     Case: 10-20648   Document: 00511751037   Page: 1   Date Filed: 02/07/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                February 7, 2012

                                 No. 10-20648                    Lyle W. Cayce
                                                                      Clerk

MARKS WELLS,

                                          Plaintiff-Appellant
v.

RICK THALER, In his official capacity; KEVIN MAYFIELD, Individually and
in his official capacity; ALFONSO CASTILLO, In his individual capacity;
RICHARD A. GUNNELS, Individually and in his official capacity; DONALD E.
MUNIZ, Individually and in his official capacity; LIEUTENANT ELIZABETH
C. STAMBAUGH, Individually and in her official capacity; DEMETRIE
PHIPPS, Individually and in his official capacity; LAURA M. BARNETT, In her
official capacity, FRANK HOKE, Individually and in his official capacity;
MICHAEL WHEELER, Individually and in his official capacity; DOCTOR
LANETTE LINTHICUM, Individually and in her official capacity; ANTHONY
WILLIAMS, Individually and in his official capacity; KIMBERLY COTTON,
Individually and in her official capacity; THOMAS GOODSON, Individually and
in his official capacity; WILLIAM SCOTT CHILDRESS, Individually and in his
official capacity; BRUCE KALMAN, In his official capacity NATHANIEL
QUARTERMAN, In his individual capacity, DAVID SWEETIN, In his official
capacity,

                                          Defendants-Appellees


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:08-CV-2288


Before BENAVIDES, STEWART, and GRAVES, Circuit Judges.
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PER CURIAM:*
       In this civil rights case, Plaintiff-Appellant Mark Wells (“Wells”) appeals
the district court’s grant of summary judgment in favor of the Defendants-
Appellees. Wells brings claims under 42 U.S.C. § 1983 and Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., against
various employees and officials of the Texas Department of Criminal Justice
(“TDCJ”) and the University of Texas Medical Branch in their official and
individual capacities, seeking compensatory and punitive damages, as well as
injunctive and declaratory relief. We AFFIRM.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff-Appellant Wells is a fifty-two year-old blind prisoner, who was
convicted in 2006 upon a negotiated plea of aggravated sexual assault of a child.
He was sentenced to ten years of imprisonment on August 28, 2006. Wells did
not appeal his conviction and he has not filed post-conviction collateral attacks
in either state or federal court. On October 19, 2006, Wells was transferred to
the Estelle Unit, where he is currently confined.
       In the current suit, Wells proceeds pro se and in forma pauperis, and he
sues under 42 U.S.C. § 1983 and Title II of the ADA, claiming that the conditions
in the Estelle Unit violate his constitutional rights of access to the courts and to
the mail, and that the prison denied him the benefits of the Estelle Unit law
library and Adaptive Resource Clinic due to his disability. Specifically, Wells
claims that the alleged violations prevented him from filing his federal habeas
petition and are currently preventing him from filing his Texas state habeas
petition.1 As to both claims, Wells seeks compensatory and punitive damages


       *
        Pursuant to FIFTH CIRCUIT RULE 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set forth
in FIFTH CIRCUIT RULE 47.5.4.
       1
           The parties agree the Texas state habeas petition can still be filed.

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                                       No. 10-20648

against the Defendants-Appellees in their personal and official capacities, as
well as injunctive and declaratory relief.
       Plaintiff-Appellant Wells began accessing the law library in late June
2007, approximately eight months after he was transferred to the Estelle Unit.
According to Defendant-Appellee Frank Hoke, TDCJ Access to Courts Program
Supervisor, the law library at Estelle Unit maintains a list of volunteer offenders
who are willing to provide assistance reading and writing, and offenders are
permitted to schedule their research sessions with other offenders who will aid
them. From June 2007 onwards, Wells took advantage of this service, and he
regularly used the law library with the assistance of other prisoners. During the
vast majority of these sessions, Wells was accompanied by another prisoner,
Chris Cole.     Cole, who is visually impaired, assisted Wells with his post-
conviction legal research and read research material and legal mail to Wells
using a closed-circuit enlargement television (“CCTV”). From June 2007 until
late September 2007—when his federal habeas petition was due—Wells had over
twenty legal research sessions with Cole, many lasting for several hours. During
this time, Wells requested no accommodations other than being allowed to
research with Cole.2


