Appendix — Torcasio v. Angelone

TABLE OF CONTENTS

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Opinion of the Fourth Circuit ...............sescccccssssssoeee onbutevcncaiaen la

Opinion of the Eastern District of Virginia..............0::ccccee 34a

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Americans with Disabilities Act of 1990 0.0... eeeeeeeeeee 62a

Letter from the United States Department of Justice .............. 68a

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Opinion of the Fourth Circuit

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

rs

No. 94-7206

cs

Anthony Torcasio,

Plaintiff-Appellee,

W

Edward W. Murray, Director; G. L. Bass, Deputy Warden; Mary

Sue Terry; Steven D. Rosenthal; Rufus Fleming; David L.

Robinson; R. J. Beck; G.P. Dodson,

Defendants-Appellants,

and

Vosbeck/DMJM,

Defendant.

ys

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-92-558-A)

Argued: April 3, 1995 Decided: June 29, 1995

Before WIDENER and LUTTIG, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

>

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Affirmed in part and reversed in part by published opinion. Judge

Luttig wrote the opinion, in which Judge Widener and Senior

Judge Phillips joined.

an ‘as

COUNSEL

ARGUED: Mark Ralph Davis, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Criminal Law

Division, Richmond, Virginia, for Appellants. Nancy Braverman

Blume, HUGHES, HUBBARD & REED, New York, New York,

for Appellee. ON BRIEF: James S. Gilmore, III, Attorney

General of Virginia, Jill Bowers, Assistant Attorney General,

Criminal Law Division, OFFICE OF THE ATTORNEY

GENERAL, Richmond, Virginia, for Appellants. Daniel H.

Weiner, HUGHES, HUBBARD & REED, New York, New York:

Douglas M. Cott, SPIRER & COTT, Westport, Connecticut, for

Appellee.

———

OPINION

LUTTIG, Circuit Judge:

We consider in this case whether the district court erred

when it partially denied qualified immunity to officials of the

Virginia Department of Corrections (VDOC) in a suit by a

morbidly obese inmate under section 504 of the Rehabilitation Act

of 1973 (Rehabilitation Act), 29 U.S.C. § 794, and Title II of the

Americans With Disabilities Act (ADA), 42 U.S.C. § 12132. We

conclude that, at the time of the alleged violations, it was not

clearly established that these acts applied to state prisoners, or that

an obese individual such as appellee Anthony Torcasio was

entitled to the protection of either act. We also find that the

VDOC officials reasonably could have believed that their actions

did not violate any right Torcasio had to modifications in his

milieu at the Keen Mountain Correctional Center. Given our

determination that the appellant prison officials are entitled to

qualified immunity as to all of Torcasio’s claims, we affirm the

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judgment of the district court to the extent that it found the

appellants immune, and reverse to the extent that it did not.

Appeilant Anthony Torcasio suffers from what he

describes as “morbid obesity.” He stands five feet, seven inches

tall, weighs 460 pounds, and has girth of 78 inches. His obesity,

he claims, causes him a variety of physical discomforts, including

back pain and sleep apnea. He is unable to walk long distances,

incapable of standing or lying down for prolonged periods of time,

and susceptible to losing his balance. In a memorandum he filed

with the district court, Torcasio characterized his day-to-day

existence as “a life of misery and heartache.” J.A. at 87.

Torcasio spent three years as an inmate in the Virginia

Department of Corrections, residing at a total of four correctional

facilities. The present claim relates principally to his time at

YVDOC’s Keen Mountain facility, where Torcasio was housed

from April 22, 1993, until he was paroled in the spring of 1994.

During his incarceration, Torcasio presented VDOC officials with

a lengthy and ever-increasing list of modifications which he

insisted were necessary to accommodate his obese condition.

Thus, he demanded a larger cell, a cell closer to the support

facilities, handrails to assist him in using the toilet, wider

entrances to his cell and the showers, non-skid matting in the

lobby area, and alternative outdoor recreational activities to

accommodate his inability to stand or walk for long periods of

time. When the VDOC officials failed to grant him all of these

accommodations, Torcasio filed this action, contending that the

officials’ intransigence violated “the federal laws enacted by the

legislative mandate of the United States Congress that federally

protects and ensures the rights of the physically disabled person.” !

1. The district court properly interpreted Torcasio’s pro se complaint as

invoking the ADA and Rehabilitation Act.

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See J.A. at 13, 77. Torcasio sought injunctive relief as well as

monetary damages.2

In the spring of 1994, as this case was proceeding in

district court, Torcasio was paroled. The district court accordingly

dismissed those portions of Torcasio’s complaint that sought

injunctive relief. Proceeding to the remainder of the claims, the

district court first held that the ADA and the Rehabilitation Act do

apply to state prisoners, thereby rejecting the argument of the

VDOC officials that the acts do not apply in this context. See

Torcasio v. Murray, 862 F. Supp. 1482, 1490-91 (E.D. Va. 1994).

The court then addressed the question at issue in this appeal,

namely, whether the officials were entitled to qualified immunity.

The court first determined that “it is clear that correctional

facilities were subject to the provisions of the ADA and

Rehabilitation Act” at the time of Torcasio’s incarceration at Keen

Mountain, id. at 1493; this was the extent of the court’s inquiry

into the essential question of whether the right allegedly violated

by the officials — “a morbidly obese inmate’s right to the

modification of specific services and facilities,” id. — was clearly

established. Having found, to that extent, that the right at issue

was Clearly established, the court proceeded to analyze, literally

request by request, whether the VDOC officials’ responses to

Torcasio’s requests for accommodation were reasonable. The

court concluded that, with respect to Torcasio’s complaints about

2. The appellants contend that monetary relief is unavailable under the

Rehabilitation Act and ADA to remedy discrimination outside of “the

employment context.” Appellants’ Br. at 10-11, 17. The remedies available

for ADA violations are those available for Rehabilitation Act violations, and

in Pandazides v. Virginia Board of Education, 13 F.3d 823 (4th Cir. 1994),

we held that “suits under [the Rehabilitation Act] provide the plaintiff a full

panoply of legal remedies,” including monetary damages. /d. at 832. We

see no basis for reading Pandazides as limited to the employment context, as

the appellants urge. For purposes of this case, we will assume that monetary

damages are available for violations of both acts, because we hold in favor of

the appellants on other grounds.

Sa

access to the shower, outdoor recreational activities, and his cell,

the officials were entitled to qualified immunity, while they were

not so entitled on Torcasio’s complaints about his toilet, his cell

door, and the dining facilities. See id. at 1493-95. The

Commonwealth then filed this interlocutory appeal challenging the

partial denial of qualified immunity.

Our review of the record convinces us that the district

court erred in not granting the defendant prison officials’ motion

for summary judgment on the basis of qualified immunity as to all

of Torcasio’s claims. “Government officials are protected by

qualified immunity ‘as long as their actions could reasonably have

been thought consistent with the rights they are alleged to have

violated.””” DiMeglio v. Haines, 45 F.3d 790, 794 (4th Cir. 1995)

(quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “In

analyzing a claim of qualified immunity it is . . . necessary first to

identify the specific .. . right allegedly violated, then to inquire

whether at the time of the alleged violation it was clearly

established, then further to inquire whether a reasonable person in

the official’s position would have known that his conduct would

violate that right.” Collinson v. Gott, 895 F.2d 994, 998 (4th Cir.

1990) (Phillips, J., concurring) (citing Mitchell v. Forsyth, 472

U.S. 511, 535 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). In our view, proper application of these principles leads

inexorably to the conclusion that the VDOC officials are fully

entitled to qualified immunity in this case, because the right

Torcasio contends was violated was not clearly established at the

time of the alleged violations, and because the actions of the

VDOC officials reasonably could have been thought consistent

with any rights Torcasio might have had.3

3. Because we conclude that the VDOC officials were entitled to qualified

immunity, we do not address their alternative defenses that the

Rehabilitation Act and ADA afford Torcasio no private right of action

against prison officials, and that Torcasio lacks standing to sue because he is

not in an employment relationship with the appellants. See Appellants’ Br.

at 8-10, 15-16.

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Torcasio contends that by refusing to grant his requested

accommodations, officials at Keen Mountain violated “a morbidly

obese inmate’s right to the modification of specific [prison]

services and facilities.” Appellee’s Br. at 38. The district court

found that this right was clearly established during the time

Torcasio was incarcerated. We cannot agree.

First, it was not clearly established at that time that the

ADA and Rehabilitation Act — the two acts upon which

Torcasio’s claim of a right to modification of services and

facilities is predicated — applied to state prisons. Second, even if

it were clear that Torcasio, as a prisoner in a state facility, was

protected by the Rehabilitation Act and the ADA, it was not

clearly established that, as a “morbidly obese” individual, he

qualified as an “individual with a disability” protected under either

act.

A,

In attempting to demonstrate that, at the time he was

imprisoned at Keen Mountain, it was “clearly established” that the

State prisons were subject to the strictures of the ADA and the

Rehabilitation Act, Torcasio begins, appropriately, with the

language of the two statutes. He contends that there can be no

doubt that the ADA and the Rehabilitation Act apply to state

prisons, because both acts are written in broad terms that clearly

encompass state prisons.

1.

Although when viewed in their entirety, the ADA and the

Rehabilitation Act are not so broad as Torcasio suggests, see infra

p. 10, Torcasio is correct to observe that certain portions of both

Statutes employ language which, when viewed in isolation,

appears all-encompassing. Title II of the ADA outlaws

discrimination against the disabled by “public entities,” a term

which, as Torcasio notes, includes “any State or local

government” and “any department, agency ... or other

Ta

instrumentality of a State or States or local government.” 42

U.S.C. § 12131(1) (emphasis added). The Rehabilitation Act,

similarly, prohibits discrimination against disabled individuals

“under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a) (emphasis added), and defines

“program or activity” to include “all of the operations of ...a

department, agency, special purpose district, or other

instrumentality of a State or of a local government.” 20 U.S.C.

§ 794(b)(1)(A). We are not persuaded that this language,

however, even viewed in isolation from the arguably narrowing

text fund elsewhere in the acts, brings state prisons “squarely”

within the reach of these acts.

Were we presented with the question whether these acts

apply to a state entity other than a prison, we might come to our

task with a somewhat different juriprudential mindset. We are

hesitant to extend the coverage of the acts to state prisons,

however, and especially reluctant to conclude that the applicability

of the acts to state prisons was at a given point “clearly

established,” absent a far clearer expression of congressional

intent.

In Will v. Michigan Dept. of State Police, 491 U.S. 58

(1989), the Supreme Court described as an “ordinary rule of

Statutory construction” the principle that:

if Congress intends to alter the “usual

constitutional balance between the States and the

Federal Government,” it must make its intention

to do so “unmistakably clear in the language of

the statute.” Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 242 (1985); see also

Pennhurst State School and Hospital v.

Halderman, 465 U.S. 89, 99 (1984). . . . Congress

should make its intention “clear and manifest” if it

intends to pre-empt the historic powers of the

States, Rice v. Santa Fe Elevator Corp., 331 US.

218, 230 (1947), or if it intends to impose a

condition on the grant of federal moneys,

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Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 16 (1981); South Dakota

v. Dole, 483 U.S. 203, 207 (1987). “In

traditionally sensitive areas, such as legislation

affecting the federal balance, the requirement of

clear statement assures that the legislature has in

fact faced, and intended to bring into issue, the

critical matters involved in the judicial decision.”

United States v. Bass, 404 U.S. 336, 349 (1971).

Will, 491 U.S. at 65. The Court has thus instructed that where

application of a federal statute to a state “would upset the usual

constitutional balance of federal and state powers[,] .. . ‘it is

incumbent upon the federal courts to be certain of Congress’ intent

before finding that federal law overrides’ this balance.” Gregory

v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero, 473

U.S. at 243). See also United States v. Lopez, 115 S. Ct. 1624,

1655 (1995) (Souter, J., dissenting) (clear statement rule

applicable where case “implicat[es] Congress's historical

reluctance to trench on state legislative prerogatives or to enter

into spheres already occupied by the States.”); Davies Warehouse

Co. v. Bowles, 321 U.S. 144, 154 (1944) (“The existence and force

and function of established institutions of local government are

always in the consciousness of lawmakers and, while their weight

may vary, they may never be completely overlooked in the task of

interpretation.”).

It cannot be disputed that the management of state prisons

is a core state function. As the Supreme Court has stated, “[i]t is

difficult to imagine an activity in which a State has a stronger

interest, or one that is more intricately bound up with state laws,

regulations, procedures, than the administration to its prisons.”

Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973). Indeed, it is

elementary that “maintenance of penal institutions is an essential

part” of one of government’s “primary functions” — the

preservation of societal order through enforcement of the criminal

law.” Procunier v. Martinez, 416 U.S. 396, 412 (1974). The fact

that management of state prisons is a core function of the state

sovereign, and is not presumptively subject to federal control,

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played a significant role in our recent decision in Harker v. State

Use Industries, 990 F.2d 131 (4th Cir.), cert. denied, 114 S. Ct.

