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 U.S. Amicus Curiae Memorandum No. 84-313-1-MAC - 1 - 01-04941 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...) U.S. Amicus Curiae Memorandum No. 84-313-1-MAC - 2 - 01-04942 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). U.S. Amicus Curiae Memorandum No. 84-313-1-MAC - 3 - 01-04943 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 U.S. Amicus Curiae Memorandum No. 84-313-1-MAC - 4 - 01-04944 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 U.S. Amicus Curiae Memorandum No. 84-313-1-MAC - 5 - 01-04945 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. U.S. Amicus Curiae Memorandum No. 84-313-1-MAC - 6 - 01-04946 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). U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -7- 01-04947 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 U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -8- 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 U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -9- 01-04949 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, U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -10- "[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). U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -11- 01-04951 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 U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -12- 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 U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -3- 01-04953 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. U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -14- 01-04954 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). U.S. Amicus Curiae Memorandum No. 84-313-1-MAC -15- 01-04955 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 Copr. West 1996 No claim to orig. U.S. govt. works 01-04969 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 Copr. West 1996 No Claim to orig. U.S. govt. works 01-04970 Not Reported in F.Supp. (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 Copr. West 1996 No claim to orig. U.S. govt. works 01-04971