### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-20648

MARKS WELLS, Plaintiff-Appellant

v. RICK THALER, In his official capacity; KEVIN MAYFIELD, Individually and in his official capacity; ALFONSO CASTILLO, In h is individual capacity; RICHARD A. GUNNELS, Individually and in his official capacity; DONALD E. MUNIZ, Individually and in his official capacity; LIEUTENANT ELIZABETH C. STAMBAUGH, Individually and in her official c a p acity; DEMETRIE PHIPPS, Individually and in his official capacity; LAURA M. BARNETT, In her official capacity, F RA N K HOKE, Individually and in his official capacity; MICHAEL WHEELER, Individually and in his official capacity; DOCTOR LANETTE LINTHICUM, Individually and in her official capacity; ANTHONY WILLIAMS, Individually and in his official capacity; KIMBERLY COTTON, Individually and in her official capacity; THOMAS GOODSO N , I n dividually and in his official capacity; WILLIAM SCOTT CHILDRESS, Individually and in his official capacity; BRUCE KALMAN, I n h i s official capacity NATHANIEL QUARTERMAN, In his individual capacity, DAVID SWEETIN, In his official capacity, Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:08-CV-2288

Before BENAVIDES, STEWART, and GRAVES, Circuit Judges. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 7, 201 2 Lyle W . Cayce Clerk Case: 10-20648 Document: 00511751037 Page: 1 Date Filed: 02/07/2012No. 10-20648

PER CURIAM: * In this civil rights case, Plaintiff-Appellant Mark Wells (“Wells”) appeals the distric t c o u r t ’ s grant of summary judgment in favor of the DefendantsAppellees. Wells brings claims under 42 U.S.C. § 1983 a n d Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. , against various employees and officials of the Texas D epartment of Criminal Justice (“TDCJ ” ) a n d the University of Texas Medical Branch in their official and individual capacities, seeking compensatory and punitive damages, as well as injunctive and declaratory relief. We AFFIRM.

I. FA C T U A L A N D P R O C E D U R A L BA C K G R O U N D Plaintiff-Appellant Wells is a fifty-two year-old b lind prisoner, who was convicted in 2006 upon a negotiated plea of aggravated sexual assault of a child. He was sentenced to ten years of imprisonment on August 28, 2006. Wells did not appeal his conviction and he has not filed post-conviction collateral attacks in eith e r state or federal court. On October 19, 2006, Wells was transferred to the Estelle Unit, where he is currently confined. In the current suit, Wells proce e d s pro se and in forma pauperis , and he

sues under 42 U.S.C. § 1983 and Title II of the ADA, claiming that the conditions in the Estelle Unit violate his constitutional rights of access to the courts and to the mail, and that the prison denied him the benefits of the Estelle Unit law l i b r a r y and Adaptive Resource Clinic due to his disability. Specifically, Well s claims that the alleged violations prevented him from filing his federal habeas petition and are currently preventing h i m from filing his Texas state habeas pet i t i o n

. As to both claims, Wells seeks compensatory and punitive damages

1

Purs uant to F IFT H C IR C UIT R UL E 47.5 , the cour t has det erm ined that this opi nion * sho uld not be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in F IFT H C IR C U IT R UL E47. 5.4.

The p art ies agr ee the Texas s tat e h abeas p eti tio n c an s tillbe f iled

. 1

2 Case: 10-20648 Document: 00511751037 Page: 2 Date Filed: 02/07/2012No. 10-20648

a g a i n st the Defendants-Appellees in their personal and official capacities, as well as injunctive and declaratory relief. Plaintiff-Appellant Wells began accessing the law library in late June 2007, approximately eight months after he was transferred to the Estelle Unit. According to Defendant-Appellee Frank Hoke, TDCJ Access to Courts Program Supervisor, the law library at Estelle Unit maintain s a list of volunteer offenders who are willing to provide assistance reading and writi n g , and offenders are permitted to schedule their research sessions with other offenders who will aid them. From June 2007 on w a r d s , Wells took advantage of this service, and he regularly used the law library with the assistance of other prisoners. During the vast majority of these sessions, Wel l s was accompanied by another prisoner, Chris Cole. Cole, who is visually impaired, assis t ed Wells with his postc o n v iction legal research and read research material and legal mail to Wells using a closed-circuit enlargement television (“CCTV”). From June 2007 until l a t e S e p t e mb e r 2007—when his federal habeas petition was due

—W e ll s h a d o v e r twenty legal res e ar ch sessions with Cole, many lasting for several hours. During this time, Wells requested no a ccommodations other than being allowed to research with Cole. 2

