DAVID G. KEY, Plaintiff, and MICHIGAN PROTECTION and ADVOCACY SERVICE, Plaintiff-Intervenor, v. HENRY GRAYSON, KENNETH MCGINNIS, GARY GABRY, PAUL RENCIO, and BILL MARTIN, Defendants.



CIVIL ACTION NO. 96-40166



UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION



163 F. Supp. 2d 697; 2001 U.S. Dist. LEXIS 15193



March 20, 2001, Decided

March 20, 2001, Filed







SUBSEQUENT HISTORY: Reported at 163 F. Supp. 2d 697 at 706



DISPOSITION: [**1] Recommended that this Defendants' Motion to Dismiss be GRANTED IN PART AND DENIED IN PART.









COUNSEL: For DAVID G. KEY, plaintiff: Daniel E. Manville, Ferndale, MI.


For MICHIGAN PROTECTION AND ADVOCACY SERVICE, plaintiff: Gayle C. Rosen, Ann Arbor, MI.


For HENRY GRAYSON, GARY GABRY, KENNETH MCGINNIS, RENCIO, defendants: John L. Thurber, Office of the Attorney General, Lansing, MI.



JUDGES: DONALD A. SCHEER, UNITED STATES MAGISTRATE JUDGE. DISTRICT JUDGE PAUL V. GADOLA.



OPINIONBY: DONALD A. SCHEER



OPINION: [*706]

REPORT AND RECOMMENDATION


I. RECOMMENDATION

This cause comes before the Court on Plaintiff's Fourth Amended Complaint; Defendants' Rule 12(b)(6) Motion for Dismissal and Rule 56(b) Motion for Summary Judgment; Defendants' Supplemental Brief in Support of Their Dispositive Motion; Plaintiff's Reply Brief to Defendants' Recent Dispositive Motion; and Plaintiff/Intervenor's Brief in Opposition to Defendants' Rule 12(b)(6) Motion for Dismissal and Rule 56(b) Motion for Summary Judgment. For the reasons that follow, I recommend that Defendants' Motion to Dismiss be GRANTED IN PART AND DENIED IN PART. Specifically, I recommend that:


(1) the Court dismiss Plaintiff's monetary and punitive damage claims under the Americans with Disabilities Act against Defendants in their official capacity;


(2) the Court dismiss Plaintiff's monetary and punitive damage claims under Title II of ADA and Section 504 of the Rehabilitation Act of 1973 against Defendants in their [**2] individual capacities;


(3) that the Court dismiss Plaintiff's claims that accrued after March 10, 2000, under the Michigan Persons with Disability Civil Rights Act;


(4) that the Court deny Defendants' motion to dismiss Plaintiff's claims under the Rehab Act on the basis of Eleventh Amendment immunity;


(5) that the Court deny Defendants' motion to dismiss Plaintiff's claim for injunctive relief under the ADA and the Rehab Act;


(6) that the Court deny Defendant's motion to dismiss Plaintiff's retaliation claims under the ADA against Defendants in their individual capacities;


(7) that the Court deny Defendants' motion to dismiss Plaintiff's claims that accrued before March 10, 2000, under the Michigan Persons with Disabilities Civil Rights Act;


(8) that the Court deny Defendants' motion to dismiss Plaintiff's ADA and Rehab claims under the Prison Litigation Reform Act;


(9) and that the Court deny Defendant's motion to dismiss Plaintiff's claim for injunctive relief.


II. REPORT

A. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff David Key is a prisoner in the custody of the Michigan Department of Corrections ("MDOC"). Defendants are [**3] Paul Rencio, the warden at the Mid-Michigan Correctional Facility; Henry Grayson, the Warden of the Parnall Correctional Facility; Gary Gabry, the former Chairperson of the Michigan Parole Board; Bill Martin, the Director of the MDOC; and Kenneth McGinnis, the former Director of [*707] the MDOC. All Defendants, except McGinnis, are sued in their official and individual capacities. McGinnis is sued only in his individual capacity. The following statement of facts is taken primarily from Plaintiff's Fourth Amended Complaint.

Plaintiff is hearing impaired. He is currently serving a sentence for second degree criminal sexual conduct. As part of the treatment plan recommended by the MDOC Reception and Guidance Center staff, Plaintiff is required to participate in sex offender and substance abuse therapy. Plaintiff also desired to participate in sex offender therapy because Michigan Protective Services would not allow him to return to his home and to his children after his release on parole, without completing the therapy.

Plaintiff alleges that he sought to participate in sex offender therapy at various times during his incarceration at the Carson City Correctional Facility ("Carson City") and [**4] that Defendants denied him access to group and individual sex offender therapy and to substance abuse therapy because of his hearing disability.

