Joint Appendix — Pennsylvania Dept. of Corrections v. Yeskey

Supreme Court, U.S. |

a .

No. 97-634

5 P ink, &

WAR 4 1998

IN THE

TTE RK

Supreme Court of the United States

OCTOBER TERM, 1997

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS, ET AL.,

Petitioners,

v.

RONALD R. YESKEY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

JOINT APPENDIX

PAUL A. TUFANO* DONALD SPECTER*

General Counsel Prison Law Office

Commonwealth of Pennsylvania General Delivery

San Quentin, CA 94964

SYNDI L. GUIDO .

Deputy General Counsel Telephone (415) 457-9144

EVE H. CERVANTEZ

Office of General Counsel emai Mie Sinenseunahe

333 Market Street

Canady, Falk & Rabkin

17th Floor

3 Embarcadero Center,

Harrisburg, PA 17101 7th

pe + a San Francisco, CA 94111

Telephone (415) 434-1600

Counsel for Respondent

*Counsel of Record

a

PETITION FOR CERTIORARI FILED OCTOBER 8, 1997

CERTIORARI GRANTED JANUARY 23, 1998

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TABLE OF CONTENTS

Page

atenenet Thal GRINS «oss 0 05csccunesscccsvdecess JA-1

Rages COMMEND 2... sv ecacesinessccsusteees JA-3

Petitioner's Motion to Dismiss, or, in the Alternative,

Tee ee JA-13

Supplement to the Petitioner's Motion to Dismiss... ... JA-19

Report and Recommendation of the Magistrate Judge

for the Western District Court of Pennsylvania .... JA-76

Memorandum Order of the Western District Court

Transferring the Action to the Middle District

Cth GE FOCI «oh 6:00 seRKCN eae ovens JA-8]

Report and Recommendation of the Magistrate Judge

for the Middle District Court... ................ JA-83

Respondent's Statement of Objections to the Magistrate

Judge’s Report and Recommendation ............ JA-92

Memorandum and Order of the Middle District Court. JA-95

Respondent's Notice of Appeal to the Court of Appeals

my Ge Wes GO gc. odin c oc uh cc once ckcnceccs JA-1

Pe i ck en eae, eee JA-1

Opinion of the Court of Appeals for the Third Circuit .. JA-1:

Judgment .of. the Court.of Appeals for the.Third Circuit . JA-135

Petitioner's Motion to Stay Proceedings in the Middle

Se GD ek op cateelae nent: anes JA-137

Order of the Middle District Court Granting the Motion

jl PPYRPTT eee res ee eee JA-144

JA-l

RELEVANT DOCKET ENTRIES

DATE PROCEEDING

The United States District Court for the

Western District of Pennsylvania

12/21/94 Complaint

4/24/95 Motion to Dismiss, or, in the Alternative,

Motion to Transfer

5/25/95 Petitioner's Brief in Support of the Motion to

Dismiss

6/8/95 Petitioner's Supplement to the Motion to Dis-

miss

6/20/95 Respondent's Brief in Response to the Motion

to Dismiss

10/19/95 Report and Recommendation of the Magistrate

Judge

11/9/95 Memorandum Order

12/13/95 Case Transferred to the Middle District Court

of Pennsylvania

The United States District Court for the

Middle District of Pennsylvania

1/23/96 Report and Recommendation of the Magistrate

Judge

2/8/96 Respondent's Objections

2/8/96 Respondent's Brief in Support of Objections

2/13/96 Petitioner's Brief in Opposition to Objections

4/9/96 Memorandum and Order Granting Motion to

Dismiss

5/7/96 Notice of Appeal

7/1/96

8/1/96

T/LO/97

T/LO/9T

9/30/97

LOW/AT

JA-2

The Court of Appeals for the Third Circuit

Respondent's Brief

Petitioner's Brief

Opinion

Judgment

The United States District Court for the Middle

District of Pennsylvania

Petitioner's Motion to Stay the Proceedings

Order Granting Motion to Stay Proceedings

Ja-3

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CIVIL DIVISION

CIVIL ACTION NO.

94 2180

JURY TRIAL DEMANDED

~—

RONALD R. YESKEY,

Plaintiff,

vs.

THE COMMONWEALTH OF

PENNSYLVANIA

DEPARTMENT OF

CORRECTIONS,

JOSEPH D. LEHMAN,

JEFFREY A. BEARD, Ph.D.,

JEFFREY K. DITTY,

| HEREBY CERTIFY THE WITHIN

TO BE A TRUE AND CORRECT

COPY OF THE ORIGINAL.

DOES NUMBER | THROUGH /s/ L. Abraham Smith

20, INCLUSIVE, L. Abraham Smith, Esq.

Defendants. Attorney for Plaintiff

COMPLAINT

Plaintiff, Ronald R. Yeskey, brings this complaint by and

through his attorney, L. Abraham Smith, Esquire, and alleges as

follows:

INTRODUCTION (PARTIES AND JURISDICTION)

1. Plaintiff Ronald R. Yeskey is a [sic] adult citizen of the

United States and the Commonwealth of Pennsylvania, and a

resident of Hempfield Township, Westmoreland County, Pennsyl-

vania. At all times pertinent hereto Plaintiff was and has been

incarcerated in the custody of the Defendant Commonwealth of

Pennsylvania Department of Corrections, within the custody and

control of said Defendant and their

2. Plaintiff brings this civil rights action to enforce Plaintiff's

rights under the Americans With Disabilities Act of 1990 (42

U.S.C. §12101, et seq.), and to redress the deprivation under

color of state law of rights, privileges and immunities secured to

Plaintiff by provisions of the Fifth, Eighth and Fourteenth

Amendments to the United States Constitution, and Article 1,

section | of the Pennsylvania Constitution. Plaintiff alleges that

he has been denied access to programs, opportunities and ben-

ja-4

fits offered by the Defendant Department of Corrections on the

Ga to hoquiiebeanenth aden Plaintiff alleges

further that the aforementioned acts and/or policies and practices

of Defendants and their employees are knowing, deliberate and

intentional, in disregard for the rights, health and well-being

Plaintiff, and that such acts, policies and practices are contrary to

law, shocking to the consci@nce of civilized persons, and intoler-

able in a society purportedly governed by laws and considerations

: ‘eSS. :

7 “. This Court's jurisdiction is invoked pursuant to 28 U.S.C.

§§ 1331, 1343(a)(3) and (4). Plaintiff's claims are authorized by 28

U.S.C. §§2201 and 2202. The substantive claims herein arise

under the Americans With Disabilities Act of 1990 (42 ps

§12101, et seq.); 42 U.S.C. §1983; and the Fifth, Eighth a1

Fourteenth Amendments to the United States Constitution.

Plaintiff further invokes the supplemental jurisdiction of this

Court pursuant to 28 U.S.C. §1367 to hear and decide _—

arising under state law and based upon a common nucleus

~“ rh Commonwealth of Pennsylvania Department

of Corrections is an agency of the Commonwealth of Pennsylva-

nia possessing the corporate power to sue and be sued. Its Son

cipal mailing address is P.O. Box 598, Camp Hill, Pa, | .

0598, and its main office is located at 2520 Lisburn Road, Camp

Hill, Pa., 17001. The Department is delegated the responsibility

for the administration and supervision of the correctional facilities

within the state correctional system, including the maintenance of

facilities and programs relative thereto, and the promulgation,

administration, and enforcement of rules and regulations govern-

ing the conduct of such facilities and programs, and the protes-

tion of the rights of the citizenry of the Commonwealth of Penn-

sylvania. 7 7

. Defendant D. Lehman, is a resident of the Com

«ian of me ath and is and always has been, at all

times pertinent hereto, the a of hoes

ia, nt of Corrections. -

whee 20. Bon 808. Camp Hill, Pa., 17001-0598, and the

location of his office is 2520 Lisburn Road, Camp Hill, Pa.,

17001. Defendant is responsible for the administration, operation

JA-5

and supervision of the Department, and for the promulgation and

enforcement of rules, regulations, policies and practices relevant

thereto, and at all «mes relevant hereto was acting in that capac-

ity and under colo. of state law. Defendant is sued herein indi-

vidually and in his official capacity as to Count 1; as to Counts II

and III, Defendant is sued in his individual capacity only.

6. Defendant Jeffrey A. Beard, Ph.D., is a resident of the

Commonwealth of Pennsylvania and is and always has been, at all

times pertinent hereto, the Superintendent of the State Correc-

tional Institution at Camp Hill, Pa. His principal office is SCI -

Camp Hill, P.O. Box 8837, Camp Hill, Pa., 17001-8837. Defen-

dant is responsible for the administration, operation and supervi-

sion of said Institution, and for the promulgation and enforce-

ment of rules, regulations, policies and practices relevant thereto,

and at all times relevant hereto was acting in that capacity and

under color of state law. Defendant is sued herein individually

and in his official capacity as to Count 1; as to Counts I and III,

Defendant is sued in his individual capacity only.

7. Defendant Jeffrey K. Ditty is a resident of the Common-

wealth of Pennsylvania and is and always has been, at all times

pertinent hereto, the Director of the Central Diagnostic and

Classification Center, Unit #2, of the State Correctional Institu-

tion at Camp Hill, Pa. His principal office is SCI - Camp Hill,

P.O. Box 8837, Camp Hill, Pa., 17001-8837. Defendant is respon-

sible for the administration, operation and supervision of the

selection of inmates for the Motivational Boot Camp Program,

and for the promulgation and enforcement of rules, regulations,

policies and practices relevant thereto, and at all times relevant

hereto was acting in that capacity and under color of state law.

Defendant is sued herein individually and in his official capacity

as to Count 1; as to Counts II and III, Defendant is sued ir his

individual capacity only.

8. Defendants, Does number | through 20, inclusive, are

persons employed or contracted by the named Defendants, or

persons whose actions are otherwise responsible for the violations

of the statutes and constitutional rights alleged in this action. The

identifies [sic] of such persons are at the time of the filing of this

complaint unknown, and are expected to be ascertained through

the normal processes of discovery.

JA-6

PRELIMINARY FACTS:

9. Commencing in May, 1994 Plaintiff Ronald R. Yeskey was

committed to the custody of Defendant Commonwealth of Penn-

sylvania, Department of Corrections, by order of the Honorable

Richard E. McCormick, Jr., Court of Common Pleas, Westmore-

land County, Pennsylvania, to serve a sentence of eighteen (18) to

thirty-six (36) months incarceration, following a guilty plea

entered in state criminal court.

10. At the time of sentencing, the Court's sentencing order

included a recommendation that Plaintiff be placed in the Defen-

dant Department of Corrections’ Motivational Boot Camp pro-

gram, which program would have conferred upon Plaintiff the

statutory benefit of being released on parole upon successful

completion of said program (which program was approximately

six (6) months in duration.)

11. On or about July 1, 1994, while in Defendant's custody

and housed at the Central Diagnostic and Classification Center at

the State Correctional Institution at Camp Hill, Pennsylvania,

Plaintiff was notified by the Defendant Department of Correc-

tions that said Defendant had determined that Plaintiff was ineli-

gible for participation in the Motivational Boot Camp program.

The said Defendant based this decision on the fact that the Plain-

tiff was medically disapproved for participation in the program

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

12. Despite repeated requests by Plaintiff, the Defendant

Department of Corrections failed and refused to reconsider their

decision deeming Plaintiff ineligible for participation in the Moti-

vational Boot Camp program; further, the Department of Correc-

tions has failed and refused to establish and/or advise Plaintiff of

any alternative program offering to disabled persons such as the

Plaintiff the same benefits as the Motivational Boot Camp Pro-

gram.

JA-7

COUNT I: CLAIMS PURSUANT TO TITLE Il OF THE

AMERICANS WITH DISABILITIES ACT OF 1990 (42

U.S.C, §12101, et seq.)

13. Plaintiff hereby incorporates by reference paragraphs |

through 12 of this complaint as though fully set forth at length

herein.

14. That Ronald R. Yeskey is a qualified individual with a

disability, within the meaning of the ADA.

15. That the Commonwealth of Pennsylvania, Department

of Corrections is a public entity within the meaning of the ADA.

16. That the Motivational Boot Camp program is a service,

program, or activity of a public entity within the meaning of the

ADA.

17. That the Department of Corrections denied Plaintiff

admission to the Motivational Boot Camp Program solely based

upon his status as an individual with a disability.

18. That the actions of the Department of Corrections con-

stitute a violation of the ADA, by specifically violating the provi-

sions of said statute and the regulations promulgated thereunder

by the United States Department of Justice, in the following

respects:

i.) by denying a qualified individual with a disability the

opportunity to participate in or benefit from the aid, benefit,

or service offered by the public entity;

ii.) by affording a qualified individual with a disability an

opportunity to participate in or benefit from the aid, benefit,

or service that is not equal to that afforded others;

iii.) by providing a qualified individual with a disability

with an aid, benefit, or service that is not as effective in

affording equal opportunity to obtain the same result, to gain

the same benefit, or to reach the same level of achievement

as that provided to others;

iv.) by otherwise limiting a qualified individual with a

disability in the enjoyment of any right, privilege, advantage,

or opportunity enjoyed by others receiving the aid, benefit,

or service; and,

JA-8

v.) by utilizing criteria or methods of administration that

have the effect of subjecting qualified individuals with dis-

abilities tg discrimination on the basis of disability;

vi.) by utilizing criteria or methods of administration

that have the purpose or effect of substantially impairing

accomplishment of the objectives of the public entity's pro-

gram with respect to individuals with disabilities.

WHEREFORE, the Plaintiff claims the damages specified

hereinafter, jointly and severally, against each defendant.

COUNT Il: CIVIL RIGHTS CLAIMS PURSUANT TO 42

U.S.C. §1983

19. Plaintiff hereby incorporates by reference paragraphs |

through 18 of this complaint as though fully set forth at length

herein.

20. Defendants, their agents and employees, with knowl-

edge of Plaintiff's circumstances, and/or with deliberate indiffer-

ence to such circumstances, have acted or failed to act in such a

way as to deprive Plaintiff of the equal protection of the law. Such

acts and omissions of the Defendants violate rights secured to the

Plaintiff under the Fourteenth Amendment to the United States

Constitution.

21. Defendants, their agents and employees, with knowl-

edge of Plaintiff's circumstances, and/or with deliberate indiffer-

ence to such circumstances, have acted or failed to act in such

manner as to inflict upon Plaintiff cruel and unusual punishment.

Such acts and omissions of the Defendants violate rights secured

to the Plaintiff under the Eighth Amendment to the United

States Constitution.

22. Defendants, their agents and employees, with knowl-

edge of Plaintiff's circumstances, and/or with deliberate indiffer-

ence to such circumstances, have acted or failed to act in such

manner as to violate Plaintiff's rights established by the ADA and

the regulations promulgated thereunder.

23. The Defendants’ aforesaid actions and/or omissions

were intentional and/or wilful and/or intentional.

24. The Defendants’ aforesaid actions and/or omissions

were committed under color of law and/or pursuant to policies,

JA-9

customs, practices, rules, regulations, ordinances, statutes and/or

usage of the Commonwealth of Pennsylvania Department of Cor-

rections.

WHEREFORE, the Plaintiff claims the damages specified

hereinafter, jointly and severally, against each defendant.

COUNT III: CLAIM FOR VIOLATION OF CIVIL RIGHTS

GUARANTEED BY THE CONSTITUTION OF THE COM-

MONWEALTH OF PENNSYLVANIA.

25. Plaintiff hereby incorporates by reference paragraphs |

through 18 of this complaint as though fully set forth at length

herein.

26. Plaintiff invokes the supplemental jurisdiction of this

Court pursuant to 28 U.S.C. §1367 to hear and decide claims

arising under state law and based upon a common nucleus of

operative fact with those in Count 1.

27. At all times relevant hereto the Defendants were acting

under color of authority granted them by the laws of the Com-

monwealth of Pennsylvania.

28. As a result of the intentional and/or wilful actions of the

Defendants, the Plaintiff's rights as a citizen of the Common-

wealth of Pennsylvania, being born free and independent, and

having certain inherent and inalienable rights, among which are

those of enjoying and defending life and liberty, of acquiring,

possessing and protecting property and reputation, and of pursu-

ing his own happiness, as guaranteed by Article I, section | of the

Constitution of the Commonwealth of Pennsylvania were

infringed and denied by the Defendants, acting both jointly and

severally.

WHEREFORE, the Plaintiff claims the damages specified

hereinafter, jointly and severally, against each defendant.

DAMAGES:

29. As a result of the conduct of all Defendants, the Plain-

tiff has suffered, and will continue to suffer, damages including,

but not limited to, violations of Plaintiff's rights established by the

JA-10

Americans With Disabilities Act of 1990, and the Constitutions of

the Commonwealth of Pennsylvania and of the United States of

America.

30. As a result of the conduct of Defendants, the Plaintiff

has suffered, and will continue to suffer, continued incarceration

beyond that imposed upon similarly situated non-disabled per-

sons incarcerated within the facilities of the Pennsylvania Depart-

ment of Corrections.

