conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id.

The Sixth Circuit, applying a Fourteenth Amendment "deliberate indifference" test, has held that "a prisoner states a proper cause of action when he alleges that prison authorities have denied reasonable requests for medical treatment in the face of an obvious need for such attention where the inmate is thereby exposed to undue suffering or a tangible residual injury." Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976). The Westlake court held that "a prisoner who is needlessly [*526] allowed to suffer pain when relief is readily available does have a cause of action against those whose deliberate indifference is the cause of his suffering." Id. The court also noted, however, the distinction "between cases where the complaint alleges a complete denial of medical care and those cases where the claim is that a prisoner received inadequate medical treatment." Id. at n.5. In the latter cases, the court stated, "federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law." Id. Still, the [**12] court cautioned, "in some cases the medical attention rendered may be so woefully inadequate as to amount to no treatment at all." Id.

Defendants respond to plaintiff's deliberate indifference claim in two ways. First, they contest his version of the facts. Defendants cite to the affidavits of Carter and Waligursky, which state that plaintiff was in fact provided with the supplies necessary to care for his stumps. Defendants also claim that jail records do not reflect complaints by plaintiff regarding the allegations in his complaint. However, plaintiff has properly supported this claim with an affidavit contradicting defendants' account. He states that the nurses largely ignored his repeated requests for the supplies necessary to maintain the size of his leg stumps and prevent the breakdown of their skin. Whether it is defendants' or plaintiff's version of events that is accurate is not something this court can evaluate on a motion for summary judgment. For the purposes of defendants' motion, the court must accept plaintiff's properly-supported factual assertions as true.

Second, the individual defendants assert that they are entitled to qualified immunity on this claim. Defendants [**13] assert that plaintiff's claim is best read as merely alleging inadequate care rather than actual deprivation of care, and that it therefore fails under Westlake.

"The recognition of a qualified immunity defense for high executives reflect[s] an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens . . . but also 'the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.'" Harlow v. Fitzgerald, 457 U.S. 800, 807, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (citations omitted). Accordingly, "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987) (citations omitted). However, the defense of qualified immunity fails where "the contours of the right [are] sufficiently clear [such] that a reasonable [**14] official would understand that what he is doing violates that right[;] in the light of pre-existing law the unlawfulness must be apparent." Id. at 640.

Accepting the statements made in plaintiff's affidavit as true, plaintiff has adequately alleged a claim of deliberate indifference under clearly established law. Although plaintiff's affidavit concedes that Carter and Waligursky responded occasionally to his requests for assistance, he states that the nurses for the most part refused to provide him with the supplies he needed. While an inadvertent failure to treat medical needs does not rise to the level of a constitutional violation, it is clear that the deprivation plaintiff alleges was intentional. Defendants' overall refusal to provide plaintiff with care was not cured by isolated, ineffectual instances of treatment. Johnson v. Hardin County, Ky., 908 F.2d 1280, 1284 (6th Cir. 1990) (holding that district court properly denied summary judgment on plaintiff's deliberate indifference claim where defendants, inter alia, frequently failed to provide plaintiff with all of his daily doses of pain medication); Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991) [**15] (holding that jail staff violated the Eighth Amendment by failing to carry out a medical "plan [and by] failing to change the dressing on [plaintiff's] wound daily"). Such intentional neglect is properly considered to be deliberate indifference.

[*527] For plaintiff to prevail on this claim, he must prove not only that defendants were deliberately indifferent to his medical needs, but also that those needs were in fact "serious." Plaintiff has put forward evidence in his affidavit that defendants refused to provide him with the elementary supplies that he needed, and that this prevented him from maintaining the stumps of his amputated legs in a condition which would allow them to accept prostheses. As a result, he states, he lost the ability to walk and was forced to use a wheelchair until March 31, 1995, when he was able to obtain new prostheses to fit his enlarged stumps. A medical condition that threatens one's ability to walk, even if ultimately reversible, is unquestionably a serious matter. The fact that this injury eventually healed does not invalidate his claim. Boretti v. Wiscomb, 930 F.2d 1150, 1155 (6th Cir. 1991) (holding that "the fact that . . . plaintiff's wound did [**16] not become infected and healed is not a bar to recovery" under a deliberate indifference theory). If such a medical need was deliberately disregarded by the nurses at the Kalamazoo County Jail, plaintiff is entitled to recover for the resulting harm he sustained.

