A GUIDE TO LITIGATION UNDER THE AMERICANS WITH DISABILITIES
ACT IN PRISONS AND JAILS
James R. Pingeon
Center for Public Representation
Northampton, Massachusetts
Although the Supreme Court held in Pennsylvania Dept. of
Corrections v. Yeskey, 524 U.S. 206 (1998) that the Americans with
Disabilities Act ("ADA") applies to prisons and jails, people with
disabilities in correctional facilities still face tremendous
obstacles in their efforts to achieve fair and equal treatment.
Since these institutions control virtually every aspect of the
lives of the individuals who must inhabit them, the types of
barriers and discrimination they face are varied and pervasive.
See e.g., Montez v. Romer, 32 F.Supp.2d 1235 (D.Colo. 1999)
(prisoners with a wide range of disabilities, including mobility,
hearing, and vision impairments, and diabetes, stated cognizable
claims under the ADA and Rehabilitation Act because they alleged
impermissible architectural barriers which create "imminent risks
of serous injury," and because prison officials refused to make
accommodations to allow them to use law libraries, visiting areas,
yard areas, laundry facilities, dining halls, vocational training,
recreational facilities, bathing and restroom facilities, medical
clinics.
They were also excluded from prison employment and
rehabilitation
services
solely
on
the
basis
of
their
disabilities). Other cases recite similar problems. For example,
paraplegic inmates are commonly housed in cell blocks with
inaccessible toilets and showers. See LaFaut v. Smith, 839 F.2d
387 (4th Cir. 1987).
Correctional officials may take away
wheelchairs from inmates with mobility impairments. See Beckford
v. Irvin, 49 F.Supp.2d 170 (W.D. N.Y.).
Inmates with vision
impairments have no readers to help them decipher prison rules and
regulations. Inmates with hearing impairments may have to attend
administrative hearings or appear before the parole board without
sign language interpreters. Duffy v. Riveland, 98 F.3d 447 (9th
Cir. 1996); Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y.
1995). Some prison systems segregate inmates who are HIV-positive
from the general prison population and deny them equal access to
rehabilitative programs.
See Onishea v. Hopper, 171 F.3d 1289
(11th Cir. 1999)(en banc). And inmates with mental illness or
developmental disabilities face a range of discriminatory
practices, including punishment for conduct they cannot control
resulting in solitary confinement for years at a time. See C.F. v.
Terhune 67 F.Supp.2d. 401(D.N.J. 1999); Madrid v. Gomez, 889

F.Supp. 1146 (N.D. Cal. 1995).
Although these problems can often be addressed by the ADA,
litigation in the unique environment of prisons and jails has more
than the normal share of pitfalls and difficulties.
This
memorandum attempts to provide practical guidance to ADA
litigation in the correctional setting by discussing some of the
special rules that apply to prisoner litigation, and some of the
restrictive ways in which the courts have interpreted the ADA in
the prison context. 1
I.

The Prison Litigation Reform ACT ("PLRA")

The PLRA was enacted in 1996 ostensibly to curtail frivolous
prisoner litigation, but has also had the effect of making it much
more difficult for inmates to bring meritorious claims.
Specifically, the PLRA imposes a number of obstacles and
limitations that must be kept in mind whenever a suit is filed on
behalf of an inmate under the ADA, or any other federal statute or
Constitutional provision.
a) Filing Fees - Under the PLRA, indigent prisoners are no longer
excused from paying a filing fee in federal court. They must now
submit a certified statement of their prison account for the
preceding six months, and then pay the entire filing fee, albeit
in installments, in accordance with a complicated formula set
forth in the Act. 28 U.S.C. § 1915(b)(1-2). Former prisoners,
however, are not subject to the filing fee provisions, even if the
complaint concerns matters that took place while they were
incarcerated.
Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir.
1997). Further, persons under civil commitment are not treated as
prisoners, even if they are held in a facility run by a state
correctional agency. See King v. Greenblatt, 53 F.Supp. 2d 117,
138-39 (D. Mass. 1999); See also Page v. Torrey, 201 F.3d 1136,
1139-40 (9th Cir. 2000).
It is possible that the Supreme Court will hold in
University of Alabama Board of Trustees v. Garrett that Title II
of the ADA is unconstitutional as applied to the States. In
that event, prisoners with disabities could still bring
discrimination claims under the Rehabilitation Act, and most of
the points made in this memorandum would remain valid.
Prisoners might also still be able to seek injunctive relief
under the ADA pursuant to the doctrine set forth in Ex Parte
Young. But see Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000).
1

