Hale v. King

Case: 07-60997 Document: 00511263582 Page: 1 Date Filed: 10/14/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 14, 2010
No. 07-60997
Lyle W. Cayce
Clerk

JOHN ASHLEY HALE,

Plaintiff-Appellant,

versus

RONALD KING,
Superintendent of Southern Mississippi Correctional Institution;
MARGARET BINGHAM,
Superintendent of Southern Mississippi Correctional Institution;
CHRISTOPHER EPPS,
Commissioner of Mississippi Department of Corrections;
MIKE HATTEN, Health Service Administrator
of Wexford for Southern Mississippi Correctional Institution;
JOHN DOE, Physician at Southern Mississippi Correctional Institution;
DOCTOR ZANDU, Psychiatrist at Central Mississippi Correctional Facility;
DOCTOR PATRICK ARNOLD, Physician for Correctional Medical Services
at Southern Mississippi Correctional Institution;
DOCTOR WILLIAMS, Psychiatrist of Correctional Medical Services
for Southern Mississippi Correctional Institution;
DOCTOR TRINCA,
Physician for Wexford at Southern Mississippi Correctional Institution;
MIRIAM MOULDS,
Kitchen Supervisor at Southern Mississippi Correctional Institution;
JOHN DOE 2, Chief Executive Officer of Correctional Medical Services
for Mississippi Department of Corrections;
JOHN DOE 3, Chief Executive Officer of Wexford at Southern Mississippi
Correctional Institution for Mississippi Department of Corrections;
DOCTOR MCCLEAVE; DOCTOR WOODALL;
WEXFORD HEALTH SERVICES,

Defendants-Appellees.
 Case: 07-60997 Document: 00511263582 Page: 2 Date Filed: 10/14/2010

Appeal from the United States District Court
for the Southern District of Mississippi

Before JOLLY, SMITH, and OWEN, Circuit Judges.
PER CURIAM:

The district court held that the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12131-12165, does not validly abrogate state sovereign im-
munity with respect to the claims of disabled inmates who were denied access
to prison educational and work programs. Hale v. Mississippi, No. 2:06-CV-245,
2007 WL 3357562 (S.D. Miss. Nov. 9, 2007). Because Congress’s authorization
of those claims is not “congruent and proportional” to the enforcement of the
Equal Protection Clause, we affirm.

I.
While a state prisoner, John Hale filed a pro se complaint in forma pauper-
is against prison officials in their official capacity, alleging violations of the
ADA.1 Specifically, he claims they discriminated against him in violation of title
II of the ADA2 because he suffers from Hepatitis C, post-traumatic stress dis-
order, chronic depression, intermittent explosive disorder, and antisocial person-
ality disorder. Under prison regulations, those health problems required Hale
to be classified as “medical class III,” a designation limiting his work and pro-

1
Hale also raised claims under 42 U.S.C. § 1983 asserting inadequate medical treat-
ment and denial of proper diet. Those were dismissed, and Hale does not appeal as to them.
2
Title II provides that “[s]ubject to the provisions of this subchapter, no qualified indi-
vidual 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 subject-
ed to discrimination by any such entity.” 42 U.S.C. § 12132.

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No. 07-60997

gram assignments, thus giving him fewer opportunities to earn “meritorious
earned time.” Hale maintains that because of his classification, the defendants
prevented him from using the community work centers, accessing the satellite
and regional prison facilities, working in the kitchen, and attending school.
The district court dismissed on the ground that the officials are entitled
to state sovereign immunity. The court acknowledged that Congress can abro-
gate state sovereign immunity under § 5 of the Fourteenth Amendment and that
it did so in the ADA. See United States v. Georgia, 546 U.S. 151 (2004). None-
theless, the court reasoned that Congress’s § 5 powers do not extend to creating
causes of actions for ADA violations that are not “congruent and proportional”
to violations of the Fourteenth Amendment. See City of Boerne v. Flores, 521
U.S. 507, 520 (1997).
After Hale filed his pro se brief on appeal, we appointed counsel to file a
supplemental brief to address the question “whether Title II of the ADA validly
abrogates Eleventh Amendment sovereign immunity for claims that violate Ti-
tle II but are not actual violations of the Fourteenth Amendment.” The United
States intervened and submitted a brief supporting Hale’s position.