In August 1999, Plaintiff was transferred to the Mid-Michigan Correctional Facility ("Mid-Michigan"). Mid-Michigan does not provide services, such as TDD units, certified interpreters, flashing alarm clocks, closed captioned television sets, or certified interpreters for sex offender and substance abuse therapy, to hearing impaired prisoners. Plaintiff had received such services, except for a certified interpreter and therapy for hearing impaired prisoners, while at Carson City. Key asserts that Defendants refused to transfer Key from Mid-Michigan to the Cotton Facility in retaliation for Plaintiff filing this lawsuit and his refusal to settle it. n1 In October 1999, Plaintiff finally received some sex offender group therapy. The psychologist conducting the group was not certified in sign language and no interpreter was provided.



n1 It is unclear whether Defendants refused to transfer Plaintiff from Mid-Michigan back to Carson City or to the J. Robert Cotton Facility. However, to which facility Plaintiff sought to be transferred is not pertinent to the resolution of the issues presented in Defendants' motion.


[**5]

Plaintiff has been reviewed for release on parole at least three times. Each time the Michigan Parole Board has denied his request for parole. The Parole Board's denials were based upon its inability to determine whether Plaintiff posed a risk to society because he had not completed the recommended therapy.

Plaintiff alleges that Defendants violated the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq ("ADA"); the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended ("the Rehab Act"), and the Michigan Persons with Disabilities Civil Rights Act, M.C.L. § 37.1301, et seq ("MPDCRA"), by denying him services because of his hearing disability. n2 Plaintiff also alleges that Defendants retaliated against him for filing this lawsuit in violation of the anti-retaliation provisions of the ADA. He seeks an injunction directing Defendants to provide him access to certified hearing impaired interpreters, and ordering Defendants to provide him with services, such as sex offender and substance abuse therapy with a certified interpreter, a TDD unit, and a flashing alarm clock. He also seeks compensatory and punitive damages, [**6] attorney fees and costs.



n2 The Michigan Persons with Disabilities Civil Rights Act was formerly known as the Michigan Handicappers Civil Rights Act.


[*708]

Defendants move to dismiss on the grounds: (1) that Congress exceeded its authority under § 5 of the Fourteenth Amendment when it passed the ADA and the Rehab Act and therefore the Defendants are immune under the Eleventh Amendment;(2) Defendants cannot be held liable under Title II of the ADA and the Rehab Act in their individual capacities; (3) that the Michigan Persons with Disabilities Civil Rights Act does not apply to correctional facilities; (4) that punitive damages are not available under Title II of the ADA or under the Rehab Act; (5) that Plaintiff's claim for injunctive relief is moot; and (6) that Plaintiff's claim for damages is precluded by the Prison Litigation Reform Act ("PLRA"). Defendants move for summary judgment on the grounds: (1) that they are entitled to qualified immunity; and (2) that Plaintiff has not shown the personal involvement of [**7] Martin, McGinnis, Gabry, Grayson, and Rencio.

B. STANDARD OF REVIEW FOR RULE 12(B)(6) MOTION TO DISMISS AND RULE 56(B) MOTION FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 12(b)(6) provides that a complaint must be dismissed if it fails to state a claim upon which relief may be granted. In assessing a motion to dismiss, the Court "must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." In Re DeLorean Motor Co., 991 F.2d 1236, 1239-40 (6th Cir. 1993) (citing Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.) cert. denied, 498 U.S. 867, 112 L. Ed. 2d 145, 111 S. Ct. 182 (1990)); see also, Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). To defeat a motion to dismiss, the opposing party must allege sufficient facts in the complaint, as to each material element, so that a decision in his favor is conceivable under the legal theory he is advancing. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). [**8]

Federal Rule of Civil Procedure 56 provides that a motion for summary judgment may be granted when the moving party establishes that there are no genuine issues of material fact for trial and that he is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The court must consider all pleadings, affidavits, and admissions on file and draw all justifiable inferences in favor of the party opposing the motion. Smith v. Hudson, 600 F.2d 60, 64 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). The moving party bears the burden of showing the court that no genuine issues of material fact remain. Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992). The non-moving party may not rest upon the allegations or denials of the adverse party's pleadings, but must set forth "specific facts showing that there is a genuine issue for trial." F.R.Civ.P. 56(e); Celotex, 477 U.S. at 323-324.

C. DISCUSSION AND ANALYSIS

1. ELEVENTH AMENDMENT IMMUNITY

Defendants urge the Court to reconsider its earlier determination that [**9] the ADA and the Rehab Act are constitutional as applied to the States. n3 Defendants contend that [*709] since 1997, the United States Supreme Court has held that several statutes are unconstitutional as applied to the States because Congress exceeded its authority under Section 5 of the Fourteenth Amendment when it invalidated the States' Eleventh Amendment immunity. In particular, Defendants note that the current Supreme Court struck down the Religious Freedom Restoration Act ("RFRA") n4, and the Age Discrimination in Employment Act (ADEA"). n5 In addition, the Court of Appeals for the Sixth Circuit held that Congress exceeded its authority under § 5 of the Fourteenth Amendment when it abrogated the States' Eleventh Amendment immunity in the Family Medical Leave Act. Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. 2000). Defendants primarily rely on Popovich v. Cuyahoga County Court of Common Pleas, 227 F.3d 627 (6th Cir. 2000), in which the Sixth Circuit held that Congress exceeded its authority under Section 5 of the Fourteenth Amendment when it abrogated the States' Eleventh Amendment immunity in Title II of the ADA. The Sixth Circuit agreed [**10] to hear the case en banc, vacated the Popovich decision on December 12, 2000, and ordered it held in abeyance pending the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, 2001 WL 173556 (2001). Nevertheless, because of the number of recent decisions addressing the issue of the Congressional abrogation of the States' Eleventh Amendment immunity, I find the issue merits reconsideration in this case.



