# Petition for Writ of Certiorari — Goodman v. Georgia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 1031

## Text

No. 041236"

3n The
Supreme Court of the Anited States

TONY GOODMAN,

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

4

Drew S. Days, III

SAMUEL R. BAGENSTOS Counsel of Record
1 Brookings Drive BETH S. BRINKMANN
Box 1120 SETH M. GALANTER
St. Louis, MO 63130 MORRISON & FOERSTER LLP
(314) 935-9097 2000 Pennsylvania Ave., NW
Washington, DC 20006
(202) 887-1500
Attorneys for Petitioner
March 9, 2005

COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, and to what extent, Title II of the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq.,
validly abrogates state sovereign immunity for suits by
prisoners with disabilities challenging discrimination by
state-operated prisons, a question on which the courts of
appeals are in conflict.

ii
PARTIES TO THE PROCEEDING

Petitioner Tony Goodman brought this civil action
against the State of Georgia and the Georgia Department
of Corrections, as well as J. Wayne Garner, A.G. Thomas,
Johnny Sikes, J. Brady, O.T. Ray, H. Whimbly, Margaret
Patterson, and R. King. The individual named defendants
were sued in their personal and official capacities as state
prison officials.

All the defendants participated as appellees before the
United States Court of Appeals for the Eleventh Circuit.
The United States intervened in the court of appeals,
pursuant to 28 U.S.C. § 2403(a), to defend the constitu-
tionality of the statute.

The United States and each of the defendants are
respondents in this Court pursuant to this Court’s Rule
12.6, but the question presented herein has no application
to the individual named defendants sued in their personal
capacities.

TABLE OF CONTENTS

Page
QUESTION PRESENTED ....0..........c0ccccccecceeeeeeeeeeeens i
PARTIES TO THE PROCEEDING.................... Sac ii
TABLE OF AUTHORITIES. ...............ccccccccccceesceeeeeeees iv
re 1
EE 1

CONSTITUTIONAL AND STATUTORY PROVISIONS
SS 1
STATEMENT OF THE CASE ..............cccccecceeeeeeeeees 1
REASONS FOR GRANTING THE PETITION.......... 6

A. The Courts Of Appeals Are In Conflict
Regarding Whether, And To What Extent,
The ADA Validly Abrogates State Sovereign

Immunity In The Prison Content ................... 8
B. The Eleventh Circuit's Sovereign Immunity
er 14

C. This Case Presents The Best Opportunity To
Resolve The Matters On Which The Courts

Of Appeals Are In Conflict..........................06. 19
ES Se EEE 21
APPENDIX A: Court of Appeals opinion........................ la
APPENDIX B: District Court opinion.......................... 24a
APPENDIX C: Court of Appeals order denying

rehearing and rehearing en DaNc ..................cccc00000! - 29a

iv

TABLE OF AUTHORITIES
Page
CASES
Amos v. Maryland Deptt of Pub. Safety & Corr.
Servs., 126 F.3d 589 (4th Cir. 1997), vacated and
remanded, 524 U.S. 935 (1998) ............ccccccccceecsereeeeeeeeees 6
Beckford v. Irvin, 49 F. Supp. 2d 170 (W.D.N.Y. 1999).......... 17

Board of Trustees v. Garrett, 531 U.S. 356 (2001).... 4, 10, 17
Carrasquillo v. City of New York, 324 F. Supp. 2d

es A crnsinneipciintihiecininihaaiienimatnniesiacaialetiataataitiitaicie 11
Casey v. Lewis, 834 F. Supp. 1569 (D. Ariz. 1993)............ 17
City of Boerne v. Flores, 521 U.S. 507 (1997).....6, 11, 17, 18
City of Cleburne v. Cleburne Living Ctr. Inc., 473

ee Se ireciectrrreccicenbhinsetiacinsiiniatatiainiaainciaatamntattacasiititinn 16
Clark v. California, 123 F.3d 1267 (9th Cir. 1997),

cert. denied, 524 U.S. 937 (1998)...........ccccccccceseeeeeeees .. 10
Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N_Y.

SIE waiceneinenennnsiansenesnaveddeanineiiaiatinieaiaaiiainaanaesiasimmamemenaaas 17
Cruz v. Beto, 405 U.S. 319 (1972).............ccccccccceeeceeeeeeeeesees 16
Dare v. California, 191 F.3d 1167 (9th Cir. 1999),

cert. denied, 531 U.S. 1190 (2001) .............cccccccccccceeceeees 10
Degrafinreid v. Ricks, No. 03-6645, 2004 WL 2793168

Ns RN i I cricincrintincieiicialacinticaitantetiiintias 11
DeShaney v. Winnebago County Dep't of Social

ig Gy ee Si ciererenennicemnerienenmnnssiczanneans 15
Estelle v. Gamble, 429 U.S. 97 (1976) ..........cccccccccecceeeee 5, 15
Ex parte Young, 209 U.S. 123 (1908)..............cccccccccceseeeeeeees 5
Farmer v. Brennan, 511 U.S. 825 (1994) 000000000... 15

TABLE OF AUTHORITIES - Continued

Page
Flakes v. Frank, 322 F. Supp. 24 981 (WD. Wis.

1l
Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990)..................... 5
Garcia v. S.U.N_Y. Health Sciences Ctr., 280 F.3d 98

Eee 12
Hason v. Medical Bd., 279 F.3d 1167 (9th Cir. 2002),

cert. dismissed, 538 U.S. 958 (2003) .............cccccccceeeeeees 10
Hope v. Pelzer, 536 U.S. 730 (2002) ............ccccceceeeeeereeeeeees 4
Johnson v. California, 543 U.S. __, 2005 WL

0 yy 15, 16
Johnson v. Pelker, 891 F.2d 136 (7th Cir. 1989) ................. 5
Kiman v. New Hampshire Dep't of Corr., 301 F.3d

EE 12, 13
Kiman v. New Hampshire Dep't of Corr., 332 F.3d

29 (1st Cir. 2003) (en banc), vacated and re-

manded, 124 S. Ct. 2387 (2004) .............ccccecsecceeeeeereeeees 13
LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1972),

cert. denied, 414 U.S. 878 (1973).............ccccccceeeceeeeeeeeeeeees 5
Lewis v. Casey, 518 U.S. 343 (1996)..............cccccccceeeeeeeeeeees 16
Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002),

cert. denied, 537 U.S. 1105 (2003) ..............cccccceeeeeeeeeeees 10
McBride v. Deer, 240 F.3d 1287 (10th Cir. 2001)................ 5
McCord v. Maggio, 927 F.2d 844 (5th Cir. 1991)................ 5
Mercer v. Rodriquez, 849 A.2d 886 (Conn. App. Ct.

