FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ARMSTRONG; JAMES AMAURIC; 

RICHARD PONCIANO; JACK SWENSEN;

BILLY BECK; JUDY FENDT; WALTER

FRATUS; GREGORY SANDOVAL;

DARLENE MADISON; PETER

RICHARDSON; STEVEN HILL; DAVID

ROSE; DAVID BLESSING; ELIO

CASTRO; ELMER UMBENHOWER;

RAYMOND HAYES; GENE HORROCKS;

No. 09-17144 KIAH MINCEY; CLIFTON FEATHERS;

W D.C. No. ILLIE JOHNSON; DAVID BADILLO;  JAMES SIMMONS; FLORA ABRAMS; 4:94-cv-02307-CW

JOEY GOUGH; TIMOTHY WHISMAN, OPINION

Plaintiffs-Appellees,

v.

ARNOLD SCHWARZENEGGER;

MATTHEW CATE; BERNARD WARNER;

SHARON AUGUST; DEBORAH HYSEN;

SUZAN HUBBARD; ROBERT

AMBROSELLI,

Defendants-Appellants. 

Appeal from the United States District Court

for the Northern District of California

Claudia A. Wilken, District Judge, Presiding

Argued and Submitted

January 28, 2010—Pasadena, California

Filed September 7, 2010

Before: Stephen Reinhardt, A. Wallace Tashima and

Marsha S. Berzon, Circuit Judges.

13469
Opinion by Judge Reinhardt

13470 ARMSTRONG v. SCHWARZENEGGER
COUNSEL

Michael W. Bien, Ernest Galvan, Gay C. Grunfeld, Blake

Thompson, Warren E. George, San Francisco, California, and

Donald Specter, Sara Norman, Linda Kilb, Berkeley, California, for the plaintiffs-appellees.

Edmund G. Brown Jr., Attorney General of the State of California; Jonathan L. Wolff, Senior Assistant Attorney General;

Jay C. Russell, Supervising Deputy Attorney General; Scott

J. Feudale, Deputy Attorney General, San Francisco, California, for the defendants-appellants.

Thomas E. Perez, Assistant Attorney General of the United

States, Samuel Bagenstos, Deputy Assistant Attorney General, Mark L. Gross, Attorney, Civil Rights Division of the

ARMSTRONG v. SCHWARZENEGGER 13473
Department of Justice, Conor B. Dugan, Attorney, Civil

Rights Division of the Department of Justice, Washington,

D.C., for amicus curiae the United States. 

OPINION

REINHARDT, Circuit Judge:

More than a decade and a half ago, disabled prisoners and

parolees brought this action against the California officials

with responsibility over the corrections system and parole

proceedings. They sought accommodations to their disabilities that are required by the Americans with Disabilities Act,

the Rehabilitation Act, and the Constitution. Defendants

denied that they had any obligation to provide such accommodations, forcing plaintiffs to undertake years of litigation.

Plaintiffs prevailed repeatedly in the district court and in this

court. For most of the last decade, the litigation has been in

a remedial phase. 

Now, however, defendants are again denying any obligation to accommodate a set of disabled prisoners and parolees

held under California’s authority. Defendants house significant numbers of prisoners and parolees in jails operated by

California’s fifty-eight counties. Defendants contend that they

have no responsibility for ensuring that any disabled prisoners

and parolees that they so house receive accommodations.

Their primary contention is that the regulations implementing

the ADA, which make explicit that an entity cannot avoid its

ADA obligations by operating “through contractual, licensing,

or other arrangements” with third parties, 28 C.F.R.

§ 35.130(b)(1), are “manifestly contrary to the” ADA. See

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 844 (1984). That argument, and defendants’ other

arguments contesting their obligations to their prisoners and

parolees housed in county jails, are without merit. Accord13474 ARMSTRONG v. SCHWARZENEGGER
ingly, we affirm the portion of the district court’s decision

that holds that defendants are responsible for providing reasonable accommodations to the disabled prisoners and parolees that they house in county jails.

We also hold that the district court made the findings

required by the Prison Litigation Reform Act regarding the

necessity for relief and the narrowness and lack of intrusiveness of the relief order. We cannot affirm the precise relief

ordered by the district court, however, because plaintiffs

adduced insufficient evidence to justify such relief. Accordingly, we vacate and remand to the district court for further

proceedings, including the introduction of additional evidence

by the parties. The district court shall facilitate the parties’

efforts, in particular the plaintiffs’, to obtain evidence relevant

to the resolution of this question.

I

In 1994, plaintiffs, a class of all present and future California state prison inmates and parolees with certain disabilities,

sued defendants, California state officials with responsibility

for the operation of the Department of Corrections and Rehabilitation (the “CDCR”) and the Board of Parole Hearings

(“BPH”), challenging the State’s treatment of disabled prisoners and parolees. A series of decisions by the district court and

this court established that the Americans with Disabilities Act

( “ADA”), 42 U.S.C. §§ 12131-34, and the Rehabiliation Act

(“RA”), 29 U.S.C. § 794, applied to state prisoners, and that

defendants’ policies and procedures with regard to disabled

prisoners and parolees were inadequate and violative of the

ADA, the RA, and the Due Process Clause of the Constitution. See Armstrong v. Davis, 318 F.3d 965, 968-69 (9th Cir.

