FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 30, 2010

JOHN LEY

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________

No. 08-15819

_____________

D.C. Docket No. 05-00307-CV-FTM-29-SPC 

DARON EDISON,

Plaintiff-Appellant,

versus

TOMMY DOUBERLY, Warden,

BRENDA WILLIAMS, AFA Programs,

MR. LOVELL, Corrections Officer,

 Defendants-Appellees.

____________

Appeal from the United States District Court

for the Middle District of Florida

____________

(April 30, 2010)

Before BARKETT, PRYOR and HILL, Circuit Judges.
HILL, Circuit Judge:

Daron Edison, a prisoner in a Florida state prison, filed this action pro se,

alleging violations of the American With Disabilities Act, 42 U.S.C. §§ 12101-

12214 (the “ADA”). The district court granted summary judgment to defendants,

and Edison appeals.

I.

Daron Edison brought this action against Timothy Douberly, Brenda

Williams, and Timothy Lovell, alleging violations of Title II of the ADA by

defendants in their “official capacities” as employees of GEO Care Group, Inc.,

(“GEO”), a private prison management corporation operating a Florida state

prison. Edison sought injunctive relief and damages as the result of defendants’

alleged violations of Title II, which prohibits a “public entity” from discriminating

against qualified individuals with disabilities because of their disabilities. 42

U.S.C. § 12132.

Only public entities are liable for violations of Title II of the ADA. 42

U.S.C. § 12131. Pa. Dept. of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). The

district court granted summary judgment to defendants on the grounds that GEO is

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not a public entity and, therefore, not liable under the statute. It is to this question

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we now turn.

II.

Edison contends that GEO is a public entity under the ADA because Section

12131(1)(B) of the statute defines a public entity, in part, as an “instrumentality of

a State.” Edison bolsters his contention by application of traditional canons of

statutory interpretation to the term “instrumentality of a State.”

We agree with this approach to interpreting the term instrumentality of a

State. In fact, we agree with the Court of Appeals for the Second Circuit that

interpretation of the ADA’s use of the term “instrumentality of a State” is entirely

controlled by the statutory language itself. Green v. New York, 465 F.3d 65, 78-79

(2d Cir. 2006).

In Green, the plaintiff alleged that a private hospital was a public entity for

purposes of the ADA because it carried out a public function pursuant to a

contract with New York City to provide certain services. Id. at 78. The Second

Although GEO is not named as a defendant, plaintiff states that he has sued defendants 1

in their “official capacities” and that the lawsuit, therefore, is really a suit against the alleged

“public entity,” GEO. Plaintiff’s theory is that GEO is a public entity under the ADA, and,

therefore, its employees have official capacities. Because we hold that GEO is not a public

entity, we need not and do not decide whether its employees would have had official capacities if

it were.

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Circuit, however, said that the plaintiff’s theory “failed to grapple with the actual

words of the statute.” Id.

The court observed that, under the rules of statutory interpretation, the term

“public entity” must be given its plain meaning, and, if those words are susceptible

to more than one such meaning, their interpretation must be guided by the canons

of statutory construction. Id. Courts are not free, and may not elect, to adopt

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other interpretations of statutory language and expand the reach of a statute merely

because some might find it desirable. 

With these limitations in mind, the Second Circuit looked to the definitions

section of Title II. That section defines “public entity” to mean “any department,

agency, special purpose district, or other instrumentality of a State or States or

local government.” 42 U.S.C. §12131 (1)(B). The court, reasoned, therefore, that

the private hospital there could be a public entity only if it were an

“instrumentality of a State,” as it fit no other statutory category. Id. The 3

question, then, is what does the statute mean by the words “instrumentality of a

We move beyond these methods of statutory interpretation, to legislative intent and 2

policy considerations, only if both the plain meaning of the language and the canons of

construction fail to resolve the ambiguity. Id. 

The hospital, like the private prison management company here, was not a state or local

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government, a department, agency, or special purpose district of a state or local government or

the National Railroad Passenger corporation or a commuter authority.

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State.” Id.

“Instrumentality,” the Second Circuit observed, is a word susceptible of

more than one meaning. Id. at 79. Turning then to the canons of statutory

construction, the court noted that under the canon noscitur a sociis, “a word is

known by the company it keeps.” Id. (citing Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961)) (although noscitur a sociis is not an inescapable rule, “it is

often wisely applied where a word is capable of many meanings in order to avoid

the giving of unintended breadth to the Acts of Congress”).

The “company” which “instrumentality” keeps in this definition of public

entity include the words “department, agency, and special purpose district.” The

court noted that all of these words are qualified by the remaining words in the

definition – “of a State or States or local government.” Green, 465 F.3d at 79.

Agencies and departments are units of a governmental entity. A special purpose

district (in New York, as well as in Florida) is set up to serve the special needs of a

governmental entity, such as water conservation. The defining characteristic of all

of these entities is that they are either traditional governmental units or created by

one. Thus, the Second Circuit concluded, the words “instrumentality of a State”

were intended to refer, as do all the other words around them, to a governmental

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unit. Id. 

