Petition for Writ of Certiorari — Torcasio v. Angelone

Supreme Court, US.

(.) FILED

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DS° 535 SE 27199)

No, OEFICE OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1995

ANTHONY TORCASIO,

Petitioner,

EDWARD W. Murray, Director;

G. L. Bass, Deputy WARDEN; Rufus FLEMING;

Davip L. Rosinson; R. J. Beck; AND G. P. Dopson,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES CourRT OF APPEALS

FOR THE FourtH CIRCUIT

DanieL H. WEINER

Counsel of Record

HuGHES HUBBARD & REED

One Battery Park Plaza

New York, New York 10004-1482

(212) 837-6000

Attorney for Petitioner

Of Counsel: Anthony Torcasio

ANDREW E. Lunp

J. ANDREW WARD

HuGuHes HuBBARD & REED

EME on a a rT

QUESTIONS PRESENTED

1. Did the Court of Appeals for the Fourth Circuit err in

holding, contrary to the decisions of the Ninth and Eleventh

Circuits, the plain statutory language and Department of

Justice regulations, that the Rehabilitation Act of 1973 and

the Americans with Disabilities Act of 1990 did not and do

not apply to state prisons?

2. Did the Fourth Circuit err in holding that, despite the

petitioner’s medically recognized disability of chronic morbid

obesity, he was not entitled to protection under the

Rehabilitation Act of 1973 and the Americans with

Disabilities Act of 1990?

3. Did the Fourth Circuit err in holding that respondent prison

officials did not violate petitioner’s rights under the

Rehabilitation Act of 1973 and the Americans with

Disabilities Act of 1990 by refusing to provide petitioner with

dining, toilet, and other cell facilities to reasonably

accommodate his physical handicap?

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ii

PARTIES TO THE PROCEEDING

The parties to this proceeding are:

—

Petitioner Anthony Torcasio

Respondent Edward W. Murray

Respondent Edward Bass

Respondent Rufus Fleming

Respondent David L. Robinson

Respondent R.J. Beck

Respondent G.P. Dodson

“a 2 em oe YP

TABLE OF CONTENTS

Page

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Torcasio’s Confinement by the Virginia

Department of Corrections ...........c.:ccceccereeeseseeeeeeseeeeeees 5

NN IN sia Scdsnsdess éevcececnesicsdcesiciccecectecsesees 6

The District Court’s Decision ...............:ccccceeeeeeeeeeeeeeeees 6

The Fourth Circuit’s Decision. ................:ccccccecsseeseeereeees 8

REASONS FOR GRANTING THE WRIT................:::cccccceeeeees )

I. THE FOURTH CIRCUIT’S RULING

CREATES A CONFLICT OF

AUTHORITY AMONG THE CIRCUITS

AS TO THE INCLUSION OF STATE

PRISONS WITHIN THE SCOPE OF

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A. THE FOURTH CIRCUIT'S

HOLDING ON THE SUBSTANCE

OF THE ACTS CREATES A

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B. REGARDLESS OF WHETHER THE

FOURTH CIRCUIT’S DECISION

CONSTRUES THE SUBSTANCE

OF THE ACTS, IT STILL CREATES

A CONFLICT OF AUTHORITY ...............::::00000 15

iV

TABLE OF CONTENTS

(Continued)

C. THE FOURTH CIRCUIT'S RULING

DIRECTLY CONTRADICTS

REGULATIONS UNDER THE ACTS

1. Rehabilitation Act Regulations

2. The ADA Regulations..............

3. Uniform Federal Accessibility

I anc iceseninunanes

THE FOURTH CIRCUIT’S

DETERMINATION THAT MORBID

OBESITY WAS NOT A CLEARLY

ESTABLISHED DISABILITY AT THE

TIME OF THE INCIDENTS

CONTRADICTS THE INDIVIDUALLY-

FOCUSED QUALIFIED IMMUNITY

ANALYSIS USED BY THE FIFTH AND

SEVENTH CIRCUITS. .........:cccsceseeseeeeserees

_ THE FOURTH CIRCUIT’S CONCLUSION

THAT RESPONDENTS ARE

ENTITLED TO QUALIFIED

IMMUNITY DESPITE THE

EXISTENCE OF MANY

UNRESOLVED FACTUAL ISSUES

CONTRADICTS THE QUALIFIED

IMMUNITY STANDARD EMPLOYED

BY THE NINTH AND SECOND

CIRCUITS .nccsessecarcrsccnesescseresionsnsiccrecssocssersssssseccoesooserees

IV. THE COURT SHOULD GRANT THE

WRIT IN ORDER TO PREVENT THE

DISASTROUS RESULTS OF THE

FOURTH CIRCUIT’S DECISION ............2::00ccsceeseeeees

CONCLUSION

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TABLE OF AUTHORITIES

Page

Cases

Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir. 1993)....... 27

Alexander v. Choate, 469 U.S. 287 (1985)............ccccceceseseseeeeees 18

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) ..............0.. passim

Byrne v. Bd. of Educ., School of W. Allis-W.

Milwaulkee, 979 F.2d 560 (7th Cir. 1992) 0.0... cecceeeseeeeeee 24

Chandler v. City of Dallas, 2 F.3d 1385 (Sth Cir. 1993)........... 24

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984) 0.0.0... ceeeeeee 18

Collinson v. Gott, 895 F.2d 994 (4th Cir. 1990)... 22

Consol. Rail Corp. v. Darrone, 465 U.S. 624 (1984)................ 18

Harlow v. Fitzgerald, 457 U.S. 800 (1982).........ccccceeeeeseeeeeee 22

Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) ........... passim

Haston v. Tatham, 842 F.Supp. 483 (D. Utah 1994)... 12n

O’Neal v. Ala. Dep’t of Pub. Health, 826 F. Supp.

Pe Ce a dint edenentt sic stlanenenticiguctanccseestioleninten 14

Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994) 0.0.0.0... 27

Pritchett v. Alford, 973 F.2d 307 (4th Cir. 1992) 00.0... 23

Sch. Bd. of Nassau County v. Arline, 480 U.S. 273 (1987)....... 18

Sites v. McKenzie, 423 F. Supp. 1190

Es sles passim

Smaw v. Commonwealth of Va. Dep’t of State

Police, 862 F. Supp. 1469 (E.D. Va. 1994) oo... eee 14

Staples v. Va. Dep’t of Corrections., No. 3:94CV469

CEB VG BORE FP, BRO GY certahecrccr isd deesivactnntiec dM encesceeees 14, 15

Williams v. Meese, 926 F.2d 994 (10th Cir. 1991)............. passim

Statutes

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42 U.S.C. §§ 12117(b), 12133 (Supp. 1993)... eeeseeeeee 14

‘a,

vi

TABLE OF AUTHORITIES

(Continued)

Page

42 U.S.C. §§ 12101-12102, 12131-12134 (Supp. 1993)....... 2, 18

Regulations

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41 C.F.R. § 101-19.6 app. A § 4.1.4(9)(c) (1994)... cccccceeeeees 22

45 Fed. Reg. 37,620, 37,630 (1980) ...........:cccccssecsseeeeseeeeeeeeeees 19

Miscellaneous

Letter from the United States Department of Justice .............. 18n

Thomas L. Stedman, Stedman's Medical

Dictionaary VOB C250 OB. TIF OD cccrsecesvsevecccsceccesensccssocnosee senses 3n

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

No.

ANTHONY TORCASIO,

Petitioner,

EDWARD W. MURRAY, DIRECTOR; G.L. BASS, DEPUTY

WARDEN; RUFUS FLEMING, DAVID L. ROBINSON, R.J.

