No. 95-3402 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT INMATES OF THE ALLEGHENY COUNTY JAIL, THOMAS BRICE ILLEGIBLE ARTHUR GOSLEE, ROBERT MALONEY, and CALVIN MILLIGAN. Plaintiffs-appearance CYRIL H. ILLEGIBLE President of the Allegheny County ILLEGIBLE Prison Inspectors and the Other Members of the Board. THOMAS FOERSTER and WILLIAM H. HUNT, Commissioners ILLEGIBLE Allegheny County, EUGENE COON, Sheriff for Allegheny County, THE HONORABLE PATRICK R. ILLEGIBLE, MICHAEL J. O'MALLEY and MARION K. FINKELHOP, Judges Court of Common Pleas of Allegheny County, RICHARD S. ILLEGIBLE, Mayor of the City of Pittsburgh, HARRIET MCCRAY, MSGR. CHARLES OWEN RICE, and CHARLES KOZAKIEWICZ, Warden of Allegheny County Jail and WILLIAM R. ROBINSON, Executive Director of Prison Inspectors, and CYRIL ILLEGIBLE THOMAS FOERSTER, and WILLIAM H. HUNT, as Commissioners of Allegheny County. Defendants-appellees v. THE COMMONWEALTH OF PENNSYLVANIA; THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS; DAVID S. OWENS, JR., Commissioner, Department of Corrections, and ERSKIND DERAMUS, Deputy Commissioner, Department of Corrections. Defendants-appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE DEVAL L. PATRICK LINDA F. THOME Assistant Attorney General Department of Justice DAVID K. FLYNN P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4707 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . .. . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT: SECTION 504 AND TITLE II OF THE ADA APPLY TO STATE AND LOCAL PRISONS . . . . . . . . . . . . . . . . 4 A. The Plain Language Of Both Statutes Applies To State And Local Entities That Operate Prisons .. . . 4 B. Administrative Interpretations Of Section 504 And Title II Of The ADA Confirm Their Application To State And Local Prisons . . . . . . .14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . ... 20 TABLE OF AUTHORITIES CASES: ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994) . . . . .. 14 Armstrong v. Wilson, No. C 94-2307 CW, 1996 WL 580847 (N.D. Cal., Sept. 20, 1996), appeal pending on other grounds, No. 96-16870 (9th Cir.), Section 1292(b) appeal on coverage issue dismissed, No. 96-80358 (9th Cir.) . . . . . .. . 5 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) . . . . . . . . . . . . . . . . . .. 9 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 (1995) . . . . . 13, 14 Bailey v. United States, 116 S. Ct. 501 (1995) . . . . . . . 5,6 Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . . . 5 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . 15 Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) . . . . . . .. . 8 - i - 01-07173 CASES (continued): PAGE Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . 14 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) . . . . . . 13 Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) . . . . . . . . 5 Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35 (D.D.C. 1994) . . . . . . . . . . . . .15 Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . . 5 Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . 10 Gustafson v. Alloyd Co., 115 S. Ct. 1061 (1995) . . . . . . . 13 Harker v. State Use Indus., 990 F.2d 131 (4th Cir.), cert. denied, 510 U.S. 886 (1993) . . . . . 11 Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) . . . . . . 5 Inmates of the Allegheny County Jail v. Wecht, 93 F.3d 1124, vacated, reh'g en banc granted (3d Cir., Sept. 20, 1996) . . . . . . . . . . . . . passim Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222 (S.D.N.Y. 1996), appeal pending, No. 96-7797 (2d Cir.) . . . . . . . . . . . . 15 Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994) . . . . . . . . . . 5 Niece v. Fitzner, Civ. A. No. 94-CV-70718-DT, 1996 WL 588217 (E.D. Mich., Oct. 10, 1996) . . . . . . . 5 Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993) . . . . . . . . . . . . . .. . . . . . 15 Oak Ridge Care Ctr., Inc. v. Racine County, Wis., 896 F. Supp. 867 (E.D. Wis. 1995) . . . . . . . . 13 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984) . . . . . . . . . . .. 9, 10 Petersen v. University of Wisconsin Bd. of Regents, 818 F. Supp. 1276 (W.D. Wis. 1993) . . . . . . . . . . . . . . . . . . . 15 Southeastern Community College v. Davis, 442 U.S. 397 (1979) . . . . . . . . . . . . . . . . . . 12 - ii - 01-07174 CASES (continued): PAGE Stinson v. United States, 508 U.S. 36 (1993) . . . . . . . 14-15 Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . . . . . 14 Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996) . . . . . . . . passim Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) . . . . . . 15 United States v. Larionoff, 431 U.S. 864 (1977) . . . . . . . 15 Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992), cert. denied, 507 U.S. 928 (1993) . . . . . . . . . . . 11 White v. State of Colorado, 82 F.3d 364 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 8 Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 9 Williams v. Meese, 926 F.2d 994 (10th Cir. 1991) . . . . . .7, 8 STATUTES AND REGULATIONS: Americans with Disabilities Act, Title II . . . . . passim 42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . . 14 42 U.S.C. 12101(b)(4) . . . . . . . . . . . . . . . . . 14 42 U.S.C. 12131 . . . . . . . . . . . . . . . . . . . . .2 42 U.S.C. 12131(1)(B) . . . . . . . . . . . . . . . . . .7 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . .12 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . 2, 6, 13 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . .2 42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . .2 42 U.S.C. 12134(a) . . . . . . . . . . . . . . . . .2, 14 42 U.S.C. 12134(b) . . . . . . . . . . . . . . . . . . .7 42 U.S.C. 12134(c) . . . . . . . . . . . . . . . . . . .18 42 U.S.C. 12201(a) . . . . . . . . . . . . . . . . . . .7 42 U.S.C. 12202 . . . . . . . . . . . . . . . .. . . . .10 42 U.S.C. 12204(a) . . . . . . . . . . . . . . . . . . .18 42 U.S.C. 12206 . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. 12206(c)(3) . . . . . . . . . . . . . . . . . .2 Fair Labor Standards Act, 29 U.S.C. 201 et seq. . . . . .. . .11 - iii - 01-07175 STATUTES AND REGULATIONS (cont'd): PAGE Rehabilitation Act of 1973, Section 504 . . . . . . . . . .passim 29 U.S.C. 794(a) . . . . . . . . . . . . . . . . . 2, 6, 14 29 U.S.C. 794(b) . . . . . . . . . . . . . . . . . . . . 6 42 U.S.C. 2000d-7(a)(1) . . . . . . . . . . . . . . . . . .. . 10 28 C.F.R. Pt. 35 (1996) . . . . . . . . . . . . . . . . . . . . 2 28 C.F.R. Pt. 35, App. A (1996) . . . . . . . . . . . . . . . .17 28 C.F.R. Pt. 35, App. A, Subpart A (1996) . . . . . . . . . . 17 28 C.F.R. 35.102(a) (1996) . . . . . . . . . . . . . . . . . . 17 28 C.F.R. 35.151(c) (1996) . . . . . . . . . . . . . . . . . . 18 28 C.F.R. 35.190(b)(6) (1996) . . . . . . . . . . . . . . . . .17 28 C.F.R. Pt. 36, App. A (1996) . . . . . . . . . . . . . . . .18 28 C.F.R. Pt. 39, Editorial Note (1996) . . . . . . . . . . . .16 28 C.F.R. 39.170(d)(1)(ii) (1996) . . . . . . . . . . . . . . .16 28 C.F.R. Pt. 42, Subpart G (1996) . . . . . . . . . . . . . . .2 28 C.F.R. 42.502 (1996) . . . . . . . . . . . . . . . . . . . .19 28 C.F.R. 42.522(b) (1996) . . . . . . . . . . . . . . . . . . 18 28 C.F.R. 42.540(h) (1996) . . . . . . . . . . . . . . . . . . 15 28 C.F.R. 42.540(j) (1996) . . . . . . . . . . . . . . . . . . 16 41 C.F.R. Subpart 101-19.6, App. A (1996) . . . . . . . . . . .18 45 Fed. Reg. 37620 (1980) . . . . . . . . . . . . . . . . . . .16 45 Fed. Reg. 37630 (1980) . . . . . . . . . . . . . . . . . . .16 59 Fed. Reg. 31676 (1994) . . . . . . . . . . . . . . . . . . .18 59 Fed. Reg. 31770-31772 (1994) . . . . . . . . . . . . . . . .18 59 Fed. Reg. 31808 (1994) . . . . . . . . . . . . . . . . . . .18 LEGISLATIVE HISTORY: H.R. Rep. No. 485, Pt. 4, 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 512 . . . . . . . . . . . 12 MISCELLANEOUS: Americans with Disabilities Act Title II Technical Assistance Manual (1993) . . . . . . . 2, 15, 17 Webster's Third New World Dictionary (1986) . . . . . . .6, 7, 12 - iv - 01-07176 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 95-3402 INMATES OF THE ALLEGHENY COUNTY JAIL, THOMAS PRICE BEY, ARTHUR GOSLEE, ROBERT MALONEY, and CALVIN MILLIGAN, Plaintiffs-appellants v. CYRIL H. WECHT, President of the Allegheny County Bd. of Prison Inspectors and the Other Members of the Board; THOMAS FOERSTER and WILLIAM H. HUNT, Commissioners for Allegheny County; EUGENE COON, Sheriff for Allegheny County; THE HONORABLE PATRICK R. TAMILIA; MICHAEL J. O'MALLEY, and MARION K. FINKELHOR, Judges, Court of Common Pleas of Allegheny County; RICHARD S. CALIGURI, Mayor of the City of Pittsburgh; HARRIET MCCRAY; MSGR. CHARLES OWEN RICE; and CHARLES KOZAKIEWICZ, Warden of Allegheny County Jail and WILLIAM R. ROBINSON, Executive Director of Prison Inspectors; and CYRIL WECHT, THOMAS FOERSTER, and WILLIAM H. HUNT, as Commissioners of Allegheny County, Defendants-appellees v. THE COMMONWEALTH OF PENNSYLVANIA; THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS; DAVID S. OWENS, JR., Commissioner, Department of Corrections, and ERSKIND DERAMUS, Deputy Commissioner, Department of Corrections, Defendants-appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES The Department of Justice has significant responsibilities for the enforcement and implementation of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the 01-07177 - 2 - Rehabilitation Act of 1973. See 29 U.S.C. 794(a); 42 U.S.C. 12133, 12134. Pursuant to 29 U.S.C. 794(a), the Department has issued regulations interpreting Section 504. See 28 C.F.R. Pt. 42, Subpart G (1996). Pursuant to 42 U.S.C. 12134(a) and 42 U.S.C. 12206(c)(3), the Department has issued regulations and a Technical Assistance Manual implementing and interpreting Title II. See 28 C.F.R. Pt. 35 (1996); Americans with Disabilities Act Title II Technical Assistance Manual (1993). The outcome of this appeal may affect the United States' ability to enforce Section 504 and Title II in the context of state or locally-operated prison facilities. STATEMENT OF THE ISSUE The United States will address the following issue: Whether the requirements of Title II of the Americans with Disabilities Act, 42 U.S.C. 12131-12134, and Section 504 of the Rehabilitation Act, 29 U.S.C. 794, apply to state or locally- operated prison facilities. STATEMENT OF THE CASE This is a long-standing case filed in 1976 to challenge, on constitutional grounds, the conditions in the Allegheny County Jail. In orders entered in 1978 and 1980, the district court found that conditions at the jail failed to satisfy constitutional requirements, and that the defendants' failure to provide services for mentally ill inmates violated the Constitution. Inmates of the Allegheny County Jail v. Wecht, (panel opinion), 93 F.3d 1124, 1127, vacated, reh'g en banc 01-07178 - 3 - granted (3d Cir., Sept. 20, 1996). The district court ordered the County to take a number of actions, including to provide mental health services to inmates. Ibid. In 1988, the district court ordered the jail closed, and in 1989, the parties negotiated a consent decree which, inter alia, required the defendants to create a "treatment/work release facility for the mentally ill." Id. at 1127-1128. In 1995, following a series of proceedings in which the County sought to relieve itself of the obligation to develop such a facility, the parties reached a partial agreement on this question. They agreed to eliminate the requirement of a separate facility for persons with mental illness. 93 F.3d at 1128. In place of this requirement, the County would create a "Forensic Support Program," through which up to 25 inmates would receive community-based mental health services. Ibid. The parties agreed to certain eligibility requirements, including that the participating inmates "must not pose an apparent risk of harm to themselves or other[.]" Id. at 1129. The parties could not agree, however, on whether inmates with a history of violence, or who had been charged with violent crimes should be deemed ineligible for the program. The County contended that such inmates should be excluded from the program, while plaintiffs argued that there should be individualized assessments to screen out those who posed a safety risk. Ibid. On May 26, 1995, the district court entered an order adopting the County's position on this eligibility requirement. 01-07179 - 4 - The order provided that "only an inmate 'charged with a minor, non-violent crime' and who did not have a 'past history of violence'" would be eligible for the community-based programs. 