31. As a result of the conduct of Defendants, the Plaintiff

has suffered, and will continue to suffer, mental stress, mental

anguish and trauma, emotional distress, humiliation, depression,

interference with social relations, loss of enjoyment of life, suffer-

ing and inconvenience.

32. As a direct and proximate result of the injuries sus-

tained, Plaintiff has been deprived, and will continue to be

deprived of the ordinary pleasures of life.

33. As a direct and proximate result of the injuries sus-

tained, Plaintiff has in the past suffered and will continue to suf-

fer a loss of earnings, and/or his earning power has been dimin-

ished or lessened and/or will continue to be diminished or

lessened.

34. As a direct and proximate result of the above described

actions and omissions of Defendants, Plaintiff has suffered gen-

eral damages, exclusive of interest and costs, the exact amounts of

which will be proven at trial.

35. To the extent that monetary damages are in themselves

inadequate, and Plaintiff has been suffering and will continue to

suffer irreparable harm from Defendants’ actions, policies, and

procedures, and from the violations of the laws complained of

herein; accordingly, declaratory and injunctive relief is necessary

and appropriate.

WHEREFORE, Plaintiff respectfully prays:

a.) That this Court assume jurisdiction;

b.) That this Court award Plaintiff monetary damages as

permitted by law, including punitive damages;

c.) That this Court issue a declaratory judgment and a pre-

liminary and permanent injunction to immediately enjoin Defen-

JA-11

dants from administering the Motivational Boot Camp Program

without complying with Title 11 of the ADA and the federal regu-

lations promulgated thereunder;

d.) That this Court issue a declaratory judgment and a pre-

liminary and permanent injunction to immediately enjoin Defen-

dants from detaining Plaintiff in their custody beyond the chro-

nological point when Plaintiff would have been released had he

been admitted to and successfully completed the Boot Camp

Program (which is the tangible benefit associated with the pro-

gram by state statute); -

e.) That this Court preliminarily and permanently enjoin

Defendants to submit plans to the Court for implementation of

the aforesaid;

f.) Award the Plaintiff the costs of bringing this action, and

award reasonable fees and expenses to Plaintiff's attorney; and,

g.) That this Court award such additional or alternative

relief as may be just, proper and equitable.

Respectfully submitted,

DATED: 12/19/94 /s/ L. Abraham Smith

L. Abraham Smith, Esquire

Attorney for Plaintiff.

Pa. 1.D. #69020

P.O. Box 1644

3reensburg, PA 15601-7644

(412) 423-8614

JA-12

DEMAND FOR JURY TRIAL

Plaintiff Ronald R. Yeskey, by and through his undersigned

attorney, hereby demands a trial by jury as to all issues so triable

herein.

DATED: 12/19/94 /s/ L. Abraham Smith

L.. Abraham Smith, Esquire

Attorney for Plaintiff.

Pa. 1.D. #69020

JA-13

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY,

Plaintiff,

Vv.

)

)

)

)

THE COMMONWEALTH OF ) Civil Action No. 94-2180

PENNSYLVANIA DEPARTMENT ) Judge Alan N. Bloch/

OF CORRECTIONS, ) Magistrate Judge Sensenich

JOSEPH D. LEHMAN, )

JEFFREY A. BEARD, Ph.D., )

JEFFREY K. DITTY, DOES )

NUMBER | THROUGH 20, )

INCLUSIVE, )

Defendants. )

MOTION TO DISMISS, OR, IN THE ALTERNATIVE,

MOTION TO TRANSFER

Defendants, by their attorneys, Ernest D. Preate, Jr., Attor-

ney General, Gloria A. Tischuk, Deputy Attorney General, and

John G. Knorr, II, Chief Deputy Attorney General, Chief, Liti-

gation Section, move, pursuant to Rule 12(b)(3), to dismiss this

action due to improper venue, or, in the alternative, to transfer

this action; and, also, pursuant to Article III, and the Eleventh

Amendment, for lack of jurisdiction and, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure; and, in support,

submit the following:

1. Plaintiff is Ronald R. Yeskey, an inmate currently incar-

cerated at the State Correctional Institution at Greensburg, in

Westmoreland County, Pennsylvania.

2. Plaintiff does not complain about any event or incident

that occurred at the State Correctional Institution at Greensburg,

or, in Westmoreland County, Pennsylvania, or, in the Western

District of Pennsylvania.

3. The Defendants are: The Commonwealth of Pennsylva-

nia, Department of Corrections; the former Superintendent of

the Department, Joseph D. Lehman, in Harrisburg, Pennsylva-

nia; Jeffrey A. Beard, the Superintendent at the State Correc-

tional Institution at Camp Hill, Pennsylvania; Jeffrey K. Ditty, the

JA-14

Director of the Central Diagnostic and Classification Center at

the State Correctional Institution at Camp Hill, Pennsylvania.

Plaintiff has also included in the caption unnamed “John Doe”

defendants, none of whom are identified and none of whom have

been served.

4. All of the Defendants are located in the Middle District

of Pennsylvania.

5. Plaintiff's complaint arises from the alleged refusal of the

individual defendants to permit him to participate in the Motiva-

tional Boot Camp program due to his medical history of hyper-

tension, on medication, and the plaintiff's conclusion that this

denial violated Title 11 of the Americans with Disabilities Act.

6. Plaintiff also includes separate Counts under the federal

civil rights act, 42 U.S.C. Section 1983, for violation of plaintiff's

fifth, eighth and fourteenth amendment rights, and for alleged

oa of the rights guaranteed by the Pennsylvania Constitu-

tion.

7. Defendants move to dismiss these counts on the follow-

ing grounds:

A. The complaints based upon the Pennsylvania Consti-

tution and 42 U.S.C. Section 1983 against the Commonwealth of

Pennsylvania and the Department of Corrections are barred by

the eleventh amendment.

B. The complaints based upon the Pennsylvania Consti-

tution and 42 U.S.C. Section 1983 against the individual defen-

dants in their official capacities for damages are barred by the

eleventh amendment. Although plaintiff alleges that defendants

are sued in their individual capacities, his allegations arise from

their official supervisory positions and is [sic] premised on theo-

ries of respondeat superior or vicarious liability.

C. Neither the Commonwealth, the Department nor the

individual defendants in their official capacities are “persons”

within the meaning of Section 1983; and, therefore, the com-

plaints alternatively fail to state a claim upon which relief can be

granted.

D. All claims under state law are alternatively barred by

the Pennsylvania Sovereign Immunity Act. .

E. The complaint, in general, fails to state a claim upon

which relief can be granted.

JA-15

F. Venue in the United States District Court for the

Western District of Pennsylvania is improper.

8. In his complaint, plaintiff alleges that the actions or deci-

sions about which he complains were made in the Middle District

of Pennsylvania by the individual defendants, who are all located

in the Middle District of Pennsylvania.

9. Section 1391(b) of the United States Judicial Code, 28

U.S.C. Section 1391(b), provides that a civil action, other than

one based on diversity of citizenship, may be brought in the judi-

cial district where any defendant resides, in the judicial district

where a “substantial part of the events or omissions giving rise to

the claim occurred,” or where any defendant may be found.

10. The complaint alleges, and there is no dispute, that all

defendants reside in the Middle District and that the alleged

events or omissions giving rise to the claim occurred in the

Middle District.

11. Since this is the case, and venue is improper, then pur-

suant to Section 1406, 28 U.S.C. Sec. 1406, provides that the case

“laying venue in the wrong division or district”, shall be dis-

missed.

12. Alternatively, Section 1406 also provides that “if it [is] in

the interest of justice,” the case may be transferred to any district

in which it could have been brought.

13. In this case, the United States District Court for the

Middle District of Pennsylvania is the district where this civil

action could have been brought.

14. In addition to protecting litigants, witnesses and the

public from unnecessary expense and inconvenience, and to avoid

a waste of time, energy and money, all of the relevant consider-

ations for venue purposes reveal that this case, if not dismissed

for improper venue, should be transferred to the United States

District Court for the Middle District of Pennsylvania.

15. This motion to dismiss or alternatively to transfer on

grounds of improper venue is not meant and is not intended to

waive, and the defendants are not waiving the constitutional

immunity conferred by the Eleventh Amendment or any statutory

immunity conferred as a matter of state law, or any ground for

dismissal set forth in this motion, should any transfer occur.

JA-16

WHEREFORE, it is requested that this motion be granted

and that the proposed order be entered, dismissing this action

with prejudice or, alternatively, transferring this action for dispo-

sition of these matters by the United States District Court for the

Middle District of Pennsylvania.

Respectfully submitted,

ERNEST D. PREATE, JR.

Attorney General

By: /s/ Gloria A. Tischuk

Gloria A. Tischuk

Deputy Attorney General

PA ID. 44155

John G. Knorr, III

Chief Deputy Attorney General

Chief, Litigation Section

OFFICE OF ATTORNEY GENERAL

4th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

Date: April 21, 1995

JA-17

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY,

Plaintiff,

v.

)

)

)

)

THE COMMONWEALTH OF ) Civil Action No. 94-2180

PENNSYLVANIA DEPARTMENT ) Judge Alan N. Bloch/

OF CORRECTIONS, ) Magistrate Judge Sensenich

JOSEPH D. LEHMAN, )

JEFFREY A. BEARD, Ph.D. )

JEFFREY K. DITTY, DOES )

NUMBER | THROUCH 20, )

INCLUSIVE, )

Defendants. )

CERTIFICATE OF SERVICE

| hereby certify that a true and correct copy of the within

Motion to Dismiss, Or, In the Alternative, Motion to Transfer was

served upon the following via first-class mail on April 21, 1995.

L.. Abraham Smith, Esquire

P.O. Box 1644

Greensburg, PA 15601-7644

/s/ Gloria A. Tischuk

Gloria A. Tischuk

Deputy Attorney General

OFFICE OF ATTORNEY GENERAL

4th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

Date: April 21, 1995

JA-18

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY,

Plaintiff,

Vv.

)

)

)

)

THE COMMONWEALTH OF ) Civil Action No. 94-2180

PENNSYLVANIA DEPARTMENT ) Judge Alan N. Bloch/

OF CORRECTIONS, ) Magistrate Judge Sensenich

JOSEPH D. LEHMAN, )

JEFFREY A. BEARD, Ph.D., )

JEFFREY K. DITTY, DOES )

NUMBER | THROUGH 20, )

)

)

INCLUSIVE,

Defendants.

ORDER OF COURT

AND NOW, this day of :

1995, upon consideration of the foregoing motion to dismiss, or,

in the alternative, to transfer, it is hereby ORDERED that this

motion is GRANTED.

I.

It is hereby ORDERED that this action is DISMISSED

with prejudice.

I.

It is hereby ORDERED that the motion to transfer this

action is GRANTED and that this action is transferred to the

United States District Court for the Middle District of Pennsyl-

vania.

By the Court:

JA-19

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

7

RONALD R. YESKEY,

Plaintiff,

v.

)

)

)

)

THE COMMONWEALTH OF ) Civil Action No. 94-2180

PENNSYLVANIA DEPARTMENT ) _ Judge Alan N. Bloch/

OF CORRECTIONS, ) Magistrate Judge Sensenich

JOSEPH D. LEHMAN,

JEFFREY A. BEARD, Ph.D., )

JEFFREY K. DITTY, DOES )

NUMBER | THROUGH 20, )

INCLUSIVE, )

Defendants. )

SUPPLEMENT TO THE COMMONWEALTH

DEFENDANTS’ MOTION TO DISMISS,

OR, IN THE ALTERNATIVE,

MOTION TO TRANSFER

The Commonwealth Defendants, by their attorneys, Ernest

D. Preate, Jr., Attorney General, Gloria A. Tischuk, Deputy Attor-

ney General, and John G. Knorr, III, Chief Deputy Attorney

General, Chief, Litigation Section, file this as a supplement to

their motion to dismiss, or, in the alternative, motion to transfer;

and submit the attached:

(1) Declaration of Clifford D. Swift;

(2) Quehanna Boot Camp Physical Fitness Manual.

The Commonwealth Defendants restate and incorporate: by

reference in this supplement the said motion dated April 21,

1995, and the brief filed in support dated May 24, 1995.

WHEREFORE, the Commonwealth Defendants move to

dismiss this action, or, alternatively, to transfer this action to the

Middle District.

JA-20

Respectfully submitted,

ERNEST D. PREATE, JR.

Attorney General

By: /s/ Gloria A. Tischuk

Gloria A. Tischuk

Deputy Attorney General

PA ID. 44155

John G. Knorr, ITI

Chief Deputy Attorney General

Chief, Litigation Section

OFFICE OF ATTORNEY GENERAL

4th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

Date: June 7, 1995

JA-21

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY,

Plaintiff CV-94-2180

2 (Judge Bloch)

THE COMMONWEALTH OF

OF CORRECTIONS,

JOSEPH D. LEHMAN,

JEFFREY A. BEARD, Ph.D.,

DOES NUMBER | THROUGH 20,

)

)

)

)

)

PENNSYLVANIA DEPARTMENT. ) — (Magistrate Judge Sensenich)

)

)

)

)

INCLUSIVE, )

Defendants

DECLARATION OF CLIFFORD D. SWIFT

I, Clifford D. Swift, hereby declare under penalty of perjury

that the following statements are true and correct based upon my

personal knowledge and belief.

1. | am employed by the Commonwealth of Pennsylvania,

Office of General Counsel, as attorney for the Department of

Corrections.

2. The attached Physical Fitness Manual is a true and cor-

rect copy of the manual utilized at the Department of Correc-

tions, Quehanna Motivational Boot Camp.

/s/ Clifford D. Swift

Clifford D. Swift

Executed this 30th day of May, 1995

JA-22

QUEHANNA BOOT CAMP

PHYSICAL FITTNESS[SIC]

BY: LT. G.D. MCMAHON

JA-23

QUEHANNA BOOT CAMP PHYSICAL FITTNESS [SIC]

MANUAL

Table of Contents

PACE#@

1. Introduction

Il. Formations

1. Extended Rectangular Formation

2. Assembling Platoon 2

111. Format For P.T. Commands 3

IV. Warm Up (Stretching) 4

|. Neck Stretch 5

2. One-arm Side Stretc!: 6

3. Ham String Stretch 7

4. Ankle Stretch s

5. Groin Stretch )

6. Upper Back Stretch 10

V. Cardiovascular 1]

1. Side Straddle Hop 12

2. Side Bender 13

3. Turn and Bounce 14

4. Turn and Bend 15

5. Stationary Run 16

6. Squat-Thrust 17

VI. Strength 18

|. Push-Ups 19

2. Sit-Ups 20

3. Leg Lift 21

4. Pull-Ups 29

5. Knee Bender 23

VII. Running 24

1. Double-Time Marching 24

2. Wind Sprints 24

3. Quehanna Running Chants 25, 26, 27

VIII. Additional Activities 28

1. Grass Drills 29 - 32

2. Squad Competition

3. Obstacle Course

4. Circuit Training

IX. Cool Down

JA-24

Appendix

|. Quehanna Boot Camp Physical Fitness Scoring Standards

(Army Physical Fitness Standards Test Standards).

a. Male/Female Push-Up

b. Male/Female Sit-Ups

c. Male/Female 2-Mile Run

2. Quchanna Boot Camp Physical Fitness Test Scorecard

3. Quehanna Boot Camp Remedial P/T Checklist

4. Quehanna Boot Camp Weekly Remedial P/T Fitness Test

Scorecard

5. Quehanna Boot Camp Physical Fitness Lesson Plan

JA-25

Introduction

The information in this manual consists of the Physical Fit-

ness Program that is currently being taught at the PENNSYLVA-

NIA DEPARTMENT OF CORRECTIONS QUEHANNA

BOOT CAMP.

This information was taken from the United States Army's

Master Physical Fitness FM 21-20 and the Marine Corps Insti-

tute Manual MC 17107C’. Some of the exercises have been

rephased to accommodate the current organization at the Que-

hanna Boot Camp.

This program develops both the upper and lower body, plus

cardio-respiratory endurance. This well organized training pro-

gram will instill discipline, motivation and team work. It must

have strict supervision. Instructors must be able to lead Physical

Training with proper commands and knowledge of the exercises.

At the end of each phase, each Inmate will be given a physi-

cal fitness tests [sic] using the U.S. Army Physical Readiness

Scorecard (See Appendix I). If the Inmate fails this test he/she

will be assigned to the Remedial P/T Platoon. At which time, they

will not only do their regularly scheduled physical training in the

morning, but they will also attend the afternoon session. He/She

will stay on this status until they come up to standards and pass

the test which will be given to them every weekend.

FORMING FOR P-T.

The Extended Rectagular Formation is used with platoons

or companies. It can be formed when platoons are in a line for-

mation (side by side) or a column formation (behind each other).

The instructor should always be centered on the formation

when extended. This can be done by having the platoon(s) fall in

to the far left of the instructor when facing the platoon. When the

formation is extended, it will then be centered on the instructor.