BECK; and G.P. DODSON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Anthony Torcasio respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Fourth Circuit, entered in this case on June 29,

1995, which reversed the decision of the United States District

Court for the Eastern District of Virginia granting in part and

denying in part summary judgment to the respondents based on

qualified immunity.

Opinions Below

The opinion of the court of appeals is reported at 57 F.3d

1340 (4th Cir. 1995). The opinion of the district court is reported

at 862 F. Supp. 1482 (E.D. Va. 1994). These opinions are

reprinted in the Appendix to this Petition.

Jurisdiction

The judgment of the court of appeals reversing in part and

affirming in part the judgment of the district court was entered on

June 29, 1995. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1) (1988).

Statutes Involved

The statutes involved in this proceeding are Section 504 of

the Rehabilitation Act of 1973 (the “Rehabilitation Act’), as

amended, 29 U.S.C. §§ 794-794a (1988), and Title II of the

Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C.

§§ 12101-12102, 12131-12134 (Supp. 1993) (collectively, the

“Acts”), copies of which are reprinted in the Appendix to this

Petition.!

Statement of the Case

This is an action for damages brought by Anthony Torcasio

(“Torcasio”), a morbidly obese former prisoner of the Virginia

Department of Corrections (“VDOC”). Torcasio is five feet,

seven inches tall, weighs in excess of 450 pounds and has a girth

of 78 inches. Torcasio’s obesity causes him severely disabling

physical problems; he cannot walk for long distances, climb steps,

stand or lie down for extended periods; he also experiences

extreme back pain. Furthermore, Torcasio’s medically diagnosed

obesity constitutes a major factor in causing his severe obstructive

sleep apnea, which results in weakness, fatigue, memory loss and

1. References to (__a.) are to pages of the Appendix to this Petition.

possible progressive cardiac failure.2_ While imprisoned by the

VDOC, Torcasio requested certain modifications to prison

facilities and activities to accommodate his disability, including a

handrail around his toilet, a wider cell door, and extra time to

travel between buildings. Respondents, prison officials at the

VDOC, refused to implement these and other requested

accommodations.

In response, Torcasio filed actions in the United States

District Courts for the Western and Eastern Districts of Virginia,

alleging violations of both the Rehabilitation Act and the ADA.

Denying in substantial part respondents’ motion for summary

judgment in the consolidated cases, the district court held that the

Rehabilitation Act and the ADA apply to state prisons and rejected

respondents’ assertion of a qualified immunity defense for most of

petitioner's claims. The Fourth Circuit reversed the decision of

the district court, holding that respondent prison officials are fully

entitled to qualified immunity on three alternative bases. First, the

court held that it was not clearly established in 1993 and 1994 (the

time of the incidents alleged by Torcasio) that the Acts covered

state prisons. In so doing, the court of appeals went far beyond a

mere qualified immunity inquiry and effectively held that the Acts

do not apply to state prisons.

The Fourth Circuit’s ruling on this point contradicts the

language of both the Rehabilitation Act and the ADA and the

federal regulations implementing those Acts. In addition, that

portion of the Fourth Circuit’s opinion addressing the

Rehabilitation Act’s applicability to state prisons relied on what

that court expressly characterized as a conflict in the

interpretations of that Act among the Ninth, Tenth and Eleventh

Circuits. In the Fourth Circuit’s view, that conflict stemmed from

the Tenth Circuit’s holding in Williams v. Meese, 926 F.2d 994

(10th Cir. 1991), which addressed only the narrow issue under the

Rehabilitation Act of federal prisoners’ rights as prison

2. Sleep apnea is a temporary cessation of respiration caused by upper airway

obstruction. Thomas L. Stedman, Stedman's Medical Dictionary 106 (25th

ed. 1990).

employees. The Fourth Circuit supplied its own broad reasoning

to explain the Williams court’s holding and then extended that

holding to cover state prisoners qua prisoners. As the Fourth

Circuit explicitly recognized, this reading of Williams brings that

decision into direct conflict with both the Ninth Circuit’s holding

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

Circuit’s express agreement with the Bonner court in Harris y.

Thigpen, 941 F.2d 1495 (11th Cir. 1991), that the Acts apply to

state prisons. The Fourth Circuit’s ruling on this point, and its

extension of Williams far beyond its limits, has sown confusion

into what was before a settled point of law.

The Fourth Circuit also ruled that, even if the Acts apply to

State prisons, it was not clearly established that morbid obesity

qualified as a disability under the Acts; this ruling formed the

second alternative basis for the court’s holding. In reaching this

conclusion, the Fourth Circuit defied the commonly accepted

means of determining whether a particular condition constitutes a

covered disability under the Acts -- i.e., individualized case-by-

case analysis. Ignoring settled circuit law to the contrary, the

Fourth Circuit applied a broad Categorical analysis antithetical to

the functional definitions of disability found in the Acts.

For its third alternative basis, the Fourth Circuit relied on its

finding that, if the Acts cover morbidly obese state prisoners,

respondents’ conduct satisfied the objective reasonableness

component of the qualified immunity inquiry. To reach this

conclusion, the court ignored numerous unresolved material issues

of fact, in blatant contravention of circuit court precedent

requiring resolution of all material issues of fact before objective

reasonableness can be determined pursuant to a qualified

immunity inquiry.

This ruling gives state prison officials from Maine to Hawaii

the legal authority to cloak themselves in the blanket of qualified

immunity to avoid the substantive provisions of the Acts. That

incorrect and indefensible result would deprive all disabled state

prison inmates -- whether blind, deaf, crippled or morbidly obese -

- of the protections against discriminatory treatment guaranteed by

Congress.

The Parties

Petitioner Anthony Torcasio is a former prisoner in three

correctional facilities within the VDOC. Respondent Edward W.

Murray is Director of the VDOC. Respondent Edward Bass is

Deputy Warden of the Greensville Correctional Center

(“Greensville”), where Torcasio was imprisoned from May 22,

1991 until March 19, 1993. Respondent Rufus Fleming is Warden

of Nottoway Correctional Center (“Nottoway”), where Torcasio

was imprisoned from March 19, 1993 to April 22, 1993.

Respondent David L. Robinson is Assistant Warden of Nottoway.

R.J. Beck is the former Warden of the Keen Mountain

Correctional Center (“Keen Mountain”), where Torcasio was

imprisoned from April 22, 1993 until his release in the spring of

1994. Respondent G.P. Dodson succeeded R.J. Beck as Warden

of Keen Mountain.?

Torcasio’s Confinement by the Virginia Department of

Corrections

Torcasio’s confinement by the VDOC began in May 1991,

when he was processed through the Powhatan Reception Center.

Immediately upon arriving, he was placed in the Powhatan

infirmary because of his disability. On May 22, 1991, he was

transferred to Greensville, where he was again placed in the

infirmary because of his disability. Later, Torcasio was moved

from the infirmary to the general prison population. While at

Greensville, Torcasio lodged a series of formal grievances with

the administration there, including specific requests that his cell

door be widened to accommodate his girth; that a handrail be

installed around his toilet; and that non-skid matting be installed in

the lobby. He also requested alternative recreational activities

suited to his lack of mobility, and a housing assignment cioser to

3. In its November 15, 1993 decision, the Fourth Circuit affirmed the Eastern

District of Virginia’s dismissal of petitioner’s claims against defendant

Vosbeck. Torcasio v. Murray, No. 93-6585, slip op. at 2 (4th Cir. Nov. 15,

1993). In its September 16, 1994 decision, the Eastern District of Virginia

dismissed petitioner’s claims against defendants Terry and Rosenthal.

