                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               January 23, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 JEFFREY ALLEN PHILLIPS,

               Plaintiff - Appellant,                   No. 12-1055
          v.                                           (D. Colorado)
 SUSAN TIONA, Doctor, Kit Carson           (D.C. No. 1:10-CV-00334-PAB-KMT)
 Correctional Center; HOYT BRILL,
 Warden, Kit Carson Correctional
 Center; JODI GRAY, Health
 Administrator, Kit Carson
 Correctional Center; CORRECTIONS
 CORPORATION OF AMERICA,
 owner of private KCCC;

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and EBEL, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Jeffrey Allen Phillips, a state prisoner proceeding pro se, brought this 42

U.S.C. § 1983 and Americans with Disabilities Act ("ADA") action claiming that

the Corrections Corporation of America (“CCA”) and three of its employees at

the Kit Carson Correctional Center (“KCCC”) were deliberately indifferent to his

medical needs in violation of the Eighth Amendment, and failed to accommodate

those needs in violation of Titles II and III of the ADA and § 504 of the

Rehabilitation Act. 1 Pursuant to Fed. R. Civ. P. 12(b)(6), the district court

dismissed the Eighth Amendment claim against the defendants Warden Hoyt Brill

and CCA, and dismissed Mr. Phillips’ § 504 claim against all defendants.

Subsequently the court granted the defendants’ motion for summary judgment on

all remaining claims. For the reasons stated below, we affirm.



                                 BACKGROUND

      On August 25, 2009, while he was assigned to a halfway house,

Mr. Phillips fractured the fibula in his right leg. On August 26, 2009, Dr. David

Matthews, an orthopedic surgeon, repaired the fracture using two metal plates and

seven screws. One of those screws was a 4.5 mm cortical screw (the syndesmotic


      1
       42 U.S.C. §§ 12132, 12182, and Rehabilitation Act of 1973 (§ 504), 29
U.S.C. § 794.

                                         -2-
screw) inserted across the syndesmosis (a wide sheet of ligament connecting the

fibula to the tibia at the ankle) tying the fibula and tibia together. R. Vol. 4 at

222-23. After the operation, Mr. Phillips was taken to the El Paso County Jail.

      Dr. Matthews next saw Mr. Phillips for a follow-up visit on September 11,

2009, noting the fixation to be in proper position and that the “ankle wound [was]

healing well.” Id. at 228-29. He prescribed Tylenol or Tylenol 3 for pain and

directed corrections personnel at the El Paso County Jail to bring Mr. Phillips

back “in about a month for an X-ray of his right ankle out of the cast. At that

point we will make plans to remove the syndesmotic screw.” Id. at 228. Phillips

was to “remain [non-weight-bearing] on crutches.” Id. at 229. The record

suggests that the next appointment was scheduled for October 13, 2009.

However, on October 8, 2009, Mr. Phillips was regressed to KCCC to continue

serving his sentence. While Mr. Phillips was at the El Paso County Jail, doctors

there additionally prescribed Neurontin for a thirty-day period.

      Mr. Phillips remained at KCCC for about two months, until his transfer to

the state-operated Sterling Correctional Facility (“SCF”) on December 11, 2009.

While at KCCC, he was under the medical supervision of defendants Dr.

Susan M. Tiona, a physician employed by CCA to provide medical services to

inmates housed in KCCC, and Jodi Gray, a Health Services Administrator at

KCCC, as well as others.




                                           -3-
      During his two months at KCCC, Mr. Phillips mounted a vociferous,

sometimes strident, and ongoing campaign to have the syndesmotic screw

removed from his ankle. He submitted dozens of requests/demands by way of

grievances, “kites” and other means to Dr. Tiona, Administrator Gray, Warden

Brill and others (including the Governor, the Department of Corrections, and

Doug Roberts, a Medical Monitor for the private Prisons Monitoring Unit of the

Colorado Department of Corrections (“CDOC”)) contending that Dr. Matthews

had directed that the screw be removed on October 8, the date of his arrival at

KCCC. Failure to do so, Mr. Phillips asserted, would result in him walking with

a limp. He also contended that Dr. Matthews wanted him to remain non-weight-

bearing until the screw was removed, so he apparently continued on crutches, or

at least not using his right leg, although he was issued a walker on November 5.

On November 10 he was told to start placing some weight on his right leg since

the fracture had healed.

      On or about October 13, Dr. Tiona ordered an x-ray of Mr. Phillips’ ankle,

to be taken at the next scheduled arrival of CCA’s portable x-ray equipment at

KCCC. The x-ray was performed on October 28, 2009, and a diagnostic report

was issued on October 29, 2009, by Dr. Benjamin Huang. Dr. Huang stated that

the x-ray showed a “well fixated fracture of right distal fibula and without

displacement.” Id. at 273. The doctor also noted that there was no dislocation

and that the ankle mortise was intact. Id.

                                         -4-
      On October 28 and again on October 30, 2009, Administrator Gray

responded to complaints by Mr. Phillips by advising him that the x-rays just taken

were being evaluated by Dr. Tiona. Id. at 346, 366. Then, on November 5, 2009,

Dr. Tiona removed Mr. Phillips’ cast and entered the following note in Mr.

Phillips’ Ambulatory Health Record: “X-ray taken on 10/29/09 shows well

healed fracture with hardware in place, including syndesmotic screw through

fibula and tibia. Cast removed without difficulty. His surgical incision is nicely

healed. Leg is thoroughly cleaned up. He received a walker to use in his cell

until I hear back [exhibit indecipherable] . . . about ambulation.” Id. at 279.

      In her affidavit in support of her Motion for Summary Judgment, Dr. Tiona

relates her actions and conclusions from that point, as follows:

            6. Denver Health Medical Center is the referring facility used
      by Kit Carson Correctional Facility.

             7. After identifying Plaintiff’s postsurgical status, I consulted
      with an Orthopedic PA at Denver Health Medical Center. The
      Orthopedic PA conveyed to me that the removal of the syndesmotic
      screw is elective and that his department does not routinely remove
      the screw. Further, it is expected that the screw will break after the
      patient starts weight-bearing. If persistent pain exists 3 to 6 months
      after the screw breaks, the screw can then be removed.

            8. In addition to the consultation with Denver Medical Health
      Centers, I reviewed orthopedic literature about weight-bearing and
      screw removal.

