                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                ________________

                   No. 18-1758
                ________________

               ROBERT FURGESS,

                                   Appellant

                         v.

    THE PENNSYLVANIA DEPARTMENT OF
              CORRECTIONS
             ________________

   On Appeal from the United States District Court
       for the Western District of Pennsylvania
       (D. C. Civil Action No. 1-17-cv-00326)
   District Judge: Honorable Susan Paradise Baxter
                  ________________

            Argued on January 24, 2019

Before: JORDAN, KRAUSE and ROTH, Circuit Judges

           (Opinion filed: August 8, 2019)
John F. Mizner, Esq.              (ARGUED)
Mizner Law Firm
311 West Sixth Street
Erie, PA 16507

             Counsel for Appellant



Kemal A. Mericli, Esq.           (ARGUED)
Daniel B. Mullen, Esq.
Office of Attorney General of Pennsylvania
1251 Waterfront Place
Pittsburgh, PA 15222

             Counsel for Appellee


Erin H. Flynn, Esq.
Christine A. Monta, Esq.
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044

             Counsel for Amicus Appellant


                    ________________

                        OPINION
                    ________________




                              2
ROTH, Circuit Judge

       Robert Furgess, an inmate in a Pennsylvania state
prison, suffers from a disability and was unable to take a
shower for three months because the prison staff did not
provide him with a handicapped-accessible shower facility.
He subsequently brought claims against the Pennsylvania
Department of Corrections (PDOC) under Title II of the
Americans with Disabilities Act (ADA) and Section 504 of
the Rehabilitation Act (RA). Both the ADA and the RA
require public entities, including state prisons, to provide, in
all of their programs, services, and activities, a reasonable
accommodation to individuals with disabilities. The District
Court dismissed Furgess’s complaint with prejudice on the
ground that, under case law from the United States District
Court of the Western District of Pennsylvania, the provision
of showers is not a program, service, or activity under the
ADA or the RA. For the reasons that follow, we will vacate
the District Court’s dismissal of Furgess’s complaint and
remand the case for further proceedings.

                               I.1

       Furgess has myasthenia gravis (MG), a neuromuscular
disease that inhibits his ability to see, walk, speak, and lift.
He arrived at the State Correctional Institution at Albion,
Pennsylvania, (SCI Albion) in 2014 and requested

1
  This recitation of the facts accepts as true the well-pleaded
allegations of Furgess’s complaint, as required upon
reviewing dismissal on a 12(b)(6) motion. See McTernan v.
City of York, Pa., 577 F.3d 521, 526 (3d Cir. 2009).




                               3
accommodations for his disability. SCI Albion subsequently
provided him with an accessible shower stall, moved his cell
closer to the medical and dining halls, and fitted him for leg
braces. On December 10, 2015, Furgess was moved to the
Restrictive Housing Unit (RHU) at SCI Albion,2 which was
not equipped with handicapped-accessible shower facilities.
Furgess repeatedly requested to be provided with an
accessible shower but he was not. By February of 2016,
Furgess had not taken a shower. The SCI Albion staff alerted
RHU Lieutenant Barner of Furgess’s disability, but Furgess
still was not provided a shower. By March 2016, the
Superintendent of SCI Albion had become aware that Furgess
had not been able to shower. He questioned Lieutenant
Barner. Barner told the Superintendent that the staff would
escort Furgess to the infirmary shower facilities, which were
accessible. The staff did not, however, do so. On March 7,
Furgess filed a grievance, requesting a handicapped-
accessible shower facility. Although his grievance was
rejected, he was moved to a handicapped-accessible cell but
he still was not provided access to a shower. On March 16,
for the first time in over three months, Furgess was escorted
to a shower. Unfortunately, the shower was not handicapped-
accessible. The staff gave Furgess an armless plastic chair on
which to sit during the shower. Because the hot water
exacerbated the symptoms of Furgess’s MG, he tried to leave
the shower room. Due to the lack of rails or safety bars, he
slipped and was knocked unconscious. As a result of this fall,

2
  The complaint does not indicate why Furgess was moved to
the RHU and, in their briefs, the parties dispute whether he
was transferred for disciplinary or non-disciplinary reasons.
The reason Furgess was housed in the RHU is irrelevant to
our analysis of his claims, as discussed in Section III(B).




                              4
he has been confined to a wheelchair and suffers from
headaches and back pain. Furgess filed another grievance on
March 25 claiming that he had been denied accommodation
for his disability. The grievance was denied on April 18.

        Furgess brought this action against the PDOC, alleging
it violated his rights under Title II of the ADA and Section
504 of the RA by failing to provide him with an accessible
shower. The PDOC moved to dismiss under Fed. R. Civ. P.
12(b)(6), arguing that Furgess had failed to state a claim
because a shower is not a “service, program, or activity”
under either statute. The District Court agreed and dismissed
Furgess’s complaint with prejudice.

