LINDA GAIL NIECE, et al., Plaintiffs, v. Deputy Warden PAT FITZNER, et al., Defendants.



CASE NO. 94-70718-DT



UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION



922 F. Supp. 1208; 1995 U.S. Dist. LEXIS 20958



August 25, 1995, Decided







SUBSEQUENT HISTORY: [**1] Reported at: 922 F. Supp. 1208 at 1211. Adopting Order of March 29, 1996, Reported at: 1996 U.S. Dist. LEXIS 7938.









COUNSEL: For LINDA GAIL NIECE, GRANT H. HENDRICK, plaintiffs: Daniel E. Manville, Ann Arbor, MI. Michael J. Steinberg, Ann Arbor, MI.


For PAT FITZNER, Deputy Warden, KENNETH MCGINNIS, RICHARD JOHNSON, Warden, RUM TABOR, INSPECTOR LOCKWOOD, ROBERTS, Assistant Deputy Warden, CAPTIAN HANCOCK, SPEC ASST BROWN, MICHIGAN DEPARTMENT OF CORRECTIONS, defendants: Anthony P. Govorchin, Michigan Department of Attorney General, Correction Division, Lansing, MI.



JUDGES: PAUL J. KOMIVES, UNITED STATES MAGISTRATE JUDGE. JUDGE PAUL D. BORMAN



OPINIONBY: PAUL J. KOMIVES



OPINION: [*1211]

REPORT AND RECOMMENDATION


I. RECOMMENDATION: The Court should deny defendants' motion under Fed. R. Civ. P. 12(b)(6) to dismiss plaintiff's claims under the Americans with Disabilities Act for failure to state a claim upon which relief may be granted, except as to defendants Lockwood and Roberts.


[*1212] II. REPORT:


A. Procedural Background

1. Plaintiffs bring this action under 42 U.S.C. § 1983 (§ 1983), Titles II and IV of the Americans with Disabilities Act (ADA), 42 U.S.C. § § 12131-12134, 12203, Section 504 of the Rehabilitation Act of 1973 (§ 504), 29 U.S.C. § 794, and the Michigan Handicappers Civil Rights Act, MCL 37.1101 et seq. Plaintiffs are Linda Niece, a 45-year-old deaf woman, and Grant Hendrick, a prisoner who is currently incarcerated at Carson City Temporary Facility (OTF).

Defendants are Michigan Department of Corrections (MDOC); Kenneth McGinnis, Director of the MDOC; Richard Johnson, Warden of OTF; Pat Fitzner, Deputy Warden of OTF; Tabor, a counselor at OTF; Lockwood, [**2] an inspector at OTF; Roberts, Assistant Deputy Warden at OTF; Hancock, a captain at OTF; and Brown, a special assistant at OTF. Defendants McGinnis, Johnson, and Fitzner are sued in their individual and official capacities, and defendants Tabor, Lockwood, Roberts, Hancock and Brown are sued in their individual capacities.

Plaintiffs' complaint consists of 32 pages and 164 numbered paragraphs. n1 Plaintiffs summarize their complaint in their brief in opposition to defendants' motion to dismiss as follows:


Plaintiffs Niece and Hendrick are engaged to be married upon Hendrick's release from prison. Hendrick is incarcerated at OTF in Carson City, which is over 100 miles from Niece's home in St. Clair Shores. Due to her ataxia, it is difficult for Niece to travel to Carson City to visit Hendrick, even when she is able to find a willing driver. Since Niece is deaf, she is unable to communicate with Hendrick over the telephone in the same manner that individuals who can hear communicate with their friends and relatives who are in prison. The only way that Niece is able to communicate over the telephone is through the use of a Telecommunications Device for the Deaf (TDD). (Complaint, [**3] PP 27-32).


A TDD is a device with a keyboard and screen that is easy to hook up to a telephone. It permits individuals to type messages to the other party on the keyboard and receive messages in return over the screen. Plaintiff Niece has a TDD in her home which permits her to readily communicate with anyone who has access to another TDD. (Complaint, PP 30-31).


Niece may also communicate over the phone with a hearing person who does not have a TDD by using a TDD/Relay operator. The relay operator "translates" voice messages from the hearing person into typed messages for the person using the TDD and visa versa. The relay operator may be accessed anywhere in Michigan by dialing a 1-800 toll-free number. Once the parties are connected they will pay the normal rates. The TDD/Relay operator may make a collect call for a hearing person to a person with a TDD and the person using the TDD is able to accept the call. (Complaint, P 41).


In early September, 1989, Niece purchased a new TDD from Michigan Bell for $ 168.00 and attempted to donate it to OTF. Niece offered to donate the TDD so that (1) she would be able to communicate with Plaintiff Hendrick over the telephone, (2) [**4] OTF staff could reach her quickly to notify her of an emergency involving Plaintiff Hendrick, and (3) deaf relatives or friends of other OTF inmates could communicate with their loved ones over the telephone and be notified in case of an emergency. Plaintiff Hendrick wrote to Defendant Inspector Lockwood about Niece's offer to donate the TDD, but Lockwood flatly refused to accept the TDD or provide Plaintiffs with access to a TDD at OTF. (Complaint, PP 35-40).


In November, 1990, Hendrick communicated with Defendant Assistant Deputy Warden Larry Roberts about making an exception to the rule against access to toll-free telephone numbers so that he and Ms. Niece could communicate via the TDD/relay operator. Defendant Roberts refused to make an exception. Roberts further [*1213] suggested that it was Hendrick's own fault for not being able to communicate with Niece because Hendrick chose a deaf person to be his girlfriend. (Complaint, PP 42-45).


Hendrick filed a grievance against Roberts which was denied. He then filed a Step II grievance appeal with Defendant Warden Richard [*1214] Johnson and a Step III grievance appeal with Defendant Kenneth McGinnis, Director of the MDOC. Hendrick sent a [**5] 12-page type-written letter with the appeal to Director McGinnis setting forth in detail the rights of those with disabilities under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973. He asked that he be able to communicate with Niece either directly from a TDD at OTF to Niece's TDD, or from a prison voice phone to Niece's TDD via the relay operator. Director McGinnis denied the appeal in May, 1992 (Complaint, PP 46-49).


In June, 1992, Hendrick filed a complaint with the Department of Justice (DOJ) regarding the MDOC's violations of the ADA. The MDOC learned about the complaint soon after it was filed.


Prior to the filing of the DOJ complaint, Defendants had always permitted Plaintiff Niece to bring a plastic tumbler and a straw into the visiting room when she came to visit Hendrick. Due to her ataxia, Niece could not drink from the paper cups provided in the visiting room without spilling. To accommodate her disability, Niece had received permission in 1989 to bring her tumbler and straw into the visiting room. Defendants permitted her to bring the cup with her, without incident, on dozens of visits between 1989 and the time that the DOJ complaint [**6] was filed. However, in July 1992, on her first visit since the filing of the DOJ complaint, Defendant Captain Hancock, prevented her from bringing in the tumbler and the straw. (Complaint, PP 52-56).


In November, 1992, Niece, with the assistance of The National Center for Law and Deafness, filed her own complaint with the DOJ's Civil Rights Division about the MDOC's failure to accommodate her disabilities. The DOJ entered negotiations with the MDOC about TDD access in late, 1992. In January, 1993, Niece was again prevented from bringing her plastic tumbler in the visiting room, causing her embarrassment and humiliation when she unsuccessfully attempted to drink from a thin, paper cup from the visiting room vending machine. (Complaint, PP 58-60). n2


In April 1993, Hendrick learned of a new phone policy about to be instituted throughout the MDOC called the "PIN system." Under the PIN system, an inmate is given a personal identification number (PIN) which permits him to make telephone calls from a list of 10 pre-approved, pre-programmed telephone numbers. Hendrick wrote to Constance Henslee of the DOC Administrative Services. Hendrick asked Ms. Henslee whether the new system [**7] would allow access to the Relay Center. He also explained to Ms. Henslee that, under the new PIN system, it would be easy for the MDOC to pre-program the phone number of the TDD Relay Center for certain prisoners, yet block access to other 1-800 numbers. Hendrick was told that he would not be able to access the relay center under the new system. (Complaint, PP 61-62).


Due to pressure placed on the MDOC by a DOJ investigator to give plaintiffs access to TDD communications, the MDOC finally promised the investigator that they would install a TDD in Carson City. However, the MDOC did not make plans to install a TDD at plaintiff's minimum security facility, Carson City Temporary Facility (OTF). Rather, they planned on installing it in the higher security Carson City Regional Facility (DRF). (Complaint, PP 63-66).


In September 1993, Defendant Fitzner, against Hendrick's expressed wishes, ordered that Hendrick be transferred from OTF to DRF because of Plaintiff's request for use of TDD equipment. Plaintiff immediately filed a grievance on the ground that he was being retaliated against for complaining to the DOJ. When the grievance was denied, he filed a Step II grievance appeal [**8] to Defendant Warden Richard Johnson and a Step III grievance appeal to Defendant Director McGinnis. Warden Johnson sent Defendant Special Assistant Brown to meet with Hendrick. Brown said that she was aware that Hendrick had met with counsel Daniel Manville and wanted to know whether Hendrick was going to file a federal lawsuit in addition to the DOJ complaint. Brown said that Warden Johnson would agree to immediately return him to OTF and restore his job only if he agreed to release all MDOC employees from liability and if he agreed never to request access to a TDD again (Complaint, PP 69-98).


