Advanced Sample Memo Final Draft

To: Paula Berg, Supervising Attorney
From: Associate Attorney
Date: November 20, 2007
Re: Daniels v. Maricopa County et al. - ADA claim challenging the conditions of his confinement.

QUESTION PRESENTED

Whether Mr. Daniels can argue that the conditions of civil confinement at the jail ward of the Maricopa County Medical Center, alleged in his complaint, 1 amount to discrimination based on disability and violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (2000), by: (1) establishing the four elements of a prima facie case of disability discrimination by a public entity prohibited under Title II; 2 or (2) arguing that the state failed to incorporate the Olmstead mandate of the ADA, 527 U.S. 581 (1999), by imposing conditions of confinement that are not "integrated" and not the "least restrictive"; or (3) arguing that certain conditions of his confinement are not reasonable under the Ninth Circuit's ruling in Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996), because they deprive him with "meaningful access" to the broader public benefits and services offered by the hospital jail ward .


BRIEF ANSWER

Mr. Daniels can argue that his current conditions of confinement amount to a prima facie case of discrimination under Title II of the ADA. He will have to establish successfully the four required elements and will most likely be challenged on whether he meets the definition of "an otherwise qualified individual" and whether the conditions of his confinement are "public benefits" within the meaning of Title II. 3 Without addressing any defenses that the defendants will raise, he should be able to establish that his lack of access to prison programs and services including educational, social, and vocational programs, and lack of access to prison services including exercise, outdoor, and shower facilities, are violations of Title II of the ADA. 4


FACTS

In July 2006, an Arizona civil court acting on the recommendation of Maricopa County officials, civilly committed Robert Daniels 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 received, specifically the punitive-like 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 or his 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. 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. Despite the conditions of his confinement, his strain of TB was serious and he did require medical attention. 5


DISCUSSION 6

I. Mr. Daniels should be able to establish the four elements of a claim of discrimination in violation of Title II of the ADA by showing that he is a disabled person who is otherwise qualified for a public benefit but has been denied this benefit because of his disability.

Without addressing what would be the likely state defenses, Mr. Daniels should be able to establish that his TB, which caused his civil confinement, is a disability within the meaning of the ADA. Because he has been civilly confined and does not pose a significant risk, he is otherwise qualified to receive certain conditions of confinement alleged in his complaint such as access to educational and recreational programs and prison services like access to the outdoor facilities, communal television and Internet services and showers provided that other disabled prisoners in the jail ward have such access. 7

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 (Supplement IV 2000). 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). 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). 8 9

To succeed on a claim of discrimination under Title II of the ADA, the plaintiff must establish that: (1) he has a disability (2) but is otherwise qualified to participate in or receive a public benefit, services, program, or activity; (3) and that he was either excluded from participation in or denied the public benefit, services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) that this 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). 10 The two biggest challenges to the plaintiff here will be meeting the second element by showing that he is an otherwise qualified individual, and establishing that the conditions he alleged in the complaint are public benefits within the meaning of Title II. 11

A. Mr. Daniels will successfully establish the first element and argue that 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. Additionally, federal regulations identify TB, specifically, as a physical impairment that substantially limits one or more major life functions. 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. In addition to the enumeration of TB as a disability under federal regulations, Mr. Daniels meets the disability definition under subsection one since 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.

B. Mr. Daniels should be able to establish the second element and show that he an otherwise qualified individual by arguing that his court-ordered civil confinement meets the essential requirements to receive the benefits of confinement and that his TB is not a significant threat pursuant to the Arline risk standards. 12

13 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"). Eligibility is not equated with voluntariness. Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. at 211, (concluding, in the unanimous opinion of the Court, that "eligible" simply means "[f]itted or qualified to be chosen" without regard to whether the benefit is mandatory, such as mandatory drug treatment programs for those convicted of drug offenses, or voluntary, such as open access to any inmate wishing to use the prison library). 14

Mr. Daniels can establish that he is an otherwise qualified individual who meets the essential eligibility requirements of receiving the public benefit of certain conditions of confinement by analogizing his situation to that of the incarcerated prisoners/plaintiffs in Thompson, and Yeskey. Just as the incarcerated prisoners were otherwise eligible for their respective benefits because they were statutorily eligible for parole, as in Thompson, or met the Motivational Boot Camp criteria, in Yeskey, Mr. Daniels can argue that he is otherwise eligible and meets the essential requirement for the public benefits based on his being placed in civil confinement through court order. The fact that he was involuntarily committed should have no bearing, pursuant to Yeskey, on the question of whether he is otherwise eligible. Mr. Daniels can argue that his civil confinement, which he is not challenging, makes him eligible for the conditions of confinement he requested in his complaint. 15

In addition to showing that he meets eligibility requirements, a plaintiff must 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), sometimes called the "direct threat" standard. ii 16 17 In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Supreme Court laid out risk factors that should be applied by federal courts to determine whether a disabled individual poses a direct threat and is therefore not an otherwise qualified individual within the meaning of Title II. 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.

