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. e du/thir dc ir c uit_1997/155Filed July 10, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7292

RONALD R. YESKEY,
APPELLANT

v.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JOSEPH D. LEHMAN; JEFFREY A. BEARD, PH.D.; JEFFREY K. DITTY; DOES NUMBER 1 THROUGH 20, INCLUSIVE,

APPELLEES

On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civ. No. 95-cv-02125)

Argued: January 31, 1997

Before: BECKER, ROTH, Circuit Judges , and BARRY, District Judge .*

(Filed July 10, 1997)

L. ABRAHAM SMITH, ESQUIRE (ARGUED)
P.O. Box 1644 Greensburg, PA 15601

Attorney for Appellant

___________________________________________________ ______________ *Honorable Maryanne Trump Barry, United States Dist rict Judge for the District of New Jersey, sitting by designation.THOMAS W. CORBETT, JR.

Attorney General R. DOUGLAS SHERMAN (ARGUED) Deputy Attorney General
CALVIN R. KOONS Senior Deputy Attorney General JOHN G. KNORR, III Chief Deputy Attorney General

Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120

Attorneys for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge

.

Ronald R. Yeskey is a Pennsylvania prison inmate wh o was denied admission to the Pennsylvania Department of Correction's Motivational Boot Camp program because of a history of hypertension, despite the recommendation of the sentencing judge that he be placed therein.1 Yeskey brought
suit in the district court under the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. , alleging that his exclusion from the program violated that e nactment.2

The district court dismissed Yeskey's complaint, Fe d. R.

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1. The Motivational Boot Camp Act, 61 P.S. §1121 et seq ., established a "motivational boot camp" to which certain inmates m ay be assigned by the Department of Corrections to serve their senten ces for a period of six months. The boot camp provides rigorous physical ac tivity, intensive regimentation and discipline, work on public projec ts, and other
treatment. Id. §1123. Pursuant to statute, placement of inmates i n the boot camp is discretionary, and, as such, no inmate has a right to such placement. Id. §1126(d). Upon successful completion of the six mo nths incarceration, the inmate is released on parole for intensive supervision as determined by the Pennsylvania Board of Probatio n and Parole. Id. §1127.

2. Yeskey also asserted claims under 42 U.S.C. § 19 83 and state law.

2Civ. P. 12(b)(6), holding that the ADA is inapplica ble to state prisons. The question of the applicability of the ADA to prisons is an important one, especially in view of the increased number of inmates, including many older, hearing-impaired, and HIV-positive inmates, in the nation's jails. See generally

Ira P. Robbins, George Bush's America
Meets Dante's Inferno: The Americans with Disabilit ies Act in
Prison , 15 Yale L. & Pol'y Rev. 49, 56-63 (1996). For the reasons that follow, we reverse.3

I.

Because this appeal turns on statutory construction , we begin with the text of the relevant statute, or mor e precisely, statutes. Although Yeskey only invoked t he ADA, our discussion necessarily involves Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Section 504 , the first federal statute to provide broad prohibitions again st discrimination on the basis of disability, applies only to programs and activities receiving federal financial assistance. Title II of the ADA, the broader statut e, enacted in 1990, extends these protections and prohibitions to all state and local government programs and activities, regardless of whether they receive federal financia l assistance. Congress has directed that Title II of the ADA be interpreted in a manner consistent with Section 504 , 42 U.S.C. § 12134(b), 12201(a),4 and all the leading c ases take up the statutes together, as will we.

The substantive provisions of the statutes are simi lar. Section 504 provides in pertinent part:

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3. By the time this case was listed for submission in this Court, only a short time remained on Yeskey's sentence, and we ha ve unfortunately been unable to dispose of it until now. He may have been released (the parties have not informed us on this point). Howeve r, Yeskey's complaint included a claim for damages, and hence the case is not moot. We also note that, since boot camp placement commences cont emporaneous with the execution of sentence, it would probably be nig h impossible to test improper exclusion from the boot camp program in fe deral court before the six month placement expires, likely creating a situation capable of repetition yet evading review, which excuses mootne ss.

4. See generally

Robbins, supra , at 73-76.

3No otherwise qualified individual with a disabilit y in

the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiv ing Federal financial assistance or under any program o r activity conducted by any Executive agency[.]

29 U.S.C. § 794(a).

Title II of the ADA provides in pertinent part:

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, o r activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132.

