IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY/AMERICUS DIVISION

CHARLES PRINCE WESTCOTT, et al., )

> )
>
> Plaintiffs, )
>
> )

v\. ) No. 1:96-CV-69-2(WLS)

> )

WAYNE GARDNER, et al., )

> )

[Defendants.]{.underline} )

**UNITED STATES\' MEMORANDUM OF LAW AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFFS\' POSITION THAT SECTION 504 AND THE ADA ARE APPLICABLE TO THE
GEORGIA DEPARTMENT OF CORRECTIONS AND ITS INSTITUTIONS**

INTRODUCTION

On April 19, 1996, Plaintiffs filed this class action lawsuit concerning
conditions at the Jimmy Autry Correctional Institution. Defendants are
the Commissioner of the Georgia Department of Corrections, the Warden of
the Jimmy Autry Correctional Institution, the Georgia Board of
Corrections, and the Georgia Department of Corrections. Plaintiffs
allege numerous constitutional violations, as well as violations of the
Religious Freedom Restoration Act of 1993, title II of the Americans
with Disabilities Act of 1990 (\"title II\" or the \"ADA\"), 42 U.S.C.
§§ 12131-34, and section 504 of the Rehabilitation Act of 1973
(\"section 504\" or the \"Rehabilitation Act\"), 29 U.S.C. § 794.

Plaintiffs allege that Defendants have violated the ADA and the
Rehabilitation Act by routinely excluding Plaintiffs with disabilities
from the benefits of the programs, activities, and services provided to
other inmates and by otherwise routinely discriminating against
Plaintiffs because of their disabilities. Plaintiffs also allege that
Defendants failed to maintain accessible facilities and to provide
appropriate auxiliary aids and services to inmates whose disabilities
interfere with their ability to communicate, that Plaintiffs are
retaliated against for requesting accommodations, and that they are
required to perform tasks, duties, and work details beyond their
physical and mental capacities.

On June 10, Defendants filed a motion to dismiss and/or for a more
definite statement, in which they argue, [inter]{.underline}
[alia]{.underline}, that neither the ADA nor section 504 affords
protections to inmates of state correctional facilities and that,
therefore, the allegations in Plaintiffs\' complaint relating to the ADA
and section 504 should be dismissed. The United States as [amicus
curiae]{.underline} urges this Court to reject that argument. As we
demonstrate below, the protections of title II of the ADA and section
504 of the Rehabilitation Act do apply to inmates in state prisons
because the statutes apply to [all]{.underline} public entities and
[all]{.underline} recipients of federal financial assistance,
respectively. And, as we further demonstrate, case law strongly supports
the coverage of inmates in state correctional facilities under section
504 and the ADA.

BACKGROUND

The Americans with Disabilities Act, 42 U.S.C.

§§ 12101-12213, is Congress\' most extensive civil rights legislation
since the Civil Rights Act of 1964. Its purpose 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). The
ADA\'s coverage is accordingly broad \-- prohibiting discrimination on
the basis of disability in employment, state and local government
programs and services, transportation systems, telecommunications,
commercial facilities, and the provision of goods and services offered
to the public by private businesses. This action involves title II of
the ADA, which prohibits disability-based discrimination by state and
local governmental entities.

Title II of the ADA was enacted to broaden the coverage of section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits
discrimination in any program or activity that receives federal
financial assistance, including the federally assisted programs and
activities of state and local governments. Title II extends these
protections to all state and local governmental entities regardless of
whether they receive federal funds.

The substantive provisions of the statutes are similar. Section 504
provides in pertinent part:

> No otherwise qualified individual with a disability in the United
> States \* \* \* 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.

29 U.S.C. § 794(a).

Title II of the ADA provides in pertinent part:

> \[n\]o qualified individual with a disability shall, by reason of such
> disability, be excluded from participation in or be denied the
> benefits of the services, programs, or activities of a public entity,
> or be subjected to discrimination by any such entity.

42 U.S.C. § 12132.

ARGUMENT

> THE ADA AND THE REHABILITATION ACT APPLY TO STATE

CORRECTIONAL FACILITIES

A. [The Plain Language of Both Statutes Applies to the Operations of
State Correctional Facilities]{.underline}

The starting point in statutory construction is the language of the
statute. [Bailey v. United States]{.underline}, 116 S. Ct. 501, 506
(1995). An examination of the plain language of title II and section 504
establishes that both statutes apply to state prison facilities.
[See]{.underline} [Bonner v. Lewis]{.underline}, 857 F.2d 559, 562 (9th
Cir. 1988); [Gates v. Rowland]{.underline}, 39 F.3d 1439, 1446-1447 (9th
Cir. 1994); [Inmates of The Allegheny County Jail v. Wecht]{.underline},
1996 WL 474106 (3rd Cir. Aug. 22, 1996), vacated, reh\'g granted, Sept.
20, 1996; [see]{.underline} [also]{.underline} [Lue v.
Moore]{.underline}, 43 F.3d 1203, 1205 (8th Cir. 1994) (applying section
504 to prisoners); [Harris v. Thigpen]{.underline}, 941 F.2d 1495, 1522
(11th Cir. 1991) (same).

