Vol. 125 No. 5
Note
PRIVATE PRISON HEALTHCARE AS PUBLIC ACCOMMODATION: LEVERAGING FEDERAL AND STATE PUBLIC ACCOMMODATIONS LAW IN PRISON DISABILITY LITIGATION

PRIVATE PRISON HEALTHCARE AS PUBLIC ACCOMMODATION: LEVERAGING FEDERAL AND STATE PUBLIC ACCOMMODATIONS LAW IN PRISON DISABILITY LITIGATION

Mark Scaggs*

The growth of private companies in the realm of carceral healthcare services has significant implications for plaintiffs seeking to challenge disability discrimination perpetrated during their incarceration. As the face of disability discrimination changes in carceral facilities, so should the legal remedies that hold them to account. This Note outlines the cur-rent scope of disability antidiscrimination litigation in prisons, jails, and detention centers as well as this framework’s shortcomings in confronting the rise of privatized carceral healthcare services (referred to as “prison healthcare companies”). This Note then proposes a public accommodations theory of disability antidiscrimination law, under which incarcerated plaintiffs can utilize Title III of the Americans with Disabilities Act and state public accommodations law to seek both injunctive and monetary relief for disability discrimination they suffer under a privatized healthcare regime.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2025, Columbia Law School. Many thanks to Professor Elizabeth Emens for her continued insight, mentorship, and feedback. Thanks also to Lily Novak and Professors Elora Mukherjee, Margo Schlanger, and Jessica Bulman-Pozen for their thoughts and guidance. This Note is dedicated to my parents, to whom I turn when I feel the weight of my own disability, and to Rebecca Glazer, my editor from the beginning.

Introduction

Though his jailers did not know it, Andrew Abraham had spent his entire life living with disabilities. 1 Plaintiff-Appellant’s Opening Brief at 3, Abraham v. Corizon Health, Inc., 985 F.3d 1198 (9th Cir. 2021) (No. 19-36077), 2020 WL 3621048. Abraham passed away at the age of fifty-five while his lawsuit was still pending. See Zane Sparling, Oregon Supreme Court Orders Private Companies Operating in Jails to Follow Anti-Discrimination Laws, OregonLive (June 8, 2022), https://www.oregonlive.com/crime/2022/06/oregon-supreme-court-orders-private-companies-in-jails-to-follow-anti-discrimination-laws.html (on file with the Columbia Law Review). Abraham was born deaf, and his primary language was American Sign Language (“ASL”). 2 Plaintiff-Appellant’s Opening Brief, supra note 1, at 3. Like many deaf people, Abraham preferred using videoconferencing software when he needed to communicate with nondeaf people. 3 See id. These facts were lost on staff at the Clackamas County Jail who, on October 23, 2015, conducted a mental health evaluation on Abraham without an ASL interpreter. 4 Id. at 4. In a screening conducted entirely in spoken English, which bears little resemblance to ASL, 5 American Sign Language, R.I. Comm’n on Deaf & Hard of Hearing, https://cdhh.ri.gov/information-referral/american-sign-language.php [https://perma.cc​/YTE5-YMNA] (last visited Feb. 9, 2025) (“Contrary to popular belief, ASL is not representative of English nor is it some sort of imitation of spoken English that we use on a day-to-day basis. For many, it will come as a great surprise that ASL has more similarities to spoken Japanese and Navajo than to English.”). the deputy in charge concluded that Abraham was suicidal. 6 Plaintiff-Appellant’s Opening Brief, supra note 1, at 4. Jail staff proceeded to strip Abraham and place him on suicide watch. 7 Id.