       2
        Wells filed several grievances about the tables and chairs that he and Cole used while
working together during August and September 2007. Although on appeal he cites the various
disputes over the table and chairs as a grounds for his access to courts claim, arguing that he
was denied access to a reader, Wells did not base any of his claims for relief in the district
court on these particular events. Instead, in his summary judgment briefing and in his
complaint, Wells seemed to concede that he was given access to readers, such as Cole, but
argued that access to readers was insufficient. Any argument based on these earlier events
is waived. See Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir. 2010) (“An argument not
raised before the district court cannot be asserted for the first time on appeal.” (quotation
marks and citation omitted)). Additionally, even if considered, a review of the various
grievances indicates that Wells was not denied access to Cole during that time, but rather,
that Wells believed that the seating arrangement was not the most convenient possible. These
grievances show that Wells was permitted same-session visits with Cole, that the sturdier
table for the CCTV was replaced after he complained, and that the CCTV was actually
equipped with two chairs for joint research.

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       On September 27, 2007, the day his federal habeas petition was due, Wells
filed a Step 1 grievance complaining that he was completely blind and was
unable to do his legal research privately and independently.3 In his grievance,
Wells stated that Cole had been assisting him with his post-conviction filings,
but that he wanted a computer equipped with “screen reading software, text to
[B]raille software, printers, scanners, servers, and network devices,” so he could
research on his own. Wells stated such accommodations were necessary because
he was worried other prisoners might comprise confidentiality, presumably
regarding the nature of his underlying conviction. Wells also stated that he had
asked the law librarian for “law books and other legal research material on tape
or in [B]raille” approximately two weeks earlier, but that the librarian had told
him those resources were not available in the library.4
       In a response to this grievance, on October 10, 2007, a prison official
replied that Wells was not being denied any necessary adaptive aids because
prison records indicated Wells was only blind in one eye and could see using the
CCTV. According to Hoke, when Wells first entered the TDCJ, the TDCJ was
incorrectly informed that Wells could see in one eye and the law library relied
on those records.5 On October 22, 2007, Wells filed a Step 2 Grievance, stating
that he was unable to use the CCTV due to blindness in both eyes; he also



       3
         The TDCJ utilizes a two-step grievance procedure. See Wendell v. Asher, 162 F.3d
887, 891 (5th Cir. 1998) (describing TDCJ administrative procedure).
       4
         Wells also submitted a photocopy of a typed letter that he claims he mailed to Hoke
on September 23, 2007, in which he states that he is totally blind and needs adaptive
equipment to research independently. The letter is hand-dated and there is no indication that
it was ever received by Hoke. Assuming for purposes of this motion that the letter was
actually mailed and that Hoke received it, the letter requests the same accommodations that
Wells made in his September 27th grievance. Additionally, the letter would have been
received by Hoke almost contemporaneously with that formal grievance.
       5
        Other prison medicals records indicate that Wells had told the prison in December
2006 that he could see using the CCTV.

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                                       No. 10-20648

requested that the library provide JAWS6 screen reading software, as well as
independent access to Westlaw or Lexis Nexis legal research services. On
January 2, 2008, a different official replied, stating that Wells was already
provided with adequate accommodations because he admitted that he was
receiving reading and writing assistance through same-session visits with Chris
Cole. The official also noted that the library could provide a list of other
prisoners who would assist Wells with reading and preparing filings.7
       Other evidence in the record indicates that Frank Hoke followed up on
Wells’s request that Braille or audio versions of legal resources be provided by
speaking with the reference librarian at the Texas State Law Library and the
Blind and Physically Handicapped official at the Library of Congress. Hoke
states that neither institution was able to provide or had any knowledge of legal
resources designed for the visually impaired like those Wells was requesting.
It is also undisputed that the TDCJ does not make computers available to any
offenders in the law library.
       Over the next several months, Wells regularly visited the library with
Cole, or another prisoner, David Willis, often multiple times per week and for
several hours per visit. There is no evidence in the record that Wells was ever
denied access to the law library or the assistance of another prisoner during this
time. In March 2008, Wells filed a grievance requesting additional software on
the computers in the Adaptive Resource Clinic, stating that such software was
needed so he could independently do legal research. Wells’s request was denied,
and Estelle Unit records show that Defendant-Appellee Kimberley Smith-



       6
        JAWS is a computer screen reader program that is designed for blind or visually
impaired readers and stands for “Job Access with Speech.”
       7
         Wells also filed another grievance in October 2007, requesting that the law library
provide trained paralegals, rather than prisoner readers. A prison official responded that the
prisoner readers were adequate because they acquired training on the job.