Section 504 prohibits disability-based discrimination by
\"[any]{.underline} program or activity receiving federal financial
assistance.\" 29 U.S.C. § 794(a) (emphasis added). Similarly, title II
prohibits any \"public entity,\" [i.e]{.underline}., \"[any]{.underline}
State or local government\" and \"[any]{.underline} department, agency,
special purpose district, or other instrumentality of State or States or
local government\" 42 U.S.C. §§ 12131(1)(A)&(B) (emphasis added), from
discriminating against qualified individuals with disabilities in any
services, programs, or activities of that public entity. 42 U.S.C. §
12132. State correctional facilities clearly fall within both
definitions: they receive federal financial assistance,[^1] and
Departments of Corrections are \"departments\" of the state.

Moreover, Congress has emphasized that the term \"program or activity\"
means \"[all of the operations of]{.underline} \* \* \* a department,
agency, \* \* \* or other instrumentality of a State or of a local
government,\" and has directed that the terms \"be given the broadest
interpretation.\" 20 U.S.C. § 1687 (emphasis added); 29 U.S.C. §
794(b)(1)(A) (emphasis added); S. Rep. No. 64, 100th Cong., 2d Sess. at
5, reprinted in 1988 U.S.C.C.A.N. at 7.[^2] Thus it is clear that
section 504 covers \"all of the operations\" of state correctional
departments, including the treatment of the inmates incarcerated in
state correctional facilities, if the state department of corrections
receives federal funding. There is absolutely no indication in the
statutory language or legislative history that Congress intended to
carve out certain state departments or portions of such departments.

Title II also covers all the operations of state correctional
departments. In enacting title II, Congress not only employed the same
terminology contained in section 504; it specifically directed that
title II be interpreted in a manner consistent with section 504.
[See]{.underline} 42 U.S.C. §§ 12134(b) and

12201(a). Therefore, the terms \"programs\" and \"activities\" in title
II must be given the same meaning as in section 504.[^3] Accordingly,
title II, like section 504, covers \"all of the operations of\" state
correctional departments.

Even if Congress had not enacted the Restoration Act and specified that
a \"program or activity\" encompasses \"all the operations of\" a
federally assisted department, title II and section 504 would
nonetheless cover the operations of state correctional facilities. It is
well-established that words in a statute are to be given their common,
ordinary meaning. [See]{.underline} [FDIC v. Meyer]{.underline}, 114 S.
Ct. 996, 1000 (1994); [Director, OWCP v. Greenwich
Collieries]{.underline}, 114 S. Ct. 2251, 2255 (1994). [See]{.underline}
[MCI Telecommunications Corp v. AT&T Co.]{.underline}, 114 S. Ct. 2223,
2236 (1994) (Stevens, J. dissenting), citing [Cabell v.
Markham]{.underline}, 148 F.2d 737, 739 (2d Cir.) (Hand, J.) (noting the
usefulness of dictionaries in statutory interpretation),
[aff\'d]{.underline}, 326 U.S. 404 (1945).

As the court in [Innovative Health Systems, Inc. v. City of White
Plains]{.underline}, 931 F. Supp. 222, 232 (S.D.N.Y. 1996), explained:

\"Activity\" is defined by Webster\'s Third New International Dictionary
(1993) as a \"natural or normal function or operation.\" Because zoning
is a normal function or operation of a governmental entity, the plain
meaning of \"activity\" clearly encompasses zoning. (footnote omitted.)

Thus section 504 and title II cover the natural or normal functions or
operations ([i.e]{.underline}., the \"activities\") of state
correctional departments and the facilities they administer. Further,
correctional departments and prisons operate many \"programs\" as that
term is commonly understood. For example, prisons may operate
rehabilitative programs, including work release, vocational, and reward
systems for good behavior, and programs for the treatment of mental
illness and substance abuse.

[See]{.underline} [also]{.underline}, [Outlaw v. City of
Dothan]{.underline}, No. CV-92-A-1219-S, 1993 WL 735802 \*3 (M.D. Ala.
Apr. 27, 1993) (copy attached) (\"under common usage and understanding
of the terms \[service, program, or activity,\] the jail and all of its
facilities, including the shower, constitute a service, program or
activity of the City \*\*\* to which the ADA applies\").

Finally, the prohibitions of title II are not limited to the
discriminatory exclusion of or denial of benefits to individuals from
services, programs, or activities. Title II also prohibits public
entities from subjecting individuals with disabilities to discrimination
by providing that \"no qualified individual \* \* \* shall \* \* \* be
subjected to discrimination by any such entity.\" 42 U.S.C. § 12132.
This final phrase must be construed to protect prison inmates from
discriminatory conduct regardless of whether prison operations are
considered to involve services, programs, or activities. To conclude
otherwise impermissibly makes the final phrase of § 12132 mere
\"surplusage\" and \"altogether redundant\" with the guarantee that a
qualified individual not be \"excluded \* \* \* or denied the benefits
of the services, programs, or activities of a public entity.\" [Babbitt
v. Sweet Home Chapter of Communities for a Great Oregon]{.underline},
115 S. Ct. 2407, 2413 (1995); [Gustafson v. Alloyd Co.]{.underline}, 115
S. Ct. 1061, 1069 (1995). The court in [Innovative Health
Systems]{.underline} also followed this analytical approach and found:

> [no suggestion in the statute]{.underline} that zoning [or any other
> type of public action]{.underline} is to be excluded from this broad
> mandate. Moreover, the last phrase of Title II\'s prohibition is even
> more expansive, stating simply that no individual with a disability
> may be \`subjected to discrimination\' by a public entity.