93 F.3d at 1129, quoting May 26, 1995 district court order. It is this provision, which plaintiffs allege to violate Title II of the ADA and Section 504, that is at issue in this appeal. A divided panel vacated and remanded the district court order. The majority ruled, first, that Section 504 and Title II apply to state and local correctional facilities. 93 F.3d at 1130-1135. Judge Becker concurred in this part of the judgment and joined this part of the majority opinion. Id. at 1144. The panel majority next ruled that the question whether the disputed provision of the May 26, 1995 order violated the ADA or Section 504 required further fact-finding, and should be examined on remand, with "considerable weight to the unique needs of prison administration" and deference "to the judgments of prison officials." 93 F.3d at 1136, see id. at 1135-1143. Judge Becker dissented from this part of the panel decision. Id. at 1144. On September 20, this Court vacated the panel opinion, and granted the defendants' petition for rehearing en banc. ARGUMENT SECTION 504 AND TITLE II OF THE ADA APPLY TO STATE AND LOCAL PRISONS A. The Plain Language Of Both Statutes Applies To State And Local Entities That Operate Prisons. Section 504 of the Rehabilitation Act, the first federal statute to provide broad prohibitions against discrimination on 01-07180 - 5 - the basis of disability, applies to discrimination in programs and activities receiving federal financial assistance. Title II of the ADA, enacted in 1990, extends these protections and prohibitions to all state and local government programs and activities, regardless of whether they receive federal financial assistance. The starting point in statutory construction is the language of the statute. Bailey v. United States, 116 S. Ct. 501, 506 (1995). As the panel recognized, 93 F.3d at 1130-1131, an examination of the plain language of Title II and Section 504 establishes that both statutes apply to state and local prison facilities. See Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988) (Section 504); Gates v. Rowland, 39 F.3d 1439, 1446-1447 (9th Cir. 1994) (Section 504); cf. Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) (applying Title II and Section 504 to prisoner's claim); Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994) (applying Section 504 to prisoner's claim); Harris v. Thigpen, 941 F.2d 1495, 1522 (11th Cir. 1991) (Section 504). 1/ The substantive provisions of the statutes are similar. Section 504 provides in pertinent part: No otherwise qualified individual with a disability in the United States * * * shall, ______________________ 1/ Two recent district court decisions have held Section 504 and Title II of the ADA applicable to prisons. See Armstrong v. Wilson, No. C 94-2307 CW, 1996 WL 580847 (N.D. Cal., Sept. 20, 1996), appeal pending on other grounds, No. 96-16870 (9th Cir.), Section 1292(b) appeal on coverage issue dismissed, No. 96-80358 (9th Cir.); Niece v. Fitzner, Civ. A. No. 94-CV-70718-DT, 1996 WL 588217 (E.D. Mich., Oct. 10, 1996). Copies of both decisions are appended to this brief. 01-07181 - 6 - solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency[.] 29 U.S.C. 794(a). Title II of the ADA provides in pertinent part: no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the service, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. 12132. The statutory definition of "[p]rogram or activity" in Section 504 indicates that this term was intended to be all- encompassing. It includes "all of the operations of -- (1) (A) a department, agency, special purpose district, or other instrumentality of a State or of a local government * * * any part of which is extended Federal financial assistance." 29 U.S.C. 794(b) (emphasis added). The county jail authorities here clearly fall within this definition. The ordinary meaning of the terms "program" and "activity" in the context of state or local governmental entities also includes correctional facilities operated by such entities. See Bailey, 116 S. Ct. at 506 (a word in a statute "must be given its 'ordinary or natural' meaning"). "Activity" means, inter alia, "natural or normal function or operation," and includes the "duties or function" of "an organizational unit for performing a specific function." Webster's Third New International Dictionary 01-07182 - 7 - (1986) at 22. "Program" is defined as "a plan of procedure: a schedule or system under which action may be taken toward a desired goal." Id. at 1812. Certainly, operating a prison facility falls within the "duties or functions" of local jail authorities, and mental health programs are a part of such authories' execution of a "plan of procedure." As the panel wrote, "the different forms of treatment [at issue in this case] may be properly described as 'programs' in that they are an organized series of events for the provision of services. Indeed, the treatment regimen at issue is in fact called the 'Forensic Support Program.'" 93 F.3d at 1135. Reflective of the similar language in the two statutes, Congress directed that Title II of the ADA be interpreted in a manner consistent with Section 504. 42 U.S.C. 12134(b), 12201(a). Thus, the terms "programs" and "activities" in Title II have the same meaning as in Section 504. In addition, Title II's definition of a "public entity" clearly encompasses a state or local correctional facility or authority: "any department, agency, * * * or other instrumentality of a State or States or local government[.]" 42 U.S.C. 12131(1)(B) (emphasis added). Several courts nonetheless have questioned the applicability of these statutes to prisons. See Torcasio v. Murray, 57 F.3d 1340, 1344-1346 (4th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996) (coverage of prisons by Section 504 and Title II not clearly established in qualified immunity context); Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (stating, in dicta, 01-07183 - 8 - that in context of employment discrimination claim, Bureau of Prisons "does not fit the definition of 'programs or activities' governed by" Section 504);2/ White v. State of Colorado, 82 F.3d 364, 367 (10th Cir. 1996) (ADA does not apply to employment discrimination claim brought by state prison inmate); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (speculating, without deciding, that exclusion of prisoners from ADA coverage "may have textual foundation in the term 'qualified individual.'") The only thorough discussion of the rationale for this limited reading of the statutes is found in Torcasio. Torcasio did not decide whether either Section 504 or Title II of the ADA applies to prisons. Rather, it concluded that such coverage was not clearly established at the time of the events at issue, and that the individual defendants in that case therefore were entitled to qualified immunity.3/ Of course, whether a statute applies to an entity (the issue here) is a question quite separate and distinct from whether its application is or was "clearly established." But in reaching its qualified immunity _____________________ 2/The holding in Williams is inconsistent with Department of Justice regulations implementing Section 504 with respect to federally conducted programs, which make it clear that Section 504 does apply to federal prisons. See p. 16, infra. 3/Torcasio held that the individual defendants were entitled to qualified immunity on three grounds. First, it held that it was not clearly established "at the time" that either statute applied to state prisons. Id. at 1343; see id. at 1344-1352. Second, it held that it was not clearly established that either statute provided protections to a morbidly obese prisoner such as the plaintiff in that case. Id. at 1344, 1353-1355. Third, it held that the individual defendants could reasonably have believed that their actions were lawful. Id. at 1355-1356. 01-07184 - 9 - ruling, the Torcasio court discussed the reach of the two statues at length, and expressed its doubt that either applied to prisons. First, the Torcasio court recognized that the broad language prohibiting discrimination on the basis of disability in both statutes "appears all-encompassing." 57 F.3d at 1344. But it erroneously expressed its reluctance to find either applicable to prisons, "absent a far clearer expression of congressional intent." Ibid. The court relied (ibid.) upon a rule of statutory construction set out in Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989): if Congress intends to alter the "usual constitutional balance between the States and the Federal Government," it must make its intention to do so "unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 * * * (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 * * * (1984). Because it found the operation of prisons to be a "core state function," 57 F.3d at 1345, and because neither Section 504 nor Title II includes an express statement of their application to correctional facilities, the Torcasio court expressed its doubt that Congress had "clearly" intended either statute to apply to state prisons. Id. at 1346. This extension of the clear statement rule was unwarranted. Will, Atascadero, and Pennhurst all involved instances in which there had been no express waiver or abrogation of the States' traditional immunity from suit, either by the State itself (Pennhurst), or by Congress (Will, Atascadero). Here, in - 10 - contrast, both Section 504 and Title II of the ADA contain an "unequivocal expression of congressional intent to overturn the constitutionally guaranteed immunity of the several states." Pennhurst, 465 U.S. at 99 (internal quotation marks and citation omitted). See 42 U.S.C. 2000d-7(a)(1) ("A State shall not be immune under the Eleventh Amendment * * * from suit in Federal court for a violation of section 504 of the Rehabilitation Act"); 42 U.S.C. 12202 ("A State shall not be immune under the eleventh amendment * * * from an action in Federal or State court of competent jurisdiction for a violation of [the ADA]"). It is true that, when "Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." Gregory v. Ashcroft, 501 U.S. 452, 460, 461 (1991) (internal quotation marks and citations omitted). This requirement, however, is a "rule of statutory construction to be applied where statutory intent is ambiguous." Gregory, 501 U.S. at 470. As the panel in this case recognized, 93 F.3d at 1133, it is not a license to disregard clearly expressed congressional intent. Torcasio's suggestion that Congress must specifically identify state or local prisons in the statutory text, if it wishes to regulate them, was expressly disavowed by the Supreme Court in Gregory. See 501 U.S. at 467 ("This does not mean that the Act must mention judges explicitly.") Congress need only make the scope of a statute "plain." Ibid. And Congress has 01-07186 - 11 - done that here. Both Section 504 and Title II speak unambiguously of their application to state and local governments and to "any" or "all" of their operations. In light of the clear and all-encompassing language of both statutes, there is simply no basis for requiring Congress to have detailed which of the many important components of state and local governments were to be included in the terms "any" and "all."4/ Second, in an effort to find a textual basis for its narrow reading of Section 504 and Title II, Torcasio opined that, despite their broad language, certain provisions of the statutes cast doubt on their applicability to prisons. 57 F.3d at 1346- 1347. The court stated its belief that prisons "generally do not provide 'services,' 'programs,' or 'activities' as those terms are ordinarily understood" and that "the definition of 'qualified individual with a disability' is not naturally read as encompassing inmates in state prisons." 57 F.3d at 1347. As explained above, however (pp. 6-7, supra), the operations of state or local correctional facilities fall quite naturally within the terms "programs" and "activities." Similarly, the fact that inmates are in prison involuntarily does not negate the fact that prison officials provide them with benefits and ______________________ 4/Decisions (cited in Torcasio, 57 F.3d at 1345) holding the Fair Labor Standards Act, 29 U.S.C. 201 et seq., inapplicable to prisoners are not to the contrary. Those decisions rest upon the courts' conclusion that the necessary employee-employer relationship did not exist. See, e.g., Harker v. State Use Indus., 990 F.2d 131, 133-136 (4th Cir.), cert. denied, 510 U.S. 886 (1993); Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir. 1992), cert. denied, 507 U.S. 928 (1993). 