Well s fil ed se veral grievanc es about the tabl es and chair s that he and Cole use d wh ile 2

wo rk ing toget her dur ing August and Sep tem ber 2007. Altho ugh on app eal he cit es the variou s dis put es over the tabl e and chair s as a ground s for his acc es s to cour ts clai m, arguing that he

wa s deni ed acc es s to a read er, Wel ls did not bas e any of his clai ms for reli ef in the dis tri ct cour t on thes e par tic ular event s. Inst ead , in his sum mar y judgm ent brie fing and in his

com plai n t , W ells se em ed to conc ede that he wa s given acc es s to read ers , suc h as Cole, but arguedt hat acc es s to read ers w as ins uff icie nt. Any ar gume nt bas ed on thes e earli er event s is wa ived. See Nune z v. Al ls tate Ins. Co. , 604 F.3d 840, 846 (5t h Cir. 2010) (“An argum ent not

r a ise d bef

ore the dis tri ct cour t canno t be ass ert ed for the fir st tim e on app eal. ” (quo ta t i o n mar ks and cit atio n om itt ed) ). Add itio nally, even if cons ide red , a revie w o f the variou s grievanc es indi cat es that Well s wa s not deni ed acc es s to Cole dur ing that tim e, but rat her, that Well s belie ved that the se ating arr angem ent wa s not the mo st conven ient pos sib le. Thes e grievanc es sho w that Well s wa s per mi tte d sam e-s es sio n visi ts wi th Cole, that the st urd ier tabl e for the CCTV wa s rep lac e d a f t e r he com plai ned, and that the CCTV wa s act ually equip pedw ith tw o c hairs f or jointr es earc h. 3 Case: 10-20648 Document: 00511751037 Page: 3 Date Filed: 02/07/2012No. 10-20648

On September 27, 2007, the day his federal habeas petition was due, Wells filed a Step 1 grievance complaining that he was completely b l ind and was unable to do his legal research privately and independently. In his grievance, 3 Wells stat e d that Cole had been assisting him with his post-conviction filings, but that he wanted a computer equipped with “screen reading software, text to [B]raille software, printers, scanners, servers, and network devices,” so he could research on his own. Wells stated such accommodations were necessary because he was worried other prisoners might comprise confid e n t iality, presumably regarding the nature of his underlying conviction. Wells also stated that he had asked the law librarian for “law books and other legal research material on tape

or in [B]raille” approximately two weeks earlier, but that the librarian had told him those resources were not available in the library. 4 In a response to this griev a nce, on October 10, 2007, a prison official replied that Wel l s w a s not being denied any necessary adaptive aids because prison records indicated Wells was only blind in one eye and could see using the CCTV. According to Hoke, when Wells first entered the TDCJ, the TD C J was i n c o r rectly informed that Wells could see in one eye and the law library reli e d

on those records. On October 22, 2007, Wells filed a Step 2 Grievance, stating 5 that he was unable to use the CCTV due to blindness in both eyes ; he also

The TDCJ util izes a tw o-s tep gri evance p roc edur e. See Wende ll v. As her , 162 F.3d 3 887, 891 ( 5th Cir. 199 8) (d es cri bing TD CJ ad mi nis tra tive pr oce dur e).

Wells also s ubm itt ed a phot oco py of a type d let terthat he clai ms he maile d to H ok e 4

on Sep tem ber 23, 2007, in wh ich he st ates t h a t he is tot ally blind and need s adap tive equip me nt to res earc h inde pend entl y. The lett er is hand- dat ed and ther e is no indi cat ion that it wa s ever rec eived by Ho ke

. Ass umi ng for pur pos es of this mo tio n that the let ter wa s act ually mai led and that Ho ke rec eived it, the let ter requ es ts the sam e acc om mo dat ions that Well s mad e in his Sep tem ber 27th grievanc e. Add itio nally, th e l ett er wo uld have been

rec eivedby Ho ke al mo stc onte mp oran eous ly w ith thatf orm al grievanc e. Ot her pr iso n me dic als rec or d s indi cat e that Well s had tol d the pr iso n in De cem ber 5 2006 thathe c oulds ee usi ng t he CCTV.

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requested that the library provide JAW S screen reading software, as well as 6 independent access to Westlaw or Lexis Nexis legal research s e rvices. On January 2, 2008, a different official replied, stating that Wells was already provided with adequate accommodations becau s e he admitted that he was receiving reading and writing assistance through same-session visits with Chris Cole. The official also noted that the library could provid e a l i s t of other prisoners who would assist Wells with reading and preparing filings. 7 Other evidence in the record indicates that Frank Hoke fol lowed up on Wells’s request that Braille or audio versions of legal resources be provided by speaking with the reference l i brarian at the Texas State Law Library and the Blind and Physically Handicapped off i c i al at the Library of Congress. Hoke states that neither institution was able to provide or had any knowledge of legal

resources designed for the vi s u a l l y impaired like those Wells was requesting. It is also undisputed that the TDCJ does not make computers available to any offenders in the law library. Over the next several months, Wells regularly visited the library with Cole, or another prisoner, David Willis, often multiple times per week and for several hours per visit. There is no evidence in the record that Wells was ever denied access to the law library or the assistance of another prisoner during this time. In March 2008, Wells filed a grievance requesting additional software on the computers in the Adaptive Resource Clinic, stating that such software was needed so he could independently do legal research. Wells’s request was denied, and Estelle Unit records show that Defendant-Appellee Ki mberley SmithJAWS is a com put er sc ree n read er pr ogram that is des igned for blind or vis u a l l y 6 im pair ed read ers ands tand s for“ Job Acce ss w ith Sp eec h.”