11

vi
TABLE OF AUTHORITIES -— Continued

Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206
ET ncitettcrnestnnncnnparmcneandinsadtinensesiamssabtamaeiaaita tase 1, 6, 7, 16

Phiffer v. Columbia River Corr. Inst., 63 Fed. Appx.
335 (9th Cir. 2003), vacated and remanded, 124
Be ee I ocrniceireenrnenretincncetnineiniiaiataaiasniainieaiaatnicitiinecsuees 9

Phiffer v. Columbia River Corr. Inst., 384 F.3d 791
(9th Cir. 2004), pet. for cert. filed, No. 04-947 (Jan.
SID ai hccentenenerinntdnneinnemmdeiienteiannnttedsiaiasiiaiietemtatass passim

Popovich v. Cuyahoga County Court of Common
Pleas, 276 F.3d 808 (6th Cir.) (en banc), cert.

re Ce a a atetrteesnintntitntanccsinmninniccensenns 12
Robinson v. California, 370 U.S. 660 (1962)...........0.000..... 19
Spencer v. Easter, 109 Fed. Appx. 571 (4th Cir. 2004),

cert. denied, No. 04-8293 (Mar. 7, 2005) ..............0c00000. ll
Tennessee v. Lane, 124 S. Ct. 1978 (2004)................. passim
Thomas v. Nakatani, 309 F.3d 1203 (9th Cir. 2002)......... 10
United States v. Raines, 362 U.S. 17 (1960).......... 13, 18, 19
Vitek v. Jones, 445 U.S. 480 (1980) .000.0....ccccccccececeeseeeeenees 16
Weeks v. Chaboudy, 984 F.2d 185 (6th Cir. 1993)............. 17
CONSTITUTION AND STATUTES
U.S. Const.:

GRID WUE dnietrinsenenisinneniocnidnticionsminnpremimsnecnsmatl passim

I tai ctttenstnarirnteennnensnscenaninaininatintiiapsiinaepsiasias passim

EE ee E passim

vii

TABLE OF AUTHORITIES - Continued

Page
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq:

§ 12101(aN(B) ..........eccrerererersnenensesernrsnensnensnsnsensnsnenenanenens 16

§ 1DTOM(DNA) ......-.s-cecererseeressenensnsnsnsnenensnnenanenansnsnansnanensnss 2

§ 12131 et seq. (Title IT) ............--s-eeererererseesrenerernens passim

§ 1D1GD .........ccecsscsssvssssseersesenensnensnsnenenensnsessnsnsnsnensnsssassnsens 1

§ UDB ..........cececesssesseresereesenensnsnsnenenssnensesensnsnenennsnensnssnenes 1

§ UZDOD ........eccscccecssssssererseecnessnsnssenensenenssnsnensanensssnensnssssens 1
QB U.S.C. § 1254(1).......cccccceereeesenenennennnsnsnsssnnnnanensnnnnnnnannas 1
QBU.S.C. § 2403(a)........cccccccceeseeeseeenneeneenensnnannnnnnnnnnnnsnnnnns ii
Section 504 of the Rehabilitation Act, 29 U.S.C.

§ 7D4....cececececsssnsesossssssessrnesserssssnsssssnsnenensnsessnensnsnenenenensesess 9
42 U.S.C. § 1988 ........ccccccccceeeeneenenenssensennssnnnnnneannnnnnes passim
MISCELLANEOUS
Bureau of Justice Statistics, U.S. Dep't of Justice,

Prisoners in 2003 (Nov. 2004)..........:ccseeceeereeeenreserresnnes 21

1

OPINIONS BELOW

The opinion of the Eleventh Circuit (App., infra, 1a-
23a) is unreported. The district court’s opinion granting
summary judgment to the State on sovereign immunity
grounds (App., infra, 24a-28a) is also unreported.

JURISDICTION

The court of appeals entered its judgment on Septem-
ber 16, 2004, and denied a petition for rehearing en banc
on December 9, 2004. App., infra, 29a-30a. This petition is
filed within 90 days of the latter date. This Court’s juris-
diction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

Relevant provisions of the Eighth, Eleventh, and
Fourteenth Amendments to the United States Constitu-
tion, and of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq., are set forth at App., infra, 31a-36a.

STATEMENT OF THE CASE

1. Title II of the Americans with Disabilities Act of
1990 (ADA) generally prohibits any “public entity” -
including state-operated prisons — from “subject[ing])” any
“qualified individual with a disability” to “discrimination.”
42 U.S.C. § 12132; Pennsylvania Dep't of Corrections v.
Yesteyw, 524 U.S. 206 (1998). Title II may be enforced
through private suits against public entities, including
state agencies. 42 U.S.C. § 12133. Congress expressly
abrogated the States’ Eleventh Amendment sovereign
immunity from private suits in federal court. 42 U.S.C.

2

§ 12202. Based on detailed findings by Congress concern-
ing the nature and persistence of discrimination against
persons with disabilities, Congress expressly “invoke[d]
the sweep of congressional authority, including the power
to enforce the fourteenth amendment” in enacting the
ADA. 42 U.S.C. § 12101(b)(4).

2. Petitioner Tony Goodman has paraplegia and uses
a wheelchair to move about. App., infra, 2a. In 1995,
Goodman was convicted and sentenced in Georgia state
court to a term of imprisonment. Jbid. This case involves
his treatment by Georgia at the Georgia State Prison in
Reidsville, Georgia (GSP), during Goodman’s incarceration
in that prison from 1996 to 1999, and from 2004 to the
present. Jd. at 2a, 20a.

While at GSP, Goodman is confined to a 12-foot by 3-
foot cell “for twenty-three to twenty-four hours per day.”
App., infra, 4a.' Goodman’s cell is too narrow to permit
him to turn his wheelchair around; as a result, he is
“virtually immobile.” Jd. at 5a.

Because “the prison ‘lacks facilities for the disabled for
hygiene, dmnking, and performing body excretion func-
tions,’” App., infra, 4a (quoting complaint), Goodman “was
forced to sit in his own bodily waste” on “several in-
stances,” id. at 18a, and on a number of occasions he has
experienced significant injuries (including several broken
bones and a seizure) when he attempted to use the toilet

' As the court of appeals noted, “[wJhile Goodman has had some
disciplit.ary problems in the past, Goodman’s allegations about the size
of his cell appear to be unrelated to disciplinary issues. Instead, this
[was] apparently the size of his cell whether or not he [was] in discipli-
nary isolation.” App., infra, 4a.

3

or shower, see id. at 6a-7a. Defendants have denied Good-
man “catheters and rehabilitative therapy,” “failed ‘to
provide any assistance in preventing dangerous bed-
sores,” and denied him “appointments with mental-health
counselors.” Jd. at 8a (quoting complaint).

Goodman has “suffered ‘long periods of deprivation of
basic amenities,’ such as ‘showers, baths, adequate venti-
lation or heating, recreation, work, medical and MH/MR
care, laundry service, cleaning service, and phone service’”
because of the prison’s inaccessibility. App., infra, 6a
(quoting complaint). And he has been denied access to
“virtually all prison programs and activities because of his
disability,” id. at 18a, including the law library and chapel,
id. at 25a. Numerous GSP officials, from the Warden and
Deputy Warden to the line staff at the prison, are aware of
these problems and have done nothing to address them.
Id. at 8a-9a.

3. In 1999, Goodman filed this suit pro se in the
United States District Court for the Southern District of
Georgia. App., infra, 20a. He named as defendants the
State of Georgia, the Georgia Department of Corrections,
and a number of Georgia prison officials. Jd. at 3a. On the
basis of the facts discussed above, Goodman asserted two
basic claims. First, invoking 42 U.S.C. § 1983, he alleged
that the defendants had violated his Eighth Amendment
right to be free of cruel and unusual punishment. App.,
infra, 3a. Second, he alleged that the defendants had
violated Title II of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12131 et seg. App., infra, 3a. Goodman
sought monetary damages on both claims and injunctive
relief on the ADA claim. Ibid.

ae _ 4
The district court dismissed Goodman’s Section 1983
claim against all defendants for failure to state a claim.
App., infra, 9a-10a. But the court denied the parties’ cross-
motions for summary judgment on the ADA claim and set
the case for trial; the court found that a genuine issue of
material fact existed regarding whether the defendants
were in compliance with the ADA. Id. at 1la-12a.