n3 In a Report and Recommendation dated February 24, 1997, I recommended that the Court find that Congress validly abrogated the States' Eleventh Amendment immunity. On April 4, 1997, the Court issued an order adopting my Report and Recommendation.

n4 See, City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997).

n5 See, Kimel v. Florida Bd. of Regents, 528 U.S. 62, 145 L. Ed. 2d 522, 120 S. Ct. 631 (2000).


The Eleventh Amendment to the [**11] United States' Constitution provides:


The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

By its terms, the Eleventh Amendment applies only to suits against a state by citizens of another state. However, the Supreme Court has extended its application to suits by citizens against their own state. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73, 145 L. Ed. 2d 522, 120 S. Ct. 631 (2000); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 134 L. Ed. 2d 252, 116 S. Ct. 1114 (1996). "The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, 2001 WL 173556 (2001), slip op. at 5.

There are three exceptions to a State's sovereign immunity under the Eleventh Amendment. A state may waive its immunity and consent to suit in federal court. Green v. Mansour, 474 U.S. 64, 68, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1985). [**12] Second, the Eleventh Amendment does not bar a suit against a state official seeking prospective relief to end a continuing violation of federal law. Ex-Parte Young, 209 U.S. 123, 167, 52 L. Ed. 714, 28 S. Ct. 441 (1908). Third, Congress may validly abrogate the States' Eleventh Amendment immunity. Seminole Tribe, 517 U.S. at 55.

To determine whether Congress has validly abrogated the States' sovereign immunity, a court "must answer two [*710] questions: first, whether Congress has unequivocally expressed its intent to abrogate the immunity . . . and second, whether Congress has acted pursuant to a valid exercise of power." Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savs. Bank, 527 U.S. 627, 635, 144 L. Ed. 2d 575, 119 S. Ct. 2199 (1999); Seminole, 517 U.S. at 55. Section 12202 of the ADA provides:


A state shall not be immune under the Eleventh Amendment to the Constitution of the United States from an action in a Federal or State court of competent jurisdiction for a violation of this chapter.


42 U.S.C. § 12202. Congress satisfied the first requirement by expressly [**13] stating an intent to abrogate the States' Eleventh Amendment immunity. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, slip op. at 5; Lavia v. Pennsylvania Department of Corrections, 224 F.3d 190, 196 (3rd Cir. 2000). Therefore, this Court must determine whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA.

Congress may not base its abrogation of the States' Eleventh Amendment immunity upon the commerce powers enumerated in Article I. See, Kimel, 528 U.S. at 79. It may base its abrogation on the enforcement provisions in Section 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). Section 1 of the Fourteenth Amendment provides:


No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive [**14] guarantees contained in Section 1 by enacting appropriate legislation. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, slip op. at 6. ". . . Congress' power 'to enforce' the Amendment includes the authority both to remedy and to deter violations of rights thereunder by prohibiting a somewhat broader swath of conduct including that which is not itself forbidden by the Amendment's text." Garrett, 121 S. Ct. 955, 963, slip op. at 7 (quoting Kimel, 528 U.S. at 81). However, Congress' enforcement powers under Section 5 are not unlimited. City of Boerne, 521 U.S. at 518-19. For a legislative enactment to be a valid exercise of this power, Congress must "identify conduct that transgresses the Fourteenth Amendment's substantive provisions and must tailor its legislative scheme to remedying or preventing such conduct." Florida Prepaid, 119 S. Ct. at 2207; Stevens v. Illinois Dep't of Transportation, 210 F.3d 732, 737 (7th Cir. 2000).

The Supreme Court, in City of Boerne, developed the congruence and proportionality test to protect against "impermissible attempts by Congress to determine the substance of the Fourteenth Amendment." Cisneros v. Wilson, 226 F.3d 1113, 1119 (10th Cir. 2000). [**15] The Court stated: "There must be a congruence and proportionality between the injury to be prevented and the means adopted to that end." City of Boerne, 521 U.S. at 520. "The appropriateness of the remedial measure must be considered in light of the evil presented." Id. at 530. "The first step in applying these now familiar terms is to identify with some precision the scope of the constitutional right at issue." Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, slip op. at 7. The second step is to examine whether Congress identified a history and pattern of unconstitutional discrimination. Id. at 10. [*711]

In Garrett, the Supreme Court used these principles when it addressed whether Congress exceeded its authority under Section 5 of the Fourteenth Amendment in abrogating States' immunity under Title I of the ADA. Applying the congruence and proportionality test, the Supreme Court first held that, "States are not required by the Fourteenth Amendment to make special accommodation for the disabled, so long as their actions towards such individuals are rational." Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, slip op. at 9. The Court based that finding on its decision in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). [**16] In Cleburne, the Supreme Court held that the Court must apply a rational basis test to distinctions based on disability. Cleburne, 473 U.S. at 439-442. The result of Cleburne is "that States are not required by the Fourteenth Amendment to make special accommodation for the disabled, so long as their actions towards such individuals are rational." Erickson v. Board of Governors of State Colleges and Universities for Northeastern Illinois Univ., 207 F.3d 945, 949 (7th Cir. 2000). Thus, rational discrimination on the basis of a disability does not violate the Constitution. Id.