            9. From the recommendation of my consulting specialist, as
      well as the support from the current orthopedic literature, there was
      no medical necessity to remove the syndesmotic screw during the


                                         -5-
      time that Plaintiff was under my care at Kit Carson Correctional
      Center.

Id. at 82. Based on information she had received and researched, as well as her

experience, 2 and her conclusions, Dr. Tiona then reported to the Medical Monitor,

Doug Roberts, by e-mail on November 6, 2009:

      Briefly .... removed his cast on Thursday. Surgical site looks good.
      X-ray showed well-healed distal fib fracture with stable hardware. I
      e-mailed DHMC Ortho about the necessity for screw removal – as I
      suspected, there is no need to have the syndesmotic screw removed.
      It will naturally break (the screw, that is) when the patient starts to
      bear weight. The fact is that he is being treated quite appropriately.
      I will follow-up with a phone call to you next week, though, in case
      you have any other questions.

Id. at 91. Dr. Tiona conveyed this information to Mr. Phillips on November 10,

noting the following information in his Ambulatory Health Record:

      Visited Mr. Phillips in segregation. Discussed with him that I had
      communicated with orthopedics at DHMC and that the syndesmotic
      screw does not need to be removed. He can start his ROM [range of
      motion] exercises (I reviewed these with him verbally), and can bear
      weight as tolerated, using the walker for support as needed for the
      next couple of weeks until his ankle gets stronger.

Id. at 280.

      Subsequently Dr. Tiona examined Mr. Phillips on December 1, 2009, and

made the following notation in the Ambulatory Health Record:

      I took his right ankle in my hands and started working with it.
      Initially, there was basically zero ROM–both voluntary and

      2
       In her answers to interrogatories, Dr. Tiona stated that she had “managed
the post-surgical care of several other inmates over the past 6 years with the same
ORIF procedure.” Id. at 473.

                                        -6-
      involuntary stiffness of the ankle. After working with it for a few
      minutes, and talking with Mr. Phillips to distract him, I was able to
      get several millimeters of motion in all planes. When I pointed out
      to him how much better his foot and ankle looked with just this
      limited amount of therapy, he said “but I can’t do that in my cell.” I
      showed him that he can, indeed, put his right leg across his left leg,
      grab his ankle with his hands, and work it just like I was doing. He
      says that he will try, and I told him that my nurses were going to be
      bugging him about doing his therapy regularly. I also demonstrated
      how to use his walker to better support his ankle while still
      encouraging weight bearing and ROM.

Id. at 306. In a letter dated December 3, 2009, Dr. Matthews responded to

inquiries from Mr. Phillips as follows:

      Dear Mr. Phillips:

      I received your letter. As we discussed when you were in my office,
      we typically remove the syndesmotic screw six weeks after the
      surgery. I can’t comment on the symptoms you are having now, as I
      have not seen you or gotten any other X-rays. If you have been
      walking on the ankle a fair amount then the screw may already be
      broken. That is not the end of the world but it is difficult to remove
      and may give you symptoms if it is broken.

Id. at 319 (emphasis added). On December 11, 2009, Mr. Roberts, the Medical

Monitor, entered the following note in his Contact Management folder:

      12/11/2009 I have communicated with the mother several times, both
      by phone and email. The offender has received appropriate care. It
      is not essential that the screws be removed. The offender has not
      been following the recommendations of the MD at KCCC to start
      weight bearing and PT. However, the offender has been in Seg, and
      his opportunities to exercise and use his ankle are limited. I spoke
      w/him 12/09, and told him I think that the best thing would be to get
      him moved ASAP, so that he will be allowed greater movement. The
      offender has been wait-listed to be transferred out of KCCC. I spoke
      to Offender Services and this move will be done immediately. I told
      Offender Services that SCF would be a good choice b/c of their new

                                          -7-
      PA. The mother has been informed. (note: the offender was moved
      today, 12/11/09) /dcr

Id. at 287 (emphasis added). As indicated by Mr. Roberts’ memo for the file, Mr.

Phillips was moved that same day, December 11, to SCF, a state-operated prison,

and thereafter was in the care of health care providers other than Dr. Tiona.

      X-rays taken at SCF on December 17, 2009, showed “good healing and no

loosening of hardware.” Id. at 309. The physician’s assistant, Kathleen Melloh,

noted: “He has not been putting wt on the R foot since that time [August 25]

using crutches. Only exercise he has done is drawing the alphabet so

consequently he cannot dorsiflex foot past neutral. Plantar flexion is only approx

15 degrees. I did see him in office yesterday and started on ROM exercises, but

cannot start any weight-bearing exercises until syndesmotic screw is removed.”

Id. (emphasis added).

      Subsequently, on January 13, 2010, the syndesmotic screw was removed

from Mr. Phillips’ ankle, intact. The surgeon’s notes state that “[s]crew head was

cleared and backed out. Wound was closed with Steri-Strips. . . . He can weight

bear as tolerated. Ankle was stressed and stable.” Id. at 435.

      On April 22, 2010, following Mr. Phillips’ continuing complaints of pain,

he underwent further surgery. After inspection of the prior surgery site, a surgeon

removed the right fibular plate (one of the two plates inserted on August 26,

2009), noting:


                                         -8-
      The area of swelling that bothered the patient was secondary to
      muscle impingement over the proximal end of the plate. There was
      no sign of infection. No sign of necrotic tissue. No tissues, fluid
      plains or anything noted to suggest infection. All tissue looked
      healthy. Screws were removed. Plate removed. Where the
      syndesmotic screw had been we did take a tissue block from that.
      However, this showed just normal characteristics and no obvious
      concern of infection. It was felt that the proximal muscle plate
      interface was what had been irritated.

Id. at 321.

      Mr. Phillips constantly complained of pain. At KCCC he demanded the

Neurontin that had been prescribed at the El Paso County Jail, but that was denied

by Dr. Tiona because it was considered a restricted drug for which Mr. Phillips

did not qualify. Dr. Tiona at first prescribed Ibuprofen (to which Mr. Phillips

objected because Dr. Matthews initially did not want him to take NSAIDs), then

several days later, on October 13, she prescribed large doses of Tylenol and, later,

combined doses of Tylenol and Ibuprofen. On October 18, 2009, Mr. Phillips

wrote to Dr. Tiona thanking her for the 1000-mg Tylenol prescription. Id. at 463.