238 (1993), in which we held that state prisoners involved in an

employment skills development program in prison were not

entitled to the minimum wage specified in the Fair Labor

Standards Act (FLSA). See id. at 133 (“Even with a broad reading

of this term [‘employee’], we see no indication that Congress

provided FLSA coverage for inmates engaged in prison labor

programs like the one in this case.”); id. at 136 (“If the FLSA’s

coverage is to extend within prison walls, Congress must say so,

not the courts.”). See also Gilbreath v. Cutter Biological, Inc.,

931 F.2d 1320, 1325 (9th Cir. 1991) (Opinion of Trott, J.) (“It is

equally plausible, if not more so, that in view of the manifest

purpose of Congress in enacting the FLSA, it did not cross any

member’s mind even — for a moment - that felons serving hard

time in prison and working in the process would be covered by

this economic protection. I reject as almost whimsical the notion

that Congress could have intended such a radical result as bringing

prisoners within the FLSA without expressly so stating. There are

obvious policy considerations in such a result that should be

openly addressed by Congress, not the courts.”).4

4. Most courts have been similarly unwilling to extend the protections of the

FLSA to prison inmates. See Harker, 990 F.2d at 135 (citing Vanskike v.

Peters, 974 F.2d 806, 808 (7th Cir. 1992); Miller v. Dukakis, 961 F.2d 7,8

(1st Cir. 1992); Gilbreath, 931 F.2d at 1325-26, 1328-31). We recognize

that some of these courts have refused to adopt a per se rule that the FLSA is

inapplicable to prisoners, and have instead employed an “economic reality”

test, which in theory permits an inmate to qualify as an employee. See, e.z.,

Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984).

However, the fact that some courts have followed this course does not, in our

view, cast doubt on our premise that broadly-worded federal statutes are not

presumptively applicable to state prisons. The FLSA is more plausibly

interpreted as applying to state prisons than are the ADA and the

Rehabilitation Act, because it contains a list of particular classes of workers

who are not entitled to FLSA protections. See 29 U.S.C. § 213(a)

(exempting, inter alia, executives, casual babysitters). This provision

supplies some of the specificity lacking from the Rehabilitation Act and

ADA, because where Congress has specifically excluded some would-be

(Footnote continued on next page)

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That the management of state prisons is to be left to the

States, as free as possible of federal interference, is confirmed by a

long line of Supreme Court precedent, which we recently had

occasion to review in the context of an Eighth Amendment

challenge to prison conditions at a state facility. In that context,

we concluded that “absent the most extraordinary circumstances,

federal courts are not to immerse themselves in the management of

state prisons or to substitute their judgment for that of the trained

penological authorities charged with the administration of such

facilities.” Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994)

(citing Turner v. Safley, 482 U.S. 78, 84-85 (1987); Rhodes v.

Chapman, 452 U.S. 337, 349 (1981); Bell v. Wolfish, 441 U.S.

520, 562 (1979); Procunier v. Martinez, 416 U.S. 396 (1974),

overruled on other grounds, Thronburgh v. Abbott, 490 U.S. 401,

413-14 (1989); Preiser v. Rodriguez, 411 U.S. 475 (1973)). See

also Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir.

1988). Although the unwillingness of federal courts to intrude

into state prison management is in part due to the fact that the

judiciary lacks the expertise of the executive and legislature in

such matters, it is in significant measure motivated by the

realization that principles of comity and federalism apply with

special force in the context of correctional facilities. See, e.g.,

Preiser, 411 U.S. at 492 (“[The] internal problems of state prisons

involve issues so peculiarly within state authority and expertise”);

Martinez, 416 U.S. at 405 (“[W]here state penal institutions are

involved, federal courts have a further reason [in addition to the

inefficacy of judicial intervention] for deference to the appropriate

authorities.”); Turner, 482 U.S. at 85.

(Footnote continued from previous page)

employees from the scope of a statute, the inference can be drawn that

Congress intended the act to cover employees not included in that list. See,

e.g., Carter, 735 F.2d at 13 (relying on this expressio unius reasoning).

lla

There can be little question that application of the ADA

and Rehabilitation Act would have serious implications for the

management of state prisons, in matters ranging from cell

construction and modification, to inmate assignment, to

scheduling, to security procedures. That the acts threaten to

intrude so significantly upon the management of state prisons was

fully recognized by the Ninth Circuit, which observed in Gates v.

Rowland, 39 F.3d 1439 (9th Cir. 1994), that “[t]he Act was not

designed to deal specifically with the prison environment; it was

intended for general societal application. There is no indication

that Congress intended the Act to apply to prison facilities

irrespective of the reasonable requirements of effective prison

administration.” /d. at 1446-47. This recognition in fact led the

Ninth Circuit to substantially limit its earlier holding that the

Rehabilitation Act is applicable to state prisons, see infra n.7.

Given the significant implications of application of the

ADA and Rehabilitation Act for the management of state prisons,

and therefore for federal-state relations, we simply cannot agree

with Torcasio’s assertion that the broad, non-specific language

contained in the isolated portions of the acts upon which he

focuses “clearly establishes” that state prisons are within the acts’

coverage. Because the management of state prisons implicates

“decision[s] of the most fundamental sort for a sovereign entity,”

Gregory, 501 U.S. at 460, Congress must speak unequivocally

before we will conclude that it has “clearly” subjected state

prisons to its enactments.

2.

As we have emphasized above, see supra pp. 5-6, the

seemingly absolute language of 42 U.S.C. § 12131(1) and 29

U.S.C. § 794(b)(1)(A), upon which Torcasio focuses, is not

freestanding; these provisions, and their broad language, must of

course be read in conjunction with the other operative provisions

Se

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of the ADA and the Rehabilitation Act. These other provisions

are much less naturally read as including state prisons than are the

aforementioned provisions.»

Title II of the ADA, upon which Torcasio’s ADA claim is

based, states that

no qualified individual with a disability shall, by

reason of such disability, be excluded from

participation in or be denied the benefits of the

services, programs, or the activities of a public

entity, or be subjected to discrimination by any

such entity.

42 U.S.C. § 12132. The Rehabilitation Act employs virtually

identical language. See 29 U.S.C. § 794(a) (“No otherwise

qualified individual with a disability in the United States, as

defined in section 706(8) of this title, shall, solely by reason of her

or his disability, be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.”). We

5. Moreover, although the definition of “public entity” contained in Title II of

the ADA is a broad one, it is still true that prisons are not expressly

mentioned in the statute, and they certainly do not come readily to mind as

the type of institution covered. As the Commonwealth puts it,

It would be one thing to conclude that Congress intended that those

areas of state prisons to which the free public has access should be

adapted to accommodate the handicapped. It is an altogether different

conclusion to determine that Congress intended Title II of the ADA to

apply inside a prison’s living areas

Appellants’ Reply Br. at 11 n.10. Even the name ascribed to Title II -

“Public Services” - connotes a ban on discrimination in services provided to

the public, not in the prison context where the public is excluded. State

prisoners thus do not fit neatly within the definition of “public entities” to

which the ADA applies.

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imagine that most prison officials would be surprised to learn that

they were subject to these laws: “[p]rison administrators are

responsible for maintaining internal order and discipline, for

securing their institutions against unauthorized access or escape,

and for rehabilitating, to the extent that human nature and

inadequate resources allow, the inmates placed in their custody,”

Martinez, 416 U.S. at 404; they generally do not provide

“services,” “programs,” or “activities” as those terms are

ordinarily understood. A prohibition on discrimination in those

three realms thus would not seem to reach prisoners.

Similarly, the definition of “qualified individual with a

disability” is not naturally read as encompassing inmates in state

prisons. Title II of the ADA defines a “qualified individual with a

disability,” against whom discrimination is forbidden, as

an individual with a disability who, with or

without reasonable modifications to rules,

policies, or practices, the removal of architectural,

communication, or transportation barriers, or the

provision of auxiliary aids and services, meets the

essential eligibility requirements for the receipt of

services or the participation in programs or

activities provided by a public entity.

42 U.S.C. § 1213(2). A prisoner is not normally thought of as one

who would have occasion to “meet[] the essential eligibility

requirements” for receipt of or participation in the services,

programs, or activities of a public entity. The terms “eligible” and

“participate” imply voluntariness on the part of an applicant who

seeks a benefit from the state; they do not bring to mind prisoners

who are being held against their will.

It is thus only through a superficial reading of the statutes

that Torcasio can assert that they clearly encompass state prisons

and prisoners. The recognition that the terms of the ADA and the

Rehabilitation Act are ill-fitting, at best, in the context of

correctional facilities, reinforces our conclusion that the

ai i;

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applicability of the acts to state prisons is far from clear on the

face of the laws.

Torcasio might be able to overcome the facial ambiguity

of the ADA and Rehabilitation Act, and demonstrate that the

applicability of the acts to state prisons was clearly established, if

he were able to show that the courts have uniformly interpreted the

acts as applying to state prisons, or if he were able to point to

regulations that make that applicability clear. His attempts on

both scores fail to persuade us, however.

1.

Torcasio claims that “courts have consistently held that

the ADA applies to state prisoners’ claims.” Appellee’s Br. at 25.

We read the case law differently.

Three of the six cases Torcasio cites to show this

consistent pattern of judicial interpretatio are uapublished cases.

See id. (citing Wagner v. Jett, No. 94-5522, 1994 WL 532930 (6th

Cir. Sept. 30, 1994) (per curiam) (unpublished); Candelaria v.

Coughlin, No. 93 Civ. 3212, 1994 WL 119146 (S.D.N.Y. April 4,

1994) (unpublished); Outlaw v. City of Dothan, No. CV-92-A-

1219-S, 1993 WL 735802 (M.D. Ala. April 27, 1993)

(unpublished)). We generally look with disfavor upon citation of

unpublished dispositions, see 1.0.P. 36.6, and have all the more

reason to do so in this case, as citation of unpublished opinions

seems an unusually ineffective, and even counterproductive,

means of demonstrating that a given proposition of law was

“clearly established.”

Furthermore, only one of the three unpublished opinions

in question held what Torcasio claims. See Outlaw, 1993 WL

735802, at *4 (“[U]nder common usage and understanding of the

terms the jail and all of its facilities .. . constitute a service,

program, or activity of the City of Dothan to which the ADA

applies.”). Candelaria in no way “held that the ADA applies to

prisons.” What the court did hold was simply that an inmate’s

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Eighth Amendment claim alleging inadequate medical treatment at

a prison known as Green Haven “may not be dismissed at this

juncture.” Candelaria, 1994 WL 119146, at *7. The only

mention of the ADA in the case came in dicta: the court noted in a

footnote that

‘t]he quality of Candelaria’s health care appears to

have deteriorated significantly upon his transfer to

Clinton [a prison not implicated in the litigation

before the court]. For example, Candelaria claims

he is now denied physical therapy, handicapped

accessible law library facilities, flush toilets as

well as catheters, rectal suppositories and

medications that were previously made available

to him at Green Haven. These claims are

potentially legitimate causes of action under both

the Eighth Amendment and the Americans With

Disabilities Act, codified at 42 U.S.C. § 12101 ef

seq. However, as noted above, [an earlier order]

precludes this Court’s appraisal of such questions.

Id. at *7 n.2 (emphasis added). For Torcasio to contend that this

dicta amounts to a holding that the ADA applies to prisons is

simply disingenuous.

The Sixth Circuit’s unpublished Wagner decision not only

post-dated Torcasio’s release from Keen Mountain, but moreover

did not, as Torcasio asserts, “h[o]ld that the ADA applies to state

prisoners’ claims.” Rather, the court in a per curium opinion that

affirmed the award of summary judgment to prison officials on an

ADA claim brought by an inmate, on the grounds that the officials

simply had not “treat{[ed] disabled inmates unequally under the

law.” Wagner, 1994 WL 532930, at **2. Significantly, although

the prison officials apparently did not contend that the law was

inapplicable to state prisons, and thus the court had no occasion to

consider the question, the court strongly articulated the rationale

for not applying the ADA to state prisons:

ST

ee ee

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Prison authorities are entitled to adopt and execute

policies and practices that in their judgment are

needed to preserve institutional security, even if it

requires treating disabled inmates somewhat

differently.

Id. The court also acknowledged the need to balance

accommodation of disabilities with “legitimate penological

interests such as security concerns.” /d.

Aside from the unpublished cases, Torcasio points to three

published district court opinions that, in his view, found the ADA

applicable to state prisoners. Even a cursory reading of these

cases, however, discloses that Torcasio misrepresents their import.

Although all three involved prisoners proceeding under the ADA,

none even squarely addressed the question of the ADA’s

applicability to prisons, much less held that the ADA so applies.

In Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993), for

example, the defendants did not argue that the ADA was

inapplicable to state prisons, and thus the court did not consider

the issue. Instead, the defendants unsuccessfully moved to dismiss

the inmate’s ADA claim on the grounds that the ADA was not in

effect while the plaintiff was in jail, and that the plaintiff was

required to exhaust his administrative remedies prior to coming to

court. Id. at 482-83.© In Harrelson v. Elmore County, 859 F.

Supp. 1465 (M.D. Ala. 1994), the court likewise was not called on

to resolve whether the ADA applies to state prisons; all that was

before the court in that case, insofar as the ADA is concerned, was

the officials’ motion to dismiss the inmate’s claim for punitive

damages under the ADA, which the court granted. /d. at 1468-69.

