Raymond W. Aswegan v. John Emmett

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3499SI
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Raymond W. Aswegan, *
*
Plaintiff-Appellee, *
*
v. *
*
Captain Bruhl; Lieutenant * Appeal from the United States
Birdsell; C/O Gary Rea; C/O * District Court for the
Roush; Lieutenant Bowden; Roger * Southern District of Iowa.
Lawson; Charles Harper; *
*
Defendants, *
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John Emmett, *
*
Defendant-Appellant. *
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Submitted: February 12, 1997

Filed: May 2, 1997
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Before FAGG, HEANEY, and JOHN R. GIBSON, Circuit Judges.
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FAGG, Circuit Judge.

Raymond W. Aswegan, a life sentence inmate at the Iowa State
Penitentiary (ISP), brought this lawsuit contending his prison
infirmary cell lacks cable television reception in violation of the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-
12213 (1994). The district court ruled in Aswegan’s favor and
ordered John Emmett, the ISP security director, to install a cable
television outlet in Aswegan’s cell. Emmett appeals, and we
reverse.
 Although general population inmates are permitted to purchase
television sets that can be connected to the cable television
outlets in their cells, infirmary inmates who own televisions lack
this amenity because the infirmary cells were designed without
cable television hookups. Instead, infirmary inmates entertain
themselves by watching television in the infirmary’s community room
where two cable-equipped televisions (with ample headphones) are
available on a daily basis. As we understand the situation,
“[c]able service is necessary for adequate television reception at
[the] ISP.” More v. Farrier, 984 F.2d 269, 270 (8th Cir. 1993).

Under the ADA, no qualified individual with a disability can
be denied “the benefits of the services, programs, or activities of
a public entity.” 42 U.S.C. § 12132. Despite the fact that
Aswegan is ambulatory and his cell is hardly fifty feet from the
infirmary’s communal television room, the district court decided
Aswegan was a qualified disabled person who was denied the benefits
of cable television because he routinely lost petty disputes about
channel selections with the other infirmary inmates. Believing the
ADA applies to the ISP and entitles Aswegan to have unlimited
access to the television programs of his choice, the district court
ordered the installation of a cable television outlet in Aswegan’s
cell.

Contrary to the district court’s view, Aswegan has no viable
claim for relief under section 12132 because the cable television
sought by Aswegan is not a public service, program, or activity
within the contemplation of the ADA. We thus reverse the district
court’s holding that Aswegan was entitled to access to cable
television beyond that already provided in the infirmary’s
television room. Because the relief Aswegan seeks is not covered
by section 12132, we need not decide, and the district court should

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not have decided, whether correctional facilities are subject to
the ADA.

We thus reverse the decision of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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