Petition for Writ of Certiorari — Pennsylvania Dept. of Corrections v. Yeskey

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No.9% 68 4 OCT - 8 1997

PRICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1997

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS; JOSEPH D. LEHMAN;

JEFFREY A. BEARD, Ph.D.; JEFFREY K. DITTYy:

DOES NUMBER 1 THROUGH 20 INCLUSIVE,

Petitioners,

V.

RONALD R.YESKEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PAUL A. TUFANO

General Counsel

Commonwealth of Pennsylvania

(Counsel of Record)

SYNDI L. GUIDO

Deputy General Counsel

ALISON TAYLOR.

SUZANNE N. HUESTON

Assistants General Counsel

333 Market Street, 17th Floor

Harrisburg, PA 17101

Telephone: (717) 783-6563

Counsel for Petitioners

Dated: October 8, 1997

LY TE TS

PACKARD PRESS® / APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000

QUESTION PRESENTED

Does the Americans with Disabilities Act apply to

inmates in state prisons?

LIST OF PARTIES

Respondent, Ronald R. Yeskey, filed this action against

the Commonwealth of Pennsylvania, Department of Correc-

tions; Joseph D. Lehman, in his former capacity as Secretary

of the Department; Jeffrey A. Beard, in his former capacity as

the Superintendent at the State Correctional Institution at

Camp Hill; and Jeffrey K. Ditty, in his capacity as Director of

the Central Diagnostic and Classification Center at the State

Correctional Institution at Camp Hill.

Joseph D. Lehman has been succeeded by Martin F.

Horn. The current Superintendent at the State Correctional

Institution at Camp Hill is Kenneth Kyler.

ii

TABLE OF CONTENTS

Page

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py F Se by) 0 iy) |. iv

eer k cece seb decesccecescesces 2

STATEMENT OF JURISDICTION .................. 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..... 0... cece eeccce 2

-yyoyy i yale Jy) | fe! \ | Si 3

REASONS FOR GRANTING THE WRIT........... 4

A. There is a fundamental disagreement between the

circuit courts of appeals about whether Congress

intended the ADA to apply to state prisoners ..... 6

B. Whether Congress has the power to dictate how

states will manage their disabled prisoners presents a

fundamental question that must be addressed by this

Te eee ceesebecccesessccccecceces 10

ee cksseeccccccessccceces eneeées 13

APPENDIX

Yeskey v. Pennsylvania Dep't of Corrections, 118 F.3d 168

eee cence ee cencsesccecyee la

Yeskey v. Pennsylvania Dep't of Corrections, No.

1:CV-95-2125 (M.D.Pa. filed Apr. 9, 1996) ......... l4a

ee eee ed ce ccccecccsccccccccce 21a

enc c cect eseccccececccces 2la

ccc cc ccceséccceccecess 2la

EEE OPTI TTTTTETTTT TS 22a

TABLE OF AUTHORITIES

Cases: Page

Amos v. Maryland Dep’t of Pub. Safety and Correctional

Services, No. 96-7091, 1997 WL 581652 (4th Cir.

BOUR, Te, GIS wed ccntcosccencetcvecssesenees passim

Armstrong v. Wilson, No. 96-16870, 1997 WL 525521 (9th

Ss A Be SED pr ecdcvivcccccccccetseRiasesee 4

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985)... 7

Bell v. Wolfish, 441 U.S. 520 (1979) ...... 26.60.00 ccuee 8

City of Boerne v. Flores, 117 $.Ct. 2157 (1997) ......... 11

City of Cleburne v. Cleburne Living Ctr, 473 U.S. 432

Go boccbscdeccccssescnsedecnebnoneneboueses 12

Clark v. California, No. 96-16952, 1997 WL 525518 (9th

Ge GE Be BE ed vncvccecesonseceantcessanse 5

Crawford v. Indiana Dep't of Corrections, 115 F.3d 481

| RR re ne 4,6

Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) .......... 4,6

Edward J. DeBartolo Corp. v. Florida Gulf Coasts Bldg.

and Constr. Trades Council, 485 U.S. 568 (1988).... 10

EEOC v. Wyoming, 460 U.S. 226 (1983)............... 10

Girouard v. United States, 328 U.S. 61 (1946)........... 9

Gregory v. Ashcroft, 501 U.S. 452 (1991)............ passim

Katzenbach v. Morgan, 384 U.S. 641 (1966)............ 12

Lewis v. Casey, 116 S.Ct. 2174 (1996) ................. 4

Oregon v. Mitchell, 400 U.S. 112 (1970) ............... 12

Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89

Se ssedecaséscolensécbandsudnasseadansessen 7

Preiser v. Rodriguez, 411 U.S. 475 (1973)............... 78

Printz v. United States, 117 S.Ct. 2365 (1997)........... 11

iv

—_—

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Procunier v. Martinez, 416 U.S. 396 (1974)............. 78

Rhodes v. Chapman, 452 U.S. 337 (1981)............5.. 8

Sandin v. Conner, 515 U.S. 472 (1995)... ....... 000000 4

Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert.

denied, 116 S.Ct. 772 (1996) .... 2.6.66. cece eens passim

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............ 8

Turner v. Safley, 482 U.S. 78 (1987) ... 2.6... c cece eens 48

United States v. Bass, 404 U.S. 336 (1971)...........4.. 7

United States v. Lopez, 514 U.S. 549 (1995) ............ 7

White v. Colorado, 82 F.3d 364 (10th Cir. 1996)......... 5

Will v. Michigan Dep't of State Police, 491 US. 58

Podedhnedcanccsedscuesascdsesesncnsaneein 7

Yeskey v. Pennsylvania Dep't of Corrections, 118 F.3d 168

SD ccucanuuheds céseunetetdsancneds passim

CONSTITUTIONAL AND STATUTORY

AUTHORITIES

es concccscusececceveepuseses 2,10

CR GE, GIS Fe OB vccccccccccccccccccccees 2

CR, GI, GNI, FIG OS cc cccccccccccccccesccces 2

I 6s ccc nesceseuetsecucesuses 2

oS Er 3

ee I R cvcccccepecscvccdscncencns 3,6,11

ey ED cv nccddcnceccubcceudéinnceoss 2,6

Pa. Stat. Ann. tit. 61, § 1123 (West Supp. 1997)......... 3

Pa. Stat. Ann. tit. 61, § 1126 (West Supp. 1997) ......... 3

TABLE OF AUTHORITIES — (Continued)

Constitutional and Statutory Authorities:

Pa. Stat. Ann. tit. 61, § 1126(d) (West Supp. 1997)......

Pa. Stat. Ann. tit. 61, § 1127 (West Supp. 1997).........

OTHER AUTHORITIES

Py ee Is Check cence pcccccucscceccess

FEL Ee PORE POE

Daniel O. Conkle, The Religious Freedom Restoration

Act: The Constitutional Significance of an Unconsti-

tutional Statute, 56 MONT. L. REV. 39 (1995).......

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS; JOSEPH D. LEHMAN;

JEFFREY A. BEARD, Ph.D.; JEFFREY K. DITTY;

DOES NUMBER 1 THROUGH 20 INCLUSIVE,

Petitioners,

V.

RONALD R.YESKEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Third Circuit, which reversed an

order of the United States District Court for the Middle

District of Pennsylvania dismissing this action pursuant to

FED. R. CIv. P. 12(b)(6) for failure to state a claim.