In October 2001, following this Court’s decision in
Board of Trustees v. Garrett, 531 U.S. 356 (2001), defen-
dants filed a renewed motion for summary judgment. App.,
infra, 12a. Defendants contended that state sovereign
immunity protected by the Eleventh Amendment barred
Goodman’s claims insofar as he seeks damages against the
State and that Goodman’s claim for injunctive relief had
been rendered moot when he was transferred out of GSP
in 1999. Ibid. The district court agreed and granted the
motion. Jbid.

4. The Eleventh Circuit affirmed in part and re-
versed in part. App., infra, 1a-23a. On the Section 1983
claim, the court of appeals reversed, holding that Good-
man’s complaint stated a claim for a violation of the
Eighth Amendment in three respects. First, by confining
him to a cell in which he could not move his wheelchair,
the individual defendants effectively imposed “some form
of total restraint twenty-three to twenty-four hours-a-day
without penal justification,” in violation of the principles
articulated in Hope v. Pelzer, 536 U.S. 730, 738 (2002).
App., infra, 18a. Second, by forcing Goodman “to sit in his
own bodily waste because prison officials refused to
provide assistance,” the individual defendants violated the
principles articulated in a long line of appellate-court
Eighth Amendment cases that have “accord[ed] particular
weight to exposure to human waste.” App., infra, 18a &

5

n.10 (citing McBride v. Deer, 240 F.3d 1287, 1292 (10th
Cir. 2001); McCord v. Maggio, 927 F.2d 844, 848 (5th Cir.
1991); Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990);
Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989);
LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972),
cert. denied, 414 U.S. 878 (1973)). Finally, by “knowingly
providing no physical therapy and inadequate medical
treatment,” by their “systematic denial of access to virtu-
ally all prison programs and activities because of [Good-
man’s] disability,” and by providing “woefully inadequate
and inhumane prison facilities for the disabled, such as
toilets without the necessary support or handrails,” the
individual defendants showed “deliberate indifference” to
Goodman’s “serious medical condition.” App., infra, 18a-
19a; see Estelle v. Gamble, 429 U.S. 97, 104-105 (1976).

On the ADA claim, the court of appeals sought addi-
tional briefing from the parties (including the United
States, which intervened to defend the constitutionality of
the statute) following this Court’s decision in Tennessee v.
Lane. 124 S. Ct. 1978 (2004). Subsequent to that briefing,
the court of appeals affirmed the district court’s holding
that Goodman’s claims against Georgia and the Georgia
Department of Corrections are barred by the Eleventh
Amendment’s protection of state sovereign immunity.
App., infra, 19a.’ The court of appeals relied on its decision
in Miller v. King, 384 F.3d 1248 (11th Cir. 2004), in which

* The court of appeals held that Goodman’s claims for injunctive
relief against state officials in their official capacities could proceed
under the doctrine of Ex parte Young, 209 U.S. 123 (1908), and it
reversed the district court’s conclusion that Goodman’s transfer out of
GSP mooted the request for injunctive relief because Goodman had
been transferred back to GSP in the interim. See App., infra, 20a-21a.

6

the same three-judge panel had ruled, again after supple-
mental briefs addressing the impact of Lane, that “Title II
of the ADA, as applied in the Eighth-Amendment context
to state prisons, fails to meet the requirement of propor-
tionality and congruence” that this Court uses to assess
the validity of Fourteenth Amendment legislation. Jd. at
1273, 1275 (citing City of Boerne v. Flores, 521 U.S. 507,
533 (1997)). Title II’s abrogation of state sovereign immu-
nity was thus not a valid exercise of Congress’s enforce-
ment authority under Section 5 of the Fourteenth
Amendment, in the court’s view, even in a case like Miller
or the present case, where the plaintiff states a claim that
the conditions challenged under Title II also violate his
constitutional rights. See id. at 1276 n.34.

5. The court of appeals denied a petition for rehear-
ing en banc filed by intervenor the United States. App.,
infra, 29a-30a.

REASONS FOR GRANTING THE PETITION

This case concerns a matter of longstanding dis-
agreement in the lower courts. Before this Court’s decision
in Pennsylvania Department of Corrections v. Yeskey, 524
U.S. 206 (1998), the courts of appeals divided over the
question whether Title II of the ADA applied to the opera-
tions of state prisons. The courts that rejected such an
application of the ADA argued that an effort by Congress
to extend its protections to inmates with disabilities would
raise serious constitutional concerns. See, e.g., Amos v.
Maryland Dep't of Pub. Safety & Corr. Servs., 126 F.3d 589,
603-604 (4th Cir. 1997), vacated and remanded in light of
Yeskey, 524 U.S. 935 (1998). In Yeskey, however, this Court

7

held that Title II of the ADA does by its terms apply to the
operation of state prisons. See Yeskey, 524 U.S. at 210-212.
But the Court reserved the question whether Congress
had constitutional authority to extend the ADA to that
context. See id. at 212-213.

In Tennessee v. Lane, 124 S.Ct. 1978 (2004), this
Court held that Title II of the ADA represents a proper
exercise of Congress’s power under Section 5 of the Four-
teenth Amendment, and thus could abrogate state sover-
eign immunity, at least insofar “as [the statute] applies to
the class of cases implicating the accessibility of judicial
services.” Id. at 1993. Since Lane, the lower courts have
addressed Congress's Section 5 authority to abrogate immu-
nity to Title II suits in a variety of other contexts. In the
prison context, the courts of appeals that have addressed this
question already are in conflict with one another. Compare
this case and Miller v. King, 384 F.3d 1248, 1275 (11th Cir.
2004) (application of Title II to prison context exceeds
Congress’s Section 5 authority), with Phiffer v. Columbia
River Corr. Inst., 384 F.3d 791, 792-793 (9th Cir. 2004)
(upholding Section 5 basis for Title II in prison case), pet.
for cert. filed, No. 04-947 (Jan. 15, 2005).

This case presents the ideal vehicle to resolve that
conflict in the Circuits. The extensive factual record
developed here gives the Court the opportunity to address
each of the three distinct Section 5 arguments regarding
the constitutionality of the ADA’s abrogation that have
been addressed by the courts of appeals: that Title II is
proper Section 5 legislation in all of its applications, that
the statute is proper Section 5 legislation in its applica-
tions to the class of cases involving prisons; and that Title
II is proper Section 5 legislation at least in those cases in
which the statute provides a remedy for a violation of the

8

plaintiff ’s constitutional rights. In Columbia River Correc-
tional Institute v. Phiffer, No. 04-947, in which a petition
for writ of certiorari is pending, this Court would not be
able to reach all of these points of conflict between the
Circuits, because that case contains no claim that the
alleged Title II violation also violates the Constitution.
Accordingly, the Court should grant certiorari in the
instant case to resolve the circuit conflict.

