Petition for Writ of Certiorari — United States v. Georgia

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No.

Ju the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

STATE OF GEORGIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

R. ALEXANDER ACOSTA

Assistant Attorney General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

DAVID K. FLYNN

SARAH E. HARRINGTON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 414-2217

QUESTION PRESENTED

Whether Title II of the Americans with Disabilities

Act of 1990, 42 U.S.C. 12131 to 12165, is a proper

exercise of Congress’s power under Section 5 of the

Fourteenth Amendment, as applied to the admini-

stration of prison systems.

(I)

PARTIES TO THE PROCEEDINGS

The petitioner in this Court is the United States of

America. \The United States intervened in the court of

appeals, pursuant to 28 U.S.C. 2403, to defend the con-

stitutionality of the abrogation of Eleventh Amend-

ment immunity in Title II of the Americans with

Disabilities Act.

The respondents are the State of Georgia; the

Georgia Department of Corrections; Johnny Sikes, the

Georgia State Prison Warden; J. Wayne Garner, the

Commissioner of the Georgia Department of Correc-

tions; A.G. Thomas, the Director of Facilities Division

of the Georgia Department of Corrections; J. Brady, the

Deputy Warden of the Georgia State Prison; 0. T. Ray,

the supervisor of guard shifts at the Georgia State

Prison; H. Whimbly, a guard at the Georgia State Pri-

son; Margaret Patterson, a guard at the Georgia State

Prison, and R. King, a staff member at the Georgia

State Prison, all of whom were defendants below.

The private plaintiff below, Tony Goodman, is also a

respondent. He has filed his own petition for a writ of

certiorari in this case. Goodman v. Georgia (filed

March 9, 2005).

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction ' : 1

Constitutional and statutory provisions involved .........._. 2

Statement 2

Reasons for granting the petition i]

Conclusion 19

Appendix A la

Appendix B 23a

Appendix C 29a

Appendix D 3la

TABLE OF AUTHORITIES

Cases:

Arkansas Dep't of Educ. v. Jim C., 583 U.S. 949

(2001) 18

Blodgett v. Holden, 275 U.S. 142 (1927) 16

Board of Trs. of the Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) . 15, 16

Chandler v. Lovell, 537 U.S. 1105 (2008) 18

Hawaii v. Vinson, 537 U.S. 1104 (2003) 18

Kansas v. Robinson, 539 U.S. 926 (2003) we 18

Miller v. King, 384 F.3d 1248 (11th Cir.

2004) 7, 8, 9, 10, 15, 16

Ohio Envtl. Prot. Agency v. Nihiser, 536 U.S. 922

(2002) 18

Pennsylvania Dep't of Corrs. v. Kowslow, 537 US.

1232 (2003) 18

Pennsylvania Dep't of Corrs. v. Yeskey, 524 U.S. 206

(1998) 3, 15

Phiffer v. Columbia River Corr. Inst., 384 F.3d 791

(9th Cir. 2004), petition for cert. pending, No. 04-947

(filed Jan. 11, 2005) 9, 10, 18

Rostker v. Goldberg, 453 U.S. 57 (1981)... 16

(IIT)

Cases—Continued: Page

Spencer v. Easter, 109 Fed. Appx. 571 (4th Cir.

2004), cert. denied, No. 04-8293 (Mar. 7, 2005) ................ 11

Tennessee v. Lane, 1248S. Ct. 1978 (2004) ... passim

Constitution, statutes and regulations:

U.S. Const.:

Art. I (Commerce Clause) 16

Amend. | 8, 13, 15

Amend. V 8,15

Amend. VI 8,15

Confrontation Clause 12

Amend. VIII 7,8, 15

Amend. XI passim

Amend. XIV 6, 15

§ 1:

Due Process Clause 12, 15

Equal Protection Clause 12, 15

$5 - passim

Americans with Disabilities Act of 1990, 42 U.S.C.

12101 et seq. 2

42 U.S.C. 12101(aX(2) 2, 32a

42 US.C. 12101(aX3) : 2, 14, 32a

42 U.S.C. 12101(aX(5) 2, 32a

42 U.S.C. 12101(aX7) 3, 33a

42 US.C. 12101(b)\(1) 2, 9, 34a

42 U.S.C. 12101(b)(4) 3, 34a

Title I, 42 U.S.C. 12111-12117 3

Title II, 42 U.S.C. 12131-12165 passim

42 U.S.C. 12131(1)A) 3, 35a

42 U.S.C. 12131(1XB) 3, 35a

42 U.S.C. 12132 3, 35a

42 U.S.C. 12138 4, 18, 36a

42 U.S.C. 12134 4, 36a

Title III, 42 U.S.C. 12181-12189 3

Title V, 42 U.S.C. 12201-12213:

42 US.C. 12202 4, 7la

Statutes and regulations—Continued: Page

Rehabilitation Act of 1973 § 504, 29 U.S.C.

794 (2000 & Supp. I 2001) 7 4, 18, 19

42 U.S.C. 1988 6

28 C.F.R.:

Section 35.130(5)(1)(i) 4

Section 35.130(b)(1 (ii) 4

Section 35.130(b)( 1 vii) 4

Section 35.130(b)(7) = 4

; Section 35.150(a)

Section 35.150(a)(1)

Section 35.151

Miscellaneous:

Http//www.ojp.usdoj.gov/bjs/pub/pdf/p02. pdf 11

In the Supreme Court of the Gnited States

No.

UNITED STATES OF AMERICA, PETITIONER

STATE OF GEORGIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the United

States of America, respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1la-

22a) is unreported. The opinion of the district court

(App., infra, 23a- 27a) is unreported.

JURISDICTION

The court of appeals entered its judgment on Sep-

tember 16, 2004. A petition for rehearing was denied on

December 9, 2004 (App., infra, 29a-30a). This Court’s

jurisdiction is invoked under 28 U.S.C. 1254(1).

(1)

_ CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory provisions

are reproduced at App., infra, 3la-84a.

STATEMENT

1. The Americans with Disabilities Act of 1990 (Dis-

abilities Act), 42 U.S.C. 12101 et seq., established a

“comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.” 42

U.S.C. 12101(b)(1). Congress found that, “historically,

society has tended to isolate and segregate individuals

with disabilities,” and that “such forms of discrimina-

tion * * * continue to be a serious and pervasive social

problem.” 42 U.S.C. 12101(a)(2). Congress specifically

found that discrimination against rersons with disabili-

ties “persists in such critical areas as employment,

housing, public accommodations, education, transpor-

tation, communication, recreation, institutionalization,

health services, voting, and access to public services.”

42 U.S.C. 12101(a)(3). In addition, Congress found that

persons with disabilities

continually encounter various forms of discrimi-

nation, including outright intentional exclusion, the

discriminatory effects of architectural, transporta-

tion, and communication barriers, overprotective

rules and policies, failure to make modifications to

existing facilities and pra.tices, exclusionary quali-

fication standards and criteria, segregation, and

relegation to lesser services, programs, activities,

benefits, jobs, or other opportunities.

42 U.S.C. 12101(a)(5). Congress concluded that persons

with disabilities

have been faced with restrictions and limitations,

subjected to a history of purposeful unequal treat-

ment, and relegated to a position of political power-

lessness in our society, based on characteristics that

are beyond the control of such individuals and

resulting from stereotypic assumptions not truly

indicative of the individual ability of such individuals

to participate in, and contribute to, society.

42 U.S.C. 12101(a)(7). Based on those findings, Con-

gress “invoke[d] the sweep of congressional authority,

including the power to enforce the fourteenth amend-

ment” to enact the Disabilities Act. 42 U.S.C.

12101(b)(4).

The Disabilities Act targets three particular areas of

discrimination against persons with disabilities. Title I,

42 U.S.C. 12111-12117, addresses discrimination by

employers affecting interstate commerce; Title II, 42

U.S.C. 12131-12165, addresses discrimination by gov-

ernmental entities in the operation of public services,

programs, and activities, including transportation; and

Title III, 42 U.S.C. 12181-12189, addresses discrimi-

nation in public accommodations operated by private

entities.

This case arises under Title II of the Disabilities Act,

which 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 any such entity.” 42

U.S.C. 12132. A “public entity” is defined to include

“any State or local government” and its components. 42

U.S.C. 12131(1)(A) and (B). This Court has already

held that Title II applies to state prisons.

Pennsylvania Dep't of Corrs. v. Yeskey, 524 U.S. 206

(1998). Title II may be enforced through private suits,

42 U.S.C. 12133, and Congress expressly abrogated the

States’ Eleventh Amendment immunity to suit in

federal court, 42 U.S.C. 12202.

Title II prohibits governments from, among other

things, denying a benefit to a qualified individual with a

disability because of his disability, providing him with a

lesser benefit than is given to others, or limiting his

enjoyment of the rights and benefits provided to the

public at large. See 28 C.F.R. 35.130(b)(1)(i), (iii) and

(vii).’ In addition, a public entity must make reasonable

modifications in its policies, practices, or procedures if

necessary to avoid the exclusion of individuals with

disabilities, unless the accommodation would impose an

undue financial or administrative burden on the

government, or would fundamentally alter the nature of

the service. See 28 C.F.R. 35.130(b)(7). The Dis-

abilities Act does not normally require a public entity to

make its existing physical facilities accessible. 28

C.F.R. 35.150(a)(1). Public entities need only ensure

that “each service, program or activity, * * * when

viewed in its entirety, is readily accessible to and usable

by individuals with disabilities.” 28 C.F.R. 35.150(a).

However, building construction or alterations under-

taken after Title II’s effective date must be designed to

provide accessibility. 28 C.F.R. 35.151.

2. Due to multiple spinal fractures, Tony Goodman is

a paraplegic and is confined to a wheelchair. He is

incarcerated in a Georgia state prison. App., infra, 2a.

Goodman has been housed in a “high/maximum security

section” of the prison, where he has been kept in a cell

' Congress instructed the Attorney General to issue regu-

lations to implement Title II, based on regulations previously

promulgated under Section 504 of the Rehabilitation Act of 1973,

29 U.S.C. 794 (2000 & Supp. I 2001). See 42 U.S.C. 12134.

measuring 12 feet by 3 feet for 23 to 24 hours per day.

Id. at 4a. He his been housed in that unit, in part, be-

cause of “the special requirements associated with his

being wheelchair bound.” /bid.; see also ibid. (“(T]he

size of his cell appear(s] to be unrelated to disciplinary

issues.”). The small size of the cell has prevented

Goodman from turning his wheelchair around, thereby

rendering him functionally immobile for 23 to 24 hours

every day. I/d. at 4a-5a, 17a. The complaint further

alleges that the prison “lacks facilities for the disabled

for hygiene, drinking and performing body excretion

functions.” Jd. at 4a. More specifically, Goodman has

been unable to access his bed, his toilet, or the shower

without assistance, and that assistance is often denied

to him. /d. at 5a. As a result, Goodman has been

“forced to live in a cell where the floor was smeared

with defecation and urine” and “‘required to live and sit

in his own body waste,’ while being refused repeated

requests for cleaning supplies and assistance.” Jd. at

6a; see id. at 5a (Goodman “has been forced to sit in his

own bodily waste for long periods of time because none

of the guards was willing to assist him.”).

Goodman has also been deprived for “long periods” of

time of such basic hwmanitarian needs as- “showers,

baths, adequate ventilation or heating, recreation,

work, medical and [mental health] care, laundry service,

cleaning service, and phone service.” App., infra, 5a.

The lack of wheelchair accessibility also has prevented

him from exercising the same religious rights as other

prisoners, has precluded his use of the prison’s law

library, and has deprived him of the counseling

services, educational services, vocational training, and

freedom of movement throughout the institution af-

forded other inmates. /d. at 6a, 24a.

On numerous occasions, the prison’s failure to pro-

vide accommodations for Goodman’s disability have

caused him serious physical injury. Goodman has fallen

several times while attempting to use the inaccessible

toilet, resulting in injuries such as broken toes,

“crushed” knees, and a fall-induced epileptic seizure.

App., infra, 6a. Attempts to use the prison’s inaccessi-

ble shower have resulted in injuries to Goodman’s head,

neck, and arm. 7/d. at 7a. In addition, when Goodman

was transported in a vehicle that was not wheelchair-

accessible, he “fell to the floor and lost consciousness

several times.” Jbid. The complaint further asserts

that Goodman was purposefully denied adequate medi-

cal care after many of those incidents. /d. at 7a-8a.

After repeated unsuccessful attempts to obtain relief

through the prison’s administrative grievance process,

Goodman filed suit, pro se, against the Georgia De-

. partment of Corrections and numerous prison officials

(collectively, “Georgia”), seeking declaratory, injunc-

tive, and monetary relief. App., infra, 2a-3a.2 The

district dismissed Goodman’s claims against the State

and the Georgia Department of Corrections on Elev-

enth Amendment grounds and dismissed the claims for

injunctive relief against individual officers on mootness

grounds based on Goodman’s transfer to another pri-

son. Jd. at 23a-27a.

3. Goodman appealed, and the United States inter-

venéd to defend the constitutionality of Title II’s abro-

gation of Eleventh Amendment immunity. While the

appeal was pending, this Court issued its decision in

2 The complaint also included damages claims against the pri-

son officials in their individual capacities for violations of Good-

man’s constitutional rights, pursuant to 42 U.S.C. 1983. App.,

infra, 9a-10a.

Tennessee v. Lane, 124 S. Ct. 1978 (2004). In Lane, the

Court upheld, as legislation valid!y enacted pursuant to

Congress’s legislative authority under Section 5 of the

Fourteenth Amendment, Title II’s abrogation of the

States’ Eleventh Amendment immunity for the class of

cases implicating the accessibility of judicial services.

Id. at 1993. In so holding, this Court found it unneces-

sary to address Congress’s power to enact Title II

pursuant to its Section 5 power “as an undifferentiated

whole.” Jd. at 1992. Instead, the Court decided only

whether Title II is an appropriate remedy with respect

to the area of governmental services implicated by the

type of case at hand. /d. at 1992-1993. Following Lane,

the United States and the other parties submitted

supplemental briefs addressing the application of Lane

to the administration of prisons.

The court of appeals subsequently affirmed the dis-

trict court’s dismissal of Goodman’s claims against the

State and the Department of Corrections on Eleventh

Amendment grounds. App., infra, la-22a. In so hold-

ing, the court of appeals applied its recent decision in

Miller v. King, 384 F.3d 1248 (2004), in which the court

had held that Title II is not valid Section 5 legislation as

applied to the administration of penal systems. In

Miller, the court read the relevant context for analyz-

ing Congress’s exercise of iis Section 5 power under

Tennessee v. Lane to be the particular constitutional

right allegedly violated in the individual plaintiff’s

case—which, in Miller’s case, was the Eighth Amend-

ment. Jd. at 1272. The court expressly refused to con-

sider “the host of [additional] rights identified by the

United States” as enforced by Title II in the prison

context because it did not consider them to be “im-

plicate[d]” by Miller’s individual claims (notwithstand-

ing their assertion by the United States as intervenor).

Id. at 1272 n.28.

Having restricted the relevant constitutional context

to the Eighth Amendment, the Miller court then con-

cluded that Title II sweeps too broadly in the prison

context because it proscribes “a different swath of

conduct that is far broader and even totally unrelated

to the Eighth Amendment in many instances,” such as

equal access to other prison programs that might

implicate different constitutional rights. 384 F.3d at

1274. The court reasoned that, “[e]ven if a documented

history of disability discrimination specifically in the

prison context justifies application of some congres-

sional prophylactic legislation to state prisons,” “this

case [is] radically different from Lane” because of “the

limited nature of the constitutional right at issue.” /d.

at 1273. The court further concluded that Title II

“substantively rewrites the Eighth Amendment” be-

cause it may require States to allow “qualified, disabled

prisoners” to “participate in a broad array of services,

programs, and activities” already offered to non-dis-

abled prisoners. /d. at 1275 n.33.

In the case at hand, the Eleventh Circuit extended

Miller’s holding that Title II is not valid Section 5

legislation to Goodman’s case, App., infra, 19a, notwith-

standing that Goodman’s complaint presented claims

implicating not just the Eighth Amendment, but also

the First, Fifth, and Sixth Amendments, id. at 2a-8a,

23a-24a. The court subsequently denied the United

States’ petition for rehearing and rehearing en banc.’