01-07187 - 12 - services in the form of food, shelter, medical care, recreation, education, rehabilitation, and, as in this case, mental health services. Nor are prisoners excluded from coverage because Section 504 and Title II protect only "qualified individual[s] with a disability." That term is defined in Title II to mean: an individual with a disability who, with or without reasonable modifications * * * meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. 12131(2). This definition, drawn from the Rehabilitation Act regulations, is not intended to circumscribe the entities covered by the Act. Rather, it sets forth the common sense proposition that entities that are covered by the Act need not jettison the essential eligibility requirements of their programs or activities in order to avoid liability. See Southeastern Community College v. Davis, 442 U.S. 397 (1979); H.R. Rep. No. 485, Pt. 4, 101st Cong., 2d Sess. 38 (1990), reprinted in 1990 U.S.C.C.A.N. 512, 528. Moreover, the terms "eligible" and "participate" do not, as Torcasio stated (57 F.3d at 1347), "imply voluntariness" or mandate that an individual seek out or request a service to be covered. To the contrary, the term "eligible" simply describes those who are "fitted or qualified to be chosen," without regard to their own wishes. See Webster's Third New International Dictionary at 736. In the context of this case, as the panel noted, inmates must be "qualified" for the mental health services 01-07188 - 13 - programs at issue by meeting certain "eligibility requirements," such as not posing a threat to oneself or others. 93 F.3d at 1135. Finally, the prohibitions of Title II are not limited to the discriminatory exclusion of or denial of benefits to individuals from services, programs, or activities. Title II also prohibits public entities from subjecting individuals with disabilities to discrimination by providing that "no qualified individual * * * shall * * * be subjected to discrimination by any such entity." 42 U.S.C. 12132. This phrase must be construed to protect prison inmates from discriminatory conduct regardless of whether prison operations are considered to involve services, programs, or activities, in order to avoid making it mere "surplusage" and "altogether redundant." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2413 (1995); Gustafson v. Alloyd Co., 115 S. Ct. 1061, 1069 (1995). See Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) (by this provision, Congress intended to prohibit outright discrimination as well as denial of services); Oak Ridge Care Ctr., Inc. v. Racine County, Wis., 896 F. Supp. 867, 873 (E.D. Wis. 1995) (even if zoning is not a service, program, or activity, "the statute's catch-all phrase protects [plaintiffs] from being 'subjected to discrimination'"). In enacting the ADA, Congress "invoke[d] the sweep of [its] authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major 01-07189 - 14 - areas of discrimination faced day-to-day by people with disabilities." 42 U.S.C. 12101(b)(4). The "critical areas" in which "discrimination against individuals with disabilities persists" were set forth in the statute, and include "institutionalization." 42 U.S.C. 12101(a)(3). By their terms, Section 504 and Title II of the ADA cover all aspects of state and local governance. Thus, if the plain words of a statute are to guide the courts in interpreting it, then both statutes must be held to apply to state and local correctional facilities. B. Administrative Interpretations Of Section 504 And Title II Of The ADA Confirm Their Application To State And Local Prisons. Congress expressly authorized the Department of Justice to issue regulations implementing both Section 504 and Title II of the ADA, and to provide technical assistance to entities covered by the ADA. 29 U.S.C. 794(a); 42 U.S.C. 12134(a), 12206. In view of Congress's delegation, the Department's regulations should be accorded "controlling weight unless [they are] 'arbitrary, capricious, or manifestly contrary to the statute.'" ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994), quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); see also Babbitt, 115 S. Ct. at 2418 (1995). The same is true of the preamble or commentary accompanying the regulations since both are part of the department's official interpretation of legislation. Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994); Stinson 01-07190 - 15 - v. United States, 508 U.S. 36, 45 (1993), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see also United States v. Larionoff, 431 U.S. 864, 872-873 (1977). The Department of Justice's Technical Assistance Manual is also entitled to deference. See Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 233 n.4 (S.D.N.Y. 1996), appeal pending, No. 96-7797 (2d Cir.); Fiedler v. American Multi- Cinema, Inc., 871 F. Supp. 35, 36-37 n.4 (D.D.C. 1994); Tugg v. Towey, 864 F. Supp. 1201, 1208 (S.D. Fla. 1994); Noland v. Wheatley, 835 F. Supp. 476, 483 (N.D. Ind. 1993); Petersen v. University of Wisconsin Bd. of Regents, 818 F. Supp. 1276, 1280 (W.D. Wis. 1993). As set forth in the regulations, and the other administrative materials cited below, the Department of Justice interprets both Section 504 and Title II of the ADA to apply to correctional facilities. The regulations promulgated by the Department of Justice to enforce Section 504 define the kinds of programs and benefits that should be afforded to individuals with disabilities on a nondiscriminatory basis. These definitions encompass prison administration. The regulations define "program" to mean "the operations of the agency or organizational unit of government receiving or substantially benefiting from the Federal assistance awarded, e.g., a police department or department of corrections." 28 C.F.R. 42.540(h) (1996) (emphasis added). The term "[b]enefit" includes "provision of services, financial aid or disposition (i.e., treatment, handling, decision, sentencing, 01-07191 - 16 - confinement, or other prescription of conduct)." 28 C.F.R. 42.540(j) (emphasis added). The appendix to the regulations, attached to the Final Rule (45 Fed. Reg. 37620, 37630 (1980)), makes clear that services and programs provided by detention and correctional agencies and facilities are covered by Section 504. This coverage is broad, and includes "jails, prisons, reformatories and training schools, work camps, reception and diagnostic centers, pre-release and work release facilities, and community-based facilities." Ibid. The appendix states that those facilities designated for use by persons with disabilities are "required to make structural modifications to accommodate detainees or prisoners in wheelchairs." Ibid. Department of Justice regulations applicable to federally conducted programs also make it clear that institutions administered by the Federal Bureau of Prisons are subject to Section 504. See 28 C.F.R. 39.170(d)(1)(ii) (Section 504 complaint procedure for inmates of federal penal institutions); id. at 28 C.F.R. Pt. 39, Editorial Note, at 675 (Section 504 regulations requiring nondiscrimination in programs or activities of the Department of Justice apply to the Federal Bureau of Prisons); id. at 676 (federally conducted program is "anything a Federal agency does"). The regulations promulgated under Title II of the ADA afford similar protections to persons with disabilities who are incarcerated in prisons, or otherwise institutionalized by the state or its instrumentalities, regardless of the public institution's receipt of federal financial assistance. The 01-07192 - 17 - regulations state that the statute's coverage extends to "all services, programs, and activities provided or made available by public entities." 28 C.F.R. 35.102(a). This broad language is intended to "appl[y] to anything a public entity does." 28 C.F.R. Pt. 35, App. A, Subpart A at 456. As part of its regulatory obligations under Title II, the Department of Justice is designated as the agency responsible for coordinating the compliance activities of public entities that administer "[a]ll programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions[.]" 28 C.F.R. 35.190(b)(6). The Preamble to the Department's ADA regulations also makes express reference to the statute's application to prisons, stating that an entity is required to provide "assistance in toileting, eating, or dressing to individuals with disabilities * * * where the individual is an inmate of a custodial or correctional institution." 28 C.F.R. Pt. 35, App. A at 468. The Department of Justice Title II Technical Assistance Manual specifically lists "jails and prisons" as types of facilities that, if constructed or altered after the effective date of the ADA (January 26, 1992), must be designed and constructed so that they are readily accessible to and usable by individuals with disabilities. Title II Technical Assistance Manual at II-6.0000, II-6.3300(6). The design standards applicable to facilities covered by Section 504 and Title II also 01-07193 - 18 - include specific provisions relating to correctional facilities. The Department of Justice Section 504 regulations adopt the Uniform Federal Accessibility Standards (UFAS), which apply to federal agencies and entities receiving federal financial assistance. 28 C.F.R. 42.522(b). UFAS lists "jails, prisons, reformatories" and "[o]ther detention or correctional facilities" as institutions to which the accessibility standards apply. 41 C.F.R. Subpart 101-19.6, App. A at 149. Under Title II, covered entities building new or altering existing facilities may follow either UFAS or the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG). 28 C.F.R. 35.151(c); see 28 C.F.R. Pt. 36, App. A. Amendments to the ADAAG, adopted as an Interim Final Rule, effective December 20, 1994, by the Architectural & Transportation Barriers Compliance Board, include specific accessibility guidelines for "detention and correctional facilities." 59 Fed. Reg. 31676, 31770-31772 (1994). The Department of Justice has proposed adoption of the interim final rule. Id. at 31808.5/ The specific provisions in the Justice Department's Section 504 and Title II regulations listing correctional facilities or departments as covered entities, as well as the more detailed discussions of prisons in the interpretive analyses and accessibility guidelines under both statutes, confirm that the _____________________ 5/ The ADAAG is not effective until adopted by the Department of Justice. See 42 U.S.C. 12134(c), 12204(a). 01-07194 - 19 - Rehabilitation Act and the ADA apply to state or locally-operated correctional facilities. Torcasio failed to consider most of these provisions. The Torcasio court concluded that a single Section 504 regulation cited by the plaintiff in that case failed clearly to establish the statute's applicability to prisons because it merely repeated the broad language of the statute, and did not expressly mention prisons. 57 F.3d at 1350-1351, citing 28 C.F.R. 42.502. But the court failed to take account of other provisions of both the Section 504 and the Title II regulations set forth above that do expressly apply the statutes to correctional facilities and/or functions. Torcasio did acknowledge that the ADA Accessibility Guidelines expressly apply to prisons, but concluded that, because they did not become effective until after the plaintiff in Torcasio had been paroled, they did not "show that the applicability of the ADA to state prisons was clearly established at the time [the plaintiff] was in prison in Virginia." 57 F.3d at 1351. The court also noted that the ADAAG had not yet been finally adopted by the Department of Justice. Significantly, however, the court acknowledged that the ADAAG "may provide some evidence that it is now established that the ADA applies to state prisons[.]" Ibid. 01-07195 - 20 - CONCLUSION This Court should hold that Section 504 of the Rehabilitation Act and Title II of the ADA apply to state and locally-operated prisons. Respectfully submitted, (Signature) Linda F. Thome ___________________________ DEVAL L. PATRICK Assistant Attorney General DAVID K. FLYNN LINDA F. THOME Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4706 01-07196 ADDENDUM 01-07197 INDEX Armstrong v. Wilson, No. C 94-2307 CW, 1996 WL 580847 (N.D. Cal., Sept. 20, 1996), appeal pending on other grounds, No. 96-16870 (9th Cir.), Section 1292(b) appeal on coverage issue dismissed, No. 96-80358 . . . . . . . . . . . . . 