                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 97-4259
                                  ___________


Ronnie Randolph,                        *
                                        *
             Appellee,                  *
      v.                                *
                                        *
Bill Rodgers, Don Roper, Paul Delo,     * Appeal from the United States
Michael Bowersox, Dora Schriro,         * District Court for the
individually and in their official      * Eastern District of Missouri
capacities, and the Missouri            *
Department of Corrections,              *
                                        *
             Appellants.                *
                                   ___________

                          Submitted: January 12, 1999
                            Filed: March 19, 1999
                                ___________

Before BOWMAN, Chief Circuit Judge, MURPHY, Circuit Judge, and ALSOP,1
      District Judge.
                             ___________

ALSOP, District Judge.




      1
      The Honorable Donald D. Alsop, United States District Judge for the District
of Minnesota, sitting by designation.
      Plaintiff Ronnie Randolph, a deaf-mute prisoner in the custody of the Missouri
Department of Corrections, filed this lawsuit after the Department of Corrections
failed to provide him with a sign language interpreter during disciplinary
proceedings. The defendants appeal under 28 U.S.C. § 1292(a) the trial court’s
issuance of a permanent injunction. We vacate the injunction, reverse the district
court’s grant of summary judgment in part, and remand.

                                         I

      In 1983, plaintiff Ronnie Randolph was convicted of capital murder and
sentenced to life in prison. Randolph was initially incarcerated at Jefferson City
Correctional Center (“JCCC”). In 1989, Randolph was transferred to Potosi
Correctional Center (“PCC”). In October of 1996, Randolph was transferred back to
JCCC.

       Randolph suffers from profound hearing loss and cannot understand most
speech spoken at an average conversational level. Randolph’s primary means of
communication is American Sign Language. When conversing with a person who
does not understand sign language, Randolph can communicate to some extent via
gestures, lip reading, and speaking. The degree to which these methods work
depends on the patience of the person trying to communicate with Randolph and how
long they have interacted with him. When these methods are inadequate, Randolph
reads and writes messages in standard English. Randolph wears hearing aids
provided by the Department of Corrections, but both parties’ experts agree that they
are insufficient for his level of hearing loss. Even with improved hearing aids,
Randolph would have difficulty understanding most speech.2


      2
       Randolph’s expert testified that he believed hearing aids rather than an
interpreter would be preferable for Randolph because an interpreter would isolate
Randolph from the prison population.

                                        -2-
       In 1989, after he was transferred to PCC, Randolph filed a grievance requesting
a sign language interpreter for all stages of prison disciplinary proceedings, medical
procedures, educational programs and counseling, and all programs and activities
relating to prison confinement. PCC has been unable to locate their response to the
grievance. The parties agree, however, that no interpreter was provided for Randolph
following his 1989 request.

      In 1993, Randolph received two conduct violations. After Randolph submitted
written statements on his own behalf, the violations were dismissed and no discipline
was imposed. Randolph did not request a sign language interpreter in either
proceeding.

       In 1994, Randolph received three additional conduct violations. In February,
Randolph was written up for insulting behavior and disobeying an order. Randolph
was found guilty of the violations in a disciplinary proceeding. Randolph did not
request a sign language interpreter prior to the hearing on his conduct violations.
However, on March 3, 1994, Randolph filed an informal resolution request (“IRR”)
asking that the violations be expunged from his records. He also requested that
“effective immediately the Dept. of Corr. employ a capable staff person whom can
assist me with my needs to communicate with the staff personnel.” The IRR was
denied. Randolph then filed a formal grievance appealing his conduct violations. In
his grievance, Randolph wrote “I ask that the Potosi Corr. Center hire/employ an
interppreter [sic] for persons like myself, to insure meaningful communications.” The
Superintendent of PCC denied Randolph’s grievance and stated that his “request for
an interperator [sic] is a separate subject and will not be addressed.”

       In early July of 1994, Randolph received a conduct violation for assault after
he threw two boxes of cookies at a food service worker. At the disciplinary hearing
on July 6, Randolph submitted a written statement in his defense and did not request
a sign language interpreter. Because of the seriousness of the assault violation, a

                                         -3-
classification hearing was held on July 7. As a result of the classification hearing,
Randolph was placed in administrative segregation.