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). 18 A person's past conduct can be used as evidence of future conduct, and the disability, itself, can be considered in this evaluation, but it may not be the reason for a categorical denial of the benefit. Anderson v. Schwartz, No. C06-2481 THE, 2006 WL 2472210 (N.D. Cal. Aug. 24, 2006). 19 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 iii , each determination of whether an individual is a significant risk must be an individualized, fact-specific inquiry. Id.

On remand, the district court in Arline applied the factors laid out by the Supreme Court 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 (D.C. M. D. Fla. 1988). 20 With respect to the first element, the court stated that TB "is not easily communicated[,]" Id. at 1291, and concluded that spreading TB is "quite difficult" iv 21 with only about 5% of those exposed actually developing TB. In addition, the court noted in considering the nature of the risk, one should consider the medication that the patient is currently receiving as well as the test results for the TB germ. In examining the duration of the risk, the court stated that an individual communicates TB "when the smear test is positive[.]" Id. at 1291. Because a person cannot spread TB when the smear tests are negative, the tests can be used to establish a timeframe where a person is more or less contagious. Id. The severity of risk is related to the advancement of treatment offered by medical science to combat the negative effects or progression of the disease. Id. (noting that with the advancement of medical science, "a person who has a tuberculosis infection that progresses to disease, and is timely treated for that disease, will have very little risk of harm").

Based on these conclusions from the Arline court, several of the conditions of confinement Mr. Daniels alleged in his complaint should be examined to determine whether the risk of harm is so significant as to make him not otherwise eligible to receive them. 22 These conditions all relate, to varying degrees, on the question of whether there is such significant risk of exposing others to TB that the requested conditions in the complaint are not attainable. These conditions include: whether armed guards must secure him, Comp. ¶ ¶ 28(i); whether he can have no exercise or walking outside his room and can only be exposed to fresh air from the outside once in nine months while being shackled in the hands and feet, Comp. ¶ ¶ 28(ii-iii); whether he must remain in solitary confinement throughout his civil commitment Comp. ¶ ¶ 28(iv); whether he must have a video camera recording his movement in his locked room and thereby no privacy; whether he cannot have access or use of the showers for nine months Comp. ¶ ¶ 28(viii); whether he cannot attend classroom instruction, vocational programs, or church services presumably with other individuals; whether he can be subject to involuntary searches of his room and person by jail personnel, Comp. ¶ ¶ 28(xi-xiv); and whether he can be denied visitors by jail security, Comp. ¶ ¶ 28(xvii).

23 Noting what the Arline court stated concerning the risk factors and TB, it seems arguable that Mr. Daniels should at minimum be otherwise eligible for some of the conditions of confinement, even if a court would weigh his past conduct of appearing in public places and his serious strain of TB and determine that he presents a more significant risk than the Arline schoolteacher. 24 The plaintiff should be able to argue that alternative arrangements or accommodations could be made so that he could be able to shower have access to some outdoor or recreational activity even if that posed some strain on jail personnel in terms of scheduling this access to times when other prisoners were not present or taking care to protect themselves from exposure in handling Mr. Daniels.

It is likely that a court would determine that Mr. Daniels does have to remain in solitary confinement and based on the risk could not fully interact with others, be they other inmates in recreational or vocational settings or with visitors. Similarly, a court may find that his past conduct requires the shackles, armed guards, and involuntary searches of his room because he has shown himself to be unwilling to follow through with his treatment potentially risking overall public health. However, interaction can be a matter of degree and perhaps an accommodation can be reached, even if that is limited only to Internet or online access, to allow Mr. Daniels some way of communicating with others during his confinement. It is also important to note what the Arline court stated about timing, that there are tests and ways to calculate how contagious a person with TB is at the moment. This can be useful in arguing that Mr. Daniels' conditions can be changed as his treatment progresses and that while he may not be currently eligible to participate in a program or receive a certain benefit, he should not be foreclosed from such a possibility in the future.

