Respondents Brief — Goodman v. Georgia

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 ~ighth

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 II 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 I] 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.

7

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) (gender-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

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 Il 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 Unusual 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 US. 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

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.’

1. 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 I] 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.

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 II, 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 discrimination “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 those objectives’—it was easier for Congress

to show a pattern of state constitutional violations.” Hibds,

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 Il of the ADA, as “applie[d]

to the class of cases implicating the ace ~ sbility of judicial

services,” 541 U.S. at 531, on the ground that it was a

congruent and proportional response to 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 1, 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 aceess 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

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 aisability-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 US. 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 obj« ct 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 II 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 T7urner 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 rational-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 Turner'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 not 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’);

Elliott 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, 551 (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 Western State Correctional Institution

because “[mJentally ill inmates who should be separated from the genera!

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. “(Prison 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 (7902).

The United States nonetheless claims that “[w]hile 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

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 I

is @ 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 Il 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 U.S.

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 II 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 II 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 cf 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 II, 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.” Jd. 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 fcr 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 to 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—-““idespread 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 ncar-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 I,

above—by definition removed from society’s mainstream.

2

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 i punishment as if that is different

than punishing prisor:.3 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, I have seen these

institutions. The smell of human waste and detergent has

stuck in my throat. | have looked into the vegetative eyes

of its inmates and the sterile environments. | 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.

1 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 scrvice, 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 I/nstitutionalized 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 both 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. S9527-02, $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—iet 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.

$41 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 II 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

Il(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.

29

Further, as amici State of Tennessee ef al. explain in their

brief, “inmates have longs, 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 moncy

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

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 A

psychiatric treatment or other prison conditions as applied to

all inmates, not just disabled inmates. See Resps’

Addendum, Tables I, Ill. 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

33

disabled ones. See Resps’ Addendum, Table |. For

example, Balla 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 “Jia, the

prisoners’ nutrition, clothing, and medical care. In o: Jering

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’ pre-ADA 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 preliminary 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 vy. 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 IIl—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 1] 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 orief 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 II of the ADA.

I.TITLE 11 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] [Almendment 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

... mot 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

policy-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 inaeed jaudatory, 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 II'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 II 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 alsodd. 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. ai 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.

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 I] 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

II, 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 LouisianaAvenue, 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

TABLE I

a

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, interalia, 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.

2a

Cases ChaWenging 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.” Jd. 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

8. | 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.

9. | 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

Freee & 7k

4

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

_Amendnrents . . . The totality of circumstance of

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

_ imposed there violates all civilized concepts of human |

rights.” Jd at 893, 896.

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 eonscience.”” /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 already detailed . . . [t]he grossly

inadequate system of medical care, including

psychiatric care, afforded inmates is part of the

intolerable totality of conditious at the ACL which, as

the Court has found, violates inmates’ Eighth and

Fourteenth Amendment rights.” /d. at 983.

—EE— neue

.| 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 general

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.

-— — -—o — --—-- - —

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 (5th 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 Il

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 vy. 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. of

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

Preliminary injunction.

=e stents 4

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

Preliminary injunction to prevent future constitutional

violation.

ee

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

Preliminary injunction.

8. | Langley v. Coughlin, 715 F. Supp. 522, 540 |

—_ ee a ee

(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. /d. at 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 III

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. Oki. _

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 to 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.” /d. 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

a medical and dental services; and mental health |

” Id. 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]jenying 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)

-_—— -/

12a

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 il! inmates in violation of the Eighth

Amendment.” (U.S. Br. 19a) Si

h-—-+

12. Mitchell v. Untreiner, 421 F. Supp. 886, 891 (N.D.

'

;

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

gross as to be deemed wilful.” (U.S. Br. 22a)

|

and misadministration of prison officials which was so |

| Fila. 1976)

‘

or psychiatric treatment available for inmates with

mental illness.” (Goodman Br. at 30 n.15)

| “Eighth Amendment violation where no psychological

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 approximatcly 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 violation 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|rison 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)

al

}

}

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

1983) :

| *{D]enial 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, $47 F2d 1206, 1217 (Sth Cir.

1977)

“(U]pholding 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)

l6a

TABLE IV

\

Cases Involving Non-Disabled Inmates Subjected To

Like Conditions

Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d

556 (1st Cir. 1988)

Space per prisoner was 15.5 sq. ft. /d. at 558.

Inmates of Occoquan v. Barry, 717 F. Supp. 854

(D.D.C. 1989)

Court found Eighth Amendment violations “in the

areas of sanitation, bathroom facilities, fire safety,

health care, and staffing.” /d. at 869. Bathrooms had

“slime oozing down the walls, stalactites hanging

from the ceiling, thick soap scum on the walls and

floors, and sewer water dripping into toilets,” and

“neither proper cleaning supplies nor cleaning tools

are provided.” /d. at 866. Finding “systemic”

problems with toilets, noting that “[n]umerous toilets

did not work and leaking pipes were found throughout

the... [fJacility.” /d. at 856.

Lightfoot v. Walker, 486 F. Supp. 504 (S.D. IIL.

1980)

Some prisoners double-celled with 18 to. 32 square

feet of space per inmate. /d. at 510.

17a

Cases Involving Non-Disabled Inmates Subjected To

Like Conditions

_ roaches are infested throughout the building.” /d. at

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 civilzed concepts of human

rights.” /d. at 893, 896. Jail so crowded that

“Mitchell, a fifteen year old juvenile male, had been . .

. incarcerated awaiting trial with other juvenile males

in a cell constructed to sleep three persons but which .

housed as many as eleven persons. . . One 8’ x 8’ four

bed cell sometimes housed as many as six inmates -

necessitating that two of them sleep on the floor next

to the toilet, sometimes without a mattress.” /d. at

889. “Indigent inmates are not provided with the

basic necessities of hygiene . . . Maintaining sanitation |

of the cells is left up to the inmates . . . Mice and

889.

Class action brought by entire prison population,

consisting of convicted felons who had committed

“the most serious crimes,” id. at 728, seeking

_ injunctive relief for overcrowding. Two inmates per

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

_ 44 sq. ft. cell; only one inmate could move around ata |

time. /d at 734. Court ordered defendants to seek |

solutions for overcrowding. found it violates Eighth

Amendment. /d. at 730-31. |

18a

Cases Involving Non-Disabled Inmates Subjected To

Like Conditions

Palmigiano v. Garrahy, 443 F. Supp. 956, 975-76

(D.R.1. 1977)

“Plumbing throughout Maximum is unsanitary,

inadequate, and an imminent danger to public health .