931 F. Supp. at 232, (emphasis added). [See]{.underline}
[also]{.underline} [Crowder v. Kitagawa]{.underline}, 81 F.3d 1480, 1484
(9th Cir. 1996) (\"neither stairs nor the spoken word is a
\`service\[\], program\[\], or activit\[y\]\'\" of a public entity, yet
each can constitute a violation of Title II); [Oak Ridge Care Ctr. v.
Racine County, Wis.]{.underline}, 896 F. Supp. 867, 872-873 (E.D. Wis.
1995) (even if zoning is not a service, program, or activity within the
meaning of title II, \"the statute\'s catch-all phrase protects
\[plaintiffs\] from being \`subjected to discrimination by any such
entity\'\").

B. [Deference to Department of Justice Regulations Requires the
Conclusion that the Rehabilitation Act and Title II Apply to State
Correctional Facilities]{.underline}

The implementing regulations for section 504 and title II further
demonstrate that state correctional institutions are covered by these
statutes. Congress explicitly delegated to the Department of Justice the
authority to promulgate regulations under both section 504 and title II.
29 U.S.C. § 794(a); 42 U.S.C. § 12134(a). Accordingly, the Department\'s
regulations and its interpretation thereof are entitled substantial
deference. [Thomas Jefferson Univ. v. Shalala]{.underline}, 114 S. Ct.
2381, 2386 (1994); [Martin v. Occupational Safety & Health Review
Comm\'n.]{.underline}, 499 U.S. 144, 150 (1991), [citing]{.underline}
[Lyng v. Payne]{.underline}, 476 U.S. 926, 939 (1986); [Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc.]{.underline}, 467 U.S.
837, 844 (1984) (where Congress expressly delegates authority to an
agency to issue legislative regulations, the regulations \"are given
controlling weight unless they are arbitrary, capricious, or manifestly
contrary to the statute\"); [United States v. Morton]{.underline}, 467
U.S. 822, 834 (1983). The same is true of the preamble or commentary
accompanying a regulation since both are part of a department\'s
official interpretation of legislation. [Stinson v. United
States]{.underline}, 508 U.S. 36, 45 (1993), quoting [Bowles v. Seminole
Rock & Sand Co.]{.underline}, 325 U.S. 410, 414 (1945).
[See]{.underline} [United States v. Larionoff]{.underline}, 431 U.S.
864, 872-873 (1977); [Udall v. Tallman]{.underline}, 380 U.S. 1, 16-17
(1965). Indeed, \"\[a\]s the author of the \[ADA\] regulation, the
Department of Justice is also the principal arbiter as to its meaning.\"
[Fiedler v. American Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35,
39 (D.D.C. 1994), [citing]{.underline} [Thomas Jefferson
Univ.]{.underline}, 114 S. Ct. at 2386.[^4] As set forth in the
regulations and other administrative materials cited below, the
Department of Justice interprets both section 504 and title II of the
ADA to apply to correctional facilities.

The regulations promulgated by the Department of Justice to enforce
section 504 define the kinds of programs and benefits that should be
afforded to individuals with disabilities on a nondiscriminatory basis.
These definitions encompass prison administration. The regulations
define \"program\" to mean \"the operations of the agency or
organizational unit of government receiving or substantially benefiting
from the Federal assistance awarded, e.g., a police department or
[department of corrections]{.underline}.\" 28 C.F.R. § 42.540(h)
(emphasis added). The term \"benefit\" includes \"provisions of
services, financial aid or disposition (i.e., treatment, handling,
decision, sentencing, [confinement]{.underline}, or other prescription
of conduct).\" 28 C.F.R. § 42.540(j) (emphasis added). The appendix to
the regulations, attached to the Final Rule (45 Fed. Reg. 37620, 37630
(June 30, 1980)), makes clear that services and programs provided by
detention and correctional agencies and facilities are covered by
section 504. This coverage is broad, and includes \"jails, prisons,
reformatories and training schools, work camps, reception and diagnostic
centers, pre-release and work release facilities, and community based
facilities.\" [Ibid]{.underline}. The appendix further states that:

> \[f\]acilities available to [all inmates or detainees]{.underline},
> such as classrooms, infirmary, laundry, dining areas, recreation
> areas, work areas, and chapels, must be readily accessible to [any
> handicapped person who is confined to that facility]{.underline}.
> Beyond insuring the physical accessibility of facilities, [detention
> and correctional agencies]{.underline} must insure \[sic\] that their
> programs and activities are accessible to handicapped persons. \* \*
> \* In making housing and program assignments, such \[correctional\]
> officials must be mindful of the vulnerability of some [handicapped
> inmates]{.underline} to physical and other abuse by other inmates. The
> existence of a handicap alone should not, however, be the basis for
> segregation of such inmates in institutions or any part thereof where
> other arrangements can be made to satisfy safety, security and other
> needs of the [handicapped inmate]{.underline}.

[Ibid]{.underline}. (emphasis added).