1 Niece v. Fitzner, Civ. A. No. 94-CV-70718-DT, 1996 WL 588217 (E.D. Mich., Oct. 10, 1996) . . . . . . 12 01-07198 --- F. Supp. ---- (Cite as: 1996 WL 580847 (N.D.Cal.)) John ARMSTRONG, et al., Plaintiffs, v. Pete WILSON, et al., Defendants. No. C 94-2307 CW. United States District Court, N.D. California. Sept. 20, 1996. Donald Specter, San Quentin George D. Prince, CA State Atty General, San Francisco. Michael W. Bien Rosen Bien & Asaro, San Francisco. Warren E. George McCutchen Doyle Brown & Enersen, San Francisco. WILKEN *1 Plaintiffs, a certified class consisting of all present and future California state prison inmates and parolees with mobility [FN1], sight, hearing, learning or kidney disabilities, have moved for injunctive relief under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C.  12131--34, and Section 504 of the Rehabilitation Act of 1973 ("the Rehabilitation Act" or "Section 504"), 29 U.S.C.  794. Defendants, various California state officials being sued in their official capacities, have moved for summary judgment pursuant to the Stipulation and Order for Procedures to Determine Liability and Remedy entered on July 9, 1996 (the "Stipulation"). The United States Department of Justice ("DOJ") has submitted an amicus brief in support of Plaintiffs' opposition. The matter was heard on July 19, 1996. Having considered all of the papers filed by the parties and oral argument on the motion, the Court denies the motion. FACTS Defendants move to strike Plaintiffs' separate statement of undisputed facts. The Court grants the motion on the grounds that the parties have stipulated that this summary judgment motion is to be decided solely on the facts included in the parties' joint Statement of Stipulated Facts. The following is a brief summary of the facts as provided in the Statement of Stipulated Facts. The California Department of Corrections ("CDC") operates over 31 prisons housing in excess of 130,000 inmates. Some of these facilities receive federal financial assistance. The CDC has conducted surveys to identify certain inmates with disabilities. These surveys have found that: (1) 345 inmates use wheelchairs due to permanent disabilities; (2) 650 inmates have permanent lower extremity impairments which may require the use of an assistive device such as a walker, cane or prosthesis; (3) 141 inmates are deaf or have hearing impairments such that, even with a hearing aid, they are not able to hear effectively or to hear emergency warnings; (4) 219 inmates are blind or have vision that cannot be corrected to 20/100 with corrective lenses. HIV-positive inmates are placed in various units in facilities throughout the system. Inmates with mental health problems are clustered and frequently separated from other inmate populations. The CDC initiated a self-evaluation in 1995 pursuant to the requirements of the ADA, but has not completed it. In April, 1995, the CDC established and implemented a new administrative grievance procedure which inmates and parolees with disabilities may use to submit grievances or requests for accommodations on matters related to their disabilities. There remain significant problems in implementing this procedure. The CDC's written policies and procedures for emergencies do not specifically address the evacuation of prisoners with disabilities. Some CDC facilities do not have visual alarms or strobe lights to warn prisoners with hearing impairments of emergencies. When emergency situations arise in prison areas other than living units, some inmates with disabilities may not be aware of, or be able to respond to, emergency warnings of impending danger. Copr. West 1996 No claim to orig. U.S. govt. works 1 01-07199 --- F.Supp. ---- Page 2 (Cite as: 1996 WL 580847, *2 (N.D.Cal.)) *2 Most inmates who participate in educational classes, vocational training, or have work assignments, including those with disabilities, earn 1/2 time sentence credits to reduce their time in custody. Health care providers classify inmates as "totally medically disabled," "medically unassigned," or "light restricted duty." A "totally medically disabled" classification allows the inmate to earn 1/2 time sentence credits without being required to participate in a program, while a "medically unassigned" classification allows the inmate to earn 1/3 time sentence credits. A "light restricted duty" classification allows the inmate to participate in programs in accordance with a specified restriction due to a physical or mental condition. Some inmates with severe disabilities have been inappropriately classified as medically unassigned rather than totally medically disabled and only earn 1/3 instead of 1/2 time credits against their sentences. Inmates designated as "light restricted duty" may be assigned to jobs that are inappropriate for their limitations. The range of vocational programs available to inmates with disabilities is more limited than that available to other inmates. LEGAL STANDARD Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir.1987). For the purposes of this motion, the parties have stipulated that there are no material facts in dispute. The Court, therefore, must decide whether the moving party is entitled to summary judgment as a matter of law. DISCUSSION Defendants argue that the protections of the ADA and the Rehabilitation Act do not extend to inmates or parolees of state correctional facilities and that Defendants are immune from liability under the Eleventh Amendment of the United States Constitution. While the Ninth Circuit has held that the Rehabilitation Act applies to state prisons, it has not yet considered whether the ADA is applicable to state correctional facilities. [FN2] Nor has the Ninth Circuit ruled on whether state prison officials have immunity under the Eleventh Amendment for violations of the ADA and the Rehabilitation Act. These, then, are issues of first impression in this Circuit. I. APPLICABILITY OF THE ADA AND THE REHABILITATION ACT TO STATE CORRECTIONAL FACILITIES The Court will not address Defendants' argument that prisoners and parolees are adequately protected under the First, Eighth, and Fourteenth Amendments of the United States Constitution and, therefore, the protections provided under the Rehabilitation Act and the ADA are unnecessary. One need only look to the undisputed stipulated facts of this case to find that this argument is erroneous. Furthermore, it is not the proper role of the judiciary to preempt Congress' decision that there is a need for such legislation. A. Ninth Circuit Case Law 1. Rehabilitation Act *3 Although the Ninth Circuit has held, in Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988), that the Rehabilitation Act applies to state prison facilities, Defendants argue that this Court should arrive at a different result. Defendants argue that, since Bonner was decided, the Supreme Court has clarified the proper analysis to be used by a district court to determine the applicability of federal statutes to state prisons. Defendants contend that utilization of this analysis will lead to the conclusion that neither the Rehabilitation Act nor the ADA are applicable to state prisons. The Court does not agree. Section 504 of the Rehabilitation Act of 1973 Copr. C West 1996 No claim to orig. U.S. govt. works 2 01-07200 --- F.Supp. ---- Page 3 (Cite as: 1996 WL 580847, *3 (N.D.Cal.)) states, in pertinent part: No otherwise qualified individual with a disability in the United States, ... shall, solely by reason of her or his disability, be excluded 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. S 794. In Bonner, the Ninth Circuit based its holding primarily on the plain language of the Act, which states that it "applies to 'any program or activity receiving Federal financial assistance'", and on the Justice Department's implementing regulations which require compliance by correctional facilities under 28 C.F.R.  42.503(f). Bonner, 857 F.2d at 562. The court noted that "[t]he Supreme Court has repeatedly emphasized that federal regulations are 'an important source of guidance on the meaning of S 504.'" Id. (citing School Board of Nassau County v. Arline, 480 U.S. 273 (1987) (parenthetical omitted) and Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 & nn. 14-16 (1984)). The Ninth Circuit rejected the defendants' argument that, because the purpose of the Rehabilitation Act is to foster vocational rehabilitation and independent living, it is not applicable to prison inmates who "are hardly in need of help to live independently within their prisons.", Id. Instead, the court viewed the goals of independent living and Vocational rehabilitation as mirroring the goals of prison officials who "attempt to rehabilitate prisoners and prepare them to lead productive lives once their sentences are complete." Id. In Gates v. Rowland, 39 F.3d 1439 (9th Cir.1994), the Ninth Circuit elaborated on its holding in Bonner. First, the court, citing Bonner, reaffirmed that "the Act is applicable to prisons receiving federal financial assistance.", Gates, 39 F.3d at 1446. The court noted, however, that the Rehabilitation Act was intended for use within the general population, and was not specifically tailored to deal with the prison environment. Id. The court reasoned that, "just as constitutional rights of prisoners must be considered in light of the reasonable requirements of effective prison administration, so must statutory rights applicable to the nation's general population be considered in the light of effective prison administration.", Id. The court held that the standard explicated by the Supreme Court in Turner v. Safley, 482 U.S. 78(1987) for reviewing constitutional rights in a prison setting should also be used when reviewing the rights provided by the Rehabilitation Act in a prison setting. Id. at 1447. In Turner, the Supreme Court articulated the rule that, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests" '. Id. (quoting Turner, 482 U.S. at 89). *4 Other courts, and Defendants, have interpreted Gates to mean that the Ninth Circuit is retreating from its holding in Bonner. See e.g. Torcasio v. Murray, 57 F.3d 1340, 1349 n. 7 (4th Cir.1995), cert. denied by Torcasio V. Angelone, 116 S.Ct. 772 (1996) and Little v. Lycoming County, 912 F.Supp. 809, 819 (M.D.Pa.1996). The Court disagrees. Gates is a reaffirmation and clarification of Bonner, not a retreat from it. Defendants argue that subsequent to Bonner, the Supreme Court, in Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991), clarified the proper analysis for determining whether a federal enactment is applicable to state prisons. They contend that, in Gregory, the Court stated a new rule that requires that Congress make its intention unmistakably clear in the language of the statute if it intends to alter the usual constitutional balance between the States and the federal government in traditionally sensitive areas. Defendants conclude that, had the Ninth Circuit applied this "new" plain statement rule in Bonner, it would have held differently. The Court disagrees. The plain statement rule was not originally articulated in Gregory. Although Gregory recites this rule, it cites prior cases as authority. One of the cases cited Copr. C West 1996 No claim to orig. U.S. govt. works 3 01-07201 --- F.Supp. ---- Page 4 (Cite as: 1996 WL 580847, *4 (N.D.Cal.)) in Gregory is United States v. Bass, 404 U.S. 336, 349 (1971) in which the Court stated that, "[i]n traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue the critical matters involved in the judicial decision." Gregory, 501 U.S. at 461(citing Bass, 404 U.S. at 349). Gregory also cites Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) for the proposition that, "Congress should make its intention "clear and manifest' if it intends to pre-empt the historic powers of the States." Gregory, 501 U.S. at 461. Even Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1185 (1996), the case Defendants use to support their proposition that Gregory adopted a new rule, cites Bass as well as Gregory. It is clear that the "new" rule Defendants proffer has been part of our jurisprudence for many decades. It is patently unreasonable to assume that the Ninth Circuit did not take this rule into consideration in deciding Bonner. Although not explicitly stating that it was applying the plain statement rule, in Bonner the Ninth Circuit did look for Congressional intent to apply the