                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-1897
                                  ___________

Ronnie Randolph,                        *
                                        *
             Appellee,                  *
                                        *
       v.                               *
                                        *
Bill Rodgers; Don Roper; Paul Delo;     * Appeal from the United States
Michael Bowersox; Dora Schriro,         * District Court for the
Individually and in their official      * Eastern District of Missouri.
capacities,                             *
                                        *
             Appellants,                *
                                        *
Missouri Department of Corrections,     *
                                        *
             Defendant.                 *
                                   ___________

                            Submitted: January 12, 2001
                                Filed: June 12, 2001
                                 ___________

Before RICHARD S. ARNOLD, FAGG, and BOWMAN, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

      Ronnie Randolph, a deaf inmate at the Jefferson City Correctional Center
(JCCC), brought suit against the Missouri Department of Corrections (MDOC) and five
prison officials for failing to provide him with a sign-language interpreter during
disciplinary proceedings, the administration of medical care, and certain other prison
proceedings while he was incarcerated at the Potosi Correctional Center (PCC) from
1989 to 1996. The Eleventh Amendment shields the State and the MDOC from many
of Randolph's claims; this appeal considers the extent to which Randolph can avoid the
bar of Eleventh Amendment immunity and obtain injunctive relief under Ex parte
Young, 209 U.S. 123 (1908) (requiring state officials to comply with federal law).

                                          I.

        Randolph sued the MDOC and the named prison officials in their individual and
personal capacities. He raised claims under the Americans with Disabilities Act, 42
U.S.C. §§ 12101-12213 (1994 & Supp. II 1996); § 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 (1994); 42 U.S.C. § 1983 (1994) and Missouri law.1 The
District Court granted summary judgment for the MDOC and the prison officials on the
due process and equal protection claims that Randolph asserted under § 1983, and for
the prison officials in their individual capacities on the ADA and Rehabilitation Act
claims.2 Randolph v. Rodgers, 980 F. Supp. 1051, 1057-58, 1060-61 (E.D. Mo. 1997)
(subsequent history omitted). The court granted summary judgment for Randolph as
to the injunctive relief sought against the MDOC on the ADA, Rehabilitation Act, and
state-law claims, id. at 1061-63, and reserved for trial Randolph's ADA and
Rehabilitation Act claims seeking money damages against the MDOC, and the state-

      1
        This interlocutory appeal is concerned with questions of law. For a more
detailed factual background see Randolph v. Rodgers, 980 F. Supp. 1051, 1054-57
(E.D. Mo. 1997) (subsequent history omitted).
      2
        The court did not separately discuss the claims against the named prison
officials in their individual and official capacities. Instead, the court apparently
dismissed the ADA and Rehabilitation Act claims against the prison officials in their
entirety. The District Court's subsequent March 2, 2000, Memorandum and Order,
however, clarified that Randolph may still maintain his ADA and Rehabilitation Act
claims for injunctive relief against the prison officials in their official capacities.
                                          -2-
law claim seeking damages against the named prison officials. The District Court also
issued a permanent injunction that mandated sign-language interpreter services for
Randolph during various prison proceedings and activities. Id. at 1064. The State
brought an interlocutory appeal. We reversed the District Court's order granting
Randolph's motion for summary judgment against the MDOC on the ADA,
Rehabilitation Act, and state-law claims; vacated the injunction; and remanded the case
to the District Court for further proceedings. Randolph v. Rodgers, 170 F.3d 850, 860
(8th Cir. 1999).

       Upon remand, the State moved to dismiss, arguing that Randolph's claims are
prohibited by the Eleventh Amendment.3 The District Court granted the State's motion
in part, and dismissed the ADA and Rehabilitation Act claims against the MDOC and
the state-law claims for injunctive relief against the prison officials in their official
capacities. The District Court allowed Randolph's ADA and Rehabilitation Act claims
"for prospective injunctive relief . . . against the state official defendants in their official
capacities" to proceed under Ex parte Young. Mem. and Order at 4. The District
Court also allowed Randolph to maintain his state-law claims for money damages
against the state officials in their individual capacities.