(58a.)

the other buildings in the facility. In addition, Torcasio

complained that the dining hall “pod tables” (table tops attached to

benches) had insufficient space between the seat and table top to

accommodate his weight and girth.

Procedural Background

On August 28, 1992, Torcasio filed a complaint in the

Eastern District of Virginia claiming that conditions of his

confinement at Greensville violated his rights under the Acts and

the Eighth Amendment. That action was dismissed by the district

court on May 20, 1993. Torcasio v. Vosbeck/DMJM, et al., Civil

Action 3:92CV558 (E.D. Va. May 20, 1993). On appeal, the

Fourth Circuit reversed the district court and remanded that action

on November 15, 1993. Torcasio v. Murray, No. 93-6585 (4th

Cir. Nov. 15, 1993). On September 7, 1993, Torcasio filed a

second complaint in the Western District of Virginia in connection

with his conditions of confinement at Nottoway and Keen

Mountain. On December 16, 1993, the Western District

transferred the second action to the Eastern District. Torcasio v.

Murray, Civil Action No. 93-0655-R (W.D. Va. Dec. 16, 1993).

On February 16, 1994, the Eastern District consolidated the two

actions into the action presently before the Court. Torcasio v.

Murray, Civil Action No. 3:93CV856 (E.D. Va. Feb. 16, 1994).

The District Court’s Decision

On September 16, 1994, the Eastern District ruled that both

the Rehabilitation Act and the ADA apply to state prisons. The

court held that, “[t]he plain language of the [Rehabilitation] Act

counsels for an expansive interpretation of which entities are

regulated by the [Rehabilitation] Act... .” and that “{bjoth the

stated goals and plain language of the [Rehabilitation] Act indicate

that state prisons may be subject to the provisions of the

Rehabilitation Act.” (emphasis added) (46a - 47a.) To support

this conclusion, the court cited the Ninth Circuit’s decision in

Bonner, the Eleventh Circuit’s decision in Harris, and a West

Virginia federal district court case, Sites v. McKenzie, 423

F. Supp. 1190 (N.D. W.Va. 1976). Although the district court

recognized that the Tenth Circuit’s holding in Williams cast doubt

on the Rehabilitation Act’s applicability to federal prisons, it

. concluded that the decision did not implicate state prisons. (53a.)

Turning to the ADA, the court found that the Act’s definition

of “public entity” encompasses the VDOC, noting that that term

includes “any state or local government and any department,

agency or special purpose district of a state or local government.”

(48a.) The court further reasoned that the inclusion of state

prisons within the ADA’s purview was mandated by the Act’s

broad purpose of “provid[ing] a clear and comprehensive national

mandate for the elimination of discrimination against individuals

with disabilities.” Jd. Last, the court observed that the interim

final rules under Title II of the ADA included accessibility

guidelines for state and local correctional facilities. Id.

After holding that the Acts apply to state prisons, the district

court addressed the prison officials’ assertion of a qualified

immunity defense, examining whether Torcasio’s right as a

“morbidly obese inmate . . . to the modification of specific

services and facilities” was “‘sufficiently clear that a reasonable

official would understand that .. . [his conduct] violate[d] that

right.’” (52a.) The court then applied this qualified immunity

inquiry to each of the fourteen specific prison conditions that

allegedly violated the Acts and granted the prison officials’ motion

for summary judgment fully on three claims, in part on three

claims, and denying the motion fully on the remaining eight

claims.

The instant petition involves only those claims for which the

district court denied summary judgment. Those claims consist of

the following: lack of toilet handrails, ill-suited “pod tables,”

narrow cell doors, inadequate tables in the recreational area, lack

of non-skid matting in the lobby, various inadequate dining hall

facilities, inadequate medical transportation, no personal aid, no

seating at the commissary window or pill line, lack of extra time to

travel between buildings, and various inadequacies in connection

with Torcasio’s confinement in the Nottoway infirmary.4 (54a -

57a.)

The Fourth Circuit’s Decision

The Fourth Circuit reversed the district court in part, finding

that respondent prison officials were fully entitled to qualified

immunity as to all of petitioner’s claims. In so doing, the court

went well beyond the question of qualified immunity to conclude

that the Acts do not apply to state prisons. Conceding that the

Acts “employ language which, when viewed in isolation, appears

all encompassing” as to the coverage of Acts (6a), the court

nevertheless found that the broad language of the Acts does not

evince clear Congressional intent to subject state prisons to the

Acts’ provisions. (9a - lla.)

The court then examined case law interpreting the Acts. It

recognized that both the Ninth Circuit, in Bonner, and the

Eleventh Circuit, in Harris, have stated that the Rehabilitation Act

covers state prisoners. (17a - 18a.) However, the court then cited

the Tenth Circuit's decision in Williams as conflicting authority.

(19a.) Although the Williams court merely held that federal

prisoners have no protection from employment discrimination

under the Rehabilitation Act, the Fourth Circuit articulated its own

rationale for the Tenth Circuit’s holding. The court then relied on

that unsubstantiated rationale to exclude both State and federal

prisons from the scope of the Rehabilitation Act. (19a - 20a.)

The court cited no case law to Support its conclusion that the

ADA does not apply to state prisons. It merely noted that only one

previous court squarely held that the ADA covers state prisoners.

(14a - 15a.) The Fourth Circuit gave this precedent no deference

simply because it was an unpublished district court opinion. /d.

4. In most cases, the court granted the prison officials immunity where the

record indicated that they had made any attempt at all to accommodate

Torcasio’s condition. For five of the claims where summary judgment was

denied, respondents’ pleadings were nonresponsive on the issue of how

they had responded to Torcasio’s complaints while he was imprisoned,

thereby precluding the court from conducting a qualified immunity inquiry.

(57a.)

ABAD TO ee EWR RE,

SR eliiedled: 9 saline psa ees

POLARS IOL ALAS CAESAR BERT ag Li POR nt cies

Relying on its examination of the statutory language, “[t}he

conflict between the Ninth and Tenth Circuits on the applicability

of the Rehabilitation Act to prisoners”, and on its finding that only

one district court had held that the ADA applies to state prisoners,

the Fourth Circuit held that “it was not... clearly established

that... [the Rehabilitation Act and the ADA] applied to state

prisons.” (24a.)

The Fourth Circuit also analyzed under its qualified immunity

inquiry whether it was clearly established at the time of the

incidents that the Acts covered chronic morbid obesity as a

disability. Without undertaking an individualized analysis of

Torcasio’s specific, severe impairments in relation to the

definition of “disability” in the Acts, the court concluded that it

was not clearly established that the Acts covered the disability of

morbid obesity. (25a - 30a.)

Similarly, the Fourth Circuit concluded that, even if it were

clearly established that the Acts covered morbidly obese state

prison inmates, the objective reasonableness of the respondents’

conduct entitled them to qualified immunity protection. (30a -

33a.) Although many material issues of fact regarding the

officials’ responses to Torcasio’s grievances remain unresolved,

the court nevertheless held that that very conduct satisfied the

qualified immunity inquiry.

Reasons for Granting the Writ

This petition should be granted because the Fourth Circuit's

ruling has created at least three conflicts of authority, pitting

Circuits against each other on the issues of: (i) the applicability of

the Acts to state prisons; (ii) the proper inquiry for determining

whether a specific individual constitutes a disabled person under

the Acts; and (iii) whether a federal court must resolve all

outstanding issues of material fact before conducting the objective

reasonableness inquiry under qualified immunity.