.. Only cold water is available in inmate cells . . .

Pipes are not equipped with vacuum breakers, creating

an ever-present danger that waste water will back up

into the fresh water system, even in the food

preparation area . . . The damp conditions in the

service areas are an ideal breeding ground for the

swarming cockroaches, which exist in all stages of

development . . . In the lavatories, the Court observed

large pools of standing water on the floor, and

apparently this is always present. There was a stench

of urine coming from this water. The shower areas

were filthy, covered with mold and mildew on the

floors and the walls. Glass, trash, and dead

cockroaches are everywhere on the shower floors.”

Id. at 961.

19a -

Cases Involving Non-Disabled Inmates Subjected To

Like Conditions

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

1980)

“[I]n some instances inmates are not provided with

enough cleaning supplies to allow them to adequately

clean their own cells.” /d at 570. Court found

inadequate ventilation, stagnant air, excessive mold

and fungus growth, and rodent and insect infestation.

Id. at 569. Upheld finding that “conditions in the food

service areas . . . fail to meet any known public health

standards.” /d. at 570-71. Upheld finding that “the

State has failed to reasonably protect inmates from

constant threats of violence and assaults from other

inmates and that this failure violates the inmates’

constitutional rights under the Eighth Amendment.”

Id. at 574.

—

2 eee

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

In typical cells, “[t}he usable, unobstructed space in

the cell amounts to an aera approximately seven and

| one-half feet long and three feet wide, totaling 22.5

square feet. So cramped is such a cell that two

standing persons must squeeze by each other to pass,

and an average man can stand in the center of the cell

and touch both walls with outstretched arms... .

|[]nmates assigned to these forty-five square foot TDC

cells can do litthe more than sit or lie on their bunks or

the floor, or use the sanitary facilities.” /d. at 1278.

“Occasionally, four- and sometimes even five-inmates

are assigned to one cell. ... With five inmates, three

must sleep on the floor, squeezed between the bars in

_ front and the toilet in the rear of the cell. Inmates

Id

have been compelled to endure this latter type of

confinement for days or even weeks atatime... .”

20a

Cases Involving Non-Disabled Inmates Subjected To

Like Conditions

Sykes v. Kreiger, 451 F. Supp. 421, 426 (N.D. Ohio

1975)

Crowding conditions provide between 13 and 35 sq.

ft. and 140.2 cubic ft. sleeping area per inmate. 451 F.

Supp. at 423. Found Sth and 14th Amendment

violations as a result of crowding. /d. at 424.

10.

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.” /d. at 1259. Inmates

double-celled in 8x7 cells. In some, “inmates. . . can

do little more than lie or sit on their bunks or desks.”

Id. at 1264.

11.

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

1983)

Found unconstitutional overcrowding. /d. at 274.

Some inmates spend 22-23'% hours per day in cells

with one 17 square feet of floor space. /d.

12.

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

1977)

Remanded crowding claims. /d at 1214-15. Normal

cell size was 6 x 8 feet in some cases. /d. at 1215.

2la

TABLE V

Cases Involving Federal Or Local Government

Facilities Rather Than State Facilities

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

Pretrial detainee in Salt Lake County Jail. /d. at 1389.

Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d

| 556 (1st Cir.)

Arecibo District Jail. /d. at 558. —

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

1980)

Pretrial detainee at St Louis County Jail. /d. at 1066.

Inmates of the Allegheny County Jail v. Peirce, 487

F. Supp. 638 (W.D. Pa. 1980)

Allegheny County Jail. /d. at 639.

Johnson v. Hardin County, 908 F.2d 1280, 1284 (6th

Cir. 1990)

Hardin County Detention Center, Kentucky. Court

specifically found evidence insufficient to show that

county, rather than individual officers, were

responsible for treatment. /d. at 1285-87.

LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987)

Federal Correctional Institution, Butner, North

Carolina. /d. at 389.

Leach v. Shelby County Sheriff, 891 F.2d 1241,

1243-44 (6th Cir. 1989)

Shelby County Jail. Tennessee; “Leach’s suit against

the Mayor and the Sheriff of Shelby County in their

official capacities is, therefore, essentially and for all

purposes, a suit against the County itself.” /d at 1241.

22a

Cases Involving Federal Or Local Government

Facilities Rather Than State Facilities

Littlefield v. Deland, 641 F.2d 729 (10th Cir. 1981)

Pretrial detainee at Salt Lake City County Jail. /d. at

730-31.

Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984)

County jails. /d. at 1454.

10.

Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989)

Inmate at a “county road prison” in Escambia County,

Florida. /d. at 785.

11.

Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985)

Pretrial detainee at Arecibo District Jail. /d at 257.

12.

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

Fla. 1976)

Escambia County Jail, Florida. /d. at 888.

13.

Mullen v. Smith, 738 F.2d 317, 318 (8th Cir. 1984)

Federal Correctional Institution in El Reno,

Oklahoma. /d. at 317.

14.

Sykes v. Kreiger, 451 F. Supp. 421, 426 (N.D. Ohio

1975)

Class action regarding variety of conditions in

Cuyahoga County Jail, brought on behalf of “persons

confined at Cuyahoga County Jail . . . for reasons

other than as punishment resulting from a conviction

of a criminal offense.” /d. at 423.

.| Thompson v. City of Portland, 620 F. Supp. 482,

485-87 (D. Me. 1985)

City of Portland police and county jail. /d. at 484-85.

a

23a

_ Cases Involving Federal Or Local Government

Facilities Rather Than State Facilities

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

D.C. Detention Facility Infirmary. /d. at 318.

24a

TABLE VI

Cases Cited By Petitioners And Not Included In

Foregoing Categories

1. | Burchett v. Bower, 355 F. Supp. 1278 ("). Ariz.

1973)

Summary judgment granting plaintiff a right to

hearing before terminating mental treatment and

transferring him back to prison. /d. at 1281.

2. | Delafose v. Manson, 385 F. Supp. 1115 (D. Conn.