EXTEND TO THE LEFT, “MARCH” — On the command

of execution “MARCH”, inmates in the right flank file stand

fast with their arms extended to the sides at shoulder level.

All other inmates will turn to the left and double time for-

ward. After taking a sufficient number of steps, all inmates

JA-26

will face the front; each has both arms extended to the sides

at shoulder level. The distance between the fingertips is

approximately 12 inches and dress is right.

ARMS DOWNWARD, “MOVE” — On the command of

execution, “MOVE”, the inmates will lower their arms

smartly to their sides.

LEFT, “FACE” — Inmates execute the left face movement.

EXTEND TO THE LEFT, “MARCH” — On the command

of execution “MARCH”, inmates in the right flank file stand

fast with their arms extended to the sides shoulder level. All

other inmates will turn to their left and double time forward.

After taking the sufficient number of steps, all inmates will

face the front; each has both arms extended to the sides at

shoulder level. The distance between the fingertips is

approximately 12 inches and dress is right.

ARMS DOWNWARD, “MOVE” — On the command of

execution “MOVE”, all inmates will lower their arms smartly

to their sides.

RIGHT, “FACE” — All inmates will execute the right face

movement.

FROM FRONT TO REAR, “COUNT, OFF” — On the

command of execution “OFF”, the leading inmate in each

column turns his/her head to the right rear and sounds off

with “ONE” and faces the front. Each successive column will

repeat the actions of the front column and sound off in turn

with “TWO”, “THREE”, “FOUR” and so on.

EVEN NUMBERS TO THE LEFT, “UNCOVER” — On

the command of execution “UNCOVER”, all even num-

bered inmates will jump to their left squarely in the center

of the interval, bringing their feet together. The unit is now

ready for stretching and warm-up exercises.

Upon completion of the stretching and warm-up exer-

cises, the instructor will dismount the PT. stand and center

JA-27

himself/herself on the platoon as if it were at normal interval. The

instructor will then bring the platoon back to normal interval by

giving the following commands.

ASSEMBLE TO THE RIGHT, “MARCH” — On the command

of execution “MARCH”, all inmates will double time to their

original positions before being extended, in column or line forma-

tion (at normal interval).

FORMAT FOR P.T. EXERCISES

The following format is used to conduct Phyisical [sic] Train-

ing at Quehanna Boot Camp. After Inmates have been instructed

on proper exercises procedure. [sic] Approximately two weeks

into the program, step 6,7 and 8 can be deleted from the format.

1. The next exercise is . (Inmates repeat the name

of the exercise. [sic]

2. Itisa count exercise.

3. We will do repititions [sic] of this exercise.

4. I will count the cadence, you will count the repititions [sic].

5. You will go to your left, I will go to my right.

6. I will now demonstrate:

7. Stand at Ease

(Demonstration)

A. Starting position move.

On the command starting position move, describe how to

get into the starting position.

B. Explain the exercise by the numbers.

C. Do exercise in cadence.

D. Ask — Are there any questions?

8. Platoon / Squad Attention.

9. Starting position move.

10. In cadence — exercise, 1-2-3-1, 1-2-3-2, ete., 1-2, AND

HALT.

11. Recover (Position of attention)

12. Raise Right Hand. Staff/Inmates hold hands in front of them

and double time in place until D.1. lowers hand.

13. Repeat No. 1 - 12 for each exercise, until all stretches and

exercises are completed.

JA-28

WARM-UP / STRETCHING

Proper warm-up is needed before each physical training session.

This helps to prepare the body for vigorous exercise, and will

help prevent injuries. Stretching is a major part of the warm-up

procedures.

The following stretching exercises will be used at Quehanna

Boot Camp.

1. Neck Stretch

One-Arm Side Stretch

Ham-String Stretch

Ankle Stretch

Groin Stretch —

. Upper Back Stretch

The following pages have detailed instructions on each exercise.

Uk WL

NECK STRETCH

This is a four count exercise.

The commands for this exercise are, In Cadence, Exercise/

Recover.

This exercise is done at a slow cadence. The instructor will go in

the opposite direction to create a mirror eflect.

The instuctor will count the cadence, inmates will count the rep-

etitions.

NOTE: To halt this exercise, the instructor will elevate his/her

voice on the last repetition, saying “1, 2, AND HALT!”. Inmates

will say “AND, HALT!” with the instructor.

Neck Stretch — Starting Position, MOVE.

On the command of execution, “MOVE”, spread your legs shoul-

der width apart, knees slightly bent and keeping your body

straight from head to toe. Place your hands on your hips, thumbs

pointing towards the small of your back, and elbows will be back.

Action — In Cadence / “Exercise”

On the command of execution “EXERCISE”, and for the count

of one tilt your head to the left shoulder. For the count of two,

tilt your head backwards keeping the rest of your body straight.

For the count of three, tilt your head to the right shoulder. For

the count of four, return to the starting position. You will stay in

cadence with the instructor until all repetitions are completed.

JA-29

The next commands are “Switch Direction” — “In cadence,

EXERCISE”. On the command of execution “EXERCISE”, and

for the count of one, tilt your head to the right shoulder. For the

count of two, tilt your head backwards. For the count of three, tilt

your head to the left shoulder. For the count of four, return to the

starting position. On the command of “RECOVER”, you will

quickly return to the position of attention. Are there any ques-

tions?

ONE ARM SIDE STRETCH

There are no counts to this exercise.

The commands for this exercise are READY—“STRETCH”,

“AND HALT’/ RECOVER.

Each stretch will last for approximately 10 — 15 seconds.

The instructor will go in the opposite direction to create a mirror

effect.

The instructor will call all commands.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying “AND HALT”. Inmates will say

“AND HALT” with the instructor.

ONE ARM_ SIDE STRETCH — STARTING POSITION/

“MOVE”

On the command of execution, “MOVE”, spread your feet shoul-

der width apart, raise your right arm over your head fingers

extended your left arm down at your side, fingers extended,

palm facing the leg.

ACTION — READY, “STRETCH”

On the command of execution “STRETCH”, bend your body to

the left and hold for approximately 10 - 15 seconds. On the com-

mand “AND HALT”, move back to the starting position. You will

continue until all repetitions are completed for the left side. Next

command will be “SWITCH SIDES”. Change your position by

extending your left arm with your right arm to your side as you

did for the first part of the exercise. On the command of

“READY — STRETCH”, bend your body to the right and hold

for approximately 10 - 15 seconds. On the command of “AND

HALT”, move back to the starting position. You will continue

until all repetitions are completed for the right side. On the com-

JA-30

mand “RECOVER”, you will quickly move back to the position of

attention. Are there any questions?

HAM STRING STRETCH

There are no counts to this exercise.

The commands for this exercise are “READY — STRETCH",

“AND HALT’/ “RECOVER".

Each stretch will last approximately 10 — 15 seconds.

The instructor will go in the opposite direction to create a mirror

effect.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying, “AND HALT!”. The inmates will say

“AND HALT!” with the instructor.

The instructor will call all commands.

HAM STRING STRETCH — STARTING POSITION “MOVE”

On the command of execution, “MOVE”, take one 30 inch step

forward with your left foot, place your right hand on the deck to

assist you into the sitting position. Extend your left leg forward,

toe pointing upward, your right foot will be tucked in the groin

area. Your legs will be flat on the deck.

ACTION — READY, “STRETCH”

On the command of execution, “STRETCH”, bend forward from

the hips, keeping the back and head in a comfortable straight

line, stretching your arms out to the left toe. Hold this stretch for

10 — 15 seconds. On the command “AND HALT!”, move back

to the starting position. You will continue as commanded until the

left side stretches are completed. The next command will be

“SWITCH LEGS”. Change your position by extending your right

leg with the toe pointing upward and tucking your left foot into

the groin area. “READY, STRETCH”. On the command of

execution of “STRETCH”, bend forward from the hips, keeping

a comfortable straight line with your back and head, stretching

your arms out to the right toe. On the command “AND HALT!”,

move back to the starting position. You will continue until the

right leg stretches are completed. On the command,

“RECOVER, you will quickly move back to the position of atten-

tion. Are there any questions?

JA-31

ANKLE STRETCH

This is a four count exercise.

The commands for this exercise are IN CADENCE,

“EXERCISE’/ “RECOVER”.

This exercise is done at a slow cadence.

The instructor will go in the opposite direction to create a mirror

effect.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying “1, 2, AND HALT!”. Inmates will say

“AND HALT!” with the instuctor.

The instructor will call the cadence, the inmates will count the

repetitions.

ANKLE STRETCH — STARTING POSITION, “MOVE!”

On the command of execution “MOVE”, take one 30 inch ste

forward with your left foot, placing your right hand on the dec

to assist you into the sitting position. Extend your left leg forward,

left toe pointing upward. Move your right leg across the left leg,

crossing the right calf on top of your left thigh. Grasp your-right

toe with your left hand and your ankle with your right hand.

ACTION — IN CADENCE, “EXERCISE”

On the command of execution, “EXERCISE”, and for the count

of one, start rotating the ankle in a clockwise rotation. For the

counts of two and three continue in the clockwise rotation. For

the count of four, you should be at the starting position complet-

ing one repetition. You will continue until all repetitions are com-

pleted. On the command “SWITCH DIRECTIONS” — IN

CADENCE, “EXERCISE”, on the command of execution of

“EXERCISE” and for the count of one, you will rotate your ankle

in a counter clockwise [sic] rotation. For the counts of two and

three you will continue in the counterclockwise rotation. For the

count of four, you should be at the starting position and complet-

ing one full repetition. You will continue until all repetitions are

completed. The next command will be “SWITCH LEGS”.

Change your position by extending your right leg forward, toe

pointing upward and moving the left leg across the right leg,

crossing your left calf on top of your left thigh. Grasp your left

toes with your right hand and your ankle with your left hand.

IN CADENCE, “EXERCISE”. On the command of execution,

“EXERCISE” and for the count of one, you start rotating in a

JA-32

clockwise rotation. For the counts of two and three, continue

rotating in the clockwise rotation. For the count of four, you

should be at the starting position, completing one repetition. You

will continue in cadence until all repetitions are completed. On

the command “SWITCH DIRECTIONS” — IN CADENCE,

“EXERCISE” on the command of execution “EXERCISE!”, and

for the count of one, you will start rotating your ankle in a

counter-clockwise [sic] rotation. For the counts of two and three,

you will continue in a counter-clockwise [sic] rotation. For the

count of four, you should be at the starting position and complet-

ing one full repetition. You will continue in cadence until all rep-

etitions are completed. On the command “RECOVER”, you will

quickly move to the position of attention. Are there any ques-

tions?

GROIN STRETCH

There are no counts to this exercise.

The commands for this exercise are READY, “STRETCH” —

AND “HALT’/ “RECOVER”.

This exercise should last 10 — 15 seconds per stretch.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying AND “HALT!”. The inmates wil! say

AND “HALT!” with the instructor.

The instructor will call all commands.

GROIN STRETCH — STARTING POSITION, “MOVE!”

On the command STARTING POSITION, “MOVE!”, you will

take one 30 inch step forward with your left foot, placing your

right hand on the deck to assist you into the sitting position.

Grasp your toes with your hands and pull your toes inward close

to the torso. Elbows will be inside of your legs touching your

thighs.

ACTION: READY, “STRETCH!”

On the command of execution, “STRETCH”, bend forward from

r hips, pushing down slightly with your elbows and hold for 10

15 hn ae 9 The next command will be AN D, “HALT!”. On this

command return to the starting position. You will continue until

all repetitions are completed. On the command “RECOVER”,

you will quickly move back to the position of attention. Are there

any questions?

JA-33

UPPER BACK STRETCH

There are no counts to this exercise.

The commands for this exercise are READY, “STRETCH’—

AND “HALT!” / “RECOVER”.

This exercise should last 10 - 15 seconds per stretch.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying AND “HALT!”. The inmates will say

AND “HALT!” with the instructor.

The instructor will call all the commands.

UPPER BACK STRETCH—STARTING POSITION, “MOVE!”

On the command of execution, “MOVE!”, spread your feet

approximately shoulder width apart, extending your arms out par-

allel with the deck in front of your chest, fingers will be inter-

locked with your palms facing outwards.

ACTION: READY, “STRETCH!”

On the command of execution “STRETCH!”, push the upper

portion of your body forward, keeping your hips stationary and

stretching the upper back muscles. On the command AND

“HALT!”, return back to the starting position. You will continue

until all repetitions are completed. The next command you will

receive is “RECOVER!”. You will then move quickly back to the

position of attention. Are there any questions?

CARDIOVASCULAR

Cardiovascular endurance is needed to help the body deliver

nutrients and oxygen needed for muscular activity and transports

waste products from the cells.

The following cardiovascular exercises will be used at the

Quehanna Boot Camp.

1. Side Straddle Hop

2. Side Bender

3. Turn and Bounce

4. Turn and Bend

5. Stationary Run

6. Squat Thrust

The following pages have detailed instructions on cardiovascular

exercises.

JA-34

SIDE STRADDLE HOP

p hehe

STAAT POSITION ‘

This [sic] a four count exercise.

The commands for this exercise are, IN CADENCE, “EXER-

CISE” / “RECOVER”,

This exercise is done at a fast cadence.

To halt this exercise, the instuctor will elevate his/her voice by

saying 1, 2, AND, “HALT!”. Inmates will say AND, “HALT!” with

the instructor.

The instructor will count the cadence, inmates will count the

repetitions.

THE SIDE STRADDLE HOP: STARTING POSITION,

“MOVE!”

On the command of execution, “MOVE!", you will stay at the

position of attention.

ACTION: IN CADENCE, “EXERCISE!”

On the command of execution, “EXERCISE!”, and for the

count of one, jump up slightly moving your legs slightly more

than shoulder’s [sic] width apart, at the same time swing your

arms overhead and clap your hands together. For the count of

two, jump up slightly and swinging your arms sideward and

downward while bringing your feet together to the starting

position. For the count of three, repeat the actions for count

one, and for count four, repeat the actions for count two,

completing one repetition. You will continue in cadence until all

repetitions are completed. The next command will be

“RECOVER!” at which time you will adjust yourself to the

position of attention. Are there any questions?

JA-35

SIDE BENDER

KAKA

This [sic] a eight count exercise.

The commands for this exercise are, IN CADENCE, “EXER-

CISE” and “RECOVER”.

This exercise is done at a slow to moderate cadence.

The instructor will go in the opposite direction to create a mirror

effect.

To Halt this exercise, the instructor will elevate his/her voice by

saying, 1, 2,3, 4,5, 6, AND, “HALT!”. The inmates will say AND,

“HALT!” with the instructor.

The instructor will count the cadence, the inmates will Gount the

repetitions.

SIDE BENDER — STARTING POSITION, “MOVE!”

On the command of execution, “MOVE!”, spread your feet shoul-

der width apart, raise your arms overhead with your palms facing

to the front and touching, keeping elbows and knees locked

throughout the exercise.

ACTION: INCADENCE, |sic] “EXERCISE!”

On the command of execution, “EXERCISE!”, and for the count

of one, bend to the left as far as possible; recover slightly. For the

count of two and three, repeat the actions of count one. For the

count of four, recover sharply to the starting position. For the

count of five, bend to the right as far as possible; recover slightly.

For the counts of six and seven, repeat the actions in count five.

For the count of eight, recover sharply to the starting position.

You will continue in cadence until all repetitions are completed.

The next command is “RECOVER!”. On the command of

recover sharply return to the position of attention. Are there any

questions?

A_#

START POSITION 1

JA-36

TURN AND BOUNCE

KUAKKKRRKK

START POSITION 1 2

This is an eight count exercise.

The commands for this exercise are IN CADENCE, “EXER-

CISE” and “RECOVER!”.

This exercise is done at a slow cadence.

The instuctor will go in the opposite direction to create a mirror

effect.

To halt this exercise, the instructor will elevate his/her voice by

saying, 1, 2, 3, 4,5, 6, AND, “HALT!”. The inmates will say AND,

“HALT!” with the instuctor.

The instructor will call the cadence, inmates will count the rep-

etitions.

TURN AND BOUNCE — STARTING POSITION, “MOVE!”

On the command of execution, “MOVE!”, spread your feet shoul-

der width apart. Extend your arms sidward [sic] at shoulder level

with palms facing up. Head and hips face the front throughout

the exercise. Keep the arms parallel with the deck and knees and

elbows locked.

ACTION: IN CADENCE, “EXERCISE!”

On the command of execution, “EXERCISE”, and for the count

of one, turn sharply to your left as far as possible, recovering

slightly. For the counts of two and three, repeat the action for

count one. For the count of four, recover sharply to the starting

position. For the count of five, turn sharply to your right, recov-

ering slightly. For the counts of six and seven, repeat the count of

five. For the count of eight, recover sharply to the starting posi-

tion. You will continue until all repetitions are completed. On the

command “RECOVER”, you will quickly move back to the posi-

tion of attention. Are there any questions?

JA-37

TURN AND BEND

Anka k

START POSTON ’ 2

This is a four count exercise.

