                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-1997

Yeskey v. PA Dept Corrections
Precedential or Non-Precedential:

Docket 96-7292




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Filed July 10, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7292

RONALD R. YESKEY,
APPELLANT

v.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; JOSEPH D. LEHMAN; JEFFREY A.
BEARD, PH.D.; JEFFREY K. DITTY; DOES NUMBER 1
THROUGH 20, INCLUSIVE,

APPELLEES

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 95-cv-02125)

Argued: January 31, 1997

Before: BECKER, ROTH, Circuit Judges, and
BARRY, District Judge.*

(Filed July 10, 1997)

L. ABRAHAM SMITH, ESQUIRE
(ARGUED)
P.O. Box 1644
Greensburg, PA 15601

Attorney for Appellant




_________________________________________________________________
*Honorable Maryanne Trump Barry, United States District Judge for
the District of New Jersey, sitting by designation.
THOMAS W. CORBETT, JR.
Attorney General
R. DOUGLAS SHERMAN (ARGUED)
Deputy Attorney General
CALVIN R. KOONS
Senior Deputy Attorney General
JOHN G. KNORR, III
Chief Deputy Attorney General

Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120

Attorneys for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge.

Ronald R. Yeskey is a Pennsylvania prison inmate who
was denied admission to the Pennsylvania Department of
Correction's Motivational Boot Camp program because of a
history of hypertension, despite the recommendation of the
sentencing judge that he be placed therein.1 Yeskey brought
suit in the district court under the Americans With
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., alleging
that his exclusion from the program violated that enactment.2

The district court dismissed Yeskey's complaint, Fed. R.
_________________________________________________________________

1. The Motivational Boot Camp Act, 61 P.S. §1121 et seq., established a
"motivational boot camp" to which certain inmates may be assigned by
the Department of Corrections to serve their sentences for a period of six
months. The boot camp provides rigorous physical activity, intensive
regimentation and discipline, work on public projects, and other
treatment. Id. §1123. Pursuant to statute, placement of inmates in the
boot camp is discretionary, and, as such, no inmate has a right to such
placement. Id. §1126(d). Upon successful completion of the six months
incarceration, the inmate is released on parole for intensive supervision
as determined by the Pennsylvania Board of Probation and Parole. Id.
§1127.

2. Yeskey also asserted claims under 42 U.S.C. § 1983 and state law.

                    2
Civ. P. 12(b)(6), holding that the ADA is inapplicable to
state prisons. The question of the applicability of the ADA
to prisons is an important one, especially in view of the
increased number of inmates, including many older,
hearing-impaired, and HIV-positive inmates, in the nation's
jails. See generally Ira P. Robbins, George Bush's America
Meets Dante's Inferno: The Americans with Disabilities Act in
Prison, 15 Yale L. & Pol'y Rev. 49, 56-63 (1996). For the
reasons that follow, we reverse.3

I.

Because this appeal turns on statutory construction, we
begin with the text of the relevant statute, or more
precisely, statutes. Although Yeskey only invoked the ADA,
our discussion necessarily involves Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a). Section 504, the first
federal statute to provide broad prohibitions against
discrimination on the basis of disability, applies only to
programs and activities receiving federal financial
assistance. Title II of the ADA, the broader statute, enacted
in 1990, extends these protections and prohibitions to all
state and local government programs and activities,
regardless of whether they receive federal financial
assistance. Congress has directed that Title II of the ADA be
interpreted in a manner consistent with Section 504, 42
U.S.C. § 12134(b), 12201(a),4 and all the leading cases take
up the statutes together, as will we.

The substantive provisions of the statutes are similar.
Section 504 provides in pertinent part:
_________________________________________________________________

3. By the time this case was listed for submission in this Court, only a
short time remained on Yeskey's sentence, and we have unfortunately
been unable to dispose of it until now. He may have been released (the
parties have not informed us on this point). However, Yeskey's complaint
included a claim for damages, and hence the case is not moot. We also
note that, since boot camp placement commences contemporaneous with
the execution of sentence, it would probably be nigh impossible to test
improper exclusion from the boot camp program in federal court before
the six month placement expires, likely creating a situation capable of
repetition yet evading review, which excuses mootness.

4. See generally Robbins, supra, at 73-76.

                    3
 No otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance or under any program or
activity conducted by any Executive agency[.]

29 U.S.C. § 794(a).

Title II of the ADA provides in pertinent part:

no 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.

