Appendix — Wilson v. Armstrong

Supreme Court, U.

Pl U.S.

7 LED

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OFFIC: OF THE Ciepy

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

PETE WILSON, et al., Petitioners,

v.

JOHN ARMSTRONG, et al., Respondents.

STATE OF CALIFORNIA, et al., Petitioners,

v.

DERRICK CLARK, et al., Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

PETER J. SIGGINS

Senior Assistant Attorney General

*JAMES M. HUMES

Supervising Deputy Attorney General

WILLIAM JENKINS

Deputy Attorney General

*Counsel of Record

50 Fremont St., Room 300

San Francisco, CA 94105

Telephone: (415) 356-6037

Fax: (415) 356-6070

Counsel for Petitioners

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ARMSTRONG; JOHN

AMAURIC; RICHARD PONCIANO;

JACK SWENSEN; BILLY BECK; JUDY

FENDT; WALTER FRATUS; ROY

ZATTIERO,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA, No. 96-16870

Intervenor, D.C. No.

CV-94-02307-CW

OPINION

PETE WILSON; JOSEPH SANDOVAL;

JAMES GOMEZ, DIRECTOR,

Department of Corrections; KYLE S.

McKINSEY; KEVIN CARRUTH; DAVID

TRISTAN; MARISELA MONTES,

Deputy Director of the Parole and

Community Services Division.

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted

June 9, 1997--San Francisco, California

Filed August 27, 1997

Before: Alfred T. Goodwin, Dorothy W. Nelson, and

Stephen S. Trott, Circuit Judges.

Opinion by Judge Goodwin

SUMMARY

Individual Rights/Disabilities

The court of appeals affirmed a judgment of the

district court. The court held that state prison inmates

can sue correctional officials to enforce their rights under

the Americans with Disabilities Act and the Rehabilitation

Act.

Appellee John Armstrong and other California

prisoners and parolees with disabilities brought a class

action under the Americans with Disabilities Act (ADA)

and the Rehabilitation Act (RA). The parties stipulated

that some prison facilities maintained certain procedures

and programs that violated the statutes.

The district court denied a defense motion for

summary judgment on the ground of Eleventh

Amendment sovereign immunity and issued a remedial

order and an injunction requiring the defendants to submit

detailed plans for complying with the ADA and the RA.

The court of appeals denied the defendants’ petition

under 28 U.S.C. § 1292(b) to bring an interlocutory

appeal.

The district court specifically ordered that as a

component of the remedial plan, the Department of

Corrections was to cluster class members with certain

disabilities at designated institutions and parole facilities.

The court also directed that the plan address specific

substantive concerns of the inmates.

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The correctional officials appealed, contending that

the ADA and RA do not apply to state prison inmates,

and that Eleventh Amendment sovereign immunity barred

the action.

The inmates contended that the court of appeals

lacked jurisdiction to review the injunction because the

previous discretionary denial of permission to appeal

under § 1292(b) barred the defendants from raising in any

interlocutory appeal their claims regarding the application

of the statutes to prisons. The inmates also asserted that

the remedial order and the injunction were not appealable

as of right under § 1292(a) because the underlying

judgment required only the development of plans for

complying with the ADA and the Ra, and was therefore

non an "injunction." On the Eleventh Amendment issue,

the inmates cited Ex parte Young, 209 U.S. 123 (1908),

which established an exception to state sovereign

immunity.

[1] Interlocutory appeals under § 1292(a) are "by

right," while those under § 1292(b) are “by permission."

A denial of permission to appeal under § 1292(b) does

not foreclose appeal under § 1292(a). [2] A number of

circuits have held that an order requiring submission of a

remedial plan is generally not an injunction that is

reviewable interlocutorily under § 1292(a)(1). [3] These

circuits have recognized two exceptions: a normally non-

appealable order to submit a plan may be appealable

when it sufficiently specifies the content of the plan, and

[4] an appeal is not premature if delaying it would not

clarify the questins on appeal and the specifications of the

plan would not alter in a material way the issues that

would be presented to the court of appeals.

[5] This appeal met both exceptions. The district

court prescribed the contents of the plan with some

specificity, and directed that the plan address specific

substantive concerns of the inmates. [6] The district

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court’s order made the content and scope of the remeidal

scheme sufficiently clear to enable appellate review. [7]

The plan the defendants would ultimately submit would

not have altered appellae perspective on the signle issue

the defendants raised: whether the ADA and the RA

apply to state prison inmates. [8] The court of appeals

had jurisdiction to entertain the appeal.

[9] Both the ADA and the RA have been applied in

the state prison context. [10] Even in light of recognized

federalism concerns, the plain language of the ADA and

the RA and prior interpretations of it supported

application of the statutes to state prisons.

[11] The RA applies broadly to all aspects of state

and local governance. Congress intended to apply the RA

to any program or activity receiving federal financial

assistance, including state prisons. [12] The ADA is

similarly expansive. Since Congress has directed that the

ADA and the RA be construed consistently, the term

"program" in the ADA can be read in light of prior cases

concerning the RA to encompass prison activities. [13]

Nothing in the legislative history of the RA or the ADA

reflects an intent by Congress to exclude prisons or

prisoners from the reach of the statutes.

[14] Inmates may be considered "qualified

individuals" for purposes of the ADA and the Ra.

Inmates "qualify" for particular programs and services

provided by the prison system in the sense that they must

meet certain criteria for participating. The defendants’

interpretation would have immunized from the reach of

these statutes any compulsory service provided by the

State, such as public education or jury service.

[15] Some services and programs that prisons provide

can be seen as benefits to the inmates. More significantly,

the ADA and the RA do not merely protect disabled

individuals from denial of benefits. They also prevent

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disabled individuals from being excluded from

participation in or subjected to discrimination under any

state program or activity, and prohibit discriminaiton by an

public entity. Whether the inmates benefit from the

programs is irrelevant.

[16] In passing the ADA and the RA, Congress

articulated its judgment that discrimination against

individuals with disabilities will not be tolerated, and it

deliberately drafted the statutes to include language

reaching into the state sphere. [17] The ADA and the

RA apply to inmates and parolees in the state correctional

system.

[18] Under Ex parte Young, the Eleventh Amendment

is no bar to federal jurisdiction over a suit against a state

official that seeks only prospective injunctive relief in

order to end a continuing violation of federal law. Even

when the relief sought may have a substantial ancillary

effect on the state treasury, a suit against state officials

may proceed so long as the releif serves directly to bring

an end to a present violation of federal law.

[19] The defendants did not contest that the suit

sought only prospective injunctive relief to end continuing

violations of the ADa and the RA. No court has carved

out an exception to Ex parte Young on the basis of the

complexity and scope of the prospective injunctive relief

sought. Many have permitted suits to proceed when

plaintiffs sought comprehensive relief similar to the refors

the plaintiffs sought in this case. There was no bases for

creating such an exception.

[20] Young is not limited to violations of federal

constitutional law; it applies to suits alleging violations of

federal statutes. [21] Sovereign immunity presented no

bar to the suit.

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COUNSEL

James M. Humes, Deputy Attorney General, San

Francisco, California, for the defendants-appellants.

Eve H. Shapiro, Howard, Rice Nemerovski, Canady, Falk

& Rabkin, San Francisco, California; Donald Specter,

Prison Law Office, San Quentin, California, for the

plaintiffs-appellees.

Seth M. Galanter, United States Department of Justice,

Washington, D.C., for intervenor/amicus curiae United

States of America.

OPINION

GOODWIN, Circuit Judge:

California state officials appeal an injunction entered

in a class action brought by California state prison inmates

and parolees with disabilities, who sought relief for

violations of the Americans with Disabilities Act ("ADA"),

42 U.S.C. § 12131-34, and the Rehabilitation Act of 1973

("RA"), 29 U.S.C. § 794. The district court denied the

defendants’ motion for summary judgment based on the

Eleventh Amendment, found that the defendants had

violated both statutes, and entered a remedial order and

injunction directing them to develop a plan for compliance

with the statutes. The defendants appeal, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

A certified class of all present and future California

state prison inmates and parolees with disabilities sued

California state officials in their official capacities, seeking

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injunctive relief for violations of the RA and the ADA in

state prisons. The parties stipulated that some prison

facilities lack adequate emergency evacuation plans for

prisoners with disabilities, that the range of vocational

programs for disabled inmates is more limited than the

range provided for non-disabled prisoners, and that some

disabled inmates have been improperly classified for work

and educational purposes so as to deny them the sentence

reduction credits afforded to other inmates.

The defendants do not challenge the content of the

injunction or the district court’s finding that they violated

the statutes. They argue only that the ADA and RA do

not apply to state prisons and that the Eleventh

Amendment bars this suit in federal court.

Ii. JURISDICTION

We address first the plaintiffs’ contentions that we

lack jurisdiction to consider the appeal of the injunction.

See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

541 (1986) ("[E]very federal appellate court has a special

obligation to satisfy itself . . . of its own jurisdiction. . . .")

(internal quotations omitted). Although we previously

denied the defendants’ petition to proceed with the appeal

under 28 U.S.C. § 1292(b), which permits immediate

appeal of an order if it "involves a controlling question of

law as to which there is substantial ground for difference

of opinion and . . . an immediate appeal . . . may

materially advance the ultimate termination of the

litigation," 28 U.S.C. § 1292(b), the defendants brought the

current appeal under 28 U.S:C. § 1292(a)(1). That

provision establishes jurisdiction for appeals from

"[iJnterlocutory orders of the district courts . . . granting,

continuing, modifying, refusing or dissolving injunctions."

28 U.S.C. § 1292(a)(1).

[1] The plaintiffs assert that our previous

discretionary denial of permission to appeal under 28

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U.S.C. § 1292(b) resolved that the defendants may not

present in any interlocutory appeal their claims regarding

the application of the statutes to prisons. However,

interlocutory appeals under § 1292(a) are "by right," while

those under § 1292(b) are "by permission." See Edwards

v. Director, Office of Workers’ Comp. Progs., 932 F.2d 1325,

1328 (9th Cir. 1991). We have held that a denial of

permission to appeal underS 1292(b) does not foreclose

appeal under § 1292(a), where a litigant can meet the

requirements of § 1292(a). See Transworld Airlines, Inc. v.

American Coupon Exch., Inc., 913 F.2d 676, 680 (9th Cir.

1990); see also City of Fort Madison v. Emerald Lady, 990

F.2d 1086, 1088-90 (8th Cir. 1993) (reaching question of

jurisdiction under S 1292(a) after denial of permissive

appeal under § 1292(b)); Cobb v. Lewis, 488 F.2d 41,

45-46 (Sth Cir. 1974) (finding jurisdiction under § 1292(a)

after previous denial of permission to appeal under §

1292(b)).

The plaintiffs also argue that the remedial order and

injunction are not appealable because the judgment in

which they are contained merely requires the defendants

to submit detailed plans for complying with the ADA and

RA and is thus not an "injunction" within the meaning of

§ 1292(a)(1). That the district court titled its order an

"injunction," and that the parties might have understood it

as such, does not end our inquiry. "In determining the

appealability of an interlocutory order under 28 U.S.C. §

1292(a)(1), we look to its substantial effect rather than its

terminology." Tagupa v. East-West Ctr., Inc., 642 F.2d

1127, 1129 (9th Cir. 1981) (internal quotations omitted).

We thus must decide whether the district court’s order has

the substantial effect of an injunction.

[2] Although we have never ruled on this question, a

number of other circuits have held that an order requiring

submission of a remedial plan is generally not an

injunction that is reviewable interlocutorily under §

1292(a)(1). See, e.g., Sherpell v. Humnoke Sch. Dist. No. 5,

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814 F.2d 538, 539-540 (8th Cir. 1987) (order to develop

plans to end race discrimination in schools); Groseclose v.

Dutton, 788 F.2d 356, 359-61 (6th Cir. 1986) (order to

submit plans to remedy unconstitutional conditions on

death row); Spates v. Manson, 619 F.2d 204, 209-11 (2d

Cir. 1980) (order to submit plan to improve prison legal

resources); Hoots v. Pennsylvania, 587 F.2d 1340, 1348-51

(3d. Cir. 1978) (order to submit plan to desegregate

schools). Such a rule is "consonant with the federal policy

against piecemeal appeals" and "enable[s] the appellate

tribunal to examine the case in the context of a specific

remedial regime instead of in a mere abstract posture."

Frederick L. v. Thomas, 557 F.2d 373, 379-80 .(3d Cir.

1977).

[3] Our sister circuits have recognized two exceptions

to the rule that orders requiring merely the development

of a remedial scheme are not appealable injunctions under

§ 1292(a)(1). The Second, Third, Fourth, and Eleventh

Circuits have held that a normally non-appealable order

to submit a plan may be appealable when the order

sufficiently specifies the content of the plan to be

submitted. See Groseclose, 788 F.2d at 360; Spates, 619

F.2d at 209; Hoots, 587 F.2d at 1349 ("controlling factor

[is] whether the order specifie[s] the nature, requirements

and extent of the relief to be afforded by the plan to be

submitted"); see also United States v. Alabama, 828 F.2d

1532, 1536-38 (11th Cir. 1987) (determining appealability

under § 1291). An appellate court will lack jurisdiction

under ¢ 1292(a)(1) "when important issues regarding the

nature and extent of the relief . . . still remain to be

resolved and are dependent on the particular

circumstances of the case as it would develop in the

proceedings subsequent to the entry of the order."

Groseclose, 788 F.2d at 360. ‘

[4] The Third Circuit has held that where delaying

the appeal would not "clarify the questions on appeal "

and where the exact specifications of the plan would not

a Nn ERE MON IE WORD oe EN OD LOO nee RSI

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"alter in a material manner the issues that would be

presented to the court of appeals," an appeal of an order

mandating the development of a plan may proceed under

§ 1292(a)(1). Frederick L., 557 F.2d at 380. Under this

view, an appeal is not premature if the plan ultimately

submitted will not change the "appellate perspective." Jd.

at 381.

[5] This appeal meets both of these exceptions. First,

the district court prescribed the contents of the plan with

some specificity. It ordered that "as a component of the

[plan], the [Department of Corrections] will cluster class

members with certain disabilities at designated institutions

and parole facilities." Armstrong v. Wilson, No.

C-94-2307-CW, at 2-3 (N.D. Cal. Sept. 20, 1996). The

court further directed that the plan address specific

substantive concerns of the disabled inmates such as

disability grievance procedures, reception § center

processing times, accommodations for emergency

situations, assistive aids, accessibility of new construction,

criteria for medical disabilities, and school and job

assignments for disabled prisoners. See id.

[6] Although the precise contours of the final plan

may be unknown, we conclude that the district court’s

order makes the content and scope of the remedial

scheme sufficiently clear to enable appellate review. See

Frederick L., 557 F.2d at 381 ("The precise ingredients of

the plan .. . will have no... . metamorphosizing effect on

our understanding of this case.").

[7] Second, the specific plan the defendants

ultimately submit will in no way alter our "appellate

perspective" on the single issue the defendants raise in this

appeal of the remedial order: whether the ADA and RA

apply to state prison inmates. See id. We can answer this

purely legal question whether or not a detailed remedial

scheme has been formulated.

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[8] In light of the content of the district court’s order

and the scope of the defendants’ appeal, we conclude that

we have jurisdiction under 28 U.S.C. § 1292(a)(1) to

entertain this appeal and thus proceed to discuss the

merits of the defendants’ claim that the ADA and RA do

not apply to state prison inmates.

Ill. APPLICATION OF THE STATUTES TO

STATE PRISONS

[9] We have previously applied both the ADA and

RA in the state prison context. In Duffy v. Riveland, 98

F.3d 447, 453-56 (9th Cir. 1996), we held that a prison

inmate may state a claim under both the RA and the

ADA that he was improperly excluded from participation

in, and denied the benefits of, a prison service, program,

or activity on the basis of his physical handicap. In Bonner

v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988), we held that

the RA applies to state prisons on the basis of the

statute’s plain language and the Justice Department's

implementing guidelines.”

[10] The defendants urge us to depart from these

prior precedents because the correctional officials in those

cases failed to raise the issues of federalism and comity

that the defendants present here. We decline to institute

en banc traffic to retreat from our previous position. Even

in light of recognized federalism concerns, we conclude

that the plain language of the ADA and RA, and our

prior interpretations of that language, support application

of the statutes to state prisons. We thus join the Third

and Seventh Circuits, each of which recently have held

that both statutes apply to state correctional facilities. See

Yeskey v. Pennsylvania Dep’t of Corrections, F.3d

1. The application of the RA to state prisons was also implicated

in Gates v. Rowland, 39 F.3d 1439, 1445 (9th Cir. 1994). Because the

parties in that case stipulated that the statute applied, however, we

had no occasion to reach the question.

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, No. 96-7292, 1997 WL 378975 (3d Cir. July 10,

1997); Crawford v. Indiana Dep’t of Corrections, 115 F.3d

481 (7th Cir. 1997).

[11] The Rehabilitation Act provides, in pertinent

part, that "[nJo otherwise qualified individual with a

disability . . . shall, solely by reason of her or his disability,

be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance."

29 U.S.C. § 794(a). The statute further defines "[p]rogram

or activity" to include "all of the operations of ...a

department, agency, special purpose district, or other

instrumentality of a State or of a local

government." 29 U.S.C. § 794(b). This language suggests

that the act applies broadly to all aspects of state and

local governance. Moreover, we have interpreted this

precise language as evincing Congress’s intent to apply the

RA to "any program or activity receiving Federal financial

assistance," including state prisons. See Bonner, 857 F.2d

at 562 (internal quotations omitted). We also held in

Bonner that prison disciplinary hearings are “programs”

with the meaning of the RA. See id. at 563; Duffy, 98

F.3d at 455.