2003); Armstrong v. Davis, 275 F.3d 849, 854-58 (9th Cir.

2001); Armstrong v. Wilson, 124 F.3d 1019, 1020-21 (9th Cir.

1997); see also Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206

(1998). Pursuant to court orders, the CDCR defendants produced a remedial plan in January of 2001, and in March 2001,

ARMSTRONG v. SCHWARZENEGGER 13475
the district court entered a permanent injunction directing

enforcement of that plan. See Armstrong v. Davis, 58 F.

App’x. 695 (9th Cir. 2003). The district court entered a comparable permanent injunction with respect to the BPH defendants in 1999 and a revised permanent injunction in 2002. See

Armstrong, 275 F.3d at 858. 

Since the issuance of those injunctions and the decisions by

this court affirming them, the litigation has been in a remedial

phase, with defendants evaluating and modifying their procedures and policies and plaintiffs monitoring defendants’ compliance with the injunctions and the remedial plan and at

times seeking enforcement through the district court. Recent

developments in the litigation have focused on such issues as

defendants’ obligation to create and implement a computerized system for tracking prisoners and parolees with disabilities in order to ensure that necessary accommodations are

provided as prisoners and parolees move through the system.

See Armstrong v. Schwarzenegger, No. 4:94-cv-02307 (N.D.

Cal. May 30, 2006) (order granting motion to enforce revised

permanent injunction); Armstrong v. Schwarzenegger, No.

4:94-cv-02307 (N.D. Cal. Sept. 11, 2007) (order granting in

part plaintiffs’ motion to enforce the May 30, 2006 order).

At issue in the current appeal is plaintiffs’ May 28, 2009

motion to require defendants to track and accommodate the

needs of class members housed in county jails and to ensure

a workable grievance procedure for such class members. Pursuant to both contracts with the counties and its statutory

authority under Cal. Penal Code § 4016.5, the State houses

prisoners and parolees in county jails in a variety of circumstances, including, for example: for the period between a

parole hold being placed on an individual and the individual’s

parole revocation hearing; for the full term of parole subsequent to parole being revoked; and for in-custody drug treatment programs. In the aggregate, these policies lead to

significant numbers of persons incarcerated pursuant to the

State’s authority being housed in county jails; for instance, the

13476 ARMSTRONG v. SCHWARZENEGGER
San Mateo County Jail houses an average of 480 parolees a

day, and Alameda and Sacramento County jails each house an

average of 1000 parolees a day. In addition to these current

placements, we take judicial notice of the State’s recent proposal to alter its sentencing practices to place in county jails

approximately 14,000 persons who would otherwise be incarcerated in prisons. See Defendants’ Response to Three Judge

Court’s October 21, 2009 Order, Coleman v. Schwarzenegger,

Nov. 12, 2009, No. 2:90-cv-00520, (C.D. Cal Nov 12, 2009),

ex. A.

In their motion, plaintiffs sought an “order requiring Defendants to develop and implement effective policies and procedures ensuring all prisoners and parolees with mobility,

vision, hearing, developmental, kidney, and learning disabilities housed in county jails receive the accommodations they

need.” Defendants replied by denying any responsibility

towards such prisoners and parolees. On September 16, 2009,

the district court issued an order granting plaintiffs’ motion.

It found that defendants were violating the ADA, the RA and

the court’s prior orders by failing to provide disability accommodations for disabled class members housed in county jails.

It ordered defendants to develop and issue to the counties a

plan to comply with the ADA by improving the tracking of

state prisoners and parolees they house in county jails, notifying jails when the state sends the county a class member with

a disability, and ensuring that class members housed in the

jails have access to an adequate ADA grievance procedure.

The court ordered that “at a minimum” several specific provisions regarding the timing of tracking, and response to notice

of disabilities and class members’ grievances be included in

the plan. Defendants timely appealed.

II

As a preliminary matter, plaintiffs challenge our jurisdiction over this appeal. We have “jurisdiction of appeals from

all final decisions of the district courts of the United States.”

ARMSTRONG v. SCHWARZENEGGER 13477
28 U.S.C. § 1291. Plaintiffs contend that the district court’s

order was insufficiently final to invest us with jurisdiction.

“Under modern doctrine, ‘[a] “final decision” generally is one

which ends the litigation on the merits and leaves nothing for

the court to do but execute the judgment . . . .’ ” United States

v. One 1986 Ford Pickup, 56 F.3d 1181, 1184 (9th Cir. 1995).

Finality is “to be given a practical rather than a technical construction”: the finality requirement is intended to prevent

“piecemeal litigation” rather than to vindicate some purely

technical definition of finality. Id. Notably, some cases

involve more than one final decision. See id. at 1185. In particular, appeals courts have jurisdiction over post-judgment

orders, such as a district court might enter pursuant to the

jurisdiction it has retained to enforce a prior order. This court

has declared itself less concerned with piecemeal review

when considering post-judgment orders, and more concerned

with allowing some opportunity for review, because “unless

such [post-judgment] orders are found final, there is often little prospect that further proceedings will occur to make them

final.” See id. 