Although plaintiff has stated facts which, if proved, constitute a violation by defendants Carter and Waligursky of his Fourteenth Amendment right to medical care, he has put forward no evidence that would directly implicate either Sheriff Edmonds or Kalamazoo County in this alleged violation. A claim of "deliberate indifference" requires a showing, at minimum, "that a prison official . . . failed to act believing that harm actually would befall an inmate." Farmer, 114 S. Ct. at 1981. Plaintiff must therefore put forward some evidence that these defendants had this requisite mental state. He has not done so. Plaintiff's affidavits evidence only that nurses Carter and Waligursky were aware of his medical needs. He has presented no evidence from which a court or jury could conclude that the nurses' superiors knew of and disregarded these violations. Accordingly, defendants' summary judgment motion will be granted as to [**17] plaintiff's deliberate indifference claim against Sheriff Edmonds and Kalamazoo County, and denied as to defendants Carter and Waligursky.

D. Plaintiff's Claims Under the Rehabilitation Act and the Americans with Disabilities Act

Plaintiff further claims that his accommodations at the Kalamazoo County Jail violated both the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act, 42 U.S.C. § § 12131-12134.

Although defendants' briefs assumed that these Acts are applicable to state prisons, the magistrate judge sue sponte raised this threshold issue. Relying principally on a recent Fourth Circuit case, Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996), the magistrate judge recommended that neither Act be held applicable to plaintiff's claim. As a further ground for denying relief, the magistrate judge concluded that even were plaintiff's complaint to have stated a claim, the officials in question would have been entitled to qualified immunity because the applicability of these statutes to prisons is not "clearly established."

1. Applicability of Rehabilitation Act and Title II [**18] to Prisons

a. The Rehabilitation Act

The first question to be addressed is whether the Rehabilitation Act does or does not apply to Michigan prisons. The Rehabilitation Act was enacted with the purpose of extending to the disabled "the guarantee of equal opportunity . . ." 29 U.S.C. § 701(b)(1)(f). The Act provides broadly that its mandate extends to "any program or activity receiving Federal financial assistance . . ." 29 U.S.C. § 794 (emphasis added). "In determining the meaning of legislation, we must first look to the plain language of the statute itself." Bradley v. Austin, 841 F.2d 1288, 1293 (6th Cir. 1988). It is not disputed that the Michigan Department of Corrections receives federal financial assistance. Likewise, being a "program or activity," it would appear to be subject to the [*528] Rehabilitation Act by the Act's literal language.

In addition, administrative regulations promulgated pursuant to the Act by the DOJ confirm this reading. "Regulations . . . interpreting [a] statute by the agencies charged with its enforcement . . . should not [be] rejected . . . absent clear inconsistency with the face or structure of the statute, or with the unmistakable [**19] mandate of the legislative history." Guardians Ass'n v. Civil Service Comm'n of the City of New York, 463 U.S. 582, 592, 77 L. Ed. 2d 866, 103 S. Ct. 3221 (1983). The federal interpretive regulation detailing what is included by the Act's reference to government "program[s]" explains that, "the term program means the operations of the agency or organizational unit of government receiving or substantially benefiting from the Federal assistance awarded, e.g., a police department or department of corrections. 28 C.F.R. § 42.540(h) (1995) (emphasis added).

