Greetings from the Gulag:

Welcome to another issue of "The Legal Brief", a quarterly publication of the Texas Labor Union (TPLU), special committee on legal affairs and is provided to prisoners Nation-wide under the tenets of mutual aid and voluntary cooperation.

In this issue, I have reprinted an article written by Daniel E. Manville, author of a number of publications including the Prisoners Self Help Litigation Manual 3rd Ed. The article first appeared in the Prison Legal News, April 2003.

The reason for presenting these materials at this time is that currently, there exists a conflict in the Circuit Courts concerning the constitutionality of the Americans with Disabilities Act of 1990 (ADA hereafter). The majority of the Circuits have held that Congress did not validly abrogate the States 11th Amendment rights when passing the ADA. Other Circuits, notably, the 9th Circuit has held that the Act is constitutional. The 1st Circuit has held that the Congress validly abrogated the States 11th Amendment rights insofar as the ADA title II applies to cases involving constitutional violations.

This issue is of great concern to the almost 800,000 disabled prisoners nationwide as well as jailhouse lawyers who are seeking to utilize the ADA in new ways such as Parole denial based on a disability. As many of you are well aware, we have been plagued with the right-leaning conservative Supreme Court for the past twenty-five years. It has all but abolished 50 years of hard won civil liberties, a court that has undertaken to circumvent the executive branch of government by legislating laws and principles of the law into existence by manipulating case law and statutes which the court has selectively chosen to review. The disenfranchised, poor and people of color, naturally, suffer disadvantages of this arbitrary "Legislation", which mark yet another aspect of the separation of classes in American society.

I have said this a thousand times and will continue to state that we have no choice, we, the poor, people of color and disenfranchised prisoners must UNITE. Unity is no longer simply a choice that can be ignored. We the people have relegated to a place of political powerlessness in American society placed in separate classes, which seek to define wealth, or lack thereof. Now faced with the tyrannical "Patriot Act, I and II" which seeks to strip all America of civil liberties, not unlike that of Nazi Germany. What choice do we have but to unite in a real physical and ideological struggle that will mark our very survival as a people and Nation, as a democracy? Join us in the struggle today, do not wait until the laws and American societal structure are such that our only recourse will be to take up arms to fight for freedoms which we now enjoy, if only marginally. Contact us and ask how you can join in the struggle, what you can do to help fight the oppression and abuses of civil liberties and human rights.

STATUTES AFFECTING DISABLED PRISONERS
In the past couple of years there have been a number of changes in the federal statutes that provide protections to those that are confined and which have disabilities. This article discusses those changes. Additional rights that the disabled may have pursuant to stated and federal constitutional protections, such as the 8th Amendment right to be provided with adequate medical care, and the under state laws and constitutions which are not discussed in this article.

ADA
In 1990, the Americans with Disabilities Act (ADA hereafter) was enacted because "current laws [e.g. The Rehabilitation Act] were 'inadequate' to combat 'the pervasive problems that people with disabilities are facing.

See: Helen L. v. DiDario, 46 F3d 325,331 (3rd Cir.) (Quoting S.REP.NO.116, 101st Cong., 1st Sess.18 (1989), cert. denied, 516 US 813 (1995). Even thought the language of the ADA did not appear to exclude prisoners from its coverage, many courts refused to apply it to prisoners. Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995); Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998); Key v. Grayson, 179 F.3d 996,1000 (6th Cir. 1999). It was not until 1998 in Penn. Dept. of Corr. v. Yeskey, 524 US 206, 118 S. Ct. 1952 (1998) that the United States Supreme Court held that both the ADA and Rehabilitation Act (RA hereafter) applied to prisoners. (See supra for discussion of the RA) However, the Yeskey court left unresolved for another day the issue of whether Congress properly exercised its power to waive [abrogate] a states 11th Amendment immunity when enacting the ADA. ID at 1955. See infra for a discussion on 11th Amendment immunity.

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

The ADA and RA require that otherwise qualified individuals receive "meaningful access" to programs and activities. Bonner v. Lewis, 857 F2d 559, 561 (9th Cir. 1988) citing, Alexander v. Choate, 496 US 287,301,105 S. Ct. 712 (1985). In a lawsuit, the disabled person must be able to show that s/he was denied meaningful access to the claimed ADA or RA violations.

Thus, when filing a grievance to exhaust administrative remedies, it is important to state the grievance how "meaningful access" was denied.

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

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

FEDERAL REHABILITATION ACT
The Rehabilitation Act provides, in relevant part: "No otherwise qualified individual with a disability ... shall solely by reason of his or her disability be excluded in participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving federal financial assistance ..." [29 USC § 704 (a)].

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

Then, in discovery, either an admission or other discovery request can be utilized to establish that the DOC is receiving federal funding.