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                                       No. 10-20648

Cotton, Program Manager of the Assistive Disability Services (“ADS”), discussed
the request with Wells and told him that the Adaptive Resources Clinic was not
designed to assist with legal filings.8 Smith-Cotton filed an affidavit describing
the Adaptive Resource Clinic, stating that the Clinic is designed to “teach very
basic skills[,] such as how to type on a keyboard,” and to provide assistance to
offenders with simple tasks, such as reading or writing letters to family
members. Smith-Cotton also provides uncontroverted testimony that Wells does
not need computer training in the Clinic because he already knows how to type
and use computers.
       Previously, in December 2006, Wells discussed JAWS software with
Defendant-Appellee Thomas Gooden, who is an Adaptive Resources instructor,
and Wells requested that Gooden install JAWS software on the Adaptive
Resources computers. Gooden testifies that the request was forwarded to his
supervisor—Smith-Cotton—and Smith-Cotton states that Wells’s request was
considered, but that the prison determined that existing services met Wells’s
needs. Additionally, other evidence shows that Smith-Cotton explained to Wells
that JAWS would not be helpful to him because it cannot read personal mail.
Smith-Cotton also states that the Estelle Unit provides letter guides for visually
impaired offenders, has a mechanical reader, and that ADS instructors are also
available to help read and write letters. Prison records show that Wells declined
letter writing assistance from an ADS caseworker.9
       Plaintiff-Appellant Wells filed the current suit in July 2008. Essentially,
Wells argues that the law library or Adaptive Resources Clinic should be


       8
       Wells filed similar grievances in May and June 2008, and they were rejected on the
same grounds.
       9
         There is also evidence that Wells filed several grievances in April and May 2008
related to the letter writing resources available in the Adaptive Resources Clinic. These
grievances were either rejected for failure to follow administrative rules, or because Wells did
not attend meetings with ADS caseworkers to discuss his needs.

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                                       No. 10-20648

equipped with additional adaptive equipment, such as a current model computer
with screen reading software, such as JAWS, as well as Braille or audio versions
of legal resources and Westlaw or Lexis Nexis access. Wells argues that these
accommodations are necessary because he wants to read his mail, complete legal
research, and prepare legal filings independently and privately, rather than with
prisoner assistance. The district court granted the Defendants-Appellees’ motion
for summary judgment, finding no disputed issues of fact, and it dismissed all
of Wells’s claims with prejudice. Wells timely filed an appeal.10
                               II. STANDARD OF REVIEW
       We review a district court’s grant of summary judgment de novo,
construing all facts and inferences in the light most favorable to the nonmoving
party. Cerda v. 2004-EQR1 L.L.C., 612 F.3d 781, 786 (5th Cir. 2010). Summary
judgment is proper only when the movant demonstrates that no genuine issue
of material fact exists and that he is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Fed. Ins. Co. v. Ace Prop. & Cas. Co., 429 F.3d 120, 122 (5th
Cir. 2005).
                                      III. ANALYSIS
       A. Constitutional Claims
       Section 1983 provides a private right of action for violations of federal law
by those acting under color of state law. 42 U.S.C. § 1983. In claiming a
constitutional violation, Wells first argues that he was denied access to the
courts because he was unable to effectively research and prepare his federal and
state collateral attacks. Wells missed the filing deadline for his federal habeas
petition and he has not yet filed his Texas state habeas petition.11


       10
        On appeal, Plaintiff-Appellant Wells also filed a motion for appointment of counsel,
which was carried with the case.
       11
          It is unclear whether Wells is also trying to sue the Defendants-Appellees for
violations of Title II of the ADA under Section 1983. To the extent that he is, this claim must