Prior to the Fourth Circuit’s ruling, the federal courts spoke

with one voice, relying on the clear and unambiguous language of

the Acts, the regulations promulgated thereunder and relevant case

law to conclude that (i) both Acts cover state prisoners; (ii) an

individualized inquiry was necessary to determine if a particular

condition met the Act’s definitions of disability; and (iii) courts

10

must resolve all material factual issues prior to conducting an

objective reasonableness inquiry. Now, federal courts ruling on

claims brought by state prisoners pursuant to the Acts face the

daunting task of unraveling the confusion engendered by the

Fourth Circuit’s ruling. This confusion has already led to the

untenable result, inapposite to Congressional intent, that state

prison inmates in some states are protected by the Acts, while state

prisoners in other states are not. Furthermore, state prison

officials across the country can rely on the legal confusion left in

the wake of the Fourth Circuit’s ruling to deny disabled state

prisoners the most basic and necessary accommodations. This

Court should issue the writ and resolve this conflict in order to

avoid needlessly inconsistent rulings on these two important

pieces of national legislation and the discriminatory treatment of

State prisoners that will inevitably result from the Fourth Circuit's

holding.

I. THE FOURTH CIRCUIT’S RULING CREATES A

CONFLICT OF AUTHORITY AMONG THE

CIRCUITS AS TO THE INCLUSION OF STATE

PRISONS WITHIN THE SCOPE OF THE ACTS.

A. THE FOURTH CIRCUIT’S HOLDING ON THE

SUBSTANCE OF THE ACTS CREATES A

CONFLICT OF AUTHORITY.

1. Rehabilitation Act

Prior to the Fourth Circuit’s holding, law in the federal

circuits on the issue of the Rehabilitation Act’s applicability to

state prisons was clear and consistent. In 1988, the Ninth Circuit

held in Bonner that the Rehabilitation Act applies to state prisons.

857 F.2d at 562. Bonner involved a deaf and mute state inmate

with severe progressive vision loss and a fourth grade reading

ability who was denied the assistance of a qualified interpreter to

aid him in a myriad of daily prison activities, including counseling

sessions, administrative and disciplinary hearings, and

psychological and medical treatment. /d. at 560-561. The Ninth

Circuit’s holding emphasized the Act’s broad language applying to

“any program or activity receiving federal financial assistance.”

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The court also found that the Rehabilitation Act’s goals of

vocational rehabilitation and independent living mirror those of

prison officials who are charged with rehabilitating prisoners and

preparing them for productive lives outside prison walls. The

Bonner court summarized this mutually fulfilling relationship

between the Rehabilitation Act and prison administration as

follows: “[b]y ensuring that inmates have meaningful access to

prison activities, such as disciplinary proceedings and counseling,

the goals of both the institution and the Rehabilitation Act are

served.” Id. at 562.

In Harris, the Eleventh Circuit explicitly agreed with the

Bonner holding. 941 F.2d at 1522 n.41. Harris involved a group

of HIV-positive state inmates who claimed that a number of

policies of the Alabama Department of Corrections (“ADOC”)

violated the Rehabilitation Act. Under those ADOC policies,

HIV-positive inmates were kept in separate prison housing and

were excluded from participating in various prison programs

concerning education, employment, community placement, law

library use, recreation, dining, religious services, family visitation,

transportation, sick call, and canteen. /d. at 1521-1522. Although

it was not necessary for the Eleventh Circuit to rule on the issue

because the ADOC conceded that the Rehabilitation Act applied to

state prisons, the Harris court explicitly agreed with Bonner’s

holding on that point. /d. at 1522 n.41.°

In contrast ‘with the decisions in Bonner, Harris and Sites,

Williams was brought by a federal prisoner who claimed that

prison officials had denied him certain job assignments because of

3. In Sites, the Northern District of West Virginia similarly held that the

denial of vocational rehabilitation opportunities to disabled prisoners

violated the Rehabilitation Act. 423 F. Supp. at 1197. Sites was brought

by a seventy-six year old mentally ill state inmate who had then been

imprisoned for forty-five years. /d. at | 192. The Sites court reasoned that,

since mentally ill prisoners qualify as handicapped individuals under the

Rehabilitation Act, and that since the West Virginia Department of

Corrections receives federal financial assistance, “any exclusion of. . . [a

state inmate] from participation in a vocational rehabilitation program

simply because of. . . [the state inmate’s]} handicap is forbidden by the

{Rehabilitation} Act.” Jd. at 1197.

12

his disability. 926 F.2d at 996. The Tenth Circuit there held that

Title VII, the Age Discrimination in Employment Act and the

Rehabilitation Act “provide [the] plaintiff [no] substantive rights

because he does not have an employment relationship with the

Federal Bureau of Prisons...” /d. at 997. (emphasis added). After

analyzing the plaintiff's claim squarely within the framework of

employment rights, the Tenth Circuit concluded that the

Rehabilitation Act “does not give [the] plaintiff any substantive

rights since the Federal Bureau of Prisons does not fit the

definition of ‘programs and activities’ governed by that section.”

Id. The logical reading of this last statement limits it to the

employment context.© The Tenth Circuit did not and could not

have meant that the Federal Bureau of Prisons could never qualify

as a “program” or “activity” under the Rehabilitation Act because,

as discussed in Section I.C infra, the Rehabilitation Act’s

implementing regulations specifically include “department[s] of

corrections” within their definition of “program.” 7 28 C.F.R.

§ 42.540(h) (1995).

6. The statement by the Williams court that “(plaintiff's claims under .. . [the

Equal Pay Act and the Rehabilitation Act] also have additional defects” is

dicta, since the court had already concluded that the absence of an

employment relationship was fatal to the plaintiff's claims. 926 F.2d

at 997. Even if these unspecified “additional defects” are viewed as part of

the holding, they are limited to the applicability of the Rehabilitation Act to

federal prisons. As the Eastern District noted, nothing in Williams

construes the applicability of the Rehabilitation Act to state prisons. (53a.)

7. The other case cited by the Fourth Circuit, Haston v. Tatham, 842 F. Supp.

483 (D. Utah 1994), also involved an employment discrimination claim

brought by a prisoner. Although the ADA claim was dismissed because the

Act's effective date post-dated the alleged infraction, the court noted that

“it is doubtful that the ADA applies in the case of a disabled prisoner who

seeks prison employment.” (emphasis added) /d. at 487. The court based

this conclusion on the Williams holding, which it correctly construed as

contingent upon an employment analysis. In fact, the Haston court cited

the Tenth Circuit for the proposition that “an inmate’s relationship with

corrections industries officials arises out of his status as a prisoner rather

than his status as an employee.” /d.

13

Prior to the Fourth Circuit’s ruling, federal courts did not

interpret Williams as authority regarding the Rehabilitation Act’s

} applicability to conditions of confinement in state prisons. In

ruling on Torcasio’s claims, the Eastern District of Virginia found

that, while Williams called into doubt “whether federal

correctional facilities are subject to the provisions of the

Rehabilitation Act,” the decision did not address state correctional

institutions. (54a.) Furthermore, the Ninth Circuit in Bonner and

the Eleventh Circuit in Harris were consistent in their rulings that

the Rehabilitation Act applies to state prisons. Accordingly, prior

to the Fourth Circuit’s decision in this case, federal courts had no

reason to, and did not, recognize a conflict of authority on the

specific issue of the Act’s protection of state prisoners.

The Fourth Circuit’s holding that the Rehabilitation Act does

not apply to state prisons relied on its own strained, post-hoc

rationale for Williams that the Tenth Circuit has never enunciated.