1974)

“[P]rison practice of paying inmates who were

receiving treatment for physical ailments 38 cents per

day hospital pay while denying such payment to those

receiving treatment for mental ailments denied equal

protection to those receiving treatment for mental

illness.” (U.S. Br. 23a) (More similar to Title |

_ employment-discrimination claims.)

|

'

_ Suit regarding conditions in hospital that housed

convicted persons, persons incompetent to stand trial,

and civilly committed persons. /d at 1326. Some

wards had no toilets in cells and patients used chamber

pots when locked in. /d@ at 1327-29. Court held

violation of Eighth Amendment to lock a person in a

cell without a toilet and that Eighth Amendment

applied to hospital. /d at 1332-34. Court also found

substantive due process under Fourteenth Amendment

guarantees minimally adequate treatment to an

involuntarily confined person with mental illness. /d

at 1339. Found violation of substantive due process

rights of plaintiff class. /d at 1340.

3. | Flakes v. Percy, 511 F. Supp. 1325 (W.D. Wis. 1981) |

25a

Cases Cited By Petitioners And Not Included In

Foregoing Categories

Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973)

Enjoined vse of injections that induced vomiting as

punishment or disciplinary measure in State mental

institution. Population included civilly committed as

well as prisoners. /d. at 1138. Institution at issue was

the lowa Security Medical Facility, not a prison. /d.

(quoting lowa Code § 223.1 (1973)).

Maynard v. New Jersey, 719 F. Supp. 292 (D.N.J.

1989)

Court held Eleventh Amendment barred claim against

State for failure to diagnose and treat inmate with

AIDS. /d. at 296. Granted motion to dismiss as to

State but denied as to prison medical personnel. /d. at

296-97.

26a

Cases Cited By Petitioners And Not Included In

Foregoing Categories

Negron v. Ward, 458 F. Supp. 748 (S.D.N.Y. 1978)

Plaintiff-inmates were confined in the Mattewan State

Hospital for the Criminally Insane. /d. at 749.

Following an altercation, plaintiffs were removed

from their open ward and confined in a secluded ward.

Id. at 750. Jury determined that this ward transfer was

for the purpose of punishment. /d at 761. Nota

claim for discrimination. Plaintiffs were mentally ill

inmates housed among other mentally ill inmates who

complained at being isolated for disciplinary reasons.

Does not establish constitutional violations that

resulted from intentional discrimination on the basis of

disability—jury specifically found that inmates were

_ secluded for punishment. /d at 760-61. Plaintiffs

_ complained that they were deprived of their right to

treatment without due process. Jury found in favor of

plaintiffs and awarded compensatory damages. Court

_ denied motion for JNOV, explaining that plaintiffs

were entitled to a hearing before being deprived of

their treatment. /d at 755. Court held that plaintiffs

had an entitlement to psychiatric treatment unimpeded

by punitive confinement imposed without due process.

Id. at 759.

. | Parrish v. Johnson, 800 F.2d 600, 605 (6th Cir.

1986)

| Sixth Circuit reversed and remanded trial court’s

award of nominal damages for constitutional

violations for one prison guard's cruelty to two

paraplegic inmates. /d at 602. Declined to evaluate

one inmate's claim under Fourteenth Amendment

because “the Fourteenth Amendment provides a

_ prisoner with ao greater protection than the Eighth

' Amendment.” /d at 604 n.5.

a

27a

Cases Cited By Petitioners And Not Included In

Foregoing Categories

Sites v. McKenzie, 423 F. Supp. 1190 (N.D. W. Va.

1976)

Found due process safeguards in statute used to

commit prisoners to mental institution to be

“procedurally and substantively deficient in

comparison to the protections . . . under the civil

commitment statute.” /d at 1193. No rational basis

for distinguishing between civilly insane and

criminally insane. /d. at 1194. Equal protection

violation also found where prisoners in mental

hospitals did not have opportunity for parole at end of

sentence unless they had recovered. /d. at 1194-95.

Found violation of Rehabilitation Act where plaintiffs

were executed from vocational rehabilitation

opportunities because of mental illness. /d. at 1197.

Not a claim for disability discrimination. Here,

mentally disabled inmates were seeking treatment

equal to that of civilly committed mentally ill, or same

treatment as similarly disabled non-prisoners.

Talley v. Stephens, 247 F. Supp. 683, 687 (E.D. Ark.

| 1965)

Sought injunction against summary corporal

punishment. /d. at 685, 687. Inmates forced to

| harvest crops and subjected to summary whipping if

work insufficient by subjective and unrestrained

| judgment of assistant wardens. /d. at 687-88. Nota

claim for disability discrimination. Court noted that

_ two plaintiffs were “laboring under serious physical

handicaps [and] that their phy sical condition has been

| classified as ‘poor’ by the prison physician” (id. at

| 687) but did not specify further. Plaintiffs also

_ claimed denial of access to the courts (id. at 690-91)

| and denial of “needed medical attention: (id. at 685).

|

|

|

i

28a

Cases Cited By Petitioners And Not Included In

Foregoing Categories

10.

Vitek v. Jones, 445 U.S. 480 (1980)

Held that prisoners are entitled to due process

protections prior to involuntary transfer to mental

hospital. /d at 487-96. No claim that prisoners were

being transferred because of intentional, irrational

State discrimination.

11.

854-55. Court specifically found that psychiatric

Waldrop v. Evans, 681 F. Supp. 840 (M.D. Ga.

1988)

Mentally ill inmate rendered himself totally blind and

without testicles as a result of a series of self-

mutilatory acts while in prison. /d. at 844. Had seen a

series of prison doctors and mental health

professionals and had received treatment along the

way. /d. at 842-44. Court granted summary judgment

to nine individual defendants, including some health

professionals and the high-ranking prison

administrators that had been named, as to plaintiffs

deliberate indifference claims. /d. at 862. Denied

summary judgment to two of the doctors, finding fact

questions as to treatment decisions they made. /d at

staffing was adequate. /d. at 849. In explaining why

Commissioner and Superintendent could not be found |

deliberately indifferent, court specifically found that |

“GDCC was adequately staffed with medical |

professionals including three staff physicians and one |

consulting psychiatrist.” /d. at 849. |

29a

TABLE VII

Case Analysis

Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558,

1569 (D. Idaho 1984)

PETITIONERS’ DESCRIPTION—" Eighth Amendment

violated where psychiatric care at prison is “almost

nonexistent” (U.S. Br. 20a-21a.) “State violated Eighth

Amendment by providing ‘[I]ittle or no psychiatric care

or assistance’ to inmates with serious mental illnesses.”