3 The United States’ separate petition for rehearing and

rehearing en banc in the Miller case remains pending.

REASONS FOR GRANTING THE PETITION

The court of appeals has held an Act of Congress to

be unconstitutional in an important area of its appli-

cation and, in so doing, has departed sharply from the

analytical framework prescribed by this Court in

Tennessee v. Lane, 124 S. Ct. 1978 (2004). The court of

appeals’ decision, moreover, is in conflict with a recent

ruling of the Ninth Circuit upholding the consti-

tutionality of Title II’s abrogation of Eleventh Amend-

ment immunity in the context of the administration of

prisons. As a result, the scope of federal civil rights

legislation that is designed “to provide a clear and

comprehensive national mandate for the elimination of

[all] discrimination” against persons with disabilities, 42

U.S.C. 12101(b)(1), and, concomitantly, the extent of

constitutional immunity enjoyed by States, now vary

depending upon where the Title II lawsuit is filed. The

court of appeals’ denial of the United States’ petition

for rehearing en banc signifies that the conflict in the

circuits needs to be resolved by this Court.

1. This Court’s review is warranted because the

holding of the Eleventh Circuit squarely conflicts with

the Ninth Circuit’s decision in Phiffer v. Columbia

River Correctional Institute, 384 F.3d 791 (2004), peti-

tion for cert. pending, No. 04-947 (filed Jan. 11, 2005).

Five days after the Eleventh Circuit ruled in the

instant case that Title II’s abrogation of Eleventh

Amendment immunity is unconstitutional in the con-

text of prison administration, the Ninth Circuit issued

an amended opinion in Phiffer upholding the constitu-

tionality of Title II’s abrogation in the prison context as

“consistent with Lane’s holding.” Id. at 792.4 More-

over, the Phiffer court upheld Title II’s abrogation

broadly, without reference to the particular constitu-

tional rights identified by the individual plaintiff, id. at

792-793. That mode of analysis stands in sharp contrast

to the Eleventh Circuit’s plaintiff-specific articulation

of the relevant context for assessing whether Title II is

an appropriate response to the pattern of “unconsti-

tutional discrimination against persons with disabilities

in the provision of public services” identified by this

Court in Lane, 124 S. Ct. at 1991.

As a result, the federal protection afforded disabled

prisoners and the obligations imposed upon prison

administrators as a matter of federal law now vary

depending upon the state of incarceration. Moreover,

the Eleventh Circuit’s denial of the United States’

petition for rehearing en banc, which called the court’s

attention to the inter-circuit conflict generated by its

decision, leaves little reasonable prospect of the circuit

split resolving itself absent intervention by this Court.”

The operation of critical civil rights legislation like the

Americans with Disabilities Act—a nationwide law that

4 The original Ninth Circuit opinion was issued the day before

the Eleventh Circuit’s decision in Miller, but was then amended to

include a concurrence by Judge O’Scanniain.

5 Although the United States’ petition for rehearing and

rehearing en banc remains pending in Miller v. King, supra, which

involved the same Eleventh Amendment question presented here,

the Eleventh Circuit’s denial of rehearing and rehearing en banc in

the present case, which relied exclusively upon Miller for its

holding that Congress lacked the legislative authority to abrogate

the States’ immunity from suit in the prison context, App., infra,

19a, strongly indicates that, whatever the ultimate disposition of

the Miller petition, it will not affect that aspect of the court’s

holding pertaining to the scope of Congress’s Section 5 power.

which the Goodman panel applied here.

“is designed to address * * * pervasive unequal

treatment in the administration of state services and

programs, including systematic deprivations of funda-

mental rights,” Lane, 124 S. Ct. at 1989—should not

depend on where circuit court boundary lines fall. Yet,

as a result of the split between the Ninth and Eleventh

Circuits—the two circuits that contain the largest

number of incarcerated persons—the federal rights of

nearly 30% of all State prisoners nationwide now turn

upon geography. See http://www.ojp.usdoj.gov/bjs/pub/

pdf/p02. pdf.

Furthermore, the question of Title II’s constitu-

tionality in the context of prison administration is

currently pending in the Third Circuit, see Cochran v.

Pinchak, No. 02-1047 (argued Oct. 25, 2004), and was

recently considered, but not decided, by the Fourth

Circuit in Spencer v. Easter, 109 Fed. Appx. 571 (2004),

cert. denied, No. 04-8293 (Mar. 7, 2005). Those cases

demonstrate that the issue is a recurring one of national

importance and that the inter-circuit division is only

going to proliferate. Accordingly, this Court’s review is

warranted.

2. The court of appeals’ decision is flatly inconsistent

with this Court’s decision in Tennessee v. Lane, supra.

In Lane, this Court held that Congress’s power to enact

Title II pursuant to its Section 5 power need not be

analyzed “as an undifferentiated whole.” 124 S. Ct. at

1992. Instead, this Court addressed whether Title I] is

an appropriate remedy with respect to the area of

governmental services implicated by the case at hand.

In Lane, the plaintiffs filed suit to enforce the con-

stitutional right of access to the courts. /d. at 1982-

1983, 1993. The Court accordingly addressed whether

Title II is valid Section 5 legislation “as it applies to the

class of cases implicating the accessibility of judicial

services.” Jd. at 1993.°

In so holding, however, this Court did not confine

itself to the particular factual problem of access to the

courts presented by the individual plaintiffs, nor did it

limit its analysis to the specific constitutional interests

entrenched upon in the p2:‘*icular case. Both of the

plaintiffs in Lane were pary".egics who use wheelchairs

for mobility and who were denied physical access to and

the services of the state court system because of their

disabilities. Plaintiff Lane alleged that, when he was

physically unable to appear to answer criminal charges

because the courthouse was inaccessible, he was ar-

rested and jailed for failure to appear. Plaintiff Jones, a

certified court reporter, alleged that she could not work

because she could not gain access to a number of county

courthouses. 124 S. Ct. at 1982-1983. Lane’s particular

claims thus implicated his rights under the Due Process

and Confrontation Clauses, and Jones’s claims impli-

cated only her rights under the Equal Protection

Clause.

In analyzing Congress’s power to enact Title II, how-

ever, this Court discussed the full range of constitu-

tional rights implicated by the “accessibility of judicial

services,” Lane, 124 S. Ct. at 1993:

® For the reasons stated in the United States’ brief in Lane,

Title II is valid Section 5 legislation in its entirety because it is a

congruent and proportional means of remedying historic and en-

during unconstitutional treatment of individuals with disabilities

by government actors and preventing future unconstitutional dis-

crimination, which Lane expressly held were “appropriate sub-

ject(s) for prophylactic legislation” under Section 5. 124 S. Ct. at

1992.

The Due Process Clause and the Confrontation

Clause of the Sixth Amendment, as applied to the

States via the Fourteenth Amendment, both guar-

antee to a criminal defendant such as respondent

Lane the “right to be present at all stages of the

trial where his absence might frustrate the fairness

of the proceedings.” The Due Process Clause also

requires the States to afford certain civil litigants 4

“meaningful opportunity to be heard” by removing

obstacles to their full participation in judicial pro-

ceedings. We have held that the Sixth Amendment

guarantees to criminal defendants the right to trial

by a jury composed of a fair cross section of the

community, noting that the exclusion of “identifiable

segments playing major roles in the community

cannot be squared with the constitutional concept of

jury trial.” And, finally, we have recognized that

members of the public have a right of access to

criminal proceedings secured by the First Amend-

ment.

Id. at 1988 (citations omitted); see also id. at 1990 n.14

(considering cases involving the denial of interpretive

services to deaf defendants and the exclusion of blind

and hearing impaired persons from jury duty).

Thus, a number of the constitutional rights that this

Court found relevant to its analysis in Lane were not

pressed by the plaintiffs or directly implicated by the

facts of their case. For instance, neither Lane nor

Jones alleged that he or she was unable to participate in

jury service or was subjected to a jury trial that

excluded persons with disabilities from jury service.

Similarly, neither Lane nor Jones was prevented by

disability from participating in any civil litigation, nor

did either allege a violation of First Amendment rights.

The facts of their cases also did not implicate Title II’s

requirement that government, in the administration of

justice, provide “aides to assist persons with disabilities

in accessing services,” such as sign language inter-

preters or materials in Braille, id. at 1993, yet this

Court broadly considered the full range of constitu-

tional rights and Title II remedies potentially at issue,

framing its analysis in terms of the broad “class of cases

implicating the accessibility of judicial services.” [bid.

(emphasis added).

That categorical approach—rather than the Eleventh

Circuit’s litigant-specific mode of analysis—makes

sense. Congress is a national legislature and in legis-

lating generally, and pursuant to its prophylactic and

remedial Section 5 power in particular, Congress

necessarily responds not to the isolated claims of indi-

vidual litigants, but to broad patterns of unconstitu-

tional conduct by government officials in the substan-

tive areas in which they operate. Indeed, in enacting

Title II, Congress specifically found that unconsti-

tutional treatment of individuals with disabilities

“persists in such critical areas as employment, housing,

public accommodations, education, transportation, com-

munication, recreation, institutionalization, health ser-

vices, voting, and access to public services.” 42 U.S.C.

12101(a)(3) (emphasis added).

Accordingly, in evaluating whether Title II is an

appropriate response to “pervasive unequal treatment

in the administration of state services and programs,”

Lane, 124 S. Ct. at 1989, this Court’s decision in Lane

directs courts to consider the entire “class of cases”

arising from the type of governmental operations impli-

cated by the lawsuit, id. at 1993. Just as this Court

upheld Title II’s application in Lane by comprehen-

sively considering Title II’s enforcement of all the

constitutional rights and Title II remedies potentially

at issue in the entire “class of cases implicating the

accessibility of judicial services,” ibid., the court of

appeals here should have assessed Title II’s constitu-

tionality as applied to the entire “class of cases,” ibid.,

implicating, in this Court’s words, “the administration

of * * * the penal system,” id. at 1989.

Those constitutional interests and the Title II reme-

dies they trigger include not just the Eighth Amend-

ment claim presented in Miller, but also the widespread

pattern of unequal treatment of prisoners with

disabilities documented in the legislative history of

Title II. That evidence includes numerous claims, like

Goodman’s, asserting (i) the denial of equal access to

religious services, law libraries, telephone and mail

services, medical treatment, and rehabilitation, recrea-

tion, and work programs; (ii) the unconstitutional im-

position (as in Goodman’s case) of disparate terms of

confinement and restraint solely because of the indivi-

duals’ disabilities; and (iii) the infliction of degrading,

inhumane, and life-threatening conditions on disabled

prisoners nationwide. Those claims arise under not just

the Eighth Amendment, but also the Fourteenth

Amendment’s Due Process and Equal Protection

Clauses, and the First, Fifth, and Sixth Amendments,

as applied to the States through the Fourteenth

Amendment. See, e.g., U.S. Br. at 30, 34 & n.27, Apps.

A and C, Tennessee v. Lane, No. 02-1667, supra; Board

of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 391-

424 (2001) (Breyer, J., dissenting); Miller, 384 F.3d at

1262 n.12; see also Pennsylvania Dep't of Corrs. v.

Yeskey, 524 U.S. 206, 211-212 (1998) (noting that the

Disabilities Act’s findings about “discrimination ‘in such

critical areas as * * * institutionalization,’ can be

thought to include penal institutions”) (citation omit-

ted).

When viewed through the analytical framework es-

tablished and applied by this Court in Lane and the

“sheer volume of evidence” compiled by Congress,

Lane, 124 S. Ct. at 1991, “Title II unquestionably is

valid § 5 legislation as it applies to the class of cases

implicating” “administration of * * * the penal

system,” id. at 1989, 1993.

8 The Eleventh Circuit’s departure from this

Court’s precedent and creation of an inter-circuit

conflict merits this Court’s review at this time. First,

the court of appeals has declared part of an Act of

Congress—a law that is a civil rights “milestone,”

Garrett, 531 U.S. at 375 (Kennedy, J., concurring)—to

be unconstitutional and unenforceable in significant

respects within its jurisdiction. See also Miller, 384

F.3d at 1268 n.23 (questioning Congress’s substantive

authority to impose Title II on prisons under the

Commerce Clause). That is “the gravest and most

delicate duty” that courts are “called upon to perform,”

Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting

Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.,

concurring)), and thus warrants this Court’s review in

its own right.

Second, the court of appeals cemented an inter-

circuit conflict through its denial of rehearing en banc.

The circuits are now divided on the question whether

Title II of the Disabilities Act validly abrogates Elev-

enth Amendment immunity in the prison context. Time

will only increase, not ameliorate, the division in the

circuits.

Third, the legal question presented and the circuit

conflict reach beyond the particular prison context

implicated here. The Eleventh Circuit’s departure

from the mode of constitutional analysis developed by

this Court in Lane for identifying the relevant as-

applied context will govern its evaluation of Title II's

constitutionality in all of its future applications. The

Ninth Circuit, for its part, has now indicated that it will

follow its categorical approach when consistent with

Lane in other contexts. There are weighty interests at

stake on both sides of the balance—the interests of

individuals with disabilities in the prevention and reme-

diation of “pervasive unequal treatment in the admini-

stration of state services and programs, including

systematic deprivations of fundamental rights,” Lane,

124 S. Ct. at 1989, and the States’ interest in vindicating

any federalism-based right not to be subjected to

litigation in the first instance. Given the gravity of

those interests, tolerating years of misfocused litigation

and the misdirected consumption of scarce judicial and

governmental resources would not be consonant with

either the purposes of Title II or the federalism princi-

ples embodied in the Eleventh Amendment. Delay is

particularly inappropriate in the context of prison

administration because, as this case illustrates, Title

II’s operation in that setting not infrequently redresses

the inhumane, degrading, and health-endangering

conditions of daily living for inmates.

Finally, this case is the proper vehicle for considera-

tion of the question presented. While a petition for a

writ of certiorari seeking, inter alia, review of the same

question was recently filed in the Ninth Circuit case,

Columbia River Correctional Institute v. Phiffer, No.

04-947, that case provides a less optimal vehicle. In

Phiffer, neither the parties nor the lower courts

notified the United States that a challenge to Title II’s

constitutionality was pending and, as a result, the

United States did not participate in that case in defense

of Title II below. More importantly, in Phiffer, resolu-

tion of the question of Congress’s power to enact Title

II pursuant to its Section 5 power in the prison context

ultimately will have no effect at all on the States’

liability to suit or for damages in that case. That is

because the relief awarded against the State in Phiffer

is independently supported by Section 504 of the Re-

habilitation Act. In addition to pursuing claims under

Title II, the plaintiff in Phiffer has pursued separate

claims under Section 504 of the Rehabilitation Act, 29

U.S.C. 794. In cases where it applies (7.e., where the

relevant State agency receives federal funding), the

Rehabilitation Act provides the exact same remedies

for the exact same triggering conduct as Title II. See

42 U.S.C. 12133 (providing that the remedies under

Section 504 “shall be the remedies * * * this

subchapter provides to any person alleging discrimina-

tion on the basis of disability in violation of” Title II of

the Disabilities Act).

There is no dispute that the defendants in Phifer

receive federal funding, which renders them liable

under Section 504, and, in fact, the liability determi-

nation in the case was premised on both Title II and

Section 504. See Phiffer, 384 F.3d at 792-793. This

Court has repeatedly denied petitions for writs of cer-

tiorari seeking to invalidate Section 504’s provision

conditioning receipt of federal funds on a waiver of the

State’s immunity. See, e.g., Kansas v. Robinson, 539

U.S. 926 (2003) (No. 02-1314); Pennsylvania Dep't of

Corrs. v. Kowslow, 537 U.S. 1232 (2003) (No. 02-801);

Chandler v. Lovell, 537 U.S. 1105 (2003) (No. 02-545);

Hawaii v. Vinson, 537 U.S. 1104 (2003) (No. 01-1878);

Ohio Envtl. Prot. Agency v. Nihiser, 536 U.S. 922

(2002) (No. 01-1357); Arkansas Dep’t of Educ. v. Jim C.,

533 U.S. 949 (2001) (No. 00-1488).

The Court’s resources would be better expended ad-

dressing the constitutionality of Title II’s abrogation of

Eleventh Amendment immunity in a case where the

answer to that question will have some discernible im-

pact on the litigation. Here, Goodman has not pursued

a Section 504 claim and therefore his claim for relief

against the State will turn on the extent to which Title

II validly abrogates the State’s immunity. In the alter-

native, the Court could grant both this petition and the

Phiffer petition and consolidate the cases.