II.
The district court acted under 28 U.S.C. § 1915(e)(2)(B)(ii), which allows
it to dismiss an in forma pauperis complaint if it “fails to state a claim on which
relief may be granted.” We review such dismissals de novo. Praylor v. Tex. Dep’t
of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir. 2005).
The ADA provides that “[a] State shall not be immune” from suits under
the act because of sovereign immunity. 42 U.S.C. § 12202. Congress has the
power to abrogate state sovereign immunity with such unequivocal statements,
but only where it “act[s] pursuant to a valid grant of constitutional authority.”
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (alteration in orig-

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inal) (citing Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)). There is only
one source of such authority: the enforcement provisions of § 5 of the Fourteenth
Amendment. Id. at 364. “Accordingly, the ADA can apply to the States only to
the extent that the statute is appropriate § 5 legislation.” Id.
Nonetheless, “no one doubts that § 5 grants Congress the power to ‘enforce
. . . the provisions’ of the Amendment by creating private remedies against the
States for actual violations of those provisions.” Georgia, 546 U.S. at 158 (altera-
tion in original). Thus, the ADA validly abrogates sovereign immunity insofar
as it “creates a private cause of action for damages against the States for conduct
that actually violates the Fourteenth Amendment.” Id. at 159.
The parties agree that none of the defendants’ alleged misconduct violates
the Fourteenth Amendment. Where there is no such violation, there is a three-
step process for determining whether Congress validly abrogated sovereign im-
munity with respect to that conduct. The court must determine,
on a claim-by-claim basis, (1) which aspects of the State’s alleged
conduct violated Title II; (2) to what extent such misconduct also
violated the Fourteenth Amendment; and (3) insofar as such mis-
conduct violated Title II but did not violate the Fourteenth Amend-
ment, whether Congress’s purported abrogation of sovereign im-
munity as to that class of conduct is nevertheless valid.

Id.

A.
The defendants and the United States contend that the district court failed
to apply the first step of the Georgia test because it did not determine whether
Hale had established a prima facie title II claim. Thus, they argue that we
should remand to complete that inquiry.
Step one of Georgia does not require a prima facie showing of a title II
claim. The purpose of step one, understood in context, is to ensure that the court

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No. 07-60997

knows “precisely what conduct [the plaintiff] intend[s] to allege in support of his
Title II claims.” Id. Remand was necessary in Georgia because the pro se liti-
gant had pleaded a number of “‘frivolous claims’SSsome of which are quite far
afield from actual constitutional violations . . ., or even from Title II violations.”
Id. Thus, it was not obvious which conduct the Court was supposed to evaluate
as part of the sovereign immunity inquiry. By contrast, Hale’s pleadings are pel-
lucid, and the district court identified the precise conduct that he alleges violated
the ADA.3 Accordingly, “[w]e see little need for a remand when the issue before
us is a purely legal one, namely, whether the ADA validly abrogated state sover-
eign immunity with respect to the claims of the type advanced by the plaintiff[].”
Klingler v. Dir., Dep’t of Revenue, State of Mo., 455 F.3d 888 (8th Cir. 2006).
The United States contends that deciding the sovereign immunity question
without ensuring that Hale has stated a proper ADA claim risks unnecessarily
deciding a constitutional question.4 That argument misunderstands the nature
of sovereign immunity, which rests on the principle that “the Framers thought
it an impermissible affront to a State’s dignity to be required to answer the com-
plaints of private parties in federal courts.”5 To limit the indignity a state may
suffer and to vindicate its “right not to be haled into court,” “a state has a right

