IN THE UNITED STATES DISTRICT COURT
                       FOR THE MIDDLE DISTRICT OF GEORGIA
                                MACON DIVISION
BUDDY CASON, et al.,            )
                                )
        Plaintiffs,             )
                                )
v.                              )       No. 84-313-1-MAC
                                )
JIM SECKINGER, et al.,          )
                                )
        Defendants.             )
        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
        Cason v. Seckinger is a class action suit filed in 1984
against various Georgia state correctional officials challenging
general prison conditions under  1983 of the Civil Rights Act.
The certified plaintiff class comprises all past, current, and
future inmates housed at the Middle Georgia Correctional Complex,
which consists of five separate facilities that primarily house
male inmates, and a subclass that includes all sentenced females
housed by the Georgia Department of Corrections. On March 15,
1995, Plaintiffs filed a motion to amend their complaint to add
claims under 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, in order to address
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what they allege are widespread problems with care and access for
inmates with disabilities.
        Plaintiffs allege that Defendants have violated the ADA and
the Rehabilitation Act by routinely excluding Plaintiffs with
disabilities from a wide range of correctional programs on the
basis of Plaintiffs' disabilities, by failing to make reasonable
modifications in the programs and activities that Defendants
provide to prison inmates in order to allow Plaintiffs to
participate in such programs and activities, by failing to
provide appropriate auxiliary aids and services to Plaintiffs
where necessary for effective communication, and by building
and/or renovating prison facilities in a manner that does not
comply with federal accessibility standards.
        Defendants have opposed adding these claims to the suit,
raising questions regarding the applicability of the
Rehabilitation Act and the ADA to state correctional facilities.
On April 2, 1996, Magistrate Judge Hicks issued an Order
requiring the parties to brief the coverage issues and holding
Plaintiffs' motion to amend in abeyance pending resolution of the
issues. In their Brief, Defendants argue that the protections of
the ADA and Rehabilitation Act do not extend to inmates in state
correctional facilities.1 The United States as amicus curiae
_____________________
        1 Defendants, while acknowledging that the issue is not now
before this Court, have also questioned the provisions of the ADA
that abrogate the states' Eleventh Amendment immunity, suggesting
that the scope of that abrogation is open to question because
Congress did not specify which of the ADA's provisions were
                                                                (continued...)
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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 public entities and all
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
_____________________
        1 (...continued)
enacted pursuant to the Commerce Clause as opposed to the
Fourteenth Amendment. Def.'s Brief at 8 (citing Seminole Tribe
of Fl. v. Florida, 116 S. Ct. 1114 (1996). We agree that that
question is not presented here, but disagree that Seminole raises
any question as to the scope of the ADA's abrogation of state
immunity. In enacting the ADA Congress broadly invoked "the
sweep of Congressional authority, including the power to enforce
the fourteenth amendment ***." 42 U.S.C.  12101(b)(4). The
Fourteenth Amendment, rather than the Commerce Clause, is the
traditional constitutional authority for legislation prescribing
state conduct. See EEOC v. County of Calumet, 686 F.2d 1249,
1253 (7th Cir. 1982). Moreover, after Seminole at least one
court that has considered the issue of whether Congress had the
constitutional authority to abrogate Eleventh Amendment immunity
under the ADA (as well as under the Rehabilitation Act) has found
that it had such authority. See Armstrong v. Wilson, No. C 94-
2307 CW, slip op. at 21, 25 (N.D. Cal. Sept. 20, 1996) (copy
attached).
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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
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                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
        The starting point in statutory construction is the language
of the statute. Bailey v. United States, 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 Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.
1988); Gates v. Rowland, 39 F.3d 1439, 1446-1447 (9th Cir. 1994);
Inmates of The Allegheny County Jail v. Wecht, 1996 WL 474106
(3rd Cir. Aug. 22, 1996), vacated, reh'g granted, Sept. 20, 1996;
see also Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994)
(applying section 504 to prisoners); Harris v. Thigpen, 941 F.2d
1495, 1522 (11th Cir. 1991) (same).
        Section 504 prohibits disability-based discrimination by
"any program or activity receiving federal financial assistance."
29 U.S.C.  794(a) (emphasis added). Similarly, title II
prohibits any "public entity," i.e., "any State or local
government" and "any 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
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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,2 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 * * * 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 7.3
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
______________________
        2 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.
        3 In 1988, Congress enacted the Civil Rights Restoration
Act, to "overrule" the Supreme Court's decision in Grove City
College v. Bell, 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.
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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 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 504.4
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 FDIC
v. Meyer, 114 S. Ct. 996, 1000 (1994); Director, OWCP v.
Greenwich Collieries, 114 S. Ct. 2251, 2255 (1994). See MCI
_____________________________________
        4 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, 115
S. Ct. 2021, 2025 (1995), quoting Gozlon-Peretz v. United States,
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 Morales v. Trans World Airlines,
504 U.S. 374, 383-384 (1992); Ingersoll-Rand v. McClendon, 498
U.S. 133, 144-145 (1990); Oscar Mayer & Co. v. Evans, 441 U.S.
750, 756 (1979).