Well s als o fil e d a n o t h e r grievanc e in Oc tobe r 2007, requ es ting that the law libr ary 7 pr ovide tra ined par alegals , rat her than pr iso ner read ers

. A pr iso n off icia l res pond ed that the pr iso ner read ers w ere ad equat e b ecau se t hey a cquir ed tra ining on the job. 5 Case: 10-20648 Document: 00511751037 Page: 5 Date Filed: 02/07/2012No. 10-20648

Cotton, Program Manager of the Assistive Disability Services (“ AD S ” ) , di scussed the request with Wells and told him that the Adaptive Resources Clinic was not designed to assist with legal filings. Smith-Cotton filed an affidavit describing 8 the Adaptive Resource Clinic, stating that the Clinic is designed to “teach very basic skills[,] such a s h o w t o type on a keyboard,” and to provide assistance to offenders with simple tasks, such as reading or writing letters to family members. Smith-Cotton al s o p r o vi d e s u n controverted testimony that Wells does not need computer training in the Clinic because he already knows how to type and use computers. P reviously, in December 2006, Wells discussed JAWS software w i t h Defendant-Appellee Thomas Gooden, who is an Adaptive Resources instructor, and W e l l s r equested that Gooden install JAWS software on the Adaptive R e s o u r c e s computers. Gooden testifies that the request was forwarded to his supervisor—Smith-Cotton—a n d Smith-Cotton states that Wells’s request was considered, but that the prison d e t e r m ined that existing services met Wells’s needs. Additionally, other evidence shows that Smith-Cotton explained to Wells
t h a t JAWS would not be helpful to him because it cannot read personal ma i l

. Smith-Cotton also states that the Estelle Unit provides letter guides for visually impaired offenders, has a mechanical reader, and that ADS instructors are also available to help read and write letters. Prison records show that Wells declined letter writing assistance from an ADS caseworker. 9 Plaintiff-Appellant Wells filed the current suit in July 2008. Essentially, Wells argues that the law library or Ad a p t i v e Resources Clinic should be

We lls f ileds im ilargri evance s in May and June 2008, andt hey w ere r eject ed on the 8

sam e gr ound s. There is als o evide nce that Well s fil ed se veral g r i e v a nces in Apri l and May 2008 9 rela ted to the let ter wr itin g res ourc es availabl e in the Adap tive Reso urc es Clinic

. Thes e grievanc es we re eit her rejec ted for fai lure to fol low adm inis tra tive rule s, or beca use Well s did not att end me eti ngs wi th ADS c ase wo rk ers t o d isc uss hi s need s. 6 Case: 10-20648 Document: 00511751037 Page: 6 Date Filed: 02/07/2012No. 10-20648

equipped with additi o n al adaptive equipment, such as a current model computer with screen reading software, such as JAWS, as well as Braille or audio versions of legal resources and Westlaw or Lexis Nexis access. Wells argues that these accommodations are necessary because he wants to read his mail, complete legal

r e s e a r c h , a n d p r e p a r e l e gal filings independently and privately, rather tha n w ith prisoner assistance. The di s t ri c t c o u rt gr a nt e d th e D e f e n d a nt s - Ap p e l l e e s ’ motion for summary judgment, finding no disputed issues of fact, and it dism i s s e d a ll of Wells’s claims with prejudice. Wells timely filed an appeal. 1 0 II. S T A N D A R D O F R E V I E W We review a district court’s grant of summa r y j u dgment de novo, construing all facts and inferences in the light most favorable to the nonmoving party. Cerda v. 2004-EQR1 L.L.C. , 612 F.3d 781, 786 (5th Cir. 2010). Summary judgment is proper only when the movant demonstrates that no genuine issue of material fact exists and that he is entitled to j u d g m e n t a s a matter of law. Fed. R. Civ. P. 56(a); Fed. Ins. Co. v. Ace Prop. & Cas. Co. , 429 F.3d 120, 122 (5th Cir. 2005). III. AN A L Y S I S A. Constitutional Claims Section 1983 provides a private right of action for violations of federal law by those acting under color of state law. 42 U.S.C. § 1 9 8 3

. In claiming a constitutional violation, Wells first ar g u e s t h a t he was denied access to the courts because he was unable to effectively research and prepare his federal and state collateral attacks. Wells missed the filing deadline for his federal habeas petition and he has not yet filed his Texas state habeas petition. 1 1

On app eal, Plaint iff-Ap pel lant Well s als o fil ed a mo tio n for app oint me nt of couns el, 1 0 wh ich wa s car riedw ith the cas e.

