Advanced Sample Memo First Draft

To: Paula Berg, Supervising Attorney
From: Associate Attorney
Date: September 13, 2007
Re: Mr. Daniels' ADA claim challenging the conditions of his confinement.

QUESTION PRESENTED

Whether Mr. Daniels can argue that his current conditions of civil confinement at the jail ward of Maricopa County Medical Center amount to violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section 12101 et seq. (2000) based on establishing a prima facie case of discrimination? 1


BRIEF ANSWER

Mr. Daniels will be able to make out a prima facie case of ADA discrimination if he can overcome two hurdles. 2 Mr. Daniels must successfully argue that he is an otherwise qualified individual and withstand the challenge by the defendants that he is a direct threat and therefore not qualified under the meaning of the ADA. 3 Secondly, he must argue that civilly incarcerated persons housed in a jail ward of hospital should be entitled to at least the same benefits and services as the criminally incarcerated and then establish what those benefits are vis-á-vis his own conditions of confinement. 4


FACTS

In July 2006, Robert Daniels was civil committed by an Arizona civil court on the recommendation of Maricopa County, Arizona officials to the jail ward of Maricopa County Medical Center ("Center"), Comp. ¶ ¶ 1, 21. He suffers from a drug resistant strain of tuberculosis ("TB") most likely acquired during incarceration in a Russian jail and was determined to require quarantine Comp. ¶ ¶ 1, 18. Mr. Daniels filed a complaint in May of 2007 with the District Court of Arizona challenging the conditions of his confinement pursuant to federal and state equal protection, due process, and statutory law. The named defendants are: Maricopa County, Robert England, James Kennedy, Marciella P. Moffitt, M.D., and Sheriff Joe Arpaio. Comp. ¶ ¶ 6, 8-11.

The Center has been used in the past to house civilly confined persons under quarantine despite allegations that it was known that the treatment, specifically the punitive conditions of confinement, were the same for both those criminally incarcerated seeking medical treatment and those civilly committed due to illness. Comp. ¶ 24. Sheriff Arpaio, specifically, stated that he would not differentiate between an inmate and person with a contagious disease; he would treat them in the same manner and they would be housed under the same conditions. Comp. ¶ 25.

Mr. Daniels is not challenging his isolation/civil confinement but the conditions of confinement, which seem to be punitive in nature and do not seem related to either his medical treatment or ensuring the general health of the jail ward of the Center. Comp. ¶ 28. Mr. Daniels' drug resistant form of TB is a serious medical condition. Comp. ¶ 55. Despite the conditions of his confinement, the medical reality is that he is probably better off under some type of medical isolation than he would have been had he not been confined. 5 He was committed, in part, because he failed to comply with the standard guidelines for a person with his strain of TB, i.e., not wearing a facemask in public places. This conduct will likely be raised by the defendants as the district court weighs his ADA claim. 6

There are a few facts that are unknown to the plaintiff, and perhaps to the defendants as well, that could have a bearing on the strategy of the case even if they do not bear directly on the question of how likely will it be that Mr. Daniels will be successful in his ADA claim 7 . It is unclear at this point whether Mr. Daniels' condition has improved since being incarcerated. If his health has not improved than the question may be whether the conditions of his confinement contributed to any deterioration in his health. 8

It is also unclear, but quite possible based on these factual allegations, whether some of the conditions alleged in the complaint, such as Mr. Daniels being subjected to unreasonable searches and handling by jail guards, could have exposed other people in the Center community to TB, i.e., guards, hospital/ward staff, and especially the jail inmates in the ward. A jail is a particularly risky setting in which to have a person with this serious a type of TB precisely because the inmate population can be high-risk, i.e., those with HIV, hepatitis, and other immune system-attacking conditions. Beyond asking whether the legal rights afforded to the inmates under both the ADA and Eighth Amendment are being violated, 9 there is an argument that by placing Mr. Daniels in this setting the Maricopa County officials actually created or allowed a greater public health risk to exist than if they had committed Mr. Daniels to a more traditional hospital ward. 10


DISCUSSION

I. The Legal Framework of Title II of the Americans with Disabilities Act. 11

The Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq., is a remedial statute designed to eradicate the long history of discrimination against disabled individuals. 42 U.S.C. § 12101—12213(2000) (Supplement IV 2000). Title II of the ADA provides broad protection from discrimination by public entities i against disabled persons on the basis of their disabilities. Scott v. Garcia, 370 F.Supp.2d 1056, 1073 (S.D. Cal. 2005). Section 12132 states 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 (2000). 12 The discriminatory isolation and institutionalization of disabled persons was one of the practices that Congress identified for eradication by passing the ADA. Id. ("Congress finds that …(2) historically, society has tended to isolate and segregate individuals with disabilities …such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem [and] (3) discrimination … persists in such critical areas as … institutionalization, … and access to public services[.]")

To succeed on a claim of discrimination under Title II of the ADA, the plaintiff must prove that he was: (1) an individual with a disability (2) and otherwise qualified to participate in or receive the benefit of the public entity's services, programs, or activities; (3) either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) that such exclusion, denial of benefits, or discrimination was by reason of the his disability." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam), cert denied, 538 U.S. 921(2003).