Furthermore, numerous courts have concluded that the Rehabilitation Act applies to state prisons. See Duffy v. Riveland, 98 F.3d 447, 1996 WL 583384, *5 (9th Cir. 1996); Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994); Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994); Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988); Journey v. Vitek, 685 F.2d 239, 242 (8th Cir. 1982); Niece v. Fitzner, 941 F. Supp. 1497, 1996 WL 588217, *14 (E.D. Mich. 1996); Clarkson v. Coughlin, 898 F. Supp. 1019, 1036 (S.D.N.Y. [**20] 1995); Austin v. Pennsylvania Dep't of Corrections, 876 F. Supp. 1437, 1465 n.17 (E.D. Pa. 1995); Donnell C. v. Illinois State Bd. of Educ., 829 F. Supp. 1016, 1020 (N.D. Ill. 1993); Sites v. McKenzie, 423 F. Supp. 1190, 1197 (N.D. W. Va. 1976). Plaintiff correctly points out that the Ninth Circuit has reaffirmed its prior holding in Bonner that the Rehabilitation Act applies to state prisons. See Duffy, 98 F.3d 447, 1996 WL 583384 at *5; Gates, 39 F.3d at 1446.

The few federal cases that have held the Rehabilitation Act inapplicable to corrections institutions are unpersuasive. The Tenth Circuit has held, without further explanation, that "the section of the Rehabilitation Act cited by plaintiff, 29 U.S.C. § 794, does not give plaintiff any substantive rights since the Federal Bureau of Prisons does not fit the definition of 'programs or activities' governed by that section." Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Not only is this holding so cursory as to be of little persuasive value, but what reasoning it does provide is suspect. It is a doubtful conclusion that federal prisons do not come within the Act's reference to "program[s] . . . conducted [**21] by any Executive agency . . ." 29 U.S.C. § 794. In any event, because Williams pertains to federal, rather than state, prisons, it is inapplicable.

Torcasio, 57 F.3d 1340, is equally unconvincing. There, the Fourth Circuit held, inter alia, that it was not "clearly established" that the Rehabilitation Act applied to state prisons. Id. at 1346. The principal reason cited by the Torcasio court for its holding was that "management of state prisons is a core function of the state sovereign, and is not presumptively subject to federal control . . ." Id. at 1345. In the court's view, Congress must specifically negate this presumption in order for states to be bound by legislation that is phrased in expansive terms. Accordingly, the court stated that it would ignore the "broad, non-specific language contained in . . . isolated portions of the acts" because "Congress must speak unequivocally before we will conclude that it has 'clearly' subjected state prisons to its enactments." Id. at 1346.

This reasoning is not persuasive. Congress did in fact unequivocally state its intent to subject state governments to the Rehabilitation Act by abrogating the states' sovereign [**22] immunity under the Act. See 42 U.S.C. § 2000d-7. Considering this decision by Congress, and the statute's broad, unqualified language referring to "any" program or activity receiving federal financing, I am convinced that Congress indeed meant just what it said. "Any program" could not be clearer. To hold otherwise would be tantamount to requiring Congress to specify each and every one of the governmental units that it contemplates when it enacts any statute that is generally applicable to the states.

A recent Indiana district court decision raises a concern already put to rest by the [*529] Ninth Circuit. Crawford v. Indiana Dep't of Correction, 937 F. Supp. 785, 1996 WL 467172 at *6 (N.D. Ind. 1996). The district court held that Rehabilitation Act rights are suspended during incarceration, reasoning that "it strains common sense to subject a prisoner's . . . Rehabilitation Act claim[] to a more stringent review than his constitutional claims." Id. The Ninth Circuit has commented upon this very issue, stating that "it is highly doubtful that Congress intended a more stringent application of the prisoners' statutory rights created by the Act than it would the prisoners' [**23] constitutional rights." Gates, 39 F.3d at 1447. The Gates court did not conclude that the Act is inapplicable to prisons. Instead it held that review under the Rehabilitation Act should be "equivalent to the review of constitutional rights in a prison setting, as outlined by the Supreme Court in Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987)." Under this standard, inmates' rights may be impinged upon to the extent that a regulation "'is reasonably related to legitimate penological interests.'" Id., quoting Turner at 89.