                              II.

        We have jurisdiction pursuant to 28 U.S.C. § 1291.
Our review of an order granting a motion to dismiss under
Fed. R. Civ. P. 12(b)(6) is plenary.3 We accept all factual
allegations as true and determine whether “under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.”4

                             III.

       We consider the Title II and Section 504 claims
together because “the substantive standards for determining




3
   Phillips v. Cty. of Allegheny, 515 F.3d 224, 230 (3d Cir.
2008).
4
  Id. at 233.




                              5
liability are the same.”5 To state a claim under either the
ADA or the RA, Furgess must allege that he is a qualified
individual with a disability, who was precluded from
participating in a program, service, or activity, or otherwise
was subject to discrimination, by reason of his disability.6
Furgess must also show intentional discrimination under a
deliberate indifference standard because he seeks
compensatory damages.7 The PDOC does not contest that
Furgess is a qualified individual with a disability. It only
cursorily defends the District Court’s holding that showers
are not programs, services, or activities. Its primary argument
on appeal is that Furgess was not denied a shower “by reason
of” his disability. Rather, according to the PDOC, he was
deprived of a shower because he was housed in the RHU,
which did not have accessible shower facilities.

        Our analysis proceeds in two parts. First, we address
whether the provision of showers is a program, service, or
activity under Title II and Section 504. Next, we turn to the




5
  McDonald v. Com. of Pa., Dep’t of Pub. Welfare Polk Ctr.,
62 F.3d 92, 95 (3d Cir. 1995).
6
  Chambers ex rel. Chambers v. Sch. Dist. Of Phila. Bd. Of
Educ., 587 F.3d 176, 189 n.19 (3d Cir. 2009).
7
  S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d
248, 263 (3d Cir. 2013).




                              6
PDOC’s central argument, that Furgess did not suffer the
deprivation of a shower due to his disability.8
   A. IS THE PROVISION OF A SHOWER A PROGRAM,
                    SERVICE OR ACTIVITY?

       The District Court dismissed Furgess’s complaint on
the ground that the PDOC’s alleged failure to accommodate
his disability did not preclude him from participating in a
program, service, or activity because showers are not a
program, service, or activity.       The District Court’s
conclusion, and the cases supporting it, are contrary both to
the statutory language of the RA and the ADA and to the
weight of case law.

       Looking first to the statutory language, Section 504 of
the RA defines a “program or activity” quite broadly to
include “all of the operations of” a state instrumentality.9 We
have confirmed these terms’ broad meaning, calling them
“all-encompassing.”10 The ADA does not define “services,
programs, or activities,” but both Congress and this Court
have recognized that Title II provides at least the same degree


8
   The PDOC does not contest that Furgess has exhausted his
administrative remedies, or that state prisons are subject to
the ADA and the RA. See 29 U.S.C. § 794(b)(1)(A) (any
“department, agency, special purpose district, or other
instrumentality of a State or local government” is subject to
the RA); Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S.
206, 210 (1998) (state prisons are subject to the ADA).
9
  29 U.S.C. § 794(b) (emphasis added).
10
    Yeskey v. Com. of Pa. Dep’t of Corr., 118 F.3d 168, 170
(3d Cir. 1997), aff’d sub nom. 524 U.S. 206 (1998).




                              7
of protection as Section 504.11 Thus, the phrase “service,
program, or activity” under Title II, like “program or activity”
under Section 504, is “extremely broad in scope and includes
anything a public entity does.”12 A prison’s provision of
showers to inmates fits within this expansive definition, as it
undoubtedly is something “a public entity does” and is one
“of the operations” of the prison.

       Indeed, Department of Justice guidance on Title II
regulations explicitly refers to a prison’s provision of hygiene
as being included under the statute’s purview.13 Specifically,
the DOJ explains that corrections systems are unique facilities
under Title II because inmates cannot leave, and thus prisons
must address the needs of inmates with disabilities by
providing “accessible toilet and shower facilities, devices
such as a bed transfer or a shower chair, and assistance with
hygiene methods for prisoners with physical disabilities.”14

      The weight of the case law also supports our
conclusion that the provision of a shower is a service,
program, or activity. First, in Jaros v. Illinois Department of
Corrections,15 the Seventh Circuit held that meals and

11
    The ADA should not be “construed to apply a lesser
standard than the standards applied under [the RA].” 42
U.S.C. § 12201(a); see also McDonald, 62 F.3d at 94-95.
12
    Disability Rights N.J., Inc. v. Comm’r, N.J. Dep’t of
Human Servs., 796 F.3d 293, 301 (3d Cir. 2015).
13
    We accord these regulations “controlling weight unless
[they are] arbitrary, capricious, or manifestly contrary to the
statute.” See Yeskey, 118 F.3d at 171.
14
   28 C.F.R. pt. 35, App. A, at 663 (2017).
15
   684 F.3d 667 (7th Cir. 2012).




