# Respondents Brief — United States v. Georgia

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0078%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 151

## Text

FILED

SEP 22 2005
No. 04-1203 OFFICE OF THE CLERK
No. 04-1 SUPREME COURT, U.S
IN THE
Supreme Court of the Anited States
UNITED STATES OF AMERICA,
Petitioner,
v.
STATE OF GEORGIA, ef ai,
Respondents.
TONY GOODMAN,
a Petitioner,
a siete
STATE OF GEORGIA, ef ai,
Respondents.
On Writs of Certiorari to the
United States Court of Appeals: ~ the
Eleventh Circuit
BRIEF FOR RESPONDENTS

GREGORY A. CASTANIAS THURBERT E. BAKER
JONES DAY Attorney General
51 Louisiana Avenue, N.W. KATHLEEN M. PACIOUS

Washington, D.C. 20001 Deputy Attorney General

(202) 879-3939 JOHN C. JONES
— “0 DAVID E. LANGFORD*
1420 Peachtree Street, N.E. ASsistant Attorney General
Atlanta, GA 30309 STATE OF GEORGIA
(404) 521-3939 Georgia Department of Law
40 Capitol Square SW
Atlanta, GA 30334
(404) 463-8850
*Counsel of Record

QUESTION PRESENTED
Whether Title II of the Americans with Disabilities Act of
1990, 42 U.S.C. §§ 12131 to 12165, validly abrogates state
sovereign immunity for suits for damages by inmates
alleging disability-based discrimination by state prison
officials.

TABLE OF CONTENTS
Page
ee I i irccet eheechirrcrnceninictetntniveinasenpecniaitoiiote i
Te i ne iv
REE ARSE AER ADP Fe ERR OPO SCRE. et l
SUMMARY OF THE ARGUMENT .................cccecseeseseeeeees 6
Ot, SE SE ILENE IE See SCALE Dem = NAR NOS oe 4
I. MOST ACTIONS BY STATE PRISON
OFFICIALS, AND DISTINCTIONS BASED
ON DISABILITY, ARE SUBJECT TO
DEFERENTIAL CONSTITUTIONAL
ARR SEPL IS: TE TORR CI aE 10
A. Disability-Rased Classifications Are
Subject *» Rational-Basis Review...................... 11
B. Constitutional Review Of Disability-Based
Classifications In The Prison Context Is
Further Constrained By The Essential
Nature Of Incarceration And The Rule Of
Deference To Prison Officials’ Actions............. 14
Il. IN ENACTING TITLE II OF THE ADA, CON-

GRESS DID NOT IDENTIFY A HISTORY
AND PATTERN OF UNCONSTITUTIONAL
DISCRIMINATION BY THE STATES
AGAINST DISABLED STATE PRISON

A. The Proper Context For Evaluating The
Abrogation Claim In This Case Is The
Specific Prison Context, Not The General
Area Of “State Services And Programs”............ 20

ill

TABLE OF CONTENTS
(continued)
Page

B. The Legislative Record Does Not Show
That Congress Enacted The ADA On The
Basis Of Fourteenth Amendment Violations
In The State Prison Context ..................000000eeeee 22

C. Petitioners’ Reliance On Eighth Amend-
ment Decisions To Support Their Abroga-
tion Claims Is Without Merit ..............c0.ceeeeeee 27

D. Petitioners’ Collection Of Judicial
Decisions Demonstrates NO History Of
“Widespread And Persisting Deprivation
Of Constitutional Rights” Regarding
Disabled State Prisomers.................ccccseeceeeeeeesees 29

1. Two-Thirds Of Petitioners’ “Massive
Body” Of Cases Could Not Have Been
Considered By Congress Because
They Postdate The 1990 Enactment Of

2. Most Of Petitioners’ Pre-ADA Cases
Are Facially Inapposite ..................c:cceeeeeee 31

3. The Few Judicial Decisions Remaining
Are Too Isolated And Sporadic To
Demonstrate A “Widespread And
Persisting” Pattern Of Unconstitutional
Treatment Of Disabled State Prisoners....... 36

Ill. TITLE I! OF THE ADA IS NOT A PROPOR-
TIONATE OR CONGRUENT REMEDY
SE ear CIE @ cectennescvercnceniecassonenenessenteqscotessonn 38

SP TIDES diiniesccgsrecthinalaisieanaressenepeapisineteanseninepuneinania 45

iV

TABLE OF AUTHORITIES
Page
Cases
Alden v. Maine, 527 U.S. 706 (1999) .......cccccccesceeseeeeeeeeeeees 10
Allegheny Pittsburgh Coal Co. v. County |

Commission of Webster Cty., 488 U.S. 336 (1989)........ 16
Balla v. Idaho State Board of Corrections,

595 F. Supp. 1558 (D. Idaho 1984)... eeeeeeeeeeeee 33
Battle v. Anderson, 376 F. Supp. 402 (E.D. Okla.

~ 1974), aff'd in part, rev'd in part, 993 F.2d 1551

SR GED RUUD wsccthcdickeitveckishdindiimispndsosbidtleitanndstctinhentotes 33
Baumann vy. Ariz. Department of Corrections,

754 F.2d 841 (9th Cir. 1985) 0.00... ccceeseeesteeeeeeeeeees 17
Board of Trustees of University of Ala. v. Garrett,

Fe ee, FIO GED ccettsnlthpticcchtschersseseceaniantiicaiddenn passim
Brockett v. Spokane Arcades, Inc., 472 U.S. 491

CUFREIED ssevisnccsceisenpsccsitibsiiaiiboniatbidmetnainliiidebesccesiaanns 42, 43
City of Boerne v. Flores, 521 U.S. 507 (1997)............ passim
City of Cleburne v. Cleburne Living Center,

STS AID. S32 (GES) ccrccciettisdcctiintvioccseciontdiivase 7, 11, 16, 40
Civil Rights Cases, 109 U.S. 3 (1883) .........cccccecceeeeteeceeeeees 38
Correctional Services Co. v. Malesko, 534 U.S. 61

AED cncctenvesetvcnssccatipsiiiailistedidssaise ditae elimina lmiaandin 19
Cortes-Quinones v. Jiminez-Nettleship, 842 F.2d 556

CORE CAs. BEDE cccacccctssintrllininsneseitlipincunetlenniidaintbnsie 17, 18
Duran v. Anaya, 642 F. Supp. 510 (D.N.M. 1986)............ 34
Edelman v. Jordan, 415 U.S. 651 (1974) .....ccccccccceeeeeeeeeeees 10
Elliott v. Brooks, 188 F.3d 518 (10th Cir. 1999)................ 17
Eng v. Smith, 849 F.2d 80 (2d Cir. 1988) ........ccccceeceeeceeees 34
Estelle v. Gamble, 429 U.S. 97 (1976) .....c.ccccccecceeeeeeeee 18, 42
Farmer v. Brennan, 511 U.S. 825 (1994).............0000004. 18, 19

Fla. Prepaid Postsecondary Education Expense

Board v. College Sav. Bank, 527 U.S. 627

(BP IID cncocecceccccssencesetiicvnitibinibshndenbentetdiandimnanaieialing passim
Gibson v. Federal Bureau of Prisons, 121 Fed.

Pagans. S09 (56s Cle. FER cccerescsncecsssiastanninsanmintnannnine 17

Vv

TABLE OF AUTHORITIES
(Continued)
Page

Gregory v. Ashcroft, 501 U.S. 452 (1991) ......ccccccceeenes |
Griffin v. Breckenridge, 403 U.S. 88 (1966) ................ 42, 43
Hope v. Pelzer; $36 U.S. 730 (2002)..........ccccccccccccseeereeeeees 18
Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982)................ 17
Johnson vy. California, 125 §. Ct. 1141 (2005)............... “a
Jones v. N.C. Prisoners’ Labor Union, 433 U.S.

EE Ee a ae 14, 41
Kelo v. City of New London, 125 S. Ct. 2655

SE SPE ee ee 16
Key v. Grayson, 179 F.3d 996 (6th Cir. 1999)... 21
Kimel v. Fla. Board of Regents, 528 U.S. 62

EES ST Se Se eee passim
LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) ................. 21
Lewis v. Casey, 518 U.S. 343 (1996).............cccccccccceccceneees 16
Mathews v. Lucas, 427 U.S. 495 (1976) .......ccccccccccceceeeeees 40
MeMillian v. Monroe County, 520 U.S. 781 (1997)........... 35
McNeil v. United States, 508 U.S 106 (1993) ............00 4]
Meachum v. Fano, 427 U.S. 215 (1976) .......ccccccccccecccceeees 15
Miller v. King, 384 F.2d 1248 (1 1th Cir. 2004)... 6
More v. Farrier, 984 F.2d 269 (8th Cir. 1992)................ 17
Nevada Department of Human Resources v.

Lk ST passim
O'Lone v. Estate of Shabazz, 482 U.S. 342

I ESSERE ETT ee 10, 14, 15
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581

EEE SS a en 27
Overton v. Bazzetta, 539 U.S. 126 (2003)... 15
Palmer v. Hudson, 468 U.S. 517 (1984) ................. 7, 14, 22
Penn. Department of Corrections v. Yeskey,

EE 16
Richardson v. Ramirez, 418 U.S. 24 (1974) .00...........000. 14

Roberts v. United States Jaycees, 468 U.S. 609
| Ee ae Sa e e 15

vi
TABLE OF AUTHORITIES
(Continued)
Page
Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan.

EE SS Nae © oT ae ee 21
Seminole Tribe v. Florida, 517 U.S. 44 (1996) ...............0.. l
Smith v. City of Jackson, 125 S. Ct. 1536 (2005)................ 28
South Carolina v. Katzenbach, 383 U.S. 301

SITE ccccnttescusbiidinndedsiieiiniattiatntinmemnteitiatarsiniinldlat eR iicn sc cepetass 10
Tennessee v. Lane, 541 U.S. 509 (2004) ..0.....ccccccccees passim
Turner v. Safley, 482 U.S. 78 (1987)........ unites 7, 15, 16, 40
United States v. Booker, 125 S. Ct. 738 (2005).................. 43
United States v. Carolene Products Co., 304

ee I riinchccchsinncdiinisteniRtipabicmachcahMipsivbshineneds 39
United States v. Raines, 362 U.S. 17 (1960) ................ 42, 43
Wilson v. Seiter, 501 U.S. 294 (1991) oo... cccccccccccccceeceeeeees 44
State Cases
Goodman vy. State, 237 Ga. App. 795, 516 S.E.2d

RES EAE ES! SA 2,3
Federal Statutes
2 RS > a 5, 6
Se passim
ON i EE ae 9,27
EB. GOURD... GERTIEE. TERY 5 © Deincccnsnsensescsencsesttiinsonenetin passim
Civil Rights of Institutionalized Persons Act of 1980

(“CRIPA”\Pub. L. No. 96-247, 94 Stat. 349) ............... 25
Rehabilitation Act of 1973 (Pub. L. No. 93-112, 87

RE, ED ccoricscninectinescwsttapipeniinitesinnnamiinisipaiasinneas 25
Civil Rights Act of 1957, 42 U.S.C. § 1971... eens 42
SS | ES ee 5,29
Prison Litigation Reform Act of 1995, P.L. 104-134,

a: Wes Se A, 8 BRC reensteentenenstitineniinmeenns 28
EE a 39
Americans with Disabilities Act of 1990, 104 Stat.

GLE a 1,39

fd be passim

vii

TABLE OF AUTHORITIES
(Continued)

Page
Legislative Materials
H.R. Rep. No. 101-485 (Pts. 1-4) (1990) ........... 7, 22, 24, 25
S. Rep. No. 100-116 (1969)...........00.c..ccccecserrscccsecesersees 22, 24
136 Cong. Rec. $9527-02 (daily ed. July 11, 1990)........... 25
141 Cong. Rec. $7256 (daily ed. May 25, 1995) ............... 28
ADA: Joint Hearing on S. 2345, 100th Cong. 1190 .....23, 24
ADA: Joint Hearing on H.R. 2273 (July 18, 1989)............ 24
Miscellaneous
S. Ct. R. 14.1(a)............ ESS ES, SE SST. RS oe 4)

Karen M. Blum, Support Your Local Sheriff: Suing
Sheriffs Under § 1983, 34 STETSON L. REV. 623
SE cniventcrsicincplinstinidtiniiniacecusiansibistiapninaglliterccccssianies 35
“Task Force on the Rights and Empowerment of
Americans with Disabilities, From ADA to
I Oe 26
U.S. Civil Rights Commission, peewee oo the
Spectrum of Individual Abilities (1983) ................... 25, 26

STATEMENT

This case asks whether Congress validly abrogated the
States’ Eleventh Amendment immunity in Title II of the
Americans With Disabilities Act of 1990 (the “ADA”), 104
Stat. 337, 42 U.S.C. §§ 12131-12165, as applied to suits for
damages brought by disabled state-prison inmates. More
specifically, it presents the question whether Tennessee v.
Lane, 541 U.S. 509 (2004), which held that Congress, in
enacting Title Il of the ADA, validly abrogated state
sovereign immunity “as applie[d] to the class of cases
implicating the accessibility of judicial services,” id at 531,
extends to state prison inmates who challenge the actions and
omissions of state prison administrators.

As this Court’s decisions in City of Boerne v. Flores, 521
U.S. 507 (1997), and its progeny have demonstrated, one of
the few limitations imposed by the United States
Constitution on such otherwise-sensible measures as the
ADA arises where one sovereign attempts to impose a
money-damages remedy on another sovereign. No State
could impose such an obligation upon the federal
government, or upon another State. In our government of
“dual sovereigns,” Gregory v. Ashcroft, 501 U.S. 452, 457
(1991), the Eleventh Amendment similarly cabins (though it
does not absolutely forbid) the power of Congress to pass
laws that seek to give citizens the ability to sue an
unconsenting state for damages. See, e.g., Board of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).