Finally, an unpublished opinion of the Sixth Circuit held that "the Rehabilitation Act of 1973 . . . does not apply to involuntary incarceration" ( Scudder v. Smith, 1993 U.S. App. LEXIS 18079, No. 92-4127, 1993 WL 262514 at *2 (6th Cir. July 8, 1993)). That decision is not binding on this court. An unpublished opinion "has no precedential value [and] cannot be given any weight in this case." Manufacturers' Indus. Relations Ass'n v. East Akron Casting Co., 58 F.3d 204, 208 (6th Cir. 1995). In any event, the Sixth Circuit's unpublished opinions on this issue differ. Cf. Baker v. Seabold, 831 F.2d 293, 1987 WL 38691 at *1 (6th Cir. [**24] 1987), citing to Journey, 685 F.2d 239 (holding that plaintiff prisoner may have a justiciable claim under the Rehabilitation Act if he is part of a program receiving federal financial assistance). Consequently, I treat this issue as an open question in the Sixth Circuit.

b. Title II of the ADA

The ADA was enacted in order to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). By its terms, Title II of the ADA applies to state corrections institutions. The Act's language is broad and contains no specific exception for prisoners. Title II defines the types of "public entity" to which it applies to be "any state or local government," and further specifies that this term includes "any department, agency . . . or other instrumentality of a State . . . or local government . . ." 42 U.S.C. § 12131(1) (emphasis added). In stating that it bars "discrimination by any such [public] entity," the Act again uses the broadest possible language, without qualifications. 42 U.S.C. § 12132 (emphasis added).

The ADA also specifically excepts certain groups--though not [**25] prisoners--from its wide application, thus raising the inference that the incarcerated are meant to come within the Act's protection. Where "exceptions to [a statute's] sweeping language are carefully enumerated . . . the express enumeration indicates that other exceptions should not be implied." In re Gerwer, 898 F.2d 730, 732 (9th Cir. 1990). The ADA provides, for example, that a current user of illegal drugs is not, on the basis of such use, an "individual with a disability." 42 U.S.C. § 12210(a). Other groups are also excepted; accordingly, one finds that a section of Title IV has the unexpected heading, "Transvestites." 42 U.S.C. § 12208. Attempting to demonstrate that "any," as used in "any department," in fact means "any" is like attempting to prove a negative. Yet the presence of such specifically named exclusions strengthens the conclusion that all other groups are meant to be included. Since Congress obviously considered whether transvestites were or were not to be considered disabled, no reason exists to believe it simply overlooked the presumably far larger prisoner population. Consequently, I read the plain language of Title II as unambiguously applying to all [**26] divisions of state government.

In addition, numerous independent bases exist for the conclusion that prisoners may bring suit under the ADA. One is the Act's legislative history, which reflects Congress's intent to protect all the disabled--prisoners included--from discrimination. As an example [*530] of why the training of public employees may be necessary to comply with the statute's mandate, the House Report discussed how epileptics are "frequently inappropriately arrested and jailed because police officers have not received proper training in the recognition of and aid for seizures. Often, after being arrested, they are deprived of medications while in jail, resulting in further seizures. Such discriminatory treatment based on disability can be avoided by proper training." 1990 U.S. Code Cong. and Adm. News, p. 473. This passage, while not dispositive, certainly suggests Congressional intent that prison staffs comply with the ADA in their treatment of the incarcerated.

More significantly, Congress specifically directed that the regulations pertaining to the Rehabilitation Act were to be incorporated into the ADA, providing as follows:


Except as otherwise provided in this [**27] chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or regulations issued by Federal agencies pursuant to such title.


42 U.S.C. § 12201(a). "'It is always appropriate to assume that our elected representatives, like other citizens, know the law.'" Traynor v. Turnage, 485 U.S. 535, 546, 99 L. Ed. 2d 618, 108 S. Ct. 1372 (1988) (citation omitted) (holding that Congress, in enacting veteran's benefit statute using term "willful misconduct," is presumed to be aware of prior Veterans' Administration interpretation of the term). As discussed above, regulations promulgated under the Rehabilitation Act make clear that Act's applicability to a "department of corrections." 28 C.F.R. § 42.540(h). Accordingly, regulations holding that the Rehabilitation Act applies to corrections institutions apply equally to the ADA.