2

OPINIONS BELOW

The opinion and order of the United States Court of

Appeals for the Third Circuit is reported at 118 F.3d 168 (3d

Cir. 1997) and is reprinted in Appendix la. The opinion and

order of the United States District Court for the Middle Dis-

trict of Pennsylvania are not reported but are reprinted in

Appendix 14a.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Third Circuit was filed on July 10, 1997, and this petition

for writ of certiorari has been filed within ninety days of that

date. This Court has jurisdiction to review the decision of the

Third Circuit pursuant to 28 U.S.C. § 1254(1) (1997).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Tenth Amendment to the Constitution of the United

States provides, “The powers not delegated to the United

States by the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the people.” U.S.

CONST. amend. X

The Fourteenth Amendment to the Constitution of the

United States provides that “[n]o state shall ... deny to any

person within its jurisdiction the equal protection of the laws.”

U.S. CONST. amend. XIV, § 1. Further, “[t]he Congress shall

have power to enforce, by appropriate legislation, the provi-

sions of this article.” Jd. § 5.

Title II of the Americans with Disabilities Act, 42 U.S.C.

§ 12132 provides, in pertinent part:

[N]Jo qualified individual with a disability shall, by

reason of such disability, be excluded from participa-

tion in or be denied the benefits of the services, pro-

grams, or activities of a public entity, or be subjected

to discrimination by any such entity.

3

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a)

provides, in pertinent part:

No otherwise qualified individual with a disability in

the United States . . . shall, solely by reason of her or

his disability, be excluded from the participation in,

be denied the benefits of, or be subjected to dis-

crimination under any program or activity receiving

Federal financial assistance or under any program or

activity conducted by any Executive agency|.]

STATEMENT OF THE CASE

Respondent Ronald R.Yeskey was a Pennsylvania pris-

oner declared medically ineligible for admission to a motiva-

tional boot camp! because cf his history of hypertension,

despite the sentencing judge’s recommendation. In December

1994, Yeskey filed suit in district court, alleging that the Penn-

sylvania Department of Corrections’ refusal to place him in

the program violated his rights under the Americans with Dis-

abilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Four-

teenth Amendment, and the Pennsylvania Constitution.

The United States District Court for the Middle District

of Pennsylvania dismissed Yeskey’s complaint, holding that the

ADA was inapplicable to state prisons and inmates. The Third

Circuit Court of Appeals reversed. The court determined that

the ADA’s all-encompassing language concerning “services,

programs, or activities” included “those that take place in pris-

ons” and that its definition of a “public entity” also included a

1. The motivational boot camp is a program to which certain inmates

) may be assigned by the state Department of Corrections to serve their sen-

tences. The boot camp provides rigorous physical activity, intensive regimen-

tation and discipline, work on public projects and other treatment. Pa. Stat.

Ann. tit. 61, § 1123 (West Supp. 1997). Pursuant to statute, placement of

inmates in the boot camp is discretionary with the Department of Correc-

tions. Jd. § 1126. Although an inmate may be identified as eligible for boot

camp placement by the sentencing judge, no inmate has a right to such

placement. Jd. § 1126(d). Upon successful completion of the six months

incarceration, the inmate is released on parole for intensive supervision as

determined by the Pennsylvania Board of Probation and Parole. /d. § 1127.

4

state or local correctional facility or authority. Yeskey v. Penn-

sylvania Dep’t of Corrections, 118 F.3d 168, 170 (3d Cir. 1997).

The court further concluded that because Congress clearly

expressed its intention, in the ADA, to abrogate the states’

constitutionally-guaranteed immunity, Congress could alter

the usual constitutional balance between the states and the

federa! government. /d. at 173.

REASONS FOR GRANTING THE WRIT

The courts of appeals cannot agree on whether Congress

ever intended the ADA to apply to management of disabled

state prisoners; and if so, whether Congress has the power to

dictate how such an essential state function will be handled.

The answers to these questions significantly impact on every

prison system in this country. Thus, it is essential for the Court

to grant certiorari.

This Court has repeatedly emphasized that the federal

government must refrain from unnecessary intrusion into state

prison affairs and must afford appropriate deference and

flexibility to state prison officials. See Lewis v. Casey, 116 S. Ct.

2174, 2185 (1996) (if prison administrators are to make the

difficult judgments concerning institutional operations, they

must be permitted to exercise wide discretion within the

bounds of constitutional requirements); Sandin v. Conner, 515

U.S. 472, 482 (1995)(federal district courts must “afford

appropriate deference and flexibility to state officials trying to

manage a volatile environment”); Turner v. Safley, 482 U.S. 78,

84-85 (1987)(where state penal institutions are involved, fed-

eral courts have a further reason for deference to the appro-

priate authorities).

The Third Circuit has now joined the Seventh and Ninth

Circuits in holding that the ADA applies to state prison

operations, whereas the Fourth and Tenth Circuits have

reached exactly the opposite conclusion. See Yeskey, 118 F.3d

at 172 (following Crawford v. Indiana Dep’t of Corrections, 115

F.3d 481 (7th Cir. 1997) and Duffy v. Riveland, 98 F.3d 447 (9th

Cir. 1996)). Accord Armstrong v. Wilson, No. 96-16870, 1997

5

WL 525521 (9th Cir. Aug. 27, 1997); Clark v. California, No.

96-16952, 1997 WL 525518 (9th Cir. Aug. 27, 1997). Contrast

Torcasio v. Murray, 57 F.3d 1340, 1344-46 (4th Cir.

1995)(ADA’s applicability to state prisons is not clearly estab-

lished), cert. denied, 116 S.Ct. 772 (1996) and White v. Colo-

rado, 82 F.3d 364, 367 (10th Cir. 1996)(ADA does not apply to

inmates within a prison setting).

In this case, the Third Circuit criticized the reasoning of

the Fourth and Tenth Circuits as “seriously flawed.” Yeskey,

118 F.3d at 172. Just days ago, the Fourth Circuit countered by

characterizing the Third Circuit’s legal analysis as “interpre-

tive gymnastics.” Amos v. Maryland Dep’t of Pub. Safety and

Correctional Services, No. 96-7091, 1997 WL 581652, at *14

(4th Cir. Sept. 22, 1997).

After a painstaking examination of its decision in Torca-

sio, the Fourth Circuit remained steadfastly convinced that the

ADA does not apply to prisons and that opinions to the con-

trary are unconvincing:

Nothing in the opinions of those courts holding to

the contrary even begins to refute the careful analy-

sis we undertook in Torcasio. In reaching the conclu-

sion that these Acts do not apply, and could not pos-

sibly be applied in the context of prison facilities, we

are (and we believe that the Supreme Court will ulti-

mately find itself) persuaded in no small measure by

the extraordinarily circuitous statutory analyses

which those courts reaching the contrary conclusion

have undertaken and the considerable extra-

interpretive energies that those courts have been

forced to expend in order to limit the systemic chaos

that would otherwise have followed on their holdings

that these statutes apply to the Nation’s myriad state

prisons.

Id. at *1. Clearly, the circuits sharply disagree on two critical

questions: In enacting the ADA, did Congress intend to dic-

tate the states’ management of disabled prisoners; and if so,

does the Fourteenth Amendment give Congress that power?

6

A. There is a fundamental disagreement between the circuit

courts of appeals about whether Congress intended the

ADA to apply to state prisoners.

Title II of the ADA is written in broad, non-specific lan-

guage. It states, in pertinent part:

[N]o qualified individual with a disability shall, by

reasons of such disability, be excluded from partici-

pation in or be denied the benefits of the services,

programs, or activities of a public entity, or be sub-

jected to discrimination by any such entity.

42 U.S.C. § 12132 (1997). Congress has directed that Title II of

the ADA be interpreted in a manner consistent with § 504 of

the Rehabilitation Act. According to § 504, the definition of

program or activity includes all of the operations of a depart-

ment, agency, or other instrumentality of a state government.