Because Hendrick desperately wanted to be returned to OTF and because of the pressure placed on him by Defendants Johnson and Brown, Hendrick drafted a "statement of understanding" that both purported to "release" Defendants from liability and detailed the coercive circumstances surrounding the release. Warden Johnson was unhappy about the way the "release" was drafted and rejected it. (Complaint, PP 99-103).


In late October, 1993, the MDOC informed an investigator from the DOJ that it would not return Hendrick to OTF because Plaintiff had filed a lawsuit. n3 The investigator then [**9] informed the MDOC that Hendrick's case was being turned over to the Attorney General for prosecution of the MDOC for retaliating against Hendrick. Because of the threatened prosecution, the MDOC returned Hendrick to OTF, gave him back his job, and compensated him for loss (sic) wages. Additionally, on November 10, a TDD was finally delivered to OTF (Complaint, PP 105-113).


Although a TDD was finally delivered to OTF, Defendants have severely limited Hendrick's ability to gain access to the TDD. Thus, the opportunity for Niece and Hendrick to communicate over the phone is drastically inferior than the opportunity for hearing friends and relatives to communicate with inmates. The TDD must be used in the counselor's office and may only be used when a counselor is ready, able and willing to hook up the TDD and wait while Hendrick places a call. Often counselors are too busy or simply unwilling to allow Hendrick to use the phone. Hendrick can never gain access to the TDD during meal times, shift changes and officer breaks. (Complaint, PP 114-119).


Inmates who use voice phones do not face the impediments to phone communication faced by inmates who use TDD's. They do not need to [**10] gain permission or assistance from corrections officers to use the phone. Rather, voice phones are readily available to inmates most of the day from 7 A.M. to 11:30 P.M.


Plaintiffs have proposed reasonable modifications to the current system that would provide equal access to phone communications for deaf. Namely, Plaintiffs ask that Defendants program the PIN system to permit Hendrick to place a collect call to Niece through the TDD/Relay operator. In the alternative, Plaintiffs have requested that Defendants install a TDD phone near the voice phones so that calls do not need to be placed from the counselor's office.


Although it initially appeared that Defendants were willing to install a TDD on a separate line outside the counselors' office, they have yet to do so. Additionally, although Niece has made a formal written request to bring a plastic tumbler into the visiting room as she did for years before this litigation, Defendants have denied her request.


(Plaintiffs' Brief, pp. 3-10).



n1 The complaint contains class action allegations; however, on May 22, 1994, the parties agreed that plaintiffs would withdraw their allegations for class certification. [**11]




n2 Defendants still are refusing Niece to bring her plastic cup into the visiting room.

n3 No civil lawsuit had been filed at this time.


2. On May 18, 1994, defendants filed a motion to dismiss Counts I and II of plaintiff's complaint n4 for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Defendants assert that (1) any claims plaintiff Niece may have under [*1215] the ADA must be based on events after January 26, 1992; (2) plaintiff Hendrick lacks standing to pursue a claim under the ADA because he is not disabled; and (3) plaintiff Niece cannot establish that she was discriminated against. In the alternative, defendants ask the Court to dismiss plaintiffs' claims against the individual defendants and plaintiffs' claims for monetary damages to compensate for mental anguish and humiliation.



n4 Counts I and II allege violations of the ADA asserted by Plaintiff Niece and plaintiff Hendrick, respectively (Complaint PP 120-135, 136-144). Defendants have made no motion with respect to plaintiffs' claims under section 504 of the Rehabilitation Act of 1973; 42 U.S.C. § 1983; or the Michigan Handicappers Civil Rights Act.


[**12]

3. Plaintiffs filed a brief in opposition to defendants' motion to dismiss on July 10, 1995.


B. Motion to Dismiss Standard

A motion to dismiss for failure to state a claim upon which relief can be granted is provided for in Fed. R. Civ. Pro. 12(b)(6). In order for a court to dismiss a complaint for failure to state a claim, it must appear beyond doubt that plaintiff can prove no set of facts supporting his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Plaintiff is not required to specifically set out the facts upon which he bases his claim. Id. at 47. Rather, "a short and plain statement of the claim" pursuant to Fed. R. Civ. Pro. 8(a)(2) gives defendant fair notice of plaintiff's claim and the grounds upon which it rests. Id.

The reviewing court must construe the complaint in the light most favorable to plaintiff and must presume all factual allegations in the complaint as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The purpose of Rule 12(b)(6) is to give defendant the opportunity to test whether plaintiff is entitled to legal relief as a matter of law even [**13] if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. at 48. A dismissal under 12(b)(6) is generally disfavored by courts, as it is a dismissal on the merits. 2A Moore's Federal Practice P 12.07.

A court can only decide a 12(b)(6) motion on the basis of the pleadings. Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). Dismissal is appropriate if the complaint fails to set forth an allegation of a required element of a claim. See Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-90 (6th Cir. 1990). The Court can treat the motion as one for summary judgment if "matters outside the pleading are presented to and not excluded by the court." Fed. R. Civ. Pro. 12(b).


C. Analysis

1. Effective Date of the Americans with Disabilities Act

The defendants' first argument is that any claims of plaintiff Niece under the ADA must be based on events [**14] occurring after January 26, 1992, the effective date of the Act. The ADA does not provide for retroactive effect, and the various courts considering the question have held that the Act cannot be applied retroactively. E.g., O'Bryant v. Midland, 9 F.3d 421, 422 (5th Cir. 1993); Noel v. Cornell University Medical College, 853 F. Supp. 93 (S.D.N.Y. 1994). Because the complaint alleges no actions by defendant Roberts or defendant Lockwood occurring after January 26, 1992, plaintiffs' ADA claims against these two defendants should be dismissed. n5



n5 Plaintiffs do not object to dismissing their ADA complaints with respect to these two defendants (Plaintiff's Brief at 10). As plaintiffs correctly point out, all other claims against these defendants remain.


2. Plaintiff Hendrick's Standing to Sue under the ADA

Defendants contend that plaintiff Hendrick lacks standing to sue under the ADA because he is not "disabled" within the meaning of the Act. Plaintiff Hendrick alleges in his complaint two grounds [**15] upon which he comes under the ADA. The first is 42 U.S.C. § 12132, which provides:

Subject to the provisions of this chapter, no qualified individual with a disability [*1216] 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.


Id. Under regulations promulgated by the Attorney General pursuant to 42 U.S.C. § 12134(a), this section also protects a person who is not disabled from discrimination based on his known association with a disabled person:

A public entity shall not exclude or otherwise deny equal services, programs or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.


28 C.F.R. § 35.130(g) (1995). n6 As this regulation clarifies, Title II protects interaction between persons with a disability and those without by providing a separate cause of action to individuals discriminated against because of their relationship with a person with a disability.

In Title II, Congress specifically [**16] granted an independent right of action to individuals who are not disabled but are discriminated against because of their known association with a person with a disability . . . . The regulations give broad protection to anyone associated with an individual with a disability, not just those with a familial relationship.


Tugg v. Towey, 864 F. Supp. 1201, 1208 (S.D. Fla. 1994) (citation omitted). Plaintiff Hendrick alleges in his complaint that he was discriminated against because of his known association with a person with a disability (Complaint PP 140-141), and therefore has stated a claim upon which relief may be granted under 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(g).



n6 In his complaint, plaintiff Hendrick mistakenly cites 28 C.F.R. § 35.131(g), instead of the correct cite, § 35.130(g). Defendants point out that there is no such section 35.131(g), and argue that plaintiff fails to make out a claim based on his relationship to plaintiff Niece.

Under Fed. R. Civ. P. 8(a) (2), a plaintiff need only make "a short and plain statement of the claim showing that the pleader is entitled to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The purpose of pleading under Fed. R. Civ. P. 8(a) is to afford the adverse party "fair notice of the claim asserted . . . which will enable the adverse party to answer and prepare for trial . . . ." 2A Moore' Federal Practice P 8.13, at 8-58 (2d ed. 1992); see, Monks v. Marlinga, 923 F.2d 423 (6th Cir. 1991). In this case, plaintiff's allegations afford fair notice of the claim to defendants. The complaint clearly alleges that certain of defendants' conduct "constitutes discrimination and a denial of the benefits of services, programs, or activities based on plaintiff Hendrick's relationship with an individual with a known disability, contrary to 42 U.S.C. § 12132" (Complaint PP 140-141). The subsequent citation to the incorrect regulation section in the complaint does not alter the clear, fair notice afforded by the allegations contained within PP 140-141. See, 2A Moore's Federal Practice P 8.13, n.15, and cases cited therein.