The Supreme Court found that certain rights and remedies created by the ADA against the States fail the congruence and proportionality test. The Court noted that Title I of the ADA requires employers to make reasonable accommodation to "make existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U.S.C. § § 12112(5)(B), 12111(a). Although the ADA excepts employers from making reasonable accommodations in certain circumstances, § 12112(b)(5)(A), nevertheless, the accommodation duty "far exceeds [**17] what is constitutionally required in that it makes unlawful a range of alternate responses that would be reasonable but would fall short of imposing an undue burden upon the employer." Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, slip op. at 14. "The Act also makes it the employer's duty to prove that it would suffer such a burden, instead of requiring (as to the Constitutional does) that the complaining party negate reasonable basis for the employer's decision." Id. at 14-15. In addition,


The ADA also forbids utilizing standards, criteria or methods of administration that disparately impact the disabled, without regard to whether such conduct has a rational basis. § 12112(b)(3)(A). Although disparate impact may be relevant evidence of racial discrimination, see Washington v. Davis, 426 U.S. 229, 239, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny.


121 S. Ct. 955, Id. at 15. The Supreme Court then compared the remedial provisions of the ADA to those of the Voting Rights Act of 1965. In addition to finding that Congress documented a "marked pattern of unconstitutional action by the States" [**18] in the Voting Rights Act, the Supreme Court noted that Congress responded by promulgating a "detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' systematic denial of those rights was identified." Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, slip op. at 16. The ADA and the ADEA presumptively forbid consideration of attributes that the Constitution permits states to consider, and then, like the RFRA, require the State to carry a burden of persuasion in order to take the characteristics into account." Erickson, 207 F.3d at 949. The ADA, thus, "prohibits very little conduct likely to be held unconstitutional." Kimel, 120 S. Ct. at 648. [*712]

As the Supreme Court noted in footnote 1 of Garrett, the remedies in Title I of the ADA differ from those in Title II. Title II prohibits a broad swath of conduct without permitting an inquiry into the States' legitimate interest. Title II provides:


Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the [**19] benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.


42 U.S.C. § 12132. "Qualified individual with a disability" is defined as:


an individual with a disability who with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.


§ 12131(2).

Title II's explicit provisions prohibit public entities from excluding disabled individuals from participating in or enjoying the benefits of public services. However, Title II contains an implicit requirement -- the requirement of accommodation. Title II's definition of "qualified individual with a disability imposes an affirmative obligation on public entities to accommodate disabled individuals." Popovich, 227 F.3d at 638. n6 Unlike Title I, Title II makes no statutory exceptions to its duty to accommodate. As the Court of Appeals [**20] for the Sixth Circuit observed:


The accommodation requirement with its limited regulatory exceptions, reaches far beyond conduct likely to violate the Equal Protection Clause. Accommodation requires special treatment for the disabled in situations where facially neutral policies and practices adversely impact the disabled due to their physical or mental impairments. Such action may be constitutionally required only in cases where the State adopts the challenged policy because of, not in spite of, the limitations of the disabled. Title II makes no attempt to distinguish between those neutral policies that violate the Equal Protection Clause and those that do not.


Popovich, 227 F.3d at 639. The accommodation requirement under the ADA is, thus similar, to that in RFRA.


What the RFRA did for religion, the ADA does for disabilities. In neither situation does the Constitution forbid neutral laws or practices that create disparate impacts; in neither situation does the Constitution require accommodation. Both the RFRA and the ADA replace the Constitution's approach with a prohibition of disparate impact and jettison neutrality in favor of accommodation [**21] . . . . There is a countervailing difference that makes the ADA more adventuresome. The Free Exercise Clause forbids all intentional discrimination against religious practices; the Equal Protection clause has no similar rule about disabilities. Rational discrimination against persons with disabilities is constitutionally permissible in a way that rational discrimination against religious practices is not. This makes the ADA harder than the RFRA to justify under § 5 . . . The statute is outside the [*713] boundaries of constitutional discourse in a way that RFRA was not.


Erickson, 207 F.3d at 951. Thus, Title II inappropriately prohibits constitutional as well as unconstitutional conduct.



n6 As indicated above, the Popovich decision was vacated on December 12, 2000. While it has no value in terms of precedent, nevertheless, several passages in the opinion offer guidance to the Court.