[12] The plain language of Title VII of the ADA is

similarly expansive. It provides, in pertinent part, that "no

qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities

of a public entity, or be subjected to discrimination by any

such entity." 42 U.S.C. § 12132. The act defines "public

entity” as “any State or local government [and] any

department, agency, special purpose district, or other

instrumentality of a State or States or local government."

42 US.C. § 12131(1). This language encompasses all

facets of state government including prison administration.

We agree with the Seventh Circuit’s conclusion that

although "[i]ncarceration itself is hardly a ‘program’ or

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‘activity’ to which a disabled person might wish access, . .

. there is no doubt that an educational program is a

program, and when it is provided by and in a state prison

it is a program of a public entity." Crawford, 115 F.3d at

483 (internal citation omitted). In addition, since Congress

has directed that the ADA and RA be construed

consistently, see 42 U.S.C. § 12134(b), the term "program

"in the ADA can also be read, in light of our prior cases

concerning the RA, to encompass prison activities. See

also Collings v. Longview Fibre Co., 63 F.3d 828, 832 n.3

(9th Cir. 1995) (cases involving the RA are "instructive"

for claims under the ADA); cert. denied, 116 S. Ct. 711

(1996).

[13] Nothing in the legislative history of the RA or

ADA reflects an intent by Congress to exclude prisons or

prisoners from the reach of the statutes. When it modeled

the ADA on the RA, Congress was presumably aware of

numerous court decisions, including Bonner, that had held

that the RA applies

to prisons.

Nevertheless, Congress did not attempt, by

altering the language that it was borrowing from

the old statute as the template for the new one,

to prevent the new one from being interpreted

the same way the old ore had been interpreted;

nor did it amend the [RA] to extinguish the old

interpretation.

Crawford, 115 F.3d at 484.

[14] Relying on Torcasio v. Murray, 57 F.3d 1340

(4th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996), in

which the Fourth Circuit held that prison officials were

entitled to qualified immunity because it was not "clearly

established" at the time of the alleged discrimination that

the ADA and the RA applied to prisons, the defendants

contend that the texts of the statutes do not naturally

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apply to the prison context. First, they assert that a

prisoner cannot be a "qualified" individual under the acts

because most prison services and programs are

compulsory. See id. at 1347 ("The terms‘eligible’ and

‘participate’ imply voluntariness on the part of an

applicant who seeks a benefit from the state; they do not

bring to mind prisoners who are being held against their

will."). We have previously held, however, that inmates

may be considered "qualified individuals" for purposes of

these acts. See Duffy, 98 F.3d at 454; Bonner, 857 F.2d at

563. Moreover, inmates do "qualify" for particular

programs and services provided by the prison system in

the sense that they must meet certain eligibility criteria for

participation. For example, to qualify for mental health

treatment, inmates must be mentally ill, not pose a threat

to themselves or others, and not have a history of

violence. The defendants’ interpretation would immunize

from the reach of these statutes any compulsory service

provided by the state, such as public education or jury

service.

[15] The defendants also argue that because prisons

serve the state’s penological interests, the "services,

programs, and activities" they provide are not "benefits "

within the meaning of these statutes or as that term is

ordinarily understood. See Torcasio, 57 F.3d at 1347.

Some services and programs that prisons provide, such as

educational and vocational training and medical attention,

can be seen as benefits to the inmates, however. More

significantly, the ADA and the RA do not merely protect

disabled individuals from denial of benefits. They also

prevent disabled individuals from being "excluded from

participation in" or "subjected to discrimination under" any

state program or activity and they prohibit "discrimination

by" any public entity. See 29 U.S.C. 794(a); 42 U.S.C. §

12132. Thus, whether the inmates "benefit" from prison

programs is irrelevant to the issue of whether state prisons

may exclude disabled inmates from programs they provide

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to others or discriminate against disabled inmates in the

various aspects of prison life.

The defendants urge us to apply the plain statement

rule, which holds that where Congress intends to alter the

federal state balance, or invade an essential state function,

it must do so in unmistakable terms. See Gregory v.

Ashcroft, 501 U.S. 452, 460-61 (1991). In Gregory, the

Court refused to apply the Age Discrimination in

Employment Act (ADEA) to state judges in the absence

of an expression of clear congressional intent because it

found that "it is at least ambiguous whether Congress

intended that appointed judges . . . be included." Jd. at

470. In contrast to the ADEA, which expressly excludes

most high-ranking public officials from its reach, see 29

U.S.C. § 630(f), the ADA and RA apply to "any" and “all"

state entities and operations without exclusions. We agree

with the Seventh Circuit’s statement that Congress could

hardly have spoken "much more clearly than it did when

it made the [ADA] expressly applicable to all public

entities and defined the term ‘public entity’ to include

every possible agency of state or local government."

Crawford, 115 F.3d at 485; see also Yeskey, F.3d

, 1997 WL 378975, at *5.

[16] Although the defendants’ federalism arguments

have some force in the context of prisons, which

traditionally are areas of state concern, we have held that

other functions traditionally reserved to the states are

subject to the ADA and RA. For example, in Crowder v.

Kitagawa, 81 F.3d 1480, 1485 (9th Cir. 1996), we held that

the ADA applies to a quarantine law enacted by the state

to protect public health under its police powers. Although

"mindful of the general principle that courts will not

second-guess the public health and safety decisions of

state legislatures acting within their traditional police

powers," we concluded that "when Congress has passed

antidiscrimination laws such as the ADA .. .., it is

incumbent upon the courts to ensure that the mandate of

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federal law is achieved." Jd. In passing the ADA and RA,

Congress has articulated its judgment that discrimination

against individuals with disabilities will not be tolerated

and it deliberately drafted the statutes to include language

reaching into the state sphere. That prison administration

may be a core state function does not give us license to

disregard clear congressional intent. See Yeskey,

F.3d , 1997 WL 378975, at *5.

While the Tenth Circuit has refused to apply the

ADA and the RA to prison employment, see White v.

Colorado, 82 F.3d 364, 367 (10th Cir. 1996), and we have

declined to apply the Fair Labor Standards Act to most

prison jobs, see Hale v. Arizona, 993 F.2d 1387, 1392-98

(9th Cir. 1993), the plaintiffs in this case seek a

qualitatively different form of relief than the prisoners in

those cases sought. These plaintiffs seek basic access to

facilities, inclusion in safety plans, and nondiscriminatory

treatment in residential placements and prison programs.

"Rights against discrimination are among the few rights

that prisoners do not park at the prison gates." Crawford,

115 F.3d at 486 (citing Turner v. Safley, 482 U.S. 78, 84

(1987)). In enacting the RA and ADA, Congress intended

to eliminate discrimination against individuals with

disabilities, just as it had earlier passed legislation

mandating equal treatment of African-Americans. "If a

prison may not exclude blacks from the prison dining hall

and force them to eat in their cells, and if Congress thinks

that discriminating against a blind person is like

discriminating against a black person," the prison may not

exclude the blind person from the dining hall unless

allowing him access would unduly burden prison

administration. Jd.

[17] We thus hold, based on the plain meaning of the

Statutes, that the ADA and RA apply to inmates and

parolees in the state correctional system and affirm the

district court’s application of these statutes in entering the

injunction.

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IV. ELEVENTH AMENDMENT IMMUNITY

We next address the defendants’ contention that

sovereign immunity bars this suit in federal court. We

hold that the exception to Eleventh Amendment immunity

; set forth in Ex parte Young, 209 U.S. 123 (1908), squarely

applies to allow this action against named individuals in

their official capacity.”

[18] Under the doctrine of Ex parte Young, the

: Eleventh Amendment is no bar to "federal jurisdiction

over a suit against a state official when that suit seeks only

prospective injunctive relief in order to ‘end a continuing

violation of federal law.”" Seminole Tribe v. Florida, 116 S.

; Ct. 1114, 1132 (1996) (quoting Green v. Mansour 474 USS.

64, 68 (1985)). "The Young doctrine rests on the premise

that a suit against a state official to enjoin an ongoing

violation of federal law is not a suit against the State."

Idaho v. Coeur d’Alene Tribe, 117 S. Ct. 2028, 2047 (1997)

(plurality opinion). Even where the relief sought may

have a "substantial ancillary effect on the state treasury,"

a suit against state officials may proceed so long as the

relief "serves directly to bring an end to a present violation

of federal law." Papasan v. Allain, 478 U.S. 265, 278

(1986); see also Milliken v. Bradley, 433 U.S. 267, 289-90

(1977).

[19] The defendants do not contest that this suit

against state officials seeks only prospective injunctive

relief to end continuing violations of the ADA and RA.

They nevertheless argue that because the plaintiffs seek

wide-ranging, wholesale _ institutional reforms of

California’s prison system, the suit is against the state and

thus falls outside the bounds of Ex parte Young. No court,

2. For a related case by prisoners against the State of California

squarely presenting the Eleventh Amendment defense, see our

opinion filed this day in Clark v. California, No. 96-16952 (9th Cir.

1997).

18a

however, has carved out an exception to Ex parte Young

on the basis of the complexity and scope of the

prospective injunctive relief sought. To the contrary,

many courts have permitted suits to proceed under Young

where plaintiffs sought comprehensive relief similar to the

reforms the plaintiffs seek here. See, e.g., Committee to

Save Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d

305, 307, 309-10 (9th Cir. 1993) (rejecting Eleventh

Amendment immunity claim where defendants were

required to devise a remedial plan to remove

contaminants); Parents for Quality Educ. with Integration,

Inc., v. Indiana, 977 F.2d 1207, 1209-11 (7th Cir. 1992)

(allowing suit seeking widespread educational reforms

against state officials), modified on other grounds, 986

F.2d 206 (7th Cir. 1993). We, too, see no basis for

creating such an exception.

[20] The defendants also maintain that Ex parte

Young is limited to violations of federal constitutional law

and does not permit suits to remedy statutory violations.

This argument is without merit. We have held squarely

that Young applies to suits alleging violations of federal

statutes. See Natural Resources Defense Council v.

California Dep’t of Transp., 96 F.3d 420, 422-23 (9th Cir.

1996) (stating that Young "applies to violations of federal

statutory law" and permitting suit under Young for

violations of the Clean Water Act); Almond Hill Sch. v.

United States Dep’t of Agric., 768 F.2d 1030, 1034 (9th Cir.

1985) ("The underlying purpose of Ex parte Young seems

to require its application to claims against state officials

for violations of federal statutes.").

[21] Sovereign immunity presents no bar to this suit

against state officials seeking prospective injunctive relief

against Ongoing violations of the ADA and RA in the

state penal system. The district court thus correctly denied

the defendants’ motion for summary judgment.

Ee Lr Sey me

19a

V. CONCLUSION

Because we conclude that the ADA and RA apply to

inmates and parolees in the state penal system and that

this suit may proceed in federal court under the doctrine

of Ex parte Young, we affirm the judgment of the district

court.

AFFIRMED.

20a

John ARMSTRONG, et al., Plaintiffs,

v.

Pete WILSON, et al., Defendants.

No. C 94-2307 CW.

United States District Court,

N.D. California.

Sept. 20, 1996.

State prison inmates who were disabled brought class

action suit against state prison officials. Defendants

moved for summary judgment. The District Court, Wilken,

J., held that: (1) as a matter of first impression, both the

ADA and Rehabilitation Act applied to state prisons; (2)

ADA and Rehabilitation Act were enacted pursuant to

Congress’ authority under the Fourteenth Amendment;

and (3) defendants were not entitled to Eleventh

Amendment immunity.

Motion denied.

Warren E. George, McCutchen Doyle Brown &

Enersen LLP, San Francisco, CA, Elaine Feingold,

Disability Rights Education & Defense Fund, Inc.,

Berkeley, CA, Michael W. Bien, Rosen Bien & Asaro, San

Francisco, CA, Donald Specter, Prison Law Office, San

Quentin, CA, for plaintiffs.

Roy Zattiero, pro se.

Morris Lenk, CA State Atty. General’s Office,

George D. Prince, Deputy Atty. General, CA State Atty.

General’s Office, San Francisco, CA, for defendants.

shi oH ns

‘eect

Se NL LI RR ager Din viene obe

he iy

FS se ae et

it hilana. betipline Ako daas tm.

2la

Mary Beth Uitti, U.S. Attorney’s Office, San

Francisco, CA, Sharon N. Perley, U.S.D.J.--Disability

Rights Section, Civil Rights Division, Washington, DC, for

United States of America, Amicus Curiae.

ORDER DENYING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

WILKEN, District Judge.

Plaintiffs, a certified class consisting of all present and

future California state prison inmates and parolees with

mobility”, sight, hearing, learning or kidney disabilities,

have moved for injunctive relief under Title II of the

Americans with Disabilities Act ("ADA"), 42 U.S.C. §§

12131--34, and Section 504 of the Rehabilitation Act of

1973 ("the Rehabilitation Act" or "Section 504"), 29 U.S.C.

§ 794. Defendants, various California state officials being

sued in their official capacities, have moved for summary

judgment pursuant to the Stipulation and Order for

Procedures to Determine Liability and Remedy entered

on July 9, 1996 (the "Stipulation"). The United States

Department of Justice ("DOJ") has submitted an amicus

brief in support of Plaintiffs’ opposition. The matter was

heard on July 19, 1996. Having considered all of the

papers filed by the parties and oral argument on the

motion, the Court denies the motion.

FACTS

Defendants move to strike Plaintiffs’ separate

statement of undisputed facts. The Court grants the

motion on the grounds that the parties have stipulated

that this summary judgment motion is to be decided solely

on the facts included in the parties’ joint Statement of

Stipulated Facts.

1. Prisoners with mobility impairments who are housed at the

Correctional Medical Facility at Vacaville are excluded from the class.

22a

The following is a brief summary of the facts as

provided in the Statement of Stipulated Facts. The

California Department of Corrections ("CDC") operates

over 31 prisons housing in excess of 130,000 inmates.

Some of these facilities receive federal financial assistance.

The CDC has conducted surveys to identify certain

inmates with disabilities. These surveys have found that:

(1) 345 inmates use wheelchairs due to permanent

disabilities; (2) 650 inmates have permanent lower

extremity impairments which may require the use of an

assistive device such as a walker, cane or prosthesis; (3)

141 inmates are deaf or have hearing impairments such

that, even with a hearing aid, they are not able to hear

effectively or to hear emergency warnings; (4) 219 inmates

are blind or have vision that cannot be corrected to 20/100

with corrective lenses. HIV-positive inmates are placed in

various units in facilities throughout the system. Inmates

with mental health problems are clustered and frequently

separated from other inmate populations.

The CDC initiated a self-evaluation in 1995 pursuant

to the requirements of the ADA, but has not completed

it. In April, 1995, the CDC established and implemented

a new administrative grievance procedure which inmates

and parolees with disabilities may use to submit grievances

or requests for accommodations on matters related to

their disabilities. There remain significant problems in

implementing this procedure.

The CDC’s written policies and procedures for

emergencies do not specifically address the evacuation of

prisoners with disabilities. Some CDC facilities do not

have visual alarms or strobe lights to warn prisoners with

hearing impairments of emergencies. When emergency

situations arise in prison areas other than living units,

some inmates with disabilities may not be aware of, or be

able to respond to, emergency warnings of impending

danger.

PEERS NA DSET DBL O IR ATE

.

:

t

23a

Most inmates who participate in educational classes,

vocational training, or have work assignments, including

those with disabilities, earn 1/2 time sentence credits to

reduce their time in custody. Health care providers

classify inmates as "totally medically disabled," "medically

unassigned," or “light restricted duty." A "totally medically

disabled" classification allows the inmate to earn 1/2 time

sentence credits without being required to participate in

a program, while a "medically unassigned" classification

allows the inmate to earn 1/3 time sentence credits. A

"light restricted duty" classification allows the inmate to

participate in programs in accordance with a specified

restriction due to a physical or mental condition. Some

inmates with severe disabilities have been inappropriately

classified as medically unassigned rather than totally

medically disabled and only earn 1/3 instead of 1/2 time

credits against their sentences. Inmates designated as

"light restricted duty" may be assigned to jobs that are

inappropriate for their limitations. The range of

vocational programs available to inmates with disabilities

is more limited than that available to other inmates.

LEGAL STANDARD

Summary judgment is properly granted when no

genuine and disputed issues of material fact remain, and

when, viewing the evidence most favorably to tthe non-

moving party, the movant is clearly entitled to prevail as

a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,

477 USS. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d

265 (1986); Eisenberg v. Insurance Co. of North America,

815 F.2d 1285, 1288-89 (9th Cir.1987). For the purposes

of this motion, the parties have stipulated that there are

no material facts in dispute. The Court, therefore, must

decide whether the moving party is entitled to summary

judgment as a matter of law.

24a

DISCUSSION

Defendants argue that the protections of the ADA

and the Rehabilitation Act do not extend to inmates or

parolees of state correctional facilities and _ that

Defendants are immune from liability under the Eleventh

Amendment of the United States Constitution. While the

Ninth Circuit has held that the Rehabilitation Act applies

to state prisons, it has not yet considered whether the

ADA is applicable to state correctional facilities.” Nor

has the Ninth Circuit ruled on whether state prison

officials have immunity under the Eleventh Amendment

for violations of the ADA and the Rehabilitation Act.

These, then, are issues of first impression in this Circuit.

I.

