The plaintiff, an inmate at the Massachusetts Correctional Institution at Norfolk (M.C.I., Norfolk), brought the present action complaining that prison officials had failed to provide reasonable accommodation for his disability (in violation of the Americans with Disabilities Act, 42 U.S.C. § 12132 [2000] [ADA], the Federal Rehabilitation Act, 29 U.S.C. § 794 [2000] [RA], and art. 114 of the Amendments to the Massachusetts Constitution), and that they had retaliated against him for asserting his right to such reasonable accommodation (in violation of 42 U.S.C. § 12203 [2000]). The defendants’ motion for summary judgment was allowed, and the present appeal followed.
1. Facts. Viewed in the fight most favorable to the plaintiff, the record reveals the following facts. In 1984, Shedlock sustained serious and permanent injuries as a result of a motor vehicle accident. A slip and fall some years later further aggravated those injuries. Shedlock now has a constellation of medical problems, including sciatica, degenerative joint disease, and left leg atrophy, and regularly suffers pain in his neck, shoulder, back, hip, knee, and ankle. Shedlock has developed a “severe antalgic gait,” a limp adopted to minimize pain. In 1992, while he was incarcerated, Shedlock began using a cane, and he has used a cane continually since that time.
Shedlock was transferred to M.C.I., Norfolk, in November, 1997. His various medical problems were confirmed during an intake and classification review. On his arrival at M.C.I., Norfolk, Shedlock was housed on the second floor in Unit 8-1. On December 23, 1997, a correction officer attempted to move Shedlock to a new housing assignment on the second floor of another unit. Shedlock informed him that his disability prevented him from climbing stairs, and requested that he be housed on the first floor. The officer allegedly replied that they did not “cater to cripples” at M.C.I., Norfolk. The officer then contacted his sergeant, whereupon the sergeant ordered Shed-lock to go to his new cell or go to the disciplinary segregation unit. Shedlock chose to go to the segregation unit, and was issued a disciplinary report for refusing a housing assignment.
On February 4, 1998, medical personnel issued a special needs form indicating that due to Shedlock’s “chronic lower back pain [and] arthritis in his ankle” and increased “difficulty climbing stairs,” Shedlock should be housed on the first floor. Such forms, referred to as “medical orders,” are transmitted to the deputy superintendent and to the manager of the unit where the inmate is housed, and are ordinarily received within one to three days of the date they are issued.
On June 3, 1998, Shedlock was reassigned to a cell on the
During his time at M.C.I., Norfolk, Shedlock tried to walk in the yard for one hour each day. Some days he was able to walk for as much as two hours. While he was able to take such walks on his “very good days,” his symptoms would prevent him from walking on other days (as often as two or three times per week). Shedlock had to stand in line from twenty to forty minutes each day to receive his medication, which was “difficult” for him. In addition, it became increasingly difficult for Shedlock to climb stairs. Despite that difficulty, Shedlock was able to navigate the stairs to get to the dining hall on the first floor, and to visit inmates on other floors. When Shedlock’s cell needed to be cleaned, he went down the stairs to the basement, where the supplies were kept, and then climbed the stairs back to his cell. He received the assistance of a fellow inmate to climb stairs to get to a computer class and to access the library. Shedlock wanted, but was unable, to use the gym, because it was located at the bottom of a flight of stairs that lacked handrails, and the alternate entrance, by which he could avoid those stairs, was too far away for Shedlock to walk in the permitted movement time. Shedlock was similarly unable to attend meetings of religious groups because they met in another building “and there’s more stairs over there than [he] can deal with.” At no time did Shedlock complain to prison officials about his difficulties getting to and from such programs as the gym, library, computer class, or religious groups, other than to remark (at a social event) that he thought the stairs to the gym should have handrails.
2. Discussion, a. Qualified individual with a “disability” under the ADA and the RA. Title II of the ADA provides 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. The RA similarly provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be
The term “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.” 42 U.S.C. § 12102(2) (2000). The RA uses a comparable definition. 29 U.S.C. § 705(9)(B) (2000) (“physical or mental impairment that substantially limits one or more major life activities”). Here, Shedlock contends that his various long-standing injuries substantially limit his walking. There is no dispute that he suffers from a physical “impairment” as a result of those injuries and that walking constitutes a “major life activity].” See Toyota Motor Mfg., Ky., Inc. v. Williams,
To qualify as a “substantial” limitation on a major life activity, the limitation must be “ ‘considerable’ or ‘to a large degree.’ ” Toyota Motor, supra at 196, quoting Webster’s Third New IntT Dictionary 2280 (1976). The term “precludes impairments that interfere in only a minor way with the performance of [major life activities] from qualifying as disabilities.” Toyota Motor, supra at 197. At the other end of the spectrum, however, the impairment does not need to be so substantial that the plaintiff is completely incapable of performing the major life activity in question. The ADA “addresses substantial limitations on major life activities, not utter inabilities.” Bragdon v. Abbott,
For purposes of the ADA (and, to be consistent, the RA), the
The extent to which Shedlock’s impairments restrict his ability to walk is a disputed issue. Shedlock claims that while he can walk on some days (and tries to walk for an hour a day), the pain is such that he is unable to walk for two to three days each week. He also claims that he can only walk slowly and with difficulty. His medical records reflect frequent complaints of pain in his back, legs, and ankles, and confirm that his limp is “severe.” He has difficulty traversing stairs, for which he often needs assistance from other inmates.
