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;
WILLIE JOHNSON; DAVID BADILLO;
JAMES SIMMONS; FLORA ABRAMS;
D.C. No.
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
13470 ARMSTRONG v. SCHWARZENEGGER
Opinion by Judge Reinhardt
ARMSTRONG v. SCHWARZENEGGER 13473
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, Califor-
nia, for the plaintiffs-appellees.
Edmund G. Brown Jr., Attorney General of the State of Cali-
fornia; Jonathan L. Wolff, Senior Assistant Attorney General;
Jay C. Russell, Supervising Deputy Attorney General; Scott
J. Feudale, Deputy Attorney General, San Francisco, Califor-
nia, for the defendants-appellants.
Thomas E. Perez, Assistant Attorney General of the United
States, Samuel Bagenstos, Deputy Assistant Attorney Gen-
eral, Mark L. Gross, Attorney, Civil Rights Division of the
13474 ARMSTRONG v. SCHWARZENEGGER
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 disabili-
ties 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 accommo-
dations, 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 obliga-
tion to accommodate a set of disabled prisoners and parolees
held under California’s authority. Defendants house signifi-
cant 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. Accord-
ARMSTRONG v. SCHWARZENEGGER 13475
ingly, we affirm the portion of the district court’s decision
that holds that defendants are responsible for providing rea-
sonable accommodations to the disabled prisoners and paro-
lees 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 intrusive-
ness 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. Accord-
ingly, 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 Califor-
nia state prison inmates and parolees with certain disabilities,
sued defendants, California state officials with responsibility
for the operation of the Department of Corrections and Reha-
bilitation (the “CDCR”) and the Board of Parole Hearings
(“BPH”), challenging the State’s treatment of disabled prison-
ers 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 Constitu-
tion. 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 pro-
duced a remedial plan in January of 2001, and in March 2001,
13476 ARMSTRONG v. SCHWARZENEGGER
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 com-
parable permanent injunction with respect to the BPH defen-
dants 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 proce-
dures and policies and plaintiffs monitoring defendants’ com-
pliance 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 computer-
ized system for tracking prisoners and parolees with disabili-
ties 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. Pur-
suant 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 circum-
stances, 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 subse-
quent to parole being revoked; and for in-custody drug treat-
ment 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
ARMSTRONG v. SCHWARZENEGGER 13477
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 pro-
posal to alter its sentencing practices to place in county jails
approximately 14,000 persons who would otherwise be incar-
cerated 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 Defen-
dants to develop and implement effective policies and proce-
dures ensuring all prisoners and parolees with mobility,
vision, hearing, developmental, kidney, and learning disabili-
ties 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 accom-
modations 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, notify-
ing 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 provi-
sions 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 jurisdic-
tion over this appeal. We have “jurisdiction of appeals from
all final decisions of the district courts of the United States.”
13478 ARMSTRONG v. SCHWARZENEGGER
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 con-
struction”: 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 par-
ticular, 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 lit-
tle 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 paro-
lees housed in the county jails. It did not contemplate further
orders except in the event of disagreement between defen-
dants 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, juris-
diction 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 (explain-
ARMSTRONG v. SCHWARZENEGGER 13479
ing that appellate jurisdiction under 28 U.S.C. § 1292 exists
over an order requiring submission of a plan so long as delay-
ing 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 sim-
ple “submission” of a detailed plan present in Balla. In partic-
ular, 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 defen-
dants 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 construc-
tive 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 pro-
ceedings 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 accommoda-
tions 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
13480 ARMSTRONG v. SCHWARZENEGGER
through contractual, licensing, or other arrangements, dis-
criminate against individuals with disabilities.” 28 C.F.R.
§ 35.130(b)(1). This regulation was promulgated by the Attor-
ney General pursuant to Congress’s direction that he promul-
gate 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 Port-
land, 386 F.3d 1259, 1269 n. 6 (9th Cir. 2004) (quoting Chev-
ron, 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 gen-
eral statement that public entities may not discriminate against
disabled persons when providing services, programs and
activities that suggests that the Attorney General was incor-
rect in concluding that “the services, programs, or activities of
a public entity” include those services, programs and activi-
ties 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 cer-
tain private entities, contains language barring affected enti-
ARMSTRONG v. SCHWARZENEGGER 13481
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 vio-
lations 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 pro-
vision 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 exam-
ple, the second of the Construction provision’s seven parts
specifies that the meaning of “[d]iscrimination includes fail-
ure” by those public entities described in the general rule “to
(A) make reasonable modifications . . . . ; (B) provide auxil-
iary 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 Con-
gress having intended to prohibit the adoption of parallel pro-
visions when implementing Title II, it is more likely that it
1
Title II’s prohibition on discrimination, 42 U.S.C. § 12132, reads:
Subject to the provisions of this subchapter, no qualified individ-
ual 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 dis-
ability 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.
13482 ARMSTRONG v. SCHWARZENEGGER
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 lan-
guage 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 “discrimi-
nation”, as was done in titles I and III, because this
title essentially simply extends the anti-
discrimination prohibition embodied in section 504
[of the Rehabilitation Act] to all actions of state and
local governments. The Committee intends, how-
ever, that the forms of discrimination prohibited by
section 202 be identical to those set out in the appli-
cable 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 Com-
mittee is echoed in the statute, which, as noted, includes a
directive that the Department of Justice promulgate regula-
tions implementing Title II that are consistent with the regula-
tions governing Section 504 of the Rehabilitation Act. See 42
U.S.C. § 12134. The bar in the Title II regulation, 28 C.F.R.