Finally, Clarkson v. Coughlin, 145 F.R.D. 339 (S.D.N.Y. 1993),

6. The court also rejected the defendants’ qualified immunity defense, which

apparently also was based on the argument that the ADA was not in effect at

the relevant time. Noland, 835 F. Supp. at 488.

17a

provides less support still for Torcasio’s assertion, as the court in

that case simply held — in only five sentences — that a group of

deaf inmates would be permitted to amend their complaint to add a

claim under the ADA. /d. at 348.

Excepting one unpublished opinion, then, courts that have

considered suits brought by state prison inmates under the ADA

have at most simply assumed that the act applies to state prisons.

In no published case has a court been squarely confronted with —

much less rejected — the claim that the ADA is inapplicable to

state prisoners. We therefore are not persuaded by Torcasio’s

argument that “courts have consistently held that the ADA applies

to state prisoners’ claims.”

2.

Torcasio’s claim that “courts have consistently held that

{the Rehabilitation Act] applies to prisons receiving federal

financial assistance” is somewhat more substantiable, but not

enough so to meet the “clearly established” requirement.

At the time of the alleged violations, the Ninth Circuit was

the only court of appeals that had squarely held that the

Rehabilitation Act applies to prisons. See Bonner v. Lewis, 857

F.2d 559 (9th Cir. 1988). The Ninth Circuit found persuasive the

“broad language” argument Torcasio advances in this case, see

supra pp. 5-10, and also noted that “the Act’s goals of independent

living and vocational rehabilitation should in fact mirror the goals

of prison officials as they attempt to rehabilitate prisoners and

prepare them to lead productive lives once their sentences are

complete. By 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

18a

served.” Bonner, 857 F.2d at 562.’ Bonner has since been cited

by a number of district courts considering Rehabilitation Act

claims brought by prison inmates. See Donnell C. v. Illinois State

Board of Education, 829 F. Supp. 1016, 1020 (N.D. Ill. 1993)

(“Contrary to defendants’ assertion, the Act is applicable to

inmates at correctional facilities.”). Casey v. Lewis, 834 F. Supp.

1569, 1583-85 (D. Ariz. 1993) (no claim of non-applicability

raised by defendants) (holding that “plaintiffs failed to establish

violations of Section 504 of the Rehabilitation Act of 1973”).

Torcasio claims that the Eleventh Circuit has also “held”

that the Rehabilitation Act applies to prisoners, but this is an

overstatement. In Harris v. Thigpen, 941 F.2d 1495 (11th Cir.

1991), the issue was not before the court, because the Alabama

Department of Corrections had “concede[d] that [the

Rehabilitation Act] applies to prisoners.” /d. at 1522. Ina

footnote, the court noted, in dicta, that

Only the Ninth Circuit appears to have

specifically addressed the issue of whether [the

7. Notably, the Ninth Circuit recently retreated from its holding in Bonner that

the Rehabilitation Act applies to state prisons. In Gates v. Rowland, 39 F.3d

1439, 1446-47 (9th Cir. 1994), the court considered “how the Act is to be

applied in a prison setting,” and observed, “[t]he Act was not designed to

deal specifically with the prison environment; it was intended for general

societal application. There is no indication that Congress intended the Act

to apply to prison facilities irrespective of the reasonable requirements of

effective prison administration.” Thus, the court held that “the applicable

standard for the review of the Act’s statutory rights in a prison setting [is]

equivalent to [the standard for] the review of constitutional rights in a prison

setting.” Jd. at 1447. Although Gates postdates the period of Torcasio’s

incarceration, and thus is not directly relevant to the question of whether the

applicability of the Rehabilitation Act to state prisons was clearly established

at the time of the events at issue in this case, we consider Gates to be an

indication that the Ninth Circuit is beginning to rethink its decision in

Bonner that state prisons are subject to the requirements of the

Rehabilitation Act.

19a

Rehabilitation Act] extends to prisoner claims,

[citing Bonner], finding that the broad language of

the Rehabilitation Act covering “any program”

that receives federal financial assistance, and with

[sic] the congruence of the Act’s goals with those

of prison officials, suggest that prisoner claims are

potentially cognizable under [the Rehabilitation

Act]. We agree.

Id. at 1522 n.41. See also Sites v. McKenzie, 423 F. Supp. 1190,

1197 (N.D. W.Va. 1976) (no non-applicability defense raised by

state) (granting state inmate’s motion for partial summary

judgment on claim that denial of vocational rehabilitation

opportunities to mentally ill prisoners violates the Rehabilitation

Act).

While, as of the time Torcasio was incarcerated, one

circuit had held that the Rehabilitation Act applies to state

prisoners, and another had expressed its approval in dicta for that

holding, a third circuit had held that the Act is inapplicable to

federalprisoners. In Williams v. Meese, 926 F.2d 994 (10th Cir.

1991), the Tenth Circuit held that a federal prisoner could not

invoke the Rehabilitation Act because “the Federal Bureau of

Prisons does not fit the definition of ‘programs or activities’

governed by [the Rehabilitation Act].” /d. at 997. The

significance of Williams for the question of whether the

Rehabilitation Act applies to state prisons and prisoners is

somewhat unclear, because the court did not elaborate on why the

Federal Bureau of Prisons does not “fit the definition of ‘programs

or activities.”” The explanation could be that federal entities are

not subject to the Rehabilitation Act, or that prisons do not

sponsor “programs or activities,” see supra pp. 10-12. If the

former understanding is correct, Williams is not necessarily

inconsistent with Bonner, the latter explanation, however, would

bring the two cases into direct conflict and thus refute Torcasio’s

claim that the courts have spoken with one voice on the

applicability of the Rehabilitation Act to state prisoners.

20a

We believe the latter interpretation of Williams is the more

natural. The Rehabilitation Act applies not only to “any [state]

program or activity receiving Federal financial assistance,” but

also to “any program or activity conducted by any Executive

agency.” 29 U.S.C. § 794(a). That the Bureau of Prisons is a

federal entity therefore would not likely have been the grounds for

excluding it from the reach of the Rehabilitation Act. We thus do

not understand Williams as turning on the federal/state distinction,

but rather as ruling broadly that prisons of whatever jurisdiction

are not subject to the Rehabilitation Act because they do not

sponsor “programs or activities” as those terms are defined in the

Rehabilitation Act. Accord Haston v. Tatham, 842 F. Supp. 483,

487 (D. Utah 1994) (“{I]}t is doubtful that the ADA applies in the

case of a disabled [state] prisoner who seeks prison employment.”

(citing Williams)). In any event, the fact that Williams can

plausibly be read as holding that the Rehabilitation Act is

inapplicable to prisoners generally, including state prisoners,

significantly undermines the claim that it was “clearly established”

that the Act applied to state prisoners.

The conflict between the Ninth and Tenth Circuits on the

applicability of the Rehabilitation Act to prisoners is enough to

disprove Torcasio’s claim that courts have ruled “consistently” on

the question, and enough to show as erroneous the district court’s

conclusion that it was “clear” that the Act applied to state prisons.

The caselaw simply provides no support for the claim that it was

clearly established that the Rehabilitation Act governed state

prisons.

3.

Torcasio’s claim that various federal regulations reveal

that the applicability of the acts to state prisons was clearly

established is equally unpersuasive. For example, Torcasio

observes that 28 C.F.R. § 42.503(f), a regulation promulgated by

the Department of Justice under the Rehabilitation Act, “ha[s]

been found to apply to correctional facilities receiving federal

financial assistance,” and he thus suggests that the regulation

clearly brings state prisons within the coverage of the

2la

Rehabilitation Act. Appellee’s Br. at 22 (citing Bonner, 857 F.2d

at 562). In fact, 28 C.F.R. § 42.503(f) does not even mention state

prisons, much less establish that they are subject to the act.8 The

regulation that specifies the entities which are subject to 28 C.F.R.

§ 42.503(f) and other Department of Justice Rehabilitation Act

regulations provides no more guidance, as it states simply that the

regulations apply “to each recipient of Federal financial assistance

from the Department of Justice and to each program receiving or

benefiting from such assistance.” 28 C.F.R. § 42.502. The

regulations therefore define the reach of the Rehabilitation Act

using the same broad language as does the Act itself; as we stated

above, this broad language is insufficient to clearly establish that

the Act applies to state prisons. Torcasio makes much of the fact

that the Ninth Circuit in Bonner found 28 C.F.R. § 42.503(f)

applicable to state correctional facilities receiving federal financial

assistance, see Bonner, 857 F.2d at 562, but for his argument to

succeed he must show that the regulation itselfspeaks clearly on

this point, which he cannot.

With respect to the ADA, Torcasio points not to final

regulations promulgated by the Department of Justice, but rather

to the Americans With Disabilities Act Accessibility Guidelines

for Buildings and Facilities (ADAAG), which have been

developed by the Architectural and Transportation Barriers

8. 28C.F.R. § 42.503(f) states simply that “[a] recipient that employs fifteen or

more persons shali provide appropriate auxiliary aids to qualified

handicapped persons with impaired sensory, manual, or speaking skills

where a refusal to make such provision would discriminatorily impair or

exclude the participation of such persons in a program receiving Federal

financial assistance. Such auxiliary aids may include brailled and taped

material, qualified interpreters, readers, and telephonic devices. Attendants,

individually prescribed devices, readers for personal use or study, or other

devices or services of a personal nature are not required under this section.

Departmental officials may require recipients employing fewer than fifteen

persons to provide auxiliary aids when this would not significantly impair

the ability of the recipient to provide its benefits or services.”

22a

Compliance Board (ATBCB). See 36 C.F.R. § 1191 App. A; 59

Fed. Reg. 31,676 (1994). The ADAAG clearly contemplate the

application of the ADA to state prisons, as the guidelines subject

“detention and correctional facilities” to various general

accessibility requirements, see 36 C.F.R. § 1191 App. A at 12.1, as

well as to a number of correctional-facility-specific requirements,

see, e.g., id. at 12.5.2(3) (“Beds shall have maneuvering space at

least 36 in (915 mm) wide along one side.”). Nonetheless, the

guidelines do not show that the applicability of the ADA to state

prisons was clearly established at the time Torcasio was in prison

in Virginia.

First, and most importantly, the guidelines pertaining to

detention and correctional facilities did not become effective until

December 20, 1994, some six months after Torcasio was paroled.

See 59 Fed. Reg. 31,676. Thus, while the guidelines may provide

some evidence that it is now established that the ADA applies to

state prisons, they are of no help to a claim that this applicability

was Clearly established at the time of the alleged violations in this

case. Indeed, until the publication in June 1994 in the Federal

Register of the proposed guidelines applicable to prisons, the

ADAAG - which had been in effect since their adoption by the

Department of Justice in the form of final regulations on July 26,

1991 — did not mention state prisons in either the generally-

applicable specifications or in the list of requirements applicable

to particular types of buildings and facilities covered by the ADA.

During the time Torcasio was incarcerated, therefore, VDOC

officials looking to the applicable regulations would not have

found any provisions dealing specifically with state prisons, and

thus could reasonably have been expected to conclude that they

were not covered by the Act?

9. Torcasio protests that the effective date of the ADAAG is immaterial. He

argues that the very fact that the ATBCB was conducting a rulemaking,

complete with comments from concerned prison officials, while Torcasio

was imprisoned attests to a general understanding that the ADA would apply

to state prisons. We reject this claim, because the “clearly established”

(Footnote continued on next page)

Ne

23a

The second shortcoming or Torcasio’s reliance on the

ADAAG is that the Department of Justice, and not the ATBCB,

retains responsibility for issuing final regulations implementing

Title Il of the ADA. See 42 U.S.C. § 12134. While the final

regulations of the Department of Justice are to be consistent with

the ADAAG, until such time as those final regulations are

promulgated, the ADAAG remain purely advisory. 10 Finally, we

note that Torcasio is undermining his own claim by invoking the

ADAAG, because these guidelines apply only to “newly designed

or newly constructed buildings and facilities and altered

portions! of existing buildings and facilities.” 35 C.F.R. § 1191

(Footnote continued from previous page)

inquiry is an objective inquiry, and does not turn on what the ATBCB and

various prison officials responded to a notice of proposed rulemaking might

believe to be the reach of the ADA. The ATBCB and various prison

officials responding to a notice of proposed rulemaking might be

insufficiently attuned to the considerations of federalism implicated by a

proposal to apply the ADA to state prisons. See J.A. at 286 (Appeliants’

motion for summary judgment) (“Even if one were to assume that the

{[ADAAG] wouid ultimately result in a final published rule, the defendants

would then contend that such a rule is arbitrary, capricious and an abuse of

discretion, or otherwise not in accordance with law.”).

The Department of Justice has published a notice of proposed rulemaking

seeking public comments on the proposal to incorporate into regulations the

ADAAG provisions dealing with correctional facilities, but apparently has

not acted further in this regard.