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Telecommunications Corp v. AT&T Co., 114 S. Ct. 2223, 2236 (1994)
(Stevens, J. dissenting), citing Cabell v. Markham, 148 F.2d 737,
739 (2d Cir.) (Hand, J.) (noting the usefulness of dictionaries
in statutory interpretation), aff'd, 326 U.S. 404 (1945).
        As the court in Innovative Health Systems, Inc. v. City of
White Plains, 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., 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 also, Outlaw v. City of Dothan, 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
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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, 115 S.
Ct. 2407, 2413 (1995); Gustafson v. Alloyd Co., 115 S. Ct. 1061,
1069 (1995). The court in Innovative Health Systems also
followed this analytical approach and found:
        no suggestion in the statute that zoning or any other type
        of public action 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 also Crowder v.
Kitagawa, 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., 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
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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
        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, 114 S. Ct. 2381, 2386 (1994);
Martin v. Occupational Safety & Health Review Comm'n., 499 U.S.
144, 150 (1991), citing Lyng v. Payne, 476 U.S. 926, 939 (1986);
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
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, 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, 508 U.S. 36, 45 (1993),
quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945). See United States v. Larionoff, 431 U.S. 864, 872-873
(1977); Udall v. Tallman, 380 U.S. 1, 16-17 (1965). Indeed,
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"[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., 871 F. Supp. 35, 39
(D.D.C. 1994), citing Thomas Jefferson Univ., 114 S. Ct. at
2386.5 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."
28 C.F.R. 42.540(h) (emphasis added). The term "benefit"
_____________________
        5 See also Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d
Cir. 1995) (relying extensively on DOJ title II regulations and
its interpretation thereof), cert. denied sub nom. Pennsylvania
Sec'y of Pub. Welfare v. Idell S., 116 S. Ct. 64 (1995); Kinney
v. Yerusalim, 9 F.3d 1067, 1071-1073 (3d Cir. 1993) (same), cert.
denied sub nom. Hoskins v. Kinney, 114 S. Ct. 1545 (1994);
Innovative Health Systems, 931 F. Supp. 222, 232-233, nn. 3 & 4
(same); Bullock v. Gomez, 929 F. Supp. 1299, 1302 (C.D.Ca. 1996)
(same); Concerned Parents to Save Dreher Park Center v. City of
West Palm Beach, 846 F. Supp. 986, 989 n.9 (S.D.Fla. 1994)
(same); Tugg v. Towey, 864 F. Supp. 1201, 1205 n.6 (S.D. Fla.
1994) (same); Bechtel v. East Penn. School Dist. of Lehigh
County, No. Civ. A. 93-4898, 1994 WL 3396, *2-*3 (E.D. Pa. 1994)
(same); Petersen v. University of Wis. Bd. of Regents, 818 F.
Supp. 1276, 1279 (W.D. Wis. 1993) (same); Noland v. Wheatley,
835 F. Supp. 476, 483 (N.D. Ind. 1993) (same).
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includes "provisions of services, financial aid or disposition
(i.e., treatment, handling, decision, sentencing, confinement, 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. The appendix further states that:
        [f]acilities available to all inmates or detainees, such as
        classrooms, infirmary, laundry, dining areas, recreation
        areas, work areas, and chapels, must be readily accessible
        to any handicapped person who is confined to that facility.
        Beyond insuring the physical accessibility of facilities,
        detention and correctional agencies must insure (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 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.
Ibid. (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. at 28 C.F.R. Pt. 39, Editorial Note, p. 667
(1995) (final rule published in 1984) (section 504 regulations
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requiring nondiscrimination in programs or activities of the
Department of Justice apply to the Bureau of Prisons); id. 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 * * * ." 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
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custodial or correctional institution." 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 Innovative Health
Systems, 931 F. Supp. 222, 233 n.4; Fiedler, 871 F. Supp. 35, 37
n.4; Bechtel, 1994 WL 3396, *2-*3; Petersen, 818 F. Supp. 1276,
1279; Chatoff v. City of New York, No. 92 Civ. 0604 (RWS), 1992
WL 202441 *2 (S.D.N.Y. June 30, 1992).6
___________________
        6 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 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. at 31808.
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        C.      Case Law Strongly Supports the Coverage of State
                Correctional Facilities Under the Rehabilitation Act
                and ADA
        Numerous Courts have applied the Rehabilitation Act and/or
the ADA in the context of correctional facilities.7 In Bonner
v. Lewis, 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
_____________________
        7 See, e.g., Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994)
(Rehabilitation Act); Harris v. Thigpen, 941 F.2d 1495 (11th Cir.
1991) (Rehabilitation Act); Armstrong v. Wilson, No. C 94-2307
CW, slip op. (N.D. Cal. Sept. 20, 1996) (copy attached) (title II
and Rehabilitation Act); Bullock v. Gomez, 929 F. Supp. 1299
(title II and Rehabilitation Act); Niece v. Fitzner, 922 F. Supp.
1208 (E.D. Mich. 1996) (title II); Austin v. Pennsylvania Dep't
of Corrections, 876 F. Supp. 1437 (E.D. Pa. 1995) (title II and
Rehabilitation Act); Love v. McBride, 896 F. Supp. 808 (N.D.Ind.