APPLICABILITY OF THE ADA AND THE

REHABILITATION ACT TO STATE CORRECTIONAL

FACILITIES

The Court will not address Defendants’ argument that

prisoners and parolees are adequately protected under the

First, Eighth, and Fourteenth Amendments of the United

States Constitution and, therefore, the protections

provided under the Rehabilitation Act and the ADA are

unnecessary. One need only look to the undisputed

stipulated facts of this case to find that this argument is

erroneous. Furthermore, it is not the proper role of the

judiciary to preempt Congress’ decision that there is a

need for such legislation.

2. Only one district court in the Ninth Circuit has squarely

addressed the issue of whether the ADA applies to prisons. Bullock

v. Gomez, 929 F.Supp. 1299 (C.D.Cal.1996) held that the ADA does

apply to prisons. In Fowler v. Gomez, 1995 WL 779128, *2

(N.D.Cal.1995), a qualified immunity case, a judge of this Court

found that there was no authority to “clearly establish" that the ADA

applied to state prisons at the time of the alleged incident in

question.

res Se eee eT

Tye ye ae

25a

A. Ninth Circuit Case Law

l. Rehabilitation Act

Although the Ninth Circuit has heid, in Bonner v.

Lewis, 857 F.2d 559, 562 (9th Cir.1988), that the

Rehabilitation Act applies to state prison facilities,

Defendants argue that this Court should arrive at a

different result. Defendants argue that, since Bonner was

decided, the Supreme Court has clarified the proper

analysis to be used by a district court to determine the

applicability of federal statutes to state prisons.

Defendants contend that utilization of this analysis will

lead to the conclusion that neither the Rehabilitation Act

nor the ADA are applicable to state prisons. The Court

does not agree.

Section 504 of the Rehabilitation Act of 1973 states,

in pertinent part:

No otherwise qualified individual with a disability

in the United States, . . . shall, solely by reason

of her or his disability, be excluded from the

participation in, be denied the benefits of, or be

subjected to discrimination under any program

or activity receiving Federal financial assistance

29 USS.C. § 794.

In Bonner, the Ninth Circuit based its holding

primarily on the plain language of the Act, which states

that it “applies to ‘any program or activity receiving

Federal financial assistance’ ", and on the Justice

Department’s implementing regulations which require

compliance by correctional facilities under 28 C.F.R. §

42.503(f). Bonner, 857 F.2d at 562. The court noted that

"(t]he Supreme Court has repeatedly emphasized that

federal regulations are ‘an important source of guidance

26a

on the meaning of § 504." Jd. (citing School Board of

Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94

L.Ed.2d 307 (1987) (parenthetical omitted) and

Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 &

nn. 14-16, 104 S.Ct. 1248, 1254 & nn. 14- 16, 79 L.Ed.2d

568 (1984)).

The Ninth Circuit rejected the defendants’ argument

that, because the purpose of the Rehabilitation Act is to

foster vocational rehabilitation and independent living, it

is not applicable to prison inmates who “are hardly in

need of help to live independently within their prisons."

Id. Instead, the court viewed the goals of independent

living and vocational rehabilitation as mirroring the goals

of prison officials who "attempt to rehabilitate prisoners

and prepare them to lead productive lives once their

sentences are complete." /d.

In Gates v. Rowland, 39 F.3d 1439 (9th Cir.1994), the

Ninth Circuit elaborated on its holding in Bonner. First,

the court, citing Bonner, reaffirmed that "the Act is

applicable to prisons receiving federal financial assistance."

Gates, 39 F.3d at 1446. The court noted, however, that

the Rehabilitation Act was intended for use within the

general population, and was not specifically tailored to

deal with the prison environment. Jd. The court reasoned

that, "just as constitutional rights of prisoners must be

considered in light of the reasonable requirements of

effective prison administration, so must statutory rights

applicable to the nation’s general population be

considered in the light of effective prison administration."

Id. The court held that the standard explicated by the

Supreme Court in Tumer v. Safley, 482 U.S. 78, 107 S.Ct.

2254, 96 L.Ed.2d 64 (1987) for reviewing constitutional

rights in a prison setting should also be used when

reviewing the rights provided by the Rehabilitation Act in

a prison setting. Jd. at 1447. In Tumer, the Supreme

Court articulated the rule that, “when a prison regulation

impinges on inmates’ constitutional rights, the regulation

27a

is valid if it is reasonably related to legitimate penological

interests”. Jd. (quoting Tumer, 482 U.S. at 89, 107 S.Ct.

at 2261).

Other courts, and Defendants, have interpreted Gates

to mean that the Ninth Circuit is retreating from its

holding in Bonner. See e.g. Torcasio v. Murray, 57 F.3d

1340, 1349 n. 7 (4th Cir.1995), cert. denied by Torcasio v.

Angelone, --- U.S. ----, 116 S.Ct. 772, 133 L.Ed.2d 724

(1996) and Little v. Lycoming County, 912 F.Supp. 809,

819 (M.D.Pa.1996). The Court disagrees. Gates is a

reaffirmation and clarification of Bonner, not a retreat

from it.

Defendants argue that subsequent to Bonner, the

Supreme Court, in Gregory v. Ashcroft, 501 U.S. 452,

460-61, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410 (1991),

clarified the proper analysis for determining whether a

federal enactment is applicable to state prisons. They

contend that, in Gregory, the Court stated a new rule that

requires that Congress make its intention unmistakably

clear in the language of the statute if it intends to alter

the usual constitutional balance between the States and

the federal government in traditionally sensitive areas.

Defendants conclude that, had the Ninth Circuit applied

this "new" plain statement rule in Bonner, it would have

held differently.

The Court disagrees. The plain statement rule was

not originally articulated in Gregory. Although Gregory

recites this rule, it cites prior cases as authority. One of

the cases cited in Gregory is United States v. Bass, 404 U.S.

336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971) in

which the Court stated that, "[iJn traditionally sensitive

areas, such as legislation affecting the federal balance, the

requirement of clear statement assures that the legislature

has in fact faced, and intended to bring into issue the

critical matters involved in the judicial decision." Gregory,

501 U.S. at 461, 111 S.Ct. at 2401 (citing Bass, 404 US. at

28a

349, 92 S.Ct. at 523). Gregory also cites Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91

L.Ed. 1447 (1947) for the proposition that, "Congress

should make its intention ‘clear and manifest’ if it intends

to pre-empt the historic powers of the States." Gregory,

501 U.S. at 461, 111 S.Ct. at 2401. Even Seminole Tribe

of Florida v. Florida, --- U.S. ----, ----, 116 S.Ct. 1114, 1185,

134 L.Ed.2d 252 (1996), the case Defendants use to

support their proposition that Gregory adopted a new

rule, cites Bass as well as Gregory. It is clear that the

"new" rule Defendants proffer has been part of our

jurisprudence for many decades. It is patently

unreasonable to assume that the Ninth Circuit did not

take this rule into consideration in deciding Bonner.

Although not explicitly stating that it was applying the

plain statement rule, in Bonner the Ninth Circuit did look

for Congressional intent to apply the Rehabilitation Act to

state prisons and found such intent in the plain language

of the statute and the DOJ’s implementing regulations.

Bonner, 857 F.2d at 562.

Defendants point to two post-Gregory Ninth Circuit

cases to illustrate that, had the Ninth Circuit used the

plain statement rule in Bonner, it would not have held the

Act applicable to state prisons. In Hale v. Arizona, 993

F.2d 1387, 1393, 1395 (9th Cir.1993) (en banc ), cert.

denied, 510 U.S. 946, 114 S.Ct. 386, 126 L.Ed.2d 335

(1993), the Ninth Circuit declined to extend the

protections of the Federal Labor Standards Act to inmates

required by state law to work at hard labor, but

determined that the Act may be applicable to inmates in

other employment situations. In Jeldness v. Pearce, 30

F.3d 1220 (9th Cir.1994), the Ninth Circuit held that Title

IX, which prohibits discrimination on the basis of sex by

any educational program receiving federal funding, applies

to state prisons. /d. at 1225. In Hale and Jeldness the

Ninth Circuit focused on a list of statutorily exempt

programs which did not include prisons and determined

that noninclusion in an exempt list creates a strong

29a

implication of inclusion. Hale, 993 F.2d at 1392; Jeldness,

30 F.3d at 1225.

Defendants contend that the analyses in Hale and

Jeldness rejected the basis for the Ninth Circuit’s

conclusion in Bonner, because, in Bonner, the court merely

based its holding on the expansive language of the

Rehabilitation Act. However, the Bonner court also based

its holding upon the DOJ’s implementing regulations that

specifically bring state prisons within the ambit of the Act.

Bonner, 857 F.2d at 562.

Congress delegated to the head of each agency the

authority to promulgate regulations under the

Rehabilitation Act. 29 U.S.C. § 794(a). The DOJ

regulations define the term "program" as including the

“operations of a department of corrections," and the term

"benefit" as including "sentencing, confinement, or other

prescription of conduct." 28 C.F.R. §§ 42.540(h) and (j).

In Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778,

2782-83, 81 L.Ed.2d 694 (1984) the Court held that, where

Congress has left a gap for the agency to fill, the agency’s

regulations "are given controlling weight unless they are

arbitrary, capricious, or manifestly contrary to the statute."

This Court can find nothing that is arbitrary or capricious

in the DOJ’s regulations. The broad language of the

statute which indicates it reaches "any program or activity

receiving Federal financial assistance" imparts to federal

agencies, which includes the DOJ, the task of defining the

term, "any program". The inclusion of state departments

of corrections is a permissible construction of the term,

“any program", and, under Chevron, this construction must

be given deference.

The Court also finds persuasive the Third Circuit’s

reasoning in Inmates of the Allegheny County Jail v. Wecht,

1996 WL 474106, *10 (3rd Cir.) regarding the applicability

of the plain statement rule to decide whether the

en

30a

Rehabilitation Act and the ADA applies to correctional

facilities. In Jmmates, the Third Circuit found that the

language of the Rehabilitation Act and of the ADA clearly

indicates that they cover all aspects of state and local

governance. Jd. at *6 (citing, as to the Rehabilitation Act,

29 U.S.C. § 794(a) which states that the Act applies to

“any program or activity receiving Federal financial

assistance" and 29 U.S.C. § 794(b)(1)(A) which defines

"program or activity" to be “all of the operations of a

department, agency, special purpose district, or other

instrumentality of a State or local government” and as to

the ADA, 42 U.S.C. § 12132 which states that it applies to

all public entities and 42 U.S.C. § 12131(1) which defines

a "public entity” as "any State or local government [and]

any department, agency, special purpose district, or other

instrumentality of a State or States or local government.")

Based on the clear language of the statutes the court held

that both the Rehabilitation Act and the ADA apply to

state and local correctional facilities. Id. The court

determined that the plain statement rule was inapplicable

to its analysis since this rule was not “intended by the

Supreme Court to provide a canon of statutory

interpretation which can be of help in interpreting statutes

whose over-all design indisputably contemplates both that

the policies and practices of state as well as local

governments are required to conform to norms established

by Congress . . ." Id. at *9.

The Court rejects Defendants’ argument that Bonner

may apply in Arizona, the state in which the case

originated, but not in California. Defendants’ rationale is

that in Arizona the goal of incarceration is rehabilitation,

while in California the goal of incarceration is punishment.

Plaintiffs cite many statutes in the California Penal Code

and Regulations that indicate that, while the goal of

incarceration itself may be punishment, the goal of many

prison programs and activities is rehabilitation and

reintegration of convicted felons into society.

3la

[1] The Court concludes that the Ninth Circuit’s

analysis in Bonner is as correct today as it was in 1988

when the Ninth Circuit reached its decision. The Court

holds that the Rehabilitation Act applies to prisons.

2. The ADA

In language almost identical to the Rehabilitation

Act, the ADA provides, in relevant part:

[N]o qualified individual with a disability shall, by

reason of such disability, be excluded from

participation in or be denied the benefits of the

services, programs, or activities of a public entity,

or be subjected to discrimination by any public

entity.

42 US.C. § 12132.

Defendants contend that utilization of the plain

statement rule will lead to the conclusion that the ADA

does not apply to state prisons. The Court does not

agree.

[2] The Ninth Circuit has indicated that the ADA is

to be judicially interpreted in the same manner as the

Rehabilitation Act. Collings v. Longview Fibre Co., 63

F.3d 828, 832 n. 3 (9th Cir.1995), cert. denied, --- US. ----,

116 S.Ct. 711, 133 L.Ed.2d 666 (1996). This determination

is based on the substantially identical language in the two

Acts and the legislative history of the ADA which

indicates that Congress intended judicial interpretation of

the Rehabilitation Act to be incorporated by reference

into interpretation of the ADA. Id.

[3,4] Pursuant to Collings, the Court must apply the

Ninth Circuit’s reasoning in Bonner to decide whether the

ADA applies to state correctional facilities and programs.

As noted above, the broad language of the Rehabilitation

32a

Act is repeated in the ADA. The ADA expands the

reach of the anti-discrimination provisions of the

Rehabilitation Act from "any public facility that receives

Federal funding" to "any public entity." As it did in the

Rehabilitation Act, Congress has specifically delegated

authority to the DOJ to promulgate regulations

implementing the ADA. 42 U.S.C. § 12134(a). The

DOJ’s regulations provide that "all programs, services, and

regulatory activities relating to law enforcement, public

safety, and the administration of justice, including courts

and correctional institutions" are governed by the ADA.

28 C.F.R. § 35.190(b)(6). The Court finds that the

expansive language of the ADA, together with the DOJ’s

regulations which it promulgated pursuant to a specific

Congressional delegation of authority, lead to the

conclusion that the ADA is applicable to state correctional

institutions. Following the Ninth Circuit’s instruction in

Gates, the Court also concludes that, like the

Rehabilitation Act, the ADA must be applied in a prison

environment with consideration of legitimate penological

interests. See Gates, 39 F.3d at 1447.

B. Case Law in Other Circuits

Defendants argue that this Court should be

persuaded by cases in other circuits in which, Defendants

contend, the courts have held the Rehabilitation Act or

the ADA are inapplicable to prisons.

33a

Three circuits have directly addressed this issue.”

As discussed above, the Third Circuit has held that the

Rehabilitation Act and the ADA apply to state and local

correctional institutions. The Tenth Circuit has held that

the Rehabilitation Act and the ADA are inapplicable to

state prison employment programs. In Williams v. Meese,

926 F.2d 994 (10th Cir.1991), the court held that the

Rehabilitation Act is not applicable to federal prison

employment and vocational programs because the

"Federal Bureau of Prisons does not fit the definition of

‘programs or activities’ governed by [the Rehabilitation

Act]." Williams, 926 F.2d at 997. Relying upon Williams,

and without any further explanation, the Tenth Circuit

held in White v. Colorado, 82 F.3d 364 (10th Cir.1996),

that the ADA does not apply to state prison employment

situations. White, 82 F.3d at 367.

The Fourth Circuit, in Torcasio v. Murray, did not

actually hold that the Rehabilitation Act and the ADA do

not apply to state prisons, but strongly intimated that they

do not. Torcasio, a qualified immunity case, held that it

was not clearly established, at the time of the alleged

discrimination, that either the Rehabilitation Act or the

ADA applied to state prisons. Torcasio v. Murray, 57 F.3d

1340, 1352 (4th Cir.1995), cert. denied, --- U.S. ----, 116

S.Ct. 772, 133 L.Ed.2d 724 (1996). The violations were

alleged to have occurred in April, 1993 through the spring,

1994. The Torcasio court took the Ninth Circuit’s 1988

Bonner decision into consideration in its discussion. in

3. As noted by Defendants, the Seventh Circuit, in a recent

opinion by Judge Posner, stated that, "It is very far from clear that

prisoners should be considered ‘qualified individuals’ within the

meaning of the [ADA]. Could Congress really have intended disabled

prisoners to be mainstreamed into an already highly restricted prison

society? ... [T]here are formidable practical objections to burdening

prisons with having to comply with the onerous requirements of the

[ADA], . . .". Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir.1996).

This statement was dicta, however. The court proceeded to analyze

the plaintiff's claim under the ADA. Id. at 249.

34a

analyzing the DOJ regulations, however, the Torcasio

court failed to locate the specific sections which provide

that the Rehabilitation Act applies to correctional

institutions. Jd. at 1351. The court looked at 28 C.F.R. §

42.503(f), the only section specifically cited in Bonner, and

dismissed it as too general to establish that the DOJ

intended the Rehabilitation Act to apply to prisons. The

court did not mention the sections, in the definitional

parts of the regulations, that indicate that the

Rehabilitation Act applies to state prisons. See 28 C.F.R.

§§ 42.540(h) and (j). The court similarly did not mention

28 C.F.R. § 35.190(b)(6), the regulation that specifies that

the ADA applies to state prisons. The court intimated

that, had the plaintiff been able to show that the

regulations specifically applied to state prisons, it might

have held differently. Jd.

As discussed above, Torcasio also erroneously

concluded that in Gates the Ninth Circuit retreated from

its holding in Bonner. Torcasio, 57 F.3d at 1346, 1349 n.

7. Also, as noted by Plaintiffs, the questions raised in

Torcasio as to whether prison programs qualify as

"programs" under the Rehabilitation Act and the ADA,

were answered in the affirmative by the Ninth Circuit in

Bonner. Bonner, 857 F.2d at 562 ("the [Rehabilitation]

Act’s goals of independent living and vocational

rehabilitation should in fact mirror the goals of prison

officials as they attempt to rehabilitate prisoners and

prepare them to lead productive lives. . . .")

Il.

