Robert Furgess, a disabled inmate, claims he went three months without a shower in the prison’s restricted housing unit.

A federal appeals court has sided with a disabled Pennsylvania inmate who claims he was forced to go without a shower for three months at the State Correctional Institution at Albion.

The 3rd U.S. Circuit Court of Appeals found in favor of the inmate, 50-year-old Robert Furgess. The precedent-setting decision overturned a ruling by then-U.S. Magistrate Judge Susan Paradise Baxter, who dismissed Furgess’ civil rights lawsuit in March 2018.

The appeals court agreed with Furgess that the Americans with Disabilities Act requires prisons to provide disabled inmates with access to appropriate shower facilities. The decision, filed Thursday, reinstated Furgess’ lawsuit against the Pennsylvania Department of Corrections and sent the case back to U.S. District Court in Erie for further proceedings.

Erie lawyer John Mizner, who represents Furgess in the lawsuit, said Friday that he had discussed the decision with Furgess, now incarcerated at the State Correctional Institution at Greene, in Waynesburg, Greene County. Furgess was in SCI Albion’s restricted housing unit, or RHU, when he was denied a shower, according to his lawsuit.

“Mr. Furgess is very pleased that the 3rd Circuit has established the precedent in his case that handicapped inmates in solitary confinement are entitled to showers that are handicap-accessible,” Mizner said. “He said hopefully what happened to him will not happen to another handicapped inmate.”

Furgess claimed in the lawsuit that he suffers from a neuromuscular disease that impairs his vision and requires him to wear leg braces to prevent him from falling.

Furgess is serving a life sentence for first-degree murder out of Philadelphia County. He requested unspecified damages in his lawsuit.

When he was placed in the prison’s RHU in December 2015, Furgess was unable to shower because the RHU did not have a handicap-accessible shower, according to the lawsuit. Despite his repeated requests for a shower, Furgess did not receive one until March 2016, he claimed in the suit.

He was then forced to use a shower that was not handicap-accessible, according to the complaint, and sit in an armless plastic chair in the shower stall instead of using a shower with safety bars. Furgess claims that when he tried to exit the shower, he fell headfirst into the steel shower door and suffered additional injuries.

The Department of Corrections argued that Furgess was denied access to a shower because his own actions landed him in the RHU. The department noted in its response to the complaint that Furgess was placed in the RHU for assaulting another inmate with a weapon.

A three-judge panel of the 3rd Circuit, based in Philadelphia, rejected that reasoning.

“The reason why Furgess was housed in the RHU is irrelevant,” the panel wrote in its 15-page opinion. “A prisoner’s misconduct does not strip him of his right to reasonable accommodations, and a prison’s obligation to comply with the ADA ... does not disappear when inmates are placed in a segregated housing unit.”

The case also caught the attention of the U.S. Department of Justice, which in August 2018 took the unusual step of intervening in the case and filing a brief in support of Furgess’ position.

The Department of Justice opposed Baxter’s decision to dismiss the case and asked the 3rd Circuit to reverse her ruling. Baxter has since been confirmed as a U.S. district judge in Erie.

In her written opinion, Baxter pointed to case law from within the Western District of Pennsylvania and ruled that Furgess had not made a sufficient claim that he was denied access to a “service, program or activity” under the ADA.

A spokeswoman for the Department of Corrections did not respond to a request for comment Friday afternoon.

A former spokeswoman for the department 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, the spokeswoman said previously.

Original Article by: Madeleine O’Neill can be reached at 870-1728 or by email. Follow her on Twitter.