[1] The order here at issue required defendants to produce

a plan with specific features that would be disseminated to the

counties and that would govern future interactions between

defendants, the counties, and the disabled prisoners and parolees housed in the county jails. It did not contemplate further

orders except in the event of disagreement between defendants and plaintiffs over the details of the plan. If we did not

exercise jurisdiction here and the defendants in good faith

delivered the plan as ordered, it is unclear that there would be

any future opportunity for them to appeal. Accordingly, jurisdiction lies.

Plaintiffs’ argument to the contrary is not convincing. They

cite Balla v. Idaho State Board of Corrections, 869 F.2d 461

(9th Cir. 1989), for the proposition that “court orders which

require the submission of detailed plans are not final orders.”

Id. at 464-65; but cf. Armstrong I, 124 F.3d at 1022 (explain13478 ARMSTRONG v. SCHWARZENEGGER
ing that appellate jurisdiction under 28 U.S.C. § 1292 exists

over an order requiring submission of a plan so long as delaying the appeal until after the delivery of the plan “would not

clarify the questions on appeal,” and the “exact specifications

of the plan would not alter in a material manner the issues that

would be presented to the court of appeals”); United States v.

Alabama, 828 F.2d 1532, 1536-38 (11th Cir. 1987) (finding

appealable under § 1291 an order to submit a plan where the

order was “specific[ ], detail[ed], and comprehensive[ ]” in

describing the requirements of the plan). The order at issue in

this case, however, required more of defendants than the simple “submission” of a detailed plan present in Balla. In particular, the order at issue in Balla required the defendants in that

case to generate a plan that adhered to a set of “skeletal”

requirements and that would not be implemented until after

the district court had evaluated it, and, by separate order,

required the defendants to adopt it. See Balla, 869 F.2d at

463-64. The order at issue in the instant case required defendants not simply to submit a plan that would be put into effect

by a subsequent order, but to develop a plan and implement

it. Jurisdiction for the order discussed in Balla would have

been premature because nothing yet had been required of

defendants, other than to put effort into developing constructive solutions to their violations of federal law, which is a step

that courts can reasonably require defendants to take in order

to aid them in structuring relief that is narrow and minimally

intrusive. In contrast, here it is possible that no further proceedings would take place before defendants were required to

implement the plan that they seek to contest.

III

[2] One of the bases relied upon by the district court in

determining that defendants are responsible for ensuring that

class members housed in county jails receive the accommodations required by the ADA was a regulation implementing

Title II of that Act. The regulation states, “a public entity, in

providing any aid, benefit, or service, may not, directly or

ARMSTRONG v. SCHWARZENEGGER 13479
through contractual, licensing, or other arrangements, discriminate against individuals with disabilities.” 28 C.F.R.

§ 35.130(b)(1). This regulation was promulgated by the Attorney General pursuant to Congress’s direction that he promulgate regulations implementing Title II that are consistent with

the regulations governing Section 504 of the Rehabilitation

Act. See 42 U.S.C. § 12134. In accordance with the deference

principles outlined in Chevron, 467 U.S. at 844, “Department

of Justice regulations interpreting Title II should be given

controlling weight unless they are ‘arbitrary, capricious, or

manifestly contrary to the statute.’ ” McGary v. City of Portland, 386 F.3d 1259, 1269 n. 6 (9th Cir. 2004) (quoting Chevron, 467 U.S. at 844). 

[3] A bare reading of Title II does not suggest any reason

to conclude that the Attorney General’s interpretation of the

provision is arbitrary, capricious, or manifestly contrary to the

text of the statute. There is nothing in Title II’s brief and general statement that public entities may not discriminate against

disabled persons when providing services, programs and

activities that suggests that the Attorney General was incorrect in concluding that “the services, programs, or activities of

a public entity” include those services, programs and activities that public entities offer or undertake through third parties

by means of contracts and other arrangements. That a public

entity has contracted for the provision or occurrence of such

services, programs and activities seems sufficient to make

them “the services, programs, or activities” of that entity. 

[4] Notwithstanding the deference owed to the Attorney

General’s reading of Title II and that provision’s open and

general language, defendants contend that the regulation

plainly contradicts congressional intent, as expressed in the

language and structure of the statute, and, accordingly, that it

was error for the district court to rely on it. Their essential

argument is that whereas another provision of the ADA, Title

III, which bars discrimination on the basis of disability by certain private entities, contains language barring affected enti13480 ARMSTRONG v. SCHWARZENEGGER
ties from effecting such discrimination either “directly, or

through contractual, licensing, or other arrangements,” Title II

does not include any such language. According to defendants,

this difference indicates that Congress unambiguously

intended that public entities not be subject to liability for violations of the ADA when they provide programs or services

through arrangements with third parties.