b) Exhaustion of Administrative Remedies The PLRA requires
inmates first to pursue all challenges "with respect to prison
conditions" through the highest level of the "available"
administrative procedures prior to filing a suit under the ADA or
any other Federal law.
42 U.S.C. § 1997e(d)(2).
There is
considerable disagreement among the courts as to whether an
administrative remedy is "available." For example, many courts
hold that an inmate must utilize the prison grievance procedures
before filing a damage action even though the grievance system
does not authorize a damage remedy. Nyhius v. Reno, 204 F.3d 65
(3d. Cir. 2000); Wyatt v. Leonard, 193 F.3d 876 (6th Cir. 1999);
Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir.1998), reh'g en
banc denied, 172 F.3d 884 (11th Cir.1999.
Others hold that
exhaustion is not required where filing a grievance would be
futile. Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999); Whitley
v. Hunt, 158 F.3d 882 (5th Cir. 1998). The issue is important
because non-exhausted claims are generally dismissed, even if
exhaustion is completed after the complaint is filed. See Perez
v. Wisconsin Department of Correction, 182 F.3d 532 (7th Cir.
1999). Where an inmate seeks both injunctive relief and monetary
damages, exhaustion is likely to be required, even if the prison
grievance procedures can only provide prospective relief. See,
e.g., Lavista v. A.F. Beeler, 195 F.3d 254 (6th Cir.
1999)(dismissing for failure to exhaust the complaint of blind
inmate who also uses a wheelchair who sought injunctive relief and
damages because facility was not equipped to provide for safety of
inmates with visual impairments and because he was compelled to
sign documents he could not read).
Some courts require that
exhaustion be specifically pled in the complaint. Knuckles-El v.
Toombs, 139 F.3d 640 (6th Cir. 2000); Underwood v. Wilson, 151
F.3d 292 (5th Cir. 1998).
(c) Physical Injury Requirement - Prisoners with disabilities have
often achieved remarkable success in obtaining damages for
discriminatory treatment that violates the ADA.
See, e.g.,
Beckford v. Irvin, 49 F.Supp.2d 170 (W.D. N.Y.)($150,000 in
compensatory and punitive damages awarded to inmate with mobility
impairment); Love v. Westvile Correctional Center, 103 F.3d 558
(7th Cir. 1996) (affirming a jury award of approximately $30,000
to a quadriplegic prisoner who was denied access to programs and
services in the Indiana State Prison). Under the PLRA, however,
an inmate may no longer bring a Federal civil action for a "mental
or emotional injury" without a showing of a concomitant "physical
injury." 42 U.S.C. § 1997e(e). See Davis v. District of Columbia,
158 F.3d 1342, 1348-49 (D.C.Cir.1998) (holding that § 1997e(e)
3

precludes prisoner's claim for emotional injury under the ADA if
there is no prior showing of physical injury); Cassidy v. Indiana
Dept. of Correction, 199 F.3rd 374 (7th Cir. 1999) (visually
impaired inmate's damage action based on denial of meaningful
access to law library, recreational areas, educational programs,
job assignments, vocational training, other programs and training
barred because no physical injury).
d) Restrictions on Prospective Relief - The PLRA mandates that "in
any civil action with respect to prison conditions" a court "shall
not grant or approve any prospective relief unless the court finds
that such relief is narrowly drawn, extends no further than
necessary to correct the violation of the Federal right, and is
the least intrusive means necessary to correct the violation of
the Federal right." 18 U.S.C. § 3626(a)(1)(A). Under the PLRA,
prospective relief in correctional ADA cases can be granted only
if accompanied by these findings.
This limitation applies to
settlement agreements and consent decrees as well as to other
court orders.
The parties may, however, enter into "private
settlement agreements" that do not meet the PLRA standards, but
these are only enforceable as contracts in state court. 18 U.S.C.
§ 3636(c)(2). Further, prospective relief may be terminated after
two years unless the court finds there is a "current and ongoing
violation" of federal law. 18 U.S.C. § 3636(b)(1).
e) Limitations on Attorney Fees - The PLRA prohibits attorneys
fees except when "directly and reasonably incurred in proving an
actual
violation
of
the
plaintiffs
rights."
42
U.S.C.
§1997e(d)(1)(A). It is unclear whether this provision prohibits
fees in cases that are settled, or whether fees may be awarded
under the catalyst doctrine when the suit produced reform but
there is no court order. Even when the suit is successful, the
PLRA limits the hourly rate at which attorneys fees may be awarded
under § 1988 to 150% of the rate paid to court appointed attorneys
in criminal cases in that district. 42 U.S.C. §1997e(d)(3). And,
in a damage case, attorneys' fees are limited to 150% of the
amount of the judgment. 42 U.S.C.§ 1997e(d)(2). There is a strong
argument, however, that the PLRA limitations on attorneys' fees do
not apply to the ADA since that statute has its own attorneys'
fees provision, 42 U.S.C. § 12205, that is separate from § 1988.
See McClendon v. City of Albuquerque, CIV 95-24 (D.N.Mex. 2000)
(the PLRA's attorney fee limitations do not preempt the ADA's
attorney fee provisions); Beckford v. Irvin, 60 F.Supp. 2d 85
(W.D.N.Y.)(holding that where prisoner prevailed on both ADA and
4

§1983
claims,
and
where
the
claims
were
"inextricably
intertwined," half of counsel's time should be compensated at PLRA
rates and half at market rates under the ADA's fee provision).
But see Cassidy v. Indiana Dept. of Correction, 199 F.3rd 374 (7th
Cir.1999) (suggesting that PLRA attorney fee limitations apply to
ADA cases).
II.

What Is The Standard of Judicial Review in Prison ADA Cases?