1995) (title II); Rewolinski v. Morgan, 896 F. Supp. 879 (E.D.
Wis. 1995) (title II); Smith v. Indiana, 904 F. Supp. 877 (N.D.
Ind. 1995) (title II); Clarkson v. Coughlin, 898 F. Supp. 1019
(S.D.N.Y. 1995) (Rehabilitation Act and title II); Timmons v. New
York State Dep't of Correctional Servs., 887 F. Supp. 576
(S.D.N.Y. 1995) (Rehabilitation Act); Harrelson v. Elmore County,
Alabama, 859 F. Supp. 1465 (M.D. Ala. 1994) (title II); Outlaw,
1993 WL 735802 (title II and Rehabilitation Act); Noland, 835 F.
Supp. 476 (title II); Donnell v. Illinois Bd. of Educ., 829 F.
Supp. 1016 (N.D. Ill. 1993) (Rehabilitation Act); Casey v. Lewis,
834 F. Supp. 1569 (D. Ariz. 1993) (Rehabilitation Act); Sites v.
McKenzie, 423 F. Supp. 1190 (N.D. W. Va. 1976) (Rehabilitation
Act).
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protections of the Act extended to inmates of correctional
facilities.8
        Following Bonner, this Circuit has also applied section 504
to prisoners in state correctional facilities. Harris v.
Thigpen, 941 F.2d 1495, 1522 n. 41. In Harris, 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 court,
and the Bonner court's underlying analysis of the issue.9
__________________________
        8 This conclusion was reaffirmed in Gates, 39 F.3d 1439,
1446-47. Defendants assert that Gates suggests that the Ninth
Circuit has "noticeably retreated" from its decision in Bonner
that state prisons are subject to the Rehabilitation Act. Def.'s
Brief at 21. To the contrary, in Gates, the Court articulated
the standard of review for determining how the Rehabilitation Act
is to be applied in a prison setting, not whether the statute
should be applied at all. See Gates, 39 F.3d at 1446-47. See
also Armstrong, slip op. at 8 ("Gates is a reaffirmation of
Bonner, not a retreat from it.")
        9 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, 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, 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.
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC
                                      -16-
01-04956
        Defendants mistakenly rely on the Fourth Circuit's qualified
immunity ruling in Torcasio v. Murray, 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, 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 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. at 1343; see id. at 1344-1352.10 Although
the Torcasio court expressed doubt that either statute applies to
prisons, its discussion of that question was dicta. More
importantly, the reasoning underlying its limited reading of both
statutes is flawed and should be rejected.
        Defendants, following the reasoning of the Torcasio court,
assert that prison management is an "core state function" into
which federal courts should not interfere without the
unmistakably clear direction of Congress. Def.'s Brief at 4.
Although the Torcasio 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
_____________________
        10 The Court also held that it was not clearly established
that either statute provided protections to a morbidly obese
prisoner, 57 F.3d at 1353-1355, and that the individual
defendants could reasonably have believed that their actions were
lawful. Id. at 1355-1356.
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC
                                      -17-
01-04957
expressed its reluctance to find either applicable to prisons,
"absent a far clearer expression of congressional intent." Ibid.
The court cited a rule of statutory construction set forth in
Will v. Michigan Dept. of State Police, 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, 473 U.S.
234, 242 (1985); see also Pennhurst State School and Hospital v.
Halderman, 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 court refused to hold that Congress had
"clearly" intended either statute to apply to state prisons, id.
at 1346.
        This extension of the clear statement rule was unwarranted.
Will, Atascadero, and Pennhurst 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), or by Congress (Will, Atascadero). 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, 465 U.S. 89, 99. See 42 U.S.C. S 2000d-7(a)(1) ("A
State shall not be immune under the Eleventh Amendment * * * from
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC                -18-
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."11
        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 Crowder, 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
___________________
        11 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.
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC                -19-
01-04959
        antidiscrimination laws such as the ADA * * * , it is
        incumbent upon the courts to insure that the mandate of
        federal law is achieved.
Id. at 1485 (citation omitted). See also Garcia v. San Antonio
Metro. Transit Auth., 469 U.S. 528, 546-47 (1985) (states are not
immune from federal regulation of their "integral state
functions").12
        In an effort to find a textual basis for its narrow reading
of section 504 and title II, Torcasio 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
_______________________
        12 Not surprisingly, a number of federal courts have
applied various federal anti-discrimination statutes to
correctional facilities. See Jeldness v. Pearce, 30 F.3d 1220
(9th Cir. 1994) (Title IX of the 1964 Civil Rights Act); Baker v.
McNeil Island Corrections Ctr., 859 F.2d 124 (9th Cir. 1988)
(racial discrimination) (Title VII of the 1964 Civil Rights Act).
See also Women Prisoners of the Dist. of Columbia Dep't of
Corrections v. District of Columbia, 877 F. Supp. 634, 672
(D.D.C. 1994) (Title IX), vacated in part on other grounds, 899
F. Supp. 659 (D.D.C. 1995); Klinger v. Nebraska Dep't of
Correctional Servs., 824 F. Supp. 1374, 1431 (D. Neb. 1993)
(same), rev'd on other grounds, 31 F.3d 727 (8th Cir. 1994),
cert. denied, 115 S.Ct. 1177 (1995); Donnell v. Illinois Bd. of
Educ., 829 F. Supp. 1016 (N.D. Ill. 1993) (Individuals with
Disabilities Education Act); Canterino v. Wilson, 546 F. Supp.
