       BLD-406                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-1838
                                      ____________

                                  BRIAN D. BAXTER,
                                              Appellant

                                             v.

 PENNSYLVANIA DEPARTMENT OF CORRECTIONS; BRIAN THOMPSON, SCI
   Superintendent; MICHAEL MALMISTER, SCI Mercer, Deputy Superintendent;
 MR. GIORDANO, SCI Auto Mechanics Instructor; KIMBERLY BOAL, CHCA, SCI
       Mercer; JAMES P. OPPMAN, SCI Principal; JOHN/JANE DOE, Chief
                Secretary’s Office of Inmate Grievances & Appeals
                     __________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civ. No. 3-14-cv-00126)
                              District Judge: Kim R. Gibson
                       __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   September 9, 2016

              Before: KRAUSE, SCIRICA and FUENTES, Circuit Judges

                           (Opinion filed: September 30, 2016)

                                      ____________

                                       OPINION*
                                      ____________




*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute a binding precedent.
PER CURIAM

       Brian Baxter appeals from an order of the District Court awarding summary

judgment to the defendants. For the reasons that follow, we will summarily affirm.

       Baxter, an inmate at the State Correctional Institution in Mercer, Pennsylvania

(“SCI-Mercer”), filed a civil rights complaint, 42 U.S.C. § 1983, in the United States

District Court for the Western District of Pennsylvania against state Department of

Corrections (“DOC”) employees and officials. In his amended complaint he alleged a

violation of his rights under Title II of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a), and sought money

damages. The essential facts are not in dispute. Baxter was removed from an auto

mechanics vocational program at the prison due to previously imposed medical

restrictions. Baxter has been under a physician’s care for the treatment of chronic back

pain caused by serious injuries he suffered while serving in the military. He requires a

cane to get around, and has bottom bunk/bottom tier status so that he does not have to use

the stairs.

       While enrolled in “Basic Auto Mechanics” at the prison, Baxter continued to seek

treatment, including pain medication, for severe back pain. His treating physician, Dr.

Scott D. Morgan, and defendant Kimberly Boal, Corrections Healthcare Administrator,

decided to remove him from the auto mechanics course because it required that he climb

two “sets” of stairs (this according to Baxter himself) to get to class. Dr. Morgan wanted

to insure compliance with the medical restriction that Baxter not climb stairs with his

cane. The Education Department apparently was unaware of the restriction when Baxter

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was admitted to the class and he evidently attended the class for two months before Dr.

Morgan discovered the unapproved staircase climbing. When Baxter grieved the matter,

stating that the class should be available in a fully accessible location or that the prison

should install an elevator, Boal, pursuant to the ADA, offered in the alternative to inquire

for him which of the other state correctional institutions offered auto trades in an

environment that did not contain a staircase. 1 Baxter declined the offer and brought this

lawsuit instead.

       The defendants moved for summary judgment on several grounds, including

incomplete exhaustion of administrative remedies and sovereign immunity, and

submitted numerous exhibits in support. Baxter also moved for summary judgment. The

Magistrate Judge filed a Report and Recommendation after reviewing the summary

judgment record, in which he concluded that the defendants were entitled to judgment as

a matter of law. The Magistrate Judge declined to hold that Baxter had failed to exhaust

his administrative remedies, and concluded in pertinent part that there was no triable

issue with respect to whether Baxter had suffered discrimination on the basis of his

disability in connection with his removal from the auto mechanics course. The

Magistrate Judge noted that, although Baxter argued that he capably attended the auto

mechanics class for two months before his enrollment was discovered by the medical

staff, such was not the case because, at the same time that he was attending class, he was

presenting at the prison infirmary for treatment of severe back pain. As to his other

argument – that he was entitled to a reasonable accommodation – the Magistrate Judge

reasoned that he received one; Boal offered to find an auto mechanics course for him at

1
 Originally, a different grievance officer advised Baxter that he could pursue other
programs and activities that were within his medical restrictions.
                                             3
another prison that would not require climbing stairs, and the ADA requires only

reasonable accommodation, not the accommodation of the plaintiff’s choice.

       Baxter filed Objections to the Report and Recommendation, asserting that the

Magistrate Judge overlooked his efforts to resolve the matter, specifically, his suggestion

that prison officials build a ramp or install an elevator, instead of suggesting that he

transfer to another institution. In an Order and Judgment entered on March 23, 2016, the

District Court rejected the Objections as meritless, adopted the Magistrate Judge’s Report

and Recommendation, and awarded summary judgment to the defendants.