[**17]

The second ground alleged by plaintiff Hendrick as a basis for relief under the ADA is 42 U.S.C. § 12203 (a), which provides:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.


Id. To state a claim under this section a plaintiff need only allege that: 1) he engaged in an activity protected by the section; 2) the public entity took adverse action against him; and 3) there is a causal link between his engagement in the protected activity and the adverse action. See, Harmer v. Virginia Electric & Power Co., 831 F. Supp. 1300, 1308 (E.D. Va. 1993) (establishing similar requirement for allegations in the Title I employment context); Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310, 1316 (E.D. Pa. 1994) (same). Plaintiff Hendrick has properly stated a claim under 42 U.S.C. § 12203 by alleging in his complaint that his transfer to DRF was in retaliation for his complaint to the DOJ about lack of access to a TDD his subsequent [**18] participation in the DOJ investigation (Complaint PP 143-144).

3. Plaintiff Niece's Claims under the ADA

Defendants argue that plaintiff Niece has failed to state a claim upon which [*1217] relief can be granted under the ADA because she cannot establish that she was discriminated against as a result of the "legitimate security restrictions imposed on prisoners' privilege of using the telephone" (Defendants' Brief at 7).

Plaintiff first alleges that she was discriminated against in the receipt of services by a public entity in violation of 42 U.S.C. § 12132 and 28 C.F.R. § § 35.130(b)(1)(ii), 35.160. 28 C.F.R. § 35.130(b)(1)(ii) provides:

A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability--

. . . .

(ii) Afford a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others[.]


Id.

Further, 28 C.F.R. § 35.160(b)(1) provides:

A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an [**19] equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.


Id. A TDD is an auxiliary aid under the ADA. 42 U.S.C. § 12102(1); 28 C.F.R. § 35.104(1).

Defendants argue that Plaintiff Niece was not an individual qualified to receive any service of the prison, and therefore is not able to recover under 42 U.S.C. § 12132. They claim that the only service offered by the prison is the privilege given to prisoners to place outgoing telephone calls. Such a narrow reading of the phrase "qualified individual" would defeat the purpose of the statute and Congress' intent in passing it. "In determining the meaning of [a] statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy." Crandon v. United States, 494 U.S. 152, 158, 108 L. Ed. 2d 132, 110 S. Ct. 997 (1990); see also, Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 51, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L. Ed. 1009 (1849)).

A "qualified individual with a disability" is defined in Title [**20] II as, among others, a person who meets the eligibility requirements for the receipt of services provided by a public entity, either with or without the provision of auxiliary aids. 42 U.S.C. § 12131(2). In order to give effect to the ADA's purpose of eliminating discrimination against persons with disabilities by "invoking the sweep of congressional authority," most courts have given a broad reading to the term "service." See, e.g., Independent Housing Services of San Francisco v. Fillmore Center Associates, 840 F. Supp. 1328, 1344 (N.D. Cal. 1993) (bond financing for low income housing projects is "service" within meaning of § 12132 under government agency's "program" of urban renewal). n7



n7 Defendants offer Crowder v. Kitagawa, 842 F. Supp. 1257 (D. Haw. 1994), as taking the opposite stance. Crowder is distinguishable, however, in that it did not involve the provision of a service, but rather the application of a public health law designed to prevent the spread of rabies, which the court concluded was not intended to be affected by the ADA. Crowder, 842 F. Supp. at 1267. To the contrary, the ADA and its accompanying regulations make perfectly clear that one of the primary goals of the Act is to eliminate communications barriers between the hearing-impaired and the rest of the population. See, 42 U.S.C. § § 12101(a)(5), (b)(1); 28 C.F.R. § § 35.160, 35.161 (1995).


[**21]

In Aikins v. St. Helena Hospital, 843 F. Supp. 1329 (N.D. Cal. 1994), the court interpreted the Rehabilitation Act's similar provision regarding "otherwise qualified" individuals. The court ruled the defendant hospital must provide a sign language interpreter to a deaf woman during her husband's illness. The court rejected defendant's argument that plaintiff was not entitled to any service, saying she was "'otherwise qualified' to discuss her husband's condition with hospital officials." Aikins, 843 F. Supp. at 1337. Similarly, defendants provide a service to persons who are not inmates in allowing them to be called by inmates and allowing them to visit inmates in person. Plaintiff Niece meets the eligibility requirement for these services under the prison regulations, [*1218] as she is one of plaintiff Hendrick's designated visitors and has been allowed to visit him. See also, Rothschild v. Grottenthaler, 907 F.2d 286, 290 (2d Cir. 1990) (Under Rehabilitation Act, deaf parents of hearing school children are "'otherwise qualified' for the parent-oriented activities incident to their children's education"). Therefore, under the ADA, the defendants must make reasonable accommodation [**22] to provide for her disability.

Defendants also argue that use of the phones by inmates is a privilege, and is therefore subject to reasonable restrictions. n8 This argument, however, misses the point. The ADA does not require a government entity to provide any particular service. Rather, the ADA requires that, if the entity does in fact provide a service to the general public, "it must use methods or criteria that do not have the purpose or effect of impairing its objectives with respect to individuals with disabilities." Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986, 991 (S.D. Fla. 1994).



n8 Defendants' contention that the use of the telephone by inmates is merely a privilege is unconvincing. Although it is true that a prisoner's right to use telephones is subject to rational limitations, "persons incarcerated in penal institutions retain their first amendment rights to communicate with family and friends." Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994).


[**23]

Finally, defendants argue that plaintiff Niece's claims under the ADA should be dismissed because the policy they eventually adopted (allowing Niece to be phoned by Hendrick through a TDD) was a reasonable accommodation as required by the ADA. However, reasonableness of an accommodation under the ADA is a question of fact appropriate for resolution by the trier of fact and not by the Court on a motion under Fed. R. Civ. P. 12(b)(6). Torcasio v. Murray, 862 F. Supp. 1482, 1492 (E.D. Va. 1994); see also, McGregor v. Louisiana State University Board of Supervisors, 3 F.3d 850, 855 (5th Cir. 1993) (involving similar claim under Rehabilitation Act).

Plaintiff also alleges that she was retaliated against for participating in the Department of Justice (DOJ) investigation of the prison in violation of 42 U.S.C. § 12203 (Complaint P 131). As already discussed, to state a claim under this section Plaintiff Niece only need allege that: 1) she engaged in an activity protected by the section; 2) defendants took adverse action against her; and 3) there is a causal link between her engagement in the protected activity and the adverse action. See, Harmer v. Virginia Electric & Power [**24] Co., 831 F. Supp. 1300, 1308 (E.D. Va. 1993) (establishing similar requirement for allegations in the Title I employment context); Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310, 1316 (E.D. Pa. 1994) (same). Furthermore, 42 U.S.C. § 12203 "applies to all investigations or proceedings initiated under the Act or this part without regard to the ultimate resolution of the underlying allegations." 28 C.F.R. Part 35, App. A, at 455 (1994).

Plaintiff alleges in her complaint that defendants refused to allow her to drink from a plastic tumbler with handles on her visits to the prison in retaliation for her complaint to the DOJ and her participation in the DOJ investigation (Complaint P 131). Therefore, she has properly stated a claim upon which relief may be granted.

4. Plaintiffs ADA Claims Against Individual Defendants

Defendants argue that, if the Court does not dismiss plaintiffs' ADA claims in their entirety, the Court should dismiss plaintiffs' ADA claims as to the individual defendants because they are not "public entities" under Title II. 42 U.S.C. § 12132, upon which the complaint relies, states that no person with a disability "shall, by reason of such disability, [**25] be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity. . . ." Id.

There is nothing within Title II which explicitly authorizes or prohibits suits against public actors acting in their official or individual capacities. The Americans with Disabilities Act is a broad, remedial statute enacted to eliminate discrimination against [*1219] disabled persons. As such, it must be construed broadly to carry out its purpose. Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa. 1993). "The plain meaning of the statute dictates that public actors may not exclude disabled people from the services of a public institution. Thus, [actions of] public actor[s] such as Defendant[s] fall[] within the ambit of the Act" if plaintiff is excluded from services offered by the public institution. Doe v. Marshall, 882 F. Supp. 1504, 1507 (E.D. Pa. 1995).

Furthermore, plaintiffs assert claims for retaliation based on 42 U.S.C. § 12203(a), which by its stated terms applies to individuals.

5. Plaintiffs Claims for Monetary Damages Based on Mental Anguish and Humiliation

Defendants further claim that monetary damages based on mental [**26] anguish and humiliation are not recoverable under the ADA. "'Where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.'" Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 66, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992) (quoting Bell v. Hood, 327 U.S. 678, 684, 90 L. Ed. 939, 66 S. Ct. 773 (1946)). Title II provides:

The remedies, procedures, and rights set forth in section 794a of Title 29 [the Rehabilitation Act of 1973] shall be the remedies, procedures and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.


42 U.S.C. § 12113. This same remedies provision applies to plaintiffs' retaliation claims under 42 U.S.C. § 12203(c). The remedies provided by the Rehabilitation Act of 1973, 29 U.S.C. § 794a(a)(2), are those remedies provided for under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.