(Goodman Br. 30 n.15)

COMMENTS—F ound deficiencies in nutrition, medical

jcare, psychiatric care, and adequacy of clothing. 595 F.

Supp. at 1575-78. Also found due process violations in

connection with procedures for disciplinary procedures.

/d. at 1582. Noted that three individuals had medical

conditions that resulted in special dietary requirements

that were not being met. /d. at 1565. Court ordered

these needs to be met. /d. at 1574-75.

30a

Case Analysis

Battle v. Anderson, 376 F. Supp. 402, 415 (E.D. OKI.

1974) '

PETITIONERS’ DESCRIPTION—” 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)

COMMENTS—Prison conditions post-riot. Guards

used mace and tear gas for discipline. 376 F. Supp. at

413-15, 423. Court found “systemic medical

deficiencies.” /d. at 416. 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. Court

denied monetary damages. /d at 420.

3la

Case Analysis

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

PETITIONERS’ DESCRIPTION—"{G]enuine issue of

material fact as to whether an emergency existed and as

to whether forcible medication for an indefinite period

was an exaggerated response, where pretrial detainee

claimed he was forced to take antipsychotic drug

thorazine against his will” (U.S. Br. 7a)

COMMENTS—Hallucinating inmate first demanded—

and received—Thorazine, then after taking it

voluntarily for two months, refused it. 744 F.2d at

1389-90. Jail psychiatrist forced it for purportedly

medical reasons. Plaintiff claimed Fourteenth

Amendment liberty interest in avoiding forced

medication without due process. /d. at 1391. Court

held that a pretrial detainee has a liberty interest in

avoiding unwanted treatment but the liberty interest is

not absolute and must be balanced against the State's

interests. /d. at 1394. Reversed grant of summary

judgment and remanded for proper balancing test. /d. at

1397.

32a

Case Analysis

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)

PETITIONERS’ DESCRIPTION—"[D]eaf, mute, and

vision impaired inmate denied communication

assistance, including in disciplinary proceedings,

counseling sessions, and medical treatment” (U.S. Br.

19a) “Due Process Clause requires that “deaf, mute,

and vision-impaired inmate” receive an interpreter in

disciplinary proceedings against him” (Goodman Br.

18)

COMMENTS—On remand, court denied defendant's

motion for summary judgment as to plaintiffs claim for

a qualified sign language interpreter at disciplinary

hearings, finding constitutionally protected due process

liberty interest. 714 F. Supp. at 425. Also denied

summary judgment as to plaintiff's Rehabilitation Act

claim. /d. at 422-23. Granted summary judgment

against plaintiff's claim that he had adue process “

liberty interest in remaining in general prison

population by avoiding protective lockdown, finding

that “[s]o long as the conditions of confinement do not

violate constitutional norms,” plaintiff had “no

constitutionally protected liberty interest in assignment

to a particular part of the prison.” /d at 424-25.

33a

Case Analysis

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988)

PETITIONERS’ DESCRIPTION—”"[R Jeversing grant of

summary judgment to defendant on inmate’s Section

504 claim where inmate, who is deaf, mute, and suffers

from a severe progressive vision loss, was not provided

with a sign-language interpreter for counseling sessions,

administrative or disciplinary hearings, or medical

appointments” (U.S. Br. 6a)

COMMENTS—Arffirmed summary judgment against

deaf inmate’s equal protection and Eighth Amendment

claims for sign language interpreter at, inter alia,

disciplinary hearings. 857 F.2d at 565-66. Remanded

due process claims to determine whether the statutes

and regulations governing protective lockdown created

a liberty interest. /d. at 564-65. Found no equal

protection violation and no Eighth Amendment

violation as to some of inmate’s claims. /d. at 565-66.

Remanded Rehabilitation Act claims because of

genuine issues of material fact. /d. at 564.

Burchett v. Bower, 355 F. Supp. 1278 (D. Ariz. 1973)

PETITIONERS’ DESCRIPTION—”|A]dministrator of

state hospital and director of its maximum security ward

had to comply with requirements of due process and

equal protection before right of mentally ill state

prisoner to treatment at hospital could be terminated”

(U.S. Br. 24a)

COMMENTS— Partial summary judgment granting

plaintiff a right to hearing before terminating mental

treatment and transferring him back to prison. 355 F.

Supp. at 1283. Continued restraining order (previously

entered) as permanent injunction against transfer

without due process. /d

34a

Case Analysis

Cody v. Hilliard, 599 F. Supp. 1025, 1058-59 (D.S.D.

1984), aff'd, 799 F.2d at 447 (8th Cir. 1986), rev’d in

part, 830 F.2d 912 (8th Cir. 1987) (en banc)

PETITIONERS’ DESCRIPTION—"{D]enial of

adequate mental health care to inmates with ‘serious

psychiatric needs’ violated Eighth Amendment”

(Goodman Br. 30 n.15)

COMMENTS—-Class action on behalf of “all persons

who are now or will be incarcerated in the South Dakota

State Penitentiary ... or in the Women’s . . . Facility.”

599 F. Supp. at 1026. 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. /d. at 1055. Both courts did hold double-

celling there as well as in general population

constitutionally barred, id. at 1055; 799 F.2d at 450, but

Eighth Circuit reversed this finding 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.” /d.

35a

Case Analysis

“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. Complained that protective

custody inmates are denied equal protection as applied

to other inmates because of double-celling in protective

custody and because of limited educational and job

opportunities. /d. at 1054. Prison maintains a “special

diet” line but no special line for diabetics, but court

notes that “these deficiencies are offset by the

reasonable attempts made by the SDSP nurses to

educate these diabetic inmates on a one-to-one basis

regarding their special diabetic needs” and that “these

inmates can make appropriate food selections from

either the general or special diet line in order to properly

control their diet.” Jd at 1039. Found that prison

“makes adequate provisions” for special dietary needs.

Id. at 1057. Court found some aspects of medical and

psychiatric care deficient. Found totality of conditions

violated Eighth and Fourteenth Amendments. /d. at

1062.