174, 209 (W.D. Ky. 1982) (Title IX), aff'd, 875 F.2d 862 (6th
Cir. 1989), cert. denied, 493 U.S. 991 (1989); Green v. Johnson,
513 F. Supp. 965, 976 (D. Mass. 1981) (Individuals with
Disabilities Education Act); Cruz v. Collazo, 450 F. Supp. 235
(D. P.R. 1979) (same); Beehler v. Jeffes, 664 F. Supp. 931, 940
(M.D. Pa. 1986) (Title IX).
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC
                                      -20-
01-04960
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), 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
Southeastern Community College v. Davis, 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 stated, "imply voluntariness" or mandate that an
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC                 -21-
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 Webster's Third New International
Dictionary (1986). Further, Torcasio'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 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.13 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's concern that the
application of section 504 or the ADA to state correctional
facilities will lead to absurd results. However, the issue
______________________
        13 The Torcasio court also failed to locate the specific
regulatory sections that discuss the application of section 504
and the ADA to correctional facilities. See Armstrong, slip op.
at 15-16. The Torcasio court itself noted that Torcasio might
have prevailed "if he were able to point to regulations that make
that applicability clear." Torcasio, 57 F.3d at 1347.
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC                     - 22 -
01-04962
before this court is whether the ADA and section 504 protect
inmates in state correctional facilities. The question of how
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.14 Put simply, neither statute calls for
an abrogation of common sense.15
_______________________
        14 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).
        15 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.
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC                      - 23 -
01-04963

                                    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.
                                        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
U.S. Amicus Curiae Memorandum
No. 84-313-1-MAC                       - 24 -
01-04964

                                CERTIFICATE OF SERVICE
        I, Vicki Crowell, hereby certify that a copy of
the foregoing 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 was served upon the following persons at the
addresses listed below by first class mail this 30th day of
September, 1996:
                Robert W. Cullen, Esq.
                One Midtown Plaza
                1360 Peachtree Street, NE
                Suite 401
                Atlanta, Georgia 30309-3214
                Attorney for Plaintiffs
                Lisa Boardman Burnett, Esq.
                Martha A. Miller, Esq.
                Zimring, Ellin & Miller
                One Midtown Plaza
                1300 Peachtree Street, NE
                Suite 401
                Atlanta, Georgia 30309
                Attorney for Plaintiffs
                David J. Marmins, Esq.
                40 Capitol Square, S.W.
                Atlanta, Georgia 30334-1300
                Attorney for Defendants
                                (Signature)
                                _________________________
                                Vicki Crowell, Civil Chief
                                United States Attorney's Office
                                Middle District of Georgia
                                433 Cherry Street
                                P.O. Box U
                                Macon, Georgia 31202
                                AL Bar No. 424-72-7683
01-04965
Not Reported in F.Supp.
3 A.D. Cases 939, 8 A.D.D. 560, 5 NDLR P 333
(Cite as: 1993 WL 735802 (M.D.Ala.))
                Dan OUTLAW, Plaintiff,
                        v.
        CITY OF DOTHAN, ALABAMA, a municipal
              corporation, Defendant.
               No. CV-92-A-1219-S.
      United States District Court, M.D. Alabama,
               Southern Division.
                April 27, 1993.
  Norman Gunter Guy, Jr., Andy D. Birchfield, Jr.,
Brannan & Guy, P.C., Montgomery, AL, for
plaintiff Dan Outlaw.
  Freddie Lenton White, II, Asst. City Atty., City
of Dothan, Dothan, AL, for defendant City of
Dothan, Ala., a Mun. Corp.
                MEMORANDUM OPINION
  ALBRITTON, District Judge.
     *1 This cause is before the court on defendant's Motion For Summary
Judgment filed January 5, 1993, and plaintiff's response filed February 1,
1993. Also before the court is defendant's Motion To Strike Plaintiff's Jury
Demand filed January 5, 1993, and defendant's response filed January 25, 1993.
For the following reasons, the defendant's Motion For Summary Judgment is due
to be granted in part and denied in part, and the defendant's Motion To Strike
Jury Demand is due to be granted in part and denied in part.
I. FACTS
     On January 29, 1991, Plaintiff Dan Outlaw was involved in a three car
accident in Dothan, Alabama. Following the accident, he was charged with DUI,
criminal mischief, and resisting arrest. He was convicted of DUI in municipal
court. On March 20, 1992, after appealing the DUI conviction and subsequently
entering a guilty plea, Outlaw turned himself in to the Dothan Municipal Jail
to serve a twelve day sentence.
     Plaintiff Dan Outlaw wears an artificial leg due to an injury he suffered
in a 1982 house fire explosion, which resulted in the amputation of his leg.
He also suffered burns on his body from the explosion. These burns have
required Outlaw to take medication on a regular basis. When he reported to the
jail, Outlaw provided information to the jail concerning his disability and
his required medication.