       The State brings this interlocutory appeal arguing that the District Court erred
in applying Ex parte Young and that the District Court should have dismissed
Randolph's remaining ADA and Rehabilitation Act claims against the prison officials
in their official capacities on Eleventh Amendment immunity grounds. We affirm and
remand for further proceedings.




       3
       Missouri did not waive its Eleventh Amendment immunity by failing to raise the
defense at the outset of the proceedings. Cf. Edelman v. Jordan, 415 U.S. 651, 678
(1974) (holding that Eleventh Amendment immunity may be raised for the first time on
appeal).
                                              -3-
                                             II.

       As a preliminary matter, we note that we have jurisdiction over this interlocutory
appeal under the collateral-order doctrine. See Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 545-47 (1949); see, e.g., Murphy v. Arkansas, 127 F.3d 750, 753-54
(8th Cir. 1997) (noting that an order denying a claim of Eleventh Amendment immunity
is properly appealable as a collateral order). We review de novo a district court's
disposition of a motion to dismiss. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.
1996), cert. denied, 519 U.S. 1149 (1997).

                                             A.

        The State argues that the District Court erred in permitting Randolph's ADA
claims to proceed against the individual prison officials under Ex parte Young.4 Ex
parte Young and its progeny teach that a private party may seek prospective injunctive
relief in federal court against a state official, even if the state is otherwise protected by
Eleventh Amendment immunity. See, e.g., Green v. Mansour, 474 U.S. 64, 68 (1985).

      As a threshold jurisdictional matter, we hold that the Ex parte Young ADA and
Rehabilitation Act claims are moot with respect to four of the five prison officials.
These four officials—Rodgers, Roper, Delo, and Bowersox—were employed at PCC

       4
        Randolph concedes the District Court correctly granted immunity to the MDOC
from Randolph's ADA claim. We held in Alsbrook v. City of Maumelle, 184 F.3d 999,
1010 (8th Cir. 1999) (en banc), cert. granted, 528 U.S. 1146, cert. dismissed, 529 U.S.
1001 (2000), "that the extension of Title II of the ADA to the states was not a proper
exercise of Congress's power under Section 5 of the Fourteenth Amendment.
Consequently, there is no valid abrogation of [the State's] Eleventh Amendment
immunity from private suit in federal court and the district court lacked subject matter
jurisdiction over the ADA claim." Cf. Bd. of Trs. of Univ. of Ala. v. Garrett, 121 S.
Ct. 955 (2001) (holding that suits in federal court by state employees seeking money
damages for violations of Title I of ADA are barred by Eleventh Amendment).
                                             -4-
while Randolph was an inmate at that facility. All were involved to varying degrees
with decisions about whether to provide Randolph a sign-language interpreter. In
1996, the MDOC transferred Randolph from PCC to JCCC, where he is currently
incarcerated. Rodgers, Roper, Delo, and Bowersox remained employed at PCC after
the transfer.5

       As we noted earlier, Ex parte Young permits only prospective injunctive relief
against state officials. With Randolph currently imprisoned at JCCC and Rodgers,
Roper, Delo, and Bowersox employed at PCC, any prospective injunctive relief based
upon the ADA and Rehabilitation Act claims as to those four defendants will be of no
consequence to Randolph. See Beck v. Mo. State High Sch. Activities Ass'n, 18 F.3d
604, 605 (8th Cir. 1994) (per curiam) (noting that a case is moot when circumstances
change to such a degree that "a federal court can no longer grant effective relief"). The
actions required by an injunction would be impossible for those four defendants to
execute; their authority and power is limited solely to PCC, and any injunctive relief
would necessarily be directed at accessibility to hearing-impaired services at JCCC.
See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (concluding that claim for
injunctive relief against warden was moot because prisoner was transferred to another
prison).6 Dora Schriro, however, has authority over the entire MDOC and an