Rehabilitation Act to state prisons and found such intent in the plain language of the statute and the DOJ's implementing regulations. Bonner, 857 F.2d at 562. Defendants point to two post-Gregory Ninth Circuit cases to illustrate that, had the Ninth Circuit used the plain statement rule in Bonner, it would not have held the Act applicable to state prisons. In Hale v. Arizona, 993 F.2d 1387, 1393, 1395 (9th Cir.1993)(en banc), cert. denied, 510 U.S. 946 (1993), the Ninth Circuit declined to extend the protections of the Federal Labor Standards Act to inmates required by state law to work at hard labor, but determined that the Act may be applicable to inmates in other employment situations. In Jeldness v. Pearce, 30 F.3d 1220 (9th Cir.1994), the Ninth Circuit held that Title IX, which prohibits discrimination on the basis of sex by any educational program receiving federal funding, applies to state prisons. Id. at 1225. In Hale and Jeldness the Ninth Circuit focused on a list of statutorily exempt programs which did not include prisons and determined that noninclusion in an exempt list creates a strong implication of inclusion. Hale, 993 F.2d at 1392; Jeldness, 30 F.3d at 1225. *5 Defendants contend that the analyses in Hale and Jeldness rejected the basis for the Ninth Circuit's conclusion in Bonner, because, in Banner, the court merely based its holding on the expansive language of the Rehabilitation Act. However, the Bonner court also based its holding upon the DOJ's implementing regulations that specifically bring state prisons within the ambit of the Act. Banner, 857 F.2d at 362. Congress delegated to the head of each agency the authority to promulgate regulations under the Rehabilitation Act. 29 U.S.C.  794(a). The DOJ regulations define the term "program" as including the "operations of a department of corrections," and the term "benefit" as including "sentencing, confinement, or other prescription of conduct." 28 C.F.R.  42.540(h) and (j). In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) the Court held that, where Congress has left a gap for the agency to fill, the agency's regulations "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." This Court can find nothing that is arbitrary or capricious in the DOJ's regulations. The broad language of the statute which indicates it reaches "any program or activity receiving Federal financial assistance" imparts to federal agencies, which includes the DOJ, the task of defining the term, "any program". The inclusion of state departments of corrections is a permissible construction of the term, "any program", and, under Chevron, this construction must be given deference. The Court also finds persuasive the Third Circuit's reasoning in Inmates of the Allegheny County Jail v. Wecht, 1996 WL 474106, *10 (3rd Cir.) regarding the applicability of the plain statement rule to Copr. C West 1996 No claim to orig. U.S. govt. works 4 01-07202 ---F.Supp.--- Page 5 (Cite as: 1996 WL 580847, *5 (N.D.Cal.)) decide whether the Rehabilitation Act and the ADA applies to correctional facilities. In Inmates, the Third Circuit found that the language of the Rehabilitation Act and of the ADA clearly indicates that they cover all aspects of state and local governance. Id. at *6 (citing, as to the Rehabilitation Act, 29 U.S.C. S 794(a) which states that the Act applies to "any program or activity receiving Federal financial assistance" and 29 U.S.C.  794(b)(1)(A) which defines "program or activity" to be "all of the operations of a department, agency, special purpose district, or other instrumentality of a State or local government" and as to the ADA, 42 U.S.C.  12132 which states that it applies to all public entities and 42 U.S.C.  12131(1) which defines a "public entity" as "any State or local government [and] any department, agency, special purpose district, or other instrumentality of a State or States or local government.") Based on the clear language of the statutes the court held that both the Rehabilitation Act and the ADA apply to state and local correctional facilities. Id. The court determined that the plain statement rule was inapplicable to its analysis since this rule was not "intended by the Supreme Court to provide a canon of statutory interpretation which can be of help in interpreting statutes whose over-all design indisputably contemplates both that the policies and practices of state as well as local governments are required to conform to norms established by Congress ..." Id. at *9. *6 The Court rejects Defendants' argument that Bonner may apply in Arizona, the state in which the case originated, but not in California. Defendants' rationale is that in Arizona the goal of incarceration is rehabilitation, while in California the goal of incarceration is punishment. Plaintiffs cite many statutes in the California Penal Code and Regulations that indicate that, while the goal of incarceration itself may be punishment, the goal of many prison programs and activities is rehabilitation and reintegration of convicted felons into society. The Court concludes that the Ninth Circuit's analysis in Bonner is as correct today as it was in 1988 when the Ninth Circuit reached its decision. The Court holds that the Rehabilitation Act applies to prisons. 2. The ADA In language almost identical to the Rehabilitation Act, the ADA provides, in relevant part: [N]o qualified individual 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 public entity. 42 U.S.C.  12132. Defendants contend that utilization of the plain statement rule will lead to the conclusion that the ADA does not apply to state prisons. The Court does not agree. The Ninth Circuit has indicated that the ADA is to be judicially interpreted in the same manner as the Rehabilitation Act. Collings v. Longview Fibre Co., 63 F.3d 828, 832 n.3 (9th Cir.1995), cert. denied, 116 S. Ct. 711 (1996). This determination is based on the substantially identical language in the two Acts and the legislative history of the ADA which indicates that Congress intended judicial interpretation of the Rehabilitation Act to be incorporated by reference into interpretation of the ADA. Id. Pursuant to Collings, the Court must apply the Ninth Circuit's reasoning in Bonner to decide whether the ADA applies to state correctional facilities and programs. As noted above, the broad language of the Rehabilitation Act is repeated in the ADA. The ADA expands the reach of the anti- discrimination provisions of the Rehabilitation Act from "any public facility that receives Federal funding" to "any public entity." As it did in the Rehabilitation Act, Congress has specifically delegated authority to the DOJ to promulgate regulations implementing the ADA. 42 U.S.C. S 12134(a). The DOJ's regulations provide that "all programs, services, and regulatory activities relating to law enforcement, public safety, and the Copr. West 1996 No claim to orig. U.S. govt. works 5 01-07203 ---F.Supp.--- Page 6 (Cite as: 1996 WL 580847, *6 (N.D.Cal.)) administration of justice, including courts and correctional institutions" are governed by the ADA. 28 C.F.R.  35.190(b)(6). The Court finds that the expansive language of the ADA, together with the DOJ's regulations which it promulgated pursuant to a specific Congressional delegation of authority, lead to the conclusion that the ADA is applicable to state correctional institutions. Following the Ninth Circuit's instruction in Gates, the Court also concludes that, like the Rehabilitation Act, the ADA must be applied in a prison environment with consideration of legitimate penological interests. See Gates, 39 F.3d at 1447. B. Case Law in Other Circuits *7 Defendants argue that this Court should be persuaded by cases in other circuits in which, Defendants contend, the courts have held the Rehabilitation Act or the ADA are inapplicable to prisons. Three circuits have directly addressed this issue. [FN3] As discussed above, the Third Circuit has held that the Rehabilitation Act and the ADA apply to state and local correctional institutions. The Tenth Circuit has held that the Rehabilitation Act and the ADA are inapplicable to state prison employment programs. In Williams v. Meese, 926 F.2d 994 (10th Cir.1991), the court held that the Rehabilitation Act is not applicable to federal prison employment and vocational programs because the "Federal Bureau of Prisons does not fit the definition of 'programs or activities' governed by [the Rehabilitation Act]." Williams, 926 F.2d at 997. Relying upon Williams, and without any further explanation, the Tenth Circuit held in White v. Colorado, 82 F.3d 364 (10th Cir.1996), that the ADA does not apply to state prison employment situations. White, 82 F.3d at 367. The Fourth Circuit, in Torcasio v. Murray, did not actually hold that the Rehabilitation Act and the ADA do not apply to state prisons, but strongly intimated that they do not. Torcasio, a qualified immunity case, held that it was not clearly established, at the time of the alleged discrimination, that either the Rehabilitation Act or the ADA applied to state prisons. Torcasio v. Murray, 57 F.3d 1340, 1352 (4th Cir.1995), cert. denied, 116 S.Ct. 771 (1996). The violations were alleged to have occurred in April, 1993 through the spring, 1994. The Torcasio court took the Ninth Circuit's 1988 Bonner decision into consideration in its discussion. In analyzing the DOJ regulations, however, the Torcasio court failed to locate the specific sections which provide that the Rehabilitation Act applies to correctional institutions. Id. at 1351. The court looked at 28 C.F.R.  42.503(f), the only section specifically cited in Bonner, and dismissed it as too general to establish that the DOJ intended the Rehabilitation Act to apply to prisons. The court did not mention the sections, in the definitional parts of the regulations, that indicate that the Rehabilitation Act applies to state prisons. See 28 C.F.R. 42.540(h) and (j). The court similarly did not mention 28 C.F.R.  35.190(b)(6), the regulation that specifies that the ADA applies to state prisons. The court intimated that, had the plaintiff been able to show that the regulations specifically applied to state prisons, it might have held differently. Id. As discussed above, Torcasio also erroneously concluded that in Gates the Ninth Circuit retreated from its holding in Bonner. Torcasio, 57 F.3d. at 1346, 1349 n. 7. Also, as noted by Plaintiffs, the questions raised in Torcasio as to whether prison programs qualify as "programs" under the Rehabilitation Act and the ADA, were answered in the affirmative by the Ninth Circuit in Bonner. Bonner, 857 F.2d at 562 ("the [Rehabilitation] Act's goals of independent living and vocational rehabilitation should in fact mirror the goals of prison officials as they attempt to rehabilitate prisoners and prepare them to lead productive lives....") II. IMMUNITY UNDER THE ELEVENTH AMENDMENT *8 Defendants argue that the Eleventh Copr. West 1996 No claim to orig. U.S. govt. works 6 01-07204 ---F.Supp.---- Page 7 (Cite as: 1996 WL 580847, *8 (N.D.Cal.)) Amendment provides them with immunity from liability under the Rehabilitation Act and the ADA. Defendants acknowledged, during oral argument, that their reasoning would lead to the conclusion that the Rehabilitation Act and the ADA are not applicable to any state agency. In Seminole Tribe v. Florida, 116 S.Ct. 1114, 1123 (1996), the Supreme Court reiterated the principle that, pursuant to the Eleventh Amendment, States may not be sued in federal court unless Congress, acting pursuant to a valid exercise of its power, unequivocally expresses its intent to abrogate the States' immunity. Id. (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). Defendants concede that Congress clearly expressed its intent in the Rehabilitation Act and the ADA to abrogate the States' immunity. The issue to be resolved is whether, in abrogating the States' immunity, Congress acted pursuant to a valid exercise of its power. In Seminole Tribe, the Court explained that Congressional authority to abrogate States' immunity had been previously found under two provisions of the Constitution. Id. at 1125. In Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56 (1976), the Court had held that S 5 of the Fourteenth Amendment allowed Congress to abrogate States' immunity from suit and, in Pennsylvania v. Union Gas Co., 491 U.S. 1, 19-20 (1989), the Court had held that the Interstate Commerce Clause granted Congress the power to abrogate immunity. Id. In Seminole Tribe the Court overruled Union Gas so that Congress now has authority to abrogate the States' immunity pursuant only to the Fourteenth Amendment. Id. at 1131. Defendants argue that Congress lacks authority to abrogate their immunity under the Rehabilitation Act or the ADA because neither was validly enacted pursuant to the Fourteenth Amendment. Plaintiffs disagree, and also argue that Defendants, because they are state officials, are not immune from suit for injunctive relief under the doctrine of Ex parte Young, 209 U.S. 123 (1908). A. The ADA Was Enacted Pursuant to the Fourteenth Amendment The ADA specifically states that its purpose is "to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day to day by people with disabilities. 