The plaintiff can argue that denial of a public benefit is discriminatory under the ADA because it is discriminatory on its face, amounts to intentional discrimination, and constitutes disparate treatment of disabled persons. The plaintiff will have to meet the required elements for a Title II ADA claim, and overcome the state's affirmative defenses of fundamental hardship and undue burden. 13

II. Establishing the elements of a Title II ADA claim.

It is very likely that Mr. Daniels will be able to allege that some of the conditions of his confinement, such as having the lights on 24 hours a day, not having access to a shower or outdoors for long periods of time, being deprived of any contact with family members and outside events, are violations of Title II of the ADA. Based on the factual allegations raised in the complaint, he should have little difficulty in establishing the first and last elements — that his TB is a disability covered by the ADA and that he was intentionally discriminated against because he has TB. The two biggest challenges to the plaintiff here will be (1) meeting the second element by ensuring that he is an otherwise qualified individual, which means showing that he is not a direct threat and (2) meeting the third element and providing sufficient legal reasoning as to why as a civilly confined person he is entitled to at least the same baseline protection as those who are criminally incarcerated. 14

A. Mr. Daniels will successfully establish the first element; his drug resistant strain of TB is an ADA protected disability.

The ADA uses a three-prong test to define "disability." 42 U.S.C. § 12102(2). A disability is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." Id. Federal regulations identify TB, specifically, as a physical impairment that substantially limits one or more major life function. 28 C.F.R. § 35.104(1)(ii) (2006) ("The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as … HIV disease (whether symptomatic or asymptomatic), tuberculosis …").

Mr. Daniels will be able to establish that his drug resistant strain of TB is a disability within the meaning of the ADA. 15 In addition to the enumeration of TB as a disability under federal regulations, Mr. Daniels meets the disability definition under subsection one. Breathing is an enumerated major life activity, 28 C.F.R. 35.104(2) ("The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."), and TB typically attacks the respiratory system. As a result of the TB, Mr. Daniels is unable to breathe properly, which has substantially limited a major life activity. Comp. ¶ ¶ 55-57. Additionally, the severity of his particular TB has necessitated substantial medical treatment, thereby creating a vast record of his impairment. Lastly, his civil confinement and isolation indicate that the state of Arizona and its agents regard him as having such impairment. 16

B. Mr. Daniels should be able to establish the second element; because he is only challenging the conditions of his confinement a court is likely to determine that he is an otherwise qualified individual. 17

Since Mr. Daniels is challenging the conditions of his confinement and not the confinement itself, a court is likely to determine that he does not pose a direct threat such that he would not be an otherwise qualified individual within the meaning of Title II of the ADA. However, because the Ninth Circuit seems to include "direct threat" as part of the plaintiff's burden, Mr. Daniels should prepare to address this as part of the presentation of his case and not wait to debunk a defense put forth by the state.

An otherwise qualified individual is one "who, with or without reasonable modifications, meets the essential eligibility requirements to receive public service or participate in a public program." 42 U.S.C. § 12131(2); see also Thompson v. Davis, 295 F.3d at 896 (concluding that since the plaintiffs were "statutorily eligible for parole" they were "otherwise qualified for the public benefit they seek, consideration for parole"). 18 Additionally, the plaintiff will have to establish as part of being "qualified" that he does "not pose a direct threat to the health or safety of others …" 42 U.S.C. § 12111(3), the so-called "direct threat" standard. Something is a "direct threat" when there is a "significant risk to the health or safety of others that cannot be eliminated by a modification of polices, practices, or procedures or by the provision of auxiliary aids or services." 42 U.S.C. § 12182(b)(3); see also Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (stating of the direct threat exception, "[b]ecause few, if any, activities in life are risk free ... the ADA do[es] not ask whether a risk exists, but whether it is significant"). Some jurisdictions analyze "direct threat" solely as an affirmative defense. However, for ADA claims involving communicable diseases such as the one here, the Ninth Circuit seems to adjudicate on the premise that the plaintiff bears the burden of establishing that he poses not a direct threat, and as such remains "otherwise qualified." McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004).

The Ninth Circuit applies the test for "direct threat" laid out by the United States Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). The factors indicative of direct threat are: "(a) nature of the risk (how the disease is transmitted), (b) duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm." Id. at 288. On remand the district court applied these factors and concluded that the plaintiff/schoolteacher "posed no threat of communicating [her latent] tuberculosis to the schoolchildren she was teaching." Arline, 692 F. Supp. 1286, 1291-92 (M.D. Fla. 1988). 19

As part of the analysis, due deference is given to the judgments of public health officials, as long as those determinations are based on the latest medical and scientific knowledge available. Arline, 480 U.S. at 287. However, because of the long-standing stigmatization of contagious diseases generally, and of TB specifically ii , each determination of whether an individual is a significant risk must be an individualized, fact-specific inquiry. Id. at 287. The level of risk needed to satisfy the Arline standard is one that is not remote, speculative, theoretical, Bragdon, 524 U.S. at 649, or even "elevated." City of Newark v. J.S., 279 N.J. Super. 178, 198, 652 A.2d 265, 275, (Law Div. 1993), citing H.R. Rep. No. 101-485(III), at 46 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 469 (Title I of ADA) ("The plaintiff is not required to prove that he or she poses no risk"). A person's past conduct can also be used as evidence of future conduct. The disability, itself, may be considered in this evaluation, but it may not be the reason for a categorical denial of the benefit. Anderson v. Schwartz, 2006 WL 2472210 (N.D. Cal. 2006), 20 interpreting Thompson, 295 F.3d at 898, n4 ("Thompson therefore does not preclude the consideration of evidence on [sic] an inmate's disability but, in fact recognizes its validity … [an individual's] 'disability that leads one to a propensity to commit crime may certainly be relevant in assessing whether that individual is qualified for parole.'").