IMMUNITY UNDER THE ELEVENTH AMENDMENT

Defendants argue that the Eleventh Amendment

provides them with immunity from liability under the

Rehabilitation Act and the ADA. Defendants

acknowledged, during oral argument, that their reasoning

would lead to the conclusion that the Rehabilitation Act

and the ADA are not applicable to any state agency.

eal Silas iki is Ri ei ai

ag ees

35a

In Seminole Tribe v. Florida, --- U.S. ----, ----, 116 S.Ct.

1114, 1123, 134 L.Ed.2d 252 (1996), the Supreme Court

reiterated the principle that, pursuant to the Eleventh

Amendment, States may not be sued in federal court

unless Congress, acting pursuant to a valid exercise of its

power, unequivocally expresses its intent to abrogate the

States’ immunity. Jd. (citing Green v. Mansour, 474 US.

64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)).

Defendants concede that Congress clearly expressed its

intent in the Rehabilitation Act and the ADA to abrogate

the States’ immunity. The issue to be resolved is whether,

in abrogating the States’ immunity, Congress acted

pursuant to a valid exercise of its power.

In Seminole Tribe, the Court explained that

Congressional authority to abrogate States’ immunity had

been previously found under two provisions of the

Constitution. Jd., --- U.S. at ----, 116 S.Ct. at 1125. In

Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666,

2669-72, 49 L.Ed.2d 614 (1976), the Court had held that

§ 5 of the Fourteenth Amendment allowed Congress to

abrogate States’ immunity from suit and, in Pennsylvania

v. Union Gas Co., 491 U.S. 1, 19-20, 109 S.Ct. 2273,

2284-85, 105 L.Ed.2d 1 (1989), the Court had held that

the Interstate Commerce Clause granted Congress the

power to abrogate immunity. Jd. In Seminole Tribe the

Court overruled Union Gas so that Congress now has

authority to abrogate the States’ immunity pursuant only

to the Fourteenth Amendment. /d., --- U.S. at ----, 116

S.Ct. at 1131.

Defendants argue that Congress lacks authority to

abrogate their immunity under the Rehabilitation Act or

the ADA because neither was validly enacted pursuant to

the Fourteenth Amendment. Plaintiffs disagree, and also

argue that Defendants, because they are state officials, are

not immune from suit for injunctive relief under the

doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52

L.Ed. 714 (1908).

36a

A. The ADA Was Enacted Pursuant to the Fourteenth

Amendment

The ADA specifically states that its purpose is “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." 42 U.S.C. § 12101(b)(4). In spite of this

explicit statement by Congress, Defendants argue that

simply because Congress has stated that the legislation

was enacted pursuant to its Fourteenth Amendment

authority does not make it so.

The Equal Protection Clause of the Fourteenth

Amendment provides that "[n]o State shall . . . deny to

any person within its jurisdiction the equal protection of

the laws." Section 5 of the Amendment states that "[t}]he

Congress shall have power to enforce, by appropriate

legislation, the provisions of this article." As explained by

the Supreme Court, ". . . § 5 is a positive grant of

legislative power authorizing Congress to exercise its

discretion in determining whether and what legislation is

needed to secure the guarantees of the Fourteenth

Amendment." Katzenbach v. Morgan, 384 U.S. 641, 648,

86 S.Ct. 1717, 1722, 16 L.Ed.2d 828 (1966). Section 5 is

intended to provide to Congress the same broad powers

expressed in the Necessary and Proper Clause, art. I, § 8,

cl. 18. Jd. at 650, 86 S.Ct. at 1723. The standard to be

used in determining whether legislation is appropriate

under the Necessary and Proper Clause was formulated in

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 4

L.Ed. 579 (1819):

Let the end be legitimate, let it be within the

scope of the constitution, and all means which

are appropriate, which are plainly adapted to

that end, which are not prohibited, but consist

37a

with the letter and spirit of the constitution, are

constitutional.

Id.

[5] Using the McCulloch test, to determine if

legislation enacted pursuant to the Fourteenth

Amendment is appropriate, a court must determine

whether the legislation: (1) is plainly adapted to the end

of enforcing the Equal Protection Clause, and (2) is not

prohibited by, but is consistent with the "letter and spirit

of the constitution." Morgan, 384 U.S. at 651, 86 S.Ct. at

1723.

Defendants cite Pierce v. King for the proposition that

the ADA is not adapted to enforcing the Fourteenth

Amendment. Pierce v. King, 918 F.Supp. 932, 940

(E.D.N.C.1996). The argument in Pierce begins with the

assumption that "[t]he Fourteenth Amendment has

traditionally been understood as protecting individuals

from state action that would infringe upon individual

liberties." Jd. The argument continues with the

contention that the ADA is_ unlike traditional

anti-discrimination laws because the ADA creates

entitlements whereas the traditional laws seek to produce

an environment in which individuals are treated in a

neutral manner. Jd. Defendants contend that mandates

for prisons to conduct self-evaluations, complete transition

plans, establish grievance procedures, and provide notice

of the ADA to inmates are administrative burdens that

are unconnected with the Fourteenth Amendment’s

prohibition against discrimination. They say that

obligations to identify inmates with learning disabilities

and to provide special programs for them distort notions

of equal treatment. Similarly, they contend that the

requirement of certain structural accessibility features goes

far beyond anything that could be based on the

Fourteenth Amendment.

38a

The Court disagrees with Defendants’ theory. Some

of the findings made by Congress in enacting the ADA

are that: (1) discrimination against disabled individuals in

the form of isolation and segregation is a serious and

pervasive social problem; (2) disabled individuals are a

discrete and insular minority who have been subjected to

a history of unequal treatment and relegated to a position

of political powerlessness based upon false stereotypical

assumptions; and, (3) the Nation’s goals are to assure

equality, full participation, independent living and

economic self-sufficiency to individuals with disabilities. 42

US.C. § 12101(a). Congress indicated in the ADA that it

intended to invoke its full authority under the Fourteenth

Amendment to address nationwide discrimination against

the disabled. 42 U.S.C. § 12101(b)(4).

Rectifying discrimination often has taken the form of

the prohibition of action that is discriminatory. Perhaps,

as Defendants argue, this is the traditional manner in

which legislation under the Fourteenth Amendment has

been framed. However, eliminating discrimination may

require affirmative relief. See City of Richmond v. JA.

Croson Co., 488 U.S. 469, 490, 109 S.Ct. 706, 720, 102

L.Ed.2d 854 (1989) (O’Conner, J., concurring and

dissenting) ("The power to ‘enforce’ [the Fourteenth

Amendment] may at times also include the power to

define situations which Congress determines threaten

principles of equality and to adopt prophylactic rules to

deal with those situations.")

[6] The goal of the ADA, to eliminate discrimination

against an identifiable group of individuals, is a proper

invocation of the Equal Protection Clause. See City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47, 105

S.Ct. 3249, 3257-58, 87 L.Ed.2d 313 (1985) (holding that

persons with disabilities are entitled to protection under

the Fourteenth Amendment). The practical effect of the

ADA will be to eliminate barriers against entry into

physical structures, into ongoing programs and services, _

39a

and into the mainstream of society itself for many

individuals with disabilities. While this may require

affirmative measures on the part of correctional

institutions to insure inclusion of those who are now

excluded from the mainstream of prison life, the

requirement of such measures does not exceed the

authority granted to Congress under § 5 of the Fourteenth

Amendment. The ADA, therefore, meets the first prong

of the McCulloch test.

[7] Defendants have not argued that the ADA is

inconsistent with the letter and spirit of the constitution.

The Court, therefore, finds that the ADA meets the

second prong of the McCulloch test. That Congress has

invoked the Commerce Clause as well as the Fourteenth

Amendment as authority for the ADA does not alter the

conclusion that, under the McCulloch standard, the ADA

is legitimate legislation, pursuant to the Fourteenth

Amendment, focused on deterring discrimination on the

part of the states. See EEOC v. County of Calumet, 686

F.2d 1249, 1253 (7th Cir.1982) (noting that Congress, in

enacting modern civil rights legislation, reaches private

discrimination indirectly through the Commerce Clause

and reaches state discrimination directly through the

Fourteenth Amendment). The Court holds that the ADA

was legitimately enacted pursuant to Congress’ authority

under the Fourteenth Amendment.

B. The Rehabilitation Act was Enacted Pursuant to the

Spending Clause and the Fourteenth Amendment

Unlike the ADA, the Rehabilitation Act is silent as to

the constitutional authority under which it was enacted.

Defendants contend that a close reading of the statute,

together with an ana‘ogy to similar statutes, leads to the

conclusion that the Rehabilitation Act is authorized by

Congress’ spending power, and not by the Fourteenth

Amendment. That the Rehabilitation Act applies only to

40a

those entities that receive federal funds is the primary

basis for Defendants’ contention.

[8] Defendants point to Title VI, 42 U.S.C. § 2000d

et seq., and Title IX, 20 U.S.C. § 1681 et seq., of the Civil

Rights Act of 1964 as support for their argument. Title

VI prohibits discrimination on the basis of race, color, or

national origin by any program or activity receiving federal

financial assistance. 42 U.S.C. § 2000d. Based upon the

legislative history, the Supreme Court determined that

Congress intended to enact Title VI pursuant to its

spending power. Guardians Ass'n v. Civil Serv. Comm'n,

463 U.S. 582, 598-99, 103 S.Ct. 3221, 3230-31, 77 L.Ed.2d

866 (1983). Title IX prohibits discrimination on the basis

of sex by any educational program or activities receiving

federal financial assistance. 20 U.S.C. § 1681(a). The

Supreme Court has reserved the question of whether Title

IX was enacted under the Spending Clause or under the

Fourteenth Amendment. Franklin v. Gwinnett County

Pub. Schs., 503 U.S. 60, 75 n. 8, 112 S.Ct. 1028, 1037 n. 8,

117 L.Ed.2d 208 (1992). The Fifth Circuit, in Rowinsky v.

Bryan Indep. Sch. Dist., for a variety of reasons, adopted

x the view that Title IX was enacted under the Spending

: Clause. Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006,

1012 n. 14 (Sth Cir.1996), petition for cert. filed, 65

US.L.W. 3033 (U.S.July 1, 1996) (No. 96-4). First, Title

IX was modeled after Title VI and uses identical

language. That the Supreme Court in Guardians Ass’n

held that Title VI was enacted pursuant to the Spending

Clause strongly suggests that Title IX also was enacted

under the Spending Clause. Jd. Second, Title IX

regulates purely private educational institutions. The

receipt of federal funds does not transform a private

school into a state actor for purposes of the Fourteenth

Amendment. /d. Third, the funding incentives provided

in Title IX indicate that Congress did not intend to

impose absolute obligations on the States. id.

Defendants’ argument that the Rehabilitation Act, like

Titles VI and IX, is enacted under the Spending Clause

4la

because it, too, applies only to those entities that receive

federal funding is well-taken. However, the contentions of

Plaintiffs and amicus that the Rehabilitation Act was

enacted under the Fourteenth Amendment are also

persuasive. Furthermore, because the language and

purpose of the Rehabilitation Act are virtually identical to

that of the ADA, and because this Court has found that

the ADA was validly enacted pursuant to the Fourteenth

Amendment, it follows that the Rehabilitation Act, also,

was enacted under the Fourteenth Amendment.

Plaintiffs point out that two Supreme Court cases

indicate that the Rehabilitation Act was passed under the

Fourteenth Amendment. In Atascadero State Hosp. v.

Scanlon, the Supreme Court stated, "Petitioners conceded

... that the Rehabilitation Act was passed pursuant to §

5 of the Fourteenth Amendment. Thus, we first analyze

§ 504 in light of Congress’ power under the Fourteenth

Amendment to subject unconsenting States to federal

court jurisdiction." Scanlon, 473 U.S. 234, 244 n. 4, 105

S.Ct. 3142, 3148 n. 4, 87 L.Ed.2d 171 (1985). Because the

issue of Congressional authority was not in dispute in

Scanion, that case is not determinative of the issue. The

Supreme Court noted in Welch v. Texas Dept. of Highways

and Pub. Transp. that "[t]he question in Scanlon was

whether § 504 of the Reh»bilitation Act of 1973, 29 U.S.C.

§ 794, makes state agencies subject to suits for retroactive

monetary relief in federal court. The Rehabilitation Act

was passed pursuant to § 5 of the Fourteenth

Amendment. Congress therefore had the power to

subject unconsenting States to suit in federal court."

Welch, 483 U.S. 468, 472 n. 2, 107 S.Ct. 2941, 2945 n. 2, 97

L.Ed.2d 389 (1987) (citing Scanlon). Welch provides

further evidence that the Supreme Court considers that

Congress enacted the Rehabilitation Act pursuant to the

Fourteenth Amendment. But, this statement is dicta.

In Dep’t of Educ., State of Haw. v. Katherine D., the

district court held that the Rehabilitation Act was enacted

0 EE ee ae

42a -

pursuant to Congress’ power under the Fourteenth

Amendment. Department of Education v. Katherine D.,

531 F.Supp. 517, 530 (D.C.Haw.1982), aff'd in part, rev'd

in part on other grounds, 727 F.2d 809 (9th Cir.1983), cert.

denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260

(1985). The court based its holding on its analysis of

legislative history and Congress’ intent, as specifically

explicated in the Act, to effectuate equal opportunity for

disabled citizens. Jd. The court concluded that this

legislative goal is "precisely the specific legislative intent to

effectuate the equal protection rights guaranteed by the

Fourteenth Amendment which [the Supreme Court]

recognized." Jd. (citing Fitzpatrick v. Bitzer, 427 U.S. 445,

456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976) and Hutto

v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522

(1978)).

[9-11] Congress may enact legislation pursuant to

more than one of its constitutional powers. See EEOC v.

County of Calumet, 686 F.2d at 1253. The Court finds

that Congress utilized its authority under the Spending

Clause and under § 5 of the Fourteenth Amendment of

the Constitution in enacting the Rehabilitation Act.

Because the Court finds that Congressional authority for

the ADA and the Rehabilitation Act arises in the

Fourteenth Amendment, the Eleventh Amendment does

not immunize Defendants from suit.

C. Doctrine of Ex parte Young

{12, 13] Even if Defendants were immune under the

Eleventh Amendment, their immunity would be subject to

the exception of Ex parte Young, 209 U.S. 123, 155-56, 28

S.Ct. 441, 452-53, 52 L.Ed. 714 (1908). Ex parte Young —

created an exception to the principle that States may not

be sued in federal court unless they consent, or unless

Congress, pursuant to a valid exercise of power,

unambiguously expresses its intent to abrogate the States’

immunity. Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. _

4

43a

423, 426, 88 L.Ed.2d 371 (1985). Ex parte Young held that

the Eleventh Amendment does not preclude federal courts

from granting prospective injunctive relief to prevent

individual state officials from violating federal law. Young,

209 U.S. at 155-56, 28 S.Ct. at 452-53; Green, 474 US. at

68, 106 S.Ct. at 426.

Citing Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682, 687, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628

(1949) superseded in part by 5 U.S.C. § 702, Defendants

argue that Young is inapplicable because Plaintiffs’ claims

are essentially directed against the State, not against the

individuals named in the suit. In Larson, the Court

explained that a suit nominally addressed to a government

employee, but which actually requires relief against the

government, is barred because the court, in the absence of

consent, has no jurisdiction over a suit against the

government. Larson, 337 U.S. at 688, 69 S.Ct. at 1460.

However, there are exceptions to this rule. Id. at 689, 69

S.Ct. at 1461. One exception is a case in which the statute

conferring power on the government employee is

unconstitutional, because the conduct against which relief

is sought is beyond the employee’s powers and is,

therefore, not the conduct of the government. Jd. at 690,

69 S.Ct. at 1461. This exception is based on the same

reasoning as that relied upon in Young. "The theory of

Young was that an unconstitutional statute is void, and

therefore does not ‘impart to [the official] any immunity

from responsibility to the supreme authority of the United

States". Green, 474 USS. at 68, 106 S.Ct. at 426 (citing

Young, 209 U.S. at 159-60, 28 S.Ct. at 453-54). By the

same token, Young also held that officials do not have

immunity for a continuing violation of federal law. Jd.

That courts have applied the Young doctrine in cases

in which inmates sue state prison officials for violations of

federal law is further evidence that Larson does not apply

to the case at bar. See e.g. Thompson v. Enomoto, 915

F.2d 1383, 1390 (9th Cir.1990), cert. denied by Rowland v.

44a

Thompson, 502 U.S. 1071, 112 S.Ct. 965, 117 L.Ed.2d 131

(1992) (holding that state officials not immune, under

Young, from suits alleging constitutional violations); Duran

v. Carruthers, 885 F.2d 1485, 1489 (10th Cir.1989), cert.

denied, 493 .U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949

(1990) (under Young, prison officials not immune from

suit alleging violations of federal constitution and federal

statutes). Here, Plaintiffs seek prospective injunctive

relief only against state officials acting in their official

capacity. Under these circumstances, Larson does not

apply.

Defendants also argue that, because the ADA and

the Rehabilitation Act have detailed enforcement schemes

limiting remedies against the State, they come under the

exception to Ex parte Young applied by the Supreme

Court in Seminole Tribe. In Seminole Tribe, the Court

stated that ". . . where Congress has prescribed a detailed

scheme for the enforcement against a State of a statutorily

created right, a court should hesitate before casting aside

those limitations and permitting an action against a state

officer based upon Ex parte Young." Seminole Tribe, ---

US. at ----, 116 S.Ct. at 1132.

The Indian Gaming Regulatory Act (the "IGRA") was

the subject of the Court’s inquiry in Seminole Tribe. Id.,

at ----, 116 S.Ct. at 1119. The Court found that the IGRA

provides for specific limited remedies against the State.

