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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JAMES ELLIOTT,

Plaintiff,

v.

DEPARTMENT OF CORRECTIONS,

Defendant.

Case No. C06-5178 FDB

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY

JUDGMENT

This matter comes before the Court on Defendant State of Washington Department of

Corrections’ Motion for Summary Judgment seeking dismissal of Plaintiff’s claim under the

American with Disabilities Act (ADA) 42 U.S.C. § 1201 et seq. After reviewing all materials

submitted by the parties and relied upon for authority, the Court is fully informed and hereby grants

summary judgment and dismisses Plaintiff’s case for the reasons stated below.

INTRODUCTION AND BACKGROUND

Plaintiff James Elliott is an inmate in the custody of the Washington State Department of

Corrections (DOC) at the Monroe Correctional Complex. In February 2004, James Elliott plead

guilty to charges of Rape of a Child in the Second Degree and Child Molestation. Pierce County

Superior Court Judge Stephanie Arend entered the Judgement and Sentence on May 18, 2004. 

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26 ORDER - 2

Judge Arend sentenced Mr. Elliott to the custody of the DOC for a minimum term of 131 months,

with a maximum term of life imprisonment. That sentence was suspended as Judge Arend found Mr.

Elliott eligible for the Special Sex Offender Sentencing Alternative (SSOSA). Mr. Elliott was

sentenced to six months of electric home monitoring. In addition, Mr. Elliott was placed on

community custody and ordered to undergo and successfully complete sex offender treatment, to

have no contact with minors and not possess or pursue pornographic materials.

Mr. Elliott violated the terms and conditions of his SSOSA sentence by having contact with

minors and accessing pornographic websites. On May 13, 2005, Mr. Elliott, represented by counsel,

appeared before Judge Arend on a violation hearing. Judge Arend revoked the SSOSA sentence and

ordered Mr. Elliott committed to DOC to serve his underlying sentence. His incarceration

commenced on May, 19, 2005.

Mr. Elliott then commenced this lawsuit. The Complaint asserts that Mr. Elliott suffers from

cerebral palsy and functions at a 14 year old developmental level. Mr. Elliott complains that the

“[c]onditions of DOC are designed for clients without disabilities and were never totality explained

to Mr. Elliott. The number of conditions discriminates against persons with disabilities such as Mr.

Elliott, as he does not have the memory, coping, or understanding expected of an average adult. His

developmental age is fourteen and DOC expects him to comply with twenty-four conditions written

for adult offenders.” Mr. Elliott contends the placement of these conditions on Mr. Elliott was

discriminatory, that the DOC had a duty to accommodate Mr. Elliott to prevent ultimate failure to

comply with the SSOSA sentence, and that conducting violation hearings utilizing these conditions

constitutes discrimination against the disabled. Mr. Elliott requests relief in the form of

reinstatement of his SSOSA sentence, accommodation of his disability, and an award of monetary

damages and attorney’s fees. 

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where there is no genuine issue of material fact and the

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moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party

bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the

opposing party must show that there is a genuine issue of material fact for trial. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute as to a material fact is

"genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The opposing party may not rest

upon the mere allegations or denials of the moving party's pleading, but must present significant and

probative evidence to support its claim. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d

1551, 1558 (9th Cir. 1991). For purposes of this motion, reasonable doubts as to the existence of

material facts are resolved against the moving party and inferences are drawn in the light most

favorable to the opposing party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 

Summary judgment is mandated where the facts and the law will reasonably support only one

conclusion.

AMERICANS WITH DISABILITIES ACT

Plaintiff brings this claim pursuant to Title II of the Americans with Disabilities Act. Title II

of the ADA provides that "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 broad

language of the ADA brings within its scope programs or services provided at jails, prisons, and any

other custodial or correctional institution, even though participation in such programs, services, and

activities may be mandatory. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 211

(1998). See also, Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001)(recognizing that

incarceration itself is hardly a program or activity under the ADA, but that mental health services and

other activities or services undertaken by law enforcement and correctional facilities come within the

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Mr. Elliott asserts that there is no exhaustion requirement for ADA claims. He is incorrect. 