Like the Seventh and Ninth Circuits, the court below held

that the broad definition of “programs and activities” includes

prison operations. Yeskey, 118 F.3d at 170. Accord Crawford,

115 F.3d at 483; Duffy v. Riveland, 98 F.3d at 455. In contrast,

the Fourth Circuit stated that only a superficial reading of the

statutes would support that conclusion. Amos, 1997 WL

581652, at *8 (quoting Torcasio, 57 F.3d at 1344.) However, the

language of the ADA does not specifically include or exclude

state prisons or prisoners; indeed, the very breadth of the

statutory language renders it ambiguous. /d. at *18.?

Thus, the Fourth Circuit's refusal to apply the ADA to

State prisons was grounded on an ordinary rule of statutory

construction: Where Congress intends to alter the federal-

state balance, or invade an essential state function, it must do

2. In fact, the ADA's introductory language suggests the exclusion of

prisoners and of prisons, rather than their inclusion. The goals regarding

disabled individuals are “to assure equality of opportunity, full participation,

independent living, and economic self-sufficiency” so that the disabled can

“pursue those opportunities for which our free society is justifiably famous.”

42 U.S.C. § 12101(a)(8) and (9) (1997). Without question, prison is hardly

such a free society. Amos, 1997 WL 581652, at *15.

7

so in unmistakable terms. Jd. at *6; Torcasio, 57 F.3d at 1344

(citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65

(1989); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242

(1985); and Pennhurst State Sch. and Hosp. v. Halderman, 465

U.S. 89, 99 (1984)). “In traditionally sensitive areas, such as

legislation affecting the federal balance, the requirement of

clear statement assures that the legislature has in fact faced,

and intended to bring into issue, the critical matters involved

in the judicial decision.” United States v. Bass, 404 U.S. 336,

349 (1971).

Where application of a federal statute to a state would

upset the normal constitutional balance of fede al and state

powers, “it is incumbent upon the federal courts to be certain

of Congress’ intent before finding that federal law overrides”

this balance. Amos, 1997 WL 581652, at *6 (quoting Gregory

v. Ashcroft, 501 U.S. 452, 460 (1991)). Therefore, the clear

statement rule should be applied to any case which implicates

“Congress's historical reluctance to trench on state legislative

prerogatives or to enter into spheres already occupied by the

States.” Torcasio, 57 F.3d at 1345 (citing Justice Souter’s dis-

sent in United States v. Lopez, 514 U.S. 549, 611 (1995)).

Repeated pronouncements of this Court indisputably

demonstrate that the management of state prisons is, indeed,

a core state function. It is dificult to imagine an activity in

which a state has a stronger interest, or one that is more intri-

cately bound up with state laws, regulations, and procedures,

than the administration of its prisons. Preiser v. Rodriguez, 411

U.S. 475, 491-92 (1973). Indeed, it is elementary that prison

maintenance is an essential part of a primary governmental

function — the preservation of societal order through enforce-

ment of criminal law. Torcasio, 57 F.3d at 1345 (quoting Pro-

cunier v. Martinez, 416 U.S. 396, 412 (1974)). Principles of

comity and federalism apply with special force in the context

of correctional facilities. See Preiser, 411 U.S. at 492 (“internal

problems of state prisons involve issues so peculiarly within

state authority and expertise”); Procunier, 416 U.S. at 405

(“where state penal institutions are involved, federal courts

8

have a further reason for deference to appropriate authori-

ties”). Thus, the Fourth Circuit has correctly observed:

That the management of state prisons is to be left to

the states, as free as possible of federal interference,

is confirmed by a long line of Supreme Court prece-

dent.... [A]bsent the most extraordinary circum-

stances, federal courts are not to immerse themselves

in the management of state prisons or to substitute

their judgment for that of the trained penological

authorities charged with the administration of such

facilities.

Torcasio, 57 F.3d at 1345-46 (citing Turner v. Safley, 482 U.S.

78, 84-85 (1987); Rhodes v. Chapman, 452 U.S. 337, 349

(1981); Bell v. Wolfish, 441 U.S. 520, 562 (1979); Procunier v.

Martinez, 416 U.S. 396 (1974); Thornburgh v. Abbott, 490 U.S.

401, 413-14 (1989); Preiser v. Rodriguez, 411 U.S. 475 (1973)).

In this case, the Third Circuit erroneously limited appli-

cation of the plain statement rule. The court stated:

[The Fourth Circuit's] extension of the clear state-

ment rule was unwarranted. Will, Atascadero, and

Pennhurst all involved instances in which there had

been no express waiver or abrogation of the state's

traditional immunity from suit, either by the state

itself (Pennhurst), or by Congress (Will, Atascadero).

Here, in contrast, both Section 504 and Title II of the

ADA contain an “unequivocal expression of con-

gressional intent to overturn the constitutionally

guaranteed immunity of the several states.”

Yeskey, 118 F.3d at 172-73 (citation omitted). The lower court

ignored the fact that, in Gregory v. Ashcroft, 501 U.S. 452

(1991), this Court applied the clear statement rule even

though the case did not involve abrogation of the Eleventh

Amendment.

With good reason, the Fourth Circuit has strongly criti-

cized the interpretive analyses undertaken by the Third, Sev-

enth, and Ninth Circuits because of the “extraordinary lengths

9

to which those circuits have gone to acknowledge the chaos

that will likely result from their holdings.” Amos, 1997 WL

581652, at *14. The Fourth Circuit explained:

Specifically, while purporting to adhere to the text of

the Rehabilitation Act and the ADA in determining

that the statutes apply to state prisons, the Ninth Cir-

cuit — when forced to outline the meaning of “rea-

sonable accommodation” and “undue burden” in the

state prison context — has created extratextually, out

of whole cloth, a statutory standard by engrafting the

constitutional standard onto the statute; for their

part, the Seventh and Third Circuits have trans-

formed themselves into contortionists attempting to

avoid the necessary consequences of their holdings

by declining to outline the meaning of “reasonable

accommodation” and “undue burden” in the prison

context. Unlike the Ninth, Seventh, and Third Cir-

cuits, we decline to engage in such interpretive gym-

nastics.

Id. (internal citations omitted). As the Fourth Circuit pointed

out, Congress simply has not spoken through the ADA with

anywhere near the clarity and degree of specificity required to

conclude that state prisons are subject to the act. Jd. at *16.

The Third and Fourth Circuits agree that the legislative

history of both the ADA and the Rehabilitation Act is silent

on the applicability of those statutes to state prisons, but the

courts disagree on the meaning of that fact. Jd. The Third Cir-

cuit found this congressional silence to be a tacit approval of

its conclusion that the ADA applies to state and local correc-

tional facilities. Yeskey, 118 F.3d at 174 n.7. The Fourth Circuit

strenously disagreed because “[i}t is at best treacherous to find

in Congressional silence alone the adoption of a controlling

rule of law.” Amos, 1997 WL 581652, at *17 (quoting Girouard

v. United States, 328 U.S. 61, 69 (1946)).

Finally, the Fourth Circuit justifiably criticized the Third

Circuit for deferring to Department of Justice regulations, 28

C.F.R. § 35.101 et seq., as if the court were “interpreting a stat-

10

ute which has no implications for the balance of power

between the Federal Governm=nt and the States.” Amos, 1997

WL 581652, at *21 (citations omitted). Here, the implications

for upsetting that balance of power are enormous, and the

intrusiveness of the regulations makes this apparent. Jd.

Deference to administrative regulations is particularly

inappropriate in this case because it is not readily apparent

that Congress even has the authority to regulate state prisons.

Id. at *17. See also Gregory, 501 U.S. at 464 (noting the con-

straint on the Court’s “ability to consider the limits that the

state-federal balance places on Congress’ powers under the

Commerce Clause,” and stating that “application of the plain

statement rule thus may avoid a potential constitutional prob-

lem”).