A. The Courts Of Appeals Are In Conflict Regard-
ing Whether, And To What Extent, The ADA
Validly Abrogates State Sovereign Immunity In
The Prison Context

1. There is a clear and direct conflict among the
Circuits regarding the question whether Congress has
Section 5 power to abrogate state sovereign immunity for
private suits under Title II of the ADA in cases involving
state prisons. In the case under review, the Eleventh
Circuit held that such an application of the ADA went
beyond Congress’s power. In so holding, the court of
appeals followed its decision in Miller v. King, 384 F.3d
1248, 1275 (11th Cir. 2004), which affirmed the dismissal,
on Eleventh Amendment grounds, of the Title II claim of
another Georgia prisoner who uses a wheelchair.

In Miller, as here, the Eleventh Circuit held that the
plaintiff could proceed under Section 1983 with his claim
that state officials violated his Eighth Amendment rights.
See id. at 1261-1263. But the court nonetheless held that
the plaintiff’s Title II claim was barred by the Eleventh
Amendment. The Eleventh Circuit believes that Lane’s
holding that Title II validly abrogated state sovereign
immunity in the access-to-courts context cannot extend to
the prison context because, in that court’s view, Title II

~

9

“goes well beyond ihe basic, humane necessities guaran-
teed by the Eighth Amendment.” Miller, 384 F.3d at 1274.
Accordingly, the court held that “Title II of the ADA, as
applied in the Eighth-Amendment context to state prisons,
fails to meet the requirement of proportionality and
congruence.” Jd. at 1275. The court below followed its
Miller holding to rule that Goodman's Title II damages
claim in the instant case is barred by the Eleventh Amend-

ment. See App., infra, 19a.

The instant case directly conflicts with the Ninth
Circuit’s decision in Phiffer, which held “that the State is
not entitled to Eleventh Amendment immunity under
Title II of the ADA.” 384 F.3d at 792. There can be little
doubt that the conflict in the Circuits will persist. In
Phiffer, a prisoner alleged that Oregon prison authorities’
failure to accommodate his disability caused him severe
physical pain. He sued under Title II and Section 504 of
the Rehabilitation Act, 29 U.S.C. § 794, and the district
court denied a motion by the State for judgment on the
pleadings on sovereign immunity grounds. Phiffer, 384
F.3d at 792. On interlocutory appeal prior to this Court’s
decision in Lane, the Ninth Circuit affirmed the denial of
the motion to dismiss. See Phiffer v. Columbia River Corr.
Inst., 63 Fed. Appx. 335 (9th Cir. 2003). Following Lane,
this Court granted certiorari, vacated, and remanded for
further consideration. See 124 S.Ct. 2386 (2004). On
remand, the Ninth Circuit concluded that its initial
resolution of the case was “consistent with Lane’s hold-
ing,” and it “reissue(d its] original disposition in per
curiam form without further amendment.” Phiffer, 384
F.3d at 792.

The Phiffer court relied on a series of pre-Lane Ninth
Circuit cases, one of which arose in the prison context, as

10

“clearly command|ing] the conclusion that the State is not
entitled to Eleventh Amendment immunity under Title II
of the ADA.” Ibid. (citing Dare v. California, 191 F.3d 1167,
1175 (9th Cir. 1999), cert. denied, 531 U.S. 1190 (2001);
Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997),
cert. denied, 524 U.S. 937 (1998)). Those earlier cases held
that Title II, in all of its application:, «as a valid exercise
of Congress’s Section 5 power. See Dave, 191 F.3d at 1175-
1176 (holding that Title II “as a whole constitutes a proper
exercise of Congress’ power to legislate under § 5”); Clark,
123 F.3d at 1270 (holding generally that “both the ADA
and the Rehabilitation Act were validly enacted under the
Fourteenth Amendment”). Although the State contended
that those cases were inconsistent with Board of Trustees
v. Garrett, 531 U.S. 356 (2001), the Ninth Circuit re-
sponded that it had already “revisit[ed]” its precedent and
had “already rejected the State’s claims.” Phiffer, 384 F.3d
at 792-793 (citing Hason v. Medical Bd., 279 F.3d 1167,
1171 (9th Cir. 2002), cert. dismissed, 538 U.S. 958 (2003);
Thomas v. Nakatani, 309 F.3d 1203, 1209 (9th Cir. 2002);
Lovell v. Chandler, 303 F.3d 1039, 1050-1051 (9th Cir.
2002), cert. denied, 537 U.S. 1105 (2003)). Accordingly, the
court “decline(d) further review of [its] settled precedent,”
despite the concurrence’s statement that the “continued
vitality” of those cases “is uncertain” after Lane. Id. at 793
(O’Scannilain, J., concurring).

Other courts have also demonstrated confusion
regarding the effect of Lane on prison litigation brought

11

under Title II of the ADA.* This Court's intervention is
necessary to resolve this enduring conflict.

2. The Eleventh Circuit’s ruling also implicates a
broader confusion regarding the method for applying the
“congruence and proportionality” analysis established in
City of Boerne v. Flores, 521 U.S. 507, 520 (1997), to Title
II of the ADA. In its opinion below, the court of appeals
held that Congress lacks power under the enforcement
provision of the Fourteenth Amendment to abrogate state
sovereign immunity when applying the ADA to the prison
context — even in a case in which the conduct that violates
the ADA also violates the Constitution itself. Although the
court allowed Goodman’s Eighth Amendment claims
brought under Section 1983 to proceed against the state
officials in their individual capacities, it concluded that
Goodman’s ADA claims against the State - based on

Court had subject matter jurisdiction over the plaintiff’s claims”), and
Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 442 (S.D.N_Y.
2004) (Title II claim that prison forced prisoner who had difficulty

12

precisely the same conduct — are barred by sovereign
immunity. App., infra, 19a.

By contrast, other Circuits have concluded that, at the
very least, Title II represents a proper exercise of Con-
gress’s Section 5 power in cases in which the statute
provides a remedy merely for a violation of the plaintiff’s
constitutional rights. In Garcia v. S.U.N_Y. Health Sciences
Center, 280 F.3d 98 (2d Cir. 2001), the Second Circuit held
that Congress could abrogate a State’s sovereign immunity
from damage actions for violations of Title II “motivated
by discriminatory animus or ill will based on the plain-
tiff’s disability” because “actions based on discriminatory
animus or ill will towards the disabled are generally the
same actions that are proscribed by the Fourteenth
Amendment - i.e., conduct that is based on irrational
prejudice or wholly lacking a legitimate government
interest.” Garcia, 280 F.3d at 111. Similarly, the Sixth
Circuit held in Popovich v. Cuyahoga County Court of
Common Pleas, 276 F.3d 808 (6th Cir.) (en banc), cert.
denied, 537 U.S. 812 (2002), that Congress had validly
abrogated a State’s immunity to a Title II claim when “[a]s
applied to the case” before the court, the ADA’s require-
ment “serves to protect [the plaintiff’s) due process right.”
276 F.3d at 815.