The statutory definition of "[p]rogram or activity" in
Section 504 indicates that the terms were intended to be all-encompassing. They include "all of the operations of -- (1)(A) a department, agency, special purpose distri ct, or other instrumentality of a State or of a local gove rnment . . . any part of which is extended Federal financi al assistance." 29 U.S.C. §794(b) (emphasis added). It is hard to imagine how state correctional programs would no t fall
within this broad definition.

Moreover, a word in a statute "must be given its `o rdinary or natural' meaning," see Bailey v. United States , 116 S. Ct. 501, 506 (1995), and the ordinary meanings of "acti vity" and "program" clearly encompass those that take pla ce in prisons. "Activity" means, inter alia , "natural or normal function or operation," and includes the "duties or function" of "an organizational unit for performing a specific
function." Webster's Third New International Dictio nary 22 (1986). "Program" is defined as "a plan of procedur e: a schedule or system under which action may be taken toward a desired goal." Id. at 1812. Certainly, operating a prison facility falls within the "duties or functio ns" of local government authorities. Moreover, Title II's defini tion of a "public entity" clearly encompasses a state or loca l correctional facility or authority: "any department, agency,

4. . . or other instrumentality of a State or States or local

government[.]" 42 U.S.C. § 12131(1)(B) (emphasis ad ded).

This conclusion is bolstered by the Department of J ustice (DOJ) regulations implementing both Section 504 and Title II of the ADA. These regulations were expressly aut horized by Congress, 29 U.S.C. § 794(a); 42 U.S.C. §§ 12134 (a), 12206, and, in view of Congress' delegation, the DO J's regulations should be accorded "controlling weight unless [they are] `arbitrary, capricious, or manifestly co ntrary to the statute,' " Babbitt v. Sweet Home Chapter of Communities for a Great Oregon , 115 S. Ct. 2407, 2418 (1995). The same is true of the preamble or comment ary accompanying the regulations since both are part of the DOJ's official interpretation of the legislation. T homas
Jefferson Univ. v. Shalala , 114 S. Ct. 2381, 2386 (1994). DOJ interprets both Section 504 and Title II of the ADA to apply to correctional facilities.

The regulations promulgated by DOJ to enforce Secti on 504 define the kinds of programs and benefits that should
be afforded to individuals with disabilities on a nondiscriminatory basis. The regulations define "pr ogram" to mean "the operations of the agency or organizati onal unit of government receiving or substantially benefiting from the Federal assistance awarded, e.g. , a police department or department of corrections ." 28 C.F.R. § 42.540(h) (1996) (emphasis added). The term "[b]enefit" includes "pr ovision of services, financial aid or disposition (i.e. , treatment, handling, decision, sentencing, confinement , or other prescription of conduct)." Id. § 42.540(j) (emphasis added). The appendix to the regulations, attached to the Fi nal Rule (45 Fed. Reg. 37620, 37630 (1980)), makes clear tha t services and programs provided by detention and correctional agencies and facilities are covered by Section 504. This coverage is broad, and includes "jails, p risons, reformatories and training schools, work camps, rec eption and diagnostic centers, pre-release and work releas e facilities, and community-based facilities." Id.

The appendix further provides that those facilities designated for use by persons with disabilities are "required
to make structural modifications to accommodate det ainees or prisoners in wheelchairs." Id. The DOJ regulations

5applicable to federally conducted programs also mak e it

clear that institutions administered by the Federal Bureau of Prisons are subject to Section 504. See 28 C.F.R. § 39.170(d)(1)(ii) (Section 504 complaint procedure for inmates of federal penal institutions); id. pt. 39, Editorial Note, at 675 (Section 504 regulations requiring nondiscrimination in programs or activities of the Department of Justice apply to the Federal Bureau o f Prisons); id. at 676 (federally conducted program is "anything a Federal agency does").

The regulations promulgated under Title II of the A DA afford similar protections to persons with disabili ties who are incarcerated in prisons, or otherwise instituti onalized by the state or its instrumentalities, regardless o f the public institution's receipt of federal financial assistan ce. The regulations state that the statute's coverage exten ds to "all services, programs, and activities provided or made available by public entities." Id. § 35.102(a). This broad language is intended to "appl[y] to anything a publ ic entity
does." Id. pt. 35, app. A, subpt. A at 456. As part of its regulatory obligations under Title II, the DOJ is d esignated as the agency responsible for coordinating the comp liance activities of public entities that administer "[a]l l programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institut ions." Id. § 35.190(b)(6). The preamble to the ADA regulations also refers explicitly to prisons, stating that, where a n individual
with disabilities "is an inmate of a custodial or c orrectional institution," the entity is required to provide"ass istance in toileting, eating, or dressing to [that] individual [ ]." Id. pt. 35, app. A at 468.5