B. Whether Congress has the power to dictate how states will

manage their disabled prisoners presents a fundamental

question that must be addressed by this Court.

In this case, the Third Circuit recognized that prison

administration is a core state function? and acknowledged the

looming specter of federal-court management of state prisons

which will result from application of the ADA. Yeskey, 118

F.3d at 174. Nevertheless, the court found the ADA applicable

to state prison systems. In doing so, the Third Circuit ignored

a basic principle of statutory construction: whenever possible,

an act should be interpreted to reach a constitutional result.

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and

Constr. Trades Council, 485 U.S. 568, 575 (1988). Rather than

blindly accepting the notion that Congress can dictate how

disabled prisoners will be treated by the states, it is essential

to consider the federal government's ability to make such an

intrusion, no matter how well-intentioned.

3. Core state functions are protected from federal interference by the

Tenth Amendment. EEOC v. Wyoming, 460 U.S. 226, 236 (1983). The Tenth

Amendment provides that powers not delegated to the United States by the

Constitution, nor prohibited by it, are reserved to the states. U.S. CONST.

amend. X.

11

The ADA was ostensibly enacted under section 5 of the

Fourteenth Amendment.* Whether Congress can use its

enforcement power to dictate a state’s management of its dis-

abled prisoner population is very much open to question and

should be resolved by this Court. In this instance, Pennsylva-

nia does not contend that the ADA is unconstitutional, only

that it cannot be constitutionally applied to state prisoners.

Congress's enforcement power is not unlimited. Gregory

v. Ashcroft, 501 U.S. 452 (1991). It extends only to “enforc-

[ing]” the provisions of the Fourteenth Amendment and is

“remedial.” City of Boerne v. Flores, 117 S. Ct. 2157, 2164

(1997). “The design of the Amendment and the text of section

5 are inconsistent with the suggestion that Congress has the

power to decree the substance of the Fourteenth Amend-

ment’s restrictions on the States.” Jd. As this Court recognized

in Boerne, it is not easy to discern the line between measures

that remedy or prevent unconstitutional actions and measures

that make a substantive change in the governing law; however,

the distinction exists and must be observed. /d.

The Third, Seventh, and Ninth Circuits have erroneously

accepted the premise that Congress can pass disability legisla-

tion under section 5 of the Fourteenth Amendment. In

Boerne, this Court recently struck down legislation in which

Congress tried to use its section 5 enforcement power to

expand the free exercise of religion beyond the scope of this

Court's prior interpretation of that constitutional provision.

The Court recognized that if Congress could define its own

powers by altering the , surteenth Amendment's meaning, “it

4. Congress also purportedly enacted the ADA pursuant to its power

to regulate commerce. See 42 U.S.C. § 12101(b)(4) (1997). However, in

Printz v. United States, 117 S.Ct. 2365 (1997), this Court held that federal

Commerce Clause legislation may not conscript state officers to enforce a

federal regulatory program. Application of the ADA to state prisoners

would do precisely what Printz forbids: it would legislatively compel state

officials to devote state resources to manage disabled prisoners in accor-

dance with a federal regulatory scheme. “Such commands are fundamentally

incompatible with our constitutional system of dual sovereignty.” Printz, 117

S.Ct. at 1284.

12

is difficult to conceive of a principle that would limit congres-

sional power.” Jd. at 2168.

Similarly, in Oregon v. Mitchell, 400 U.S. 112 (1970), this

Court struck down legislation that would have extended the

right to vote in state elections to anyone over the age of eigh-

teen. In doing so, this Court concluded that the provision

could not have been authorized under the Fourteenth Amend-

ment because it addressed discriminatio «gainst persons who

were not members of a protected class.

This Court should now declare that applying the ADA to

state prisoners fails for the same reason: Disabled prisoners do

not enjoy protected status, and the ADA cannot grant them

federally-enforceable rights that exceed the constitution. See

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-46

(1985)(for purposes of Fourteenth Amendment analysis, dis-

abled individuals are similar to the aged in their experiences

regarding discrimination, and this Court refused to extend

special protections to them). /d. at 442.

If principles of federalism are to survive at all, this Court

must prohibit excessive federal entanglement in the states’

operation of their prisons. Congress may not violate other

constitutional provisions to enforce those of the Fourteenth

Amendment, Katzenbach v. Morgan, 384 U.S. 641, 656 (1966),

and Congress should not be permitted to interpret national

constitutional rights in an overly-expansive manner that frus-

trates this Court's responsibility to honor and safeguard the

concept of federalism. Daniel O. Conkle, The Religious Free-

dom Restoration Act: The Constitutional Significance of an

Unconstitutional Statute, 56 MONT. L. REV. 39, 52 (1995).

With the exception of the Fourth Circuit, the courts of

appeals have failed or refused to consider the serious impact

that their decisons have on the concept of federalism. This

Court should make clear that the ADA cannot be interpreted

to infringe on the states’ right to manage their prisons. Conse-

quently, it is imperative for this Court to grant certiorari.

13

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

PAUL A. TUFANO

General Counsel

Commonwealth of Pennsylvania

(Counsel of Record)

SYNDI L. GUIDO

Deputy General Counsel

ALISON TAYLOR

SUZANNE N. HUESTON

Assistants General Counsel

Counsel for Petitioners

333 Market Street, 17th Floor

Harrisburg, PA 17101

(717) 787-9356

APPENDIX

la

Filed July 10, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-7292

RONALD R. YESKEY,

APPELLANT

Vv

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF

CORRECTIONS; JOSEPH D. LEHMAN; JEFFREY A.

BEARD, PH.D.; JEFFREY K. DITTY; DOES NUMBER 1

THROUGH 20, INCLUSIVE,

APPELLEES

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civ. No. 95-cv-02125)

Argued: January 31, 1997

Before: BECKER, ROTH, Circuit Judges, and

BARRY, District Judge.*

(Filed July 10, 1997)

L. ABRAHAM SMITH, ESQUIRE

(ARGUED)

P.O. Box 1644

Greensburg, PA 15601

Attorney for Appellant

*Honorable Maryanne Trump Barry. United States District Judge for

the District of New Jersey. sitting by designation.

2a

THOMAS W. CORBETT, JR.

Attorney General

R. DOUGLAS SHERMAN (ARGUED)

Deputy Attorney General

CALVIN R. KOONS

Senior Deputy Attorney General

JOHN G. KNORR, II

Chief Deputy Attorney General

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Attorneys for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge.

Ronald R. Yeskey is a Pennsylvania prison inmate who

was denied admission to the Pennsylvania Department of

Correction’s Motivational Boot Camp program because of a

history of hypertension, despite the recommendation of the

sentencing judge that he be placed therein.’ Yeskey brought

suit in the district court under the Americans With

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. alleging

that his exclusion from the program violated that enactment.

The district court dismissed Yeskey’s complaint, Fed. R.

1. The Motivational Boot Camp Act, 61 P.S. §1121 et seq.. established a

“motivational boot carp” to which certain inmates may be assigned by

the Department of Corrections to serve their sentences for a period of six

months. The boot camp provides rigorous physical activity, intensive

regimentation and discipline. work on public projects. and other

treatment. Id. §1123. Pursuant to statute, placement of inmates in the

boot camp is discretionary, and. as such, no inmate has a right to such

placement. Id. §1126{d). Upon successful completion of the six months

incarceration, the inmate is released on parole for intensive supervision

as determined by the Pennsylvania Board of Probation and Parole. id.

§1127.

