Herndon v. Johnson

Page 703

970 F.Supp. 703

John HERNDON, Plaintiff, v. Randy JOHNSON, in his official capacity as Sheriff of Pulaski County, Arkansas; Buddy Villines, as County Judge of Pulaski County, Arkansas; and John Does 1-5, Defendants.

No. LR-C-96-481.

United States District Court, E.D. Arkansas, Western Division.

April 17, 1997.

Luther Oneal Sutter, Little Rock, AR, for Plaintiff.

David M. Fuqua, Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., North Little Rock, AR, for Defendant.

ORDER DENYING MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

EISELE, District Judge.

Before the Court is Defendants' Motion for Partial Judgment on the Pleadings. Plaintiff has responded, and the Court has reviewed the submissions of the parties. For the reasons set forth in this Order, the Court will deny Defendants' Motion.

I

This case arises out of the alleged conditions of Plaintiff John Herndon's confinement in the Pulaski County Jail. On May 31, 1996, Plaintiff was arrested and incarcerated in that facility. According to Plaintiff, he has a fused spine and regularly uses mobility aids. Plaintiff states that he needed certain assistive devices to allow him to have bowel movements and to prevent bed sores and other problems with his fused spine. He asserts that Defendant Randy Johnson, Pulaski County Sheriff, refused to provide him with those assistive devices for no legally justifiable reason. Moreover, Plaintiff alleges that Defendants John Does 1-5, unidentified employees of the Pulaski County Jail, directed prisoners or other employees to carry Plaintiff up steps to conduct visitation.

Plaintiff filed the instant lawsuit and his Application for TRO and Motion for Preliminary Injunction on June 21, 1996. The Court denied Plaintiff's request for a temporary restraining order on June 21 and held in abeyance pending discovery Plaintiff's Motion for Preliminary Injunction.

Plaintiff submitted his Amended Complaint on July 2, 1996. Plaintiff purported to state claims under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (hereinafter the "ADA"); the Rehabilitation Act of 1973, 29 U.S.C. § 794; 42 U.S.C. § 1983 for violations of his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; and the Arkansas Civil Rights Act of 1993. Plaintiff states that the Pulaski County Jail and other county facilities lack accessible visitation rooms and accessible restrooms. Plaintiff alleges that Defendants Johnson and Buddy Villines, Pulaski County Judge, were required to self-evaluate the facilities, services, policies, and practices of Pulaski County but that they failed to do so. Plaintiff also alleges that Defendants Johnson and Villines failed to adopt and publish a grievance procedure for disabled individuals. On August 15, 1996, Defendants answered Plaintiff's Amended Complaint.

By letter dated September 3, 1996, Plaintiff advised the Court that he wished to withdraw his motion for Preliminary Injunction because Pulaski County had provided the assistive devices requested by Plaintiff.

On November 8, 1996, Defendants filed the instant Motion for Partial Judgment on the Pleadings. They ask the Court to hold that neither the ADA nor the Rehabilitation Act applies to prisons and that, therefore, Plaintiff has failed to state a claim under either statute upon which the Court may grant relief.

II

The Court will deny Defendants' Motion. The sole question before the Court is the application of the ADA and the Rehabilitation Act to state correctional facilities.¹ Reasoning regarding either the ADA or the Rehabilitation Act generally applies equally to the other statute. "Because the same basic standards and definitions are used under both Acts, cases interpreting either are applicable and interchangeable for the purposes of our discussion." Allison v. Department of Corrections, 94 F.3d 494, 497 (8th Cir.1996) (citing Wooten v. Farmland Foods, 58 F.3d 382, 385 n. 2 (8th Cir.1995), and Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538, 542 (7th Cir. 1995)).

A. Precedent

The submissions of the parties cite no case from the Eighth Circuit Court of Appeals, and Defendants' brief states that "[t]he Eighth Circuit has not decided these issues" Brief in Support at 3. However, the Eighth Circuit has recently allowed at least one inmate to bring an action for damages and affirmative relief under the Rehabilitations Act. See Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir.1994). Although the Eighth Circuit panel did not directly confront the issue of the applicability of the Rehabilitation Act to correctional facilities, the Court assumed the Act's applicability and engaged in a detailed analysis of the qualified-immunity defense in that context. In Love v. Westville Correctional Center, a panel of the Seventh Circuit Court of Appeals cited the Eighth Circuit decision in Lue and noted that the Eighth Circuit has "applied the ... Rehabilitation Act to state prisons." 103 F.3d 558, 559 (7th Cir.1996). In an earlier case, Journey v. Vitek, the Eighth Circuit affirmed the district court's judgment for certain corrections officials on a Rehabilitation Act claim and never questioned the Act's applicability. See 685 F.2d 239, 242 (1982). Thus, although the Eighth Circuit has not dealt head-on with the issue before the Court, the few indications of the Eighth Circuit's thinking tend to help Plaintiff.