“Alteration” is defined in the AADAAG as “a change to a building or

facility... that affects or could affect the usability of the building or facility or

part thereof. Alterations include, but are not limited to, remodeling,

renovation, rehabilitation, reconstruction, historic restoration, resurfacing,

changes or rearrangement of the structural parts or elements, and changes or

rearrangement in the plan configuration of walls and full-height

partitions. ... Normal maintenance, reroofing, painting or wallpapering, or

changes to mechanical and electrical systems are not alterations unless they

(Footnote continued on next page)

24a

App. A at 4.1.1 (emphasis added). To the extent that they define a

state prison’s obligations under the ADA, therefore, the ADAAG

suggest that Keen Mountain was under no obligation to grant

Torcasio’s proposed modifications, because Torcasio has not

alleged that Keen Mountain was newly constructed, newly

designed, or altered during his incarceration. Were we to get

beyond the qualified immunity inquiry, then, the very regulations

on which Torcasio relied to overcome the qualified immunity bar

would prove to be his undoing on the merits of his ADA claim.

See also 59 Fed. Reg. 31709 (comment on proposed guideline)

(“The specifications for toilet rooms in ADAAG 4.22 and for

bathing facilities in ADAAG 4.23 include requirements for grab

bars at toilets, showers, and tubs. In the prison environment, such

elements must be properly secured so that they cannot be removed

and used as weapons.”); id. at 31703 (comment on proposed

guideline) (“A few commenters stated that while grab bars are

easy to secure in new construction, to do so as an alteration or

retrofit may necessitate reconstruction of cell walls.”’).

Cc.

For the foregoing reasons, we conclude that, although the

ADA and the Rehabilitation Act were both in effect at the time of

the alleged violations, it was not then clearly established that

either statute applied to state prisons. We suspect that the district

court reached the opposite, erroneous conclusion because of the

order in which the court addressed the defenses raised by the

VDOC officials. Rather than begin with the prison officials’

claim that they were entitled to qualified immunity because the

applicability of the acts to state prisons was not clearly

(Footnote continued from previous page)

affect the usability of the building or facility.” 36 C.F.R. § 1191 App. A

at 3.5.

q

;

t

25a

established, the court first considered their defense that the acts do

not apply to state prisoners. In a recent decision of this court, we

reminded district courts that they are to consider as a threshold

matter whether officials in a given case are entitled to qualified

immunity, and move on to other issues only after concluding that

the officials are not. See DiMeglio, 45 F.3d at 797 (“[I]n deciding

qualified immunity claims, courts should determine whether the

plaintiff has alleged the violation of a. . . right that was clearly

established at the time of the defendant’s actions, before they

proceed to address ancillary issues.”) (citing Siegert v. Gilley, 500

U.S. 226 (1991)). This case illustrates the dangers of not adhering

to this analytical sequence, for we cannot help but suspect that the

court’s conclusion that it was clearly established that the acts

applied to prisons was heavily influenced by its earlier conclusion

that the acts today apply to prisons, !2

Ill.

The district court’s ruling that “a morbidly obese inmate’s

right to the modification of specific [prison] services and

facilities” was clearly established while Torcasio was imprisoned

12. Because we find that the applicability of the acts to prisons was not clearly

established at the time in question, it follows a fortiori that the more specific

right of prisoners to the particular accommodations requested by Torcasio

was likewise not clearly established. As even the district court noted, “the

extent of an institution’s affirmative duties to accommodate an individual

with [Torcasio’s] disability was not clearly defined,” Torcasio, 862 F. Supp.

at 1493, and “[{nJo United States Court of Appeals has provided guidance on

what might constitute reasonable accommodation of a morbidly obese

inmate,” id. at 1493 n.10. Putting aside for the moment the district court’s

erroneous conclusion that it was clearly established that the acts applied to

state prisons, these observations alone should have led the court to grant

qualified immunity on all claims, because, as we have repeatedly noted, the

Supreme Court has directed courts to focus on the right alleged at a very

specific level when deciding questions of qualified immunity. See, e.g.,

DiMeglio, 45 F.3d at 803 (citing, inter alia, Anderson v. Creighton, 483

U.S. 635, 639-41 (1987)).

26a

at Keen Mountain suffers from a second defect, namely the

erroneous assumption that it was clearly established that obese

individuals such as Torcasio qualify as “individuals with

disabilities” entitled to the protections of the ADA and

Rehabilitation Act. The court never addressed this essential issue,

presumably because VDOC officials in their motion for summary

judgmeni “concede[d] that plaintiff's condition of morbid obesity,

or at lease some of his physical impairments resulting from his

obesity, qualify him as a handicapped person within the meaning

of the Rehabilitation Act and the ADA.” J.A. at 287. Once again,

however, there is an important distinction between the question of

whether the acts apply to obese individuals, and the question of

whether it was clearly established that the acts apply to obese

individuals. The prison officials’ concession on the first question

is not tantamount to a concession on the second,!3 and we

therefore must confront the question whether it was clearly

established while Torcasio was in prison that, as an obese

individual, he was entitled to the protection of the Rehabilitation

Act and the ADA. We find that neither the statutes, nor the

caselaw, nor the applicable regulations clearly establish that the

ADA or the Rehabilitation Act apply to the obese. !4

13. Indeed, the VDOC officials contend strenuously here that it was not clearly

established that the acts apply to obese individuals. See Appellants’ Br. at

21-23.

14. Torcasio also claims that “whether [his] obesity constitutes a disability under

the ADA is necessarily a question for the trier of fact to decide, and it would

have been improper to resolve that issue on motion for summary judgment.”

Appellee’s Br. at 28. The question before us, of course, is not whether

Torcasio’s obesity in fact constitutes a disability, but whether it was clearly

established that his obesity amounts to a disability. This latter question is a

question for the court to resolve. See DiMeglio, 45 F.3d at 795 (“[BJecause

the question of immunity is essentially a legal question, ‘{iJmmunity should

ordinarily be decided by the court long before trial.’” (citations omitted)).

27a

Torcasio wisely does not contend that the statutes

themselves indicate that they apply to the obese. The ADA

defines “disability” simply as “with respect to an individual !5 —

a physical or mental impairment that substantially limits one or

more of the major life activities of such individual.” 42 U.S.C.

§ 12102(2)(A). The Rehabilitation Act employs a virtually

identical, and equally unilluminating, definition. See U.S.C.

§ 706(8)(B)(i) (“[T]he term ‘individual with a disability’

means... any person who... has a physical or mental

impairment which substantially limits one or more of such

person’s major life activities.”). 16

The acts themselves do not define “physical or mental

impairment” or “major life activity,” instead leaving that task to

the applicable regulations. These regulations, in turn, provide

little additional guidance. The Department of Justice regulations

interpreting the ADA define “physical or mental impairment” as

[aJny 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), cardiovascular, reproductive, digestive,

15. Given that both the ADA, see Ennis v. Nat’l Assoc. of Bus. and Educ. Radio,

Inc., No. 94-1585, 1995 WL 289655 (4th Cir. May 15, 1995), and the

Rehabilitation Act, see Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.

1986), 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.

16. Both acts also consider an individual to be disabled if he (a) has a record of

an impairment that substantially limits one or more of his major life

activities, or (b) is regarded as having such an impairment. See 42 U.S.C.

§§ 12102(2)(B)-(C); 29 U.S.C. §§ 706(8)(B)(ii)-(iii).

28a

genitourinary, hemic and lymphatic, skin, and

endocrine.

x * *

The phrase physical or mental impairment

includes, but is not limited to, such contagious and

noncontagious diseases and conditions as

orthopedic, visual, speech and hearing

impairments, cerebral palsy, epilepsy, muscular

dystrophy, multiple sclerosis, cancer, heart

disease, diabetes, mental retardation, emotional

illness, specific learning disabilities, HIV disease

€whether symptomatic or asymptomatic),

tuberculosis, drug addiction, and alcoholism.

28 C.F.R. § 35.104; see also 29 C.F.R. § 1630.2(h) (ADA

regulations promulgated by EEOC) (substantially same

definition); 34 C.F.R. § 104.3(j)(2)(i) (Rehabilitation Act

regulations) (substantially same definition). The regulations thus

do not clearly establish that an obese individual is covered by the

acts.

As he did in attempting to show that the applicability of

the acts to state prisons was clearly established, Torcasio contends

that the caselaw supports his position. Once again, however, we

are unpersuaded by his claim. Three of the five cases he cites

interpret state anti-discrimination laws, rather than the ADA or the

Rehabilitation Act, and thus cannot provide evidence than the

federal statutes clearly apply to obese individuals. See Appellee’s

Br. at 30-31 (citing Krein v. Marian Manor Nursing Home, 415

N.W.2d 793, 796 (N.D. 1987) (obesity may constitute disability

under North Dakota law); Gimello v. Agency Rent-A-Car, 594

A.2d 264, 276 (N.J. Super. Ct. App. Div. 1991) (same under New

Jersey law); State Div. of Human Rights v. Xerox Corp., 478

N.Y.S.2d 982, 985-86 (App. Div. 1984) (gross obesity may be

disability under New York Human Rights Law), aff'd, 491

N.Y.S.2d 106 (1985)).

29a

Turning to the cases that actually interpret federal law, we

find some support for Torcasio’s argument, but not enough to

permit a conclusion that the applicability of the laws to the obese

was clearly established. As an initial matter, Torcasio concedes

that both of the federal law cases he cites — Cook v. State of

Rhode Island Dept. of Mental Health, 10 F.3d 17 (1st Cir. 1993),

and Smaw v. Commonwealth of Va. Dept. of State Police, 862

F. Supp. 1469 (E.D. Va. 1994) — “post-date the commencement

of this lawsuit,” Appellee’s Br. 32. Smaw, indeed, was issued

after Torcasio was paroled. The cases therefore are only of

marginal relevance to the question of whether, while Torcasio was

at Keen Mountain, it was “clearly established” that a person with

Torcasio’s condition qualified as an “individual with a disability.”

Moreover, the holdings of the cases are not particularly helpful to

Torcasio: the First Circuit in Cook merely affirmed a jury’s

determination that the particular obese plaintiff in that case

qualified as a disabled individual under the Rehabilitation Act,

while Magistrate Judge Miller in Smaw held that the obese

plaintiff in that case “cannot prove that she is ‘handicapped’ or

‘disabled’ as required by the Rehabilitation Act and the ADA.”

Id. at 1475. Smaw observed further that “it remains unclear

whether simple obesity falls within the broad sweep of the

definition of physical impairment” under the Rehabilitation Act,

id. at 1468-69, and, most damagingly for Torcasio, concluded that

“(t]he case law and the regulations both point unrelentingly to the

conclusion that a claim based on obesity is not likely to succeed

under the ADA,” id. at 1475 (emphasis added).

The only direct authority on the obesity question available

at the time of Torcasio’s incarceration, other than the statute itself,

is a provision in the “interpretative guidance” appendix to EEOC

regulations promulgated pursuant to Title I of the ADA. Although _

of nominal interpretative value, that provision states that “except

in rare circumstances, obesity is not considered a disabling

impairment.” 29 C.F.R. § 1630 App. § 1630(2)(j) (emphasis

added). While we understand that Torcasio’s case might represent

one of those “rare circumstances,” given that his obesity appears

chronic, this regulation nonetheless severely undermines the claim

30a

that it was “clearly established” that obesity is a disability under

the ADA.

Various statements in Torcasio’s own brief belie his

assertion that the applicability of the acts to the obese was Clearly

established, see, e.g., Appellee’s Br. at 32 (“Based on the case law

and relevant regulations, morbid obesity with the consequential

physical problems suffered by Torcasio may very well constitute a

disability under the ADA, just as it may constitute a handicap

under the Rehabilitation Act.” (emphasis added)), and our analysis

of the statutes, caselaw, and the relevant regulations leads us to

conclude that these statements are appropriately equivocal. It

simply was no* clearly established, at the time of Torcasio’s stay

at Keen Mountain, that his obesity brought him within the class of

individuals protected by the Rehabilitation Act and ADA.

IV.

Finally, even if we were to assume, notwithstanding the

above objections, that a “morbidly obese inmate’s right to the

modification of specific [prison] services and facilities” was

clearly established, we would still find the VDOC officials

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

because we find that “their actions could reasonably have been

thought consistent with the rights they are alleged to have

violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987).

The previously-mentioned principles of deference to state

prison officials are equally applicable here. The Supreme Court

has observed that “[iJ]n the necessarily closed environment of the

correctional institution, few changes will have no ramifications on

the liberty of others or on the use of the prison’s limited resources

for preserving institutional order. When accommodation of an

asserted right will have a significant ‘ripple effect’ on fellow

inmates or on prison staff, courts should be particularly deferential

to the informed discretion of corrections officials.” Turner v.

Safley, 482 U.S. 78, 90 (1987). The court has gone so far as to

hold that “even when an institutional restriction infringes a

specific constitutional guarantee, such as the First Amendment,

3la

the practice must be evaluated in the light of the central objective

of prison administration, safeguarding institutional security.” Beil

v. Wolfish, 441 U.S. 520, 547 (1979) (emphasis added) (citing

Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119,

129 (1977); Pell v. Procunier, 417 U.S. 817, 822, 826 (1974);

Procunier v. Martinez, 416 U.S. 396, 412-14 (1974)). See also

Turner, 482 U.S. at 89 (“[W]Jhen a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” (emphasis

added)). Given the leeway prison officials are accorded where

their actions threaten constitutional rights of inmates, it follows a

fortiorithat prison officials enjoy similar flexibility with respect

te inmates’ statutory rights; in other words, a reasonable official

could believe that some accommodations of the disabled that

might be required in a public library are not required in prison.