The defendants point to Shedlock’s activities as evidence that his impairment is not so limiting — e.g., the fact that Shedlock has voluntarily gone up and down flights of stairs to visit friends on other floors of the cell block, and that he has traversed stairs to get cleaning supplies for his cell. This evidence of what Shedlock has been able to do, in spite of his impairments, may be used to try to convince the fact finder that Shedlock’s complaints of pain and difficulty are not to be credited and that the limitations on his ability to walk are not as severe as he claims. However, the fact that Shedlock has, at least on occasion, been able and willing to climb stairs does not preclude him from establishing that the difficulty and pain experienced while doing so significantly restricts his ability to perform that task. Nor does the fact that he is, at least at times, capable of traversing stairs prevent Shedlock from proving that his ability to walk is “significantly restricted” with respect to “condition, manner or duration” when compared to the walking ability of “the average person in the general population.” 29 C.F.R. § 1630.2(j)(l)(i), (ii).
Both sides point to cases involving impairments affecting walking, with some cases finding a substantial limitation on the
b. Qualified “handicapped individual” under art. 114. “No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth.” Art. 114.
This definition is essentially identical to that used in G. L. c. 151B, § 1 (17) (“a physical or mental impairment which substantially limits one or more major life activities”). In construing that term for purposes of G. L. c. 151B, we have held that the limitations on a plaintiff’s ability to perform major life activities are to be assessed without regard to the effects of any mitigating measures or corrective devices. Dahill v. Police Dep’t of Boston,
Here, the judge below concluded that Shedlock could not demonstrate the requisite substantial limitation on his ability to walk without his cane because there was essentially no evidence of his ability to walk without a cane. That absence of direct evidence (which stems from the fact that Shedlock has used a cane continually since 1992) does not prevent Shedlock from proving that he is “handicapped” within the meaning of art. 114. To the contrary, from the very fact that he needs a cane in order to walk, one could infer that his ability to walk without a cane is extremely limited. That inference is bolstered in Shed-
c. Exclusion from participation or denial of benefits. The ADA, the RA, and art. 114 all prohibit the same conduct: disabled persons may not be “excluded from participation in or be denied the benefits of” services, programs, or activities, and they may not “be subjected to discrimination.” 42 U.S.C. § 12132. 29 U.S.C. § 794. Art. 114.
The judge’s interpretation, to the effect that a violation could only be premised on conduct that resulted in a complete exclusion from programs or total denial of benefits, is overly narrow. At some level, the difficulties experienced in attempting to access programs and services become so great — so laborious, so painful — that a plaintiff’s access has functionally been denied,
d. Request for reasonable accommodation in the prison setting. We have recognized that art. 114 (and therefore comparable provisions in the ADA and the RA) “cannot be applied literally as an absolute in all instances.” Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction,
Here, we must first consider whether Shedlock communicated a request for accommodation. Prison officials are not required to anticipate a prisoner’s unarticulated need for accommodation or to offer accommodation sua sponte. Indeed, such a requirement would effectively require prison officials to make assumptions about a prisoner’s disability, whereas resort to assumptions and stereotypes concerning disabled persons is a harmful practice that Congress sought to deter by means of the ADA. See Sullivan v. Neiman Marcus Group, Inc.,
In light of Shedlock’s apparent abilities, it was also reasonable for prison officials to insist that his alleged need for further accommodation be reviewed and confirmed by medical personnel. Within the prison system, officials may legitimately desire to screen such requests and verify that an accommodation is genuinely needed before a prisoner is accorded what other prisoners would likely view as special treatment. Over his years in the prison system, Shedlock had submitted his requests for accommodation in that fashion, obtaining medical orders for such things as his cane, a bottom bunk, extra pillows, and an exemption from application of ankle restraints. Having accorded Shedlock those accommodations that were previously requested and verified through medical orders, prison officials should not be required to accede to Shedlock’s unsubstantiated claim that he needed some further accommodation that had not been indicated by medical personnel familiar with his condition. We must therefore consider what accommodations Shedlock requested, and whether any request was properly submitted to and verified by medical personnel.