[5] This contention is baseless. First, the Title II and Title

III provisions to which defendants point set forth similarly

short and general nondiscrimination rules.1 The Title III provision is followed by a “Construction” provision that spells

out, in more than a thousand words, detailed requirements that

the general rule imposes. See 42 U.S.C. § 12182. For example, the second of the Construction provision’s seven parts

specifies that the meaning of “[d]iscrimination includes failure” by those public entities described in the general rule “to

(A) make reasonable modifications . . . . ; (B) provide auxiliary aids and services . . . ; and (C) remove barriers consistent

with [certain] requirements . . . .” Id. at § 12182(b)(2)(A-C).

It is unreasonable to read Titles II and III together as barring

the Attorney General from adopting similar provisions with

respect to the implementation of Title II. Rather than Congress having intended to prohibit the adoption of parallel provisions when implementing Title II, it is more likely that it

1Title II’s prohibition on discrimination, 42 U.S.C. § 12132, reads: 

Subject to the provisions of this subchapter, 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. 

The “[g]eneral rule” of Title III, 42 U.S.C. § 12181(a), provides:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations of any place

of public accommodation by any person who owns, leases (or

leases to), or operates a place of public accommodation. 

ARMSTRONG v. SCHWARZENEGGER 13481
intended just the opposite: that the Attorney General at the

least consider Title III’s Construction section when adopting

regulations governing Title II.

[6] Second, consistent with the brevity of Title II’s

description of its prohibitions, the House Reports for the Title

make clear that, rather than the difference between the language of Title III and that of Title II signalling Congress’s

intention to omit the protections outlined in Title III but not

described in Title II, as defendants argue, Congress intended

that the protections of Title III be incorporated into Title II

and that Title II be construed in a manner consistent with the

regulations governing the RA and its identical protections.

For example, the House Committee on Education and Labor

stated:

The Committee has chosen not to list all the types of

actions that are included within the term “discrimination”, as was done in titles I and III, because this

title essentially simply extends the antidiscrimination prohibition embodied in section 504

[of the Rehabilitation Act] to all actions of state and

local governments. The Committee intends, however, that the forms of discrimination prohibited by

section 202 be identical to those set out in the applicable provisions of titles I and III of this legislation.

H.R. Rep. No. 101-485, pt. 2, at 84 (1990). Similarly, the

House Judiciary Committee stated that “Title II should be

read to incorporate provisions of titles I and III which are not

inconsistent with the regulations implementing Section 504 of

the Rehabilitation Act of 1973.” H.R. Rep. No. 101-485, pt.

3, 51 (1990). This statement of intent by the Judiciary Committee is echoed in the statute, which, as noted, includes a

directive that the Department of Justice promulgate regulations implementing Title II that are consistent with the regulations governing Section 504 of the Rehabilitation Act. See 42

U.S.C. § 12134. The bar in the Title II regulation, 28 C.F.R.

13482 ARMSTRONG v. SCHWARZENEGGER
§ 35.130(b)(1), on discrimination “through contractual,

licensing, or other arrangements” is fully consistent with the

regulations implementing Section 504: those regulations state,

and have stated since their original promulgation in 1978, that

a recipient of federal financial assistance may not discriminate

“directly or through contractual, licensing, or other arrangements, on the basis of handicap.” 28 C.F.R. § 41.51; see also

43 Fed. Reg. 2132, 2134 (Jan. 13, 1978); 46 Fed. Reg. 40686

(Aug. 11, 1981). 

[7] Accordingly, the regulations are not “manifestly contrary to the statute.” Indeed, they reflect the fairest reading of

the statute. Defendants’ contention that the regulations are

invalid is in error.2

2Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169 (9th Cir. 1999), on

which defendants rely to make their structural argument, does not suggest

a different result. In Zimmerman, this court found that Title II of the ADA

did not cover employment discrimination, notwithstanding an implementing regulation that said that it did. This court reasoned that the text of Title

II clearly concerns itself not with “inputs” of public agencies, such as

employment, but with “outputs,” including a public agency’s “services,

programs, [and] activities.” See id. at 1174. It further reasoned that the

structure of the ADA militated against a finding that Title II applies to

employment. See id. at 1176-79. Title I of the ADA, entitled “Employment,” deals extensively with employment, and regulating employment

under Title II would both render Title I redundant and eviscerate its procedural requirements. See id. at 1176. 

As relates to the instant case, consistent with this court’s decision in

Zimmerman, the challenged regulation applies Title II to an “output” of a

public agency, namely the services, programs, and activities that the

CDCR provides to or imposes upon class members. Moreover, there is no

argument that the activities of the CDCR and Board that those agencies

accomplish through contracting and similar arrangements with the counties are regulated by any other title within the ADA, much less that regulating those activities under Title II would eviscerate or in any way

damage any other section of the ADA. 

ARMSTRONG v. SCHWARZENEGGER 13483
IV

Defendants also contend that, even if valid, 28 C.F.R.

§ 35.130(b)(1) and 28 C.F.R. § 41.51, the regulation implementing § 504 of the RA,3

 do not apply to their arrangements

with the county jails because those arrangements do not provide prisoners and parolees with any “aid, benefit or service,”

but rather provide for the incarceration of such individuals. 