The commands for this exercise are IN CADENCE, “EXER-

CISE” and “RECOVER”.

This exercise is done in a slow cadence.

The instrutor [sic] will go in the opposite direction to create a

mirror effect.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying 1, 2, AND, “HALT!”.

The inmates will say AND, “HALT!” with the instructor.

The instructor will count the cadence, the inmates will count the

repetitions.

TURN AND BEND — STARTING POSITION, “MOVE!”

On the command of execution “MOVE!”, spread your feet shoul-

der width apart, extending your arms overhead, keeping your

arms straight and palms facing each other.

ACTION: IN CADENCE, “EXERCISE!”

On the command of execution, “EXERCISE!”, and for the count

of one, turn your trunk to the left and bend forward over the left

thigh, trying to touch the ground with your fingertips outside the

left foot, keeping your left leg straight. For the count of two,

recover to the starting position. For the count of three, turn your

trunk to the right and bend forward over the right thigh, trying to

touch the ground with your fingertips outside the right foot,

keeping your right leg straight. For the count of four, return to

the starting position. You will continue in cadence until all repeti-

tions are completed. Are these any questions?

STATIONARY RUN

ma

START POSITION 1 2

There are two repetitions of counts for this exercise.

There are several commands for this exercise, which are

explained below.

This exercise is done at a fast cadence.

The instructor calls all commands.

JA-38

STATIONARY RUN — STARTING POSITION, “MOVE!”

On the command of execution “MOVE!”, keep your feet at the

position of attention, your elbows stay at your side, raise your

arms parallel to the deck. Make a fist with your hands, thumbs

facing upwards.

ACTION: INCADENCE, [sic] “EXERCISE!”

On the command of execution “EXERCISE”, start running in

place; lift your left foot first. Follow the instructor's commands;

he/she will count two repetitions of the cadence. For example; “1,

2, 3, 4; 1, 2, 3, 4.”. The instructor will then give informal com-

mands such as “FOLLOW ME!”; “Run on the toes and balls of

the feet, keeping the back straight”; “SPEED IT UP!”;

“INCREASE TO A SPRINT!”; “RAISE YOUR KNEES HIGH,

LEAN FORWARD AND PUMP YOUR ARMS VIGOROUSLY’;

and “SLOW DOWN”. To halt this exercise, the instructor will

count two repetitions of cadence, “1, 2, 3, 4; 1, 2, AND, HALT!”.

When counting, the instructor will only count when the left foot

strikes the deck.

SQUAT THRUST

zm af

This is a four count exercise.

The commands for this exercise are IN CADENCE, “EXER-

CISE”

This exercise is done at a moderate cadence.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying 1, 2, AND, “HALT!”.

The inmates will say AND, “HALT!” with the instructor.

The instructor will count the cadence, inmates will count the

repetitions.

SQUAT THRUST — STARTING POSITION, “MOVE!”

The starting position for this exercise is the position of attention.

START POSITION

JA-39

ACTION: IN CADENCE, “EXERCISE!”

On the command of execution “EXERCISE!”, and for the count

of one, place your hands on the deck approximately 8-10 inches

in front of your feet, bending your knees but keeping your back

straight. For the count of two, thrust your legs backwards until

your body is fully straight from your head to your feet, heels will

be together, toes on the deck. For the count of three, return to

the position in count one. For the count of four, quickly move

back to the starting position. You will continue until all repetitions

are completed. Are there any questions?

STRENGTH

Muscular strength is the greatest amount of force a muscle or

muscle group can exert in one movement. The human body has

over 400 voluntary muscles that move the skeleton. The following

strength exercises used at the Quehanna Boot Camp will help

strengthen these muscles.

1. PUSH-UPS

2. SIT-UPS

3. LEG LIFTS

4. PULL-UPS

5. KNEE BENDER

PUSH-UPS

START POSITION 1 2

This is a four count exercise.

The commands for this exercise are, IN CADENCE, “EXER-

CISE” and “RECOVER”.

This exercise is done at any speed cadence.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying 1, 2, AND, “HALT!”.

The inmates will say AND, “HALT!” with the instructor.

The instructor will call the cadence, inmates will count the rep-

etitions.

JA-40

PUSH-UPS, BY THE NUMBERS — STARTING POSITION,

“MOVE!”

On the command of execution, “MOVE!”, and for the count of

one, place your hands on the deck shoulder width apart, bending

at the waist. For the count of two,, [sic] thrust your legs back-

wards with your heels together and your toes on the deck. Body

should be straight from head to heels.

ACTION — IN CADENCE, “EXERCISE!”

On the command of execution, “EXERCISE!”, and for the count

of one, lower your body until the chest is approximately 4-6

inches from the deck. For the count of two, return to the starting

position. For the count of three, lower your body until your chest

is approximately 4-6 inches off the deck. For the count of four,

return to the starting position. You will continue in cadence until

all repetitions are completed. The next command you will receive

will be “BY THE NUMBERS, RECOVER!”. On the command of

execution of “RECOVER!”, and for the count of one, you will

bring your feet back under your body approximately 18 inches

from your hands. For the count of two, quickly move back to the

position of attention. Are there any questions?

SIT-UPS

STARTING POSITION

This is a two count exercise.

The commands for this exercise are IN CADENCE, “EXER-

CISE!” and “RECOVER!”.

This exercise is done at a slow cadence.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying, “1, 2, AND, HALT!”. Inmates will

say “AND, HALT!” with the instructor.

The instructor will call the cadence, inmates will count the rep-

etitions.

SIT-UPS: STARTING POSITION, “MOVE!”

On the command of execution, “MOVE!”, take one thirty inch

JA-41

step forward with your left foot, place your right hand on tyhe

[sic] deck to assist you into the sitting position. Lie flat on the

deck, raise your knees so that your feet are flat on the deck close

to the buttocks. Cross your right arm over your left arm on your

chest. A second inmate can hold your feet.

ACTION: IN CADENCE, “EXERCISE!”

On the command of execution, “EXERCISE!”, and for the count

of one, raise your upper body until your elbows touch the knees.

For the count of two, go back to the starting position. You will

continue until all repetions [sic] are completed. The next com-

mand you will receive is “RECOVER!”. You will quickly move

back to the position of attention. Are there any questions?

LEG LIFTS

FRONT VIEW

oer

SIDE VIEW

This is a four count exercise.

The commands for tis [sic] exercise are IN CADENCE, “EXER-

CISE!” and “RECOVER!”.

This exercise is done at a slow cadence.

To halt this exercise the instructor will elevate his/her voice on

the last repetition by saying, 1, 2, AND, “HALT!”. The inmates

will say AND, “HALT!” with the instructor. The instructor will

call the cadence, the inmates will count the repetitions.

LEG LIFTS — STARTING POSITION, “MOVE!”

On the command Of execution, “MOVE!”, take one step forward

with your left foot and place your right hand on the deck to assist

you into the sitting position. Lie flat on your back, arms extended

to the side, palms flat on the deck. Legs are flat on the deck, heels

together.

JA-42

ACTION: IN CADENCE, “EXERCISE!”

On the command of execution, “EXERCISE!”, and for the count

of one, raise both legs together off of the deck approximately 6

inches. For the count of two, spread your legs outward more than

shoulder width apart, 6 inches off the deck. For the count of

three, bring your legs back together 6 inches off of the deck. For

the count of four, lower your legs to the starting position. You will

continue in cadence until all repetitions are completed. Are there

any questions?

PULL-UPS / CHIN-UPS

ST ART ING

POSITION

There are no counts to this exercise.

STARTING POSITION:

The participants may be assisted to the bar by a step up, or by

jumping. The hand placement for the pull-up is: Palms facing

inward or to the rear. The hand placement for the chin-up is:

Palms facing outward or to the front.

NOTE: The spacing distance for both exercises is six inches

between the palms.

ACTION:

The bar is grasped either palms facing forward or to the rear, the

arms are fully extended, and feet free from the ground. One rep-

JA-43

etition consists of raising the body with the arms until the chin is

above the bar and lowering the body until the arms are extended.

Kicking motions are not permitted to complete the repetition.

KNEE BENDER

meted

This is a four count exercise.

The commands for this exercise are IN CADENCE, “EXER-

CISE!” and “RECOVER'”.

This exercise is done at a moderate cadence.

To halt this exercise, the instructor will elevate his/her voice on

the last repetition by saying, 1, 2, AND, “HALT!”. The inmates

will say AND, “HALT!” with the instructor.

The instructor will call the cadence, the inmates will count the

repetitons.

KNEE BENDER — STARTING POSITION, “MOVE!”

On the command of execution, “MOVE!”, spread your feet

approximately shoulder width apart, put your hands on your hips

with thumbs in the small of the back and elbows back.

ACTION: IN CADENCE, “EXERCISE!”

On the command of execution, “EXERCISE!”, and for the count

of one, bend your knees; lean slightly forward at the waist and

slide your arms along the outside of the legs until your fingers

touch the top of your calfs [sic]. For the count of two, recover to

the starting position. For the count of three, bend your knees;

lean slightly forward at the waist and slide your arms along the

outside of your legs until your fingers touch the top of your calfs

[sic]. For the count of four, return to the starting position. You

will ontinue [sic] in cadence until all repetitions are completed.

Upon the command “RECOVER!”, you will quickly return to the

position of attention. Are there any questions?

JA-44

RUNNING

LEASES

Running enables the body to improve the transport of oxygen,

which in turn enhances the conditioning of the muscles. The

Quehanna Boot Camp program is composed of double-time

marching and various types of running.

DOUBLE-TIME MARCHING

Double-time marching is at the rate of 180 steps per minute;

each step is approximately 36 inches long. This differs from the

Quick Time, which is 120 steps per minute. Runers [sic] should

keep in step, placing their feet flat on the ground. However, there

should not be a stamping motion; there should be as slight a jolt

as possible. Double-time is like a jog; the difference is that in a

jog, the feet are lifted off the ground and running motion is

smooth. In double-time, the feet skim the ground an [sic] there

is no bounce. |

WIND SPRINTS

Wind sprints improve caridorespiratory [sic] endurance and con-

ditions and strengthens the legs. It consists of 40-50 yard sprints

at 85-90 percent of maximum effort. This type of running is con-

ducted by squads. Each squad leader places his squad in a file on

a flat course. Th [sic] einstructor [sic] gives the command

“READY...., GO!” or ready, whistle. On this command, the entire

squad will sprint to the finish line and then run back to the start-

ing line behind the other squads.

QUEHANA RUNNING CHANTS

MY GRANDMA

My Grandma turned 91, she did her PT just for fun.

My Grandma turned 92, she did her PT better than you.

My Grandma turned 93, she did her PT just like me.

My Grandma turned 94, she ran four miles and then some more.

JA-45

My Grandma turned 95, she did her PT to stay alive.

My Grandma turned 96, she did her PT just for kicks.

My Grandma turned 97, she up, she died and went to heaven.

She meet [sic] Saint Peter at the Pearly Gates, said St. [sic] Peter

I hope I'm not late.

Saint Peter said with a big ole grin, get down Granny and knock

out ten.

Sgt. McMahon, QBC

MICHAEL JACKSON

Michael Jackson came to town, Coco Cola turned him down. Pesi

[sic] Cola burned him up, now he’s drinking 7-Up.

Sgt. Davies, OBC

DONT [sic] DO DRUGS

| know a homeboy back on the block, his sister's a junkie and he

sells rock.

One fatal lesson he never learned, the rock may smoke but he’s

going to burn.

Liquor and drugs there's just no way, the QBC’s the only way.

Captain Griffith, QBC

SISTER KNOWS BEST

I know a girl who lives on a hill, she wouldn't do it but her

brother will.

Just what it is that her brother will do, he'll go to bootcamp just

like you.

Liquor and drugs there's just know [sic] way, the QBC’s the only

way.

Captain Griffith, QBC

IN SHAPE

I can run to Rockview just like this, All [sic] the way to Rockview

and never quit.

I can run to Huntindon [sic] just like this, All [sic] the way to

Huntingdon and never quit.

I can run to Camphill [sic] just like this, All [sic] the way to Cam-

phill [sic] and never quit.

Sgt. Bennett, OBC

JA-46

~ CO CADENCE

CO, CO, Don't [sic] arrest me, arrest that homeboy behind the

tree.

He smoked the crack, I drank the wine, now he's doing the

double-time.

Col Slippey, QBC

A DAY AT THE OBC

Up in the morning at the break of day, I don't like it — no way!

Push-ups, Sit-ups [sic], two mile run; D and C just for fun.

Marching and drilling everday [sic]; I can’t take it — no way!

Eat my breakfast too damn soon; Hungry [sic] as hell by noon.

Col Wagner, QBC

LOOK AT ME MA

Mama, Mama can't you see, the QBC is the life for me.

Ain't no drugs or alcohol, just some racks and a dining hall.

Col Kyle, QBC

THANK GOD FOR THE OBC

Went for a run and what did I see, a big ole rattler lookin’ at me.

His body was coiled he was ready to strike, before he could I was

outta sight.

Said PT, Saved [sic] ME!

On my run I spotted a bear, but he ran off when he saw my hair.

Said Haircut [sic] Saved [sic] my butt!

On my run I saw Commander Wertz, I said can I please quit this

double-time hurts.

He said Bull shit [sic], No [sic] can quit.

Set. Bennett, QBC

ADDITIONAL ACTIVITIES

Several activities may be used to add variety to the QBC Fitness

Program. Most of these activities may be done on the PT Grinder,

but can be moved to softer ground. Exceptions are going to be

the Boot Camp Confindece [sic] Course. [sic] Some of the follow-

ing will be used to put variety into the QBC Fitness Program as

the inmates progress.

1. Grass Drills

2. Squad Competitions

3. Obstacle Course

JA-47

The following pages will give you the guidelines to these addi- |

tional activities, they are only guidelines and can be used. at

instructor's will.

GRASS DRILLS

Grass Drills consist of movements that feature rapid changes

in the body position. These are vigorous drills that exercise all

major muscle groups. Inmates will respond to commands as fast

as possible and perform at top speed. Though no cadence is

called, inmates continue doing multiple repetitions of each exer-

cise until the next command is given. The purpose of grass drills

is to decrease reaction time, develop muscular endurance,

increase strength and improve cardio-respiratory [sic] endurance.

Since these drills are extremely strenuous, there will be a 10 to

15 minute time limit to these exercises.

A warm-up activity should precede grass drills, and a cool

down period should follow them.

To continue with the role model concept of this program, all

instructors will do these exercises with the inmates.

The commands peculiar to grass drills are given in rapid

succession with out [sic] the usual prepatory commands. To pre-

vent confusion, the instructor should give commands sharply to

distinguish them from comments or words of encouragement. as

[sic] soon as the inmates are familar with the drill, they will do all

exercises as vigorously and rapidly as they can. Each exercise is

done continuously until the next command is given. Anything less

than top speed performance is ineffective.

Inmates do not have to come to the position of attention

once the drills start. The command “UP” is used to halt the drill

for instructions or for rest. At this command, the imates [sic] will

assume a relaxed standing position.

Grass drills can be done in a short period. For example, they

may be used when only a few minutes are available to exercise,

or they may be combined with another activity. Grass drills are an

excellent occasional substitute for running when time is limited.

The following paragraghs explain formations, starting with

positions and movements executed in grass drills.

JA-48

STARTING POSITIONS

The drills start from the “GO” position. Other basic positions are

“FRONT”, “BACK” and “STOP”. (See figure 1-1.)

*GO! Running in place (top speed) on the toes and the balls

of the feet with knees raised up high, arms pumping and body

bent forward slightly at the waist.

“FRONT! Lying prone with elbows bent (alongside the

body) palms flat on the ground directly under the shoulders, legs

straight and together and head toward the instructor.

*BACK! Lying flat on the back with arms extended near the

sides on the ground with palms facing down, legs straight and

together and feet toward the instructor.

“STOP! Assuming the football — lineman stance: feet

spread apart and staggered, left arm across left thigh, right arm

straight, knuckles on the ground, head up and back parallel to the

ground.

To assume the front or back position from the standing, go

or stop position, the inmate should change positions vigorously

and rapidly. (See figure 1-1)

To change from front to the back position, an inmate should

do the following:

|. Take several short steps to the right or left.

2. Lift the arm on the side toward which the feet move.

3. Thrust the legs virgorously to the front.

To change from the back to the front position, an inmate

should sit up quickly and place boith [sic] hands on the ground to

the right or left of the legs. The inmate should then take several

short steps to the rear on the side opposite the hands. When the

feet are opposite the hands, the legs should be thrust vigorously

to the rear and the body lowered to the ground.

BOUNCING BALL From the front position, push-up and

support your body on the hands, which are shoulder width

and the feet together. Keep the back and legs in line and the

knees straight. Bounce up and down in a series of short upward

springs from the hands, hips and feet simultaneously.

BICYCLE From the back position raise the legs and hips.

Keep the elbows on the ground and support the hips with the

hands. Move the legs vigorously as if pedaling a bicycle.

JA-49

KNEE BEND From the stop position, do half knee bends

with the feet on line and the hands at the sides. Make sure that

the knees do not bend more than 90 degrees.