42 U.S.C.  i2101(b)(4). In spite of this explicit statement by Congress, Defendants argue that simply because Congress has stated that the legislation was enacted pursuant to its Fourteenth Amendment authority does not make it so. The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." Section 5 of the Amendment states that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." As explained by the Supreme Court, "... S 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment." Katzenbach v. Morgan, 384 U.S. 641, 648 (1966). Section 5 is intended to provide to Congress the same broad powers expressed in the Necessary and Proper Clause, art. I, S 8, cl. 18. Id. at 650. The standard to be used in determining whether legislation is appropriate under the Necessary and Proper Clause was formulated in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819): *9 Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. Id. Using the McCulloch test, to determine if legislation enacted pursuant to the Fourteenth Amendment is appropriate, a court must determine whether the legislation: (1) is plainly adapted to the end of enforcing the Equal Protection Clause, and (2) is not prohibited by, but is consistent with the Copr. West 1996 No claim to orig. U.S. govt. works 7 01-07205 --- F. Supp. ---- Page 8 (Cite as: 1996 WL 580847, *9 (N.D.Cal.)) "letter and spirit of the constitution." Morgan, 384 U.S. at 651. Defendants cite Pierce v. King for the proposition that the ADA is not adapted to enforcing the Fourteenth Amendment. Pierce v. King, 918 F.Supp 932, 940 (E.D.N.C.1996). The argument in Pierce begins with the assumption that "[t]he Fourteenth Amendment has traditionally been understood as protecting individuals from state action that would infringe upon individual liberties." Id. The argument continues with the contention that the ADA is unlike traditional anti-discrimination laws because the ADA creates entitlements whereas the traditional laws seek to produce an environment in which individuals are treated in a neutral manner. Id. Defendants contend that mandates for prisons to conduct self-evaluations, complete transition plans, establish grievance procedures, and provide notice of the ADA to inmates are administrative burdens that are unconnected with the Fourteenth Amendment's prohibition against discrimination. They say that obligations to identify inmates with learning disabilities and to provide special programs for them distort notions of equal treatment. Similarly, they contend that the requirement of certain structural accessibility features goes far beyond anything that could be based on the Fourteenth Amendment. The Court disagrees with Defendants' theory. Some of the findings made by Congress in enacting the ADA are that: (1) discrimination against disabled individuals in the form of isolation and segregation is a serious and pervasive social problem; (2) disabled individuals are a discrete and insular minority who have been subjected to a history of unequal treatment and relegated to a position of political powerlessness based upon false stereotypical assumptions; and, (3) the Nation's goals are to assure equality, full participation, independent living and economic self-sufficiency to individuals with disabilities. 42 U.S.C.  12101(a). Congress indicated in the ADA that it intended to invoke its full authority under the Fourteenth Amendment to address nationwide discrimination against the disabled. 42 U.S.C.  12101(b)(4). Rectifying discrimination often has taken the form of the prohibition of action that is discriminatory. Perhaps, as Defendants argue, this is the traditional manner in which legislation under the Fourteenth Amendment has been framed. However, eliminating discrimination may require affirmative relief. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989)(O'Conner, J., concurring and dissenting) ("The power to 'enforce' [the Fourteenth Amendment] may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations.") *10 The goal of the ADA, to eliminate discrimination against an identifiable group of individuals, is a proper invocation of the Equal Protection Clause. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47 (1985)(holding that persons with disabilities are entitled to protection under the Fourteenth Amendment). The practical effect of the ADA will be to eliminate barriers against entry into physical structures, into ongoing programs and services, and into the mainstream of society itself for many individuals with disabilities. While this may require affirmative measures on the part of correctional institutions to insure inclusion of those who are now excluded from the mainstream of prison life, the requirement of such measures does not exceed the authority granted to Congress under S 5 of the Fourteenth Amendment. The ADA, therefore, meets the first prong of the McCulloch test. Defendants have not argued that the ADA is inconsistent with the letter and spirit of the constitution. The Court, therefore, finds that the ADA meets the second prong of the McCulloch test. That Congress has invoked the Commerce Clause as well as the Fourteenth Amendment as authority for the ADA does not alter the conclusion that, under the McCulloch standard, the ADA is legitimate legislation, pursuant to the Fourteenth Amendment, focused on deterring Copr. C West 1996 No claim to orig. U.S. govt. works 8 01-07206 --- F.Supp. --- Page 9 (Cite as: 1996 WL 580847, *10 (N.D.Cal.)) discrimination on the part of the states. See EEOC v. County of Columet, 686 F.2d 1249, 1253 (7th Cir.1982) (noting that Congress, in enacting modern civil rights legislation, reaches private discrimination indirectly through the Commerce Clause and reaches state discrimination directly through the Fourteenth Amendment). The Court holds that the ADA was legitimately enacted pursuant to Congress' authority under the Fourteenth Amendment. B. The Rehabilitation Act was Enacted Pursuant to the Spending Clause and the Fourteenth Amendment. Unlike the ADA, the Rehabilitation Act is silent as to the constitutional authority under which it was enacted. Defendants contend that a close reading of the statute, together with an analogy to similar statutes, leads to the conclusion that the Rehabilitation Act is authorized by Congress' spending power, and not by the Fourteenth Amendment. That the Rehabilitation Act applies only to those entities that receive federal funds is the primary basis for Defendants' contention. Defendants point to Title VI, 42 U.S.C.  2000d et seq., and Title IX, 20 U.S.C.  1681 et seq., of the Civil Rights Act of 1964 as support for their argument. Title VI prohibits discrimination on the basis of race, color, or national origin by any program or activity receiving federal financial assistance. 42 U.S.C.  2000d. Based upon the legislative history, the Supreme Court determined that Congress intended to enact Title VI pursuant to its spending power. Guardians Ass'n v. Civil Serv. Comm'n V. Comm'n of New York, 463 U.S. 582, 598-99 (1983). Title IX prohibits discrimination on the basis of sex by any educational program or activities receiving federal financial assistance. 20 U.S.C. S 1681(a). The Supreme Court has reserved the question of whether Title IX was enacted under the Spending Clause or under the Fourteenth Amendment. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75 n. 8 (1992). The Fifth Circuit, in Rowinsky v. Bryan Indep. Sch. Dist., for a variety of reasons, adopted the view that Title IX was enacted under the Spending Clause. Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012 n. 14 (5th Cir.1996), Petition for cert. filed, 65 U.S.L.W. 3033 (U.S.Jul.1, 1996)(No. 96-4). First, Title IX was modeled after Title VI and uses identical language.' That the Supreme Court in Guardians Ass'n held that Title VI was enacted pursuant to the Spending Clause strongly suggests that Title IX also was enacted under the Spending Clause. Id. Second, Title IX regulates purely private educational institutions. The receipt of federal funds does not transform a private school into a state actor for purposes of the Fourteenth Amendment. Id. Third, the funding incentives provided in Title IX indicate that Congress did not intend to impose absolute obligations on the States. Id. Defendants' argument that the Rehabilitation Act, like Titles VI and IX, is enacted under the Spending Clause because it, too, applies only to those entities that receive federal funding is well-taken. However, the contentions of Plaintiffs and amicus that the Rehabilitation Act was enacted under the Fourteenth Amendment are also persuasive. Furthermore, because the language and purpose of the Rehabilitation Act are virtually identical to that of the ADA, and because this Court has found that the ADA was validly enacted pursuant to the Fourteenth Amendment, it follows that the Rehabilitation Act, also, was enacted under the Fourteenth Amendment. *11 Plaintiffs point out that two Supreme Court cases indicate that the Rehabilitation Act was passed under the Fourteenth Amendment. In Atascadero State Hosp. v. Scanlon, the Supreme Court stated, "Petitioners conceded ... that the Rehabilitation Act was passed pursuant to  5 of the Fourteenth Amendment. Thus, we first analyze  504 in light of Congress' power under the Fourteenth Amendment to subject unconsenting States to federal court jurisdiction." Scanlon, 473 U.S. 234, 244 n. 4 (1985). Because the issue of Congressional authority was not in dispute in Scanlon, that case is not determinative of the issue. The Supreme Court noted in Welch v. Texas Dept. of Highways and Pub. Transp. that "[t]he Copr. West 1996 No claim to orig. U.S. govt. works 9 01-07207 --- F.Supp. --- Page 10 (Cite as: 1996 WL 580847, *11 (N.D.Cal.)) question in Scanlon was whether  504 of the Rehabilitation Act of 1973, 29 U.S.C.  794, makes state agencies subject to suits for retroactive monetary relief in federal court. The Rehabilitation Act was passed pursuant to  5 of the Fourteenth Amendment. Congress therefore had the power to subject unconsenting States to suit in federal court." Welch, 483 U.S. 468, 472 n. 2 (1987)(citing Scanlon). Welch provides further evidence that the Supreme Court considers that Congress enacted the Rehabilitation Act pursuant to the Fourteenth Amendment. But, this statement is dicta. In Dep't of Educ., State of Haw. v. Katherine D., the district court held that the Rehabilitation Act was enacted pursuant to Congress' power under the Fourteenth Amendment. Katherine D., 531 F.Supp. 517, 530 (D.C.Haw.1982), aff'd in Part, rev'd in part on other grounds, 727 F.2d 809 (9th Cir.1983), cert. denied, 471 U.S. 1117 (1985). The court based its holding on its analysis of legislative history and Congress' intent, as specifically explicated in the Act, to effectuate equal opportunity for disabled citizens. Id. The court concluded that this legislative goal is "precisely the specific legislative intent to effectuate the equal protection rights guaranteed by the Fourteenth Amendment which [the Supreme Court] recognized." Id., (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) and Hutto v. Finney, 437 U.S. 678 (1978)). Congress may enact legislation pursuant to more than one of its constitutional powers. See EEOC v. County of Columet, 686 F.2d at 1253. The Court finds that Congress utilized its authority under the Spending Clause and under  5 of the Fourteenth Amendment of the Constitution in enacting the Rehabilitation Act. Because the Court finds that Congressional authority for the ADA and the Rehabilitation Act arises in the Fourteenth Amendment, the Eleventh Amendment does not immunize Defendants from suit. C. Doctrine of Ex parte Young Even if Defendants were immune under the Eleventh Amendment, their immunity would be subject