      5
    The fifth official, Dora Schriro, was, and continues to be, the director of the
MDOC.
      6
        Our previous opinion in this case addressed the mootness issue in part and
concluded that the claims for equitable relief were not moot because the MDOC had
control over both the PCC and JCCC and an injunction would compel the MDOC to
provide hearing-impaired services for Randolph no matter where in the MDOC system
he was incarcerated. Randolph, 170 F.3d at 856-57. We agree with the limited
mootness holding of Randolph, and we take the next logical step: where the MDOC is
protected by Eleventh Amendment immunity and the sued prison officials have no
control or authority over an injunction requiring services in another prison, then the Ex
parte Young ADA and Rehabilitation Act claims against those defendants are moot.
                                           -5-
injunction against her would have effect no matter where in the MDOC system
Randolph is incarcerated. The Ex parte Young ADA and Rehabilitation Act claims are
moot with respect to Rodgers, Roper, Delo, and Bowersox but may proceed against
Schriro.7

       The State next contends that the existence of a detailed remedial scheme in the
ADA precludes Randolph from relying on Ex parte Young. The State relies upon
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 74 (1996), wherein the Court held
that "where Congress has prescribed a detailed remedial scheme for the enforcement
against a State of a statutorily created right, a court should hesitate before casting aside
those limitations and permitting an action against a state officer based upon Ex parte
Young." The State then points to our holding in Alsbrook v. City of Maumelle, 184
F.3d 999, 1011 (8th Cir. 1999) (en banc), cert. granted, 528 U.S. 1146, cert. dismissed,
529 U.S. 1001 (2000), where we concluded that Title II of the ADA provides a detailed
remedial scheme barring a § 1983 action against state officials in their individual
capacities.

      We agree with the District Court that Randolph's Ex parte Young ADA claim is
not governed by Alsbrook's holding that Title II of the ADA contains a comprehensive
remedial scheme. The remedies available to the plaintiff in Alsbrook under Title II of
the ADA are entirely different from those available to Randolph. The enforcement
provision of Title II of the ADA, 42 U.S.C. § 12133, incorporates 29 U.S.C. § 794a
(1994), the remedies provision of the Rehabilitation Act. The appropriate remedy
under the Rehabilitation Act depends on the status of the plaintiff. Employees and
applicants for employment, such as the plaintiff in Alsbrook, are subject to the


       7
        Randolph's concern that the defendants may escape liability by continuing to
transfer him within the MDOC is not well-founded. An Ex parte Young injunction
against Schriro in her official capacity would be binding upon her successor if Schriro
were to leave her position as director of the MDOC.
                                            -6-
subsection of the ADA that tracks 28 U.S.C. § 791 and incorporates the remedies of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f) to (k). 29 U.S.C.
§ 794a(a)(1). The remedies found in § 2000e-5(f) to (k) are highly detailed and
constitute a comprehensive remedial scheme.8 Alsbrook, 184 F.3d at 1011.

       Aggrieved persons who are not employees or applicants for employment, such
as prisoners like Randolph, are subject to the subsection of § 794a that tracks 29
U.S.C. § 794 and incorporates the remedies of Title VI of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000d to 2000d-7. 29 U.S.C. § 794a(a)(2). Title VI and the regulations
promulgated thereunder provide for judicial review following a federal department or
agency's determination that a program or activity receiving federal funds has violated
Title VI.9 An aggrieved individual, however, may proceed directly to federal court on


      8
        Whether a government employee, such as the plaintiff in Alsbrook, must exhaust
administrative remedies before filing a claim under Title II of the ADA is a question we
need not answer here. Needless to say, there is a strong conflict between the
exhaustion requirements of the three applicable statutes: Title VII of the Civil Rights
Act of 1964 and Title I of the ADA both require exhaustion of administrative remedies,
and Title II of the ADA does not. Title II of the ADA, however, adopted the remedial
provision of the Rehabilitation Act, 42 U.S.C. § 12133, and incorporated the remedies
and procedures of Title VII, 29 U.S.C. § 794a. See generally Zimmerman v. Or. Dep't
of Justice, 170 F.3d 1169,1173-84 (9th Cir. 1999), cert. denied, 121 S. Ct. 1186
(2001). Because Title II of the ADA has two different remedial provisions, it is
necessary to note that this opinion only addresses plaintiffs encompassed by Title II of
the ADA's incorporation of the Title VI remedial provision.
      9
        While neither Title II of the ADA nor Title VI of the Civil Rights Act of 1964
expressly authorizes a private cause of action, it has been held that Title VI has an
implied private cause of action that Title II of the ADA incorporates. See Parker v.
Universidad de Puerto Rico, 225 F.3d 1, 8 (1st Cir. 2000) (recognizing implied private
cause of action under Title VI of the Civil Rights Act of 1964 and applying it to claim
under Title II of the ADA); cf. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,
72-73 (1992); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 594-95 (1983).
The State has not challenged Randolph's standing as a private litigant under Title II of
                                          -7-
a claim under Title II of the ADA.10 Unlike the plaintiff in Alsbrook, Randolph was not
limited by a comprehensive remedial scheme established under Title II of the ADA and
Title VII of the Civil Rights Act of 1964. Instead, the path was open for him to bring
an action directly in federal court.11 Accordingly, Seminole Tribe and Alsbrook do not
prohibit Randolph from proceeding under Ex parte Young.