      With the possible exception of a few days at the El Paso County Jail in

September 2009, the record does not show Mr. Phillips receiving anything but

Tylenol and Ibuprofen for pain 3 from the date of his surgery on August 26, 2009,

through at least 2010. That period includes his incarceration at SCF after

December 11, 2009, and two surgical procedures in 2010.


      3
       The record does disclose the administration of medications related to other
conditions; but those prescriptions were not linked to complaints of ankle pain.

                                         -9-
      During his two months at KCCC, Mr. Phillips refused to put any weight on

his right foot, despite advice to the contrary from Dr. Tiona beginning on

November 5. As a result, he maintained that the only way he could balance

himself on one leg and still access food delivered through the slot in his cell door

was to place the food tray on the floor and slide it to the table or bed where he

could lift the tray to an eating position. He particularly objected to the tray-

sliding technique due to the alleged presence of old dried urine stains on the floor

from past occupants. Accordingly, he demanded a wheelchair, to use in his cell,

so he could put food trays on his lap.

      Likewise, Mr. Phillips demanded a handicap shower facility having grab

bars and a fold-down bench. But the one available handicap shower was not

working, so he was directed to the regular shower. From October 8 through

November 2, 2009, the prison gave Mr. Phillips a plastic chair to assist him in

showering. The chair was discontinued on November 2 after Mr. Phillips fell off

it. For the next month or so, Mr. Phillips alleges that to undress and dress for his

shower, he was forced to sit on the shower floor which he described in lurid

detail, not repeated here, as being covered with human wastes of all kinds. He

did not complain at the prison and does not assert anywhere in his pleadings that

he was unable to shower as such. His complaints are confined to having to dress

sitting on a contaminated floor.




                                         -10-
      Mr. Phillips brought this action alleging that the defendants (1) violated his

Eighth Amendment rights by not removing or delaying removal of the

syndesmotic screw contrary to Dr. Matthews’ treatment plan, resulting in pain and

a permanent limp; and (2) violated Titles II and III of the ADA and § 504 by not

furnishing a handicap shower or a wheelchair, thus forcing him to sit on a dirty

shower floor to dress and to slide his food tray over the dirty cell floor from the

door to his bed or table.

      The district court, adopting the recommendation of the magistrate judge,

dismissed the Eighth Amendment claim against CCA and Warden Brill pursuant

to Fed. R. Civ. P. 12(b)(6) and, likewise, the § 504 claim as to all defendants.

Subsequently, the court granted summary judgment in favor of the defendants on

all remaining claims.



                                   DISCUSSION

I.    Dismissal of Eighth Amendment Claims Against CCA and Warden
      Brill and § 504 Claims Against All Defendants for Failure to State a
      Claim Upon Which Relief can be Granted

      We review de novo a district court's dismissal of a complaint, pursuant to

Fed. R. Civ. P. 12(b)(6), for failure to state a claim, accepting all well-pleaded

factual allegations in the complaint as true and drawing all inferences in favor of

the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010); Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). To survive a Rule 12(b)(6)

                                         -11-
motion, the pleadings must contain "enough facts to state a claim to relief that is

plausible on its face." Twombly, 550 U.S. at 570. We are mindful that Mr.

Phillips' pro se status entitles him to a liberal reading of his pleadings; we will

not, however, serve as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).

      As a preliminary matter, we note that Mr. Phillips states that he appeals the

district court's order that dismissed his § 1983 claim as against CCA and Warden

Brill and that dismissed his § 504 claim as against all defendants. As best we can

understand his opening brief, however, Mr. Phillips does not assert any claim of

error other than the dismissal of his § 1983 claim against Warden Brill.

Accordingly, to the extent he appeals the dismissal of his § 1983 claim against

CCA or the dismissal of his § 504 claim against all defendants, Mr. Phillips has

waived appellate review. See United States v. Cooper, 654 F.3d 1104, 1128 (10th

Cir. 2011) ("[A]rguments inadequately briefed in the opening brief are waived.")

(internal quotation marks omitted).

      We have said that a plaintiff cannot establish liability under § 1983 merely

by showing that the defendant was in charge of others who may have committed a

constitutional violation. Instead, the plaintiff must establish a “deliberate,

intentional act by the supervisor to violate constitutional rights.” Dodds v.

Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). It is uncertain, however,

whether or in what form supervisory liability survives the Supreme Court’s

                                          -12-
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Dodds, 614 F.3d at 1200

(“Iqbal may very well have abrogated § 1983 supervisory liability as we

previously understood it . . . in ways we do not need to address to resolve this

case.”); Lewis v. Tripp, 604 F.3d 1221, 1227 n.3 (10th Cir. 2010) (Iqbal “has

generated significant debate about the continued vitality and scope of supervisory

liability.”). At least, under Iqbal, a supervisor’s mere knowledge of his

subordinate’s discriminatory purpose and acquiescence are insufficient to

establish a constitutional violation. See Iqbal, 556 U.S. at 677.

      In any event, Mr. Phillips cannot meet even our pre-Iqbal standard. He

argues that Warden Brill was "dismissed for failure to personally participate,

which is not [t]rue." Aplt. Br. at 29. He further claims that Brill denied him the

use of a wheelchair and "was personally involved in the medical treatment

[Mr. Phillips] was complaining of [and] had the power, as is his duty[,] to abate

the pain and suffering." Id.

      Mr. Phillips states that he sent “kites” to the warden on October 27, 28 and

29 regarding removal of the syndesmotic screw and requesting transfer to a

medical yard. Id. at 9-10. And, he noted that Warden Brill responded on

October 30, 2009, by stating that “Dr. Tiona is evaluating your case. You will

hear soon.” Id. at 10. Such allegations do not state a constitutional violation on

the part of the warden. Merely sending grievances to a warden is not enough to

attach liability, and the warden’s response signified nothing more than a

                                         -13-
reasonable reliance on the judgment of prison medical staff. We agree with

another panel of this court which stated that such reliance “negates rather than

supports liability.” Arocho v. Nafziger, 367 Fed. Appx. 942, 956 (10th Cir. 2010)

(unpublished). See also Johnson v. Doughty, 433 F.3d 1001, 1010-11 (7th Cir.

2006) (finding that prison official may reasonably rely on the judgment of

medical professionals).

