T.

6/9/93

JUL 23 1993

XXXX
XXXX
XXXX

Re: Complaint Number XXXX

Dear Mr. XXXX:

This letter constitutes the Department of Justice's Letter

of Findings with reference to your complaint that the Oshkosh
Correctional Institution is discriminating against you on the
basis of your disability by refusing to provide you with "tens
pads" for your back.

The Department of Justice is the agency responsible for

investigating this complaint under title II of the Americans with
Disabilities Act of 1990 [ADA], which prohibits discrimination
against qualified individuals with disabilities on the basis of
disability by State and local government entities, such as
prisons.

We conducted a preliminary review of your complaint and

related correspondence and determined that you do not meet the
criteria for being considered a qualified individual with a
disability as defined by the Department of Justice's title II
regulation [copy enclosed]. Our regulation, at 35.104, defines
disability as "a physical or mental impairment that substantially
limits one or more of the major life activities of such -
individual; a record of such an impairment; or being regarded as
having such an impairment." Major life activities are defined,
also at 35.104, to include functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.

In your correspondence to us, you indicate that your

disability consists of "a buried disc" and possibly a pinched
nerve. Although we do not dispute your claim that you are in
serious pain, your disability does not appear to rise to the
cc: Records CRS Chrono Friedlander Milton.complnts. XXX.lof

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level of substantially limiting one or more major life

activities. You say that your disability makes it hard for you
to lift things. Lifting things, however, is not considered a
major life activity. Furthermore, while you say that your pain
is "at times" so acute that you can barely move, apparently at
other times this is not the case, and duration of an impairment
is one factor that may properly be considered in determining
whether the impairment substantially limits a major life
activity.

Only qualified individuals with disabilities are afforded

protection under title II of the ADA. We have determined that
you are not a qualified individual with a disability as defined
in the title II regulations. We are therefore closing our files
in regard to your complaint as of the date of this letter.

This letter constitutes our Letter of Findings with respect

to your allegations of discrimination in your administrative
complaint. If you are dissatisfied with our determination, you
may file a private complaint in the United States District Court
under title II of the ADA.

Please be advised that your right to file a complaint is

protected by Federal law. A State or local government may not
intimidate, threaten, coerce, or engage in other discriminatory
conduct against anyone who has either taken action or
participated in an action to secure rights protected by the ADA.
If at any time you feel you are being harassed or intimidated
because of your dealings with the Department of Justice, we urge
you to let us know immediately. This office will investigate
such a complaint if the situation warrants.

Under the Freedom of Information Act, it may be necessary to

release this document and related correspondence and records upon
request. In the event that we receive such a request, we will
seek to protect, to the extent provided by law, personal
information which, if released, could constitute an unwarranted
invasion of privacy.

Sincerely,

Stewart B. Oneglia
Chief
Coordination & Review section
Civil Rights Division

Enclosure

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