On rehearing en banc, Eighth Circuit noted that “the

Constitution does not mandate comfortable prisons, and

prisons . . . which house persons convicted of serious

crimes[] cannot be free of discomfort.” 830 F.2d at

916.

36a

Case Analysis

Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556

(ist Cir.)

PETITIONERS’ DESCRIPTION—" Eighth Amendment

violated when mentally ill prisoner was housed in a

severely overcrowded cell where he was ultimately

killed and dismembered by other inmates.” (U.S. Br.

6a)

COMMENTS—Mentally disturbed inmate transferred to

extremely overcrowded prison along with 39 other

inmates after prison riot. 842 F.2d at 558. He was

killed. Not a claim that the State discriminated against

plaintiff; injuries came from conduct of other inmates.

Space per prisoner was 15.5 sq. ft. /d. Claimed injury

occurred in Arecibo District Jail. /d.

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

1980)

PETITIONERS’ DESCRIPTION—"|Jjail inmate’s

allegation ‘that because the defendants failed to give

him a wheelchair, he was forced to craw] on the floor’

stated Eighth Amendment claim.” (Goodman Br. 29

n.14.)

COMMENTS—Pretrial detainee at St Louis County Jail.

628 F.2d at 1066. Non-disabled inmate being detained

for highly publicized scalding death of 2-year old

received back injury while in custody and was

transferred to protective custody for his safety. /d at

1067. Court reversed grant of summary judgment

awarded to defendants and remanded to trial court,

finding that defendants’ evidence was insufficient to

support summary judgment against plaintiff's Eighth

Amendment claim for deliberate indifference in

connection with medical care for back injury. /d. at

1068.

37a

Case Analysis

10.

Delafose v. Manson, 385 F. Supp. 1115 (D. Conn.

1974)

PETITIONERS’ DESCRIPTION—’|P }rison practice of

paying inmates who were receiving treatment for

physical ailments 38 cents per day hospital pay while

denying such payment to those receiving treatment for

mental ailments denied equal protection to those

receiving treatment for mental illness.” (U.S. Br. 23a)

COMMENTS—Inmates hospitalized for physical

ailments received 38¢ per day “hospital pay,” but those

hospitalized for mental ailments did not. 385 F. Supp.

at 1116-17. (More similar to Title 1 employment-

discrimination claims. )

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

PETITIONERS’ DESCRIPTION—”[P}reliminary

injunction granted in class action seeking to prohibit

further implementation of a program involving the

involuntary transfer to a separate dormitory of inmates

who had tested positive for HIV.” (U.S. Br. 19a-20a)

COMMENTS—Court granted preliminary injunction to

HIV-positive inmates to prevent involuntary transfer to

HIV ward on privacy grounds. 697 F. Supp. at 1243.

Decided on privacy grounds—court specifically noted

rejection of same claim when it had been brought under

Fourteenth Amendment. /d at 1236.

38a

Case Analysis

12.

prevent proposed staf! reductions that would probably

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

PETITIONERS’ DESCRIPTION—”|I||nmates were

entitled to a preliminary injunction prohibiting

implementation of proposed staff reductions with

respect to medical care, mental health care, and

security, where there was no evidence that staffing

reductions of the magnitude contemplated would permit

the maintenance of minimal constitutional standards in

those areas.” (U.S. Br. 20a)

COMMENTS—Court granted preliminary injunction to

not permit maintenance of minimal constitutional!

standards in medical care, mental health care, and

security. Court concerned itself with prison’s

“obligation to 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.” 642 F.

Supp. at 575. Court specifically addressed itself to the

potential harms to the “routine and emergency” needs of

the entire prison population. /d.

13.

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

PETITIONERS’ DESCRIPTION-—"|U |pholding grant

of preliminary injunction based on constitutionally

inadequate provision of medical care to mentally ill

inmates.” (U.S. Br. 6a)

COMMENTS— Affirming grant of preliminary

injunction where district court had sufficient evidence

of “systemic deficiencies in Attica’s mental health

system.” 849 F.2d at 82-83. Specifically declined to

decide whether problems met “deliberate indifference”

standard. /d.

39a

Case Analysis

14.

Flakes v. Percy, 511 F. Supp. 1325 (W.D. Wis. 1981)

PETITIONERS’ DESCRIPTION—"|L]ocking persons

jconfined in a maximum security mental hospital, for

any significant time, in a ce!i lacking a flush toilet and

wash bow! was cruel and unusual punishment.” (U.S.

Br. 21a)

COMMENTS—Suit regarding conditions in Central

State Hospital that housed convicted persons, persons

incompetent to stand trial, and civilly committed

persons. 511 F. Supp. at 1326. Some wards had no

toilets in cells and patients used chamber pots when

locked in. /d. at 1326-29. Court held violation of

Eighth Amendment to lock a person in a cell without a -

toilet and that Eighth Amendment applied to hospital.

Id. at 1332-34. Court also found that substantive due

process under Fourteenth Amendment guarantees

minimally adequate treatment to an involuntarily

confined person with mental illness. /d. at 1339. Found

violation of substantive due process rights of plaintiff

class. /d. at 1340.

40a

Case Analysis

15.

Inmates of Occoquan v. Barry, 717 F. Supp. 854

(D.C.D.C. 1989)

PETITIONERS’ DESCRIPTION—" {Housing inmates

with mental health problems with punitive segregation

inmates violated the Eighth Amendment.” (U.S. Br.

19a)

COMMENTS—Class action claiming Eighth

Amendment violations and seeking declaratory and

injunctive relief for “excessive inmate population;

ideficiencies in environmental health and safety; food

services; fire safety; medical and dental services; and

mental health care.” 717 F. Supp. at 854. Court found

Eighth Amendment violations “in the areas of

sanitation, bathroom facilities, fire safety, health care,

and staffing.” /d. at 869. Finding “systemic” problems

with toilets, noting that “[n}umerous toilets did not

work and leaking pipes were found throughout the . . .

[flacility.” /d at 856. Bathrooms had “slime oozing

down the walls, stalactites hanging from the ceiling,

thick soap scum on the walls and floors, and sewer

water dripping into toilets,” and “neither proper

cleaning supplies nor cleaning tools are provided.” /d.

at 866. Court found that housing mentally ill inmates in

block w‘th inmates in punitive and administrative

segregation, locking them in their cells for 23 hours per

day— because there is nowhere else to put them—and

not given any treatment, showed a deliberate

indifference to their psychiatric needs. /d. at 863-64,

868. Court also found that housing protective custody

inmates in same block with punitive segregation

inmates violated Eighth Amendment as “beyond the

range of their punishment.” /d. at 867.