      On September 2, Randolph submitted a grievance complaining that he had been
denied due process during the assault disciplinary hearing because he was not
provided with a qualified interpreter as required by Missouri state law. On October
5, 1994, Randolph’s grievance was denied with the comment that Randolph had not
asked for an interpreter at the time of the hearing and that he had fully understood the
proceedings, as evidenced by the statement he submitted on his own behalf.
Randolph then filed a first and second grievance appeal. Both appeals were denied
by the Department of Corrections.3

                                          II

       On May 18, 1994, Randolph filed a motion to proceed in forma pauperis with
the United States District Court for the Eastern District of Missouri. Randolph’s
motion was forwarded to the Court’s pro se unit. On August 25, 1994, the Court
granted Randolph’s motion to proceed in forma pauperis. On the same day,
Randolph’s original complaint was filed. Randolph eventually filed a first and
second amended complaint. The second amended complaint named the Missouri
Department of Corrections, Bill Rodgers, Don Roper, Paul Delo, Michael Bowersox,
and Dora Schriro as defendants. Rodgers was Randolph’s Correctional Classification
Assistant at PCC and served as a hearing officer during one of Randolph’s
disciplinary proceedings. Roper was the Associate Superintendent at PCC from 1989
to 1995 and reviewed Randolph’s requests for a sign language interpreter. Delo was
PCC’s Superintendent from 1989 to 1995 and reviewed and denied Randolph’s


      3
       Randolph also wrote letters to prison officials outside the grievance process
complaining that his due process rights had been violated due to PCC’s failure to
provide a sign language interpreter.

                                          -4-
grievances requesting an interpreter. Bowersox replaced Delo as PCC’s
superintendent in August of 1995. Schriro is director of the Missouri Department of
Corrections and reviewed and denied a request for an interpreter. Randolph’s second
amended complaint asserts five claims -- due process and equal protection violations
under 42 U.S.C. § 1983 (Counts I and II), violations of the Americans with
Disabilities Act (“ADA”) (Count III), violations of § 504 of the Rehabilitation Act
(“RA”) (Count IV), and violations of Missouri Statute § 476.750 (Count V).

       The parties filed cross-motions for summary judgment. On October 10, 1997,
the district court granted the defendants’ motion for summary judgment on the due
process and equal protection claims. The district court also granted the individual
defendants’ motion for summary judgment on the ADA and RA claims, finding the
individuals were not “employers” subject to suit under the ADA or the RA.4 The
court granted Randolph’s motion for summary judgment as to liability on the ADA,
RA, and Missouri Statute § 476.750 claims against the Department of Corrections,
and reserved for trial the issue of damages against the Department of Corrections.
Finally, the trial court reserved for trial the issue of money damages on the state law
claim against the individual defendants.5


      4
        In addition, the district court dismissed Bowersox as an individual defendant
because he was not involved in the acts alleged in the complaint. The portions of the
district court’s order granting the defendants’ motion for summary judgment on the
due process and equal protection claims, granting the individual defendants’ motion
for summary judgment on the ADA and RA claims, and dismissing Bowersox as a
defendant are not before us at this time.
      5
       Although we need not address the issue on this appeal from an injunction, see
discussion infra, we note that it is unclear from the district court’s opinion whether
the court granted Randolph’s motion for summary judgment as to liability on the state
law claim against the individual defendants or reserved that issue for trial. On
remand, the district court may clarify whether trial on both liability and damages, or
on damages only, is required as to the individual defendants on Count V.

                                         -5-
      After finding in favor of Randolph on his ADA, RA, and Missouri state law
claim against the Department of Corrections, the District court issued a permanent
injunction, based on its summary judgment rulings, which ordered:

             that the Missouri Department of Corrections, and its
             agents, including any prison facility within which plaintiff
             is now or hereafter shall be confined, and all officers or
             persons having control of such prison facilities and its
             programs, shall hereafter provide plaintiff with sign
             language interpreter services whenever he is the subject of
             a non-emergency disciplinary or classification hearing,
             during all non-emergency medical care, and during any
             educational programs in which plaintiff participates.

Finally, the district court certified the summary judgment order, including the
injunction, for immediate appeal as involving a “controlling question of law as to
which there is substantial ground for difference of opinion” under 28 U.S.C. §
1292(b).