A State’s Eleventh Amendment immunity may be
abrogated only when Congress expresses its intent to do so,
and properly acts pursuant to a constitutional provision
granting it the right to abrogate. Section 5 of the Fourteenth
Amendment, also known as the Enforcement Clause,
provides the primary avenue through which Congress can
abrogate a state’s Eleventh Amendment immunity. See
Seminole Tribe v. Florida, 517 U.S. 44, 59-66 (1996).
Under § 5, Congress may enact legislation allowing private

2

individuals to sue the States for damages only if such
legislation is limited to the purpose of “enforcing, by
appropriate legislation” the substantive guarantees of the
Fourteenth Amendment. City of Boerne, 521 U.S. at 517-18;
Lane, 541 U.S. at 554 (Scalia, J., dissenting). That, in turn,
requires the Court to determine what constitutional guarantee
required. remediation, whether Congress was in fact
responding to a widespread and intractable problem of
unconstitutional state discrimination, and if so, whether
Congress’s chosen remedy was proportional and congruent
to these constitutional violations.

The resolution of each of these questions should lead the
Court to conclude that Congress did not validly abrogate
state Eleventh Amendment immunity as applied to the class
of cases where disabled state inmates seek money damages
for denial of access to “services, programs, or activities.”
See 42 U.S.C. § 12132. Accordingly, the Court of Appeals’
judgment should be affirmed.

Briefly stated, the facts of this case are as follows:

1. Petitioner Tony Goodman, a paraplegic with a prior
felony conviction, returned to a state prison in 1995 after
being convicted of aggravated assault, possession of cocaine
with intent to distribute, and possession of a firearm by a
convicted felon. Goodman had a domestic dispute with his
live-in girlfriend outside their home, and he shot at her with
a gun. Goodman v. State, 237 Ga. App. 795, 516 S.E.2d 824 -
(1999). When the shot missed, the woman ran inside and
called 911. According to trial testimony, the gun jammed
and Goodman chased her down, got out of his wheelchair,
and beat her with the gun. When police arrived, they found a
fight in progress. The woman was cut and bruised and “her
blood was splattered on the wall.” /d, 516 S.E.2d at 825.
Police-o‘ficers then found 22 pieces of crack cocaine. /d at
795-96, 516 S.E.2d at 825. Goodman claimed at trial that he
did not know where the drugs had come from, but “theorized
that [his brother and girlfriend] were having an affair and

3

that they placed the gun and cocaine on him in an elaborate
scheme to frame him.” /d. at 796, 516 S.E.2d at 826. The
jury convicted Goodman and he was sentenced to a term of
years in the Georgia state prison system.

2. Goodman, who has filed more than 60 lawsuits since
his incarceration in the Georgia State Prison (see Br. in Opp.
to Cert. 1-2 n.1), filed this civil action in federal district court
in January 1999. J.A. 27.

a. Goodman’s pro se complaint alleged a variety of
wrongs, ranging from the temperature in his cell in the
Georgia State Prison (J.A. 38) to the lighting in the facility.
J.A. 48. Relevant to the question before this Court are the
following claims and allegations:

— That the Department of Corrections violated his ADA
rights when they transferred him from a “medical prison” to
Georgia State Prison and denied or excluded him from
participation in Mental Health/Mental Retardation programs
and activities. J.A. 34.

—That he is entitled to relief for “his continued
confinement in segregated environment, on the grounds of
unlawful disability-based discrimination. Defendants have
confined Plaintiff to [the Georgia State Prison] where that
Plaintiff could be appropriately treated in more integrated
community setting.” Goodman added that “the failure to
provide the most integrated services appropriate to the needs
of disabled persons constitutes unlawful disability-based
discrimination. Here the Defendants has [sic] violated the
core principle underlying the A.D.A.’s integration mandate.”
J.A. 35.

—That the unit he lived in “lacks facilities for the
disabled ‘for hygiene, drinking and performing body
excretion functions.’” J.A. 39.

— That he was given no assistance by staff in using the
toilet and getting to his bed and has thus suffered injuries.
J.A. 39.

4

— That he was kept “in a very small cell (12 feet long
and 3-feet wide) which he can not [turn] his wheelchair
around in side of this cell.” J.A. 38-39.

—That he has “been forced to sit in his own waste,
denied of catheter, denied of rehabilitative exercises, denied
of assistance in being transferred from his w/c [sic], to the
bed all of which resulted, among other things, in the Plaintiff
not getting a bath or a shower for (10) months.” J.A. 43.

— That he could not access the prison law library. J.A.
41-42.

b. In other papers, which the Court of Appeals also
considered, Goodman alleged that he was injured in
transferring to or from his toilet. He says he fell and broke
his right toe and crushed his right knee on five different
occasions between August 1998 and April 1999. J.A. 55.
He alleges that within one month between mid-March and
mid-April 1999, he broke the same toe and crushed the same
knee three times from toilet-transfer falls. J.A. 55. He also
claims that, on August 26, 1998, the toilet seat in his cell was
not stable, and so he fell when he “hurl[ed]” himself onto the
toilet, in turn causing an epileptic seizure. J.A. 55. He
alleges he once defecated and urinated on himself and, when
he requested cleaning supplies and assistance from staff
members, they refused. J.A. 65.

c. Finally, in his Statement of Undisputed Facts in
support of his motions for Summary Judgment, Goodman
alleged he had been denied certain “Privileges and Rights”
granted to other inmates at his security level, including
“counseling services, educational services, college program,
vocational training, recreation activities, freedom of
movement in the unit and institution, television, phone calls,
entertainment, and religious rights, also we are being denied
of medical supervision and education concerning ‘diabetes.
and hypertension.”” J.A. 65, 83-84.

d. The State has continually denied Goodman’s factual
allegations (J.A. 72-73, 93-95), and has pointed out to the

5

courts that Goodman has at numerous times throughout this
case contradicted his material factual allegations.

3. In 2001, the district court dismissed Goodman’s
complaint on summary judgment (Goodman Pet. App. 24a-
28a), and in 2004, the Court of Appeals for the Eleventh
Circuit affirmed that judgment in part, and reversed it in part.
Id. at la-23a.

a. The district court granted summary judgment on
Goodman’s § 1983 claims against the individual defendants
under the Eighth Amendment because, as the Eleventh
Circuit later agreed, “Goodman’s complaint was less than a
model of clarity.” Goodman Pet. App. 17a. The Eleventh
Circuit reversed, holding that “the act of dismissal, without
leave to amend, was too severe a sanction” for the
complaint’s deficiencies. /d Thus, Goodman’s Eighth
Amendment claims were reinstated, on the condition that he
file an Amended Complaint when the case returns to the
district court. /d. at 17a-18a.'

b. The district court also granted summary judgment on
Goodman’s Title II ADA claims for damages, on the ground
that Congress did not validly abrogate the States’ Eleventh
Amendment immunity in passing Title Il of the ADA.
Goodman Pet. App. 27a (citing Board of Trs. of Univ. of Ala.
v. Garrett, 531 U.S. 356 (2001)). The Eleventh Circuit
affirmed “the magistrate judge’s grant of summary judgment
to all the defendants on Goodman’s ADA claims for
monetary damages as barred by the Eleventh Amendment.”
Goodman Pet. App. 19a. The Eleventh Circuit relied on its

' The Eleventh Circuit also held that some of Goodman’s claims “are
obviously frivolous,” and it thus limited him to three claims on which to
build a § 1983 case for trial, if he can sufficiently amend his Complaint
sO as to state claims of rights violations. by individual Respondents:
(1) that he cannot move his wheelchair in his cell; (2) that he was forced
to sit in his own waste because prison officials refused to provide
assistance; and (3) that the care given to him at GSP amounts to
“‘deliberate indifference’ to his serious medical condition of being
partially paraplegic.” Goodman Pet. App. | 8a.

6

prior decision in Miller v. King, 384 F.3d 1248 (11th Cir.
2004), in which it had held: “A requirement of reasonable
accommodations for a qualified, disabled prisoner in the
prison’s educational, recreational and job-training programs,
for example, bears no permissible prophylactic relationship
to deterring or remedying violations of disabled prisoners’
right to be free from cruel and unusual punishment.” /d. at
1275. Even while acknowledging “that §5 authorizes
Congress to deter Eighth Amendment violations by
prohibiting ‘a somewhat broader swath of conduct’ than that
prohibited by the Eighth Amendment,” the court in Miller
ultimately held that “Title II prohibits far more state conduct
and in many more areas of prison administration than
conceivably necessary to enforce the Eighth Amendment’s
ban on cruel and unusual punishment.” /d. at 1274.

c. The Eleventh Circuit held that Goodman could
proceed on his ADA Title II claim for injunctive relief.
Goodman Pet. App. 19a-2la. The State has not cross-
petitioned from that ruling.

4. The United States (which had intervened in the
Eleventh Circuit to defend the validity of Title II's
abrogation of the States’ sovereign immunity) and Goodman
each petitioned this Court to review the judgment of the
Eleventh Circuit in this case, presenting questions regarding
the validity of Congressional abrogation of sovereign
immunity “as applied to the administration of prison
systems” (No. 04-1203), “for suits by prisoners with
disabilities challenging discrimination by _ state-operated
prisons” (No. 04-1236). On May 16, 2005, this Court
granted both petitions and consolidated the cases.

SUMMARY OF THE ARGUMENT

Title Il of the ADA is not validly applied to allow state
prisoners to bring suits for damages, as that title is not
“appropriate legislation” under §5 of the Fourteenth
Amendment.

=

I. The first step in the congruence-and-proportionality
inquiry prescribed by this Court’s precedents is to “identify
with some precision the scope of the constitutional right at
issue.” Garrett, 531 U.S. at 365. Discrimination against the
class of disabled persons has always been considered by this
Court as subject only to constitutional rational-basis review,
City of Cleburne v. Cleburne Living Center, 473 U.S. 432,
446 (1985), and when prisons and prisoners are involved,
constitutional rational-relationship review, and heightened
~deference to the actions of prison officials, is the norm.
Turner v. Safley, 482 U.S. 78, 89 (1987). The claimed
prisoner rights of access to services, programs, and activities
would thus merit the lowest level of constitutional
protection, which takes this case outside of this Court’s
decisions in Tennessee v. Lane, 541 U.S. 509 (2004) (access
to courts), and Nevada Department of Human Resources v.
Hibbs, 538 U.S. 721 (2003) (génder-based discrimination),
both of which involved classifications subject to heightened
constitutional scrutiny, which in turn makes it “easier for
Congress to show a pattern of state constitutional violations.”
Id. at 736.

Il. Because “Congress’ §5 authority is appropriately
exercised only in response to state transgressions,” Garrett,
531 U.S. at 368, the next step in the congruence-and-
proportionality analysis is to determine whether Congress
had a record demonstrating a “widespread and persisting”
pattern of unconstitutional discrimination against disabled
state prisoners with respect to the provision of programs,
services, and activities. It did not. The legislative history of
the ADA, in fact, was concerned primarily with integrating
“persons with disabilities into the economic and social
mainstream of American life,” H.R. Rep. No. 101-485, Pt. 2,
at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 304,
which is the polar opposite of the imprisoned inmate, who is
by definition removed from society’s “mainstream.” See
Palmer v. Hudson, 468 U.S. 517, 526 (1984). It is therefore
not surprising that the legislative record demonstrates little

10

in “the prison context,” holding that “lawful incarceration
brings about the necessary withdrawal of many privileges
and rights,” and that state prison officials are entitled to a
broad range of discretion in the performance of their duties,
O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)
(internal quotation marks and citation omitted), there is not a
sufficient “congruence” or “proportionality” between Title II
of the ADA and any “historical experience” (South Carolina
v. Katzenbach, 383 U.S. 301, 308 (1966)) with state prisoner
access to programs and services. Indeed, there is little to no
record of such constitutional violations of disabled prisoners’
rights in the state-prison context.’

I. MOST ACTIONS BY STATE PRISON
OFFICIALS, AND DISTINCTIONS BASED ON
DISABILITY, ARE SUBJECT TO DEFERENTIAL
CONSTITUTIONAL REVIEW

“(T]he first step” in the City of Boerne congruence-and-
proportionality test is to “identify with some precision the
scope of the constitutional right at issue.” Garrett, 531 U.S.

* A suit “seeking to impose liability which must be paid from public
funds in the state treasury is barred by the Eleventh Amendment,”
Edelman v. Jordan, 415 U.S. 651, 663 (1974), for “{a] general federal
power to authorize private suits for money damages would place
unwarranted strain on the States’ ability to govern in accordance with the
will of their citizens.” Alden v. Maine, 527 U.S. 706, 750-51 (1999).
Petitioner Goodman's Title II claims seek money damages that would be
paid from public funds from the state treasury, and are thus barred for the
reasons set forth in this brief. That is the only issue regarding relief
before this Court, and Respondents invoke the Eleventh Amendment
only to protect the public fisc.

Petitioners nonetheless blur the line between damages and injunctive
relief as though the question of injunctive relief for prisoners is also
before the Court. Respondents do not seek to take away from inmates
the right to pursue appropriate injunctive relief, such as the injunction
requiring the installation of a grab bar hypothesized by Petitioner
Goodman. (Goodman Br. 37) It should be noted, however, that
Goodman did not make such a direct request in his Complaint or in his
emergency motion for a temporary restraining order. J.A. 53-58.

concern with inmates in state prisons; what few references to
prisons and prisoners exist in the legislative record are
scattered, anecdotal, or—in the case of the United States’
reliance on the testimony of Cindy Miller (U.S. Br. 23)}—
demonstrably miscited.

Petitioners’ efforts to overcome these deficiencies in the
legislative record with a cataloging of judicial decisions also
fail. Over two-thirds of the cases Petitioners cite for this
purpose were decided affer the passage of Title II of the
ADA, and thus fail to demonstrate an existing constitutional
problem. Of the few cases that were decided before passage
of the ADA, even fewer of them found a constitutional
violation at all, and most of the remaining ones involved
preliminary rulings, generalized attacks on prison conditions
or medical services applicable to disabled and non-disabled
inmates alike, or challenges to conditions in non-State
prisons. The few of Petitioners’ judicial decisions that
arguably demonstrate unconstitutional treatment of disabled
state prisoners, by reason of their disabilities, are so few and
sporadic that they cannot possibly constitute the “widespread
and persisting” problems of state discrimination that would
have to exist before Congress could abrogate the states’
sovereign immunity in this area.

