                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                          May 13, 2003
                                         FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                           ____________

                                           No. 02-20562
                                           ____________


               CHRISTOPHER E. COLE,


                                               Plaintiff-Appellant,

               versus


               PATSEY VELASQUEZ,

                                               Defendant-Appellee.


                           Appeal from the United States District Court
                               for the Southern District of Texas
                                         H-01-CV-1623



Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:*

       Christopher E. Cole (“Cole”), a Texas prison inmate proceeding pro se and in forma pauperis

(“IFP”), filed a § 1983 civil rights complaint against the Jester III Unit Law Library Supervisor,

Patsey Velasquez (“Velasquez”). Cole alleged in his complaint that he is legally blind and that

Velasquez violated his constitutionally protected right of access to the courts by denying him access




       *
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
to adaptive or auxiliary legal research equipment for the visually impaired.2 According to Cole, the

absence of such equipment in the Jester III law library prevented him from effecting a post-conviction

appeal in state court. Also, in his § 1983 complaint, Cole alleged that Velasquez’s refusal to provide

him with adaptive or auxiliary equipment for the blind was a violation of the Americans with

Disabilities Act (the “ADA”).

       The district court dismissed Cole’s § 1983 action as frivolous, under 28 U.S.C.

§ 1915(e)(2)(B)(I), following a hearing conducted pursuant to Spears v. McCotter, 766 F.2d 179 (5th

Cir. 1985). In its judgment , the district court did not address Cole’s allegation that Velasquez

violated his rights under the ADA. Cole now appeals from the district court’s judgment.3

       We review for abuse of discretion a district court’s dismissal of a prison inmate’s IFP

complaint. Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001) (citing Harper v. Showers, 174

F.3d 716, 718 (5th Cir. 1999)). A district court shall dismiss an IFP complaint at any time it

determines that the complaint is frivolous. 28 U.S.C. § 1915(e)(2)(B)(I). A complaint is “frivolous”

if it lacks “‘an arguable basis in law or fact.’” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999)

(quoting Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998)). “‘A complaint lacks an arguable basis

in law if it is based on an indisputably meritless legal theory[.]’” Id. (quoting Harper, 174 F.3d at

718). “‘A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity


       2
          Prison inmates have a constitutionally protected right of access to the courts. Bounds v.
Smith, 430 U.S. 817, 821 (1977). The right of access encompasses the ability of an inmate to prepare
and transmit a necessary legal document to a court. See Brewer v. Wilkinson, 3 F.3d 816, 821
(5th Cir. 1993).
       3
           Cole has effectively abandoned related claims that Velasquez infringed upon his right of
access to the courts by denying him legal “supplies” and postage with respect to two prior civil rights
actions in federal court and a state-court action against Velasquez; he has failed to brief such claims.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9).

                                                  -2-
to present additional facts when necessary, the facts alleged are clearly baseless.’” Id. (quoting

Talib,138 F.3d at 213).

        Cole argues that the district court abused its discretion when it dismissed as frivolous his

denial-of-access claim against Velasquez. The district court determined that Cole’s denial-of-access

claim was frivolous because the testimony given at the Spears hearing demonstrated that Cole had

previously refused the prison officials’ offer of a transfer to another Texas prison, the Estelle Unit,

which had in its library the adaptive or auxiliary equipment Cole needed to effect his post-conviction

appeal in state court.4

        Contrary to the district court’s conclusion, the testimony given at the Spears hearing does not

support that adaptive or auxiliary equipment for the visually impaired actually is available – or ever

was available – at the Estelle Unit. Cole testified that he was previously confined at the Estelle Unit,

and that the Estelle Unit did not have such equipment. Cole’s testimony on this matter, which tended

to support his allegation of an actual injury with respect to his state habeas proceeding (i.e., his

inability to prepare the necessary legal documents),5 was uncontroverted; the prison official who

testified about the offer of a transfer never stated that the Estelle Unit actually has – or ever had –



        4
            The district court made the following conclusions:

        In response to Cole’s request for adaptive equipment, officials offered to transfer him
        to a unit that had adaptive equipment that would enable Cole to conduct legal
        research. Cole repeatedly refused to be transferred. Cole elected not to use the
        adaptive equipment, so he cannot complain that he did not have access to it.
        5
          To prevail on a denial-of-access claim, an inmate must show an actual injury. See
Lewis v. Casey, 518 U.S. 343, 350-52 (1996). “Because Bounds did not create an abstract,
freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury
simply by establishing that his law library or legal assistance program is subpar in some theoretical
sense.” Id. at 351.

                                                   -3-
such equipment.6 Thus, the Spears hearing testimony did not demonstrate the frivolity of Cole’s

allegation that Velasquez’s failure to provide Cole with access to adaptive or auxiliary equipment for

the visually impaired in the Jester III Unit Law Library prevented Cole from doing the legal research

necessary for effecting his post-conviction appeal. It is at least arguable that, even though Cole may

have declined an offer of transfer to the Estelle Unit,7 Velasquez violated Cole’s constitutionally

protected right of access to the courts by failing to provide him with access to such equipment in the

Jester III Unit Law Library.8 Thus, the district court abused its discretion in dismissing as frivolous

Cole’s denial-of-access claim against Velasquez.

