In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3308

John Walker,

Plaintiff-Appellant,

v.

Donald N. Snyder Jr., Director, Illinois Department
of Corrections, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 469--Blanche M. Manning, Judge.


Submitted February 18, 2000--Decided May 16, 2000



  Before Bauer, Easterbrook, and Ripple, Circuit Judges.

  Easterbrook, Circuit Judge. John Walker has no
vision in his right eye and poor vision in his
left--though with corrective lenses, bright
light, and concentration he can read. Since 1993
Walker has been imprisoned by Illinois for
residential burglary, and he wants the state to
accommodate his condition in several ways: books
on tape, a brightly lit cell to himself (so that
he can read better and does not have to worry
about a cellmate put out of sorts by having to
tolerate his disability), and transfer to a less
restrictive prison. According to Walker, Title II
of the Americans with Disabilities Act, 42 U.S.C.
sec.sec. 12131-65, requires Illinois to provide
these accommodations. His suit initially included
arguments under the eighth amendment and 42
U.S.C. sec.1983, but these were dismissed by the
district court and are not developed in Walker’s
appellate brief. We therefore treat Walker’s
claim as arising wholly under the ADA.

  At the time Walker filed suit, Illinois was not
providing books on tape. The district court
concluded that this violated the Act but held
that the defendants need not pay damages because,
until Pennsylvania Department of Corrections v.
Yeskey, 524 U.S. 206 (1998), and Crawford v.
Indiana Department of Corrections, 115 F.3d 481
(7th Cir. 1997), application of the ADA to
prisoners was open to question. Consequently, the
district court held, the defendants are entitled
to qualified immunity. Because prison officials
now provide Walker with audio books, he is not
entitled to prospective relief on that subject,
the court concluded. Walker continues to seek not
only a better placement within the prison system
but also free equipment to play the books.
Illinois loaned Walker a tape player, but it
required him to promise to reimburse the state if
either the tapes or the player should be lost or
damaged. Walker believes that this violates the
ADA, but the district judge disagreed. According
to the court, Walker’s remaining claims are
legally insufficient, so the court dismissed the
complaint for failure to state a claim on which
relief may be granted. 1998 U.S. Dist. Lexis 9128
(N.D. Ill. June 9, 1998).

  The district court’s conclusion that legal
uncertainty prevents an award of damages for a
violation of the ADA is incorrect. Although
several decisions have held or assumed that
individual defendants are entitled to qualified
immunity in ADA litigation, see, e.g., Hall v.
Thomas, 190 F.3d 693, 696-97 (5th Cir. 1999); Key
v. Grayson, 179 F.3d 996, 999-1000 (6th Cir.
1999), none of these opinions considered whether
natural persons are proper defendants in the
first place. (What is more, none of these
decisions discussed whether it is sound to extend
immunity principles from litigation under 42
U.S.C. sec.1983 to suits under more recent, and
more detailed, laws. We, too, can avoid
addressing that question.)

  Qualified immunity is a personal defense, which
does not apply to institutional defendants in
suits under federal statutes. Owen v.
Independence, 445 U.S. 622 (1980). In suits under
Title II of the ADA, as under many other federal
anti-discrimination laws, such as Title VII and
the ADEA, the proper defendant usually is an
organization rather than a natural person. Under
Title II of the ADA, which forbids discrimination
by "any public entity", 42 U.S.C. sec.12131, the
proper defendant is that "entity." Although
Walker did not name the state’s Department of
Corrections as a defendant, he did name its
director, who stands in for the agency he
manages. The director and all of the other
defendants must have been sued in their official
capacities--that is, as proxies for the state,
Will v. Michigan Department of State Police, 491
U.S. 58 (1989); Kentucky v. Graham, 473 U.S. 159
(1985)--rather than their individual capacities,
because the ADA addresses its rules to employers,
places of public accommodation, and other
organizations, not to the employees or managers
of these organizations. Silk v. Chicago, 194 F.3d
788, 797 n.5 (7th Cir. 1999), holds that there is
no personal liability under Title I of the ADA.
Although we have not previously extended this
conclusion to Title II, see Bryant v. Madigan, 84
F.3d 246, 249 (7th Cir. 1996), the relevant text
of the ADA does not draw any distinction for the
purpose of identifying the appropriate
defendants. Thus we agree with Alsbrook v.
Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999)
(en banc), that as a rule there is no personal
liability under Title II either. (We have
therefore substituted Donald Snyder, the current
director, for his predecessor Odie Washington.
See Fed. R. App. P. 43(c)(2).) Perhaps some
sections of the ADA other than the ones involved
here allow personal liability; it is a complex
statute, with several titles, and it would be
foolish for a court to declare a priori that none
of its many rules is exceptional. In the main,
however, and in this case, institutional
liability is exclusive, so qualified immunity is
unavailable.

  Because defendants have been sued and could be
liable only in their official capacities, we must
consider their argument that the eleventh
amendment closes the doors of the federal courts-
-not only to monetary awards but also to
prospective relief, for Ex parte Young, 209 U.S.
123 (1908), does not apply in an official-
capacity suit. Cf. Seminole Tribe v. Florida, 517
U.S. 44, 73-76 (1996). Although the commerce
clause gives Congress ample authority to enact
the ADA, legislation based only on the commerce
clause does not subject states to private
litigation in federal court. Legislation based in
sec.5 of the fourteenth amendment, by contrast,
supports private litigation. Fitzpatrick v.
Bitzer, 427 U.S. 445 (1976).

  In the wake of Kimel v. Florida Board of
Regents, 120 S. Ct. 631 (2000), we have held that
sec.5 does not afford Congress the authority to
enact Title I of the ADA. Erickson v. Board of
Governors for Northeastern Illinois University,
207 F.3d 945 (7th Cir. 2000); Stevens v. Illinois
Department of Transportation, No. 98-3550 (7th
Cir. Apr. 11, 2000). Our opinion in Erickson
reserved questions concerning other titles of the
ADA, which potentially have different scope. But
Walker’s claim falls squarely within both
Erickson’s and Stevens’s reasoning, for those
cases concluded that Title I of the ADA cannot be
based on sec.5 to the extent that it requires
accommodation of disabilities (rather than simply
requiring the state to disregard disabilities)
and to the extent that it forbids a state to take
account of disabilities that are rationally
related to permissible objects of public action.
Walker wants Illinois to accommodate rather than
ignore his disability. He does not contend (and
could not reasonably contend) that it is
irrational for a state to ask for repayment if
loaned property is lost or damaged, or to put a
prisoner in a two-person cell. Walker’s claim
therefore must be pursued in state court.

  The judgment of the district court is vacated,
and the case is remanded with instructions to
dismiss the ADA claim, without prejudice, for want
of jurisdiction.
