Bonner v. Arizona Dept. of Corrections

• Decision Date: 26 May 1989
• Docket Number: No. CIV 86-1771 PHX CLH.,CIV 86-1771 PHX CLH.
• Citation: 714 F. Supp. 420
• Parties: Nicki Aaron BONNER, Plaintiff, v. ARIZONA DEPARTMENT OF CORRECTIONS, Samuel Lewis; Tim Crowley; Javier Vega and John Does, Defendants.
• Court: U.S. District Court — District of Arizona

714 F. Supp. 420

Nicki Aaron BONNER, Plaintiff, v. ARIZONA DEPARTMENT OF CORRECTIONS, Samuel Lewis; Tim Crowley; Javier Vega and John Does, Defendants.

No. CIV 86-1771 PHX CLH.

United States District Court, D. Arizona.

May 26, 1989.

Joseph E. Abodeely, Phoenix, Ariz., for plaintiff.

Lynne W. Abney, Asst. Atty. Gen., Phoenix, Ariz., for defendants.

MEMORANDUM OPINION AND ORDER

HARDY, District Judge.

BACKGROUND

Bonner is an inmate at the Arizona State Prison. He is deaf, mute, and suffers from a severe progressive vision loss which results in increasingly narrow tunnel vision. Bonner filed suit pro se alleging that the failure of prison officials to provide him with a qualified interpreter constitutes a violation of Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against otherwise qualified handicapped individuals who wish to participate in programs receiving federal funds.

Bonner claims that his poor reading and writing skills prevent him from communicating his thoughts through writing or understanding others by reading their words via a telecommunications device provided to him by the prison officials. He claims that the inmate interpreters provided to him by the prison officials are unskilled, and that he can only understand them 50% of the time.

He also alleges violations of his constitutional rights to due process, equal protection, and the eighth amendment's prohibition against cruel and unusual punishment. Bonner seeks injunctive relief and damages.

This court dismissed Samuel Lewis, Director of the Arizona Department of Corrections as a defendant and granted summary judgment in favor of the remaining prison officials. Bonner appealed, and the Ninth circuit reversed and remanded on two issues, 857 F.2d 559.

I. The Rehabilitation Act Claim

The Ninth Circuit held that Bonner must establish four elements in order to prove a Section 504 violation:

(1) that, as a deaf, blind, and mute plaintiff, he is a handicapped person under the Rehabilitation Act;

(2) that he is otherwise qualified;

(3) that the relevant program receives federal financial assistance; and

(4) that the defendants' refusal to provide qualified interpreter services impermissibly discriminates against him on the basis of his physical handicaps.

The court noted that while the first two elements were undisputed, the third and fourth elements raise genuine issues of material fact. The Rehabilitation Act claim was remanded to this court to determine whether the prison or its programs receive federal financial assistance.

This court directed the defendants (hereinafter referred to collectively as "the Department") to file an affidavit on the receipt of federal financial assistance and the plaintiffs have filed a response to the Department's affidavit on federal financial assistance. This court denied the Department's motion to strike plaintiff's response to the affidavit on federal financial assistance.

In its affidavit, the Department acknowledges receiving federal financial assistance. The Department also stipulates for the first time that "the Arizona Department of Corrections will provide `appropriate auxiliary aids' to plaintiff for any programs and activities that do receive federal financial assistance. See C.F.R. Section 42.503(f) (1988) (appropriate aids may include qualified interpreters and devices such as electronic readers and telephonic transcribers) Department of Justice regulations implementing Section 504 of the Rehabilitation Act."

However, the Department argues that the federal financial assistance must have a nexus to the program or activity in which the handicapped individual seeks to participate in order to state a viable claim under Section 504. See Henning v. Village of Mayfield Village, 610 F.Supp. 17, 19 (N.D. Ohio 1985). Since Bonner's complaint only seeks the aid of a qualified interpreter for prison counseling sessions, administrative or disciplinary hearings, medical treatments and diagnosis, and none of these programs receives direct federal financial assistance, the Department argues that its receipt of federal aid is unrelated to the programs and activities in Bonner's complaint. Consequently, the Department contends that Bonner does not have a viable claim under Section 504 since there is no nexus or connection between the Department's receipt of federal funds and the programs in which he seeks to participate.