Even the Ninth Circuit — which is, as we mentioned

earlier, the only circuit to have squarely held that the

Rehabilitation act applies to state prisons — has recognized the

force of these principles in addressing “the issue [of] how the Act

is to be applied in the prison setting.” Gates v. Rowland, 39 F.3d

1439, 1446 (9th Cir. 1994). Recognizing the deference owed state

prison administrators, the court noted that

just as constitutional rights of prisoners must be

considered in light of the reasonable requirements

of effective prison administration, so must

statutory rights applicable to the nation’s general

population be considered in light of effective

prison administration. The Act was not designed

to deal specifically with the prison environment;

it was intended for general societal application.

There is no indication that Congress intended the

Act to apply to prison facilities irrespective of the

reasonable requirement of effective prison

administration. It is highly doubtful that Congress

intended a more stringent application of the

prisoners’ statutory rights created by the Act than

it would the prisoners’ constitutional rights. Thus,

32a

we deem the applicable standard for the review of

the Act’s statutory rights in a prison setting to be

equivalent to the review of constitutional rights in

a prison setting...

Id. at 1447. Thus, even the one circuit that applies the

Rehabilitation Act to prisons now refuses to scrutinize a claim

brought under the Act any more closely than it would an Eighth

Amendment claim; in this circuit, as Taylor recognized, that is a

highly deferential standard.!7 In view of this consensus that any

rights prisoners enjoy — including the right of disabled inmates to

some degree of accommodation — must be assessed in light of the

requirements of prison administration, VDOC officials certainly

could certainly have reasonably concluded that their actions were

consistent with “a morbidly obese inmate’s right to the

modification of specific [prison] services and facilities.”

VDOC officials took significant steps to address

Torcasio’s obesity-related grievances. Upon his arrival at Keen

Mountain, prison officials first placed Torcasio in the prison

infirmary, which was equipped with most of the disability

accommodations Torcasio demanded, including side railings and

wide bathroom access. Torcasio v. Murray, 862 F. Supp.1482,

486 (E.D. Va. 1994). Because inmates housed in the infirmary

receive less freedom and fewer privileges than other inmates,

however, Torcasio himself requested a transfer into the general

population, which was granted. Having granted his request to be

17. A panel of this court earlier described Torcasio’s complaints as

“inconveniences,” and ruled that they “do not, objectively, amount to a

‘serious deprivation of a basic human need’” that would violate the Eighth

Amendment. Torcasio v. Murray, No. 93-6585, 1993 WL 491310, at **1

(4th Cir. Nov. 15, 1993) (unpublished) (quoting Strickler v. Waters, 989

F.2d 1375, 1379 (4th Cir. 1993)). Under the Ninth Circuit's standard in

Gates, therefore, Torcasio’s claim that his ADA and Rehabilitation Act

rights were violated would lose on the merits. :

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moved into the general inmate population, prison officials further

accommodated Torcasio’s weight and mobility limitations by (1)

providing him with a private cell originally designed to house two

inmates, (2) removing the existing beds from that cell and

installing in their place a full-size hospital bed equipped with

railings, (3) providing reinforced chairs for Torcasio to use in both

his cell and the dining hall, and (4) installing mats and handrails in

the shower area. These attempts to accommodate Torcasio’s

condition at Keen Mountain were in keeping with the prior

practice of VDOC officials, who, in response to Torcasio’s

complaints during his confinement at other VDOC facilities, had

granted him a step into the shower, a handrail in the shower, a

free-standing locker as opposed to a foot-locker, and a CPAP

device (equipped with a backup power system to allow the

machine to continue functioning if the electricity went out) to

assist his breathing while he slept. Appellants’ Br. at 31. This

portfolio of accommodations of course did not satisfy all of

Torcasio’s requests, but certainly could have been viewed by a

reasonable prison administrator as a satisfactory accommodation

of whatever right Torcasio had to modification of prison facilities,

providing yet another basis for reversal of the district court’s

partial denial of qualified immunity.

CONCLUSION

The judgment of the district court is affirmed insofar as it

granted the appellants’ motion for summary judgment on the

grounds of qualified immunity, and reversed insofar as it denied

that motion. The case is remanded with instruction to dismiss all

claims against the appellants.

AFFIRMED IN PART, REVERSED IN PART

34a

Opinion of the Eastern District of Virginia

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

—o

CIVIL ACTION NO. 3:92CV558

>

ANTHONY TORCASIO,

Plaintiff-Appellee,

v.

EDWARD W. MURRAY, et al.,

Defendants-Appellants,

~o

ORDER

In accordance with the accompanying Memorandum

Opinion it is ORDERED that:

l. Defendants’ motion for summary

judgment is GRANTED IN PART and

DENIED IN PART; and

2. The action is REFERRED to United

States Magistrate Judge Lowe.

Let the Clerk send a copy of the Memorandum Opinion

and Order to plaintiff and counsel for the defendants.

Dated: September 14, 1994 _/s/_ Richard L. Williams

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

>

CIVIL ACTION NO. 3:92CV558

>—

ANTHONY TORCASIO,

Plaintiff-Appellee,

v.

EDWARD W. MURRAY, et al.,

Defendants-Appellants,

M PINION

Plaintiff, Anthony Torcasio, a Virginia state prisoner

proceeding pro se and in forma pauperis, brings this action

pursuant to 29 U.S.C. § 794, 42 U.S.C. 1983 and 42 U.S.C. 12132.

Jurisdiction is appropriate pursuant to 28 U.S.C. §§ 1331 and

1343(a)(3).

In his original complaint plaintiff alleged the conditions at

the Greensville Correctional Center violated the Constitution and

statutes of the United States. By Order entered May 20, 1993, the

Court granted defendants’ motion for summary judgment on

plaintiff's Section 1983 claims and found plaintiff's remaining

claims to be moot since plaintiff had been transferred to the Keen

Mountain Correctional Center (KMCC). The Court of Appeals for

the Fourth Circuit affirmed the dismissal of the constitutional

claims but vacated the finding that plaintiff's statutory claims were

36a

rendered moot by his transfer. The Court of Appeals remanded

the case for further proceedings to determine whether the facilities

at Keen Mountain were the same as those at Greensville, and, if

so, whether such facilities violate 29 U.S.C. § 794 or 42 U.S.C.

12132.

On November 29, 1993, plaintiff filed a complaint in the

Western District of Virginia, Torcasio v. Murray, 93C V-0655-R,

contesting his living conditions at the Keen Mountain Correctional

Center. By Order dated December 16, 1993, the case was

transferred to this Court. It was redesignated 3:93CV856. By

Memorandum and Order entered February 16, 1994, Torcasio v.

Murray, 3:92CV558 and Torcasio v. Murray, 3:93CV856 were

consolidated.

Plaintiff is a thirty-three year old male. He is 5’ 7” tall,

weighs in excess of four hundred sixty (460) pounds and has a

girth of 78”. Plaintiff asserts his obesity causes him to suffer from

the following disabilities:

1) limited walking range, 2) inability to climb

steps or hills, 3) back pain, 4) inability to bend

over, 5) cannot stand or lay down for prolonged

periods of time, 6) sleep apnea! , 7) extremely

vulnerable to body imbalances.

Upon arrival at KMCC plaintiff was initially placed in the

infirmary. The infirmary at KMCC was equipped with handicap

facilities, i. e., wheelchair accessible, side railings, wide bathroom

access, etc. However, because inmates confined to the infirmary

are entitled to less freedom and privileges than other inmates,

plaintiff requested he be moved to the general population.

1. Plaintiff asserts the sleep apnea can result in weariness, weakness, memory

loss, and potential breathing failure during sleep.

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Subsequently, plaintiff was moved to a single occupancy cell

equipped with a hospital bed2 and a reinforced chair. Plaintiff

asserts a number of conditions of confinement violated his

constitutional and statutory rights. Listed below are plaintiff's

claims, the defendants’ response indicating what actions they took,

and plaintiff's rebuttal to the response.>

Claim A: The Shower

1) The showers at KMCC are raised seventeen

inches from the floor of the bathroom. There is an

eight inch step leading from the bathroom floor to

the shower stall. 2) The handrail outside of the

stall is too small and improperly located to be of

any real assistance to plaintiff. 3) There is no

other assistance to help plaintiff enter and exit the

stall. 4) The entrance to the shower stall is only

23 1/2” wide. 5) The above deficiencies subject

plaintiff to cuts, abrasions, ridicule, and fear of

falling whenever using the shower facilities.

Defendants’ response: The authorities at KMC

constructed bars or handles in plaintiff's shower

area in order to facilitate his showering needs.

The shower stalls easily accommodate an

individual of plaintiff's girth. There are rubber

mats on the floor outside the shower which

provide protection against wet conditions.

2. The hospital bed had railings to prevent plaintiff from rolling out of bed.

3. Plaintiff's claims are only those issues stated in the first paragraph of each

section. Plaintiff's rebuttal is merely a counter to defendants’ response.

38a

Plaintiff's rebuttal: The handrails in the shower

are inadequate. There are rubber mats in front of

the showers but the steps are uncovered and

slippery. There is no chair in the shower area for

handicapped people to use. Plaintiff can only

wash himself with one hand because he must

balance himself with the other hand. There

should be a chair in the shower area to help

plaintiff dry himself off. Defendants were well

aware of the health hazards posed to plaintiff by

normal shower facilities as evidenced by the

notation in his prison medical records from 1991.

Claim B: The Toilet

1) There are no handrails in plaintiff's cell to

assist him in the use of his toilet. 2) The failure

to provide handrails for plaintiff's toilet has made

it difficult for him to use his bathroom.

Defendant’s response: Dr. Quinones states that

there is no medical reason why defendant’ s toilet

should be a problem.

Plaintiff's rebuttal: Due to plaintiff's great weight

his groin and genitals are often submerged in the

toilet bowl.

Claim C: The Pod Tables

1) The pod tables do not accommodate someone

of plaintiff's girth. 2) The table cuts and bruises

plaintiff if he attempts to sit at the pod table

facing in.

Defendant’s response: Prison authorities have

provided plaintiff with a reinforced chair in his

cell which he can also use in the pod.

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Plaintiff's rebuttal: Plaintiff asserts the

defendants knew his bad back prevents him from

moving the heavy chair.

Claim D: The Cell Doors

1) The cell doors are 23 1/2 inches wide,

- accordingly plaintiff is forced to enter the cell

| sideways. 2) Plaintiff is subject to ridicule and in

some instances physical pain from his entry and

exit from the cell.

Defendants’ response: Defendants have seen

plaintiff enter and exit cells without any difficulty.

Dr. Quinones is unaware of plaintiff suffering any

scrapes or bruises suffered from entering or

exiting a cell.

Plaintiff's rebuttal: Plaintiff asserts that he has

told the doctor about the scrapes he suffered

entering and exiting the cells. Plaintiff asserts that

by the time he is able to see the doctor his wounds

have healed.

Claim E: Outdoor Recreational Activities

1) The recreation yard is too far from plaintiff's

cell. 2) The prison does not offer alternative

outdoor recreational activities for someone, like

plaintiff who can not walk or stand for long

periods of time. 3) There are no suitable chairs

for someone of plaintiff's girth in the outdoor

recreation yard.

Defendants’ response: Dr. Quinones states that he

has prescribed walking as part of his medical

treatment for plaintiff's condition. Dr. Quinones

states that he saw plaintiff walking about the

prison without apparent signs of distress.

Dr. Quinones further states that plaintiff’ s

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physical condition does not allow him to

participate in normal outdoor recreational

activities. There are sitting benches and bleachers

in the yard at KMCC.

Plaintiff's rebuttal: The seating in the yard is far

below the standard that Dr. Quinones prescribed

when he ordered a special chair for plaintiff's cell.

The benches and tables in the yard are inadequate

for plaintiff because they do not provide back

support. The seating in the yard is too low and

plaintiff had difficulty getting up. Additionally,

the seating in the yard is not padded as plaintiff

requires to prevent sores. Plaintiff reasserts that

the yard is too far from his cell.

Claim F: Indoor Recreational Activities

1) The steel tables in the recreation area do not

accommodate a person of plaintiff’s girth.

2) Plaintiff's girth prevents him from playing the

indoor recreational activities provided by the

prison, i.e. weightlifting, pool, pingpong and

football.

Defendants’ response: Dr. Quinones states that

plaintiff's physical condition does not permit him

to engage in routine athletics and other activities

within the gymnasium and recreational areas.

Claim G: The Building Lobby

1) The lobby area is sometimes wet and slippery.

The prison needs to place non-skid matting down

in the lobby. Plaintiff's girth makes him more

susceptible to slipping and injuring himself

severely.

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Claim H: The Dining Hall

1) The tables and chairs in the dining hall are

inadequate to accommodate a person of plaintiff's

girth. 2) Plain’’ff is forced to stand in line for

long periods 0: ...ne waiting for his food.