Abraham spent three days in isolation without any means of commu­nication. 8 Id. Without an interpreter, he was unable to explain to medical staff that he was not only deaf but also diabetic, and he needed insulin to man­age his disease. 9 See id. Staff, on the other hand, repeatedly interpreted his lack of communication as a refusal of his insulin and his meals. 10 Id. As a result, Abraham ended up spending days trapped without any means to get his medication. 11 Id. When Abraham was finally released from jail, he filed a class action lawsuit seeking both injunctive and monetary relief for the discrim­ination he experienced on account of his multiple disabilities. 12 Abraham v. Corizon Health, Inc., No. 3:16-cv-01877-PK, 2017 WL 11718376, at *1 (D. Or. Apr. 10, 2017).

The facts of Abraham’s case are tragically commonplace in prisons and jails across the United States. 13 See, e.g., Lippert v. Godinez, No. 10 C 4603, 2015 WL 3777551, at *1 (N.D. Ill. June 16, 2015) (considering a diabetic plaintiff who lost consciousness after prison staff denied him a dose of his insulin); Catlett v. Jefferson Cnty. Corr. Dep’t, No. 3:00CV-340-S, 2000 WL 35547524, at *1 (W.D. Ky. Nov. 3, 2000) (considering a deaf plaintiff who was unable to access high blood pressure medication because she could not communicate with any prison staff); see also Brief of Amicus Curiae Disability Rights Oregon et al. in Support of Plaintiff-Appellant Andrew Abraham at 26–49, Abraham v. Corizon Health, Inc., 511 P.3d 1083 (Or. 2022) (No. S068265), 2021 WL 4812511 (sharing stories of suffering disabled people have endured in correctional settings—stories that “were not selected because they are, in any way, exceptional; rather, they were selected because they exemplify the routine failures” baked into the system). Disabled people are overrepresented in the U.S. incarcerated population, with roughly 40% of all incarcerated people reporting at least one disability. 14 Laura M. Maruschak, Jennifer Bronson & Mariel Alper, DOJ, Survey of Prison Inmates, 2016: Disabilities Reported by Prisoners 2 (2021) https://bjs.ojp.gov/content/‌pub/pdf/drpspi16st.pdf [https://perma.cc/M825-85SY] (“State and federal prisoners (38%) were about two and a half times more likely to report a disability than adults in the U.S. general population (15%) . . . .”). Disturbingly, there is no reliable data on the preva­lence of disabilities among immigrants in the United States, many of whom are sent to prison-like detention facilities while they await their deportation hearings. See Trinh Q. Truong, Emily DiMatteo & Mia Ives-Rublee, Crossing the Border: How Disability Civil Rights Protections Can Include Disabled Asylum-Seekers, Ctr. for Am. Progress (Aug. 24, 2022), https://www.americanprogress.org/article/crossing-the-border-how-disability-civil-rights-protections-can-include-disabled-asylum-seekers/ [https://perma.cc/T5HK-87HN] (“An estimated 12 million people with disabilities were forcibly displaced worldwide in 2020 alone. The actual number is likely even higher, but because data collection instruments tend to ignore disabled status or are not accessible to all disabled people, there are no inclusive, reliable data about this . . . population.” (footnotes omitted)). These demographic realities reflect in part the fact that people targeted by the criminal legal system are far poorer and less able to access healthcare than their nonincarcerated counterparts. 15 See Leah Wang, Chronic Punishment: The Unmet Health Needs of People in State Prisons, Prison Pol’y Initiative (June 2022), https://www.prisonpolicy.org/reports/‌chronicpunishment.html#disability [https://perma.cc/HU2R-B6ZS] (“[H]alf (50%) of people in state prisons lacked health insurance at the time of their arrest. That’s a devas­tating rate of uninsured people compared to the overall population: Between 2008 and 2016, the highest rate of uninsured people in the U.S. was just 15.5%.” (emphasis omitted)). The study also notes that 32% of incarcerated people who received healthcare relied on Medicaid. Id. Incarceration itself also takes a significant toll on disabled people, often exacerbating their disabilities or generating new ones alto­gether. 16 See Jamelia Morgan, ACLU, Caged in: Solitary Confinement’s Devastating Harm on Prisoners With Physical Disabilities 26–27 (2017), https://www.aclu.org/wp-content/‌uploads/publications/010916-aclu-solitarydisabilityreport-single.pdf [https://perma.cc/‌T9AF-4FSM] [hereinafter Morgan, Caged in] (noting that people with physical disabilities are “particularly susceptible to worsening physical” and mental health while they are incar­cerated); see also Jill S. Levenson & Gwenda M. Willis, Implementing Trauma-Informed Care in Correctional Treatment and Supervision, 28 J. Aggression, Maltreatment & Trauma 481, 485–87 (2018) (“Time spent in correctional facilities produces a set of traumagenic experiences for most people.”); Benjamin C. Hattem, Note, Carceral Trauma and Disability Law, 72 Stan. L. Rev. 995, 1003–04 (2020) (discussing “sexual violence; nonsexual violence; and isolation, especially prolonged segregation” as traumatizing carceral experiences). When a prison’s policies serve to subordinate incarcerated peo­ple on account of their disabilities, individuals have turned to legal tools like the Americans with Disabilities Act (“ADA”) and section 504 of the Rehabilitation Act (“section 504”) to sue federal, state, and local govern­ments in charge of carceral facilities. 17 See, e.g., Lewis v. Cain, No. 3:15-CV-318, 2021 WL 1219988, at *3 (M.D. La. Mar. 31, 2021) (considering section 504 and ADA claims against the Louisiana State Penitentiary); Fraihat v. U.S. Immigr. & Customs Enf’t, 445 F. Supp. 3d. 709, 718–34 (C.D. Cal. 2020) (considering a section 504 claim for lack of COVID-19 safeguards in federal immi­gration detention), rev’d on other grounds, 16 F.4th 613 (9th Cir. 2021); Sid Garcia, LASD Settles Lawsuit to Make Jails More Accessible for Disabled, ABC7 Eyewitness News (Mar. 23, 2015), https://abc7.com/los-angeles-county-sheriffs-department-american-disabilities-act-lasd-civil-liberties-union/570303/ [https://perma.cc/UC8T-WS6V] (discuss-ing a legal settlement to make Los Angeles County jails compliant with the ADA, includ­ing by purchasing “hundreds of new wheelchairs and provid[ing] physical therapy on site for disabled inmates”).