The Fourth Circuit began its analysis of Williams by restating that

opinion’s conclusory holding that “‘the Federal Bureau of Prisons

does not fit the definition of ‘programs or activities’ governed by

{the Rehabilitation Act].’” (19a.) The court recognized that this

holding omitted any explanation of why the Bureau of Prisons

does not fit within the Rehabilitation Act’s terms and conceded

that the rationale behind the decision, and not the decision on its

face, could potentially bring Williams into conflict with Bonner

and Harris. Id. Without discussing the particular facts in

Williams, the Fourth Circuit presented only the following two

; potential rationales for the holding in that case: (i) the fact that the

Bureau of Prisons is a federal agency; or (ii) the fact that the

Bureau of Prisons is a prison agency. Id. Because the

Rehabilitation Act specifically includes Executive agencies within

its purview, the Fourth Circuit concluded that the Williams

holding could not have been based upon the Bureau’s status as a

federal agency. Since the Fourth Circuit chose to ignore the more

logical employment-based explanation for Williams - an

explanation which complements the definition of “program” found

in the Acts’ regulations - the court was left with only the Bureau's

status as a prison agency to explain the Williams decision. Based

on this flawed logic, the Fourth Circuit improperly concluded that

Sod ts Pe Te ee we NS eee ee

OT Te ea eT

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14

Williams stands for the proposition that “prisons of whatever

jurisdiction are not subject to the Rehabilitation Act”. Jd.

The Fourth Circuit used its unjustified expansion of the

Williams holding to buttress its own conclusion that the

Rehabilitation Act does not apply to state prisons. (20a.) This

greatly expanded reading of Williams brought that decision into

direct conflict with both the Ninth Circuit’s holding in Bonner and

the Eleventh Circuit’s agreement with Bonner in Harris. Id.

2. ADA Implications

The Fourth Circuit also concluded that the ADA does not

apply to state prisons. (lla - 16a.); Staples v. Va. Dep't of

Corrections, No. 3:94CV 469 (E.D. Va. July 19, 1995). The

Fourth Circuit is presently the only Circuit to have addressed the

specific issue of the ADA’s coverage of state prisoners.

However, the Rehabilitation Act and the ADA were both enacted

to prevent discrimination on the basis of physical and mental

disability, and many provisions of the Acts mirror each other’s

language. Furthermore, both the text of the ADA and case law

indicate that determinations under the Rehabilitation Act are

considered persuasive authority for interpreting analogous

provisions of the ADA. See 42 U.S.C. §§ 12117(b), 12133

(Supp. 1993); Smaw v. Commonwealth of Va. Dep't of State

Police, 862 F. Supp. 1469 (E.D. Va. 1994): O’Neal v. Ala. Dep't

of Pub. Health, 826 F. Supp. 1368, 1373 n.11 (M.D. Ala. 1993).

Accordingly, circuit courts ruling on the issue of the ADA’s

applicability to state prisons now have two sets of precedent from

which to_choose, virtually ensuring that a conflict of authority on

the applicability of the ADA to state prisons will arise unless this

Court resolves the existing conflict concerning the Rehabilitation

Act.

8. With regard to the ADA, the Fourth Circuit cited no precedent that the

ADA does not apply to state prisons. Rather, the court merely noted that,

of the six cases cited by petitions to support the ADA’s applicability to

State prisons, only one had squarely held on that issue. (14a - 15a.) The

other five cited opinions, in the words of the court. “simply assumed that

the [ADA] applies to state prisons.” (17a.)

tea Pane een

15

B. REGARDLESS OF WHETHER THE FOURTH

CIRCUIT’S DECISION CONSTRUES THE

SUBSTANCE OF THE ACTS, IT STILL CREATES A

CONFLICT OF AUTHORITY.

Although the Fourth Circuit’s decision is superficially limited

to the issue of qualified immunity, the court's analysis of the Acts’

language and relevant case law, as well as the court’s absolute

language in outlining its view of the Acts’ scope, have been

recognized as holding that the Acts do not apply to state prisons.

With regard to statutory language, the court focuses on the

terms “programs” and “activities” under the Rehabilitation Act,

and the terms “services”, “qualified individual with a disability”

and “public entity” under the ADA. See discussion Section I.C

infra. The Fourth Circuit also predicates its ruling on its analysis

of Williams and on what it characterizes as a conflict among the

Ninth, Eleventh and Tenth Circuits as to the Rehabilitation Act's

coverage of state prisoners. See discussion Section I.A supra.

At least one district court has already based its ruling that the

ADA does not apply to state prisons on the Fourth Circuit's

opinion in this case. That decision, Staples v. Va. Dep't of

Corrections, No. 3:94CV469 (E.D. Va. July 19, 1995), involved

claims brought by a quadriplegic prisoner of the VDOC at the

Greensville Correctional Center, one of the same facilities where

Torcasio was imprisoned. In addressing the prisoner’s claims, the

Staples court held that the defendant Correctional Management

System could not be held liable under the ADA because:

“ __ the Fourth Circuit has all but held that the ADA, per

se, does not apply in the state prison context. This court

is persuaded by the reasoning and dicta of the Fourth

Circuit which states absent clear intent on the part of

Congress, its enactments do not apply to integral state

functions.”

Staples slip op. at 3.

There can be no doubt that other courts will follow Staples

and rely on the Fourth Circuit's decision in this case to deny state

prisoners the essential protections against discrimination

guaranteed by the Acts. The Fourth Circuit’s attempt to couch its

holding in qualified immunity language can mask neither the

nature nor the inevitable impact of its conclusions. The decision is

16

inextricably tied to the substance of the Acts and will materially

affect their application in the prison context.

Even if the Fourth Circuit's holding were limited to the issue

of qualified immunity, the decision would still create a conflict of

authority. As discussed in Section I.A supra, prior to the Fourth

Circuit’s opinion, courts did not cite Williams to exclude state

prisons from the scope of the Rehabilitation Act. Now, however,

federal courts ruling on the issue of the Acts’ coverage of state

prisoners will be forced to read the Williams holding in

conjunction with the Fourth Circuit’s rationale; this cumulative

reading will lead them to the inevitable conclusion that Williams

now holds that the Rehabilitation Act does not apply to state

prisons, conflicting with Bonner and Harris.

Based on that conflict of authority, courts will have free

license to grant qualified immunity to state prison officials who do

not provide accommodations to disabled prisoners because it is not

“clearly established” under current law that the Rehabilitation Act

and the ADA apply to state prisons. In fact, the Staples court

recently relied on the Fourth Circuit’s opinion to grant qualified

immunity to the second defendant in the case, the VDOC. Id. at 2

- 3. Thus, even if the Fourth Circuit’s ruling were limited to

qualified immunity, the decision would still create a conflict of

authority.

C. THE FOURTH CIRCUIT’S RULING DIRECTLY

CONTRADICTS REGULATIONS UNDER THE

ACTS.

The Fourth Circuit's ruling relied in part on its interpretation

of certain statutory terms and on the purported lack of clear

guidance in the Acts’ regulations on the issue of state prisons.

The court began its analysis of the Statutory language by observing

that, as a matter of statutory construction, courts should not apply

a federal law where it would interfere with a “core state function”

unless there is clear Congressional intent to apply the law in

question. (7a- 11a.) The court found that the broadly inclusive

language of the Acts, applying the Rehabilitation Act to “all of

the operations of any program or activity receiving Federal

financial assistance’ and the ADA to “‘any department [or] . . .

agency of a state or of a local government”, did not evince such

17

clear Congressional intent to apply the Acts to prison

management.’ (6a, | la.)