Ill. Title I] of the ADA is not a proportionate and
congruent remedy for any history of unconstitutional
discrimination against disabled state prisoners. That statute
demonstrates none of the hallmarks of calibrated remedial
legislation; rather, the relevant portions of Title II appear in
the part of that title entitled “generally applicable
provisions.” Moreover, there is no indication in the statute
that Congress, in enacting Title II, took into account in any
way the special context of prisons and prisoners—not the
differences in the constitutional rights held by state
prisoners, and not the deference accorded to prison
administrators.

9

Nor is Title II proportional and congruent when
considered against Goodman’s alternative argument that
Title II is a constitutional means for enforcing the Cruel and
Unusual Punishments Clause. Even putting aside the issue
of whether that argument is “fairly included” within the
“discrimination”-based question presented by Goodman,
Title II would not be “congruent” to that constitutional right,
because it would reduce a disabled prisoner’s burden of
proof from “deliberate indifference to serious medical needs”
to a simple denial of services, programs, or activities.
Moreover, viewing Title II as a federal remedy for violations
of the Cruel and Unusuz! Punishments Clause would make it
a seriously disproportionate remedy: It would give prisoners
with disabilities, and only prisoners with disabilities, the
right to enforce the Cruel and Unusual Punishments Clause.

ARGUMENT

“Congress may subject nonconsenting States to suit in
federal court when it does so pursuant to a valid exercise of
its §5 power.” Garrett, 531 U.S. at 364. Section 5 of the
Fourteenth Amendment grants Congress the “power to
enforce, by appropriate legislation,” the substantive
guarantees of §1, including “by prohibiting a somewhat
broader swath of conduct” than that “forbidden by the
Amendment’s text.” Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 81 (2000). Nonetheless, to validly abrogate the States’
historic immunity from money-damages suits, § 5 legislation
that reaches beyond §1’s guarantees must exhibit
“congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.”
City of Boerne, 521 U.S. at 520; see Garrett, 531 U.S. at
365; Lane, 541 U.S. at 522. As the Court observed in City of
Boerne, “Congress does not enforce a constitutional right by
changing what the right is.” 521 U.S. at 519.

Particularly in view of the fact that disability-based
classifications have always been subject to rational-basis
review, and in further view of this Court’s decisions, relevant

1]

at 365; Lane, 541 U.S. at 522. Because Congressional power
under § 5 is not “plenary” but is instead “remedial,” City of
Boerne, 521 U.S. at 522, judicial review of enforcement
legislation must first include the identification of the
Fourteenth Amendment “wrong” Congress sought to
remedy. Fla. Prepaid Postsecondary Educ. Expense Bd. v.
College Sav. Bank, 527 U.S. 627, 639 (1999), citing City of
Boerne, 521 U.S. at 525. Only then can the “proportionality
and congruence” of the congressional remedy be evaluated.
In this case, the rights at issue are the rights of disabled state
prisoners to not be denied, “by reason of ... disability,”
“participation” in or “benefits of the services, programs, and
activities of a state entity.” 42 U.S.C. § 12132; see, e.g.
Garrett, 531 U.S. at 365.

A. Disability-Based Classifications Are Subject To
Rational-Basis Review

“{(C]lassifications based on disability violate [the
Fourteenth Amendment] if they lack a rational relationship
to a legitimate governmental purpose.” Lane, 541 U.S. at
522; see Garrett, 531 U.S. at 366; City of Cleburne, 473 U.S.
at 446. There is no general fundamental constitutional right
to state programs and services possessed by the class
consisting of disabled persons. Garrett, 531 U.S. at 367-68;
Lane, 541 U.S. at 522 (“Title Il, like Title 1, seeks to enforce
this prohibition on irrational disability discrimination.”); see
Hibbs, 538 U.S. at 735-36 (“[I]n order to impugn the
constitutionality of state discrimination against the disabled
or elderly, Congress must identify, not just the existence of
age- or disability-based state decisions, but a ‘widespread
pattern’ of irrational reliance on such criteria.”) (quoting
Kimel, 528 U.S. at 90).

The fact that disability-based classifications receive only
the most deferential constitutional review is an important
consideration governing the congruence-and-proportionality
inquiry in this case. In Hibbs and Lane, the only two of this
Court’s recent decisions to uphold congressional abrogation,

12

the fact that the asserted rights at issue were subject to
heightened constitutional scrutiny made a critical difference
in both analysis and result. In Hibbs, for example, the Court
distinguished its prior decisions in Garrett and Kimel on the
ground that, in the Family and Medical Leave Act of 1993,
“Congress directed its attention to state gender
discrimination, which triggers a heightened leVel of
scrutiny”; because the standard of constitutional review for
gender-based discriminaticn “is more difficult to meet than
our fational-basis test—it must ‘serv[e] important
governmental objectives’ and be ‘substantially related to the
achievement of these objectives’—it was easier for Congress
to show a pattern of state constitutional violations.” Hibbs,
538 U.S. at 736 (quoting United States v. Virginia, 518 U.S.
515, 533 (1996) (citation omitted, brackets in original)).

So, too, Lane upheld congressional abrogation of
sovereign immunity under Title II of the ADA, as “applie[d]
to the class of cases implicating the accessibility of judicial
services,” 541 U.S. at 531, on the ground that it was a
congruert and proportional response ta a legislative and
historical record demonstrating the “‘difficult and intractable
proble{[m]*” of disabled persons “access to the courts.” /d.
(quoting Hibbs, 538 U.S. at 737) (brackets in original). As
the Court explained, “Title II, like Title I, seeks to enforce
this prohibition on irrational disability discrimination. But it
also seeks to enforce a variety of other basic constitutional
guarantees, infringements of which are subject to more
searching judicial review.” /d at 522-23. Indeed, in
concluding that there was a history and pattern of unequal
treatment of the disabled with respect to access to the courts,
the Court’s opinion cited Hibbs and explicitly relied on the
“heightened standard of judicial scrutiny” that applies both
to gender-based distinctions and to burdens on the access to
courts: “Title Il is aimed at the enforcement of a variety of
basic rights, including the right of access to the courts at
issue in this case, that call for a standard of judicial review at
least as searching, and in some cases more searching, than

13
the standard that applies to sex-based classifications.” /d at
529 (citing Hibbs, 538 U.S. at 735-37).

There is good reason for the distinction drawn by Hibbs
and Lane. It is “easier for Congress to show a pattern of
state constitutional violations” in areas where such
heightened levels of scrutiny are applied (Hibbs, 538 U.S. at
736), because heightened constitutional scrutiny reflects a
judicial judgment, based on history and experience, that such
violations are more commonplace, more invidious, and thus
in. greater need of judicial remediation. A _ heightened
standard of constitutional scrutiny carries with it a
concomitantly lower burden of proof for plaintiffs—and, in
the case of distinctions subject to the highest level of
constitutional review, “strict scrutiny,” history and
experience teaches that the likelihood of invidious
discrimination is so great that simply demonstrating the
existence of the different treatment shifts the burden of
disproving a violation to the government.

But this case—in sharp contrast to Hibbs and Lane—
presents no distinction or other governmental action
deserving of a heightened standard of constitutional scrutiny.
A disabled state prisoner here seeks to enforce, via claims for
money damages against the State, a wide array of claimed
rights to programs and services, ranging from a right to
adequate sanitation in his cell to a right to television. (J.A.
34-48) The differences in legal treatment between prisons
and other public institutions, and between fundamental and
non-fundamental rights, are crucial to understanding why the
legislative and historical record before Congress shows no
similar constitutional problem of access by the disabled in
the context of State prisons for which Title II could be said
to be a “congruent and proportional response.”

14 o

B. Constitutional Review Of Disability-Based Classi-
fications In The Prison Context Is Further
Constrained By The Essential Nature Of Incar-
ceration And The Rule Of Deference To Prison
Officials’ Actions

Even beyond the deferential rational-basis review

generally provided to disability-based legal classifications,
see Garrett, 531 U.S. at 366, there is an additional and
critical factor that “applies to the class of cases implicating”
access to programs and services in state prisons (Lane, 541
U.S. at 533-34): the historical deference granted to prison
administrators in the performance of their duties and the
classification of inmates.

Because of the basic nature of state imprisonment, it is
difficult for any state prisoner, disabled or not, to advance a
plausible constitutional claim for deprivation of access to
programs and services. “‘Lawful incarceration brings about
the necessary withdrawal of many privileges and rights, a
retraction justified by the considerations underlying our
penal system.”” O'Lone, 482 U.S. at 348 (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)). “Prisons, by definition, are
closed societies, populated by individuals who have
demonstrated by their inability, or refusal, to conform their
conduct to the norms demanded by a civilized society. Of
necessity, rules far different from those imposed on society
at large must prevail within prison walls.” Jones v. N.C.
Prisoners’ Labor Union, 433 U.S. 119, 137 (1977) (Burger,
C.J., concurring). Indeed, some rights considered
fundamental outside prison walls are nonexistent or virtually
nonexistent within them.’

> For example, “the Fourth Amendment proscription against unrea-
sonable searches does not apply within the confines of the prison cell.”
Palmer v. Hudson, 468 U.S. 517, 526 (1984). States may
constitutionally prohibit convicted felons from voting. See, eg,
Richardson v. Ramirez, 418 U.S. 24, 56 (1974). And this Court has held
that the Constitution creates no liberty interest in a prisoner seeking to

15

For these reasons, claimed deprivations of constitutional
rights inconsistent with imprisonment are subject to review
only for a rational relationship to legitimate government
interests, even where the rights asserted may be said to be
fundamental. “[A prison regulation] is valid if it is
reasonably related to legitimate penological interests’.”
Turner, 482 U.S. at 89 (quoting Jones, 433 U.S. at 128). The
“evaluation of penological objectives is committed to the
considered judgment of prison administrators, “who are
actually charged with and trained in the running of the
particular institution under examination.” O ‘Lone, 482 U.S.
at 349 (quoting Bell v. Wolfish, 441 U.S. 520, 562 (1979)).
When a state correctional institution is involved, the
deference of the federal courts is even more appropriate.
Turner, 482 U.S. at 85.

Consistent with these principles, the Court in Overton v.
Bazzetta, 539 U.S. 126, 131 (2003), applied Turner v. Safley
to reject an inmate’s claim that Michigan prison regulations
restricting or forbidding inmate “contact visits” violated his
fundamental constitutional right to association. See, e.g.,
Roberts v. United States Jaycees, 468 U.S. 609, 618-20
(1984). The Court upheld the Michigan prison regulations,
not on the basis of any heightened constitutional scrutiny,
but because “the challenged regulations bear a rational
relation to legitimate penological interests.” Overton, 539
U.S. at 132. Rationality review, not heightened constitu-
tional scrutiny, was appropriate because “[t}he very object of
imprisonment is confinement,” and “freedom of association
is among the rights least compatible with incarceration.” /d.
at 131. See also Johnson v. California, 125 S. Ct. 1141,
1149 (2005) (noting that rational-relationship test has been
applied to evaluation of asserted constitutional rights

avoid transfer to more adverse conditions of confinement. Meachum v
Fano, 427 U.S. 215, 225 (1976).

16

“inconsistent with proper incarceration’”) (quoting Overton,
539 U.S. at 131).*

Free and unfettered access to, and participation in,
“services, programs, or activities of a public entity” (42
U.S.C. § 12132) are likewise inconsistent with the nature of
incarceration, even though prisons would otherwise fall
within the language of Title Il of the ADA. Penn. Dep't of
Corr. v. Yeskey, 524 U.S. 206, 209 (1998) (reserving
question presented by this case). This is made even clearer
by the ADA rights that Goodman claims in this case, which
include asserted broad rights to placement in the general -
population at a medical prison, “adequate” access to the law
library, access to the chapel, access to a television,
counseling services, educational services, phone calls, enter-
tainment, and vocational training. (J.A. 65, 105) Each of
those asserted rights would be subject to the Turner v. Safley
rational-relationship inquiry. See, e.g., Lewis v. Casey, 518
U.S. 343, 351, 356 (1996) (holding that prisoners do not
have a “abstract, freestanding right to a law library or legal

* The United States nonetheless claims that “Turner review is more
exacting than rational-basis review.” (U.S. Br. 37) At best, this
argument appears to be a semantic quibble. The 7urner standard—
“rationally related to legitimate penological interests”—obviously
“echoes the rational-basis test” (Kelo v. City of New London, 125 S. Ct.
2655, 2669 (2005) (Kennedy, J., concurring)), which is frequently stated
as “rationally related to a legitimate governmental purpose.” City of
Cleburne, 473 U.S. at 446. For another, the fact that Turner's rational-
relationship test resulted in “striking down marriage restrictions”
imposed by a prison (U.S. Br. 37} demonstrates little, as the Equal
Protection Clause’s rationa!-basis test, too, has been used on occasion to
strike down governmental enactments. See, e.g, Allegheny Pittsburgh
Coal Co. v. County Comm'n of Webster Cty., 488 U.S. 336 (1989). And,
in all events, whatever minimal differences there might be between the
Turner rational-relationship inquiry and the rational-basis test of the
Equal Protection Clause, it would be unnecessary to resolve them in this
case, as the more important point is that Title Il of the ADA provides
substantially greater legal protections to the rights of inmates with a
disability than does the Constitution, even under 7Jurner’s rational-
relationship inquiry. See Section III, below.

17

assistance” and “leav[ing] it to prison officials to determine
how best to ensure that inmates . . . have a reasonably
adequate opportunity to file nonfrivolous legal claims
challenging their . . . conditions of confinement”). Indeed,
§ 1983 prisoner suits seeking both monetary and injunctive
relief for these types of claims have been roundly rejected by
the courts.° '

Decisions by state prison officials regarding whether to
place an inmate within the general population or not are
likewise subject only to rational-relationship review, with
significant deference given to the prison officials’ decisions.
This is for good reason: Goodman says the State has
discriminated against him under the ADA by nor placing him
in the general population. (J.A. 35) Yet the United States’
Addendum B refers to at least three instances where prison
administrators were cited for. violating constitutional rights
of inmates by placing disabled inmates in the general prison
population.’ See also Cortes-Quinones v. Jiminez-Nettleship,

* See, e.g, More v. Farrier, 984 F.2d 269, 271 (8th Cir. 1992) (claimed
right to television by disabled inmate: “[d]espite television’s importance
in modern society, appellees have no fundamental right to in-cell cable
television, and wheelchair-bound inmates are not a suspect class”);
Elliot v. Brooks, 188 F.3d 518 (10th Cir. 1999) (no constitutional right to
watch television in prison) (table, text in Westlaw); Baumann v. Ariz.
Dep't of Corr., 754 F.2d 841, 846 (9th Cir. 1985) (no constitutional
violation by prison’s limitation of jobs and educational opportunities)
(citing Rhodes v. Chapman, 452 U.S. 337, 348 (1981)); Hoptowit v. Ray,
682 F.2d 1237, 1254-55 (9th Cir. 1982) (“Idleness and the lack of
[vocational, recreational, and educational] programs are not Eighth
Amendment violations. The lack of these programs simply does not
amount to the infliction of pain.”) (citing Rhodes v. Chapman, supra).
Gibson v. Fed Bureau of Prisons, \2\ Fed. Appx. 549, S51 (Sth Cir.
2004) (inmate has no protected liberty interest in eligibility for a prison
drug treatment program) (citing Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976)).