It is uncle ar wh ethe r W e l l s is als o tryin g to sue the De fen dant s- App elle es for 1 1 violat ions of Title II of the ADA unde r Sec tion 1983. To the exten t that he is, this clai m mus t 7 Case: 10-20648 Document: 00511751037 Page: 7 Date Filed: 02/07/2012No. 10-20648

It has long been recognized that prisoners enjoy the constitutional right of access to the courts. See Bounds v. Smith , 430 U.S. 817, 821–22 (1977). The Supreme Court has not, however, established that prisoners have a freestandi n g right to a law library or legal assistance. Lewis v. Casey , 518 U.S. 343, 350–51 (1996). Rather, access to a prison law library i s only a means for assuring “a reasonably adequate opportunity [for an inmate] to file nonfrivolous legal claims challenging

. . . convictions or conditions of confinement.” Lewis , 518 U.S. at 356; Johnson v. Rodriguez , 110 F.3d 299, 310–11 (5th Cir. 1997). Thus, claims

a l l e g i ng violations of a right of access to courts are not cognizable unless the inmate’s position as a litigant w a s a c tually prejudiced by the denial of access. McDonald v. Steward , 132 F.3d 225, 230–31 (5th Cir. 1998). To prove an “actual injury,”an inmate must prove that his ability to pursue a claim was hindered or barred by the defendant’s actions. See Lewis , 518 U.S. at 351–52. Here, the record shows that Wells had effective access to a law library at all relevant times. For example, the record shows that Wells was permitted to complete legal research and prepare filings with the assistance of a prisoner of his request, usually Cole or Willis, and t hat this accommodation was provided

even b e fore the TDCJ’s information about Wells’s vision was corrected. Wells offers no evidence indicating that the prisoners available to assist him were not competent or that he was not able to adequately prepare his filings after having materials read to him. See Lew i s , 518 U.S. at 360 (stating that illiterate

p r i s oners must be given only the “minimal help necessary to file particular claims that they wish to bring

. . . ”). Additionally, the record shows that Wells

was permitted to a c c e s s t h e library on a regular basis, often for long visits. Thus, Wells fails to offer evidence creating an issue of material fact on his access to courts clai m

. Jones v. Greninger , 188 F.3d 322, 325–26 (5th Cir. 1999) (per

be dis mi ss ed. See D. A. ex rel

. Latas ha A. v. Ho us. Indep. Sch. Di st. , 629 F.3d 450, 456–57 (5t h Cir. 201 0). 8 Case: 10-20648 Document: 00511751037 Page: 8 Date Filed: 02/07/2012No. 10-20648

curiam) (finding law library access for several hours a week more than sufficient to meet constitutional requirements). 1 2 Additiona l l y , t o the extent that Wells alleges that reliance on another prisoner violated a constitutio n a l ly protected privacy interest because his conviction might be revealed, Wells’s argument f a i l s because the details of his conviction are a matter of publi c r e c ord. See Zaffuto v. City of Hammond , 308 F.3d 485, 490–91 (5th Cir. 2002) (stating that only disclosure of “intimate facts” constitutes a constitutional privacy violation); see also Paul P. v. Verniero , 170 F.3d 396, 403 (3d Cir. 1999) (stating that there is no constitutionally protected privacy interest in the details of one’s conviction); Eagle v. Morgan , 88 F.3d 620, 625–26 (8th Cir. 1996) (same); Cline v. Rogers , 87 F.3d 176, 179 (6th Cir. 1996) (same ) ; N

i ls on v. Layton City , 45 F.3d 369, 372 (10th Cir. 1995) (same). Moreover, Wells does not offer any evidence showing that he is unable to use the library because the prisoners who assisted in reading or preparing filings leaked information about his offense or would harm him, or that the Estelle Unit failed to adequately protect him in the past from prisoners who pose a threat. Further, even assuming that the Estelle Unit is somehow responsible for Wells missing the dea d l i n e o n his federal habeas petition, Wells fails to show prejudice because he does not adequately allege grounds for an arguable claim

Even if the variou s dif fic ulti es that Well s com plai ned of in wo rk ing wi th Cole in the 1 2 fal l of 2007 are tak en into acc ount , suc h as the arr ang e m ent of chair s or the tabl e on wh ich the CCTV mac hine wa s plac ed, Well s st ill fai ls to sho w thathe w as deni ed acc es s to libr ary res ourc es

. The right of acc es s to the cour t “d oes not aff ord pr iso ners unlim ite d acc es s to pr iso n law libr arie s. ” McDo n a l d , 1 3 2 F .3d at 230. Rather , “[ l]i mi tat ions may be plac ed on libr ary acc es s so long as the regula tio ns are ‘re aso nably rela ted to legitim ate penolo gical intere st s. ’” Id. (quo ting Case

y , 518 U. S. at 361); s ee also Easo n v

. Tha le r , 14 F. 3d 8, 9–10 ( 5th Cir. 1994) (r ight of m eaningf

ul acce ss to cour ts may be validly narr ow ed und er certai n cir cum st ance s)

. He re, grievanc es sho w that sm aller chair s we re plac ed at the CCTV so an ais le in the libr ary wa s n o t b l o c ke d and that the larger tabl e wa s tem por aril y mo ved so a com put er coul d be plac ed on it, but thatt he tabl e w as so on ret urned