3) Plaintiff's girth subjects him to additional

verbal abuse from inmates and correctional

officers while maneuvering through the narrow

food lines. 4) The floor in the dining hall can

become wet and slippery, especially in front of the

tray window. The prison needs to place non-skid

matting down in potentially hazardous areas

throughout the dining hall.

Claim I: Medical Transportation

There are no vehicles at Keen Mountain for

transporting the disabled. Plaintiff is forced to

step on milk crates in order to enter or exit the

vehicles at the prison.

Claim J: Personal Aid

1) The prison refuses to provide aid to plaintiff in

his daily life functions such as dressing, personal

hygiene, and cell maintenance. 2) At night, the

prison does not provide plaintiff with an adequate

means of signaling the staff in case of a medical

emergency. There is a call button in plaintiff's

cell, however the guards do not respond in a

timely fashion, when they respond at all.

Claim K: The Commissary Window/Pill Line

There is no seating offered at the commissary

window or pill line.

42a

Claim L: The Location of the Housing Unit

1) Plaintiff's housing unit is located over one

hundred yards away from every other support

facilities, i.e. gym, medical, law library, etc.

2) Plaintiff's weight makes it difficult for him to

make the frequent trips to the support facilities.

Defendants’ response: Plaintiff's cell is on the

first floor in a pod that is the closest to the

canteen, medical department, and pill line.

Additionally, Dr. Quinones has prescribed

walking as part of plaintiff's medical treatment.

Plaintiff is given extra time to get from place to

place.

Plaintiff's rebuttal: Plaintiff is not given extra

time to get from place to place.

Claim M: The Plaintiff's Cell

1) Plaintiff's cell is too small to accommodate

plaintiff and his larger than regulation bed.

2) Plaintiff asserts that he is unable to effectively

use the sink in his cell because of his back.

Defendants’ response: Plaintiff was given a single

occupancy cell even though many of the cells of

the same size at KMC house two inmates. Dr.

Quinones asserts there is no medical reason why

plaintiff should be unable to use the sink in his

cell.

Plaintiff's rebuttal: Plaintiff's bed was inadequate

and once broke under his weight. Plaintiff is

unable to stand for long periods of time. Plaintiff

can not use a chair to use the sink because of the

cramped quarters in his cell.

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Claim N: Complaints Related to Confinement at

Nottoway Correctional Center Infirmary

Between March 19 and April 22, 1993

1) The lights in the infirmary were left on twenty-

four hours a day causing plaintiff headaches.

2) There were no hand rails in the showers and

toilet. 3) Plaintiff was denied the same privileges

as members of the general population.

4) Plaintiff was verbally abused by correctional

officers. 5) There was no handicapped

transportation available at Nottoway. Plaintiff

had to step on a milk crate in order to enter and

exit the prison van. There were no seat belts in

the prison van.

Defendants’ response: Plaintiff was provided

with two beds joined together for sleeping. There

are no railings in the shower, however, plaintiff

never raised this issue while at Nottoway.

Plaintiff had access to the gymnasium and

recreation yard just as any other general

population inmate. The infirmary where plaintiff

was housed had television for his viewing.

Plaintiff had a special chair to accommodate his

weight.

Plaintiff's rebuttal: The beds were on wheels,

whenever plaintiff rolled over the beds would split

apart. Plaintiff never had an opportunity to

address his concerns about the shower to Nurse

Epperson. Defendants were well aware of the

health hazards posed to-plaintiff by normal shower

facilities as evidenced by the notation in his prison

medical records form 1991. Plaintiff denies that

he ever had access to the recreation yard and

gymnasium. Plaintiff did not have a special chair

to accommodate his weight. Plaintiff was given a

standard plastic prison chair which cracked under

44a

his weight. Plaintiff asserts that he did not get

cable television like the other inmates in general

population.

During his incarceration in the general population at

KMCC and Nottoway Correctional Center (NBC), plaintiff alleges

the above conditions of confinement violated (1) the

Rehabilitation Act of 1973 (the Act), (2) Title II of the Americans

with Disabilities Act (ADA),4 and (3) his constitutional rights

guaranteed by the Eighth and Fourteenth Amendments.

Defendants have moved for summary judgment and

plaintiff has responded. On June 28, 1994, plaintiff informed the

Court that he had been paroled from prison and was currently

residing in Connecticut. Accordingly, the Court must sua sponte

consider the scope of its jurisdiction to address plaintiff's claims

for relief under the Rehabilitation Act and the ADA. See, Mt.

Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977); La

Faut v. Smith, 834 F.2d 389, 395 n.9 (4th Cir. 1987).

The remedies available to plaintiff under the ADA and the

Rehabilitation Act are the same. 42 U.S.C. § 12133.

Section 12133 provides, “the remedies, procedures, and rights set

forth in section 794a of Title 29 shall be the remedies, procedures,

and rights this subchapter provides to any person alleging

discrimination on the basis of disability in violation of

section 12132 of this title.” The United States Court of Appeals

for the Fourth Circuit had held that plaintiffs are not entitled to

monetary damages under section 794a of the Rehabilitation Act.

Jastma’ irginiz ect st. & State University, 939 F.2d

204, 298 (4th Cir. 1991). However, in ides v. Virgini

of Educ., 13 F.3d 823, 830 (4th Cir. 1994), the Fourth Circuit

4. The Court also construes plaintiff as bringing section 1983 claims premised

upon violations of the Rehabilitation Act and the ADA.

45a

overruled its decision in Eastman, holding that under certain

circumstances plaintiffs proceeding under the Rehabilitation Act

are entitled to the full panoply of legal remedies.»

Plaintiff also seeks injunctive relief. Parole moots a

prisoner’s claim for injunctive relief. La Faut, 939 F.2d at 395;

Inmates v. Owens, 561 F.2d 560 (4th Cir. 1977) (holding that with

the exception of one inmate who was rearrested but did not appeal,

ail other inmates who sought injunctive relief relating to the

conditions of confinement complained of were no longer subjected

to alleged treatment once they were released). Additionally, the

possibility that the plaintiff will violate his parole and be returned

to the same institution is too speculative to create a valid case or

controversy. Clay v. Smith, 949 F.2d 396 (4th Cir. 1991). An

Article III Court is without jurisdiction, “to decide questions that

cannot affect the rights in the case before them.” Id. at 209 (citing

North Carolina v. Rice, 404 U.S. 244, 246 (1971)). Accordingly,

plaintiff's claims for injunctive relief will be DISMISSED.

Defendants have moved for summary judgment of the

following grounds:

1. The Rehabilitation Act of 1973 does not

apply to state prisoners;

2. The plaintiff has failed to properly plead a

claim under the Rehabilitation Act of

1973;

3. The Americans with Disabilities Act does

not apply to state prisoners;

5. The Fourth Circuit's ruling was compelled by the Supreme Court’s decision

in Franklin v. Gwinnett County Pub. Sch., -- U.S. --, 112 S. Ct. 1028, 117 L.

Ed. 2d 208 (1992).

46a

4. The defendants have not subjected

plaintiff to cruel and unusual punishment

in violation of the Eighth Amendment;

5. The defendants have not discriminated

against plaintiff because of any physical

handicap;

6. All defendants are entitled to qualified

good faith immunity from a monetary

damages award for any violation of

plaintiff's rights under 42 U.S.C. § 1983;

pS Defendants Terry and Rosenthal are not

proper parties to this lawsuit.

To prevail on a motion for summary judgment, the moving

party must demonstrate that there is no genuine issue of material

fact and that he is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“The Court is obliged to credit the factual asseverations contained

in the material before it which favor the party resisting summary

judgment and to draw inferences favorable to that party if the

inferences are reasonable (however improbable they may seem).”

Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980).

Defendants assert that the Rehabilitation Act of 1973, 29

U.S.C. § 701 et seq., does not apply to state prisoners. Defendants

argue that prisoners are a special class of individuals and that

Congress never intended the Rehabilitation Act to apply to state

prisons.

Section 504 of the Act prohibits a federally funded state

program from discriminating against an individual solely on the

basis of an individual’s handicap. School Bd. of Nassau County v.

Arline, 480 U.S. 273, 275 (1987). The plain language of the Ac:

counsels for an expansive interpretation of which entities are

regulated by the Act, “No otherwise qualified handicapped

47a

individual . . . shall, solely by reason of his handicap, be excluded

from the participation in, denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794 (1982) (emphasis added).

Both the stated goals and plain language of the Act indicate that

State prisons may be subject to the provisions of the Rehabilitation

Act. Harris v. Thigpen, 941 F.2d 1495, 1522 (11th Cir. 1991);

Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988); Sites v.

McKenzie, 423 F. Supp. 1190, 1197 (N.D. W. Va. 1976).

Accordingly, the provisions of the Act are applicable to state

prisoners.

LS i f Plainti im Under the Rehabilitation

Act

Defendants next assert that even if the Rehabilitation Act

is applicable to state prisoners, plaintiff has failed properly to

plead a claim for relief under the Rehabilitation Act. To establish

a prima facie case of a violation of section 504, plaintiff must

show that: (1) he is a “handicapped person” under the Act; (2) he

is otherwise qualified for the program; (3) he is being excluded

from participation in, being denied the benefits of, or being

subjected to discrimination under the program solely by reason of

his handicap; and (4) the relevant program or activity receives

federal financial assistance. Landefeld v. Marion Gen. Hosp. Inc.,

994 F.2d 1178, 1180-81 (6th Cir. 1993).

In effect defendants are making a Fed. R. Civ. P. 12(b)(6)

motion. Allegations by a pro se plaintiff, however inartfully

pleaded, are sufficient to call for an opportunity to offer

supporting evidence, unless it is beyond a doubt that plaintiff

could prove no set of facts that would entitle him to relief.

Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The claim

set forth in the complaint does not specifically allege receipt of

federal funds. He does, however, assert the receipt of federal

funds in his response to defendants’ answer. That is sufficient to

act to cure the defect in the complaint. See Elmore v. Corcoran,

913 F.2d 170 (4th Cir. 1990).

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Defendants argue the ADA should not apply to state

prisoners for the same reasons they asserted the Rehabilitation Act

was inapplicable. In order to establish « claim under Title I] of the

ADA, plaintiff must be 1) a qualified individual 2) with a

disability 3) who by reason of such disability was discriminated

against or denied the benefits of the services, programs or

activities 4) by a public entity. 42 U.S.C. § 12132. Defendants

apparently contend that Congress did not intend the Virginia

Department of Corrections to be included within the definition of

a public entity. Section 12131 defines the term “public entity” to

include any state or local government and any department, agency

or special purpose district of a State or local government. 42

U.S.C. § 12131. The Virginia Department of Corrections fits the

definition of a “public entity” under the ADA. Id.; Bonner v.

Arizona Dep't of Corrections, 714 F.2d 420, 421 (D. Ariz. 1989).

One of the stated purposes of the ADA is to “provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.” 42 U.S.C.

§ 12101(b)(1). A number of Courts have also determined that the

Americans with Disabilities Act applies to state inmates. See

Bonner, 714 F.2d at 421; Noland v. Wheatley, 835 F. Supp. at 66.

Additionally, the Architectural and Transportation Barriers

Compliance Board has promulgated a series of interim final rules

pursuant to Title II of the ADA setting accessibility guidelines for

state and local correctional facilities. 59 Fed. Reg. 31676, 31699-

711 (June 20, 1994). [Hereafter interim rules ADA Rules]. The

ADA is applicable to state prisoners.

Even if the ADA and Rehabilitation Act are applicable to

state facilities, defendants assert that they are entitled to qualified

immunity for all of their actions. In determining whether the

individual defendants are entitled to qualified immunity for their

actions, the court considers whether plaintiff alleged any violation

of a clearly established right and, if so, whether the defendants’

conduct was objectively reasonable. Siegert v. Gilley, 500 U.S.

226, --, 111 S. Ct. 1789, 1793-94 (1991). The court does not

assume plaintiff has established a claim; plaintiff must

49a

demonstrate that if the facts as alleged by him are true, a violation

clearly has occurred. Siegert, 500 U.S. --, 111 S. Ct. at 1793-94.

Accordingly, the Court will address whether plaintiff has

established a claim for relief under the Eighth Amendment, the

Rehabilitation Act or the ADA prior to addressing merits of

defendants’ claim for qualified immunity.

Violati n

In order to make out a prima facie case that prison

conditions violate the Eighth Amendment, a plaintiff must show

both, “(1) a serious deprivation of a basic human need; and

(2) deliberate indifference to prison conditions on the part of

prison officials.” Williams v. Griffin, 952 F.2d 820, 824 (4th Cir.

1991). However, “because routine discomfort is ‘part of the

penalty that criminal offenders pay for their offenses against

society,’ ‘only those deprivations denying “the minimal civilized

measure of life’s necessities” are sufficiently grave for the basis of

an Eighth Amendment violation.’” Strickler v. Waters, 989 F.2d

1375, 1380 (4th Cir. 1993) (quoting respectively, Rhodes v.

Chapman, 452 U.S. 337, 347 (1981), and Wilson v. Seiter, 111 S.

Ct. 2321, 2324 (1991) (in turn quoting Rhodes, 452 U.S. at 347)).

