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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 206

## Text

(\) se Se oe
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
COUSIN PIRES EID, 00. ccc ccc cc ccccceccesees i
ee cece seb ebccbbcccccoccececes il
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0128%3A02. Public record. Not legal advice.