       Baxter appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted

him leave to appeal in forma pauperis and advised him that the appeal was subject to

summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third

Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing. He has

instead filed a motion for appointment of counsel on appeal.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The moving party “bears the initial responsibility of informing the district court of

the basis for its motion, and identifying those portions” of the record which demonstrate

the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). If the moving party meets its burden, the nonmoving party then must present

specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1), (e)(2);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court should grant

                                               4
summary judgment where the non-movant’s evidence is merely colorable or not

significantly probative, id. at 249-50, because “[w]here the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue

for trial,’” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

       For claims brought under the ADA, the Supreme Court has held that “insofar as

Title II [of the ADA] creates a private cause of action for damages against the States for

conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state

sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in

original). Applying United States v. Georgia, we concluded that District Courts are

“required to determine in the first instance if any aspect of the [] alleged conduct forms

the basis for a Title II claim.” Bowers v. National Collegiate Athletic Ass’n, 475 F.3d

524, 553 (3d Cir. 2007) (footnote omitted). If the complaint states a claim under Title II,

the Court must next determine whether the alleged conduct also violates the Fourteenth

Amendment, and if not, whether Congress’s purported abrogation of state sovereign

immunity is nevertheless valid. Id. at 553-54. We do not reach the constitutional issue

unless and until it is decided that the plaintiff has made out a valid Title II claim. See

United States v. Georgia, 546 U.S. at 159; see also Bowers, 475 F.3d at 553.

       Under Title II of the ADA, “[n]o 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. Title II prohibiting a “public entity” from

discriminating against a qualified individual with a disability on account of that

                                              5
individual’s disability, applies to inmates in state prisons. Pennsylvania Dep’t of

Corrections v. Yeskey, 524 U.S. 206 (1998). The protections afforded by the

Rehabilitation Act are substantially similar. See Bowers, 475 F.3d at 550. To succeed

under the Rehabilitation Act, a plaintiff must show: (1) that he has a disability; (2) that he

is otherwise qualified for the benefit that has been denied; (3) that he has been denied the

benefit solely by reason of his disability; and (4) that the benefit is part of a program or

activity receiving Federal financial assistance. See Wagner by Wagner v. Fair Ares

Geriatric Center, 49 F.3d 1002, 1009 (3d Cir. 1995).

       We conclude that summary judgment was proper in Baxter’s case on his ADA and

Rehabilitation Act claims. Baxter plainly is disabled by his chronic back problems and

the parties do not dispute that the medical restriction imposed on him with respect to

climbing stairs is warranted. 2 In addition, Baxter is qualified to take a basic auto

mechanics course. We note that Boal offered to find a basic auto mechanics class for him

at another institution, indicating her belief that he was otherwise qualified to take such a

class. 3 Last, it is undisputed that Baxter was excluded from participation in the SCI-

Mercer auto mechanics course by Boal and Dr. Morgan on account of his ambulatory

difficulties, that is, his inability to safely negotiate stairs.

       Thus, the defendants are entitled to summary judgment only if it is undisputed that

they provided Baxter with a reasonable accommodation for his disability by offering to

2
 A disability is “a physical or mental impairment that substantially limits one or more
major life activities of [an] individual.” 42 U.S.C. § 12102(1)(A). “[W]alking” is a
“major life activity” for the purposes of the statute, id. at § 12102(2)(A).
3
  A qualified individual with a disability is “an individual with a disability who, with or
without reasonable modifications ... meets the essential eligibility requirements for the
receipt of services or the participation in programs or activities provided by a public
entity.” 42 U.S.C. § 12131.
                                               6
find him an auto mechanics course at another prison that would not require him to climb

stairs. See Bowers, 475 F.3d at 553. See also Henrietta D. v. Bloomberg, 331 F.3d 261,

277 (2d Cir. 2003) (“Quite simply, the demonstration that a disability makes it difficult

for a plaintiff to access benefits that are available to both those with and without

disabilities is sufficient to sustain a claim for a reasonable accommodation.”). We agree

with the District Court that the defendants made the required showing. They

demonstrated without contradiction that they were willing to find Baxter a suitable auto

mechanics program at another institution. A reasonable accommodation must be

effective, see U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002), and an auto

mechanics course at another prison that would not require Baxter to climb stairs would

indeed be effective. Perhaps Boal would not have been able to find such a program, in

which case the defendants might have had to offer Baxter a different reasonable

accommodation -- moving his class to a ground floor, for example -- but Baxter said no

to this offer and filed this civil action instead and thus a reasonable juror could not

conclude that his inability to access “programs, services and activities” stemmed from the

defendants’ refusal to provide him with a reasonable accommodation. See Mengine v.

Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997) (holding summary judgment proper where

defendant makes good faith effort to engage in interactive process, communicate with

plaintiff, and accommodate his disability). Cf. Colwell v. Rite Aid Corp., 602 F.3d 495,

507 (3d Cir. 2010) (employer cannot be faulted if employee’s actions or omissions during

interactive process cause process’s failure).




                                                7
      For the foregoing reasons, we will summarily affirm the orders of the District

Court granting summary judgment to the defendants and denying summary judgment to

Baxter. Baxter’s motion for appointment of counsel is denied as moot.




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