     The Dothan City Jail has a shower which is a one person stall made of
ceramic tile. There is a bench located in the front of the shower, and the
shower fixture is located on the far wall approximately eight feet away. There
were no handrails or other devices to assist Outlaw in standing in the shower.
The shower fixture is approximately six feet above the floor level. The water
is controlled by two buttons which, when pressed, are designed to emit water
for a specified period of time. These buttons are located approximately six
feet above the shower floor, just below the shower head.
     Plaintiff has a skin condition because of burns he suffered over a large
part of his body years earlier. Because of this condition he is required to
take medication and properly care for his skin. Plaintiff alleges that it is
necessary for him to take frequent showers in order that his skin will not
begin to itch. After seven days of not showering during his incarceration,
plaintiff's skin began to itch intolerably.
     *2 Plaintiff alleges that he requested the use of a plastic chair out the
laundry room on which to sit while he showered. He contends that two such
requests were made to two different jailers, the latter request being made on
March 27, 1992. He contends that both requests were denied.   Plaintiff
alleges that he requested the use of the plastic chair because it was
necessary to aid him in showering. [FN1] Because he must remove his artificial
leg in order to shower, plaintiff has difficulty balancing himself, and
sitting on a plastic chair allows him to safely shower. Plaintiff would still
be required to stand up in order to push the buttons which control the water.
However, plaintiff contends that the Dothan City Jail could have made the
shower reasonably safe and accessible to him if it had allowed him to sit on a
chair while showering.
Copr. West 1996 No claim to orig. U.S. govt. works
01-04966
Not Reported in F.Supp.
(Cite as: 1993 WL 735802, *2 (M.D.Ala.))
     It is an undisputed fact that on March 27, 1992, Outlaw fell while
attempting to take a shower in the Dothan Municipal Jail. After falling,
Outlaw crawled back to his clothes and dried himself off with a towel. He then
put on his artificial leg, got dressed, and walked back to the control room
where he informed the jailers that he had fallen in the shower and needed
medical attention. He was subsequently taken to Southeast Alabama Medical
Center. The emergency room physician examined Outlaw and informed the jail
that upon Outlaw's return he needed bed rest. On Sunday morning, March 29,
1992, Outlaw was released from jail after serving only ten days of his twelve
day sentence.
     On April 8, 1992, plaintiff filed a complaint with the Civil Rights
Division of the United States Department of Justice, alleging that the City of
Dothan had violated his rights under the Americans With Disabilities Act of
1990, codified at 42 U.S.C. S 12131 et seq., and the Rehabilitation Act of
1973, codified at 29 U.S.C.  794 et seq.
     On September 28, 1992, Outlaw filed this suit asserting violations of 29
U.S.C.  794, et seq., and 42 U.S.C.  12101, et seq., as well as a state law
action for negligence and/or wantonness. Outlaw seeks injunctive relief under
the two federal claims. He further seeks compensatory and punitive damages and
asks for attorneys fees under the federal claim.
  Defendant has moved for summary judgment contending that 29 U.S.C.  794,
and 42 U.S.C.  12101 do not apply to this case, that the federal claim is
barred by failure to file an administrative claim, and that the state law
claim is barred by failure to present a timely claim to the City Clerk.
II. STANDARD OF REVIEW FOR SUMMARY
                     JUDGMENT
     Rule 56(c) of the Federal Rules of Civil Procedure provides that summary
judgment is appropriate where "there is no genuine issue as to any material
fact and ... the moving party is entitled to judgment as a matter of law."
This standard can be met by the moving party, in a case in which the ultimate
burden of persuasion at trial rests on him, by showing that undisputed
evidence entitles him to judgment as a matter of law as to the claim on which
he has the burden. Where the burden of proof is on the non- moving party, this
standard can be met either by submitting affirmative evidence negating an
essential element of the non-movant's claim, or by demonstrating that the
non-moving party's evidence itself is insufficient to establish an essential
element of his or her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
     *3 The burden then shifts to the non-moving party to make a showing
sufficient to establish the existence of an essential element to his claims,
and on which he bears the burden of proof at trial. Id. To meet this burden,
the non-moving party cannot rest on the pleadings, but must by affidavit or
other appropriate means, set forth specific facts showing that there is a
genuine issue for trial. Fed.R.Civ.P. 56(e).
     It is the substantive law that identifies those facts which are material
on motions for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 258 (1986). See also De Long Equipment Co. v. Washington Mills Abrasive
Co., 887 F.2d 1499 (11th Cir.1989). All the evidence and the inferences from
the underlying facts must be viewed in the light most favorable to the non-
moving party. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th
Cir.1990). See also Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The moving party bears "the exacting burden of
demonstrating that there is no dispute as to any material fact in the case."
Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th
Cir.1983).
     Thus, the court's function in deciding a motion for summary judgment is
to determine whether there exist genuine, material issues of fact to be tried,
and if not, whether the moving party is entitled to a judgment as a matter of
law. See Dominick v. Dixie Nat. Life Ins. Co., 809 F.2d 1559 (11th Cir.1987).