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       It has long been recognized that prisoners enjoy the constitutional right
of access to the courts. See Bounds v. Smith, 430 U.S. 817, 821–22 (1977). The
Supreme Court has not, however, established that prisoners have a freestanding
right to a law library or legal assistance. Lewis v. Casey, 518 U.S. 343, 350–51
(1996). Rather, access to a prison law library is only a means for assuring “a
reasonably adequate opportunity [for an inmate] to file nonfrivolous legal claims
challenging . . . convictions or conditions of confinement.” Lewis, 518 U.S. at
356; Johnson v. Rodriguez, 110 F.3d 299, 310–11 (5th Cir. 1997). Thus, claims
alleging violations of a right of access to courts are not cognizable unless the
inmate’s position as a litigant was actually prejudiced by the denial of access.
McDonald v. Steward, 132 F.3d 225, 230–31 (5th Cir. 1998). To prove an “actual
injury,”an inmate must prove that his ability to pursue a claim was hindered or
barred by the defendant’s actions. See Lewis, 518 U.S. at 351–52.
       Here, the record shows that Wells had effective access to a law library at
all relevant times. For example, the record shows that Wells was permitted to
complete legal research and prepare filings with the assistance of a prisoner of
his request, usually Cole or Willis, and that this accommodation was provided
even before the TDCJ’s information about Wells’s vision was corrected. Wells
offers no evidence indicating that the prisoners available to assist him were not
competent or that he was not able to adequately prepare his filings after having
materials read to him. See Lewis, 518 U.S. at 360 (stating that illiterate
prisoners must be given only the “minimal help necessary to file particular
claims that they wish to bring . . . ”). Additionally, the record shows that Wells
was permitted to access the library on a regular basis, often for long visits.
Thus, Wells fails to offer evidence creating an issue of material fact on his access
to courts claim. Jones v. Greninger, 188 F.3d 322, 325–26 (5th Cir. 1999) (per


be dismissed. See D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 456–57 (5th
Cir. 2010).

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                                        No. 10-20648

curiam) (finding law library access for several hours a week more than sufficient
to meet constitutional requirements).12
       Additionally, to the extent that Wells alleges that reliance on another
prisoner violated a constitutionally protected privacy interest because his
conviction might be revealed, Wells’s argument fails because the details of his
conviction are a matter of public record. See Zaffuto v. City of Hammond, 308
F.3d 485, 490–91 (5th Cir. 2002) (stating that only disclosure of “intimate facts”
constitutes a constitutional privacy violation); see also Paul P. v. Verniero, 170
F.3d 396, 403 (3d Cir. 1999) (stating that there is no constitutionally protected
privacy interest in the details of one’s conviction); Eagle v. Morgan, 88 F.3d 620,
625–26 (8th Cir. 1996) (same); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996)
(same); Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995) (same).
Moreover, Wells does not offer any evidence showing that he is unable to use the
library because the prisoners who assisted in reading or preparing filings leaked
information about his offense or would harm him, or that the Estelle Unit failed
to adequately protect him in the past from prisoners who pose a threat.
       Further, even assuming that the Estelle Unit is somehow responsible for
Wells missing the deadline on his federal habeas petition, Wells fails to show
prejudice because he does not adequately allege grounds for an arguable claim


       12
          Even if the various difficulties that Wells complained of in working with Cole in the
fall of 2007 are taken into account, such as the arrangement of chairs or the table on which
the CCTV machine was placed, Wells still fails to show that he was denied access to library
resources. The right of access to the court “does not afford prisoners unlimited access to prison
law libraries.” McDonald, 132 F.3d at 230. Rather, “[l]imitations may be placed on library
access so long as the regulations are ‘reasonably related to legitimate penological interests.’”
Id. (quoting Casey, 518 U.S. at 361); see also Eason v. Thaler, 14 F.3d 8, 9–10 (5th Cir.1994)
(right of meaningful access to courts may be validly narrowed under certain circumstances).
Here, grievances show that smaller chairs were placed at the CCTV so an aisle in the library
was not blocked and that the larger table was temporarily moved so a computer could be
placed on it, but that the table was soon returned. The record does not suggest that Wells’s
access to Cole was ever terminated, even if they were forced to temporarily work together
while sitting at separate tables.

