Vol. 27 No. 1 – County Jails, State Parolees and ADA


On January 13, 2012, Judge Claudia Wilken, of the federal District Court of Northern California, issued an order, in the case of Armstrong v. Brown, requiring the State of California to monitor county jails to insure that state inmates housed in those jails are provided all their rights under the Americans with Disabilities Act (ADA).

The court stated that “(t)his lawsuit was originally filed seventeen years ago by disabled prisoners and parolees against the California officials with responsibility over the corrections and parole systems. This Court certified Plaintiffs as representatives for a class including ‘all present and future California state prisoners and parolees with mobility, sight, hearing, learning, developmental and kidney disabilities that substantially limit one or more of their major life activities.’”

“On September 20, 1996, this Court ordered CDC and related Defendants to develop plans to ensure that their facilities and programs were compliant with the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12131 et seq., and readily accessible to and usable by prisoners and parolees with disabilities. The order also required Defendants to develop policies to provide a prompt and equitable disability grievance procedure, to allow approved assistive aids for prisoners with disabilities in segregation units and reception centers, and to ensure accessibility in new construction and alterations.”

Subsequently, there were numerous hearings and orders issued by the court.  As a result, the Court found that, “parolees with disabilities were not being provided with required accommodations, including mobility assistance for paraplegics and sign language interpreters for deaf parolees.  At that time, Defendants did not contest the extensive evidence that Plaintiffs submitted to demonstrate ongoing violations of the same type alleged in the instant motion, such as evidence that a paraplegic parolee had to drag himself up stairs.”

At a hearing held “(o)n September 16, 2009, this Court held that Defendants are responsible for ensuring that Armstrong class members receive reasonable accommodations when Defendants elect to house them in county jails.”   Although the state appealed the court’s order, “on October 15, 2009, as required by the  September 16 Order, Defendants provided ‘written notification and instruction to all county jail facilities of their duty to comply with the ADA in housing Armstrong class members and that defendants will enforce those obligations.’”

On September 7, 2010, the Ninth Circuit affirmed in part and vacated in part the September 16 Order, and remanded the case to this Court for further proceedings. The Ninth Circuit affirmed this Court’s holdings that ‘defendants are responsible for providing reasonable accommodations to the disabled prisoners and parolees that they house in county jails.’”

The Ninth Circuit remanded the case back to the District Court because it ruled that “the system-wide scope of relief ordered required development of additional evidence concerning the nature and extent of the violations.”  The Ninth Circuit stated that by remanding the case, it would enable the lower court “to take such additional evidence as may be necessary concerning the nature and extent of the violations of class members’ rights taking place in the county jails.”

District Court Findings

The District Court found that “(o)n October 1, 2011, state legislation commonly known as the prison “realignment” law went into effect. Under realignment, parolees who were already placed on state parole prior to October 1, 2011 remain under the supervision of Defendants.  Further, persons released from state prison on or after October 1, 2011, who fall into certain categories, including conviction of serious or violent felonies, continue to be placed on state parole under the jurisdiction and supervision of Defendants.”

The court also noted that “Realignment also amended Penal Code section 3056, which now provides, in relevant part:  Prisoners on parole shall remain under the supervision of the department. . . .  [U]pon revocation of parole, a parolee may be housed in a county jail for a maximum of 180 days.  When housed in county facilities, parolees shall be under the legal custody and jurisdiction of local county facilities.  When released from custody, parolees shall be returned to the parole supervision of the department for the duration of parole.”

The court further stated that “Defendants also project that thousands of parolees will be housed in county jails on a daily basis.”   Furthermore, “(t)he Ninth Circuit has held that, under the ADA and the Rehabilitation Act, Defendants have the legal responsibility to ensure ADA-compliant conditions for Armstrong class members whom they house in county jails.”

The state appeared to try and “pass the buck” and argued that the responsibility for parole revocation hearings will be transferred to local courts, pursuant to Realignment, and, therefore, it is no longer responsible for ensuring that those inmates receive ADA accommodations.  The court held that “this Court must apply the law currently in effect and will not speculate as to what effect, if any, potential changes to the applicable laws may have on its rulings in the future.”

In addition, the court found that “Defendants do not dispute that they continue to have responsibility for certain groups of state prisoners and parolees housed in county jails:  those already there ‘as of October 1, 2011 pending parole revocation proceedings, offenders sentenced to life terms who may return to state prison, and state inmates housed in county jail for county proceedings.’   Defendants also not dispute that they continue to house substantial numbers of CDCR prisoners and parolees pursuant to various contracts and other arrangements.”

The court also noted that “Defendants do not dispute that they are still empowered, under various code sections, to hold local county jails accountable for not adhering to minimum standards prescribed by Defendants.”