The second step that the Court must undertake is to examine whether Congress identified a history and pattern [**22] of unconstitutional discrimination. In Garrett, after examining the legislative history of the ADA, the Supreme Court concluded that the history failed "to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled." Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, slip op. at 10. The Court noted that Congress made a "general finding in the ADA that 'historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continues to be a serious and pervasive social problem.' 42 U.S.C. § 12101(a)(2)."; Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866, slip op. at 11. It further observed that the record assembled by Congress included a number of instances that supported the finding, but that the vast majority of those instances did not concern activities of the States. The Court concluded, "these instances taken together fall short of even suggesting the pattern of unconstitutional discrimination on which § 5 must be based." 121 S. Ct. 955, 970, Id. at 12.

Justice Breyer, in his dissent in Garrett, listed roughly 300 examples of discrimination by state governments [**23] that were contained in the legislative record. See Garrett at Appendix C. The Majority Opinion discounted those examples as "unexamined, anecdotal accounts of adverse, disparate treatment by state officials." Garrett, 531 U.S. 356, 121 S. Ct. 955, 970, 148 L. Ed. 2d 866, slip op. at 12. They also observed that the examples came not from Congress, but from the Task Force on the Rights and Empowerment of Americans with Disabilities, which made no findings on state discrimination in employment. Id. at 13. In footnote 7, the Majority notes that only a small fraction of the examples in Appendix C relate to state discrimination in employment. Id. The Majority further observed that "the overwhelming majority of those accounts pertain to the alleged discrimination by the States in the provision of public services and public accommodations, which areas are addressed in Titles II and III of the ADA." Id.

Unlike discrimination in state employment, Congress did mention discrimination in the provision of public services in its legislative findings: "(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, [**24] institutionalization, health services, voting, and access to public services." 42 U.S.C. § 12101. As Judge Wood of the Seventh Circuit Court of Appeals noted in her dissent in Erickson, many of those areas, particularly voting, institutionalization, public services, and education are areas that are controlled by the state government. Erickson, 207 F.3d at 957 (Wood dissent). Moreover, unlike employment, both the House and Senate Reports support Justice Breyer's conclusions that States participated in societal discrimination against the disabled. The Senate Committee Report 10-116 reached the following conclusions: "Discrimination still persists in such critical areas as employment in the private sector, public accommodation, public services, transportation, and telecommunications. The House Report 101-485, pt. II, drew the same conclusion. Although the Reports do not explicitly refer to the States, it is only logical that it is the States' public services to which it refers, as discrimination on the basis of disability by federal entities in the [*714] provision of public services was already prohibited by the Rehab Act.

While I am satisfied [**25] that Congress made findings that the disabled suffer discrimination in the provision of public services, I note that Congress did not differentiate, in any manner, whether the discrimination was rationally related to a legitimate governmental objective. Therefore, the discrimination prohibited by Title II of the ADA is not demonstrably limited to unconstitutional discrimination. Thus, I find, under the congruence and proportionality test, that the substantive provisions of Title II of the ADA impose burdens on the States that are disproportionate to any unconstitutional conduct that could conceivably be targeted by the Act. Therefore, I find that Congress exceeded its authority in abrogating the States' Eleventh Amendment immunity. Accordingly, Defendants, in their official capacities, are immune from monetary liability under Title II of the ADA.

Section 504 of the Rehab Act prohibits "any program or activity" that receives federal financial assistance from discriminating against a qualified individual with a disability. 29 U.S.C. § 794(a). The Act requires States that accept federal funds to waive their Eleventh Amendment immunity in suits brought in federal [**26] court for violations of Section 504. 42 U.S.C. § 2000d-7. The United States Supreme Court has held that Section 2000d-7 is an unambiguous waiver of the State's Eleventh Amendment immunity. Lane v. Pena, 518 U.S. 187, 200, 135 L. Ed. 2d 486, 116 S. Ct. 2092 (1996). The waiver is valid under the Spending Clause Florida Prepaid, 527 U.S. at 635-36 (Congress may require a waiver of state sovereign immunity as a condition for receiving federal funds, even though Congress could not order the waiver directly.) There is no dispute that the MDOC accepts federal funds. Therefore, Defendants, in their official capacities, are not immune from liability under the Rehab Act.

2. QUALIFIED IMMUNITY

Defendants next contend that they are entitled to qualified immunity because it is not clearly established that the ADA or the Rehab Act can be enforced against the States under the Eleventh Amendment. To determine whether government officials are entitled to qualified immunity the Court must determine: (1) whether a plaintiff has shown a violation of a constitutional or statutory right, and (2) whether that right was clearly established [**27] such that a reasonable government official would have understood that his behavior violated that right. Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir. 1996).

Because I recommend that the Court find that States are immune from liability under Title II of the ADA, Defendants claim for qualified immunity is moot. With respect to the Rehab Act, the Supreme Court in Lane v. Pena, supra, stated that the States do not have Eleventh Amendment immunity from suits alleging discrimination on the basis of a disability under the Rehab Act if they accept federal funds. The Supreme Court decided Lane in 1996. Thus, the States lack of Eleventh Amendment immunity from claims under the Rehab Act was clearly established in 1996. Accordingly, Defendants are not entitled to qualified immunity on this basis.