4la

Case Analysis

16.

Inmates of the Allegheny County Jail v. Peirce, 487 F.

Supp. 638 (W.D. Pa. 1980) ~

PETITIONERS’ DESCRIPTION—”|L]ack of mental

health treatment being given to mentally ill inmates in a

county jail amounted to deliberate indifference.” (U.S.

Br. 22a)

COMMENTS—F ound that pretrial detainees at

Allegheny County Jail are entitled to psychiatric care

when needed. 487 F. Supp. at 642-43. Lack of

psychiatric care in county jail amounted to deliberate

indifference. /d. at 643.

17.

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

PETITIONERS’ DESCRIPTION—"[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)

COMME NTS—Class action on behalf of all inmates

currently incarcerated in units of the Alabama

Correctional Institutions System as a result of felony

convictions. 382 F. Supp. at 1178. 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. Court

found that State must justify denial of rehabilitation

services to some when it has undertaken to provide such

services to others. /d at 1181-82.

42a

Case Analysis

18.

Johnson v. Hardin County, 908 F.2d 1280, 1284 (6th

Cir. 1990)

PETITIONERS’ DESCRIPTION—” Eighth Amendment

violated when prisoner disabled by mobility impairment

was denied prescribed medical care and denied access

to a shower for 40 days after injuring himself in a fall.”

(U.S. Br. Sa) “{Djenial, inter alia, of crutches to inmate

with a disability violated Eighth Amendment.”

(Goodman Br. 28 n.14)

COMMENTS—Hardin County Detention Center,

Kentucky. Inmate had leg injuries that impaired his

mobility. 908 F.2d at 1282. Jail officials did not make

requested accommodations to his impaired mobility. /d.

at 1282-84. After falling in prison shower, he required

medical treatment. /d. Jail officials did not adequately

provide needed medical treatment. /d. Court affirmed

jury verdict only as to individual defendants’ deliberate

indifference, but specifically found that county was not

liable because plaintiff had not produced sufficient

evidence to show policy or custom of mistreatment. /d.

at 1285-88.

43a

Case Analysis

19.

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

PETITIONERS’ DESCRIPTION—"[V jiolation of

Eighth Amendment where mentally ill and impaired

inmates confined to prison’s “special needs unit” were

subject to unwarranted uses of physical force and

brutality by prison guards.” (U.S. Br. 21a)

COMMENTS—Class action brought by prisoners at

Kentucky State Penitentiary regarding broad range of

lconditions, 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, racial discrimination, and

coercive informant system led to favoritism of some

inmates and abuse (rape, etc.) of others. 541 F. Supp. at

22, 27-49. Disability not a mentioned as a factor in

favoritism. Demonstrates availability of existing

remedies, as court required defendants to submit plan

for correcting deficiencies in handicapped accessibility

in accordance with the Rehabilitation Act. /d. at 39-40.

20.

Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973)

PETITIONERS’ DESCRIPTION—"|A]|dministration of

drugs that induced vomiting to nonconsenting inmates

on the basis of alleged violations of behavior rules

constituted cruel and unusual punishment.” (U.S. Br.

8a)

COMMENTS—Enjoined use of injections that induced

vomiting as punishment or disciplinary measure in State

mental institution. 488 F.2d at 1140-41. Population

included civilly committed as well as prisoners. /d. at

1138. Institution at issue was the lowa Security

Medical Facility, not a prison. /d. (quoting lowa Code

§ 223.1 (1973)).

44a

Case Analysis

21.

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

PETITIONERS’ DESCRIPTION—”[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)

COMMENTS—lass action on behalf of entire prison

population detailing a multitude of deficiencies in

conditions at entire facility. 437 F. Supp. at 275. Ina

62-page opinion, court entered a 16-category order

regarding aspects to be corrected. /d. at 325-31. Found

medical services and facilities deficient as a whole, and

found totality of conditions deficient. /d. at 324-25.

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.

99

_-—

LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987)

PETITIONERS’ DESCRIPTION—’|F jailure to provide

paraplegic inmate with an accessible toilet is cruel and

unusual punishment.” (U.S. Br. 6a-7a) “[F]ailure to

provide appropriate toilet facilities and rehabilitation

therapy to inmate with paraplegia violated Eighth

Amendment.” (Goodman Br. 28 n.14.)

COMMENTS—Inmate was incarcerated in the Federal

Correctional Institution, Butner, North Carolina. 834

F.2d at 389. Wheelchair-bound paraplegic was

incarcerated with inaccessible toilet facilities. /d. at

390. Court held this was deliberate indifference that

violated the Eighth Amendment. /d. at 394.

4Sa

Case Analysis

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

1989)

PETITIONERS’ DESCRIPTION—”|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) “[D]enying state officials’ motion for

summary judgment on Eighth Amendment claim based.

inter alia, on ‘the failure to screen out from SHU those

individuals who, by virtue of their mental condition, are

likely to be severely and adversely affected by their

placement there.’” (Goodman Br. 32 n.18)

COMMENTS—Class action brought by all inmates in

special housing unit in correctional facility. 715 F.

Supp. at 531. Complained that mentally ill inmates

were housed together with sane inmates and behavior of

mentally ill inmates subjected all] inmates to

constitutionally impermissible conditions. /d. at 531,

543. Subclass of plaintiffs complained of deficient

medical treatment. /d. Subclass of plaintiffs -- non-

disabled inmates complained about having to live with

arguably disabled inmates. Court adopted magistrate’s

report denying summary judgment to defendants and

finding triable issues of fact, including possibility of

systemic failure of medical care. /d. at 539-41. Court

specifically noted that plaintiffs would need to

demonstrate facts to support their claims. /d. at 560. In

evaluating individual liability of officials, court noted

[i]t 1s not open to question that the Eleventh

Amendment would bar a claim for money damages

against the State itself or its agents.” /d. at 550.

46a

Case Analysis

24.