The court also examined specific terms within the Acts. It

opined that prison administrators “do not provide . . . ‘programs,’

or ‘activities’”, both within the meaning of the Rehabilitation Act

and as those terms are ordinarily understood, because prison

officials’ chief responsibilities are security and, to a lesser degree,

rehabilitation. (13a.) Similarly, the court found that a prisoner

could never meet []... the ADA’s definition of a “qualified

individual with a disability” because the definition includes

persons who “‘meet []... eligibility requirements ae

participation” in certain services and programs; the court reasoned

that this aspect of the definition implied a voluntariness

incompatible with forced confinement. /d. Thus, the Fourth

Circuit opined that prisons do not fit within the section heading of

the ADA, “Public Services,” and the ADA’s term “public entity”

because those two terms “connote [] a ban on discrimination in

services provided to the public, not in the prison context where the

public is excluded.” (12a.)

The court also focused on sections of the regulations which

did not explicitly reference prisons. (20a - 22a.) However, other

sections of the regulations promulgated by the Department of

Justice (“DOJ”) under both Acts clearly and unambiguously state

that the Acts cover state prisoners. These regulations evince

Congressional intent that the Acts govern the administration of

state prisons. Furthermore, the DOJ remains steadfast in its

interpretation that the Acts cover state prisoners. !°

9. In reaching this conclusion, the court cited a series of cases to support the

related proposition that “broadly worded federal statutes are not

presumptively applicable to state prisons.” Ironically, the cases cited all

involve the application of federal labor laws to state prisons. (8a - 9a.) Far

from illustrating ihe Fourth Circuit's desired point, the cases merely restate

the Williams holding that prisoners possess limited employment rights. See

discussion Section I.B infra.

10. Ina letter dated September 22, 1995, the DOJ unequivocally affirmed its

view that the Acts apply to state prisons. A copy of the DOJ’s letter is

included in the Appendix to this Petition.

18

This Court has on many occasions emphasized that DOJ

regulations are drafted under the Oversight and with the approval

of Congress, thereby necessitating judicial deference.

Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634-35 and

nn.14-16 (1984); Alexander y. Choate, 469 U.S. 287, 304 n.24

(1985); School Board of Nassau County v. Arline, 480 U.S. 273

(1987). These holdings are consistent with the general rule of

statutory construction that courts should exercise deference with

regard to administrative interpretations. See, e.g., Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,

844-45 (1984).

In addition, this Court has specifically stressed the

importance of the Rehabilitation Act’s regulations, holding in

School Board of Nassau County v. Arline that the Rehabilitation

Act regulations are “‘an important source of guidance on the

meaning of [the Rehabilitation Act].”” 480 U.S. at 279. Since the

ADA’s regulations were promulgated by the DOJ under the

specific mandate of Congress, see 42 U.S.C. § 12134 (Supp.

1993), this Court should also regard them as authoritative

interpretations of the ADA. Consolidated Rail Corp. v. Darrone,

465 U.S. 624, 634-35 and nn. 14-16 (1984); Alexander y. Choate,

469 U.S. 287, 304 n.24 (1985); School Board of Nassau County y.

Arline, 480 U.S. 273 ( 1987).

1. Rehabilitation Act Regulations

The DOJ issued regulations implementing the Rehabilitation

Act on June 3, 1980; these regulations became effective on July 3,

1980. The Rehabilitation Act provides that “[n]o otherwise

qualified individual with a disability ... shall, solely because of

her or his disability,... be denied the benefits of ... any

program or any activity receiving Federal financial assistance”.

(emphasis added) (59a.) Part 42 of the implementing regulations

defines the terms “program” and “benefit” as follows:

“The term program means the operations of the agency

Or Organizational unit of government receiving or

substantially benefiting from the Federal assistance

awarded, e.g., a police department or department of

corrections.” (emphasis added)

28 C.F.R. § 42.540(h) (1995).

19

“Benefit includes provision of services, financial aid or

disposition (i.e., treatment, handling, decision,

sentencing, confinement, or other prescription of

conduct.)” (emphasis added)

28 C.F.R. § 42.540(j) (1995).

In addition, the preamble to the implementing regulations

provides, under the subheading “Detention and Correctional

Agencies and Facilities”, that “a sufficient number of detention

cells [must] be accessible to wheelchair users”. 45 Fed. Reg.

37,620, 37,630 (1980). That preamble continues as follows:

[flacilities available to all inmates or detainees, such as

classrooms, infirmary, laundry, dining areas, recreation

areas, work areas, and chapels, must be readily

accessible to any handicapped person who is confined to

that facility. Beyond insuring the physical accessibility

of facilities, detention and correctional agencies must

insure that their programs and activities are accessible to

handicapped persons. ... In making housing and

program assignments, such [correctional] officials must

be mindful of the vulnerability of some handicapped

inmates to physical and other abuse by other inmates.

The existence of a handicap alone should not, however,

be the basis for segregation of such inmates in

institutions or any part thereof where other arrangements

can be made to satisfy the safety security, and other

needs of the handicapped inmate.

(emphasis added) /d.

Further regulations issued by the DOJ in 1984 pursuant to

amendments to the Rehabilitation Act specifically include Federal

prisons within the Act’s scope:

“Before filing a complaint under this section, an inmate

of a Federal penal institution must exhaust the Bureau of

Prisons Administrative Remedy Procedure as set forth in

28 CFR part 542.” (emphasis added)

28 C.F.R. § 39.170(d)(ii) (1995).

The Fourth Circuit held that prisons do not provide

“programs” and “activities” within the meaning of the

Rehabilitation Act (13a.) and that “Torcasio’s claim that various

federal regulations reveal that the applicability of the acts to state

20

prisons was clearly established is . . . unpersuasive.” (20a.) This

finding is unambiguously contradicted by the DOJ regulations

which contemplate application of the Acts to prisons and include

references to prisons in their very definition of “program” and

“benefit”.!!

2. The ADA Regulations

The DOJ issued regulations implementing the ADA on

July 26, 1991; those regulations became effective on January 26,

1992. Paragraph b(8) of Part 35 of the implementing regulations,

entitled “Nondiscrimimation on the Basis of Disability in State and

Local Government Services,” forbids a public entity from

establishing eligibility procedures which exclude those with

disabilities from fully and equally enjoying a service, program or

activity, unless provision of the service makes the eligibility

criterion necessary. The implementing regulations were issued in

conjunction with a detailed interpreted analysis. The analysis for

paragraph b(8) explains that paragraph’s scope as follows:

“[p]aragraph (b)(8) also prohibits policies that

unnecessarily impose requirements or burdens on

individuals with disabilities that are not placed on others.

For example, public entities may not require that a

qualified individual with a disability be accompanied by

an attendant. A public entity is not, however. r ired to

rovide attendant care, or assistance in toiletin eatin

or dressing to individuals with disabilities except in

special circumstances, such as where individual is an

inmate of a custodial or correctional institution.”

(emphasis added)

28 C.F.R. § 35.130 app. A (1995).

11. As discussed in Section I.A supra, these regulations also refute the Fourth

Circuit's interpretation of Williams by clearly indicating that the Tenth

Circuit’s conclusion that federal Prisons do “not fit the definition of

‘programs’ or ‘activities’ governed by [the Rehabilitation Act],” 926 F.2d

at 997, cannot constitute a wholesale exclusion of prisons from the Act’s

scope.

21

Part 35 also lists the Department of Justice as the designated

agency for “[aJll programs, services, and regulatory activities

relating to law enforcement, public safety, and the administration

of justice, including courts and correctional institutions...”

(emphasis added) 28 C.F.R. § 35.190(b)(6) (1995).

The Fourth Circuit incorrectly held that prisons do not

provide “programs”, “activities” and “services” under the ADA.

(13a.) Once again, the ADA regulations’ references to “inmates”

and “correctional institutions” unambiguously refute the Fourth

Circuit’s holding.