2. Yeskey also asserted claims under 42 U.S.C. § 1983 and state law.

3a

Civ. P. 12(b)(6), holding that the ADA is inapplicable to

state prisons. The question of the applicability of the ADA

to prisons is an important one, especially in view of the

increased number of inmates, including many older,

hearing-impaired, and HIV-positive inmates, in the nation’s

jails. See generally Ira P. Robbins, George Bush's America

Meets Dante's Inferno: The Americans with Disabilities Act in

Prison, 15 Yale L. & Pol'y Rev. 49, 56-63 (1996). For the

reasons that follow, we reverse.*

Because this appeal turns on statutory construction, we

begin with the text of the relevant statute, or more

precisely, statutes. Although Yeskey only invoked the ADA,

our discussion n involves Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794{a). Section 504, the first

federal statute to provide broad prohibitions against

discrimination on the basis of disability, applies only to

programs and _ activities federal financial

assistance. Title II of the ADA, the broader statute, enacted

in 1990, extends these protections and prohibitions to all

state and local government programs and activities,

regardless of whether they receive federal financial

assistance. Congress has directed that Title II of the ADA be

interpreted in a manner consistent with Section 504, 42

U.S.C. § 12134(b), 12201(a),* and all the leading cases take

up the statutes together, as will we.

The substantive provisions of the statutes are similar.

Section 504 provides in pertinent part:

3. By the time this case was listed for submission in this Court. only a

short time remained on Yeskey's sentence. and we have unfortunately

been unable to dispose of it until now. He may have been released (the

parties have not informed us on this point). However. Yeskey’s complaint

included a claim for damages. and hence the case is not moot. We also

note that. since boot camp placement commences contemporaneous with

the execution of sentence. it would probably be nigh impossible to test

improper exclusion from the boot camp program in federal court before

the six month placement expires. likely creating a situation capable of

repetition yet evading review. which excuses mootness.

4. See generally Robbins. supra. at 73-76.

4a

No otherwise qualified individual with a disability in

the United States . . . shall, solely by reason of her or

his disability, be excluded from the participation in, be

denied the benefits of, or be subjected’ to

discrimination under any program or activity receiving

Federal financial assistance or under any program or

activity conducted by any Executive agency|.|

29 U.S.C. § 794{a).

Title II of the ADA provides in pertinent part:

no qualified individual with a disability shall, by reason

of such disability, 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 such entity.

42 U.S.C. § 12132.

The statutory definition of “[pjrogram or activity” in

Section 504 indicates that the terms were intended to be

all-encompassing. They include “all of the operations of —

(1A) a department, agency, special purpose district, or

other instrumentality of a State or of a local government

- . amy part of which is extended Federal financial

assistance.” 29 U.S.C. §794(b) (emphasis added). It is hard

to imagine how state correctional programs would not fall

within this broad definition.

Moreover, a word in a statute “must be given its ‘ordinary

or natural’ .” see Bailey v. United States, 116 S. Ct.

501, 506 (1995), and the ordinary meanings of “activity”

and “program” clearly encompass those that take place in

prisons. “Activity” means, inter alia, “natural or normal

function or operation,” and includes the “duties or

function” of “an organizational unit for performing a _—_

function.” Webster's Third New International

(1986). “Program” is defined as “a plan of procedure: =

schedule or system under which action may be taken

toward a desired goal.” Id. at 1812. Certainly, operating a

prison facility falls within the “duties or functions” of local

government authorities. Moreover, Title II's definition of a

“public entity” clearly enco a state or local

mpasses

correctional facility or authority: “any department, agency,

Sa

. . . or other instrumentality of a State or States or local

government{.]” 42 U.S.C. § 12131(1)(B) (emphasis added).

This conclusion is bolstered by the Department of Justice

(DOJ) regulations implementing both Section 504 and Title

Il of the ADA. These lations were expressly authorized

by Congress, 29 U.S.C. §794(a); 42 U.S.C. §§ 12134(a),

12206, and, in view of Congress’ delegation, the DOJ's

regulations should be accorded “controlling weight unless

[they are] ‘arbitrary, capricious, or manifestly contrary to

the statute,” Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 115 S. Ct. 2407, 2418

(1995). The same is true of the preamble or commentary

accompanying the regulations since both are part of the

DOJ's official interpretation of the legislation. Thomas

Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994).

DOJ interprets both Section 504 and Title II of the ADA to

apply to correctional facilities.

The regulations promulgated by DOJ to enforce Section

504 define the kinds of programs and benefits that should

be afforded to individuals with disabilities on a

nondiscriminatory basis. The regulations define “program”

to mean “the operations of the agency or organizational unit

of government receiving or substantially benefiting from the

Federal assistance awarded, e.g., a police department or

department of corrections.” 28 C.F.R. §42.540(h) (1996)

(emphasis added). The term “[bjenefit” includes “provision

of services, financial aid or disposition {ie., treatment,

handling, decision, sentencing, confinement, or other

prescription of conduct).” Id. § 42.540(j) (emphasis added).

The appendix to the regulations, attached to the Final Rule

(45 Fed. Reg. 37620, 37630 (1980)), makes clear that

services and programs provided detention and

correctional agencies and facilities are covered by Section

504. This coverage is broad, and includes “jails, prisons,

reformatories and training schools. work camps, reception

and diagnostic centers, pre-release and work release

facilities, and community-based facilities.” Id

The appendix further provides that those facilities

designated for use by persons with disabilities are “required

to make structural medifications to accommodate detainees

or prisoners in wheelchairs.” Id The DOJ regulations

6a

applicable to federally conducted programs also make it

pm that institutions administered by the Federal Bureau

of Prisons are subject to Section 504. See 28 C.F.R.

§ 39.170{(d)(1)(ii) (Section 504 complaint procedure for

inmates of federal penal institutions); id. pt. 39, Editorial

Note, at 675 (Section 504 regulations requiring

nondiscrimination in programs or activities of the

Department of Justice apply to the Federal Bureau of

Prisons); id at 676 (federally conducted program is

“anything a Federal agency does”).

The regulations promulgated under Title II of the ADA

afford similar protections to persons with disabilities who

are incarcerated in prisons, or otherwise institutionalized

by the state or its instrumentalities, regardless of the public

institution's receipt of federal financial assistance. The

regulations state that the statute’s coverage extends to “all

services, programs, and activities provided or made

available by public entities.” Id §35.102(a). This broad

language is intended to “applly] to anything a public entity

does.” Id. pt. 35, app. A, subpt. A at 456. As part of its

regulatory obligations under Title II, the DOJ is designated

as the agency responsible for coordinating the compliance

activities of public entities that administer “[a]ll programs.

services, and regulatory activities relating to law

enforcement, public safety, and the administration of

institution,” the entity is required to provide “assistance in

toileting, eating, or dressing to [that] individuall }.” Id pt.

35, app. A at 468.°

5. Moreover. the DOJ Title Il Technical Assistance Manual specifically

lists “jails arsi prisons” as types of facilities that. if constructed or

designed and constructed so that they are readily accessible to and

7a

In sum, Section 504 of the Rehabilitation Act, Title II of

the ADA, and the specific provisions in the DQ'*« -

regulations listing correctional facilities or departments as

covered entities confirm that the Rehabilitation Act and the

ADA apply to state and locally-operated correctional

facilities.

Il.

The weight of judicial authority also supports our

conclusion that the ADA applies to prison programs. In

Crawford v. Indiana of Corrections, __ F.3d __,

1997 WL 289101 (7th Cir. June 2, 1997), the Seventh

Circuit held that Title II of the ADA applied to state prisons

in the case of a blind, former state prisoner who sought

damages resulting from his exclusion from a variety of

programs, activities, and facilities at the prison that were

routinely available to the prison’s population, including

educational programs, the library, and the dining hall.

Accord Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996):

Harris v. Thigpen, 941 F.2d 1495, 1522 n.41 (11th Cir.

1991) (holding Rehabilitation Act applicable).