Department of Justice regulations also make it clear that institutions
administered by the federal Bureau of Prisons are subject to section
504. See 28 C.F.R. § 39.170(d)(1)(ii) (section 504 complaint procedure
for inmates of federal penal institutions); [id]{.underline}. at 28
C.F.R. Pt. 39, Editorial Note, p. 667 (1995) (final rule published in
1984) (section 504 regulations requiring nondiscrimination in programs
or activities of the Department of Justice apply to the Bureau of
Prisons); [id]{.underline}. at 669 (federally conducted program is
\"anything a Federal agency does\").

The regulations promulgated under title II of the ADA afford similar
protections to persons with disabilities who are incarcerated in prisons
or otherwise institutionalized by the state, regardless of the public
institution\'s receipt of federal financial assistance. The regulations
state that the statute\'s coverage extends to \"all services, programs,
and activities provided or made available by public entities.\" 28
C.F.R.

§ 35.102. This broad language is intended to \"appl\[y\] to anything a
public entity does.\" 28 C.F.R. Pt. 35, App. A, Subpart A at 449. As
part of its enforcement obligations under title II, the Department of
Justice is designated as the agency responsible for coordinating the
compliance activities of public entities that administer \"\[a\]ll
programs, services, and regulatory activities related to law
enforcement, public safety, and the administration of justice, including
courts and [correctional institutions]{.underline} \* \* \* .\" 28
C.F.R. § 35.190(b)(6) (emphasis added). The Preamble to the
Department\'s title II regulations makes express reference to the
statute\'s application to prisons, stating that an entity is required to
provide \"assistance in toileting, eating, or dressing to individuals
with disabilities \* \* \* [where the individual is an inmate of a
custodial or correctional institution.]{.underline}\" 28 C.F.R. pt. 35,
App. A at 461 (emphasis added).

Finally, the Department\'s Title II Technical Assistance Manual
specifically lists \"jails and prisons\" as types of facilities that, if
constructed or altered after the effective date of the ADA (January 26,
1992), must be designed and constructed so that they are readily
accessible to and usable by individuals with disabilities. Title II
Technical Assistance Manual at II-6.0000, II-6.3300(6). DOJ Technical
Assistance Manuals are also entitled deference. [See]{.underline}
[Innovative Health Systems]{.underline}, 931 F. Supp. 222, 233 n.4;
[Fiedler]{.underline}, 871 F. Supp. 35, 37 n.4; [Bechtel]{.underline},
1994 WL 3396, \*2-\*3; [Petersen]{.underline}, 818 F. Supp. 1276, 1279;
[Chatoff v. City of New York]{.underline}, No. 92 Civ. 0604 (RWS), 1992
WL 202441 \*2 (S.D.N.Y. June 30, 1992).[^5]

C.  [Case Law Strongly Supports the Coverage of State Correctional
    Facilities Under the Rehabilitation Act and ADA]{.underline}

Numerous Courts have applied the Rehabilitation Act and/or the ADA in
the context of correctional facilities.[^6] In [Bonner v.
Lewis]{.underline}, the Ninth Circuit held that section 504 applies to
inmates with disabilities in state correctional facilities. 857 F.2d
559, 562 (9th Cir. 1988). Based on the plain language of both the
Rehabilitation Act and the Justice Department\'s implementing
regulation, and on the congruence between the Act\'s goals and those of
prison officials, the court held that the protections of the Act
extended to inmates of correctional facilities.[^7]

Following [Bonner]{.underline}, this Circuit has also applied section
504 to prisoners in state correctional facilities. [Harris v.
Thigpen]{.underline}, 941 F.2d 1495, 1522 n. 41. In
[Harris]{.underline}, the court was not required to actually decide the
coverage issue because the Alabama Department of Corrections conceded
that section 504 applied to prisoners. The court did, however,
explicitly note that it agreed with both the result reached by the
[Bonner]{.underline} court, and the [Bonner]{.underline} court\'s
underlying analysis of the issue.[^8]

Defendants mistakenly rely on the Fourth Circuit\'s qualified immunity
ruling in [Torcasio v. Murray]{.underline}, 57 F 3d. 1340 (4th Cir.
1995), to assert that section 504 and title II do not apply to state
correctional facilities. The plaintiff in [Torcasio]{.underline}, who
alleged that he was morbidly obese, brought an action against state
prison officials for injunctive relief and damages, asserting claims
under section 504 and title II of the ADA. 57 F.3d at 1342. The
[Torcasio]{.underline} court held that the individual defendants were
entitled to qualified immunity because it was not clearly established
\"at the time\" that either statute applied to state prisons.
[Id]{.underline}. at 1343; [see]{.underline} [id]{.underline}. at
1344-1352.[^9] Although the [Torcasio]{.underline} court expressed doubt
that either statute applies to prisons, its discussion of that question
was [dicta]{.underline}. More importantly, the reasoning underlying its
limited reading of both statutes is flawed and should be rejected.

