Preview
Date Filed 3/27/2024 3:52 PM
Superior Court - Suffolk
Docket Number
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
DOCKET NO.
RICHARD CROWELL,
Plaintiff,
Vv. ) kg
COMMONWEALTH OF MASSACHUSETTS,
Defendant
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
Plaintiff Richard Crowell (“Plaintiff,” or “Mr. Crowell”) is a prisoner held by the
Defendant, Commonwealth of Massachusetts (Defendant or Commonwealth), in its Department
of Correction (“DOC”) prison system. Plaintiff has a cognitive disability, a traumatic brain
injury (TBI) that appears to have been exacerbated by age. According to law enforcement, DOC,
and Massachusetts Parole Board (the “Parole Board”) records, he is currently between 79 to 83
years old (his dates of birth being variously reported as June or July, 1940, 1942, 1943, or 1944).
He was reported to have been 17 years old at the time of his arrest for felony murder first degree
murder (as a teenaged getaway driver for a 1962 pharmacy robbery gone lethally awry). Despite
a positive parole vote from the Massachusetts Parole Board (the Board) on July 27, 2023, he
remains imprisoned by the Defendant in the medium security DOC prison at Shirley,
Massachusetts (“MCI-Shirley”), because the Defendant does not have a suitable residential
program to accommodate his disability and allow him his freedom on parole. Meanwhile, he
remains in a single MCI-Shirley infirmary room, quartered with what was last reported to have
been four to five other infirm men. The Defendant’s failure, and its continuing imprisonment of
the Plaintiff under these circumstances, violates applicable state and federal laws, including G.L.
c. 127 §. 151, Title II of the Americans with Disabilities Act (42 U.S.C. §. 12101, ef seq.),
Section 504 of the Rehabilitation Act (29 U.S.C. § 794), Article 114 of the Massachusetts
Declaration of Rights, and G.L. c. 93, §103. Accordingly, Mr. Crowell seeks declaratory and
Date Filed 3/27/2024 3:52 PM
Superior Court - Suffolk
Docket Number
injunctive relief to end his imprisonment and to ensure meaningful access to his freedom as a
parolee, notwithstanding his disabilities.
PARTIES
Plaintiff Richard Crowell is 79 to 83 years of age.
Plaintiff is currently in DOC custody, incarcerated in the Health Services Unit (HSU)
block of MCI-Shirley, a medium security prison in Shirley, Massachusetts.
The Defendant is a body politic subject to suit as set forth herein.
FACTS
Mr. Crowell was originally convicted and sentenced to life imprisonment after entering a
guilty plea to second-degree murder for his role as a 17-year-old getaway driver in a 1962
robbery that resulted in a homicide, the shooting of a store clerk perpetrated by one of his
older co-defendants. The other participants in the robbery, including the shooter, have
already been released from custody.
In 1974, Mr. Crowell’s life sentence was commuted to a term of 36 years to life, after
which he was paroled on or about November 17, 1975.
Until 1987, Mr. Crowell lived and worked in the community while on parole.
In October 1987, Mr. Crowell was attacked, resulting in a traumatic brain injury,
including a fractured skull, nerve damage, and a contusion in the right temporal lobe of
his brain.
According to medical records in the Parole Board’s case files, Mr. Crowell was in
Massachusetts General Hospital (“MGH”) for over two months after the attack. Since that
time he has suffered from deficiencies in memory, speech, and cognition.
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Superior Court - Suffolk
Docket Number
9. After being released from MGH, Mr. Crowell lost his job due to his inability to remember
his job duties. The effects of his brain injury also exacerbated Mr. Crowell’s alcohol
abuse.
10. After extended rehabilitation from his severe brain injuries, Mr. Crowell was returned to
custody in 1989 and again in 1990. Mr. Crowell was subsequently denied parole review
hearings before the Board in 1991, 1994, and 1997.
11 In 2003, Mr. Crowell was again paroled on the condition that he complete a long-term
residential program and attend Alcoholics Anonymous meetings at least three times per
week. Less than one month later, Mr. Crowell was returned to DOC custody for his
reported failure to complete the residential program.
12 In August 2012, the Board held a review hearing to again determine whether to parole
Mr. Crowell. During the hearing, one of the Board members noted that the traumatic
brain injury had “caused cognitive functioning [and] emotional functioning deficits,”
resulting in uncooperative behavior that was “secondary to [the plaintiff's] brain injury.”