What is uncommon about Abraham’s lawsuit (and has resulted in its pendency before the Ninth Circuit) is the case’s nongovernmental defend­ant, Corizon Health. Corizon (now known as YesCare 18 Beth Schwartzapfel, A Prison Medical Company Faced Lawsuits From Incarcerated People. Then It Went ‘Bankrupt.’, Marshall Project (Sept. 19, 2023), https://www.themarshallproject.org/2023/09/19/corizon-yescare-private-prison-healthcare-bankruptcy [https://perma.cc/H6Z3-FTPA]. ) is one of the coun­try’s largest private prison 19 This Note will use the adjectival term “prison” as a shorthand encompassing facil­ities used to incarcerate people before a criminal trial, after a criminal sentence, or during the pendency of their immigration proceedings. healthcare companies and manages the medi­cal care of roughly 116,000 incarcerated people throughout the United States. 20 Jason Szep, Ned Parker, Linda So, Peter Eisler & Grant Smith, Special Report: U.S. Jails Are Outsourcing Medical Care—And the Death Toll Is Rising, Reuters (Oct. 26, 2020), https://www.reuters.com/article/us-usa-jails-privatization-special-repor/special-report-u-s-jails-are-outsourcing-medical-care-and-the-death-toll-is-rising-idUSKBN27B1DH‌[https:// ‌perma.cc/2FSS-U8QP]. Though Abraham experienced discrimination at a publicly run jail, the actual medical staff who placed Abraham in isolation and refused to provide him with his insulin were Corizon employees. 21 Plaintiff-Appellant’s Opening Brief, supra note 1, at 4–5. Using Oregon’s state public accommodations law, Abraham argued that the mistreatment he suffered at the hands of Corizon employees amounted to disability dis­crimination in a commercial enterprise. 22 See id. at 12–14.