The statutory definition of "[p]rogram or activity" in
Section 504 indicates that the terms were intended to be
all-encompassing. They include "all of the operations of --
(1)(A) a department, agency, special purpose district, or
other instrumentality of a State or of a local government
. . . any part of which is extended Federal financial
assistance." 29 U.S.C. §794(b) (emphasis added). It is hard
to imagine how state correctional programs would not fall
within this broad definition.

Moreover, a word in a statute "must be given its `ordinary
or natural' meaning," see Bailey v. United States, 116 S. Ct.
501, 506 (1995), and the ordinary meanings of "activity"
and "program" clearly encompass those that take place in
prisons. "Activity" means, inter alia, "natural or normal
function or operation," and includes the "duties or
function" of "an organizational unit for performing a specific
function." Webster's Third New International Dictionary 22
(1986). "Program" is defined as "a plan of procedure: a
schedule or system under which action may be taken
toward a desired goal." Id. at 1812. Certainly, operating a
prison facility falls within the "duties or functions" of local
government authorities. Moreover, Title II's definition of a
"public entity" clearly encompasses a state or local
correctional facility or authority: "any department, agency,

                      4
. . . or other instrumentality of a State or States or local
government[.]" 42 U.S.C. § 12131(1)(B) (emphasis added).

This conclusion is bolstered by the Department of Justice
(DOJ) regulations implementing both Section 504 and Title
II of the ADA. These regulations were expressly authorized
by Congress, 29 U.S.C. § 794(a); 42 U.S.C. §§ 12134(a),
12206, and, in view of Congress' delegation, the DOJ's
regulations should be accorded "controlling weight unless
[they are] `arbitrary, capricious, or manifestly contrary to
the statute,' " Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 115 S. Ct. 2407, 2418
(1995). The same is true of the preamble or commentary
accompanying the regulations since both are part of the
DOJ's official interpretation of the legislation. Thomas
Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994).
DOJ interprets both Section 504 and Title II of the ADA to
apply to correctional facilities.

The regulations promulgated by DOJ to enforce Section
504 define the kinds of programs and benefits that should
be afforded to individuals with disabilities on a
nondiscriminatory basis. The regulations define "program"
to mean "the operations of the agency or organizational unit
of government receiving or substantially benefiting from the
Federal assistance awarded, e.g., a police department or
department of corrections." 28 C.F.R. § 42.540(h) (1996)
(emphasis added). The term "[b]enefit" includes "provision
of services, financial aid or disposition (i.e., treatment,
handling, decision, sentencing, confinement, or other
prescription of conduct)." Id. § 42.540(j) (emphasis added).
The appendix to the regulations, attached to the Final Rule
(45 Fed. Reg. 37620, 37630 (1980)), makes clear that
services and programs provided by detention and
correctional agencies and facilities are covered by Section
504. This coverage is broad, and includes "jails, prisons,
reformatories and training schools, work camps, reception
and diagnostic centers, pre-release and work release
facilities, and community-based facilities." Id.

The appendix further provides that those facilities
designated for use by persons with disabilities are "required
to make structural modifications to accommodate detainees
or prisoners in wheelchairs." Id. The DOJ regulations

                    5
applicable to federally conducted programs also make it
clear that institutions administered by the Federal Bureau
of Prisons are subject to Section 504. See 28 C.F.R.
§ 39.170(d)(1)(ii) (Section 504 complaint procedure for
inmates of federal penal institutions); id. pt. 39, Editorial
Note, at 675 (Section 504 regulations requiring
nondiscrimination in programs or activities of the
Department of Justice apply to the Federal Bureau of
Prisons); id. at 676 (federally conducted program is
"anything a Federal agency does").

The regulations promulgated under Title II of the ADA
afford similar protections to persons with disabilities who
are incarcerated in prisons, or otherwise institutionalized
by the state or its instrumentalities, regardless of the public
institution's receipt of federal financial assistance. The
regulations state that the statute's coverage extends to "all
services, programs, and activities provided or made
available by public entities." Id. § 35.102(a). This broad
language is intended to "appl[y] to anything a public entity
does." Id. pt. 35, app. A, subpt. A at 456. As part of its
regulatory obligations under Title II, the DOJ is designated
as the agency responsible for coordinating the compliance
activities of public entities that administer "[a]ll programs,
services, and regulatory activities relating to law
enforcement, public safety, and the administration of
justice, including courts and correctional institutions." Id.
§ 35.190(b)(6). The preamble to the ADA regulations also
refers explicitly to prisons, stating that, where an individual
with disabilities "is an inmate of a custodial or correctional
institution," the entity is required to provide"assistance in
toileting, eating, or dressing to [that] individual[ ]." Id. pt.
35, app. A at 468.5
_________________________________________________________________