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The private hospital in Green was not such a governmental unit, the court

concluded. Nor was it created by a governmental entity. Instead, “it is a parallel

private entity.” Id. Even where such a private entity contracts with a government

to perform a traditional and essential government function, it remains a private

company, not a public entity. A private contractor does not, the court held,

become liable under Title II merely by contracting with the State to provide

governmental services, essential or otherwise. Id. The Second Circuit affirmed

the district court’s dismissal of the private hospital.

We too have long recognized that our authority to interpret statutory

language is constrained by the plain meaning of the statutory language in the

context of the entire statute, as assisted by the canons of statutory construction. 

Nguyen v. United States, 556 F.3d 1244, 1252-57 (11 Cir. 2009); Shotz v. City of

th

Plantation, Fla., 344 F.3d 1161, 1167 (11 Cir. 2003). We have affirmed many

th

times that we do not look at one word or term in isolation but rather look to the

The result would be the same, the Second Circuit noted, under the rule of statutory 4

construction of ejusdem generis, which provides that when general words follow the enumeration

of particular classes, the general words should be construed as applying only to things of the

same general class as those enumerated. Id. at 79 n. 10. Edison agrees with the application of

ejusdem generis, but argues that it would permit interpretation of the statutory language to

include entities that are the functional equivalent of governmental entities, and would not require

entities to be of the same general class. This interpretation violates the canon of construction.

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entire statute and its context. See United States v. Silva, 443 F. 3d 795, 798 (11th

Cir. 2006). Our job in this case, then, is to interpret the ADA’s use of the words

“instrumentality of a State” in a manner consistent with their plain meaning and

context, and in this endeavor we are persuaded that the Second Circuit has “got it

right.” We, too, hold that the term “instrumentality of a State” refers to

governmental units or units created by them.

All of the courts that have considered this question have come to the same

conclusion. In Cox v. Jackson, 579 F. Supp. 2d 831, 852 (E.D. Mich. 2008), the

district court held that a private medical provider for a prison could not be

considered a “public entity” under the statute because it was not a governmental

entity. The court adopted the holding of Green that a private contractor does not

become a public entity under Title II merely by contracting with a governmental

entity to provide governmental services. Id.

In Hahn v. Linn County, 191 F. Supp.2d 1051, 1055 n.2 (N.D. Iowa 2002),

the district court held that the plain meaning of the language of Title II limits its

liability to a public entity and that a contractual relationship between a private

corporation and a county government does not transform the private corporation

into a “public entity.” 

Similarly, in O’Connor v. Metro Ride, Inc., 87 F. Supp. 2d 894, 900 (D.

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Minn. 2000), the district court held that a private corporation was not a public

entity merely because it contracted with the public entity to provide a specialized

transit program for disabled persons. 

Finally, in Doe v. Adkins, 674 N.E.2d 731 (Ohio Ct. App. 1996), the court

held that a private mental health services corporation that provided contract

services to a local mental health agency was not an instrumentality of that

governmental unit for the purposes of the ADA. The court opined that “because

[the defendant] is not a department, agency, or special purpose district, or other

instrumentality of a state or local government we find that it is not a public entity

for purposes of Section 12132 [of the ADA].”

III.

We agree with these courts that a private corporation is not a public entity

merely because it contracts with a public entity to provide some service. Since

GEO is such a private corporation, we hold that GEO is not a public entity

subjecting it to liability under Title II of the ADA and is, therefore, not a proper

defendant in this action. Accordingly, the judgment of the district court is

AFFIRMED.5

 The dissent suggests that the appellant should have an opportunity to amend the 5

complaint. However, he has not requested permission to amend – here, or in the district court.

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BARKETT, Circuit Judge, dissenting:

The majority’s analysis is flawed because it conflates government

contracting with government function. In doing so, the majority fails to recognize

the extremely significant distinction between a private company that can lawfully

perform a function without state involvement and one that cannot. It is simply not

possible for any entity to lawfully operate a prison without authorization from and

a contract with the state. Unlike hospitals, which can be operated on behalf of the

government through a contractual agreement or can be operated independently,

prisons can never be operated independently of the government. That vital

difference leads me to dissent.

The Supreme Court has made clear that the operation of a prison is a

“primary function[] of government” – so much so that “[i]t is difficult to imagine

an activity in which a State has a stronger interest.” Pa. Dep’t of Corr. v. Yeskey,

524 U.S. 206, 209 (1998) (quotation and citation omitted). “One of the primary

functions of government . . . is the preservation of societal order through

enforcement of the criminal law, and the maintenance of penal institutions is an

essential part of that task.” Id. (quotation marks and citation omitted) (emphasis

added). The government is the only entity with the power and authority to

imprison individuals; thus, the operation of a prison is purely a government

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function. Absent authorization from and a contract with a government, GEO

could not — nor could any other private entity — establish and operate a prison.

1

It is thus clear that GEO is fulfilling a primary government function by operating

Moore Haven and is therefore an “instrumentality of a State” for purposes of Title

II of the ADA. 

