                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2127
                         ___________________________

                                    Robert Dinkins

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

  Correctional Medical Services; John Does, Medical Doctors; State of Missouri;
       Missouri Department of Corrections; Phillip Lange; Morgan Logan

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                           Submitted: December 10, 2013
                             Filed: February 25, 2014
                                    [Published]
                                  ____________

Before MURPHY, GRUENDER, and BENTON, Circuit Judges.
                         ____________

PER CURIAM.

       Missouri inmate Robert O. Dinkins appeals the district court’s dismissal of his
action. This court affirms in part, reverses in part, and remands for further
proceedings consistent with this opinion.
       Dinkins sued the State of Missouri, the Missouri Department of Corrections
(MDOC), Correctional Medical Services (CMS), unnamed medical doctors, and
Jefferson City Correctional Center officers Philip Lange and Morris Logan in their
official and individual capacities. Dinkins asserted that defendants violated section
504 of the Rehabilitation Act of 1973 (RA) and Title II of the Americans with
Disabilities Act (ADA). Liberally construing the complaint, Dinkins alleged that in
late 2004 he started experiencing blackouts, weakness and difficulty walking. Despite
his written medical requests, MDOC and CMS did not properly examine him for six
months. Before he was eventually diagnosed with pernicious anemia, CMS and
MDOC failed to use medication to slow the disease. Dinkins was paralyzed from the
waist down by April 2006. His condition continued to deteriorate as of 2010. He
was denied assignment to the Transitional Care Unit. He was placed in administrative
segregation without a wheelchair or handicap access, forcing him to crawl and to eat
meals on the floor. He requested other accommodations that were not granted by
defendants–such as someone to push his wheelchair, a handicapped-accessible cell,
medically prescribed physical therapy, preventative treatment, examination by an
outside specialist, wheelchair accessories, and exemption from activities requiring
exposure to cold. The lack of accommodations caused him to miss meals, fall several
times in his cell, be placed on strip-cell status, and be unable to move around his cell
without hitting the toilet or walls.

      This court affirms the dismissal of the individual-capacity claims against Lange
and Logan. They cannot be sued in their individual capacities under the ADA or the
RA. See Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.
2001) (RA); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (en
banc) (ADA). This court also affirms the dismissal of the claims against the medical
doctors and CMS, as those claims were based on medical treatment
decisions–including not properly diagnosing and treating Dinkins’s pernicious
anemia–which cannot form the basis of a claim under the RA or the ADA. See Burger
v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (per curiam).

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       Some of Dinkins’s claims, however, do not appear to be based on medical
treatment decisions. His alleged denials of meals and adequate housing by reason of
his disability can form the basis for viable ADA and RA claims. See Pa. Dep’t of
Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (recreational activities, medical services,
and educational and vocational programs at state prisons are benefits within the
meaning of ADA); Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 672 (7th Cir. 2012)
(meals and showers made available to inmates are programs or activities under the
RA). His allegation that he was denied physical therapy could form the basis for a
viable claim if the therapy was medically prescribed. Thus, this court reverses the
dismissal of claims for injunctive relief against Lange, Logan, the State of Missouri
and MDOC that were not based on medical treatment decisions. See Hafer v. Melo,
502 U.S. 21, 25 (1991) (official-capacity claims are just another way of pleading the
action against the State); Randolph v. Rogers, 253 F.3d 342, 348 (8th Cir. 2001)
(permitting claims for prospective injunctive relief against a state official sued in
official capacity under ADA and RA); 42 U.S.C. § 12202 (ADA statute abrogating
state sovereign immunity provides that “remedies (including remedies both at law and
in equity) are available”); 42 U.S.C. § 2000d-7(a)(2) (same for RA).1

      As to the request for damages, the MDOC waives sovereign immunity under
the RA by accepting federal funds. See Jim C. v. United States, 235 F.3d 1079, 1080
(8th Cir. 2000) (en banc). Title II of the ADA abrogates both the State of Missouri’s
and the MDOC’s immunity for conduct that actually violates the Fourteenth


      1
         Because the State of Missouri and the MDOC failed to argue whether the
ADA’s and the RA’s abrogation of state sovereign immunity in a lawsuit for
injunctive relief is constitutional under the Eleventh Amendment, this court does not
address the issue. See Klingler v. Dir., Dep’t of Rev., 433 F.3d 1078, 1080 (8th Cir.
2006) (permitting injunctive relief against the state of Missouri while explaining that
“Missouri, having abandoned its constitutional arguments, advances only one defense
to plaintiffs’ claims”).


                                         -3-
Amendment. See United States v. Georgia, 546 U.S. 151, 159 (2006) (Fourteenth
Amendment Due Process Clause incorporates Eighth Amendment guarantee against
cruel and unusual punishment). The damages claims against the State of Missouri and
the MDOC under the ADA, and against the MDOC under the RA are remanded also
because some of defendants’ alleged behavior could violate the Eighth and Fourteenth
Amendments. See, e.g., Simmons v. Cook, 154 F.3d 805, 807-09 (8th Cir. 1998)
(upholding damages award for Eighth Amendment violation where paraplegic inmates
missed four consecutive meals because their wheelchairs could not maneuver to door
where food tray was placed, and were unable to eliminate bodily waste because they
were denied necessary assistance); LaFaut v. Smith, 834 F.2d 389, 392-94 (4th Cir.
1987) (failure to ensure that mobility-impaired inmate had accessible toilet facilities
and physical therapy violated Eighth Amendment).

       This court affirms the district court’s dismissal of the unnamed medical doctors
and CMS, and the individual-capacity claims against Lange and Logan; reverses the
dismissal of the injunctive claims against the state defendants that were not based on
medical treatment decisions; reverses the dismissal of damages claims against the
State of Missouri and the MDOC; and remands for further proceedings consistent
with this opinion. Dinkins’s appellate motions are denied.
                        ______________________________




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