ROLL RIGHT OR LEFT From the front position continue

to roll in the direction commanded until another command is

given. Then return to the front position.

ROCKER In the front position, clasp the hands behind the

back, arch the body and hold the head back. Start rocking, using

the front part of the trunk as a rocker. (The leg extension may be

substituted for this exercise.)

BOUNCE AND CLAP HANDS The procedure is the same

as for the bouncing ball; However [sic], in this drill, while in the

air, clap the hands. (The push-up may be substituted for this

exercise).

LEG SPREADER From the back position, raise the legs

until the heels are 10 - 12 inches from the ground. Legs remain

straight, toes skyward. Spread them apart as far as possible; then

put them together. Keep the head off the ground. Place the hands

(palm down) at the side. Open and close the legs as fast as pos-

sible. (The sit-up may be substituted for this exercise).

FORWARD ROLL For forward rolls from the stop position,

place both hands on the ground, tuck the head and roll forward.

Keep the head tucked while rolling.

The instructor may use any of the above mentioned [sic]

exercises in any order he/she desires. It is very important to keep

track of the time when doing these exercises. On the following

pages, you will find some examples of how the grass drills can be

used.

JA-52

COOL DOWN

After the activity period, whether it is running, strength

training or a combination of these, inmates must cool down prop-

erly. The cool down gradually slows down the heart rate after vig-

orous activity. During exercise, the blood moves faster than usu-

althrough [sic] the one way valves of the heart, through the veins

and back to the heart by the muscles squeezing action.

After jogging, inmates should walk and stretch for at least 4

minutes. The cool down period should continue until the heart

rate returns to normal and profuse sweating stops.

Cool down is a continuation of the training, but at a lower

intensity. Quehanna Boot Camp uses the following cool down

exercises:

1. Walking/ Quick time marching (2-5 minutes)

2. Neck Stretch

3. Upper Back Stretch

4. Groin Stretch

5. Ham-string Stretch

JA-53

[THIS PAGE INTENTIONALLY LEFT BLANK]

JA-54 JA-55

Data Required by the Privacy Act of 1974

Mandatory or voluntary disclosure and effect

on individual not providing information

mandatory —individuals not providing infor-

mation cannot be rated, sco. ed

Army Physical Fitness Test Scorecard

For use of this form, see FM 21-20; the proponent is TRADOC.

Title DA Form 705

Authority 10 USC 301 2(g)

Principal purpose record of individual

scores on physical fitness events

Print Name (Last, First, Middle Initial) Social Security Number Sex

Test One Test Two

Grade Age Date Grade Age

Height Weight Go Height Weight Go Height Weight Go Weight ; Go

No Go No Go No Go No Go

Unit Weather Unit Weather Unit Weather Weather

Temp Temp Temp Temp

PU Raw Score Initials Points PU Raw Score | initials Points PU Raw Score | Initials Points PU Raw Score] initials Points

SU Raw Score Initials Points SU Raw Score | initials Points SU Raw Score } initials Points SU Raw Score] Initials Points

2M Raw Score | initials Points 2M Raw Score | initials Points 2M Raw Score } Initials Points 2M Raw Score} Initials Points

Alternate Event Alternate Event Total Alternate Event Total Alternate Event

Points Points

Go/No Go Time Go/No Go Time Go/No Go Go/No Go

APFT OIC/NCOIC Signature and Rank

APFT OIC/NCOIC Signature and Rank

Comments

APFT OIC/NCOIC Signature and Rank

APFT OIC/NCOIC Signature and Rank

Comments

Comments

Comments

Special Instructions: Use ink.

Legend:

PU — Push-ups

SU — Sit-ups

2M — 2-mile run

APFT — Army Physical Fitness Test

DA FORM 705, MAY 87 EDITION OF JUN 86 WILL BE USED UNTIL EXHAUSTED

JA-56 JA-57

Data Required by the Privacy Act of 1974

Mandatory of voluntary disclosure and effect

On iNdividual not providing information

mandatory —individuals not providing infor-

mation cannot be rated scored

Social Security Number Sex

Army Physical Fitness Test Scorecard

For use of this form, see FM 21-20; the proponent is TRADOC.

Title OA Form 705

Authornty 10 USC 301 2ig)

Principal purpose record of individual

scores on physical fitness events

Print Name (Last, First, Middle Initial)

Test Five Test Six

Grade Age Date Grade Age Age

Weight Go Height Weight Go Weight Go Weight 6

No Go No Go No Go N e

o Go

W -ather Unit Weather Weather Weather

Temp Temp Temp loon A

PU Raw Score Initials Points PU Raw Score | Initials Points PU Raw Score | Initials Points PU Raw Score] Initiais Points

SU Raw Score | Initials Points SU Raw Score | Initiats Points SU Raw Score | initials Points SU Raw Score] initiats Points

2M Raw Score | initials Points 2M Raw Score | Initials Points 2M Raw Score | initials Points 2M Raw Score Initiats Points

Alternate Event Total Alternate Event Total Alternate Event Tota! Alternate Event T

Points Points Points Pome

"ny

Time Go No Go Time Go/No Go

APFT OIC/NCOIC Signature and Rank

APFT OIC /NCOIC Signature and Rank

APFT OIC/NCOIC Signature and Rank

APFT OIC /NCOIC Signature and Rank

Comments Comments Comments Comments

Special Instructions Use ink

Legend.

PU — Push-ups

SU — Sit-ups |

2M — 2-mile run

APFT — Army Physical Fitness Test

DA FORM 705, MAY 87 EDITION OF JUN 86 WILL BE USED UNTIL EXHAUSTED

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JA-66

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JA-67

Page |

QUEHANNA BOOT CAMP

LESSON PLAN

COURSE TITLE: Physical Fitness Training

PREPARED BY: Sgt. McMahon & Sgt. Mattive

DATE: 3-03-92

TIME FRAME:

| hour

TARGET POPULATION:

Correctional Staff

PERFORMANCE

OBJECTIVES:

To perform basic structure

and guidelines and to lead

an effective physical

training program

EVALUATION

PROCEDURES:

Supervisor's Evaluation

REVIEWED/APPROVED:

JA-68

LESSON PLAN OUTLINE

Introduction

Formations

Warm-up (stretching)

Cardiovascular

Strength

Running

Cool Down Period

Page 2

JA-69

Page 3

Lesson Plan:

Cover Page 2

TRAINING METHODS:

Classroom Environment/Demonstration

TRANSPARENCIES/ HAN DOUTS/STU DENT

VISUAL AIDS: MATERIALS:

Projector

EQUIPMENT REFERENCES:

NEEDED:

P.T. Uniform

U.S. Army

FM 21-20

JA-70

COURSE: Physical Fitness

Training

PAGE: l

NOTES AND

METHODOLOGY

CONTENT

1. Introduction

Il. Form for P-T.

=

. This program develops both the upper

and lower body, plus cardiorespiratory

endurance.

Ref: United States Army Master Physi-

cal Fitness, FM21-20

. The program is divided in six separate

phases:

Formation

Warm-up

Cardiovascular

Strength

Running

6. Cool-down

afr one

>. Physical training develops both mind

and body. A well organized [sic] train-

ing program will instill discipline, moti-

vation and team work. A physical train-

ing program must be well planned and

organized. It must have good supervi-

sion. Instructors must be able to lead

physical training with proper com-

mands and knowledge of the exercise.

. Physical training is conducted daily to

motivate inmates. This practice will

instill a high degree of self-confidence

and discipline. This practice will set a

positive tone for the day's activities.

. The Extended Rectangular Formation

is used with platoons or companies. It

can be formed when platoons are in a

line formation (side by side) or column

formation (behind each other).

Physical Fitness

JA-71

Page 2

B. The instructor always should be cen-

tered on the formation when extended.

This can be done by having the pla-

toon(s) fall into the far left of the

instructor when facing the formation.

When the formation is extended, it will

then be centered on the instructor.

2. The following commands are used:

1. Extend to The Left, March — At

this command, inmates in the right

flank file stand fast with their arms

extended to the sides at shoulder

level. All other inmates turn to the

left and double-time forward. After

taking a specific number of steps, all

inmates face the front; each has both

arms extended to the sides at shoul-

der level. The distance between fin-

gertips is about 12 inches, and dress

is right.

2. Arms Downward, Move — At this

command, the inmates lower their

arms smartly to their sides, to the

position of attention.

3. Left Face — Inmates execute the

left-face movement.

4. Extend to the Left, March — At this

command inmates in the right flank

file stand fast with their arms

extended to the sides. All other

inmates turn to the left and double-

time forward. Spacing is same as

above, and dress is right.

Physical Fitness

JA-72

Page 3

._ Arms Downward, Move — Inmates

lower their arms smartly to their sides,

to the position of attention.

. Right Face — Inmates execute the

right-face movement.

_ From Front to Rear, Count Off — At

this command, the leading inmate in

each column turns his or her head to

the right rear, calls off “ane,” and faces

the front. Successive inmates in each

column call off in turn, “two,” “three,”

“four,” “five,” and so on.

_ Even Numbers to the Left, Uncover At

this command, all even-numbered

inmates jump to the left squarely in the

center of the interval, bringing their feet

together. The unit is now ready for

stretching and warm-up exercises.

. Assemble to the Right, March — At this

command, all inmates double-time to

their original positions in column or line

formation.

Physical Fitness

II]. Warm-up

(Stretching)

IV. Cardiovascular

V. Strength

JA-73

Page 4

A. Proper warm-up is needed before each

physical training session. This helps to

prepare the body for vigorous exercise,

and will help prevent injuries. Stretch-

ing is a major part of the warm-up pro-

cedures.

. The following stretching exercises will

be used at OBC:

1. Neck stretch *See fig. [sic] #2

One-arm side stretch *See Fig. #1

Hamstring stretch *See Fig. #3 & 14

Ankle stretch *See Fig. #4

Groin stretch *See Fig. #5

Lower back stretch “See Fig. #6

Long sit *See Fig. #7

Single/double knee to chest *Fig. 8

[sic]

SNA MS © w

. The following cardiovascular exercises

will be used at QBC:

1. Side-straddle hop *See Fig. #9

2. Side bender *See Fig. #10

3. Knee bender *See Fig. #11

4. Turn and bounce *See Fig. #12

5. Turn and bend *See Fig. #13

6. Jogging in place *See Fig. #14

. The following strength exercises will be

used at QBC:

1. Push-ups *See Fig. #15

2. Sit-ups *See Fig. #16

3. Leg lifts

Physical Fitness

VI. Running

VIL. Cool Down

Period

JA-74

Page 5

A. The following procedure will be used to

take the QBC staff on a run from the

PT formation:

1. Assemble to the right, march

2. March the inmates into position for

the run

3. Give the command “Double time,

march”

4. Call running cadence throughout the

run

5. When run is complete, call “Quick

time, march”

B. Running the inmates

1. Keep the inmates in formation

2. The pace should be kept so that the

formation stays together

3. Ensure that the formation stays right

and covered

4. Cool inmates down with a small

march after run

A. Cool down is an important part of

physical training. It allows the heart

rate to gradually slow down.

B. During exercise period the blood moves

faster than normal. If the proper cool

down period is not sufficient, this may

result in heart and/or brain damage.

C. Cool down is a continuation of the

training but at a lower intensity.

Physical Fitness

E.

JA-75

Page 6

. Some of the following are good exer-

cises for cooling down:

1. Walking/quick time marching, 2-5

minutes

2. Neck stretch

3. Low back stretch

4. Single knee to chest

5. Long sit

The cool down should continue until

the heart rate is below 100 beats per

minute or until heavy sweating stops.

Apply 4 to 6 minutes in length.

JA-76

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY, )

Plaintiff, )

)

- ) Civil Action No, 94-2180

THE COMMONWEALTH OF ) Judge Alan N. Bloch/

PENNSYLVANIA DEPARTMENT ) Magistrate Judge Sensenich

OF CORRECTIONS, ) Re: Doc. # 19

JOSEPH D. LEHMAN,

JEFFREY A. BEARD, Ph.D., )

JEFFREY K. DITTY, DOES )

NUMBER | THROUGH 20, )

INCLUSIVE,

Defendants )

MAGISTRATE JUDGE'S REPORT

AND RECOMMENDATION

1. RECOMMENDATION

It is recommended that this action be transferred to the

United States District Court for the Middle District of Pennsyl-

vania.

Il. REPORT

Plaintiff, Ronald R. Yeskey, presently an inmate at the State

Correctional Institution at Greensburg, commenced this action

pursuant to the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101, et seq., and the Civil Rights Act of 1871, 42

U.S.C. § 1983. Named as defendants are the Commonwealth of

Pennsylvania Department of Corrections and its former Commis-

sioner Joseph D. Lehman, Superintendent Jeffrey A. Beard of the

State Correctional Institution at Camp Hill, Jeffrey K. Ditty,

Director of the Central Diagnostic and Classification Center of

the State Correctional Institution at Camp Hill, and unidentified

John Doe defendants. Plaintiff complains that defendants violated

JA-77

his federally secured rights under the ADA as well as his consti-

tutional rights under the Fifth, Eighth and Fourteenth Amend-

ments, and Article I, section | of the Pennsylvania Constitution.

He seeks a declaratory judgment, money damages, injunctive

relief, costs of prosecuting this claim and any other relief deemed

appropriate by this court.

Plaintiff alleges that in May 1994, he was sentenced to serve

a term of eighteen to thirty-six months with the recommendation

of the sentencing judge that he be placed in the Department of

Corrections’ Motivational Boot Camp program. He contends that

while confined at the Classification and Diagnostic Center at the

State Correctional Institution at Camp Hill (“SC1I-Camp Hill”) on

July 1, 1994, he was advised that he was not eligible for the Moti-

vation Boot Camp program because of his history of hyperten-

sion. Although he made repeated requests for placement in the

program, these requests were denied. Further, he was allegedly

denied admission to any type of alternative program.

Plaintiff argues that the Motivational Boot Camp is a service,

program, or activity of a public entity within the meaning of the

ADA, and that he was denied admission solely because of a dis-

ability. He argues that the defendants failed to use criteria for eli-

gibility to their program which provides a qualified individual

with a disability an equal opportunity for participation in the boot

camp program. Plaintiff complains that this denied him equal

protection of the laws and violated the ADA. Additionally, he

complains that defendants acted with deliberate indifference sub-

jecting him to cruel and unusual punishment under the Eighth

Amendment.

The defendants have filed a motion to dismiss, or in the

alternative, a motion to transfer this action. In this motion, defen-

dants argue that venue is improper in this district because all of

the identified defendants reside in Harrisburg, Pennsylvania, and

because SCI-Camp Hill, where the alleged misconduct occurred -

is located in the Middle District of Pennsylvania. This court must

first determine whether venue is proper in this district before

considering whether plaintiff has alleged a claim under Rule

12(b)(6). Madara v. Hall, 916 F.2d 1510, 1514 n.J (11th Cir

1990).

JA-78

At the time this action was filed, plaintiff was confined at the

State Correctional Institution at Greensburg. He argues that

venue is proper in this district because the harm he suffered

resulting from the defendants’ alleged misconduct is to be con-

fined in a penal facility located in this district.

Venue for actions commenced under 42 U.S.C. § 1983 and

the ADA where there is no diversity of citizenship is governed by

28 U.S.C. § 1391(b). Gilbert _v. Texas Mental Health and Mental

Retardation, 888 F. Supp. 775, 776 (N.D. Tx. 1995). Section

1391(b) provides that a lawsuit may be filed in:

(1) a judicial district where any defendant resides, if all

defendants reside in the same State, (2) a judicial dis-

trict in which a substantial part of the events or omis-

sions giving rise to the claim occurred, or a substantial

part of property that is the subject of the action is situ-

ated, or (3) a judicial district in which any defendant

may be found, if there is no district in which the action

may otherwise be brought.

The purpose of venue statutes is “to protect the defendant against

the risk that a plaintiff will select an unfair or inconvenient place

of trial.” LeRoy v. Great Western United Corporation, 443 U.S.

173, 184 (1979). In LeRoy, the Court first confronted a multi-

party/multi-district venue problem and interpreted the “claim

arose” provision of 28 U.S.C. § 1391 (b) as follows:

Without deciding whether this language adopts the

occasionally fictive assumption that a claim may arise in

only one district, it is absolutely clear that Congress did

not intend to ... give [plaintiff] an unfettered choice

among a host of different districts.

Id. at 184-85. The Court then balanced all the factors presented

by both parties and found that “the bulk of the relevant evidence

and witnesses” favored venue in one district. Id. at 186. This dis-

trict court has interpreted the test in LeRoy as a “weight of the

contacts” which would favor one venue over another. Seilon Inc.

v. Lamb, 559 F. Supp. 563 (W.D. Pa. 1983).

The “claim arose” provision found in the venue statute and

used in LeRoy was amended in 1990. The statute now states that

venue is proper where “a substantial part of the events or omis-

JA-79

sions giving rise to the claim occurred.” This amendment permits

venue in more than one district provided that each has a substan-

tial relationship to the action. Cottman Transmission Sys. v. Mar-

tino, 36 F.3d 291, 294 (3d Cir. 1994).