* The Department of Justice found that Pennsylvania (not Massachusetts,
as the United States’ Addendum erroneously states) prison authorities
violated the Constitution at Westefn State Correctional Institution
because “[mJentally il] inmates who should be separated from the general

842 F.2d 556, 560 (Ist Cir. 1988) (finding defendant liable
under Eighth Amendment for being “deliberately
indifferent” to mentally disabled inmate’s health and safety
by failing to segregate him from general population, which
led to his beating death in the general population).

All that said, State prison inmates like Goodman are
certainly not void of basic rights while incarcerated. Prison
inmates possess some level of Due Process and Equal
Protection rights, as well as an Eighth Amendment right to
be free of cruel and unusual punishments. “[P]rison officials
must ensure that inmates receive adequate food, clothing,
shelter and medica! care, and must take ‘reasonable measures
to guarantee the safety of the inmates.’” Farmer v. Brennan,
511 U.S. 825, 833 (1994) (quoting Hudson v. Palmer, 468
U.S. 517, 526-27 (1984)). “[{DJeliberate indifference to
serious medical needs of prisoners constitutes the unneces-
sary and wanton infliction of pain . . .” proscribed by the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104
(1976). Indeed, Goodman’s Eighth Amendment claims,
which are directed to his cell’s size and sanitation conditions,
and to prison officials’ alleged deliberate indifference to his
serious medical needs, will continue regardless of how this
Court answers the questions presented. If those allegations
are ultimately proven, Petitioner Goodman would be entitled
to relief under the Eighth Amendment. Hope v. Pelzer, 536
U.S. 730 (2002).

The United States nonetheless claims that “[wJhile many
of th[e] constitutional claims [by prisoners] are invoked with
appropriate deference to prison officials, that is not true of
Eighth Amendment claims... .” (U.S. Br. 37 (citation

population are not always separated.” U.S. Addendum B, 2b. Hawaii
(id, 3b) and Guam (id, 20b) were similarly chastised by the United
States’ Addendum for failing “to . . . segregate inmates with physical or
mental impairments, which leads to failure to house such inmates safely.
‘This failure results in vulnerable inmates being subject to predation in
the general population.’” /d

20

at 368-74; Kimel, 528 U.S. at 81-82; City of Boerne, 521
U.S. at 531. For Petitioners to succeed in showing that
Congress meant to abrogate the States’ historical immunity
and allow claims by state prisoners for monetary damages
against the State, they must demonstrate that Congress had a
record before it that established such a pattern of state
discrimination against disabled state prisoners with respect to
the provision of public services, programs, and activities.
This they cannot do.

A. The Proper Context For Evaluating The Abro-
gation Claim In This Case Is The Specific Prison
Context, Not The General Area Of “State Services
And Programs”

As Petitioners recognize, the issue before the Court—and
the sole question presented—asks whether Title I] was a
valid exercise of Congress’ §5 authority in the specific
context of state prison administration. (U.S. Br. 11-16;
Goodman Br. 11-12.) Title Il does not abrogate the States’
sovereign immunity unless Congress determined, when it
passed the ADA, that there existed a widespread pattern of
discrimination with respect to the provision of public
services, programs, and activities to the disabled in state
prisons. Compare, e.g., Lane, 541 U.S. at 530-31 (noting
“long history . . . [of] unequal treatment of disabled persons
in the administration of judicial services” (emphasis added))
with, e.g., Garrett, 531 U.S. at 368 (“The legislative record
of the ADA, however, simply fails to show that Congress did
in fact identify a pattern of irrational state discrimination in
employment against the disabled.”).

Lane confirms this specific standard. In a series of
footnotes, the Court outlined a “variety of settings” in which
its own cases had previously identified unconstitutional
treatment of the disabled by state agencies, including areas
such as voting, marriage, and zoning. Lane, 541 U.S. at 524-
25 nn. 5-14. Among these many and varied examples, the
Court cited only three lower-court cases—two of which

21

could not have been before Congress when it passed Title II
of the ADA, since they postdate its 1990 enactment by
nearly a decade—where disabled inmates had claimed such
violations. /d. at 525 n.11.’

But even having surveyed this broad range of examples,
the Court declined “to consider Title Il, with its wide variety
of applications, as an undifferentiated whole.” Lane, 541
U.S. at 530. Rather, the Court focused its analysis on “the
class of cases implicating the accessibility of judicial
services.” /d. at 530-31 (“Whatever might be said about
Title II’s other applications, the question presented in this
case is not whether Congress can validly subject the States to
private suits for money damages for failing to provide
reasonable access to hockey rinks, or even to voting booths,
but whether Congress had the power under § 5 to enforce the
constitutional right of access!ito the courts.”). The Court’s
inclusion of “the penal system” as one of “a wide range of
public services, programs, and activities” discussed in Lane,
541 U.S. at 524, says little to nothing regarding the question
presented here. As we show below, it is clear that Congress
did not find—nor could it have found—‘widespread and
persisting” discrimination on the basis of disability with
respect to the provision of services, programs, or activities to
state prisoners.

” The Court cited three cases: LaFaut v. Smith, 834 F.2d 389 (4th Cir.
1987); Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999); and Key v.
Grayson, 179 F.3d 996 (6th Cir. 1999). Each is objectively inapposite.
LaFaut, an Eighth Amendment deliberate-indifference case, is the only
one of the three decided before the ADA, and it involved a federal
prison. 834 F.2d at 389-90. Schmidt, also an Eighth Amendment case, is
similarly inapposite because it involved a county jail, not a state prison.
64 F. Supp. 2d at 1016. And Key was an ADA case that did not address
the abrogation issue at all, but simply assumed that a deaf inmate's claim
that the denial of an interpreter to attend sex-offender therapy sessions
violated his ADA and Rehabilitation Act rights; moreover, the Sixth
Circuit in that case held that prison officials were entitled to qualified
immunity since the application of those acts to prisons and prisoners was
not “clearly established” in 1996. 179 F.3d at 1002.

22

B. The Legislative Record Does Not Show That
Congress Enacted The ADA On The Basis Of,
Fourteenth Amendment Violations In The State
Prison Context

Petitioners’ briefs themselves reveal the lack of support
for their position in the Congressional history. Petitioners’
heavy reliance on hearings that took place in the 1970s and
early 1980s in connection with other legislation Congress
enacted to address prisoners’ needs (including a scattering of
lower court decisions cited there), together with their virtual
silence as to the legislative record of the ADA itself, speaks
volumes. This near-total dependence on oblique and
circumstantial “evidence” comes nowhere close to satisfying
the requirements of this Court’s decisions in this area.

The Legislative History of the ADA Itself. The
legislative history of the ADA reflects that Congress’ central
concern was integrating “persons with disabilities into the
economic and social mainstream of American life.” H.R.
Rep. No. 101-485, Pt. 2, at 50, reprinted in 1990
U.S.C.C.A.N. 303, 332 (emphasis added). See also id., Pt. 1,
at 24, reprinted in 1990 U.S.C.C.A.N. 267, 268 (describing
the purpose of the ADA as to “permit the United States to
take a long-delayed but very necessary step to welcome
individuals with disabilities fully into the mainstream of
American society”); id, Pt. 2, at 22, reprinted in 1990
U.S.C.C.A.N. at 304 (“The purpose of the ADA is to provide
a clear and comprehensive national mandate to end
discrimination against individuals with disabilities and to
bring persons with disabilities into the economic and social
mainstream of American life; . . . .”); id, Pt. 3, at 1,
reprinted in 1990 U.S.C.C.A.N. 445, 446 (same); id., Pt. 4,
at 2, reprinted in 1990 U.S.C.C.A.N. 512, 512 (same); S.
Rep. No. 100-116 (1989) (same).

That concern, of course, is the polar opposite of a concern
with the state prisoner, who is—as shown in Section Il,
above—by definition removed from society’s mainstream.

29

Further, as amici State of Tennessee ef al. explain in their
brief, “inmates have long filed civil rights suits under 42
U.S.C. § 1983 to enforce the same constitutional rights that
petitioners argue should now be enforced by a money
damages remedy under the ADA.” Tennessee ef al. Amicus
Br. 23. That fact provides even more reason to doubt that
Congress identified a special Eighth Amendment problem, or
that it intended to require a further federal remedy only
available to prisoners with a disability.

All that said, even if every single one of the pre-ADA
Eighth Amendment cases cited by Petitioners were included
in the Court’s consideration of the issue, that still would not
demonstrate the existence of a “widespread and persisting”
problem that mandated a federal money-damages remedy
against the States. We turn now to that issue.

D. Petitioners’ Collection Of Judicial Decisions
Demonstrates No History Of “Widespread And
Persisting Deprivation Of Constitutional Rights”
Regarding Disabled State Prisoners

The heart of Petitioners’ case lies in their efforts to
demonstrate that a “massive body” (Goodman Br. 26) of
decided cases demonstrates a wide and _ systematic
deprivation of Fourteenth Amendment rights of which
Congress must have been aware in passing Title Il of the
ADA. Fla Prepaid, 527 U.S. at 642 (“[T}he legislative
record still provides little support for the proposition that
Congress sought to remedy a Fourteenth Amendment
violation in enacting the Patent Remedy Act.”); Garrett, 531
U.S. at 374 (“there must be a pattern of discrimination by the
States which violates the Fourteenth Amendment”); Hibbs,
538 U.S. at 735 (“Congress must identify . . . not just the
existence of age- or disability-based state decisions, but a
‘widespread pattern’ of irrational reliance on such criteria”);
see also Lane, 541 U.S. at 541 (Rehnquist, C. J., dissenting).
But those cases do not show anything close to a “widespread
pattern” of unconstitutional discrimination against disabled

30

state prisoners: Most of Petitioners’ cases postdate the
enactment of the ADA—and thus could not possibly have
contributed to Congress’ deliberations that led to the
enactment of Title Il; few of those that predate the ADA
involve state prisons; and fewer still involve alleged
discrimination with respect to services, programs, or
activities against a class of disabled inmates (as opposed to
other, generalized allegations of constitutional violations that
included some disabled state inmates within their sweep).
That leaves Petitioners with but scattered, isolated instances
of claimed discrimination against state prison inmates with
respect to prison services, programs, or activities. Under this
Court’s decisions, these cases cannot sustain Petitioners’ § 5
abrogation claim.
1. Two-Thirds Of Petitioners’ “Massive Body”
Of Cases Could Not Have Been Considered
By Congress Because They Postdate The
1990 Enactment Of The ADA

Petitioners must show that Congress was considering a
pattern of widespread discrimination when it enacted the
ADA in 1990. See Fla. Prepaid, 527 U.S. at 640 (noting that
“the propriety of any § 5 legislation ‘must be judged with
reference to the historical experience . . . it reflects’” and that
Congress had not identified a pattern of unremedied patent
infringement by the States when it enacted the Patent
Remedy Act) (quoting City of Boerne, 521 U.S. at 525);
_ Kimel, 528 U.S. at 90 (legislative record revealed that
“Congress had virtually no reason to believe that state and
local governments were unconstitutionally discriminating
against their employees on the basis of age” and that,
therefore, “Congress had no reason to believe that broad
prophylactic legislation was necessary in this field.”);
Garrett, 531 U.S. at 368 (asking “whether Congress
identified a history and pattern of unconstitutional
employment discrimination by the States against the
disabled,” and finding that it had not). The vast majority of
Petitioners’ cited cases postdates the 1990 enactment of the

19

omitted)) But even that constitutional guarantee is addressed
with due regard for the needs and realities of prison
administration: “A prison official’s duty under the Eighth
Amendment is to ensure ‘“reasonable safety,”’ a standard
that incorporates due regard for prison officials’ ‘unenviable
task of keeping dangerous men in safe custody under
humane conditions.”” Farmer, 511 U.S. at 844-45 (quoting
Helling v. McKinney, 509 U.S. 25, 33 (1993) and Spain v.
Procunier, 600 F.2d 189, 193 (9th Cir. 1979) (Kennedy, J.)
(citations omitted)). That is why the standard of liability
under that amendment is the “more blameworthy” (Farmer,
511 U.S. at 835), “heightened” (Corr. Servs. Co. v. Malesko,
534 U.S. 61, 73 (2001)) standard of “deliberate
indifference.”

In sum: Claims directed to a disabled inmate’s access to
public services, programs, and activities would be subject to
the most relaxed standard of constitutional review—the
rational-basis test. Accordingly, Congress would have to
have made the most substantial showing Of a pattern of state
constitutional violations in order to demonstrate that Title II
is a proportional and congruent remedy, and thus
“appropriate legislation” under §5. Cf Hibbs, 538 U.S. at
736. Congress did not make those findings, and it could not
have made those findings, as no such record existed.

Il. IN ENACTING TITLE II OF THE ADA, CON-
GRESS DID NOT IDENTIFY A HISTORY AND
PATTERN OF UNCONSTITUTIONAL DISCRIMI-
NATION BY THE STATES AGAINST DISABLED
STATE PRISON INMATES

“Congress’ § 5 authority is appropriately exercised only in
response to state transgressions.” Garrett, 531 U.S. at 368.
Thus, Congress cannot pass legislation that abrogates the
States’ Eleventh Amendment sovereign immunity without
identifying a “widespread and persisting” pattern of
unconstitutional discrimination requiring a federal remedy.
Fla. Prepaid, 527 U.S. at 645-46; see also Garrett, 531 US.