Recently, the Supreme Court held that Title IX of the Civil Rights Act affords the full range of remedies, unlimited by Congress. Franklin, [**27] 503 U.S. at 71-73. "Because Title IX was patterned after Title VI and Congress intended to create Title IX remedies comparable to those available under Title VI . . ., the Court's holding on Title IX in Franklin applies equally to Title VI and Section 504 [of the Rehabilitation Act] cases." Rodgers v. Magnet Cove Public Schools, 34 F.3d 642, 644 (8th Cir. 1994) (citations omitted). Therefore, plaintiffs are afforded the full range of legal remedies under the Rehabilitation Act. Rodgers, 34 F.3d at 645; see also, Pandazides v. Virginia Board of Education, 13 F.3d 823, 830 & n.9 (4th Cir. 1994); Miener v. Missouri, 673 F.2d 969, 979 (8th Cir) ("damages are available under § 504 as a necessary remedy for discrimination against an otherwise qualified handicapped individual"), cert. denied, 459 U.S. 909, 74 L. Ed. 2d 171, 103 S. Ct. 215 (1982); Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990) ("plaintiffs suing under section 504 of the rehabilitation act 'may pursue the full panoply of remedies, including . . . monetary damages'") (citation omitted), cert. denied, 501 U.S. 1217, 115 L. Ed. 2d 995, 111 S. Ct. 2825 (1991); Waldrop v. Southern Co. Services, [**28] Inc., 24 F.3d 152, 156-57 & n.5 (11th Cir. 1994). Consequently, compensatory damages are available to plaintiffs asserting claims under 42 U.S.C. § § 12132 and 12203. n9



n9 There are some cases holding that compensatory damages under the ADA or Rehabilitation Act are limited to situations in which there has been intentional discrimination. See, e.g., Marvin H. v. Austin Independent School District, 714 F.2d 1348, 1357 (5th Cir. 1983); Tyler v. City of Manhattan, 849 F. Supp. 1442, 1443-44 (D. Kan. 1994). Even assuming, arguendo, that these cases correctly state the law, defendants' motion on the remedies issue would have to be denied, as the plaintiffs have alleged intentional discrimination (Complaint PP 131, 142-43, 158).



D. Conclusion

In view of the foregoing, the Court should deny defendants' motion under Fed. R. Civ. P. 12(b)(6) to dismiss plaintiff's claims under the Americans with Disabilities Act for failure to state a claim upon which relief may be granted, except as to defendants [**29] Lockwood and Roberts.

[*1220] As to the plaintiffs' ADA claims against defendants Lockwood and Roberts, the court should grant defendants' motion to dismiss for failure to state a claim because all actions of these defendants took place before the effective date of the Act. However, all other claims against these defendants should remain.


III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir. 1991). Filing of objections that raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); [**30] Willis v. Secretary of Health & Human Services, 931 F.2d 390, 401 (6th Cir. 1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE


Dated Aug. 25, 1995

LINDA GAIL NIECE, et al., Plaintiffs, v. Deputy Warden PAT FITZNER, et al., Defendants.



CASE NO. 94-CV-70718-DT



UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION



941 F. Supp. 1497; 1996 U.S. Dist. LEXIS 18783



June 27, 1996, Decided

June 28, 1996, FILED







SUBSEQUENT HISTORY: [**1] Adopting Order of October 10, 1996, Reported at: 1996 U.S. Dist. LEXIS 18750.



DISPOSITION: Defendants' motion to dismiss plaintiffs' claims under the Americans with Disabilities Act and the Rehabilitation Act of 1973 denied.









COUNSEL: DANIEL E. MANVILLE, Counsel for Plaintiffs, Ann Arbor, Michigan. MICHAEL J. STEINBERG, Counsel for Plaintiffs, Ann Arbor, Michigan.


A. PETER GOVORCHIN, Counsel for Defendants, Assistant Attorney, Corrections Division, Lansing, Michigan.



JUDGES: PAUL J. KOMIVES, UNITED STATES MAGISTRATE JUDGE. JUDGE PAUL D. BORMAN



OPINIONBY: PAUL J. KOMIVES



OPINION:

[*1499] REPORT AND RECOMMENDATION

RECOMMENDATION


The Court should deny defendants' motion to dismiss plaintiffs' claims under the Americans with Disabilities Act and the Rehabilitation Act of 1973.

REPORT


I. Procedural Background

Plaintiffs Linda Gail Niece (Niece) and Grant H. Hendrick (Hendrick) bring this claim against defendants Michigan Department of Corrections and certain MDOC employees assigned to the Carson City Temporary Facility (OTF) in Carson City, Michigan. Hendrick is a low-security inmate at OTF, and is engaged to Niece. Niece is deaf, and is also confined to a wheelchair due to a neurological disorder called ataxia. Plaintiffs filed their complaint in 1994 pursuant to Titles [**2] II and IV of the Americans with Disabilities Act (ADA), 42 U.S.C. § § 12131-12134, 12203; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 42 U.S.C. § 1983 and the First Amendment to the United [*1500] States Constitution; and the Michigan Handicappers Civil Rights Act, MICH. COMP. LAWS § § 37.1101 et seq. The complaint relates to certain alleged actions taken by the prison officials in regard to telephone communication between Hendrick and Niece, and in regard to visitations at the prison by Niece. n1



n1 The relevant facts alleged in the complaint are set forth in detail in my Report & Recommendation of August 25, 1995, at pages 1-6. Accordingly, they are not set forth in detail again here. Judge Borman's Order and my Report are reported at Niece v. Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996).


On May 18, 1995, defendants filed a motion to dismiss plaintiffs' ADA claims against them. They argued that Hendrick lacks standing to pursue a claim under the ADA because he is not disabled, and that Niece [**3] cannot establish that she was discriminated against. On August 25, 1995, I issued a Report recommending that defendants' motion be denied, except as to defendants Lockwood and Roberts, whose actions occurred prior to the adoption of the ADA. On March 29, 1996, Judge Borman accepted this Report & Recommendation and entered an Order denying defendants' motion to dismiss except as to defendants Lockwood and Roberts.

On May 13, 1996, defendants filed a second motion to dismiss plaintiff's claims under the ADA and section 504 of the Rehabilitation Act (section 504). Defendants argue that the claims against them under the ADA and section 504 are barred by the Eleventh Amendment to the United States Constitution, and that plaintiffs have failed to state a claim upon which relief can be granted because the ADA and section 504 do not apply to state prisons. On June 11, 1996, plaintiffs filed their brief in opposition to defendants' motion, arguing that Congress has abrogated the state's Eleventh Amendment immunity and that the ADA and section 504 do apply to state prisons.


II. Eleventh Amendment Immunity


A. Eleventh Amendment Immunity Generally

The Eleventh Amendment provides: [**4]


The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.


U.S. CONST. amend. XI. Although the amendment expressly prohibits only suits against states by citizens of other states, the Supreme Court has long held that the Eleventh Amendment also bars suits by citizens of the state being sued. See, Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890); Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 472-73, 97 L. Ed. 2d 389, 107 S. Ct. 2941 (1987) (plurality opinion). This immunity is based on a two part presupposition: (1) each state is a sovereign entity; and (2) "it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." THE FEDERALIST No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed. 1961); see Seminole Tribe of Florida v. Florida, 134 L. Ed. 2d 252, 116 S. Ct. 1114, 1122 (1996); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 121 L. Ed. 2d 605, [**5] 113 S. Ct. 684 (1993); Hans, 134 U.S. at 13. Thus, "in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); see also, Papasan v. Allain, 478 U.S. 265, 276, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986). Further, as the Supreme Court made clear in Will v. Michigan Dep't of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), the Eleventh Amendment bars suits against state officials sued in their official capacity. See also, U.S. CONST. amend. XI.


B. Abrogation of Eleventh Amendment Immunity

Despite this bar from suit, in certain limited instances Congress may abrogate the Eleventh Amendment immunity of the states by allowing suits through federal statutes.


[*1501] In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: 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."

[**6]


Seminole Tribe, 116 S. Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1985) (citations omitted). Thus, the Court must consider each of these questions in turn.

1. Unequivocal Expression of Intent to Abrogate Immunity

"Congress' intent to abrogate the States' immunity from suit must be obvious from 'a clear legislative statement.'" Seminole Tribe, 116 S. Ct. at 1123 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 786, 115 L. Ed. 2d 686, 111 S. Ct. 2578 (1991)). "A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985); accord Blatchford, 501 U.S. at 786 n.4 ("The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim."). Thus, "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Dellmuth v. Muth, 491 U.S. 223, [**7] 227-28, 105 L. Ed. 2d 181, 109 S. Ct. 2397 (1989); see also, Welch, 483 U.S. at 474.

a. Abrogation of Immunity Under the ADA

The ADA contains a clear expression of Congress' intent to abrogate the states' Eleventh Amendment immunity. Under the ADA:

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirement of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.


42 U.S.C. § 12202. "Section 12202 of the ADA is an unequivocal expression of Congress' intent to abrogate the States' Eleventh Amendment immunity." Martin v. Voinovich, 840 F. Supp. 1175, 1187 (S.D. Ohio 1993); accord Eisfelder v. Michigan Dep't of Natural Resources, 847 F. Supp. 78, 82-83 (W.D. Mich. 1993).

b. Abrogation of Immunity Under the Rehabilitation Act

Likewise, Congress as unequivocally [**8] expressed its intention to abrogate the Eleventh Amendment of the states under the Rehabilitation Act of 1973. In Atascardero State Hospital, supra, the Supreme Court held that the Rehabilitation Act, as then enacted, did not properly abrogate the states' Eleventh Amendment immunity. Thus, to correct this oversight, Congress amended the Act in 1986 to include a provision abrogating Eleventh Amendment immunity:

A State shall not be immune under the Eleventh Amendment of the Constitution of the United States for a violation of section 794 of Title 29 [(section 5 of the Rehabilitation Act)] . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.


42 U.S.C. § 2000d-7(A); see S. REP. No. 388, 99th Cong., 2d Sess., at 27-28 (indicating that the abrogation of immunity provision was in direct response to the Court's decision in Atascardero State Hospital). "Accordingly, the Eleventh Amendment does not prevent plaintiffs from making claims against defendants under § 504 of the Rehabilitation Act." Martin, 840 F. Supp. at 1187; accord Eisfelder, 847 F. Supp. at 82-83.

2. Abrogation [**9] Made Under a Proper Exercise of Authority

Because Congress clearly and unequivocally expressed its intention to abrogate Eleventh [*1502] Amendment immunity both under the ADA and under section 504, the Court must next consider whether this abrogation was done under a proper exercise of Congress' authority.

a. Seminole Tribe and Abrogation Under the Commerce Clause

The Supreme Court recently addressed this matter in Seminole Tribe, supra. In Seminole Tribe, the Court, in a 5-4 decision, held that the Commerce Clause, U.S. CONST. art. I, § 8, cl. 3, does not confer upon Congress the authority to abrogate a state's Eleventh Amendment immunity from suit in federal courts. The Court held:


Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.


Seminole Tribe, 116 S. Ct. at 1131-32. Based on this holding, defendants [**10] argue that Congress could not have abrogated Eleventh Amendment immunity under the ADA and the Rehabilitation Act because these were both enacted under the Congress' Commerce Clause power.

b. Abrogation under the Fourteenth Amendment

To the extent that the ADA and the Rehabilitation Act were enacted solely under the commerce power, defendants' argument would, of course, prevail. However, both the ADA and the Rehabilitation Act were also enacted under Congress' explicit power to enforce the 14th Amendment "by appropriate legislation." U.S. CONST. amend XIV, § 5; accord 42 U.S.C. § 12101(b)(4) ("It is the purpose of [the ADA] . . . 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.") (emphasis added); S. REP. No. 388, 99th Cong., 2d Sess., at 27 (stating that the abrogation of Eleventh Amendment immunity in 42 U.S.C. § 2000d-7 was in response to the Atascadero Court's indication that such an abrogation would be permissible under section 5 of the Fourteenth Amendment). n2



n2 Although Congress did not explicitly state that it was enacting the Rehabilitation Act or the abrogation of Eleventh Amendment immunity under 42 U.S.C. § 2000d-7 pursuant to its enforcement powers under the Fourteenth Amendment, this can be fairly inferred from the findings and purposes behind the Rehabilitation Act, see 29 U.S.C. § 701, and from the Senate Report relating to 42 U.S.C. § 2000d-7. "The . . . constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144, 92 L. Ed. 596, 68 S. Ct. 421 (1948). Accordingly, the Supreme Court has noted:

It is in the nature of our review of congressional legislation defended on the basis of Congress' powers under § 5 of the Fourteenth Amendment that we be able to discern some legislative purpose or factual predicate that supports the exercise of that power. That does not mean, however, that Congress need anywhere recite the words "section 5" or "Fourteenth Amendment" or "equal protection" . . . .

Equal Employment Opportunity Comm'n v. Wyoming, 460 U.S. 226, 243 n.18, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983). Thus, it is proper for the Court to infer that Congress intended to invoke its Fourteenth Amendment enforcement powers in enacting the Rehabilitation Act.


[**11]

In Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976), the Court held:


We think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on [*1503] state authority. We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts."


Id. at 456 (citation omitted) (footnote omitted) (emphasis added). Although holding that the [**12] Commerce Clause does not provide proper authority for Congress to abrogate the states' Eleventh Amendment immunity, the Court's decision in Seminole Tribe left untouched the Fitzpatrick holding that section 5 of the Fourteenth Amendment does provide such authority. In distinguishing Fitzpatrick, the Court reasoned:


Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the preexisting balance between state and federal power achieved by Article III and the Eleventh Amendment.


Seminole Tribe, 116 S. Ct. at 1128. Further, the majority's opinion characterized the cases cited in Justice Stevens' dissent as being inapplicable in the Commerce Clause setting because "those cases arose in the context of a statute passed under the Fourteenth Amendment, where Congress' authority to abrogate is undisputed." Id. at 1131 n.15 (emphasis added). Finally, in his dissent, Justice Stevens also construes the Court's opinion as preserving Congress' power to abrogate the [**13] states' Eleventh Amendment immunity under section 5 of the Fourteenth Amendment. See id. at 1134 (Stevens, J., dissenting). Accordingly, so long as the ADA and the Rehabilitation Act were properly enacted under section 5 of the Fourteenth Amendment, Congress' abrogation of Eleventh Amendment immunity was proper.

c. Congressional Authority to Enact the ADA and the Rehabilitation Act under the Fourteenth Amendment

As noted above, section 5 of the Fourteenth Amendment states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. CONST. amend. XIV, § 5. Among the provisions of the Fourteenth Amendment which Congress may so enforce is the right of citizens to enjoy "the equal protection of the laws." U.S. CONST. amend. XIV, § 1. Although the primary purpose behind the Fourteenth Amendment when originally enacted was to protect the rights of African-Americans, Congress has broad power under the amendment to enact legislation against an array of various types of discrimination.

In Katzenbach v. Morgan, the Court recognized Congress' broad powers under section 5 of the Fourteenth Amendment:


Thus the McCulloch [**14] v. Maryland standard is the measure of what constitutes "appropriate legislation" under § 5 of the Fourteenth Amendment. Correctly viewed, § 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, 384 U.S. at 651; n3 see also, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490, 102 L. Ed. 2d 854, 109 S. Ct. 706 (1989) (O'Connor, J.) ("The power to 'enforce' [the provisions of 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."); Archibald Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, [*1504] 80 HARV. L. REV. 91, 107 (1966). Based on this language, lower courts have noted:


In exercising these enforcement powers under § 5, Congress is not limited to remedying inequalities which the courts would determine to be violative of the Constitution. It may prohibit conduct which would not otherwise by unlawful, in order to secure [**15] the guarantees of the Fourteenth Amendment[, and] . . . great deference is to be accorded to Congress' determination of what measures are appropriate to that end.


Bond v. Stanton, 555 F.2d 172, 174-75 (7th Cir. 1977), cert. denied, 438 U.S. 916, 57 L. Ed. 2d 1161, 98 S. Ct. 3146 (1978); see also, Flores v. City of Boerne, Tex., 73 F.3d 1352, 1357 (5th Cir. 1996); Corpus v. Estelle, 605 F.2d 175, 179-80 (5th Cir. 1979), cert. denied, 445 U.S. 919, 63 L. Ed. 2d 605, 100 S. Ct. 1284 (1980).



n3 In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), the Court defined the scope of Congressional power under the Necessary and Proper Clause, U.S. CONST. art. I, § 8, cl. 18. Writing for the Court, Chief Justice Marshall established the classic formulation for the reach of Congressional power:

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 consistent with the letter and spirit of the constitution, are constitutional.

McCulloch, 17 U.S. (4 Wheat.) at 421.


[**16]

Further, "Congress's [sic] power under section 5 of the fourteenth amendment clearly extends to protection of any group of persons invidiously discriminated against by state law." United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 553 (5th Cir. 1980). Thus, courts have upheld legislation against a number of forms of discrimination under section 5 of the Fourteenth Amendment. E.g., Flores v. City of Boerne, Tex., 73 F.3d 1352 (5th Cir. 1996) (Religious Freedom Restoration Act); Fontenot v. Louisiana Bd. of Elementary & Secondary Educ., 835 F.2d 117 (5th Cir. 1988) (attorney fees under the Education of the Handicapped Act); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694 (1st Cir. 1983) (Age Discrimination in Employment Act); American Fed. of State, County & Mun. Employees v. Washington, 578 F. Supp. 846 (W.D. Wash. 1983) (gender discrimination in employment), rev'd on other grounds, 770 F.2d 1401 (9th Cir. 1985).

The Rehabilitation Act of 1973 was enacted to, among other things, "empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society, through . . . [**17] the guaranty of equal opportunity." 29 U.S.C. § 701(b)(1)(F). The act was enacted based in part on Congress' finding that


individuals with disabilities continually encounter various forms of discrimination in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and public services.


29 U.S.C. § 701(a)(5). Similarly, the ADA was enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). As these provisions make clear,


the Rehabilitation Act and the ADA were enacted to prevent old-fashioned and unfounded prejudices against disabled persons from interfering with those individuals' rights to enjoy the same privileges and duties afforded to all United States citizens.


Galloway v. Superior Ct. of Dist. of Columbia, 816 F. Supp. 12, 20 (D.D.C. 1993). Both acts have the purpose of furthering "the traditional Equal Protection goal of protecting a discrete class of individuals from arbitrary and capricious actions . . . ." United States [**18] Equal Employment Opportunity Comm'n v. Calumet County, 686 F.2d 1249, 1252 (7th Cir. 1982). Accordingly, both acts were valid exercises of Congress' power to "enforce, by appropriate legislation," the Fourteenth Amendment's guaranty to each citizen of the equal protection of the laws.

3. Conclusion

Because both the Rehabilitation Act of 1973 and the ADA are proper exercises of Congress' power to enforce the provisions of the Fourteenth Amendment, and because in both acts Congress has indicated in clear, unequivocal language its intent to abrogate states' Eleventh Amendment immunity, the Court should conclude that the Eleventh Amendment does not bar the plaintiffs' suit.


[*1505] III. APPLICATION OF SECTION 504 AND THE ADA TO STATE PRISONS n4



n4 Plaintiffs argue that the Court need not decide this issue here because it has already decided the issue in its acceptance of my previous Report & Recommendation. They argue that defendants raised this argument in their objections to that Report, and that Judge Borman's Order accepting that report rejected all of defendants' objections. In addition, they argue, because the Court resolved the substantive issues raised by defendants' first motion to dismiss in their favor, the Court implicitly concluded that the ADA and Rehabilitation Act do apply to state prisons. Thus, they contend, defendants' argument on this issue is barred by the "law of the case" doctrine, which "precludes a court from re-examining an issue previously decided by itself or a higher court." Johns-Manville Corp. v. Guardian Indus. Corp., 116 F.R.D. 97, 101 (E.D. Mich. 1987). This doctrine applies whether the issue was decided "explicitly or by necessary inference from the disposition." Coal Resources, Inc. v. Gulf & Western Indus., Inc., 865 F.2d 761, 766 (6th Cir. 1989) (internal quotation omitted).

While I agree with plaintiffs that my earlier Report & Recommendation and Judge Borman's Order accepting that Report necessarily resolved this issue by implication, I nonetheless discuss the merits of defendants' argument. This is appropriate because: (1) it leads to the same conclusion as application of the law of the case doctrine; and (2) specifically with respect to the ADA, the law on this issue is largely undeveloped, necessitating that the Court make its reasoning on this issue clear and explicit. However, to the extent that defendants raise issues explicitly addressed in my previous Report, such as Hendrick's standing to sue under the ADA or Niece's eligibility to receive a "service" under the ADA, the law of the case doctrine applies and such issues are not reconsidered here.


[**19]

Defendants' alternative grounds for dismissing plaintiffs' section 504 and ADA claims is that neither statute applies to state prisons. After considering each statute separately, the Court should conclude that they both apply to state prisons, for the reasons that follow. n5



n5 With respect to plaintiffs' ADA claims, the following discussion focuses primarily on the claims under Title II, 42 U.S.C. § 12132. Plaintiffs' retaliation claims under 42 U.S.C. § 12203 clearly prohibit prison officials from discriminating against an individual in retaliation for her participation in an investigation under the ADA. The plain language applies to any person, and there is no legitimate penological interest served by allowing such retaliation.



A. Principles of Statutory Construction

"In determining the meaning of [a] statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy." Crandon v. United States, 494 U.S. 152, 158, 108 L. [**20] Ed. 2d 132, 110 S. Ct. 997 (1990); see also, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L. Ed. 1009 (1849)). It is a "familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes." Tcherepnin v. Knight, 389 U.S. 332, 336, 19 L. Ed. 2d 564, 88 S. Ct. 548 (1967) (broadly construing the Securities Exchange Act of 1934); see, e.g., Atchison, T. & S. F. Ry. v. Buell, 480 U.S. 557, 562, 94 L. Ed. 2d 563, 107 S. Ct. 1410 (1987) (Federal Employer Liability Act); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 497-98, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985) (Racketeer Influenced Corrupt Organizations Act); Jefferson County Pharmaceutical Ass'n, Inc. v. Abbott Lab., 460 U.S. 150, 158-59, 74 L. Ed. 2d 882, 103 S. Ct. 1011 (1983) (Robinson-Patman Anti-Price Discrimination Act); Peyton v. Rowe, 391 U.S. 54, 64-65, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968) (habeas corpus relief under 28 U.S.C. § 2241); Securities Exchange Comm'n v. Capital Gains Research Bureau, Inc., 375 U.S. [**21] 180, 185-86, 11 L. Ed. 2d 237, 84 S. Ct. 275 (1963) (Investment Advisors Act of 1940). This broad construction is also applied to civil rights statutes. Accord City of Memphis v. Greene, 451 U.S. 100, 120, 67 L. Ed. 2d 769, 101 S. Ct. 1584 (1981) (42 U.S.C. § 1982); Owen v. City of Independence, Mo., 445 U.S. 622, 635-36, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980) (42 U.S.C. § 1983). Accordingly, a broad construction is given to both the Rehabilitation Act, Moreno v. Consolidated Rail Corp., 63 F.3d 1404, 1415 (6th Cir. 1995), and to the ADA, Civic Ass'n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996); Tyler v. City of Manhattan, 849 F. Supp. 1429, 1441 (D. Kan. 1994); Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa.), aff'd, 9 F.3d 1067 (3d Cir. 1993), cert. denied, [*1506] 114 S. Ct. 1545 (1994).


B. The Plain Meaning of Section 504 and the ADA

By its terms, section 504 applies to "any program receiving Federal financial assistance." 29 U.S.C. § 794 (emphasis added). Similarly, title II of the ADA applies to "any [public] entity," 42 U.S.C. § 12132 (emphasis added), which is further defined to include [**22] "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131(1)(B) (emphasis added).

In construing a statute, especially a remedial one which must be construed broadly to effectuate its purpose, "'the word "any" is generally used in the sense of "all" or "every" and its meaning is most comprehensive.'" Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 115 (3d Cir. 1992) (quoting McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907, 910 (Pa. 1989)) (construing Pennsylvania statute of repose); see also, United States v. Rosenwasser, 323 U.S. 360, 362-63, 89 L. Ed. 301, 65 S. Ct. 295 (1945) ("any" employee as used in Fair Labor Standards Act includes all employees unless specifically excluded). Defendants do not dispute that the Michigan Department of Corrections is a program receiving federal assistance. Because it is a program receiving federal assistance, it is one of any such programs covered by section 504. Likewise it is clear, and defendants do not dispute, that MDOC is a department of the State of Michigan. See, e.g., Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir. [**23] 1993). Because MDOC is a department of the State of Michigan, it clearly comes under the definition of "public entity" in 42 U.S.C. § 12131 and is therefore subject to Title II of the ADA. In addition, plaintiffs state claims of retaliation against defendants, pursuant to 42 U.S.C. § 12203. By its clear terms this statutory provision applies to any person who discriminates against an individual in retaliation for attempting to enforce rights under the ADA. n6



n6 In addition, Congress provided that

nothing in [the ADA] shall be construed to apply a lesser standard that the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.

42 U.S.C. § 12201(a). As discussed below, the case law and regulations under the ADA at the time of its enactment held the Rehabilitation Act applicable to state prisons. Because it is assumed that Congress is knowledgeable of the existing law when it enacts legislation, Miles v. Apex Marine Corp., 498 U.S. 19, 32, 112 L. Ed. 2d 275, 111 S. Ct. 317 (1990), the Court should assume that Congress intended that the ADA apply to prisons.


[**24]


C. The Department of Justice Regulations Implementing Section 504 and the ADA

The regulations promulgated by the Department of Justice implementing both section 504 and Title II of the ADA make it clear that they both apply to state prisons. Section 504 applies to "any program receiving Federal financial assistance." 29 U.S.C. § 794. The regulations interpreting this provision define program as "the operations of the agency or organizational unit of government receiving or substantially benefiting from the Federal assistance awarded, e.g., a . . . department of corrections." 28 C.F.R. § 42.540(h) (1995) (emphasis added). Similarly, the regulations promulgated under the ADA charge the Department of Justice to enforce compliance in "all programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions." 28 C.F.R. § 35.190(b)(6) (1995) (emphasis added); see also 28 C.F.R. Part 35, Appendix A, at 460-61 (1995) (explaining that under 28 C.F.R. § 35.130(b)(8), a public entity need not provide attendant care or similar assistance "except in special circumstances, [**25] such as where the individual is an inmate of a custodial or correctional institution."). n7



n7 In addition, the regulations and case law applicable to interpreting section 504 are applicable in determining the contours of the ADA. See, Patton v. TIC United Corp., 77 F.3d 1235, 1245 (10th Cir. 1996); Helen L. v. DiDario, 46 F.3d 325, 330 n.7 (3d Cir.), cert. denied, 116 S. Ct. 64 (1995).


"Considerable weight should be accorded to an executive department's construction [*1507] of a statutory scheme it is entrusted to administer." Chevron, U.S.A., Inc. v Natural Resources Defense Council, 467 U.S. 837, 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). In fact, such regulations are entitled to "controlling weight" unless they are "arbitrary, capricious or manifestly contrary to the statute." Id. at 844. As the Supreme Court has noted, the regulations implementing the Rehabilitation Act provide "an important source of guidance on the meaning of § 504." Alexander v. Choate, 469 U.S. 287, 304 n.24, [**26] 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985); see also, School Bd. of Nassau County v. Arline, 480 U.S. 273, 279, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987). The same is true of the regulations promulgated under the ADA: "Because Title II was enacted with broad language and directed to the Department of Justice to promulgate regulations [thereunder], the regulations which the Department promulgated are entitled to substantial deference." Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.) (citing Blum v. Bacon, 457 U.S. 132, 141, 72 L. Ed. 2d 728, 102 S. Ct. 2355 (1982)), cert. denied, 116 S. Ct. 64 (1995). Accordingly, the Court should conclude that section 504 and the ADA apply to state prisons.


D. The Case Law Applying Section 504 and the ADA

1. Case Law Under Section 504

A long line of cases applies section 504 to state prisons. Thus, it is clear that "the Rehabilitation Act applies with the same force and effect in corrections institutions as it does in other federally funded programs." Austin v. Pennsylvania Dep't of Corrections, 876 F. Supp. 1437, 1465 n. 17 (E.D. Pa. 1995); accord Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994); Harris v. [**27] Thigpen, 941 F.2d 1495, 1522 n. 41 (11th Cir. 1991); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988); Journey v. Vitek, 685 F.2d 239, 242 (2d Cir. 1982); Sites v. McKenzie, 423 F. Supp. 1190, 1197 (N.D. W. Va. 1976).

Contrary to defendants' assertion, Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) does not limit the Bonner decision. In Gates, the Ninth Circuit specifically reaffirmed its Bonner holding that the Rehabilitation "Act is applicable to prisons receiving federal financial assistance." Gates, 39 F.3d at 1446. The question in Gates was not whether the Rehabilitation Act applied, but how it applied. Thus, it did not limit Bonner at all.

Nor is Williams v. Meese, 926 F.2d 994 (10th Cir. 1991), persuasive. In Williams, the court held that section 504 does not apply to federal prisoners "since the Federal Bureau of Prisons does not fit the definition of 'programs or activities' governed by this section." Williams, 926 F.2d at 997. However, the court merely made this blanket assertion without discussion of the relevant statutory language, history of the Act, or regulations promulgated thereunder; nor did the [**28] court discuss the reasoning behind its conclusion. For this reason, Williams is not persuasive. Thus, the case law strongly favors application of section 504 to state prisons.

2. Case Law Under the ADA

A number of courts have held, either explicitly or implicitly, that the ADA applies to state prisons and that state prisoners may bring suit under the ADA. Clarkson v. Coughlin, 898 F. Supp. 1019, 1035-37 (S.D.N.Y. 1995) (reasoning that section 504 applies to prisons and recognizing similarity between section 504 and ADA); Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 1995) (allowing inmate's suit under ADA although not explicitly addressing the issue); Rewolinski v. Morgan, 896 F. Supp. 879, 881 (E.D. Wis. 1995) (same); Noland v. Wheatley, 835 F. Supp. 476, 483 (N.D. Ind. 1993) (same); Outlaw v. City of Dothan, Ala., No. CV 92- A-1219-S, 1993 WL 735802, at *4 (M.D. Ala. Apr. 27, 1993) ("The court holds that the Americans with Disabilities Act required the City of Dothan to make the shower in its jail readily accessible to and usable by the plaintiff."). Nonetheless, there are several cases, cited by defendants, holding that the ADA is not applicable to state [**29] prisons. Because the cases cited by defendants are either distinguishable or unpersuasively reasoned, the Court should conclude that the ADA is applicable to state prisons.

[*1508] The case principally relied on by defendants is Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995). Torcasio did not decide the question now under consideration. Rather, the court held only that the prison official defendants in that case were entitled to qualified immunity from plaintiff's ADA and section 504 claims because, at the time of the defendants' actions, "it was not then clearly established that either statute applied to state prisons," thus entitling defendants to qualified immunity. Torcasio, 57 F.3d at 1352. Thus, any discussion of whether the ADA applies to prison settings at all is, at best, dicta. Even this dicta, however, is unpersuasive.

The Torcasio court stated that, because of the compelling state interest involved in maintaining its own prisons, "Congress must speak unequivocally before we will conclude that it has 'clearly' subjected state prisons to its enactments." Id. at 1346. However, no such rule of statutory construction seems to support this proposition. [**30] Indeed, the long line of prisoner civil rights cases filed under 42 U.S.C. § 1983 would seem to belie this reasoning. Section 1983 does not, by its explicit terms, "clearly" state that prison officials are subject to an action under the statute. Yet, it cannot be doubted that prisoners are protected by and may file suit under § 1983. McCollum v. Mayfield, 130 F. Supp. 112, 116 (N.D. Cal. 1955) ("an imprisoned felon . . . is empowered to sue in the federal courts under this section."); Siegel v. Ragen, 88 F. Supp. 996, 998 (N.D. Ill. 1949) ("The fact that plaintiffs are incarcerated in a penitentiary under convictions for felonies, does not deprive them of the right to invoke the provisions of the Civil Rights Act."), aff'd, 180 F.2d 785 (7th Cir.), cert. denied, 339 U.S. 990, 94 L. Ed. 1391, 70 S. Ct. 1015 (1950); Gordon v. Garrson, 77 F. Supp. 477, 479 (E.D. Ill. 1948). Similarly, the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, does not explicitly state that it proscribes the conduct of state prison officials or that state prisoners are protected by it. Yet, since its adoption, courts have routinely applied the RFRA to prisoner claims. [**31] E.g., Werner v. McCotter, 49 F.3d 1476, 1479 (10th Cir. 1995); Bryant v. Gomez, 46 F.3d 948, 948 (9th Cir. 1995) (per curiam); Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994); Muslim v. Frame, 891 F. Supp. 226, 229 (E.D. Pa. 1995); Woods v. Evatt, 876 F. Supp. 756, 761 (D.S.C. 1995); Campos v. Coughlin, 854 F. Supp. 194 (S.D.N.Y. 1994). As the application of these statutes shows, there is simply no support for the Torcasio court's conclusion that state prisons must have been "clearly" subjected to the provisions of the ADA.

In a similar vein, the Torcasio court also relied on the Supreme Court's language in Will v. Michigan Dep't of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), which states: "If Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.'" Id. at 65 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985)); see Torcasio, 57 F.3d at 1344. Contrary to the conclusion of the Torcasio court, however, Congress [**32] did make it "unmistakably clear" that it was altering the balance between the states and the federal government. By its very terms, Title II of the ADA proscribes the conduct of a state government and its department and agencies. 42 U.S.C. § 12131, 12132. Further, as discussed above, Congress clearly abrogated the states' Eleventh Amendment immunity. 42 U.S.C. § 12202. These statutory provisions make "clear and manifest" Congress' intention "to pre-empt the historic powers of the States" by enactment of the ADA. Will, 491 U.S. at 65 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947)). Thus, the ADA satisfies the Will requirements. In short, the reasoning of the Torcasio court is unpersuasive in light of the plain language, legislative history, the regulations promulgated thereunder, and the policies sought to be advanced by the ADA. n8



n8 Defendants also rely on Staples v. Virginia Dep't of Corrections, 904 F. Supp. 487 (E.D. Va. 1995) and Little v. Lycoming County, 912 F. Supp. 809 (M.D. Pa. 1996). However, because these cases simply rely on the Torcasio reasoning, they are unpersuasive. See Staples, 904 F. Supp. at 490; Little, 912 F. Supp. at 818-19.


[**33]

[*1509] Defendants also rely on Pierce v. King, 918 F. Supp. 932 (E.D.N.C. 1996). This case is likewise distinguishable. Pierce dealt with the application of the ADA to prison employment. Unlike visitation rights or telephone access, prison employment does not constitute the provision of a "service" under the meaning of Title II of the ADA. Rather, discrimination in employment comes within the ambit of Title I. Whether an inmate qualifies as an employee under the meaning of Title I is doubtful. See, e.g., Harker v. State Use Indus., 990 F.2d 131, 133 (4th Cir.) (state prisoners not entitled to minimum wage under Fair Labor Standards Act because they are not within the meaning of the word "employee" as used in the Act), cert. denied, 510 U.S. 886, 114 S. Ct. 238, 126 L. Ed. 2d 192 (1993); Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir. 1992) (same); but cf. Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984) (adopting "economic reality" test, which in theory could permit a prisoner to qualify as an employee). However, this question is quite different from the questions presented here: whether state prison officials can deny services to qualified [**34] individuals on the basis of a disability, and whether state prison officials can retaliate against persons seeking to enforce their rights under the ADA. Thus, Pierce has little, if anything, to contribute to the resolution of this case.

Also troubling is the Pierce court's rejection of the Fourteenth Amendment basis for this legislation. The court stated:


Although framed in terms of addressing discrimination, the Act's operative remedial provisions demand not equal treatment, but special treatment tailored to the claimed disability. In this respect, the ADA differs radically from traditional anti-discrimination laws, such as Title VII, which seek only a state of affairs where individuals are treated in a neutral manner without regard to race, sex, age, etc. Unlike anti-discrimination laws, the ADA demands entitlement in order to achieve its goals. This the Fourteenth Amendment does not authorize.


Pierce, 918 F. Supp. at 940 (emphasis in original). Yet, this approach was rejected by the Supreme Court in Alexander v. Choate, 469 U.S. 287, 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985), in which the Court noted:


Our use of the term "affirmative action" [**35] in this context has been severely criticized for failing to appreciate the difference between affirmative action and reasonable accommodation; the former is said to refer to a remedial policy for the victims of past discrimination, while the latter relates to the elimination of existing obstacles against the handicapped. Regardless of the aptness of our choice of words in [Southern Community College v.] Davis [, 442 U.S. 397, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979)], it is clear from the context of Davis that the term "affirmative action" referred to those "changes," "adjustments," or "modifications" to existing programs that would be "substantial," 442 U.S. at 410, 411, n. 10, 413, or that would constitute "fundamental alteration[s] in the nature of a program . . . ," id., at 410, rather than those changes that would be reasonable accommodations.


Alexander, 469 U.S. at 300-01 n.20 (citations omitted). Thus, in Alexander "the Court clarified that reasonable accommodation was a nondiscrimination, not an affirmative action, obligation . . . ." Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 [**36] HARV. C.R.-C.L. L. REV. 413, 431 n.96 (1991). Accordingly, the Pierce court's Fourteenth Amendment concerns are unfounded.


E. Policy Considerations

Of course, the above discussion is not intended to diminish the conflicting policy considerations at issue. On the one hand, Congress clearly sought to "provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). This was based on Congress' finding that "individuals with disabilities are a discrete and insular [*1510] minority who have been faced with restrictions and limitations [and] subjected to a purposeful history of unequal treatment," id. § 12101(a)(7), but who, "unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, . . . have often had no legal recourse to redress such discrimination." Id. § 12101(a)(4). President Bush described the ADA as "the world's first comprehensive declaration of equality for people with disabilities." President George Bush, Remarks by the President During Ceremony for the Signing of the Americans with Disabilities Act of 1990, 2 (July [**37] 26, 1990), quoted in Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413, 413-14. The ADA is the culmination of a long, arduous struggle on the part of persons with disabilities to attain equal treatment through the civil rights laws. See generally, Heather K. by Anita K. v. City of Mallend, Iowa, 887 F. Supp. 1249, 1263-66 (N.D. Iowa 1995); Burgdorf, supra, at 413-34; Jones, Overview and Essential Requirements of the Americans with Disabilities Act, 64 TEMP. L. REV. 471, 472-75 (1991).

Balanced against these policy concerns are the states' strong interests in the maintenance of state penal institutions, an interest traditionally accorded strong deference by federal courts. See, e.g., Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987) ("When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."); Procunier v. Martinez, 416 U.S. 396, 412, 40 L. Ed. 2d 224, 94 S. Ct. 1800; Preiser v. Rodriguez, 411 U.S. 475, 491-92, [**38] 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973); Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948) ("Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights."). Relying on this line of Supreme Court precedent, the Torcasio court stated:

There can be little doubt that application of the ADA and Rehabilitation Act would have serious implications for the management of state prisons, in matters ranging from cell construction and modification, to inmate assignment, to scheduling, to security procedures.


Torcasio, 57 F.3d at 1346.

However, application of the Rehabilitation Act and the ADA to state prisons would not bring about the horrors portended by the Torcasio court. Under both the ADA and section 504, an individual is qualified to receive the protections of the statute only if he or she meets the eligibility requirements for the particular service or program in question either as the program exists, or as it would exist with "reasonable modification." 42 U.S.C. § 12131(2); see 29 U.S.C. § 794. n9 By its very definition, "reasonable" would take into account the nature of the modification [**39] sought and the circumstances in which the modification is sought. See, e.g., BLACK'S LAW DICTIONARY 1265 (6th ed. 1990) (defining reasonable as "fair, proper, just, moderate, suitable under the circumstances) (emphasis added). Thus, for example, a modification which would seriously jeopardize the security of other inmates or of prison officials would not be "suitable under the circumstances," and would therefore not by "reasonable."



n9 Although the language of section 504 itself does not explicitly provide that a person is a "qualified individual" under the section if reasonable accommodation can be made, it has been interpreted thusly. See, e.g., 857 F.2d 1073 (6th Cir. 1988).


Particularly persuasive is the Sixth Circuit's recent decision in Sandison v. Michigan High School Athletic Ass'n, 64 F.3d 1026 (6th Cir. 1995). In Sandison, the court considered whether the Michigan High School Athletic Association's (MHSAA) age-eligibility rule violated section 504 and Title II of the ADA as applied [**40] to a student who, because of a learning disability, was two grades behind his age group. The MHSAA rule in question prohibited any person who was 19 years old on or before September 1 or the school year in question could not participate in high school athletics. Plaintiff filed suit under, among other statutes, section 504 and Title II of the ADA. Id. at 1028-29.

[*1511] The court found that the age restriction is "a necessary requirement of the interscholastic sports program" because it safeguards other, younger competitors from injury and prevents unfair competitive advantage to older participants. Id. at 1035. The court further reasoned that lifting the age restriction would not be a "reasonable accommodation" as required under section 504:


Aside from the necessity of the program's requirement, the other question in the otherwise qualified inquiry is "'whether some "reasonable accommodation" is available to satisfy the legitimate interests of both the grantee and the handicapped person. And since it is part of the "otherwise qualified" inquiry, our precedent requires that the "reasonable accommodation" question be decided as an issue of fact.'"


Id. at 1034 [**41] (quoting Doherty v. Southern College of Optometry, 862 F.2d 570, 575 (6th Cir. 1988) (quoting Brennan v. Stewart, 834 F.2d 1248, 1261-62 (5th Cir. 1988)), cert. denied, 493 U.S. 810 (1989)) (emphasis added). The court then noted that "generally, an 'accommodation is not reasonable if it either imposes undue financial and administrative burdens on a grantee, or requires a fundamental alteration in the nature of [the] program.'" Id. at 1034 (quoting Arline, 480 U.S. at 287 n.17 (citations omitted) (internal quotation omitted)). Applying these rules, the court found that the only possible accommodation would be to lift the age restriction, and such an accommodation would fundamentally alter the sports program. Id. at 1034-35. Accordingly, the age restriction did not violate section 504. Id. at 1035. With respect to the plaintiff's claim under Title II of the ADA, the court found that the same analysis applies to the "reasonable modification" language of 42 U.S.C. § 12131(2), "adding only that the word 'modification' 'connotes moderate change.'" Id. at 1037 (quoting MCI Telecommunications Corp. v. AT & T Co., 512 U.S. 218, 114 S. Ct. 2223, 2230, 129 [**42] L. Ed. 2d 182 (1994).

As Sandison clearly illustrates, accommodations or modifications under section 504 and Title II of the ADA must be reasonable, and "reasonable" depends upon the nature of the service or program and the type of modification in question. The policy concerns inherent in the maintenance of state correctional facilities, such as security, discipline, and rehabilitation, will not be frustrated by application of either section 504 or the ADA to state prisons. Cf., Gates, 39 F.3d at 1447 (indicating that under the ADA, as under the Constitution a regulation "'is valid if it is reasonably related to legitimate penological interests.'") (quoting Turner, 482 U.S. at 89). Accordingly, a consideration of the policy interests involved weighs in favor of applying section 504 and the ADA to state prisons.


IV. CONCLUSION

In light of the foregoing, the Court should conclude that Congress has properly abrogated the states' Eleventh Amendment immunity, and thus plaintiffs' claim is not barred by that Amendment. Further, the Court should conclude that the provisions of Title II and Title IV are applicable to state prisons. Accordingly, because plaintiffs' [**43] have stated a claim upon which relief may be granted, the Court should deny defendants' motion to dismiss.

NOTICE TO PARTIES REGARDING OBJECTIONS

The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir. 1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Willis v. Secretary of Health & Human Services, 931 F.2d 390, 401 (6th Cir. 1991). Pursuant [*1512] to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within ten (10) days of service of [**44] any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE


Dated: June 27, 1996