Leach v. Shelby County Sheriff, 891 F.2d 1241, 1243-

44 (6th Cir. 1989)

PETITIONERS’ DESCRIPTION—{C]ounty jail

maintained policy of deliberate indifference to serious

medical needs of paraplegic inmates in violation of

Eighth Amendment where paraplegic inmate was not

bathed regularly, was forced to sit in his own urine, and

was not given necessary help for bowel movements.”

(U.S. Br. 6a) “[S]everal days’ denial of appropriate

mattress, bathing, and catheter supplies to inmate with

paraplegia violated Eighth Amendment” (Goodman Br.

28 n.14)

COMMENTS—Shelby County Jail, Tennessee. 891

F.2d at 1243. Affirmed award of $10,000 to plaintiff

against “the Sheriff in his official capacity for policy or

custom of deliberate indifference sufficient to establish

the liability of the County.” /d. at 1250. “Leach’s suit

against the Mayor and the Sheriff of Shelby County in

their official capacities is, therefore, essentially and for

all purposes, a suit against the County itself.” /d. at

1241.

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

PETITIONERS’ DESCRIPTION—"[P }jreliminary

injunction granted in suit brought by paraplegic inmate

alleging that he had received improper medical care in

violation of the Eighth Amendment.” (U.S. Br. 21a)

COMMENTS—Petitioner’s description accurate: case

involved preliminary injunctive relief.

47a

Case Analysis

26.

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

PETITIONERS’ DESCRIPTION—”"|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)

COMMENTS—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... .”

486 F. Supp. at 505. Prison facility built in 1878. Some

prisoners double-celled with 18 to 32 square feet of

space per inmate. “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.”

Id. at 525.

’

48a

Case Analysis

27.

Littlefield v. Deland, 641 F.2d 729 (10th Cir. 1981)

PETITIONERS’ DESCRIPTION—”Due Process

violation where mentally ill inmate was confined

without notice or an opportunity to be heard for 56 days

in solitary confinement in a ‘strip cell’ with no

windows, no interior lights, no bunk, no floor covering,

no toilet beyond a hole in the floor, no articles of

personal hygiene, no opportunity for recreation outside

cell, no access to reading materials, and frequently no

clothing or bedding material.” (U.S. Br. 7a-8a)

COMMENTS—F ound that treating a pretrial detainee in

this manner amounted to punishment that could not be

constitutionally imposed without a determination of

guilt and indicated that, even then, conditions would

violate Eighth Amendment. 641 F.2d at 731-32. Found

that County had failed to implement an effective

procedure to assure that mentally-ill inmates are not

kept in such facilities for unreasonable periods of time

and found a “policy of indifference.” /d. at 732.

49a

Case Analysis

28.

Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984)

PETITIONERS’ DESCRIPTION—’State subjected

individuals awaiting civil commitment proceedings to

unconstitutional conditions of confinement in county

jails.” (U.S. Br. 7a)

COMMENTS—County jails, not state prisons. 744 F.2d

at 1454. Class action on behalf of non-convict mentally

ill individuals awaiting involuntary civil commitment

proceedings, challenging their detention in county jails.

Completely irrelevant to question whether States

discriminate against disabled prisoners. Court

specifically distinguished plaintiffs because they were

awaiting civil commitment proceedings and therefore

not in jail for punishment, explaining: “A court must

decide whether the restriction is imposed to punish or

whether it is simply an incident of legitimate

governmental purpose” and found that the conditions

applied to these detainees amounted to punishment and

therefore violated due process. /d. at 1463.

50a

Case Analysis.

‘129,

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

PETITIONERS’ DESCRIPTION—’"[F }inding that

disabled inmate sufficiently alleged being subjected to

cruel and unusual punisnment where inmate claimed he

received without his consent a “fright drug” that caused

him to regularly suffer nightmares and awaken unable

to breathe.” (U.S. Br. 8a)

COMMENTS—Reversed grant of FED. R. Civ. P.

12(b)(6) motion to dismiss, where plaintiff inmate had

gone voluntarily to state medica! facility for

electroshock treatment and was given a “fright drug”

there without his consent. Court found possibility that

prison conducted medical experimentation on plaintiff

inmate without consent raised constitutional questions.

477 F.2d at 878.

30.

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

PETITIONERS’ DESCRIPTION—[C}olorable claim

for relief under the Eighth Amendment where

paraplegic prisoner alleged that he had received no

physical therapy for his condition over a period of some

11 months since he had entered prison.” (U.S. Br. 7a)

“(Reversing grant of summary judgment to State prison

official in case where inmate with paraplegia claimed

that he had been denied any physical therapy for almost

a year.” (Goodman Br. 30 n.15)

COMMENTS—Court reversed award of summary

judgment to defendant, prison medical administrator,

holding that paraplegic inmate stated colorabie claim

for Eighth Amendment violation by alleging lack of

physical therapy for eleven months. 650 F.2d at 889.

Also held that lower court should not have denied

plaintiff s request for appointed counsel. /d.

Sla

Case Analysis

31.

Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989)

PETITIONERS’ DESCRIPTION—”[E}vidence

established that physician assistant’s treatment of

prisoner after he severely injured his leg constituted

deliberate indifference to prisoner's serious medical

needs.” (U.S. Br. 6a)

COMMENTS—Inmate at a “county road prison” in

Escambia County, Florida, jumped off the bed of a

work-detail pick-up truck and injured his leg. 888 F.2d

at 785. Brought § 1983 action complaining that lack of

appropriate medical treatment for injury constituted

deliberate indifference. /d. at 787.

32.

Maynard v. New Jersey, 719 F. Supp. 292 (D.N.J.

1989)

PETITIONERS’ DESCRIPTION—"[F Jamily of

deceased inmate who brought suit against prison

medical personnel for failure to diagnose and refusal to

treat inmate’s AIDS stated a viable Section 1983 claim

against prison medical personnel.” (U.S. Br. 19a)

COMMENTS—Court held Eleventh Amendment barred

claim against State for failure to diagnose and treat

inmate with AIDS. 719 F. Supp. at 296. Granted

motion to dismiss as to State but denied as to prison

medical personnel. /d. at 296-97.

33.

Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985)

PETITIONERS’ DESCRIPTION—’|F jailure to provide

medications for epilepsy, which caused prisoner’s

death, violated Eighth Amendment.” (U.S. Br. 7a)

COMMENTS—Pretrial detainee at Arecibo District Jail.

770 F.2d at 257.

52a

Case Analysis

34.