Notably, some of the conditions seem to have very little or no connection to the risk or created by Mr. Daniels' contagious TB, specifically 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 incoming mail. Comp. ¶ ¶ 28(v-vii), 28(xvi). These seem to be solely intended either to re-emphasize to Mr. Daniels' that he is now civilly committed and therefore isolated from others, or to outright punish him for his past conduct and for suffering from TB. Neither of these rationales makes him ineligible under the meaning of the ADA.

C. Mr. Daniels should be able to establish the third element that certain conditions of confinement requested in his complaint are public 25 benefits within the meaning of Title II of the ADA.

26 As previously stated, Title II of ADA was intended as a broad remedial legislation to eradicate discrimination against disabled persons by public entities. Lee, 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). The Supreme Court held that Title II of the ADA applies in the context of state prisons and jails and prohibits discrimination against disabled inmates in state prisons by denying them public benefits or services because of their disabilities. Yeskey, 524 U.S. at 211 (holding that refusing an inmate admission in a program that would have led to early release on parole because of his medical history and hypertension was a violation of the ADA). In addition to applying to "logistical matters of prison administration," including access to prison facilities, recreational activities, and programs, ADA protected benefits can also include programs or services that fall within "the substantive decision making processes" of prison administration. Thompson, 295 F.3d at 987.

Incorporating the broad sweep of the ADA, the Yeskey Court stated that criminally incarcerated persons receive a multitude of programs and services from prisons and jails "all of which at least theoretically 'benefit' the prisoners (and any of which disabled prisoners could be 'excluded from participation in')." Yeskey, 524 U.S. at 210-11 (noting as an example that a state prison providing a library would be subject to an ADA challenge for denying access to this benefit for disabled inmates because of their disability); see also 28 C.F.R. 42.540(j). Similarly, educational programs provided by a state prison or jail could also be ADA covered benefits, 42 U.S.C § 12132; Crawford v. Indiana Dep't of Corrections, 115 F.3d 481 (7th Cir. 1997) (abrogated on other grounds by Erickson v. Bd. of Governors, 27 No. 98-3614, 2000 WL 307121 (7th Cir. Mar. 27, 2000)), as is the use of the dining hall, Crawford, 115 F.3d at 486, and shower facilities, Partelow v. Massachusetts, 442 F.Supp.2d 41 (D. Mass. 2006). In one broader ruling of what constituted an ADA benefit, the Eighth Circuit ruled that a benefit could include "handl[ing] and transport[ation] in a safe and appropriate manner consistent with [one's] disability." Gorman v. Bartch, 152 F.3d 907, 913 (8th Cir. 1998) (reversing a lower court decision and ruling that "[a]rrestee transportation is a program or service").

However, these conditions of confinement cannot be alleged as benefits protected under the ADA unless they are made available to both disabled and non-disabled person. Franco v. CMF Warden, No. CIV S-07-0072 FCD EFB P., 2007 WL 2989681, at *3 (E.D. Cal. Oct. 10, 2007). There is no right under the ADA that holds that a prison must have a library or a television set. Beck v. Lynaugh, 842 F.2d 769, 762 (5th Cir.1988) but only that when one is provided to non-disabled persons, it must also be provided, albeit with reasonable accommodation, to disabled persons. Similarly, a failure to provide showers at all would be a violation of the Eighth Amendment and not an ADA violation. See Hale v. Mississippi, No. 2:06cv245-MTP., 2007 WL 3357562, at *7 (S.D. Miss. Nov. 9, 2007). But an ADA violation could occur when a prison facility failed to provide a reasonable accommodation or access to existing shower facilities to disabled inmates or civilly confined persons. Id.

Interestingly, the Superior Court of New Jersey discussed, but only as dicta, the issue of conditions of confinement for persons involuntarily committed because of TB, ruling on the constitutionality and due process concerns of the commitment process and not the issue of conditions of confinement once a person is civilly committed. City of Newark, 279 N.J. Super. at 205, 652 A.2d.at 278. Other courts deciding whether the conditions of confinement for a person civilly committed because of his TB are violations of the ADA should note these observations. Judge Goldman opined that the rights of civilly committed persons with TB should be protected and honored with respect to the conditions of confinement "to the extent feasible and practical." Id. He also allowed that "the provisions regarding the opportunities to see visitors must be accomplished according to established hospital procedures for infection control." Id. A person who has been civilly confined because of TB may have "[h]is right to outdoor activities … curtailed if he refuses to wear his mask[,]" and "[t]he hospital may not have safe and suitable facilities for extended visits with persons of the opposite sex." Id. He notably added that he would "not interfere with medical judgment, but [would] remain available on short notice to resolve any disputes." Id. 28