The rise of private prison healthcare companies like Corizon in U.S. prisons, jails, and immigration detention centers has been deadly for disa­bled people. 23 See Eunice Hyunhye Cho & Tessa Wilson, ACLU, Am. Oversight & Physicians for Hum. Rts., Deadly Failures: Preventable Deaths in U.S. Immigration Detention 17,
26–53 (2024), https://assets.aclu.org/live/uploads/2024/06/2024-07-01-ICE-Detainee-Deaths.pdf [https://‌perma.cc/F3KU-WJXF] (sharing the stories of the fifty-two people who died in immigration detention between 2017 and 2021, the majority of whom were disabled and incarcerated within private detention centers); Jessica L. Adler & Weiwei Chen, Jail Conditions and Mortality: Death Rates Associated With Turnover, Jail Size, and Population Characteristics, 42 Health Affs. 849, 855 (2023) (“Our results indicate that health care in jail that is overseen by a public provider, as opposed to a private provider or a hybrid of the two, is related to lower mortality due to suicide.”); Szep et al., supra note 20 (“A Reuters review of deaths in more than 500 jails found that, from 2016 to 2018, those relying on one of the five leading jail healthcare contractors had higher death rates than facilities where medical services are run by government agencies.”); see also Brad Branan, California For-Profit Company Faces Allegations of Inadequate Inmate Care, Sacramento Bee (Jan. 17, 2015), https://www.sacbee.com/news/investigations/the-public-eye/article7249637.html (on file with the Columbia Law Review) (detailing how the practices of California’s largest for-profit correctional healthcare company contributed to ninety-two deaths by suicide in the jails where it operated). It has also confounded efforts at legal redress: Title II of the ADA, which sets forth the primary disability discrimination claim brought by disabled individuals in state and local custody, 24 See Margo Schlanger, Prisoners With Disabilities, in 4 Reforming Criminal Justice: Punishment, Incarceration, and Release 295, 301–10 (Erik Luna ed., 2017) (describing Title II of the ADA as one of “the two principal federal disability anti-discrimination statutes”). only applies to public entities. 25 42 U.S.C. § 12131 (2018). Courts have found this definition does not extend to private cor­porations, even if they are contracting with a governmental entity. 26 See, e.g., Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010). For those seeking to bring a disability discrimination claim from federal cus­tody, the consensus view among circuits is that a plaintiff can only sue a private company under section 504 if the company receives “federal finan­cial assistance,” or subsidies from the federal government that go beyond mere compensation. 27 See Shotz v. Am. Airlines, Inc., 420 F.3d 1332, 1335 (11th Cir. 2005); DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1382 (10th Cir. 1990); Jacobson v. Delta Airlines, Inc., 742 F.2d 1202, 1210 (9th Cir. 1984). These statutory barriers in both the ADA and sec­tion 504 prevent disabled plaintiffs from bringing discrimination lawsuits against the companies that, as in the case of Abraham and countless oth­ers, perpetrate—and often profit off—their mistreatment.

As the face of disability discrimination changes in carceral facilities, so should the legal remedies that hold them to account. This Note there­fore seeks to build the case that incarcerated individuals with disabilities can utilize Title III of the ADA and state public accommodations laws to bring disability discrimination claims against private medical corporations. Part I outlines the current remedial framework for disability discrimina­tion claims and its application to the carceral context. Part II discusses the shortcomings of this framework in responding to the increasing privatiza­tion of prison healthcare. Against this legal backdrop, Part III proposes a framework for disability discrimination claims against prison healthcare companies. It surveys potential challenges to Title III’s applicability to pris­ons and, using both federal and state antidiscrimination law, outlines the affirmative case for a public accommodations theory of private prison healthcare, as well as the advantages of such an approach.