The inmate, convicted murdered Robert Furgess, claims he went three months without a shower.
The U.S. Department of Justice wants to intervene in the appeal of Pennsylvania inmate who claims he was denied a shower for three months while at the State Correctional Institution at Albion.
In a move the inmate’s lawyer described as extremely rare, the Department of Justice filed a brief in support of the inmate, Robert Furgess, who sued the Pennsylvania Department of Corrections in January 2017 under the Americans with Disabilities Act.
Lawyers with the Department of Justice’s civil rights division filed the brief, which is known as an amicus curiae, or friend of the court brief, in Furgess’ pending appeal before the 3rd U.S. Circuit Court of Appeals. Furgess appealed after his case was tossed in March in U.S. District Court in Erie.
The brief was filed Aug. 27, after a filing deadline in the case had passed, according to case documents. The Department of Justice filed a motion asking the 3rd Circuit to accept the brief after the deadline, which it has not yet decided.
Furgess charged in the lawsuit that he was unable to shower for three months in the prison’s restricted housing unit, or RHU, because the unit did not have a handicap-accessible shower facility. Furgess claims he suffers from a neuromuscular disease that impairs his vision and requires him to wear leg braces to prevent him from falling.
Then-U.S. Magistrate Susan Paradise Baxter, who has since been confirmed as a U.S. district judge, granted a motion to dismiss the case from the Department of Corrections in March.
Baxter pointed to case law from within the Western District of Pennsylvania when she found that Furgess had not stated a sufficient claim that he was denied access to a “service, program or activity” under the ADA.
The Department of Justice’s brief deals with “whether a state’s provision of showers to inmates incarcerated in its facilities is a service, program or activity of the prison under Title II of the ADA.” It asks the 3rd Circuit to reverse Baxter’s ruling.
The brief challenges the case law from the Western District of Pennsylvania and points to other case law in which courts across the country have found that a prison’s failure to provide handicap-accessible showers falls under the ADA.
The Pennsylvania Department of Corrections did not oppose the Department of Justice’s motion to file the brief late, according to the motion.
A Department of Justice spokeswoman declined to comment on the case. Furgess’ lawyer, John Mizner, said it is unusual for the Department of Justice to seek to intervene on behalf of an inmate.
“I am very pleased that the Department of Justice found the arguments I made on behalf of Mr. Furgess were worthy of its support,” Mizner said Friday. “This case is extremely important because if our argument succeeds, it has the potential to affect disabled inmates throughout the entire United States.”
Furgess claimed in the lawsuit that when he was eventually granted a shower, he had to sit in an armless plastic chair in the shower stall instead of using a shower facility with safety bars. When he tried to exit the shower, he fell headfirst into the steel shower door and was knocked unconscious, according to the complaint.
Furgess, who is serving life in prison for first-degree murder out of Philadelphia County, is now incarcerated at SCI Greene, state records show.
He requested unspecified damages in the complaint.
The Department of Corrections disputed Furgess’ claim that he was denied a service under the ADA and noted in its response to the complaint that Furgess was placed in the RHU for assaulting another inmate with a weapon.
“If Plaintiff (Furgess) had not committed this disciplinary infraction, he would have remained housed in general population with his usual shower access,” the Department of Corrections wrote in its request to have the case dismissed.
Amy Worden, a spokeswoman for the department of corrections, said previously that department policy requires that inmates in RHUs be given the opportunity to shower three times a week and that ADA-compliant showers were installed in SCI Albion’s restrictive housing units in 2016 and 2017.
Inmates with disabilities were permitted to shower in ADA-compliant showers in the prison’s infirmary before the RHU showers were installed, Worden said previously.
Original Article by Madeleine O’Neill can be reached at 870-1728 or by email. Follow her on Twitter at twitter.com/ETNoneill.