to the exception of Ex parte Young, 209 U.S. 123, 155-56 (1908). Ex parte Young created an exception to the principle that States may not be sued in federal court unless they consent, or unless Congress, pursuant to a valid exercise of power, unambiguously expresses its intent to abrogate the States' immunity. Green v. Mansour, 474 U.S. 64, 68 (1985). Ex parte Young held that the Eleventh Amendment does not preclude federal courts from granting prospective injunctive relief to prevent individual state officials from violating federal law. Young, 209 U.S. at 155-56; Green, 474 U.S. at 68. *12 Citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687 (1949) superseded in part by 5 U.S.C. S 702, Defendants argue that Young is inapplicable because Plaintiffs' claims are essentially directed against the State, not against the individuals named in the suit. In Larson, the Court explained that a suit nominally addressed to a government employee, but which actually requires relief against the government, is barred because the court, in the absence of consent, has no jurisdiction over a suit against the government. Larson, 337 U.S. at 688. However, there are exceptions to this rule. Id. at 689. One exception is a case in which the statute conferring power on the government employee is unconstitutional, because the conduct against which relief is sought is beyond the employee's powers and is, therefore, not the conduct of the government. Id. at 690. This exception is based on the same reasoning as that relied upon in Young. "The theory of Young was that an unconstitutional statute is void, and therefore does not 'impart to [the official] any immunity from responsibility to the supreme authority of the United States"'. Green, 474 U.S. at 68 (citing Young, 209 U.S. at 159-60). By the same token, Young also held that officials do not have immunity for a continuing violation of federal law. Id. That courts have applied the Young doctrine in cases in which inmates sue state prison officials for violations of federal law is further Copr. West 1996 No claim to orig. U.S. govt. works 10 WESTLAW 01-07208 ---F.Supp.---- Page 11 (Cite as: 1996 WL 580847, *12 (N.D.Cal.)) evidence that Larson does not apply to the case at bar. See e.g. Thompson v. Enomoto, 915 F.2d 1383, 1390 (9th Cir.1990), cert. denied by Rowland v. Thompson, 502 U.S. 1071 (1992) (holding that state officials not immune, under Young, from suits alleging constitutional violations); Duran v. Carruthers, 885 F.2d 1485, 1489 (10th Cir.1989), cert. denied, 493 U.S. 1056 (1990)(under Young, prison officials not immune from suit alleging violations of federal constitution and federal statutes). Here, Plaintiffs seek prospective injunctive relief only against state officials acting in their official capacity. Under these circumstances, Larson does not apply. Defendants also argue that, because the ADA and the Rehabilitation Act have detailed enforcement schemes limiting remedies against the State, they come under the exception to Ex parte Young applied by the Supreme Court in Seminole Tribe. In Seminole Tribe, the Court stated that "... where Congress has prescribed a detailed scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young." Seminole Tribe, 116 S.Ct. at 1132. The Indian Gaming Regulatory Act (the "IGRA") was the subject of the Court's inquiry in Seminole Tribe. Id. at 1119. The Court found that the IGRA provides for specific limited remedies against the State. Id. The Court reasoned that the limited statutory remedies would be superfluous if a state official could be exposed to the full remedial powers of a federal court in an action brought under Ex parte Young. Id. at 1133. The Court also reasoned that Congress' creation of the limited remedial scheme is a strong indication that it had no wish to expose States to liability under Ex parte Young. Id. *13 Defendants argue that, like the IGRA, the Rehabilitation Act and the ADA have limited remedial schemes, but Defendants do not specify what they are. To the contrary, the Ninth Circuit has held that "the full panoply of remedies, including equitable relief and monetary damages" are available undee the--Rehabilitation Act. Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990), cert. denied, 501 U.S. 1217 (1991); see also Franklin v. Gwinnett County Pub. Schs., 503 U.S. at 72- 73(stating that the Rehabilitation Act provides a private litigant the full panoply of remedies). The ADA specifically incorporates the "remedies, procedures, and rights" of the Rehabilitation Act. 42 U.S.C.  12133. Under Ex parte Young, Defendants are not immune from this lawsuit. CONCLUSION For the foregoing reasons, Defendants' motion for summary judgment is DENIED. IT IS SO ORDERED. FN1. Prisoners with mobility impairments who are housed at the Correctional Medical Facility at Vacaville are excluded from the class. FN2. Only one district court in the Ninth Circuit has squarely addressed the issue of whether the ADA applies to prisons. Bullock v. Gomez, 929 F.Supp. 1299 (C.D.Cal.1996) held that the ADA does apply to prisons. In Fowler v. Gomez, 1995 WL 779128, *2 (N.D.Cal.1995), a qualified immunity case, a judge of this Court found that there was no authority to "clearly establish" that the ADA applied to state prisons at the time of the alleged incident in question. FN3. As noted by Defendants, the Seventh Circuit, in a recent opinion by Judge Posner, stated that, "It is very far from clear that prisoners should be considered 'qualified individuals' within the meaning of the [ADA]. Could Congress really have intended disabled prisoners to be mainstreamed into an already highly restricted prison society? ... [T]here are formidable practical objections to burdening prisons with having to comply with the onerous requirements of the [ADA], ..." Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir.1996). This statement was dicta, however. The court proceeded to analyze the plaintiff's claim under the ADA. Id. at 249. END OF DOCUMENT Copr. West 1996 No claim to orig. U.S. govt. works 11 01-07209 ---F.Supp.---- Page 1 (Cite as: 1996 WL 588217 (E.D.Mich.)) Linda Gail NIECE and Grant H. Hendrick, on behalf of all other similarly situated people with disabilities, Plaintiff(s), v. Deputy Warden Pat FITZNER; Director Kenneth McGinnis; Warden Richard Johnson; Assistant Resident Unit Manager Tabor; Inspector Lockwood; Assistant Deputy Warden Roberts; Captain Hancock; Special Assistant Brown; Michigan Department of Corrections, the individuals are being sued in their individual and official capacities, Defendant(s). Civ. A. No. 94-CV-70718-DT. United States District Court, E.D. Michigan. Oct. 10, 1996. ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION BORMAN, District Judge. *1 The Court has reviewed the Magistrate Judge's Report and Recommendation submitted herein, and any all timely objections filed thereto. The Report and Recommendation is hereby accepted. Accordingly, IT IS ORDERED that Defendant's Motion to Dismiss Plaintiffs' claims under the Americans with Disabilities Act and the Rehabilitation Act is DENIED. Extensive research has provided ample authority to support the Magistrate Judge's Report and Recommendation concluding that Plaintiffs are not barred from bringing suit against Defendants under either Act. REPORT AND RECOMMENDATION RECOMMENDATION The Court should deny defendants' motion to dismiss plaintiffs' claims under the Americans with Disabilities Act and the Rehabilitation Act of 1973. REPORT I. Procedural Background Plaintiffs Linda Gail Niece (Niece) and Grant H. Hendrick (Hendrick) bring this claim against defendants Michigan Department of Corrections and certain MDOC employees assigned to the Carson City Temporary Facility (OTF) in Carson City, Michigan. Hendrick is a low-security inmate at OTF, and is engaged to Niece. Niece is deaf, and is also confined to a wheelchair due to a neurological disorder called ataxia. Plaintiffs filed their complaint in 1994 pursuant to Titles II and IV of the Americans with Disabilities Act (ADA), 42 U.S.C.  12131-12134, 12203; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.  794; 42 U.S.C.  1983 and the First Amendment to the United States Constitution; and the. Michigan Handicappers Civil Rights Act, MICH. COMP. LAWS  37.1101 et seq. The complaint relates to certain alleged actions taken by the prison officials in regard to telephone communication between Hendrick and Niece, and in regard to visitations at the prison by Niece. [FN1] On May 18, 1995, defendants filed a motion to dismiss plaintiffs' ADA claims against them. They argued that Hendrick lacks standing to pursue a claim under the ADA because he is not disabled, and that Niece cannot establish that she was discriminated against. On August 25, 1995, I issued a Report recommending that defendants' motion be denied, except as to defendants Lockwood and Roberts, whose actions occurred prior to the adoption of the ADA. On March 29, 1996, Judge Borman accepted this Report & Recommendation and entered an Order denying defendants' motion to dismiss except as to defendants Lockwood and Roberts. On May 13, 1996, defendants filed a second motion to dismiss plaintiff's claims under the ADA and section 504 of the Rehabilitation Act (section 504). Defendants argue that the Copr. West 1996 No claim to orig. U.S. govt. works 12 01-07210 ---F.Supp.---- Page 2 (Cite as: 1996 WL 588217, *1 (E.D.Mich.)) claims against them under the ADA and section 504 are barred by the Eleventh Amendment to the United States Constitution, and that plaintiffs have failed to state a claim upon which relief can be granted because the ADA and section 504 do not apply to state prisons. On June 11, 1996, plaintiffs filed their brief in opposition to defendants' motion, arguing that Congress has abrogated the state's Eleventh Amendment immunity and that the ADA and section 504 do apply to state prisons. II. Eleventh Amendment Immunity A. Eleventh Amendment Immunity Generally *2 The Eleventh Amendment 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. U.S. CONST. amend. XI. Although the amendment expressly prohibits only suits against states by citizens of other states, the Supreme Court has long held that the Eleventh Amendment also bars suits by citizens of the state being sued. See, Hans v. Louisiana, 134 U.S. 1 (1890); Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 472-73 (1987) (plurality opinion). This immunity is based on a two part presupposition: (i) each state is a sovereign entity; and (2) "it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." THE FEDERALIST No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed.1961); see Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Hans, 134 U.S. at 13. Thus, "in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also, Papasan v. Allain, 478 U.S. 265, 276 (1986). Further, as the Supreme Court made clear in Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), the Eleventh Amendment bars suits against state officials sued in their official capacity. See also, U.S. CONST. amend. XI. B. Abrogation of Eleventh Amendment Immunity Despite this bar from suit, in certain limited instances Congress may abrogate the Eleventh Amendment immunity of the states by allowing suits through federal statutes. In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: First, whether Congress has "unequivocally expresse[d] its intent to abrogate the immunity"; and second, whether Congress has acted "pursuant to a valid exercise of power." Seminole Tribe, 116 S.Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985) (citations omitted). Thus, the Court must consider each of these questions in turn. 1. Unequivocal Expression of Intent to Abrogate Immunity "Congress' intent to abrogate the States' immunity from suit must be obvious from 'a clear legislative statement.'" Seminole Tribe, 116 S.Ct. at 1123 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 (1991)). "A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985); accord Blatchford, 501 U.S. at 786 n. 4 ("The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim."). Thus, "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989); see also, Welch, 483 U.S. at 474. a. Abrogation of Immunity Under the ADA Copr. West 1996 No claim to orig. U.S. govt. works 13 01-07211 ---F.Supp.---- Page 3 (Cite as: 1996 WL 588217, *3 (E.D.Mich.)) *3 The ADA contains a clear expression of Congress' intent to abrogate the states' Eleventh Amendment immunity. Under the ADA: A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirement of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State. 