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5. Moreover, the DOJ Title II Technical Assistance Manual specifically lists "jails and prisons" as types of facilities th at, if constructed or altered after the effective date of the ADA (Januar y 26, 1992), must be designed and constructed so that they are readily a ccessible to and usable by individuals with disabilities. Title II T echnical Assistance
Manual II-6.0000, II-6.3300(6). The design standards appl icable to facilities covered by Section 504 and Title II also include specific provisions relating to correctional facilities. The DOJ Section 504 regulations adopt the Uniform Federal Accessibility Standards (UFAS),

6In sum, Section 504 of the Rehabilitation Act, Titl e II of

the ADA, and the specific provisions in the DOJ's regulations listing correctional facilities or depa rtments as
covered entities confirm that the Rehabilitation Ac t and the ADA apply to state and locally-operated correctiona l
facilities.

II.

The weight of judicial authority also supports our conclusion that the ADA applies to prison programs. In Crawford v. Indiana Department of Corrections , ___ F.3d ___, 1997 WL 289101 (7th Cir. June 2, 1997), the Seventh Circuit held that Title II of the ADA applied to st ate prisons in the case of a blind, former state prisoner who s ought damages resulting from his exclusion from a variety of programs, activities, and facilities at the prison that were routinely available to the prison's population, inc luding educational programs, the library, and the dining h all. Accord Duffy v. Riveland , 98 F.3d 447, 455 (9th Cir. 1996); Harris v. Thigpen , 941 F.2d 1495, 1522 n.41 (11th Cir. 1991) (holding Rehabilitation Act applicable).

Two circuits have questioned the applicability of S ection 704 and Title II to prisons. See Torcasio v. Murray , 57 F.3d 1340, 1344-46 (4th Cir. 1995) (coverage of prisons by Section 504 and Title II not clearly established in qualified immunity context), cert. denied , 116 S. Ct. 772 (1996);

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which apply to federal agencies and entities receiv ing federal financial assistance. 28 C.F.R. § 42.522(b). UFAS lists"jails , prisons, reformatories" and "[o]ther detention or correction al facilities" as institutions to which the accessibility standards a pply. 41 C.F.R. subpt. 101-19.6, app. A at 150. Under Title II, covered en tities building new or altering existing facilities may follow either UFAS or the ADA Accessibility Guidelines for Buildings and Faciliti es (ADAAG). 28 C.F.R. § 35.151(c); see id. pt. 36, app. A. Amendments to the ADAAG, adopted as an Interim Final Rule, effective December 20, 19 94, by the Architectural & Transportation Barriers Compliance Board, include specific accessibility guidelines for "detention an d correctional facilities." 59 Fed. Reg. 31676, 31770-72 (1994). The Department of Justice has proposed adoption of the interim final rule. Id. at 31808. The ADAAG is not effective until adopted by the DOJ.

7White v. State of Colorado , 82 F.3d 364, 367 (10th Cir.

1996) (neither ADA nor Rehabilitation Act applies t o prison employment). In our view, these opinions are seriou sly flawed. The leading case in support of the Commonwe alth's position is Torcasio , which was followed by the district court here, and so we focus our sights on that case .6

The Fourth Circuit in Torcasio acknowledged that the broad language prohibiting discrimination on the ba sis of disability in both statutes "appears all-encompassi ng," 57 F.3d at 1344. Nevertheless, the Torcasio court was reluctant to find either statute applicable to pris ons because of the so-called "clear statement" doctrine , as set out in Will v. Michigan Department of State Police , 491 U.S. 58, 65 (1989):

if Congress intends to alter the "usual constitutio nal
balance between the States and the Federal Government," it must make its intention to do so "unmistakably clear in the language of the statute. " Atascadero State Hospital v. Scanlon , 473 U.S. 234, 242 . . . (1985); see also , Pennhurst State School and Hospital v. Halderman , 465 U.S. 89, 99 . . . (1984).

Because it found the operation of prisons to be a " core state function," 57 F.3d at 1345, and because neither Sec tion 504 nor Title II includes an express statement of i ts application to correctional facilities, the Torcasi o court expressed its doubt that Congress had "clearly" int ended either statute to apply to state prisons. Id. at 1346.