The regulations subsequently promulgated pursuant to the ADA are consistent with those under the Rehabilitation Act. The DOJ was specifically delegated authority to promulgate regulations under the ADA. 42 U.S.C. § 12134(a). These regulations [**28] provide that "all programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions . . ." are subject to the ADA. 28 C.F.R. § 35.190(b)(6) (1995) (emphasis added). The Appendix to this section explains that public entities must provide attendant care "in special circumstances, such as where the individual is an inmate of a custodial or correctional institution." 28 C.F.R., Part 35, Appendix A, at 460-61 (1995) (emphasis added).

Finally, because the ADA was enacted against a legal background holding that the essentially similar Rehabilitation Act applied to prisons, Congress can be presumed to have been in accordance with this interpretation. At the time of the ADA's enactment, July 26, 1990, all federal courts that had considered the issue held that the Rehabilitation Act applied to state prisons. See Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988); Journey v. Vitek, 685 F.2d 239, 242 (8th Cir. 1982); Sites v. McKenzie, 423 F. Supp. 1190, 1197 (N.D. W. Va. 1976). Congress is presumed to be aware of existing legal precedent and to take it into consideration [**29] when it enacts legislation. Cannon v. University of Chicago, 441 U.S. 677, 696-97, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). Accordingly, if Congress were in disagreement with this interpretation of the Rehabilitation Act, it undoubtedly would have expressly excluded prisoners from the protection of a subsequent statute barring discrimination against the disabled.

It is noted that the majority of courts confronted with suits under the ADA brought by inmates have allowed them to go forward, with or without explicit analysis of the Act's application to prisons. See Duffy v. Riveland, 98 F.3d 447, 1996 WL 583384, *7 (9th Cir. 1996) (holding, due to the "close relationship" between the Rehabilitation Act and the ADA, that plaintiff prisoner is a "qualified person" under the ADA); Niece v. Fitzner, 941 F. Supp. 1497, 1996 WL 588217, *14 (E.D. Mich. 1996) (holding that the ADA applies to state prisons); Bullock v. Gomez, 929 F. Supp. 1299, 1302 (C.D. Ca. 1996) (same); Armstrong v. Wilson, 942 F. Supp. 1252, 1996 WL 580847, *6 (N.D. Cal. 1996) (same); Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995) (holding that Title [*531] II [**30] of the ADA applies to state prisons, and granting summary judgment to plaintiff class on claims under the ADA); Rewolinski v. Morgan, 896 F. Supp. 879, 881 (E.D. Wis. 1995) (holding that prisoner's complaint sets forth an arguable claim under Title II of the ADA); Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 1995) (granting prisoner's motion for new trial on the issue of damages for a violation of the ADA); Candelaria v. Coughlin, 1994 U.S. Dist. LEXIS 3999, 1994 WL 119146 at *6 n.2 (S.D.N.Y. April 4, 1994) (stating in dicta that inmate had a potentially legitimate claim under the ADA); Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993) (holding that prisoner had adequately stated a discrimination claim under the ADA); Outlaw v. City of Dothan, Ala., 1993 U.S. Dist. LEXIS 21063, No. CV-92-A-1219-S, 1993 WL 735802, at *4 (M.D. Ala. April 27, 1993) (holding that prison facilities "constitute a service, program or activity . . . to which the ADA applies"). Cf. Barber v. Guay, 910 F. Supp. 790, 802 (D. Me. 1995) (holding that arrestee's claim states a valid cause of action under the ADA).