[8] This contention is foreclosed by our precedent and that

of the Supreme Court. Although we have noted that “incarceration itself is hardly a ‘program’ or ‘activity’ to which a disabled person might wish access,” we have made clear that the

ADA entitles inmates to receive the “benefits” of the incarcerating institution’s programs and services without facing discrimination on account of a disability. See Armstrong, 124

F.3d at 1023. The Supreme Court has also rejected defendants’ position, saying, “We disagree” with the contention

“that state prisons do not provide prisoners with ‘benefits’ of

‘programs, services, or activities’ as those terms are ordinarily

understood . . . . Modern prisons provide inmates with many

recreational ‘activities,’ medical ‘services,’ and educational

and vocational ‘programs,’ all of which at least theoretically

‘benefit’ the prisoners.” Yeskey, 524 at 210. 

[9] Here, plaintiffs do not complain that they have been

denied incarceration on account of their disabilities. Instead,

they contend that, on account of their disabilities, they have

been denied benefits provided to other incarcerated persons or

required by due process. The State’s contracts and arrangements with the counties are not simply to incarcerate parolees

and prisoners, but to provide such individuals with various

positive opportunities, from educational and treatment pro3Although defendants suggest that this regulation too was invalid, they

offer no argument as to why, nor, incidentally, do they explain why, even

if we found the Title II regulation invalid, the court could not have simply

acted under § 504 and its implementing regulations. 

13484 ARMSTRONG v. SCHWARZENEGGER
grams, to opportunities to contest their incarceration, to the

fundamentals of life, such as sustenance, the use of toilet and

bathing facilities, and elementary mobility and communication. The restrictions imposed by incarceration mean that all

of these positive opportunities must be provided or allowed to

individuals incarcerated pursuant to state contracts and

arrangements to the same extent that they are provided to all

other detainees and prisoners. Accordingly, such state-county

arrangements include “benefits” of programs or services provided to class members by defendants through their contracts

and other arrangements with the counties, and come under the

purview of the ADA and its regulations.

V

[10] Defendants next argue that the order violates the federalism principles announced in Printz v. United States, 521

U.S. 898, 919-21 (1997), and New York v. United States, 505

U.S. 144, 174-77 (1992).4 This argument too is without merit.

In Printz, the Supreme Court invalidated a provision of the

Brady Act requiring state law enforcement officers to conduct

background searches of prospective gun purchasers, which the

court reasoned was in actuality an attempt to compel states to

enact or enforce a federal regulatory program. See Printz, 521

U.S. at 904. In New York, the Court invalidated a federal law

requiring states either to regulate the disposal of radioactive

waste by private parties according to federal guidelines or to

take title to such waste. See New York, 505 U.S. at 174-75. In

both cases, what concerned the Court was the federal government’s apparent attempt to commandeer state officials to help

it enforce its regulatory schemes against third parties. 

4Plaintiffs contend that the issue is waived, because it was not raised to

the district court. This court, however, may hear an issue raised for the

first time on appeal so long as “the issue presented is a pure question of

law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court,” conditions which here obtain. See

Raich v. Gonzales, 500 F.3d 850, 868 (9th Cir. 2009). 

ARMSTRONG v. SCHWARZENEGGER 13485
[11] Here, the district court did not order defendants to

implement or enforce the ADA against third parties. At issue

are defendants’ own obligations under the ADA. The district

court did not require the state to ensure that the county jails

provide ADA accommodations to every person housed in

those jails. It simply required the State to ensure ADAcompliant conditions for prisoners and parolees being held

under its authority, whether it houses such persons in its own

facilities or chooses to house them with the counties. The

State’s only obligation under the order is with regard to its

own prisoners and parolees, and it is triggered in this case

purely by the State’s choice to house incarcerated persons in

the county jails. The State could avoid all obligations to

ensure that anyone in the county jails receives the accommodations required by the ADA by choosing not to house class

members in those jails. This distinction — between a general

mandate to enforce federal law, and a requirement that the

state not avoid its own obligations under federal law by contracting with other entities — sets this case apart from the

concerns expressed in Printz and New York about the federal

government using the states as vehicles for the implementation and enforcement of federal laws. Finally, this case is not,

like Printz and New York, an attempt by the federal government to require the State to carry out a federal obligation.

Rather, it is an action by private parties — the class of plaintiffs — to enforce their own rights under federal law and the

Constitution.

VI

[12] Defendants’ next contention is that the order runs

afoul of the deference that courts must show to prison officials in order to ensure the safe and effective management of

prisons. “[W]hen a prison regulation impinges on inmates’

constitutional [or statutory] rights, the regulation is [nonetheless] valid if it is reasonably related to legitimate penological

interests.” See Turner v. Safley, 482 U.S. 78, 84-85(1987);

Gates v. Rowland, 39 F.3d 1439, 1446-47 (9th Cir. 1994).

13486 ARMSTRONG v. SCHWARZENEGGER
Defendants argue that “the ordered plan requires that parolees

be removed from county jails to CDCR prisons if jails exhibit

‘patterns’ of ADA non-compliance,” and that they “have

legitimate penological reasons to house accused parole violators in county jails rather than in state prisons,” that outweigh

any impingement on class members’ federal rights.