29 Applying the rulings of these courts, Mr. Daniels can establish that the following conditions of confinement alleged in the complaint are benefits to which he is entitled under the ADA: some kind of access to showers or other method of maintaining his personal hygiene, Comp. ¶ 28(viii); some manner of exercise or recreation that should include access to the outdoors, Comp. ¶ 28(ii) and 28(x); access to the services educational and vocational programs and facilities that are available to the other inmates housed in the jail ward of the hospital which could include Internet, phone or television services if those are provided, Comp. ¶ 28(ix, xi-xv). The conditions such as the lights that are on 24 hours a day and the outright denial of access to personal hygiene facilities might strategically fare better with the court if alleged under a claim pursuant to the Eighth Amendment.

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.

30 31 A plaintiff bringing a Title II ADA claim must show that the exclusion from participation, denial of benefits, or discrimination by a public entity is because of his disability. This can be established by showing intentional discrimination on the part of the public entity. Intentional discrimination is shown in one of two ways; either by proving disparate treatment to the disabled person from a facially discriminatory policy, Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565 (2d Cir. 2003), v 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) (noting that since "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 plaintiffs show disparate treatment from facially discriminatory policies to establish intentional discrimination. See, e.g., Tsombanidis, 352 F.3d at 575 (finding that plaintiffs failed to establish a prima facie claim of disparate impact). 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).

Mr. Daniels has alleged sufficient factual allegations establishing intentional discrimination. 32 The defendants used the jail ward of the hospital in the past for long-term quarantines of civilly committed persons with disabilities, Comp. ¶ ¶ 23, 25, and according to the complaint 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. They also knew that he was not criminally incarcerated, and that because of his TN he was likely a disabled person within the meaning of the ADA. Comp. ¶ ¶ 20, 24, 54-57. Finally, Mr. Daniels included specific allegations in his complaint that indicate that conditions of confinement were punitive in nature, Comp. ¶ 27, and was not concerned solely with either his medical treatment or ensuring the containment of a public health risk. Comp. ¶ 35 (alleging 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).


CONCLUSION

For reasons stated above, Mr. Daniels should be able to overcome the difficulties in demonstrating the second and third of the four elements of a claim of disability discrimination under Title II of the ADA and successfully withstand a motion to dismiss the complaint for failing to establish a prima facie case.


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. 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).

iii. City of Newark v. J.S., 279 N.J. Super. at 198 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'").

iv. The court concluded that spreading TB is quite difficult since the TB disease is caused by an infection from inhaling another's "droplet nuclei" despite the fact that "when droplet nuclei are expelled from one person, almost all, or 99.9%, of the nuclei die within a second of contacting room air." Arline, 692 F. Supp. at 1287. If the droplet nuclei survive this exposure to room air, it must also survive "the efficient filtering action of the lung's protective structures as well as "the body's immunological defenses" to reach the person's lungs. Id. at 1287-88. Even if the germ implants itself in the distal portion of the lungs, from which the germ can spread, only about 5% of those thus exposed will actually develop the disease within the first two years of the infection. Id. at 1288.

v. "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 v. City of West Haven, 129 F.Supp.2d 136, 152 (D. Conn. 2001), citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977).


ANNOTATIONS

1 Note the addition of the phrase "alleged in his complaint," which helps signal to the reader that at issue is whether the plaintiff has established a prima facie case --on the face of the complaint.

2 Note that in this revised version the author has specified the existence of four elements in plaintiff's claim and has identified the basis of the claim under the ADA.

3 In this revised answer, the author clarifies that the plaintiff must establish four elements to state a prima facie statutory claim, and indicates the two elements that may be more difficult to establish.

4 Note that in the revised version the author states the conclusion that the plaintiff likely will succeed in establishing a prima facie case on the elements that are more challenging to meet.

5 Note that in this revised version the author has eliminated the conjectural statement (plaintiff is "probably better off under some type of medical isolation") and communicates more directly the nature of his medical condition. The author also eliminates the paragraphs referring to unknown facts and facts that are not clear.