5. Moreover, the DOJ Title II Technical Assistance Manual specifically
lists "jails and prisons" as types of facilities that, if constructed or
altered after the effective date of the ADA (January 26, 1992), must be
designed and constructed so that they are readily accessible to and
usable by individuals with disabilities. Title II Technical Assistance
Manual II-6.0000, II-6.3300(6). The design standards applicable to
facilities covered by Section 504 and Title II also include specific
provisions relating to correctional facilities. The DOJ Section 504
regulations adopt the Uniform Federal Accessibility Standards (UFAS),

                     6
In sum, Section 504 of the Rehabilitation Act, Title II of
the ADA, and the specific provisions in the DOJ's
regulations listing correctional facilities or departments as
covered entities confirm that the Rehabilitation Act and the
ADA apply to state and locally-operated correctional
facilities.

II.

The weight of judicial authority also supports our
conclusion that the ADA applies to prison programs. In
Crawford v. Indiana Department of Corrections, ___ F.3d ___,
1997 WL 289101 (7th Cir. June 2, 1997), the Seventh
Circuit held that Title II of the ADA applied to state prisons
in the case of a blind, former state prisoner who sought
damages resulting from his exclusion from a variety of
programs, activities, and facilities at the prison that were
routinely available to the prison's population, including
educational programs, the library, and the dining hall.
Accord Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996);
Harris v. Thigpen, 941 F.2d 1495, 1522 n.41 (11th Cir.
1991) (holding Rehabilitation Act applicable).

Two circuits have questioned the applicability of Section
704 and Title II to prisons. See Torcasio v. Murray, 57 F.3d
1340, 1344-46 (4th Cir. 1995) (coverage of prisons by
Section 504 and Title II not clearly established in qualified
immunity context), cert. denied, 116 S. Ct. 772 (1996);
_________________________________________________________________

which apply to federal agencies and entities receiving federal financial
assistance. 28 C.F.R. § 42.522(b). UFAS lists"jails, prisons,
reformatories" and "[o]ther detention or correctional facilities" as
institutions to which the accessibility standards apply. 41 C.F.R. subpt.
101-19.6, app. A at 150. Under Title II, covered entities building new or
altering existing facilities may follow either UFAS or the ADA
Accessibility Guidelines for Buildings and Facilities (ADAAG). 28 C.F.R.
§ 35.151(c); see id. pt. 36, app. A. Amendments to the ADAAG, adopted
as an Interim Final Rule, effective December 20, 1994, by the
Architectural & Transportation Barriers Compliance Board, include
specific accessibility guidelines for "detention and correctional facilities."
59 Fed. Reg. 31676, 31770-72 (1994). The Department of Justice has
proposed adoption of the interim final rule. Id. at 31808. The ADAAG is
not effective until adopted by the DOJ.

                    7
White v. State of Colorado, 82 F.3d 364, 367 (10th Cir.
1996) (neither ADA nor Rehabilitation Act applies to prison
employment). In our view, these opinions are seriously
flawed. The leading case in support of the Commonwealth's
position is Torcasio, which was followed by the district
court here, and so we focus our sights on that case.6

The Fourth Circuit in Torcasio acknowledged that the
broad language prohibiting discrimination on the basis of
disability in both statutes "appears all-encompassing," 57
F.3d at 1344. Nevertheless, the Torcasio court was
reluctant to find either statute applicable to prisons
because of the so-called "clear statement" doctrine, as set
out in Will v. Michigan Department of State Police, 491 U.S.
58, 65 (1989):

if Congress intends to alter the "usual constitutional
balance between the States and the Federal
Government," it must make its intention to do so
"unmistakably clear in the language of the statute."
Atascadero State Hospital v. Scanlon, 473 U.S. 234,
242 . . . (1985); see also, Pennhurst State School and
Hospital v. Halderman, 465 U.S. 89, 99 . . . (1984).

Because it found the operation of prisons to be a "core state
function," 57 F.3d at 1345, and because neither Section
504 nor Title II includes an express statement of its
application to correctional facilities, the Torcasio court
expressed its doubt that Congress had "clearly" intended
either statute to apply to state prisons. Id. at 1346.