Defendants, following the reasoning of the [Torcasio]{.underline} court,
assert that \"in matters which affect the management of state prisons,
acts of Congress are only to be considered applicable if there is a
clear congressional intent expressed in that act.\" Def.\'s Motion at
13. Although the [Torcasio]{.underline} court recognized that the broad
language prohibiting discrimination on the basis of disability in both
statutes \"appears all-encompassing,\" 57 F.3d at 1344, it expressed its
reluctance to find either applicable to prisons, \"absent a far clearer
expression of congressional intent.\" [Ibid]{.underline}. The court
cited a rule of statutory construction set forth in [Will v. Michigan
Dept. of State Police]{.underline}, 491 U.S. 58, 65 (1989), 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]{.underline}, 473 U.S. 234, 242 (1985);
[see]{.underline} [also]{.underline} [Pennhurst State School and
Hospital v. Halderman]{.underline}, 465 U.S. 89, 99 (1984).\" 57 F.3d at
1344. Because it found the operation of prisons to be a \"core state
function,\" 57 F.3d at 1345, and further that neither section 504 nor
the ADA included a clear statement of their application to correctional
facilities, the [Torcasio]{.underline} court refused to hold that
Congress had \"clearly\" intended either statute to apply to state
prisons, [id]{.underline}. at 1346.

This extension of the clear statement rule was unwarranted.
[Will]{.underline}, [Atascadero]{.underline}, and
[Pennhurst]{.underline} all involved instances in which there had been
no express waiver or abrogation of the states\' traditional immunity
from suit, either by the state itself ([Pennhurst]{.underline}), or by
Congress ([Will]{.underline}, [Atascadero]{.underline}). Here, in
contrast, both section 504 and title II of the ADA contain an
\"unequivocal expression of Congressional intent to overturn the
constitutionally guaranteed immunity of the several states.\"
[Pennhurst]{.underline}, 465 U.S. 89, 99. [See]{.underline} 42 U.S.C. §
2000d-7(a)(1) (\"A State shall not be immune under the Eleventh
Amendment \* \* \* from suit in Federal court for a violation of section
504 of the Rehabilitation Act\"); 42 U.S.C. § 12202 (\"A state shall not
be immune under the eleventh amendment \* \* \* from an action in
Federal or State court of competent jurisdiction for a violation of
\[the ADA\]\"). And, both statutes speak unequivocally of their
application to state governments and to \"any\" or \"all\" of their
operations. In light of the clear and all-encompassing language of both
statutes, there is simply no basis for requiring Congress to have
detailed which of the many important components of state and local
governments were included in the terms \"any\" and \"all.\"[^10]

While other federal courts have acknowledged that deference is due to
the decisions of state officials, they have also recognized that they
cannot abdicate their duty to enforce important civil rights
protections. Indeed, in a recent decision under title II of the ADA, the
Ninth Circuit reversed a district court that had refused to examine the
lawfulness of a state legislative action. [See]{.underline}
[Crowder]{.underline}, 81 F.3d 1480. The Court of Appeals directed that
the lower courts must apply federal law:

> We are mindful of the general principle that courts will not
> second-guess the public health and safety decisions of state
> legislatures acting within their traditional police powers. However,
> when Congress has passed antidiscrimination laws such as the ADA \* \*
> \* , it is incumbent upon the courts to insure that the mandate of
> federal law is achieved.

[Id]{.underline}. at 1485 (citation omitted). [See]{.underline}
[also]{.underline} [Garcia v. San Antonio Metro. Transit
Auth.]{.underline}, 469 U.S. 528, 546-47 (1985) (states are not immune
from federal regulation of their \"integral state functions\").[^11]

In an effort to find a textual basis for its narrow reading of section
504 and title II, [Torcasio]{.underline} opined that, despite their
broad language, certain provisions of the statutes cast doubt on their
applicability to prisons. 57 F.3d at 1346-1347. The court stated its
belief that prisons \"generally do not provide \`services,\'
\`programs,\' or \`activities\' as those terms are ordinarily
understood\" and that \"the definition of \`qualified individual with a
disability\' is not naturally read as encompassing inmates in state
prisons.\" 57 F.3d at 1347.

As explained above, however (pp. 5-8, [supra]{.underline}), the
operations of state or local correctional facilities fall quite
naturally within the terms \"programs\" and \"activities.\" Similarly,
the fact that inmates are in prison involuntarily does not negate the
fact that prison officials provide them with benefits and services in
the form of food, shelter, medical care, recreation, education, and
rehabilitation.

Nor are prisoners excluded from coverage because section 504 and title
II protect only qualified individuals with a disability. That term is
defined in title II to mean:

> an individual with a disability who, with or without reasonable
> modifications \* \* \* 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. § 12131(2). This definition, drawn from the Rehabilitation Act
regulations, is not intended to circumscribe the entities covered by the
Act. Rather, it sets forth the common sense proposition that entities
that are covered by the Act need not jettison the essential eligibility
requirements of their programs or activities in order to avoid
liability. [See]{.underline} [Southeastern Community College v.
Davis]{.underline}, 442 U.S. 397 (1979); H.R. Rep. No. 485, 101st Cong.,
2d Sess., pt.4, at 39 (1990), reprinted in 1990 U.S.C.C.A.N. 512, 528.