. The r eco rdd oes no t sugges t that Well s’ s acc es s t o C ole wa s ever ter mi nate d, even if they we re for ced to tem por aril y wo rk toget her wh ile sit ting at se par ate tabl es

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to relief. Brewster v. Dretke , 587 F.3d 764, 769 (5th Cir. 200 9 ). In his more d e f i n i t e statement, Wells says that he would have asserted “[a]llegations of misconduct, lack of evidence, and ineffective assistance of counsel” in his habeas petition. In his opposition to summary judgment, Wells adds a handful of vague and contradictory complaints about his attorney’s performance and the evidence against him. It is well-established that a valid guilty plea waives all nonjurisdictional defects, including an ineffective assistance of counse l c l a im, unless the ineffective assistance clai m affects the voluntariness of the plea. Smith v. Estelle , 711 F.2d 677, 682 (5th Cir. 1983). Based on his sparse al l e g ations, 1 3 Wells does not sufficiently state a claim for ineffective assistance of counsel that has an arguable chance of success. See Christopher v. Harbury , 536 U.S. 4 0 3, 415–16 (2002) (stating that allegations in access to courts claim must show that the underlying claim is “arguable,” and that the un d e r l y i n g claim must be adequately pled “just as if it were being independently pursued” ); Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (to be adequately alleged a claim must allege sufficient “factual content [to] allow[] the court to d r a w the reasonable inference that the defendant is liable f or the misconduct alleged.”). The district court was, therefore, correct in finding the allegations insufficient. Second, Plaintiff-Appellant Wells argues that the Estelle Unit violated his constitutional rights b y preventing him from sending and receiving mail. Specifically, Wells argues that the accommodations provided by the Estelle Unit

are insufficient for him to effectively write and receive letters. Courts have

To suc cee d on a clai m for inef fec tive ass ist ance of couns el, Well s wo uld need to pr ove 1 3 that his couns el’s per for man ce wa s def icie nt and that had it not been for the d e f i c i ent per for man ce he wo uld have ins ist ed on going to tri al. See Ar nol d v. T h a l er , 630 F.3d 367, 368–72 (5t h Cir. 2011) (s e t t i n g for th analys is for a clai m of inef fec tive ass ist ance of couns el bas ed on a guilty ple a); Ar ms tead v. Scott , 3 7 F

. 3 d 2 0 2, 206–07 (5t h Cir. 1994) (d es cri bing burd en of pr oving t hat couns el’s p erf orm ance w as def

icie nt and thatp rejud ice res ulte d)

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recognized that a prisoner has a right to send and receive mail under the First Amendment. See Thornburgh v. Abbott , 49 0 U

. S

. 4 0 1, 407 (1989); Johnson v. Goord , 445 F.3d 532, 5 3 4 (2d Cir. 2006). Here, however, there is no evidence that Wells w as denied access to mail services. For example, Smith-Cotton testifies that letter wr i t i n g g u i des and a mechanical reader are provided and that ADS instructors are also avai l a b l e t o h e lp read and write letters. Wells offers no evidence showing he was ever unable to send or write mail with these

resources when he w a n t e d to. Further undermining Wells’s claim is that he declined letter writing assistance from ADS caseworkers and did not attend scheduled meetings to discuss his needs. Wells also argues that he was unable to send mail because the sound card

was disabled on a computer in the Adaptive Resources C l i n i c. Smith-Cotton testifies that the computers in the lab are designed only for vocational training and that Wells had already acquired all of the computer skills that the lab provides. Thus, Wells fails to show that the disabled sound card resulted in any injury. Accordin g ly, Wells does not offer any evidence creating an issue of

1 4 material fact on his access to mail claim. 1 5

Well s doe s not argue in the dis tri ct cour t or on app eal that his legal fil ings we re read 1 4

or tam per ed wi th by pr iso n o f fic ials

. See Brew er v. Wil kins on , 3 F.3d 816, 825–26 (5t h Cir. 1993) ( des cri bing h eighte ned inte res t in outgo ing l egal mai l).

On app eal, De fen dant s- App elle es ass ert that they are enti tle d to qualif ied im mun ity 1 5

o n t he clai ms brou ght unde r Sec tio n 1983. Qu alif ied im mun ity wa s never rais ed by the De fen dant s- App elle es in thei r mo tio n for sum mar y judgm ent and it wa s never rule d on by the dis tri ct cour t, altho ugh it wa s lis ted as a def ens e in the ans we r. See Kel ly v. Foti , 77 F.3d 819, 822–23 (5th Cir. 1996) (ana lyzing wa iver of qualif ied im mun ity wh ere it wa s not suf fic ient ly rais e d b e l o w ) ; M

a rtin v. Thom as , 973 F.2d 449, 458–59 (5t h Cir. 1992) (s ame ). Becaus e we hold that the dist ric t cour t did not err in find ing that Well s fai ls to es tabl ish a cons tit utio nal violat ion on the me rit s, we need not det erm ine wh ethe r qualif ied im mun ity wa s wa ived, given that es tabl ish ing a cons tit utio nal violat ion is a nece ss ary st ep in overc om ing that def ens e. See Pasc o ex. rel

. Pasc o v. Knobl auc h , 566 F.3d 572, 579 (5t h Cir. 2 009) (la ying out elem ents of qualif iedim mun ity def

ens e).