This extension of the clear statement rule was
unwarranted. Will, Atascadero, and Pennhurst all involved
instances in which there had been no express waiver or
abrogation of the state's traditional immunity from suit,
either by the state itself (Pennhurst), or by Congress (Will,
Atascadero). Here, in contrast, both Section 504 and Title
_________________________________________________________________

6. Torcasio did not decide whether either Section 504 or Title II of the
ADA applies to prisons; rather, it concluded that such coverage was not
clearly established at the time of the events at issue, and that the
individual defendants in that case therefore were entitled to qualified
immunity. In reaching its qualified immunity ruling, however, the
Torcasio court discussed the reach of the two statutes at length, and
expressed its doubt that either applied to prisons.

                    8
II of the ADA contain an "unequivocal expression of
congressional intent to overturn the constitutionally
guaranteed immunity of the several states." Pennhurst, 465
U.S. at 99 (internal quotation marks and citation omitted);
see 42 U.S.C. § 2000d-7(a)(1) ("A State shall not be immune
under the Eleventh Amendment . . . from suit in Federal
court for a violation of section 504 of the Rehabilitation
Act."); id. § 12202 ("A State shall not be immune under the
eleventh amendment . . . from an action in Federal or State
court of competent jurisdiction for a violation of[the
ADA].").

To be sure, when "Congress intends to alter the usual
constitutional balance between the States and the Federal
Government, it must make its intention to do so
unmistakably clear in the language of the statute." Gregory
v. Ashcroft, 501 U.S. 452, 460, 461 (1991) (internal
quotation marks and citations omitted). This requirement,
however, is a "rule of statutory construction to be applied
where statutory intent is ambiguous." Id. at 470. It is not
a warrant to disregard clearly expressed congressional
intent.

Torcasio's statement that Congress must specifically
identify state or local prisons in the statutory text, if it
wishes to regulate them, was expressly disavowed by the
Supreme Court in Gregory. See id. at 467 ("This does not
mean that the Act must mention judges explicitly.").
Congress need only make the scope of a statute "plain." Id.
And Congress has done that here. Both Section 504 and
Title II speak unambiguously of their application to state
and local governments and to "any" or "all" of their
operations. In light of the clear and all-encompassing
language of both statutes, there is no basis for requiring
Congress to have detailed which of the many important
components of state and local governments were to be
included in the terms "any" and "all."

In Crawford, supra, just as in this case, the state relied
on the fact that prison administration was a "core" state
function in arguing that the clear statement rule was
triggered. Judge Posner responded most forcefully:

Prison administration is indeed a core function of state
government, as is education. But the state's concession

                    9
that the Americans with Disabilities Act applies to the
prison's relations with its employees and visitors, as
well as to the public schools, suggests that the clear-
statement rule does not carry this particular core
function of state government outside the scope of the
Act. We doubt, moreover, that Congress could speak
much more clearly than it did when it made the Act
expressly applicable to all public entities and defined
the term "public entity" to include every possible
agency of state or local government. Maybe there is an
inner core of sovereign functions, such as the balance
of power between governor and state legislature, that if
somehow imperiled by the ADA would be protected by
the clear-statement rule, cf. Gregory v. Ashcroft, supra,
501 U.S. at 461-63; but the mere provision of public
services, such as schools and prisons, is not within
that inner core.

Crawford, ___ F.3d ___, 1997 WL 289101, at *4. We agree.

III.

Despite the Commonwealth's contention to the contrary,
moreover, prisoners (in contrast to prisons) are not excluded
from coverage because Section 504 and Title II protect only
"qualified individual[s] with a disability." That term is
defined in Title II to mean:

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(2). The terms "eligibility" and
"participation" do not, as Torcasio stated, see 57 F.3d at
1347, "imply voluntariness" or mandate that an individual
seek out or request a service to be covered. To the contrary,
the term "eligibility" simply describes those who are "fitted
or qualified to be chosen," without regard to their own
wishes. See Webster's Third New International Dictionary,
supra at 736.

Judge Posner addressed a related aspect of the case quite
incisively:

                     10
It might seem absurd to apply the Americans with
Disabilities Act to prisoners. Prisoners are not a
favored group in society; the propensity of some of
them to sue at the drop of a hat is well known; prison
systems are strapped for funds; the practical effect of
granting disabled prisoners rights of access that might
require costly modifications of prison facilities might be
the curtailment of educational, recreational, and
rehabilitative programs for prisoners, in which event
everyone might be worse off. But . . . there is another
side to the issue. The Americans with Disabilities Act
was cast in terms not of subsidizing an interest group
but of eliminating a form of discrimination that
Congress considered unfair and even odious. The Act
assimilates the disabled to groups that by reason of
sex, age, race, religion, nationality, or ethnic origin are
believed to be victims of discrimination. Rights against
discrimination are among the few rights that prisoners
do not park at the prison gates. Although the special
conditions of the prison setting license a degree of
discrimination that would not be tolerated in a free
environment, there is no general right of prison officials
to discriminate against prisoners on grounds of race,
sex, religion, and so forth. If a prison may not exclude
blacks from the prison dining hall and force them to
eat in their cells, and if Congress thinks that
discriminating against a blind person is like
discriminating against a black person, it is not obvious
that the prison may exclude the blind person from the
dining hall, unless allowing him to use the dining hall
would place an undue burden on prison management.