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires prisoner litigants to

exhaust all administrative remedies before seeking relief under any federal statute. The exhaustion

requirement is strictly construed and stringently applied. Porter v. Nussle, 534 U.S. 516, 524 (2002). 

The PLRA exhaustion requirement applies to a prisoner’s ADA claim. Jones v. Smith, 266 F.3d

399, 400 (6th Cir. 2001); Carrasquillo v. New York, 324 F.Supp.2d 428 (S.D. N.Y. 2004). However,

DOC has not raised the issue of exhaustion and it will not be considered.

2

In opposing summary judgment, Mr. Elliott may not rest upon the mere allegations of his

complaint. There must be evidence to support his claim of disability. 

ORDER - 4

meaning of the ADA).1

 In order to state a claim that a public program or service violated Title II of the ADA, a

plaintiff must show: (1) he is a “qualified individual with a disability”; (2) he was either excluded from

participation in or denied the benefits of a public entity's services, programs, or activities, or was

otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or

discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265 (9th

Cir. 2004); Duvall v. County of Kitsap, 260 F.3d 1124,1135 (9th Cir. 2001).

With respect to the first element, the ADA defines “disability” as: (a) a physical or mental

impairment that substantially limits one or more of the major life activities of such individual; (b) a

record of such an impairment; or (c) being regarded as having such an impairment. 42 U.S.C. §

12102(2); Thompson v. Davis, 295 F.3d 890, 896 (9th Cir. 2002). Although lacking the necessary

proof to overcome summary judgment, it will be assumed for the sake of argument that Mr. Elliott

has the disability of which he alleges. 2

The ADA defines discrimination as a public accommodation treating a disabled patron the

same as other patrons despite the former's need for a reasonable modification. Fortyune v. Am.

Multi-Cinema, Inc., 364 F.3d 1075, 1086 (9th Cir. 2004). The purpose of the ADA's reasonable

accommodation requirement is to guard against the facade of “equal treatment” when particular

accommodations are necessary to level the playing field. McGary, at 1267. There is no factual

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Judge Arend is provided judicial immunity for her sentencing decisions. See, Mireles v.

Waco, 502 U.S. 9 (1991). Suits challenging the validity of the prisoner's continued incarceration lie

within the scope of habeas corpus relief. Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003).

ORDER - 5

evidence that the DOC deprived Mr. Elliott of a service, program or activity. The basic premise to

Mr. Elliott’s ADA claim is that the DOC failed to accommodate his alleged disability by crafting the

conditions of his SSOSA sentence so that he could understand and comply with the conditions. It is

not the DOC, however that “crafted” the conditions of the SSOSA sentence. These conditions are

contained in Mr. Elliott’s Judgement and Sentence entered by Judge Arend and his compliance with

them was ordered by the Superior Court.

RCW 9.94A.670 sets forth the statutory framework for a convicted sex offender’s

participation in SSOSA. The statute permits the court to order outpatient sex offender treatment, up

to six months of confinement and to order compliance with crime-related prohibitions. See, RCW

9.94A.670(4)(b), (5)(a) and (5)(b). Mr. Elliott’s Judgement and Sentence imposed crime-related

prohibitions, including that he not have contact with minors or pursue pornography. The court

imposed these conditions, not DOC. RCW 9.94A.670(10) authorizes the court to revoke the SSOSA

sentence if the offender violates the conditions imposed in the sentence. The court conducted the

violations hearing and revoked the SSOSA sentence, not the DOC. The loss of the SSOSA sentence

was the result of Mr. Elliott’s failure to comply with conditions imposed by the court, not the DOC. 

The allegation that the DOC failed to accommodate his inability to understand or comply with the

conditions imposed by his sentence, is a complaint that goes to the imposition of the sentence by the

Superior Court.3

CONCLUSION

For the reasons set forth above, Defendant State of Washington Department of Corrections is

entitled to summary judgment of dismissal of Plaintiff’s claims in their entirety.

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ACCORDINGLY,

IT IS ORDERED:

Defendant State of Washington Department of Corrections’ Motion for Summary Judgment

[Dkt. #12] is GRANTED, and this case dismissed in its entirety, with prejudice.

DATED this 2ND day of October, 2006.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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