The board member stated that this was a chronic, life-long condition that “might get
worse ... [s]o [the plaintiff] would need to be in some sort of setting where [he] could be
managed and cooperate with people forever.” His request for parole was subsequently
denied. .
13 On April 2, 2014, Mr. Crowell filed a Complaint seeking certiorari review of the Board’s
decision to deny parole. After further proceedings, the trial judge dismissed Mr.
Crowell’s Complaint. In reversing the Superior Court’s dismissal of the Complaint, in
2017, the Supreme Judicial Court held that the Board “may not categorically exclude any
prisoner [from parole] by reason of his or her disability,” and that “[w]here the Board is
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Docket Number
aware that a mental disability may affect a prisoner’s ability to prepare an appropriate
release plan in advance of a parole hearing, the board should make reasonable
modifications to its policy.” Crowell, 477 Mass. at 112-113.
14. In 2018, in advance of a new parole hearing, an expert neuropsychologist, Carol
Montgomery, evaluated Mr. Crowell. In her report, a copy of which was provided to the
Parole Board, she noted that Mr. Crowell experienced confusion, agitation, frustration,
and perseveration due to his traumatic brain injury. Dr. Montgomery also noted Mr.
Crowell’s struggles with information processing, working memory, expressive
organization, executive functioning and reasoning.
15 In a report of a 2019 CT scan performed by the DOC at its Shattuck hospital facility, Mr.
Crowell’s brain showed dramatic signs of organic deterioration, including
encephalomalacia, a term describing a part of the brain that is missing due to
liquification, having been liquified in a process known as liquefactive necrosis. The same
CT scan report showed that what remained of Mr. Crowell’s brain was shrinking
(cerebral atrophy).
16. Mr. Crowell subsequently received a positive parole vote on June 29, 2020, conditioned
on his living at the Farren Care Center, a skilled nursing facility in Turners Falls,
Massachusetts that served people with medical and behavioral health needs.
17 Mr. Crowell’s placement at the Farren Care Center was secured by the Board.
18 The Board had a contract at that time with the Farren Care Center, to accept as residents
people referred there by the Board.
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19. As of November 2020, staff at the Farren Care Center reported to Mr. Crowell’s parole
officer that he was medication and treatment compliant, and that he was engaging in
mental health treatment and did not present any behavioral concerns.
20. Mr. Crowell’s parole officer visited him at the Farren Care Center weekly during the six
months in which he resided there. Seventeen of the nineteen parole officer’s case notes
report that Mr. Crowell was compliant with treatment with no issues to report, and
fourteen notes explicitly stated that Mr. Crowell was “medication compliant.”
21 In the fall of 2020, Farren Care Center’s owner announced that the center would close at
year’s end, and its residents would be moved to another facility, then known as Mount
Saint Vincent, in Holyoke.
22 Mr. Crowell became increasingly agitated during this time, as word of the impending
closure spread among staff and residents.
23 During this period, the ownership of Mount Saint Vincent was changing, and it was not
certain that the facility had room to accept all residents from Farren Care Center.
24. In December 2020, Farren Care Center called the police and alleged that Mr. Crowell had
a disposable razor in his room, was told to give it up, declined to do so and became
agitated and confused, packing his bags and talking about going on a trip. The razor was
taken from Mr. Crowell, who reportedly was clenching his other hand and refusing to
open it to show what he was holding. It was ultimately found that he was holding nothing
in this hand, illustrating his confused state.
25 Following this incident, Farren Care Center refused to take Mr. Crowell back as a
resident, leaving him in violation of the parole condition that he be housed there. Mr.
Crowell was returned to DOC custody.
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26. Since that time, he has been imprisoned at MCI-Shirley.
27 In February 2023, a DOC prison classification report noted that Mr. Crowell was “not
viewed as a management issue or problem.” The same classification report indicated that
Mr. Crowell was “was removed from population due to medical issues (cognitive
decline).”
28 Because of his disabilities, Mr. Crowell experiences periods of daily confusion about his
circumstances and surroundings.
29. On May 16, 2023, Mr. Crowell appeared before the Board for a parole hearing. On July
27, 2023, the Board voted to grant Mr. Crowell parole, conditional on his placement in an
“approved residential care” facility.