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                                       No. 10-20648

to relief. Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009). In his more
definite statement, Wells says that he would have asserted “[a]llegations of
misconduct, lack of evidence, and ineffective assistance of counsel” in his habeas
petition. In his opposition to summary judgment, Wells adds a handful of vague
and contradictory complaints about his attorney’s performance and the evidence
against him.
       It is well-established that a valid guilty plea waives all nonjurisdictional
defects, including an ineffective assistance of counsel claim, unless the
ineffective assistance claim affects the voluntariness of the plea. Smith v.
Estelle, 711 F.2d 677, 682 (5th Cir. 1983).13 Based on his sparse allegations,
Wells does not sufficiently state a claim for ineffective assistance of counsel that
has an arguable chance of success. See Christopher v. Harbury, 536 U.S. 403,
415–16 (2002) (stating that allegations in access to courts claim must show that
the underlying claim is “arguable,” and that the underlying claim must be
adequately pled “just as if it were being independently pursued”); Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (to be adequately alleged a claim
must allege sufficient “factual content [to] allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”).
The district court was, therefore, correct in finding the allegations insufficient.
       Second, Plaintiff-Appellant Wells argues that the Estelle Unit violated his
constitutional rights by preventing him from sending and receiving mail.
Specifically, Wells argues that the accommodations provided by the Estelle Unit
are insufficient for him to effectively write and receive letters. Courts have


       13
         To succeed on a claim for ineffective assistance of counsel, Wells would need to prove
that his counsel’s performance was deficient and that had it not been for the deficient
performance he would have insisted on going to trial. See Arnold v. Thaler, 630 F.3d 367,
368–72 (5th Cir. 2011) (setting forth analysis for a claim of ineffective assistance of counsel
based on a guilty plea); Armstead v. Scott, 37 F.3d 202, 206–07 (5th Cir. 1994) (describing
burden of proving that counsel’s performance was deficient and that prejudice resulted).

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recognized that a prisoner has a right to send and receive mail under the First
Amendment. See Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Johnson v.
Goord, 445 F.3d 532, 534 (2d Cir. 2006). Here, however, there is no evidence
that Wells was denied access to mail services. For example, Smith-Cotton
testifies that letter writing guides and a mechanical reader are provided and
that ADS instructors are also available to help read and write letters. Wells
offers no evidence showing he was ever unable to send or write mail with these
resources when he wanted to. Further undermining Wells’s claim is that he
declined letter writing assistance from ADS caseworkers and did not attend
scheduled meetings to discuss his needs.
       Wells also argues that he was unable to send mail because the sound card
was disabled on a computer in the Adaptive Resources Clinic. Smith-Cotton
testifies that the computers in the lab are designed only for vocational training
and that Wells had already acquired all of the computer skills that the lab
provides. Thus, Wells fails to show that the disabled sound card resulted in any
injury.14 Accordingly, Wells does not offer any evidence creating an issue of
material fact on his access to mail claim.15




       14
         Wells does not argue in the district court or on appeal that his legal filings were read
or tampered with by prison officials. See Brewer v. Wilkinson, 3 F.3d 816, 825–26 (5th Cir.
1993) (describing heightened interest in outgoing legal mail).
       15
          On appeal, Defendants-Appellees assert that they are entitled to qualified immunity
on the claims brought under Section 1983. Qualified immunity was never raised by the
Defendants-Appellees in their motion for summary judgment and it was never ruled on by the
district court, although it was listed as a defense in the answer. See Kelly v. Foti, 77 F.3d 819,
822–23 (5th Cir. 1996) (analyzing waiver of qualified immunity where it was not sufficiently
raised below); Martin v. Thomas, 973 F.2d 449, 458–59 (5th Cir. 1992) (same). Because we
hold that the district court did not err in finding that Wells fails to establish a constitutional
violation on the merits, we need not determine whether qualified immunity was waived, given
that establishing a constitutional violation is a necessary step in overcoming that defense. See
Pasco ex. rel. Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009) (laying out elements of
qualified immunity defense).