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

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

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

ELEVENTH AMENDMENT - IMMUNITY
The United States Supreme Court in Bd. of Trustees v. Garrett, 531 US 356, 112 S. Ct. 955 (2001), held that the States were entitled to 11th Amendment immunity for any damage actions under Title 1 of the ADA. Note that counties are not protected from any damage lawsuits under the 11th Amendment, which means that jails are subject to damage actions under Federal disabilities statutes. Hess v. Port Authority Transhusdson Corp., 513 US 30,54-6, 115 S. Ct. 394 (1994). The court did not decide whether Title II of the ADA was enacted in a manner that the 11th Amendment immunity of the States was waived as to damage claims. [E.g., a number of courts have ruled that congress, in enacting the ADA did not validly abrogate States 11th immunity rights]. Recently, the 6th Circuit held that a damage claim under Title II of the ADA alleging a violation of equal protection is barred by the 11th Amendment. Further, the 6th Circuit held that a damage claim based on disability in a due process-type claim is not barred. Popovich v. Cuyahoga Court of Common Please, Domestic Relations Div., 276 F.3d 808 (6th Cir.) (en banc), reversing 227 F.3d 627 (2000).

In 1996, the United States Supreme Court held that States do not have immunity under the 11th Amendment from lawsuits brought pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended. See also, Lane v. Pena, 518 US 187,116 S. Ct. 2092 (1996).

* In a number of recent cases, circuit courts have held that Title II of the ADA was not validly abrogated by Congress in its enactment therefore violated States Rights in regard to the 11th Amendment immunity. See: Wessel v. Glendening, 306 F.3d 203; Nelson v. Commonwealth of Penn. Dept. of Corrections, 224 F. Supp. 2d 382,387 (Civ. A-99-CV-3508 Dec. 9, 2002); Kiman v. New Hampshire Doc, 301 F.3d 12,24 (1st Cir. 2002); Richenbacher v. Foster, 214 F.3d 974 (5th Cir. 2001); Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98,112 (2nd Cir. 2001); Walker v. Snyder, 213 F.3d 344 (7th Cir 1999); Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999); However, the 9th Circuit has held that the ADA Title II is constitutional and that the Congress did validly abrogate States rights in enacting same. Dave v. California, 191 F.3d 1167 (9th Cir. 1999).

QUALIFIED IMMUNITY
Qualified Immunity protects individual governmental officials from damage liability in civil rights cases unless they violate "clearly established statutory or constitutional rights" of which a reasonable person would have known: Harlow v. Fitzgerald, 457 US 800, 818,102 S. Ct. 2727 (1982).

It only applies to officials sued in their individual capacities for money damages; it does not apply municipalities or officials sued in their individual capacities. [Owen v. Independence, 445 US 622, 100 S. Ct. 1398 (1980), and it does not apply to claims for injunctive relief Newman v. Burgin, 930 F.2d 955,957 (lst Cir. 1991)]. Qualified immunity does not protect private individuals who are acting under color of state law. Wyatt v. Cole, 504 US 158,112 S. Ct. 1892, 1833-34 (1992).

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

DAMAGES
Title II of the ADA and the provisions of the RA require a plaintiff to prove intentional discrimination on the part of the defendant to recover compensatory damages. Ferguson v. City of Phoenix, 157 F. 3d 668, 674 (9th Cir. 1998); Alexander v. Sandoval, 531 US 1049, 121 S. Ct. 1511,1517 (2001). To prove intentional discrimination, most courts have required the plaintiff to show" deliberate indifference" rather than "discriminatory animus". Duvall v. County of Kitsap, 260 F.3d 1124,1139 (9th Cir. 2001). "Deliberate Indifference" requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act [is a] likelihood." The prison staff must be on notice of the disability and the need for an accommodation. Duvall v. County of Kitsap supra; Bartlett v. New York State Brd. of Law Examiners, 156 F.3d 321,331 (2nd Cir. 1998). This is one of the reasons it is important to file a detailed grievance and to grieve each factual detail of the alleged wrong.

Once the entity, through its staff, has been placed on notice, it has a duty "to undertake a fact specific investigation to determine what constitutes a reasonable accommodation ..." Duvall v. Kitsap County supra. "Mere speculation that a suggested accommodation is not feasible falls short of the reasonable accommodation requirement; the Act(s) create a duty to gather sufficient information from the [disabled individual] and qualified experts as needed to determine what accommodations are necessary. Wong v. Regents of the University of California, 192 F.3d 807,818 (9th Cir. 1999).

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

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

Courts have defined these terms since when they are used in this statute they are not susceptible to common usage. The terms "Necessary" within the context of the ADA means capable of providing direct amelioration of a problem facing qualified individuals with a disability, Bronk v. Ineichen, 54 F.3d 425.429 (7th Cir. 1995), and "Reasonableness" means primarily whether the requested accommodation will impose an undue financial or administrative burden on the defendant, School Brd. of Nassau County v. Airline, supra 480 US at 287. (citation omitted).

ATTORNEYS FEES
Under the American rule, attorneys fees may only be granted if the relevant statute provides for such an award. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 US 240,247, 95 S. Ct. 1612 (1975).

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