      We have reviewed the parties' briefs, the record on appeal, and the relevant

legal authority, and we agree with the magistrate judge's detailed report and

recommendation on this issue. Therefore, with respect to Mr. Phillips' challenges

to the dismissal of his § 1983 claim against Warden Brill, we affirm the district

court for the reasons stated above and for substantially the same reasons as those

set forth by the magistrate judge in her report and recommendation dated

March 11, 2011, which the district court adopted in its amended order dated

June 9, 2011.



II.   Summary Judgment Dismissing § 1983 Eighth Amendment Medical
      Treatment Claims Against Dr. Tiona and Ms. Gray

      The district court granted summary judgment to Dr. Tiona and Ms. Gray on

Mr. Phillips’ Eighth Amendment claims, concluding that those defendants were

not deliberately indifferent to Mr. Phillips’ condition, and that any disagreement




                                        -14-
between them and Mr. Phillips were attributable only to a difference of medical

opinion, or, at most, to mere negligence. 4



                              A. Standard of Review

      Summary judgment is appropriate in cases where the record discloses “no

genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). In a deliberate

indifference case under the Eighth Amendment, we look at the factual record and

the reasonable inferences to be drawn from the record in the light most favorable

to the non-moving party. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.

2000). The plaintiff must “go beyond the pleadings and designate specific facts

so as to make a showing sufficient to establish the existence of an element

essential to that party's case in order to survive summary judgment.” Id. (further

quotation omitted). “To defeat a motion for summary judgment, evidence,

including testimony, must be based on more than mere speculation, conjecture, or

surmise.” Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

“Unsubstantiated allegations carry no probative weight in summary judgment

proceedings.” Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th Cir. 1992); accord

Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004) (noting that


      4
       While there is some confusion in the record, it is clear that in his brief on
appeal, Mr. Phillips does not include the question of a wheelchair or a handicap-
accessible shower in the Eighth Amendment claims. Rather, his claims are
confined to claims under the ADA, and we treat them as such.

                                         -15-
“unsupported conclusory allegations . . . do not create a genuine issue of fact”)

(further quotation omitted).



                               B. Medical Care Claim

      Mr. Phillips contends that Dr. Tiona and Ms. Gray violated the Cruel and

Unusual Punishments Clause of the Eighth Amendment when they failed to have

the syndesmotic screw in his ankle removed during the two months he was at

KCCC, i.e. within 3-1/2 months of his surgery. He claims that this failure, and

their insistence that he could bear some weight on his right leg after November 5,

resulted in his having a permanent limp, and continual pain. As pled, his claims

of omission, delay and resulting limp do not cover the additional month between

December 11, 2009, when he was transferred to SCF, and January 13, 2010, when

the screw was removed, because he firmly asserted in grievances at KCCC that he

was going to have a permanent limp if the screw was not removed while he was

there. And, according to his allegations, the screw removal in January did not

cure his limp.

      Prison officials violate the Eighth Amendment when they are deliberately

indifferent to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97,

104-106 (1976). To establish an Eighth Amendment claim under that standard, a

prisoner must satisfy two requirements, consisting of an objective and a

subjective component. To satisfy the objective component the prisoner must

                                        -16-
establish that the deprivation alleged was sufficiently serious. See Farmer v.

Brennan, 511 U.S. 825, 834 (1994). The subjective component requires the

prison official to have a “sufficiently culpable state of mind.” Id. In the context

of prison conditions cases, “that state of mind is one of ‘deliberate indifference’

to inmate health or safety.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 302-303

(1991)). “[A] prison official cannot be found liable under the Eighth Amendment

for denying an inmate humane conditions of confinement unless the official

knows of and disregards an excessive risk to inmate health. . . .” Id. at 837.

      A mere difference of opinion between a prisoner and the prison’s medical

staff with respect to a diagnosis or a plan of treatment, or a mere medical

difference of opinion, is not actionable under the Eighth Amendment. See

Estelle, 429 U.S. at 107; Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006);

Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); Perkins v. Kan.

Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999); Ramos v. Lamm, 639 F.2d

559, 575 (10th Cir. 1980). Applying that rule, the district court concluded that

Mr. Phillips failed to satisfy the subjective prong of the deliberate indifference

test, that is that Dr. Tiona and Ms. Gray acted with a culpable state of mind. It

reasoned that Mr. Phillips’ arguments reflected only a disagreement with his post-

operative medical care. We agree.

      In her affidavit in support of the motion for summary judgment, Dr. Tiona

stated that she considered Mr. Phillips' request to have the screw surgically

                                         -17-
removed, but after consulting with the orthopedics department at Denver Health

Medical Center (the referring facility used by KCCC), and researching the

question, she determined that the screw did not need to be removed during his

time at KCCC, i.e., within 3-1/2 months of surgery.

      That Dr. Matthews planned to remove the screw around six weeks after

surgery, which is his typical practice, does not mean that either removal or

removal within six weeks are medical absolutes for all doctors for syndesmotic

screws, as Dr. Tiona’s affidavit and course of action make clear. Certainly there

is no evidence that Dr. Matthews thought that failure to remove the screw within

six weeks, or 3-1/2 months, or more, presented an “excessive risk” of harm. In

his December 3, 2009, letter to Mr. Phillips (more than three months after

surgery), Dr. Matthews stated that “If you have been walking on the ankle a fair

amount then the screw may already be broken. That is not the end of the world

but it is difficult to remove and may give you symptoms if it is broken.” R. Vol.

4 at 319 (emphasis added). Notably, the screw in Mr. Phillips’ ankle was intact

when removed on January 11; and even if it had not been (as Dr. Tiona

envisioned would eventually happen), it would not present a major problem

(“That is not the end of the world”).

      But, Mr. Phillips argues, he limps. At KCCC he insisted he would limp if

the screw was not removed at that time. However, there is not one iota of

medical evidence linking non-removal of syndesmotic screws within 3-1/2 months

                                        -18-
of surgery to a limp. Not from Dr. Matthews or anyone else. What the record

does disclose is that multiple x-rays, and visual examinations during surgery on

January 13 and April 22, 2010, showed that the fractured fibula was well healed,

that all ankle structures were intact and in place, that there was no problem at the

site of the screw, and no necrotic tissue or infection. There was some unrelated

irritation discovered in April 2010 around one of the plates.

      Absent any medical evidence linking screw removal to a limp, there is no

fact question on this subject which could properly be submitted to a jury. More to

the point, there is no evidence pointing to a culpable state of mind on this subject

where Dr. Tiona is concerned. And, the fact that Mr. Phillips avoided doing

prescribed range of motion exercises, including non-weight-bearing ones, until

January 2010, or at least December 17, 2009, is significant.