Two circuits have questioned the applicability of Section

704 and Title II to prisons. See Torcasio v. Murray, 57 F.3d

1340, 1344-46 (4th Cir. 1995) ( of prisons by

Section 504 and Title II not clearly established in qualified

immunity context), cert denied, 116 S. Ct. 772 (1996):

which apply to federal agencies and entities receiving federal financial

assistance. 28 C.F.R §42.522(b). UFAS lists ‘jails. prisons.

reformatories”’ and “[ojther detention or correctional facilities” as

institutions to which the accessibility standards apply. 41 C.F.R. subpt.

101-19.6. app. A at 150. Under Title II. covered entities building new or

altering existing facilities may follow either UFAS or the ADA

Accessibility Guidelines for Buildings and Facilities (ADAAG). 28 C.F.R.

§ 35.15 l(c}; see id. pt. 36, app. A. Amendments to the ADAAG, adopted

as an Interim Final Rule, effective December 20, 1994. by the

Architectural & Transportation Barriers Compliance Board. include

specific accessibility guidelines for “detention and correctional facilities.”

59 Fed. Reg. 31676. 31770-72 (1994). The Department of Justice has

proposed adoption of the interim final rule. Id. at 31808. The ADAAG is

not effective until adopted by the DOU.

8a

White v. State of Colorado, 82 F.3d 364, 367 (10th Cir.

1996) (neither ADA nor Rehabilitation Act applies to prison

employment). In our view, these opinions are

flawed. The leading case in support of the Commonwealth's

position is Torcasio, which was followed by the district

court here, and so we focus our sights on that case.®

The Fourth Circuit in Torcasio acknowledged that the

broad language prohibiting discrimination on the basis of

disability in both statutes “appears all-encompassing,” 57

F.3d at 1344. Nevertheless, the Torcasio court was

reluctant to find either statute applicable to prisons

because of the so-called “clear statement” doctrine, as set

out in Will v. Michigan Department of State Police, 491 U.S.

58, 65 (1989):

if Congress intends to alter the “usual constitutional

balance between the States and the Federal

Government,” it must make its intention to do so

“unmistakably clear in the language of the statute.”

Atascadero State Hospital v. Scanlon, 473 U.S. 234,

242 ... (1985): see also, Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89, 99 . . . (1984).

Because it found the operation of prisons to be a “core state

function,” 57 F.3d at 1345, and because neither Section

504 nor Title Il includes an express statement of its

application to correctional facilities, the Torcasio court

expressed its doubt that Congress had “clearly” intended

either statute to apply to state prisons. Id at 1346.

This extension of the clear statement rule was

unwarranted. Will, Atascadero, and Pennhurst all involved

instances in which there had been no express waiver or

abrogation of the state’s traditional immunity from suit,

either by the state itself (Pennhurst), or by Congress (Will,

Atascadero). Here, in contrast, both Section 504 and Title

6. Torcasio did not decide whether either Section 504 or Title Il of the

ADA applies to prisons: rather. it concluded that such coverage was not

clearly established at the time of the events at issue. and that the

individual defendants in that case therefore were entitled to qualified

immunity. In reaching its qualified immunity ruling, however. the

Torcasio court discussed the reach of the two statutes at length. and

expressed its doubt that either applied to prisons.

9a

Il of the ADA contain an “unequivocal ression of

congressional intent to overturn the qoustiiationaity

teed immunity of the several states.” Pennhurst, 465

-S. at 99 (internal quotation marks and citation omitted):

see 42 U.S.C. § 2000d-7(a)(1) (“A State shall not be immune

under the Eleventh Amendment .. . from suit in Federal

court for a violation of section 504 of the Rehabilitation

Act.”); id. § 12202 (“A State shall not be immune under the

eleventh amendment . . . from an action in Federal or State

court _" competent jurisdiction for a violation of [the

To be sure, when “Congress intends to alter the usual

constitutional balance between the States and the Federal

Government, it must make its intention to do so

unmistakably clear in the of the statute.”

v. Ashcroft, 501 U.S. 452, . 461 (1991) (internal

quotation marks and citations omitted). This requirement.

however, is a “rule of statutory construction to be applied

where statutory intent is ambiguous.” Id. at 470. It is not

J — to disregard clearly expressed congressional

operations. In light of the clear and all-encompass

language of both statutes, there is no basis for re

components of state and leeal grocers ent cen

nen s ments to be

included in the terms “any” and “all.”

In Crawford, supra, just as in this case, the state relied

on the fact that prison administration was a “core” state

function in arguing that the clear statement rule was

triggered. Judge Posner responded most forcefully:

Prison administration is indeed a core function of state

government, as is education. But the state’s concession

10a

that the Americans with Disabilities Act applies to the

prison’s relations with its employees and visitors, as

well as to the public schools, suggests that the clear-

statement rule does not carry this particular

function of state ment outside the scope of the

Act. We doubt, moreover, that Congress could speak

much more clearly than it did when it made the Act

applicable to all public entities and defined

to

the term “public entity” include every possible

an

;

agency of state or local t. Maybe there is

inner core of sovereign ns, such as the balance

of power between — oan Se . that if

somehow im by the ADA would be protected by

the clear-statement rule, cf. Gregory v. Ashcroft, supra,

501 U.S. at 461-63; but the mere provision of public

services, such as schools and prisons, is not within

that inner core.

Crawford, ____ F.3d __,. 1997 WL 289101, at *4. We agree.

Despite the Commonwealth's contention to the contrary,

moreover, prisoners (in contrast to prisons) are not excluded

from coverage because Section 504 and Title II protect only

“qualified individualijs}] with a disability." That term is

defined in Title II to mean:

an individual with a disability who. with or without

reasonable modifications . . . meets the essential

eligibility requirements for the receipt of services or the

participation in programs or activities provided by a

public entity.

42 USC. §12131(2). The terms eligibility” and

“participation” do not, as Torcasio stated, see 57 F.3d at

1347, “imply voluntariness” or mandate that an individual

seek out or request a service to be covered. To the contrary,

the term “eligibility” simply describes those who are “fitted

or qualified to be chosen,” without to their own

wishes. See Webster's Third New International Dictionary,

supra at 736.

Judge Posner addressed a related aspect of the case quite

incisively:

lla

It might seem absurd to apply the Americans with

Disabilities Act to prisoners. Prisoners are not a

favored group in society; the propensity of some of

them to sue at the drop of a hat is well known; prison

systems are strapped for funds; the practical effect of

granting disabled prisoners ts of access that might

require costly modifications of prison facilities might be

the curtailment of educational, recreational, and

rehabilitative programs for prisoners, in which event

everyone might be worse off. But . . . there is another

side to the issue. The Americans with Disabilities Act

was cast in terms not of subsidizing an interest grou

but of eliminating a form of Sectudeaten’ Got

Congress considered unfair and even odious. The Act

assimilates the disabled to groups that by reason of

sex, age, race, religion, nationality, or ethnic are

believed to be vistine of Giserimtention. Dights ceatnet

discrimination are among the few rights that prisoners

do not park at the prison gates. Although the special

conditions of the prison setting license a degree of

discrimination that would not be tolerated in a free

environment, there is no general right of prison officials

to discriminate against prisoners on grounds of race,

sex, n, and so forth. If a prison may not exclude

blacks the prison hall and force them to

eat in their cells, and if Congress thinks that

discriminating against a blind person is like

discriminating against a black person, it is not obvious

that the prison may exclude the blind person from the

dining hall, unless allowing him to use the dining hall

would place an undue burden on prison management.

Crawford, _ F.3d _, 1997 WL 289101, at *5 (citations

omitted). We agree here as well.