With regard to Shedlock’s claim concerning his need to be housed on the first floor, Shedlock sought and obtained a medical order supporting his claimed need for that accommodation as of February 4, 1998. The defendants did not respond to that request for accommodation, but instead moved Shedlock to a second-floor (and later a third-floor) cell. The defendants contend that they were unaware of the fact that Shedlock had obtained that new medical order, but Shedlock claims that he advised them of the order on various occasions, beginning as early as February 5, 1998. He also has evidence that, as part of
We agree with the defendants, however, that there can be no liability with respect to the period prior to Shedlock’s obtaining a medical order verifying his need for a first-floor cell. While Shedlock points out that prison regulations did not state an absolute requirement of a medical order, it was still reasonable for prison officials to rely on the contents of medical orders that had been issued, and to insist that those medical orders be updated or modified before extending Shedlock additional accommodations. The duty to provide reasonable accommodation did not require prison officials to accept at face value Shedlock’s unverified insistence that he needed to be housed in a first-floor cell. Prior to the date on which the defendants were apprised of the issuance of a new medical order, there was no proper request for further accommodation, and the defendants cannot be held liable for failing to honor a request that was not properly submitted to them.
With respect to Shedlock’s claims premised on alleged inaccessibility of other prison programs, the defendants are entitled to summary judgment on the ground that Shedlock never requested any additional accommodation with respect to those programs. At no time did Shedlock complain that he did not have access to the gym, the library, or other programs; nor did he articulate what further accommodation he would need in
e. Retaliation claim. Shedlock also claims that the defendants violated the ADA when they unlawfully retaliated against him in various ways for his having sought reasonable accommodation. See 42 U.S.C. § 12203(a).
(i) Qualified immunity. The doctrine of qualified immunity shields government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
Here, Shedlock complains of allegedly retaliatory conduct that began in December, 1997, with additional retaliatory incidents continuing up until June 3, 1998. The defendants
Shedlock points to the fact that Yeskey itself treated the issue
Since Yeskey, other courts confronting a defense of qualified immunity have held that the applicability of the ADA to State prisons was not “clearly established” until the Supreme Court resolved the split amongst the Circuit Courts of the United States Court of Appeals. See Hall v. Thomas,
(ii) Eleventh Amendment. The Eleventh Amendment to the United States Constitution renders the States immune from suit, absent a State’s consent to suit or a valid abrogation of that immunity by Congress. See Trustees of the Univ. of Ala. v. Garrett,
Shedlock argues that the State has consented to such a suit, because it has adopted art. 114, and thereby waived its immunity for State law claims that are comparable to the ADA. See Erickson v. Governors of State Colleges & Univs. for
Shedlock also contends that in the ADA itself, Congress has abrogated the States’ immunity from suit. See 42 U.S.C. § 12202. There is no dispute that Congress intended to abrogate the States’ immunity, but the department contends, and the motion judge held, that Congress lacked the authority to do so.
Congress may abrogate the States’ Eleventh Amendment immunity in the exercise of its power under § 5 of the Fourteenth Amendment to the United States Constitution to enforce the substantive guarantees of that amendment. Fitzpatrick v. Bitzer,
However, that § 5 power is not unlimited, and the validity of legislation pursuant to that power is subject to what is referred
In Garrett, supra at 360 n.1, 374, the Court held that Congress had not validly abrogated the States’ immunity with respect to employment discrimination claims under Title I of the ADA, leaving open the question whether the abrogation of immunity would be valid as to claims of denial of access under Title II. Earlier this year, the Court held that the abrogation of immunity was valid with respect to Title II insofar as it applied to cases involving the fundamental right of access to the courts. Tennessee v. Lane,
Using the analysis of Garrett and Lane, we must first identify what constitutional rights are at stake in Shedlock’s proposed application of the ADA, assess whether Congress considered and documented State violations of those constitutional rights at the time the ADA was passed, and finally examine the fit between the remedy adopted (suits for money damages) to the object of preventing or deterring such violations.
