legal memo 法律备忘录(15)

legal memo

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,9there 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 an d pervasive social problem [and] (3) discr imination … 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 im pairment 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.15In

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