     Because this matter is before the court on defendant's motion for summary
judgment, it must show that there is no issue of material fact and that it is
entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The burden then
shifts to plaintiff, as the non-moving party, to make a showing sufficient to
establish the existence of an essential element to his claims, and on which he
bears the burden of proof at trial. Celotex Corp. v. Copr. West 1996 No claim
to orig. U.S. govt. works
01-04967
Not Reported in F.Supp.
(Cite as: 1993 WL 735802, *3 (M.D.Ala.))
Catrett, 477 U.S. 317, 322 (1986). In satisfying this burden, plaintiff may
not rest upon the mere allegations or denials of his pleadings, but must, by
affidavits or other appropriate means, set forth specific facts showing that
there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Avirgan v. Hull, 932
F.2d 1572, 1577.
III. ANALYSIS OF MOTION FOR SUMMARY
                  JUDGMENT
  A. Applicability of the Americans With Disabilities Act of 1990 and the
     Rehabilitation Act of 1973
     The threshold issue involved in this case is whether or not the Americans
With Disabilities Act of 1990 ("ADA") and the Rehabilitation Act of 1973
("Rehabilitation Act") apply to these facts. The ADA provides the following
coverage:
            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.
42 U.S.C.  12132. [FN2]
     *4 It is not disputed that plaintiff Outlaw is a "qualified individual
with a disability" as defined by the Act. 42 U.S.C.  12102(2), 12131(2).
Furthermore, it is not disputed that the City of Dothan is a "public entity".
Defendant does deny that the shower in the Dothan City Jail is a "service,
program or activity" of the public entity. The court rejects this contention
and holds 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.
     28 CFR, Part 35 was adopted for the purpose of effectuating subtitle A of
title II of the ADA, which is what is involved in this case and which
prohibits discrimination on the basis of disability by public entities.
Section 35.15 provides that "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." Section 35.150(b) excuses public entities from making
structural changes in existing facilities "where other methods
are effective in achieving compliance with this section."
     The plaintiff alleges that the defendant's shower facilities were
inaccessible to or unusable by him due to his disability. Therefore, the
plaintiff maintains that he was denied the benefit of a service, namely the
use of the Dothan City Jail shower, because of his disability, in violation of
the ADA. The defendant contends that this is not true. Although the defendant
concedes that it would be more difficult for plaintiff to use the shower than
one who is not disabled, the defendant argues that plaintiff suffered only a
minor inconvenience, and that the shower was readily accessible to the
plaintiff. Plaintiff contends that methods short of structural changes could
have been used to make the shower accessible to him and further maintains that
he was twice denied access to a plastic chair which he requested to sit on
while he showered. Defendant denies these requests were ever made.
     The court holds that the Americans with Disabilities Act required the
City of Dothan to make the shower in its jail readily accessible to and usable
by the plaintiff. Whether it did is a factual issue over which the parties
disagree. Material issues of fact are in dispute, and the defendant's motion
for summary judgment as to the plaintiff's entire federal law claim on the
ground that the ADA and the Rehabilitation Act do not apply is due to be
denied.
  1. Monetary Damages
     Plaintiff's suit seeks both compensatory and punitive damages. As shown
below, plaintiff may recover compensatory damages if he can prove, by a
preponderance of the evidence, that the defendants intentionally discriminated
against him because of his disability. However, plaintiff may not recover
punitive damages under either the ADA or the Rehabilitation Act.
            a. Compensatory Damages
     *5 The Eleventh Circuit has recently explained when compensatory damages
are available in a case where a plaintiff sues under the Rehabilitation Act.
In December, 1992, the Eleventh Circuit held that a plaintiff must demonstrate
intentional discrimination or bad faith to be eligible to recover compensatory
Copr. West 1996 No claim to orig. U.S. govt. works
01-04968
Not Reported in F. Supp.
(Cite as: 1993 WL 735802, *5 (M.D.Ala.))
damages in Rehabilitation Act cases. Wood v. President & Trustees of Spring
Hill College, 978 F.2d 1214, 1219-20 (11th Cir.1992). Because the ADA relies
on sections of the Rehabilitation Act to determine available remedies, the
Court extends the holding of the Wood case to apply to the ADA as well as the
Rehabilitation Act. [FN3] The Eleventh Circuit specifically stated in Wood,
that "plaintiffs who proceed under a theory of disparate treatment in section
504 actions must prove intentional discrimination or bad faith in order to
recover compensatory damages." Wood, 978 F.2d at 1219. The Court in Wood went
further to state, "In addition, controlling precedent on Title VI remedies,
made applicable to section 504 actions under the Rehabilitation Act, indicates
that compensatory damages are precluded in cases of unintentional
discrimination, but are permissible on a showing of intentional
discrimination." Id. at 1219-20 (citations omitted). Thus, the mere fact that
the shower may not have been readily accessible to and usable by persons with
the plaintiff's disability, if such fact is established, will not in and of
itself entitle plaintiff to compensatory damages. Plaintiff must further prove
that he was the victim of intentional discrimination or bad faith.