30. It has been over 250 days since he was approved for paroled release, but Mr. Crowell
remains in prison. Programs in which placements have been sought include the
Defendant’s State Head Injury Program (SHIP) and the Defendant’s Tewksbury State
Hospital (TSH), a state residential facility of last resort, consistent with G. L. c. 122, §§1,
12, and 14, G. L. c. 127 § 151, and TSH’s own website description as a public facility for
residents with “Behavioral Challenges,” and “Department of Corrections (sic)
backgrounds.”
31 According to the Parole Board’s records, Mr. Crowell was housed for a time at TSH in
1988 while homeless.
32 SHIP has been noncommittal and unresponsive to recent inquiries on behalf of Mr.
Crowell. TSH rejected Mr. Crowell, citing a concern that because of his particular
disability, he might be vulnerable to assault by other residents with a DOC background.
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Docket Number
33. The Defendant cannot lawfully continue to indefinitely imprison Mr. Crowell because of
its refusal to reasonably accommodate his disability so that he can be released on parole.
Prison is not, nor should it constitute, “approved residential care” for an elderly person
with a disability like Mr. Crowell.
COUNT I
DISABILITY DISCRIMINATION IN VIOLATION OF THE AMERICANS WITH
DISABILITIES ACT, 42 U.S.C. §12132
34. The Board is a public entity, as defined in Title II of the ADA. 42 U.S.C.A. §12131(1).
35. The Defendant, and its relevant agencies such as TSH (under the Defendant’s Department
of Public Health) and SHIP, is a public entity, as defined in Title II of the ADA. 42
US.C.A. §12131(1).
36. Mr. Crowell is a qualified individual with a disability, as defined in 42 U.S.C § 12102(1)
and 42 U.S.C. § 12131(2).
37. By failing to adequately fund or otherwise resource its programs for disabled persons to
allow for Mr. Crowell’s release from prison to a residential placement, the Defendant is
unlawfully excluding Mr. Crowell from accessing “the most integrated setting appropriate
to [his] needs,” in violation of the ADA, as he remains incarcerated despite his approval
for parole. 28 C.F.R. § 35.130(d). See also Olmstead v. L.C. ex re. Zimring, 527 U.S. 581
(1999).
COUNT I
DISABILITY DISCRIMINATION IN VIOLATION OF SECTION 504 OF THE
REHABILITATION ACT 29 U.S.C. § 794
38. Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, states that “no
qualified individual with a disability in the United States shall be excluded from, denied
Date Filed 3/27/2024 3:52 PM
Superior Court - Suffolk
Docket Number
the benefits of, or be subjected to discrimination under” any program or activity that
receives federal financial assistance.
39. The Defendant’s agencies and programs, including those described above, engage in
operations and constitute programs or activities within the meaning of 29 U.S.C. §
794(b).
40. On information and belief, the Defendant receives federal financial assistance within the
meaning of 29 U.S.C. § 794(a).
41 By failing to accommodate Mr. Crowell to allow his disability to be reasonably
accommodated so that he could be released from his continued imprisonment, the
Defendant is denying him the benefits of parole (e.g., release from continued
imprisonment), in violation of Section 504 of the Rehabilitation Act.
42 The Defendant is also failing to meet its obligation under Section 504 to administer its
programs and services in such a way that individuals with cognitive disabilities like Mr.
Crowell’s will have the opportunity to receive services in the most integrated setting
appropriate to their needs.
43 The Defendant is failing to meet its obligation under Section 504 to administer its
programs and services in such a way that individuals with cognitive disabilities like Mr.
Crowell’s will have the opportunity to receive services in the most integrated setting
appropriate to their needs. In this case, that simply means providing a means other than
imprisonment in an overcrowded state prison infirmary to house and care for Mr.
Crowell.
Date Filed 3/27/2024 3:52 PM
Superior Court - Suffolk
Docket Number
44. Asa result of the Defendant’s unlawful discrimination, Mr. Crowell continues to be
incarcerated in a state prison rather than being released to a more integrated, less
segregated, setting.
COUNT II
DISABILITY DISCRIMINATION IN VIOLATION G. L. c. 93 § 103
45. By discriminating against and failing to accommodate Mr. Crowell with respect to his
parole release conditions, and by failing to facilitate Mr. Crowell’s transfer from state
prison to the most integrated setting appropriate to his needs, as set forth above, the
Defendant has prevented Mr. Crowell from receiving the full and equal benefit of the
laws and proceedings for the security of people, in violation of G. L. c. 93, § 103.