Here, it is probable that the issue of direct threat will need to be confronted from the outset. 21 The state defendants will most certainly point to his past behavior of avoiding his medication and appearing in public places without protective face masks as indicative of future threatening conduct and the public health risk he continues to pose. The defendants are also likely to argue that given the threat of TB, they are unable to provide a "reasonable modification" such that he would be an otherwise qualified individual within the statutory definition. Although this argument would be used at this juncture to defeat Mr. Daniel's claim, it is discussed fully on p. 21 as part of the overall legal theory of failure to provide a reasonable modification.

To successfully establish that he is an otherwise qualified individual, Mr. Daniels must stress that is not arguing for a release from his civil confinement, but merely a change of confinement conditions. 22 He must convincingly argue that an individualized "direct threat" assessment, based on the Arline factors, should be conducted with respect to the risks associated with changing or altering those conditions. Clearly, some of the conditions of confinement alleged in the complaint would require a more detailed assessment of direct threat or risk, i.e., outside exposure since TB is an airborne condition, shackled hands in the event that he attempted to remove a face mask, and solitary confinement and no ability to interact if he was in fact so contagious that he could not be among others. Comp. ¶ ¶ 28(ii-iv), 28 (xiv-xv), 28 xviii. However, many of the conditions seem to have very little connection to the risk or threat created by his contagious TB, i.e., his exposure to lights for 24 hours a day in his room, no external view outside because of the frosted windows, and interception, opening and reading of mail. Comp. ¶ ¶ 28(v-vii), 28(xvi).

Mr. Daniels must continually stress that the "direct threat" to be evaluated is one of changed circumstances and conditions. Any argument that seems to indicate a release from his confinement will likely open the door for the state to argue that his past conduct was reckless and posed a grave danger to the public health. This could ultimately bar him from establishing that he is an otherwise qualified individual and disqualify him from ADA protection under Title II. 23

C. Mr. Daniels should be able to establish the third element; that certain conditions of confinement are benefits within the meaning of Title II of the ADA.

Before establishing that he was denied a public benefit or opportunity to participate in a public program or service because of disability-based discrimination, the Title II plaintiff needs to establish that the benefit desired, here certain conditions of confinement, actually fall within the ADA meaning of public benefit. Mr. Daniels will have to try to argue that the intent of the ADA, the applicable Ninth Circuit cases, and persuasive cases in other jurisdictions allow for a ruling that persons civilly committed to jail ward treatment facilities are entitled to at least the same conditions of confinement and benefits as criminally incarcerated persons. Once he has established this ruling then he should be able to argue that he is entitled to certain changes in the conditions of his confinements based on past adjudications in which prisoners and inmates have successfully argued for these benefits. 24

1. 25 Arguing that civilly committed persons with disabilities are entitled to at least the same baseline conditions of confinement as criminally incarcerated persons for purposes of the ADA.

Generally, what constitutes an ADA covered public benefit, participation in a program, or service can be broadly defined. Lee v. City of Los Angeles, 250 F.3d at 691 (noting that "the ADA's broad language brings within its scope 'anything a public entity does' … [and] includes programs or services provided at jails, prisons, and any other "'custodial or correctional institution") 28 C.F.R. Pt. 35, App. A, preamble to ADA regulations). Pursuant to the Rehabilitation Act of 1973 (which only applies to public entities receiving federal funds and may not apply to these specific defendants) 26 , conditions of confinement are arguably benefits provided by public entities receiving federal funds. 28 C.F.R. 42.540(j) ("Benefit includes provision of services, financial aid or disposition (i.e., treatment, handling, decision, sentencing, confinement, or other prescription of conduct)."). If under the Rehabilitation Act of 1973, conditions of confinement are benefits to which a disabled individual is entitled to, then it is arguable that they would also apply under Title II of the ADA. 28 C.F.R. 35.103(a). Rule of interpretation. ("Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.") 27

Within the Ninth Circuit, the rule is clear that programs, benefits, and accommodations provided at correctional facilities to criminally incarcerated disabled persons fall within the meaning of the ADA. Lee, 250 F.3d at 691. Similarly, civil detainees not yet civilly committed are entitled to bring claims under the ADA, even though they are not criminally detained and covered by the Eighth Amendment. Id. But the law is not as clear on what the benefits and guarantees are to the person who is civilly confined.

Although unclear, the Ninth Circuit has given some indication that at minimum the rights and entitlements for the civilly confined and criminally incarcerated should be the same. See Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004); Hydrick v. Hunter, 2007 U.S. App. Lexis 20729, 22-23 (9th Cir. 2005) ("We acknowledge at the outset that it is not always clearly established how much more expansive the rights of civilly detained persons are than those of criminally detained persons.") (emphasis added). There also exists a "presumption of punitive conditions" when a civil detainee is subject to conditions that are either the same or more restrictive than the conditions under which pretrial criminal detainees are confined, or more restrictive than those he would face if he were actually civilly confined. Jones, 393 F.3d at 934. This presumption is rebuttable based on a showing that there was a legitimate, non-punitive purpose justifying the particular condition. Id. (applying the presumption based on its findings that the conditions of confinement of the civil detainee/plaintiff were "far more restrictive conditions than those afforded to the general jail population"); and Id. at 935 ("The significant limitations on, or total denials of, recreational activities, exercise, phone calls, visitation privileges, out-of-cell time, access to religious services, and access to the law library, indicate that in numerous respects confinement in T-Sep was substantially more restrictive than confinement in the Main Jail."). 28

In at least one case, albeit in dicta, the Ninth Circuit implied that persons civilly committed because of a contagious disease would retain protection afforded by the ADA. Thompson, 295 F.3d at 896-897. In Thompson, the Ninth Circuit reversed a district court ruling that a parole board decision would not be a benefit within the framework of the ADA. Id. at 896-97. The district court reasoned that the ADA did not extend to the "substantive decision making process" within the prison context. Id. 896-897. The Ninth Circuit sharply disagreed with that reasoning and stated that there was "no basis for concluding that Title II of the ADA contains such a broad exception[,]" and that "[a]lthough the power to fashion and enforce criminal laws is reserved primarily to the States, many functions traditionally reserved to the states are subject to the ADA, including quarantine laws and, significantly, prison administration." Id., citing Armstrong v. Wilson, 124 F.3d 1019, 1024-25 (9th Cir.1997).