However, Shedlock’s brief on appeal fails to submit any argument beyond the first step of this three-step analysis. He claims that the antiretaliation provisions of Title V protect his First Amendment rights. However, he raised no First Amendment argument below and, in his brief on appeal, does not trace that First Amendment theory through the next two steps of the test. He points us to nothing in the legislative history of the ADA to suggest that Congress considered and documented violations of First Amendment rights by States, or considered and documented a problem of retaliation by States against persons asserting constitutional rights that would potentially be further protected by the ADA, or that concern about First Amendment violations is what underlies Title V of the ADA. Nor does he address the final step, the proportionality and congruence of the remedy adopted to whatever record might exist with respect to First Amendment violations. Instead, he suggests that framing the issue in First Amendment terms exempts him from having to satisfy the remainder of the test. We see no support for such an approach in Garrett or Lane. See Demshki v. Monteith,
3. Conclusion. For the foregoing reasons, we conclude that Shedlock has presented sufficient evidence to proceed with his claims for violation of the ADA, the RA, and art. 114 with respect to the denial of his request for a first-floor cell subsequent to obtaining the medical order of February 4, 1998, and that the motion for summary judgment should not have been allowed as to those claims. With respect to all other claims, we find no error in the entry of summary judgment for the defendants. Therefore, the summary judgment entered in favor of the defendants is reversed in part and affirmed in part, and the matter is remanded for further proceedings consistent with this opinion.
So ordered.
Notes
While the case has been pending, Shedlock was transferred to another facility, and his claim for injunctive relief with respect to the alleged inaccessibility of programs and services at M.C.I., Norfolk, was rendered moot. The only remaining claims are those for monetary damages.
Shedlock previously had obtained such medical orders with respect to his various needs, including his need for a cane, assignment to a bottom bunk, extra pillows, and avoidance of ankle restraints.
See Belk v. Southwestern Bell Tel. Co.,
See Nedder v. Rivier College,
Actions to enforce the rights guaranteed by art. 114 of the Amendments to the Massachusetts Constitution are authorized by G. L. c. 93, § 103.
Under the Americans with Disabilities Act, 42 U.S.C. § 12132 (ADA), the exclusion or discrimination must involve a “public entity.” Under the Rehabilitation Act, 29 U.S.C. § 794 (RA), the exclusion or discrimination must involve a “program or activity receiving Federal financial assistance.” Article 114 prohibits such exclusion or discrimination “under any program or activity within the commonwealth.” See Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction,
In cases alleging that an employer failed to provide reasonable accommodation to a disabled employee, we have similarly required that the employee begin the process by identifying what accommodations are needed. See Russell v. Cooley Dickinson Hosp., Inc.,
The facility contains first-floor cells, which were then occupied by inmates who were not disabled. The defendants do not contend that assigning Shed-lock to a first-floor cell involved any inordinate expense or institutional difficulty.
Shedlock’s damages claim for alleged retaliation is brought solely under the ADA. At no time has he asserted a retaliation claim under the RA. See Weber v. Cranston Sch. Comm.,
That the issue was perceived as difficult at the time is best illustrated by the evolution of the view ultimately articulated by the United States Court of Appeals for the Seventh Circuit in Crawford, v. Indiana Dep’t of Corrections,
Notably, the United States Court of Appeals for the First Circuit had not announced its view of this disputed issue prior to Pennsylvania Dep’t of Corrections v. Yeskey,
Shedlock also suggests that this court’s decision in Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction,
Shedlock correctly notes that in the pre-Yeskey era, more courts had concluded that the ADA did apply to the prison setting, while only a few took the contrary view. However, the issue whether a statutory right is “clearly established” for purposes of overcoming qualified immunity is not a matter of counting up the number of decisions that have gone each way and treating as “clearly established” whichever position has garnered the greatest number of opinions in support.
This argument is made solely with respect to Shedlock’s claim for alleged retaliation, and not with respect to his substantive claims under the ADA. While the immunity theories might extend to the entirety of Shedlock’s ADA claims (a point we need not decide), any such immunity would be of no practical consequence in light of Shedlock’s companion claims under the RA and art. 114. At no time has the department contested that it receives Federal financial assistance, which makes it subject to the RA, and the acceptance of such assistance is treated as a valid waiver of immunity with respect to suits under the RA. See Clark v. State,
Shedlock also argues that because art. 114 was “modeled after” the RA, it effectively incorporates the entirety of the RA, including the RA’s adoption of the remedies of Title VI of the Civil Rights Act. 29 U.S.C. § 794a(2) (incorporating into RA all “remedies, procedures, and rights” set forth in 42 U.S.C. §§ 2000d et seq.). Regulations under Title VI of the Civil Rights Act include a regulation prohibiting retaliation. See 34 C.RR. § 100.7(e) (2003). Article 114, and the enforcement provisions of G. L. c. 93, § 103, contain no such cross-reference. Thus, while the substantive portion of art. 114 was “modeled after” the RA, it did not include anything equivalent to the RA’s adoption of the “remedies, procedures, and rights” under Title VI of the Civil Rights Act.
The only court to apply this analysis in the context of prisoners’ rights after Tennessee v. Lane,