COUNT IV
DISABILITY DISCRIMINATION IN VIOLATION OF ARTICLE 114 OF THE
MASSACHUSETTS DECLARATION OF RIGHTS
46. By discriminating against and failing to accommodate Mr. Crowell with respect to his
parole release conditions, and by failing to facilitate Mr. Crowell’s transfer from a state
prison to the most integrated setting appropriate to his needs, as set forth in detail above,
Defendant unlawfully discriminates against Mr. Crowell and denies him the benefits of
parole, in violation of Article 114 of the Massachusetts Declaration of Rights and
Constitution.
PRAYERS FOR RELIEF
WHEREFORE, Plaintiff Richard Crowell respectfully asks that this Court:
1 Declare that the Defendant’s failure to accommodate Mr. Crowell with respect to his
release plan, including its failure to develop a release plan to a residential care facility
that it will approve, violates Title II of the ADA; Section 504 of the Rehabilitation Act;
Date Filed 3/27/2024 3:52 PM
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Docket Number
Section 103 of the Massachusetts Equal Rights Act, G.L. c. 93; and Article 114 of the
Massachusetts Declaration of Rights.
Declare that, by excluding Mr. Crowell from a residential care facility and leaving him in
prison despite his approval for parole, the Defendant is unlawfully excluding Mr. Crowell
from accessing “the most integrated setting appropriate to [his] needs,” in violation of
Title II of the ADA; Section 504 of the Rehabilitation Act; Section 103 of the
Massachusetts Equal Rights Act, G.L. c. 93; and Article 114 of the Massachusetts
Declaration of Rights and Constitution.
Declare that the Defendant’s failure to admit Mr. Crowell to TSH without further delay
violates G. L. c. 127 § 151.
Issue an injunction ordering the Defendant to cease discriminating against Mr. Crowell
and to follow the aforementioned laws, by ensuring that Mr. Crowell has a viable release
plan, including providing him with all deliberate speed with a placement in a residential
care facility that will meet the conditions imposed by the Board to allow for his release
from prison.
Award such other and further relief as the Court may deem just and proper.
Respectfully Submitted,
Richard Crowell,
By his attorney,
LP
John Pttzpatrick, BBO# 550059
Senior Clinical Instructor and Supervising Attorney
Harvard Prison Legal Assistance Project
Harvard Law School
6 Everett Street, Suite 5107
Cambridge, MA 02138
Phone: 617-495-3969
Dated: March 27, 2024 Email: jfitzpat@law.harvard.edu
10
Preview
Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT DOCKET NO. RICHARD CROWELL, Plaintiff, Vv. ) kg COMMONWEALTH OF MASSACHUSETTS, Defendant COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION Plaintiff Richard Crowell (“Plaintiff,” or “Mr. Crowell”) is a prisoner held by the Defendant, Commonwealth of Massachusetts (Defendant or Commonwealth), in its Department of Correction (“DOC”) prison system. Plaintiff has a cognitive disability, a traumatic brain injury (TBI) that appears to have been exacerbated by age. According to law enforcement, DOC, and Massachusetts Parole Board (the “Parole Board”) records, he is currently between 79 to 83 years old (his dates of birth being variously reported as June or July, 1940, 1942, 1943, or 1944). He was reported to have been 17 years old at the time of his arrest for felony murder first degree murder (as a teenaged getaway driver for a 1962 pharmacy robbery gone lethally awry). Despite a positive parole vote from the Massachusetts Parole Board (the Board) on July 27, 2023, he remains imprisoned by the Defendant in the medium security DOC prison at Shirley, Massachusetts (“MCI-Shirley”), because the Defendant does not have a suitable residential program to accommodate his disability and allow him his freedom on parole. Meanwhile, he remains in a single MCI-Shirley infirmary room, quartered with what was last reported to have been four to five other infirm men. The Defendant’s failure, and its continuing imprisonment of the Plaintiff under these circumstances, violates applicable state and federal laws, including G.L. c. 127 §. 151, Title II of the Americans with Disabilities Act (42 U.S.C. §. 