One state court opinion that has discussed conditions of confinement with respect to persons involuntarily committed because of TB offers some illumination as to what conditions such a person could expect. City of Newark J.S., 279 N.J. Super. at 205, A.2d.at 278. In City of Newark v. J.S., the issue was the constitutionality of the commitment process. The court reviewed the individual's past conduct, which like that of Mr. Daniels involved non-compliance with medical advice, avoiding his TB medication, and appearing in public places, such as the pediatrics ward of hospitals, without a facemask. Id. at 185-86, A.2d.at 268-69. The Superior Court of New Jersey upheld the involuntary commitment based on the "significant future risk" that the individual posed. Id. at 204, A.2d at 278-79 . However, Judge Goldman also added in dicta that the rights of civilly committed persons with TB shall be protected and honored with respect to the conditions of confinement "to the extent feasible and practical." Id. at 205, A.2d.at 278 (allowing that "the provisions regarding the opportunities to see visitors must be accomplished according to established hospital procedures for infection control. His right to outdoor activities may have to be curtailed if he refuses to wear his mask. The hospital may not have safe and suitable facilities for extended visits with persons of the opposite sex[,]" and notably adding "I will not interfere with medical judgment, but I will remain available on short notice to resolve any disputes"). 29

2. 30 Overview of what conditions of confinement are afforded to criminally incarcerated persons. 31

A few of the conditions of confinement that Mr. Daniels has alleged are violations of the ADA, are benefits to which criminally incarcerated persons are entitled either through protections under the Eighth Amendment or the First Amendment. 32 Importing the reasoning that civilly committed persons with disabilities are entitled to at least the same benefits and services as criminally incarcerated ones, then Mr. Daniels can establish that the conditions outlined below are benefits or services to which he is entitled and cannot be excluded on the basis of his disability.

Benefits or services that would be covered under the ADA as guaranteed to criminally detained persons pursuant to the Eighth Amendment include:

  • "No showers for the first nine months of his quarantine;" Comp. 28(viii). The state must provide criminally confined persons with the means to maintain their personal hygiene, which includes the right to regular showers. Rhodes v. Chapman, 452 U.S. 337, 355 (1981): Toussaint v. McCarthy, 597 F.Supp.1388, 14111 (N.D. Cal. 1984), aff'd in part and vacated in part, 801 F.2d 1080 (9th Cir. 1986).

  • "No exercise or walking outside of [his] room;" Comp. 28(x), and "Exposure to the outside for fresh air only once in nine months;" Comp. 28(ii); "No external view outside due to the frosted glass windows and metal bars;" Comp. 28(vii). The state must also provide prisoners incarcerated in long-term, segregated conditions with regular outdoor exercise unless precluded by "circumstances, or disciplinary needs." Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (Kennedy, J.) ("There is substantial agreement among the cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates."); Keenan v. Hall, 83 F.3d 1083, 1089-90 (9th Cir. 1996) (finding plaintiff claim of lack of exercise survived summary judgment motion based on defendant's admission that he restricted Keenan's exercise to "8' by 21' by 16' space with a roof, three concrete walls, and a fourth wall of perforated steel admitting sunlight through only the top third"). However, the amount and conditions by which a person has access to outdoor activity can be determined or curtailed based on the individuals own behavior or misconduct. LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir. 1993). This could undermine Mr. Daniels allegations that he should be allowed outside "without shackles to his hands and feet." Comp. 28(ii).

  • "Lights remain on 24 hours a day;" Comp. 28(v). Adequate lighting is a "fundamental" attribute of "adequate shelter[.]" Keenan v. Hall, 83 F.3d at 1090. The practice of "constant illumination" is "unconstitutional" and does not comport with any "legitimate penological justification" that requires inmates to suffer through that type of "physical and psychological harm[.]" Id. at 1090-91 (concluding that the plaintiff's claim that the practice of shining large, florescent lights directly in front of his cell 24 hours a day such that he could not tell if it was day or night was a disputed issue of material fact sufficient to survive summary judgment). 33

Benefits or services that would be covered under the ADA as guaranteed to criminally detained persons pursuant to the First Amendment include:

  • "No phone calls;" Comp. 28(ix). Inmates have a right to access to a telephone subject to reasonable security limitations. Id. at 1092.