The state also argued that it was no longer responsible for “state parolees housed by Defendants in county jails [who] are in the custody and control of the county, while simultaneously in the continuing custody and control of Defendants.”   However, the court did not accept that argument and held that, “as prior to the enactment of the realignment statute, state parolees housed by Defendants in county jails are in the custody and control of the county, while simultaneously in the continuing custody and control of Defendants.”  (Emphasis added.)

Furthermore, said the court, “(a)s before the realignment statute went into effect, Defendants continue to maintain control and authority over whether the state parolees under their supervision are to be taken into custody and placed into a county jail. Parolees are placed into county jails by virtue of their status as state parolees and do not cease being state parolees while they are also county jail inmates.”


As a result of the Ninth Circuit’s original decision, and the finding by the District Court, “Defendants are obliged to ensure ADA-compliant conditions for the prisoners and parolees that they house under their own authority in county jails.”  It is, therefore, incumbent upon the state to monitor county jails to ensure they are in compliance with ADA regulations and the federal court orders.

The court has concluded that “Defendants have abdicated their responsibility for accommodating Armstrong class members to the county jails.  Defendants possess little to no knowledge regarding whether the county jail facilities in which they house Armstrong class members are physically accessible to wheelchair users.”

The court said that the state’s reliance upon self reporting by the counties, that they was in compliance with ADA regulations, was inadequate and that the state did nothing to attempt to verify those reports.  “Defendants do not dispute that they have not taken any step to investigate the allegations of ADA violations made in the declarations of Armstrong class members housed in county jails that Plaintiffs have provided to Defendants from September 2009 forward.”

The court held that “Defendants’ communication of the County Jail Plan to the Counties — in a single letter from CDCR’s General Counsel on April 12, 2010 — did not adequately convey to the counties their existing obligations under the ADA and Rehabilitation Act. In particular, CDCR’s statement in that letter that the County Jail Plan “does not require county jails to change any policies or procedures already in place” renders meaningless any report that Defendants might make to the counties of patterns of ADA non-compliance.  Given this statement, any county informed of such a pattern will believe that it is not required to do anything to address or resolve such a pattern.”

The District Court has, as a result of its findings, issued an Order requiring, in part:

“1. Within thirty days of this Order, Defendants shall develop a revised plan for ensuring timely and appropriate accommodations for Armstrong class members in county jails that includes, at a minimum, the following elements:

a. On a daily basis, Defendants shall send to each county a list of all Armstrong class members being housed in the county jail facilities of that county.

b. Within three business days of the arrival of a prisoner at a county jail facility pursuant to a parole hold, Defendants’ agent (whether Parole Agent, Notice Agent, Board Revocation Representative, or other agent) shall . . . interview the parolee, and review any . . . source documents to determine what, if any, reasonable accommodations in housing, programming, or parole proceedings the parolee requires under the Armstrong Remedial Plan, the ADA, and/or the Rehabilitation Act and whether these accommodations have been provided to the parolee by the county jail.

c. Class members housed in county jails must have ready access to disability grievance forms. . . .

Defendants shall collect the grievance forms from class members no less than twice a week, and shall provide copies to a designated person at the county jail. Defendants shall respond to all grievances within fifteen calendar days of receipt and make their best efforts to ensure that necessary and reasonable accommodations are provided.”

Right of Access by Plaintiffs’ Attorneys

The list of obligations on the state, and on counties, goes on for pages – please click here for a copy of the court’s 43 page Order for your review and analysis.  One of the most significant obligations, which will likely impose the greatest burden on sheriffs, involves access by plaintiffs’ counsel to the county jails:

“Defendants shall permit Plaintiffs’ counsel to monitor the plan and the accommodations provided to Armstrong class members while housed in county jails. Reasonable monitoring shall include, at a minimum:

a.       The ability to conduct a sufficient number of tours per year of county jail facilities in which Armstrong class members are held to determine compliance with this order;

b.      The right during the aforementioned monitoring tours to conduct interviews with county jail staff members and with Armstrong class members housed in county jails, and to review all files and documents pertaining to Armstrong class members, including class members’ jail custody and medical files and jail policies and procedures affecting prisoners with disabilities;

c.       The opportunity to review and comment on materials used to train Defendants’ staff who work in or with county jails about the ADA, the Rehabilitation Act, and the Armstrongcase sufficiently in advance of training sessions and to observe those sessions.”

This court Order has, obviously, the greatest impact upon county sheriffs in the running of their institutions.  Theoretically, it could also affect any city with a Type I jail, if they contract with CDCR to house state parolees.  As with all legal matters, it is imperative that you confer with your agency’s attorney to secure legal advice and guidance as to your obligations and responsibilities arising out of this Order.

As always, if you wish to discuss this in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.