After the amended section was enacted, the United States

District Court for the Eastern District of Pennsylvania continued

to use the “weight of the contacts” test to determine venue under

section 1391. Eastman _v. Initial Investments, Inc., 827 F. Supp.

336, 338 (E.D. Pa. 1993). Under the “weight of the contacts” test

“venue would be proper in the district having the most significant

ties to the claim.” Broadcasting Company of the Carolinas v. Flair

Broadcasting Corporation, 892 F.2d 372, 376 (4th Cir. 1989).

Plaintiff argues that his incarceration within this district is a

sufficient basis for this court to find that venue is proper here. In

Flanagan _v. Shively, 783 F.Supp. 922 (M.D. Pa.), affd, 980

F.2d 722 (3d Cir. 1992), the only link the inmate established to

the Middle District was his incarceration in that district. He did

not allege any events or acts by defendants occurring within that

district. The court found that plaintiff's incarceration within the

district was insufficient to justify venue under section 1391(e)(2).

Id. at 935. Thus, the court found that the inmate had failed to

establish venue.

The basis of plaintiff's claim is that defendants denied him

admission to a motivational boot camp which had been recom-

mended by his sentencing judge because he suffered from hyper-

tension. The decision to deny plaintiff admission was made by

defendants in the Harrisburg area. Additionally, plaintiff has

alleged that the criteria established by the Department of Correc-

tions and its commissioner and used for admission was not fair.

Again, this agency and the commissioner are not located in this

district. For purposes of venue, the United States District Court

for the Eastern District of Pennsylvania has held that “a state

official’s residence is located at the state capitol, even where

branch offices of the state official’s department are maintained in

other parts of the state.” Wilson _v. Pennsylvania State Police,

1995 WL 129202, at °1 (E.D. Pa. Mar. 24, 1995) (citations omit-

ted). Thus, the commissioner's residence is also located in the

Middle District of Pennsylvania. Plaintiff's only basis for com-

JA-80

mencing this action here is due to his present incarceration in this

district. This is not a sufficient basis for venue. The substantial

portions of the events giving rise to plaintiff's claim occurred in

the Middle District of Pennsylvania. Under the “weight of the

contacts” test, venue is proper in the Middle District and not this

district.

When venue is improper, as in this lawsuit, the Court may,

in the interest of justice, transfer the case to a district court in

which it could have been brought. 28 U.S.C. § 1406(a). Under

the facts set forth in the complaint, this lawsuit could have been

brought in the United States District Court for the Middle Dis-

trict of Pennsylvania.

Pursuant to 28 U.S.C. § 1406 (a), the Court should transfer

this lawsuit to the United State [sic] District Court for the Middle

District of Pennsylvania.

In accordance with the Magistrates Act, 28 U.S.C. § 636

(b)(1)(B) and (C), and Rule 72.1.4 (B) of the Local Rules for

Magistrates, the parties are allowed ten (10) days from the date

of service to file objections to this report and recommendation.

/s/ Ila Jeanne Sensenich

ILA JEANNE SENSENICH

U.S. Magistrate Judge

Dated: October 18, 1995

cc: The Honorable Alan N. Bloch

United States District Judge

L.. Abraham Smith, Esquire

P.O. Box 1644

Greensburg, PA 15601-7644

Gloria A. Tischuk

Deputy Attorney General

4th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

JA-81

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY, )

Plaintiff )

) Civil Action No. 94-2180

VS. ) Judge Alan N. Bloch/

) Magistrate Judge Sensenich

THE COMMONWEALTH OF )

PENNSYLVANIA DEPARTMENT OF ) Re: Doc. # 19

CORRECTIONS, )

JOSEPH D. LEHMAN, )

JEFFREY A. BEARD, Ph.D., )

JEFFREY K. DITTY, )

DOES NUMBER | THROUGH 20, )

INCLUSIVE, )

Defendants )

MEMORANDUM ORDER

Plaintiff's complaint was received by the Clerk of Court on

December 21, 1994, and was referred to United States-Magis-

trate Judge Ila Jeanne Sensenich for pretrial proceedings in

accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and

Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The magistrate judge's report and recommendation, filed on

October 19, 1995, recommended that this action be transferred

to the United States District Court for the Middle District of

Pennsylvania. The parties were allowed ten (10) days from the

date of service to file objections. Service was made on plaintiff by

delivery to counsel for plaintiff, L. Abraham Smith, Esquire, and

on defendants. No objections have been filed. After review of the

pleadings and documents in the case, together with the report

and recommendation, the following order is entered:

AND NOW, this 9th day of November, 1995;

JA-82

IT IS HEREBY ORDERED that this action is transferred to

the United States District Court for the Middle District of Penn-

sylvania.

The report and recommendation of Magistrate Judge

Sensenich, dated October 18, 1995, is adopted as the opinion of

the court.

/s/ Alan N. Bloch

Alan N. Bloch

United States District Judge

ce: Ila Jeanne Sensenich

U.S. Magistrate Judge

L.. Abraham Smith, Esquire

P.O. Box 1644

Greensburg, PA 15601-7644

Gloria A. Tischuk

Deputy Attorney General

4th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

JA-83

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY,

Plaintiff

CIVIL, ACTION

: NO. 195-2125

v. » (CALDWELL, J.)

: (DURKIN, MJ.)

COMMONWEALTH OF PA, et al.,

Defendants

REPORT AND RECOMMENDATION

This case is before the court on the defendants’ motion to

dismiss the plaintiffs complaint. (Doc. No. 1).

By way of background, the plaintiff, an inmate at the State

Correctional Institution, Greensburg, Pa, originally filed this civil

rights action pursuant to 42 U.S.C. § 1983 and the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. in the

Western District of Pennsylvania on December 21, 1994. By

order of the same date, the plaintiff was permitted to proceed in

forma pauperis and process was issued.

On February 7, 1995, the plaintiff requested an entry of

default against the defendants for their failure to file an answer

to the complaint. On March 7, 1995, the defendants filed a

motion to set aside the default judgment. On April 7, 1995, the

plaintiff consented to the defendants’ motion to set aside default

judgment and by order dated April 19, 1995, the entry of default

was set aside.

On April 24, 1995, the defendants filed a motion to dismiss

or, in the alternative, to transfer the case. After being granted an

enlargement of time, on May 25, 1995, the defendants filed a

brief in support of their motion to dismiss or transfer. On June

20, 1995, the plaintiff filed a brief in opposition to the defendants’

motion to dismiss or transfer. e

On October 19, 1995, a magistrate judge in the Western

District issued a report in which only the motion to transfer was

JA-84

addressed, and recommended that the defendants’ motion to

transfer the case to the United States District Court for the

Middle District of Pennsylvania be granted. In that report, the

motion to dismiss was not addressed. By order dated November

9, 1995, the magistrate judge's report and recommendation was

adopted. On December 13, 1995, the case was transferred to the

Middle District of Pennsylvania where it was filed on December

14, 1995. On December 15, 1995, the case was received in the

magistrate judge's office with the defendants’ April 24, 1995,

motion to dismiss still pending. Thus, before the court is the

defendants’ motion to dismiss.

The plaintiff alleges that in May 1994, he was sentenced to

serve a term of eighteen to thirty-six months with the recommen-

dation of the sentencing judge that he be placed in the Depart-

ment of Corrections’ Motivational Boot Camp program. He con-

tends that on July 1, 1994, while confined at the Classification and

Diagnostic Center at the State Correctional Institution at Camp

Hill, (SCI-Camp Hill), he was advised that he was not eligible for

the Motivation Boot Camp program because of his history of

hypertension. Although he made repeated requests for placement

in the program, these requests were denied. Further, he was

allegedly denied admission to any type of alternative program.

(Doe. No. 1). The plaintiff argues that the Motivational Boot

Camp is a service, program, or activity of a public entity within

the meaning of the ADA, and that he was denied admission solely

because of a disability. He argues that the defendants failed to

use criteria for eligibility to their program which provides a quali-

fied individual with a disability an equal opportunity for partici-

pation in the boot camp program. The plaintiff complains that

this denied him equal protection of the laws and violated the

ADA. Additionally, he complains that defendants acted with

deliberate indifference subjecting him to cruel and unusual pun-

ishment under the Eighth Amendment. (Id.).

The plaintiff seeks damages as well as an injunction releas-

ing him from incarceration at some unidentified “chronological

point when plaintiff would have been released had he been

admitted to and successfully completed the Boot Camp Program”

as well as “submit plans” to accomplish this release and pay attor-

ney fees, costs and expenses”. (Id.).

JA-85

By statute, the motivational boot camp is

“A program in which eligible inmates participate for a

period of six months in a humane program for motiva-

tional boot camp programs which shall provide for rig-

orous physical activity, intense regimentation and dici-

pline, work on public projects, substance abuse

treatment services licensed by the Department of

Health, ventilation therapy, continuing education, voca-

tional training and prerelease counseling. {sic}

61 Pa.C.S.A. §§ 1121-1129; § 1123 (1994 Supp.).

An eligible inmate may make application to the motivational

boot camp colcotion [sic] committee for permission to participate

in the motivational boot camp. Id. at § 1126(a). If the selection

committee determines that an inmate's participation in the pro-

gram is consistent with the safety of the community, the welfare

of the applicant, the programmatic objectives and the rules and

regulations of the department, the committee shall forward the

application to the secretary or his designee for approval or disap-

proval. Id. at § 1126(b). However, satisfying the above qualifica-

tions to participate does not mean the inmates will automatically

be permitted to participate in the program. Id. at § 1126(d).

With respect to the plaintiff's claim under the American [sic]

with Disabilities Act, (ADA), that the Motivational Boot Camp is

a service, program, or activity of a public entity within the mean-

ing of the ADA, and that he was denied admission solely because

of a disability, Title I] of the ADA, provides that “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 such entity.” 42 U.S.C. § 12132.

The regulations implementing the ADA define a “qualified

individual with a disability” as:

“An individual with a disability who, with or without

reasonable modifications to rules, policies or practices,

... meets the essential eligibility requirements for the

.. . participation in programs or activities provided by a

public entity.”

28 C.E.R. § 35.104 (1993).

JA-86

The ADA seeks “to assure eve» handed [sic] treatment and

the opportunity for {disabled} i:<iwiduals to participate in and

benefit from programs [receiving financial assistance). [sic]

Southeastern Community College v. Davis, 442 U.S. 397 (1979).

The “evenhanded treatment” requirement does not, however,

impose an affirmative obligation on public entities to expand

existing programs but only that disabled individuals receive the

same treatment as those who are not disabled. P.C_ v. McLaugh-

lin, 913 F.2d 1033, 1041 (2d Cir. 1990).

In an action brought pursuant to 42 U.S.C. § 1983, a plain-

tiff must allege and prove that the defendants deprived him of a

right secured by the Constitution and laws of the United States.

Maine v. Thiboutot, 448 U.S. 1 (1980); Baker v. McCollan, 443

U.S. 137 (1979). The plaintiff claims sap ck

Camp is a service, program, or activity of a public entity in

the seuienaial ADA, and that he was denied admission solely

because he is disabled.

However, whether or not the plaintiff is a qualified person

with a disability pursuant to the ADA is of no moment, since it is

well settled 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. Hewitt v. Helms, 459 U.S. 460 (1983); Montanye v.

Haymes, 427 U.S. 236, 242 (1976); Stephany v. Wagner, 835 F- 2d

197 (3d Cir. 1987); Lull vy. Arroyo, 785 F. Supp. 508, 509-10 (E.D.

Pa. 1991) (holding that pre-release programs in Pennsylvania

penal institutions do not create expectations or entitlements

amounting to a “liberty” interest for due process purposes); see

also Wright v. Cuyler, 517 F. Supp. 637 (E.D. Pa. 1981); Reider

v. Commonwealth of Pennsylvania, 502 A.2d 272 (1985). More-

over, an inquiry by this Court into matters of prison administra-

tion, 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

ey ee

S , with respect to the boot camp, the statutory pro-

ain admission to the boot camp grant unquali-

fied discretion to the Department of Corrections classification

staff as they consider candidates. Courts may interfere “only

JA-87

when the deprivations of prison confinement impose conditions

of such onerous burdens as to be of constitutional dimensions.”

McNeil v. Latney, 382 F. Supp. 161, 162 (E.D. Va. 1974), quoting

Breeden v. Jackson, 457 F.2d 578, 580 (4th Cir. 1972); Pope v.

Williams, 426 F. Supp. 279 (E.D. Pa. 1971). Thus, “as long as the

conditions or degree of confinement to which the prisoner is sub-

jected is within the sentence imposed upon him and is not other-

wise violative of the constitution, the Due Process Clause does

not in itself subject an inmate's treatment by prison authorities to

judicial oversight.” Montanye, 427 U.S. at 242.

The refusal to allow the plaintiff into the motivational boot

camp program fails to rise to the level of an “onerous burden”

such that it is of constitutional dimensions. The Act, itself,

unequivocally provides that participation in the program is not

dictated and that “satisfying the above qualifications to participate

does not mean the inmates will automatically be permitted to

e in the program.” 61 Pa.C.S.A. § 1126(d). Thus, even if

the plaintiff had not been disqualified due to his medical condi-

tion, he would not be assured that he would participate.

Thus, since the plaintiff has not been deprived of a right,

privilege or immunity secured by the Constitution or laws of the

United States, he has failed to state a claim, see Maine v. Thibou-

tot, 448 U.S. 1 (1980) and the complaint should be dismissed

pursuant to Fed. R.Civ.P. 12(b)(6).

To the extent that the plaintiff may be attempting to pursue

an equal protection claim asserting that he has been unconstitu-

tionally discriminated against, his pleading is lacking in important

ways. As the case law interpreting this constitutional guarantee

reflects, in order to present a claim of this type, a complaint must

assert that a plaintiff, who is a member of a traditionally protected

class, has been the object of intentional discrimination motivated

by his being a member of that class and that, as a result of this

discrimination, he has been treated differently than others who

are similarly situated but who are not members of the class. See,

e.g., Washington v. Davis, 426 U.S. 229 (1976).

The plaintiff's complaint does not do this. First, it does not

indicate that he is a member of any recognized “protected class”

for equal protection purposes. But even if this were not the case,

it does not show the requisite intentional discrimination associ-

JA-88

ated with class membership since the decision that the plaintiff

could not engage in the rigorous physical activity required of boot

camp participants was a rational and medically based decision, as

opposed to the critical element, intentional discrimination,

required to state an Equal Protection Claim. McNabola v. Chi-

cago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993).

Finally, with respect to the plaintiff's claim that his denial of

entry into the boot camp violated his Eighth Amendment right to

be free from cruel and unusual punishment, not every harsh and

unpleasant condition experienced by a prisoner gives rise to and

[sic] Eighth Amendment claim. Rather, as the Supreme Court

observed, it is now a “settled rule” that it is “ ‘the unnecessary and

wanton infliction of pain. . . [which] constitutes cruel and unusual

punishment forbidden by the Eighth Amendment.” Hudson _v.

McMillian, 503 U.S. 1, 112 S.Ct. 995 (1992), quoting Ingraham v.

Wright, 430 U.S. 651 (1977).

In order to establish the unnecessary and wanton infliction

of pain, an inmate must establish both: (a) an objective determi-

nation that the actions or conditions at issue are significantly egre-

gious to rise to the level of an Eighth Amendment violation, and

(b) a subjective determination that the defendants acted with a

culpable state of mind. Hudson, supra. Generally, the subjective

determination is judged by a standard of “deliberate indiffer-

ence.” Wilson _v. Seiter, 501 U.S. 294 (1991).

While the plaintiff claims that his Eighth Amendment rights

were violated when he was refused entry into the boot camp pro-

gram, he has not alleged any facts describing inhumane condi-

tions or that he suffered unnecessary or wanton infliction of pain.

The complaint contains no facts which set forth conditions suffi-

ciently egregious to rise to the level of an Eighth Amendment

violation. In addition, the plaintiff fails to allege that any of the

individual defendants were deliberately indifferent. Thus, the

plaintiff has failed to state an Eighth Amendment claim.

On the basis of the foregoing,

JA-89

IT IS RESPECTFULLY RECOMMENDED

THAT the defendants’ motion to dismiss, (Doc. No. 1)

be granted.

/s/ Raymond |. Durkin

RAYMOND J. DURKIN

United States Magistrate Judge

Dated: January 22, 1996

JA-90

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY, :

Plaintiff:

CIVIL ACTION NO. 1:95-2125

: (CALDWELL, J.)

¥ : (DURKIN, MJ.)

COMMONWEALTH OF PA, et al.,

Defendants

FILED

SCRANTON

NOTICE JAN 23 1996

TO: L. Abraham Smith, Esquire PER SIG.