  • Denial of ability to attend church services even by electronic means. Comp. 28(xi). The right to free exercise of religion is not absolute and may be "necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." Sanders v. Ryan, 484 F. Supp. 2d 1028, 1036 (D. Ariz. 2007), quoting O'Lone v. Shabazz, 482 U.S. 342 (1987). The inmate must show the defendant "substantially burdened the practice of his religion[.]" Sanders, 484 F. at 1036. To show substantial burden, the interference with the free exercise of religious practice or conduct has to be "more than an inconvenience" and cannot be sporadic, "an isolated incident or short-term occurrence[.]" Id. at 1037. In determining whether there is a violation of the Establishment Clause, the Ninth Circuit will consider the following the factors: "1) Whether the regulation has a logical connection with a legitimate government interest; 2) Whether alternative means of exercising the right at issue were available; and 3) The impact accommodating the right would have on prison resources." Tremayne v. Crow, 2007 U.S. Dist. LEXIS 57121, 13-14 (D. Wash. 2007), citing Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997). Significantly, a prisoner may exercise his religious practice or access religious content through electronic means if amendable with correctional policy. Sanders, 484 F. Supp. 2d 1028 (holding that a correctional policy that limits the number of audio recordings of Baptist sermons an inmate can possess in his cell was not a substantial burden since the inmate was only burdened by number and not access). 34

However, there are some conditions alleged in Mr. Daniels' complaint that have been adjudicated and found not to be benefits to which a prisoner is entitled. An incarcerated person has no constitutional right to access to a particular person or visitor. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461 (1989). Similarly, there is no constitutional right to watch television. But see Sanders, 484 F. Supp. 2d at 1039 (holding that although a prisoner has "no constitutional right to watch television[,]" one can "infer discriminatory animus" in violation of the ADA when the Arizona Department of Corrections failed to provide a hearing impaired prisoner with "bi-aural headphones" for the television that he was authorized to use in his cell. In Sanders, the district court ultimately ruled that under the "Constitutional Prong" iii 35 there had been no violation of a constitutional right. The court dismissed the inmate's argument that "t.v.7 [sic] was a window to the freeworld through which information flowed to him." Id. Similarly, unreasonable seizures, at least with respect to civilly confined sexual predators do not fall in the category of conditions of confinement. Johannes v. Alameda County Sheriff's Dep't, 2006 U.S. Dist. LEXIS 63378, 30 (D. Cal. 2006) (ruling that searches are not treated in the same manner as "other conditions of confinement" and recognized "that institutional security concerns need not be ignored for SVPs"). 36

D. Mr. Daniels should be able to establish the fourth element; that he was deliberately excluded from public benefits and intentionally discriminated against because of his TB.

Having established that the conditions of confinement that he has requested are benefits and programs to which he is otherwise qualified, Mr. Daniels will have to show that the exclusion or denial of these benefits was by reason of his disability/TB and therefore discriminatory. Mr. Daniels should be able to show that he was intentionally discriminated against and deliberately excluded from benefits based on his disability.

A plaintiff bringing a Title II ADA claim can meet the fourth element by showing intentional discrimination to exclude him from the public benefit or service to which he was entitled. Intentional discrimination is shown in one of two ways; either by proving disparate treatment to the disabled person from a facially discriminatory policy, or, as an alternative, showing a disparate effect from a facially neutral policy or action. Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) ("Section 12132 of the ADA precludes (1) exclusion from/denial of benefits of public services, as well as (2) discrimination by a public entity … we conclude Congress intended to prohibit two different phenomena … outright discrimination, as well as those forms of discrimination which deny disabled persons public services disproportionately due to their disability.").

Despite this language in Crowder, federal courts have increasingly demanded that plaintiff's show disparate treatment from facially discriminatory policies to establish intentional discrimination. Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003) iv . Within the Ninth Circuit, this is especially true where monetary damages are concerned. Scott, 370 F.Supp.2d at 1075, citing Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (holding that a plaintiff must prove intentional discrimination to recover compensatory, monetary damages under Title II of the ADA). Disparate impact has, as a practical matter, been relegated to challenges to the reasonableness of the modification in the program or lack of meaningful access to a program or benefit. See McGary, 386 F.3d at 1265-66 (stating that "the district court appears to have misconstrued McGary's claim as either a 'disparate treatment' or a 'disparate impact' claim, rather than a 'reasonable accommodation' claim"); but see Crowder, 81 F.3d at 1483 (concluding that Congress intended the ADA to apply to "at least some so-called disparate impact cases of discrimination," caused by facially neutral policies that "may work to effectuate discrimination against disabled persons").

1. Satisfying exclusion by arguing intention discrimination. 37

Intentional discrimination is shown by meeting a deliberate indifference standard. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). To meet the deliberate indifference standard, a plaintiff must show that (1) there was knowledge on the part of the defendant that harm to a federally protected right was substantially likely, and that (2) the defendant failed to act on that likelihood. Scott, 370 F.Supp.2d at 1075 citing Duvall, 260 F.3d at 1139. The first element of knowledge can be satisfied by showing that the defendant had notice that an accommodation was required. Scott, 370 F.Supp.2d at 1075 citing Duvall, 260 F.3d at 1139. The second element of failure to act is satisfied if the plaintiff can establish that the defendant's failure was the result of "conduct that is more than negligent, and involves an element of deliberateness." Scott, 370 F.Supp.2d at 1075 quoting Duvall, 260 F.3d at 1139 (noting that "a public entity does not 'act' by proffering just any accommodation: it must consider the particular individual's need when conducting its investigation into what accommodation are reasonable").

Mr. Daniels has alleged sufficient factual allegations establishing intentional discrimination that if accepted as true and not challenged by differing factual evidence would suffice to survive a dismissal or summary judgment motion. 38 Mr. Daniels has alleged that the defendant have used the jail ward of the hospital in the past for long-term quarantines of civilly committed persons with disabilities. Comp. ¶ ¶ 23, 25. He also alleged that the defendants knew that he was not criminally incarcerated, and that he was likely an otherwise, qualified disabled person within the meaning of the ADA. Comp. ¶ ¶ 20, 24, 54-57. This would satisfy the knowledge requirement, since through their past conduct they were afforded notice that harm to a federally protected right was substantially likely.