Id. The Court reasoned that the limited statutory

remedies would be superfluous if a state official could be

exposed to the full remedial powers of a federal court in

an action brought under Ex parte Young. Id., at ----, 116

S.Ct. at 1133. The Court also reasoned that Congress’

creation of the limited remedial scheme is a strong

indication that it had no wish to expose States to liability

under Ex parte Young. Id.

Defendants argue that, like the IGRA, the

Rehabilitation Act and the ADA have limited remedial

45a

schemes, but Defendants do not specify what they are. To

the contrary, the Ninth Circuit has held that "the full

panoply of remedies, including equitable relief and

monetary damages" are available under the Rehabilitation

Act. Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990),

cert. denied, 501 U.S. 1217, 111 S.Ct. 2825, 115 L.Ed.2d

995 (1991); see also Franklin v. Gwinnett County Pub.

Schs., 503 U.S. at 72-73, 112 S.Ct. at 1036-37 (stating that

the Rehabilitation Act provides a private litigant the full

panoply of remedies). The ADA specifically incorporates

the "remedies, procedures,. and rights" of the

Rehabilitation Act. 42 U.S.C. § 12133. Under Ex parte

Young, Defendants are not immune from this lawsuit.

CONCLUSION

For the foregoing reasons, Defendants’ motion for

summary judgment is DENIED.

IT IS SO ORDERED.

46a

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DERRICK CLARK and AMBROSE

WOODS, Individually and on Behalf of all

Others Similarly Situated,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor, No. 96-16952

v. D.C. No.

CV-96-1486-FMS

OPINION

STATE OF CALIFORNIA,

CALIFORNIA DEPARTMENT OF

CORRECTIONS, PETE WILSIN,

GOVERNOR; JOSEPH SANDOVAL,

Sec. of Youth & Corr.; JAMES GOMEZ,

DIRECTOR, Department of Corr.; KYLE

S. MCKINSEY; NADIM KHOURY, M.D.,

JOHN ZIL, Chief Psychiatric.

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Fern M. Smith, District Judge, Presiding

Argued and Submitted

June 9, 1997--San Francisco, California

Filed August 27, 1997

Before: Alfred T. Goodwin, Dorothy W. Nelson, and

Stephen S. Trott, Circuit Judges.

Opinion by Judge Goodwin

Rear streneemmnsnmcmeneseemeenmimeemcinmenneseessuynns

SUMMARY

Individual Rights/Disabilities

The court of appeals affirmed a judgment of the

district court. The court held that the Americans with

Disabilities Act (ADA) and the Rehabilitation Act (RA)

were validly enacted by Congress pursuant to its powers

under the Enforcement Clause of the Fourteenth

Amendment.

Appellee Derrick Clark and other disabled California

prisoners sued appellant State of California and several of

its officials, alleging claims under the ADA, §$ 504 of the

RA, and 42 U.S.C. § 1983. The district court denied a

defense motion to dismiss on the ground of Eleventh

Amendment sovereign immunity, ruling that Congress

validly abrogated the State’s immunity. The State

appealed.

[1] Under the Eleventh Amendment, a state is not

subject to suit by its own citizens in federal court.

However, Congress can abrogate a state’s immunity from

suit, or the state can waive it. [2] Congress unequivocally

expressed its intent to abrogate thestates’ immunity under

both the ADA and the RA. The only issue was whether

Congress acted udner a valid exercise of its power.

[3] Congress acts pursuant to a valid exercise of

power in abrogating the immunity if Congress enacts

legislation pursuant to the Enforcement Clause of the

Fourteenth Amendmetn. A statute is appropriate

legislation and may be regarded as an enactment to

enforce the Equal Protection Clause if it is plainly adapted

48a

to that end, and it is not prohibited but it consistent with

the letter and spirit of the Constitution.

[4] Congress’s power to pass legislation under the

Fourteenth Amendment is very broad, and may create

broader equal protection rights than the Constitution itself

mandates. [5] At the same time, Congress’s powers under

the Fourteenth Amendment are not unlimited. The

Supreme Court retains the power to decree the substance

of the Fourteenth Amendment's restrictions on the states,

and Congress may not enlarge those rights. Enforcement

legislation must also evidence a congruence and

proportionality between the injury to be prevented and

the means adopted to that end.

[6] Discrimination against the disabled is a form of

discrimination that is protected against by the Equal

Protection Clause. The purpose of both the ADA and §

504 of the RA is to prohibit discrimination against the

disabled. Both the ADA and the RA are therefore within

the scope of appropriate legislation under the Equal

Protection Clause. Neither provides remedies so sweeping

that they exceed the harms that they are designed to

redress. Both the ADA and the RA were validly enacted

under the Fourteenth Amendment.

[7] The levels of scrutiny in equal protection cases

are standards for determining the validity of the state

legislation or other official action that is challenged. The

State cited no case holding that these levels of scrutiny

define the limits of Congress’s power to enforce the

Fourtenth Amendment.

[8] In enacting the ADA, Congress announced that

it was acting pursuant to its Fourteenth Amendment

powers. Although the constitutionality of action taken by

Congress does not depend on recitals of power that it

understakeks to exercise, courts give great deference to

congressional statements.

49a

[9] Supreme Court opinions have consistently

considered § 504 to be enactyed pursuant to the

Fourteenth Amendment, and the Ninth Circuit has

expressly held that the RA was passed pursuant to § 5 of

the Fourteenth Amendment.

[10] The RA includes an express waiver of Eleventh

Amendment immunity that California accted when it

accepted RA funds. Even if Congress has not abrogated

a state’s immunity under the Eleventh Amendment, a

state may waive it. One way for a state to waive its

immunity is to accept federal funds where the funding

statute manifests a clear intent to condition participation

in the funded programs on a state’s consent to waive its

immunity. [11] The RA manifests a clear intent to

condition a state’s participation on its consent to waive its

Eleventh Amendment immunity. Because California

accpted federal funds under the RA, California waived

any immunity under the Eleventh Amendment.

COUNSEL

William Jenkins and James M. Humes, Deputy Attorneys

General, San _ Francisco, California, for the

defendants-appellants.

Caroline N. Mitchell, Pillsbury Madison & Sutro, San

Francisco, California; Donald H. Spector, Prison Law

Office, San Quentin, California, for the

plaintiffs-appellees.

Seth M. Galanter, United States Department of Justice,

Washington, D.C., for intervenor United States of

America.

50a

OPINION

GOODWIN, Circuit Judge:

The State of California appeals the denial of its

motion to dismiss on the ground that the Eleventh

Amendment bars this action against the state. Plaintiffs

sued under Title II of the Americans With Disabilities

Act, 42 U.S.C. §§ 12131-34 ("ADA"), and section 504 of

the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("section

504" or "Rehabilitation Act"). We agree with the district

court that both acts are valid exercises of Congress’s

power under Section 5 of the Fourteenth Amendment,

and we affirm.

JURISDICTION

This court has jurisdiction to hear an interlocutory

appeal from an order denying a state’s motion to dismiss

on the ground of immunity under the Eleventh

Amendment. Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1993).

FACTS

Plaintiffs allege that they are a class of all individuals

who have developmental disabilities, that they are

incarcerated in correctional facilities operated by the State

of California, and that they have suffered discrimination

because of their disabilities. Plaintiffs seek injunctive relief

under the ADA, the Rehabilitation Act, and 42 U.S.C. §

1983 against the State of California and the named state

officials in their official capacities. Plaintiffs allege in part

that the defendants have discriminated against them based

on their disabilities.

The State of California moved to dismiss the

complaint, claiming immunity under the Eleventh

Amendment to suits brought under the ADA and the

5la

Rehabilitation Act. The district court denied the motion,

holding that Congress had validly abrogated the State’s

immunity. California now appeals.

DISCUSSION

[1] Under the Eleventh Amendment, a state is not

subject to suit by its own citizens in federal court. U.S.

Const. amend. XI; Edelman v. Jordan, 415 U.S. 651, 662

-63 (1974). Congress can, however, abrogate a state’s

immunity to suit, or the state can waive it. Atascadero

State Hosp. v. Scanlon, 473 U.S. 234, 240-41 (1985).

We first inquire whether Congress properly abrogated

the immunity of the state from suit by applying Seminole

Tribe v. Florida, 116 S. Ct. 1114 (1996). The Seminole

Tribe test contains two parts: "first, whether Congress

has‘unequivocally expressed its intent to abrogate the

immunity;’ and second, whether Congress has acted

‘pursuant to a valid exercise of power’ " in abrogating the

immunity. Jd. at 1123 (quoting Green v. Mansour, 474 US.

64, 68 (1985)).

[2] Here, Congress has unequivocally expressed its

intent to abrogate the State’s immunity under both the

ADA and the Rehabilitation Act. Section 42 U.S.C. §

12202 of the ADA explicitly states, "A State shall not be

immune under the eleventh amendment." See also Duffy

v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996). Similarly, 42

U.S.C. S$ 2000d-7(a)(1) of the Rehabilitation Act explicitly

states, "A State shall not be immune under the Eleventh

Amendment of the Constitution of the United States from

suit in Federal court for a violation of section 504 of the

Rehabilitation Act of 1973. " The only issue before this

court, therefore, is whether Congress acted under a valid

exercise of its power.

[3] Under the Supreme Court’s decision in Seminole

Tribe, Congress "act[s] pursuant to a valid exercise of

52a

power" in abrogating the immunity if Congress enacts

legislation pursuant to the enforcement clause of the

Fourteenth Amendment. Seminole Tribe, 116 S. Ct. at

1123, 1125. The parties agree that a statute is

"appropriate legislation" to enforce the Equal Protection

Clause if the statute "may be regarded as an enactment to

enforce the Equal Protection Clause, [if ] it is ‘plainly

adapted to that end’ and [if] it is not prohibited by but is

consistent with ‘the letter and spirit of the constitution.”

Katzenbach v. Morgan, 384 U.S. 641, 651 (1966).

[4] The Supreme Court has defined the Equal

Protection Clause to mean "that no State shall deny to any

person within its jurisdiction the equal protection of the

laws, which is essentially a direction that all persons

similarly situated should be treated alike." City of

Cleburne v. Cleburne LivingCtr., Inc., 473 U.S. 432, 439

(1985) (internal quotations omitted). Congress’s power to

pass legislation under the Fourteenth Amendment is very

broad. As the Supreme Court explained:

Correctly viewed, § 5 is a positive grant of

legislative power authorizing Congress to

exercise its discretion in determining whether

and what legislationis needed to secure the

guarantees of the Fourteenth Amendment.

Katzenbach, 384 US. at 651. The Fourteenth Amendment

gives Congress the same broad powers as does the

Necessary and Proper Clause. See id. at 650. Congress’s

powers under the Fourteenth Amendment extend beyond

conduct which is unconstitutional, and Congress may

create broader equal protection rights than _ the

Constitution itself mandates. See id. at 648-49.

[5] At the same time, Congress’s powers under the

Fourteenth Amendment are not unlimited. The Supreme

Court retains the power to decree the substance of the

Fourteenth Amendment’s restrictions on the states, and

Atalanta iii |

53a

Congress may not enlarge those rights. City of Boerne v.

P.F. Flores, 117 S. Ct. 2157, 2166 (1997). Also,

enforcement legislation must evidence a congruence and

proportionality between the injury to be prevented or

remedied and the means adopted to that end. Jd. at 2169.

Congress acts within its authority under the Fourteenth

Amendment if the court can perceive a basis upon which

Congress might predicate a judgment that the state action

“constituted an invidious discrimination in violation of the

Equal Protection Clause." Katzenbach, 384 U\S. at 656.

[6] The Supreme Court has previously held that

discrimination against the disabled is a form of

discrimination protected under the Equal Protection

Clause. See City of Cleburne, 473 US. at 450. Here, the

purpose of both the ADA and section 504 of the

Rehabilitation Act is to prohibit discrimination against the

disabled. See 42 U.S.C. § 12101(b) (ADA); 29 U.S.C. §

701(b)(1)(F) (Rehabilitation Act). In both acts, Congress

explicitly found that persons with disabilities have suffered

discrimination. See 42 U.S.C. § 12101(a) (ADA); 29

U.S.C. § 701(a)(5) (Rehabilitation Act). Both the ADA

and the Rehabilitation Act therefore are within the scope

of appropriate legislation under the Equal Protection

Clause as defined by the Supreme Court. At the same

time, neither act provides remedies so sweeping that they

exceed the harms that they are designed to redress. We

therefore agree with the district court that both the ADA

and the Rehabilitation Act were validly enacted under the

Fourteenth Amendment.

[7] We reject California’s argument that Congress’s

power must be limited to the protection of those classes

found by the Court to deserve "special protection" under

the Constitution. The State does not explain why the

Court’s choice of a level of scrutiny for purposes of

judicial review should be the boundary of the legislative

power under the Fourteenth Amendment, nor have we

found any case to so hold. The levels of scrutiny in equal

S4a

protection cases are "standards for determining the validity

of state legislation or other official action that is

challenged as denying equal protection." City of Cleburne,

473 US. at 439-40. The State cites no case which holds

that these levels of scrutiny define the limits of Congress’s

power to enforce the Fourteenth Amendment.

[8] In our holding with respect to the ADA,

moreover, we follow Congress’s own determination of its

powers. In enacting the ADA, Congress announced that

it was acting pursuant to its Fourteenth Amendment

powers. See 42 US.C. § 12101(b)(4). Although "the

constitutionality of action taken by Congress does not

depend on recitals of power which it undertakes to

exercise," Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144

(1948), we give great deference to congressional

statements. See, e.g., Wilson-Jones v. Caviness, 99 F.3d

203, 210 (6th Cir. 1996) (holding that a clear indication

from Congress is the simplest way to show that a statute

is enacted under the Fourteenth Amendment), amended

on other grounds, 107 F.3d 358 (6th Cir. 1997).

[9] Also, in our holding with respect to the

Rehabilitation Act, we follow past decisions of our court

as well as those of the Supreme Court. Supreme Court

opinions have consistently considered section 504 to be

enacted pursuant to the Fourteenth Amendment. In its

opinion in Atascadero, the Supreme Court assumed

without deciding that the Rehabilitation Act was enacted

under the Fourteenth Amendment. See Atascadero, 473

U.S. at 244 n.4. In dicta in a later case, the Supreme

Court expressly noted that "[t]he Rehabilitation Act was

passed pursuant to S 5 of the Fourteenth Amendment."

Welch v. Texas Dep’t of Highways & Pub. Transp., 483 US.

468, 472 n.2 (1987). Moreover, our own court has

expressly held that the Rehabilitation Act was enacted

under the Fourteenth Amendment. See Scanlon v.

Atascadero State Hosp., 735 F.2d 359, 361 (9th Cir. 1984),

rev'd on other grounds, 473 U.S. 234 (1985).

55a

[10] We note also that the Rehabilitation Act

includes an express waiver of Eleventh Amendment

immunity which California accepted when it accepted

Rehabilitation Act funds. Even if Congress has not

abrogated a state’s immunity under the Eleventh

Amendment, a state may waive it. See Seminole Tribe, 116

S. Ct. at 1128. One way for a state to waive its immunity

is to accept federal funds where the funding statute

“manifest[s] a clear intent to condition participation in the

programs funded under the Act on a State’s consent to

waive its constitutional immunity." Atascadero, 473 U.S. at

247.

[11] In this case, the Rehabilitation Act manifests a

clear intent to condition a state’s participation on its

consent to waive its Eleventh Amendment immunity. “he

amended Rehabilitation Act provides:

(1) A State shall not be immune under the

Eleventh Amendment . . . from any suit in

Federal court for a violation of section 504 of

the Rehabilitation Act of 1973 . . . of the

provisions of any other Federal statute

prohibiting discrimination by recipients of

Federal financial assistance.

42 U.S.C. § 2000-7. The Supreme Court has characterized

this section as "an unambiguous waiver of the States’

Eleventh Amendment immunity." Lane v. Pena, 116S. Ct.

2092, 2100 (1996). Because California accepts federal

funds under the Rehabilitation Act, California has waived

any immunity under the Eleventh Amendment.

Finally, we note that plaintiffs’ suit may go forward

against the named officials under the doctrine of Ex parte

Young, 209 U.S. 123 (1908). See Armstrong v. Wilson, No.

96-16870 (9th Cir. , 1997).

AFFIRMED.

56a

Derrick CLARK, et al., Plaintiffs,

v.

STATE of California, et al., Defendants.

No. C 96-1486-FMS.

United States District Court, N.D. California.

Oct. 1, 1996.

Developmentally disabled state prisoners brought suit

on behalf of themselves and all developmentally disabled

prisoners for injunctive relief under Rehabilitation Act

(RA) and Americans with Disabilities Act (ADA), and

under § 1983 for violation of their constitutional rights.

State officials moved to dismiss. The District Court, Fern

M. Smith, J., held that: (1) state officials were not immune

from suit; (2) prisoner stated claims for violation of RA,

ADA, and Eighth Amendment; but (3) prisoners failed to

state claim, under § 1983, for violation of their due

process rights.

Granted in part and denied in part.

ORDER DENYING IN PART, GRANTING IN

PART, DEFENDANTS’ MOTION TO DISMISS

SMITH

ISSUES

Defendants’ motion to dismiss requires the Court to

consider (1) whether plaintiffs have standing to bring their

claims; (2) whether Section 504 of the Rehabilitation Act

of 1973 ("IRA" or "Section 504"), 29 U.S.C. § 794, and

Title II of the Americans With Disabilities Act ("ADA"),

42 U.S.C. § 12131-34, are applicable to state prisons; (3)

57a

whether the Eleventh Amendment immunizes defendants

from a su,it based on the RA or the ADA; and (4)

whether plaintiffs sufficiently pled their claims under the

RA, ADA, and 42 U.S.C. § 1983 (" § 1983") to survive a

motion to dismiss.