A panel of the First Circuit elaborated on the basis for
these holdings in Kiman v. New Hampshire Department of
Corrections, 301 F.3d 13 (ist Cir. 2002). In Kiman, a
prisoner sued for ADA violations that also constituted
actual violations of the Eighth Amendment. The panel
held that “Congress acted within its powers in subjecting
the states to private suit under Title II of the ADA, at least
as that Title is applied to cases in which a court identifies
a constitutional violation by the state.” Jd. at 24. Citing

13

United States v. Raines, 362 U.S. 17 (1960), the panel
noted that “[glenerally, a court will not strike down a
statute as unconstitutional unless it is convinced that
the statute is unconstitutional on the facts of a specific
case, that is, as applied to the party that argues for
unconstitutionality.” 301 F.3d at 20. The panel con-
cluded that “ there is no affront to protected dignity or
fiscal interests from requiring the states to appear and
defend their conduct when Congress has provided the
remedy of a private suit for a specific constitutional
violation. Without such concerns at stake, we follow the.
traditional approach of taking small steps and consider-
ing separately the separate applications of a statute.”
Id. at 22.*

In holding to the contrary, the Eleventh Circuit
deemed it irrelevant that the plaintiff invoked Title II to
challenge actions that - according to the court’s own
opinion on the Section 1983 claim - violate the Eighth
Amendment. The court read Lane as requiring that the
Section 5 basis for Title II be “considered context by
context,” Miller, 384 F.3d at 1276 n.34, meaning that it
had to consider the abrogation’s constitutionality in one
fell swoop for all potential suits that could be brought in
the state prison context. Because it concluded that other
applications of Title II in the state prison context went

* On rehearing en banc in Kiman, the First Circuit affirmed, by an
dismissing the case on sovereign immunity grounds. See Kiman v. New
Hampshire Dep*t of Corr., 332 F.3d 29 (1st Cir. 2003) (en banc). This
Court subsequently granted certiorari, vacated the judgment, and
remanded for further consideration in light of Lane. See 124 S. Ct. 2387
(2004). The case was returned to the district court for further proceed-

14

beyond what is “necessary to enforce the Eighth
Amendment’s ban on cruel and unusual punishment,” the
court held that the statute could not validly abrogate state
sovereign immunity in any case “in the Eighth-Amendment
context [involving] state prisons.” Id. at 1274-1275.

The conflict between the Ninth and Eleventh Circuits
on the application of Title II to state prisons thus reflects a
deep disagreement in the lower courts over the levels of
generality at which congruence and proportionality analy-
sis may be conducted. This Court’s intervention is neces-
sary to resolve that disagreement.

B. The Eleventh Circuit’s Sovereign Immunity
Ruling Is In Error

In Lane, this Court reserved the question whether
Title II of the ADA is valid Section 5 legislation in all of its
applications. See Lane, 124 S.Ct. at 1992-1993. But
whatever the answer to that broad question, the Eleventh
Circuit’s decision involving constitutional violations in the
state prison context clearly contravenes the principles this
Court set forth in Lane. -

1. The Eleventh Circuit’s holding that Title II ex-
ceeds Congress’s Section 5 authority in tne prison context
is inconsistent with Lane’s holding that Title II is proper
Section 5 legislation at least insofar “as it applies to the
class of cases implicating the xccessibility of judicial
services.” Lane, 124 S. Ct. at 1993. The Court noted that
the Due Process Clause, and various Bill of Rights provi-
sions incorporated therein, guarantee individuals with
disabilities a “right of access to the courts,” id. at 1988,
and that this right imposes on States “a number of af-
firmative obligations” to facilitate court access, id. at 1994.

15

The Court also noted a substantial record of state viola-
tions of those obligations. See id. at 1989-1992. In light of
that record, the Court concluded that, at least as applied
to guarantee access to the judicial system, Title II is “a
reasonable prophylactic measure, reasonably targeted to a
legitimate end.” Jd. at 1994.

For similar reasons, Title II is an appropriate exercise
of Congress’s Section 5 authority to safeguard the rights of
an historically marginalized population in “the prison
context, when the government’s power [over an individual]
is at its apex.” Johnson v. California, 543 U.S. __, __,
2005 WL 415281, at *8 (Feb. 23, 2005). As in the access-to-
courts context addressed in Lane, the Constitution im-
poses on states a series of affirmative obligations with
respect to those in their custody. See DeShaney v. Winne-
bago County Dep't of Social Servs., 489 U.S. 189, 198
(1989) (recognizing that States have “affirmative duties of
care and protection with respect to,” inter alia, prisoners).
In particular, the Eighth Amendment, as incorporated in
the Fourteenth Amendment, requires States to “provide
humane conditions of confinement; prison officials must
ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer
v. Brennan, 511 U.S. 825, 832 (1994). Of particular impor-
tance to prisoners with disabilities, state officials violate
the Constitution when they act with “deliberate indiffer-
ence to serious medical needs of prisoners.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976).

And the Constitution imposes on States a range of
other affirmative obligations in the prison context, many
of which are implicated by the facts of the instant case
based on Goodman’s demonstration that he was deprived

16

of access to the law library and the chapel. See, e.g., Lewis
v. Casey, 518 U.S. 343, 351 (1996) (state must provide
prisoners with “meaningful access to the courts”) (internal
quotation marks omitted); Cruz v. Beto, 405 U.S. 319, 322
n.2 (1972) (state must afford prisoners “reasonable oppor-
tunities” to exercise their religion); Vitek v. Jones, 445 U.S.
480, 495-496 (1980) (state must provide procedural protec-
tions before transferring prisoner to a mental hospital).

These affirmative obligations must be viewed against
the backdrop of the State’s general obligation under the
Equal Protection Clause not to engage in arbitrary or
irrational discrimination on the basis of disability. See City
of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432,
447-450 (1985). As this Court recently noted, the right to
be free from invidious discrimination “is not a right that
need necessarily be compromised for the sake of proper
prison administration.” Johnson, 543 U.S. at ___, 2005 WL
415281, at *7. Compliance by prisons with the Equal
Protection Clause “is not ouly consistent with proper
prison administration, but also bolsters the legitimacy of
the entire criminal justice system.” Jbid.

Unfortunately, States have frequently violated the
constitutional rights of prisoners with disabilities. Congress
found that “discrimination against individuals with disabili-
ties persists in such critical areas as * * * institutionaliza-
tion,” 42 U.S.C. § 12101(a\3), a finding this Court said “can
be thought to include penal institutions.” Yeskey, 524 U.S. at
211. This Court has also noted the pattern of state violations
of the constitutional rights of disabled prisoners, see Lane,
124 S.Ct. at 1989 & n.11, and lower-court cases provide

17

“confirming judicial documentation” of it. Garrett, 531 U.S.
at 376 (Kennedy, J., concurring).”

Given the affirmative obligations the Constitution
imposes on States in their treatment of prisoners with
disabilities, and the extensive history of state violations of
those obligations, the conclusion that the Court reached in
Lane’s access-to-courts context applies equally here:
“Judged against this backdrop, Title II's affirmative
obligation to accommodate persons with disabilities in
[state prisons] cannot be said to be ‘so out of proportion to
a supposed remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent,
unconstitutional behavior.” Lane, 124 S.Ct. at 1994
(quoting City of Boerne v. Flores, 521 U.S. 507, 532 (1997)).
The Eleventh Circuit was wrong to reach a contrary
conclusion, and the issue is squarely presented for this
Court’s review.