                               8
showers made available to inmates are programs or activities
under Section 504.16 Second, in providing examples of what
constitutes a program or activity that prisons provide to
inmates, the Ninth Circuit listed “toilet[s] and bathing
facilities.”17 Third, the First Circuit reversed a district court’s
grant of summary judgment for a prison on the grounds that
an issue of material fact remained as to whether prison
officials prevented an inmate from using a showering chair,
implying that the provision of showers is a program, service,
or activity under Title II.18 Finally, in dictum, the Supreme
Court has stated that a prison’s refusal to accommodate
inmates’ disabilities “in such fundamentals as mobility,
hygiene, medical care, and virtually all other prison
programs” constitutes a denial of the benefits of a prison’s
services, programs, or activities under Title II.19

       The District Court, along with the three decisions from
the Western District of Pennsylvania it relied on, failed to
engage in any statutory or regulatory analysis in holding that
showers are not programs, services, or activities. Rather,
these decisions improperly relied on a Seventh Circuit case,
Bryant v. Madigan.20 In Bryant, an inmate claimed that a
prison violated the ADA when it (1) failed to install

16
   Id. at 672 (“Although incarceration is not a program or
activity, the meals and showers made available to inmates
are.”).
17
   Armstrong v. Schwarzenegger, 622 F.3d 1058, 1068 (9th
Cir. 2010).
18
   Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 287-88 (1st
Cir. 2006).
19
   United States v. Georgia, 546 U.S. 151, 157 (2006).
20
   84 F.3d 246 (7th Cir. 1996).




                                9
guardrails on his bed, and as a result, he fell out of bed and
broke his leg due to leg spasms caused by his paraplegia, and
(2) denied him pain medication for his broken leg.21 The
court characterized both allegations as ones of improper
medical treatment of his paraplegia and held that the inmate’s
claims failed because “[t]he ADA does not create a remedy
for medical malpractice” in prisons.22 The court went on to
explain that “incarceration, which requires the provision of a
place to sleep, is not a ‘program’ or ‘activity.’ Sleeping in
one’s cell is not a ‘program’ or ‘activity.’”23 Similarly, the
Western District of Pennsylvania cases characterize the
failure to provide an accessible shower as medical treatment
and conclude that showers are not programs, services, or
activities.24

        The problem with these cases’ analysis is that
complaints about not being provided an accessible shower are
not allegations of medical malpractice or disagreements about
medical treatment.      They are requests for reasonable

21
   Id. at 247-48.
22
   Id. at 249.
23
   Id.
24
   Thomas v. Pa. Dep’t of Corr., 615 F. Supp. 2d 411, 427
(W.D. Pa. 2009); see also Harris v. Giroux, No. CV 16-38,
2017 WL 3075099, at *9 (W.D. Pa. July 19, 2017) (holding
that plaintiff failed to state a claim because showers are not
programs or activities) (citing Thomas, 615 F. Supp. at 414);
Evans v. Rozum, No. CIV.A. 07-230J, 2008 WL 5068963, at
*9-10 (W.D. Pa. Nov. 24, 2008) (holding that being denied an
accessible shower does not state a claim as a matter of law
and stating “[s]imilarly here, showering, defecating, etc., is no
more a program or activity than is sleeping”).




                               10
accommodations so that inmates with disabilities can take a
shower—just like able-bodied inmates.           Tellingly, the
Seventh Circuit itself has not relied on Bryant when deciding
if showers constitute programs, services, or activities. As
noted above, the Seventh Circuit answered this question in
the affirmative in Jaros.

      We conclude that provision of showers is a part of the
programs, activities, or services referred to in the ADA and
the RA.
       B. DID FURGESS SUFFER DISCRIMINATION
                           BECAUSE OF
                         HIS DISABILITY?

       Next, we address the PDOC’s primary argument on
appeal—that Furgess has not alleged he suffered
discrimination “by reason of his disability.” The PDOC
contends that Furgess was deprived of a shower because his
own misconduct landed him in the RHU, which lacked
accessible shower facilities, not because the PDOC
intentionally discriminated against him on the basis of his
disability. It is not clear whether the PDOC’s argument goes
to causation, intent, or both, but either way, its argument is
unconvincing. Furgess’s complaint alleges both causation
and the requisite intent, deliberate indifference.




                             11
       As to causation, the sole cause of Furgess’s
deprivation of a shower was his disability.25 The PDOC’s
argument to the contrary fails because it conflates the alleged
discriminatory action—failure to accommodate by not
making the RHU showers handicapped-accessible—with the
causation element of Furgess’s claims. In other words, the
PDOC’s transfer of Furgess to the RHU cannot serve as a
superseding or intervening “cause” of the lack of a shower
that would defeat his claims.