In sum, in enacting the ADA, Congress “invokejd] the

sweep of [its] authority, including the power to enforce the

fourteenth amendment and to regulate commerce, in order

to address the major areas of discrimination faced day-to-

day by people with disabilities.” 42 U.S.C. § 12101(b)(4).

The “critical areas” in which “discrimination against

individuals with disabilities persists” were set forth in the

statute, and include “institutionalization.” Id. § 12101(a)}(3).

12a

Thus, if the plain words of a statute are to guide the courts

in interpreting it, then both statutes must be held to apply

to state and local correctional facilities.’ Essentially, the

Commonwealth is asking us to amend the statute,

something we cannot do.

IV.

The foregoing discussion establishes that the ADA applies

to Yeskey’s claim. His claim for injunctive relief is.

apparently, moot in view of the impending (or actual)

completion of his prison term. His claim for damages will

turn, presumably, on whether he should (or would) have

been admitted to the boot camp. Even with the ADA

applicable, Yeskey might not have been admitted for a

number of reasons, which will have to be explored on

remand.

The Commonwealth has invoked the specter of federal

court management of state prisons:

Application of the ADA to internal prison

t would place nearly every aspect of prison

management into the court's hands for scrutiny simply

because an inmate has a disability. See Pierce v. King.

918 F. Supp. 932, 941 (E.D.N.C. 1996). For instance,

if the ADA applies to routine prison decisions, it is not

unfathomable that courts will be used to reconstruct

cells and prison space, to alter scheduling of inmate

movements and assignments and to interfere with

security procedures.

Brief at 15. Although these considerations do not override

our conclusion that the ADA applies to prisons, our holding

does not dispose of the controversial and difficult question

whether principles of deference to the decisions of prison

officials in the context of constitutional law apply to

7.We add that the legislative history does not inmveigh against this

conclusion. When the ADA was enacted in 1990. the Rehabilitation Act

had been law for seventeen years and a number of cases had held it

applicable to prisons and prisoners. yet Congress did not amend that Act

or alter any language so as to extirpate those interpretations.

en

13a

Statutory rights. See generally Robbins at 94-97.°

We are not sure of the answer, and need ait ebtene met

question now for, at all events, we doubt that it will be

ee this case. We do, however. “flag” it for another

The judgment of the district court will be reversed. and

the case remanded for furth

this eptnten. er proceedings consistent with

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

8. Turner v. Safley. 482 U.S. 78 (1987). establishes a four-part

reasonableness” test for judicial deference to prison managmen

decisions in the face of constitutional challenges (usually under the

interest. The second inquiry is whether alternative

means exist for

inmates to exercise the right under consideration. The third issue is the

effect that accommodation of the asserted right will have

The Ninth Circuit has held that the Tumer standard applies

a to

statutory rights such as those created by the ADA. In Gates v. Rowland.

39 F.3d 1439 (9th Cir. 1994). the court reversed a lower court's ruling

that denial of food-service positions to HIV-positive inmates

l4a

— FILED

HARRISBURG, PA

APR 9 1996

MARY E. D’ANDREA, CLERK

Per

Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY,

Plaintiff

VS. : CIVIL ACTION NO.

1:CV-95-2125

COMMONWEALTH OF

PENNSYLVANIA,

et al.,

Defendants :

MEMORANDUM

I. Introduction and Background.

The plaintiff, Ronald R. Yeskey, an inmate at SCI-

Greensburg, Pennsylvania, has filed objections to the report of

the magistrate judge which recommended that the defendants’

motion to dismiss under Fed. R. Civ. P. 12(b)(6) be granted.

The named defendants are the Pennsylvania Department of

Corrections, Joseph D. Lehman, the Department's Commis-

sioner, Jeffrey A. Beard, the Superintendent at SCI-Camp

Hill, Pennsylvania, and Jeffrey K. Ditty, the Director of the

Central Diagnostic and Classification Center at Camp Hill.

(John Doe defendants one through twenty have also been

sued.)

The plaintiff filed this action alleging that the refusal to

allow him into a prison boot camp program because of high

1Sa

blood pressure violated his rights under Title II of the Ameri-

cans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165;

his fourteenth amendment right to equal protection; his eighth

amendment right (as guaranteed under the fourteenth amend-

ment) to be free from cruel and unusual punishment; and his

right to due process as guaranteed under Article I, § I of the

Pennsylvania Constitution. The plaintiff invokes 42 U.S.C.

§ 1983 in connection with his federal claims. He seeks dam-

ages and declaratory and injunctive relief, including an injunc-

tion requiring the defendant to release the plaintiff from con-

finement on the date he would have been released if he had

been allowed into the boot camp program.

Because we are dealing with a motion to dismiss, we must

accept as true the factual allegations in the complaint and

construe any inferences to be drawn from them in the plain-

tiff’s favor. See Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993).

With this standard in mind, we set forth the background to this

litigation, as the plaintiff alleges it.

In May 1994, the plaintiff was sentenced in state court

after a guilty plea to eighteen to thirty-six months imprison-

ment. (Complaint, { 9). The sentencing court recommended

his placement in the state's boot camp program which would

have allowed him to be released on parole if he successfully

completed the six-month program. (/d., { 10). On July 1, 1994,

while the plaintiff was housed at SCI-Camp Hill awaiting clas-

sification, he was refused entry into the boot camp program

“due to a medical history of hypertension (on medication).”

(/d., 4 11). He was also refused entry into “any alternative

program offering to disabled persons . .. the same benefits as

the Motivational Boot Camp Program.” (/d., ¥ 12). He then

filed suit, setting forth the causes of action noted above.’

Il. Procedural Background.

The defendants moved to dismiss all of the claims. In

regard to the ADA, they made two arguments. First, the

plaintiff had no right under state law to admission to the pro-

gram so even if he had not been denied entrance on the basis

1. The case was filed in the Western District of Pennsylvania but was

transferred here on motion of the defendants.

16a

is high blood pressure, the plaintiff cannot establish that

of parry 5 have ha admitted to the program in any event.

Second, the ADA does not require accommodation that

would destroy the essential nature of a program. Since rigor-

ous physical activity is essential to the boot camp program,

plaintiff cannot be accommodated since his hypertension pre-

vents him from being physically active. In regard to the equal

protection claim, they argued that the decision to exclude him

was a rational one based on his condition. In regard to relief

under section 1983, they argued that the Department could

not be sued because the eleventh amendment bars suit against

the state and because the Department is not a “person (using

the language of the section) who can be sued under it. Finally,

in regard to the state constitutional claim, they argued that we

should not retain jurisdiction once the federal claims were

gone and that, in any event, state law immunized all of the

defendants from this claim.

In his report the magistrate judge recommended that the

motion be granted. Noting that admission to the boot camp

was discretionary with Department officials, he disposed of

the ADA claim as follows:

[Whether or not the — . a os wap gang :

isability pursuant to the is O nt,

: well ph mer that a state prisoner, whether disabled, or

not, does not have a protected liberty interest in matters

of classification or particular custody status, and none is

provided by the ADA or federal law. [citations omitted].

Moreover, an inquiry by this Court into matters of prison

administration, such as classification or custody ‘Status

would necessarily interfere with the administration's right

to police its penal system. These administration (sic)

determinations have consistently and correctly been left

to the prison management's sound discretion.

i j ‘ kets added). The

magistrate judge’s report at pps. 5-6) (bracket

0 nae judge then found the equal protection claim defi-

cient by reasoning that: (1) disabled persons are not a class

protected by the clause; and (2) the defendants had not inten-

tionally discriminated because they did not refuse him

ma.

17a

entrance on the basis of his membership in a disfavored group

but because of his high blood pressure. The magistrate judge

next concluded that the eighth amendment claim was invalid

because the eighth amendment only protects against the

unnecessary and wanton infliction of pain and refusal of entry

into the program does not satisfy this standard. The magistrate

judge did not address the supplemental state constitutional

claim.