[13] Defendants misstate what the order requires, and

demand deference to which they are not entitled. The order

does not contain any requirement that defendants shift parolees to CDCR facilities if the jails exhibit patterns of ADA

non-compliance. Rather, it requires that if defendants become

aware of a class member housed in a county jail who is not

being accommodated, they either see to it that that jail accommodates the class member, or they move the class member to

a facility — which could be either a CDCR facility or a

county jail — which can accommodate his needs. See Armstrong v. Schwarzenegger, No. 4:94-cv-02307 (N.D. Cal.

Sept. 16, 2009) at 13. If they become aware of a “pattern” of

ADA noncompliance, they are to notify county jail officials

and take steps to remedy the pattern of noncompliance. Id. at

13-14. These features of the plan reflect the fact that the policy that plaintiffs challenge is not that of housing some class

members in jails, but that of failing to ensure that such class

members receive the accommodations that they need and to

which they are entitled. None of what defendants present as

legitimate penological reasons addresses this latter policy, and

we are not aware of any penological reasons that would support it.

VII

[14] The Prison Litigation Reform Act provides that courts

“shall not grant or approve any prospective relief [with

respect to prison conditions] unless the court finds that such

relief is narrowly drawn, extends no further than necessary to

correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal

ARMSTRONG v. SCHWARZENEGGER 13487
right.” 18 U.S.C. § 3626(a)(1)(A). Defendants argue that the

September 16 order violates this need-narrownessintrusiveness requirement in two ways. First, they contend

that a court must make the required need-narrownessintrusiveness findings on a provision-by-provision basis,

explaining why each element of the ordered relief is the narrowest and least intrusive means possible of correcting defendants’ ADA violations, and that the district court failed to

make the requisite findings. Second, they argue that the plan

is neither narrowly drawn nor minimally intrusive.

[15] With regard to their first contention, the language of

the PLRA does not suggest that Congress intended a

provision-by-provision explanation of a district court’s findings, and there is no practical reason why we should read such

an obligation into the statute. Nowhere does § 3626(a)(1)

explain what it means to “find[ ]” that relief is appropriate,

nor does it explain whether “any prospective relief” refers to

a remedial order as a whole or to each individual element of

such an order. It makes at least as much sense from a semantic standpoint to read “relief” as referring to the district

court’s order as a whole as it does to read the term as referring

to each separate provision of that order; it is, after all, the

order as a whole that redresses the violation of federal law,

and not any individual measure on its own. Accordingly, “[i]t

cannot be said that § 3626(a)(1) is unambiguous, or clearly

expresses Congress’ intent to depart from the traditional standard — findings sufficient to allow a ‘clear understanding’ of

the ruling — in favor of a painfully exacting standard under

which courts make such findings on a paragraph by paragraph, or even sentence by sentence, basis.” Benjamin v. Fraser, 156 F. Supp. 2d 333, 342 (S.D.N.Y. 2001); see also

Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001) (the

PLRA did “not substantially change[ ] the threshold findings

and standards required to justify an injunction”). Thus, we

understand the statutory language to mean that the courts

must do what they have always done when determining the

13488 ARMSTRONG v. SCHWARZENEGGER
appropriateness of the relief ordered: consider the order as a

whole.

In many cases it would not be possible for a district court

to produce meaningful need-narrowness-intrusiveness findings concerning each isolated provision of a remedial order.

Prospective relief for institutions as complex as prisons is a

necessarily aggregate endeavor, composed of multiple elements that work together to redress violations of the law. This

is all the more true when relief must be narrow and minimally

intrusive: courts often must order defendants to make changes

in several different areas of policy and procedure in order to

avoid interjecting themselves too far into any one particular

area of prison administration. In such circumstances, the

necessity of any individual provision cannot be evaluated in

isolation. What is important, and what the PLRA requires, is

a finding that the set of reforms being ordered — the “relief”

— corrects the violations of prisoners’ rights with the minimal impact possible on defendants’ discretion over their policies and procedures. 

Moreover, where a court has explained clearly the factual

circumstances underlying an order and its understanding of

the relevant law as applied to the facts, to require more than

a determination that it has found the requisite need, narrowness and lack of intrusiveness for that order would give rise

to unwarranted challenges to the findings no matter how

detailed those findings were and would unduly delay resolution of the already complicated proceedings necessary to remedy the underlying constitutional violations. See Benjamin,

156 F. Supp. 2d at 342. No one, not least the litigants hoping

to secure final decisions, would be served by adopting the

novel requirement that the state urges upon us.

[16] We have never previously held that it is necessary for

a district court to provide a Printz and New York explanation

of its need-narrowness-intrusiveness findings. Instead, we

have upheld as sufficient under the PLRA overall statements

ARMSTRONG v. SCHWARZENEGGER 13489
by the district court that the need-narrowness-intrusiveness

standard has been met; indeed, in our review of the 1999 permanent injunction that the district court entered against the

BPH we wrote approvingly of need-narrowness-intrusiveness

findings by the district court that were delivered in exactly the

same form as those at issue in the instant appeal. See Armstrong, 275 F.3d at 872.