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Finally, because Wells offers no evidence showin g t h a t a constitutional violation is ongoing or is likely to occur, the district court also properly dismissed the claims for declaratory and injunctive r e l i ef brought under Section 1983. Green v. Mansour , 474 U.S. 64, 68 (1985). 1 6 B. Title II of the Americans with Disabilities Act Plaintiff-Appellant Wells also brings claims for damage s and equitable relief under Title II of the ADA, argui n g that the Estelle Unit law library and Adaptive Resources C l inic denied him the benefits of and excluded him from participation in the services of those facilities. L i k e his constitutional claims, Wells argues that the law lib r a r y o r C l i nic should have been equipped with a current model computer with screen reading software, such as JAWS, as well as Braille or audio versions of legal resources and Westlaw or Lexis Nexis access. The district court dismissed these claims, finding that there was no evidence of a violation of Title II of the ADA. Because Wells sues the Defendants-Appellees in their official capacity for damages, the Defendants-Appell e e s a ssert state sovereign immunity as a defense to liability. Therefore, we must first d e t e rmine whether the DefendantsAppellees are entitled to immunity on Wells’s Title II claims. See United States v. Tex. Tech Univ. , 171 F.3d 279, 285–87 (5th Cir. 1999). The Supreme Court has held that Title I I o f t h e ADA validly abrogates state sovereign i m m u n i t y under the Fourteenth Amendment in certain cases. Se e United States v. Georgia , 546 U.S. 151, 159 (2006). In United States v

. Georgia , the Supreme Court established a three-part test for determining whether im m u n ity is validly abrogated in a given case. Id. First, we must

To the exten t that Well s se ek s dam ages agains t st ate off icia ls in the thei r o f

f icia l 1 6 cap acit ies unde r 42 U. S. C. § 1983, this clai m has been wa ived beca use i t w a s n o t rais ed on app eal. See Ge iger v. Jow ers , 404 F.3d 371, 373 n.6 (5t h Cir. 2005) (s tat ing that altho ugh pro se brie fs are cons tru ed liber ally that thes e brie fs are not im mun e fr om the rule “th at i ss ues and argum ents no t brie fedonap pea l a re aband oned”)

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determine “which aspects of the State’s alleged conduct violat e d T i t le II,” and then se c o n d , d etermine “to what extent such misconduct also violated the Fourteenth Amendment.” Id. Where the State’s conduct violates both Title II and the Fourteenth Amendment, Title II abrogates sovereign immunity. Where the conduct violates Title II, but not the Fourteenth Amendment, we must then determine “whether Congress’s purported abrogation of sovereign immunity as to that class o f c o n d u c t is nevertheless valid.” Georgia , 546 U.S. at 159; Tennessee v. Lane , 541 U.S. 509, 522–24 (2004); City of Boerne v. Flores , 521 U.S. 507, 529–36 (1997); Hale v. Ki ng , 6 4 2 F.3d 492, 497–98 (2011). Although this inquiry is often addressed on motion to dismiss, and thus phrased in t e r m s of whether the plaintiff suffic i ently “alleged” conduct violating Title II and the Fourteenth Amendment, other co urts have considered the record when the inquiry is conducted at the summary judgment stage. See, e.g. , Bolmer v. Olivia , 594 F.3d 134, 145–49 (2d Cir. 201 0 ) (considering record when determining abrogation in Title II claim); Morris v. Kingston , 368 F. App’x 686, 688–90 (7th Cir. 2010) (same); B u c h a n a n v. Maine , 469 F.3d 158, 170–77 (1st Cir. 2006) (explai n i n g that development of factual record may actually be necessary in

some cases and resolving issue based on summary judgment record); Kiman v. N.H. Dep’t of Corr. , 451 F.3d 274, 282–91 (1st Cir. 2006) (considering record). 1 7 Under that test, we will first consider whethe r W e l l s offers sufficient evidence to create an issue of material fact on his Title II claims. To succeed on

a claim under Title I I o f t h e A D A , a plaintiff must prove: “(1) that he has a qualifying disability; (2) that he is being deni ed the benefits of services,

programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that s u c h d iscrimination is

See also Ge or

gia , 546 U. S. at 160 (S teven s, J. conc urr ing) (no ting that rem and in 1 7 that dec isi on “w ise ly per mi t[ ted] the par tie s

. . . to cre ate a fac tual rec ord that wi ll info rm [t he Elevent h Am endm ent ques tio n]. ”)

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by reason of his disability.” Hale , 6 42 F.3d at 499. To recover monetary 1 8 damages, a plaintiff must prove that the discrimination was intentional. Delano-Pyle v. Victoria Cnty. , 302 F.3d 567, 574 (5th Ci r