Plaintiff's allegations concerning the adequacy of his commode is

the only instance in which plaintiff has established a viable Eighth

Amendment claim. None of plaintiff's other complaints amount to

a serious deprivation of a basic human need coupled with

deliberate indifference by prison officials. Accordingly, with the

exception of Claim B, all claims based upon the Eighth

Amendment will be DISMISSED.

50a

Violations of the Rehabilitation / ‘the AD/

Defendants argue that they did not discriminate against

plaintiff in violation of the Rehabilitation Act and the ADA®.

They assert plaintiff was not denied access to any “programs” or

“services” because of his disability and that the ADA requires

only that “reasonable modifications” be made in order to avoid

discrimination. 28 C.F.R. § 35.130(7).

The “services, programs, and activities provided or made

available by public entities” are not explicitly defined in Title II of

the ADA or the pertinent regulations, 29 C.F.R. § 35.104.

However, the appendix to the regulations promulgated pursuant to

Title II states:

Section 504 of the Rehabilitation Act of 1973 (29

U.S.C. 794), which prohibits discrimination on the

basis of handicap in federally assisted programs

and activities, already covers those programs and

activities of public entities that receive Federal

financial assistance. Title II of the ADA extends

this prohibition of discrimination to include all

services, programs and activities provided by

State and local government agencies, regardless of

the receipt of Federal financial assistance. —~

29 C.F.R. App. A § 35.102. Under the Rehabilitation Act of 1973,

the term “program or activity” was defined to include all of the

operations of a department, agency, special purpose district or

other instrumentality of a State or local government. 29 U.S.C.

§ 794(b)(1). 29 C.F.R. §§ 35.149-151 interpreting Title II of the

6. Defendants do not distinguish between their duties owed to plaintiff under

the ADA and the Rehabilitation Act. Therefore, for the purposes of

addressing this motion the court will hold defendants to the generally higher

standards of the ADA.

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ADA states that with regard to existing facilities, “[a] public entity

shall operate each service, program or activity so that the service,

_ program, or activity, when viewed in its entirety, is readily

accessible to and usable by individuals with disabilities.” 29

C.F.R. § 35.150(a). Moreover, the interim ADA rules deal

extensively with accessibility requirements in state correctional

facilities. 59 Fed. Reg. 31699-711. Accordingly, the Virginia

Department of Corrections is required to make its facilities and

programs readily accessible to individuals with disabilities.

In effectuating the policy of making facilities and

programs readily accessible to individuals with disabilities,

defendants are required to “make reasonable modifications in

policies, practices, or procedures when the modifications are

necessary to avoid discrimination on the basis of disability, unless

the public entity can demonstrate that making the modifications

would fundamentally alter the nature of the service, activity or

program.”? 29 C.F.R. § 35.130. “Whether a defendant has made

a reasonable accommodation to an individual with a disability 1s

ordinarily a question of fact.” Zande v. Wisconsin, 1994 U.S.

Dist. Lexis 1772; citing, McWright v. Alexander, 982 F.2d 222

(7th Cir. 1992). Summary judgment may be awarded only when

there is no dispute about the nature of the accommodations made

and where no reasonable juror could determine the

accommodations made were unreasonable. McGregor v.

Louisiana State Univ. Bd. of Sup’rs, 3 F.3d 850 (Sth Cir 1993).

Considering each of plaintiff's complaints in Claims A-F and L-N

the defendants’ responses and plaintiff's rebuttal evidence, a a

reasonable juror could find defendant’s accommodations were

unreasonable. Claim N presents the further question of whether

any responses were made at all.

7. At no point in their motion for summary judgment do defendants assert that

they are not required to make a modification because it would,

“fundamentally alter the nature of the service, activity, or program.”

29 C.F.R. § 35.130.

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Oualified |

Qualified immunity insulates government officials from

civil damages liability when the officials’ actions do not “violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Evaluating a defense of qualified immunity

involves three discrete determinations: (1) identification of the

specific right allegedly violated; (2) determination of whether the

right was so clearly established as to put a reasonable official on

notice of his legal obligations; and (3) evaluation of whether a

reasonable official in defendants’ situation could have believed his

conduct was reasonable. Collinson v. Gott, 895 F.2d 994, 998

(4th Cir. 1990).

In the most general sense, plaintiff has the right to be free

from discrimination in the provision of government services

pursuant to the ADA and the Rehabilitation Act. But the proper

focus is not the right at its most general level, but its application to

the particular conduct being challenged. Id. The right must be

defined in a particularized sense; its contours must be sufficiently

clear that a reasonable official would understand that his conduct

violates that right. Gooden v. Howard County, 954 F.2d 960, 968

(4th Cir. 1992). In the present case the disputed right is a

morbidly obese inmate’s right to the modification of specific

services and facilities.

For a right to be clearly established, the right’s contours

must be “sufficiently clear that a reasonable official would

understand what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). A key question is “whether

the law was clearly established at the time an action occurred”

because “[i]f the law at that time was not clearly established, an

official could not reasonably be expected to anticipate subsequent

legal developments, nor could he fairly be said to ‘know’ that the

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law forbade conduct not previously identified as unlawful. .. .”

Harlow, 457 U.S. at 818.8 An officer must consider whether there

are analogous legal principles in other areas which might apply to

his current situation, but he is not expected to recognize the

significance of a few scattered cases from disparate areas of the

law. Gooden, 954 F.2d at 968.

In the present case it is clear that correctional facilities

were subject to the provisions of the ADA and Rehabilitation Act.

Bonner, 857 F.2d at 562, Harris, 941 F.2d at 1522; Noland, 835 F.

Supp. at 66; Sites, 423 F. Supp. at 1196.9 However, the extent of

an institution’s affirmative duties to accommodate an individual

with plaintiff's disability was not clearly defined. See McGregor,

3 F.2d at 858.10 Tolerance for a range of reasonable public

actions is particularly important for those who must interpret often

imprecise or incomplete legal precedent. Swanson v. Powers, 937

F.2d 965, 968 (4th Cir. 1991). Of course this is not to say that

defendants are automatically shielded by qualified immunity

because the very actions in question have not been previously held

unlawful; but it is to say in light of pre-existing law the

unlawfulness must be apparent. Gooden, 954 F.2d at 968.

8. Defendants’ motion for summary judgment on the issue of qualified

immunity does not clearly distinguish between the status of the law under the

ADA and Rehabilitation Act at the time of the alieged violations.

Accordingly, the Court will hold defendants to the higher standard under

either act in ruling on the motion for summary judgment.

9. There has been some doubt as to whether federal correctional facilities are

subject to the provisions of the Rehabilitation Act. Williams v. Meese, 926

F.2d 994 (10th Cir. 1991); La Faut, 939 F.2d at 395. However, neither of

the above cases indicated that state correctional institutions were not subject

to the Rehabilitation Act.

10. No United States Court of Appeals has provided guidance on what might

constitute reasonable accommodation of a morbidly obese inmate.

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Finally, the Court must determine whether reasonable

officials in defendants’ positions could have believed that their

conduct was lawful. If public officials of reasonable competence

could differ on the lawfulness of defendants’ actions, the

defendants are entitled to qualified immunity. Malley v. Briggs,

475 U.S. 335, 341 (1986). The very nature of the reasonableness

test requires the Court to accord interpretative latitude to official

judgments. Torchinsky v. Siwinski, 942 F.2d 257 (4th Cir. 1991).

Accordingly, officials are entitled to qualified immunity for a

violation of the ADA or Rehabilitation Act if their actions could

reasonably have been thought to have been consistent with an

individual’s rights under the respective statutes. Noland, 835 F.

Supp. at 488.

Shower (Claim A)

The defendants recognized that they needed to take certain

steps in order to accommodate plaintiff’s disability with regard to

the showers. Defendants subsequently made a number of

modifications to the showers and allowed plaintiff to carry his

reinforced chair into the pod. Plaintiff’s assertion that the

defendants should have done more does not defeat their defense of

qualified immunity. The proper focus at this point is not whether

defendants provided reasonable accommodations within the

strictures of a particular statute, but whether defendants could

reasonably have believed their actions were consistent with their

obligations under the ADA and Rehabilitation Act. Malley 475

U.S. at 341. Finding that defendants could reasonably have

believed their actions to be lawful, defendants’ motion for

summary judgment will be GRANTED on Claim A.

Toilet (Claim B)

Defendants assert that they did not need to provide any

special features with regard to his toilet because it was completely

adequate for plaintiff's uses. Plaintiff contests the above assertion

and states specific problems regarding his ability to use the toilet.

There exists a material issue of fact as to whether defendants

could have reasonably believed that plaintiff’s toilet was adequate

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for his uses. Accordingly, defendants’ motion for summary

judgment will be DENIED on Claim B.

Pod Tables (Claim C)

Defendants recognized that plaintiff could not use the pod

tables and assert that they accommodated plaintiff by providing

him a reinforced chair in his cell which could be moved into the

pod. Plaintiff asserts that he could not move the chair because it

was too heavy for him to lift. More importantly, plaintiff asserts

that Dr. Quinones knew plaintiff's back would not permit him to

move the chair around. Accepting plaintiff’s assertions,

defendants could not reasonably have believed that they met their

obligations to plaintiff by providing him with an impracticable

accommodation. Accordingly, plaintiff’s motion for summary

judgment will be DENIED on Claim C.

Cell Doors (Claim D)

Defendants assert that they did not need to change the cell

doors because they had observed plaintiff entering and exiting the

cells without any difficulty. Plaintiff asserts that he informed the

doctor about the scrapes and bruises he suffered entering and

exiting his cell. There exists a material issue of fact as to whether

defendants could have reasonably believed that cell doors were

adequate for plaintiff's uses. Accordingly, defendant’s motion for

summary judgment will be DENIED on Claim D.

Outdoor Recreational Activities and Facilities (Claim E)

Defendants contend that the recreational activities and

facilities were adequate for the plaintiff. Dr. Quinones asserts that

he prescribed walking as part of the treatment for plaintiff’s

medical condition and that plaintiff’s physical condition

prohibited him from participating in normal outdoor recreational

activities. Plaintiff fails to state what alternative recreational

activities the defendants refused to provide. In light of the overall

purpose of the yard and plaintiff's prescribed treatment, plaintiff’ s

assertion that the seating in the recreation yard was inadequate

will fail to overcome the defense of qualified immunity.

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Defendants could reasonably have believed their actions were

lawful, therefore, the motion for summary judgment will be

GRANTED on Claim E.

Indoor Recreational Activities and Facilities (Claim F)

Dr. Quinones asserts that plaintiff’s physical condition

prevented him from participating in many of the indoor

recreational activities. Plaintiff has failed to assert what

alternative activities he requested that defendants have failed to

provide. Accordingly, defendants could reasonably have believed

their inaction to be lawful. Defendant’s motion for summary

judgment will be GRANTED on Claim F2. Defendants have not

responded to plaintiff's assertion that the tables are inadequate.

Accordingly, defendants’ motion for summary judgment will be

DENIED on Claim F1.

Location of Housing Unit (Claim L)

Defendants assert that they have provided plaintiff with a

cell that was located on the first floor and was the closest to a

number of support facilities. Additionally, defendants reassert that

Dr. Quinones had prescribed walking as part of the plaintiff's

medical treatment and that plaintiff was given extra time to get

between his different destinations. Plaintiff contends that he was

not given extra time to get between different facilities.

Defendant’s motion for qualified immunity in the selection of

plaintiff's housing unit will be GRANTED in part on Claim L.

However, there exists a material issue of fact as to whether

plaintiff was given extra time to travel between buildings; with

respect to that issue defendants’ motion for summary judgment

will be DENIED in part on Class L.

Plaintiff's Cell (Claim M)

Defendants assert plaintiff was provided with a hospital

bed instead of a regular bed; a single occupancy cell, even though

a cell of that same size often held two inmates; and a wall locker

instead of a floor locker. Dr. Quinones further contends that there

was no medical reason why plaintiff could not use his sink.

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Plaintiff has responded that the cell was cramped, the bed once

broke under his weight and that he could not stand for long

periods of time to use the sink. Defendants are entitled to

qualified immunity since they could reasonably have believed

their actions to have been consistent with an individual's rights

under the ADA and Rehabilitation Act. The defendants’ motion

for summary judgment will be GRANTED on Claim M.

Complaints Related to Confinement at Nottoway Correctional

Center Infirmary Between March 19 and April 22, 1993 (Claim N)

Defendants have not addressed plaintiff's complaints

concerning verbal abuse by officers, inadequate medical

transportation, and the twenty-four hour lighting in the infirmary.

Accordingly, to the extent defendants seek summary judgment on

claims N1, N4, and NS, the motion will be DENIED. Plaintiff

asserts that there were no handrails in the shower or commode and

that this confinement to the infirmary denied him access to

privileges enjoyed by inmates in the general population.

Defendants contend that plaintiff never informed the

administration that he needed handrails in the shower area.

