                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


MICHAEL J. ROARY,                      
                Plaintiff-Appellant,
                 v.
FRANKLIN FREEMAN, Secretary,
Department of Corrections; LYNN
PHILLIPS, Director, Division of
Prisons; PHYLLIS ELLIOTT,
Developmental Disabilities
Coordinator; WILLIAM R. BARKER,
Superintendent, Sampson
Correctional; JERRY L. MOORE,
Program Supervisor, Sampson                       No. 97-7210
Correctional,
               Defendants-Appellees,
                and
LARRY E. DAVIS; C. E. HILL; TERESA
S. ALEXANDER; DOCTOR DAVENPORT,
                       Defendants,
                and
UNITED STATES OF AMERICA,
                        Intervenor.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                Malcolm J. Howard, District Judge.
                         (CA-94-449-5-H)

                      Argued: December 7, 2000

                      Decided: February 14, 2001

  Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
2                        ROARY v. FREEMAN
Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Kristin Davis Parks, NORTH CAROLINA PRISONER
LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant.
Seth Michael Galanter, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Intervenor. Buren Riley Shields, III,
Assistant Attorney General, Raleigh, North Carolina, for Appellees.
ON BRIEF: Bill Lann Lee, Assistant Attorney General, Jessica Dun-
say Silver, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Intervenor. Michael F. Easley, North Carolina
Attorney General, Raleigh, North Carolina, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

                                 I.

   Michael Roary challenges the United States District Court for the
Eastern District of North Carolina’s dismissal of his claims against
North Carolina state prison officials under Title II of the Americans
with Disabilities Act (ADA), 42 U.S.C.A. §§ 12131 et seq., and Sec-
tion 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701 et
seq., pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
following reasons, we vacate the district court’s judgment and remand
for further proceedings.

                                 II.

  On September 17, 1996, the district court dismissed Roary’s claims
under the ADA and the Rehabilitation Act pursuant to Rule 12(b)(6).
                           ROARY v. FREEMAN                             3
In dismissing these claims, the district court relied upon Pierce v.
King, 918 F. Supp. 932 (E.D.N.C. 1996), judgment vacated by 525
U.S. 802 (1998), for the proposition that, as a statutory matter, the
ADA and the Rehabilitation Act do not apply to inmates in state pris-
ons. Following dismissal of each of his claims, Roary filed a timely
Notice of Appeal to this Court.

   On October 24, 1997, we held this case in abeyance pending reso-
lution of Amos v. Maryland Dep’t of Public Safety, 126 F.3d 589 (4th
Cir. 1997), vacated and remanded by 524 U.S. 935 (1998). The
United States Supreme Court vacated Amos "for further consideration
in light of Pennsylvania Department of Corrections v. Yeskey, 524
U.S. 206 (1998)," Amos, 524 U.S. at 935, which held as a statutory
matter that the ADA applies in the state prison context, see Yeskey,
524 U.S. at 213. The Yeskey Court expressly reserved the questions
of whether the ADA is a valid exercise of Congress’s powers pursu-
ant to the Commerce Clause and Section 5 of the Fourteenth Amend-
ment. Yeskey, 524 U.S. at 212. Prior to argument before this Court
sitting en banc, Amos was settled by agreement of the parties, and this
case was returned to the argument calendar.

   The State officials in this case have now raised the issue of Elev-
enth Amendment immunity, a defense that was not raised in the dis-
trict court but may be raised for the first time on appeal from a district
court’s dismissal of an action under Federal Rule of Civil Procedure
12(b)(6). Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 226 (4th Cir.
1997). The parties, however, have made various arguments related to
waiver of Eleventh Amendment immunity and the scope of Con-
gress’s power under the Spending Clause, U.S. Const. art. I, § 8, cl.
1, which are difficult to evaluate in the absence of any factual record
detailing the nature, extent, and purposes of federal financial assis-
tance received by the North Carolina prison system. For example,
Roary argues that the Rehabilitation Act extracts a valid waiver of
Eleventh Amendment immunity, while the State officials argue that
the extraction of such a waiver would exceed Congress’s powers
under the Spending Clause. See, e.g., South Dakota v. Dole, 483 U.S.
203, 207 (1987) (suggesting various limits on the Spending Clause
power to place conditions on the receipt of federal funds).

  With respect to the issue of abrogation of Eleventh Amendment
immunity under the ADA, the Supreme Court has heard oral argu-
4                        ROARY v. FREEMAN
ment in Garrett v. University of Alabama, 193 F.3d 1214 (11th Cir.),
cert. granted, 120 S. Ct. 1669 (2000), but has not yet decided that
case, which involves the issue of whether the ADA serves as the basis
for a valid abrogation of the states’ Eleventh Amendment immunity.
Roary’s motion seeking voluntary dismissal of his ADA claims in
order to expedite this appeal was deferred until oral argument;
because we must remand to the district court for further proceedings
regardless of the status of Roary’s ADA claims, this motion now
serves no purpose and is denied. If Roary wishes to abandon his ADA
claims, he may do so in the district court proceedings.

   Because the basis for the district court’s decision has been called
into question by Yeskey and the decision on which the district court
relied, Pierce, has been vacated by the Supreme Court, we vacate the
district court’s order dismissing Roary’s ADA and Rehabilitation Act
claims on statutory grounds. We remand to permit the district court
to consider the State officials’ Eleventh Amendment defense and the
related waiver, abrogation, and Spending Clause issues, as well as any
other arguments that may be appropriately made by the parties, in a
context permitting the development of an appropriate evidentiary
record.

                                      VACATED AND REMANDED