. 2 0 02). The relevant regulations implementing the ADA were amended in September 2010. 75 Fed. Reg. 56,164 (Sept. 15, 2010). The amendments did not become effective until March 15, 2011, however, and they do not apply retroactively to any of Wells’s claims for compensatory rel i e f

. See Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 401 (5th Cir. 2011) (stating that “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result” (quotation marks omitted)); Sierra Med. Ctr.

v. Sullivan , 902 F.2d 388, 392 (5th Cir. 1990) (“Generally, courts will not apply regulations retroactively unless their language so requires.”). The version of the regulation in effect in 2007 required that public entities

“ 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 . . . conducted by a public entity.” 28 C.F.R. § 35.16 0(b)(1) (2007). When “determining what types of auxiliary aid and service is necessary, [the] public entity shall give primary considerat ion to the requests of the i n d i v i d ual with disabilities.” 28 C.F.R. § 35.160(b)(2) (2007). Additionally , under the version of the ADA in effect at the time Wells sued, “auxiliary aids and services” were defined as including “qualified r e a d ers, taped texts, or other

Title II pr ovide s that “[ s] ubject to the pr ovis ions of this sub chap ter , no q u a l i f i e d 18 indi vidual wi th a dis abilit y sha ll, by reas on of suc h dis abilit y, be exclud ed fr om par tic ipat ion in or be deni ed the benef i t s o f t h e se rvice s, pr ogram s, or act ivitie s of a publ ic enti ty, or be subject ed to dis cri mi natio n by any suc h enti ty. ” 42 U. S. C. § 12132; Pa. De p’t of Corr

. v. Yes key , 524 U. S. 206 , 209–10 (199 8) (ap plying this S ect ion to st ate pr iso n i nma tes ).

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effective methods of making vi s u al ly d e l iv ered materials available to individuals with visual impairments.” 42 U.S.C. § 12102(1 )(B) (2007). 1 9 2 0 The first element of a Title II claim, a qualifying disability, is not disputed. Thus, we w i l l p r o ceed to determine if Wells raises an issue of material fact on the second element o f h i s c l aim—whether he was “denied the benefits of services,

programs, or activities” of the Estelle Unit. First, Wells argues that he was denied the benefits of the law librar y b e c ause he was not provided the accommodation he ultimately r e quested—a computer with screen reading software, as well as Braille or audio versions of legal resources and Westlaw or Lexis Nexis access. The record indicates that Wells was provided same-session library visits with an inmate of his choosing who would read to him and otherwise assist him in preparing filings. Additionally, the law library provided Wells a list of other prisoners who were available to assist him. Thus, the record shows that the law library offered Well s a q u a l ified reader, which is listed in the ADA as a permissible auxiliary aid or service. Further , t he record shows that Hoke 2 1

The im ple me nting regula tio ns sim ilar ly def ined “auxil iary aids and s e r v i ces ” as 1 9 inclu ding, “[ q]ua lif

ied read ers , tap ed text s, aud io rec ord ings, Braill ed mat eria ls, large pr int mat eria ls, or othe r eff ect ive me thod s of mak ing visu a l l y del ivere d mat eria ls availabl e to indi vidual s wi th visua l i mp airm ents [. ]” 28 C. F.R. § 35.1 04 (200 7).

Well s fil ed his l a w s uit pr ior to the pas sage of the Ame ric ans wi th Di sab ilit ies Act 2 0 Ame ndm ents Act of 2008 (AD AAA), Pub. L. No. 110- 325, 122 Sta t. 3553 (200 8), and any of its

ame ndm ents do not app ly ret roac tivel y to the clai ms for com pens a t o r y reli ef. See EEOC v. Agro D is trib. , LLC, 555 F.3d462 , 469 n.8 (5t h Cir

. 2009)

.

The ter m qualif

ied read er wa s n o t d e f ined in the regula tio ns in eff ect at the tim e 2 1 Well s sued, 28 C.F. R. § 35.1 04 (200 7), altho ugh the term has sin ce been def ined as “a per so n wh o is able to read eff ect ively, acc urat ely, and im par tial ly u s i n g a n y nece ss ary sp ecia lized vocabu lary, ” 28 C.F. R. § 3 5

. 1 0 4 ( 2 0 11). Altho ugh this new def init ion wo uld not app ly ret roac tivel y, the com me ntar y to th e re gu lation s indi cat es that the ame ndm ent is not inte nded to low er the “qualif

iedreade r” s tand ard . 75 Fed. Reg. 56,164, 56,191; 28 C.F.R. Pt. 35, App. A (201 1). Well s doe s not off er any evide nce sho wi ng that the pr iso ners availabl e to ass ist him

we re n o t c a p ab le of read ing “ef fec tivel y, acc urat ely, and im par tial ly usi ng any nece ss ary sp ecia lized vocabu lary. ” Gi v e n t h a t t h e read ers off ere d by the Est elle Unit me et the new 15 Case: 10-20648 Document: 00511751037 Page: 15 Date Filed: 02/07/2012No. 10-20648