INTRODUCTION

Plaintiffs, Derrick Clark and Ambrose Woods, two

developmentally disabled state prisoners, brought suit on

behalf of themselves and all developmentally disabled

prisoners confined at various correctional facilities

operated by the State of California through the California

Department of Corrections for injunctive relief under the

RA and the ADA. Plaintiffs also brought a claim under

§ 1983 for violations of their Sixth, Eighth, and Fourteenth

Amendment rights. Defendants, the State of California,

the California Department of Corrections, and

various-California state officials being sued in their official

capacities, have filed a motion to dismiss plaintiffs, first,

second, and part of plaintiffs, third causes of action

pursuant to Federal Rule of Civil Procedure 12(b)(6).”

BACKGROUND

The facts set forth in this section are based on

plaintiffs, allegations and are presumed true for purposes

of this motion.

1. The named individual defendants are Pete Wilson, Governor;

Joseph Sandoval, Secretary of Youth and Corrections; James Gomez,

Director of the Department of Corrections; Kyle S. McKinsey, Deputy

Director for Health Care Services; Nadim Khoury, M.D., Assistant

Deputy Director for Medical Service; and John S. Zil, M.D., Chief,

Psychiatric Services (although parties have informally agreed that

defendant Zil does not serve in the official capacity as alleged in the

complaint, and the parties intend to substitute the proper state

official for Dr. Zil at a later date).

58a

Plaintiff Derrick Clark ("Clark") is currently

incarcerated at Pelican Bay State Prison. Clark has been

incarcerated at San Quentin State Prison; California State

Prison, Solano; Correctional Training Facility, Soledad;

and Mule Creek State Prison. Clark is developmentally

disabled and has an I.Q. of less than 60. Clark can

neither read nor write, except to sign his name. Plaintiff

Ambrose Woods ("Woods") is currently incarcerated at

North Kern State Prison and was previously incarcerated

at Pelican Bay State Prison. He is also developmentally

disabled and a slow learner and, like Clark, has difficulty

understanding prison rules and disciplinary procedures.

Clark, Woods, and similarly situated class members

cannot obtain necessary and adequate accommodations,

protection, and services because of their disabilities. For

instance, Clark was denied medication because of his

"stupidity" and, although recommended for placement in

Category K, a designation for prisoners with mental

retardation, he was denied access to the program. Woods

was denied access to work and education programs and

was rejected from a reading program because of his

"stupidity." Furthermore, because they are less able to

comply with prison rules and procedures, they are more

likely to be forced into isolation or segregation and to be

deprived of good time credits and other services, benefits,

and privileges available to non-disabled prisoners.

Plaintiffs also claim that they have been subjected to a

variety of administrative proceedings, including disciplinary

actions, without adequate assistance to help them

understand the proceedings and the rights implicated by

them. Clark and Woods are also more likely to be

physically and mentally abused by the general prison

population because of their disabilities.

Plaintiffs seek injunctive and declaratory relief,

demanding: that defendants ensure that disabled inmates

are apprised of and understand the administrative

proceedings to which they are subjected and the rights

Mis a NN

59a

implicated thereunder; that defendants grant disabled

inmates access to educational programs, medical services,

and other activities generally open to non-disabled

prisoners; and that defendants take reasonable steps to

ensure the health and safety of disabled inmates.

DISCUSSION

I. The Legal Standard.

A motion to dismiss pursuant to Rule 12(b)(6) tests

the sufficiency of the complaint. North Star Int v. Arizona

Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.1983).

Dismissal of an action pursuant to Rule 12(b)(6) is

appropriate only if it "appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Levine v.

Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir.1991)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46). In

reviewing the motion, the Court must assume all factual

allegations to be true and must construe them in the light

most favorable to plaintiff, the nonmoving party. North

Star, 720 F.2d at 580. Legal conclusions, however, not be

taken as true merely because they are cast in the form of

factual allegations. Western Mining Council Watt, 643 F.2d

618, 624 (9th Cir.), cert. denied, 45 1031 (1981).

II. Plaintiffs’ Standing to Seek Injunctive

and Declaratory Relief.

[1, 2] The Supreme Court has developed a three-part

test for standing, a constitutional prerequisite inherent in

Article III’s "case or controversy" requirement. The first

element is "injury in fact:" plaintiff must have suffered . .

. "an invasion of a legally protected interest which is (a)

concrete and particularized; and (b) actual or imminent’,

not ‘conjectural, or *hypothetical.”" Lujan v. Defenders of

Wildlife, 504 U.S. 555, 559-61 (1992). The second and

60a

third elements of the test are causation and redressability.

Id.

In this case, the RA, ADA, and § 1983 create the

legal rights that plaintiffs allege were violated by

defendants. See infra, parts III., IV., V., VI. Plaintiffs

allege they are denied access to programs, benefits, and

activities because of their disabilities. Plaintiffs also allege

that they are treated differently than non-disabled inmates

because of their disabilities. Plaintiffs further allege that

they are more susceptible to physical and mental abuse

because they are disabled, Although by no means detailed,

the plaintiffs, complaint contains a few examples of the

direct and actual injuries allegedly incurred by Clark and

Woods. Furthermore, defendants are the cause of the

injuries, and action by this Court could redress plaintiffs’

alleged injuries. Accordingly, this Court finds that Clark

and Woods have standing to pursue their RA, ADA, and

§ 1983 claims.

Defendants argue that Clark and Woods do not have

standing to pursue claims based on injuries to other

developmentally disabled prisoners who are incarcerated

in different prisons. This argument is premature.

Defendants have confused plaintiffs, standing with their

adequacy to serve as class representatives, which is a

question more appropriately addressed in connection with

the class certification determination.

III. Application of the RA and the ADA to

State Prisons.

A. The RA.

[3] Despite clear Ninth Circuit authority that the RA

applies to state prison facilities, Bonner v. Lewis, F.2d 559,

562 (9th Cir.1988), defendants ask this Court to conclude

otherwise. Since Bonner, defendants argue, the Supreme

Court has changed the review of the applicability of

6la

federal statutes to states so that absent a clear indication

of congressional intent to apply the RA to state prisons,

a court cannot assume Congress intended to do so. See

Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991) (applying

"plain statement rule").

Defendants cite two cases to support their claim that

Bonner was wrongly decided because it failed to apply the

plain statement rule. In Hale v. Arizona, 993 F.2d 1387,

1393, 1395 (9th Cir.) (en banc), cert. denied, U.S. 946

(1993), the Ninth Circuit refused to extend the Federal

Labor Standards Act to state inmates required by state

law to work at hard labor. In Jeldness v. Pearce, F.3d

1220, 1225 (9th Cir.1994), the Ninth Circuit held that Title

IX, an anti-discrimination statute, applied to state prisons.

In both Hale and Jeldness, the court relied partially on a

review of statutory construction and congressional intent.

Hale, 993 F.2d at 1392; Jeldness, 30 F.3d at 1225.

Defendants contend that the Bonner Court focused

solely on the expansive language of the RA, thereby

violating the scope of review as spelled out in Hale and

Jeldness. The plain statement rule "announced" in

Gregory however, has long been a part of this country’s

jurisprudence; thus, defendants take too far a leap in

concluding that the Ninth Circuit did not take this rule

into account when deciding Bonner. See United States v.

Bass, 404 U.S. 336, 349 (1971) (requirement of clear

statement in traditionally sensitive areas); Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947) {intention should

be clear if Congress intends to pre-empt historic powers

of the states). Although not explicitly stated, the Bonner

Court did look for Congressional intent to apply the RA

to state prisons. For instance, the court found that the

plain language of the RA and its implementing

regulations, 28 C.F.R. § 42.503(f), confirms that Section

504 applies to state prisons. Bonner, 857 F.2d at 562.

62a

According to defendants, the Bonner Court’s reliance

on the Department of Justice’s "DOJ") implementing

regulations was inappropriate because the plain language

rule requires the Court to look at congressional intent, an

intent not properly gleaned from an interpretation by an

executive branch agency, such as the DOJ. According to

the Supreme Court, however, when Congress explicitly

delegates its authority to "construe the statute by

regulation," as was done with the RA, 29 U.S.C. § 794(a),

a court must give the regulations "controlling weight unless

they are arbitrary, capricious, or plainly contrary to the

statute." United States v. Morton, 467 U.S. 822, 834

(1983); see also School Bd. of Nassau County v. Arline, 480

U.S. 273, 279-280 (198 (emphasizing that federal

regulations are "an important source of guidance on the

meaning of § 504") (quoting Alexander v. Choate, 469 U.S.

287, 304 n. 24 (1985)). Ninth Circuit therefore properly

looked to the RA’s implementing regulations in Bonner.

Defendants also claim that Bonner is inapposite

because that ruling relied, in part, on the Ninth Circuit’s

determination that the RA’s goal of rehabilitation mirrors

the goals of Arizona’s prison system, see Bonner, 857 at

562, while it is defendants, contention that the only goal

of California’s prison system is punishment. Plaintiffs cite

numerous statutes in the California Penal Code and

Regulations, however, which indicate that the goal of

many prison programs is much broader than that.

Defendants’ contention does not change the precedential

authority of Bonner.

In short, defendants, challenges to Bonner v. Lewis

are unavailing; therefore, the Court concludes that the RA

applies to state prisons.

B. The ADA.

[4] Defendants again argue that if this Court applies

the plain statement rule, it should find that the ADA does

63a

not apply to state prisons. The Court does not agree.

First, the plain language of the statute indicates that the

ADA expands the reach of the federal anti-discrimination

policy of the RA to “any public entity". Second, as it did

with the RA, Congress explicitly delegated its authority to

the DOJ to create implementing regulations for the ADA.

42 U.S.C, § 12134(a). The DOJ’s regulations explicitly

state that state correctional facilities are governed by the

ADA. 28 C.F.R. § 35.190(b)(6).

Consequently, because of the expansive language of

the ADA and the DOJ’s implementing regulations, the

Court finds that the ADA applies to state prisons. This

result is consistent with the ADA’s legislative history,

which "indicates that Congress intended judicial

interpretation of the RA [to] be incorporated by reference

when interpreting the ADA." Collings v. Longview Fibre

Co., 63 F.3d 828, 832 n. 3 (9th Cir.1995), cert. denied, 116

S.Ct. 711 (1996).

The Court must also reject defendants’ argument that

federal courts should not immerse themselves in the

running of integral state functions, such as the state prison

system. Although most federal judges would strongly

prefer not to take on such supervisory oversight, there is

validity to the Department of Justice’s argument that,

"[w]hile federal courts have acknowledged that deference

is due to the decision of state officials, the courts cannot

abdicate their duties to enforce important civil rights

protections." United States Amicus Curiae Memorandum

of Law in Support of Defs., Motion for Summary

Judgment, Armstrong v. Wilson, No. 94-2307 (Wilken, J.)

(N.D. Cal filed Sept. 20, 1996); see Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528, 546-47 (1985) (states

are not immune from federal regulation of their "integral

state functions").

64a

IV. Defendants’ Immunity From Suit on

Plaintiffs’ ADA and RA Claims.

Defendants argue that plaintiffs, RA and ADA claims

against the state defendants should be dismissed because

states are immune from liability in federal court under the

Eleventh Amendment.”

[5, 6] The Eleventh Amendment generally bars

citizen suits against a state and its agencies and

instrumentalities. Seminole Tribe of Fla. v. Florida, S.Ct.

1114, 1124-25, 1127-28 (1996); Francheschi v. Schwartz, 57

F.3d 828, 831 (9th Cir.1995) (California Municipal court

is arm of state protected from lawsuit by 11th Amendment

immunity); Bennett v. California, 406 F.2d 36, 39 (9th

Cir.1969), cert. denied, 394 U.S. 966 (1969) (State agencies

such as the California Adult Authority and California

Department of Corrections are arms of the State.).

Eleventh Amendment immunity can, however, be waived

by the state or expressly abrogated by Congress.

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240-241

(1985).

[7] To abrogate state immunity, Congress must (1)

unequivocally express its intent to abrogate the immunity,

and (2) act pursuant to a valid exercise of power.

Seminole Tribe, 116 S.Ct. at 1123-32. An exercise of

power is valid if Congress acts pursuant to a constitutional

provision granting Congress the power to abrogate.

Seminole Tribe, 116 S.Ct. at 1125. In Seminole Tribe, the

Supreme Court held that the Fourteenth Amendment

grants Congress the power to enact laws abrogating states,

immunity under the Eleventh Amendment. Jd.

2. This Court will not address any potential sovereign immunity

defense to plaintiffs’ § 1983 claim, which defendants failed to raise in

their brief.

65a

As plaintiff and defendant agree, both the ADA and

the RA contain expressions of an unequivocal intent by

Congress to abrogate state immunity. 42 U.S.C. § 12202;

42 US.C. § 2000d-7(a)(1). The first prong of the

Seminole test is, therefore, satisfied. The remaining

question is whether-Congress enacted the ADA and the

RA pursuant to the Fourteenth Amendment, in which

case immunity would be effectively abrogated, or whether

Congress acted pursuant to another constitutional

provision, in which case states would remain immune from

suit.

A. Plaintiffs’ RA Claim.

[8] Defendants claim that the RA was enacted

pursuant to Congress’s spending power rather than the

Fourteenth Amendment, primarily because the statute

applies only to those entities that receive federal funds.

Defendants also argue that the RA was modeled after

Title VI and Title IX, two statutes previously determined

to have been passed pursuant to the Spending Clause.

Defendants then conclude that Congress does not have

the authority to abrogate state immunity from suits

brought under the RA.

Given the similarity of the RA to the ADA, see infra,

part IV.B., and indications by the Supreme Court,

however, this Court concludes that the RA was passed, at

least in part, pursuant to the Fourteenth Amendment. In

Atascadero, 473 U.S. at 244 n. 4, the Supreme Court

accepted the point, conceded by the parties, that the RA

was enacted under the Fourteenth Amendment and

proceeded to use that assumption as a basis for part of its

interpretation of the RA. Because the issue was not in

dispute, however, Atascadero did not definitively an the

question. Further support for this Court’s interpretation

of the source of the RA is found in Welch v. Texas Dep’t

of Highways and Pub. Transp., 483 U.S. 468, 472 n. 2

(1987), in which the Supreme Court noted, in dicta, that

66a

"{t]he RA was passed pursuant to § 5 of the Fourteenth

Amendment."

Other courts have also followed the Supreme Court’s

lead. For instance, in Department of Education Katherine

D., 531 F.Supp. 517, 530 (D.Haw.1982), aff'd in part, rev'd

in part on other grounds, 727 F.2d 809 (9th Cir.1983), cert.

denied, 471 U.S. 1117 (1985), the court stated: "The

legislative history of . . . section 504 leaves no doubt that

[it] was enacted pursuant to Congress’ power under the

5th section of the Fourteenth Amendment... ." See also,

Miener v. Missouri, 673 F.2d 969, 974 n. 4 (8th Cir.1982),

cert. denied, 459 U.S. 909 (1982) (stating without deciding

that Section 504 arguably rests on Congress’ power to

secure the guarantees of the Fourteenth Amendment);

Brotherhood of Locomotive Engineers v. New Jersey Transit

Rail Operations, Inc., 618 F.Supp. 1456, 1457

(S.D.N.Y.1985) (noting that Atascadero concerned a

statute [the RA] enacted in furtherance of equal

protection, as authorized by the Fourteenth Amendment).

B. Plaintiffs, ADA Claim.

The ADA was enacted to help Congress enforce the

Fourteenth Amendment; the act expressly states this

purpose. 42 U.S.C. § 12101(b)(4). Defendants argument

that the affirmative obligations imposed on the states by

the ADA are outside the scope of the Fourteenth

Amendment because the Fourteenth Amendment was

intended to ensure equal treatment, not equal opportunity,

is unpersuasive.

First, the Supreme Court has confirmed that the

Fourteenth Amendment’s Equal Protection Clause gives

Congress the power to protect people with disabilities

from discrimination. City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 446-47 (1985). Second, both the ADA

and RA are, as required by § 5 of the Fourteenth

Amendment, “appropriate legislation" to enforce the

67a

Equal Protection Clause. See Katzenbach v. Morgan, 384

U.S. 641, 649-50, 651 (1966) (legislation must be (1)

plainly adapted to the end of enforcing the Equal

Protection Clause, and (2) not prohibited by, but rather

consistent with, the "letter and spirit" of the constitution).

The ADA, as well as the RA, are designed to prevent

discrimination based on disability by government or other

public actors. Both statutes are aimed at preventing

discrimination based on disability in programs, services,

and activities provided by covered entities. Both statutes,

therefore, may be regarded as having been enacted to

enforce the protections of the Equal Protection Clause.

Both the ADA and RA are also consistent with the

"letter and spirit" of the Constitution. Section 5 of the

Fourteenth Amendment authorizes Congress to amplify

the Fourteenth Amendment’s substantive protections. See

City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490

(1989) (O’Connor, J., concurring and dissenting)

(Congress, power to enforce the Fourteenth Amendment

includes "the power to .. . adopt prophylactic rules to deal

with those situations" that threaten principles of equality.).

Consequently, Congress may enact laws designed to

ensure equality notwithstanding the possible disparate

effect those laws may have on various groups.”