CONCLUSION

The petition for a writ of certiorari should be

granted.

PAUL D. CLEMENT

Acting Solicitor General

R. ALEXANDER ACOSTA

Assistant Attorney General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

DAVID K. FLYNN

SARAH E. HARRINGTON

Attorneys

MARCH 2005

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 02-10168

D.C. Docket No. 99-00012-CV-JEG-6

TONY GOODMAN, PLAINTIFF-APPELLANT

O.T. RAY, ET AL., DEFENDANTS

THE STATE OF GEORGIA, DEFENDANT-APPELLEE

UNITED STATES OF AMERICA, INTERVENOR

Appeal from the United States District Court

for the Southern District of Georgia

[Filed: Sept. 16, 2004)

OPINION

Before: CARNES, HULL and HILL, Circuit Judges.

HULL, Circuit Judge:

Plaintiff Tony Goodman, a paraplegic state prisoner,

appeals (1) the dismissal of his Eighth-Amendment

claims brought under 42 U.S.C. § 1983, and (2) the grant

of summary judgment on his disability-discrimination

claims brought under Title II of the Americans with

Disabilities Act, 42 U.S.C. §§ 12131, et seg. (“ADA”).

(la)

After review and oral argument, we: (1) reverse, in

part, the district court’s dismissal of Goodman’s Eighth-

Amendment claims for monetary and injunctive relief

under § 1983; (2) reverse the magistrate judge’s grant

of summary judgment for the defendants on Goodman’s

ADA claims for injunctive relief; and (3) affirm the

grant of summary judgment for all defendants with

regard to Goodman’s ADA claims for monetary dam-

ages under Title II of the ADA. We further order that

Goodman be allowed an opportunity to amend and

streamline his complaint as to his Eighth-Amendment

claims and his ADA claims under Title II for injunctive

relief: :

I. FACTUAL BACKGROUND

According to the medical evidence in the record,

Goodman was involved in an automobile accident in

1992, which left him unable to walk. Goodman is a

wheelchair-dependent paraplegic, whose injuries in-

clude multiple spinal fractures.

In 1995, Goodman was convicted of aggravated as-

sault, possession of a firearm by a convicted felon, and

possession of cocaine with intent to distribute. On June

18, 1996, Goodman was transferred to Georgia State

Prison (“GSP”), in Reidsville, Georgia. Goodman’s com-

plaint concerns his stay at GSP.

A. Complaint

After filing numerous administrative grievances with

prison officials regarding the conditions of confinement

at GSP, Goodman filed this federal suit claiming, inter

alia, violations of the Eighth Amendment and Title II

of the ADA. Goodman’s pro se complaint names the

following defendants: (1) the Georgia Department of

Corrections (“GDOC”); (2) the State of Georgia;’ (3) J.

Wayne Garner, the Commissioner of the GDOC; (4)

A.G. Thomas, Director of Facilities Division of the

GDOC; (5) Johnny Sikes, Warden of GSP; (6) J. Brady,

Deputy Warden of GSP; (7) 0.T. Ray, supervisor of

guard shifts at GSP; (8) H. Whimbly, guard at GSP; (9)

Margaret Patterson, guard at GSP; and (10) R. King,

staff member at GSP. Goodman’s complaint alleges,

inter alia, that the defendants, in their individual and

official capacities, were deliberately indifferent to his

(1) serious medical needs and (2) conditions of confine-

ment at GSP, in violation of the Eighth Amendment.

- Goodman sought monetary damages.

Goodman further claims that the defendants discrimi-

nated against him on the basis of his disability in

violation of Title II of the ADA. Goodman sought both

injunctive relief and monetary damages on his ADA

claims.”

Because we are reviewing the dismissal of Goodman’s

Eighth-Amendment claims, we outline the factual

allegations in his complaint, assuming all allegations to

be true. Cottone v. Jenne, 326 F.3d 1352, 1857 (11th

Cir. 2003) (“In reviewing a complaint, we accept all

well-pleaded factual allegations as true and construe

the facts in the light most favorable to the plaintiff.”).

! Goodman did not originally name the State of Georgia as a

defendant, but after reviewing the complaint, the magistrate judge

recommended that the State of Georgia be joined as a defendant to

Goodman’s ADA claims. As noted later, the proper defendant on

’s ADA claims for injunctive relief is actually Warden

Johniy Sikes, in his official capacity.

2 Goodman’s complaint specifically prayed for attorney’s fees,

declaratory and injunctive relief, and punitive and compensatory

damages in the amount of $600,000 from each individual defendant.

B. Conditions at GSP

Goodman is housed in a high/maximum security

section of GSP, the K-Building. Prison officials claim

that Goodman “was assigned to . . . the Special

Management Unit [K-Building] both because of his con-

tinuous disruptive conduct and the special require-

ments associated with his being wheelchair bound.”

Goodman is kept in his “K-1 unit” cell, measuring

twelve-feet long by three-feet wide, for twenty-three to

twenty-four hours per day. While Goodman has had

some disciplinary problems in the past, Goodman’s alle-

gations about the size of his cell appear to be unrelated

to disciplinary issues. Instead, this is apparently the

size of his cell whether or not he is in disciplinary

isolation.*

According to Goodman, GSP does not provide reason-

able accommodations for his paraplegia. Specifically,

Goodman claims that the prison “lacks facilities for the

disabled for hygiene, drinking and performing body

excretion functions” and that GSP “is in a serious state

of disrepair and fail[s] to meet minimal health and

safety needs of the Plaintiff.”

Beyond the inadequate prison conditions, Goodman

claims that he has been denied access to “services, pro-

grams, and activities” at GSP by the defendants

because of his disability. Specifically, Goodman states

that the defendants have discriminated against him,

based on his disability, because they have “refused

and/or denied and/or excluded him from participation in

3 In a declaration attached to a motion for a TRO, Goodman

avers that he once was in solitary confinement for forty-two

straight days.

MH/MR services, programs, and activities of the

prison.”

Further, Goodman claims that he “could be more

appropriately treated in [a] more integrated community

setting,” and that his continued confinement in the

“segregated environment” is “unlawful disability-based

discrimination.” In this regard, Goodman also contends

that the classification procedures for the prison are

inadequate because “a substantial number of

prisoner([s] . . . are placed in maximum custody, when

lesser degrees of custody would suffice.” Goodman

states that the classification procedures are inadequate

because “there are insufficient staff members to give

adequate time to each case, and staff members are

inadequately trained.”

Goodman provides numerous examples of the manner

in which the prison conditions at GSP are inadequate

for the disabled. Specifically, Goodman claims that he is

unable to turn his wheelchair around inside of his

twelve-foot-by-three-foot cell, and, thus is virtually

immobile. Goodman also alleges that he is unable to use

his toilet, his bed, or the shower without assistance, and

that the GSP prison officials or guards do not provide

him with assistance. In fact, according to Goodman, he

has been forced to sit in his own bodily waste for long

periods of time because none of the guards was willing

to assist him.

In his complaint, Goodman also states that he has

suffered “long periods of deprivation of basic ameni-

ties,” such as “showers, baths, adequate ventilation or

heating, recreation, work, medical and MH/MR care,

laundry service, cleaning service, and phone service.”

Furthermore, Goodman states that he does not have

access to the windows of his cell, the wall electrical

plugs of his cell, and that GSP does not have wheel-

chair-accessible routes or rooms throughout the prison.

Goodman also details the programs he has been denied

access to, including: “counseling services, educational

services, college program, vocational training, recrea-

tion activities, freedom of movement in the unit and

institution, television, phone calls, entertainment, and

religious rights.”

C. Specific Instances of Injury

According to Goodman, there have been instances in

which he was injured trying to use the toilet or the

shower because the toilets and the showers do not have

supports for disabled prisoners, and the prison staff did

not provide him the necessary assistance. For example,

Goodman states that on August 26, 1998, he had to

“hurl” himself from his wheelchair onto the toilet, and

that the toilet seat was not stabilized or secure. When

he tried to return to his wheelchair from the toilet,

Goodman states that he “slipped and fell onto the floor

causing an epileptic seizure, and . . . [he] broke his

right toe and crushed his right knee.”

Goodman claims that, on May 12, 1999, he “had a

[bowel movement] and urine, on himself,” and that he

requested cleaning supplies from “S.M.U. Capt. Mr.

Brown, Mr. Smith, and Mr. Hall,” and assistance in

cleaning his wheelchair and cell, but all of them refused.

He states that he was “forced to live in a cell where the

floor was smeared with defecation and urine .... He

was required to live and sit in his own body waste,”

while being refused repeated requests for cleaning

supplies and assistance.

Goodman claims that, on May 14, 1999, he “broke his

left foot and crushed his left knee,” while trying to

transfer himself to the toilet from his wheelchair.

Goodman alleges that Captain Brown denied his

requests for help cleaning his cell and for medical care.

Goodman also describes how he was harmed in the

showering facility at GSP because it was without

adequate support for prisoners with disabilities. On

April 8, 1998, Goodman states that “C.0. II Whimbly

took a toilet seat into the shower for the Plaintiff to sit

on while showering, but the toilet seat is not accessible.

Plaintiff was trying to transfer from his [wheelchair] to

‘the toilet chair but the toilet seat turned over and he

fell to the floor and was hurt at [the] head, neck, [and]

left arm.”* Goodman also claims that he was denied

adequate medical care following this incident.

Goodman further claims that the prison officials have

not taken appropriate measures to safely transport

inmates with disabilities. Goodman describes one

occasion in which he was transferred from GSP to the

federal court building in Atlanta, Georgia, in a vehicle

that was not equipped for wheelchair-bound passen-

gers. Specifically, Goodman states that on May 5, 1998,

he was “forced to ride handcuffed and shackled in the

back of a van without seatbelts or restraints,” and that

“the seat which he was seated in was not stabiled [sic]

or secure.” As a result, Goodman states that he “fell to

the floor and lost consciousness several times,” and that

he “suffer[ed] injures [sic] and pains at head, neck,

back, stomach and legs.” Goodman also states that

upon his return, he made a request to Officer Hays, and

* It appears that Goodman is occasionally given a “toilet set”

while in the shower, but that he cannot reach the seat of the toilet

set without assistance. :

R. Smith “to see someone from medical . . . but

medical refused to see or examine [him].”

In addition to Goodman’s allegations that the

defendants have purposefully denied him medical

treatment, Goodman states that he has been denied

catheters and rehabilitative therapy. He also claims

that he has an asthma and a bronchitis condition that

are aggravated by the air quality of his cell. Despite his

requests for a change, the air in Goodman’s cell is

heated in the summer with high humidity and little

ventilation and cooled in the winter, and Goodman has

“a very hard time trying to breath [sic] inside of [the]

cell.” Finally, Goodman claims that the defendants

have failed “to provide any assistance in preventing

dangerous bedsores,” and that he has been denied

appointments with mental-health counselors, despite

making numerous requests. In fact, Goodman asserts

that he was forced to live under inhumane conditions;

namely, in his cell without clothing under very cold

temperatures.

With regard to these allegations, Goodman claims

that GSP officials—Warden Sikes, Deputy Warden

Brady, Supervisor Ray, Dr. Lowry, Dr. Mailloux, Bar-

bara Werth, L. Waters, J. Bradford, J. Paris, and Lynn

O. Smith—“had knowledge and notice that [Goodman]

was not secured, safe or stabilized in this cell,” and that

“despite this knowledge of his precarious and perilous

placement within the prison cell the above named

agents proceeded to house him in a prison cell which

was in total disregard of his health, safety and well-

being.”

D. Dismissal of Goodman § 1983 Claims

As provided for in 28 U.S.C. § 1915A, the magistrate

judge reviewed Goodman’s complaint for cognizable

claims. With respect to the § 1983 claims, the magis-

trate judge concluded that Goodman’s allegations were

vague and constituted insufficient notice pleading

under Federal Rule of Civil Procedure 8. Specifically,

the magistrate judge stated that Goodman’s complaint

did not “set forth a short, plain statement of the facts as

to each defendant,” and was deficient because it did not

state “what specific constitutional violations occurred,

the specific acts committed by each defendant that

resulted in a particular constitutional violation, or on

what date these alleged acts occurred.” Thus, the

magistrate judge recommended that the § 1983 claims

against all defendants be dismissed pursuant to 28

U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i).

The magistrate judge alternatively noted that the

GDOC, as a state agency, is immune from a § 1983 suit

under the Eleventh Amendment.

With respect to Goodman’s ADA claims, the magis-

trate judge stated that his suit against GDOC is

actually against both the State of Georgia and the

GDOC. The magistrate judge pointed out that the

ADA applies to services, programs, and activities of “a

public entity,” making the State of Georgia a proper

defendant for Goodman’s ADA claims. Thus, the magi-

strate judge recommended that the ADA claims be

allowed to proceed against the GDOC and that the

State of Georgia be joined as a defendant.

Noting that the United States Supreme Court had

not addressed the question of whether the application

of the ADA to state prisons was a constitutional exer-

cise of Congressional power under the Commerce

10a

Clause or under the Fourteenth Amendment, the mag-

istrate judge determined that Goodman’s allegations

“arguably stated a colorable claim for relief under 42

U.S.C. § 12131.”

On August 20, 1999, the district court, in a one-page

order, adopted the magistrate judge’s recommen-

dations and dismissed Goodman’s § 1983 claims against

all defendants and dismissed the ADA claims against all

defendants, except for his ADA claims against defen-

dants the GDOC and the State of Georgia. Goodman

was not given an opportunity to amend his complaint.

F. Summary Judgment on Goodman’s ADA Claims

Following the dismissal of Goodman’s § 1983 claims,

the parties filed cross motions for summary judgment

as to his ADA claims.’ In support of his summary

judgment motion, Goodman attached a statement of

undisputed facts and his own and three other inmates’

affidavits, which mirrored the allegations in his com-

plaint, including such statements as: (1) Goodman was

kept in his small cell in K-Building twenty-three hours

per day; (2) Goodman was denied the full range of all

privileges and rights to which other inmates in similar

security classifications have access; (3) Goodman

was denied access to medical care and treatment; (4)

the prison was “not properly equipped to secure and

house handicapped patients,” nor was it wheelchair-

5 Throughout the summary-judgment stage, some of the plead-

ings and orders do not name both defendants State of Georgia and

the GDOC. However, we construe those pleading as filed by both

defendants and those orders as relating to both defendants be-

cause both defendants were the named defendants when the dis-

trict court ordered that the ADA claims proceed to summary judg-

ment and because both defendants appear on subsequent court

documents.

lla

accessible; and (5) Goodman had injured himself on a

number of occasions trying to transfer to his cell toilet.

In response, defendants the State of Georgia and the

GDOC denied most of Goodman’s statement of undis-

puted facts and disagreed with Goodman’s affidavits.

The defendants also sought summary judgment with

respect to Goodman’s ADA claims, arguing that: (1) the

State of Georgia had immunity from his ADA claims for

monetary damages under the Eleventh Amendment; (2)

his ADA claims for injunctive relief were moot; (3) the

ADA did not apply to state prisons; (4) his claims failed

on the merits; and (5) his claims were foreclosed by the

Prison Litigation Reform Act (“PLRA”).

On February 10, 2000, the magistrate judge

recommended that both motions be denied, determining

that: (1) states are not immune to suit brought under

the ADA; (2) Goodman’s claim for injunctive relief was

not moot despite his transfer; and (3) there were issues

of fact. The magistrate judge identified the issues of

fact, as follows: (1) whether the defendants reasonably

accommodated Goodman’s disability; (2) whether Good-

man was a “qualified individual” under the ADA; and

(3) whether Goodman’s claim for mental suffering was

foreclosed by the PLRA.