3. INDIVIDUAL LIABILITY UNDER THE ADA AND REHAB ACT

Defendants next assert that they cannot be held liable as individuals under Title II of the ADA or under the Rehab Act. Title II of the ADA provides, in relevant part that "no qualified individual with a disability [*715] shall, by reason of such disability, be excluded from participation in or [**28] be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The ADA defines "public entity" as any state or local government or department, agency, special purpose district, or other instrumentality of a state or local government. 42 U.S.C. § 12131. The definition does not include individuals. The statutory remedies suggest that individual liability was not contemplated by Congress.


Section 12132 of the Disability Act is to be enforced with the remedies, procedures, and rights established under the Rehab Act, 29 U.S.C. § 794a. Section 794a invokes the remedies, procedures, and rights of portions of titles VI and VII of the Civil Rights Act of 1964. Nothing in the language of the Rehabilitation Act and the Disability Act sections above explicitly authorizes or prohibits suits against individuals acting in their individual capacities. The sections of the Civil Rights Act of 1964 which the Rehabilitation Act and the Disability Act invoke provides some guidance. Only 42 U.S.C. § 2000e-16 [**29] (c) explicitly addresses the issue, providing in employment actions against the federal government, that the head of the department, agency, or unit, as appropriate shall be the defendant. This statutory directive suggests that plaintiff's cannot assert claims against individuals in their individual capacities.


Montez v. Romer, 32 F. Supp. 2d 1235, 1240 (D.Colo. 1999). Moreover, personal liability has been rejected under both Titles I and III of the ADA. See, EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1279 (7th Cir. 1995) and Guckenberger v. Boston Univ., 957 F. Supp. 306, 321-22 (D. Mass. 1997).

Nearly every court that has considered the issue has held that Title II claims cannot be maintained against state officials in their individual capacities. See, Alsbrook v. City of Maumelle, 184 F.3d 999, 1005, n.8 (8th Cir. 1999)(en banc), cert. granted, U.S. , 120 S. Ct. 1003 (2000) and cert. dismissed, U.S. , 120 S. Ct. 1265 (2000); Lewis v. New Mexico Dep't of Health, 94 F. Supp. 2d 1217, 1230 (D.N.M. 2000); Calloway v. Boro of Glassboro Dept. of Police, 89 F. Supp. 2d 543, 557 (D.N.J. 2000); [**30] Yeskey v. Pennsylvania Dep't of Corrections, 76 F. Supp. 2d 572, 575 (M.D.Pa. 1999); Montez v. Romer, 32 F. Supp. 2d 1235, 1240 (D.Colo 1999). But c.f. Niece v. Fitzner, 922 F. Supp. 1208, 1218-19 (E.D. Mich 1996)(holding Title II claim may be maintained against individual defendants). n7 Accordingly, I follow the great weight of authority and find that Defendants may not be held liable under Title II of the ADA in their individual capacities.



n7 The Court in Niece did not consider the enforcement scheme for Title II of the ADA . Rather, after little analysis, it concluded that because the ADA is a "broad remedial statute enacted to eliminate discrimination against disabled persons . . . it must be construed broadly to carry out its purpose." Niece, 922 F. Supp. at 1218-19.


The Rehab Act provides, in relevant part:


No otherwise qualified individual with a disability . . . shall solely by reason of his or her disability, be excluded [**31] from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .


29 U.S.C. § 794(a). The Rehab Act defines "program or activity" to include "all of the operations of . . . [] a department, agency, special district, or other instrumentality [*716] of a State or of a local government . . . any part of which is extended Federal financial assistance." 29 U.S.C. § 794. There is nothing in the language of the Rehab Act that expressly authorizes or prohibits suits against individuals acting in their individual capacities. As set forth above, the remedial scheme of the Rehab Act suggests that there is no individual cause of action against nonemployer defendants in their individual capacities. Hallett v. New York State Dep't of Correctional Services, 109 F. Supp. 2d 190 (S.D.N.Y. 2000); Munoz, supra. Moreover, since the ADA and the Rehab Act are to be construed similarly, 42 U.S.C. § § 12134, 12201, I find that Plaintiff may not maintain an action against Defendants in their individual capacities under the [**32] Rehab Act.

Plaintiff argues that because he has alleged retaliation under the ADA, he may hold defendants individually liable. Section 12203(a) provides:


No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a change, testified, assisted or participated in any matter, in an investigation, proceeding, or hearing under this Act.


The retaliation provision directs an aggrieved person to the remedies and procedures under sections 12117, 12133, and 12188. 42 U.S.C. § 12203(c). A claimant asserting that a person retaliated against him or her in the context of public services is referred to section 12133, the remedial provisions for Title II.

I find the discussion in Smith v. University of the State of New York, 1997 U.S. Dist. LEXIS 20782, 1997 WL 80082 (W.D. N.Y. Dec.31, 1997), persuasive. As that Court observes, the legislative history of the ADA suggests that it is the discriminatory practices of public entities, not individuals that are targeted by Title II.