6 Note that in this revised version the author has eliminated the separate section at the beginning setting out the legal framework of Title II of the ADA and proceeds directly to the point asserting that plaintiff can establish the four elements of a discrimination claim under Title II.

7 Note how the author begins the point with an umbrella paragraph that summarizes why the plaintiff can establish the four elements of a prima facie claim under Title II. The author state the first two elements explicitly ("disability" and "otherwise qualified") and implies the other two. Consider here what else the author might have said to communicate more explicitly the conclusion that the plaintiff can also meet the elements of "exclusion" and "by reason of disability."

8 Note how the author in this revised section incorporates a statement of the law from the discussion that, in the original version, appeared separately under the "legal framework of the ADA."

9 Note also how the author has, in this revised version, properly set out the statutory text before citing to a case that interprets it.

10 Note that the author uses a single typeface—here, italics-- consistently for citing case names and for other procedural history and references to related authority (B13 of the Bluepages).

11 Note how in this revised version the author has combined and consolidated text from two different sections of the original version: a paragraph from the "legal framework" discussion and a sentence from the introduction to the next point stating the two main challenges to meeting the elements of a prima facie case.

12 Note how the author in this revised version has fleshed out the point heading for the second element by adding that plaintiff has met requirements for receiving benefits of confinement and that TB is not a significant threat.

13 Note that in this revised version the author has eliminated an opening paragraph that referred only to the "direct threat" aspect of the second element and instead begins directly with a definition of an "otherwise qualified individual."

14 Note that in this revised version the author does not introduce the issue of "direct threat" during the discussion of "otherwise qualified" but continues to discuss cases that bear on eligibility within the meaning of the ADA.

15 Note that in this revised version unlike the original version the author applies the law pertaining to eligibility to the facts alleged in the complaint.

16 Note how the author signals a shift in this new paragraph to a separate aspect of the element, i.e., whether the plaintiff poses a direct threat to the health or safety of others.

17 Note that the author in this revised version moved some of the text defining "direct threat" to a footnote, and concludes with a statement that the Ninth Circuit applies the test for "direct threat" that the U.S. Supreme Court articulated in the Arline case. This statement, in turn, sets up the rule explanation of the Arline case in the main text.

18 Note the clarity of this thesis sentence in focusing attention on the level of risk needed to satisfy the Arline standard, and note how the author fleshes out this risk standard in the balance of the paragraph.

19 Note the proper citation form for opinions that are not published in reporters but appear in electronic databases. Rule 18.1.1 of the Bluebook lists the requirements, which include the docket number, the database identifier, and the full date of decision of the opinion.

20 Note how the author begins the paragraph with a sentence that announces to the reader that the paragraph will discuss the district court's application of the factors that the Supreme Court articulated in Arline. The balance of the paragraph shows how the district court did so with respect to each of the factors pertaining to direct threat.

21 Note the author's decision to move the district court's detailed discussion of the difficulty of spreading TB, which used more specialized medical language, into a footnote.

22 Note how the author in this sentence announces the shift to application of law to the facts of the plaintiff's complaint pertaining to the risk of harm that plaintiff poses.

23 Note how the balance of this subpoint constitutes a substantially new discussion applying the Arline standards to the facts alleged in the complaint in this case.

24 In each of the three paragraphs that follow, note how the author uses the first sentence to signal the focus of the discussion in the paragraph.

25 Note the addition in this revision of the adjective "public" to clarify the nature of the benefits at issue in Title II of the ADA.

26 Note how the author has completely revamped, reorganized, and edited down this subpoint in relation to the original version. Consider how these revisions clarify and sharpen the focus of the analysis.

27 Note here that the correct abbreviation of this case name, following Rule 10.2.1(f) of the Bluebook, omits the prepositional phrase ("of State Colleges and Universities for Northeastern Illinois University") following "Board of Governors."

28 Note how this paragraph develops fully the rule explanation for the City of Newark case. The opening sentence of the paragraph announced this case as an important statement on the issue, albeit in dicta.

29 Note how the author here communicates clearly the shift to the application stage of the CRRACC paradigm by introducing this paragraph with the clause "applying the rulings of these courts."

30 Note how the author has completely revamped, reorganized, and edited down this subpoint in relation to the original version. Consider how these revisions clarify and sharpen the focus of the analysis.

31 Note how the author presents a concise rule statement and explanation in the first two paragraphs of the subpoint.

32 Note how the author uses a thesis sentence to announce the shift to applying the rule to the allegations of plaintiff's complaint.