Crawford, __ F.3d __, 1997 WL 289101, at *5 (citations
omitted). We agree here as well.

In sum, in enacting the ADA, Congress "invoke[d] the
sweep of [its] authority, including the power to enforce the
fourteenth amendment and to regulate commerce, in order
to address the major areas of discrimination faced day-to-
day by people with disabilities." 42 U.S.C. § 12101(b)(4).
The "critical areas" in which "discrimination against
individuals with disabilities persists" were set forth in the
statute, and include "institutionalization." Id. § 12101(a)(3).

                    11
Thus, if the plain words of a statute are to guide the courts
in interpreting it, then both statutes must be held to apply
to state and local correctional facilities.7 Essentially, the
Commonwealth is asking us to amend the statute,
something we cannot do.

IV.

The foregoing discussion establishes that the ADA applies
to Yeskey's claim. His claim for injunctive relief is,
apparently, moot in view of the impending (or actual)
completion of his prison term. His claim for damages will
turn, presumably, on whether he should (or would) have
been admitted to the boot camp. Even with the ADA
applicable, Yeskey might not have been admitted for a
number of reasons, which will have to be explored on
remand.

The Commonwealth has invoked the specter of federal
court management of state prisons:

 Application of the ADA to internal prison
management would place nearly every aspect of prison
management into the court's hands for scrutiny simply
because an inmate has a disability. See Pierce v. King,
918 F. Supp. 932, 941 (E.D.N.C. 1996). For instance,
if the ADA applies to routine prison decisions, it is not
unfathomable that courts will be used to reconstruct
cells and prison space, to alter scheduling of inmate
movements and assignments and to interfere with
security procedures.

Brief at 15. Although these considerations do not override
our conclusion that the ADA applies to prisons, our holding
does not dispose of the controversial and difficult question
whether principles of deference to the decisions of prison
officials in the context of constitutional law apply to
_________________________________________________________________

7. We add that the legislative history does not inveigh against this
conclusion. When the ADA was enacted in 1990, the Rehabilitation Act
had been law for seventeen years and a number of cases had held it
applicable to prisons and prisoners, yet Congress did not amend that Act
or alter any language so as to extirpate those interpretations.

                    12
statutory rights. See generally Robbins, supra, at 94-97.8
We are not sure of the answer, and need not address that
question now for, at all events, we doubt that it will be
germane in this case. We do, however, "flag" it for another
day.

The judgment of the district court will be reversed, and
the case remanded for further proceedings consistent with
this opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

8. Turner v. Safley, 482 U.S. 78 (1987), establishes a four-part
"reasonableness" test for judicial deference to prison managment
decisions in the face of constitutional challenges (usually under the
Eighth Amendment). The first requirement is "a valid rational
connection" between the regulation and the alleged governmental
interest. The second inquiry is whether alternative means exist for
inmates to exercise the right under consideration. The third issue is the
effect that accommodation of the asserted right will have on security,
administrative efficiency, prison staff, and the larger inmate population.
The final prong of the test is whether an alternative means exists for
prison officials to accomplish their objectives without infringing on
inmates' rights. See also O'Lone v. Estate of Shabazz, 482 U.S. 342
(1987) (reaffirmed the Turner standard with respect to alleged
infringement of inmates' First Amendment right to free exercise of
religion).

The Ninth Circuit has held that the Turner standard applies to
statutory rights such as those created by the ADA. In Gates v. Rowland,
39 F.3d 1439 (9th Cir. 1994), the court reversed a lower court's ruling
that denial of food-service positions to HIV-positive inmates
discriminated against them impermissibly. Reasoning that, where
constitutional protections bend, statutory privileges must too, the court
deferred to the penalogical concerns asserted by prison officials. The
Eighth Circuit disagrees. See Pargo v. Elliott , 49 F.3d 1355 (8th Cir.
1995)(Turner does not foreclose all heightened judicial review.)

                    13