Moreover, the terms \"eligible\" and \"participate\" do not, as
[Torcasio]{.underline} stated, \"imply voluntariness\" or mandate that
an individual seek out or request a service to be covered. 57 F.3d at
1347. To the contrary, the term \"eligible\" applies to those who are
automatically included, without regard to choice or application, as in
\"only native-born citizens are eligible to the office of president.\"
[See]{.underline} Webster\'s Third New International Dictionary (1986).
Further, [Torcasio]{.underline}\'s narrow reading would exempt other
entities that are clearly covered under the Acts, such as mental
institutions, in which individuals are \"held against their will\" and
would allow an entity to escape liability for discrimination under the
statutes by making participation in a function mandatory.

Therefore, both the [Torcasio]{.underline} court\'s application of the
clear statement doctrine to statutes that unambiguously apply to the
states and its artificially narrow reading of the regulatory language
must be rejected.[^12] However, even if the clear statement doctrine is
applied, both section 504 of the Rehabilitation Act and title II of the
ADA clearly and unambiguously apply to all the operations of state
correctional departments including the treatment of inmates with
disabilities. Finally, Defendant\'s repeat [Torcasio]{.underline}\'s
concern that the application of section 504 or the ADA to state
correctional facilities will lead to absurd results. However, the issue
before this court is whether the ADA and section 504 protect inmates in
state correctional facilities. The question of [how]{.underline} these
statutes apply is a separate issue. Contrary to the Defendants\'
contention, applying section 504 and the ADA to prisons, as many other
courts have done, does not lead to \"absurd\" results. Neither the ADA
nor section 504 require a fundamental alteration in the way prisons
operate; indeed, the unique features of any state program, including
prisons, must be taken into account in determining what the statutes
require in a particular situation.[^13] Put simply, neither statute
calls for an abrogation of common sense.[^14]

CONCLUSION

For the reasons set forth above, this Court should conclude that the
protections of section 504 of the Rehabilitation Act of 1973 and title
II of the Americans with Disabilities Act of 1990 extend to prisoners
incarcerated in state correctional institutions including institutions
operated by the State of Georgia and the Georgia Department of
Corrections and should deny Defendants\' Motion to Dismiss with respect
to Plaintiffs\' claims under the Rehabilitation Act and the ADA.

Respectfully submitted,

H. RANDOLPH ADERHOLD DEVAL L. PATRICK

United States Attorney Assistant Attorney General

Middle District of Georgia Civil Rights Division

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

VICKI CROWELL, Civil Chief JOHN L. WODATCH, Chief

United States Attorney\'s Office L. IRENE BOWEN, Deputy Chief

Middle District of Georgia ANNE MARIE PECHT, Attorney

433 Cherry Street D.C. Bar No. 388901

P.O. Box U Disability Rights Section

Macon, Georgia 31202 Civil Rights Division

AL Bar No. 424-72-7683 U.S. Department of Justice

\(912\) 752-3530 P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

[^1]: ^?^ To support a finding that section 504 is applicable,
    Plaintiffs must establish that the Georgia Department of Corrections
    receives federal financial assistance. We assume, for purposes of
    discussion, that the Department receives such assistance.

[^2]: In 1988, Congress enacted the Civil Rights Restoration Act, to
    \"overrule\" the Supreme Court\'s decision in [Grove City College v.
    Bell]{.underline}, 465 U.S. 555 (1984), and to ensure that the terms
    \"program and activity,\" appearing in various civil rights statutes
    including section 504 of the Rehabilitation Act, are properly
    defined. S. Rep. No. 64, 100th Cong., 2d Sess. 1, 2, 4, 5, 6-7
    (1988), reprinted in 1988 U.S.C.C.A.N. 3, 4, 6, 7, 8-9.

[^3]: ^?^ When construing a statute, \"\`\[i\]t is not uncommon to refer
    to other, related legislative enactments when interpreting
    specialized statutory terms,\' since Congress is presumed to have
    \`legislated with reference to\' those terms.\" [Reno v.
    Koray]{.underline}, 115 S. Ct. 2021, 2025 (1995), quoting
    [Gozlon-Peretz v. United States]{.underline}, 498 U.S. 395, 407-408
    (1991). Moreover, when Congress borrows language from one statute
    and incorporates it into another, it is well settled that the
    language of the two acts should be interpreted the same way.
    [See]{.underline} [Morales v. Trans World Airlines]{.underline}, 504
    U.S. 374, 383-384 (1992); [Ingersoll-Rand v. McClendon]{.underline},
    498 U.S. 133, 144-145 (1990); [Oscar Mayer & Co. v.
    Evans]{.underline}, 441 U.S. 750, 756 (1979).