In sum, because the RA and ADA were enacted

pursuant to the Fourteenth Amendment, Congress

3. It is also true, as defendants contend, that the ADA was partly

enacted pursuant to the Commerce Clause. Congress, however, may

enact legislation pursuant to more than one of its constitutional

powers. See EEOC v. County of Columet, 686 F.2d 1249, 1253 (7th

Cir.1982). Furthermore, the Fourteenth Amendment, rather than the

Commerce Clause, is the traditional constitutional authority for

legislation proscribing state conduct. See id.

68a

satisfied the second prong of the Seminole test and

properly abrogated Eleventh Amendment immunity.**

V. Sufficiency of Allegations Under the RA and ADA.

[9] Plaintiffs claim that defendants violated Section

504 of the RA and Title II of the ADA by denying them

access to and the benefits of education, work programs,

and other activities solely because of their disabilities.

Section 504 of the RA provides, in pertinent part:

No otherwise qualified individual with a disability

in the United States . . . shall, solely by reason of

his or her handicap, be excluded from the

participation in, be denied the benefits of, or be

subjected to discrimination under any program

or activity receiving Federal financial assistance.

29 US.C. § 794(a). Title Il of the ADA provides, in

pertinent part:

Subject to the provisions of this subchapter, no

qualified individual with a disability shall, by

reason of such disability, be excluded from

participation in or be denied the benefits of

services, programs, or activities of a public entity,

or be subjected to discrimination by any such

entity.

4. Because this Court has already decided that defendants are not

immune to suit, this Court need not consider Ex parte Young, 209

U.S. 123 (1908), and progeny.

5. The reasoning and conclusion above are consistent with this

courts, opinion in Armstrong v. Wilson, No. 2307 (Wilken, J.) (N.D.

Cal. filed Sept. 20, 1996), a case which involved similar facts to the

case now before this Court. That case held that the RA and ADA

are applicable to state prisons and that the Eleventh Amendment did

not immunize the state entity defendants from suit under the RA and

ADA.

a eT AN iy eiiaien:

69a

42 U.S.C. $ 12132.

The Court will analyze the sufficiency of plaintiffs’

allegations under the RA and the ADA jointly because

"[t]he remedies, procedures, and rights under Title II of

the ADA are the same as under the RA." Bullock v.

Gomez, 929 F.Supp. at 1303 n. 3.f

To prove an RA violation, Clark and Woods must

demonstrate that: (1) they are handicapped persons; (2)

they are otherwise qualified for the benefit they seek; (3)

the relevant program receives federal financial assistance:

and (4).defendants’ refusal to provide a service or grant

access tO a program impermissibly discriminates against

them on the basis of their physical handicaps. Bonner v.

Lewis, 857 F.2d at 562-63.

Defendants apparently do not dispute that Clark and

Woods are disabled within the meaning of the PA and the

ADA or that California state prisons receive federal

financial assistance. "To be ‘qualified’ a handicapped

person must meet ‘the essential eligibility requirements for

the receipt of [program] services.”" Bonner v. Lewis, 857

F.2d at 563 (quoting 28 C.F.R. § 42.540(i)(2)). The

Bonner Court concluded that prison inmates were

“qualified (sometimes required) to participate in activities

such as disciplinary hearings rehabilitation, medical

services, and other prison activities." Jd. The Court also

finds that plaintiffs, complaint sufficiently alleges both the

denial of benefits and access to programs as well as the

discriminatory basis for that denial. Consequently, the

plaintiffs have satisfied their pleading burden as to their

RA and ADA claims.

6. Any differences in the standards are not critical at this Stage

of the proceedings.

70a

VI. Sufficiency of Allegations Under § 1983.

To state a claim under § 1983, Clark and Woods

must show that defendants acted under color of law, and

that defendants’ conduct deprived plaintiffs of a

constitutional right. West v. Atkins, 487 U.S. 42, (1988).

The parties do not dispute that the prison officials acted

under color of law. The parties do dispute, however,

whether defendants violated plaintiffs, constitutional rights.

The Court must decide, therefore, whether the plaintiffs

have sufficiently pled the deprivation of a constitutionally

protected liberty interest under the Due Process Clause,

whether plaintiffs sufficiently pled a violation of their

equal protection rights, and whether plaintiffs sufficiently

pled that they were subjected to cruel and unusual

punishment.

A. Fourteenth Amendment.

1. Liberty Interests Created by the Due Process

Clause and the State.

Interests protected by the Due Process Clause may

arise from two sources--the Due Process Clause itself or

state law. Meachum v. Fano, 427 U.S. 215, 223- 27

(1976). Due process claims in the prison context generally

pertain to liberty.

[10] Changes in conditions so severe as to affect the

sentence imposed in an unexpected manner implicate the

Due Process Clause itself, whether or not they are

authorized by state law. Sandin v. Conner, 115 S.Ct. 2293,

2300 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493

(1980) (transfer to mental hospital), and Washington v.

Harper, 494 US. 210, 221-22 (1990) (involuntary

administration of psychotropic drugs)). A state may not

impose such changes without complying with the minimum

requirements of due process. Sandin, 115 S.Ct. at 2300.

el

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[11] As the Sandin standard indicates, liberty

interests arising from the Due Process Clause itself are

very limited in the prison context. Plaintiffs due process

claims are based on the deprivation of good time credits

and placement in segregation. Plaintiffs’ claims do not

meet the threshold requirement imposed in order to state

a successful due process claim because receiving

punishment after a disciplinary hearing is part of prison

life and does not change the sentence itself in an

unexpected manner.

[12] Deprivations that are less severe or more closely

related to the expected terms of confinement, however,

may also amount to deprivations of a _procedurally

protected liberty interest, provided state statutes or

regulations narrowly restrict the power of prison officials

to impose the deprivation, and the liberty in question is

one of "real substance." Sandin, 115 S.Ct. at 2297-2302.

See Gotcher v. Wood, 66 F.3d 1097, 1100-01 (9th Cir.1995)

(looking at both language of regulation and substance of

deprivation to determine whether prisoner has interest

protected by the Due Process Clause after Sandin ).

“Real substance" is generally limited to freedom from (1)

restraint that imposes "atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison

life," or (2) state action that "will inevitably affect the

duration of [a] sentence." Sandin at 2300, 2302.

California’s regulations concerning discipline provide

explicit standards that fetter official discretion, and thus

meet the "narrowly restrict" prong of the Sandin test. See

Walker v. Sumner, 14 F.3d 1415, 1419 (9th 1994)

(Nevada’s prison discipline regulations, which are similar

to California’s, create a liberty interest.). | Under

California Code of Regulations title 15, § 3320(1), officials

must find that a preponderance of the evidence

substantiates a charge before guilt may be found and

punishment assessed. Absent such a finding, the inmate

may not be placed in isolation or segregation or lose

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good-time credits. See also Cal.Code Regs. tit. § 5, § 332

(requiring notice), § 3320(b) (requiring hearing).

Plaintiffs, deprivation must also satisfy the "real

substance” prong of the Sandin test. Plaintiffs claim that

they suffer an atypical and significant hardship because

they are more likely to be deprived of good time credits

or placed in segregation after disciplinary proceedings, for

which they are not given adequate assistance.

The Ninth Circuit has found that the loss of

good-time credits is a deprivation of "real substance"

which entitles prisoners to due process. Gotcher v. Wood,

66 F.3d, 1097, 1100-1101 (9th Cir.1995) (liberty interest

created when regulation limits circumstances under which

credits may be taken away).”

7. Because this Court has already decided the issue of standing

in favor of plaintiffs, the Court will not address defendants’ argument

that plaintiffs’ failure to specify such an instance means they do not

have standing to challenge disciplinary actions.

The Court also disagrees with defendants’ argument that plaintiffs’

Fourteenth Amendment claims which implicate the loss of good time

credits must be brought as habeas actions after exhausting state

administrative remedies. This principle generally applies when

prisoners are seeking to reinstate good time credits that have already

been taken away, a remedy plaintiffs have not asked this Court to

consider. See United States v. Checchini, 967 F.2d 348, 350 (9th

Cir.1992).

Heck v. Humphrey, 114 S.Ct. 2364 (1994), cited by defendants, did bar

a Claim of unconstitutional deprivation of time credits because such

a claim necessarily called into question the lawfulness of the duration

of the plaintiff's sentence. Sheldon v. Hundley, 83 F.3d 231, 233 (8th

Cir.1996). A § 1983 claim "for using the wrong procedure... . not

for reaching the wrong result (i.e., the denial of good-time credits),"

however, is cognizable. Gotcher v. Wood, 66 F.3d at 1099 (citing

Heck, 114 S.Ct. at 1270). In this case, because plaintiffs’ due process

claim is directed toward the procedure, not the result, plaintiffs’ claim

is cognizable.

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Whether placement in segregation creates a liberty

interest, however, is a more complicated question. Prior

to Sandin, in Toussaint v. McCarthy, 801 F.2d 1080, 1098

(1986), cert. denied, 481 U.S. 1069 (1987), the Ninth

Circuit held that California statutes and prison regulations

created a liberty interest in freedom from administrative

segregation.

That case, however, did not analyze whether

segregation was a sanction of “real substance," an

important omission given Sandin, because the

determination of whether a liberty interest has been

created depends largely on factual issues, such as the

conditions and length of confinement, which vary from

case to case. See Gotcher, 66 F.3d at 1101 (record

insufficient to determining whether placement in

Segregation was an atypical and significant hardship);

Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir.1995) (despite

prior case law determining disciplinary regulations created

liberty interest, under Sandin, no liberty interest when

inmate placed in disciplinary segregation for 14 days).

[13] In this case, plaintiffs have misconstrued the

requirements of Sandin, and have consequently failed to

State a due process claim. Without alleging a specific

instance in which they were placed in segregation for an

extreme and disproportionate time or with abhorrent

conditions, for example, plaintiffs have failed to plead an

atypical and significant hardship as required. Similarly,

without alleging a specific instance in which they were

deprived of good time credits, plaintiffs have failed to

allege state action that would inevitably affect the duration

of their sentences. Sandin requires the Court to focus on

the result of a process, not on the process itself. The

Court reaches the question of what process is due only

after it decides that a liberty interest was created.

[14] Furthermore, the mere likelihood or potentiality

of losing credits or placement in segregation is not enough

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to state a claim under Sandin. See City of Los Angeles v.

Lyons, 461 U.S. 95, 105 (1983) (establishing that plaintiff

seeking injunctive relief premised upon an alleged past

wrong must demonstrate a "real and immediate" threat of

repeated future harm to satisfy the injury in fact prong of

the standing test).

Plaintiffs’, however, may be able to amend their

complaint so as to plead a due process violation

sufficiently. Plaintiffs’ § 1983 due process claim is

dismissed with leave to amend in order to substantiate the

claim.

2. Equal Protection.

[15] "The Equal Protection Clause of the Fourteenth

Amendment commands that no State shall deny to any

person within its jurisdiction the equal protection of the

laws,’ which is essentially a direction that all persons

similarly situated should be treated alike." City of

Cleburne v. Cleburne Living Center, 473 U.S. 432, 439

(1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)).

A plaintiff alleging denial of equal protection under §

1983 must prove purposeful discrimination by

demonstrating that he "receiv[ed] different treatment from

that received by others similarly situated," and that the

treatment complained of was under color of state law.

Van Pool v. City and County of San Francisco, 752 F.Supp.

915, 927 (N.D.Cal.1990) (citations omitted), aff'd sub

nom., O’Shea v. City and County of San Francisco, 966

F.2d 503 (9th Cir.1992).

Courts have held that in order to present an equal

protection claim a prisoner must allege that his treatment

is invidiously discriminatory in comparison to that received

by other inmates. See More v. Farrier, F.2d 269, 271-72

(8th Cir.) (absent evidence of invidious discrimination,

federal courts should defer to judgment of prison

officials), cert. denied, 114 S.Ct. 74 (1993).

75a

[16] In this case, plaintiffs have satisfied their

pleading burden as to their equal protection claims. First,

plaintiffs allege that defendants, acted under color of state

law. Second, plaintiffs allege numerous occasions in which

they are treated differently than other prisoners. For

instance, they are more likely to be punished than other

prisoners because they do not understand prison rules and

regulations. Plaintiffs also allege they are denied access to

rehabilitation programs while no such restriction applies

to non-disabled prisoners. Although plaintiffs will

eventually have to prove such claims, their allegations are

sufficient to survive a motion to dismiss. Furthermore,

whether defendants, treatment of plaintiffs is invidiously

discriminatory is a question of fact not appropriately

addressed at this time.

B. Sixth Amendment.

[17] Plaintiffs apparently argue that their Sixth

Amendment rights are violated because they are not given

assistance to understand disciplinary hearings. Because

prisoners do not generally enjoy a Sixth Amendment right

to counsel in connection with disciplinary proceedings,

however, plaintiffs, argument is subsumed by their due

process claims. As described above, it is only after a court

decides that a liberty interest has been created that a

court will ask what process is due. The Sixth Amendment

alone simply does not apply to post-conviction disciplinary

proceedings.

C. Eighth Amendment.

[18, 19] A prisoner may state a 9 1983 claim under

the Eighth Amendment against prison officials where the

officials acted with "deliberate indifference" to the threat

of serious harm or injury to an inmate by another

prisoner. See Farmer v. Brennan, 114 S.Ct. 1970, (1994);

Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). To

prove deliberate indifference, a prisoner must show that

76a

a prison official knew that the prisoner faced a substantial

risk of serious harm and disregarded that risk by failing to

take reasonable measures to abate it. Farmer, 114 S.Ct.

at 1979, 1981. Neither negligence gross negligence, nor

reckless disregard on the part of prison officials is

sufficient to state a claim under § 1983. Jd. at 1978 & n.

4; see also Estelle v. Gamble, 429 U.S. 97, 106 (1976)

(establishing that deliberate indifference requires more

than negligence).

[20] Plaintiffs allege that prison officials knew that

Clark and Woods, as disabled prisoners, were substantially

more susceptible to physical and mental abuse, and took

no reasonable steps to protect them, even depriving them

of programs and activities that would have helped Clark

and Woods avoid the alleged injuries. Plaintiffs’ complaint

sufficiently alleges a violation of the Eighth Amendment

to state a § 1983 claim.

CONCLUSION

For the foregoing reasons, defendants, motion to

dismiss plaintiffs, RA and ADA claims is DENIED.

Defendants, motion to dismiss plaintiffs’ § 1983 claim is

DENIED as to plaintiffs, equal protection and Eighth

Amendment claims. Defendants’ motion to dismiss

plaintiffs’ § 1983 due process claim is GRANTED, but

plaintiffs are granted leave to amend their complaint

within 30 days as to their due process claim.

SO ORDERED.

T7Ta

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN ARMSTRONG, JAMES

AMAURIC, RICHARD

PONCIANO, JACK SWENSEN,

: BILLY BECK, JUDY FENDT, No. C-94-2307 CW

: WALTER FRATUS,

: GREGORY SANDOVAL,

DARLENE MADISON, PETER | REMEDIAL ORDER,

RICHARDSON, STEVEN INJUNCTION, AND

HILL, and all others similarly CERTIFICATION OF

Situated, INTERLOCUTORY

APPEAL PURSUANT

Plaintiffs, | TO 28 U.S.C. § 1292(b)

PETE WILSON, Governor of the

State of Califu nia, JOSEPH

SANDOVAL, Secretary of Youth

and Corrections Agency, JAMES

GOMEZ, Director of

Corrections, KYLE S.

MCKINSEY, Deputy Director for

Health Care Services, KEVIN

CARRUTH, Deputy of the

Planning and Construction

Division, DAVID TRISTAN,

Deputy Director of the

Institutions Division,

MARISELA MONTES, Deputy

Director of the Parole and

Community Services Division,

JAMES NIELSEN, Chairman of

the Board of Prison Terms,

Defendants.

EEE

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The Court, having found the defendants have violated

42 U.S.C. § 12131 et seq. and § 504 of the Rehabilitation

Act, hereby enters the following Remedial Order against

defendants (except James Nielsen) pursuant to the

Stipulation approved by the Court.

The Court finds that this Remedial Order is narrowly

drawn, extends no further than necessary to correct the

violation of the rights at issue and is the least intrusive

means necessary to correct the violation of the rights.

A. Self-Evaluation, Transition Plan,

Guidelines, Policies, and Procedures

1. Within 30 days of the date this Order is filed

defendants shall submit the following to plaintiffs’ counsel:

a. The California Department of

Corrections’ ("CDC") program, plan

and procedures for implementation of

its Disability Placement Plan ("DPP").

As a component of the DPP, CDC will

cluster class members with certain

disabilities at designated institutions

and parole facilities. Plaintiffs do not

object to the concentration of inmates

and resources at particular institutions

as long as such concentration is done in

a manner consistent with the ADA.

b. A report of CDC’s self-evaluation as

required by 28 C.F.R. $35.105.

c. CDC's transition plan as required by 28

C.F.R. $35.150(d).

d. A general substantive outline setting

forth the methods by which class

members will be_ provided

it et iat hy

y J

79a

accommodations, access to programs

and effective communications at the

designated institutions and non-

designated institutions.

Defendants shall also submit guidelines, policies,

procedures or plans regarding the following within 45 days

from the date this Order is filed, provided that defendants

shall submit any of these items as soon reasonably possible

and as soon as they are completed:

a.

b.

a

Disability grievance procedures;

Reception Center processing times for

inmates with disabilities;

Accommodations and _ structural

features for inmates with disabilities in

emergency situations, including yard

incidents, fire drills, and evacuations;

Allowable assistive aids for inmates

with disabilities in administrative

segregation, security housing units and

reception centers;

Accessibility features of new

construction and alterations;

Criteria for determining whether

inmates are totally medically disabled

or medically unassigned; and

School and job assignments for

prisoners with disabilities.