The plaintiff then filed his objections which concentrate

on the substance of his ADA claim. First, the plaintiff con-

tends that the magistrate judge erred in dismissing the ADA

claim on the basis that he cannot assert a constitutional right

to participation in the boot camp program. Second, he objects

that the magistrate judge erred in requiring a constitutional

violation for a section 1983 claim because a violation of a fed-

eral statute, here the ADA, is all that is necessary.

In opposing the objections, the defendants argue for the

first time that there is no ADA claim because the ADA does

not apply to state prisons, relying on cases decided after the

briefing of the motion to dismiss. They also contend that the

section 1983 claim must fail because that claim requires either

a federal constitutional or statutory violation and the plaintiff

cannot establish either kind of violation here.

Ill. Discussion.

We will deal first with the defendants’ threshold argument

that the ADA does not apply to state prisons. The argument

is based on Little v. Lycoming County, 912 F. Supp. 809 (M.D.

Pa. 1996), a case decided by another judge of this court, and

Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied

sub nom. Torcasio v. Angelone, it Se. FT

772, 133 L.Ed.2d 724 (1996). We need only discuss Torcasio

since Little simply adopts its reasoning.

It will be helpful to preface our discussion with the perti-

nent sections of Title II of the ADA. Section 12132 prohibits

discrimination against the disabled and provides as follows:

Subject to the provisions of this subchapter [Title

IIT}, no qualified individual with a disability shall, by rea-

son of such disability, be excluded from participation in or

18a

be denied the benefits of the services, programs, or activi-

ties of a public entity, or be subjected to discrimination by

any such entity.

42 U.S.C. S$ 12132 (brackets added).

Section 12131(1), the definitional section for Title II, defines a

“public entity” as follows:

(A) any State or local government;

(B) any department, agency, special purpose district,

or other instrumentality of a State or States or local gov-

ernment;

42 U.S.C. § 12131(1)(A) and (B)

In Torcasio, the Fourth Circuit stated that section

12131(1) did not cover state prisons. It therefore held on the

issue before it, whether Virginia prison officials were entitled

to qualified immunity, that the plaintiff prisoner's claim under

Title II of the ADA was barred by this defense. In the Fourth

Circuit’s perception, section 12131(1)’s language, “when

viewed in isolation, appears all-encompassing,” 57 F.3d at

1344, but was actually too “broad” and “non-specific” to be

able to say that it was “clearly establishe[d]” that the ADA

applied to state prisons. Jd. at 1346 (brackets added). Hence,

the defendants could not be subjected to liability since quali-

fied immunity protected them against all claims based on a

violation of a federal right except those rights that were

clearly established. Jd. at 1343.

Although decided in the context of qualified immunity,

Torcasio is relevant here because the court essentially rea-

soned that the ADA does not apply to state prisons. See Little,

supra, (applying Torcasio in dismissing an ADA claim on the

merits); Staples v. Virginia Department of Corrections, 904 F.

Supp. 487, 490 n.1 (Mag. Judge E.D. Va. 1995) (relying on

Torcasio in dismissing the ADA claim against one defendant

and commenting that “with its ruling ... the Fourth Circuit

has all but held that, per se, the ADA does not apply to state

prison facilities”).

19a

Despite the plaintiff's citation to other cases that have

applied the ADA to state prisons, we have decided to follow

Torcasio and Little. Based on this decision, we need not exam-

ine the plaintiff's objections.

We will issue an appropriate order.

/s/ William W. Caldwell

William W. Caldwell

United States District Judge

Date: April 9, 1996

20a

FILED

HARRISBURG, PA

APR 9 1996

MARY E. D’ANDREA, CLERK

Per

Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY,

Plaintiff

vs. - CIVIL ACTION NO.

1:CV-95-2125

COMMONWEALTH OF

PENNSYLVANIA,

et al.,

Defendants :

ORDER

AND NOW, this 9th day of April, 1996, upon consider-

ation of the report of the magistrate judge, dated January 23,

1996, and the objections filed, and upon independent review of

the record, it is ordered that:

1. The defendants’ motion to dismiss is granted.

2. The plaintiff's federal claims are dismissed and his state

constitutional claim is dismissed without prejudice to its filing

in an appropriate state court.

3. The Clerk of Court shall close this file.

/s/ William W. Caldwell

William W. Caldwell

United States District Judge

2la

TEXT OF THE CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

AMENDMENT X

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.

U.S. CONST. amend. X.

AMENDMENT XIV

Section 1.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Section 5.

The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.

U.S. CONST. amend. XIV.

42 U.S.C. § 12132 (1997)

(Title II of the ADA of 1990)

Section 12132. Discrimination

Subject to the provisions of this title, no qualified indi-

vidual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be sub-

jected to discrimination by any such entity.

22a

29 U.S.C. § 794 (1997)

(Rehabilitation Act of 1978)

Section 794, Nondiscrimination under Federal grants and pro-

grams; promulgation of rules and regulations

(a) Promulgation of nondiscriminatory rules and regula-

tions; copies to appropriate committees. No otherwise quali-

fied individual with a disability in the United States, as defined

in section 7(8) [29 U.S.C. § 706(8)], shall, solely by reason of

her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance

or under any program or activity conducted by any Executive

agency or by the United States Postal Service. The head of

each such agency shall promulgate such regulations as may be

necessary to carry out the amendments to this section made by

the Rehabilitation, Comprehensive Services, and Develop-

mental Disabilities Act of 1978. Copies of any proposed regu-

lation shall be submitted to appropriate authorizing commit-

tees of the Congress, and such regulation may take effect no

earlier than the thirtieth day after the date on which such

regulation is so submitted to such committees.

(b) “Program or activity” defined. For the purposes of

this section, the term “program or activity” means all of the

operations of —

(1) (A) a department, agency, special purpose dis-

trict, or other instrumentality of a State or of a local govern-

ment; or

(B) the entity of such State or local government

that distributes such assistance and each such department or

agency (and each other State or local government entity) to

which the assistance is extended, in the case of assistance to a

State or local government;

(2) (A) a college, university, or other postsecondary

institution, or a public system of higher education; or

(B) a local educational agency (as defined in sec-

tion 14101 of the Elementary and Secondary Education Act of

1965 [20 U.S.C. § 8801]), system of vocational education, or

other school system;

23a

(3) (A) an entire corporation, partnership, or other

private organization, or an entire sole proprietorship —

(i) if assistance is extended to such corpora-

tion, partnership, private organization, or sole proprietorship

as a whole; or

(ii) which is principally engaged in the busi-

ness of providing education, health care, housing, social ser-

vices, or parks and recreation; or

(B) the entire plant or other comparable, geo-

graphically separate facility to which Federal financial assis-

tance is extended, in the case of any other corporation, part-

nership, private organization, or sole proprietorship; or

(4) any other entity which is established by two or

more of the entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assistance.

(c) Small providers; exceptions to existing facilities. Smal!

providers are not required by subsection (a) to make signifi-

cant structural alterations to their existing facilities for the

purpose of assuring program accessibility, if alternative means

of providing the services are available. The terms used in this

subsection shall be construed with reference to the regulations

existing on the date of the enactment of this subsection

[enacted March 22, 1988].

(d) Standards applicable to complaints. The standards

used to determine whether this section has been violated in a

complaint alleging employment discrimination under this sec-

tion shall be the standards applied under title I of the Ameri-

cans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)

and the provisions of sections 501 through 504, and 510, of the

Americans with Disabilities Act of 1990 (42 U.S.C. 12201-

12204 and 12210), as such sections relate to employment.