This is a guest post by David Goodwin.

Robert Furgess v. Pennsylvania DOC—ADA/§ 504—vacating—Roth

Robert Furgess, a Pennsylvania prisoner, suffers from a serious neuromuscular disorder. When he was transferred to the prison’s Restrictive Housing Unit, he was no longer provided with accessible showers, and was not able to shower for months. When the prison finally cobbled together a makeshift replacement, Furgess injured himself and has since been confined to a wheelchair.

Under the ADA and § 504 of the Rehabilitation Act, a person may not be prevented from participating in a program, service, or activity, or otherwise be subject to discrimination, by reason of his disability. So is a prison shower a program, service, or activity? And even if it was, did the prison deprive Furgess of access to it “by reason of” his disability?

Writing for the Court, Judge Roth answers both of these questions in the affirmative.

First, case law and administrative guidance make plain that the “program, service, or activity” label is to be construed broadly, and Judge Roth distinguishes a relied-on Seventh Case that could be read to narrow the scope of the statute. Requests for accessible showers, Judge Roth concludes, “are requests for reasonable accommodations so that inmates with disabilities can take a shower—just like able-bodied inmates.”

Second, although the prison argued that Furgess lost access to the shower because of his transfer to the RHU, Judge Roth reads his complaint as alleging that the actual causal factor was his disability itself, not the transfer. Besides, “a prisoner’s misconduct does not strip him of his right to reasonable accommodations.” And Furgess had otherwise adequately alleged deliberate indifference, as his complaint recited the myriad occasions where Corrections officials had been alerted to, yet failed to address, his request for an accessible shower.

(A small point of curiosity: the opinion recites a short pre-Twombly version of the 12(b)(6) boilerplate, although the Court has held that this particular formulation survived Twombly/Iqbal.)

Joining Judge Roth were Judges Jordan and Krause. John F. Mizner of the Mizner Law Firm argued for Furgess, and Kemal Mericli in the AG’s office argued for the Commonwealth.

Freedom from Religion Foundation v. Lehigh County—Establishment Clause—affirming—Hardiman

“For almost 75 years, the official seal of Lehigh County, Pennsylvania has included a Latin cross surrounded by nearly a dozen secular symbols of historical, patriotic, cultural, and economic significance to the community.” This is an Establishment Clause challenge, and those particular facts should sound more than a little like the facts from American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019). As that challenge failed, it should not surprise that this one does, too.

As Judge Hardiman explains, American Legion clarified that the much-unloved three-prong Lemon test does not apply to certain longstanding symbols, which instead enjoy a presumption of constitutionality. Freedom from Religion had not adequately shown that the presumption of constitutionality did not apply, and then failed to rebut the presumption. While the Court does not dismiss on standing grounds, Judge Hardiman’s opinion appears to invite an en banc (or Supreme Court) challenge to Establishment Clause “offended bystander” standing.

Joining Judge Hardiman are Judges Krause and Bibas. Marcus B. Schneider of Steele Schneider argued for the appellants; I checked, and Pierce Brosnan has never played a character named Steele Schneider, although there’s still time. Eric Baxter of the Becket Fund argued for Lehigh County. There were many amicus briefs filed.

Steven Romansky v. Superintendent Greene SCI—state habeas—affirming—Ambro

This case, described as a “procedural quagmire,” encompasses trials, retrials, and various applications for state collateral relief, all culminating in a federal habeas petition. What follows is a gross oversimplification.

The main claim before the Court is that, during his 1987 trial, Romansky was tried for a crime different from the one actually charged. But Romansky did not file his federal habeas petition until 11 years after the time to do so apparently expired, and so his claim would appear to be time-barred. Romansky argued that a 2000 retrial “reset” the habeas timeline under Magwood v. Patterson, 561 U.S. 320 (2010), which held that a resentencing results in a new judgment and, thus, that a subsequent habeas petition cannot be “second or successive” for at least certain challenges to that new judgment.

Complicating Romansky’s Magwood argument, however, is the fact that the challenge he now raises derives from his 1987 trial, not the retrial on other counts that had been vacated. And on these facts, Judge Ambro concludes, the habeas timeline was not restarted by the revised partial judgment entered in connection with the retrial. Judge Ambro acknowledges that the outcome might be different in jurisdictions following a “sentencing package” doctrine, where even a partial vacatur results in an entirely new sentence on everything, but “the Pennsylvania counts [sic? I think this should be “courts”] imposed separate sentences for each count and conducted only a ‘limited’ resentencing after the retrial.” As a result, Romansky’s main claim is time-barred.

Romansky also argued that his 2000 retrial counsel was ineffective for failing to raise a certain defect (apparently conceded by the Commonwealth to be an actual defect, on which he never received relief) with his 1987 trial despite repeated requests. This claim, while timely, fails on the merits; Judge Ambro holds that 2000 counsel had no obligation to raise claims affecting counts not before the court in the 2000 retrial, and that Romansky could not bring an federal constitutional ineffectiveness claim based on 2000 counsel’s failure to file a PCRA petition or other collateral attack. Whew.

Judge Ambro declines to expand the certificate of appealability to reach additional claims. Of note, one of them alleged that Pennsylvania, in deciding to adopt a grand jury system, was essentially bound by Supreme Court precedent on federal grand juries, even though the constitutional grand-jury requirement has not been incorporated to the states. The Court rejects this “creative” argument.

Joining Judge Ambro were Chief Judge Smith and Judge Restrepo. Ronnie J. Fischer of Bugaj Fischer argued for Romansky, and James P. Baker of the A.G.’s office argued for the Commonwealth.