Mr. Daniels also alleged the defendants knew that persons housed in the jail ward were treated in the same manner as inmates, Comp.¶ 26, and that Defendant Arpaio publicly stated that he would treat any person housed in the jail ward in the same manner as all jail inmates even when civilly confined. Comp. ¶ 27. Finally, Mr. Daniels included specific allegations that indicate that conditions of confinement were punitive in nature, Comp. ¶ 27, that did not comport with either ensuring his medical treatment or ensuring the containment of a public health risk. Specifically, Mr. Daniels alleged that the defendants were aware of a need to develop a quarantine area that did not subject civilly committed disabled persons to harsh and punitive conditions. Comp. ¶ 35. Taken together, these facts should be sufficient to establish the deliberateness of the defendants' conduct and meet the second element. Having met both elements of the deliberate indifference standard, Mr. Daniels should be able to successfully meet the last element that his exclusion from the public benefits and services was the result of intentional discrimination.

2. Satisfying discrimination by arguing that defendants failed to provide meaningful access to benefits and services or make a reasonable accommodation. 39

While not as strategically desirable as policies that are discriminatory on their face, facially neutral policies can "violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced." McGary, 386 F.3d at 1265 (rejecting the state's argument that it did not discriminate "by reason of' plaintiff's disability because non-disabled residents were subject to the same ordinance). In Crowder, the Ninth Circuit held that although Hawaii's quarantine of dogs applied equally to all persons entering the state, the enforcement of the quarantine unduly burdened visually disabled persons "in a manner different and greater than", Crowder, 81 F.3d at 1484; see also McGary, 386 F.3d at 1265 (adding disproportionate burden as a third characterization of how a facially neutral policy can violate the ADA).

Facially neutral policies can amount to discrimination in violation of the ADA when there is a failure to make a reasonable accommodation, Crowder, 81 F.3d 1480, or a denial of "meaningful access." Scott, 370 F.Supp.2d at 1075. 40

The distinction between lack of "meaningful access" and failure to make a reasonable accommodation is as a practical matter indistinguishable. The Ninth Circuit interpreted the U.S. Supreme Court's holding in Alexander v. Choate, 469 U.S. 287, 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985) "that judicial review over each and every instance of disparate impact discrimination would be overly burdensome [and] … Rather than attempt to classify a type of discrimination as either 'deliberate' or 'disparate impact,' the Court determined it more useful to assess whether disabled persons were denied "meaningful access" to state-provided services." Crowder, 81 F.3d 1480, citing 41 Choate, 469 U.S. at 302.

42 In Scott v. Garcia, an inmate brought an ADA challenge alleging discrimination when prison officials and policy failed to allow him additional time to consume his meals in the prison cafeteria. Scott, 370 F.Supp.2d at 1059-60. Having established that his gastrointestinal disease was a disability and that he was otherwise qualified individual entitled to the benefit of food, the Ninth Circuit determined that the policy and the correction officials had denied the inmate "meaningful access" to the "prison food service." Id. at 1075. The existing policy which did not allow him to follow medical advice and eat food small frequent meals and avoid certain foods altogether was deemed a denial of meaningful access. Id.

What constitutes a reasonable modification or accommodation under the ADA is a fact-specific inquiry of the reasonableness of the modification given the circumstances of the disabled individual by applying the Arline risk factors: (1) the nature of the risk (how the disease is transmitted); (2) duration of the risk (how long is the carrier infectious), (3) the severity of the risk (what is the potential harm to third parties) and (4) the probabilities the disease will be transmitted and will cause varying degrees of harm. Crowder, 81 F.3d at 1483; see also McGary, 386 F.3d at 1270 (holding that a plaintiff had alleged sufficient factual allegations of failure to provide a reasonable accommodation when the city refused to grant him an variance to clean up his property until the meningitis brought on by AIDS allowed him to leave the hospital).

When challenging a violation of Title II of the ADA for failure to make a reasonable modification, defendants can raise the affirmative defenses of fundamental alteration or undue hardship. 43 Bullock v. Gomez, 929 F. Supp. 1299 (D. Cal. 1996) citing 28 C.F.R. Pt. 35, App. A at 466 (1995). ("Title II requires a public entity to make its programs accessible in all cases, except where to do so would result in a fundamental alteration in the nature of the program or in undue financial and administrative burdens."). Public entities are required to "to make reasonable modifications … unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7) (2004); Townsend v. Quasim, 328 F.3d 511, 516-17 (9th Cir. 2003). Financial and resource limitations can be used to show fundamental alteration, Olmstead v. L.C., 527 U.S. at 587, but "budgetary constraints alone are insufficient to establish a fundamental alteration defense." Pa. Prot. & Advocacy, Inc. v. Pa. Dep't of Pub. Welfare, 402 F.3d 374, 380 (3d Cir. 2005); Townsend, 328 F.3d at 520 (focusing instead on whether extra expense would, in fact, compel cutbacks in services to other beneficiary recipients).