      Likewise, there is no medical evidence linking a limp to the fact that

Dr. Tiona wanted Mr. Phillips to bear some weight on his right foot after

November 5, 2009. Dr. Matthews, who, as one would expect, told Mr. Phillips

not to put weight on his foot for the first six weeks after setting and fixing in

place a broken fibula, expected that Mr. Phillips would have been “walking a fair

amount” by three months after surgery.

      The same rationale applies to Mr. Phillips’ subjective complaints of pain.

He complained continuously of pain: after his surgery, at the El Paso County Jail,

at KCCC, and at SCF, and both before and after the removal of the syndesmotic

                                          -19-
screw. But there is nothing in the medical evidence with respect to pain that

isolates his two months at KCCC from the standpoint of an excessive risk of

serious harm, or knowledge by Dr. Tiona of a substantial risk of harm. As

indicated above, what the record does show is a normally healing ankle, with no

necrosis or infection, and with no identifiable abnormality in structure,

throughout the entire period, excepting only the unrelated tissue irritation around

one plate observed in the April 2010 surgery. And, medical professionals at SCF

apparently prescribed nothing more for pain than Dr. Tiona prescribed—Tylenol

and Ibuprofen—based upon their objective evaluation of Mr. Phillips’ ankle and

leg.

       We have reviewed the parties' briefs, the record on appeal, and the relevant

legal authority, and we agree with the magistrate judge's detailed report and

recommendation on this issue. Therefore, with respect to Mr. Phillips' challenges

to the dismissal of his § 1983 claim against Dr. Tiona and Ms. Gray, we affirm

the district court for the reasons stated above and for substantially the same

reasons as those set forth by the magistrate judge in her report and

recommendation dated November 10, 2012, which the district court adopted in its

order dated February 13, 2012.




                                         -20-
III.   Summary Judgment Dismissing Phillips’ ADA Claims

       Mr. Phillips claims that the defendants violated Titles II and III of the ADA

by failing to provide him with a wheelchair, primarily to assist him with meals in

his cell, and a handicap shower with a bench to aid him in getting dressed. He

appeals the district court’s dismissal of this claim on summary judgment.

       Title II of the ADA provides that "no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity." 42 U.S.C. § 12132 (emphasis

added). 5 The Act defines a "public entity" as any State or local government,

department, agency, special purpose district, or other instrumentality of a State or

States or local government; and the National Railroad Passenger Corporation, and

any commuter authority. 42 U.S.C. § 12131(1) (emphasis added). See Robertson

v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007). An

individual is disabled if he has a "physical or mental impairment that substantially

limits one or more major life activities." 42 U.S.C. § 12102(1)(A).




       5
       The ADA was amended, effective January 1, 2009, by the ADA
Amendments Act of 2008 (ADAA), Pub. L. No. 110-325, 122 Stat. 3553, to
expand the definition and construction of what constitutes a disability. See 42
U.S.C. § 12102(4)(A). The term “substantially limits” was also broadened,
particularly as set forth in EEOC Regulations issued in 2011. See 29 C.F.R.
§ 1630.2(J)(4) (2012).

                                         -21-
      The question is whether CCA, a private, for-profit corporation, is an

instrumentality of the State of Colorado with respect to KCCC, hence subject to

Title II of the ADA as a “public entity.” The district court held CCA did not so

qualify and granted summary judgment in favor of CCA on the issue. 6



                                          A.

      Relevant decisions by the overwhelming majority of courts support the

conclusion that the ADA does not apply to private prisons. At least two circuit

courts have held, as did the district court, that a private prison is not a public

entity under the ADA. See Edison v. Douberly, 604 F.3d 1307 (11th Cir. 2010);

Maringo v. Warden, 283 Fed. Appx. 205 (5th Cir. 2008) (unpublished).

      The Eleventh Circuit in Edison held that a private prison management

corporation, which operated a Florida state prison, was not a public entity subject

to Title II of the ADA: “a private corporation is not a public entity merely

because it contracts with a public entity to provide some service.” Edison, 604

F.3d at 1310. In so concluding, the Eleventh Circuit relied upon the analysis of

the Second Circuit in Green v. New York, 465 F.3d 65 (2d Cir. 2006), which,


      6
       The district court granted summary judgment to defendants Brill, Tiona,
and Gray on Mr. Phillips' Title II claim, reasoning that the ADA does not
contemplate liability against individuals in their personal capacity, since it is
limited to “public entities.” Mr. Phillips does not specifically challenge that
determination. Accordingly, our analysis is confined to the question of liability
against CCA, a corporation.

                                         -22-
largely in reliance upon the actual language of the ADA, concluded that a private

hospital performing services pursuant to a contract with a municipality was not an

instrumentality of the government, and thus not a public entity under the ADA.

      The analysis of the Green court is instructive. The court observed that

“public entity” under Title II of the ADA 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)(B). Thus, the question became what the

statute meant by the term “instrumentality of a State.” Green, 465 F. 3d at 78-79.

Applying the canon of statutory construction known as noscitur a sociis (“a word

is known by the company it keeps”), id. at 79 (citing Jarecki v. G.D. Searle &

Co., 367 U.S. 303, 307 (1961)), the Green court noted that the defining

characteristics of the “company” kept by “instrumentality” (“department, agency

[and] special purpose district . . . of a State . . . or local government”) are that

they are traditional government units or are created by a government unit. The

Second Circuit concluded that the private hospital in Green was not a

governmental unit, but, rather, was a “parallel private entity.” Id. Accordingly,

as the Edison court, agreeing with Green, concluded: “A private contractor does

not . . . become liable under Title II merely by contracting with the State to

provide governmental service, essential or otherwise.” Edison, 604 F.3d at 1310.

      Numerous courts have agreed with this analysis. See Wilkins-Jones v.