       On November 19, 1997, the defendants filed a petition with this Court for
permission to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Court
denied the defendants’ petition. The defendants then filed a timely notice of appeal
pursuant to 28 U.S.C. § 1292(a), which provides that the courts of appeals have
jurisdiction of appeals from interlocutory orders of the district courts granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions.

      On appeal, the defendants raise six primary issues:

             1. Whether the district court lacked subject matter
             jurisdiction to issue declaratory and injunctive relief



                                         -6-
             because plaintiff’s claims were moot due to plaintiff’s
             transfer to another prison.

             2. Whether the district court erred in granting summary
             judgment because there was no showing of discrimination
             based on plaintiff’s disability.

             3. Whether the district court erred in granting summary
             judgment because there are genuine issues of material fact
             as to whether a sign language interpreter is a reasonable
             accommodation and whether this accommodation imposes
             an undue burden due to the safety and security concerns
             and financial burden.

             4. Whether the district court erred in finding that plaintiff
             is entitled to trial on damages under the ADA, RA and state
             law claims when plaintiff has not shown intentional
             discrimination.

             5. Whether the district court abused its discretion in
             issuing broadly worded injunctive relief ordering a sign
             language interpreter at any prison where plaintiff is
             incarcerated for all remaining years of plaintiff’s life
             sentence.

             6. Whether the district court erred in taking jurisdiction of
             the pendent state law claim when the relief sought directly
             impacts the State and is barred by the Eleventh
             Amendment.

On an appeal from an injunction, however, the issues the Court may review are
limited. In Fogie v. THORN Americas, Inc., 95 F.3d 645 (8th Cir. 1996), cert. denied,
117 S.Ct. 1427 (1997), this Court explained the parameters of its jurisdiction to
review interlocutory appeals of injunctive relief under 28 U.S.C. § 1292(a):




                                         -7-
             We have jurisdiction to review the district court’s issuance
             of the injunction under 28 U.S.C. § 1292(a)(1) which
             provides for appeal of interlocutory orders granting or
             refusing to grant injunctions. Our jurisdiction under
             section 1292(a)(1) also extends to the remainder of the
             appealed order to the extent the injunction is
             interdependent with the remainder of the appealed order.
             Under this standard, we have jurisdiction to review all
             portions of the order that are dependent on the resolution
             of the issues necessarily resolved in reviewing the
             injunction order. In other words, in addition to the
             injunction order, we may review other issues only if they
             are inextricably bound up with the injunction. We need not
             undertake a review of issues whose resolution is not
             necessary to effectively review the injunction.

Id. at 648 (citations omitted). Our review of the district court’s summary judgment
order is therefore limited by the extent to which it is “inextricably bound up with the
injunctive relief granted in this case.” Id. at 649. Applying this standard, we decline
to review issues regarding monetary damages or issues relating to the individual
defendants’ liability.6 Yet we must review the order to the extent it grants summary
judgment to Randolph on his ADA, RA, and Missouri state law claim against the
Department of Corrections, because the validity of the injunction is dependent upon
the rulings on the summary judgment motions.

       We review the district court’s issuance of a permanent injunction for abuse of
discretion. See, e.g., F.D.I.C. v. Bell, 106 F.3d 258, 262-63 (8th Cir. 1997); Baker
Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994); ILQ Investments, Inc.
v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir. 1994), cert. denied, 513 U.S. 1017
(1994). “Abuse of discretion occurs if the district court reaches its conclusion by


      6
       The injunction was entered against the Department of Corrections only, not
the individual defendants.

                                         -8-
applying erroneous legal principles or relying on clearly erroneous factual findings.”
See, e.g., Fogle, 95 F.3d at 649. To the extent we examine the district court’s
summary judgment decision, the standard of review is de novo. Summary judgment
is appropriate only when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Rifkin v.
McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir. 1996).

                                            III

A.     Mootness
       The Department of Corrections argues the district court lacked subject matter
jurisdiction to issue injunctive relief because Randolph’s claims were mooted by his
transfer from JCCC to PCC in 1996. The district court apparently assumed for the
sake of argument that Randolph’s equitable claims were mooted by the transfer, but
held they fell within the exception for claims capable of repetition yet evading
review. The district court found:

              [neither] plaintiff’s deafness nor his life sentence within
              the Missouri Department of Corrections is at all likely to
              change. If relief were denied as moot, defendants could
              simply transfer plaintiff back and forth between PCC and
              JCCC (or other facilities) to evade review of these issues
              by any Court.