23

See generally Palmer, 468 U.S. at 526 (“Prisons, by
definition, are places of involuntary confinement of persons
who have a demonstrated proclivity for antisocial criminal,
and often violent, conduct. Inmates have necessarily shown
a lapse in ability to control and conform their behavior to the
legitimate standards of society ....”). Thus, the statements
of legislative intent found in the printed history of the ADA
demonstrate, if anything, a Congressional concern with
disabled persons in the “mainstream” of American society,
and not those who have been removed from that mainstream
society and incarcerated—just as the ADA legislative history
considered in Garrett demonstrated a Congress concerned
with “‘employment in the private sector,” and not state
employment. 531 U.S. at 371-72 (quoting H.R. Rep. No.
101-485, pt. 2, p. 28, reprinted in 1990 U.S.C.C.A.N. at 310)
(emphasis removed).

In perhaps the most telling instance of Petitioners’ scarce
support, the United States’ brief avers: “Congress further
heard that ‘jailers rational[ize] taking away [inmates’]
wheelchairs as a form of punishment as if that is different
than punishing prisoners by breaking their legs.’” (U.S. Br.
23). The cited testimony had nothing to do with prisons.
Instead, this quotation came from the testimony of Cindy
Miller, a disabled woman from Boston employed as a
“rehabilitation counselor.” See ADA: Joint Hearing on S.
2345, 100th Cong. 1190 (statement of Cindy Miller). Ms.
Miller’s congressional testimony was styled as “a day in my
diary of discrimination,” and she began that “diary” by
pointing out that to obtain the necessary assistance in getting
in and-out of bed, she lived—against her choice—with a
roommate to whom she offered free rent, because the
“personal care assistant rates of pay” were insufficient to
attract qualified persons to work as overnight attendants. /d.
She then spoke of her own fear of being “institutionalized”—
not in a state prison, but in an institution for the disabled.
Her references to “jailers’ and “inmates” were harsh
metaphors for disability-institution employees and patients:

24

I live in constant fear that the economics argument
subsidizing personal care assistants programs will be lost
and / will be institutionalized. Because independent living
is not a right to freedom for Americans with disabilities,
this is a realistic fear. But it will not be my choice.

As a rehabilitation counselor, | have seen these
institutions. The smell of human waste and detergent has
stuck in my throat. I have looked into the vegetative eyes
of its inmates and the sterile environments. I have heard
of the premature death rates and prevalence of pneumonia,
literally allowing them to rot in their beds.

1 have witnessed their jailers rational [sic] taking away
their wheelchairs as a form of punishment as if that is
different than punishing prisoners by breaking their legs.
I] have witnessed their jailers taking away their food as a
form of punishment, as if that is different than starvation.
I have witnessed their jailers talk about them in their third
person and leave them naked to the public as if that does
not strip them of their human dignity.

Id. (emphasis added).

Indeed, a computer-database search of the legislative
history of the ADA reveals several uses of this “prison”
metaphor, but only one reference to conditions in prisons.
That single reference is decidedly unhelpful to Petitioners.*

* A search of the “ADA-LH” (Americans With Disabilities Act
Legislative History) database on the Westlaw service, for documents
containing any of the terms “prison!,” “imprison!,” “eighth amendment,”
or “cruel and unusual punishment!,” returned only |7 references (none to
“eighth amendment” or “crue! and unusual punishment”). Almost half of
the 17 (eight) utilized the “imprisonment” metaphor to describe the
challenges faced by persons with disabilities. See, eg, ADA: Joint
Hearing on H.R. 2273, at 49 (statement of Joseph L. Rauh, Jr.) (“The
literal imprisonment of millions of disabled people because of an
inaccessible transit system is a national disgrace.”). Four more were
references to reports explaining that the definition of “disability” did not
extend to “having a prison record.” E.g., S. Rep. No. 101-116, at 22; H.
Rep. No. 101-485, pt. 2, at 52, reprinted in 1990 U.S.C.C.A.N. at 334;

25

Other Congressional Hearings and _ Reports.
Petitioners cite liberally to research and hearings placed
before Congress with respect to the Rehabilitation Act of
1973 (Pub. L. No. 93-112, 87 Stat. 394) and the Civil Rights
of Institutionalized Persons Act of 1980 (“CRIPA”) (Pub. L.
No. 96-247, 94 Stat. 349). (U.S. Br. 24-27; Goodman Br.
21, 23-25.) Both of these enactments took place over a
decade prior to the passage of the ADA.

Particularly with respect to the CRIPA—the Civil Rights
of Institutionalized Persons Act—it is hardly surprising that
Congressional hearings, task forces, and reports addressed
certain challenges faced by disabled prisoners (part of the
class of “institutionalized persons” covered by the Act).
Even so, the findings that led to beth CRIPA and the
Rehabilitation Act hardly support Petitioners’ abrogation
claim here. If anything, the more logical inference would be
that Congress thought it had already sufficiently addressed
any problem that might have existed with respect to the
provision of state services, programs, and activities to
incarcerated state prisoners.

Petitioners place additional reliance on a 1983 report of
the United States Commission on Civil Rights. (See U.S. Br.
20 n.13; Goodman Br. 25 (each citing U.S. Civil Rights
Commission, Accommodating the Spectrum of Individual
Abilities (1983) (the “1983 Report”)). This report, of course,
was not in any way specific to state prison services and
programs, but more generally addressed all areas in which

id, pt. 3, at 28, reprinted in 1990 U.S.C.C.A.N. at 451. The only
reference to actual prison conditions among these 17 was Senator Helms’
stated concern, in floor debates, that the ADA would require restaurants
to allow HIV-positive workers to be food handlers; Senator Helms noted
that the federa/ Bureau of Prisons had prohibited HIV-positive inmates
from engaging in any aspect of prison food service operations, and that
passage of the ADA would “let prisoners get along without having HIV
positive people preparing food,” but restaurants serving the public could
not follow the same practice. 136 Cong. Rec. $9527-02, $9535-36 (daily
ed. July 11, 1990).

26

the Commission determined disabled Americans faced issues
at that time. Appendix A to that report demonstrates this: It
listed the “Criminal Justice System” (an area that itself
included, but was scarcely limited to, state prisons) as one of
those.22 areas, which also included limits on participation in
the military, as well as restrictions on insurance. 1983
Report, Appendix A. Even putting aside the fact that the
1983 Report came seven years prior to the ADA'’s
enactment, it hardly constitutes a sufficient—let alone
sufficiently specific—record on which to base § 5 authority
for Petitioners’ claims.”

Petitioners similarly misplace reliance on the accounts
contained in the 1990 report entitled “Task Force on the
Rights and Empowerment of Americans with Disabilities,
From ADA to Empowerment” (the “Task Force Report”).
(U.S. Br. 20 n.12; Goodman Br. 25) In Garrett, the Court
dismissed the dissenting opinion’s reliance on this very
report, noting that it did not consist of legislative findings,
but of “unexamined, anecdotal accounts of ‘adverse,
disparate treatment by state officials,” which “were
submitted not directly to Congress but to the Task Force on
the Rights and Empowerment of Americans with
Disabilities, which made no findings on the subject of state
discrimination in employment.” 531 U.S. at 370-71. The
same can be said of the absence of findings on the subject of
state discrimination on the basis of disability in providing
services to incarcerated prisoners.

The United States calls attention to several other studies
evaluating the prevalence of mistreatment of disabled
prisoners. (U.S. Br. 22-23) There is, however, no evidence

* Goodman also notes that this Court cited the 1983 Report in Lane.
(Goodman Br. 25 (citing Lane, 541 U.S. at 527)) This does nothing to
help his cause, as Lane cited this report for the proposition that disabled
members of free society, not convicted prisoners, were being excluded
from “the particular services at issue in this case’’—access to the courts
541 U.S. at $27.

27

that Congress considered these studies—especially the one
that postdates the ADA by more than a decade (id at 22 &
n.16}—when it enacted the ADA. And even if one could
reasonably draw an inference that Congress had considered
such studies, Congress’s failure—in the face of those
studies—to mention state prisons specifically in the findings
undergirding Title Il of the ADA suggests a Congressional
judgment that no pervasive pattern of unconstitutional
discrimination with respect to the provision of services and
programs to disabled state prisoners had been documented or
detected. See, e.g, Garrett, 531 U.S. at 371-72.

In short, the assortment of studies sprinkled through
Petitioners’ briefs “fall{s} far short of even suggesting the
pattern of unconstitutional discrimination on which §5
legislation must be based.” Garrett, 531 U.S. at 370 (citing
cases).

C. Petitioners’ Reliance On Eighth Amendment
Decisions To Support Their Abrogation Claims Is
Without Merit

Both Petitioners urge that money damages under Title II
of the ADA should be viewed, inter alia, as an appropriate
remedy for a history of Eighth Amendment violations
inflicted by prisons upon disabled prisoners, in view of that
Amendment’s applicability to the States through the
Fourteenth Amendment’s Due Process Clause. (Goodman
Br. 14-16; U.S. Br. 21) This contention is meritless.

There is no basis for viewing Title I] of the ADA, an anti-
discrimination command, as any kind of remedy for Eighth
Amendment violations. The “by reason of . . . disability”
language of Title Il of the ADA plainly indicates that it is an
anti-discrimination statute for persons with disabilities,
requiring that the discrimination take place “because of” the
person's disability. Olmstead v. L.C. ex rel. Zimring, 527
U.S. 581, 597-98 & n.10 (1999); see 42 U.S.C. § 12132
(prohibiting exclusion of “qualified individual with a
disability” from or denial of services, programs, or activities

28

“by reason of such disability”); see generally Smith v. City of
Jackson, 125 §S. Ct. 1536, 1549-50 (2005) (O’Connor, J.,
concurring). Yet the Eighth Amendment’s Cruel and
Unusual Punishments Clause is not primarily an anti-
discrimination command, nor is it aimed just at the class of
prisoners with a disability.

While it is conceivable that a prison could discriminate
against disabled state prisoners by inflicting cruel and
unusual punishments upon them “by reason of” their
disability, there is quite obviously no pre-ADA record of
such discrimination—and certainly none so “widespread and
persisting,” Florida Prepaid, 527 U.S. at 645-46—to even
remotely support such a claim. The most that could possibly
be said of Petitioners’ collection of judicial decisions is that
a few of them involve Eighth Amendment claims where the
class of prisoners subjected to Eighth Amendment violations
included some prisoners with an arguable “disability.” But
that would not demonstrate (nor would it even suggest) that
these pre-ADA Eighth Amendment violations came about
“by reason of” those prisoners’ disabilities. See Section
II(D), below.

Moreover, it is difficult to imagine that Congress intended
to use Title II of the ADA to enlarge state prisoners’ rights to
sue state governments for money damages in Eighth
Amendment cases. Like so many of the modern Congresses,
the Congress that enacted the ADA was also concerned with
the overflow of prisoner suits that was clogging the
administration of justice in the federal district courts, and
which, in 1995, comprised over one-quarter of the federal
district courts’ dockets. See 141 Cong. Rec. $7256 (daily ed.
May 25, 1995) (statement of Sen. Kyl). This concern, which
continues today, was recognized only three Congresses later
in the Prison Litigation Reform Act of 1995, P.L. 104-134,
tit. VII, 42 U.S.C. § 1997e, which circumscribed the ability
of state prisoners to initiate and maintain federal litigation.

31

ADA, and therefore cannot constitute evidence of Congress’
review as a matter of objective fact.

Between them, Petitioners cite about 150 cases as
“evidence” of data they claim Congress considered when it
enacted the ADA in 1990. (U.S. Br. at Addendum A;
Goodman Br. at 28-36 nn. 14-26) But, as shown in the
Addendum to this brief, nearly two-thirds of those cited
cases date after 1990. Only 54 of these cases pre-date the
ADA. See Resps’ Addendum, Table VII. In fact, these 54
decisions hail from only 35 States (plus the District of
Columbia and Puerto Rico); 15 States are not even
represented. Even if Congress had considered all of these
pre-1990 cases—and there is no evidence that it did—their
paucity alone may be the single greatest impediment to
Petitioners’ efforts to demonstrate abrogation. Compare
Garrett, 531 U.S. at 370 (“Congress, in enacting the ADA,
found that ‘some 43,000,000 Americans have one or more
physical or mental disabilities.’ In 1990, the States alone
employed more than 4.5 million people. It is telling, we
think, that given these large numbers, Congress assembled
only such minimal evidence of unconstitutional state
discrimination in employment against the disabled.”)
(quoting 42 U.S.C. § 12101) (citation omitted).

Even so, those 54 pre-ADA decisions suffer from
additional problems that render even that fraction of
Petitioners’ cases not probative of Congressional authority to
abrogate States’ sovereign immunity in this precise area.

2. Most Of Petitioners’ Pre-ADA Cases Are
Facially Inapposite

As shown in the Addendum to this brief, the vast majority
of Petitioners’ 54 pre-ADA cases did not even involve
claims of discrimination against disabled state prisoners
under the Fourteenth Amendment. See Resps’ Addendum,
Table VII. To the contrary, most of Petitioners’ pre-1990
cases finding any kind of constitutional violation involve
complaints regarding general deficiencies in medical care,

32

psychiatric treatment or other prison conditions as applied to
all inmates, not just disabled inmates. See Resps’
Addendum, Tables I, III. These cases objectively fail to
establish Congressional concern with the type of intentional
discrimination against disabled state prison inmates (or even
the “deliberate indifference” of the Eighth Amendment) that
would be required to justify Title Il of the ADA as
appropriate § 5 legislation as applied to the class of cases
implicating the prison context. Garrett, 531 U.S. at 375
(Kennedy, J, concurring) (noting that “the failure to act or
the omission to remedy” is not typically “the purposeful and
intentional action required to make out a violation of the
Equal Protection Clause”); Hibbs, 538 U.S. at 751 (Kennedy,
J., dissenting) (similar); cf. Fla. Prepaid, 527 U.S. at 645
(noting that “the evidence before Congress suggested that
most state [patent] infringement was innocent or at worst
negligent”).