On March 6, 2000, the district court adopted the

magistrate judge’s report and denied Goodman’s and

the defendants’ motions for summary judgment.’ On

June 14, 2001, the parties consented to trial by the

magistrate judge. On October 22, 2001, the State of

® Goodman also filed a number of emergency motions for

injunctive relief when transferred to different prisons claiming the

same violations he alleged in his complaint; all of the motions were

denied by the district court.

12a

Georgia and the GDOC again moved for summary

judgment based on and due to the then-new Supreme

court decision in Board of Trustees of the University of

Alabama, et al. v. Garrett, 531 U.S. 356, 121 S. Ct. 955

(2001).

On December 12, 2001, the magistrate judge granted

the State of Georgia and the GDOC’s joint motion for

summary judgment, determining that Goodman’s

claims for monetary damages under the ADA were

precluded by the Eleventh Amendment and that his

claims for injunctive relief were rendered moot due to

his transfer from GSP to Valdosta State Prison.

Goodman appeals the district court’s dismissal of his

§ 1983 claims and the grant of summary judgment on

his ADA claims for monetary cumages « and injunctive

relief.’

Il. STANDARD OF REVIEW

We review de novo the dismissal of a complaint for

failure to state a claim under 28 U.S.C. § 1915A(b)(1).

Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278 (11th Cir.

2001). In reviewing the dismissal of a complaint, we

* Goodman’s complaint also alleges: (1) racial discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000e-2000e17, and the Equal Protection Clause; (2) violations of

the Due Process Clause; (3) retaliatory action by prison officials as

a result of his filing lawsuits: (4) unsanitary/inadequate food con-

ditions and preparation; and (5) unsafe conditions in not having fire

drills. While Goodman appeals the dismissal of these claims as

well, the district court did not err in dismissing these claims, and

we affirm their dismissal without further discussion.

5 In Leal, this Court first considered the issue of the applicable

standard of review for an appeal of a dismissal pursuant to

28 U.S.C. § 1915A(b)(1). 254 F.3d at 1278. This Court concluded

that de novo review was appropriate because § 1915A(b)(1)

13a

accept all the alleged facts as true and view them in the

light most favorable to the non-moving party. Cottone

v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). Dis-

missal of the complaint is not appropriate “unless it

appears beyond a doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle

him to relief.” Marsh v. Butler County, Ala., 268 F.3d

1014, 1022 (11th Cir. 2001) (en banc) (internal quotation

marks and citations omitted); see also GJR Invest-

ments, Inc. v. County of Escambia, Fla., 132 F.3d 1359,

1367 (11th Cir. 1998) (“[wJhile Fed. R. Civ. P. 8 allows a

plaintiff considerable leeway in framing its complaint,

this circuit, along with others, has tightened the appli-

cation of Rule 8 with respect to § 1983 cases in an effort

to weed out nonmeritorious claims, requiring that a

§ 1983 plaintiff allege with some specificity the facts

which make out its claim.”).

We review the grant of summary judgment de novo,

viewing all evidence and factual inferences therefrom in

the light most favorable to the non-moving party.

Wascura v. City of South Miami, 257 F.3d 1238, 1242

(11th Cir. 2001).

III. SECTION 1983 CLAIMS

Regarding the dismissal of Goodman’s § 1983 claims

for monetary damages, we affirm the district court’s

dismissal as to: (1) the GDOC; (2) Garner and Thomas,

tracked the lanaguage of 28 U.S.C. § 1915(e)(2)(B)(ii). Leal, 254

F.3d at 1279. This Court previously had determined that because §

1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Pro-

cedure 12(b)(6), it should be subject to the same, well-settled de

novo review standard for Rule 12(b)(6) dismissals. Jd. at 1278.

l4a

—_ >=

in their individual and official capacities; and (3) the

remaining GSP defendants in their official capacities.’

We affirm the dismissal as to the GDOC because the

Eleventh Amendment bars a § 1983 claim against the

GDOC. Stevens v. Gay, 864 F.2d 113, 115 (11th Cir.

1989) (citing Alabama v. Pugh, 438 U.S. 781, 782, 98 S.

Ct. 3057, 3057 (1978) (per curiam)).

With regard to Commissioner Garner and Director

Thomas, Goodman has alleged no factual basis or theory

that states a claim for any form of relief against these

two men who work at the state level and not directly at

GSP. Therefore, we affirm the district court’s dismissal

of Goodman’s § 1983 claims against Garner and Thomas,

in their individual and official capacities.

As to the remaining defendants, who are all GSP

prison officials, suits for monetary damages under

§ 1983 are valid only against prison officials in their in-

dividual, not official, capacities. See Will v. Mich. Dep't

of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312

(1989) (stating “neither a State nor its officials acting in

their official capacities are ‘persons’ under § 1983”);

D’Aguanno v. Gallagher, 50 F.3d 877, 879 (11th Cir.

1995) (permitting suits under § 1983 for monetary dam-

ages against state officials in their individual capaci-

ties).

However, we conclude that the district court erred in

dismissing some of Goodman’s § 1983 claims for mone-

tary damages against the remaining individual defen-

* As stated earlier, the State of Georgia is a defendant in this

case for the purposes of Goodman’s ADA claims only. While

Goodman clearly focuses on both monetary damages and injunctive

relief under the ADA, his Eighth-Amendment claims under § 1983

appear to be focused on obtaining monetary damages.

= 7 —

lda

dant prison officials at GSP, in their individual capaci-

ties. We do so for the following reasons.

A. Eighth Amendment Principles

“Whether one characterizes the treatment received

by [a partially paraplegic inmate] as inhumane condi-

tions of confinement, failure to attend to his medical

needs, or a combination of both, it is appropriate to ap-

ply the ‘deliberate indifference’ standard . .

Evans v. Dugger, 908 F.2d 801, 804-06 (11th Cir. 1990)

(citations omitted). In defining the deliberate indiffer-

ence standard, the Supreme Court stated:

[A] prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows

of and disregards an excessive risk to inmate health

or safety; the official must both be aware of facts

from which the inference could be drawn that a

substantial risk of serious harm exists, and he must

also draw the inference.

Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970,

1979 (1994).

Courts use a two-part analysis in Eighth-Amend-

ment challenges to conditions-of-confinement and

failwre-to-attend-to-medical-needs cases. Under the ob-

jective component, a prisoner must prove the condition

he compleins of is sufficiently serious to violate the

Eighth Amendment. Hudson v. McMillian, 503 U.S. 1,

8, 112 S. Ct. 995, 999 (1992). Specifically, a prisoner

must prove “a serious medical need” or the denial of

“the minimal civilized measure of life’s necessities.”

Chandler v. Crosby, No. 03-12017, Slip Op. at 3369 (11th

Cir. August 6, 2004); Farrow v. West, 320 F.3d 1235,

1243 (11th Cir. 2003); see Rhodes v. Chapman, 452 U.S.

l6a

337, 347, 101 S. Ct. 2392, 1000 [sic] (1981). “The

challenged prison condition must be ‘extreme’” and

must “pose an unreasonable risk of serious damage to

his future health.” Chandler, Slip Op. at 3369 (quoting

Hudson, 503 U.S. at 9, 112 S. Ct. at 1000).

Under the subjective component, the prisoner must

prove that the prison official acted with “deliberate

indifference.” Farmer, 511 U.S. at 836, 837, 114 S. Ct.

at 1978, 1979; Hudson, 503 U.S. at 8, 112 S. Ct. at 999;

Wilson v. Seiter, 501 U.S. 294, 303, 111 S. Ct. 2321, 2327

(1991). To show deliberate indifference, the prisoner

must show that the defendant prison official “‘acted

with a sufficiently culpable state of mind’” with regard

to the serious prison condition or serious medical need

in issue. Chandler, Slip Op. at 3369 (quoting Hudson,

503 U.S. at 8, 112 S. Ct. at 999). Negligence does not

satisfy this standard. Jd. A prisoner need not prove

the prison official acted with “‘the very purpose of

causing harm or with knowledge that harm [would]

result.’”” Jd. (quoting Farmer, 511 U.S. at 835, 114 S.

Ct. at 1970). However, a prison official may escape

liability for known risks “if [he] responded reasonably

to the risk, even if the harm ultimately was not

averted.” Jd. at 844, 114 S. Ct. at 1982-83 (quotation

marks and citations omitted).

B. Goodman’s Allegations Under Section 1983

The magistrate judge and district court correctly

noted that Goodman’s complaint was less than a model

of clarity. However, this is not a “pure” case of failure

to state a claim. Rather, we conclude that the allega-

tions contained in Goodman’s complaint, TRO motions,

and other court filings evidence sufficient allegations to

proceed with a limited number of Eighth-Amendment

claims under § 1983.

17a

Although Goodman never formally requested leave

to amend his complaint, Goodman’s filings, taken as a

whole, evidence a desire to add facts and substance to

his allegations. For example, on May 24, 1999, Good-

man filed a “Motion to Amend his Emergency Motion

for T.R.O. and/or P.I.” Under these circumstances, the

act of dismissal, without leave to amend, was too severe

a sanction. Rather, Goodman should have been given

an opportunity to amend and streamline his complaint.

See generally Troville v. Venz, 303 F.3d 1256, 1260

(llth Cir. 2002); Magluta v. Samples, 256 F.3d 1282,

1284 (11th Cir. 2001).

Therefore, we remand this case to the district court

so that Goodman may be permitted to amend his § 1983

claims for Eighth-Amendment violations. However, we

caution Goodman that this is not an invitation to assert

all of his purported Eighth-Amendment claims, some of

which are obviously frivolous. Rather, three of his

claims regarding his conditions of confinement and need

for medical care, if true, should be the focus of his

amended complaint.

First, Goodman alleges that he is not able to move his

wheelchair in his cell. If Goodman is to be believed, this

effectively amounts to some form of total restraint

twenty-three to twenty-four hours-a-day without penal

justification. See Hope v. Pelzer, 536 U.S. 730, 738, 122

S. Ct. 2508, 2514-15 (2002). Second, Goodman has al-

leged several instances in which he was forced to sit in

his own bodily waste because prison officials refused to

provide assistance.” Third, Goodman has alleged

1 Courts typically accord particular weight to exposure to

human waste in condition-of-confinement cases. See McBride v.

Deer, 240 F.3d 1287, 1292 (10th Cir. 2001) (finding “sufficiently

serious conditions of confinement” where inmate in feces-covered

18a

sufficient conduct to proceed with a § 1983 claim based

on the prison staff’s supposed “deliberate indifference”

to his serious medical condition of being partially

paraplegic; that is, knowingly providing no physical

therapy and inadequate medical treatment, systematic

denial of access to virtually all prison programs and

activities because of his disability, and woefully

inadequate and inhumane prison facilities for the

disabled, such as toilets without the necessary support

or handrails. See Miller v. King, No. 02-13348, slip op.

at (Sept. , 2004); Evans v. Dugger, 908

F.2d 801, 804-06 (11th Cir. 1990).

As we did in Magluta v. Samples, 375 F.3d 1269 (11th

Cir. 2004),

[w]e emphasize the hypothetical nature of our hold-

ing in this case. If the defendants at later stages of

this litigation, e.g., at summary judgment, can

establish that legitimate reasons do in fact exist

and/or the conditions of the confinement are not as

harsh or prolonged as alleged, then a different case

will be presented. Additionally, although [Good-

man] has specifically alleged that he advised each

defendant personally of the violations of his

cell for three days); McCord v. Maggio, 927 F.2d 844, 848 (5th Cir.

1991) (“unquestionably a health hazard” to live in “filthy water

contaminated with human waste”); Fruit v. Norris, 905 F.2d 1147,

1151 (8th Cir. 1990) (“courts have been especially cautious about

condoning conditions that include an inmate’s proximity to human

waste”); Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989) (three

days in cell with feces smeared on walls not within “civilized stan-

dards, humanity, and decency”); LaReau v. MacDougall, 473 F.2d

974, 978 (2nd Cir. 1972) (“Causing a man to live, eat, and perhaps

sleep in close confines with his own human waste is too debasing

and degrading to be permitted.”)

19a

constitutional rights only to be rebuffed, and that

each had personal involvement in relevant decisions,

development of the record at summary judgment

may reveal that one or more of the defendants in

fact had no personal involvement or liability.

Id. at 1276 n.5.

IV. ADA CLAIM FOR INJUNCTIVE RELIEF

We first affirm the magistrate judge’s grant of

summary judgment to all the defendants on Goodman’s

ADA claims for monetary damages as barred by the

Eleventh Amendment. Miller v. King, No. 02-13348,

slip. op. at__. The magistrate judge, however, erred in

determining that Goodman’s ADA claims for injunctive

relief under Title I] were moot for the following

reasons

It is true that “(t]he general rule is that a prisoner’s

transfer or release from a jail moots his individual claim

for declaratory and injunctive relief.” McKinnon v.

Talladega Co., 745 F.2d 1360, 1363 (lith Cir. 1984)

(citation omitted). The “capable of repetition, yet evad-

ing review” doctrine provides an exception to the gen-

eral rule of mootness. That doctrine requires “a

reasonable expectation that the same complaining party

would be subjected to the same action again.” Wein-

stein v. Bradford; 423 U.S. 147, 149, 96 S. Ct. 347, 349

(1975). In Preiser v. Newkirk, 422 U.S. 395, 402-03, 95

S. Ct. 2330, 2334-35 (1975), the Supreme Court con-

cluded that the “capable of repetition, yet evading re-

view” doctrine would not apply in prison transfer cases

if the likelihood of re-transfer was remote and specu-

lative.

Since the filing of his lawsuit in 1999, Goodman has

been transferred nine times: (1) July 1999, to Lee

20a

Arrendale State Prison; (2) November 1999, to Macon

State Prison; (3) January 2000, to Baldwin State Prison;

(4) February 2000, back to GSP; (5) March 2000, to

Augusta State Medical Prison; (6) August 2000, to Hays

State Prison; (7) March 2001, to Valdosta State Prison;

(8) November 2003, to Ware State Prison; and (9) Janu-

ary 2004, back to GSP." At oral argument, the govern-

ment indicated that Goodman had been transferred

again to Valdosta State Prison. However, this Court

continues to list Goodman’s address as GSP, given that

we have received status-report requests from Goodman

at GSP as recently as April 21, 2004.

What is certain is that Goodman is either at GSP or

the likelihood of his eventual transfer back to GSP is far

from remote or speculative. Consequently, we conclude

that the “capable of repetition, yet evading review”

doctrine applies in this case and that Goodman’s claims

for injunctive relief under Title II of the ADA are not

moot.

Therefore, this case is remanded to the district court

to consider Goodman’s claims for injunctive relief under

Title II of the ADA. Because Goodman is already

amending his complaint for the purposes of his § 1983

action, Goodman may also take this opportunity to

present a clearer picture of his allegations for injunctive

relief under Title II of the ADA. See Miller, No. 02-

13348, slip op. at—(outlining the requirements for

stating a claim under Title II of the ADA). Further-

more, the proper defendants on Goodman’s ADA claims

for injunctive relief should be Warden Sikes and

Commissioner Garner, in their official capacities, not

'! The district court's docket sheet indicated a January 5, 2004,

change of address for Goodman to GSP.

2la

the State of Geergia or the GDOC.” See Miller, No. 02-

13348, slip op. at __

V. CONCLUSION “

For all the above reasons, we vacate the dismissal of

Goodman’s § 1983 claims for Eighth-Amendment viola-

tions against the remaining six GSP officials, in their

individual capacities, with regard to his assertions that:

(1) he is left immobile in his cell for prolonged periods of

time; (2) he is forced to spend significant time in his own

waste because prison officials refuse to provide assis-

tance; and (3) prison officials are deliberately indiffer-

2 Because Goodman has been transferred so many times and for

judicial economy, we conclude that Goodman may also pursue his

ADA claims for injunctive relief against Commissioner Garner. By

so concluding, any subsequent transfer away from GSP would not

render Goodman’s ADA claims under Title II moot. See Randolph

v. Rodgers, 253 F.3d 342, 345-46 (8th Cir. 2001) (prisoner claims

against the director of the state prison system were not moot upon

transfer to another prison because the director had authority over

the entire prison system). Further, the Commissioner has the

power to provide funds in order to bring a particular prison, if

ordered by a court, into ADA compliance or to transfer a prisoner

to a prison that is ADA-compliant. See Ga. Code § 42-2-8 (“Subject

to legislative appropriations, the commissioner shall also be

authorized to make and execute any contract for the land acquisi-

tion, design, construction, operation, maintenance, use, lease, or

management of a state correctional institution or for any services

pertaining to the custody, care, and control of inmates or other

functions as are related to the discharge of these responsibilities

.”), Ga. Comp. R. & Reg. § 125-2-4.18(1) (“The Commissioner

shall . . « have sole authority to transfer inmates from one

correctional institution to any other institution.”). Should Garner

no longer be the Commissioner, the district court shall identify the

current Commissioner and allow Goodman to substitute that state

official as a defendant, in his official capacity, as to his ADA claims

for injunctive relief.