12101, ef seq.), Section 504 of the Rehabilitation Act (29 U.S.C. § 794), Article 114 of the Massachusetts Declaration of Rights, and G.L. c. 93, §103. Accordingly, Mr. Crowell seeks declaratory and Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number injunctive relief to end his imprisonment and to ensure meaningful access to his freedom as a parolee, notwithstanding his disabilities. PARTIES Plaintiff Richard Crowell is 79 to 83 years of age. Plaintiff is currently in DOC custody, incarcerated in the Health Services Unit (HSU) block of MCI-Shirley, a medium security prison in Shirley, Massachusetts. The Defendant is a body politic subject to suit as set forth herein. FACTS Mr. Crowell was originally convicted and sentenced to life imprisonment after entering a guilty plea to second-degree murder for his role as a 17-year-old getaway driver in a 1962 robbery that resulted in a homicide, the shooting of a store clerk perpetrated by one of his older co-defendants. The other participants in the robbery, including the shooter, have already been released from custody. In 1974, Mr. Crowell’s life sentence was commuted to a term of 36 years to life, after which he was paroled on or about November 17, 1975. Until 1987, Mr. Crowell lived and worked in the community while on parole. In October 1987, Mr. Crowell was attacked, resulting in a traumatic brain injury, including a fractured skull, nerve damage, and a contusion in the right temporal lobe of his brain. According to medical records in the Parole Board’s case files, Mr. Crowell was in Massachusetts General Hospital (“MGH”) for over two months after the attack. Since that time he has suffered from deficiencies in memory, speech, and cognition. Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number 9. After being released from MGH, Mr. Crowell lost his job due to his inability to remember his job duties. The effects of his brain injury also exacerbated Mr. Crowell’s alcohol abuse. 10. After extended rehabilitation from his severe brain injuries, Mr. Crowell was returned to custody in 1989 and again in 1990. Mr. Crowell was subsequently denied parole review hearings before the Board in 1991, 1994, and 1997. 11 In 2003, Mr. Crowell was again paroled on the condition that he complete a long-term residential program and attend Alcoholics Anonymous meetings at least three times per week. Less than one month later, Mr. Crowell was returned to DOC custody for his reported failure to complete the residential program. 12 In August 2012, the Board held a review hearing to again determine whether to parole Mr. Crowell. During the hearing, one of the Board members noted that the traumatic brain injury had “caused cognitive functioning [and] emotional functioning deficits,” resulting in uncooperative behavior that was “secondary to [the plaintiff's] brain injury.” The board member stated that this was a chronic, life-long condition that “might get worse ... [s]o [the plaintiff] would need to be in some sort of setting where [he] could be managed and cooperate with people forever.” His request for parole was subsequently denied. . 13 On April 2, 2014, Mr. Crowell filed a Complaint seeking certiorari review of the Board’s decision to deny parole. After further proceedings, the trial judge dismissed Mr. Crowell’s Complaint. In reversing the Superior Court’s dismissal of the Complaint, in 2017, the Supreme Judicial Court held that the Board “may not categorically exclude any prisoner [from parole] by reason of his or her disability,” and that “[w]here the Board is Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number aware that a mental disability may affect a prisoner’s ability to prepare an appropriate release plan in advance of a parole hearing, the board should make reasonable modifications to its policy.” Crowell, 477 Mass. at 112-113. 14. In 2018, in advance of a new parole hearing, an expert neuropsychologist, Carol Montgomery, evaluated Mr. Crowell. In her report, a copy of which was provided to the Parole Board, she noted that Mr. Crowell experienced confusion, agitation, frustration, and perseveration due to his traumatic brain injury. Dr. Montgomery also noted Mr. Crowell’s struggles with information processing, working memory, expressive organization, executive functioning and reasoning. 15 In a report of a 2019 CT scan performed by the DOC at its Shattuck hospital facility, Mr. Crowell’s brain showed dramatic signs of organic deterioration, including encephalomalacia, a term describing a part of the brain that is missing due to liquification, having been liquified in a process known as liquefactive necrosis. The same CT scan report showed that what remained of Mr. Crowell’s brain was shrinking (cerebral atrophy). 16. Mr. Crowell subsequently received a positive parole vote on June 29, 2020, conditioned on his living at the Farren Care Center, a skilled nursing facility in Turners Falls, Massachusetts that served people with medical and behavioral health needs. 17 Mr. Crowell’s placement at the Farren Care Center was secured by the Board. 18 The Board had a contract at that time with the Farren Care Center, to accept as residents people referred there by the Board. Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number 19. As of November 2020, staff at the Farren Care Center reported to Mr. Crowell’s parole officer that he was medication and treatment compliant, and that he was engaging in mental health treatment and did not present any behavioral concerns. 