However, the district court’s analysis went too far by applying the capable of
repetition yet evading review exception, as Randolph’s claims for injunctive relief
were not moot.7


       7
         The capable of repetition yet evading review rule is an extraordinary and
narrow exception to the mootness doctrine. It applies when (1) the challenged action
is in its duration too short to be fully litigated prior to cessation or expiration, and (2)
there is a reasonable expectation the complaining party will be subject to the same

                                            -9-
       A claim for equitable relief is moot “absent a showing of irreparable injury, a
requirement that cannot be met where there is no showing of any real or immediate
threat that the plaintiff will be wronged again.” City of Los Angeles v. Lyons, 461
U.S. 95, 111 (1983). The defendants rely on Martin v. Sargent, 780 F.2d 1334 (8th
Cir. 1985), to support their mootness argument. In Martin, this Court held that once
an inmate is transferred to another institution, his claim for injunctive relief against
the warden of the first prison to improve the former prison’s conditions is moot. Id.
at 1337. Martin is readily distinguished from this case and does not control. In
Martin, the injunction sought could not address future wrongs the plaintiff was likely
to suffer because the first warden had no control over the second prison. The same
cannot be said in Randolph’s action. Randolph asserts claims directly against the
Missouri Department of Corrections, and alleges the Department of Corrections
violated his rights under the ADA, the RA and under Missouri state law by failing to
provide him with a sign language interpreter. Thus, unlike the plaintiff in Martin,
Randolph has claimed he is exposed to an actual future threat under the control of the
Department of Corrections -- that he will not be provided an interpreter. Moreover,
the injunction was issued against Missouri’s Department of Corrections, which
controls both prisons and the funding necessary to provide the sign language
interpreter requested by Randolph. Accordingly, Randolph’s claims for injunctive
relief are not moot.
B.     The ADA and RA Claims




action again. See, e.g., Hickman v. Missouri, 144 F.3d 1141, 1143 (8th Cir. 1998)
(quoting Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 988 (1998)). Randolph was
transferred once prior to his litigation and once after commencing his litigation.
Nothing in this case suggests that the Department of Corrections has transferred or
will transfer Randolph in an attempt to moot his claim. Had Randolph’s claims been
moot, we doubt the mere possibility of a transfer would have been sufficient to
support application of this exception.


                                         -10-
       The Department of Corrections next argues that the district court abused its
discretion by issuing an injunction to enforce Randolph’s ADA and RA claims. The
standard for determining whether a permanent injunction should issue is essentially
the same as the familiar standard for a preliminary injunction. See Amoco Prods. Co.
v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987). In a preliminary injunction, a
district court must balance four factors to determine whether injunctive relief is
merited: 1) the threat of irreparable harm to the movant; 2) the balance between this
harm and the harm to the nonmoving party should the injunction issue; 3) the
likelihood of success on the merits; and 4) the public interest. See Fogie v. THORN
Ams., Inc., 95 F.3d 645, 654 (8th Cir. 1996) (citing Dataphase Sys., Inc. v. C.L. Sys.,
Inc., 640 F.2d 109, 113 (8th Cir. 1981). “The standard is the same for a permanent
injunction except that the movant must show actual success on the merits.” Amoco
Prods. Co., 480 U.S. at 546 n.12.

       The district court did not make express findings regarding the four injunction
factors in its order. Although express findings may have clarified the district court’s
reasoning, they are of little import on appeal as the defendants challenge only the
district court’s conclusion that Randolph succeeded on the merits of his ADA and RA
claim.8 Therefore, we must review the district court conclusions that support the
injunction -- the grant of summary judgment to Randolph on his ADA and RA claims
against the Department of Corrections.

      Title II of the ADA, 42 U.S.C. § 12131 et seq., prohibits qualified individuals
with disabilities from being excluded from participation in or the benefits of the
services, programs, or activities of a public entity. A qualified individual with a

      8
       The defendants also argue that the district court abused its discretion by
issuing a permanent injunction without considering the Prison Litigation Reform Act,
codified at 18 U.S.C. § 3626. Defendants failed to raise this issue below, and have
thus waived the argument on appeal. See, e.g., Maypenny v. U.S., 948 F.2d 1057,
1062 (8th Cir. 1991) (“we do not consider issues not passed on by the lower court”).