     The question of whether the defendants intentionally discriminated
against plaintiff because of his disability is a question of fact. One fact
which might establish intentional discrimination, namely, that plaintiff
requested the chair to sit on while showering and the request was refused, is
in dispute. Therefore, the plaintiff may be eligible for compensatory damages,
and the defendant's motion for summary judgment as to that relief is due to be
denied.
                b. Punitive Damages
     Punitive damages are not recoverable in this case. Punitive damages were
not recoverable under any provisions of either the ADA or the Rehabilitation
Act until the Civil Rights Act of 1991 provided such recovery. See 42 U.S.C. 
1981a(b). However, 42 U.S.C.  1981a only applies to the ADA and
Rehabilitation Act of 1973 provisions covering discrimination in employment.
[FN4] The law is silent as to the recoverability of punitive damages for
disability or handicap discrimination in public services. Therefore, since the
Civil Rights Act of 1991 includes provisions which expressly allow for the
recovery of punitive damages under discrimination in employment provisions of
both the ADA and Rehabilitation Act, but remains silent as to the sections of
the ADA and Rehabilitation Act which apply to the instant case, the court
finds that there are no provisions in the applicable federal statutes which
allow for recovery of punitive damages, and, therefore, the plaintiff may not
recover punitive damages for the federal claims in this case.
  2. Injunctive Relief
     *6 The plaintiff seeks injunctive relief requiring the defendant to
comply with the ADA by making the shower stalls in the Dothan Municipal Jail
accessible to and usable by disabled persons. Because it is clear that
plaintiff is no longer incarcerated in the Dothan Municipal Jail, the issue of
injunctive relief is moot, [FN5] and summary judgment is due to be granted on
the issue of injunctive relief. [FN6]
  B. Notice Requirement of ADA
     Defendant also moves for summary judgment on the ground that the
plaintiff did not comply with the notice requirement of the ADA. The ADA
requires the plaintiff to file a complaint with the appropriate government
agency within 180 days of the date of the alleged discrimination. 28 C.F.R. 
35.170, 28 C.F.R.  35.190(6). Plaintiff fell in the defendant's shower stall
on March 27, 1992. He filed a complaint with the Department of Justice on
April 8, 1992. Therefore, if notice to a government agency is a condition
precedent to filing a suit, he clearly filed his complaint in compliance with
the notice requirement of the regulations.
  C. Negligence And/Or Wantonness Claim
     In addition to his claim based upon violation of the ADA and the
Rehabilitation Act, plaintiff claims damages based upon negligence and/or
wantonness.
     The defense has raised the plaintiff's failure to file a timely claim
against the city as a bar to this claim. The action of the City of Dothan
which plaintiff contends was negligent or wanton, its failure to provide
plaintiff with a plastic chair in order to aid him in the shower stall when he
made such a
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Not Reported in F.Supp.
(Cite as: 1993 WL 735802, *6 (M.D.Ala.))
request, and its failure to provide a safe environment, allegedly occurred on
March 27, 1992. The defendant maintains that plaintiff failed to file a claim
with the City Clerk within six months, as required by Ala.Code  11-47-23.
[FN7]
     While no claim was presented to the City Clerk, the filing of a suit
within the six month period prescribed in this section is a sufficient
presentation of the claim under the statute. Harris v. City of Montgomery, 435
So.2d 1207 (Ala.1985); Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978).
Normally, because plaintiff's injury occurred as a result of a tort allegedly
committed on March 27, 1992, the plaintiff would have until September 27, 1992
to file his claim. However, since September 27, 1992 was a Sunday, the time
would not run until the following day, Monday, September 28, 1992. Young v.
Michael Dwain Mfg., Inc., 504 So.2d 287, 288-89 (Ala.1987). Therefore, the
plaintiff's negligence and/or wantonness action is not barred, as suit was
filed on September 28, 1992, and defendant's motion for summary judgment as to
the negligence or wantonness claim is due to be denied.
  IV. MOTION TO STRIKE JURY DEMAND
     Defendant has moved to strike the plaintiff's jury demand on the ground
that a jury trial is not provided for under the ADA or the Rehabilitation Act.
     Prior to the Civil Rights Act of 1991, there was no provision for the
right to a jury trial under the ADA, the Rehabilitation Act of 1973, or the
Civil Rights Act of 1964.
     *7 The Civil Rights Act of 1991, [FN8] became effective on November 21,
1991. The original complaint was filed with the court on September 28,
1992, after the date the Act became effective. Section 102 of the Act, [FN9]
provides for the right to a jury trial in certain specified circumstances.
Section 1981a(a)(2) delineates the scope of the coverage of the jury trial
provision found in 42 U.S.C.  1981a(c). [FN10] That coverage refers only to
persons suing under Title I of the ADA. [FN11] The plaintiff has sued under
Title II of the ADA which covers "Public Services". [FN12] The Eleventh
Circuit has not held that a plaintiff who sues under Title II of the ADA is
entitled to a jury trial pursuant to the Civil Rights Act of 1991, as codified
at 42 U.S.C.  1981a. Thus, the court applies the plain language of the
statute and finds no language granting the right to a jury trial in Title II
ADA cases. The fact that Congress expressly stated that Title I of the ADA
does allow for a trial by jury is evidence that their silence on Title II can
be interpreted to mean that they did not intend to extend the right to a jury
trial to Title II plaintiffs. Therefore, the Court holds that the Civil Rights
Act of 1991 does not grant the right to trial by jury in the instant case, and
the defendant's Motion To Strike Jury Demand is due to be granted as it
applies to the federal ADA and Rehabilitation Act claims.