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       Finally, because Wells offers no evidence showing that a constitutional
violation is ongoing or is likely to occur, the district court also properly dismissed
the claims for declaratory and injunctive relief brought under Section 1983.
Green v. Mansour, 474 U.S. 64, 68 (1985).16
       B. Title II of the Americans with Disabilities Act
       Plaintiff-Appellant Wells also brings claims for damages and equitable
relief under Title II of the ADA, arguing that the Estelle Unit law library and
Adaptive Resources Clinic denied him the benefits of and excluded him from
participation in the services of those facilities. Like his constitutional claims,
Wells argues that the law library or Clinic should have been equipped with a
current model computer with screen reading software, such as JAWS, as well as
Braille or audio versions of legal resources and Westlaw or Lexis Nexis access.
The district court dismissed these claims, finding that there was no evidence of
a violation of Title II of the ADA.
       Because Wells sues the Defendants-Appellees in their official capacity for
damages, the Defendants-Appellees assert state sovereign immunity as a
defense to liability. Therefore, we must first determine whether the Defendants-
Appellees are entitled to immunity on Wells’s Title II claims. See United States
v. Tex. Tech Univ., 171 F.3d 279, 285–87 (5th Cir. 1999).
       The Supreme Court has held that Title II of the ADA validly abrogates
state sovereign immunity under the Fourteenth Amendment in certain cases.
See United States v. Georgia, 546 U.S. 151, 159 (2006). In United States v.
Georgia, the Supreme Court established a three-part test for determining
whether immunity is validly abrogated in a given case. Id. First, we must


       16
          To the extent that Wells seeks damages against state officials in the their official
capacities under 42 U.S.C. § 1983, this claim has been waived because it was not raised on
appeal. See Geiger v. Jowers, 404 F.3d 371, 373 n.6 (5th Cir. 2005) (stating that although pro
se briefs are construed liberally that these briefs are not immune from the rule “that issues
and arguments not briefed on appeal are abandoned”).

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determine “which aspects of the State’s alleged conduct violated Title II,” and
then second, determine “to what extent such misconduct also violated the
Fourteenth Amendment.” Id. Where the State’s conduct violates both Title II
and the Fourteenth Amendment, Title II abrogates sovereign immunity. Where
the conduct violates Title II, but not the Fourteenth Amendment, we must then
determine “whether Congress’s purported abrogation of sovereign immunity as
to that class of conduct is nevertheless valid.” Georgia, 546 U.S. at 159;
Tennessee v. Lane, 541 U.S. 509, 522–24 (2004); City of Boerne v. Flores, 521 U.S.
507, 529–36 (1997); Hale v. King, 642 F.3d 492, 497–98 (2011). Although this
inquiry is often addressed on motion to dismiss, and thus phrased in terms of
whether the plaintiff sufficiently “alleged” conduct violating Title II and the
Fourteenth Amendment, other courts have considered the record when the
inquiry is conducted at the summary judgment stage. See, e.g., Bolmer v. Olivia,
594 F.3d 134, 145–49 (2d Cir. 2010) (considering record when determining
abrogation in Title II claim); Morris v. Kingston, 368 F. App’x 686, 688–90 (7th
Cir. 2010) (same); Buchanan v. Maine, 469 F.3d 158, 170–77 (1st Cir. 2006)
(explaining that development of factual record may actually be necessary in
some cases and resolving issue based on summary judgment record); Kiman v.
N.H. Dep’t of Corr., 451 F.3d 274, 282–91 (1st Cir. 2006) (considering record).17
       Under that test, we will first consider whether Wells offers sufficient
evidence to create an issue of material fact on his Title II claims. To succeed on
a claim under Title II of the ADA, a plaintiff must prove: “(1) that he has a
qualifying disability; (2) that he is being denied the benefits of services,
programs, or activities for which the public entity is responsible, or is otherwise
discriminated against by the public entity; and (3) that such discrimination is


       17
          See also Georgia, 546 U.S. at 160 (Stevens, J. concurring) (noting that remand in
that decision “wisely permit[ted] the parties . . . to create a factual record that will inform [the
Eleventh Amendment question].”).