The ADA requires prisons or jails, like other public entities,
to provide reasonable accommodations for qualified inmates with
disabilities.
However, a requested accommodation is not
reasonable if it either imposes undue financial and administrative
burdens on a public entity, or requires a fundamental alteration
in the nature of the program.
See 28 C.F.R. S 35.150(a)(3).
Furthermore, the ADA never obliges correctional officials to take
any action that would create a "significant risk to the health and
safety of others." Although terms like "reasonable accommodation"
and "undue burden" can be difficult to apply in any context, their
meaning in the correctional setting is especially controversial.
Some courts reject the ADA's framework altogether when
reviewing claimed violations of prisoners' rights in favor of the
very deferential standard articulated by the Supreme Court in
Turner v. Safley, 482 U.S. 78 (1994) for review of practices that
impinge on inmates' constitutional rights. See Gates v. Rowland,
39 F.3d 1439 (9th Cir.1994). Under Turner, a policy or practice
is valid if it is "reasonably related to legitimate penological
interests." 482 U.S. at 87. Thus, in Armstrong v. Davis, 215 F.3d
1332, 2000 WL 369622 (April 11, 2000)(9th Cir), the court reversed
the district court's ruling that prison officials had to show that
accommodating inmates' disabilities would be unduly burdensome.
Rather, the Turner standard required that the burden of proof be
placed on the inmates to establish that the challenged practices
were not reasonably related to a legitimate penological interest.
Similarly, in Martinez v. California Department of Correction,
1997 WL 207946 (9th Cir.(Cal.)) (unpublished disposition), the
court affirmed the district court decision granting summary
judgment to the prison officials against a quadriplegic prisoner
who was restricted by prison authorities to the hospital area of
the prison and denied access to the prison's general yard,
classroom education, and vocational training programs on the same
terms as other similarly classified inmates.
Citing Turner, the
court held that the restrictions were reasonably related to
legitimate penological interests in security because the plaintiff
5

conceded that he could not defend himself from attack by other
inmates. The court rejected the view that it is not rational to
prevent misconduct by punishing the potential victim rather than
those who misbehave.
Clearly, the use of the Turner standard can sharply limit the
protection afforded prisoners by the ADA. But even when courts
apply the standards set forth in the actual statute, they tend to
be highly deferential to the views of prison administrators. As
Judge Posner declared in Crawford v. Indiana Dept. of Corrections,
115 F.3d 481, 487 (7th Cir. 1997), "[t]erms like "reasonable" and
"undue" are relative to circumstances, and the circumstances of a
prison are different from those of a school, an office, or a
factory," and "[t]he security concerns that the defendant rightly
emphasizes ... are highly relevant to determining the feasibility
of the accommodations that disabled prisoners need in order to
have access to desired programs and services." Thus, in Onishea
v. Hopper, 171 F.3d 1289 (11th Cir. 1999)(en banc), cert. denied,
120 S.Ct. 931 (2000), although the court rejected the view that
the Turner standard should directly supplant the ADA and
Rehabilitation Act framework in prison cases, it declared that
whether an inmate met the essential eligibility requirements for
participation in a prison program should be determined in part by
the impact on legitimate penological interests, such as prison
security and the cost of making accommodations. 171 F.3d at 300.
Accordingly, it rejected the claim of HIV-positive inmates who
alleged that their exclusion from the prison's general population
yard, as well as classroom education and vocational training
programs violated the Rehabilitation Act, reasoning that a
"significant risk" of HIV transmission existed for any prison
program in which HIV-positive inmates sought participation; the
prison's segregation policy was not an exaggerated response to the
risk of violence between inmates; cost was a proper consideration
in the determination of whether hiring of additional guards to
deter high-risk behavior was a reasonable accommodation allowing
integrated programs; and the hiring of additional guards could
therefore impose an undue burden on the prison system. Id. And in
Randolph v. Rogers, 170 F.3d 850 (8th Cir. 1999), the court
reversed a grant of summary judgment to a prisoner with a hearing
impairment who was not given an interpreter during disciplinary
hearings, even though a state statute required such an
interpreter, because there was nonetheless a genuine issue of
disputed fact regarding whether a sign language interpreter is a
reasonable accommodation or imposes an undue burden considering
6

the heightened security concerns of a prison.
On the other hand, in Amos v. Maryland Dep't of Pub. Safety and
Correctional Servs., 178 F.3d 212, 220-22 (4th Cir. 1999), vacated
on other grounds, 205 F.3d 687 (4th Cir.2000), the court expressly
rejected grafting the Turner standard into the ADA because this
would essentially mean the court was rewriting "unambiguous
statutory language." Instead, the court argued for deference to
Department of Justice ADA regulations and application of the
"reasonable accommodation" language of the Act. This seems the
better approach because it comports with the Supreme Court's
conclusion in Yeskey that the ADA applies squarely to prisons and
because the Turner test conflicts with the ADA by shifting the
burden of justifying denial of access to programs and services
from the institution to the inmate. Furthermore, the language of
the ADA, requiring that modifications be "reasonable" and not
impose "undue" burdens, allows for adequate consideration of the
legitimate interests of prison administrators.

7