The leading case questioning the ADA's applicability to state prisons is Torcasio, 57 F.3d 1340 (discussed supra in [**31] relation to its holding regarding the Rehabilitation Act). Although acknowledging the wide scope of Title II's language, Torcasio holds that the statute's relevance to prisons is not "clearly established" because other portions of the statue use language entirely incompatible with prison conditions. The court found section 12132's reference to "services, programs, or activities" particularly telling. Id. at 1347. It reasoned that "[a] prisoner is not normally thought of as one who would have occasion to 'meet[] the essential eligibility requirements' for receipt of or participation in the services, programs, or activities of a public entity. The terms 'eligible' and 'participate' imply voluntariness on the part of an applicant who seeks a benefit from the state; they do not bring to mind prisoners who are being held against their will." Id. Accordingly, the court concluded, the statute could not have been drafted with prisoners in mind, and its broad language should not be read to include this group within its sweep.

Contrary to this assertion, the words "eligible" and "participate" do, in their common usages, clearly apply to prisons. Language from a Ninth Circuit [**32] decision serves as an example: "as a prison inmate, [plaintiff] is qualified (sometimes required) to participate in activities such as disciplinary proceedings, Honor Dorm Review Committee hearings, counseling, rehabilitation, medical services, and other prison activities." Bonner v. Lewis, 857 F.2d 559, 563 (9th Cir. 1988) (emphasis added). As this passage demonstrates, no semantic torture is required when using these words to describe routine prison events.

Torcasio further holds that Congress failed, when enacting the ADA, to emphatically announce its intention to "upset the usual constitutional balance of federal and state powers . . ." Torcasio, 57 F.3d at 1344, quoting Gregory v. Ashcroft. The court held, therefore, that the Act's application to state prisons must be questioned.

This rationale is also unfounded. There is no room for doubt that Congress specifically intended to alter the federal-state balance in enacting the ADA. Section 12101(b)(4) of the ADA specifically invokes the Fourteenth Amendment as a basis for the legislation. 42 U.S.C. § 12101(b)(4). Additionally, Congress expressly abrogated the States' Eleventh Amendment immunity under [**33] the ADA. See 42 U.S.C. § 12202. Accordingly, it is apparent that Congress intended to alter the usual federal-state balance when enacting this Act.

The Seventh Circuit has also questioned, in dicta, the wisdom of applying the ADA in the prison context, stating that "it is very far from clear that prisoners should be considered 'qualified individual[s] within the meaning of the Act." Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996) (Posner, J.). Although the court acknowledged that "there is no express exclusion [from the definition of 'public entity'] of jails and prisons," it detailed what it saw as potential difficulties in applying the Act to prisons, and noted that "an exception to the [ADA] for prisoners, though not express, may have textual foundation in the term 'qualified individual.'" Id. at 248-49. However, in my judgment, where statutory language is unambiguous such concerns are best left to Congress.

[*532] Crawford v. Indiana Dep't of Correction, 937 F. Supp. 785, 1996 WL 467172 at *6 (N.D. Ind. 1996) (discussed supra in connection with its holding regarding the Rehabilitation Act) concludes that the ADA does not apply to prisons, [**34] reasoning that prisoners should not be extended statutory rights reviewed under more rigid standards than are their constitutional rights. As noted previously, the Ninth Circuit has held that prisoners' Rehabilitation Act rights are subject to limitation by "'legitimate penological interests.'" Gates, 39 F.3d at 1447, quoting Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). This standard surely also makes sense in the ADA context.

2. Availability of Qualified Immunity

Two distinct theories have been put forward in this matter as to why defendants are entitled to qualified immunity from suit under the Rehabilitation Act and the ADA. First, the R&R sua sponte raised the issue of whether it was "clearly established" at the time of plaintiff's incarceration in the Kalamazoo County Jail that these Acts applied to state prisons. The magistrate judge concluded that the case law supporting such applicability was uncertain at best, and recommended that defendants be held entitled to qualified immunity on these statutory claims. Second, defendants raised a defense of qualified immunity in their motion to dismiss which conceded the applicability [**35] of both Acts but asserted that defendants had made a good-faith attempt to comply with them. The R&R did not reach this contention, having already concluded that qualified immunity was appropriate on the above basis. I will address both of these potential bases for qualified immunity in turn.