County of Alameda, 859 F. Supp. 2d 1039, 1048 (N.D. Calif. 2012) (Title II does

                                           -23-
not apply to government contractors); Rodrigues v. Arizona Dep’t of Corr., 2012

WL 6200624, at **9-10 (D. Ariz. Dec. 12, 2012) (unpublished) (a private prison

does not qualify as an instrumentality of a state and therefore Title II of the ADA

does not apply); Rickerson v. Gills, 2012 WL 1004733, at *2 (N.D. Fla. Feb. 8,

2012) (unpublished) (holding that CCA was not liable under Title II of the ADA);

Collazo v. CCA, 2011 WL 6012425, at *3 (N.D. Ohio Nov. 30, 2011)

(unpublished) (“A private prison does not qualify as a department or agency of a

state or local government and therefore is not a ‘public entity’ under the

[ADA].”); Medina v. Valdez, 2011 WL 887553, at *4 (D. Id. March 10, 2011)

(unpublished) (analyzing Green and Edison and concluding that “the [ADA] was

intended to include only state entities and instrumentalities created by the state.

Private contractors do not fit within the strict definition”); Gonzalez-Jarquin v.

CCA, 2008 WL 3285764, at *3 (S.D. Ga. Aug. 8, 2008) (unpublished) (“Although

the CCA is contracted with the BOP to operate [the state prison], it does not

constitute a ‘public entity’ within the meaning of Title II.”); cf. Maxwell v. South

Bend Work Release Ctr., 787 F. Supp. 2d 819, 822 (N.D. Ind. 2011) (following

Edison and Green to hold that a private corporation that employs prisoners is not

a public entity); Castle v. Eurofresh, Inc., 734 F. Supp. 2d 938, 943 (D. Ariz.

2010) (following Green and Edison to hold that a private corporation to whom

prison contracts prison labor is not a public entity); Cox v. Jackson, 579 F. Supp.

2d 831, 852 (E.D. Mich. 2008 ) (holding that a private company providing

                                         -24-
medical services to a prison is not a public entity, stating, “[a] private contractor

does not become a ‘public entity’ under Title II merely by contracting with a

governmental entity to provide governmental services”).



                                          B.

      The opposing view is captured in Judge Barkett’s dissent in Edison. She

argued that the Edison majority “conflate[d] government contracting with

government function.” Edison, 604 F.3d at 1311 (Barkett, J., dissenting). While

the dissent agreed with the majority that simply contracting with the government

does not render a private company subject to Title II of the ADA, it distinguished

the facts of Edison, in which a private company “takes the place of the state in

performing a function within the exclusive province of the state.” Id. at 1311-12.

In such a situation, the dissent concluded that the “company cannot be permitted

to avoid the requirements of the law governing that state function.” Id. at 1312.

The dissent therefore distinguished Green and other factually similar cases from

the situation presented in Edison and in this case: in those cases a private entity

only contracted to provide services it was otherwise lawfully able to provide; in

Edison and in the case before us, state involvement was essential to perform the

function at issue—i.e., operating a prison. Id. at 1311. Nonetheless, that dissent

has not found traction in the caselaw on the topic thus far.




                                          -25-
      The rationale underpinning the Edison dissent finds support in other

contexts. In Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 209

(1998), the Supreme Court held that Title II of the ADA applies to state prisons,

reasoning that a state prison is unquestionably a public entity and that

management of a state prison is one of the primary functions of government. In

Smith v. Cochran, 339 F.3d 1205, 1215-16 (10th Cir. 2003), a case involving the

rape of a prisoner by a state driver’s license examiner, we upheld an Eighth

Amendment claim brought under 42 U.S.C. § 1983, reasoning that “persons to

whom the state delegates its penological functions, which include the custody and

supervision of prisoners, can be held liable for violations of the Eighth

Amendment.” In reaching that conclusion, we relied on two Supreme Court

cases: Evans v. Newton, 582 U.S. 296, 299 (1966) (“[W]hen private individuals

or groups are endowed by the State with powers or functions governmental in

nature, they become agencies or instrumentalities of the State. . . .”); and West v.

Atkins, 487 U.S. 42, 57 (1988) (holding that a private doctor treating prisoners

under a contract with state prison authorities acted under color of state law for

purposes of a § 1983 suit).

      We have long assumed that employees of a private prison act under color of

state law for purposes of § 1983 suits by inmates, a question left open by the

Supreme Court in Richardson v. McKnight, 521 U.S. 399, 413 (1997). See

Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1111, nn. 8, 11 (10th Cir. 2005) (Ebel,

                                         -26-
J., dissenting) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-42 (1982));

Street v. CCA, 102 F.3d 810, 814 (6th Cir. 1996) (holding that employers of

private prison management company were acting under color of state law for

§ 1983 purposes in that they were performing a “traditional state function.”). See

also Marsh v. Newton, 134 F.3d 383, 1998 WL 39235, at *4 (10th Cir. Jan. 30,

1998) (unpublished) (“We assume, for purposes of this analysis, that Corrections

Corporation of America, the private company operating the women’s prison, and

its employees, are state actors.”).

      Perhaps more to the point, several courts have held that under the Religious

Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1(a),

private prisons qualify as “instrumentalities” of state government. See Knows

His Gun v. Montana, 2012 WL 2087226 (D. Mont. Feb. 29, 2012) (unpublished)

(citing West v. Atkins, 487 U.S. at 49-51)); Dean v. CCA, 540 F. Supp. 2d 691

(N.D. Miss. 2008); but see Aladimi v. Alvis House/Cope Ctr., 2012 WL 726852

(S.D. Ohio Mar. 6, 2012) (unpublished) (holding to the contrary).

      But these lines of reasoning are not without exceptions. Thus, for purposes

of the Federal Tort Claims Act (FTCA), a panel of this court has held that the

independent contractor exception applies to private prisons, i.e., they are not

federal agencies. See, e.g., Menteer v. Applebee, 2006 WL 2294845 (10th Cir.

Aug. 10, 2006) (unpublished) (citing Logue v. United States, 412 U.S. 521

(1973)). And the Supreme Court has rejected the proposition that a private prison

                                        -27-
management firm is a federal agent for purposes of a prisoner’s suit. Minneci v.

Pollard, 132 S. Ct. 617, 623 (2012) (characterizing the rejection of a suggestion

by the dissent in Correctional Serv. Corp. v. Malesko, 534 U.S. 61 (2001)).



                                          C.

      The question, however, as recognized in the majority of authorities to

address Title II and private prisons is not so simple as merely looking generally at

function.

      1. Structure/Function

      Structurally, CCA is in no way a public entity. It is a private, for-profit,

business corporation, listed on the New York Stock Exchange, in the business of,

among other things, the private management of prisons and other correctional

facilities under contract with all three federal corrections agencies, sixteen states,

and local municipalities. It is the fifth-largest corrections system in the nation

behind only the federal government and three states. It houses more than 80,000

inmates in more than 60 facilities, 44 of which are company-owned, and it

employs nearly 17,000 people.