22a

ent to his needs as a partially paraplegic prisoner; that

is, knowingly providing no physical therapy and inade-

quate medical treatment, systematic denial of access to

virtually all prison programs and activities because of

his disability, and woefully inadequate and inhumane

prison conditions for the disabled, such as toilets with

the necessary support or handrails. In all other re-

spects, we affirm the district court’s dismissal of Good-

man’s § 1983 claims for Eighth-Amendment violations.

With respect to Goodman’s ADA claims, we affirm

the magistrate judge’s grant of summary judgment as

to Goodman’s claims for monetary relief under Title II

of the ADA against all defendants, but vacate the grant

of summary judgment on Goodman’s claims for injunc-

tive relief under Title II of the ADA. The proper defen-

dants on Goodman’s ADA claims for injunctive relief

are Warden Sikes and Commissioner Garner (or the

current Commissioner), in their official! capacities.

VACATED, REVERSED, and REMANDED, in part;

AFFIRMED, in part.

23a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

CIVIL ACTION NO.: CV699-012

TONY GOODMAN, PLAINTIFF

THE STATE OF GEORGIA, DEFENDANT

(Filed: Dec. 20, 2001)

ORDER

Plaintiff, an inmate currently confined at Valdosta

State Prison in Valdosta, Georgia, filed this civil rights

action pursuant to 42 U.S.C. § 1983 challenging the

conditions of his confinement. Plaintiff alleges, inter

alia, that the State of Georgia did not provide him with

reasonable accommodations in violation of the Ameri-

cans With Disabilities Act. Defendant has filed a

Motion for Summary Judgment (Dkt. Nos. 88, 89, and

90). Plaintiff has filed a Response and an Amended

Response. (Dkt. Nos. 91, 92, and 93.)

STATEMENT OF FACTS

Plaintiff, a wheelchair-bound inmate, filed suit

against the State of Georgia, among others, contending

that the State violated Title II of the Americans With

Disabilities Act. Specifically, Plaintiff contends that he

was transferred from a medical prison to Georgia State

24a

Prison which was not equipped to deal with his needs.

He contends that he was placed in administrative

segregation and was denied access to the law library,

church, and gymnasium. He also contends that GSP did

not have wheelchair accessible bathrooms, shower

stalls, sinks, and entrances to buildings. Plaintiff

alleges that he was deprived of counseling, education,

vocational training, and recreation activities. Plaintiff

has requested monetary and injunctive relief.

Defendant asserts that Plaintiff is prevented, by the

Eleventh Amendment, from pursuing his ADA claim

for money damages. Defendant also asserts that

Plaintiff’s request for injunctive relief does not state a

claim upon which relief can be granted.

STANDARD OF DETERMINATION

Summary judgment should be granted only if “there

is no genuine issue as to any material fact and the

moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). The procedure for dispos-

ing of a summary judgment motion is well established.

The Court may grant summary judgment to a party

when, after a reasonable time for discovery, the evi-

dence demonstrates that the nonmovant has failed to

establish an essential element of his case. The party

moving for summary judgment bears the initial burden

of meeting this exacting standard. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L

Ed. 2d 142 (1970). In applying this standard, the

Adickes Court explained that a court should view the

evidence and all factual inferences in the light most

favorable to the party opposing the motion. All reason-

able doubts regarding the facts should be resolved in

favor of the nonmovant. Adickes, 398 U.S. at 157, 90 S.

Ct. at 1608.

25a

Once the moving party has met this initial burden,

the burden shifts to the opposing party to show that a

genuine issue of material fact exists. Celotex Corp. v.

Catrell, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L.

Ed. 2d 265 (1986). The opposing party may not simply

rest upon mere allegations or denials of the pleadings.

Rather, the nonmoving party must make a sufficient

showing of facts to establish the existence of an essen-

tial element to his case on which he will bear the burden

of proof at trial. /d.; Barfield v. Brierton, 883 F.2d 923,

933 .ilth Cir. 1989). To oppose the motion sufficiently

after the movant has met his initial burden, the

nonmoving party must point to evidence in the record

or present additional evidence in the form of affidavits

or as otherwise provided in Rule 56 of the Federal

Rules of Civil Procedure. Riley v. Newton, 94 F.3d 632,

639 (11th Cir. 1996). If the record presents factual

issues, the Court must deny the motion and proceed to

trial. Environmental Defense Fund v. Marsh, 651 F.2d

983, 991 (5th Cir. 1981).' Summary judgment is also

inappropriate where the parties agree on the basic

facts, but disagree about the inferences that should be

drawn from these facts. Lighting Fixture & Elec.

Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213

(5th Cir. 1969).

DISCUSSION AND CITATION OF AUTHORITY

I. Plaintiff's Claim for Monetary Damages.

The State of Georgia asserts that it is entitled to

Eleventh Amendment immunity from money damages.

! In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), the Eleventh Circuit adopted as binding precedent

all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

26a

The Supreme Court recently determined that the

Eleventh Amendment prevents states and state

entities from being sued for money damages under Title

I of the Americans with Disabilities Act. Board of

Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356,

121 S. Ct. 955, 960, 148 L. Ed. 2d 866 (2001). The Gar-

rett decision addresses whether states are immune from

Title I of the ADA, but does not mention state im-

munity from Title II suits, such as Plaintiff is pursuing

here. Garrett, 121 S. Ct. at 960 n.1. In Williamson v.

Georgia Department of Human Resources, et al., this

Court concluded that states are also immune from suits

under Title II. 150 F. Supp. 2d 1375 ¢S.D. Ga. 2001).

Following the rubric established by the Supreme Court

in Garrett, Williamson concludes that Congress did not

identify a pattern of unconstitutional behavior by the

States, and therefore did not abrogate traditional

Eleventh Amendment immunity. Williamson, 150 F.

Supp. 2d 1375, 1381. Plaintiff’s claims for money

damages against the State of Georgia are precluded by

the Eleventh Amendment.

Il. Plaintiff's Claim For Injunctive Relief.

Plaintiff has also, on numerous occasions, requested a

preliminary injunction. Plaintiff has requested, as

addressed by Defendant’s first Motion for Summary

Judgement, that he be transferred out of Georgia State

Prison because it did not accommodate his needs as

provided by the Americans with Disabilities Act. The

record reflects that Plaintiff was transferred from

Georgia State Prison to Lee Arrendale State Prison

prior to July 1999. (Dkt. No. 17.) Plaintiff was trans-

ferred to Macon State Prison prior to November 1999.

(Dkt. No. 27.) Plaintiff was transferred to Baldwin

State Prison in January 2000. (Dkt. No. 35.) He was

27a

transferred back to Georgia State Prison in February

2000. (Dkt. N. 39.) Plaintiff was moved to Augusta

State Medical Prison in March 2000. (Dkt. No. 45.)

Plaintiff notified the court of his transfer to Hays State

Prison at the end of August 2000. (Dkt. No. 49.) Plaintiff

was transferred to Valdosta State Prison in March

20001. (Dkt. No. 56.)

Plaintiff brought this claim in January 1999, claiming

that Georgia State Prison did not comply with the

Americans with Disabilities Act. Plaintiff was trans-

ferred out of GSP in July 1999, and has spent time in

numerous institutions, including medical prisons since

the time he filed his complaint. Currently, Plaintiff is

incarcerated in Valdosta State Prison. Plaintiff’s claim

for injunctive relief has been rendered moot by his

transfer from Georgia State Prison. Minnesota Hu-

mane Society v. Clark, 184 F.3d 795 (8th Cir. 1995);

McAlpine v. Thompson, 187 F.3d 1213 (10th Cir. 1999).

CONCLUSION

For the above and foregoing reasons, summary

judgment is GRANTED to Defendant.

SO ORDERED, this 20th day of December, 2001.

/s/ JAMES E. GRAHAM

JAMES E. GRAHAM

UNITED STATES

MAGISTRATE JUDGE

28a

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

Case Number: CV699-012

TONY GOODMAN

THE STATE OF GEORGIA

JUDGMENT IN A CIVIL CASE

{ ] Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

[X] Decision by Court. This action came before the

Court The issues have been considered and a deci-

sion has been rendered.

IT IS ORDERED AND ADJUDGED

That in accordance with the Order of this Court of

December 20, 2001, Defendant’s motion for sum-

mary judgment is GRANTED and JUDGMENT is

hereby entered DISMISSING this action.

E.O.D.

INITIALS

December 20, 2001 Henry R. Crumley, Jr.

Date Clerk

/s/

NANCY Z. SUTTURE

(By) Deputy Clerk

29a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 02-10168-GG

TONY GOODMAN, PLAINTIFF-APPELLANT

O.T. RAY, ET AL., DEFENDANTS

THE STATE OF GEORGIA, DEFENDANT-APPELLEE

UNITED STATES OF AMERICA, INTERVENOR

On Appeal from the United States District Court

for the Southern District of Georgia

[Filed: Dec. 9, 2004]

ON PETITION(S) FOR REHEARING AND _ PETI-

TION(S) FOR REHEARING EN BANC

(Opinion , 11th Cir., 19 ;

F.2d. ).

Before: CARNES, HULL and HILL, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

requested that the Court be polled on rehearing en

30a

banc (Rule 35, Federal Rules of Appellate Procedure),

the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/) FRANK M. HALL

FRANK M. HALL

UNITED STATES CIRCUIT JUDGE

3la

APPENDIX D

CONSTITUTION OF THE UNITED STATES

AMENDMENT XI

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

AMENDMENT XIV

SECTION 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

* * * * *

SECTION 5. The Congress shall have power to

enforce, by appropriate legislation, the provisions of

this article.

32a

SELECTED PROVISIONS OF THE AMERICANS WITH

DISABILITIES ACT OF 1990, 42 U.S.C. 12101 et seq.

§ 12101. Findings and purpose

(a) Findings

The Congress finds that—

(1) some 43,000,000 Americans have one or more

physical or mental disabilities, and this number is

increasing as the population as a whole is growing

older;

(2) historically, society has tended to isolate and

segregaie individuals with disabilities, and, despite

some improvements, such forms of discrimination

against individuals with disabilities continue to be a

serious and pervasive social problem;

(3) discrimination against individuals with dis-

abilities persists in such critical areas as employment,

housing, public accommodations, education, transporta- ~

tion, communication, recreation, institutionalization,

health services, voting, and access to public services;

(4) unlike individuals who have experienced dis-

crimination on the basis of race, color, sex, national

origin, religion, or age, individuals who have experi-

enced discrimination on the basis of disability have

often had no legal recourse to redress such discrimi-

nation;

(5) individuals with disabilities continually en-

counter various forms of discrimination, including out-

right intentional exclusion, the discriminatory effects of

architectural, transportation, and communication

barriers, overprotective rules and policies, failure to

make modifications to existing facilities and practices,

33a

exclusionary qualification standards and criteria, segre-

gation, and relegation to lesser services, programs,

activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies

have documented that people with disabilities, as a

group, occupy an inferior status in our society, and are

severely disadvantaged socially, vocationally, economi-

cally, and educationally;

(7) individuals with disabilities are a discrete and

insular minority who have been faced with restrictions

and limitations, subjected to a history of purposeful

unequal treatment, and relegated to a position of politi-

cal powerlessness in our society, based on characteris-

tics that are beyond the control of such individuals and

resulting from stereotypic assumptions not truly indica-

tive of the individual ability of such individuals to

participate in, and contribute to, society;

(8) the Nation’s proper goals regarding individ. °-s

with disabilities are to assure equality of opportunity,

full participation, independent living, and economic self-

sufficiency for such individuals; and

(9) the continuing existence of unfair and un-

necessary discrimination and prejudice denies people

with disabilities the opportunity to compete on an equal

basis and to pursue those opportunities for which our

free society is justifiably famous, and costs the United

States billions of dollars in unnecessary expenses

resulting from dependency and nonproductivity.

(b) Purpose

It is the purpose of this chapter—

34a

(1) to provide a clear and comprehensive national

mandate for the elimination of discrimination against

individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable

standards addressing discrimination against individuals

with disabilities;

(3) to ensure that the Federal Government plays a

central role in enforcing the standards established in

this chapter on behalf of individuals with disabilities;

and

(4) to invoke the sweep of congressional authority,

including the power to enforce the fourteenth amend-

ment and to regulate commerce, in order to address the

major areas of discrimination faced day-to-day by

people with disabilities.

35a

Title II, Part A, of The Americans With Disabilities Act

§12131. Definitions

As used in this subchapter:

(1) Public entity

The term “public entity” means—

(A) any State or local government;

(B) any department, agency, special purpose dis-

trict, or other instrumentality of a State or States or

local government; and

tion, and any commuter authority (as defined in

section 2410(4) of title 49).

(2) Qualified individual! with a disability

The term “qualified individual with a disability”

means an individual with a disability who, with or

without reasonable modifications to rules, policies, or

practices, the removal of architectural, communication,

or transportation barriers, or the provision of auxiliary

aids and services, meets the essential eligibility re-

quirements for the receipt of services or the partici-

pation in programs or activities provided by a public

entity.

§ 12132. Discrimination

Subject to the provisions of this subchapter, 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 dis-

crimination by any such entity.

§ 12133. Enforcement

The remedies, procedures, and rights set forth in

section 794a of title 29 shall be the remedies, proce-

dures, and rights this subchapter provides to any per-

son alleging discrimination on the basis of disability in

violation of section 12132 of this title.

§ 12134. Regulations

(a) In general

Not later than 1 year after July 26, 1990, the

Attorney General shall promulgate regulations in an

accessible format that implement this part. Such

regulations shall not include any matter within the

scope of the authority of the Secretary of Transporta-

tion under section 12143, 12149, or 12164 of this title.

(b) Relationship to other regulations

Except for “program accessibility, existing facilities,”

and “communications,” regulations under subsection (a)

of this section shall be consistent with this chapter and

with the coordination regulations under part 41 of title

28, Code of Federal Regulations (as promulgated by the

Department of Health, Education, and Welfare on

January 13, 1978), applicable to recipients of Federal

financial assistance under section 794 of title 29. With

respect to “program accessibility, existing facilities”,

and “communications”, such regulations shall be con-

sistent with regulations and analysis as in part 39 of

title 28 of the Code of Federal Regulations, applicable

to federally conducted activities under such section 794

of title 29.

37a

Regulations under subsection (a) of this section shall

include standards applicable to facilities and vehicles

covered by this part, other than facilities, stations, rail

passenger cars, and vehicles covered by part B of this

subchapter. Such standards shall be consistent with

the minimum guidelines and requirements issued by

the Architectural and Transportation Barriers Com-

pliance Board in accordance with section 12204(a) of

this title.

.* * * * *~

38a

Title Il, Part B, of The Americans With Disabilities Act

§ 12141. Definitions

As used in this subpart:

(1) Demand responsive system

The term “demand responsive system” means any

system of providing designated public transporta-

tion which is not a fixed route system.

(2) Designated public transportation

The term “designated public transportation”

means transportation (other than public school

transportation) by bus, rail, or any other conveyance

(other than transportation by aircraft or intercity or

commuter rail transportation (as defined in section

12161 of this title)) that provides the general public

with general or special service (including charter

service) on a regular and continuing basis.

(3) Fixed route system

The term “fixed route system” means a system of

providing designated public transportation on which

a vehicle is operated along a prescribed route ac-

cording to a fixed schedule. <

(4) Operates

The term “operates”, as used with respect to a

fixed route system or demand responsive system,

includes operation of such system by a person under

a contractual or other arrangement or relationship

with a public entity.