     While the motion is due to be granted as it applies to the federal ADA
and Rehabilitation Act claims, it is due to be denied on the common law
negligence and/or wantonness claim.
                    V. CONCLUSION
     The plaintiff's cause of action pursuant to 42 U.S.C.  12131 et seq.,
and 29 U.S.C.  794 et seq., survives summary judgment for compensatory
damages because there is a material factual dispute as to whether the
defendant intentionally discriminated against the plaintiff because of his
disability or handicap. However, the plaintiff cannot recover punitive
damages. Additionally, the plaintiff cannot recover injunctive relief against
the defendant because, since the plaintiff is no longer incarcerated in the
jail, that issue is moot. Moreover, the notice provision of the ADA does not
bar these claims because, even if the provision is a condition precedent to
suit, the plaintiff filed a complaint with the Department of Justice prior to
the 180 day limitation. Finally, the demand for a jury trial is due to be
stricken as it applies to the aforementioned federal claims.
     The plaintiff's negligence and/or wantonness claim against the defendant
also survives summary judgment. The plaintiff filed his suit within six months
from the date of the alleged act and this satisfies the claim requirement of
Alabama Code  11-47-23. Furthermore, he is eligible for a trial by jury on
the negligence and/or wantonness issue.
     This case will be tried to a jury on the plaintiff's state law claim, and
the court will decide the federal
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(Cite as: 1993 WL 735802, *7 (M.D.Ala.))
law claim based on the same evidence presented to the jury. A separate order
will be issued in accordance with this Memorandum Opinion.
                        ORDER
     In accordance with the Memorandum Opinion entered by the court on this
day, it is hereby ORDERED as follows:
     1. The Defendant's Motion for Summary Judgment on the Plaintiff's claim
based upon alleged violation of the Americans with Disabilities Act and
Rehabilitation Act of 1973 is GRANTED as to the Plaintiff's claim for
injunctive relief and as to his claim for punitive damages, and DENIED as to
his other claims.
     2. The Defendant's Motion for Summary Judgment as to Plaintiff's state
law claim based upon negligence and/or wantonness is DENIED.
     3. The Defendant's Motion to Strike Jury Demand is GRANTED as it applies
to the Plaintiff's claim based upon alleged violation of the Americans with
Disabilities Act and the Rehabilitation Act of 1973, and DENIED as to the
Plaintiff's state law claim based upon negligence and/or wantonness.
   FN1. Plaintiff maintains that a plastic chair was
   necessary to aid him in showering because the jail's
   shower stall did not have a handrail or other
   devices to help him stand while showering, and he
   could not shower while sitting on the floor because
   he could not reach the water buttons.
   FN2. Because the ADA expands the coverage of
   the Rehabilitation Act of 1973, (42 U.S.C.  794 et
   seq.), the court will review the plaintiff's claim
   pursuant to 42 U.S.C.  12131 et seq.
   FN3. See 42 U.S.C.  12133
   FN4. 42 U.S.C.  1981a(a)(2) expressly applies to
   42 U.S.C.  12112 (Title I) and 29 U.S.C.  791.
   FN5. See Cotterall v. Paul, 755 F.2d 777, 780
   (11th Cir.1985) (prisoner's individual claim for
   injunctive relief was moot and properly dismissed,
   where prisoner had been transferred from county
   jail in which unconstitutional conditions allegedly
   existed): McKinnon v. Talladega County,
   Alabama, 745 F.2d 1360, 1363 (11th Cir.1984)
   ("The general rule is that a prisoner's transfer or
   release from a jail moots his individual claim for
   declaratory and injunctive relief." (citation
   omitted)). While those cases involve alleged
   constitutional violations, nothing in the ADA or
   Rehabilitation Act would make this case different,
   so as to authorize a person who is no longer a
   prisoner to seek injunctive relief involving prison
   conditions.
   FN6. The court need not address the merits of the
   applicability of this section of the ADA because,
   even assuming the ADA did apply, the issue would
   be dismissed on grounds of mootness.
   FN7. Ala.Code  11-47-23 provides as follows:
   Limitation Periods for presentation of claims against
   municipalities. All claims against the municipality
   (except bonds and interest coupons and claims for
   damages) shall be presented to the clerk for
   payment within two years from the accrual of said
   claim or shall be barred. Claims for damages
   growing out of torts shall be presented within six
   months from the accrual thereof or shall be barred.
   FN8. Pub.L. No. 102-66, 105 Stat. 1071 (1991).
   FN9. Section 102 of the Act is codified at 42 U.S.C.  1981a.
   FN10. If a complaining party seeks compensatory
   or punitive damages under this section--(1). any
   party may demand a trial by jury; ..:. 42 U.S.C.  1981a(c).
   FN11. Title I prohibits discrimination in employment.
   FN12. See 42 U.S.C.  12131 et seq.
END OF DOCUMENT
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