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INTRODUCTION
1
what they allege are widespread problems with care and access for
2
urges this Court to reject that argument. As we demonstrate
BACKGROUND
3
disability in employment, state and local government programs and
funds.
29 U.S.C. § 794(a).
4
42 U.S.C. § 12132.
ARGUMENT
facilities. See Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.
(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)
5
U.S.C. § 12132. State correctional facilities clearly fall
the state.
government," and has directed that the terms "be given the
6
legislative history that Congress intended to carve out certain
7
Telecommunications Corp v. AT&T Co., 114 S. Ct. 2223, 2236 (1994)
8
public entities from subjecting individuals with disabilities to
Ct. 2407, 2413 (1995); Gustafson v. Alloyd Co., 115 S. Ct. 1061,
Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996) ("neither stairs nor
Oak Ridge Care Ctr. v. Racine County, Wis., 896 F. Supp. 867,
9
statute's catch-all phrase protects [plaintiffs] from being
144, 150 (1991), citing Lyng v. Payne, 476 U.S. 926, 939 (1986);
United States v. Morton, 467 U.S. 822, 834 (1983). The same is
quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
10
(1977); Udall v. Tallman, 380 U.S. 1, 16-17 (1965). Indeed,
facilities.
11
includes "provisions of services, financial aid or disposition
Rule (45 Fed. Reg. 37620, 37630 (June 30, 1980)), makes clear
12
requiring nondiscrimination in programs or activities of the
does").
13
custodial or correctional institution." 28 C.F.R. pt. 35, App. A
Systems, 931 F. Supp. 222, 233 n.4; Fiedler, 871 F. Supp. 35, 37
1279; Chatoff v. City of New York, No. 92 Civ. 0604 (RWS), 1992
14
ADA
F.2d 559, 562 (9th Cir. 1988). Based on the plain language of
goals and those of prison officials, the court held that the
facilities.8
15
Following Bonner, this Circuit has also applied section 504
Thigpen, 941 F.2d 1495, 1522 n. 41. In Harris, the court was not
that it agreed with both the result reached by the Bonner court,
16
state prison officials for injunctive relief and damages,
17
balance between the States and the Federal Government,' it must
234, 242 (1985); see also Pennhurst State School and Hospital v.
F.3d at 1345, and further that neither section 504 nor the ADA
at 1346.
18
of [the ADA]"). And, both statutes speak unequivocally of their
"all."11
Appeals directed that the lower courts must apply federal law:
Metro. Transit Auth., 469 U.S. 528, 546-47 (1985) (states are not
19
functions").12
of section 504 and title II, Torcasio opined that, despite their
fact that inmates are in prison involuntarily does not negate the
20
services in the form of food, shelter, medical care, recreation,
exempt other entities that are clearly covered under the Acts,
21
such as mental institutions, in which individuals are "held
a function mandatory.
before this court is whether the ADA and section 504 protect
22
unique features of any state program, including prisons, must be
23
CONCLUSION
Corrections.
Respectfully submitted,
__________________________
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
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CERTIFICATE OF SERVICE
Support of Plaintiffs' Position that Section 504 and the ADA are
September, 1996:
________________________
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