P.O. Box 1644 DEPUTY CLERK

Greensburg, PA 15601-7644

Gloria A. Tischuk, Deputy Attorney General

OFFICE OF ATTORNEY GENERAL

4th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

NOTICE IS HEREBY GIVEN that the undersigned has

entered the following: Report and Recommendation of Mag-

istrate Judge Durkin dated 01/22/96.

Any party may obtain a review of the magistrate judge's above

proposed determination pursuant to Rule 72.31, M.D.PA, which

provides: 72.31 Review of Case-Dispositive Motions and

Prisoner Litigation - 28 U.S.C. Sec. 636(b)(1)(B).

Any party may object to a magistrate judge's proposed find-

ings, recommendations, or report, under subsections 72.4, .5, and

6 of these rules, supra, within ten (10) days after being served

with a copy thereof. Such party shall file with the Clerk of Court,

and serve on the magistrate judge and all parties, written objec-

tions which shall specifically identify the portions of the proposed

JA-91

findings, recommendations or report to which objection is made

and the basis for such objections. The briefing requirements set

forth in Rule 72.30 shall apply. A judge shall make a de novo

determination of these portions of the report or specified pro-

posed findings or recommendations to which objection is made

and may accept, reject, or modify, in whole or in part, the find-

ings or recommendations made by the magistrate judge. The

judge, however, need conduct a new hearing only in his or her

discretion or where required by law, and may consider the record

developed before the magistrate judge, making his or her own

determination on the basis of that record. The judge may also

reccive further evidence, recall witnesses, or recommit the mat-

ter to the magistrate judge with instructions.

/s/ Raymond |. Durkin

RAYMOND J. DURKIN

United States Magistrate Judge

Dated: January 22, 1996

JA-92

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY, )

Plaintiff, )

) CIVIL ACTION NO.

) 1:95-2125

vs. ) (CALDWELL, J.)

)

COMMONWEALTH OF )

PENNSYLVANIA, et al., )

Defendants ) (DURKIN, M.J.)

PLAINTIFF’S STATEMENT OF OBJECTIONS TO

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION PURSUANT TO

RULE 72.31, M.D.Pa.

Plaintiff, Ronald R. Yeskey, by and through his attorney,

L. Abraham Smith, Esquire, brings this Statement of Objections

to the Magistrate Judge's Report and Recommendation dated

January 22, 1996, which recommended that the defendants’

motion to dismiss be granted.

1. The report and recommendation mischaracterizes and imper-

missibly commingles the clearly separate and distinct elements of

a claim pursuant to the Americans with Disabilities Act (42

U.S.C. §12101, et seq.) and those of a claim under the Civil

Rights Act (42 U.S.C. §1983).

a.) In order for a state prisoner to state a claim pursuant to

the ADA, he need only demonstrate that he was denied access to

a service, program or activity of a public entity; he need not allege

that he had a constitutional right to participate in the program in

question.

JA-93

b.) In order for a state prisoner to state a claim pursuant to

the Section 1983 of the Civil Rights Act (42 U.S.C. §1983), it is

sufficient to state that the plaintiff's rights established by the ADA

were violated under color of state law.

Respectfully submitted,

DATED: February 6, 1996 /s/ L. Abraham Smith

L. Abraham Smith, Esquire

Attorney for Plaintiff.

Pa. 1.D. #69020

P.O. Box 1644

Greensburg, PA 15601-7644

(412) 423-8614

JA-94

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY, )

Plaintiff, )

) CIVIL ACTION NO.

) 1:95-2125

vs. ) (CALDWELL, J.)

)

COMMONWEALTH OF )

PENNSYLVANIA, et al., )

Defendants ) | (DURKIN, M_J.)

CERTIFICATE OF SERVICE

1, L. ABRAHAM SMITH, Esquire, hereby certify that on

February 6, 1996, I caused to be served a true and correct copy

of the foregoing document entitled Plaintiff's Statement of

Objections to Magistrate Judge’s Report and Recommenda-

tion Pursuant to Rule 72.31, M.D.Pa. by depositing same in

the United States Mail, first-class postage prepaid to the follow-

ing:

R. Douglas Sherman, Esquire

Deputy Attorney General

Office of the Attorney General

15th FL, Strawberry Square

Harrisburg, PA 17120

/s/ L.. Abraham Smith

L. Abraham Smith, Esquire

Attorney for Plaintiff

DATE: February 6, 1996

JA-95

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY, :

Plaintiff :

. 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 Correc-

tions, Joseph D. Lehman, the Department's Commissioner,

Jeffrey A. Beard, the Superintendent at SCI-Camp Hill, Pennsyl-

vania, and Jeffrey K. Ditty, the Director of the Central Diagnos-

tic 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 blood

pressure violated his rights under Title II of the Americans 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 amendment) to be free

from cruel and unusual punishment; and his right to due process

as guaranteed under Article I, § 1 of the Pennsylvania Constitu-

tion. The plaintiff invokes 42 U.S.C. § 1983 in connection with his

federal claims. He seeks damages and declaratory and injunctive

relief, including an injunction requiring the defendant to release

JA-96

the plaintiff from confinement 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 con-

strue any inferences to be drawn from them in the plaintiff’ 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 litiga-

tion, 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 imprisonment.

(Complaint, 4 9). The sentencing court recommended his place-

ment 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. (Id., ¥ 10). On July 1, 1994, while the plaintiff

was housed at SCI-Camp Hill awaiting classification, he was

refused entry into the boot camp program “due to a medical his-

tory of hypertension (on medication).” (Id., ¢ 11). He was also

refused entry into “any alternative program offering to disabled

persons . . . the same benefits as the Motivational Boot Camp

Program.” (Id., ¢ 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 program so even if he

had not been denied entrance on the basis of his high blood

pressure, the plaintiff cannot establish that he would have been

admitted to the program in any event. Second, the ADA does not

require accommodation that would destroy the essential nature of

a program. Since rigorous physical activity is essential to the boot

camp program, plaintiff cannot be accommodated since his

hypertension prevents 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

' The case was filed in the Western District of Pennsylvania but was

transferred here on motion of the defendants.

JA-97

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:

[W]whether [sic] or not the plaintiff is a qualified per-

son with a disability pursuant to the ADA is of no

moment, since it is well settled that a state prisoner,

whether disabled, or not, does net have a protected lib-

erty 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 inter-

fere with the administration's right to police its penal

system. These administration (sic) determinations have

consistently and correctly been left to the prison man-

agement’s sound discretion.

(magistrate judge's report at pps. 5-6) (brackets added). The mag-

istrate judge then found the equal protection claim deficient by

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

the clause; and (2) the defendants had not intentionally discrimi-

nated because they did not refuse him 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 amend-

ment 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 contends that

the magistrate judge erred in dismissing the ADA claim on the

basis that he cannot assert a constitutional right to participation in

JA-98

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 federal 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-efter the briefing of the

motion to dismiss. They also contend that the section 1983 claim

must fail because that claim requires either a federal constitu-

tional 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, U.S. __, 116 S.Ct. 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 pertinent

sections of Title II of the ADA. Section 12132 prohibits diserimi-

nation against the disabled and provides as follows:

Subject to the provisions of this subchapter [‘Title II], 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 activi-

ties of a public entity, or be subjected to discrimination

by any such entity.

42 U.S.C. § 12132 (brackets added).

Section 12131(1), the definitional section for Title I, 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 government;

42 U.S.C. § 12131(I(A) and (B)f.}

JA-99

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 percep-

tion, 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. Id. at 1346

(brackets added). Hence, the defendants could not be subjected

to liability since qualified immunity protected them against all

claims based on a violation of a federal right except those rights

that were clearly established. Id, at 1343.

Although decided in the context of qualified immunity,

Torcasio is relevant here because the court essentially reasoned

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 dis-

missing 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”).

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 examine

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

JA-100

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD R. YESKEY,

Plaintiff :

- CIVIL ACTION

= - NO. 1: CV-95-2125

COMMONWEALTH OF |

PENNSYLVANIA, et al., |

Defendants ©

ORDER

AND NOW, this 9th day of April, 1996, upon consideration

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 appropniate state court.

3. The Clerk of Court shall close this file.

/s/ William W. Caldwell

William W. Caldwell

United States District Judge

JA-101

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CIVIL DIVISION

RONALD R. YESKEY.

Plaintiff,

VS.

THE COMMONWEALTH OF

PENNSYLVANIA DEPARTMENT

)

)

)

}

) CIVIL ACTION NO.

)

OF CORRECTIONS, )

)

)

)

)

)

)

1:95-CV-2125

JOSEPH D. LEHMAN, NOTICE OF APPEAL

JEFFREY A. BEARD, Ph.D.

JEFFREY K. DITTY, DOES

NUMBER | THROUGH 20.

INCLUSIVE,

Defendants.

Notice is hereby given that Ronald R. Yeskey, Plaintiff in the

above named case, hereby appeals to the United States Court of

Appeals for the Third Circuit from an order granting defendants’

motion to dismiss entered in this action on the 9th day of April,

1996.

Respectfully submitted,

DATED: 5/6/96 /s/ L. Abraham Smith

L.. Abraham Smith, Esquire

Attorney for Plaintiff

Pa. 1.D. #69020

P.O. Box 1644

Greensburg, PA 15601-7644

(412) 423-8614

JA-102

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CIVIL DIVISION

RONALD R. YESKEY,

Plaintiff,

VS.

)

)

)

)

THE COMMONWEALTH OF )

PENNSYLVANIA DEPARTMENT )

OF CORRECTIONS, ) CIVIL ACTION NO.

JOSEPH D. LEHMAN, ) 1:95-CV-2125

JEFFREY A. BEARD, Ph.D., )

JEFFREY K. DITTY, DOES )

NUMBER |! THROUCH 20, )

INCLUSIVE, )

Defendants. )

CERTIFICATE OF SERVICE

| hereby certify that a true and correct copy of the foregoing

Notice of Appeal was served upon the following as attorney for all

defendants via first-class mail, postage prepaid on May 6, 1996:

R. Douglas Sherman, Esquire

Office of the Attorney General

15th Flr, Strawberry Square

Harrisburg, PA 17120

/s/ L. Abraham Smith

L.. Abraham Smith, Esquire

Attorney for Plaintiff

Pa. 1.D. #69020

P.O. Box 1644

Greensburg, PA 15601-7644

(412) 423-8614

JA-103

IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7292

RONALD R. YESKEY,

Appellant

V.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF CORRECTIONS; JOSEPH D. LEHMAN:

JEFFREY A. BEARD, PH.D.; JEFFREY K. DITTY:

DOES NUMBER | THROUGH 20, INCLUSIVE

BRIEF OF APPELLEES

Appeal of the Order entered April 9, 1996

in the United States District Court for

the Middle District of Pennsylvania

at Docket No. 1: CV-95-2125

THOMAS W. CORBETT, JR.

Attorney General

BY: R. DOUGLAS SHERMAN

Deputy Attorney General

CALVIN R. KOONS

Senior Deputy Attorney General

JOHN G. KNORR, III

Chief Deputy Attorney General

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

Date: August 1, 1996

JA-104

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............-:0ceceeeeeee i

STATEMENT OF JURISDICTION. .............--555.

STATEMENT OF THE ISSUES PRESENTED ......... 2

STATEMENT OF THE CASE............5050055 0055 3

STATEMENT OF FACTS ............. 000 0c cece ee ee es 5

STATEMENT OF RELATED CASES ...........- 55-5. b

SUMMARY OF ARGUMENT.............-.-.5525055: 7

ARGUMENT

THE AMERICANS WITH DISABILITIES ACT IS

INAPPLICABLE TO INMATES INCARCERATED

IN A STATE PRISON ....... 6... 62. ee ee eee eee 8

A. Congress did not intend the ADA to apply to

PFISOMS. . 0... eee ees 8

B. Prisons are not “public entities” which provide

“public services.” RRR re 11

C. Inmates are not “qualified” individuals ..... . 13

CONCLAISION, 00. ccc cccscwccnesecseveveneensencs 19

CERTIFICATE OF BAR MEMBERSHIP

CERTIFICATE OF SERVICE

JA-105

TABLE OF AUTHOTITIES

CASES: PAGE

Atascadero State Hospital v. Scanlon,

ie a a 9, 10

Bryant v. Madigran,

84 F.3d 246 (7th Cir. 1996)........................ 13

Employees of Department of Public Health & Welfare v.

Missouri Department of Public Health & Welfare,

ee ae 1}

Franklin v. Gwinnett County Public Schools,

Ra 11

Gates v. Rowland,

39 F.3d 1439 (9th Cir. 1994) .......... 0000... 14, 15

Gilbreath v. Cutter Biological Inc.,

931 F.2d 1320 (9th Cir. 1991) ..................... 15

Gorman v. Bartch,

925 F. Supp. 653 (M.D. Mo. 1996)................. 13

Gregory v. Ashcroft,

RE ES A cy > Oa, oS 10

Guiseppi_v. Walling,

144 F.2d 608 (2d Cir. 1944) ....................... 11

Harker v. State Use Industries,

990 F.2d 131 (4th Cir.), cert. denied, — U.S._, 114 S.

ee 15

Little v. Lycoming County,

912 F. Supp. 809 (M. D. Pa 1996) [sic]... ..... 11, 12, 16

Meachum v_ Fano,

RS: 220 So or a 14

Miller v. Dukakis,

961 F.2d 7 (Ist Cir. 1992) ......................... 15

Moody v. Daggett,

Se votbirens baeunecusebecsud ce chs 14

JA-106

Moore v. Tartler,

ee ren Gee BD, cio ccuccssecececentsvee 2

Olim v. Wakinekona,

ee ED, on yp ne nececetebnetseceeeee es 14

Pennhurst State School and Hospital v. Halderman,

re cl dae ee eekeweeh cues te 3)

Pierce v. King,

918 F. Supp. 932 (E.D. N.C. 1996)............66. 13, 15

Preiser v. Rodriguez,

RS: oo on eee eee ge web eee sues 11

Procunier v. Martinez,

ER so ale ies pa teecadietevess 11, 12

Rice v. Santa Fe Elevator Corp.,

a ee ie i eeunaeens g

Silverman v. Eastrich Multiple Investor fund [sic],

€. > | . BARRRGAS RAE i= elise tae rarer 2

Torcasio v. Angelone,

__ US. _, 116 S. Ct. 772, 133 L. Ed. 2d 724 (1996). = 8

Torcasio v. Murray,

57 F.3d 1340 (4th Cir. 1995) ...... 8, 9, 10, 11, 12, 13, 16

Turner v. Schering-Plough Corp.,

ee OE, PD bw dec ccccccccosecenecs 2

United States V. [sic] Bass,

i eg ohare Nea eew aes i]

United States v. Ron Pair Enterprises,

Ee ee eer eee Te 15

United Steelworkers of America, AFL-CIO v. Weber,

rr re oe Le eh ire 6 wegeebes «hie 15

Vanskike v. Peters,

ey a CN GE DED vk oc covccudocveeweeses 15

JA-107

STATUTES

ke |

28 U.S.C. §§1331 and 1343............................ |

ERA eee ae 14

ee 14

ee re 14

a ee ean 14

a icc ctw edecctecec, cous... 14

| Ge ee Rear eID 1,3

an i ia le 1,3

OU Pe oan vn ckeccvch le. 8

Ci oe oie ee chee veede duets acl. 7)

42 US.C. §12Z131(1)( AB) ............................ 10

a 10

ee 10

Gos occ iersvcksccsen Meu 9

et SL ud ara an oh = 2 9

ete eG ak Btn ed 5

AE RAPS le ke pice Lae 5

JA-108

STATEMENT OF JURISDICTION

This is a civil action brought by a state prisoner pursuant to

the Americans with Disabilities Act (ADA), 42 U.S.C. §12101, et

seq. and 42 U.S.C. §1983 over which the district court had sub-

ject matter jurisdiction by virtue of 28 U.S.C. §§1331 and 1343.

This appeal is from a final order, over which this Court has

jurisdiction by virtue of 28 U.S.C. § 1291. The district court's

judgment was entered on April 9, 1996 and the notice of appeal

was filed on May 7, 1996.

STATEMENT OF THE ISSUES PRESENTED

Whether the Americans with Disabilities Act is

inapplicable to inmates incarcerated in a state

prison?

This issue was raised before the district court during brief-

ing on Yeskey’s objections to the Report and Recommendation of

the Magistrate Judge which recommended that the complaint be

dismissed. The scope of review is plenary as to the district court's

choice, interpretation and application of controlling legal pre-

cepts. Silverman v. Eastrich Multiple Investor fund [sic], 51 F.3d

28 (3d Cir. 1995); Moore v. Tartler, 986 F. 2d 682, 685 (3d Cir.

1993); Turner _v. Schering-Plough Corp., 901 F.2d 335, 340 (3d

Cir. 1990).

STATEMENT OF THE CASE

This action alleged that state officials discriminated against

an inmate by refusing to assign him to a particular state prison on

account of his disability. The appellant, plaintiff in the district

court, is Ronald R. Yeskey. Yeskey claimed that the Pennsylvania

Department of Corrections did not place him in its motivational

boot camp as the trial judge recommended, but declared him

medically ineligible based upon his history of hypertension. Yes-

key claimed the refusal to place him in the boot camp violated his

rights under the Americans with Disabilities Act, 42 U.S.C.