Defendants’ arguments with regard to their second contention, that the relief ordered as a whole is not the narrowest,

least intrusive relief possible, are remarkably weak. They do

not suggest any means to protect class members’ rights under

the ADA that are more narrow or less intrusive than those

ordered by the district court. Intrusiveness is a particularly

difficult issue for defendants to argue, as by ordering them to

draft and promulgate a plan, the district court left to defendants’ discretion as many of the particulars regarding how to

deliver the relief as it deemed possible. Allowing defendants

to develop policies and procedures to meet the ADA’s

requirements is precisely the type of process that the Supreme

Court has indicated is appropriate for devising a suitable

remedial plan in a prison litigation case. See Armstrong, 275

F.3d at 883 (Berzon, J., concurring); see also Lewis v. Casey,

518 U.S. 343, 362-63 (1996).

Additionally, the arguments that defendants make under the

guise of intrusiveness do not address the core concern of the

intrusiveness inquiry: whether the district court has “enmeshed [itself] in the minutiae of prison operations,” beyond

what is necessary to vindicate plaintiffs’ federal rights. See id.

at 362 (quoting Bell v. Wolfish, 441 U.S. 520, 562 (1979)).

Instead, they focus almost exclusively on the magnitude of the

burden that the court’s order imposes upon the State, an issue

that is beside the point. A demonstration that an order is burdensome does nothing to prove that it was overly intrusive.

With Congress having made the decision to recognize the

rights of disabled persons, the question is not whether the

relief the court ordered to vindicate those rights is expensive,

13490 ARMSTRONG v. SCHWARZENEGGER
or difficult to achieve, but whether the same vindication of

federal rights could have been achieved with less involvement

by the court in directing the details of defendants’ operations.

We note, moreover, that defendants’ claims that the order is

burdensome are belied by the proposed draft plan that they

have circulated, which conforms in large part to the order’s

requirements and does so, according to their own earlier statements, at a fraction of the expense that they now claim that

the order will compel them to incur. 

Defendants’ arguments that the relief ordered was not narrowly drawn are no more convincing. Defendants contend

that the district court should have ordered them to develop a

plan to share information concerning disabled parolees with

the county jails in order to help the counties “enhance” their

own ADA compliance. Beside trying to lay their own responsibilities at the feet of the counties, defendants do not suggest

that such an information sharing plan would correct the federal law violations at issue: “enhanced” ADA compliance

with regard to inmates kept in county jails may not constitute

actual compliance. 

[17] Defendants also suggest that it was not necessary for

the district court to order them to ensure that class members

housed in county jails are accommodated, because the class

members could obtain a remedy by suing the jails. That

another party could be sued, and that such a suit might ultimately lead to that party being ordered to do something to

correct the violation of a federal right, is not a narrower or

less intrusive form of relief within the meaning of the statute.

It is elementary that a plaintiff may sue a party who is liable

for his injury and that a defendant cannot avoid liability, or

the remedy for that liability, by demonstrating that plaintiff

could have sued another party as well. In other words, defendants cannot shirk their obligations under the ADA by suggesting that because an order requiring that a non-defendant

provide relief to the plaintiffs would be narrower and less

intrusive on defendants, the relief ordered by the court against

ARMSTRONG v. SCHWARZENEGGER 13491
them does not satisfy the PLRA. Additionally, the counties

could make the same argument in response to any relief

ordered against them — that from their point of view relief

would be narrower and less intrusive if the State were ordered

to provide it — with the irrational and unacceptable pingpong result that a plaintiff harmed by two entities could get

no relief from either. In short, the defendants have the responsibility of ensuring that their prisoners are afforded their

rights under the ADA, regardless of where the State incarcerates them, and the narrowest and least intrusive relief is the

narrowest and least intrusive order that directs the State to

provide or ensure the relief to which the plaintiffs are entitled.

Although we reject with little difficulty the principal arguments advanced by the State, we cannot affirm the district

court’s determination that the relief it ordered “extend[ed] no

further than necessary to correct the violation of the Federal

right.” Such a determination cannot be made without evidence

sufficient to identify the nature and scope of the violations of

federal rights that are to be corrected. As we explain below,

the evidentiary record in this case is an insufficient basis for

the scope of the relief that has been ordered.

VIII

[18] “The scope of injunctive relief is dictated by the

extent of the violation established.” Lewis, 518 U.S. at 539.

“[I]f injunctive relief is premised upon only a few isolated

violations affecting a narrow range of plaintiffs, its scope

must be limited accordingly.” Armstrong, 275 F.3d at 870.

However, “if the injury is the result of violations of a statute

. . . that are attributable to policies or practices pervading the

whole system (even though injuring a relatively small number

of plaintiffs),” then “[s]ystem-wide relief is required.” Id.

Defendants argue that plaintiffs presented insufficient evidence to justify the system-wide relief ordered by the district

court. Although it is a close question, we agree.