2. The court of appeals contravened the principles
set forth in Lane in a second way — by holding that Title II

* See, e.g., Weeks v. Chaboudy, 984 F.2d 185, 187 (6th Cir. 1993)
(denial of wheelchair to prisoner with paralysis, resulting in prisoner's
inability to shower himself or leave his cell, violated Eighth Amend-
ment); Beckford v. Irvin, 49 F. Supp. 2d 170, 180 (W.D.N.Y. 1999)
(Eighth Amendment violation existed where plaintiff “was regularly
deprived use of his wheelchair for extended periods of time, plaintiff
was unable to shower, and .. . he was not allowed to use a cup in order
to try to bathe by taking water out of his cell toilet or drinking foun-
tain”); Clarkson v. Coughlin, 8¥3 F. Supp. 1019, 1043 (S.D.N.Y. 1995)
(denial of interpretive services and assistive devices to deaf prisoners
during medical treatment violated Eighth Amendment where “commu-
nication between the patient and medical personnel [was] essential to
the treatment in question”); Casey v. Lewis, 834 F. Supp. 1569, 1582 (D.
Ariz. 1993) (failure to provide accessible bathrooms, showers, and cells
violated Eighth Amendment).

18

—

could not validly abrogate state sovereign immunity even
in a case in which the statute does nothing more than
provide a remedy for an actual violation of the plaintiff’s
constitutional rights. The Eleventh Circuit read Lane as
requiring the abrogation issue to be “considered context by
context.” Miller, 384 F.3d at 1276 n.34. Under that court’s
reading, unless Title II is valid Section 5 legislation as
applied to all prison cases it cannot be valid Section 5
legislation as applied to any prison case — even one in
which the plaintiff’s constitutional rights have been
violated. That all-or-nothing approach reflects a funda-
mental misreading of Lane.

In Lane, 124 S. Ct. at 1993 & n.19, this Court reaf-
firmed the holding in Raines, 362 U.S. at 24-25, that a
statute must be upheld if Congress had power to reach the
particular fact setting addressed by the complaint — even if
other applications of the statute might exceed congres-
sional power. Congress plainly has Section 5 power to
provide a remedy for an actual violation of the Fourteenth
Amendment, including Bill of Rights provisions incorpo-
rated by the Due Process Clause. See City of Boerne, 521
U.S. at 519-520 (Section 5 gives Congress power to provide
remedies for constitutional violations); Lane, 124 S. Ct. at
2010 (Scalia, J., dissenting) (agreeing that Congress has
Section 5 power to authorize lawsuits in cases of actual
constitutional violations). Under the principles set forth in
Lane, then, Title II’s abrogation of state sovereign immu-
nity must, at the very least, be upheld in a case such as
this in which the statute is invoked to provide a remedy
for an actual violation of the plaintiff’s Fourteenth
Amendment rights.

As the court of appeals acknowledged, App., infra, 3a,
Goodman invokes Title II to challenge conduct that also

19

violates his Eighth Amendment rights against cruel and
unusual punishment, rights that are incorporated in the
Fourteenth Amendment’s Due Process Clause. See Robin-
son v. California, 370 U.S. 660, 666 (1962). Accordingly,
“‘the complaint here call[s} for an application of the
statute clearly constitutional’” under the Fourteenth
Amendment. Lane, 124 S.Ct. at 1993 n.19 (quoting
Raines, 362 U.S. at 24). Title II of the ADA can therefore
properly be applied in this case even if it would exceed
Congress’s Section 5 power as applied to other prison
cases. The court of appeals was wrong to rule otherwise.

C. This Case Presents The Best Opportunity To
Resolve The Matters On Which The Courts Of
Appeals Are In Conflict

This case presents the Court with a clear opportunity
‘o resolve the conflicts detailed above. Columbia River
Correctional Institute v. Phiffer, No. 04-947, which is
currently pending on a petition for a writ of certiorari, also
presents the question of the validity of Title II’s abrogation
of state sovereign immunity in the prison setting, but that
case likely would not provide the Court the opportunity to
resolve the matters that have created conflict and confu- -
sion in the Circuits.

The parties in this case have developed an extensive
factual record, and the court of appeals held that the
allegations in the complaint — which are mirrored by
evidence presented at the summary judgment stage —
state a claim for violation of the Eighth Amendment. As a
result, this case presents the Court with an opportunity to
address each of the three distinct arguments, discussed
above, that the courts of appeals have confronted in
deciding whether Title II is valid Section 5 legislation in

20

the prison context: that the statute is valid Section 5
legislation in all of its applications, as the Ninth Circuit
held; that it is valid Section 5 legislation as applied to
prison cases, a proposition the Eleventh Circuit rejected;
and that it is valid Section 5 legislation as applied to cases
in which the defendant violated the plaintiff’s constitu-
tional rights, a proposition the Eleventh Circuit also
rejected but which a number of courts of appeals espoused
prior to Lane, and which finds support in Lane itself.

Phiffer, by contrast, has not received the kind of
factual development that will permit informed considera-
tion of the as-applied approach to Section 5 analysis that
this Court adopted in Lane. Indeed, because the Phiffer
court did not receive supplemental briefing from the
parties in light of Lane, this Court would be forced to
decide the question of Title II’s as-applied constitutionality
as a matter of first view, without any analysis of the issue
in the lower courts. Nor, unlike here, would this Court
have the benefit of a court of appeals opinion that actually
elucidated the ways in which the State’s treatment of the
plaintiff implicated his constitutional rights. And because
the Phiffer plaintiff has not alleged that his treatment
violated his constitutional rights, that case would not
present this Court with an opportunity to address the
question whether Section 5 empowers Congress to apply
Title II in cases in which the statute provides a remedy for
violations of the plaintiffs’ constitutional rights. This case,
unlike Phiffer, presents the best opportunity for the Court
to resolve the issues that have drawn the Circuits into
conflict.

As a consequence of the Eleventh Circuit’s decision in
this case, disabled state prisoners in the States of Alabama,
Florida, and Georgia (who together imprison 12 percent of

21

the 1.3 million prisoners incarcerated in state prisons
nationwide, see Bureau of Justice Statistics, U.S. Dep’t of
Justice, Prisoners in 2003, at 4 tbl. 4 (Nov. 2004)), have
been deprived of the opportunity to enforce fully their
federal rights under the ADA in contrast with similarly-
situated prisoners in other States. That disparity should
not be permitted to continue.

CONCLUSION
For the reasons set forth above, the petition for a writ
of certiorari should be granted.
Respectfully submitted,
Drew S. Days, III
SAMUEL R. BAGENSTOS Counsel of Record
1 Brookings Drive BETH S. BRINKMANN
Box 1120 SETH M. GALANTER
St. Louis, MO 63130 MORRISON & FOERSTER LLP
(314) 935-9097 2000 Pennsylvania Ave., NW
Washington, DC 20006
(202) 887-1500
Attorneys for Petitioner

March 9, 2005

la

APPENDIX A
[DO NOT PUBLISH)
IN THE 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,
versus
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

(SEPTEMBER 16, 2004)
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

2a

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”).

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 damages 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-
dependant paraplegic, whose injuries include multiple
spinal fractures.

