# Joint Appendix — Pennsylvania Dept. of Corrections v. Yeskey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0128%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1998 - **Citation:** 524 U.S. 206 ## Text 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 } . ’ j ‘ Se —~ . | . —_ 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 a 2 - 4) w ~ 2 pSSsssssssssssssssssest == 22% SSPSSSSSSSRESSSS SSSI SASS AL TE weelRsssssssRsssssssssateseezoz=2 BReassssssRsssssssssatereezcr= 2535 PSSSSSSSSTSRSSSSSSSSSSO ST SLs l Tc LSsssss BSsssssssasssssssssssee= meftzrr-2s3ssesss Segasstasssasssssaczaattsecscccessssssoss9% BERsesssssssssssssssstes eer 525 25353333559535 SRSSSSSssssSt Ar ees lsc kSssssssssssss 23425 JA-59 see eSB TST STEAM ALSSSSSSSSSESSSASIISTAAAArza2e27°* SSTMT ALATA AVSSSSSSSSSSSSSSASSITSAeaAaRee2-2927°°" SSSSSSSSSS35RSssTeResAszs227°°" SSSSSSRS5RTEsTeRRsaaeezze227°°" SSflreeslrsLssssssssssssasaessseasanasezzzess2°° SRTLLIITALSSSSSssssSSsssaeesseazraasezreees72°°" SRRSSATARSSSSSSSSSESSSSSAISSSTIARATRA2eze2e2e27>2°°"" SIO REAVSSSSSSSSSSSSSSSSSSISSTIAAARRAS2zVRees7eE°°"~ SS SS SSSSSSSSSSSSSSASIS SSS SSS SARARRAAarAVRees7=e°°""" SSSSSSSSSSSSSSSSSSSSSSS SSS SRAARARRSAArLS2e27se°°"* SSSISSSSSISSSASSISSSSSTSSRAAAKATARAAAARASes52°°"~ SSSSSSSSSSSSSISSS SITS VARA ARAARRARL AR AATARS Ss =e°""™ SSSSASSSASISISSSSSVRRARKARRARL AR ALARA ARSSsse°°"" SSSSSSIIIS ISS SSS SAAASAASARARL AR ALALRAAS!E STISITTSLAAAAAARRARLARALAAAAVS sr esscrs eset essen - SCORING STANDARDS used for converting raw scores to point scores after test Scoring standards are events are completed. 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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: 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. JA-109 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 JA-110 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0128%3A05. Public record. Not legal advice.