        Cole also complains that the district court abused its discretion by failing to address his claim

that Velasquez violated his rights under the ADA. Cole maintains that his blindness makes him

“disabled” under the ADA, that Velasquez has failed to accommodate his disability by providing him

with access to the adaptive or auxiliary equipment he needs to conduct legal research in the prison



        6
          The prison official who testified at the Spears hearing , Bill Lewis, testified that, in response
to the grievance filed by Cole to request adaptive equipment, prison officials advised Cole that “we
have a law library at the Estelle Unit.” He also testified that Cole had been “offered . . . an
opportunity to be transferred to that unit and [Cole] had refused that on several occasions.” Lewis
did not, however, testify that officials responding to Cole’s grievance advised Cole that such
equipment was available at the Estelle Unit. Lewis also did not state that such equipment actually
exists, or ever existed, at the Estelle Unit.
        7
          In his brief on appeal, Cole acknowledges that he was “offered” such a transfer, at least
informally. However, Cole maintains that, contrary to the district court’s finding, he did not have the
power to refuse such an offer of transfer, since a prison inmate has no such power “if unit
classification or state classification orders [the transfer].”
        8
         This court has not addressed the question of whether, under these circumstances, an offer
of a transfer to another prison where equipment for the disabled is available provides a disabled
prisoner with meaningful access to the courts. We need not address this question here, since we have
determined that the testimony given at the Spears hearing does not support the district court’s
conclusion that Cole was offered a transfer to a unit that actually had such equipment.

                                                   -4-
library, and that Velasquez has therefore violated rights guaranteed to him under Title II of the ADA.9

        It is unclear from Cole’s complaint and from the testimony given at the Spears hearing

whether Cole intended his ADA claim to be independent of his § 1983 denial-of-access claim. Also,

it is unclear whether Cole is suing Velasquez in her official capacity, or in her individual capacity.10

The answers to these questions could have some bearing on whether Cole’s ADA claim is

cognizable.11 The district court, however, failed to address these important questions.

        Assuming, arguendo, that Cole’s ADA claim is cognizable, it appears that Cole did raise a

non-frivolous question as to whether Velasquez is depriving Cole of a right guaranteed by Title II of

the ADA. In order to state a claim under Title II of the ADA, Cole must allege that 1) he is a


        9
         Title II of the ADA, which applies to state prison inmates, prohibits a “public entity” from
discriminating against a qualified individual with a disability “by reason of” that disability. 42 U.S.C.
§ 12132; Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998)(explaining that §
12132 applies to state prison inmates).
        10
             Cole’s complaint lists the defendant as “PATSEY VELASQUEZ (LAW LIBRARY SUP.)”.
        11
           It might be that Cole is attempting to use § 1983 as a vehicle to reach Velasquez, who,
under color of law, allegedly violated – and continues to violate – his rights under the ADA. If so,
our reasoning in Lollar v. Baker, 196 F.3d 603 (5th Cir. 1999) may support the conclusion that Cole
is precluded from bringing a § 1983 action against Velasquez, in her individual capacity, in order to
vindicate or enforce rights conferred upon him by Title II of the ADA. See Lollar, 196 F.3d at 608-
10. In Lollar, we held that a disabled state employee alleging discrimination could not bring a § 1983
action against her supervisor in the supervisor’s individual capacity to enforce rights guaranteed under
the Rehabilitation Act, 29 U.S.C. § 794, because the Rehabilitation Act, by its express terms, provides
a comprehensive remedial scheme for the enforcement of its provisions. See Lollar, 196 F.3d at 608-
10. In support of our holding, we cited with approval the reasoning in cases from the Eleventh and
Eighth Circuits, both of which held that the ADA’s comprehensive remedial scheme bars § 1983
claims against state officials in their individual capacities. See id. at 610 (citing Holbrook v. City of
Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 1997) and Alsbrook v. City of Maumelle, 184 F.3d 999,
1010-11 (8th Cir. 1999) (en banc)).

        We have not had the occasion to decide the question of whether a prison inmate, such as
Cole, can bring a § 1983 suit against a state prison official, such as Velasquez, in her official capacity
in order to vindicate or enforce rights guaranteed to him by Title II of the ADA.

                                                   -5-
qualified individual 2) who was excluded from participation in or denied the benefits of services,

programs, or activities of a public entity,12 and 3) that such exclusion, denial of benefits, or

discrimination was by reason of his disability. See Lightbourn v. County of El Paso, Texas, 118 F.3d

421, 428 (5th Cir. 1997) (discussing 42 U.S.C. § 12132). A public entity “shall furnish appropriate

auxiliary aids and services where necessary to afford an individual with a disability an equal

opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by

a public entity.” 28 C.F.R. § 35.160(b)(1). “In determining what type of auxiliary aid and service is

necessary, a public entity shall give primary consideration to the requests of the individual with

disabilities.” 28 C.F.R. § 35.160(b)(2). “Auxiliary aids and services” are defined by the ADA to

include “qualified readers, taped texts, or other effective methods of making visually delivered

materials available to individuals with visual impairments.” 42 U.S.C. § 12102(1)(B). Cole alleged

in his complaint that he is a legally blind prison inmate (i.e., a qualified individual) who was excluded

from participation in or denied the benefits of the prison law library (i.e., the benefits of a public

entity) because of Velasquez’s failure to provide him with access to adaptive or auxiliary equipment

for the visually impaired, and that such denial of benefits was by reason of his visual impairment (i.e.,

by reason of his disability). Thus, Cole’s § 1983 complaint, liberally construed, does seem to raise

a non-frivolous question as to whether Velasquez is violating Cole’s rights under the ADA by failing

to provide him with access to adaptive or auxiliary equipment for the visually impaired.

        For the foregoing reasons, the district court’s judgment is VACATED and REMANDED for

further proceedings not inconsistent with this opinion. However, the judgment is AFFIRMED to the



        12
         “Public entity” is defined in relevant part as a state or local government or an agency or
instrumentality of such a government. See 42 U.S.C. § 12131(1)(A),(B).

                                                  -6-
extent that Cole has abandoned all of his denial-o f-access claims relating to his prior federal civil

rights actions and his state civil action against Velasquez.




                                                 -7-