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by reason of his disability.” Hale, 642 F.3d at 499.18 To recover monetary
damages, a plaintiff must prove that the discrimination was intentional.
Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir. 2002). The relevant
regulations implementing the ADA were amended in September 2010. 75 Fed.
Reg. 56,164 (Sept. 15, 2010). The amendments did not become effective until
March 15, 2011, however, and they do not apply retroactively to any of Wells’s
claims for compensatory relief. See Castellanos-Contreras v. Decatur Hotels,
LLC, 622 F.3d 393, 401 (5th Cir. 2011) (stating that “congressional enactments
and administrative rules will not be construed to have retroactive effect unless
their language requires this result” (quotation marks omitted)); Sierra Med. Ctr.
v. Sullivan, 902 F.2d 388, 392 (5th Cir. 1990) (“Generally, courts will not apply
regulations retroactively unless their language so requires.”).
       The version of the regulation in effect in 2007 required that public entities
“furnish appropriate auxiliary aids and services where necessary to afford an
individual with a disability an equal opportunity to participate in, and enjoy the
benefits of a service . . . conducted by a public entity.” 28 C.F.R. § 35.160(b)(1)
(2007). When “determining what types of auxiliary aid and service is necessary,
[the] public entity shall give primary consideration to the requests of the
individual with disabilities.” 28 C.F.R. § 35.160(b)(2) (2007). Additionally,
under the version of the ADA in effect at the time Wells sued, “auxiliary aids and
services” were defined as including “qualified readers, taped texts, or other




       18
          Title II provides that “[s]ubject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132; Pa. Dep’t of Corr. v. Yeskey,
524 U.S. 206, 209–10 (1998) (applying this Section to state prison inmates).

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                                       No. 10-20648

effective methods of making visually delivered materials available to individuals
with visual impairments.” 42 U.S.C. § 12102(1)(B) (2007).19 20
       The first element of a Title II claim, a qualifying disability, is not disputed.
Thus, we will proceed to determine if Wells raises an issue of material fact on
the second element of his claim—whether he was “denied the benefits of services,
programs, or activities” of the Estelle Unit. First, Wells argues that he was
denied the benefits of the law library because he was not provided the
accommodation he ultimately requested—a computer with screen reading
software, as well as Braille or audio versions of legal resources and Westlaw or
Lexis Nexis access.
       The record indicates that Wells was provided same-session library visits
with an inmate of his choosing who would read to him and otherwise assist him
in preparing filings. Additionally, the law library provided Wells a list of other
prisoners who were available to assist him. Thus, the record shows that the law
library offered Wells a qualified reader, which is listed in the ADA as a
permissible auxiliary aid or service.21 Further, the record shows that Hoke


       19
          The implementing regulations similarly defined “auxiliary aids and services” as
including, “[q]ualified readers, taped texts, audio recordings, Brailled materials, large print
materials, or other effective methods of making visually delivered materials available to
individuals with visual impairments[.]” 28 C.F.R. § 35.104 (2007).
       20
         Wells filed his lawsuit prior to the passage of the Americans with Disabilities Act
Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553 (2008), and any of its
amendments do not apply retroactively to the claims for compensatory relief. See EEOC v.
Agro Distrib., LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009).
       21
          The term qualified reader was not defined in the regulations in effect at the time
Wells sued, 28 C.F.R. § 35.104 (2007), although the term has since been defined as “a person
who is able to read effectively, accurately, and impartially using any necessary specialized
vocabulary,” 28 C.F.R. § 35.104 (2011). Although this new definition would not apply
retroactively, the commentary to the regulations indicates that the amendment is not intended
to lower the “qualified reader” standard. 75 Fed. Reg. 56,164, 56,191; 28 C.F.R. Pt. 35, App.
A (2011). Wells does not offer any evidence showing that the prisoners available to assist him
were not capable of reading “effectively, accurately, and impartially using any necessary
specialized vocabulary.” Given that the readers offered by the Estelle Unit meet the new

