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Furgess v. The Pennsylvania Department of Corrections

United States Court of Appeals, Third Circuit

August 8, 2019

ROBERT FURGESS, Appellant
v.
THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS

          Argued on January 24, 2019

          On Appeal from the United States District Court for the Western District of Pennsylvania (D. C. Civil Action No. 1-17-cv-00326) District Judge: Honorable Susan Paradise Baxter

          John F. Mizner, Esq. (ARGUED) Mizner Law Firm Counsel for Appellant

          Kemal A. Mericli, Esq. (ARGUED) Daniel B. Mullen, Esq. Counsel for Appellee

          Erin H. Flynn, Esq. Christine A. Monta, Esq. Counsel for Amicus Appellant

          Before: JORDAN, KRAUSE and ROTH, Circuit Judges

          OPINION

          ROTH, CIRCUIT JUDGE.

         Robert Furgess, an inmate in a Pennsylvania state prison, suffers from a disability and was unable to take a shower for three months because the prison staff did not provide him with a handicapped-accessible shower facility. He subsequently brought claims against the Pennsylvania Department of Corrections (PDOC) under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (RA). Both the ADA and the RA require public entities, including state prisons, to provide, in all of their programs, services, and activities, a reasonable accommodation to individuals with disabilities. The District Court dismissed Furgess's complaint with prejudice on the ground that, under case law from the United States District Court of the Western District of Pennsylvania, the provision of showers is not a program, service, or activity under the ADA or the RA. For the reasons that follow, we will vacate the District Court's dismissal of Furgess's complaint and remand the case for further proceedings.

         I.[1]

         Furgess has myasthenia gravis (MG), a neuromuscular disease that inhibits his ability to see, walk, speak, and lift. He arrived at the State Correctional Institution at Albion, Pennsylvania, (SCI Albion) in 2014 and requested accommodations for his disability. SCI Albion subsequently provided him with an accessible shower stall, moved his cell closer to the medical and dining halls, and fitted him for leg braces. On December 10, 2015, Furgess was moved to the Restrictive Housing Unit (RHU) at SCI Albion, [2] which was not equipped with handicapped-accessible shower facilities. Furgess repeatedly requested to be provided with an accessible shower but he was not. By February of 2016, Furgess had not taken a shower. The SCI Albion staff alerted RHU Lieutenant Barner of Furgess's disability, but Furgess still was not provided a shower. By March 2016, the Superintendent of SCI Albion had become aware that Furgess had not been able to shower. He questioned Lieutenant Barner. Barner told the Superintendent that the staff would escort Furgess to the infirmary shower facilities, which were accessible. The staff did not, however, do so. On March 7, Furgess filed a grievance, requesting a handicapped-accessible shower facility. Although his grievance was rejected, he was moved to a handicapped-accessible cell but he still was not provided access to a shower. On March 16, for the first time in over three months, Furgess was escorted to a shower. Unfortunately, the shower was not handicapped-accessible. The staff gave Furgess an armless plastic chair on which to sit during the shower. Because the hot water exacerbated the symptoms of Furgess's MG, he tried to leave the shower room. Due to the lack of rails or safety bars, he slipped and was knocked unconscious. As a result of this fall, he has been confined to a wheelchair and suffers from headaches and back pain. Furgess filed another grievance on March 25 claiming that he had been denied accommodation for his disability. The grievance was denied on April 18.

         Furgess brought this action against the PDOC, alleging it violated his rights under Title II of the ADA and Section 504 of the RA by failing to provide him with an accessible shower. The PDOC moved to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that Furgess had failed to state a claim because a shower is not a "service, program, or activity" under either statute. The District Court agreed and dismissed Furgess's complaint with prejudice.

         II.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is plenary.[3] We accept all factual allegations as true and determine whether "under any reasonable reading of the complaint, the plaintiff may be entitled to relief."[4]

         III.

         We consider the Title II and Section 504 claims together because "the substantive standards for determining liability are the same."[5] To state a claim under either the ADA or the RA, Furgess must allege that he is a qualified individual with a disability, who was precluded from participating in a program, service, or activity, or otherwise was subject to discrimination, by reason of his disability.[6]Furgess must also show intentional discrimination under a deliberate indifference standard because he seeks compensatory damages.[7] The PDOC does not contest that Furgess is a qualified individual with a disability. It only cursorily defends the District Court's holding that showers are not programs, services, or activities. Its primary argument on appeal is that Furgess was not denied a shower "by reason of" his disability. Rather, according to the PDOC, he was deprived of a shower because he was housed in the RHU, which did not have accessible shower facilities.

         Our analysis proceeds in two parts. First, we address whether the provision of showers is a program, service, or activity under Title II and Section 504. Next, we turn to the PDOC's central argument, that Furgess did not suffer the deprivation of a shower due to his disability.[8]

         A. IS THE PROVISION OF A SHOWER A PROGRAM, SERVICE OR ACTIVITY?

         The District Court dismissed Furgess's complaint on the ground that the PDOC's alleged failure to accommodate his disability did not preclude him from participating in a program, service, or activity because showers are not a program, service, or activity. The District Court's conclusion, and the cases supporting it, are contrary both to the statutory language of the RA and the ADA and to the weight of case law.

         Looking first to the statutory language, Section 504 of the RA defines a "program or activity" quite broadly to include "all of the operations of" a state instrumentality.[9] We have confirmed these terms' broad meaning, calling them "all-encompassing."[10] The ADA does not define "services, programs, or activities," but both Congress and this Court have recognized that Title II provides at least the same degree of protection as Section 504.[11] Thus, the phrase "service, program, or activity" under Title II, like "program or activity" under Section 504, is "extremely broad in scope and includes anything a public entity does."[12] A prison's provision of showers to inmates fits within this expansive definition, as it undoubtedly is something "a public entity does" and is one "of the operations" of the prison.

         Indeed, Department of Justice guidance on Title II regulations explicitly refers to a prison's provision of hygiene as being included under the statute's purview.[13] Specifically, the DOJ explains that corrections systems are unique facilities under Title II because inmates cannot leave, and thus prisons must address the needs of inmates with disabilities by providing "accessible toilet and shower facilities, devices such as a bed ...


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