The other circuit courts have split on whether the ADA and the Rehabilitation Act apply to correctional facilities. The only circuit courts which have indicated that the statutes do not apply to correctional facilities have so indicated only in dicta. In Love, the Seventh Circuit court cited the divergence of views among the circuits and assumed without deciding, for purposes of the appeal, that the ADA does apply to prisoners' access to certain programs. See 103 F.3d at 559. In another recent opinion, however, Chief Judge Posner commented that the court "doubt[ed]" that the ADA had any application to prisoners. Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996). In the lead case setting forth Defendants' position, the Fourth Circuit Court of Appeals has expressed its hesitation to hold that the ADA and the Rehabilitation Act cover the management of state prisons. See Torcasio v. Murray, 57 F.3d 1340, 1344-47 (4th Cir.1995), cert. denied sub nom. Torcasio v. Angelone, ___ U.S. ___, 116 S.Ct. 772, 133 L.Ed.2d 724 (1996) (citing issues of statutory construction and state sovereignty to support conclusion that application of Acts not "clearly established" for purpose of qualified immunity analysis). The Tenth Circuit Court of Appeals has held that the Rehabilitation Act does not apply to federal prisoners because the Bureau of Prisons does not fit the definition of "programs or activities" covered by the Rehabilitation Act, see Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991), and that neither the ADA nor the Rehabilitation Act applies to issues of prison employment. See White v. State of Colorado, 82 F.3d 364, 367 (10th Cir.1996).

On the other hand, the Ninth Circuit Court of Appeals has applied the ADA and the Rehabilitation Act in the prison context and has published a line of cases honing its view. See Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir.1996) (analyzing claims arising from disciplinary proceeding); Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir.1994) (applying standard for review of constitutional rights in prison setting to review of Rehabilitation Act statutory rights in prison setting); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988) (applying Rehabilitation Act to prisons receiving federal financial assistance). Citing Ninth Circuit precedent, the Eleventh Circuit Court of Appeals has held that the Rehabilitation Act applies in the prison context. See Harris v. Thigpen, 941 F.2d 1495, 1522 (11th Cir.1991) (citing Bonner, 857 F.2d at 562). Finally, a panel of the Third Circuit Court of Appeals relied on the plain language of the ADA and the Rehabilitation Act to conclude that those statutes apply to correction facilities. See Inmates of the Allegheny County Jail v. Wecht, 93 F.3d 1124, 1996 WL 474106, *6-7 (3d Cir. Aug.22, 1996), vacated for reh'g en banc, 93 F.3d 1146 (3d Cir. Sept.20, 1996). That opinion, however, was withdrawn and vacated in light of the decision of the Third Circuit to grant rehearing en banc. See Inmates of the Allegheny County Jail, 93 F.3d at 1146.

B. Discussion

Of course, any discussion of a statute's applicability must begin with the plain language of the statute. See United States v. Alvarez-Sanchez, 511 U.S. 350, 355-58, 114 S.Ct. 1599, 1603, 128 L.Ed.2d 319 (1994). Title II of the ADA guarantees that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Public entities, for purposes of the ADA, include "any State or local government [and] any department, agency, special purpose district, or other instrumentality of a State ... or local government." 42 U.S.C. § 12131(1) (emphasis added). Section 504 of the Rehabilitation Act indicates that "[n]o otherwise qualified individual with a disability ... 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) (emphasis added).²

Some courts have purported to rely on that language to suggest that the ADA and the Rehabilitation Act do not apply to state prisons. For example, in finding that the statute did not "clearly establish" that the ADA covers state prisons, the Fourth Circuit Court of Appeals pointed to the "broad, non-specific language" contained in the ADA. See Torcasio, 57 F.3d at 1346. T...