REQUEST TO TRANSFER TO ACCESSIBLE FACILITY REPORTEDLY “REPEATEDLY DENIED”
by Sharon Rondeau
“The walkways around here are very rough as the pavement is very old and has many potholes and large cracks,” Wright wrote in November 2017. “When inmates hit these areas in their wheel chairs, they are flipped out of their chairs and some are getting injured. They have told us for the past three years that they were going to repave these walkways and correct these problems, but they have not done anything as of yet…”
In 2017, Mike Parris was warden at NWCX, while today it is Shawn Phillips. The change was made last year when Phillips, who served as warden at the Morgan County Correctional Complex (MCCX) was sent to NWCX, and Parris was sent to MCCX.
Wright’s current letter, addressed to the ACLU of Tennessee, states that not only are the cells not handicapped-accessible, but also that “this institution is denying wheelchair bound inmates access to outside recreation. The big yard is not on level ground and the restrooms are not wheelchair accessible.” [sic]
The TDOC’s Administrative Policies & Procedures does not contain a section on handicapped-accessible accommodations, although Section 504 of the Rehabilitation Act states that “‘no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under’ any program or activity that either receives Federal financial assistance.”
In 2010, the US Justice Department issued revised “Standards” for correctional facilities relating to the Titles II and III of the Americans with Disabilities Act (ADA). The pertinent section states:
In 2013, Prison Legal News reported:
The ADA broadly defines the term “disability” to cover people faced with a number of different forms of discrimination. Generally, the ADA bars public entities from denying services to people with disabilities or failing to provide services such as those offered to others who are not disabled. Each of the ADA’s five titles targets specific areas in which people with disabilities face discrimination.
Title II of the ADA is the one under which a prisoner would file suit to address discrimination against a qualified individual with a disability by a public entity. Title II, as applied to discrimination against prisoners with disabilities, has been a congruent and proportional response to actual and threatened constitutional violations. The Supreme Court’s holding in Tennessee v. Lane that Title II is unquestionably valid, “as it applies to the class of cases implicating the accessibility of judicial services,” was profound. It demonstrated that prisons must be accessible for prisoners with disabilities.
Title II of the ADA provides that state and local governments:
• May provide special benefits, beyond those required by the regulation, to individuals with disabilities.
• May not refuse to allow a person with a disability to participate in a service, program or activity simply because the person has a disability.
• Must provide programs and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.
• Shall operate their programs so that, when viewed in their entirety, they are readily accessible to and usable by individuals with disabilities.
• Must furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.
• Are required to make reasonable modifications in policies, practices and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration in the program would result.
• Must eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy services, programs or activities unless “necessary” for the provisions of the service, program or activity.
• May not place special charges on individuals with disabilities to cover the costs of measures necessary to ensure nondiscriminatory treatment, such as making modifications required to provide program accessibility or providing qualified interpreters.
The question then becomes one of who is considered to be a “qualified individual with a disability” under Title II, as far as prisoners are concerned. Pursuant to the ADA, an “individual with a disability” is a person who: 1) has a physical or mental impairment that substantially limits a “major life activity,” 2) has a record of such an impairment, or 3) is regarded as having such an impairment.
In its “National Prison Project” the ACLU states, in part:
Prisoners are protected by § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and by Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, etseq. The Rehabilitation Act was created to apply to federal executive agencies, including the Bureau of Prisons, and to any program that receives federal funding. The ADA was created to regulate state and local government programs, even those that do not receive federal funding.
On Wednesday evening, we sent the letter to TDOC Communications Director Neysa Taylor requesting comment but as of press time have received no response.
Wright’s letter reads as follows: