            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 06a0202n.06
                        Filed: March 27, 2006

                                       No. 05-3147

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


RACHEL HAAS, CAROL HAAS, and                         )
RICHARD HAAS,                                        )
                                                     )
       Plaintiffs-Appellants,                        )       ON APPEAL FROM
                                                     )       THE UNITED STATES
v.                                                   )       DISTRICT COURT FOR THE
                                                     )       NORTHERN DISTRICT
QUEST RECOVERY SERVICES, INC. and                    )       O F        O H I O
STATE OF OHIO,                                       )
                                                     )                      OPINION
       Defendants-Appellees.                         )


BEFORE:       NORRIS and BATCHELDER, Circuit Judges; and COHN, District
              Judge*

AVERN COHN, District Judge. This is a case under the Americans with Disabilities

Act (ADA), 42 U.S.C. § 12101 et seq. Plaintiffs-Appellants Rachel Haas and her parents,

Carol Haas and Richard Haas (collectively referred to as the Haases), filed suit against

Defendants-Appellees Quest Recovery Services, Inc. (Quest) and the State of Ohio,1

alleging that Rachel Haas suffered discriminatory treatment based upon her physical


       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District
of Michigan, sitting by designation.
       1
         The complaint as originally filed named the City of Canton, Ohio, as a defendant.
Plaintiffs, however, dismissed all claims against the City and amended the complaint to
name the State of Ohio as a party defendant.
disabilities while she was participating in a drug and alcohol counseling program

administered by Quest and ordered as part of her punishment after she pleaded guilty to

operating a vehicle under the influence of alcohol. The Haases appeal the district court’s

dismissal of their claim against the State of Ohio under Title II of the ADA, 42 U.S.C. §

12132. We affirm.

                             I. FACTUAL BACKGROUND2

       On September 19, 2002, Rachel Haas (Haas) was operating an all-terrain vehicle in

Louisville, Ohio, while intoxicated. While crossing a road, Haas was hit by a truck and

suffered serious injuries, including fractures to her pelvis and arms, a partially severed

hand, a crushed leg, and other internal injuries. She was hospitalized for several weeks.

During the course of her treatment, her left leg was amputated above the knee, she

received a prosthetic right elbow, and a metal rod was placed in her right arm. She was

prescribed pain medication and a course of physical therapy upon her release from the

hospital.

       The local prosecutor charged Haas with driving under the influence of alcohol.

OHIO REV. CODE § 4511.19(A). She pleaded guilty in the Canton, Ohio, municipal court

on February 18, 2003. Prior to her sentencing, she provided the judge with a letter from



       2
         Because the district court granted the State of Ohio’s motion to dismiss under
Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the factual background is taken from the first
amended complaint. Benzon v. Morgan Stanley Distrib., Inc., 420 F.3d 598, 609 n.5 (6th
Cir. 2005) (noting that this Court accepts as true all of plaintiff’s well-pleaded allegations
when we review a grant of a motion to dismiss for failure to state a claim).

                                              2
her physical therapist, stating that rehabilitation would take three to six months and that

“[a]ny disruption of this rehabilitation . . . would be very detrimental to her progress.”

The municipal court judge sentenced Haas to 36 days of house arrest and required her to

participate in two six-day driver intervention programs at Quest’s Massillon, Ohio,

facility. The State of Ohio owned the building housing Quest’s facility and leased it

indirectly to Quest.

       Haas, who required a wheelchair, reported for her first six-day stay at Quest’s

facility on March 13, 2003. The first amended complaint describes her experience as

follows:

              Plaintiff was instructed by a Quest employee upon her arrival to
       proceed with her luggage to the sixth floor of the building. When she asked
       where the elevator was located, she was told there was none and she would
       need to use the stairs. The Quest employee refused to provide any
       assistance to her. With her parents’ help, Plaintiff was therefore forced to
       “scoot” herself up six (6) flights of stairs. In addition to substantial physical
       pain, cramping, and discomfort, Plaintiff also suffered substantial
       embarrassment and humiliation as numerous other inmates and Quest staff
       members climbed the stairs past her.

              Initially, Quest’s staff would only serve her meals in the basement.
       Plaintiff was thus required to hop, scoot, and crawl up and down the steps
       without any assistance several times a day. Since she could not bring her
       wheelchair to the basement, she was forced to hop substantial distances in
       order to get her food and reach the table. . . .

              Plaintiff’s wheelchair would not fit into the restroom she was
       required to use, which was not handicap-accessible. Plaintiff had to sit on
       the floor of the co-ed shower in order to bathe herself. . . .

In addition to this situation, Haas allegedly fell down three flights of stairs while in the

facility, displacing the rod in her arm. When her physical therapist wrote another letter

                                               3
indicating that she was not cleared for stair climbing, she was allowed to take meals in

her room, though the complaint states that staff “forgot” to deliver food on several

occasions.

       Despite a favorable assessment by her counselor, the first amended complaint

alleges that the facility’s director “advised her that her attitude had been unacceptable and

her completion of the program would not be approved.” A hearing was conducted in

municipal court on April 4, 2003, which resulted in an order of confinement in the Stark

County, Ohio, jail for six days beginning April 7, 2003.

                              II. PROCEDURAL HISTORY

       After completing her sentence without further incident, Haas and her parents filed

this lawsuit. The complaint as originally filed listed six counts: (1) handicap

discrimination, (2) rehabilitation act violations, (3) civil rights violations, (4)

negligence/intentional tort, (5) infliction of emotional distress, and (6) loss of consortium.

The Haases abandoned count three (civil rights violation) when they filed the first

amended complaint.

       The State of Ohio filed a motion to dismiss arguing that Eleventh Amendment

immunity barred recovery and, in the alternative, the Haases did not state a valid claim for

relief. The district court granted the State’s motion in part, ruling that (1) Title II of the

ADA does not abrogate Ohio’s Eleventh Amendment immunity to the Haases’ ADA

claim, (2) Ohio waived its immunity to the Haases’ Rehabilitation Act claim, and (3) the

Haases failed to state a claim for direct discrimination against the State of Ohio.

                                                4
       On December 28, 2004, the district court entered an order of settlement, followed

by another order on January 28, 2005, which provided “[n]otwithstanding the foregoing

[settlement and dismissal], this entry shall have no effect upon Plaintiffs’ right to appeal

the Order of September 20, 2004 dismissing the Americans with Disabilities Act claims

. . . on the pleadings.” Quest settled the ADA and Rehabilitation Act claims against it for

an undisclosed sum. The State of Ohio settled a claim under the Rehabilitation Act

premised upon its ownership of the building that housed the Quest facility.

                                       III. ANALYSIS

                                   A. Standard of Review

       We review de novo a district court’s grant of a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6). Simon v. Pfizer, Inc., 398 F.3d 765, 772 (6th Cir.

2005). A motion under Rule 12(b)(6) is granted when “it is clear that the plaintiff can

prove no set of facts in support of [the] claim that would entitle [the plaintiff] to relief.”

Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). In deciding a motion under Rule

12(b)(6), the Court accepts all of the allegations as true and construes the complaint

“liberally in favor of the party opposing the motion.” Id. The Court does not accept the

“bare assertion of legal conclusions,” Columbia Nat. Res., Inc. v. Tatum, 58 F.3d 1101,

1109 (6th Cir. 1995), nor does the Court accept “unwarranted factual inferences.”

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).

       The applicability of the Eleventh Amendment to claims against a state under the

ADA is a question of law that we review de novo. Carten v. Kent State Univ., 282 F.3d

                                               5
391, 394 (6th Cir. 2002).

           B. Whether the Haases Stated a Claim Under Title II of the ADA

       The Haases say that they sufficiently pleaded direct discrimination by the State of

Ohio because the Canton, Ohio, municipal court, which is an arm of the Ohio court

system, sentenced Rachel to her treatment program and thus caused her to suffer

discrimination. Additionally, the Haases premise liability on the State of Ohio’s

ownership of the building that housed the Quest facility. The State responds that the

Haases attempted, but failed, to link any direct action of the State with the actions of

Quest, the private facility.

       Title II of the ADA provides, in pertinent 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 or a public entity, or be subjected to
       discrimination by any such entity.

42 U.S.C. § 12132.

       To state a claim of disability discrimination under Title II of the ADA, a plaintiff

must allege that “(1) she has a disability; (2) she is otherwise qualified; and (3) she is

being excluded from participating in, being denied the benefits of, or being subjected to

discrimination under a program solely because of her disability.” Jones v. City of

Monroe, 341 F.3d 474, 477 (6th Cir. 2003).

       The district court found, and the State does not contest, that the Haases satisfied

the first and second elements by alleging that Rachel Haas was a qualified individual with


                                               6
a disability. On appeal, the Haases argue, as they did before the district court, that

liability should be imposed under Title II of the ADA as a result of the Canton, Ohio

municipal court’s practice of referring disabled individuals to non-handicap accessible

drug and alcohol treatment facilities. Alternatively, the Haases argue that the State

should be held liable for failing to ensure that the buildings where these activities were

being conducted satisfied handicap accessibility requirements.

       The district court astutely observed that the Haases are in effect suing the State of

Ohio in an attempt to sue the municipal court judge. Indeed, the Haases contend on

appeal that the “Canton Municipal Court treated [Rachel] far more severally [sic] than her

non-handicapped counterparts.” The proper inquiry for this line of argument is whether

the Canton Municipal Court judge is protected by judicial immunity.

       The Supreme Court has made clear that judicial immunity is overcome only in two

sets of circumstances: “First, a judge is not immune from liability for nonjudicial actions,

i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for

actions, though judicial in nature, taken in the complete absence of all jurisdiction.”

Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Issuing an order is judicial in nature. Bush v.

Rauch, 38 F.3d 842, 847 (6th Cir. 1994). Thus, the Canton Municipal Court judge clearly

was acting both within his jurisdiction and within his judicial capacity when he issued an

order sentencing Haas to two six-day driver intervention programs.

       The Haases also argue that “no logical reason exists for cloaking such routine

ministerial acts [as ordering a driver intervention program] with absolute judicial

                                              7
immunity.” They argue that the order could have been made by a “court administrator,

departmental chief, or some other non-judicial state officer or employee.” This argument

is of no moment, and the district court did not err in finding that the Canton Municipal

Court judge has judicial immunity for his sentencing decision.

       With respect to the Haases’ position that the State of Ohio should be held liable

under Title II of the ADA based on its ownership of the building housing the Quest

facility, they primarily rely upon Johnson v. City of Saline, 151 F.3d 564 (6th Cir. 1998).

In Johnson, this Court held that a public entity that leases or rents its facilities to non-

public entities is subject to Title II of the ADA because it is a landlord. Id. at 571-72.

Here, the district court found that the State of Ohio is subject to liability as a landlord

because an agency of the State, the Ohio Department of Alcohol and Drug Addiction

Services, leased the property housing the Quest facility to the Stark County Alcohol and

Drug Addiction Services Board which, in turn, subleased the facility to Quest. Thus, the

remaining question is whether Quest is a public entity and whether the State of Ohio is

thereby subject to direct liability.

       The Johnson court enumerated four factors to identify whether a facility appearing

to have both public and private features is an arm of the state. Those factors include:

       (1)     Whether the entity is operated with public funds;
       (2)     Whether the entity’s employees are considered government
               employees;
       (3)     Whether the entity receives significant assistance from the
               government by provision of property or equipment; and
       (4)     Whether the entity is governed by an independent board selected by
               members of a private organization or a board elected by the voters or

                                               8
              appointed by elected officials.

Id. at 572.

       In their first amended complaint, the Haases alleged the following:

       16.    At all times . . . Quest acted as an agent and/or extension of the State
              by performing a quasi-governmental function under the ultimate
              supervision, direction, and control of the Court and/or State. . . .

       38.    . . . The court and/or State further subjected Plaintiff to
              discrimination by . . . ordering her to be confined in a privately
              operated system [Quest].

The district court correctly found that the Haases did not sufficiently plead that the State

of Ohio is responsible for Quest’s alleged wrongdoing. The first amended complaint is

deficient because it does not satisfy our pleading requirements under Johnson for

imposing liability on the State of Ohio.

     C. Whether the State of Ohio is Entitled to Eleventh Amendment Immunity
                 for the Haases’ Claim Under Title II of the ADA

       The Eleventh Amendment provides that “[t]he 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. It is well established that “an unconsenting

State is immune from suits brought in federal courts by her own citizens as well as by

citizens of another state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100

(1984) (internal citation omitted). “[I]n 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


                                                9
Eleventh Amendment.” Id. Eleventh Amendment immunity does not, however, apply in

two circumstances: (1) where a state has waived its immunity from suit in federal court,

and (2) where Congress has abrogated the state’s immunity. Thiokol Corp. v. Dep’t of

Treas., State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993). The Haases

argue that Congress abrogated the State of Ohio’s immunity to claims arising under Title

II of the ADA.

       In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court held that

Congress can abrogate a State’s sovereign immunity when it does so pursuant to a valid

exercise of its power under § 5 of the Fourteenth Amendment. The most recent Supreme

Court case to address Eleventh Amendment Immunity for ADA Title II claims is

Tennessee v. Lane, 541 U.S. 509 (2004). In Lane, the Supreme Court held that Title II of

the ADA is a valid exercise of Congress’s § 5 authority to protect a plaintiff’s due process

right of access to the courts. Id. at 531. The Supreme Court made clear, however, that its

holding in Lane was expressly limited to the question before it: whether Congress had the

power under § 5 of the Fourteenth Amendment to enforce the constitutional right of

access to the courts:

       [N]othing in our case law requires us to consider Title II, with its wide
       variety of applications, as an undifferentiated whole. Whatever might be
       said about Title II’s other applications, the question presented in this case is
       not whether Congress can validly subject the States to private suits for
       money damages for failing to provide reasonable access to hockey rinks, or
       even to voting booths. . . .

Id. at 530-31. Accordingly, the holding in Lane is limited and does not provide us with


                                              10
guidance for this case because the circumstances presented in Lane (i.e., access to the

courts) are not present in this case. Thus, we must look to precedent from this circuit to

resolve the question before us.

       In Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir.

2002), a state court failed to provide the plaintiff with adequate hearing assistance during

a child custody case. We held, in an en banc decision, that the Eleventh Amendment

barred claims under Title II of the ADA based upon the Equal Protection Clause but did

not bar such claims sounding in due process. Id. at 812. The Haases condede on appeal,

as they emphasized before the district court, that their claims implicate equal protection

concerns, not those of due process: “This Court should now take this opportunity to hold

that Title II of the ADA has abrogated Eleventh Amendment immunity even with respect

to pure claims of disparate treatment that sound solely in equal protection.”

       Despite our holding in Popovich that the Eleventh Amendment bars equal

protection claims under Title II of the ADA, the Haases ask us to clarify our ruling in

light of the Supreme Court’s decision in Nev. Dep’t of Human Res. v. Hibbs, 538 U.S.

721 (2003). In Hibbs, a male state employee sought damages because of alleged

violations of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2612. Id. at 725. The

Supreme Court held that Congress intended the FMLA to protect a right guaranteed by

the Equal Protection Clause – specifically, the right to be free from gender-based

discrimination in the workplace. Id. at 728. The Haases say that because the Supreme

Court in Hibbs determined that Congress validly abrogated Eleventh Amendment

                                             11
immunity based on the principles of equal protection, Popovich no longer is persuasive

because Hibbs suggests that Congress may exercise its § 5 authority to adopt legislation

imposing purely equal protection-type requirements upon the states. We find this

position unavailing, however, because constitutional standards relating to gender-based

discrimination (which is what was at issue in Hibbs) are distinguishable from those

relating to discrimination of the disabled. Notably, gender-based discrimination is

entitled to a heightened level of constitutional scrutiny – one that requires a gender-based

classification to serve important governmental objectives and be substantially related to

the achievement of those objectives. Id. at 736. Discrimination on the basis of a

characteristic such as a disability, on the other hand, is entitled only to a “rational basis”

review. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985). “States are not

required by the Fourteenth Amendment to make special accommodations for the disabled,

so long as their actions toward such individuals are rational.” Bd. of Trustees of Univ. of

Ala. v. Garrett, 531 U.S. 356, 367 (2001).

       In light of the narrow scope of Lane’s holding, which is limited to Title II ADA

claims for the right of access to courts, and in light of this circuit’s precedent that

establishes that the Eleventh Amendment bars equal protection claims under Title II of

the ADA, we find that the district court did not err in holding that the State of Ohio is

entitled to Eleventh Amendment immunity for the Haases’ claim under Title II of the

ADA.

                                     IV. CONCLUSION

                                               12
For the foregoing reasons, the decision of the district court is AFFIRMED.




                                    13