Title II of the legislation has two purposes. The first purpose is to make applicable [**33] the prohibition against discrimination on the basis of disability, currently set out in regulations implementing section 504 of the Rehabilitation Act of 1973, to all programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto, regardless of whether or not such entities receive Federal financial assistance. *** Specifically, section 202 [codified at 42 U.S.C. § 12132] provides that no qualified individual with a disability shall, by reason of such disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination by a department, agency, special purpose district, or other instrumentality of a State or local government.


H.R.Rep. No. 101-485(II) at 84 (1990).

However, the legislative intent in passing section 12203(a) of the ADA suggests that individual liability was contemplated for acts of retaliation.


Section 502(a) [codified at 42 U.S.C. § 12203(a)] of the legislation provides that no individual shall discriminate against another individual [for opposing practices which violate the ADA [**34] or for assisting in proceedings brought thereunder].


Smith, 1997 WL 800882 at *7 (quoting H.R.Rep. No. 101-485(II), at 138 (1990). The use of the word "person" in subsection (a) is explicitly more expansive than the term "public entity" used in Title II. Had Congress intended that "person" did not include individuals it could have said so. Therefore, I find that, logically, individual liability attaches under the retaliation provisions of the ADA. Plaintiff may pursue a [*717] claim against Defendants for damages under his retaliation theory.

4. MICHIGAN PERSONS WITH DISABILITIES CIVIL RIGHTS ACT

Defendants next assert that Plaintiff's state law claim under the Michigan Persons with Disabilities Civil Rights Act, M.C.L. § 37.1101, should be dismissed because the Act does not govern state correctional facilities. In Doe v. Michigan Department of Corrections, 236 Mich. App. 801, 601 N.W.2d 696 (1999)(Doe I), the Michigan Court of Appeals held that prison inmates are protected by the MPDCRA. That opinion was vacated and the Michigan Court of Appeals appointed a special panel to address the issue of whether the MPDCRA applied to prisoners. [**35] The special panel in Doe v. Department of Corrections, 240 Mich. App. 199, 201, 611 N.W.2d 1 (2000)(Doe II), held that the antidiscrimination provisions of the MPDCRA apply to prisons and to prison inmates. On March 10, 2000, in direct response to Doe II, the Michigan Legislature amended § 37.1301, to except state and county correctional facilities from the definition of public service. n8



n8 The statute provides:


(b) "Public service" means a public facility, department, agency, board or commission owned, operated, or managed by or on behalf of this state or a subdivision of this state, or county, city, village, township, or independent or regional district in this state or a tax exempt private agency established to provide service to the public, except that public service does not include a state or county correctional facility with respect to actions or decisions regarding an individual serving a sentence of imprisonment.


The "Historical and Statutory Notes" to § 37.1301 [**36] provide:


P.A. 1999, No. 201, enaction Section 1. This amendatory act is curative and intended to correct any misinterpretation of legislative intent in the Court of Appeals decision in Doe v. Department of Corrections, 236 Mich. App. 801, 601 N.W.2d 696 (1999). This legislation further expresses the original intent of the legislature that an individual serving a sentence of imprisonment in a state or county correctional facility is not within the purview of this Act.


Defendants contend that the change in the statute eliminated Plaintiff's cause of action. Plaintiff, relying on Karl v. Bryant Air Conditioner, 705 F.2d 164 (1983), argues that Michigan law does not allow a new statute to abolish a cause of action that has already vested.

The effective date of the Amendment to the Act was March 10, 2000. Therefore, Plaintiff has no cause of action for any violations of the Act from March 10, 2000 forward. With respect to any cause of action that accrued before March 10, 2000, I concluded that such cause of action may be maintained. Defendants urge the Court to rely on the subsequent legislative history of the Act. Subsequent legislative [**37] history is "a hazardous basis for inferring the intent of an earlier" legislature. United States v. Price, 361 U.S. 304, 313, 4 L. Ed. 2d 334, 80 S. Ct. 326 (1960); Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980); Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650, 110 L. Ed. 2d 579, 110 S. Ct. 2668 (1990). As Justice Scalia stated in his concurring opinion in Sullivan v. Finkelstein, 496 U.S. 617, 110 L. Ed. 2d 563, 110 S. Ct. 2658 (1990),


The legislative history of a statute is the history of its consideration and enactment. "Subsequent legislative history" - which presumes the post-enactment history of a statute's consideration [*718] and enactment - is a contradiction in terms. The phrase is used to smuggle into judicial consideration legislators' expressions not of what a bill currently under consideration means (which, the theory goes, reflects what their colleagues understood they were voting for), but of what a law previously enacted means.

* * *


In my opinion, the views of a legislator concerning a statute already enacted [**38] are entitled to no more weight than the views of a judge concerning a statute not yet passed.


Finkelstein, 496 U.S. at 631-32.

In this case, the "subsequent legislative history" is supposed to tell us what the Michigan legislators in the 1999 session thought the legislators from the 1976 legislative session, some twenty three years earlier, intended. It would be fair to say that very few, if any, of the legislators that divined the intent of the 1976 legislature were actually members of the legislature who considered and voted on the Michigan Handicappers Civil Rights Act in 1976. The Michigan Legislature is clearly attempting to do precisely that which Justice Scalia criticizes -- smuggle into judicial consideration legislator's expressions of what a law previously enacted means.