3. Uniform Federal Accessibility Standards

The Uniform Federal Accessibility Standards (“UFAS”) were

developed by the General Services Administration, the

Department of Housing and Urban Development, the Department

of Defense and the United States Postal Service pursuant to the

Architectural Barriers Act of 1968. The UFAS contains detailed

construction requirements and diagrams, originally applicable to

federal buildings, designed to insure equal access to buildings by

the disabled. The Rehabilitation Act implementing regulations

incorporate by reference the UFAS requirements,'? 28 C.F.R. §

42.522(b) (1995); in addition, DOJ has appended the UFAS

requirements to the ADA implementing regulations. 28 C.F.R.

§ 35.151(c) (1995). The UFAS expressly includes within its scope

“institutional occupancies where the occupants are under some

degree of restraint or restrictions for security reasons” and lists

under that category “jails”, “prisons” and “other detention or

correctional facilities.” 41 C.F.R. § 101-19.6 app. A § 4.1.4(9)(c)

(1994).

12. The Rehabilitation Act regulations also limit exemptions from the UFAS

requirements to “mechanical rooms and other spaces that, because of their

intended use, will not require accessibility to... beneficiaries or result in

the employment or residence therein of persons with physical handicaps.”

28 C.F.R. § 42.522(2) (1995). By its terms, this exemption could not

include residence facilities for disabled prisoners or other spaces that

disabled prisoners might frequent.

22

Cumulatively, these regulations under the Rehabilitation Act

and the ADA indicate that correctional institutions, departments of

correction, sentencing and confinement are entities and activities

subject to the provisions of the Acts. As discussed above, the DOJ

issued the Rehabilitation Act implementing regulations on June 3,

1980; those regulations became effective on July 3, 1980, thus

preceding Torcasio’s induction into the VDOC by more than ten

years. The ADA implementing regulations were issued on

July 26, 1991, and became effective on January 26, 1992. Both

sets of regulations were published and in effect during the period

of Torcasio’s confinement.

The Fourth Circuit required that “Congress .. . Speak

unequivocally before we will conclude that it has ‘clearly’

subjected state prisons to its enactments.” (lla.) As these

regulations evidence, Congress, through the power it has explicitly

delegated to the DOJ, has unequivocally stated that the Acts apply

to state prisons. The Fourth Circuit's finding that clear

Congressional intent does not exist is clearly wrong.

II. THE FOURTH CIRCUIT’S DETERMINATION THAT

MORBID OBESITY WAS NOT A CLEARLY

ESTABLISHED DISABILITY AT THE TIME OF THE

INCIDENTS CONTRADICTS THE INDIVIDUALLY-

FOCUSED QUALIFIED IMMUNITY ANALYSIS USED

BY THE FIFTH AND SEVENTH CIRCUITS.

The affirmative defense of qualified immunity shields

government officials from civil liability when the officials’ actions

do not “violate Clearly established Statutory or constitutional rights

of which a reasonable person would have known.” Harlow y.

Fitzgerald, 457 U.S. 800, 818 (1982); Collinson v. Gott, 895 F.2d

994, 998 (4th Cir. 1990) (“an official may be entitled to immunity

from suit even where he has violated a plaintiff’ s rights -- if they

were not then ‘clearly established’ or if a ‘reasonable person’ in

the official’s position could have failed to appreciate that his

conduct would violate them”). A qualified immunity inquiry

involves both “determining whether at the time of the alleged

violation the right was clearly established and... then

determining whether a reasonable person in the officer’s position

23

would have known that doing what he did would violate that

right.” Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992).

In conducting its qualified immunity analysis, the Fourth

Circuit found that “neither the statutes, nor the case law, nor the

applicable regulations clearly establish that the ADA or the

Rehabilitation Act apply to the obese.” (26a.) The court

predicated this conclusion on the following: (i) neither the

language nor the regulations under the Acts use the term obesity;

and (ii) cases finding obese individuals to be covered by the Acts

were decided after Torcasio was released. (27a - 30a.) However,

the court’s analysis failed to include an individualized

examination of Torcasio’s specific physical impairments, the Fifth

and Seventh Circuits have held such an individualized

examination to be an integral component of the functional

definitions of “disability” under the Acts.

The Rehabilitation Act defines an “individual with a

disability” as “any person ... [with] “a physical or mental

impairment which substantially limits one or more of such

person’s major life activities.” 29 U.S.C. § 706(8)(B)( 1988).

Similarly, under the ADA, the term “disability” refers to an

individual with “a physical or mental impairment that substantially

limits one or more of the major life activities of such

individual. . .” (65a.)!3

Both the Fifth and Seventh Circuits have consistently

required individualized, case-by-case examinations to determine

whether particular impairments constitute disabilities under the

Rehabilitation Act. In Chandler v. City of Dallas, 2 F.3d 1385

(5th Cir. 1993), the Fifth Circuit held that “[a] determination[] of

whether an individual is handicapped [under the Rehabilitation

Act]. . . [is] necessarily [an] individualized inquir[y]” and “is best

13. The ADA regulations in turn define “physical or mental impairment” to

mean “[a]ny physiological disorder, or condition, cosmetic disfigurement,

or anatomical loss affecting one or more of the following body systems:

neurological, musculoskeletal, special sense organs, respiratory (including

speech organs), <2 ‘Sovascular, reproductive, digestive, genito-urinary,

hemic and lymphatic, skin, and endocrine; or ... any mental or

psychological disorder...” 29 C.F.R. § 1630-2(h)(1), (2) (1995).

24

Suited to a case-by-case determination.” /d. at 1396. The Court

also noted that “[t}he effect of a given type of impairment . . . can

vary widely from individual to individual” and that “[t]he prospect

of continuing medical advances in... treatment . . . further

supports the need for individualized inquiries.” /d. Similarly, the

Seventh Circuit in Byrne v. Board of Educ. School of W. Allis, 979

F.2d 560, 564 (7th Cir. 1992), echoed the need for an

individualized inquiry conducted on a case-by-case basis and

expressed disapproval for courts which “assume, without deciding,

... [whether] a Person's condition constitutes a handicap [under

the Rehabilitation Act].”"!4

The Fourth Circuit's attempt to create an analytical

distinction between the determination of Torcasio’s present status

as handicapped and his status at the time of the incidents as

“clearly” handicapped fails to account for the court’s omission of

an individualized discussion of Torcasio’s condition. Whether the

court conducts a post-hoc qualified immunity analysis or a

contemporaneous analysis, the court must still conduct an

individualized inquiry. If, at the time of the events, Torcasio’s

physical conditions and limitations clearly placed him within the

functional definitions set forth in the Acts, his entitlement as a

handicapped or disabled person would be “clearly established”,

regardless of whether regulations under the Acts specifically used

the word “obese” or whether any court had ever previously ruled

that a five foot, seven inch, four hundred fitty pound man fit the

definitions of disability found in the Acts.

The Fourth Circuit’s approach would produce absurd results.

Given that the Acts dictate individualized analysis of disabilities, :

it would be effectively impossible for Prison inmates to overcome |

14. This reasoning applies with equal force to the ADA. As noted above, the

Rehabilitation Act and the ADA mirror each other in both Purpose and

language. See discussion I.A.2 infra. Furthermore, both Acts define

by-case basis. In fact, the Chandler court looked to the ADA and its

regulations for guidance in determining whether the plaintiff's diabetic

condition constituted a handicap under the Rehabilitation Act. 2 F.3d at

1391.

25

the “clearly established” prong of the qualified immunity defense.