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

Fla. 1976)

PETITIONERS’ DESCRIPTION—”" Eighth Amendment

violation where no psychological or psychiatric

treatment available for inmates with mental illness.”

(Goodman Br. 30 n.15)

COMMENTS—Class action seeking declaratory and

injunctive relief for inmates incarcerated in Escambia

County Jail, Florida. 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.” 421 F. Supp. at 893, 896.

Jail so crowded that “Mitchell, a fifteen year old

juvenile male, had been . . . incarcerated awaiting trial

with other juvenile males in a cell constructed to sleep

three persons but which housed as many as eleven

persons .. . One 8° x 8° four bed cell sometimes housed

as many as six inmates necessitating that two of them

sleep on the floor next to the toilet, sometimes without a

mattress.” /d. at 889. “Indigent inmates are not

provided with the basic necessities of hygiene . . .

Maintaining sanitation of the cells is left up to the

inmates . .. Mice and roaches are infested throughout

the building.” /d “The Jail is entirely without medical.

nursing, psychological, or dental staff on the premises.

Jail personnel with only some first aid training

arbitrarily decide whether inmates need medical

treatment.” /d at 890. Also noting lack of

psychological or psychiatric treatment, limited visiting

hours, censoring of inmate reading materials, absence of

legal research materials, lack of exercise and other

programs, and insufficient number of isolation cells. /d

at 891-93.

53a

Case Analysis

35.

Mullen v. Smith, 738 F.2d 317, 318 (8th Cir. 1984)

PETITIONERS’ DESCRIPTION—”"[I|nmate’s

allegation that prison officials forcibly removed him

from his bed and ordered him to walk—after he had

suffered a spinal injury that left him unable to walk—

stated a claim for violation of the Eighth Amendment.”

(Goodman Br. 33 n.21)

COMMENTS—Prisoner in Federal Correctional

Institution in El Reno, Oklahoma, prison facility

complained of deliberate indifference. 738 F.2d at 317.

36.

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

PETITIONERS’ DESCRIPTION—" {Preliminary

injunction issued in suit brought by patient-inmates

challenging the constitutionality of the hospital's use of

isolation cells.” (U.S. Br. 23a)

COMMENTS—Class action challenging conditions of

confinement at Mattewan State Hospital, New York.

Court entered injunction only to require extensive

record-keeping “to ensure and document that the

decision to use the isolation cell is based on explicit

criteria, is reviewed at the requisite brief intervals, and

is, where possible, supplemented by other forms of

treatment,” but declined to find their condition violated

Eighth Amendment. 382 F. Supp. at 543. Court

declined to require specific rules for patient behavior in

connection with use of isolation cells, and declined to

require a due process type of hearing before imposition

of seclusion. /d. Preliminary-injunction ruling, not on

the merits: “[T]he Court at this time declines to hold

that the conditions of the isolation cells violate the

Eight{h}] Amendment.” /d.

54a

Case Analysis

37.

Negron v. Ward, 458 F. Supp. 748 (S.D.N.Y. 1978)

PETITIONERS’ DESCRIPTION—"[S}uperintendent of

state prison hospital had a duty to provide psychiatric

treatment to patients which could not be withheld as a

form of discipline without due process.” (U.S. Br. 22a)

COMMENTS—Piaintiff-inmates were confined in the

Mattewan State Hospital for the Criminally Insane. 458

F. Supp. at 749. Following an altercation, plaintiffs

were removed from their open ward and confined in a

secluded ward. /d. at 750. Jury determined that this

ward transfer was for the purpose of punishment. /d. at

761. Not aclaim for discrimination: Plaintiffs were

mentally ill inmates housed among other mentally ill

inmates who complained at being isolated for

isciplinary reasons -- jury specifically found that

inmates were secluded for punishment. /d. at 760-61.

Does not establish constitutional violations that resulted

from intentional discrimination on the basis of

disability. Plaintiffs complained that they were

deprived of their right to treatment without due process.

Jury found in favor of plaintiffs and awarded

compensatory damages. Court denied motion for

JNOV, explaining that plaintiffs were entitled to a

hearing before being deprived of their treatment. /d. at

755. Court held that plaintiffs had an entitlement to

psychiatric treatment unimpeded by punitive

confinement imposed without due process. /d. at 759.

55a

Case Analysis

38.

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

PETITIONERS’ DESCRIPTION—” 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)

COMMENTS—Class action brought by entire prison

population, consisting of convicted felons who had

committed “the most serious crimes,” 455 F. Supp. at

728, seeking injunctive relief for overcrowding. Two

inmates per 44 sq. ft. cell; only one inmate could move

around at atime. /d at 734. Court ordered defendants

to seek solutions for overcrowding, found it violates

Eighth Amendment. /d. at 730-31. Court noted “no

constitutional right to habilitation or rehabilitation” and

found psychiatric treatment met minimal constitutional

standards except for isolation cells. /d. at 736. Ordered

that isolation cells should be used “only for mentally

deranged inmates.” /d Does not establish that inmates

were placed in isolation cells without rational basis.

56a

Case Analysis

39.

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

Ala. 1972)

PETITIONERS’ DESCRIPTION—" 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

violation where ‘the large majority of mentally

disturbed inmates receive no treatment whatsoever.”

(Goodman Br. at 30 n.15)

COMMENTS—Class action on behalf of all prisoners in

Alabama penal system (4000 inmates). “There is a

degree of neglect of basic medical needs of prisoners

that could justly be called ‘barbarous’ and ‘shocking to

the conscience.”” 349 F. Supp. at 281. “Perhaps the

most deplorable deprivation |is| the product of the

57a

Case Analysis

knowing and intentional mistreatment of sick and

injured inmates.” /d. at 284. Granted extensive and

detailed injunction against, inter alia, refusal or failure

to provide adequate medical care to each inmate. /d. at

286-88.

40.

Palmigiano v. Garrahy, 443 F. Supp. 956, 975-976

(D.R.1. 1977)

PETITIONERS’ DESCRIPTION—’ 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.)

COMMENTS—-Class action on behalf of prisoners in

Rhode Island Adult Correctional Institutions regarding

broad range of deficient conditions in 100-year-old

prison facility. “Together with the other unsanitary and

dangerous conditions already detailed . . . [t]he grossly

inadequate system of medical care, including

psychiatric care, afforded inmates is part of the

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