Here, certain conditions of confinement such as the solitary confinement, wearing handcuffs when outside lest he remove any facemask, and freely moving about for reasons other than seeking medical treatment would be heavily scrutinized to see if the current policy comports with the Crowder reasonableness standard. Others, such as the frosted window not allowing him to see outside, no showers, no means whatsoever of interacting with the world seem as if they would fail under this reasonableness test. Mr. Daniels should be prepared to have the court apply the Arline factors to each condition of confinement to determine whether they comport with the standard. 44

Strategically, this could come down to a "numbers game" where the defendants raise arguments such as the cost of washing down the shower after every one of Mr. Daniels' use, or the cost of maintaining protective equipment for escorts and handlers. However, it appears that after Crowder, the state cannot rely on purely financial and budgetary arguments. Mr. Daniels has a very good chance of effecting some practical changes in his conditions, should he go back to the jail ward at the Center, by going this route. However, it is unclear what effect this suit will have on other similarly situated people unless there is a wholesale re-visiting of the confinement conditions — far-reaching change is more likely to come from a court determination that this was a case of intentional discrimination. 45


CONCLUSION

For reasons stated above, Mr. Daniels should be able to overcome the difficulties in establishing the second and third elements of the prima facie case of intentional discrimination. 46 In the alternative, he should be able to argue that he was not provided with a reasonable accommodation in some of his conditions of confinement. 47


NOTES

i. "Public entities" are defined as "any State or local government [and] any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131(1) (2000). This definition of public entity includes "every possible agency of state or local government[,]" Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001), and applies to prisons, Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206 (1998), and local law enforcement agencies. Lee, 250 F.3d at 691. Here, it is clear that the defendants named in the complaint are all local government actors and entities that meet the statutory definition of "public entity," and would be subject to the provisions of Title II of the ADA.

ii. City of Newark v. J.S., 279 N.J. Super. 178, 198 (Law Div. 1993) citing Susan Sontag in Illness as Metaphor, 5-7, 9, 13, 15-16, 19, 38, 44, 61-62, 83 (1978) (noting the collected examples of the fears surrounding TB; in fiction —the mother of the protagonist in Stendahl's Armand (1927) refused to say "tuberculosis" because she feared that by simply uttering the word her son would become sicker; and in championing historical racist agendas - TB was used as a metaphor for all that is "unqualifiedly and unredeemably wicked … Hitler, in his first political tract, an anti-semitic diatribe written in September 1919, accused the Jews of producing a 'racial tuberculosis among nations'").

iii. In United States v. Georgia, United Stated Supreme Court held that Congress validly abrogated Eleventh Amendment immunity under the ADA for a money-damages suit against a state where the claim is premised on conduct that allegedly violates the Fourteenth Amendment. United States v. Georgia, 546 U.S. 151 (2006). The District Court of Arizona quoted the opinion, citing it under the name of Goodman, for its articulation of the step-by-step analysis for Title II claims that lower courts should engage and stated that it should:

determine . . on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct [**20] also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress' purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.

Sanders v. Ryan, 484 F. Supp. 2d at 1038, quoting Goodman, 126 S.Ct. at 882.

iv. "Factors to be considered in evaluating a claim of intentional discrimination include: "(1) the discriminatory impact of the governmental decision; (2) the decision's historical background; (3) the specific sequence of events leading up to the challenged decision; (4) departures from the normal procedural sequences; and (5) departures from normal substantive criteria." Tsombanidis I, 129 F.Supp.2d at 152 (citing Vill. of Arlington Heights, 429 U.S. at 266-68)."


ANNOTATIONS

1 Note that the author does not identify the category of discrimination covered under Title II of the Americans with Disabilities Act or specify the elements of a prima facie case of discrimination under the statute.

2 Note that the author refers to "two hurdles" here without specifying whether these constitute all of the elements that must be alleged to establish a prima facie case of discrimination under the ADA and without specifying the Title under which the alleged discrimination falls.

3 Note that the author does not clarify the relationship between "direct threat" and "qualified" under the ADA.

4 Note that the author here refers more broadly to a theory of argument rather than to a specific element that plaintiff must establish ("public benefit") with respect to which he might be vulnerable.

5 Note that the author here speculates about the benefits to plaintiff of being confined, rather than limiting this section to a recitation of facts that are legally relevant to plaintiff's cause of action or that provide necessary context for understanding the factual basis for the plaintiff's claim.

6 Note that the author again speculates, which, as noted, is functionally inappropriate to a statement of facts. Note also that the speculation concerns a likely defense, which goes beyond the scope of the facts that are legally relevant to establishing a prima facie case of discrimination under the ADA.

7 Note that the author here introduces a strategic discussion rather than keeping the focus on facts bearing on whether the plaintiff will be able to establish a prima facie case of discrimination under the ADA.

8 Note that the author here introduces, through speculation, another possible theory of recovery for the plaintiff as distinguished from addressing the facts that bear on the existence of a prima facie claim of discrimination under Title II of the ADA.

9 Note that the author introduces here, through speculation, a possible cause of action on behalf of other individuals as distinguished from addressing the facts bearing on the existence of plaintiff's own prima facie claim of discrimination under Title II of the ADA.

10 Note that the author introduces here, through speculation, a possible "public health risk" theory by which to challenge defendants' actions as distinguished from addressing the elements of plaintiff's claim of discrimination under the ADA.

11 Note that the author has chosen to introduce Title II in a separate section rather than integrate this discussion of the statute with the discussion of the plaintiff's claim.

12 Note that the author has cited to a case that interprets the statutory section at issue before quoting the language of the statute itself, reversing the usual order in which these legal sources should be addressed.

13 Note that the author refers here to affirmative defenses, which goes beyond the scope of the issue presented—whether the plaintiff can establish a prima facie case of discrimination under Title II of the ADA.

14 Note that in an umbrella paragraph the author properly has provided a summary of conclusions, highlighting for the reader the aspects of a Title II claim that will be most challenging for plaintiff to satisfy.

15 Note here a good example of a thesis sentence that communicates the author's conclusion that the plaintiff will be able to show that his condition meets the statutory criteria of a disability.