the ADA, and we therefore decline to analyze the issue.
      10
        Congress granted the Attorney General explicit authority to promulgate
regulations implementing Title II of the ADA. 42 U.S.C. § 12134(a) (1994). The
regulations provide, inter alia, that while a complainant may avail himself of the
administrative grievance procedures outlined elsewhere in the regulations,
administrative exhaustion is unnecessary and he may file suit in federal court at any
time. See 28 C.F.R. § 35.172(b) (2000) ("At any time, the complainant may file a
private suit pursuant to section 203 [42 U.S.C. § 12133] of the Act . . ."). The
accompanying comment confirms that position:

             The [ADA] requires the Department of Justice to establish
      administrative procedures for resolution of complaints, but does not
      require complainants to exhaust these administrative remedies. The
      Committee Reports make clear that Congress intended to provide a
      private right of action with the full panoply of remedies for individual
      victims of discrimination. Because the [ADA] does not require
      exhaustion of administrative remedies, the complainant may elect to
      proceed with a private suit at any time.

28 C.F.R. pt. 35, app. A at 501 (2000).
      11
         The State argues that the Prison Litigation Reform Act of 1995, 42 U.S.C.
§ 1997e(a) (Supp. IV 1998), required Randolph to exhaust all administrative remedies
available in the prison system and under Title II of the ADA before filing suit. As we
held the first time this case was before us, the PLRA issue was not raised in the District
Court and the State has "waived the argument on appeal." Randolph, 170 F.3d at 857
n.8.
                                           -8-
       Here, the District Court's injunction ordering future compliance with the ADA
with respect to hearing-impaired services for Randolph was narrowly written to merely
reiterate the existing duty that the state officers owe Randolph under the ADA.12 The
order in this case does not require, as the State contends, "retrospective" monetary
relief for past violations of the ADA. Rather, the cost of compliance to the state
treasury is wholly "ancillary" to the prospective order enforcing federal law. Edelman
v. Jordan, 415 U.S. 662, 668 (1974); see also Papasan v. Allain, 478 U.S. 265, 278
(1986) (holding that while injunctive relief ordered by District Court may have
"substantial ancillary effect on the state treasury," Ex parte Young suit may proceed so
long as injunctive relief "serves directly to bring an end to a present violation of federal
law"). Any state funds expended for Randolph's hearing-impaired services could only
be the result of prospective compliance with the injunction.

       The State finally argues that because the statutory language of the ADA provides
only for "public entity" liability, an Ex parte Young claim against the state officials in
their official capacities, premised upon an ADA violation, must fail. We agree that the
public-entity limitation precludes ADA claims against state officials in their individual
capacities, see Alsbrook, 184 F.3d at 1005 n.8, a conclusion we drew in Alsbrook
solely from the plain language of the ADA, but we never have held that the public-
entity limitation in the ADA prohibits Ex parte Young claims against state officers in
their official capacities. Nor have we ever held that the underlying federal statute relied