(5) Public school transportation

The term “public school transportation” means

transportation by schoolbus vehicles of schoolchil-

39a

dren, personnel, and equipment to and from a public

elementary or secondary school and school-related

activities.

(6) Secretary

The term “Secretary” means the Secretary of

Transportation.

§ 12142. Public entities operating fixed route systems

(a) Purchase and lease of new vehicles

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29 for

a public entity which operates a fixed route system to

purchase or lease a new bus, a new rapid rail vehicle, a

new light rail vehicle, or any other new vehicle to be

used on such system, if the solicitation for such pur-

chase or lease is made after the 30th day following July

26, 1990, and if such bus, rail vehicle, or other vehicle is

not readily accessible to and usable by individuals with

disabilities, including individuals who use wheelchairs.

(b) Purchase and lease of used vehicles

Subject to subsection (c)(1) of this section, it shall be

considered discrimination for purposes of section 12132

of this title and section 794 of Title 29 for a public entity

which operates a fixed route system to purchase or

lease, after the 30th da) “ollowing July 26, 1990, a used

vehicle for use on such system unless such entity makes

demonstrated good faith efforts to purchase or lease a

used vehicle for use on such system that is readily ac-

cessible to and usable by individuals with disabilities,

including individuals who use wheelchairs.

(c)

(1)

40a

Remanufactured vehicles

General rule

Except as provided in paragraph (2), it shall be

considered discrimination for purposes of section

12132 of this title and section 794 of Title 29 for a

public entity which operates a fixed route system—

(A) to remanufacture a vehicle for use on such

system so as to extend its usable life for 5 years or

more, which remanufacture begins (or for which

the solicitation is made) after the 30th day

following July 26, 1990; or

(B) to purchase or lease for use on such

system a remanufactured vehicle which has been

remanufactured so as to extend its usable life for 5

years or more, which purchase or lease occurs af-

ter such 30th day and during the period in which

the usable life is extended;

unless, after remanufacture, the vehicle is, to the

maximum extent feasible, readily accessible to and

usable by individuals with disabilities, including indi-

viduals who use wheelchairs.

(2)

Exception for historic vehicles

(A) General rule

If a public entity operates a fixed route sys-

tem any segment of which is included on the Na-

tional Register of Historic Places and if making a

vehicle of historic character to be used solely on

such segment readily accessible to and usable by

individuals with disabilities would significantly al-

ter the historic character of such vehicle, the

public entity only has to make (or to purchase or

lease a remanufactured vehicle with) those modi-

4la

fications which are necessary to meet the re-

quirements of paragraph (1) and which do not

significantly alter the historic character of such

vehicle.

(B) Vehicles of historic character defined by regula-

tions

For purposes of this paragraph and section

12148(b) of this title, a vehicle of historic charac-

ter shall be defined by the regulations issued by

the Secretary to carry out this subsection.

§ 12143. Paratransit as a complement to fixed route

service

(a) General rule

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29 for

a public entity which operates a fixed route system

(other than a system which provides solely commuter

bus service) to fail to provide with respect to the opera-

tions of its fixed route system, in accordance with this

section, paratransit and other special transportation

services to individuals with disabilities, including indi-

viduals who use wheelchairs, that are sufficient to pro-

vide to such individuals a level of service (1) which is

comparable to the level of designated public transporta-

tion services provided to individuals without disabilities

using such system; or (2) in the case of response time,

which is comparable, to the extent practicable, to the

level of designated public transportation services

provided to individuals without disabilities using such

system.

42a

(b) Issuance of regulations

Not later than 1 year after July 26, 1990, the Secre-

tary shall issue final regulations to carry out this sec-

tion.

(1) Eligible recipients of service

The regulations issued under this section shall re-

quire each public entity which operates a fixed route

system to provide the paratransit and other special

transportation services required under this section—

(Ai) to any individual with a disability who

is unable, as a result of a physical or mental im-

pairment (including a vision impairment) and with-

_ out the assistance of another individual (except an

operator of a wheelchair lift or other boarding as-

sistance device), to board, ride, or disembark from

any Vehicle _.i the system which is readily accessi-

ble to and usable by individuals with disabilities;

(ii) to any individual with a disability who

needs the assistance of a wheelchair lift or other

boarding assistance device (and is able with such

assistance) to board, ride, and disembark from any

vehicle which is readily accessible to and usable by

individuals with disabilities if the individual wants

to travel on a route on the system during the hours

of operation of the system at a time (or within a

reasonable period of such time) when such a vehicle

is not being used to provide designated public

transportation on the route; and

(iii) to any individual with a disability who

has a specific impairment-related condition which

prevents such individual from traveling to a

43a

boarding location or from a disembarking location

on such system;

(B) to one other individual accompanying

the individual with the disability; and

one individual described in subparagraph (B), ac-

companying the individual with a disability pro-

vided that space for these additional individuals is

available on the paratransit vehicle carrying the

individual with a disability and that the trans-

portation of such additional individuals will not

result in a denial of service to individuals with

disabilities. |

For purposes of clauses (i) and (ii) of subparagraph

(A), boarding or disembarking from a vehicle does not

include travel to the boarding location or from the

disembarking location.

(2) Service area

The regulations issued under this section shall re-

quire the provision of paratransit and special trans-

portation services required under this section in the

service area of each public entity which operates a

fixed route system, other than any portion of the

service area in which the public entity solely pro-

vides commuter bus service.

(3) Service criteria

Subject to paragraphs (1) and (2), the regulations

issued under this section shall establish minimum

service criteria for determining the level of services

to be required under this section.

44a

(4) Undue financial burden limitation

The regulations issued under this section shall

provide that, if the public entity is able to demon-

strate to the satisfaction of the Secretary that the

provision of paratransit and other special transporta-

tion services otherwise required under this section

would impose an undue financial burden on the public

entity, the public entity, notwithstanding any other

provision of this section (other than paragraph (5)),

shall only be required to provide such services to the

extent that providing such services would not impose

such a burden.

(5) Additional services

The regulations issued under this section shall es-

tablish circumstances under which the Secretary

may require a public entity to provide, notwithstand-

ing paragraph (4), paratransit and other special

transportation services under this section beyond the

level of paratransit and other special transportation

services which would otherwise be required under

paragraph (4).

(6) Public participation

The regulations issued under this section shall re-

quire that each public entity which operates a fixed

route system hold a public hearing, provide an oppor-

tunity for public comment, and consult with individu-

als with disabilities in preparing its plan under para-

graph (7).

(7) Plans

The regulations issued under this section shall re-

quire that each public entity which operates a fixed

route system—

45a

(A) within 18 months after July 26, 1990,

submit to the Secretary, and commence implemen-

tation of, a plan for providing paratransit and

other special transportation services which meets

the requirements of this section; and

(B) on an annual basis thereafter, submit to

the Secretary, and commence implementation of, a

plan for providing such services.

(8) Provision of services by others

The regulations issued under this section shall—

(A) require that a public entity submitting a

plan to the Secretary under this section identify in

the plan any person or other public entity which is

providing a paratransit or other special transporta-

tion service for individuals with disabilities in the

service area to which the plan applies; and

(B) provide that the public entity submitting

the plan does not have to provide under the plan

such service for individuals with disabilities.

(9) Other provisions

The regulations issued under this section shall in-

clude such other provisions and requirements as the

Secretary determines are necessary to carry out the

objectives of this section.

(d) Review of plan

(1) General rule

The Secretary shall review a plan submitted un-

der this section for the purpose of determining

whether or not such plan meets the requirements of

this section, including the regulations issued under

this section.

(2) Disapproval

If the Secretary determines that a plan reviewed

under this subsection fails to meet the requirements

of this section, the Secretary shall disapprove the

plan and notify the public entity which submitted the

plan of such disapproval and the reasons therefor.

(3) Modification of disapproved plan

Not later than 90 days after the date of disap-

proval of a plan under this subsection, the public en-

tity which submitted the plan shall modify the plan to

meet the requirements of this section and shall sub-

mit to the Secretary, and commence implementation

of, such modified plan.

(e) “Discrimination” defined

As used in subsection (a) of this section, the term

“discrimination” includes—

(1) a failure of a public entity to which the regu-

lations issued under this section apply to submit, or

commence implementation of, a plan in accordance

with subsections (c)(6) and (c)(7) of this section;

(2) a failure of such entity to submit, or com-

mence implementation of, a modified plan in accor-

dance with subsection (d)(3) of this section;

(3) submission to the Secretary of a modified

plan under subsection (d)(3) of this section which

does not meet the requirements of this section; or

(4) a failure of such entity to provide paratransit

or other special transportation services in accordance

with the plan or modified plan the public entity sub-

mitted to the Secretary under this section.

47a

(f) Statutory construction

Nothing in this section shall be construed as pre-

venting a public entity—

(1) from providing paratransit or other special

transportation services at a level which is greater

than the level of such services which are required by

this section,

(2) from providing paratransit or other special

transportation services in addition to those paratran-

sit and special transportation services required by

this section, or

(3) from providing such services to individuals in

addition to those individuals to whom such services

are required to be provided by this section.

§ 12144. Public entity operating a demand responsive

system

If a public entity operates a demand responsive sys-

tem, it shall be considered discrimination, for purposes

of section 12132 of this title and section 794 of Title 29,

for such entity to purchase or lease a new vehicle for

use on such system, for which a solicitation is made af-

ter the 30th day following July 26, 1990, that is not

readily accessible to and usable by individuals with dis-

abilities, including individuals who use wheelchairs,

unless such system, when viewed in its entirety, pro-

vides a level of service to such individuals equivalent to

the level of service such system provides to individuals

without disabilities.

48a .

§ 12145. Temporary relief where lifts are unavailable

(a) Granting

With respect to the purchase of new buses, a public

entity may apply for, and the Secretary may temporar-

ily relieve such public entity from the obligation under

section 12142(a) or 12144 of this title to purchase new

buses that are readily accessible to and usable by indi-

viduals with disabilities if such public entity demon-

strates to the satisfaction of the Secretary—

(1) that the initial solicitation for new buses

made by the public entity specified that all new buses

were to be lift-equipped and were to be otherwise ac-

cessible to and usable by individuals with disabilities;

(2) the unavailability from any qualified manu-

facturer of hydraulic, electromechanical, or other lifts

for such new buses;

(3) that the public entity seeking temporary re-

lief has made good faith efforts to locate a qualified

manufacturer to supply the lifts to the manufacturer

of such buses in sufficient time to comply with such

solicitation; and

(4) that any further delay in purchasing new

buses necessary to obtain such lifts would signifi-

cantly impair transportation services in the commu-

nity served by the public entity.

(b) Duration and notice to Congress

Any relief granted under subsection (a) of this sec-

tion shall be limited in duration by a specified date, and

the appropriate committees of Congress shall be noti-

fied of any such relief granted.

49a

If, at any time, the Secretary has reasonable cause to

believe that any relief granted under subsection (a) of

this section was fraudulently applied for, the Secretary

shall—

(1) cancel such relief if such relief is still in effect;

and

(2) take such other action as the Secretary con-

siders appropriate.

§ 12146. New facilities

For purposes of section 12132 of this title and section

794 of Title 29, it shall be considered discrimination for

a public entity to construct a new facility to be used in

the provision of designated public transportation serv-

ices unless such facility is readily accessible to and us-

able by individuals with disabilities, including individu-

als who use wheelchairs.

§ 12147. Alterations of existing facilities

(a) General rule

With respect to alterations of an existing facility or

part thereof used in the provision of designated public

transportation services that affect or could affect the

usability of the facility or part thereof, it shall be con-

sidered discrimination, for purposes of section 12132 of

this title and section 794 of Title 29, for a public entity

to fail to make such alterations (or to ensure that the

alterations are made) in such a manner that, to the

maximum extent feasible, the altered portions of the

facility are readily accessible to and usable by individu-

als with disabilities, including individuals who use

wheelchairs, upon the completion of such alterations.

50a

Where the public entity is undertaking an alteration

that affects or could affect usability of or access to an

area of the facility containing a primary function, the

entity shall also make the alterations in such a manner

that, to the maximum extent feasible, the path of travel

to the altered area and the bathrooms, telephones, and

drinking fountains serving the altered area, are readily

accessible to and usable by individuals with disabilities,

including individuals who use wheelchairs, upon

completion of such alterations, where such alterations

to the path of travel or the bathrooms, telephones, and

drinking fountains serving the altered area are not dis-

proportionate to the overall alterations in terms of cost

and scope (as determined under criteria established by

the Attorney General).

(b) Special rule for stations

(1) General rule

For purposes of section 12132 of this title and sec-

tion 794 of Title 29, it shall be considered discrimina-

tion for a public entity that provides designated public

transportation to fail, in accordance with the provi-

sions of this subsection, to make key stations (as de-

termined under criteria established by the Secretary

by regulation) in rapid rail and light rail systems

readily accessible to and usable by individuals with

disabilities, including individuals who use wheel-

chairs.

(2) Rapid rail and light rail key stations

(A) Accessibility

Except as otherwise provided in this paragraph,

all key stations (as determined under criteria es-

tablished by the Secretary by regulation) in rapid

rail and light rail systems shall be made readily

5la

accessible to and usable by individuals with dis-

abilities, including individuals who use wheel-

chairs, as soon as practicable but in no event later

than the last day of the 3-year period beginning on

July 26, 1990.

(B) Extension for extraordinarily expensive struc-

tural changes

The Secretary may extend the 3-year period

under subparagraph (A) up to a 30-year period for

key stations in a rapid rail or light rail system

which stations need extraordinarily expensive

structural changes to, or replacement of, existing

facilities; except that by the last day of the 20th

year following July 26, 1990, at least 2/3 of such

key stations must be readily accessible to and us-

able by individuals with disabilities.

(3) Plans and milestones

The Secretary shall require the appropriate public

entity to develop and submit to the Secretary a plan

for compliance with this subsection—

(A) that reflects consultation with individuals

with disabilities affected by such plan and the re-

sults of a public hearing and public comments on

such plan, and

(B) that establishes milestones for achieve-

ment of the requirements of this subsection.

52a

§ 12148. Public transportation programs and activities

in existing facilities and one car per train

rule

(a) Public transportation programs and activities in exist-

ing facilities

(1) Ingeneral

With respect to existing facilities used in the pro-

vision of designated public transportation services, it

shall be considered discrimination, for purposes of

section 12132 of this title and section 794 of Title 29,

for a public entity to fail to operate a designated

public transportation program or activity conducted

in such facilities so that, when viewed in the entirety,

the program or activity is readily accessible to and

usable by individuals with disabilities.

(2) Exception

Paragraph (1) shall not require a public entity to

make structural changes to existing facilities in order

to make such facilities accessible to individuals who

use wheelchairs, unless and to the extent required by

section 12147(a) of this title (relating to alterations)

er section 12147(b) of this title (relating to key sta-

tions).

(3) Utilization

Paragraph (1) shall not require a public entity to

which paragraph (2) applies, to provide to individuals

who use wheelchairs services made available to the

general public at such facilities when such individuals

could not utilize or benefit from such services pro-

vided at such facilities.

53a

(b) One car per train rule

(1) General rule

Subject to paragraph (2), with respect to 2 or more

vehicles operated as a train by a light or rapid rail

system, for purposes of section 12132 of this title and

section 794 of Title 29, it shall be considered dis-

crimination for a public entity to fail to have at least

1 vehicle per train that is accessible to individuals

with disabilities, including individuals who use

wheelchairs, as soon as practicable but in no event

later than the last day of the 5-year period beginning

on the effective date of this section.

(2) Historic trains

In order to comply with paragraph (1) with re-

spect to the remanufacture of a vehicle of historic

character which is to be used on a segment of a light

or rapid rail system which is included on the National

readily accessible to and usable by individuals with

disabilities would significantly alter the historic char-

acter of such vehicle, the public entity which oper-

ates such system only has to make (or to purchase or

lease a remanufactured vehicle with) those modifica-

tions which are necessary to meet the requirements

of section 12142(c)(1) of this title and which do not

significantly alter the historic character of such ve-

hicle.