[^4]: ^?^ [See]{.underline} [also]{.underline} [Helen L. v.
    DiDario]{.underline}, 46 F.3d 325, 331-32 (3d Cir. 1995) (relying
    extensively on DOJ title II regulations and its interpretation
    thereof), [cert. denied sub nom.]{.underline} [Pennsylvania Sec\'y
    of Pub. Welfare v. Idell S.]{.underline}, 116 S. Ct. 64 (1995);
    [Kinney v. Yerusalim]{.underline}, 9 F.3d 1067, 1071-1073 (3d Cir.
    1993) (same), [cert. denied sub nom.]{.underline} [Hoskins v.
    Kinney]{.underline}, 114 S. Ct. 1545 (1994); [Innovative Health
    Systems]{.underline}, 931 F. Supp. 222, 232-233, nn. 3 & 4 (same);
    [Bullock v. Gomez]{.underline}, 929 F. Supp. 1299, 1302 (C.D.Ca.
    1996) (same); [Concerned Parents to Save Dreher Park Center v. City
    of West Palm Beach]{.underline}, 846 F. Supp. 986, 989 n.9 (S.D.Fla.
    1994) (same); [Tugg v. Towey]{.underline}, 864 F. Supp. 1201, 1205
    n.6 (S.D. Fla. 1994) (same); [Bechtel v. East Penn. School Dist. of
    Lehigh County]{.underline}, No. Civ. A. 93-4898, 1994 WL 3396,
    \*2-\*3 (E.D. Pa. 1994) (same); [Petersen v. University of Wis. Bd.
    of Regents]{.underline}, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993)
    (same); [Noland v. Wheatley]{.underline}, 835 F. Supp. 476, 483
    (N.D. Ind. 1993) (same).

[^5]: ^?^ The design standards applicable to facilities covered by
    section 504 and title II also include specific provisions relating
    to correctional facilities. The Department of Justice section 504
    regulations for federally assisted facilities adopt the Uniform
    Federal Accessibility Standards (UFAS), as the standards for all
    entities receiving federal financial assistance from the Department.
    [See]{.underline} 28 C.F.R. § 42.522 (b). UFAS lists \"jails,
    prisons, reformatories\" and \"\[o\]ther detention or correctional
    facilities\" as institutions to which the accessibility standards
    apply. 41 C.F.R. subpart 101-19.6, Appendix A, p. 149. Under Title
    II, covered entities building new or altering existing facilities
    can choose to follow either UFAS or the ADA Accessibility Guidelines
    for Buildings and Facilities (ADAAG). 28 C.F.R. 151(c); see 28
    C.F.R. part 36, Appendix A. Amendments to ADAAG, adopted as an
    Interim Final Rule, effective December 20, 1994, by the
    Architectural and Transportation Barriers Compliance Board, include
    specific accessibility guidelines for \"detention and correctional
    facilities.\" 59 Fed. Reg. 31676, 31770-31772 (June 20, 1994). The
    Department of Justice has proposed adoption of the interim final
    rule. [Id]{.underline}. at 31808.

[^6]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Lue v.
    Moore]{.underline}, 43 F.3d 1203 (8th Cir. 1994) (Rehabilitation
    Act); [Harris v. Thigpen]{.underline}, 941 F.2d 1495 (11th Cir.
    1991) (Rehabilitation Act); [Armstrong v. Wilson]{.underline}, No. C
    94-2307 CW, slip op. (N.D. Cal. Sept. 20, 1996) (copy attached)
    (title II and Rehabilitation Act); [Bullock v. Gomez]{.underline},
    929 F. Supp. 1299 (title II and Rehabilitation Act); [Niece v.
    Fitzner]{.underline}, 922 F. Supp. 1208 (E.D. Mich. 1996) (title
    II); [Austin v. Pennsylvania Dep\'t of Corrections]{.underline}, 876
    F. Supp. 1437 (E.D. Pa. 1995) (title II and Rehabilitation Act);
    [Love v. McBride]{.underline}, 896 F. Supp. 808 (N.D.Ind. 1995)
    (title II); [Rewolinski v. Morgan]{.underline}, 896 F. Supp. 879
    (E.D. Wis. 1995) (title II); [Smith v. Indiana]{.underline}, 904 F.
    Supp. 877 (N.D. Ind. 1995) (title II); [Clarkson v.
    Coughlin]{.underline}, 898 F. Supp. 1019 (S.D.N.Y. 1995)
    (Rehabilitation Act and title II); [Timmons v. New York State Dep\'t
    of Correctional Servs.]{.underline}, 887 F. Supp. 576 (S.D.N.Y.
    1995) (Rehabilitation Act); [Harrelson v. Elmore County,
    Alabama]{.underline}, 859 F. Supp. 1465 (M.D. Ala. 1994) (title II);
    [Outlaw]{.underline}, 1993 WL 735802 (title II and Rehabilitation
    Act); [Noland]{.underline}, 835 F. Supp. 476 (title II); [Donnell v.
    Illinois Bd. of Educ.]{.underline}, 829 F. Supp. 1016 (N.D. Ill.
    1993) (Rehabilitation Act); [Casey v. Lewis]{.underline}, 834 F.
    Supp. 1569 (D. Ariz. 1993) (Rehabilitation Act); [Sites v.
    McKenzie]{.underline}, 423 F. Supp. 1190 (N.D. W. Va. 1976)
    (Rehabilitation Act).