At the most general level, Petitioners’ selection of cases is
premised on several unwarranted assumptions. Included
among them are the assumption that all prisoners who need
medical or psychiatric care are “disabled” within the
meaning of the ADA, as well as the assumption that failing
to provide adequate medical or psychiatric treatment to a
prisoner in need of such treatment amounts to
unconstitutional discrimination even where other inmates
had no access to better care. A significant number of these
cases also highlight problems that Title II of the ADA would
not address. Conversely, other cases describe circumstances
in which a disabled inmate with ADA rights would have
relief that a non-disabled inmate facing exactly the same
unfavorable condition (e.g., lack of medical care) would not
have. Specifically, Petitioners’ pre-1990 cases are inapposite
to establish Congress’ authority in the following ways:

Prison Conditions Applicable To All Inmates. Twenty
of Petitioners’ 54 pre-ADA cases challenged—often through
class actions—conditions of the entire prison facility, and
thus applied equally to non-disabled inmates as well as

44

that the defendant’s state of mind was that of “deliberate
indifference” to the prisoner’s “serious medical needs.” See,
e.g., Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting
Rhodes v. Chapman, 452 U.S. 337, 342 (1981) and Estelle,
429 U.S. at 106)). Yet allowing a disabled prisoner to
enforce the Cruel and Unusual Punishments Clause through
Title II of the ADA would lighten his burden of proof, from
a “deliberate indifference”-to-serious-medical-needs
Standard to a simple denial-of-services standard. See 42
U.S.C. § 12132 (“[N]o qualified individual with a disability
shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services .. .
of a public entity.”). What is more, only prisoners with a
“disability” within the meaning of the statute could enforce
the Cruel and Unusual Punishments Clause and obtain
money damages via the ADA; non-disabled prisoners
suffering cruel and unusual punishment could not. This
substantial expansion of constitutional rights, and the
simultaneous underinclusive-ness of the class of individuals
who could obtain the statute’s remedies, demonstrates the
statute’s lack of proportion and congruence.

Third, for essentially the same reasons set forth in Section
Il, above, and illuminated by the Appendix to this brief, there
was no evidence of “widespread and unconstitutional” cruel
and unusual punishments of disabled state prisoners meriting
a further federal remedy.

In sum, whether Title II of the ADA is evaluated with
reference to “the prison context” generally, or as a statute
seeking to remediate cruel and unusual punishments, that law
lacks the proportionality and congruity demanded by this
Court’s decisions.

45

CONCLUSION
For these reasons, the judgment of the court of appeals

should be affirmed.

GREGORY A. CASTANIAS
JONES DAY

51 Louisiana Avenue, N.W.
Washington, D.C. 20001
(202) 879-3939

JORDANA R. STERNBERG
JONES Day

1420 Peachtree Street, N.E.
Atlanta, GA 30309

(404) 521-3939

Respectfully submitted,

THURBERT E. BAKER
Attorney General
KATHLEEN M. PACIOUS
Deputy Attorney General
JOHN C. JONES
Senior Assistant Attorney
General
DAVID E. LANGFORD*
Assistant Attorney General
STATE OF GEORGIA
Georgia Department of Law
40 Capitol Square SW
Atlanta, GA 30334
(404) 463-8850

*Counsel of Record

33

disabled ones. See Resps’ Addendum, Table |. For
example, Baila v. Idaho State Board of Corrections, 595 F.
Supp. 1558, 1561 (D. Idaho 1984), and Battle v. Anderson,
376 F. Supp. 402, 415 (E.D. Okla. 1974), aff'd in part, rev'd
in part, 993 F.2d 1551 (10th Cir. 1993), challenged certain
prison conditions as they applied to the entire population.
The_plaintiffs in Balla alleged deficiencies in, inter alia, the
prisoners’ nutrition, clothing, and medical care. In ordering
relief, the court mentioned that three inmates had special
dietary requirements as a result of their specific medical
conditions, and ordered those needs to be met. 595 F. Supp.
at 1575, 1583. In Battle, the plaintiffs alleged that their
prison administrators mistreated the inmates through acts
such as racial segregation, prohibitions on _ religious
congregation, punishment with chemical agents, refusal to
provide meals that adhered to religious beliefs, and
restrictions on reading materials, and they complained that
their medical care, including psychiatric care, was
inadequate. 376 F. Supp. at 415. Noting that medical and
psychiatric care was deficient and posed a threat to the health
and well-being of the “inmate population,” the court ordered
improvements. /d. at 416, 434. Neither court found that any
prisoner suffered discrimination or any kind of Fourteenth
Amendment violation as a result of a disability, nor did
either court even mention any such allegation. In addition to
Balla and Battle, 18 more of Petitioners’ presADA cases
involve facts inapposite for the same reasons. See Resps’
Addendum, Table I.

Facility-Wide Deficiencies In Medical Or Psychiatric
Care. Nineteen of Petitioners’ pre-ADA cases involved
claims regarding inadequate medical or psychiatric care for
the entire facility. See Resps’ Addendum, Table Ill. Even
under the unwarranted assumption that all inmates who need
such treatment are perforce “disabled,” it would not follow
that such an -omission would be _ unconstitutional
discrimination prohibited by the Fourteenth Amendment.
See Garrett, 531 U.S. at 375 (Kennedy, J., concurring);

34

Hibbs, 538 U.S. at 751 (Kennedy, J., dissenting); Fla.
Prepaid, 527 U.S. at 645. Many of these cases would at
most demonstrate an adverse, but not deliberate, impact on
disabled persons. See City of Boerne, 521 U.S. at 530-31
(“In contrast to the record which confronted Congress and
the Judiciary in the voting rights cases, RFRA’s legislative
record lacks examples of modern instances of generally
applicable laws passed because of religious bigotry . . . It is
difficult to maintain that [these laws of general applicability]
are examples of legislation enacted or enforced due to
animus or hostility to the burdened religious practices or that
they indicate some widespread pattern of religious
discrimination in this country.” (citations omitted; emphasis
added)).

No Ruling On The Merits. Fourteen of Petitioners’ pre-
ADA cases did not even decide the merits of Plaintiffs’
Constitutional claims. See Resps’ Addendum, Table II. For
example, 6 of Petitioners’ pre-ADA cases are preliminary-
injunction rulings, which by definition precede any
determination of the merits of the constitutional claims. /d.
In Duran v. Anaya, 642 F. Supp. 510 (D.N.M. 1986), the
court’s preii:ainary injunction prohibited scheduled staffing
reductions that, if permitted, would render the facility
“unable to meet their constitutional obligation to provide .. .
medical care, dental care and psychiatric care’—therefore
preventing any constitutional violation from occurring. /d. at
525. Similarly, in Eng v. Smith, 849 F.2d 80 (2d Cir. 1988),
the court found no abuse of discretion in the trial court’s
grant of preliminary injunctive relief in connection with
class-action claims of systemic deficiencies in the state
prison’s mental-health-care system, but specifically noted
that “we do not decide at this stage whether defendants’
actions actually met the ‘deliberate indifference’ standard .. .
.” Id. at 82. Likewise, 8 other cases involved reversals or
denials of summary-judgment motions, or were remanded
for further proceedings for other reasons. See Resps’

35

Addendum, Table II. These cases obviously are not
particularly probative of actual constitutional violations.

Non-State Prison Facilities. Sixteen of Petitioners’ pre-
ADA cases involved non-state facilities such as county jails.
See Resps’ Addendum, Table V. Two of these cases actually
involved federal prisons, which obviously cannot establish a
pattern of intentional discrimination by the States. As this
Court held in Garrett, “units of local government. . . are
subject to private claims for damages under the ADA
without Congress’ ever having to rely on §5 of the
Fourteenth Amendment to render them so. It would make no
sense to consider constitutional violations on their part, as
well as by the States themselves, when only the States are
the beneficiaries of the Eleventh Amendment.” Garrett, 531
U.S. at 369 (citations omitted). See also Lane, 541 U.S. at
542 (Rehnquist, C. J., dissenting) (“Even if it were proper to
consider this broader category of evidence, much of it does
not concern unconstitutional action by the States. The bulk
of the Court’s evidence concerns discrimination by non-state
governments, rather than the States themselves. We have
repeatedly held that such evidence is irrelevant to the inquiry
whether Congress has_ validly. abrogated Eleventh
Amendment immunity, a privilege enjoyed only by the
sovereign States.” (footnote omitted; emphasis in original)).
Even though local jailing authorities may, under some states’
law, be regarded as “arms of the state” for Eleventh
Amendment immunity purposes (cf Goodman Br. 21-22 n.7,
citing Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en
banc)), the fact remains that in 1990, when Congress enacted
Title II of the ADA, “most courts and litigants assumed that
county sheriffs ... were indeed county officials for purposes
of § 1983 litigation,” and that only this Court’s 1997
decision in McMillian v. Monroe County, 520 U.S. 781
(1997), spurred “a wave of litigation in which sheriffs have
contested their status as local officials.” Karen M. Blum,
Support Your Local Sheriff: Suing Sheriffs Under § 1983, 34
STETSON L. REV. 623, 625-26 (2005).

+ —————_—

~

36

Cases Where Non-Disabled Prisoners Claim The Same
Problems Alleged By Petitioner Goodman. Twelve of
Petitioners’ pre-ADA cases involve circumstances where
non-disabled inmates were subjected to conditions like those
Goodman challenges, such as extremely constrained physical
space, lack of cleaning products or assistance, insufficient
toilet facilities, and exposure to human waste. See Resps’
Addendum, Table IV. Aside from the paucity of these cases,
this demonstrates—as shown in Section II]—that a
congressional response of granting a remedy only to disabled
prisoners lacks both congruence and proportionality.

3. The Few Judicial Decisions Remaining Are
Too Isolated And Sporadic To Demonstrate
A “Widespread And Persisting” Pattern Of
Unconstitutional Treatment Of Disabled
State Prisoners

What is left of Petitioners’ pre-ADA cases is few in
number—11—and probative of little with any relevance to
this case. See Resps’ Addendum, Table VI. Even if one
could reasonably reach the conclusion that these 11 cases
had been specifically considered by Congress, this is far
from sufficient to demonstrate a “widespread and persisting”
problem in need of a federal remedy. Fla. Prepaid, 527 U.S.
at 645-46.

It would be inappropriate to sustain Petitioners’
abrogation claim based on this post hoc assemblage of a few
judicial decisions, particularly when there is no evidence that
Congress ever actually considered them. /d. at 647 (“The
examples of States avoiding liability for patent infringement
by pleading sovereign immunity in a federal-court patent
action are scarce enough, but any plausible argument that
such action on the part of the State deprived patentees of
property and left them without a remedy under state law is
scarcer still.”). See also Garrett, 531 U.S. at 369-70
(“Respondents in their brief cite half a dozen examples from
the record that did involve States... Several of these

37

incidents undoubtedly evidence an unwillingness on the part
of state officials to make the sort of accommodations for the
disabled required by the ADA... But even if it were to be
determined that each incident upon fuller examination
showed unconstitutional action on the part of the State, these
incidents taken together fall far short of even suggesting the
pattern of unconstitutional discrimination upon which § 5
legislation must be based.”); id. at 371 n. 7 (“Only a small
fraction of the anecdotes Justice BREYER identifies in his
Appendix C relate to state discrimination against the
disabled in employment. At most, somewhere around 50 of
these allegations describe conduct that could conceivably
amount to constitutional violations by the States, and most of
them are so general and brief that no firm conclusion can be
drawn.”); id. at 375-76 (Kennedy, J., concurring) (“If the
States had been transgressing the Fourteenth Amendment by
their mistreatment or lack of concern for those with
impairments, one would have expected to find in decisions
of the courts of the States and also the courts of the United
States extensive litigation and discussion of the
Constitutional violations. This confirming judicial
documentation does not exist. That there is a new
awareness, a new consciousness, a new commitment to
better treatment of those disadvantaged by mental or
physical impairments does not establish that an absence of
state statutory correctives was a constitutional violation.”).'°

' See also Hibbs, 538 U.S. at 754-55 (Kennedy, J., dissenting) (“The
paucity of evidence to support the case the Court tries to make
demonstrates that Congress was not responding with a congruent and
proportional remedy to a perceived course of unconstitutional conduct.
Instead, it enacted as substantive entitlement program of its own. If
Congress had been concerned about different treatment of men and
women with respect to family leave, a congruent remedy would have
sought to ensure the benefits of any leave program enacted by a State are
available to men and women on an equal basis.”); Lane, 541 U.S. at 547-
48 (Rehnquist, C. J., dissenting) (“The barren record here should likewise
be fatal to the majority’s holding that Title II is valid legislation
enforcing due process rights that involve access to the courts. This

38

In sum, Petitioners’ collection of largely inapposite cases
fails to demonstrate the existence of—let alone
Congressional consideration of—a serious, widespread, and
pervasive problem involving disabled state prison inmates
and their access to state programs, services, or activities, and
certainly none meriting the federal remedy prescribed by
Title Il of the ADA.

I.TITLE If OF THE ADA IS NOT A PROPOR-
TIONATE OR CONGRUENT REMEDY UNDER
SECTION 5

Even if the condition of relevant State misconduct could
somehow be established in this case—and Section II, above,
demonstrates that it cannot—Title II of the ADA
independently fails the requirement that “the remedy
imposed by Congress must be congruent and proportional to
the targeted violation.” Garrett, 531 U.S. at 374. See also
Civil Rights Cases, 109 U.S. 3, 13 (1883) (Section 5 requires
that the legislation be “adapted to the mischief and wrong
which the [Fourteenth] [A]mendment was intended to
provide against”). |The congruence-and-proportionality
requirement ensures proper respect for “the line between
measures that remedy or prevent unconstitutional actions and
measures that make a substantive change in the governing
law.” City of Boerne, 521 U.S. at 519. As applied to the
class of cases involving disabled state prisoners’ access to
programs, services, and activities, Title Il is “so out of
proportion to a supposed remedial or preventive object that it
cannot be understood as responsive to, or designed to
prevent, unconstitutional behavior.” /d. at 532.

conclusion gains even more support when Title II’s nonexistent record of
constitutional violations is compared with legislation that we have
sustained as valid § 5 enforcement legislation. ... Accordingly, Title Il
can only be understood as a congressional attempt to ‘rewrite the
Fourteenth Amendment law laid down by this court,’ rather than a
legitimate effort to remedy or prevent state violations of that
amendment.” (citations omitted)).