ARMSTRONG v. SCHWARZENEGGER 13483
§ 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 arrange-
ments, 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 con-
trary to the statute.” Indeed, they reflect the fairest reading of
the statute. Defendants’ contention that the regulations are
invalid is in error.2
2
Zimmerman 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 implement-
ing 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 “Employ-
ment,” deals extensively with employment, and regulating employment
under Title II would both render Title I redundant and eviscerate its proce-
dural 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 coun-
ties are regulated by any other title within the ADA, much less that regu-
lating those activities under Title II would eviscerate or in any way
damage any other section of the ADA.
13484 ARMSTRONG v. SCHWARZENEGGER
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 imple-
menting § 504 of the RA,3 do not apply to their arrangements
with the county jails because those arrangements do not pro-
vide 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 “incarcer-
ation itself is hardly a ‘program’ or ‘activity’ to which a dis-
abled person might wish access,” we have made clear that the
ADA entitles inmates to receive the “benefits” of the incarcer-
ating institution’s programs and services without facing dis-
crimination on account of a disability. See Armstrong, 124
F.3d at 1023. The Supreme Court has also rejected defen-
dants’ 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 arrange-
ments with the counties are not simply to incarcerate parolees
and prisoners, but to provide such individuals with various
positive opportunities, from educational and treatment pro-
3
Although 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.
ARMSTRONG v. SCHWARZENEGGER 13485
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 communica-
tion. 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 pro-
vided 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 fed-
eralism 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 govern-
ment’s apparent attempt to commandeer state officials to help
it enforce its regulatory schemes against third parties.
4
Plaintiffs 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 fail-
ure to raise the issue in the trial court,” conditions which here obtain. See
Raich v. Gonzales, 500 F.3d 850, 868 (9th Cir. 2009).
13486 ARMSTRONG v. SCHWARZENEGGER
[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 ADA-
compliant 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 accommo-
dations 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 con-
tracting 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 implementa-
tion and enforcement of federal laws. Finally, this case is not,
like Printz and New York, an attempt by the federal govern-
ment to require the State to carry out a federal obligation.
Rather, it is an action by private parties — the class of plain-
tiffs — 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 offi-
cials 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 [nonethe-
less] 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).
ARMSTRONG v. SCHWARZENEGGER 13487
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 viola-
tors 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 paro-
lees 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 accom-
modates 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 Arm-
strong 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 pol-
icy 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 sup-
port 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 intru-
sive means necessary to correct the violation of the Federal
13488 ARMSTRONG v. SCHWARZENEGGER
right.” 18 U.S.C. § 3626(a)(1)(A). Defendants argue that the
September 16 order violates this need-narrowness-
intrusiveness requirement in two ways. First, they contend
that a court must make the required need-narrowness-
intrusiveness findings on a provision-by-provision basis,
explaining why each element of the ordered relief is the narro-
west and least intrusive means possible of correcting defen-
dants’ 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 find-
ings, 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 seman-
tic 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 stan-
dard — 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 para-
graph, or even sentence by sentence, basis.” Benjamin v. Fra-
ser, 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
ARMSTRONG v. SCHWARZENEGGER 13489
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 find-
ings concerning each isolated provision of a remedial order.
Prospective relief for institutions as complex as prisons is a
necessarily aggregate endeavor, composed of multiple ele-
ments 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 mini-
mal impact possible on defendants’ discretion over their poli-
cies 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, narrow-
ness 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 resolu-
tion of the already complicated proceedings necessary to rem-
edy 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
13490 ARMSTRONG v. SCHWARZENEGGER
by the district court that the need-narrowness-intrusiveness
standard has been met; indeed, in our review of the 1999 per-
manent 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 Arm-
strong, 275 F.3d at 872.
Defendants’ arguments with regard to their second conten-
tion, 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 defen-
dants’ 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 “en-
meshed [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 bur-
densome 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,
ARMSTRONG v. SCHWARZENEGGER 13491
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 state-
ments, 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 nar-
rowly 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 respon-
sibilities at the feet of the counties, defendants do not suggest
that such an information sharing plan would correct the fed-
eral 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 ulti-
mately 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, defen-
dants cannot shirk their obligations under the ADA by sug-
gesting 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
13492 ARMSTRONG v. SCHWARZENEGGER
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 ping-
pong result that a plaintiff harmed by two entities could get
no relief from either. In short, the defendants have the respon-
sibility of ensuring that their prisoners are afforded their
rights under the ADA, regardless of where the State incarcer-
ates 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 argu-
ments 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 evi-
dence to justify the system-wide relief ordered by the district
court. Although it is a close question, we agree.
ARMSTRONG v. SCHWARZENEGGER 13493
In issuing its order, the district court relied on very sparse
evidence of actual ADA violations in the county jails. Plain-
tiffs provided a great deal of hearsay reporting ADA viola-
tions 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 declara-
tion from another attorney describing his observation of paro-
lees 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 neces-
sarily 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 evi-
dence here constituted an insufficient basis for the system-
wide 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] conclu-
sion is based upon adequate findings supported by substantial
evidence in the record.” Armstrong, 275 F.3d at 871. The evi-
13494 ARMSTRONG v. SCHWARZENEGGER
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 pro-
spective 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 iden-
tify any such determinations, and thus, we are required to con-
clude, 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 formi-
dable, 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 undis-
puted 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 defi-
ciency took plaintiffs much of the way towards a showing suf-
ficient 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
ARMSTRONG v. SCHWARZENEGGER 13495
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 obli-
gations 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 obli-
gations 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 other-
wise, 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
5
We 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.