                                         -11-
disability is defined as any person who “meets the essential eligibility requirements
for the receipt of services or the participation in programs or activities provided by
a public entity.” 42 U.S.C. § 12131(2). The term “public entity” is defined as “any
department, agency, special purpose district, or other instrumentality of a State or
States or local government.” 42 U.S.C. § 12131(1). The Supreme Court recently held
that Title II of the ADA applies to state prisons. See Pennsylvania Dept. of
Corrections v. Yeskey, 524 U.S. 206 (1998).

       The RA provides that no otherwise qualified individual with a disability shall
be “excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.”
29 U.S.C. § 794(a). The RA defines “program or activity” to include “all of the
operations of a department, agency, special purpose district, or other instrumentality
of a State or of a local government.” 29 U.S.C. § 794(b). The ADA and the RA are
“similar in substance” and, with the exception of the RA’s federal funding
requirement, “cases interpreting either are applicable and interchangeable.” See
Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (citing Allison v. Department of
Corrections, 94 F.3d 494, 497 (8th Cir. 1996)); see also Wooten v. Farmland Foods,
58 F.3d 382, 385 n.2 (8th Cir. 1995).

       The Department of Corrections first argues that Randolph failed to state a
prima facie case under either the ADA or the RA. To state a prima facie claim under
the ADA, a plaintiff must show: 1) he is a person with a disability as defined by
statute; 2) he is otherwise qualified for the benefit in question; and 3) he was
excluded from the benefit due to discrimination based upon disability. See 42 U.S.C.
§ 12131 et seq.; see also Gorman, 152 F.3d at 911-12; Doe v. University of Md. Med.
Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). The RA contains the additional
requirement that the plaintiff show the program or activity from which he is excluded
receives federal financial assistance. See Gorman, 152 F.3d at 911; Thomlison v. City
of Omaha, 63 F.3d 786, 788 (8th Cir. 1995). As an affirmative defense, a defendant

                                        -12-
may demonstrate that the requested accommodation would constitute an undue
burden. See Gorman, 152 F.3d at 911.

      Here, the district court held:

             [t]he undisputed evidence shows that plaintiff is a disabled
             person within the meaning of the statutes and that he is
             otherwise qualified for the benefits in question, that is, the
             provision of medical care, educational training, and
             participation in disciplinary and classification proceedings.
             The undisputed evidence also shows that although he has
             been provided some form of those benefits, he has not
             received the full benefits solely because of his disability.

We agree with the district court’s analysis. The Department of Corrections argues
strenuously that Randolph was not excluded from prison services, programs, and
activities. It is true that Randolph could physically attend activities. However, the
ADA and RA require that otherwise qualified individuals receive “meaningful
access” to programs and activities. See Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir.
1988) (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)). The record does not
contain credible evidence to support a finding that Randolph enjoyed meaningful
access to the prison’s internal disciplinary process, even if he was capable of limited
participation.

       The Department of Corrections also claims that Randolph failed to make a
timely request for a sign language interpreter and it cannot be found liable for failing
to provide unsolicited accommodations. See Lue v. Moore, 43 F.3d 1203, 1206 (8th
Cir. 1994); Wynne v. Tufts Univ. School of Med., 976 F.2d 791, 795 (1st Cir. 1992),
cert. denied, 113 S.Ct. 1845 (1993). The Department of Corrections alleges that
Randolph originally made a request for an interpreter in 1989, and then failed to
repeat that request until after he was found guilty in the disciplinary proceedings.
While it is true Randolph did not request an interpreter for the February 1994

                                         -13-
disciplinary proceedings until after he was found guilty, Randolph did ask for an
interpreter in his March 14, 1994 IRR and appeal. When Randolph received his July
1994 conduct violations, the Department of Corrections was on notice that Randolph
claimed he could not fully participate in disciplinary proceedings without an
interpreter. This is particularly true given the Department of Corrections’ response
to Randolph’s March requests for an interpreter. The Department of Corrections told
Randolph that his “[r]equest for an interperator is a separate subject and will not be
discussed.” After receiving this response, it is not surprising that Randolph did not
ask for an interpreter at the July disciplinary proceeding. While it is true that public
entities are not required to guess at what accommodations they should provide, the
requirement does not narrow the ADA or RA so much that the Department of
Corrections may claim Randolph failed to request an accommodation when it
declined to discuss the issue with him.