39

Title II of the ADA, as applied to state prisons, bears no
markings of the sort of calibrated remedial legislation that
could satisfy the §5 requirement of “enforce[ment] by
appropriate legislation.” To begin, Title II contains not a
word suggesting that any of its remedial provisions were
directed specifically to the context of state prisons. Quite the
contrary: Title [I contains two parts—Part A, which is
entitled “Prohibition Against Discrimination and Other
Generally Applicable Provisions” (42 U.S.C. §§ 12131-
12134) (emphasis added), and Part B, entitled “Actions
Applicable to Public Transportation Provided by Public
Entities Considered Discriminatory” (42 U.S.C. §§ 12141-
12165). Viewed in that light, it is difficult to understand Part
A’s generalized remedial provisions “as responsive to, or
designed to prevent unconstitutional behavior” as applied to
state prisons and prisoners. Garrett, 521 U.S. at 532. Its
“indiscriminate scope” confirms that it is anything but a
proportionate response to a constitutional problem in state
prisons. Kimel, 528 U.S. at 91.

Indeed, it is quite clear that in the ADA generally, and in
Title II in particular, Congress was in fact changing the law
to provide disabled persons with substantially greater legal
rights and remedies than the Constitution afforded them: In
the ADA’s statement of findings and purpose, Congress
declared that “individuals with disabilities are a discrete and
insular minority... relegated to a position of political
powerlessness in our society, based on characteristics that
are beyond the control of such individuals and. . . not truly
indicative of the individual ability of such individuals to
participate in, and contribute to, society.” 42 U.S.C.
§ 12101(a)(7). Congress’s use of the “discrete and insular
‘minority” terminology, of course, is a direct quotation of the
Court’s famous footnote 4 in United States v. Carolene
Products Co., 304 U.S. 144, 152-53 n.4 (1938), which made
the case for “heightened scrutiny” of classifications
burdening such “discrete and insular” groups; and
Congress’s further reference to “characteristics that are

40

... not truly indicative of the individual ability of such
individuals to participate in, and contribute to, society”
echoes the Court’s rationale for viewing classification of
“quasi-suspect” classes with similarly searching scrutiny.
Mathews v. Lucas, 427 U.S. 495, 505 (1976) (illegitimacy
has “no relation to the individual’s ability to participate in
and contribute to society”).

Congress’s intent to treat the disabled as at least a quasi-
suspect class with respect to access to programs and services
is clear. But that goes far beyond the Constitution’s
requirements, which treat the disabled as a non-suspect class
entitled only to rational-basis constitutional scrutiny, and
which further view prison officials’ actions and
classifications with significant deference. City of Cleburne,
supra; Turner, supra. And it goes far beyond any such rights
accorded by the Eighth Amendment, which, it bears
repeating, requires “deliberate” indifference, not merely a
denial of access.

A carefully calibrated remedy applicable to the
constitutional claims of disabled state prisoners would have
to take into account the significant deference to prison
administration, and would further have to recognize the
significant differences in the substance and scope of
constitutional rights possessed by state prisoners—but there
is not a hint of that anywhere in the statute. The ADA is thus
poicy-based social-advancement legislation that seeks to
give the disabled substantially greater rights of access to
public services, programs, and activities than any provision
of the Constitution would. That is perfectly appropriate for
Congress to do when it makes a generally applicable law,
and it is indeed laudatory, but more is required before such
laws of general application can be applied to permit access to
a sovereign state’s treasury. The careful calibration of
remedy to wrong that would be required to allow state
prisoners to bring Title II suits for money damages is just not

present here.

4)

The United States nonetheless claims that Title Il’s
requirements of nondiscriminatory access, reasonable
accommodations, and reasonable modifications are all
“sensitive to the unique security needs in prisons and tailored
to the constitutional problems it remedies.” (U.S. Br. 42)
That is not so. As we have shown, there is no evidence
whatsoever that Congress in passing the ADA was intending
to be “sensitive” to the States’ substantial interest in prison
administration, or that Title Il was somehow specially
“tailored” to prisons. Rather, Congress addressed most of
Title I] through “[gjenerally [a]pplicable [p]rovisions.”
Unsurprisingly, there is not a single provision in Title II that
even attempts to take into account the “unique circumstance
of incarceration,” McNeil v. United States, 508 U.S. 106, 113
(1993), or “the peculiar and restrictive circumstances of
penal confinement.” Jones v. N.C. Prisoners’ Union, 433
U.S. at 125.

Apparently recognizing the serious risk that Title Il’s
provisions will not survive the Court’s prescribed
congruence-and-proportionality analysis, Petitioner
Goodman offers an alternative, fallback argument.
Goodman claims that Title Il is validly applied to allow
money damages against states at least “as applied to cases
where the state actually violated a plaintiff's constitutional
rights” (Goodman Br. 45), such that it should at a minimum
be sustained as an appropriate statutory remedy for
Goodman's constitutional claims under the Cruel and
Unusual Punishments Clause.

There are several problems with this fallback argument.
First, it is not “fairly included” within the question presented
by Goodman, which asks whether Congress validly
abrogated state sovereign immunity “for suits by inmates
with disabilities challenging discrimination by state-operated
prisons.” Goodman Br. i (emphasis added); see S. Ct. R.
14.1(a) (“Only the questions set out in the petition, or fairly
included therein, will be considered by the Court.”).
Goodman's claim of “deliberate indifference” to injury or

42

illness is not a disability-based “discrimination” claim, but a
claim that sounds in individualized treatment. See, e.g,
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

Second, Goodman’s proposed approach is inconsistent
with the approach taken by this Court in Lane, where
abrogation was sustained “as it applies to the class of cases
implicating the accessibility of judicial services.” 541 U.S.
at 531. While that is undoubtedly why Petitioners have
framed the issue in this Court as one dealing with the
application of Title II “in the prison context” (see, e.g.,
Goodman Br. 14; see also id. at 12 (“in the class of cases
implicating the accessibility of prisons and discrimination
against inmates with disabilities”); U.S. Br. 9), Goodman’s
attempt to redefine the analysis as one appropriately done not
just on a “class of cases,” but on a case-by-case basis, is
inconsistent with Lane, and inconsistent with the way in
which Congress legislates, which is decidedly not on a
“case-by-case” basis.

Goodman nonetheless claims (Goodman Br. 47) that his
alternative case-by-case approach is supported by United
States v. Raines, 362 US. 17 (1960), and Griffin v.
Breckenridge, 403 U.S. 88 (1966). It is not. In Raines, the
defendants were state actors who claimed that the Civil
Rights Act of 1957, 42 U.S.C. §1971, could not
constitutionally be applied to them because subsection (c) of
that statute reached beyond the Constitution and applied to
“any person” who engaged (or was reasonably thought about
to engage) in acts which would deprive any person of one of
the rights guaranteed by subsection (a) of that act, and not
just state actors. 362 U.S. at 19-20. The Court held that the
state-actor defendants could not facially attack § 1971 on the
ground that applying it to non-state-actor defendants
exceeded the congressional power under § 2 of the Fifteenth
Amendment (which contains the same “appropriate
legislation” language as § 5 of the Fourteenth Amendment).
Id. at 24-25. That holding was an unexceptional application
of the rule that “facial” challenges to statutes are almost

43

never appropriate. See Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 501-02 (1985) (explaining the holding of
Raines in this fashion); United States v. Booker, 125 S. Ct.
738, 774 n.1 (2005) (Stevens, J., dissenting in part) (similar).
Here, by contrast, there is no place for application of the
principle that “a litigant may only assert his own
constitutional rights or immunities,” Raines, 362 U.S. at 22,
as it is the State of Georgia, the Georgia State Prison, and the
prison’s officials and employees who are invoking the
constitutional objection in this case.''

To the extent that Raines is at all instructive in this case, it
only serves to demonstrate why Title II of the ADA is not a
congruent or proportional congressional response to claims
of cruel and unusual punishment. In Raines, subsection —
(a) of the challenged statute guaranteed the right to vote
“without distinction of race, color, or previous condition of
servitude.” That is precisely the guarantee of § 1 of the
Fifteenth Amendment (“The right of citizens of the United
States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous
condition of servitude.”), so the rights protected by
subsection (a) of the statute were perfectly congruent with
the constitutional right.

But applying the ADA to enforce the Eighth
Amendment's Cruel and Unusual Punishments Clause would
be wildly incongruent and disproportionate to even that
constitutional right. This Court’s precedents require a
prisoner claiming cruel and unusual punishment to prove an
objective component—that the defendant’s conduct
objectively rises to the level of a constitutional violation by
depriving the prisoner of the “minimal civilized measure of
life’s necessities”"—and a subjective component, establishing

'' Griffin v. Breckenridge, 403 U.S. 88 (1971) is to the same effect.
Griffin cited Raines as an example of a case that had “firmly rejected” the
Court's ancient “severability rule that required invalidation of an entire
statute if any part of it was unconstitutionally overbroad.” /d at 104.

TABLE |

Cases Challenging General Prison Conditions

Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558,
1569 (D. Idaho 1984)

Found deficiencies in nutrition, medical care,
psychiatric care, and adequacy of clothing. /d. at
1575-78. Also found due process violations in
connection with disciplinary procedures. /d at 1582.

Battle v. Anderson, 376 F. Supp. 402, 415 (E.D. Okl.
1974)

Prison conditions post-riot. Guards used mace and
tear gas for discipline. /d. at 413-15, 423. Court
found “systemic medical deficiencies.” /d. at 416,
424. Plaintiffs claimed, inter alia, that prison failed to
provide adequate law library, denied opportunity for
religious gatherings, refused to provide meals that
adhered to religious beliefs, and restricted reading
materials. /d at 407-08.

Cody v. Hilliard, 599 F. Supp. 1025, 1058-59 (D.S.D.
1984), aff'd, 799 F.2d 447 (8th Cir. 1986), rev'd in
part, 830 F.2d 912 (8th Cir. 1987) (en banc)

“The plaintiff class challenges the constitutionality
under the first, fifth, sixth, eighth and fourteenth
amendments to the United States Constitution of
numerous conditions and practices of confinement.”
599 F. Supp. at 1026. Plaintiffs complained about fire |
protection, ventilation, heating, lack of hot water,
lighting, lack of medical and dental care, inadequate
mental health care, double-celling, improper milk
pasteurization, improper food storage. and various |
other conditions. /d. at 1029.

4a

Cases Challenging General Prison Conditions

11.

Negron v. Preiser, 382 F. Supp. 535 (S.D.N.Y. 1974)

Conditions applied universally within mental
institution maintained by department of correction—
class action challenging conditions of confinement at
Mattewan State Hospital, New York. /d. at 537.

12.

Nelson v. Collins, 455 F. Supp. 727 (D. Md. 1978)

Class action brought by entire prison population,
consisting of convicted felons who had committed
“the most serious crimes.” /d. at 728.

13.

Newman v. Alabama, 349 F. Supp. 278, 284 (M.D.
Ala. 1972)

“There is a degree of neglect of basic medical needs of
prisoners that could justly be called ‘barbarous’ and
‘shocking to the conscience.’” /d. at 281.

14.

Palmigiano v. Garrahy, 443 F. Supp. 956, 975-76
(D.R.1. 1977)

“Together with the other unsanitary and dangerous
conditions aiready detailed . . . [t]he grossly
inadequate system of medical care, including
psychiatric care, afforded inmates is part of the
intolerable totality of conditions at the ACL which, as
the Court has found, violates inmates’ Eighth and
Fourteenth Amendment rights.” /d. at 983.

|

-

15.

Ramos v. Lamm, 639 F.2d 559, 577-78 (10th Cir.
1980)

Class action on behalf of “all persons who are now or
in the future may be incarcerated in the maximum
security unit of the Colorado State Penitentiary at
Canon City, Colorado.” /d. at 562.

Sa

Cases Challenging General Prison Conditions

+

16.| Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980)

Class action on behalf of all past, present, and future
inmates of the Texas Department of Corrections
(25,575 inmates). /d. at 1274-75. Plaintiffs alleged
“systemic constitutional violations” including “a
variety of conditions and practices in TDC prisons
violate the eighth and fourteenth amendments to the
Constitution of the United States . . . [such as]
overcrowding, security and supervision, health care,
discipline, access to the courts, and other genera!
conditions of confinement.” /d. at 1276-77.

17.| Sykes v. Kreiger, 451 F. Supp. 421, 426 (N.D. Ohio
1975)

Inmates sought wide variety of rights, including
counsel-substitute for disciplinary hearings, mail
rights in isolation, and additional rights in connection
with visitation and telephone calls. /d. at 423.

18.| Tillery v. Owens, 719 F. Supp. 1256, 1302-03 (W.D.
Pa. 1989), aff'd, 907 F.2d 418 (3d Cir. 1990)

“[W]e find that nearly every aspect of SCIP
inadequate, falling far below constitutional standards.
In fact... we might very well order that SCIP be

| closed immediately; it is an overcrowded, unsanitary,
and understaffed fire trap.” 719 F. Supp. at 1259.

19. Wellman v. Faulkner, 715 F.2d 269, 272-73 (7th Cir.
| 1983)
| Court found “evidence of general systemic
|, deficiencies to establish that there is deliberate
|_| indifference to serious medical needs . . .” and
| | deficient psychiatric care. /d. at 272.

6a

Cases Challenging General Prison Conditions

20.

Williams v. Edwards, 547 F.2d 1206, 1217 (Sth Cir.
1977)

Original complaint alleged racial discrimination
against minority inmates and that “conditions at the
prison violated the eighth and fourteenth amendment
rights of the prison population as a whole.” /d. at
1208. Affirmed district court finding that totality of
conditions violated Eighth Amendment. /d. at 1211.
Affirmed decision that level of medical care violated
Eighth Amendment and due process clause of the
Fourteenth Amendment. /d at 1218-19. Medical care
entirely deficient, e.g., pharmacist not trained or
licensed, dental clinic not inspected or accredited,
“filthy” emergency equipment, unsupervised inmates
performing sutures, physical therapy department
whirlpool occupied by fish being kept fresh prior to
eating them. /d. at 1215-19.