16 Note how the author has supported the conclusion in the thesis sentence with a fully developed paragraph that sets out reasons that are tied specifically to the allegations in the complaint. Note also the appropriate use of transitional expressions at the beginning of sentences ("additionally," "lastly" ) that communicate relationships between ideas within the paragraph and help to elaborate its overall point.

17 Compare the point heading to the discussion that follows it to assess whether the heading communicates the complete substantive scope of the discussion under subpoint B.

18 Note that the author here does not follow CRRACC by providing rule proof or application on this ground but proceeds directly to discussing that he does not pose a "direct threat," which case law apparently requires as part of a prima facie showing.

19 Note that theauthor uses underscoring for case citations and italics for "Id." and signals. It is better practice to use one method consistently.

20 Note that the citations to this and other unpublished opinions in this subpoint do not conform to the requirements of Rule 18.1.1 of the Bluebook (requiring docket number and specific date of decision).

21 Note that the author's use here of the passive voice buries the agent or actor, leaving unstated the party who must confront the issue of "direct threat." Using the active voice here ("the plaintiff will need to confront") would ensure greater clarity.

22 Note that the thesis sentence of this and the next paragraph emphasize what the plaintiff must argue rather that setting out what a court will require for the plaintiff to establish a prima facie claim on this element, which is at issue in the memo.

23 Note that the discussion in the last two paragraphs of this subpoint identifies various arguments for and against plaintiff's position that he is not a direct threat but does not develop specifically and conclude that plaintiff could meet this prima facie requirement.

24 As noted, stating what the plaintiff should try to argue does not go to the precise issue raised in the memo, whether the complaint on its face alleges sufficient facts to state a claim under Title II of the ADA.

25 Headings should be framed as assertions, in full sentences. Here, the author uses a clause introduced by a participle ("arguing") rather than asserting that "civilly committed persons are entitled to... "

26 Note that the author refers to a statute, the Rehabilitation Act of 1973, for the first time in this discussion without providing a legal context for the reference, including its relevance and relationship to the ADA.

27 Note that the author makes extensive use of parentheticals in this paragraph, which adds to its length while detracting from readability. Consider here placing the text now in parentheticals in footnotes.

28 Again, note the density and complexity of this paragraph and the author's reliance on extended quotations in parentheticals.

29 Note that the author both discussed the City of Newark case in the text of the paragraph and then added an explanatory parenthetical. Elaborating a case in text and summarizing it in a parenthetical are alternative methods of providing rule explanation. Typically writers will have reasons for choosing one method over the other that relate to the importance of the case to the overall discussion, or to whether the writer wishes to de-emphasize the case, in which instance the writer would choose the explanatory parenthetical. The writer should not combine the two methods in a single rule explanation.

30 Note that this heading highlights conditions of confinement afforded to criminally incarcerated persons without clarifying for what purpose it does so. In addition, it does not keep the focus of the point on the denial of conditions to the confined person based on the person's disability, which creates the necessary link to the ADA.

31 Headings should be framed as assertions, in full sentences. Here, the author merely indicates in a sentence fragment that what follows is an overview, rather than asserting a point about conditions of confinement and relating it to the allegations in plaintiff's complaint.

32 Note that the author has introduced constitutional protections here and in the discussion that follows rather than confining attention to the ADA itself.

33 In addition to failing to keep the ADA and constitutional claims analytically separate, the author has not applied CRRACC in a recognizable way, i.e., by applying the case law rules to the facts alleged in the complaint. Rather, the author lists the allegations in the complaint followed by citations to cases that refer to these conditions, without explicitly connecting the two.

34 Again, the author lists the allegations in the complaint followed by citations to cases that refer to these conditions without explicitly connecting the two, i.e., without applying the rules to alleged facts.

35 Note the inconsistencies in the use of typeface in the case citations in the footnote.

36 The author does not tie up this section or connect it to the preceding discussion with a legal conclusion.

37 Headings should be framed as assertions, in full sentences. Here, the author uses a clause introduced by a participle ("satisfying") without clarifying who may satisfy the standard for discrimination.

38 Note how the author here, following CRRACC, properly signals a shift to application of rule to fact by asserting, then demonstrating, that Mr. Daniels alleged sufficient facts to meet the element of intentional discrimination.

39 Headings are clearer if they are framed as assertions in full sentences. Here, the author uses a clause introduced by a participle ("satisfying") without clarifying who may satisfy the standard for discrimination.

40 Note that the author has not developed a proper paragraph structure to support this thesis but leaves it as a free-standing sentence.

41 Note here the need to underscore "citing" as a word introducing related authority (B13 of Bluepages).

42 This paragraph needs a thesis sentence to introduce rule explanation.

43 Note that the author has introduced the issue of possible affirmative defenses but the question presented in the memo is whether the allegations of the complaint establish a prima facie case.

44 In keeping with the issue under discussion, the author should focus more specifically here on whether the complaint sufficiently alleges the elements of discrimination. Thus, the author should address directly whether the allegations meet the requirements set out in the cases. Stating what the plaintiff should be prepared to expect does not go to the precise issue raised in the memo.

45 Note that the author broaches the question of the effect of plaintiff's claim on others similarly situated but the Daniels claim is framed as an individual complaint. Thus, references to the impact on others is beyond the scope of the issue.

46 For a more complete conclusion,, the author should restate that plaintiff will be able to meet all four elements of a prima facie claim under Title II of the ADA.

47 For completeness and greater clarity, the author should identify more explicitly the element of the ADA claim to which this sentence refers.