       The Department of Corrections’ final argument has more merit. The
Department of Corrections claims summary judgment on Randolph’s ADA and RA
claims was inappropriate because there are genuine issues of material fact regarding
whether a sign language interpreter is a reasonable accommodation or imposes an
undue burden on the defendants -- particularly considering the heightened security
concerns of a prison. The district court recognized that “normally whether a
requested accommodation is unduly burdensome might be a question for the fact-
finder.” The district court rejected the Department of Corrections’ claim of undue
burden, however, because it found that Missouri Statute § 476.750 requires the prison
to provide an interpreter. Thus, the Court held that Missouri’s legislature had
determined, as a matter of law, that such an accommodation is not unduly
burdensome.

      We disagree with the district court’s conclusion that Missouri Statute §
476.750 alone establishes the Department of Corrections’ liability under the ADA and
RA. The Missouri statute creates rights and duties under Missouri state law, but

                                         -14-
cannot be used to definitively establish rights and duties under federal law. The
defendants presented substantial evidence that Randolph’s request for an interpreter
created safety and security issues, as well as placed a financial burden on the prison.
The Department of Corrections is entitled to have its evidence considered by the fact-
finder in this case. See, e.g., Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir. 1996)
(whether deaf plaintiff required registered sign language interpreter was fact
question).

       Thus, the district court erred in granting Randolph’s motion for summary
judgment against the Department of Corrections on the ADA and RA claims, and we
will reverse and remand the district court’s order as to these issues. Moreover,
without a finding of success on the merits of the ADA and RA claims, we must
conclude the district court abused its discretion by issuing the injunction to remedy
Randolph’s ADA and RA claims.

C.    Missouri State Law Claim
      The injunction issued against the Department of Corrections was also based in
part on the district court’s conclusion that the Department of Corrections violated
Missouri Statute § 476.750 et seq. The Missouri statute requires that “a designated
responsible authority shall provide” a qualified sign language interpreter at:

             any proceeding concerning the well-being or rehabilitation
             of a deaf person within a state prison, including, but not
             limited to, any disciplinary hearing, parole hearing,
             psychological evaluation/hearing, administrative hearing,
             sexual assault prevention program, counseling, medical
             care, any on-the-job or vocational training or any
             educational program.

Mo. Stat. § 476.753, subd. 1(4). The Department of Corrections raises a number of
arguments addressing the merits of Randolph’s state law claim. We need not address


                                         -15-
these arguments, however, because an injunction may not be issued against the
Missouri Department of Corrections to enforce a Missouri statute.

       The Eleventh Amendment precludes a federal court from ordering a state,
including its agencies or officials, to conform their conduct to state law. See
Pennhurst State. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Treleven v.
University of Minn., 73 F.3d 816, 819 n.4 (8th Cir. 1996). A state may, of course,
waive its Pennhurst immunity. However, waiver will be found only based upon “the
most express language” or other “overwhelming implications from the text as will
leave no room for any other reasonable construction.” See Welch v. Texas Dep’t of
Hwys. & Public Transp., 483 U.S. 468, 472 (1987), cited in Barnes v. Missouri, 960
F.2d 63, 64-65 (8th Cir. 1992). Randolph does not argue, nor does the record reflect,
that Missouri has waived its Eleventh Amendment immunity to claims under Mo.
Stat. § 476.753. Thus, we must reverse the district court’s order granting Randolph’s
motion for summary judgment against the Department of Corrections on his claim
under Mo. Stat. § 476.750, and vacate the injunction.

                                         IV

       We VACATE the district court’s issuance of a permanent injunction because
Randolph has failed to show success on the merits of his claims based on the present
record. We REVERSE the district court’s order granting Randolph’s motion for summary
judgment against the Department of Corrections on the ADA and RA claims, and
REMAND for further proceedings consistent with this opinion. We REVERSE the district
court’s order granting Randolph’s motion for summary judgment against the Department
of Corrections on Randolph’s claim under Mo. Stat. § 476.750, and ORDER the district
court to dismiss the state law claim against the Department of Corrections.

A true copy.


                                        -16-
ATTEST:

          CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                             -17-