Bonner contends that the recently enacted Civil Rights Restoration Act, which provides that a "program or activity" includes all of the operations of a state department or agency, overruled cases such as Henning v. Mayfield Village, and that the Department has effectively conceded its case by admitting that they are obligated to provide Bonner with a qualified interpreter for participation in any of its programs or activities that receive federal financial aid.

DISCUSSION

Section 504 of the Rehabilitation Act, 29 U.S.C.A. Section 794 (West.Supp.1988), provides:

No otherwise qualified individual with handicaps in the United States ... shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. ...

In Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), the Supreme Court held that Title IX's prohibition against sex discrimination in "any education program or activity receiving federal financial assistance" did not require institution-wide compliance as a condition of receiving federal grant money, but only mandated compliance by the specific program or activity receiving the federal aid in question. In Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984), the Supreme Court held that the Rehabilitation Act's prohibition of discrimination against the handicapped was also limited "to the specific program that receives federal funds." Id. at 636, 104 S.Ct. at 1255.

In general, courts have read the legislative history behind the Rehabilitation Act to suggest that Congress intentionally gave broad scope to the term "federal financial assistance" in Section 504. See Arline v. School Bd. of Nassau County, 772 F.2d 759 (11th Cir.1985), aff'd, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). In particular, the Eleventh Circuit has argued that "the legislative history of the 1974 amendments is replete with notations indicating that Section 504 was intended to encompass programs receiving federal financial assistance of any kind." Jones v. Metropolitan Atlanta Rapid Transit Authority, 681 F.2d 1376, 1379-80 (11th Cir. 1982). While payments for obligations incurred by the federal government as a market participant do not constitute "federal assistance," Hingson v. Pacific Southwest Air, 743 F.2d 1408, 1414 (9th Cir.1984), any payments made by the government without such a legal obligation would subject a program or employer to the requirements of Section 504. Arline, 772 F.2d at 762. In addition, once federal money is deposited into a general fund, all activities paid for out of that fund become subject to Section 504. Id. at 763.

On March 22, 1988, Congress enacted the Civil Rights Restoration Act of 1987, Pub.L. No. 100-259, 102 Stat. 28 (codified at 29 U.S.C. Section 794(b)(1)(A) (Supp. 1989)). The Restoration Act amended Section 504 of the Rehabilitation Act in part by defining the term "program or activity" as "all the operations of ... a department, agency, special purpose district, or other instrumentality of a State or of a local government." Under this revised definition of program or activity, the Department's admission that Bonner is entitled to "appropriate auxiliary aids" for any programs and activities that do receive federal financial assistance means that he would be entitled to "appropriate auxiliary aids" for participation in all of the operations of the Department of Corrections regardless of which specific program receives federal funds.

The Department notes that the Civil Rights Restoration Act was passed on March 22, 1988, long after Bonner initiated this suit, and argue that the Act should not be applied retroactively. So far, only one federal district court has examined the question of whether Congress intended the Civil Rights Restoration Act to be applied retroactively to cases that were pending at the time of its passage.

In a well-reasoned opinion, which included an exhaustive review of the legislative history behind the Civil Rights Restoration Act, the District Court for the Eastern District of New York held that the Act should be applied retroactively. Leake v. Long Island Jewish Medical Center, 695 F.Supp. 1414 (E.D.N.Y.1988), aff'd, 869 F.2d 130 (2nd Cir.1989). Noting that the express purpose of the statute was to "restore the broad scope of the coverage and to clarify the application of ... Section 504 of the Rehabilitation Act of 1973," the Leake court concluded that Congress' intention to correct what it believed to be an incorrect judicial interpretation by the Supreme Court in Darrone and Grove City required a retroactive application of the legislation.

This court adopts the persuasive reasoning of Leake v. Long Island Jewish Medical Center and applies the Restoration Act retroactively. Plaintiff's suit under Section 504 should be allowed to go forward.

Since the Civil Rights Restoration Act can be applied retroactively in this case, and the Department has admitted that it receives a significant amount of federal assistance, the Rehabilitation Act's prohibition of discrimination against otherwise qualified handicapped individuals applies to all the programs and activities of the department regardless of which specific program receives federal funds.

The Department now has two choices. It can treat its admission that Bonner is entitled to "appropriate auxiliary aids" for those specific programs that do receive...