7a

TABLE II

Cases Not Determined On Their Merits

Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984)

No constitutional violation found; remanded for
determination after application of balancing test.

Bonner v. Arizona Dep’t of Corrs., 714 F. Supp. 420
(D. Ariz. 1989), on remand from Bonner v. Lewis,
857 F.2d 559 (9th Cir. 1988)

Denied defendant’s motion for summary judgment.

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988)
Reversed grant of summary judgment to defendant.

Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir.
1980)

Reversed summary judgment and remanded.

Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988)
_ Preliminary injunction.

t .

| 6.

==

——S OS eee

Duran v. Anaya, 642 F. Supp. 510 (D.N.M. 1986)
Preliminary injunction to prevent future constitutional —

Eng v. Smith, 849 F.2d 80 (2d Cir. 1988)

violation. |
an

|

|

Preliminary injunction.

8.

Langley v. Coughlin, 715 F. Supp. 522, 540
| (S.D.N.Y. 1989)

_ No decision on the merits—denial of summary

_ judgment. Court specifically noted that plaintiffs

_ would need to demonstrate facts to support their
| claims. dd. ai 560.

8a

Cases Not Determined On Their Merits

Lee v. McManus, 543 F. Supp. 386 (D. Kan. 1982)
Preliminary injunction.

10.

Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973)

Reversing grant of FED. R. Civ. P. 12(b)(6) motion to
dismiss.

11.

Maclin v. Freake, 650 F.2d 885, 889 (7th Cir. 1981)
Reversing summary judgment.

12.

Negron v. Preiser, 382 F. Supp. 535 (S.D.N.Y. 1974)

Preliminary injunction. “[T]he Court at this time
declines to hold that the conditions of the isolation
cells violate the Eight{}h] Amendment.” /d. at 543.

13.

Yarbaugh v. Roach, 736 F. Supp. 318 (D.D.C. 1990)

Granted preliminary injunction requiring adequate
medical treatment.

14.

Young v. Harris, 509 F. Supp. 1111, 1113 (S.D.N.Y.
1981)

Denied summary judgment to defendants.

9a
TABLE Ill

Cases That Conflate Universal Deficiencies
In Medical Or Psychiatric Care With
“Discrimination” On The Basis Of Disability

Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558,
1569 (D. Idaho 1984)

“Eighth Amendment violated where psychiatric care
at prison is ‘almost nonexistent.”” (U.S. Br. 20a-21a)
“State violated Eighth Amendment by providing
‘[l]ittle or no psychiatric care or assistance’ to inmates
with serious mental illnesses.” (Goodman Br. 30 n.15)

Battle v. Anderson, 376 F. Supp. 402, 415 (E.D. Okl.
1974)

“Though approximately one half of the average in-
patient population at the penitentiary is hospitalized
for psychiatric reasons, there is no professional
psychiatric staff available for treatment on a regular
basis. A visiting psychiatrist makes weekly visits
pursuant to an informal agreement, but he has not
assumed responsibility for the care of these patients.
| The only ‘treatment’ available at the penitentiary

| consists of temporary relief from ‘distress’ through

_ sedation.” (U.S. Br. 23a-24a) “[I|nadequate mental
| health care in state prison violated Eighth

| Amendment” (Goodman Br. 30 n.15)

10a

Cases That Conflate Universal Deficiencies
In Medical Or Psychiatric Care With
“Discrimination” On The Basis Of Disability

Cody v. Hilliard, 599 F. Supp. 1025, 1058-59 (D.S.D.
1984), aff'd, 799 F.2d 447 (8th Cir. 1986), rev'd in
part, 830 F.2d 912 (8th Cir. 1987) (en banc)

Trial court found, and Eighth Circuit affirmed, finding
of no equal protection violation in connection with
protective custody inmates’ limited access to
opportunities because of legitimate balancing

“| against rational basis for restrictions. 599 F. Supp.
at 1055. Both courts initially held double-celling
there, as well as in general population, constitutionally
barred, id. at 1055; 799 F.2d at 450, but Eighth Circuit
reversed this holding on rehearing en banc, 830 F.2d
at 914, finding that “[t]he record in this case falls far
short of supporting the District Court’s conclusion .. .
{T]}here is no constitutional basis for the District
Court’s remedial order with respect to double-celling.”
Id.

Duran vy, Anaya, 642 F. Supp. 510 (D.N.M. 1986)

Court granted preliminary injunction to prevent
proposed staff reductions that would probably not
permit maintenance of minimal constitutional
standards in medical care, mental health care, and
security. Court concerned itself with prison’s
“obligation io provide a level of medical care that is
reasonably designed to meet the routine and
emergency health care needs of prisoners . . . with
respect to medical care, dental care, and psychiatric
care.” Jd. at 575. '

lla

Cases That Conflate Universal Deficiencies
In Medical Or Psychiatric Care With
“Discrimination” On The Basis Of Disability

Eng v. Smith, 849 F.2d 80 (2d Cir. 1988)

Affirming grant of preliminary injunction where
district court had sufficient evidence of “systemic
deficiencies in Attica’s mental health system” but
specifically declined to decide whether problems met
“deliberate indifference” standard. /d. at 82-83.

Inmates of Occoquan v. Barry, 717 F. Supp. 854
(D.D.C. 1989)

Class action claiming Eighth Amendment violations
and seeking declaratory and injunctive relief for
“excessive inmate population; deficiencies in
environmental health and safety; food services: fire
safety; medical and dental services; and mental health
care.” /d. at 854.

Inmates of the Allegheny County Jail v. Peirce, 487
F. Supp. 638 (W.D. Pa. 1980)

“{L]ack of mental health treatment being given to
mentally ill inmates in a county jail amounted to
deliberate indifference.” (U.S. Br. 22a)

James v. Wallace, 382 F. Supp. 1177 (M.D. Ala.
1974)

“{D]enying defendants’ motion to dismiss suit
alleging that prisoners had been refused the
opportunity to rehabilitate themselves, that prisoners
had been arbitrarily and capriciously assigned to units
which have no treatment facilities for mental or
physical disabilities, and that unreasonable restrictions
had been placed on prisoners’ visitation rights.” (U.S.
Br. 23a)

—J

l2a

~ Cases That Conflate Universal Deficiencies
In Medical Or Psychiatric Care With
“Discrimination” On The Basis Of Disability

Laaman v. Helgemoe, 437 F. Supp. 269 (D.N.H.
1977)

“[P]sychiatric treatment at prison was “basically
nonexistent’ in spite of the fact that as much as 40% of
inmate population needed intensive psychiatric
treatment.” (U.S. Br. 23a) Court specifically noted
that information about mental illness at this prison
“was based on national statistics concerning prison
populations in general and not upon specific
information concerning NHSP.” /d. at 276 n.1.

10.

Langley v. Coughlin, 715 F. Supp. 522, 540
(S.D.N.Y. 1989)

“{T]riable issues of fact existed as to whether there
had been inadequate medical care for the serious
needs of mentally ill inmates in violation of the Eighth
Amendment.” (U.S. Br. 19a)

Lightfoot v. Walker, 486 F. Supp. 504 (S.D. Il.
1980)

“[{H]ealth care system and environmental conditions
and practices at state prison violated Eighth and
Fourteenth Amendments where they led to
unnecessary suffering due to deliberate indifference
and misadministration of prison officials which was so
gross as to be deemed wilful.” (U.S. Br. 22a)

Mitchell v. Untreiner, 421 F. Supp. 886, 891 (N.D.
Fla. 1976)

“Eighth Amendment violation where no psychological
or psychiatric treatment available for inmates with
mental illness.” (Goodman Br. at 30 n.15)

l3a

Cases That Conflate Universal Deficiencies
In Medical Or Psychiatric Care With
“Discrimination” On The Basis Of Disability

13.

Nelson v. Collins, 455 F. Supp. 727 (D. Md. 1978)
“Eighth Amendment violated when prison confined
mentally ill inmates to isolation cells where they did

not have adequate access to needed psychiatric or
other medical treatment.” (U.S. Br. 22a)

14.

Newman v, Alabama, 349 F. Supp. 278, 284 (M.D.
Ala. 1972)

“The fate of those many prisoners who are mentally ill
or retarded deserves special mention. Mental illness
and mental retardation are the most prevalent medical
problems in the Alabama prison system. It is
estimated that approximately 10 percent of the inmates
are psychotic and another 60 percent are disturbed
enough to require treatment. To diagnose and treat
these almost 2400 inmates. the Board of Corrections
employs one clinical psychologist, who works one
afternoon each week at the {Medical and Diagnostic
Center]. There are no psychiatrists, social workers, or
counselors on the staff. Severe, and sometimes
dangerous, psychotics are regularly placed in the
general population. If they become violent, they are
removed to lockup cells which are not equipped with
restraints or padding and where they are unattended.
While some do obtain interviews with qualified
medical personnel and a few are eventually transferred
for treatment to a state mental hospital, the large
majority of mentally disturbed prisoners receive no
treatment whatsoever. It is tautological that such care
is constitutionally inadequate.” (U.S. Br. 24a-25a)
“Eighth Amendment viclation where ‘the large
majority of mentally disturbed inmates receive no
treatment whatsoever.” (Goodman Br. 30 n.15)

l4a

Cases That Conflate Universal Deficiencies
In Medical Or Psychiatric Care With
“Discrimination” On The Basis Of Disability

15.

Palmigiano v. Garrahy, 443 F. Supp. 956, 975-76
(D.R.1. 1977)

“The deliberate indifference displayed by the
defendants to the serious medical needs of drug
dependant inmates leads to unnecessary and inevitable
suffering.” (U.S. Br. 22a-23a) “[1]nadequate mental
health care in state prison violated Eighth
Amendment.” (Goodman Br. 30 n.15)

16.

Ramos v. Lamm, 639 F.2d 559, 577-78 (10th Cir.
1980)

“{D]enial of adequate mental health care, resulting in ©
suffering, suicides, and self mutilation by inmates
violated Eighth Amendment.” (Goodman Br. 30
n.15.)

17.

Tillery v. Owens, 719 F. Supp. 1256, 1302-03 (W.D.
Pa. 1989), aff'd, 907 F.2d 418 (3d Cir. 1990)

“[P]jrison officials showed deliberate indifference to
inmates’ medical, dental, and psychiatric care needs,
in violation of the Eighth Amendment, where, due to
overcrowding, officials had failed to provide adequate
staffing and equipment, and failed to maintain an
environment conducive to treatment of serious
medical illness.” (U.S. Br. 19a) “[I]nadequate care of
‘serious mental illness’ violated Eighth Amendment.”
(Goodman Br. 30 n.15)

gue

.| Wellman v. Faulkner, 715 F.2d 269, 272-73 (7th Cir.

1983)

{Denial of adequate psychiatric care to inmates with
mental illness violated Eighth Amendment.”
(Goodman Br. 30 n.15)

15a

Cases That Conflate Universal Deficiencies
In Medical Or Psychiatric Care With
“Discrimination” On The Basis Of Disability

19.

Williams v. Edwards, 547 F2d 1206, 1217 (Sth Cir.
1977)

“(Upholding finding of Eighth Amendment violations

where prison provided no mental health care despite
finding that 40% of inmates would benefit from
psychiatric treatment.” (U.S. Br. 8a)

2a

Cases Challenging General Prison Conditions

Duran v. Anaya, 642 F. Supp. 510 (D.N.M. 1986)
Court granted preliminary injunction to prevent
proposed staff reductions that would probably not
permit maintenance of minimal constitutional
standards in medical care, mental health care, and
security. /d. at 575.

Inmates of Occoquan v. Barry, 717 F. Supp. 854
(D.D.C. 1989)

Class action claiming Eighth Amendment violations
and seeking declaratory and injunctive relief for
“excessive inmate population; deficiencies in
environmental health and safety; food services; fire
safety; medical and dental services; and mental health
care.” /d. at 854.

James v. Wallace, 382 F. Supp. 1177 (M.D. Ala.
1974)

Class plaintiffs sought declaratory and injunctive
relief for prison conditions without adequate
treatment, reform, or rehabilitation, claiming this
violated their rights under the Eighth and Fourteenth
Amendments. /d. at 1178.

Kendrick v. Bland, 541 F. Supp. 21 (W.D. Ky. 1981)

Class action brought by prisoners at Kentucky State
Penitentiary regarding broad range of conditions,
necessitating broad consent decree in areas such as
crowding, vocational and educational programs, food
service, due process for disciplinary procedures,
religion, inmate mail, access to the courts, medical and
mental health services and racial discrimination. /d. at

| 22, 27-49.

3a

Cases Challenging General Prison Conditions

Laaman v. Helgemoe, 437 F. Supp. 269 (D.N.H.
1977)

Class action on behalf of entire prison population
detailing a multitude of deficiencies in conditions at
entire facility. Court entered a 16-category order
regarding aspects to be corrected. Found medical
services and facilities deficient as a whole, and found
totality of conditions deficient. /d. at 324-25.

Lightfoot v. Walker, 486 F. Supp. 504 (S.D. Ill.
1980)

Class action “for the benefit of all prisoners . . .
seeking declaratory and injunctive relief [] to stop
state prison officials from maintaining an inadequate
health care system for the prisoners... .” /d. at 505.
“Based on the totality of the evidence, the Court finds
that these inadequacies result in a health care delivery
system so wholly inadequate as to lead to unnecessary
suffering to the plaintiff class.” /d. at 525. “The
abysmal conditions throughout the housing units,
segregation, reception and classification, the medical
| unit and food services have continued to exist for

_ years and, indeed . . . have worsened in some respects
|e: ” Id. at 513.

ae

10.| Mitchell v. Untreiner, 421 F. Supp. 886, 891 (N.D.
| Fla, 1976)

| Court held that “the punitive and inhumane conditions

_of confinement within the Escambia County Jail

| clearly violate inmates’ rights under the First, Fourth,
Fifth, Sixth, Eighth, Ninth and Fourteenth

| Amendments... The totality of circumstance of

confinement... and the sub-human level of existence

| imposed there violates all civilized concepts of human
| rights.” /d. at 893, 896.

SS eee
‘

19a

Cases Involving Non-Disabled Inmates Su

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0078%3A15. Public record. Not legal advice.