I conclude that defendants are not entitled to qualified immunity on the ground that it was not "clearly established" that the Rehabilitation Act and the ADA apply to prisons. Qualified immunity is not available where an official violates "clearly established statutory . . . rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). As discussed above, the explicit language of both the Rehabilitation Act and Title II of the ADA applies to state prisons. Moreover, federal regulations promulgated pursuant to both Acts made clear their applicability to corrections institutions at the time of plaintiff's incarceration.

Defendants claim entitlement to qualified immunity based on their alleged good-faith attempts to comply with the Rehabilitation Act and the ADA in their treatment of plaintiff. Defendants concede for [**36] purposes of their summary judgment motion that plaintiff is a qualified individual with a disability, but advance two essentially factual contentions as to why his claims should fail. First, they claim that plaintiff was more than reasonably accommodated while incarcerated. Defendants assert that they responded fully to plaintiff's special needs by placing him in a larger cell and by giving him a special commode and bed, 24-hour access to the shower, and a shower chair. Defendants argue that this care is sufficient to meet the standard of Malley v. Briggs, 475 U.S. 335, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). There, the Court held that "if officers of reasonable competence could disagree on this issue, immunity should be recognized." Id. at 341. Given the knowledge that they then possessed, defendants assert, a reasonable officer could have believed that the actions taken by defendants did not violate plaintiff's statutory rights. Second, defendants allege that plaintiff did not complain about his accommodations while in the Kalamazoo County Jail. As a result, they assert, they cannot be held responsible in hindsight for needs unknown to them at the time.

Plaintiff has put [**37] forward evidence that contradicts defendants' factual contentions. In his affidavit, he states that the design of the cell's shower was largely inaccessible to him, and disputes defendants' claim that he was provided with a shower chair. He states that he had severe difficulty in using the toilet due to its seatless design and narrowly-spaced surrounding walls, and that he fell onto the floor or into the toilet bowl as a result. Contrary to defendants' assertion, he states that no portable commode was provided to him. The affidavit of a fellow inmate [*533] filed in support of plaintiff's motion states that plaintiff complained to the jail staff numerous times regarding these problems.

As discussed above, it is not the court's responsibility to weigh the truth or falsity of either side's account at this point in the proceedings. Because plaintiff has provided some evidence in support of his statutory claims, the court must deny defendants' motion for summary judgment as to these claims.

E. Claims for Injunctive Relief

Because plaintiff has not objected to the magistrate judge's recommendation that plaintiff's claims for injunctive relief are moot, all objections are considered [**38] waived. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In any event, the R&R correctly notes that where a prisoner who seeks injunctive relief with respect to prison conditions has been discharged or transferred and is no longer subject to the challenged conditions, the action should be dismissed as moot. Abdur-Rahman v. Michigan Dep't of Corrections, 65 F.3d 489, 491 (6th Cir. 1995) (prisoner's request for injunctive relief moot where prisoner transferred from relevant prison); Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993) (request for injunction mooted when inmate released from prison). Plaintiff's request for injunctive relief is therefore dismissed as moot.

III. CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment as to plaintiff's Fourteenth Amendment claim is GRANTED as to defendants Edmonds and Kalamazoo County, and DENIED as to defendants Carter and Waligursky. Defendants' motion for summary judgment as to plaintiff's claims under the Rehabilitation Act and Title II of the ADA is DENIED. Plaintiff's claim for injunctive relief is DISMISSED.

DOUGLAS W. HILLMAN

Senior District Judge


Dated: DEC - 9 1996.

ORDER [**39]

In accordance with the opinion filed this date,

IT IS ORDERED that defendants' motion for summary judgment as to plaintiff's Fourteenth Amendment claim is GRANTED as to defendants Edmonds and Kalamazoo County, and DENIED as to defendants Carter and Waligursky.

IT IS FURTHER ORDERED that defendants' motion for summary judgment as to plaintiff's claims under the Rehabilitation Act and Title II of the ADA is DENIED.

IT IS FURTHER ORDERED that plaintiff's claim for injunctive relief is DISMISSED as moot.

DOUGLAS W. HILLMAN

Senior District Judge


Dated: DEC - 9 1996.