Ironically, the Fourth Circuit itself noted the incompatibility of its

approach with the individualized nature of a disability inquiry

under the Acts. The Fourth Circuit stated that: “[g]iven that both

the ADA... and the Rehabilitation Act... contemplate

individualized assessments of whether a person qualifies as an

‘individual with a disability,’ a plaintiff will often have difficulty

showing that it was ‘clearly established’ that his particular

condition brought him within the coverage of either act.” (27a.)

The Fourth Circuit’s approach, by its own admission, would allow

prison officials to avoid enforcing the Acts’ substantive provisions

by endlessly searching for perfect matches, either in statutory

language, regulations, or case law, thereby categorizing disabled

state prisoners as falling outside the scope of the Acts’ coverage.

The individualized standard used by the Fifth and Seventh

Circuits stands in sharp contrast to the Fourth Circuit’s abstract

categorization. Conspicuously absent from the Fourth Circuit's

discussion is any mention of the specifics of Torcasio’s physical

conditions and the myriad ways in which those conditions limit his

daily activities. Rather, the Fourth Circuit focuses only on the

statutory language, the regulations under the Acts, and relevant

case law to determine whether “the applicability of the [A]cts to

the [category of the] obese was clearly established.” (29a.) The

Fourth Circuit’s exclusive reliance on these three factors to

establish whether Torcasio’s particular physical impairment

constitutes a “clearly established” disability under the Acts

contradicts the individualized, case-by-case analysis used by the

Seventh and Fifth Circuits.

26

Ill. THE FOURTH CIRCUIT’S CONCLUSION THAT

RESPONDENTS ARE ENTITLED TO QUALIFIED

IMMUNITY DESPITE THE EXISTENCE OF MANY

UNRESOLVED FACTUAL ISSUES CONTRADICTS

THE QUALIFIED IMMUNITY STANDARD

EMPLOYED BY THE NINTH AND SECOND

CIRCUITS.

The Fourth Circuit held that, even if the Acts do apply to

morbidly obese state prisoners, the respondent prison officials are

still entitled to qualified immunity as to all of Torcasio’s claims

because their conduct “‘could reasonably have been thought

consistent’” with Torcasio’s rights under the Acts. (30a.) This

conclusion directly contradicts the Eastern District of Virginia’s

decision that the existence of several unresolved issues of fact

precluded a qualified immunity finding as to most of Torcasio’s

claims. (54a - 57a.) More importantly, the Fourth Circuit's

decision to ignore those unresolved issues of fact also directly

contradicts the qualified immunity standard used by the Ninth and

Second Circuits.

The district court found that “material issue(s] of fact”

existed as to the respondents’ reasonable belief that Torcasio’s

cell door was wide enough, whether Torcasio was given extra time

to travel between buildings, and whether accommodation was

needed for Torcasio’s toilet. /d. In addition, respondents

completely failed to address in their pleadings Torcasio’s requests

regarding the prison building lobby, the dining hall, medical

transportation and the commissary window/pill line. (57a.) The

Fourth Circuit left undisturbed the district court’s conclusion that

these and other issues of fact remain unresolved. Rather, the

Fourth Circuit merely concluded that “VDOC officials took

significant steps to address Torcasio’s obesity-related complaints.”

(32a.) :

By classifying the respondents’ conduct as “reasonable”

without even knowing -- in many instances -- the nature of that

conduct, the Fourth Circuit undermined the very part of the

qualified immunity analysis that it sought to apply, the objective

reasonableness test. The objective reasonableness component

logically requires an examination of both the facts as they

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transpired and the objective reasonableness of those facts. The

Fourth Circuit cannot objectively analyze undetermined facts.

Furthermore, both the Ninth and Second Circuits have

recognized the fundamental connection between the resolution of

material issues of fact and the objective reasonableness component

of the qualified immunity inquiry. In Act Up!/Portland v. Bagley,

988 F.2d 868 (9th Cir. 1993), the Ninth Circuit held that “[i]f a

genuine issue of fact exists preventing a determination of qualified

immunity,... the case must proceed to trial.” /d. at 873.

Similarly, the Second Circuit in Oliveira v. Mayer, 23 F.3d 642

(2d Cir. 1994), held that qualified immunity determinations should

be made by the court “only in those cases where the facts

concerning the availability of the defense are undisputed;

otherwise, jury consideration is normally required.” /d. at 649.

The rule enunciated by the Second and Ninth Circuits applies to

the case at hand; the Fourth Circuit’s finding of qualified

immunity based on the reasonableness of respondents’ responses

was premature absent specific findings on all the disputed facts

involved in the defense of qualified immunity. Moreover, the

standard implicitly recognized in the Fourth Circuit’s holding --

that courts are free to rule on objective reasonableness without

resolving disputed issues of material fact -- directly contradicts the

standard employed by both the Second and Ninth Circuits.

IV. THE COURT SHOULD GRANT THE WRIT IN ORDER

TO PREVENT THE DISASTROUS RESULTS OF THE

FOURTH CIRCUIT’S DECISION.

The Fourth Circuit’s decision has created a conflict of

authority between the Fourth, Ninth and Tenth Circuits on the

question of the Rehabilitation Act’s applicability to state prisons.

Also, the Fourth Circuit’s ruling makes it likely that a conflict of

authority will soon arise on the question of whether the ADA

applies to state prisons. Furthermore, the Fourth’s Circuit’s ruling

blatantly contradicts the regulations implementing the Acts and

relies on an unsupportable interpretation of the Tenth Circuit's

decision in Williams. If the Fourth Circuit’s decision is left

undisturbed, state prison officials will never have to abide by the

clear mandate of the Acts. Future courts will be forced to either

cite the Fourth Circuit decision as precedent with respect to the

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Acts’ inapplicability to state prisons or grant qualified immunity to

prison officials based on the confusion left in the wake of the

Fourth Circuit's decision.

Furthermore, the Fourth Circuit’s qualified immunity analysis

breaks with the established standards employed by other circuits.

First, the Fourth Circuit failed to undertake an individualized

examination to determine whether Torcasio’s particular physical

problems constituted a “clearly established” disability within the

functional definitions of the Acts. By eschewing the

individualized approach required by the Acts and advocated by the

Fifth and Seventh Circuits, the Fourth Circuit saddled disabled

state prisoners with a burden of proof that will be practically

impossible to meet, thereby denying them the basic protections

guaranteed by the Acts.

The Fourth Circuit also contravened Second and Ninth

Circuit precedent requiring that all material issues of fact be

resolved before a court can conduct the objective reasonableness

component of the qualified immunity inquiry. Despite numerous

unresolved material facts vital to a determination of respondents’

objective reasonableness under the circumstances, the Fourth

Circuit granted the officials complete qualified immunity. By

determining the reasonableness of the respondents’ conduct

without even knowing the true nature of that conduct, the Fourth

Circuit’s holding transforms the doctrine of qualified immunity

into an impenetrable shield for prison officials who wish to deny

disabled state prisoners their rights under the Acts.

Based on the Fourth Circuit’s decisions, state prison officials

will be free to deny to thousands of disabled state prisoners the

most basic of accommodations. The prospect of inconsistent and

discriminatory applications of the Acts and qualified immunity

inquiries, as well as the substantive weakness of the Fourth

Circuit’s decision, render it imperative that this Court resolve the

existing conflict by issuing the writ.

should be granted.

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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

Dated: New York, New York

Of Counsel:

Andrew E. Lund

J. Andrew Ward

Hughes Hubbard & Reed

September 27, 1995

Respectfully submitted,

Counsel of Record:

Daniel H. Weiner

One Battery Park Plaza

New York, New York 10004

Attorney for Petitioner Anthony Torcasio

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