3
Hale v. Mississippi, 2007 WL 3357562, at *2 (“In his Amended Complaint, plaintiff
also alleges claims for violations of the ADA against defendants Mr. Epps, Mr. Hatten, and
Mr. King. Plaintiff claims he was discriminated and retaliated against. Specifically, he claims
that he was denied access to the satellite and regional facilities, was denied the ability to work
in the prison kitchen, and was denied the ability to go to school, because he was classified as
‘medical class III’ and/or a ‘psychiatric C.’”).
4
See Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process of constitutional adjudication, it is
that we ought not to pass on questions of constitutionality . . . unless such adjudication is una-
voidable.”).
5
Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002); accord P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-46 (1993) (holding that
sovereign immunity “is an immunity from suit rather than a mere defense to liability”).

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No. 07-60997

to an early determination of the issue.”6 Consequently, courts often must rule
on sovereign immunity even though further litigation might have resolved the
suit on non-constitutional grounds.

B.
We thus proceed to the third prong of the Georgia test to determine wheth-
er Congress’s § 5 power supports its purported abrogation of sovereign immuni-
ty. “Legislation which deters or remedies constitutional violations can fall with-
in the sweep of Congress’ enforcement power even if in the process it prohibits
conduct which is not itself unconstitutional . . . .” City of Boerne, 521 U.S. at 518.
Congress’s § 5 power, however, “is not unlimited.” Id. To determine
whether a particular application of the ADA falls within it, we must (1) “identify
the constitutional right or rights that Congress sought to enforce when it enact-
ed Title II”; (2) ascertain whether Congress enacted title II in response to a his-
tory and pattern of unconstitutional conduct; and (3) decide “whether the rights
and remedies created by Title II are congruent and proportional to the constitu-
tional rights it purports to enforce and the record of constitutional violations ad-
duced by Congress.” Tennessee v. Lane, 541 U.S. 509, 522-33 (2004) (describing
City of Boerne’s application to title II).
Hale contends he was discriminated against when he was denied educa-
tional training and access to prison work programs because of his medical disa-
bility. Therefore, his claims implicate title II’s attempt to enforce the Equal Pro-
tection Clause’s “prohibition on irrational disability discrimination.” Id. at 522.7

6
Smith v. Reagan, 841 F.2d 28, 31 (2d Cir. 1988); accord Helton v. Clements, 787 F.2d
1016, 1017 (5th Cir. 1986) (“[A] defendant’s entitlement under immunity doctrine [is] to be free
from suit and the burden of avoidable pretrial matters . . . .”).
7
There are “a variety of other basic constitutional guarantees” that title II attempts
to enforce. Lane, 541 U.S. at 522-23. Lane particularly addressed the right implicated in that
(continued...)

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Congress enacted title II partially in response to governmental units’ discrimina-
tion against the disabled, including “a pattern of unequal treatment in the ad-
ministration of a wide range of public services, programs, and activities, includ-
ing the penal system.” Id. at 525.
We may therefore move to step three of the City of Boerne test. When de-
termining whether title II is an appropriate response to the history of unconsti-
tutional treatment, we do not “examine the broad range of Title II’s applications
all at once,” id. at 530, but instead focus on the particular application at issue,
equal access to prison education and work programs, see id. That requirement
is not “congruent and proportional” to Congress’s goal of enforcing the Equal
Protection Clause’s prohibition on irrational disability discrimination. Under
that clause, disabled individuals are not a suspect or quasi-suspect classification
commanding heightened review of laws discriminating against them. See Gar-
rett, 531 U.S. at 366 (citing Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
446 (1985).
Consequently, disability discrimination is subject only to rational-basis re-
view, under which there is no constitutional violation so long as “there is a ra-
tional relationship between the disparity of treatment and some legitimate gov-
ernmental purpose.” Id. at 367 (citing Heller v. Doe, 509 U.S. 312, 320 (1993)).
The state need not justify its own actions; rather, “the burden is upon the chal-
lenging party to negative any reasonably conceivable state of facts that could
provide a rational basis for the classification.” Id. (citation and internal quota-
tion marks omitted).