[^7]: ^?^ This conclusion was reaffirmed in [Gates]{.underline}, 39 F.3d
    1439, 1446-47. Defendants assert that [Gates]{.underline} suggests
    that the Ninth Circuit has \"is beginning to rethink\" its decision
    in [Bonner]{.underline} that state prisons are subject to the
    Rehabilitation Act. Def.\'s Motion at 15. To the contrary, in
    [Gates]{.underline}, the Court articulated the standard of review
    for determining [how]{.underline} the Rehabilitation Act is to be
    applied in a prison setting, not [whether]{.underline} the statute
    should be applied at all. [See]{.underline} [Gates]{.underline}, 39
    F.3d at 1446-47. [See]{.underline} [also]{.underline}
    [Armstrong]{.underline}, slip op. at 8 (\"[Gates]{.underline} is a
    reaffirmation of [Bonner]{.underline}, not a retreat from it.\")

[^8]: ^?^ Two district court decisions within the Eleventh Circuit have
    also held that title II of the ADA applies to correctional
    facilities. In [Outlaw v. City of Dothan, Alabama]{.underline}, 1993
    WL 735802 \*4 (M.D. Ala. Apr. 27, 1993), the court held that the ADA
    required the City of Dothan to make the shower in its jail
    accessible to an individual with a disability. Although the City did
    not dispute that it was a \"public entity\" covered by the ADA, it
    denied that the shower was a \"service, program, or activity\" of a
    public entity. The court held that \"under common usage and
    understanding of the terms the jail and all of its facilities,
    including the shower, constitute a service, program or activity of
    the City of Dothan to which the ADA applies.\" In [Harrelson v.
    Ellmore County, Alabama]{.underline}, 859 F.Supp 1465, 1468 (M.D.
    Ala. 1994), the court stated, without discussion, that a claim by a
    paraplegic alleging injury because of inaccessible jail facilities
    clearly stated a claim under title II of the ADA.

[^9]: ^?^ The Court also held that it was not clearly established that
    either statute provided protections to a morbidly obese prisoner, 57
    F.3d 1340, 1353-1355, and that the individual defendants could
    reasonably have believed that their actions were lawful.
    [Id]{.underline}. at 1355-1356.

[^10]: There are, of course, many areas of state and local governance
    that could be considered core state functions. Such areas may
    include police services, fire protection, the selection of judicial
    nominees, the qualification of applicants to a state bar, and the
    management of state court systems. Nevertheless, these state or
    local functions are commonly understood to be covered by the
    Rehabilitation Act and the ADA.

[^11]: ^?^ Not surprisingly, a number of federal courts have applied
    various federal anti-discrimination statutes to correctional
    facilities. [See]{.underline} [Jeldness v. Pearce]{.underline}, 30
    F.3d 1220 (9th Cir. 1994) (Title IX of the 1964 Civil Rights Act);
    [Baker v. McNeil Island Corrections Ctr.]{.underline}, 859 F.2d 124
    (9th Cir. 1988) (racial discrimination) (Title VII of the 1964 Civil
    Rights Act). [See]{.underline} [also]{.underline} [Women Prisoners
    of the Dist. of Columbia Dep\'t of Corrections v. District of
    Columbia]{.underline}, 877 F. Supp. 634, 672 (D.D.C. 1994) (Title
    IX), [vacated in part on other grounds]{.underline}, 899 F. Supp.
    659 (D.D.C. 1995); [Klinger v. Nebraska Dep\'t of Correctional
    Servs.]{.underline}, 824 F. Supp. 1374, 1431 (D. Neb. 1993) (same),
    [rev\'d on other grounds]{.underline}, 31 F.3d 727 (8th Cir. 1994),
    [cert. denied]{.underline}, 115 S.Ct. 1177 (1995); [Donnell v.
    Illinois Bd. of Educ.]{.underline}, 829 F. Supp. 1016 (N.D. Ill.
    1993) (Individuals with Disabilities Education Act); [Canterino v.
    Wilson]{.underline}, 546 F. Supp. 174, 209 (W.D. Ky. 1982) (Title
    IX), [aff\'d]{.underline}, 875 F.2d 862 (6th Cir. 1989), [cert.
    denied]{.underline}, 493 U.S. 991 (1989); [Green v.
    Johnson]{.underline}, 513 F. Supp. 965, 976 (D. Mass. 1981)
    (Individuals with Disabilities Education Act); [Cruz v.
    Collazo]{.underline}, 450 F. Supp. 235 (D. P.R. 1979)(same);
    [Beehler v. Jeffes]{.underline}, 664 F. Supp. 931, 940 (M.D. Pa.
    1986) (Title IX).

[^12]: ^?^ The [Torcasio]{.underline} court also failed to locate the
    specific regulatory sections that discuss the application of section
    504 and the ADA to correctional facilities. [See]{.underline}
    [Armstrong]{.underline}, slip op. at 15-16. The
    [Torcasio]{.underline} court itself noted that Torcasio might have
    prevailed \"if he were able to point to regulations that make that
    applicability clear.\" [Torcasio]{.underline}, 57 F.3d at 1347.

[^13]: ^?^ For example, prisons must make only \"reasonable\"
    modifications to their policies, practices, and procedures, when
    those modifications are necessary to avoid discrimination. 28 C.F.R.
    § 35.130(b)(7). And covered entities such as prisons are never
    required to take any action that would result in a \"fundamental
    alteration\" in the nature of the programs they provide or that
    would pose \"undue financial and administrative burdens.\" 28 C.F.R.
    § 35.150(a)(3).

[^14]: ^?^ Nor do the statutes mandate that prisons create particular
    programs or activities for prisoners or provide \"special
    treatment\" for inmates with disabilities. They simply require the
    state to provide inmates with disabilities with as equal an
    opportunity as that provided to inmates without disabilities to
    participate in, and benefit from, the programs, activities, and
    services of the state prison system \-- whatever they happen to be.