      CCA operates three correctional facilities in the State of Colorado, under

contract with the State: Bent County Correctional Facility, Crowley County

Correctional Facility, and, as relevant here, Kit Carson Correctional Center. The

State of Colorado contracts with CCA pursuant to state statute authorizing the

                                         -28-
CDOC “to permanently place state inmates classified as medium custody and

below in private prisons,” Colo. Rev. Stat. § 17-1-104.9, subject to legislation

comprehensively regulating such prisons. 7

      Functionally, private prisons like KCCC only partly mirror prisons operated

by the state. 8 As indicated above, the State of Colorado remains intimately

involved. Private prisons in Colorado must, among other things, “abide by

operations standards for correctional facilities adopted by the executive director

of the department of corrections.” Id. at § 17-1-202(1)(e). Notably, inmates

assigned to private prisons remain officially in the custody of the CDOC, and the

CDOC retains sole authority to assign and transfer inmates, make final

determinations on disciplinary matters affecting liberty interests, make decisions

that affect sentences or time served, including earned time credits, make

recommendations to the state board of parole, develop work requirements, and




      7
       See, e.g., §§ 17-1-102(7.3), 17-1-103(1)(a), 17-1-103.8(4), 17-1-104.5,
17-1-104.9, 17-1-105, 17-1-105.1 (Accreditation of private contract prisons),
17-1-113.7, 17-1-115.5, and Part 2 of Article I (Department of Corrections):
“Corrections Privatization - Requests For Proposals Process.” Statutory
provisions under Part 2 include 17-1-202 (“Requests for competitive proposals
and contract requirements”), 17-1-202.5 (“Private prison planning process”),
17-1-203 (“Powers and duties not delegable to contractor”), 17-1-205 (Contract
termination), and 17-1-206 (incorporating the provisions of 16-11-308 regarding
inmates in the custody of the CDOC).
      8
       The CDOC operates twenty-two state correctional facilities. See Colo.
Rev. Stat. §17-1-104.3(1)(b).

                                        -29-
determine eligibility for any form of release from a correctional facility. § 17-1-203.

      By outsourcing the incarceration of its prisoners, the State relieves itself of

significant expenses, from those related to housing prisoners and providing food,

medical, dental and other care, plus a full range of programs, to security, and the

burden of payroll and state benefits to staff and administrators. In addition the

State avoids exposure to the risks and expense of litigation and judgments. CCA

personnel have no claim on benefits from the State, and CCA, by statute,

indemnifies the State and its employees from all liabilities, including those

stemming from civil rights claims; and it must carry insurance to back up that

indemnification. Colo. Rev. Stat. § 17-1-202((1)(b).

      2. Asymmetry

      The line separating a State-operated prison from one operated by a private

corporation is not just cosmetic. There are important differences, creating a

material and significant asymmetry. Thus, for instance, whereas the State and its

CDOC employees enjoy Eleventh Amendment immunity from damages suits

under § 1983 for their official actions, 9 and CDOC employees in their individual

capacities enjoy qualified immunity in § 1983 damages actions, CCA and its

private prison employees enjoy neither. They are fully exposed to the numerous

civil rights suits brought by inmates. See, Richardson, 521 U.S. at 412

      9
       See Quern v. Jordan, 440 U.S. 332, 338-40 (1979); Procunier v. Navarette,
434 U.S. 555, 561-62 (1978); Griess v. Colo., 841 F.2d 1042, 1044 (10th Cir.
1988).

                                         -30-
(“[P]rivate prison guards, unlike those who work directly for the government, do

not enjoy immunity from suit in a § 1983 case.”). In arriving at that conclusion,

the Court in Richardson expressly rejected a functional test, stating: “Indeed a

purely functional approach bristles with difficulty, particularly since, in many

areas, government and private industry may engage in fundamentally similar

activities, ranging from electricity production, to waste disposal, to even mail

delivery.” Id. at 409. Of course, the reasoning in Richardson relates to the

justification for an immunity, but it is still instructive. The Court concluded by

stating:

             Our examination of history and purpose thus reveals nothing
      special enough about the job or about its organizational structure that
      would warrant providing these private prison guards with a
      governmental immunity. The job is one that private industry might,
      or might not, perform; and which history shows private firms did
      sometimes perform without relevant immunities. The organizational
      structure is one subject to the ordinary competitive pressures that
      normally help private firms adjust their behavior in response to the
      incentives that tort suits provide–pressures not necessarily present in
      government departments.

Id. at 412.

      On the other hand, unlike federal prisoner suits against government

employees, federal prisoners at a privately run federal prison cannot bring a

Bivens 10 action against the private corporation that manages the prison, or its

privately employed personnel working there, when there is a remedy under state

      10
       Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).

                                         -31-
tort law. See Malesko, 534 U.S. at 72-73; Minneci, 132 S. Ct. at 620. But that

prohibition is more than offset by the ability to bring actions for simple

negligence—a ground not available, for instance, in an Eighth Amendment claim

under § 1983. See Minneci, 132 S. Ct. at 626. (The “potential existence of an

adequate ‘alternative, existing process [a tort remedy under state law]’ differs

dramatically in the two sets of cases. Prisoners ordinarily cannot bring state-law

tort actions against employees of the Federal Government . . . . But prisoners

ordinarily can bring state-law tort actions against employees of a private firm.”).

      And, with respect to the application of Title II of the ADA, states may, for

certain conduct, enjoy sovereign immunity from ADA suits for money damages

where that conduct does not actually violate the Fourteenth Amendment. See

United States v. Georgia, 546 U.S. 151, 159 (2006); cf., Guttman v. Khalsa, 669

F.3d 1101, 1118-19 (10th Cir. 2012). If it is determined that Title II of the ADA

applies to them, private prison management corporations will have no such

opportunity for protection.

      Finally, Title II of the ADA does not apply to federal prisoners in federal

prisons, including those privately managed by corporations such as CCA. That is

so because Title II covers only states and defined appendages thereof.




                                         -32-
                                         D.