In 1995, Goodman was convicted of aggravated
assault, 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 complaint
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)
O.T. Ray, supervisor of guard shifts at GSP; (8) H. Whim-
bly, guard at GSP; (9) Margaret Patterson, guard at GSP;
and (10) R. King, staff member at GSP. Goodman’s com-
plaint alleges, inter alia, that the defendants, in their
individual and official capacities, were deliberately indif-
ferent to his (1) serious medical needs and (2) conditions of
confinement at GSP, in violation of the Eighth Amend-
ment. Goodman sought monetary damages.

Goodman further claims that the defendants dis-
criminated 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.’

* 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
Goodman’s ADA claims for injunctive relief is actually Warden Johnny
Sikes, in his official capacity.

* 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.

4a

Because we are reviewing the dismissal of Goodman’s
Eighth-Amendment claims, we outline the factual allega-
tions in his complaint, assuming all allegations to be true.
Cotton v. Jenne, 326 F.3d 1352, 1357 (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”).

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 continuous disrup-
tive conduct and the special requirements 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 allegations
about the size of his cell appear to be unrelated to discipli-
nary 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

* In a declaration attached to a motion for a TRO, Goodman avers
that he once was in solitary confinement for forty-two straight days.

5a

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 defen-
dants have discriminated against him, based on his
disability, because they have “refused and/or denied and/or
excluded him from participation in 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 “segre-
gated environment” is “unlawful disability-based discrimi-
nation.” 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 classifica-
tion procedures are inadequate because “there are insuffi-
cient staff members to give adequate time to each case,
and staff members are inadequately trained.”

Goodman provides numervus 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

6a

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 amenities,”
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 wheelchair-accessible routes or
rooms throughout the prison. Goodman also details the
programs he has been denied access to, including: “coun-
seling services, educational services, college program,
vocational training, recreation 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

7a

requested cleaning supplies from “S.M.U. Capt. Mr. ~
Brown, Mr. Smith, and Mr. Hall,” and assistance in clean-
ing 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.O. II Whimbly took a toilet set
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 in-
mates with disabilities. Goodman describes one occasion in
which he was transferred from GSP to the federal court

* 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.

8a

building in Atlanta, Georgia, in a vehicle that was not
equipped for wheelchair-bound passengers. 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 con-
sciousness 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 R. Smith “to see someone from
medical . . . but medical refused to see or examine [him].”

In addition to Goodman’s allegations that the defen-
dants 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 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 condi-
tions; 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, Barbara Werth,
L. Waters, J. Bradford, J. Paris, and Lynn O. Smith — “had -

9a

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 magistrate
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 com-
mitted 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)Gi). 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 the 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

10a

Goodman’s ADA claims. Thus, the magistrate 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 exercise of
Congressional power under the Commerce Clause or under
the Fourteenth Amendment, the magistrate judge deter-
mined 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 recommendations
and dismissed Goodman’s § 1983 claims against all defen-
dants and dismissed the ADA claims against all defen-
dants, except for his ADA claims against defendants the
GDOC and the State of Georgia. Goodman was not given
an opportunity to amend his complaint.

E. 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

* Throughout the summary-judgment stage, some of the pleadings
and orders do not name both defendants State of Georgia and the
GDOC. However, we construe those pleadings as filed by both defen-
dants and those orders as relating to both defendants because both
defendants were the named defendants when the district court ordered
that the ADA claims proceed to summary judgment and because both
defendants appear on subsequent court documents.

lla

motion, Goodman attached a statement of undisputed
facts and his own and three other inmates’ affidavits,
which mirrored the allegations in his complaint, 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-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 undisputed
facts and disagreed with Goodman’s affidavits. The defen-
dants 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 recom-
mended that both motions be denied, determining that: (1)
states are no! immune to suit brought under the ADA; (2)
Goodman’s cla m for injunctive relief was not moot despite
his transfer; and (3) there were issues of fact. The magis-
trate judge identified the issues of fact, as follows: (1)
whether the defendants reasonably accommodated Good-
man’s disability; (2) whether Goodman was a “qualified

12a

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 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 injunc-
tive 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 damages and injunctive relief.’

* 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.

” 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 conditions and
preparation; and (5) unsafe conditions in not having fire drills. While
Goodman appeals the dismissal of these claims as well, the district

(Continued on following page)

13a

II. 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 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). Dismissal of the com-
plaint 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 Investments. Inc. v. County of Escambia, Fla.,
132 F.3d 1359, 1367 (11th Cir. 1998) (“[w]hile Fed. R. Civ.
P. 8 allows a plaintiff considerable leeway in framing its
complaint, this circuit, along with others, has tightened
the application 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.”).

court did not err in dismissing these claims, and we affirm their
dismissal without further discussion.

* 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(bX(1). 254 F.3d at 1278. This Court concluded that de novo
review was appropriate because § 1915A(b)(1) tracked the language of
28 U.S.C. § 1915(eX2\BXii). Leal, 254 F.3d at 1279. This Court
previously had determined that because § 1915(e)(2)(BXii) tracks the
language of Federal Rule of Civil Procedure 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

We review the grant of summary judgment de nova,
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, in
their individual and official capacities; and (3) the remain-
ing 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 Gamer and SRemaae, in
their individual and official capacities.

* 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.

15a

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 individual,
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 damages against state
officials in their individual capacities). Consequently, we
affirm the district court’s dismissal of Goodman’s § 1983
claims against the remaining GSP defendants in their
official capacities.

However, we conclude that the district court erred in
dismissing some of Goodman’s § 1983 claims for monetary
damages against the remaining individual defendant
prison officials at GSP, in their individual capacities. We
do so for the following reasons.

A. Eighth Amendment Principles

“Whether one characterizes the treatment received by
{a partially paraplegic inmate] as inhumane conditions of
confinement, failure to attend to his medical needs, or a
combination of both, it is appropriate to apply the ‘deliber-
ate indifference’ standard. ...” Evans v. Dugger, 908 F.2d
801, 804-06 (11th Cir. 1990) (citations omitted). In defining
the deliberate indifference 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 of-
ficial knows of and disregards an excessive risk

16a

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-Amendment
challenges to conditions-of-confinement and failure-to-
attend-to-medical-needs cases. Under the objective -ompo-
nent, a prisoner must prove the condition he complains 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. 337, 347, 101 S. Ct. 2392, 1000 (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 Hud-
son, 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 indif-
ference.” 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

17a

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 reasona-
bly to the risk, even if the harm ultimately was not
averted.” Id. 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 allegations con-
tained 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.

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 allega-
tions. For example, on May 24, 1999, Goodman filed a
“Motion to Amend his Emergency Motion for T.R.O. and/or
PI.” 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 (11th 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

18a

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 regard-
ing 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-fuur hours-a-day without penal justifica-
tion. See Hope v. Pelzer, 536 U.S. 730, 738, 122 S. Ct. 2508,
2514-15 (2002). Second, Goodman has alleged several
instances in which he was forced to sit in his own bodily
waste because prison officials refused to provide assis-
tance.” Third, Goodman has alleged sufficient conduct to
proceed with a § 1983 claim based on the prison staff’s
suppesed “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

* 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 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 standards, 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

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),

[wle emphasize the hypothetical nature of our
holding in this case. If the defendants at later
stages of this litigation, e.g., at summary judg-
ment, can establish that legitimate reasons do in
fact exist and/or the conditions of the confine-
ment are not as harsh or prolonged as alleged,
then a different case will be presented. Addition-
ally, although [Goodman] has specifically alleged
that he advised each defendant personally of the
violations of his constitutional rights only to be
rebuffed, and that each had personal involve-
ment in relevant decisions, development of the
record at summary judgment may reveal that
one or more of the defendants in fact had no per-
sonal involvement or liability.