7
(...continued)
case, the “right of access to the courts” protected by the Due Process Clause and the Confronta-
tion Clause. Id. at 523; see also id. at 540 (Rehnquist, C.J., dissenting) (“[B]ecause the Court
ultimately upholds Title II ‘as it applies to the class of cases implicating the fundamental right
of access to the courts,’ the proper inquiry focuses on the scope of those due process rights.”
(citation omitted)). We therefore focus on the Equal Protection Clause’s prohibition of irration-
al disability discrimination.

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In Garrett, id. at 373, the Court emphasized the deference afforded to
states under rational-basis review in evaluating title I of the ADA under step
three of City of Boerne. Title I requires employers to provide reasonable accom-
modations to disabled employees, a duty that fails step three because it “far ex-
ceeds what is constitutionally required”:
For example, whereas it would be entirely rational (and therefore
constitutional) for a state employer to conserve scarce financial re-
sources by hiring employees who are able to use existing facilities,
the ADA requires employers to “mak[e] existing facilities used by
employees readily accessible to and usable by individuals with dis-
abilities.” The ADA does except employers from the “reasonable ac-
commodatio[n]” requirement where the employer “can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” However, even
with this exception, the accommodation duty far exceeds what is
constitutionally required in that it makes unlawful a range of alter-
native responses that would be reasonable but would fall short of
imposing an “undue burden” upon the employer.

Id. at 372 (citations omitted, brackets in original). The same reasoning applies
to title II’s requirement that states provide disabled individuals access to state
programs.
Hale and the United States object that the requirements of title II are lim-
ited in scope, because a state can show that it is entitled to certain exceptions,
thus lessening the extent to which title II’s protection surpasses that of the
Equal Protection Clause. For example, the state need not comply with title II
if it can show that providing access “would fundamentally alter the nature of the
service, program, or activity,” 28 C.F.R. § 35.130(b)(7), or “would result in . . . un-
due financial and administrative burdens,” id. § 35.150(a)(3).
Nonetheless, for at least three reasons, title II limits state activity far
more than does rational-basis review. First, a state prison may rationally deny
disabled prisoners access to certain programs, even where its reasons fall short

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No. 07-60997

of avoiding an “undue burden” or preventing fundamental alterations to a pro-
gram. For example, a state may seek to protect the health of a disabled prisoner
by preventing him from engaging in overly strenuous activity. Second, title II
“makes it the employer’s duty to prove that it would suffer such a burden, in-
stead of requiring (as the Constitution does) that the complaining party negate
reasonable bases for the employer’s decision.” Garrett, 531 U.S. at 967. Finally,
the Equal Protection Clause’s requirements are even more minimal here than
in Garrett, because courts are not well positioned to second-guess the rationality
of a state’s administration of its prisons.8
In summary, Congress’s § 5 power is not congruent and proportional and
therefore does not justify title II’s requirement of equal access for disabled in-
mates to prison educational and work programs. It follows that title II does not
validly abrogate state sovereign immunity for that class of claims. The judgment
of dismissal is AFFIRMED.

8
See Woodford v. Ngo, 548 U.S. 81, 94 (2006) (“[I]t is ‘difficult to imagine an activity
in which a State has a stronger interest, or one that is more intricately bound up with state
laws, regulations, and procedures, than the administration of its prisons.’” (quoting Preiser v.
Rodriguez, 411 U.S. 475, 491-92 (1973)); Turner v. Safley, 482 U.S. 78, 85 (1987) (“Where a
state penal system is involved, federal courts have . . . additional reason to accord deference
to the appropriate prison authorities.”).

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