      Importantly, regulations issued by the Attorney General implementing Title

II suggest that states may not avoid the responsibility to provide services to

disabled prisoners by contracting away those obligations. Thus, prison

assignments should not make a material difference. The regulations require that:

      A public entity in providing any aid, benefit, or service, may not,
      directly or through contractual, licensing, or other arrangements,
      [discriminate against individuals with disabilities].

28 C.F.R. § 35.130(b)(1).

      Pursuant to that regulation, the State of California, for example, has been

required by the courts to ensure that county jails housing state prisoners pursuant

to contract do so under ADA-compliant conditions. Armstrong v.

Schwarzenegger, 622 F.3d 1058, 1069 (9th Cir. 2010). The court described the

contract obligations as follows:

      The State’s contracts and arrangements with the counties are not
      simply to incarcerate parolees and prisoners, but to provide such
      individuals with various positive opportunities, from educational and
      treatment programs, to opportunities to contest their incarceration, to
      the fundamentals of life, such as sustenance, the use of toilet and
      bathing facilities, and elementary mobility and communication. The
      restrictions imposed by incarceration mean that all of these positive
      opportunities must be provided or allowed to individuals incarcerated
      pursuant to state contracts and arrangements to the same extent that
      they are provided to all other detainees and prisoners.

Id. at 1068 (emphasis added).




                                        -33-
      The remedy for violations of the regulation, and such conditions, is not to

sue the jails for breach of contract under a third-party beneficiary theory, or for

violations of the ADA, but to sue the state for failing to meet its own obligations

under the ADA. Id. at 1069.

      The Armstrong case involves a seventeen-year-old ADA class action suit

by California prisoners. Colorado has had a similar ADA class action suit,

Montez v. Hickenlooper, No. 92-CV-870-JLK, 11 which resulted in an ADA

Remedial Plan for class members, dated August 27, 2003; Administrative

Regulation 750-04 governing prisoner requests for accommodation, and the

establishment of an ADA Inmate Coordinator and Facility ADA Coordinators. 12

      The record does not disclose what, if any, contract arrangements are in

place between CDOC and CCA with respect to the Kit Carson Correctional

Center. But there are strong evidences of ADA policies and practices in place. 13


      11
       The Montez case commenced in 1992 as a pro se civil rights action. It
was subsequently certified as a class action under the ADA. It ultimately
generated the Remedial Plan.
      12
      To the extent it may be applicable, certain contracts entered into by the
CDOC do not accord third-party beneficiary status to any inmate or to any
member of the general public. Colo. Rev. Stat. 17-1-202(2).
      13
         Whether by contract, other operational arrangement with CDOC, or
otherwise, it is evident from the record that CCA implements ADA
accommodations to some degree. As Mr. Phillips asserts, the prison had both a
handicap shower (not functional) and a cell. Apparently inmates also had access
to a state ADA coordinator and use of state forms and procedures for ADA alerts
and requests for accommodation. See, e.g., R. Vol. 5 at 233 (in responding to an
                                                                    (continued...)

                                         -34-
      Mr. Phillips has not joined the State as a party, so we do not pursue the

matter here. The point is, however, that it would be a mistake to assume some

stark difference in disability accommodations between Colorado inmates in State-

run prisons and those in private facilities operated under contract.



                                          E.

      In any event, while all these considerations bear somewhat on the problem,

in the end we are still faced directly with a question of statutory interpretation:

Is CCA a public entity? Is it an instrumentality of government in the same sense

      13
         (...continued)
interrogatory, CCA stated it was “unaware of Plaintiff filing the proper paperwork
or going through the required process to be considered for ADA
accommodation”); id. at 91, 234 (references to “ADA Inmate Coordinator”); R.
Vol. 4 at 427-28(Request for Accommodation: memo from ADA inmate
coordinator). There is no indication whether or to what extent CCA complies
with CDOC A.R. 750-04.
       Furthermore, we note that CCA has been inconsistent in its assertion that
the ADA does not apply to it, at least by contract. For example, in CCA’s Reply
in Support of its Motion to Dismiss, CCA avers that “[T]he ADA is not an official
custom or policy of CCA. Rather, the ADA is a legislative act that places certain
requirements on CCA.” Reply at 4, R. Vol. 1 at 324 (emphasis added); R. Vol. 5
at 248 (CCA responded to an interrogatory asking about “A.D.A. . . . showers”
without disputing applicability of the ADA). Mr. Phillips also referred, without
apparent objection, to the occurrence of “ADA alerts” at the prison. Id. at 91.
Also it is a matter of interest that in the district court CCA did not assert the non-
applicability of the ADA in its motion to dismiss but addressed the claim on other
grounds. Defendant CCA’s Motion to Dismiss, R. Vol. 1 at 204. It waited for the
motion for summary judgment to assert that the ADA claim must be dismissed for
failing to state a claim upon which relief may be granted. Defendants’ Mot. for
Summ. J., R. Vol. 4 at 21.
       CCA has been unhelpful in explaining its operational practices with respect
to ADA accommodations.

                                         -35-
as a “department, agency, or special purpose district”? We think not. In the

absence of clarification on the point in the 2008 Amendments to the ADA or any

of the regulations issued before or since, we agree with the reasoning of the

Second Circuit in Green that the proper canon of construction to apply is noscitur

a sociis (a word is known by the company it keeps), and that “instrumentality”

refers to a traditional government unit or one created by a government unit.

      Accordingly, we join the Eleventh Circuit and the overwhelming majority

of other courts that have spoken directly on the issue, and hold that Title II of the

ADA does not generally apply to private corporations that operate prisons. In

particular, it does not apply to CCA with respect to the management of KCCC.

And the complaint fails to state a claim against CCA upon which relief could be

granted for an alleged violation of the ADA.



                                          F.

      Mr. Phillips also challenges the district court's summary dismissal of his

Title III claim, upon recommendation of the magistrate judge, on the basis that

the court lacked jurisdiction over the claim. Because Mr. Phillips' sole remedy

for a Title III claim is injunctive relief, and he alleged only past exposure to ADA

violations, we perceive no error. See 42 U.S.C. § 12188(a)(2); Powell v. Nat'l

Bd. of Med. Exam'rs, 364 F.3d 79, 86 (2d Cir. 2004) ("A private individual may




                                         -36-
only obtain injunctive relief for violations of a right granted under Title III; he

cannot recover damages.").



                                   CONCLUSION

      For the reasons stated above, the judgment of the district court dismissing

Mr. Phillips’ claims is AFFIRMED.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




                                          -37-
