UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL J. ROARY, 

Plaintiff-Appellant,

v.

FRANKLIN FREEMAN, Secretary,

Department of Corrections; LYNN

PHILLIPS, Director, Division of

Prisons; PHYLLIS ELLIOTT,

Developmental Disabilities

Coordinator; WILLIAM R. BARKER,

Superintendent, Sampson

Correctional; JERRY L. MOORE,  No. 97-7210 Program Supervisor, Sampson

Correctional,

Defendants-Appellees,

and

LARRY E. DAVIS; C. E. HILL; TERESA

S. ALEXANDER; DOCTOR DAVENPORT,

Defendants,

and

UNITED STATES OF AMERICA,

Intervenor. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CA-94-449-5-H)

Argued: December 7, 2000

Decided: February 14, 2001

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion. 

COUNSEL

ARGUED: Kristin Davis Parks, NORTH CAROLINA PRISONER

LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant.

Seth Michael Galanter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. Buren Riley Shields, III,

Assistant Attorney General, Raleigh, North Carolina, for Appellees.

ON BRIEF: Bill Lann Lee, Assistant Attorney General, Jessica Dunsay Silver, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. Michael F. Easley, North Carolina

Attorney General, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

I.

Michael Roary challenges the United States District Court for the

Eastern District of North Carolina’s dismissal of his claims against

North Carolina state prison officials under Title II of the Americans

with Disabilities Act (ADA), 42 U.S.C.A. §§ 12131 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701 et

seq., pursuant to Federal Rule of Civil Procedure 12(b)(6). For the

following reasons, we vacate the district court’s judgment and remand

for further proceedings. 

II.

On September 17, 1996, the district court dismissed Roary’s claims

under the ADA and the Rehabilitation Act pursuant to Rule 12(b)(6).

2 ROARY v. FREEMAN
In dismissing these claims, the district court relied upon Pierce v.

King, 918 F. Supp. 932 (E.D.N.C. 1996), judgment vacated by 525

U.S. 802 (1998), for the proposition that, as a statutory matter, the

ADA and the Rehabilitation Act do not apply to inmates in state prisons. Following dismissal of each of his claims, Roary filed a timely

Notice of Appeal to this Court. 

On October 24, 1997, we held this case in abeyance pending resolution of Amos v. Maryland Dep’t of Public Safety, 126 F.3d 589 (4th

Cir. 1997), vacated and remanded by 524 U.S. 935 (1998). The

United States Supreme Court vacated Amos "for further consideration

in light of Pennsylvania Department of Corrections v. Yeskey, 524

U.S. 206 (1998)," Amos, 524 U.S. at 935, which held as a statutory

matter that the ADA applies in the state prison context, see Yeskey,

524 U.S. at 213. The Yeskey Court expressly reserved the questions

of whether the ADA is a valid exercise of Congress’s powers pursuant to the Commerce Clause and Section 5 of the Fourteenth Amendment. Yeskey, 524 U.S. at 212. Prior to argument before this Court

sitting en banc, Amos was settled by agreement of the parties, and this

case was returned to the argument calendar. 

The State officials in this case have now raised the issue of Eleventh Amendment immunity, a defense that was not raised in the district court but may be raised for the first time on appeal from a district

court’s dismissal of an action under Federal Rule of Civil Procedure

12(b)(6). Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 226 (4th Cir.

1997). The parties, however, have made various arguments related to

waiver of Eleventh Amendment immunity and the scope of Congress’s power under the Spending Clause, U.S. Const. art. I, § 8, cl.

1, which are difficult to evaluate in the absence of any factual record

detailing the nature, extent, and purposes of federal financial assistance received by the North Carolina prison system. For example,

Roary argues that the Rehabilitation Act extracts a valid waiver of

Eleventh Amendment immunity, while the State officials argue that

the extraction of such a waiver would exceed Congress’s powers

under the Spending Clause. See, e.g., South Dakota v. Dole, 483 U.S.

203, 207 (1987) (suggesting various limits on the Spending Clause

power to place conditions on the receipt of federal funds). 

With respect to the issue of abrogation of Eleventh Amendment

immunity under the ADA, the Supreme Court has heard oral arguROARY v. FREEMAN 3
ment in Garrett v. University of Alabama, 193 F.3d 1214 (11th Cir.),

cert. granted, 120 S. Ct. 1669 (2000), but has not yet decided that

case, which involves the issue of whether the ADA serves as the basis

for a valid abrogation of the states’ Eleventh Amendment immunity.

Roary’s motion seeking voluntary dismissal of his ADA claims in

order to expedite this appeal was deferred until oral argument;

because we must remand to the district court for further proceedings

regardless of the status of Roary’s ADA claims, this motion now

serves no purpose and is denied. If Roary wishes to abandon his ADA

claims, he may do so in the district court proceedings. 

Because the basis for the district court’s decision has been called

into question by Yeskey and the decision on which the district court

relied, Pierce, has been vacated by the Supreme Court, we vacate the

district court’s order dismissing Roary’s ADA and Rehabilitation Act

claims on statutory grounds. We remand to permit the district court

to consider the State officials’ Eleventh Amendment defense and the

related waiver, abrogation, and Spending Clause issues, as well as any

other arguments that may be appropriately made by the parties, in a

context permitting the development of an appropriate evidentiary

record.

VACATED AND REMANDED

4 ROARY v. FREEMAN