attempted to locate Braille and audio versions of legal resources, but found that these resources are not available. Although the law library did not p r o v i d e Wells his requested accommodations, the Defendants-Appellees demonstrate that the existing accommodations were more than sufficient to give Wells effective and meaningful access to the law library. See 28 C.F.R. Pt. 35, App. A (2007) (noting that although deference should be given to the auxiliary aid requested, it need not honor such request if it “can demonstrate that another effec t i v e means of communication exists”); Bircoll v. Miami-Dade Cnty. , 480 F.3d 1072, 1082 (11th Cir. 2 0 0 7 ) (same); Chisholm v. McManimon , 275 F.3d 315, 326 n.10 (3d Cir. 2001) (same); see also Tucker v. T e n n essee , 539 F.3d 526, 533 (6th Cir. 2008) (stating that accommodation is not a violation of ADA, even if “not ideal,” so long

as it is reasonable and effective); Burkhart v. Wash. Metro. Area Transit Auth. , 112 F.3d 1207, 1213 (D.C. Cir. 1997) (stating that although consideration should be given t o t h e i n d ividual’s choice, “[n]othing in the ADA itself or its implementing regulations dictates that a disabled individual must be provided with the type of auxiliary aid or ser vice he requests” and that deference to the

reque s t s i s “by no means required”); Petersen v. Hastings Pub. Schs. , 31 F.3d 705, 708–09 (8th Cir. 1994) (stating auxiliary aids need not be those chosen by individual if they are effective). Indeed, similar accommodations have b e en found sufficient in prisons in the past. See Mason v. Corr. Med. Servs., Inc. , 559 F

. 3 d 8 8 0 , 887–88 (8th Cir. 2009) (holding that similar accommodations for a blind inmate to use law library did not violate the ADA). Additionally, our conclusion that the provided auxiliary aids and services

are sufficient is informed by the context of this suit—a correctional facility—and

we accord the officials at the Estelle Unit deference in their determination of an

st andar d, t hey w ouldal so m eett he oldon e.

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appropriate accommodation. See Oliver v. Scott , 276 F.3d 736, 745 (5th Cir. 2002); Elliott v. Lynn , 38 F.3d 188, 190–91 (5th Cir. 1994)

. W e , t h e refore, conclude that Wells fails to offer evidence creating an issue of fact on his T i t l e II claim as it applies to the law library. Second, Wells argues that he was unable to effectively write and receive mail due to his disability. Wells requested that the Adaptive Resources Clinic provide JAWS software so he could read and write l e tters independently and privately. Again, the Defendants-Appellees offer evidence showing that the existing resources were effective , a n d W ells offers no evidence indicating that the existing resources are inadequate or did not meet his needs. The record also shows that Wells failed to take advantage of those resources, and it is not even clear that JAWS software, his requested accommodation , could help him read mail. Thus, Wells’s claim under Title II for access to the mail also fails. Because we find that Wells has failed to raise an issue of material fact on his claims under Title II of the ADA, we hold that the state is e n t i t l e d to immunit y a n d w e conclude that the claims for damages were properly dismissed. Additionally, Wells brings claims for injun c t i v e and declaratory

2 2

r e l i e f u nder Title II. As we noted, the relevant regulations were amended i n September 2010, and the new amendments became effective on March 15, 2011. 75 Fed. Reg. 56,164 (Sept. 15, 2010). The district court ruled prior to the publication of the amendment, and it did not consider their effect. No argument is made on appeal related to whether the new amendments apply to Wells’s claims for prospective relief, or whether the amendments somehow change the substantive requirements of Title II. Because the amendments were published

Wells also bro ught clai ms againststat e off icer s in thei r indi vidualc apac ity and for 2 2 puni tive dam ages unde r the ADA. Thes e c l a i m s w e r e dis mi ss ed by the dis tri ct cour t, and Well s does not app eal that rulin g on app eal. Thus, thes e clai ms are wa ived. See Ge iger , 404 F.3dat373 n. 6. 17 Case: 10-20648 Document: 00511751037 Page: 17 Date Filed: 02/07/2012No. 10-20648

prior to parties submitting briefing, Wells could have addressed their effect, but did not, and he thus waives any argument he might have made based on them. See Geiger , 404 F.3d at 373 n.6; see also United States v. Griffith , 522 F.3d 607, 610 (5th Cir. 2008) (“It is a well worn principle that the failure to raise an issue

on appeal constitutes waiver of that argument.”). Because we already found that Wells fails to submit any evidence showing a violation of Title II as it applies to his claims for damages, and because Wells waives any argument that his claims for prospective relief should b e t r e a t ed differently due to the amendments, we find no error in the district court’s dismissal of the claims for prospective relief. We make no determination with respect to what effect, if any, these regulations would have on claims similar to Wells’s where the issue is properly raised. IV. C O N C L U S I O N For the foregoing reasons, we AFFIRM the dism i ssal of Wells’s claims brought u n d e r S e c t i o n 1983 and Title II of the ADA and we also DENY his motion for appointment of counsel.

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