Defendants also contend that plaintiff was not denied access to

any of the privileges available to the inmates in general

population. Plaintiff's assertion that the single reference in his

medical records is sufficient to put a reasonable official on notice

that his actions or inaction was violating the plaintiff’s rights is

clearly inadequate. Accordingly, defendants’ motion for summary

judgment will be GRANTED on Claim N2. However, since

plaintiff directly refutes the assertion that he was afforded the

same privileges as those inmates in general population, a material

issue of fact is in dispute and the motion for summary judgment

will be DENIED on Claim N3.

The defendants have failed to address plaintiff's Claim G

(the building lobby), H (the dining hall), I (medical

transportation), J (personal aid), or K (commissary window/pill

line). To the extent defendants seek summary judgment on those

claims, the motion is DENIED.

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Dismissa! of Rosenthal and Terry

Defendants have moved for summary judgment of former

Attorneys General Rosenthal and Terry. The maintenance of the

correctional facilities in Virginia is the province of the Director of

the Virginia Department of Corrections. Va. Code § 53.1-10. The

Attorney General’s interaction with the Department of Corrections

is limited to providing legal services and advice. Va. Code §§ 2.1-

118 and 2.1-121. Neither Terry or Rosenthal were responsible for

the maintenance of state correctional facilities. An attorney

offering advice in good faith is not liable for the torts of his client.

Buschi v. Kirvan, 775 F.2d 1240, 1250 (1985). Plaintiff fails to

state what legal duties Rosenthal and Terry owed him and how

those duties were breached. Accordingly, defendants’ motion for

summary judgment will be GRANTED. All claims against

defendants Terry and Rosenthal will be DISMISSED.

The case will be REFERRED to the Honorable David G.

Lowe, United States Magistrate Judge, for further action.

An appropriate Order shall issue.

Dated: September 14, 1994 /s/_ Richard L. Williams

UNITED STATES DISTRICT JUDGE

59a

Rehabilitation Act of 1973

United States Code

Title 29

§ 794. Nondiscrimination under Federal grants and programs

(a) Promulgation of rules and regulations

No otherwise qualified individual with a disability in the

United States, as defined in section 706(8) of this title, shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance or under any program or activity conducted by

any Executive agency or by the United States Postal Service. The

head of each such agency shall promulgate such regulations as

may be necessary to carry out the amendments to this section

made by the Rehabilitation Comprehensive Services and

Developmental Disabilities Act of 1978. Copies of any proposed

regulation shall be submitted to appropriate authorizing

committees of the Congress, and such regulation may take effect

no earlier than the thirtieth day after the date on which such

regulation is so submitted to such committees.

(b) “Program or activity” defined

For the purposes of this section, the term “program or

activity” means all of the operations of --

(1)(A) a department, agency, special purpose

district, or other instrumentality of a State or of a local

government; or

(B) the entity of such State or local government

that distributes such assistance and each such department

or agency (and each other State or local government

entity) to which the assistance is extended, in the case of

assistance to a State or local government;

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(2(A) a college, university, or other

postsecondary institution, or a public system of higher

education; or

(B) a local educational agency (as defined in

section 2891(12) of Title 20), system of vocational

education, or other school system;

(3)(A) an entire corporation, partnership, or other

private organization, or an entire sole proprietorship--

(i) if assistance is extended to such

corporation, partnership, private organization, or

an entire sole proprietorship as a whole; or

(ii) which is principally engaged in the

business of providing education, health care,

housing, social services, or parks and recreation;

or

(B) the entire plant or other comparable

geographically separate facility to which Federal financial

assistance is extended, in the case of any other

corporation, partnership, private organization, or sole

proprietorship; or

(4) any other entity which is established by two

or more of the entities described in paragraph (1), (2) or

(3);

any part of which is extended Federal financial assistance.

(c) Significant structural alterations by small providers;

exception

Small providers are not required by subsection (a) of this

section to make significant structural alterations to their existing

facilities for the purpose of assuring program accessibility, if

alternative means of providing the services are available. The

6la

terms used in this subsection shall be construed with reference to

the regulations existing on March 22, 1988.

(d) Standards used in determining violation of section

The standards used to determine whether this section has

been violated in a complaint alleging employment discrimination

under this section shall be the standards applied under title I of the

Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)

and the provisions of sections 501 through 504, and 510, of the

Americans with Disabilities Act of 1990 (42 U.S.C. 12201-

12204), as such sections relate to employment.

§ 794a. Remedies and attorneys fees

(a)(1) The remedies, procedures, and rights set forth in

section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16),

including the application of sections 706(f) through 706(k) (42

U.S.C. 2000e-5(f) through (k)), shall be available, with respect to

any complaint under section 791 of this title, to any employee or

applicant for employment aggrieved by the final disposition of

such complaint, or by the failure to take final action on such

complaint. In fashioning as equitable or affirmative action remedy

under such section, a court may take into account the

reasonableness of the cost of any necessary work place

accommodation, and the availability of alternatives therefor or

other appropriate relief in order to achieve an equitable and

appropriate remedy.

(2) The remedies, procedures, and rights set forth in

title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et

seq.] shall be available to any person aggrieved by any act or

failure to act by any recipient of Federal assistance or Federal

provider of such assistance under section 794 of this title.

(b) In any action or proceeding to enforce or charge a

violation of a provision of this subchapter, the court, in its

discretion, may allow the prevailing party, other than the United

States, a reasonable attorney's fee as part of the costs.

62a

Americans with Disabilities Act of 1990

United States Code

Title 42

§ 12101. Findings and purposes

(a) Findings

The Congress finds that --

(1) some 43,000,000 Americans have one or more

physical or mental disabilities, and this number is

increasing as the population as a whole is growing older;

(2) historically, society has tended to isolate and

segregate individuals with disabilities, and, despite some

improvements, such forms of discrimination against

individuals with disabilities continue to be a serious and

pervasive social problem;

(3) discrimination against individuals with

disabilities persists in such critical areas as employment,

housing, public accommodations, education,

transportation, communication, recreation,

institutionalization, health services, voting, and access to

public services;

(4) unlike individuals who have experienced

discrimination on the basis of race, color, sex, national

origin, religion, or age, individuals who have experienced

discrimination on the basis of disability have often had no

legal recourse to redress such discrimination;

(5) individuals with disabilities continually

encounter various forms of discrimination, including

outright intentional exclusion, the discriminatory effects

of architectural, transportation, and communication

barriers, overprotective rules and policies, failure to make

modifications to existing facilities and practices,

63a

exclusionary qualification standards and criteria,

segregation and relegation to lesser services, programs,

activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies

have documented that people with disabilities, as a group

occupy an inferior status in our society, and are severely

disadvantaged socially, vocationally, economically, and

educationally;

(7) individuals with disabilities are a discrete and

insular minority who have been faced with restrictions and

limitations, subjected to a history of purposeful unequal

treatment, and relegated to a position of political

powerlessness in our society, based on characteristics that

are beyond the control of such individuals and resulting

from stereotypic assumptions not truly indicative of the

individual ability of such individuals to participate in, and

contribute to, society;

(8) the Nation’s proper goals regarding

individuals with disabilities are to assure equality of

opportunity, full participation, independent living, and

economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and

unnecessary discrimination and prejudice denies people

with disabilities the opportunity to compete on an equal

basis and to pursue those opportunities for which our free

society is justifiably famous, and costs the United States

billions of dollars in unnecessary expenses resulting from

dependency and nonproductivity.

(b) Purpose

It is the purpose of this chapter --

(1) to provide a clear and comprehensive national

mandate for the elimination of discrimination against

individuals with disabilities;

64a

(2) to provide clear, strong, consistent,

enforceable standards addressing discrimination against

individuals with disabilities,

(3) to ensure that the Federal Government plays a

central role in enforcing the standards established in this

chapter on behalf of individuals with disabilities, and

(4) to invoke the sweep of congressional

authority, including the power to enforce the fourteenth

amendment and to regulate commerce, in order to address

the major areas of discrimination faced day-to-day by

people with disabilities.

§ 12102. Definitions

As used in this chapter:

(1) Auxiliary aids and services

The term “auxiliary aids and services” includes --

(A) qualified interpreters or other

effective methods of making aurally delivered

materials available to individuals with hearing

impairments,

(B) qualified readers, taped texts, or other

effective methods of making visually delivered

materials available to individuals with visual

impairments,

(C) acquisition or modification of

equipment or devices, and

(D) other similar services and actions.

(2) Disability

The term “disability” means, with respect to an

individual --

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities of such individual;

(B) arecord of such an impairment; or

(C) being regarded as having such an

impairment.

(3) State

The term “State” means each of the several States,

the District of Columbia, the Commonwealth of Puerto

Rico, Guam, American Samoa, the Virgin Islands, the

Trust Territory of the Pacific Islands, and the

Commonwealth of the Northern Mariana Islands.

SUBCHAPTER II -- PUBLIC SERVICES

Part A -- Prohibition Against Discrimination and

Other Generally Acceptable Provisions

§ 12131. Definition

As used in this subchapter:

(1) Public entity

The term “public entity” means --

(A) any State or local government;

66a

(B) any department, agency, special

purpose district, or other instrumentality of a State

or States or local government; and

(C) the National Railroad Passenger

Corporation, and any commuter authority (as

defined in section 502(8) of Title 45).

(2) Qualified individual with a disability —

The term “qualified individual with a disability”

means an individual with a disability who, with or without

reasonable modifications to rules, policies, or practices,

the removal of architectural, communication, or

transportation barriers, or the provision of auxiliary aids

and services, meets the essential eligibility requirements

for the receipt of services or the participation in programs

or activities provided by a public entity.

§ 12132. Discrimination

Subject to the provisions of this subchapter, no qualified

individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected

to discrimination by any such entity.

§ 12133. Enforcement

The remedies, procedures, and rights set forth in section

794a of Title 29 shall be the remedies, procedures, and rights this

subchapter provides to any person alleging discrimination on the

basis of disability in violation of section 12132 of this title.

§ 12134. Regulations

(a) In general

Not later than | year after July 26, 1990, the Attorney

General shall promulgate regulations in an accessible format that

67a

implement this part. Such regulations shall not include any matter

within the scope of the authority of the Secretary of Transportation

under section 12143, 12149, or 12164 of this title.

(b) Relationship to other regulations

Except for “program accessibility, existing facilities”, and

“communications”, regulations under subsection (a) of this section

shall be consistent with this chapter and with the coordination

regulations under part 41 of title 28, Code of Federal Regulations

(as promulgated by the Department of Health, Education, and

Welfare on January 13, 1978), applicable to recipients of Federal

financial assistance under section 794 of Title 29. With respect to

“program accessibility, existing facilities”, and “communications”,

such regulations shall be consistent with regulations and analysis

as in part 39 of title 28 of the Code of Federal Regulations,

applicable to federally conducted activities under such section 794

of Title 29.

(c) Standards

Regulations under subsection (a) of this section shall

include standard applicable to facilities and vehicles covered by

this division, other than facilities, stations, rail passenger cars, and

vehicles covered by part B of this subchapter. Such standards

shall be consistent with the minimum guidelines and requirements

issued by the Architectural and Transportation Barriers

Compliance Board in accordance with section 12204(a) of this

title.

68a

U.S. Department of Justice

Civil Rights Division

Washington, D.C. 20530

SEP 22, 1995

Daniel H. Weiner, Esq.

_ Hughs, Hubbard & Reed

| Battery Park Plaza

New York, New York 10004-1482

Re: ADA Title II Coverage of Prisons

Dear Mr. Weiner:

This letter responds to your inquiry about the scope of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-

12213. Specifically, you requested guidance regarding whether, in

the view of the U.S. Department of Justice, state prisons are

covered by title II of the ADA.

The Department of Justice is-authorized by the /.DA to

provide what is called “technical assistance” to aid persons or

entities in their ADA compliance efforts. 42 U.S.C. § 12206. We

are responding to your inquiry pursuant to this authority.

It is the view of the Department of Justice that title I

covers state prisons. This is evident from the terms of the ADA

statute and the title II regulation. See 42 U.S.C. § 12132

(prohibiting discrimination on the basis of disability by public

entities); 28 C.F.R. § 35.102 (describing title II as applicable to all

services, programs, and activities provided or made available by

public entities). See also 28 C.F.R. § 35.190 (designating the

Department of Justice as the agency responsible for implementing

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administrative enforcement procedures in all programs, services,

and regulatory activities relating to correctional institutions,

among others). See also references to correctional institutions in

the Department's interpretive guidance to the regulation

(preamble) (e.g., 28 C.F.R. § 35.130) and the Title II Technical

Assistance Manual published by the Department (e.g., section 2-

6.3300.) See also 36 C.F.R. Pt. 1191 App. A; 59 Fed.Reg. 31,676

(ADA Accessibility Guidelines, Interim Final Rule) at 12.1

(containing specific architectural standards for correctional

facilities.)

Further, the regulations implementing Section 504 of the

Rehabilitation Act of 1973 -- which prohibits discrimination

against individuals with disabilities by programs receiving federal

financial assistance, and is the basis for title II -- define “program”

to include the operations of a department of corrections. See 29

U.S.C. § 794(a); 28 C.F.R. § 42.540(h).

We hope that this information is helpful to you.

Sincerely,

/s/ Sheila Foran

Sheila M. Foran

Attorney

Disability Rights Section