20. Mr. Crowell’s parole officer visited him at the Farren Care Center weekly during the six months in which he resided there. Seventeen of the nineteen parole officer’s case notes report that Mr. Crowell was compliant with treatment with no issues to report, and fourteen notes explicitly stated that Mr. Crowell was “medication compliant.” 21 In the fall of 2020, Farren Care Center’s owner announced that the center would close at year’s end, and its residents would be moved to another facility, then known as Mount Saint Vincent, in Holyoke. 22 Mr. Crowell became increasingly agitated during this time, as word of the impending closure spread among staff and residents. 23 During this period, the ownership of Mount Saint Vincent was changing, and it was not certain that the facility had room to accept all residents from Farren Care Center. 24. In December 2020, Farren Care Center called the police and alleged that Mr. Crowell had a disposable razor in his room, was told to give it up, declined to do so and became agitated and confused, packing his bags and talking about going on a trip. The razor was taken from Mr. Crowell, who reportedly was clenching his other hand and refusing to open it to show what he was holding. It was ultimately found that he was holding nothing in this hand, illustrating his confused state. 25 Following this incident, Farren Care Center refused to take Mr. Crowell back as a resident, leaving him in violation of the parole condition that he be housed there. Mr. Crowell was returned to DOC custody. Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number 26. Since that time, he has been imprisoned at MCI-Shirley. 27 In February 2023, a DOC prison classification report noted that Mr. Crowell was “not viewed as a management issue or problem.” The same classification report indicated that Mr. Crowell was “was removed from population due to medical issues (cognitive decline).” 28 Because of his disabilities, Mr. Crowell experiences periods of daily confusion about his circumstances and surroundings. 29. On May 16, 2023, Mr. Crowell appeared before the Board for a parole hearing. On July 27, 2023, the Board voted to grant Mr. Crowell parole, conditional on his placement in an “approved residential care” facility. 30. It has been over 250 days since he was approved for paroled release, but Mr. Crowell remains in prison. Programs in which placements have been sought include the Defendant’s State Head Injury Program (SHIP) and the Defendant’s Tewksbury State Hospital (TSH), a state residential facility of last resort, consistent with G. L. c. 122, §§1, 12, and 14, G. L. c. 127 § 151, and TSH’s own website description as a public facility for residents with “Behavioral Challenges,” and “Department of Corrections (sic) backgrounds.” 31 According to the Parole Board’s records, Mr. Crowell was housed for a time at TSH in 1988 while homeless. 32 SHIP has been noncommittal and unresponsive to recent inquiries on behalf of Mr. Crowell. TSH rejected Mr. Crowell, citing a concern that because of his particular disability, he might be vulnerable to assault by other residents with a DOC background. Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number 33. The Defendant cannot lawfully continue to indefinitely imprison Mr. Crowell because of its refusal to reasonably accommodate his disability so that he can be released on parole. Prison is not, nor should it constitute, “approved residential care” for an elderly person with a disability like Mr. Crowell. COUNT I DISABILITY DISCRIMINATION IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. §12132 34. The Board is a public entity, as defined in Title II of the ADA. 42 U.S.C.A. §12131(1). 35. The Defendant, and its relevant agencies such as TSH (under the Defendant’s Department of Public Health) and SHIP, is a public entity, as defined in Title II of the ADA. 42 US.C.A. §12131(1). 36. Mr. Crowell is a qualified individual with a disability, as defined in 42 U.S.C § 12102(1) and 42 U.S.C. § 12131(2). 37. By failing to adequately fund or otherwise resource its programs for disabled persons to allow for Mr. Crowell’s release from prison to a residential placement, the Defendant is unlawfully excluding Mr. Crowell from accessing “the most integrated setting appropriate to [his] needs,” in violation of the ADA, as he remains incarcerated despite his approval for parole. 28 C.F.R. § 35.130(d). See also Olmstead v. L.C. ex re. Zimring, 527 U.S. 581 (1999). COUNT I DISABILITY DISCRIMINATION IN VIOLATION OF SECTION 504 OF THE REHABILITATION ACT 29 U.S.C. § 794 38. Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, states that “no qualified individual with a disability in the United States shall be excluded from, denied Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number the benefits of, or be subjected to discrimination under” any program or activity that receives federal financial assistance. 39. The Defendant’s agencies and programs, including those described above, engage in operations and constitute programs or activities within the meaning of 29 U.S.C. § 794(b). 40. On information and belief, the Defendant receives federal financial assistance within the meaning of 29 U.S.C. § 794(a). 41 By failing to accommodate Mr. Crowell to allow his disability to be reasonably accommodated so that he could be released from his continued imprisonment, the Defendant is denying him the benefits of parole (e.g., release from continued imprisonment), in violation of Section 504 of the Rehabilitation Act. 42 The Defendant is also failing to meet its obligation under Section 504 to administer its programs and services in such a way that individuals with cognitive disabilities like Mr. Crowell’s will have the opportunity to receive services in the most integrated setting appropriate to their needs. 43 The Defendant is failing to meet its obligation under Section 504 to administer its programs and services in such a way that individuals with cognitive disabilities like Mr. Crowell’s will have the opportunity to receive services in the most integrated setting appropriate to their needs. In this case, that simply means providing a means other than imprisonment in an overcrowded state prison infirmary to house and care for Mr. Crowell. Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number 44. Asa result of the Defendant’s unlawful discrimination, Mr. Crowell continues to be incarcerated in a state prison rather than being released to a more integrated, less segregated, setting. COUNT II DISABILITY DISCRIMINATION IN VIOLATION G. L. c. 93 § 103 45. By discriminating against and failing to accommodate Mr. Crowell with respect to his parole release conditions, and by failing to facilitate Mr. Crowell’s transfer from state prison to the most integrated setting appropriate to his needs, as set forth above, the Defendant has prevented Mr. Crowell from receiving the full and equal benefit of the laws and proceedings for the security of people, in violation of G. L. c. 93, § 103. COUNT IV DISABILITY DISCRIMINATION IN VIOLATION OF ARTICLE 114 OF THE MASSACHUSETTS DECLARATION OF RIGHTS 46. By discriminating against and failing to accommodate Mr. Crowell with respect to his parole release conditions, and by failing to facilitate Mr. Crowell’s transfer from a state prison to the most integrated setting appropriate to his needs, as set forth in detail above, Defendant unlawfully discriminates against Mr. Crowell and denies him the benefits of parole, in violation of Article 114 of the Massachusetts Declaration of Rights and Constitution. PRAYERS FOR RELIEF WHEREFORE, Plaintiff Richard Crowell respectfully asks that this Court: 1 Declare that the Defendant’s failure to accommodate Mr. Crowell with respect to his release plan, including its failure to develop a release plan to a residential care facility that it will approve, violates Title II of the ADA; Section 504 of the Rehabilitation Act; Date Filed 3/27/2024 3:52 PM Superior Court - Suffolk Docket Number Section 103 of the Massachusetts Equal Rights Act, G.L. c. 93; and Article 114 of the Massachusetts Declaration of Rights. Declare that, by excluding Mr. Crowell from a residential care facility and leaving him in prison despite his approval for parole, the Defendant is unlawfully excluding Mr. Crowell from accessing “the most integrated setting appropriate to [his] needs,” in violation of Title II of the ADA; Section 504 of the Rehabilitation Act; Section 103 of the Massachusetts Equal Rights Act, G.L. c. 93; and Article 114 of the Massachusetts Declaration of Rights and Constitution. Declare that the Defendant’s failure to admit Mr. Crowell to TSH without further delay violates G. L. c. 127 § 151. Issue an injunction ordering the Defendant to cease discriminating against Mr. Crowell and to follow the aforementioned laws, by ensuring that Mr. Crowell has a viable release plan, including providing him with all deliberate speed with a placement in a residential care facility that will meet the conditions imposed by the Board to allow for his release from prison. Award such other and further relief as the Court may deem just and proper. Respectfully Submitted, Richard Crowell, By his attorney, LP John Pttzpatrick, BBO# 550059 Senior Clinical Instructor and Supervising Attorney Harvard Prison Legal Assistance Project Harvard Law School 6 Everett Street, Suite 5107 Cambridge, MA 02138 Phone: 617-495-3969 Dated: March 27, 2024 Email: jfitzpat@law.harvard.edu 10