IN THE UNITED STATES DISTRICT COURT      (stamp)FILED
                   FOR THE MIDDLE DISTRICT OF GEORGIA     U.S. DISTRICT COURT
                      ALBANY/AMERICUS DIVISION               MIDDLE GEORGIA
CHARLES PRINCE WESTCOTT, et al.,        )                  96 SEP 30 PM 4:43
                                        )                    (SIGNATURE)
                     Plaintiffs,        )                    DEPUTY CLERK
                                       )
V.                                      )       No. 1:96-CV-69-2(WLS)
                                        )
WAYNE GARDNER, 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
        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
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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 alia, 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 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
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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.
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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
        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
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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
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 * * * 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
        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, 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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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 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
        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, 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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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
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").
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        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, 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);
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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
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),
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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,
"[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
2386.4 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
        4 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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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"
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)
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(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
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
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"assistance in toileting, eating, or dressing to individuals with
disabilities * * * where the individual is an inmate of a
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).5
        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 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
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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.6 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
protections of the Act extended to inmates of 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.
        6 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,
1933 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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facilities.7
        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.8
        Defendants mistakenly rely on the Fourth Circuit's qualified
immunity ruling in Torcasio v. Murray, 57 F 3d. 1340 (4th Cir.
        7 This conclusion was reaffirmed in Gates, 39 F.3d 1439,
1446-47. Defendants assert that Gates suggests that the Ninth
Circuit has "is beginning to rethink" its decision in Bonner that
state prisons are subject to the Rehabilitation Act. Def.'s
Motion at 15. 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.")
        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, 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.
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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 1344-1352.9 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 "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 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
        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. at 1355-1356.
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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. 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
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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 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
        antidiscrimination laws such as the ADA * * * , it is
        incumbent upon the courts to insure that the mandate of
        federal law is achieved.
        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.
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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").11
        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
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
        11 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).
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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
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
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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.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'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
these statutes apply is a separate issue. Contrary to the
        12 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.
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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
        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.
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                                    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            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
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                              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
01-04995