"The starting point for interpreting a statute is the language of the statute itself." Consumer Product Safety, 447 U.S. at 108. "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Id. As the Michigan Court of Appeals held in Doe II, and in Judge White's concurring opinion in Doe [**39] I, the meaning of "public service" as defined in M.C.L. § 37.1301(b), is plain and clear and is analogous to the definition of public entity in the ADA. That is, the MPDCRA plainly covered prisons until the Amendments of Public Act 201 of 1999 went into effect on March 10, 2000. Accordingly, Plaintiff's claim that Defendants violated his rights under the MPDCRA between 1996 and March 10, 2000 remains viable.

5. PUNITIVE DAMAGES

Defendants next contend that punitive damages are not available under Title II of the ADA or under the Rehab Act. Congress did not explicitly provide for punitive damages under § 504 of the Rehab Act or under Title II of the ADA. Moreno v. Consolidated Rail Corp., 99 F.3d 782, 788 (6th Cir. 1996)(en banc). The Sixth Circuit, in Moreno, engaged in a lengthy analysis of whether punitive damages may be awarded under § 504 of the Rehab Act. Moreno, 99 F.3d at 788-792. It concluded, en banc, that Congress did not intend to allow such damages. Id. at 791. They further found that punitive damages were not appropriate in a section 504 action as: (1) Congress placed a monetary limit on punitive damages [**40] under § 501 of the same Act; (2) Congress provided other methods by which to punish offenders of § 504, and (3) such damages "are hardly necessary to punish thoughtlessness, and [there is] no reason to believe that the administrative scheme and threat of compensatory damage awards are not adequate to accomplish the task of deterrence." Id. at 792. In Johnson v. City of Saline, 151 F.3d 564 (6th Cir. 1998), the Sixth Circuit extended that principle and held that punitive damages are not available under Title II of the ADA. Johnson, 151 F.3d at 573. See also, Doe v. County of Centre, PA, 242 F.3d 437, 2001 WL 214005 (3rd Cir. March 5 2001).

Although a number of other courts outside this Circuit have allowed an award of punitive damages under the ADA and the Rehab Act, see Todd v. Elkins, 105 F.3d 663 [*719] (8th Cir. 1997); Burns-Vidlak v. Chandler, 980 F. Supp. 1144 (D. Hawaii 1997); Kilroy v. Husson College, 959 F. Supp. 22 (D.Me. 1997); Hernandez v. Hartford, 959 F. Supp. 125 (D.Conn. 1997), I must follow the existing precedent in the Sixth [**41] Circuit. Accordingly, I recommend that Plaintiff's claims for punitive damages under Title II of the ADA and the Rehab Act be dismissed.

6. PLRA

Defendants move to dismiss Plaintiff's claims under the Rehab Act and under the ADA. They rely upon the provisions in the Prison Litigation Reform Act. Title 42 U.S.C. § 1997e(e) provides:


LIMITATION ON RECOVERY: No Federal civil actions may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.


The plain language of the statute suggests that all federal civil actions, including those brought under the ADA, the Rehab Act, and constitutional principles, are subject to this limitation. Cassidy v. Indiana Department of Corrections, 199 F.3d 374, 376-77 (7th Cir. 2000); Dawes v. Walker, 239 F.3d 489 (2nd Cir. 2001)(Judge Walker's separate opinion). Plaintiff has alleged no physical injury. While the PLRA forecloses recovery by Plaintiff for emotional and mental injuries, he may pursue all of his other claims for damages and relief, [**42] including nominal damages, not otherwise restricted by the other sections of this Report and Recommendation.

7. CLAIM FOR INJUNCTIVE RELIEF

Finally, Defendants argue that Plaintiff's claim for injunctive relief is moot because he completed sex offender therapy in July 2000. Neither Defendants nor Plaintiff have provided the Court with an affidavit or an official certification that Plaintiff has, in fact, completed sex offender therapy such that he will not be denied consideration for parole status. Given the history of this case, until I receive an affidavit or some sort of official certification that Plaintiff has completed the recommended sex offender therapy, I will not recommend that the Court find Plaintiff's claim for injunctive relief moot.

D. CONCLUSION

For the reasons stated above, I recommend that Defendants' Motion to Dismiss be GRANTED IN PART AND DENIED IN PART. I further recommend that the following claims survive Defendants' Motion: (1) Plaintiff's claim for injunctive relief under Title II of the ADA and under Section 504 of the Rehab Act; (2) Plaintiff's claim for retaliation under the ADA; (3) Plaintiff's claims under the MPDCRA that [**43] accrued before March 10, 2001; and (4) Plaintiff's claim for monetary damages against Defendants in their official capacity under the Rehab Act.


III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. Section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981), Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985), Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir. 1991). Filing of objections that raise some issues but fail to raise others with specificity, will not [*720] preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987), Willis v. Secretary of Health and Human Services, 931 F.2d 390, 401 (6th Cir. 1991). [**44] Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objection is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

DONALD A. SCHEER

UNITED STATES MAGISTRATE JUDGE


DATED: March 20, 2001