§12101, et seq. and violated his right to equal protection action-

able pursuant to 42 U.S.C. §1983 and also violated rights under

the Pennsylvania Constitution.

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Appellees, defendants in the district court, are the Common-

wealth of Pennsylvania, Department of Corrections; former Com-

missioner of Corrections Joseph Lehman; former Superintendent

of the State Correctional Institution at Camp Hill Jeffrey A.

Beard; and Director of the Central Diagnostic and Classification

Center Jeffrey K. Ditty.’

Yeskey filed this action in December 1994 in the Western

District of Pennsylvania, from which it was transferred upon the

defendants’ motion to dismiss and transfer to the Middle District

of Pennsylvania. The Magistrate Judge then issued a Report and

Recommendation addressing the merits of the complaint, and

recommended that the complaint be dismissed for failure to state

a claim upon which relief could be granted on January 23, 1996.

Yeskey filed objections to the Report and Recommenda-

tion® to which the defendants responded. The District Court held

that the ADA does not apply to state prisons. In reaching this

conclusion, the court relied upon the reasoning of the Fourth

Circuit Court of Appeals in Torcasio v. Murray, 57 F.3d 1340 (4th

Cir. 1995), which held that Title II of the ADA was too broad and

non-specific to enable the Court to conclude that Congress

intended the statute to apply to prisons[.] See App. A-33 - A-35

(Memorandum at pp. 5-7).°

This appeal followed.

STATEMENT OF FACTS

In May 1994, Yeskey was sentenced in state court to a sen-

tence of eighteen to thirty-six months incarceration. App. A-! |

(Complaint, 9). The sentencing judge recommended that Yeskey

be placed in the Department of Corrections’ Motivational Boot

Camp‘. App. A-11 (Complaint, 410).

' Yeskey also named twenty “Does” as defendants. They were never

served with process and are not parties to this appeal.

* The objections only addressed the propriety of dismissing the claim

under the Americans with Disabilities Act claim [sic] and did not address the

Magistrate Judge's recommended disposition of the other claims. Nor has Yes-

key challenged those claims here on appeal.

* Yeskey has attached his appendix to the Brief for Appellant.

* The Motivational Boot Camp Act, 61 PS. §1121 et seq. established a

“motivational boot camp” to which certain inmates may be assigned to serve

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In July 1994, while being housed in the State Correctional

Institution at Camp Hill's Central Diagnostic and Classification

Center, Yeskey was told that he was ineligible for participation in

the Motivational Boot Camp program due to a medical history of

hypertension. App. A-11 (Complaint, 411). The Correctional offi-

cials [sic] have not reconsidered their decision regarding Yeskey

and have not established any alternative programs offering dis-

abled persons like Yeskey the same benefits as the Motivational

Boot Camp. App. A-11 (Complaint, 411).

STATEMENT OF RELATED CASES

This case has not previously been before the Court, and

there are no pending or completed cases to which it is related.

SUMMARY OF ARGUMENT

Although the Americans with Disabilities Act (ADA) is a

broad statute, it does not by its terms apply to prisons and deci-

sions of daily prison administration--areas routinely recognized

within the basic core functions of the State and areas in which the

Courts have been loathe to intrude for reasons of federal/state

comity as well as the recognition that courts are not the appropri-

ate mechanism for administering prisons. As such, intrusions into

prison administration should not be lightly entered absent express

congressional authorization to do so. No such express authoriza-

tion exists in the ADA.

Further, the stated purposes of the Act would not be served

by applying it to prisons. The act focuses on the provision of pub-

lic services by public entities to qualified individuals. The forced

incarceration of convicted criminals in a very restricted and non-

public place does not fit within the purpose or definition of the

ADA. Instead, the ADA contemplates application to services and

their sentence by the Department of Corrections for a period of six months.

The nature of the boot camp provides rigorous physical activity, intensive regi-

mentation and discipline, work on public projects and other treatment. 61 P.S.

§1123. Pursuant to statute, placement of inmates in the boot camp is discre-

tionary with no inmate having a right to such placement. 61 P.S. §1126(d).

Upon successful completion of the six month incarceration, the inmate is

released on parole for intensive supervision as determined by the Pennsylvania

Board of Probation and Parole. 61 P.S. §1127.

JA-111

programs held open to the public as well as to the employment

of free individuals in the public sector.

Given the absence of express statutory authority to apply the

ADA to prisons and the lack of-reliable evidence of Congress’

intent that the ADA apply [sic] to prisons, the Court should hold

that ADA [sic] does not apply to decisions of prison administra-

tion such as presented here.

ARGUMENT

THE AMERICANS WITH DISABILITIES ACT

IS INAPPLICABLE TO INMATES INCARCER-

ATED IN A STATE PRISON.

The district court, relying on the Fourth Circuit's decision in

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

sub nom. Torcasio _v. Angelone, US. __, 116 S.Ct.

772, 133 L.Ed.2d 724 (1996)°, held that the ADA does not

apply to claims brought by a state prisoner based upon the

prison’s programs. App. A-34 - A-35. On appeal, Yeskey pre-

sents three arguments. First, that the district court should

not have interpreted the ADA at all because it is unambigu-

ous and should be afforded its plain meaning. See Appel-

lant’s Brief at pp. 13-16. Second, he claims that because the

State's eleventh amendment immunity has been abrogated in

suits brought under the ADA, it is improper to balance state

and federal interests in interpreting the ADA. See Appel-

lant’s Brief at pp. 17-19. Finally, Yeskey argues that federal

regulations and various publications related to the ADA sup-

ports a conclusion that the ADA applies to State prisons. Sec

Appellant's Brief at pp. 20-23. All of Yeskey’s arguments are

without merit.

A. Congress did not intend the ADA to apply to prisons.

Through enactment of the_ADA, Congress sought to elimi-

nate discrimination against those with disabilities in three specific

situations: in employment, (Title 1, 42 U.S.C. §12111); in the

* The Court in Torcasio arrived at this conclusion in the context of deter-

mining a defense of qualified immunity. Its decision with respect to the ADA

is applicable here though.

JA-112

provision of public services, (Title I, 42 U.S.C. §12131); and in

the operation of places of public accommodation, (Title Ill, 42

U.S.C. §12181). Congress did not state in the Act that it was

applicable to state prisons or the decisions of prison administra-

tors.® Instead, the Act is silent on this matter.

A number of courts have recently considered this issue,

holding that the ADA does not apply to the incarceration of

inmates. The common starting point of each of these cases is the

recognition that if Congress seeks to alter the usual constitutional

balance between the federal and state governments, it must make

its intent to do so unmistakably clear. Torcasio v. Murray, 57 F.3d

at 1344, citing Atascadero State Hospital v. Scanlon, 473 U.S. 234,

242 (1985); Pennhurst State School and Hospital v. Halderman,

465 U.S. 89, 99 (1984); and Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947). This requirement assures that the

legislature has in fact considered and decided the critical issue of

the balance of interests. Torcasio, 57 F.3d at 1344, citing United

States V. [sic] Bass, 404 U.S. 336 (1971). A court should not over-

ride the federal-state balance absent a finding of clear congres-

sional intent to do so. Torcasio, 57 F.3d at 1344-5, citing Gregory

v. Ashcroft, 501 U.S. 452, 460 (1991).?

The text of Title II, “Public Services”, of the ADA is admit-

tedly broad, but nowhere in the language of the Act or its legis-

lative history is there an express mention of state prisons:

Subject to the provisions of this subchapter, no qualified

individual with a disability shall, by reason of such dis-

ability, 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.

® Federal regulations do not provide any evidence of Congressional intent

with respect to applying the ADA to prison management decisions. Although

regulations implementing the ADA do mention “correctional institutions” in

one brief place, at 28 C.F.R. §35.190 which designates the Department of Jus-

tice as the agency to implement the ADA relating to law enforcement, admin-

istration of justice, courts and correctional institutions, the regulation does not

specify how the ADA is to be administered or the breadth of the ADA appli-

cation in those areas.

7 The legislative history also does not express an intent to apply the ADA

to state prisons.

JA-113

The statute defines a “public entity” as “any State or local

government” or “any department, agency, special purpose district,

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

ment, .. .” 42 U.S.C. $1213] (1) (A) (B). Further, a “qualified

individual with a disability” is defined as “an individual with a dis-

ability who, with or without reasonable modifications to rules,

policies, or practices, .. . meets the essential eligibility require-

ments for the receipt of services or the participation in programs

or activities provided by a public entity.” 42 U.S.C. §12131(2).

Broad language should not necessarily be construed to be

all-encompassing where it undermines other legal precepts and

upsets the normal balance of powers. See Atascadero State Hos-

pital v. Scanlon, 473 U.S. 234, 245-6 (1985) (remedy provided in

Rehabilitation Act against “any recipient of Federal assistance”

does not mean a state even though states are recipients of federal

assistance); Employees of Dept. of Pub. Health & Welfare v.

Missouri Dept. of Public Health & Welfare, 411 U.S. 279, 283-5

(1973) (Fair Labor Standards Act language applying to “employ-

ees of a State” did not mean state employee could sue the state

for violation). Rather, congressional intent must be interpreted in

light of the contemporary legal context. Franklin _v. Gwinnett

County Public Schools, 503 U.S. 60, 71 (1992).

This is a case in which “there is no surer way to misread [a]

document than to read it literally.” Guiseppi v. Walling, 144 F. 2d

608, 624 (2d Cir. 1944). The inclusion of state prisons and their

management into the coverage of the ADA would be at great

odds with the universal recognition that the administration and

management of State prisons is a basic state function entwined

within the State's criminal justice system, Torcasio, 57 F.3d at

1345, citing Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973),

and Procunier v. Martinez, 416 U.S. 396, 412 (1974); Little v.

Lycoming County, 912 F.Supp. 809 (M.D. Pa. 1996), and one

which the Supreme Court has routinely advised Courts to refrain

from entering. See Torcasio, 57 F.3d at 1346 and cases cited

therein.

JA-114

B. Prisons are not “public entities” which provide “public

services.”

Besides the basic intrusion upon the State sovereign function

of prison administration which application of the ADA would

create, application as advanced by Yeskey runs counter to the

purposes of Title II of the ADA, which Yeskey claims applies to

this case. That Title clearly indicates Congress’ intent that it apply

to the provision of “public services” to “qualified individuals”. The

services provided by prisons are to the general public. It hardly

can be said that involuntarily locking a criminal up in a prison of

the State's choosing, compelling a prisoner to work or move at

designated times, forcing confinement in sparsely furnished sur-

roundings, or mandating specific treatment for inmates are pub-

lic services to the prisoner. Such a construction of the ADA is

absurd.

Prison administrators are responsible for internal order, dis-

cipline, and security of those put in their custody. Prisons gener-

ally do not provide “services,” “programs,” or “activities” as those

terms are ordinarily understood. Torcasio, 57 F.3d at 1345, citing

Procunier v. Martinez, supra, 416 U.S. at 404; Little v. Lycoming

County, supra. Prisons are not places in which the public may

normally access nor in which the public may apply for or take

advantage of services, and should therefore not be considered

public entities.* Prisons are restrictive, non-public places where

convicted criminals are sent--not by choice or by volunteering,

but by uninvited order of a court.®

C. Inmates are not “qualified” individuals.

4duitionally, an inmate with a disability does not readily

meet the definition of a “qualified individual” under the Act. A

* Appellees do not argue that all aspects of a correctional facility are

immune from application of the ADA. Certainly, the ADA would be applicable

to employment of staff and access to buildings open to the public such as gen-

eral administration areas or visiting areas. Rather, appellees contest only appli-

cation of the ADA to the management of prisons in terms of routine daily

decisions of inmate custody and control, programming, security, order and

di ne.

The Motivational Boot Camp is no different. The Boot Camp is simply

an alternative form of prison designed by the Legislature for certain classes of

criminals. See 61 PS. §§1122-1126.

JA-115

prisoner does not normally have “occasion to ‘meet { | the essen-

tial eligibility requirements’ for receipt of or participation in the

services, programs, or activities of a public entity. The terms ‘eli-

gible’ and ‘participate’ imply voluntariness on the part of the

applicant who seeks a benefit from the State; they do not bring to

mind prisoners who are being held against their will.” Torcasio,

57 F.3d at 1347; Bryant v. Madigan, 84 F.3d 246, 248-9 (7th Cir

1996) (questioning whether Congress could have actually

intended disabled prisoners to be mainstreamed into the highly

restricted environment of prison); and Gorman v. Bartch, 925

F.Supp. 653, 655-6 (M.D. Mo. 1996).

There are no aspects of the ADA which lend it to ready

application to prison management decisions. This is equally true

whether the decision is one concerning inmate employment,

Pierce v. King, 918 F.Supp. 932 (E.D. N.C. 1996); an inmate's cell

dimensions, Torcasio, supra; or the placement of an inmate in a

particular prison deemed appropriate by prison administrators

following classification processes as found here.!

In an analogous context, courts have refused to infer from

employee and includes a public agency”. 29 U.S.C. §203 (d).

“Employ” is defined as “ to suffer or permit to work”. 29 U.S.C.

ae aon Court, in Sates x Rowland 39 F.3d 1439 (9th Cir. 1994),

“the Act's statutory in a prison setting [is] valent to

ithe standard for] the review of constitutional rights in a prison netting ” 39

F.3d at 1447. The refusal to place Yeskey in a particular prison setting which

he desires does not implicate any constitutional right. Olim v. Wakinekona,

461 U.S. 238, 245 (1982), Moody v. Daggett, 429 U.s. [sic] 78, 88 (1976).

Meachum vy. Fano, 427 U.S. 215, 224-5 (1976). Neither Yeskey, nor any other

prisoner, should enjoy any greater right to placement in a prison of his choice

than he would have if he were not disabled. Yet application of the ADA would

provide disabled prisoners a greater right than they could ever possess were

they not disabled and thereby would severely intrude upon ordinary decisions

of prison management.

JA-116

. Further, although the FLSA excludes certain categories

Gauen from application, it does not specifically mention pris-

oners. See [sic] 29 U.S.C. §213(a).

In each case involving claims that prisoners employed by a

prison receive minimum wage, the courts have acknowledged the

great intrusion upon a State sovereign function which

of the FLSA to prison labor would creaie and refused to intrude

absent express congressional direction to do so. See Harker _v.

State Use Industries, 990 F. 2d 131 (4th Cir.), cert. denied

US. , 114 S. Ct. 238 (1993); Gilbreath v. Cutter Biological

Inc., 931 F. 2d 1320, 1325 (9th Cir. 1991); Vanskike v. Peters, 974

F.2d 806, 808 (7th Cir. 1992); and Miller v. Dukakis, 961 F.2d 7,

8 (Ist Cir. 1992). Indeed, a act should not be con-

strued in a way which would result in absurdity and impute an

intent not expressly intended.

The result should be the same here. The plain meaning of a

statute should not be automatically followed where it “will pro-

duce a result demonstrably at odds with the intention of the

drafters.” United States v. Ron Pair Enterprises, 489 U.S. 235,

242 (1989). A thing may be within the letter of the statute and yet

not within its spirit nor within the intention of its makers. United

Steelworkers of America, AFL-CIO v. Weber, 443 U.S. 193, 201

(1979).

Application of the ADA to internal prison management

would place nearly every aspect of prison management into the

court's hands for scrutiny simply because an inmate has a disabil-

ity. 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. These are

affects [sic] which certainly should not be ascribed to Congres-

sional intent without Congress expressly saying so. As the Court

in Gates v. Rowland, 39 F.3d 1439 (9th Cir. — stated, “[t)}he

Act was not designed to deal specifically with the prison environ-

ment, it was intended for general societal application. There is no

indication that Congress intended the Act to apply to prison

facilities irrespective of the reasonable requirements of effective

prison administration.” Id. at 1446-7.

JA-117

Yeskey does not cite to a single case holding that the ADA

does apply in these circumstances.!! Instead, Yeskey argues that

Torcasio’s analysis of balancing federal and state interests when

construing and applying the statute is erroneous. Yeskey claims

that because Torcasio is premised upon a number of cases involv-

ing the Eleventh Amendment immunity of the States, and

because the ADA has abrogated the Eleventh Amendment. the

concerns of State interests and comity are no longer important.

See Brief for Appellant, pp. 17-19. Yeskey cites no authority for

this proposition. Nor are appellees aware of any. That immunity

may have been abrogated for the States under the ADA does not

defeat or limit the analysis of the State's substantial interest in

prison administration nor the discussion of whether prisons are

public entities providing public services or whether inmates are

qualified individuals. Congress’ intent to abrogate the State's

immunity for claims involving public services by public entities to

qualified individuals does not provide reason to believe Congress

also intended to trample the long-established rights of States in

areas not specified, nor in traditional non-public areas simply

because the State may have some involvement with it.

Finally, Yeskey cites to publications of the National Institute

of Justice which he claims outline th

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