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JLM28 Disabilities

JLM28 Disabilities

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Published by Peggy Plews

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Published by: Peggy Plews on Oct 02, 2013
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 A J
AILHOUSE
L
AWYER
S
M
ANUAL
 
Chapter 28:Rights of Prisoners withDisabilities
Columbia Human Rights Law ReviewNinth Edition 2011
 
 
L
EGAL
D
ISCLAIMER
 
 A Jailhouse Lawyer’s Manual 
is written and updated by members of the
Columbia Human Rights Law Review 
. The law prohibits us from providing any legal advice to prisoners. This information is not intendedas legal advice or representation nor should you consider or rely upon it as such. Neither the
JLM 
nor anyinformation contained herein is intended to or shall constitute a contract between the
JLM 
and any reader,and the
JLM 
does not guarantee the accuracy of the information contained herein. Additionally, your use of the
JLM 
should not be construed as creating an attorney-client relationship with the
JLM 
staff or anyone atColumbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful,because the law changes frequently, we cannot guarantee that all information is current.
 
CHAPTER 28R
IGHTS OF
P
RISONERS WITH
D
ISABILITIES
*
 
A.
 
Introduction
This Chapter explains the protections and legal rights available to prisoners with disabilities. As aprisoner with one or more disabilities—whether physical, mental, or both—you have legal rights based inthe U.S. Constitution, federal civil rights laws, and some state laws. These laws forbid discriminationagainst you because of your disability.Part A of this Chapter summarizes the laws protecting prisoners with disabilities. Part B of this Chapterexplains the two major federal laws against disability discrimination: (1) Section 504 of the Rehabilitation Act of 1973 (“Section 504”)
1
and (2) Title II of the Americans with Disabilities Act (“ADA,” “Title II,” or “ADA Title II”).
2
Part B of this Chapter also explains what you need to prove in a legal claim under the ADA.
3
Yourrights are mostly the same under Section 504 and Title II,
4
so you probably should seek relief under bothstatutes.
5
 
Part C of this Chapter explains how to enforce your rights under both Section 504 and Title II. Itexplains what a court can and cannot order, taking into account some new restrictions.If because you have a disability you either (1) are not receiving the services you need, or (2) are beingdiscriminated against, you may have a constitutional claim (in addition to Section 504 and Title II claims).For example, the way prison officials treat disabled prisoners—particularly in denying them medical care— can violate the Eighth Amendment’s prohibition against “cruel and unusual punishment.”
6
As a prisonerwith disabilities, you also have important constitutional rights to medical care. This Chapter does
not 
talkabout your constitutional rights. To learn more about your constitutional rights, including your right toadequate medical care, you should read these chapters
 
of 
JLM 
: Chapter 23: “Your Right to Adequate MedicalCare”; Chapter 26: “Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prison”; and Chapter 29:“Special Issues for Prisoners with Mental Illness.” Other chapters that are especially useful for all prisonersinclude: Chapter 4, “How to Find a Lawyer”; Chapter 14, “The Prison Litigation Reform Act”
7
; Chapter 15,
* This Chapter was revised by Zahava Blumenthal with the help of Prof. Betsy Ginsburg at the New York UniversitySchool of Law. It is based on previous versions by Amy E. Lowenstein and Robert Lougy. Special thanks to Lowenstein,now of Disability Advocates, Inc., and James Harrington of the Texas Civil Rights Project.1.Rehabilitation Act of 1973, 29 U.S.C. § 794 (2006).2.Americans with Disabilities Act, 42 U.S.C. §§ 12101–213 (2006).3.The ADA contains many sections, called “titles.” Title II of the ADA is the most important ADA section for yourclaims. It protects you from disability discrimination by state and local government entities, including prisons and jails. Americans with Disabilities Act, 42 U.S.C. §§ 12131–34 (2006). It provides that “no qualified individual with a disabilityshall, 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.” Americans with Disabilities Act, 42U.S.C. §12132 (2006).4.Americans with Disabilities Act, 42 U.S.C. § 12133 (2006) (stating that the “remedies, procedures, and rightsset forth in § 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any personalleging discrimination on the basis of disability in violation of” Title II of the ADA).5.Part B(1), below, explains the details of when you would seek relief under only one of these laws. Generally, youcannot not sue the
federal 
government under the ADA. If you are in a
 privately run prison
, you most likely can sueunder Title II of the ADA, but you may
also 
want to sue under Title III of the ADA.6
.See, e.g.
, Allah v. Goord, 405 F. Supp. 2d 265, 275–76 (S.D.N.Y. 2005) (holding that a paraplegic prisoner statedan 8th Amendment claim in alleging that, while he was in his wheelchair, his wheelchair had been strapped into avehicle too loosely, and thus he had been injured when the vehicle stopped suddenly);
see also 
Lawson v. Dallas County,286 F.3d 257, 263–64 (5th Cir. 2002) (holding that a prison’s failure to provide a paraplegic prisoner with rehabilitationtherapy, adequate toilet facilities, and a bed with an adequate mattress was medical neglect and inhumane treatmentthat violated the prisoner’s 8th Amendment rights); LaFaut v. Smith, 834 F.2d 389, 392–94 (4th Cir. 1987) (holding thatnot offering prescribed rehabilitation therapy and adequate toilet facilities violated the 8th Amendment); Miller v. King,384 F.3d 1248, 1261–62 (11th Cir. 2004) (holding that allegations by a wheelchair-using paraplegic that he was deniedwheelchair repairs, physical therapy, medical consultations, leg braces and orthopedic shoes, wheelchair-accessibleshowers and toilets, opportunity to bathe, urinary catheters, and assistance in using the toilet raised a material factualissue under the 8th Amendment),
vacated and superseded on other grounds 
, 449 F.3d 1149 (11th Cir. 2006).7.This Chapter is particularly relevant; it discusses restrictions on prisoners’ lawsuits that could affect your § 504or ADA claim.

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