In the case upon which the majority relies, Green v. City of New York, the

non-governmental entity involved (a hospital) was lawfully able to provide the

very same services to others in a commercial setting without contracting with the

state. 465 F.3d 65 (2d Cir. 2006). The court found that merely contracting with

the state did not transform a private entity into a government unit, and therefore

held that the hospital was not an “instrumentality of a State” under Title II. Id. at

78-79. While state involvement was not necessary to perform the function at issue

in Green, that cannot be said of operating a prison. Similarly, the district court

opinions cited by the majority involved companies that (1) operated a group home

for disabled individuals, Hahn v. Linn County, 191 F. Supp. 2d 1051 (N.D. Iowa

2002); (2) provided transportation, O’Connor v. Metro Ride, Inc., 87 F. Supp. 2d

894 (D. Minn. 2000); (3) provided medical services, Cox v. Jackson, 579 F. Supp.

 The idea of privately incarcerating individuals – the incarceration of individuals without 1

state involvement – is so offensive to our American values that the U.S. Constitution forbids it. 

See U.S. Const. amend. XIII. 

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2d 831 (E.D. Mich. 2008), and (4) operated a mental health facility, Doe v. Atkins,

674 N.E. 2d 731 (Ohio Ct. App. 1996). Not one of these cases involved the

performance of an exclusive governmental function that could be performed by a

private entity only with the state’s authorization to act in its place. GEO’s

operation of a prison is an exclusive governmental function, making it an

“instrumentality of a State” subject to the requirements of Title II of the ADA. 

2

To the extent that the majority holds that contracting with the government to

provide services does not, by itself, make a private company subject to Title II of

the ADA, I agree. However, when a company takes the place of the state in

performing a function within the exclusive province of the state, that company

cannot be permitted to avoid the requirements of the law governing that state

function. 

Moreover, because the majority holds that GEO is not a proper defendant,

this case should be remanded to the district court with instructions that Edison,

 The tools of statutory construction support a functional definition of “instrumentality of 2

a State,” as opposed to the one adopted by the majority. In rejecting an interpretation of

“instrumentality of a State” that includes private prisons, the majority fails to adhere to the

“ultimate goal” of statutory construction, which “is to give effect to congressional intent.” 

Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d 1321, 1324-25 (11th Cir. 2008) (citation

omitted). “The ADA was enacted to provide a national mandate for the elimination of

discrimination against individuals with disabilities . . . and must be broadly construed.”

Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir.1996) (quotation marks and citation

omitted). The majority does just the opposite when it adopts a narrow construction of the statute. 

11
who litigated his case pro se in the district court, be allowed to amend his

complaint. Under the district court’s and the majority’s view, Edison should have

sued the Florida Department of Corrections. However, it is certainly excusable

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for Edison to have believed that GEO, which fully operates the prison where

Edison alleges discrimination, was a proper party. 

Edison attempted to obtain counsel by filing a motion for appointed counsel

both before the district court and before this circuit. The district court denied

Edison’s motion for appointment of counsel after concluding, mistakenly, that this

case raised no novel or complex issue of law. The district court also found that

Edison had demonstrated his ability to litigate pro se. 

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The district court erred in construing Edison’s ability to file a pro se

complaint as evidence that he did not need assistance from appointed counsel.

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His ability to file a case with writing assistance is not evidence that Edison could

develop legal theories on his own or otherwise effectively research nuanced

 Edison’s counsel informed the court that the statute of limitations on Edison’s ADA 3

claim has run. As such, the result of the majority’s decision today is that Edison cannot initiate a

new suit against the Florida Department of Corrections. 

 This court granted Edison’s renewed motion for appointment of counsel and, during oral 4

argument, Edison’s counsel confirmed that she would continue representing Edison at the district

court.

 Edison was able to file his case pro se because he received writing assistance from law 5

clerks at the prison library who assist illiterate and disabled prisoners by writing for and reading

to them.

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claims. 

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Furthermore, contrary to the district court’s conclusions, Edison raises an

issue of first impression in this circuit and as such raises a novel legal issue in an

area where there is sparse caselaw. In light of the fact that Edison is legally blind,

his case raises novel issues of law, and he did not benefit from the assistance of

counsel during the district court proceedings, the case should be remanded with

the opportunity for Edison to amend his complaint. Leaving the majority’s 7

holding on the ADA aside, it is an injustice to leave a blind, incarcerated litigant

without any legal recourse in this complex litigation because his request for

counsel was wrongfully denied during the district court proceedings. 

For the foregoing reasons, I dissent. 

 In fact, Edison had to re-file his suit because he initially, and mistakenly, filed his 6

lawsuit under § 1983, and not the ADA.

See e.g., Miller v. King, 449 F.3d 1149, 1151 (11th Cir. 2006) (remanding case with 7

leave to amend, in part, because litigant did not benefit from assistance of counsel at the time of

filing his complaint); Wilger v. Dep’t of Pensions & Sec. for State of Ala., 593 F.2d 12, 13 (5th

Cir. 1979) (affirming dismissal of suit but remanding for plaintiff to add additional defendants);

Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987) (same). 

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