Id. at 1276 n.5.

IV. ADA Claim for Injunctive Relief

We first affirm the magistrate judge’s grant of sum-
mary 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 II
were moot for the following reasons.

20a

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. Talla-
dega Co., 745 F.2d 1360, 1363 (11th Cir. 1984) (citation
omitted). The “capable of repetition, yet evading review”
doctrine provides an exception to the general rule of
mootness. That doctrine requires “a reasonable expecta-
tion that the same complaining party would be subjected
to the same action again.” Weinstein 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 concluded that the “capable of repetition,
yet evading review” doctrine would not apply in prison
transfer cases if the likelihood of re-transfer was remote
and speculative.

Since the filing of his lawsuit in 1999, Goodman has
been transferred nine times: (1) July 1999, to Lee Arren-
dale 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) January
2004, back to GSP." At oral argument, the government
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 re-
ceived status-report requests from Goodman at GSP as
recently as April 21, 2004.

" The district court’s docket sheet indicated a January 5, 2004,
change of address for Goodman to GSP.

2la

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” doc-
trine 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 amend-
ing his cunplaint 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). Furthermore, the proper defendants on
Goodman’s ADA claims for injunctive relief should be
Warden Sikes and Commissioner Garner, in their official
capacities, not the State of Georgia or the GDOC.” See
Miller, No. 02-13348, slip op. at __.

“ 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’s 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 acquisition, design, construction, operation,
maintenance, use, lease, or management of a state correctional
institution or for any services pertaining to the custody, care, and

(Continued on following page)

22a

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 assistance;
and (3) prison officials are deliberately indifferent to his
needs as a partially paraplegic prisoner; 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 conditions
for the disabled, such as toilets with the necessary support
or handrails. In all other respects, we affirm the district
court’s dismissal of Goodman’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 injunctive
relief under Title II of the ADA. The proper defendants on
Goodman’s ADA claims for injunctive relief are Warden

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 fcr
injunctive relief.

23a

Sikes and Commissioner Garner (or the current Commis-
sioner), in their official capacities.

VACATED, REVERSED, and REMANDED, in part;
AFFIRMED, in part.

24a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

TONY GOODMAN,

Plaintiff, =: ~—sCIVILACTION NO.:
- CV699-012

THE STATE OF GEORGIA, °
Defendant. ;

ORDER
(Filed Dec. 20, 2001)

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 reason-
able accommodations in violation of the Americans With
Disabilities Act. Defendant has filed a Motion for Sum-
mary 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 Prison

25a

which was not equipped to deal with his needs. He con-
tends 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 cleim 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 disposing 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 evidence 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
reasonable doubts regarding the facts should be resolved

26a

in favor of the nonmovant. Adickes, 398 U.S. at 157, 90
S. Ct. at 1608.

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 essential
element to his case on which he will bear the burden of
proof at trial. Jd.; Barfield v. Brierton, 883 F.2d 923, 933
(11th 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)

' 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

27a

DISCUSSION AND CITATION OF AUTHORITY
I. Plaintiffs Claim For Monetary Damages.

The State of Georgia asserts that it is entitled to
Eleventh Amendment immunity from money damages.
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 Garrett decision addresses whether states
are immune from Title I of the ADA, but does not mention
state immunity from Title II suits, such as Plaintiff is
pursuing here. Garrett, 121 S. Ct. at 960 n.1. In William-
son 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 Amend-
ment.

Il. Plaintiff’s Claim For Injunctive Re‘ief.

Plaintiff has also, on numerous occasions, requested a
preliminary injunction. Plaintiff has requested, as ad-
dressed by Defendant’s first Motion for Summary Judg-
ment, 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

28a

that Plaintiff was transferred from Georgia State Prison to
Lee Arrendale State Prison prior to July 1999. (Dkt. No.
17.) Plaintiff was transferred 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 transferred back to Georgia State Prison in Feb-
ruary 2000. (Dkt. No. 39.) Plaintiff was moved to Augusta
State Medical Prison in March 2000. (Dkt. No. 45.) Plain-
tiff 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 2001. (Dkt.
No. 56.)

Plaintiff brought this claim in January 1999, claiming
that Georgia State Prison did not comply with the Ameri-
cans with Disabilities Act. Plaintiff was transferred out of
GSP in July 1999, and has spent time in numerous insti-
tutions, 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 Humane 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 judg-
ment is GRANTED to Defendant.

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

/s/ James E. Graham
JAMES E. GRAHAM
UNITED STATES MAGISTRATE JUDGE

29a

APPENDIX C
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 02-10168-GG

TONY GOODMAN,
Plaintiff-Appellant,
versus
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

FOR REHEARING EN BANC (Opinior.

llth Cir., 19_,___ F.2d __).
(Filed Dec. 9, 2004)
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 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 _
UNITED STATES CIRCUIT JUDGE

3la

APPENDIX D
The Constitution of the United States provides, in part:
AMENDMENT VIII

Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.

AMENDMENT XI

The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced 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 protec-
tion of the laws.

SECTION 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article.

32a

The Americans With Disabilities Act of 1990, 42 U.S.C.
12101 et seg., provides in part:

§ 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 increas-
ing as the population as a whole is growing older;

(2) historically, society has tended to isolate and
segregate 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 disabili-
ties 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;

(4) unlike individuals who have experienced dis-
crimination on the basis of race, color, sex, national origin,
religion, or age, individuals who have experienced dis-
crimination on the basis of disability have often had no
legal recourse to redress such discrimination;

(5) individuals with disabilities continually encoun-
ter various forms of discrimination, including outright
intentional exclusion, the discriminatory effects of archi-
tectural, transportation, and communication barriers,
overprotective rules and policies, failure to make modifiva-
tions to existing facilities and practices, exclusionary

33a

qualification standards and criteria, segregation, 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, economically, 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 political
powerlessness 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;

(8) the Nation’s proper goals regarding individuals
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 unneces-
sary 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.

34a

(b) Purpose
It is the purpose of this chapter —

(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 amendment
and to regulate commerce, in order to address the major
areas of discrimination faced day-to-day by people with
disabilities.

§ 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 district,
or_ other instrumentality of a State or States or local
government; and

35a

(C) the National Railroad Passenger Corporation,
and any commuter authority (as defined in section
24102(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 reason-
able modifications to rules, policies, or practices, the
removal of architectural, communication, or transporta-
tion barriers, or the provision of auxiliary aids and ser-
vices, meets the essential eligibility requirements for the
receipt of services or the participation 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 dis-
ability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public
- entity, or be subjected to discrimination by any such entity.

§ 12133. Enforcement

The remedies, procedures, and rights set forth in section
794a of title 29 shall be the remedies, procedures, and
rights this subchapter provides to any person alleging
discrimination on the basis of disability in violation of
section 12132 of this title.

36a

§ 12202. State immunity

A State shall not be immune under the eleventh amend-
ment 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, reme-
dies (including remedies both at law and in equity) are
available for such a violation to the same extent as such
remedies are available for such a violation in an action
against any public or private entity other than a State.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0079%3A02. Public record. Not legal advice.