Within 30 days of receiving the submittal

referenced in paragraphs 1 through 2 above, plaintiffs may

serve written objections on defendants. Within 20 days of

80a

the receipt of plaintiffs’ objections, defendants’ shall

reposed in writing. Within 10 days of the defendants;

response, the parties shall meet and confer and attempt to

resolve any differences. If the conference fails to resolve

the parties’ differences, plaintiffs may file a notice within

ten days requesting an evidentiary hearing. If the

plaintiffs do not object to the submittal referenced in

paragraphs 1 through 2 above, or any of them, the parties

shall file a stipulation and proposed order in form

substantially as that which is set forth in Appendix D.

4. Defendants shall submit guidelines, policies,

procedures, plans or evaluations for all institutions that

are consistent with any stipulated order under paragraph

3, above or litigated order under paragraph c, below by a

date mutually agreed to by the parties, or, in the absence

of an agreement, by a date set by the court.

5. Within 45 days of receiving the guidelines,

policies, procedures, plans or evaluation referenced in

paragraph 4 above, plaintiffs may serve written objections

on defendants. Within 30 days of the receipt of plaintiffs’

objections, defendants shall respond in writing. Within 15

days of the defendants’ response, the parties shall meet

and confer and attempt to resolve any differences. If the

conference fails to resolve the parties’ differences,

plaintiffs may file a notice within ten days requesting an

evidentiary hearing. If the plaintiffs do not object to the

guidelines, policies, procedures, plans or evaluations

references in paragraph 4 above, or any of them, the

parties shall file a stipulation and proposed order in a

form substantially as that which is set forth in Appendix

D.

B. Discovery

Plaintiffs shall have a right to reasonable discovery

after September 1, 1996, of facts that are relevant to

proving whether defendants’ guidelines, plans, policies,

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procedures and evaluations comply with the ADA or §

504.

C. Standards for Judicial Review

At any hearing held pursuant to Section A above, the

Court’s review of defendants’ self-evaluation, transition

plan, disability placement plan and various specified

guidelines, plans, policies and procedures shall be limited

to determining whether they comply with the new

Americans with Disabilities Act and § 504 of the

Rehabilitation Act of 1973. If the Court finds that any

aspect of the guidelines, plans, procedures or self-

evaluations do not comply with the ADA or § 504 it may

order defendants to make appropriate modifications to

their guidelines, plans, policies, procedures or evaluations,

provided that those order shall be limited to ensuring that

the guidelines, plans, procedures or evaluations comply

with the ADA and § 504 and are otherwise proper under

existing law.

D. Monitoring

Plaintiffs shall be entitled to reasonable access to

information sufficient to monitor defendants’ compliance

with the guidelines, plans, policies and procedures that

have been approved by the Court. Such monitoring shall

include access to relevant documents, receiving reports

from defendants on subjects specified in § A of this order,

tours of the institutions with and without their consultants

and experts, interview or depositions in institution and

departmental staff and scheduled interviews with inmates.

Brief interviews with inmates amy be conducted during the

tours, which may be conducted no more than every

quarter at each institution or facility.

een

82a

E. Enforcement

The Court shall retain jurisdiction to enforce the

terms of this Order and any order approving the

guidelines, policies, procedures, plans or evaluations set

forth above.

If plaintiffs counsel have reason to believe that

defendants are not complying with the terms of this Order

or their guidelines, policies, procedures, plans or

evaluations, they shall notify defendants. The parties shall

attempt to resolve the issue informally before pursuing an

judicial remedy.

Upon appropriate motion the Court may issue an

order permitted by law, including contempt, necessary to

ensure that defendants comply with the guidelines,

policies, procedures, plans and evaluations set forth above.

F. Termination

Defendants may move the Court to vacate an order

on the ground that they have substantially complied with

its provisions and the guidelines, policies, procedures,

plans and evaluations for a period of two years, provided

that such motion may not be made earlier than one year

after all the initial plans, policies, procedures and

evaluations have been approved by the Court. This

motion shall be filed pursuant to Rule 60(b)(5), of the

Federal Rules of Civil Procedure or other applicable law.

G. Attorneys Fees

Plaintiffs are the prevailing party and are entitled to

reasonable attorneys fees, litigation expenses and costs as

provided by 42 U.S.C. § 12205 and 29 U.S.C. § 794a for

work performed in this matter prior to the entry of this

Remedial Order and Injunction. The amount of such

fees, expenses and costs shall be decided upon duly

83a

notices motion to the Court according to law. Except for

the determination that plaintiffs are the prevailing party,

defendants reserve any and all defenses to a fee award.

Plaintiffs shall be entitled to fees, litigation expenses

and costs as authorizes by law to ensure compliance with

this Order and subsequent remedial orders, including

those implementing the guidelines, plans,procedures,

policies and evaluations se forth above for the period until

this Order is terminated as set forth in the previous

subsection. The amount of such fees shall be determined

according to law upon duly noticed motion. The Parties

shall negotiate an order for the periodic collection of

attorneys fees and costs similar to that filed in Madrid V.

Gomez, C-90-3094 TEH.

H. Certification of Interlocutory Appeal

After a review of the parties’ stipulation, the Court

hereby finds that the issue of whether the ADA and §504

of the Rehabilitation Act apply to the programs, services

and activities provided by a state department of

corrections to state prisoners and parolees is a controlling

issue of law as to which there is substantial ground for

difference of opinion and that an immediate appeal from

this Order may materially advance the ultimate

termination of this litigation within the meaning of 28

U.S.C. § 1292(b).

Dated: SEP 20 1996

/s/ Claudia Wilken

CLAUDIA WILKIN, JUDGE

UNITED STATES DISTRICT COURT

ee

84a

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA

JOHN ARMSTRONG; JAMES

AMAURIC; RICHARD

PONCIANO; JACK SWENSEN;

BILLY BECK; JUDY FENDT; C 94-02307 CW

WALTER FRATUS; GREGORY

SANDOVAL; DARLENE ORDER GRANTING IN

MADISON; PETER PART AND DENYING

RICHARDSON; STEVEN HILL; | IN PART PLAINTIFFS’

ROY ZATTIERO, MOTION TO REQUIRE

DEFENDANTS TO

Plaintiffs, | MODIFY THEIR

REMEDIAL PLANS

(FIRST SET OF

CONTESTED ISSUES)

PETE WILSON; JOSEPH C.

SANDOVAL; JAMES GOMEZ,

Dir. Dept. of Corrections; KYLE

McKINSEY; KEVIN CARRUTH;

DAVID TRISTAN; MARISELA

MONTES, Dept. Dir. of the

Parole Division,

Defendants.

UNITED STATES OF AMERICA

Amicus Curiae

Plaintiff moves for an order requiring Defendants to

modify their remedial plans with respect to the first set of

contested issues designated in the June 4, 1997 Scheduling

Order. Defendants oppose the motion. The matter was

heard on September 26, 1997. Having considered all of

the papers filed by the parties and oral argument on the

motion, the Court grants the motion in part, denies it in

85a

part, and postpones deciding one issue until a later

hearing.

BACKGROUND

Plaintiffs, 12 individuals representing a class of

disabled prisoners and parolees, have brought claims

against State officials involved in the California prison

system for violations of Title II of the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 1213134, and Section

504 of the Rehabilitation Act of 1973 ($ 504), 29 U.S.C.

§ 794.

On July 9, 1996, the Court approved a procedure for

resolving the substantive issues in this case in lieu of trial.

See Stipulation and Order for Procedures to Determine

Liability and Remedy. All parties but James Nielsen had

stipulated to this procedure as a result of settlement

negotiations. (Hereinafter, "Defendants" will refer to all

Defendants except Mr. Nielsen.) The stipulated procedure

anticipated that Defendants would bring a motion for

summary judgment based on the legal arguments that

neither statute applied to State prisons and that Congress

had not validly abrogated Defendants’ Eleventh

Amendment immunity to suit under the Statutes.

Defendants brought that motion, which the Court denied

on September 20, 1996. The Court certified the legal

issues in that motion for immediate appeal and the Ninth

Circuit upheld the Court’s decision on August 27, 1997.

Armstrong v. Wilson, 97 Daily Journal D.A.R. 11143; see

also Clark v. State of California, 97 Daily Journal D.A.R.

11140 (addressing Eleventh Amendment immunity issue

in greater depth).

Defendants had agreed not to seek a Stay of the case

pending appeal, so the stipulated procedure went forward.

On September 20, 1996, the Court adopted findings of

fact and conclusions of law and entered a remedial order

and injunction, all of which were defined in the stipulated

86a

procedure of July, 1996. The Court found that Defendants

violated the ADA and § 504 and ordered that they

remedy the violations by developing, with advice from

Plaintiffs, plans to provide class members with

accommodations, program access and means of effective

communication. The Court found that this remedial

procedure "[was] narrowly drawn, extend[ed] no further

than necessary to correct the violation of the rights at

issue and [was] the least intrusive means necessary to

correct the violation of rights."

Specifically, the Remedial Order required Defendants

to submit several documents to Plaintiffs’ counsel in the

Fall of 1996: 1) the California Department of

Corrections’ (CDC’s) program, plan and procedures for

implementation of its Disability Placement-Plan (DPP),

which all parties agreed would involve clustering class

members with certain disabilities at designated institutions

and parole facilities; 2) CDC’s self-evaluation as required

by ADA regulations 28 C.F.R. § 35.105; 3) CDC’s

transition plan as required by ADA regulations 28 C.F.R.

§35.150(d); 4) a general outline setting forth the methods

by which class members would be provided

accommodations, program access, and effective means of

communication; and 5) guidelines, policies, procedures or

plans regarding seven specific areas of concern. These

areas included a) disability grievance procedures, b)

reception center processing times, c) accommodations and

structural features for disabled inmates in emergency

situations, d) allowable assistive aids for disabled inmates

in administrative segregation, security housing units and

reception centers, e) accessibility features of new

construction and alterations, f) criteria for determining

whether inmates are totally medically disabled or

medically unassigned, and g) school and job assignments

for disabled prisoners.

The Remedial Order instructed Plaintiffs to serve

written objections on Defendants, to which Defendants

87a

were to respond in writing. The Order then instructed the

Parties to meet and confer and attempt to resolve their

differences. Plaintiffs had the right to request that the

Court hold an evidentiary hearing in the event they were

unable to reach resolution. At any such hearing, the

Court would review Defendants’ plans for compliance with

the ADA and § 504 and order modifications to the plans

if violations were found. If Plaintiffs did not object to

Defendants’ plans, the Parties were instructed to file a

Stipulation and Proposed order in a form substantially

similar to one set forth as Appendix D to the J uly 9, 1996

Stipulation and Order. Once this Process was completed,

the Remedial Order directed that a similar process take

place regarding plans for individual institutions within the

prison system. The Order also addressed other issues not

directly relevant here.

Plaintiffs filed objections to Defendants’ plans on

April 9, 1997. On June 4, 1997, the Court issued a

Scheduling Order in accordance with a stipulation by the

parties. The schedule divided the issues into four phases.

First, the parties had until July 31, 1997” to propose the

form of an order encompassing matters on which they

were able to agree. Plaintiffs have submitted a Proposed

Order and a supporting brief, and Defendants have

submitted a Position on Entry or Form of Order

Regarding Resolved Matters and a Supporting brief. The

following three phases of the schedule covered briefing

and hearings on three sets of unresolved issues. This

Order addresses the first set of contested issues, which

includes 1!) geographic distribution, 2) applicable legal

standards, and 3) new construction and maintenance.”

1. The original deadline was June 23, but by Stipulation and

order entered July 9, 1997, the deadline was extended to July 31.

2. According to the Scheduling Order, Self-evaluation for

Learning Disabled inmates was also included in this set of issues, but

the issue was not addressed in the briefs and apparently is no longer

in dispute.

88a

DISCUSSION

I. Legal Standard

In order to determine the appropriate legal standards

to apply in evaluating whether Defendants’ plans comply

with Title II of the ADA and with § 504, the Court must

consuit four sources: the two statutes, their implementing

regulations, case law and agency guidance on the scope of

a public entity’s duty to accommodate disabled persons,

and case law defining the appropriate limits of juc-_-2.

interference in State prison administration.

29 U.S.C. § 794(a). The Act defines "program or activity"

as

29 U.S.C. § 794 (b)(1)(a) and (b). The Court has found

that some programs of the CDC receive federal financial

A. The Statutes

Section 504 provides

No otherwise qualified individual with a disability

shall, solely by reason of her or his disability, be

excluded from participation in, be denied the

benefits of, or be subjected to discrimination

under any program or activity receiving Federal

financial assistance...

all of the operations of (1)(A) a department,

activity, special purpose district, or other

instrumentality of a State or of a local

government; or (B) the entity of such State or

local government that distributes such assistance

and each such department or agency... to

which the assistance is extended, in the case of

assistance to a State or local government; .. .

any part of which is extended Federal financial

assistance.

89a

assistance as that term is used in Title 29 U.S.C. § 794.

Therefore, § 504 applies to all of the operations of the

CDC.

Title II of the ADA provides that

no qualified individual with a disability shall, by

reason of such disability, be excluded from

participation in or be denied the benefits of the

services, programs, or activities of a public entity,

or be subjected to discrimination by such entity.

42 US.C. § 12132. Any department, agency or other

instrumentality of a State or local government is a "public

entity" under the Act. 42 U.S.C. § 12131(1)(A) and (B).

Thus, the ADA applies to the services, programs and

activities of the CDC.

B. The Regulations

The regulations implementing Title II of the ADA

largely adopt the language of the regulations

implementing § 504 as it applies to recipients of federal

assistance, although the ADA regulations provide more

guidance. The following section describes the rules under

both acts, unless otherwise specified. Regulations

implementing Title II of the ADA are found at Part 35 of

Title 28 of the Code of Federal Regulations. The

regulations implementing § 504 with respect to entities

receiving federal financial assistance are found at Part 41

of the same title.

1. General Duties

The regulations first describe the general obligations

imposed by the statutes. A public entity may not deny

disabled persons the Opportunity to participate in or

benefit from any aid, benefit or service, or afford an

Opportunity not equal to or not as effective as that

enjoyed by nondisabled persons. 28 CF.R. §

90a

35.130(b)(1)(i)-(iii); 28 C.F.R. § 41.51(b)(i)-(iii). Public

entities may not provide different or separate aids,

benefits or services to disabled persons, unless necessary

to make them as effective as those provided to others. 28

C.F.R.§ 35.130(b)(1)(iv); C.F.R. § 41.51(b)(iv). Nor may

they "otherwise limit a qualified individual with a disability

in the enjoyment of any right, privilege, advantage or

opportunity enjoyed by others in receiving the aid, benefit

or service." 28 C.F.R.§ 35.130(b)(1)(vii); 28 C.F.R. §

41.51(b)(vii).

Public entities are required to make reasonable

modifications in policies, practices or procedures if

necessary to avoid discriminating on the basis of disability,

"unless the public entity can demonstrate that making the

modifications would fundamentally alter the nature of the

service, program or activity." 28 C.F.R. § 35.130(b)(7).*

Public entities must also administer services, programs and

activities in the most integrated setting appropriate to the

3. Part 41 does not include a comparable clause; however, the

Department of Justice has explained that this reflects the timing of

when the regulations were promulgated rather than any substantive

difference in legal standards. See 28 C.F.R. Part 39, Editorial Note

("Background"). The "fundamental alteration" language, as well as

other language that refers to "undue financial and administrative

burdens," reflects the holding of Southeastern Community College v.

Davis, 442 U.S. 397 (1979), which limited the duty to accommodate

disabled persons under § 504. When the Department of Justice

promulgated the regulations implementing § 504 with respect to

activities conducted by the Department (Part 39 of Title 28), it

included language taken directly from Davis. See. e¢.g., 28 C.F.R. §

39.150(a)(2). These regulations in turn became the model for the

ADA regulations. See further discussion in Section I.C, infra. In its

commentary to the Part 39 regulations, republished as an "Editorial

Note" in the Code of Federal Regulations, the Department explained

that the Davis standard also applies to the Part 41 regulations, even

though those regulations have not been revised to include the Davis

language. 28 C.F.R. Part 39, Editorial Note ("Background").

91a

needs of qualified individuals with disabilities. 28 C.F.R. §

35.130(b)(8)(c)-; 28 C.F.R. § 41.51(d).

2. Program Accessibility

Regulations specifically addressing "program

accessibility" provide that disabled persons may not be

excluded from participation in or be denied the benefits

of the public entity’s services, programs or activities or be

Subject to discrimination "because a public entity’s

facilities are inaccessible to or unusable by individuals with

disabilities." 28 C.F.R. § 35.149; 28 CER. § 41.56. The

regulations then dictate different standards for existing

facilities and for new construction or alterations.

With respect to existing facilities, the regulations

require that public entities operate each service, program

OF activity so that, "when viewed in its entirety, [it] is

readily accessible to and usable by individuals with

disabilities." 28 C. F.R. § 35.150(a); 28 C.F.R. § 41.57(a).

However, a public entity need not necessarily make each

of its existing facilities accessible to or usable by disabled

persons, 28 C.F.R. § 35.150(a)(1); 28 C.E.R. § 41.57(a),

nor take any action that it can demonstrate would result

in a fundamental alteration in the nature of a service,

program or activity or undue financial and administrative

burdens. 28 C.F.R. § 35.150(a)(3).% ADA regulations

place on the public entity the burden of proving that

ccpliance with section 35.150(a) would result in

fundamental alterations or undue burdens. 28 C.F.R. §

35.150(a)(3). They require that the head of the entity or

his or her designee make tha

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