This extension of the clear statement rule was
unwarranted. Will , Atascadero , and Pennhurst all involved instances in which there had been no express waiver or abrogation of the state's traditional immunity from suit, either by the state itself (Pennhurst ), or by Congress (Will

, Atascadero ). Here, in contrast, both Section 504 and Title

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6. Torcasio did not decide whether either Section 504 or Title II of the ADA applies to prisons; rather, it concluded that s uch coverage was not clearly established at the time of the events at is sue, and that the
individual defendants in that case therefore were e ntitled to qualified immunity. In reaching its qualified immunity ruling , however, the
Torcasio court discussed the reach of the two statutes at l ength, and expressed its doubt that either applied to prisons.

8II of the ADA contain an "unequivocal expression of

congressional intent to overturn the constitutional ly guaranteed immunity of the several states." Pennhur st , 465 U.S. at 99 (internal quotation marks and citation o mitted);

see 42 U.S.C. § 2000d-7(a)(1) ("A State shall not be i mmune under the Eleventh Amendment . . . from suit in Fed eral
court for a violation of section 504 of the Rehabil itation Act."); id. § 12202 ("A State shall not be immune under the
eleventh amendment . . . from an action in Federal or State court of competent jurisdiction for a violation of[ the ADA].").

To be sure, when "Congress intends to alter the usu al
constitutional balance between the States and the F ederal Government, it must make its intention to do so unmistakably clear in the language of the statute." Gregory
v. Ashcroft , 501 U.S. 452, 460, 461 (1991) (internal quotation marks and citations omitted). This requir ement, however, is a "rule of statutory construction to be applied where statutory intent is ambiguous." Id. at 470. It is not a warrant to disregard clearly expressed congressio nal
intent.

Torcasio 's statement that Congress must specifically identify state or local prisons in the statutory te xt, if it wishes to regulate them, was expressly disavowed by the Supreme Court in Gregory . See id. at 467 ("This does not mean that the Act must mention judges explicitly.")

. Congress need only make the scope of a statute "pla in." Id. And Congress has done that here. Both Section 504 a nd Title II speak unambiguously of their application t o state and local governments and to "any" or "all" of thei r operations. In light of the clear and all-encompass ing language of both statutes, there is no basis for re quiring Congress to have detailed which of the many importa nt components of state and local governments were to b e included in the terms "any" and "all."

In Crawford , supra , just as in this case, the state relied on the fact that prison administration was a "core" state function in arguing that the clear statement rule w as triggered. Judge Posner responded most forcefully:

Prison administration is indeed a core function of state government, as is education. But the state's conces sion

9that the Americans with Disabilities Act applies to the

prison's relations with its employees and visitors, as well as to the public schools, suggests that the cl earstatement rule does not carry this particular core function of state government outside the scope of t he Act. We doubt, moreover, that Congress could speak much more clearly than it did when it made the Act expressly applicable to all public entities and def ined the term "public entity" to include every possible agency of state or local government. Maybe there is an inner core of sovereign functions, such as the bala nce of power between governor and state legislature, th at if somehow imperiled by the ADA would be protected by the clear-statement rule, cf. Gregory v. Ashcroft , supra , 501 U.S. at 461-63; but the mere provision of publi c services, such as schools and prisons, is not withi n that inner core.

Crawford , ___ F.3d ___, 1997 WL 289101, at *4. We agree.

III.

Despite the Commonwealth's contention to the contra ry, moreover, prisoners (in contrast to prisons ) are not excluded from coverage because Section 504 and Title II prot ect only "qualified individual[s] with a disability." That t erm is
defined in Title II to mean:

an individual with a disability who, with or withou t
reasonable modifications . . . meets the essential eligibility requirements for the receipt of service s or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2). The terms "eligibility" and "participation" do not, as Torcasio stated, see 57 F.3d at 1347, "imply voluntariness" or mandate that an indi vidual seek out or request a service to be covered. To the contrary, the term "eligibility" simply describes those who a re "fitted or qualified to be chosen," without regard to their own wishes. See Webster's Third New International Dicti onary , supra at 736.

Judge Posner addressed a related aspect of the case quite incisively:

10It might seem absurd to apply the Americans with

Disabilities Act to prisoners. Prisoners are not a favored group in society; the propensity of some of them to sue at the drop of a hat is well known; pri son systems are strapped for funds; the practical effec t of granting disabled prisoners rights of access that m ight require costly modifications of prison facilities m ight be the curtailment of educational, recreational, and rehabilitative programs for prisoners, in which eve nt everyone might be worse off. But . . . there is ano ther
side to the issue. The Americans with Disabilities Act was cast in terms not of subsidizing an interest gr oup but of eliminating a form of discrimination that Congress considered unfair and even odious. The Act assimilates the disabled to groups that by reason o f sex, age, race, religion, nationality, or ethnic or igin are believed to be victims of discrimination. Rights ag ainst discrimination are among the few rights that prison ers do not park at the prison gates. Although the speci al conditions of the prison setting license a degree o f
discrimination that would not be tolerated in a fre e environment, there is no general right of prison of ficials to discriminate against prisoners on grounds of rac e, sex, religion, and so forth. If a prison may not ex clude blacks from the prison dining hall and force them t o eat in their cells, and if Congress thinks that discriminating against a blind person is like discriminating against a black person, it is not ob vious that the prison may exclude the blind person from t he dining hall, unless allowing him to use the dining hall would place an undue burden on prison management.

Crawford , __ F.3d __, 1997 WL 289101, at *5 (citations omitted). We agree here as well.

In sum, in enacting the ADA, Congress "invoke[d] th e sweep of [its] authority, including the power to en force the fourteenth amendment and to regulate commerce, in o rder to address the major areas of discrimination faced day-today by people with disabilities." 42 U.S.C. § 12101 (b)(4). The "critical areas" in which "discrimination again st individuals with disabilities persists" were set fo rth in the statute, and include "institutionalization." Id. § 12101(a)(3).

11Thus, if the plain words of a statute are to guide the courts

in interpreting it, then both statutes must be held to apply
to state and local correctional facilities.7 Essent ially, the Commonwealth is asking us to amend the statute, something we cannot do.

IV.

The foregoing discussion establishes that the ADA a pplies to Yeskey's claim. His claim for injunctive relief is, apparently, moot in view of the impending (or actua l) completion of his prison term. His claim for damage s will turn, presumably, on whether he should (or would) h ave been admitted to the boot camp. Even with the ADA applicable, Yeskey might not have been admitted for a number of reasons, which will have to be explored o n remand.

The Commonwealth has invoked the specter of federal court management of state prisons:

Application of the ADA to internal prison management would place nearly every aspect of priso n management into the court's hands for scrutiny simp ly because an inmate has a disability. See Pierce v. K ing

, 918 F. Supp. 932, 941 (E.D.N.C. 1996). For instance

, if the ADA applies to routine prison decisions, it is not
unfathomable that courts will be used to reconstruc t cells and prison space, to alter scheduling of inma te movements and assignments and to interfere with security procedures.

Brief at 15. Although these considerations do not o verride our conclusion that the ADA applies to prisons, our holding does not dispose of the controversial and difficult question whether principles of deference to the decisions of prison officials in the context of constitutional law appl y to

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7. We add that the legislative history does not inv eigh against this conclusion. When the ADA was enacted in 1990, the R ehabilitation Act had been law for seventeen years and a number of ca ses had held it applicable to prisons and prisoners, yet Congress d id not amend that Act or alter any language so as to extirpate those inte rpretations.

12statutory rights. See generally Robbins, supra , at 94-97.8 We are not sure of the answer, and need not address that question now for, at all events, we doubt that it w ill be germane in this case. We do, however, "flag" it for another day.

The judgment of the district court will be reversed , and the case remanded for further proceedings consisten t with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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8. Turner v. Safley , 482 U.S. 78 (1987), establishes a four-part "reasonableness" test for judicial deference to pri son managment decisions in the face of constitutional challenges (usually under the Eighth Amendment). The first requirement is "a vali d rational connection" between the regulation and the alleged governmental interest. The second inquiry is whether alternative means exist for inmates to exercise the right under consideration. The third issue is the effect that accommodation of the asserted right wil l have on security, administrative efficiency, prison staff, and the la rger inmate population. The final prong of the test is whether an alternati ve means exists for prison officials to accomplish their objectives wit hout infringing on inmates' rights. See also O'Lone v. Estate of Shaba zz , 482 U.S. 342 (1987) (reaffirmed the Turner standard with respect to alleged infringement of inmates' First Amendment right to f ree exercise of religion).

The Ninth Circuit has held that the Turner standard applies to statutory rights such as those created by the ADA. In Gates v. Rowland

, 39 F.3d 1439 (9th Cir. 1994), the court reversed a lower court's ruling that denial of food-service positions to HIV-positi ve inmates discriminated against them impermissibly. Reasoning that, where constitutional protections bend, statutory privileg es must too, the court deferred to the penalogical concerns asserted by pr ison officials. The Eighth Circuit disagrees. See Pargo v. Elliott , 49 F.3d 1355 (8th Cir. 1995)(Turner

does not foreclose all heightened judicial review. )

13