       12
         Congress enacted the ADA invoking its powers under both Section 5 of the
Fourteenth Amendment and the Commerce Clause. 42 U.S.C. § 12101(b)(4) (1994).
While Alsbrook held Title II of the ADA beyond Congress's power under Section 5 of
the Fourteenth Amendment (and the court accordingly recognized the Eleventh
Amendment immunity of the States and their agencies from such claims), we recognize
that Title II of the ADA still applies to the States as an exercise of Congress's power
under the Commerce Clause. Because the parties did not raise the issue, we assume
for purposes of this opinion that the ADA was a constitutional exercise of Congress's
power under the Commerce Clause.
                                            -9-
upon in an Ex parte Young claim must provide explicit statutory authority to sue a state
official in his official capacity. Ex parte Young simply permits an injunction against
a state official in his official capacity to stop an ongoing violation of federal law. 209
U.S. at 159-60. We believe the District Court did not err by holding that Randolph
may proceed under Ex parte Young to seek prospective injunctive relief on his ADA
and Rehabilitation Act claims against Schriro in her official capacity. Cf. Bd. of Trs.
of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 968 n.9 ("Title I of the ADA still
prescribes standards applicable to the States . . . [that] can be enforced . . . by private
individuals in actions for injunctive relief under Ex parte Young").

                                            B.

       In allowing Randolph's Rehabilitation Act claim to proceed against Schriro (and
the named prison officials as to whom we have now held the case to be moot) for
prospective injunctive relief under Ex parte Young, the District Court noted that
Eleventh Amendment immunity protected the MDOC from suit on that claim. Mem.
and Order at 4. The District Court's holding was based upon Bradley v. Arkansas
Department of Education, where we held that § 504 of the Rehabilitation Act was
beyond the scope of Congress's power under Section 5 of the Fourteenth Amendment
and an impermissible exercise of Congress's Article I spending power. 189 F.3d 745,
756, 758, vacated in part, en banc reh'g granted in part sub nom. Jim C. v. Ark. Dep't
of Educ., 197 F.3d 958 (8th Cir. 1999). Since the District Court issued its order, we
revisited the spending power issue of Bradley en banc, and concluded that, on the facts
in that case, the waiver by the Arkansas Department of Education of Eleventh
Amendment immunity from § 504 claims was given in consequence of a proper
exercise of Congress's spending power. Jim C. v. United States, 235 F.3d 1079, 1081-
82 (8th Cir. 2000) (en banc), petition for cert. filed, 69 U.S.L.W. 3646 (U.S. Mar. 22,
2001) (No. 00-1488).




                                           -10-
       We agree with the District Court that the Ex parte Young Rehabilitation Act
claim may proceed against Schriro.13 With the legal landscape altered since the District
Court issued its order, if Randolph wishes to pursue his Rehabilitation Act claim
against the MDOC, he will need to show that the MDOC waived its Eleventh
Amendment immunity with respect to § 504 of the Rehabilitation Act in order to
receive federal funds and that the waiver is valid under the Spending Clause. If the
District Court were to find that the MDOC has made a valid waiver of its immunity, the
Eleventh Amendment then could no longer limit Randolph's remedy for his
Rehabilitation Act claim to equitable relief against Schriro under Ex parte Young.
Instead, Randolph would be able to proceed against the MDOC on his § 504 claim,
seeking damages as well as equitable relief. See 42 U.S.C. § 2000d-7(a)(2); Gorman
v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998) ("Plaintiffs who prevail on Rehabilitation
Act claims are entitled to the full spectrum of legal and equitable remedies needed to
redress their injuries."); Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642, 645 (8th Cir.
1994) ("[M]oney damages are available under § 504.").

                                          III.

      In sum, we dismiss as moot the Ex parte Young ADA and Rehabilitation Act
claims against Rodgers, Roper, Delo, and Bowersox in their official capacities. We
affirm the District Court's holding that Randolph's Ex parte Young ADA and
Rehabilitation Act claims against Dora Schriro may proceed. Finally, if Randolph
wishes to pursue his Rehabilitation Act claim against the MDOC, he must make the
Spending Clause showing referred to in the concluding paragraphs of Part II of this
opinion.


      13
        Title II of the ADA incorporates the remedies provision of the Rehabilitation
Act, 29 U.S.C. § 794a, and the analysis of ADA remedies in Part IIA of this opinion
therefore applies equally to Randolph's Ex parte Young Rehabilitation Act claim,
except to the extent the analysis may depend on regulations unique to Title II.
                                          -11-
This case is remanded for further proceedings consistent with this opinion.

A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  -12-