§ 12149. Regulations

(a) In general

Not later than 1 year after July 26, 1990, the Secre-

tary of Transportation shall issue regulations, in an ac-

54a

cessible format, necessary for carrying out this subpart

(other than section 12143 of this title).

(b) Standards

The regulations issued under this section and section

12143 of this title shall include standards applicable to

facilities and vehicles covered by this part. The stan-

dards shall be consistent witi. the minimum guidelines

and requirements issued by the Architectural and

Transportation Barriers Compliance Board in accor-

dance with section 12204 of this title.

§ 12150. Interim accessibility requirements

If final regulations have not been issued pursuant to

section 12149 of this title, for new construction or al-

terations for which a valid and appropriate State or lo-

cal building permit is obtained prior to the issuance of

final regulations under such section, and for which the

construction or alteration authorized by such permit

begins within one year of the receipt of such permit and

is completed under the terms of such permit, compli-

ance with the Uniform Federal Accessibility Standards

in effect at the time the building permit is issued shall

suffice to satisfy the requirement that facilities be

readily accessible to and usable by persons with dis-

abilities as required under sections 12146 and 12147 of

this title, except that, if such final regulations have not

been issued one year after the Architectural and

Transportation Barriers Compliance Board has issued

the supplemental minimum guidelines required under

section 12204(a) of this title, compliance with such sup-

plemental minimum guidelines shall be necessary to

satisfy the requirement that facilities be readily acces-

sible to and usable by persons with disabilities prior to

issuance of the final regulations.

§ 12161. Definitions

As used in this subpart:

(1) Commuter authority

The term “commuter authority” has the meaning

given such term in section 502(8) of Title 45.

(2) Commuter rail transportation

The term “commuter rail transportation” has the

meaning given the term “commuter rail passenger

transportation” in section 502(9) of Title 45.

(3) Intercity rail transportation

The term “intercity rail transportation” means

transportation provided by the National Railroad

Passenger Corporation.

(4) Rail passenger car

The term “rail passenger car” means, with re-

spect to intercity rail transportation, single-level and

bi-level coach cars, single-level and bi-level dining

cars, single-level and bi-level sleeping cars, single-

- level and bi-level lounge cars, and food service cars.

(5) Responsible person

The term “responsible person” means—

(A) in the case of a station more than 50 per-

cent of which is owned by a public entity, such pub-

lic entity;

(B) in the case of a station more than 5/ per-

cent of which is owned by a private party, the per-

sons providing intercity or commuter rail transpor-

tation to such station, as allocated on an equitable

———- 56a

basis by regulation by the Secretary of Transporta-

tion; and

50 percent of a station, the persons providing inter-

city or commuter rail transportation to such station

and the owners of the station, other than private

party owners, as allocated on an equitable basis by

regulation by the Secretary of Transportation.

(6) Station

The term “station” means the portign of a prop-

erty located appurtenant to a right-of-way on which

intercity or commuter rail transportation is operated,

where such portion is used by the general public and

is related to the provision of such transportation, in-

cluding passenger platforms, designated waiting ar-

eas, ticketing areas, restrooms, and, where a public

entity providing rail transportation owns the prop-

erty, concéssion areas, to the extent that such public

entity exercises control over the selection, design,

construction, or alteration of the property, but such

term does not include flag stops.

§ 12162. Intercity and commuter rail actions consid-

ered discriminatory

(a) Intercity rail transportation

(1) One car per train rule

It shall be considered discrimination for pur-

poses of section 12132 of this title and section 794 of

Title 29 for a person who provides intercity rail

transportation to fail to have at least one passenger

car per train that is readily accessible to and usable

by individuals with disabilities, including individuals

who use wheelchairs, in accordance with regulations

57a

issued under section 12164 of this title, as soon as

practicable, but in no event later than 5 years after

July 26, 1990.

(2) New intercity cars

(A) General rule

Except as otherwise provided in this subsec-

tion with respect to individuals who use wheel-

chairs, it shall be considered discrimination for

purposes of section 12132 of this title and section

794 of Title 29 for a person to purchase or lease

any new rail passenger cars for use in intercity

rail transportation, and for which a solicitation is

made later than 30 days after July 26, 1990, unless

all such rail cars are readily accessible to and us-

able by individuals with disabilities, including

individuals who use wheelchairs, as prescribed by

the Secretary of Transportation in regulations

issued under section 12164 of this title.

(B) Special rule for single-level passenger coaches

for individuals who use wheelchairs

Single-level passenger coaches shall be re-

quired to—

(i) be able to be entered by an individual

who uses a wheelchair;

(ii) have space to park and secure a

wheelchair;

(iii) have a seat to which a passenger in a

wheelchair can transfer, and a space to fold

and store such passenger’s wheelchair; and

(iv) have a restroom usable by an individ-

ual who uses a wheelchair,

58a

only to the extent provided in paragraph (3).

viduals who use wheelchairs

Single-level dining cars shall not be required

to—

(i) be able to be entered from the station

platform by an individual who uses a wheel-

chair; or

(ii) have a restroom usable by an individ-

ual who uses a wheelchair if no restroom is

provided in such car for any passenger.

(D) Special rule for bi-level dining cars for indi-

viduals who use wheelchairs

Bi-level dining cars shall not be required to—

(i) be able to be entered by an individual

who uses a wheelchair;

(ii) have space to park and secure a

wheelchair;

(iii) have a seat to which a passenger in a

wheelchair can transfer, or a space to fold and

store such passenger’s wheelchair; or

(iv) have a restroom usable by an individ-

ual who uses a wheelchair.

(3) Accessibility of single-level coaches

(A) General rule

It shall be considered discrimination for pur-

poses of section 12132 of this title and section 794

of Title 29 for a person who provides intercity rail

transportation to fail to have on each train which

59a

includes one or more single-level rail passenger

coaches—

(i) anumber of spaces—

(1) to park and secure wheelchairs (to

accommodate individuals who wish to re-

main in their wheelchairs) equal to not less

than one-half of the number of single-level

rail passenger coaches in such train; and

(II) to fold and store wheelchairs (to

accommodate individuals who wish to trans-

fer to coach seats) equal to not less than

one-half of the number of single-level rail

passenger coaches in such train,

as soon as practicable, but in no event later

than 5 years after July 26, 1990; and

(ii) anumber of spaces—

(1) to park and secure wheelchairs (to

‘accommodate individuals who wish to re-

main in their wheelchairs) equal to not less

than the total number of single-level rail

passenger coaches in such train; and

(II) to fold and store wheelchairs (to

accommodate individuals who wish to

transfer to coach seats) equal to not less

than the total number of single-level rail

passenger coaches in such train,

as soon as practicable, but in no event later

than 10 years after July 26, 1990.

(4)

(B) Location

Spaces required by subparagraph (A) shall be

located in single-level rail passenger coaches or

food service cars.

Of the number of spaces required on a train by

subparagraph (A), not more than two spaces to

park and secure wheelchairs nor more than two

spaces to fold and store wheelchairs shall be lo-

cated in any one coach or food service car.

(D) Other accessibility features

Single-level rail passenger coaches and food

service cars on which the spaces required by sub-

paragraph (A) are located shall have a restroom

usable by an individual who uses a wheelchair and

shall be able to be entered from the station plat-

form by an individual who uses a wheelchair.

Food service

(A) Single-level dining cars

On any train in which a single-level dining car

is used to provide food service—

(i) if such single-level dining car was pur-

chased after July 26, 1990, table service in such

car shall be provided to a passenger who uses a

wheelchair if—

(I) the car adjacent to the end of the

dining car through which a wheelchair may

enter is itself accessible to a wheelchair;

(II) such passenger can exit to the plat-

form from the car such passenger occupies,

move down the platform, and enter the adja-

6la

cent accessible car described in subclause (1)

without the necessity of the train being

moved within the station; and

(III) space to park and secure a wheel-

chair is available in the dining car at the time

such passenger wishes to eat (if such passen-

ger wishes to remain in a wheelchair), or

space to store and fold a wheelchair is avail-

able in the dining car at the time such pas-

senger wishes to eat (if such passenger

wishes to transfer to a dining car seat); and

(ii) appropriate auxiliary aids and services,

including a hard surface on which to eat, shall be

provided to ensure that other equivalent food

service is available to individuals with disabili-

ties, including individuals who use wheelchairs,

and to passengers traveling with such indi-

viduals.

Unless not practicable, a person providing intercity

rail transportation shall place an accessible car adja-

cent to the end of a dining car described in clause (i)

through which an individual who uses a wheelchair

may enter.

(B) Bi-level dining cars

On any train in which a bi-level dining car is

used to provide food service—

(i) if such train includes a bi-level lounge

car purchased after July 26, 1990, table service

in such lounge car shall be provided to individu-

als who use wheelchairs and to other passen-

gers; and

62a

(ii) appropriate auxiliary aids and services,

including a hard surface on which to eat, shall be

provided to ensure that other equivalent food

service is available to individuals with disabili-

ties, including individuals who use wheelchairs,

and to passengers traveling with such indi-

viduals.

(b) Commuter rail transportation

(1) One car per train rule

It shall be considered discrimination for purposes

of section 12132 of this title and section 794 of Title

29 for a person who provides commuter rail trans-

portation to fail to have at least one passenger car

per train that is readily accessible to and usable by

individuals with disabilities, including individuals

who use wheelchairs, in accordance with regulations

issued under section 12164 of this title, as soon as

practicable, but in no event later than 5 years after

July 26, 1990.

(2) New commuter rail cars

(A) General rule

It shall be considered discrimination for pur-

poses of section 12132 of this title and section 794

of Title 29 for a person to purchase or lease any

new rail passenger cars for use in commuter rail

transportation, and for which a solicitation is made

later than 30 days after July 26, 1990, unless all

such rail cars are readily accessible to and usable

by individuals with disabilities, including in-

dividuals who use wheelchairs, as prescribed by

the Secretary of Transportation in regulations is-

sued under section 12164 of this title.

(B) Accessibility

For purposes of section 12132 of this title and

section 794 of Title 29, a requirement that a rail

passenger car used in commuter rail transporta-

tion be accessible to or readily accessible to and

usable by individuals with disabilities, including

individuals who use wheelchairs, shall not be con-

strued to require—

(i) arestroom usable by an individual who

uses a wheelchair if no restroom is provided in

such car for any passenger;

(ii) space to fold and store a wheelchair; or

(iii) a seat to which a passenger who uses a

wheelchair can transfer.

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29, for

a person to purchase or lease a used rail passenger car

for use in intercity or commuter rail transportation,

unless such person makes demonstrated good faith ef-

forts to purchase or lease a used rail car that is readily

accessible to and usable by individuals with disabilities,

including individuals who use wheelchairs, as pre-

scribed by the Secretary of Transportation in regula-

tions issued under section 12164 of this title.

(d) Remanufactured rail cars

(1) Remanufacturing

It shall be considered discrimination for purposes

of section 12132 of this title and section 794 of Title 29

for a person to remanufacture a rail passenger car for

use in intercity or commuter rail transportation so as

64a

to extend its usable life for 10 years or more, unless

the rail car, to the maximum extent feasible, is made

readily accessible to and usable by individuals with

disabilities, including individuals who use wheel-

chairs, as prescribed by the Secretary of Transporta-

‘tion in regulations issued under section 12164 of this

title.

(2) Purchase or lease

It shall be considered discrimination for purposes

of section 12132 of this title and section 794 of Title 29

for a person to purchase or lease a remanufactured

rail passenger car for use in intercity or commuter rail

transportation unless such car was remanufactured in

accordance with paragraph (1).

(e) Stations

(1) New stations

It shall be considered discrimination for purposes

of section 12132 of this title and section 794 of Title 29

for a person to build a new station for use in intercity

or commuter rail transportation that is not readily

accessible to and usable by individuals with dis-

abilities, including individuals who use wheelchairs, as

prescribed by the Secretary of Transportation in

regulations issued under section 12164 of this title.

(2) Existing stations

(A) Failure to make readily accessible

(i) General rule

It shall be considered discrimination for

purposes of section 12132 of this title and sec-

tion 794 of Title 29 for a responsible person to

fail to make existing stations in the intercity

65a

rail transportation system, and existing key

stations in commuter rail transportation sys-

tems, readily accessible to and usable by indi-

viduals with disabilities, including individuals

who use wheelchairs, as prescribed by the

Secretary of Transportation in reguiations is-

sued under section 12164 of this title.

(ii) Period for compliance

(1) = Intercity rail

All stations in the intercity rail trans-

portation system shall be made readily ac-

cessible to and usable by individuals with

disabilities, including individuals who use

wheelchairs, as soon as practicable, but in

no event later than 20 years after July 26,

1990.

(il) Commuter rail

Key stations in commuter rail trans-

portation systems shall be made readily ac-

cessible to and usable by individuals with

disabilities, including individuals who use

wheelchairs, as soon as practicable but in

no event later than 3 years after July 26,

1990, except that the time limit may be ex-

tended by the Secretary of Transportation

up to 20 years after July 26, 1990, in a case

where the raising of the entire passenger

platform is the only means available of at-

taining accessibility or where other ex-

traordinarily expensive structural changes

are necessary to attain accessibility.

66a

(iii) Designation of key stations

Each commuter authority shall designate

the key stations in its commuter rail transpor-

tation system, in consultation with individuals

with disabilities and organizations represent-

ing such individuals, taking into consideration

such factors as high ridership and whether

such station serves as a transfer or feeder sta-

tion. Before the final designation of key sta-

tions under this clause, a commuter authority

shall hold a public hearing.

(iv) Plans and milestones

The Secretary of Transportation shall re-

quire the appropriate person to develop a plan

for carrying out this subparagraph that re-

flects consultation with individuals with dis-

abilities affected by such plan and that estab-

lishes milestones for achievement of the re-

quirements of this subparagraph.

(B) Requirement when making alterations

(i) General rule

It shall be considered discrimination, for

purposes of section 12132 of this title and sec-

tion 794 of Title 29, with respect to alterations

of an existing station or part thereof in the in-

tercity or commuter rail transportation sys-

tems that affect or could affect the usability of

the station or part thereof, for the responsible

person, owner, or person in control of the sta-

tion to fail to make the alterations in such a

manner that, to the maximum extent feasible,

the altered portions of the station are readily

accessible to and usable by individuals with

67a

disabilities, including individuals who use

wheelchairs, upon completion of such altera-

tions.

(ii) Alterations to a primary function area

It shall be considered discrimination, for

purposes of section 12132 of this title and sec-

tion 794 of Title 29, with respect to alterations

that affect or could affect the usability of or

access to an area of the station containing a

primary function, for the responsible person,

owner, or person in control of the station to

fail to make the alterations in such a manner

that, to the maximum extent feasible, the path

of travel to the altered area, and the bath-

rooms, telephones, and drinking fountains

serving the altered area, are readily accessible

to and usable by individuals with disabilities,

including individuals who use wheelchairs,

upon completion of such alterations, where

such alterations to the path of travel or the

bathrooms, telephones, and drinking fountains

serving the altered area are not dispro-

portionate to the overall alterations in terms

of cost and scope (as determined under crite-

ria established by the Attorney General).

It shall be considered discrimination for pur-

poses of section 12132 of this title and section 794

of Title 29 for an owner, or person in control, of a

station governed by subparagraph (A) or (B) to

fail to provide reasonable cooperation to a respon-

sible person with respect to such station in that

responsible person’s efforts to comply with such

68a

subparagraph. An owner, or person in control, of

a station shall be liable to a responsible person for

any failure to provide reasonable cooperation as

required by this subparagraph. Failure to re-

ceive reasonable cooperation required by this

subparagraph shall not be a defense to a claim of

discrimination under this chapter.

§ 12163. Conformance of accessibility standards

Accessibility standards included in regulations issued

under this subpart shall be consistent with the mini-

mum guidelines issued by the Architectural and Trans-

portation Barriers Compliance Board under section

12204(a) of this title.

§ 12164. Regulations

Not later than 1 year after July 26, 1990, the Sec-

retary of Transportation shall issue regulations, in an

accessible format, necessary for carrying out this

subpart.