       The PDOC tries to convince us that Furgess was in the
RHU because of a disciplinary infraction, and that but-for his
alleged misconduct, he would not be in the RHU and thus
deprived of a shower. But the reason why Furgess was
housed in the RHU is irrelevant. A prisoner’s misconduct
does not strip him of his right to reasonable accommodations,
and a prison’s obligation to comply with the ADA and the RA
does not disappear when inmates are placed in a segregated
housing unit, regardless of the reason for which they are
housed there. As the ADA’s regulations make clear, the
PDOC’s failure to equip the RHU with accessible showers




25
  Causation standards are different under the ADA and RA—
under the RA, the disability must be the sole cause of the
discriminatory action, while the ADA only requires but-for
causation. CG v. Pa. Dep’t of Educ., 734 F.3d 229, 236 n.11
(3d Cir. 2013). Based on the facts as alleged in the
complaint, Furgess has sufficiently alleged causation under
both standards.




                              12
does not excuse the prison from its duty to reasonably
accommodate prisoners with disabilities.26

       Furgess has also alleged intentional discrimination,
which, in this Circuit, may be satisfied by a showing of
deliberate indifference.27 Under this test, Furgess must allege
that (1) the PDOC had “knowledge that a federally protected
right is substantially likely to be violated,” (i.e. knowledge
that the failure to provide Furgess with an accessible shower
likely violated his right to reasonable accommodations of his
disability), and (2) the prison failed “to act despite that
knowledge.”28

      As to the first prong, there are multiple allegations that
the PDOC knew about Furgess’s need for an accessible
shower facility. First, at the time that Furgess was held in the

26
   28 C.F.R. § 35.152(b)(1) (“Public entities shall ensure that
qualified inmates or detainees with disabilities shall not,
because a facility is inaccessible to or unusable by
individuals with disabilities, be excluded from participation
in, or be denied the benefits of, the services, programs, or
activities of a public entity, or be subjected to discrimination
by any public entity.”) (emphasis added).
27
   S.H. ex rel. Durrell, 729 F.3d at 263 (“We now follow in
the footsteps of a majority of our sister courts and hold that a
showing of deliberate indifference may satisfy a claim for
compensatory damages under § 504 of the RA and § 202 of
the ADA.”). The PDOC acknowledges that this is the
standard to show intentional discrimination, but it discusses
discriminatory animus throughout its brief, only mentioning
deliberate indifference in a footnote.
28
   Id. at 265.




                              13
general prison population, he requested and was granted an
accessible shower stall. Second, after he was placed in the
RHU, he requested an accessible shower multiple times.
Third, the medical staff as well as the RHU Lieutenant and
the Superintendent knew that Furgess had not been able to
shower because the RHU showers were not handicapped-
accessible. It is clear from the above that the PDOC knew
that Furgess required a handicapped-accessible shower and
that by failing to provide him with one, his right to a
reasonable accommodation of his disability was likely to be
violated. The second prong, failure to act, is also adequately
pled. For three months, the PDOC did not provide him with
any accommodation that would allow him to shower; when
they did bring him to a shower, it was not handicapped-
accessible. We conclude that these allegations constitute
deliberate indifference.

       The PDOC cites Thomas v. Pennsylvania Department
of Corrections,29 in which the plaintiff claimed that the prison
violated the ADA by providing him with a replacement
prosthetic leg that was inferior to his old one.30 The district
court held that the replacement prosthetic was a reasonable
accommodation of his disability, and even if the prosthetic
was “inferior,” the prison’s provision of the prosthetic was
not “by reason of his disability” because the Department of




29
     615 F. Supp. 2d 411 (W.D. Pa. 2009).
30
     Id. at 423-24.




                               14
Corrections provides only one type of prosthesis.31 Thus,
Thomas was accommodated without discrimination, and we
find it distinguishable.

       For the above reasons, we hold that Furgess has
adequately alleged that he was denied a shower “by reason
of” his disability and that the PDOC was deliberately
indifferent in failing to provide him with a handicapped-
accessible shower.

                              IV.

       We vacate the District Court’s dismissal of Furgess’s
complaint and remand for further proceeding consistent with
this opinion.




31
   Id. at 425-26. The PDOC also cites Strongminger v. Brock,
which is an unpublished case from the Seventh Circuit; it
held, under a summary judgment standard, that the inmate’s
claim failed because the “prison’s actions rose at worst to the
level of negligence.” 592 F. App’x. 508, 511-12 (7th Cir.
2014). This case is distinguishable from Furgess’s case and,
at any rate, not binding on us.




                              15