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                                     No. 10-20648

attempted to locate Braille and audio versions of legal resources, but found that
these resources are not available.
      Although the law library did not provide Wells his requested
accommodations, the Defendants-Appellees demonstrate that the existing
accommodations were more than sufficient to give Wells effective and
meaningful access to the law library. See 28 C.F.R. Pt. 35, App. A (2007) (noting
that although deference should be given to the auxiliary aid requested, it need
not honor such request if it “can demonstrate that another effective means of
communication exists”); Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1082 (11th
Cir. 2007) (same); Chisholm v. McManimon, 275 F.3d 315, 326 n.10 (3d Cir.
2001) (same); see also Tucker v. Tennessee, 539 F.3d 526, 533 (6th Cir. 2008)
(stating that accommodation is not a violation of ADA, even if “not ideal,” so long
as it is reasonable and effective); Burkhart v. Wash. Metro. Area Transit Auth.,
112 F.3d 1207, 1213 (D.C. Cir. 1997) (stating that although consideration should
be given to the individual’s choice, “[n]othing in the ADA itself or its
implementing regulations dictates that a disabled individual must be provided
with the type of auxiliary aid or service he requests” and that deference to the
requests is “by no means required”); Petersen v. Hastings Pub. Schs., 31 F.3d
705, 708–09 (8th Cir. 1994) (stating auxiliary aids need not be those chosen by
individual if they are effective). Indeed, similar accommodations have been
found sufficient in prisons in the past. See Mason v. Corr. Med. Servs., Inc., 559
F.3d 880, 887–88 (8th Cir. 2009) (holding that similar accommodations for a
blind inmate to use law library did not violate the ADA).
      Additionally, our conclusion that the provided auxiliary aids and services
are sufficient is informed by the context of this suit—a correctional facility—and
we accord the officials at the Estelle Unit deference in their determination of an


standard, they would also meet the old one.


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                                       No. 10-20648

appropriate accommodation. See Oliver v. Scott, 276 F.3d 736, 745 (5th Cir.
2002); Elliott v. Lynn, 38 F.3d 188, 190–91 (5th Cir. 1994).                We, therefore,
conclude that Wells fails to offer evidence creating an issue of fact on his Title
II claim as it applies to the law library.
       Second, Wells argues that he was unable to effectively write and receive
mail due to his disability. Wells requested that the Adaptive Resources Clinic
provide JAWS software so he could read and write letters independently and
privately. Again, the Defendants-Appellees offer evidence showing that the
existing resources were effective, and Wells offers no evidence indicating that
the existing resources are inadequate or did not meet his needs. The record also
shows that Wells failed to take advantage of those resources, and it is not even
clear that JAWS software, his requested accommodation, could help him read
mail. Thus, Wells’s claim under Title II for access to the mail also fails.
       Because we find that Wells has failed to raise an issue of material fact on
his claims under Title II of the ADA, we hold that the state is entitled to
immunity and we conclude that the claims for damages were properly
dismissed.22 Additionally, Wells brings claims for injunctive and declaratory
relief under Title II. As we noted, the relevant regulations were amended in
September 2010, and the new amendments became effective on March 15, 2011.
75 Fed. Reg. 56,164 (Sept. 15, 2010). The district court ruled prior to the
publication of the amendment, and it did not consider their effect. No argument
is made on appeal related to whether the new amendments apply to Wells’s
claims for prospective relief, or whether the amendments somehow change the
substantive requirements of Title II. Because the amendments were published



       22
         Wells also brought claims against state officers in their individual capacity and for
punitive damages under the ADA. These claims were dismissed by the district court, and
Wells does not appeal that ruling on appeal. Thus, these claims are waived. See Geiger, 404
F.3d at 373 n.6.

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                                   No. 10-20648

prior to parties submitting briefing, Wells could have addressed their effect, but
did not, and he thus waives any argument he might have made based on them.
See Geiger, 404 F.3d at 373 n.6; see also United States v. Griffith, 522 F.3d 607,
610 (5th Cir. 2008) (“It is a well worn principle that the failure to raise an issue
on appeal constitutes waiver of that argument.”). Because we already found that
Wells fails to submit any evidence showing a violation of Title II as it applies to
his claims for damages, and because Wells waives any argument that his claims
for prospective relief should be treated differently due to the amendments, we
find no error in the district court’s dismissal of the claims for prospective relief.
We make no determination with respect to what effect, if any, these regulations
would have on claims similar to Wells’s where the issue is properly raised.
                                IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the dismissal of Wells’s claims
brought under Section 1983 and Title II of the ADA and we also DENY his
motion for appointment of counsel.




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