§ 12165. Interim accessibility requirements

(a) Stations

If final regulations have not been issued pursuant to

section 12164 of this title, for new construction or al-

terations for which a valid and appropriate State or lo-

cal building permit is obtained prior to the issuance of

final regulations under such section, and for which the

construction or alteration authorized by such permit

begins within one year of the receipt of such permit and

is completed under the terms of such permit, compli-

ance with the Uniform Federal Accessibility Standards

in effect at the time the building permit is issued shall

suffice to satisfy the requirement that stations be read-

69a

ily accessible to and usable by persons with disabilities

as required under section 12162(e) of this title, except

that, if such final regulations have not been issued one

year after the Architectural and Transportation Barri-

ers Compliance Board has issued the supplemental

minimum guidelines required under section 12204(a) of

this title, compliance with such supplemental minimum

guidelines shall be necessary to satisfy the requirement

that stations be readily accessible to and usable by per-

sons with disabilities prior to issuance of the final

regulations.

(b) Rail passenger cars

If final regulations have not been issued pursuant to

section 12164 of this title, a person shall be considered

to have complied with the requirements of section

12162(a) through (d) of this title that a rail passenger

car be readily accessible to and usable by individuals

with disabilities, if the design for such car complies with

the laws and regulations (including the Minimum

Guidelines and Requirements for Accessible Design and

such supplemental minimum guidelines as are issued

under section 12204(a) of this title) governing accessi-

bility of such cars, to the extent that such laws and

regulations are not inconsistent with this subpart and

are in effect at the time such design is substantially

completed.

70a

Title IV of The Americans With Disabilities Act

§ 12201. Construction

(a) In general

Except as otherwise provided in this chapter,

nothing in this chapter shall be construed to apply a

lesser standard than the standards applied under title

V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et

seq.) or the regulations issued by Federal agencies

pursuant to such title.

(b) Relationship to other laws

Nothing in this chapter shall be construed to

invalidate or limit the remedies, rights, and procedures

of any Federal law or law of any State or political

subdivision of any State or jurisdiction that provides

greater or equal protection for the rights of individuals

with disabilities than are afforded by this chapter.

Nothing in this chapter shall be construed to preclude

the prohibition of, or the imposition of restrictions on,

smoking in places of employment covered by

subchapter I of this chapter, in transportation covered

by subchapter II or III of this chapter, or in places of

public accommodation covered by subchapter III of this

chapter.

Subchapters I through III of this chapter and title IV

of this Act shall not be construed to prohibit or

restrict—

(1) an insurer, hospital or medical service company,

health maintenance organization, or any agent, or

entity that administers benefit plans, or similar organi-

——,

Tla

zations from underwriting risks, classifying risks, or

administering such risks that are based on or not

inconsistent with State law; or

(2) a person or organization covered by this chapter

from establishing, sponsoring, observing or admi-

nistering the terms of a bona fide benefit plan that are

based on underwriting risks, classifying risks, or admi-

nistering such risks that are based on or not incon-

sistent with State law; or

(3) a person or organization covered by this chapter

from establishing, sponsoring, observing or administer-

ing the terms of a bona fide benefit plan that is not

subject to State laws that regulate insurance.

Paragraphs (1), (2), and (3) shall not be used as a

subterfuge to evade the purposes of subchapter’ I and

III of this chapter.

(d) Accommodations and services

Nothing in this chapter shall be construed to require

an individual with a disability to accept an accommo-

dation, aid, service, opportunity, or benefit which such

individual chooses not to accept.

§ 12202. State immunity

A State shall not be immune under the eleventh

amendment to the Constitution of the United States

from an action in*® Federal or State court of competent

jurisdiction for a violation of this chapter. In any action

against a State for a violation of the requirements of

this chapter, remedies (including remedies both at law

and in equity) are available for such a violation to the

2 So in original. Probably should be “subchapters”.

3 So in original. Probably should be “in a”.

72a

same extent as such remedies are available for such a

violation in an action against any public or private

entity other than a State.

§ 12203. Prohibition against retaliation and coercion

(a) Retaliation

No person shall discriminate against any individual

because such individual has opposed any act or practice

_ made unlawful by this chapter or because such indivi-

dual made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hear-

ing under this chapter.

(b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or

interfere with any individual in the exercise or enjoy-

ment of, or on account of his or her having exercised or

enjoyed, or on account of his or her having aided or

encouraged any other individual in the exercise or

enjoyment of, any right granted or protected by this

chapter.

The remedies and procedures available under sec-

tions 12117, 12133, and 12188 of this title shall be avail-

able to aggrieved persons for violations of subsections

(a) and (b) of this section, with respect to subchapter I,

subchapter II and subchapter III of this chapter,

respectively.

73a

§ 12204. Regulations by Architectural and Transpor-

tation Barriers Compliance Board

(a) Issuance of guidelines

Not later than 9 months after July 26, 1990, the

Architectural and Transportation Barriers Compliance

Board shall issue minimum guidelines that shall sup-

plement the existing Minimum Guidelines and Require-

ments for Accessible Design for purposes of sub-

chapters II and III of this chapter.

(b) Contents of guidelines

The supplemental guidelines issued under subsection

(a) of this section shall establish additional require-

ments, consistent with this chapter, to ensure that

buildings, facilities, rail passenger cars, and vehicles are

accessible, in terms of architecture and design,

transportation, and communication, to individuals with

disabilities.

(1) In general

The supplemental guidelines issued under subsection

(a) of this section shall include procedures and re-

quirements for alterations that will threaten or destroy

the historic significance of qualified historic buildings

and facilities as defined in 4.1.7(1)(a) of the Uniform

Federal Accessibility Standards.

(2) Sites eligible for listing in National Register

With respect to alterations of buildings or facilities

that are eligible for listing in the National Register of

Historic Places under the National Historic Preserva-

74a

tion Act (16 U.S.C. 470 et seq.), the guidelines described

in paragraph (1) shall, at a minimum, maintain the

procedures and requirements established in 4.1.7(1) and

(2) of the Uniform Federal Accessibility Standards.

(3) Other sites

With respect to alterations of buildings or facilities

designated as historic under State or local law, the

guidelines described in paragraph (1) shall establish

procedures equivalent to those established by

4.1.7(1)(b) and (c) of the Uniform Federal Accessibility

Standards, and shall require, at a minimum, compliance

with the requirements established in 4.1.7(2) of such

standards.

§ 12205. Attorney’s fees

In any action or administrative proceeding

commenced pursuant to this chapter, the court or

agency, in its discretion, may allow the prevailing

party, other than the United States, a reasonable

attorney’s fee, including litigation expenses, and costs,

and the United States shall be liable for the foregoing

the same as a private individual.

§ 12206. Technical assistance

(1) In general

Not later than 180 days after July 26, 1990, the

Attorney General, in consultation with the Chair of

the Equal Employment Opportunity Commission,

the Secretary of Transportation, the Chair of the

Architectural and Transportation Barriers Compli-

ance Board, and the Chairman of the Federal Com-

munications Commission, shall develop a plan to

assist entities covered under this chapter, and other

Federal agencies, in understanding the responsibility

of such entities and agencies under this chapter.

(2) Publication of plan

The Attorney General shall publish the plan

referred to.in paragraph (1) for public comment in

accordance with subchapter II of chapter 5 of title 5

(commonly known as the Administrative Procedure

Act).

(b) Agency and public assistance

The Attorney General may obtain the assistance of

other Federal agencies in carrying out subsection (a) of

this section, including the National Council on

Disability, the President’s Committee on Employment

of People with Disabilities, the Small Business Admi-

nistration, and the Department of Commerce.

(1) Rendering assistance

Each Federal agency that has responsibility

under paragraph (2) for implementing this chapter

may render technical assistance to individuals and

institutions that have rights or duties under the

respective subchapter or subchapters of this chapter

for which such agency has responsibility.

76a

(2) Implementation of subchapters

(A) Subchapter I

The Equal Employment Opportunity

Commission and the Attorney General shall

implement the plan for assistance developed under

subsection (a) of this section, for subchapter I of

this chapter.

(B) Subchapter Il

(i) PartA

The Attorney General shall implement such

plan for assistance for part A of subchapter II

of this chapter.

(ii) Part B

The Secretary of Transportation shall imple-

ment such plan for assistance for part B

subchapter II of this chapter.

The Attorney General, in coordination with

Secretary of Transportation and the Chair of the

Architectural Transportation Barriers Compliance

Board, shal! implement such plan for assistance for

subchapter III of this chapter, except for section

12184 of this title, the plan for assistance for which

shall be implemented. by the Secretary of Trans-

portation.

(D) Title IV

The Chairman of the Federal Communications

Commission, in coordination with the Attorney

General, shall implement such plan for assistance

for title IV.

(3) Technical assistance manuals

Each Federal agency that has responsibility

under paragraph (2) for implementing this chapter

shall, as part of its implementation responsibilities,

ensure the availability and provision of appropriate

technical assistance manuals to individuals or entities

with rights or duties under this chapter no later than

six months after applicable final regulations are

published under subchapters I, II, and III of this

chapter and title IV.

(d) Grants and contracts

(1) In general

Each Federal agency that has responsibility

under subsection (c)(2) of this section for imple-

menting this chapter may make grants or award

contracts to effectuate the purposes of this section,

subject to the availability of appropriations. Such

grants and contracts may be awarded to individuals,

institutions not organized for profit and no part of

the net earnings of which inures to the benefit or any

private shareholder or individual (including educa-

tional institutions), and associations representing

individuals who have rights or duties under this

chapter. Contracts may be awarded to entities

78a

organized for profit, but such entities may not be the

recipients or' grants described in this paragraph.

(2) Dissemination of information

Such grants and contracts, among other uses,

may be designed to ensure wide dissemination of

information about the rights and duties established

by this chapter and to provide information and

technical assistance about techniques for effective

compliance with this chapter.

(e) Failure to receive assistance

An employer, public accommodation, or other entity

covered under this chapter shall not be excused from

compliance with the requirements of this chapter

because of any failure to receive technical assistance

under this section, including any failure in the develo-

pment or dissemination of any technical assistance

manual authorized by this section.

§ 12207. Federal wilderness areas

(a) Study

The National Council on Disability shall conduct a

study and report on the effect that wilderness designa-

tions and wilderness land management practices have

on the ability of individuals with disabilities to use and

enjoy the National Wilderness Preservation System as

established under the Wilderness Act (16 U.S.C. 1131 et

seq.).

| So in original. Probably should be “of”.

79a

(b) Submission of report

Not later than 1 year after July 26, 1990, the National

Council on Disability shall -submit the report required

under subsection (a) of this section to Congress.

(1) In general

Congress reaffirms that nothing in the Wilder-

ness Act [16 U.S.C. 1131 et seq.) is to be construed as

prohibiting the use of a wheelchair in a wilderness

area by an individual whose disability requires use of

a wheelchair, and consistent with the Wilderness Act

no agency is required to provide any form of special

treatment or accommodation, or to construct any

facilities or modify any conditions of lands within a

wilderness area in order to facilitate such use.

(2) “Wheelchair” defined

For purposes of paragraph (1), the term “wheel-

chair” means a device designed solely for use by a

mobility-impaired person for locomotion, that is

suitable for use in an indoor pedestrian area.

§ 12208. Transvestites

For the purposes of this chapter, the term “disabled”

or “disability” shall not apply to an individual solely

because that individual is a transvestite.

§ 12209. Instrumentalities of the Congress

The General Accounting Office, the Gevernment

Printing Office, and the Library of Congress shall be

covered as follows:

(1) In general

The rights and protections under this chapter shall,

subject to paragraph (2), apply with respect to the

conduct of each instrumentality of the Congress.

(2) Establishment of remedies and procedures by

instrumentalities

The chief official of each instrumentality of the

Congress shall establish remedies and procedures to be

utilized with respect to the rights and protections

provided pursuant to paragraph (1).

(3) Report to Congress

The chief official of each instrumentality of the Con-

gress shall, after establishing remedies and procedures

for purposes of paragraph (2), submit to the Congress a

report describing the remedies and procedures.

(4) Definition of instrumentality

For purposes of this section, the term “instrumental-

ity of the Congress” means the following:,' the General

Accounting Office, the Government Printing Office, and

the Library of Congress,’

(5) Enforcement of employment rights

The remedies and procedures set forth in section

2000e-16 of this title shall be available to any employee

of an instrumentality of the Congress who alleges a

violation of the rights and protections under sections

12112 through 12114 of this title that are made

applicable by this section, except that the authorities of

1 So in original. The comma probably should not appear.

8la

the Equal Employment Opportunity Commission shall

be exercised by the chief official of the instrumentality

of the Congress.

(6) Enforcement of rights to public services and

accommodations

The remedies and procedures set forth in section

2000e-16 of this title shall be available to any qualified

person with a disability who is a visitor, guest, or pat-

ron of an instrumentality of Congress and who alleges a

violation of the rights and protections under sections

12131 through 12150 or section 12182 or 12183 of this

title that are made applicable by this section, except

that the authorities of the Equal Employment Oppor-

tunity Commission shall be exercised by the chief

official of the instrumentality of the Congress.

(7) Construction

Nothing in this section shall alter the enforcement

procedures for individuals with disabilities provided in

the General Accounting Office Personnel Act of 1980

and regulations promulgated pursuant to that Act.

§ 12210. Illegal use of drugs

(a) In general

For purposes of this chapter, the term “individual

with a disability” does not include an individual who is

currently er gaging in the illegal use of drugs, when the

covered entity acts on the basis of such use.

(b) Rules of construction

Nothing in subsection (a) of this section shall be

construed to exclude as an individual with a disability

an individual who—

(1) has successfully completed a supervised drug

rehabilitation program and is no longer engaging in

the illegal use of drugs, or has otherwise been

rehabilitated successfully and is no longer engaging

in such use;

(2) is participating in a supervised rehabilitation

program and is no longer engaging in such use; or

(3) is erroneously regarded as engaging in such

use, but is not engaging in such use; except that it

shall not be a violation of this chapter for a covered

entity to adopt or administer reasonable policies or

procedures, including but not limited to drug testing,

designed to ensure that an individual described in

paragraph (1) or (2) is no longer engaging in the

illegal use of drugs; however, nothing in this section

shall be construed to encourage, prohibit, restrict, or

authorize the conducting of testing for the illegal use

of drugs.

Notwithstanding subsection (a) of this section and

section 12211(b)(3) of this title, an individual shall not

be denied health services, or services provided in

connection with drug rehabilitation, on the basis of the

current illegal use of drugs if the individual is otherwise

entitled to such services.

83a

(d) “Illegal use of drugs” defined

(1) In general

The term “illegal use of drugs” means the use of

drugs, the possession or distribution of which is

unlawful under the Controlled Substances Act [21

U.S.C. 801 et seq.]. Such term does not include the

use of a drug taken under supervision by a licensed

health care professional, or other uses authorized by

the Controlled Substances Act [21 U.S.C. 801 et seq.]

or other provisions of Federal law.

(2) Drugs

The term “drug” means a controlled substance, as

defined in schedules I through V of section 202 of the

Controlled Substances Act [21 U.S.C. 812].

§ 12211. Definitions

(a) Homosexuality and bisexuality

For purposes of the definition of “disability” in sec-

tion 12102(2) of this title, homosexuality and bisexuality

are not impairments and as such are not disabilities

under this chapter.

(b) Certain conditions

Under this chapter, the term “disability” shall not

include—

(1) transvestism, transsexualism, pedophilia,

exhibitionism, voyeurism, gender identity disorders

not resulting from physical impairments, or other

sexual behavior disorders;

84a

(2) compulsive gambling, kleptomania, or pyro-

mania; or

(3) psychoactive substance use disorders result-

ing from current illegal use of drugs.

§ 12212. Alternative means of dispute resolution

Where appropriate and to the extent authorized by

law, the use of alternative means of dispute resolution,

including settlement negotiations, conciliation, facilita-

tion, mediation, factfinding, minitrials, and arbitration,

is encouraged to resolve disputes arising under this

chapter.

§ 12213. Severability

Should any provision in this chapter be found to be

unconstitutional by a court of law, such provision shall

be severed from the remainder of this chapter and such

action shall not affect the enforceability of the re-

maining provisions of this chapter.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.