13492 ARMSTRONG v. SCHWARZENEGGER
In issuing its order, the district court relied on very sparse

evidence of actual ADA violations in the county jails. Plaintiffs provided a great deal of hearsay reporting ADA violations in the county jails as well as a lack of grievance

procedures for remedying those violations, but the district

court stated that it relied on only the few pieces of evidence

that it determined were admissible, including an affidavit in

which one of plaintiffs’ attorneys described an observation of

nonaccessible bathroom facilities in a county jail; a declaration from another attorney describing his observation of parolees with obvious difficulty walking who had not been

provided with canes or wheelchairs; documentation produced

by defendants showing that wheelchair-bound prisoners and

certain diabetics are not allowed to participate in the drug

treatment alternative to incarceration for parole violators in

Orange County jail; and a CDCR memo admitting to a

several-days delay in transporting a paraplegic parolee from

jail to his hearing because no accessible vehicle was available.

The district court allowed that “many” of the ADA violations

on which it relied related to individuals who were not necessarily Armstrong class members, but stated that the evidence

nonetheless “support[ed] the inference that county jails do not

provide reasonable accommodations for . . . class members.”

[19] Defendants allege that much of the evidence on which

the district court relied was inadmissible hearsay. We do not

reach this contention. Even assuming that all the evidence on

which the district court relied was admissible, and even

according the district court the heightened deference that is

appropriate “where the court has been overseeing complex

institutional reform litigation for a long period of time,” Jeff

D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir. 2004), the evidence here constituted an insufficient basis for the systemwide relief that was ordered. We have previously stated that

an appeals court must defer to a district court’s determination

that system-wide relief is required “[s]o long as [its] conclusion is based upon adequate findings supported by substantial

evidence in the record.” Armstrong, 275 F.3d at 871. The eviARMSTRONG v. SCHWARZENEGGER 13493
dence of ADA violations in the jails with regard to class

members, however, cannot be described as “substantial”: it is

composed largely of single incidents that could be isolated.

Plaintiffs argue that “the decision to grant system-wide prospective injunction relief does not occur in a vacuum; it is

intimately connected to determinations made earlier in the

lawsuit.” See id. at 870-71. Plaintiffs do not, however, point

to any past determinations that show that class members

housed in county jails are not being accommodated. More

important, in issuing its order, the district court failed to identify any such determinations, and thus, we are required to conclude, did not rely on them when determining the scope of its

order.

[20] Accordingly, we conclude that the district court

abused its discretion by granting system-wide relief on the

basis of the sparse evidence on which it based its order, and

remand to allow it to take such additional evidence as may be

necessary concerning the nature and extent of the violations

of class members’ rights taking place in the county jails. We

note, however, that the burden facing plaintiffs, while formidable, is far from insurmountable. As we stated above, it is a

close question as to whether the evidence currently in the

record is sufficient to sustain the current order. It is undisputed that the State houses many class members in the county

jails, and that it has no adequate system for tracking and

accommodating those class members. As we have previously

observed, “[b]ecause the regulations implementing the ADA

require a public entity to accommodate individuals it has

identified as disabled . . . some form of tracking system is

necessary in order to enable [defendants] to comply with the

Act.” Armstrong, 275 F.3d at 876. This system-wide deficiency took plaintiffs much of the way towards a showing sufficient to justify the system-wide relief ordered by the district

court, but it was not enough in itself, or in tandem with the

minimal evidence of violations that was adduced, to justify

the scope of the relief that was ordered. Nonetheless, in light

of the State’s failure to track many of the class members that

13494 ARMSTRONG v. SCHWARZENEGGER
it houses in the county jails, not much more evidence than that

already provided may be required to approve the current

order. At the same time, we might observe that, in this case

as in others, too much evidence would certainly be preferable

to too little.

IX

[21] For the reasons stated above, we affirm the district

court’s determination that defendants cannot shirk their obligations to plaintiffs under federal law by housing them in

facilities operated by the third-party counties.5 This holding

should come as no surprise. Defendants’ arguments as to this

issue were of a barely colorable nature, constituting attacks on

manifestly valid regulations. Moreover, even in the absence of

a regulation explicitly saying so, a State cannot avoid its obligations under federal law by contracting with a third party to

perform its functions. The rights of individuals are not so

ethereal nor so easily avoided. We must vacate, however, the

portion of the district court’s decision ordering prospective

relief. Injunctions, whether controlled by the PLRA or otherwise, require evidence of rights violations commensurate with

the scope of the relief being ordered. Here, the evidence relied

upon by the district court was insufficient to justify that

scope. We remand to allow the parties to adduce additional

evidence and to permit the district court to prepare an order

supported by the evidence before it. In doing so, it may of

course take notice of the evidence of earlier proceedings

already in the record, but must identify such evidence with

specificity.

AFFIRMED IN PART, VACATED AND REMANDED

IN PART

5We deny plaintiffs’ motion for judicial notice and note that no judicial

notice is required for most of the materials for which plaintiffs requested

it. See Fed. R. Evid. 201 advisory committee’s note. 

ARMSTRONG v. SCHWARZENEGGER 13495