42 U.S.C.  12202. "Section 12202 of the ADA is an unequivocal expression of Congress' intent to abrogate the States' Eleventh Amendment immunity." Martin v. Voinovich, 840 F.Supp. 1175, 1187 (S.D.Ohio 1993); accord Eisfelder v. Michigan Dep't of Natural Resources, 847 F.Supp. 78, 82-83 (W.D.Mich.1993). b. Abrogation of Immunity Under the Rehabilitation Act Likewise, Congress as unequivocally expressed its intention to abrogate the Eleventh Amendment of the states under the Rehabilitation Act of 1973. In Atascardero State Hospital, supra, the Supreme Court held that the Rehabilitation Act, as then enacted, did not properly abrogate the states' Eleventh Amendment immunity. Thus, to correct this oversight, Congress amended the Act in 1986 to include a provision abrogating Eleventh Amendment immunity: A State shall not be immune under the Eleventh Amendment of the Constitution of the United States for a violation of section 794 of Title 29 (section 5 of the Rehabilitation Act) ... or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance. 42 U.S.C.  2000d-7(A); see S. REP. No. 388, 99th Cong., 2d Sess., at 27-28 (indicating that the abrogation of immunity provision was in direct response to the Court's decision in Atascardero State Hospital). "Accordingly, the Eleventh Amendment does not prevent plaintiffs from making claims against defendants under  504 of the Rehabilitation Act." Martin, 840 F.Supp. at 1187; accord Eisfelder, 847 F.Supp. at 82-83. 2. Abrogation Made Under a Proper Exercise of Authority Because Congress clearly and unequivocally expressed its intention to abrogate Eleventh Amendment immunity both under the ADA and under section 504, the Court must next consider whether this abrogation was done under a proper exercise of Congress' authority. a. Seminole Tribe and Abrogation Under the Commerce Clause The Supreme Court recently addressed this matter in Seminole Tribe, supra. In Seminole Tribe, the Court, in a 5-4 decision, held that the Commerce Clause, U.S. CONST. art. I,  8, cl. 3, does not confer upon Congress the authority to abrogate a state's Eleventh Amendment immunity from suit in federal courts. The Court held: Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. *4 Seminole Tribe, 116 S.Ct. at 1131-32. Based on this holding, defendants argue that Congress could not have abrogated Eleventh Amendment immunity under the ADA and the Rehabilitation Act because these were both enacted under the Congress' Commerce Clause power. b. Abrogation under the Fourteenth Amendment To the extent that the ADA and the Rehabilitation Act were enacted solely under the commerce power, defendants' argument Copr. West 1996 No claim to orig. U.S. govt. works 14 01-07212 ---F.Supp.---- Page 4 (Cite as: 1996 WL 588217, *4 (E.D.Mich.)) would, of course, prevail. However, both the ADA and the Rehabilitation Act were also enacted under Congress' explicit power to enforce the 14th Amendment "by appropriate legislation." U.S. CONST. amend XIV, S 5; accord 42 U.S.C.  12101(b)(4) ("It is the purpose of [the ADA] ... to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.") (emphasis added); S. REP. No. 388, 99th Cong., 2d Sess., at 27 (stating that the abrogation of Eleventh Amendment immunity in 42 U.S.C.  2000d-7 was in response to the Atascadero Court's indication that such an abrogation would be permissible under section 5 of the Fourteenth Amendment). [FN2] In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976),the Court held: [W]e think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of  5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to  5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Id. at 456 (citation omitted) (footnote omitted) (emphasis added) Although holding that the Commerce Clause does not provide proper authority for Congress to abrogate the states' Eleventh Amendment immunity, the Court's decision in Seminole Tribe left untouched the Fitzpatrick holding that section 5 of the Fourteenth Amendment does provide such authority. In distinguishing Fitzpatrick, the Court reasoned: Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption ofthe Eleventh Amendment and the ratification of the Constitution, operated to alter the preexisting balance between state and federal power achieved by Article III and the Eleventh Amendment. *5 Seminole Tribe, 116 S.Ct. at 1128. Further, the majority's opinion characterized the cases cited in Justice Stevens' dissent as being inapplicable in the Commerce Clause setting because "those cases arose in the context of a statute passed under the Fourteenth Amendment, where Congress' authority to abrogate is undisputed." Id. at 1131 n. 15 (emphasis added). Finally, in his dissent, Justice Stevens also construes the Court's opinion as preserving Congress' power to abrogate the states' Eleventh Amendment immunity under section 5 of the Fourteenth Amendment. See id. at 1134 (Stevens, J., dissenting). Accordingly, so long as the ADA and the Rehabilitation Act were properly enacted under section 5 of the Fourteenth Amendment, Congress' abrogation of Eleventh Amendment immunity was proper. c. Congressional Authority to Enact the ADA and the Rehabilitation Act under the Fourteenth Amendment As noted above, section 5 of the Fourteenth Amendment states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. CONST. amend. XIV, S 5. Among the provisions of the Fourteenth Amendment which Congress may so enforce is the right of citizens to enjoy "the equal protection of the laws." U.S. CONST. amend. XIV, S 1. Although the primary purpose behind the Fourteenth Amendment when originally enacted was to protect the rights of African-Americans, Congress has broad power under the amendment to enact legislation against an array of various types of Copr. West 1996 No claim to orig. U.S. govt. works 15 01-07213 ---F.Supp.---- Page 5 (Cite as: 1996 WL 588217, *5 (E.D.Mich.)) discrimination. In Katzenbach v. Morgan, the Court recognized Congress' broad powers under section 5 of the Fourteenth Amendment: Thus the McCulloch v. Maryland standard is the measure of what constitutes "appropriate legislation" under  5 of the Fourteenth Amendment. Correctly viewed, 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment. Katzenbach, 384 U.S. at 651; [FN3] see also, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (O'Connor, J.) ("The power to 'enforce' [the provisions of the Fourteenth Amendment] may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations."); Archibald Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 107 (1966). Based on this language, lower courts have noted: In exercising these enforcement powers under  5, Congress is not limited to remedying inequalities which the courts would determine to be violative of the Constitution. It may prohibit conduct which would not otherwise by unlawful, in order to secure the guarantees of the Fourteenth Amendment[, and] ... great deference is to be accorded to Congress' determination of what measures are appropriate to that end. *6 Bond v. Stanton, 555 F.2d 172, 174-75 (7th Cir.1977), cert. denied, 438 U.S. 916 (1978); see also, Flores v. City of Boerne, Tex., 73 F.3d 1352, 1357 (5th Cir.1996); Corpus v. Estelle, 605 F.2d 175, 179-80 (5th Cir.1979), cert. denied, 445 U.S. 919 (1980). Further, "Congress's [sic] power under section 5 of the fourteenth amendment clearly extends to protection of any group of persons invidiously discriminated against by state law." United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 553 (5th Cir.1980). Thus, courts have upheld legislation against a number of forms of discrimination under section 5 of the Fourteenth Amendment. E.g., Flores v. City of Boerne, Tex., 73 F.3d 1352 (5th Cir.1996) (Religious Freedom Restoration Act); Fontenot v. Louisiana Bd. of Elementary & Secondary Educ., 835 F.2d 117 (5th Cir.1988) (attorney fees under the Education of the Handicapped Act); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694 (1st Cir.1983) (Age Discrimination in Employment Act); American Fed. of State, County & Mun. Employees v. Washington, 578 F.Supp. 846 (W.D.Wash.1983) (gender discrimination in employment), rev'd on other grounds, 770 F.2d 1401 (9th Cir.1985). The Rehabilitation Act of 1973 was enacted to, among other things, "empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society, through ... the guaranty of equal opportunity." 29 U.S.C.  701(b)(1)(F). The act was enacted based in part on Congress' finding that individuals with disabilities continually encounter various forms of discrimination in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and public services. 29 U.S.C.  701(a)(5). Similarly, the ADA was enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C.  12101(b)(1). As these provisions make clear, [t]he Rehabilitation Act and the ADA were enacted to prevent old-fashioned and unfounded prejudices against disabled persons from interfering with those individuals' rights to enjoy the same privileges and duties afforded to all United States citizens. Galloway v. Superior Ct. of Dist. of Columbia, 816 F.Supp. 12, 20 (D.D.C.1993). Both acts have the purpose of furthering "the traditional Equal Protection goal of protecting a discrete class of individuals from arbitrary and capricious actions...." United States Equal Employment Opportunity Comm'n v. Calumet County, 686 F.2d 1249, 1252 (7th Cir.1982). Copr. West 1996 No claim to orig. U.S. govt. works 16 01-07214 ---F.Supp.--- Page 6 (Cite as: 1996 WL 588217, *6 (E.D.Mich.)) Accordingly, both acts were valid exercises of Congress' power to "enforce, by appropriate legislation," the Fourteenth Amendment's guaranty to each citizen of the equal protection of the laws. 3. Conclusion Because both the Rehabilitation Act of 1973 and the ADA are proper exercises of Congress' power to enforce the provisions of the Fourteenth Amendment, and because in both acts Congress has indicated in clear, unequivocal language its intent to abrogate states' Eleventh Amendment immunity, the Court should conclude that the Eleventh Amendment does not bar the plaintiffs' suit. III. APPLICATION OF SECTION 504 AND THE ADA TO STATE PRISONS [FN4] *7 Defendants' alternative grounds for dismissing plaintiffs' section 504 and ADA claims is that neither statute applies to state prisons. After considering each statute separately, the Court should conclude that they both apply to state prisons, for the reasons that follow. [FN5] A. Principles of Statutory Construction "In determining the meaning of [a] statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy." Crandon v. United States, 494 U.S. 152, 158 (1990); see also, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122 (1849)). It is a "familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes." Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (broadly construing the Securities Exchange Act of 1934); see, e.g., Atchinson, T. & S.F. Ry. v. Buell, 480 U.S. 557, 562 (1987) (Federal Employer Liability Act); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 497-98 (1985) (Racketeer Influenced Corrupt Organizations Act) Jefferson County Pharmaceutical Ass'n, Inc. v. Abbott Lab., 460 U.S. 150, 158-59 (1983) (Robinson-Patman Anti-Price Discrimination Act); Peyton v. Rowe, 391 U.S. 54, 64-65 (1968) (habeas corpus relief under 28 U.S.C. S 2241); Securities Exchange Comm'n v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 185-86 (1963) (Investment Advisors Act of 1940). This broad construction is also applied to civil rights statutes. Accord City of Memphis v. Greene, 451 U.S. 100, 120 (1981) (42 U.S.C. S 1982); Owen v. City of Independence, Mo., 445 U.S. 622, 635-36 (1980) (42 U.S.C. S 1983). Accordingly, a broad construction is given to both the Rehabilitation Act, Moreno v. Consolidated Rail Corp., 63 F.3d 1404, 1415 (6th Cir. 1995), and to the ADA, Civic Ass'n of the Deaf of New York City, Inc. v. Giuliani, 915 F.Supp. 622, 634 (S.D.N.Y.1996); Tyler v. City of Manhattan, 849 F.Supp. 1429, 1441 (D.Kan. 1994); Kinney v. Yerusalim, 812 F.Supp. 547 (E.D.Pa.), aff'd, 9 F.3d 1067 (3d Cir.1993), cert. denied, 114 S.Ct. 1545 (1994). B. The Plain Meaning of Section 504 and the ADA By its terms, section 504 applies to "any program receiving Federal financial assistance." 29 U.S.C.  794 (emphasis added). Similarly, title II of the ADA applies to "any [public] entity," 42 U.S.C.  12132 (emphasis added), which is further defined to include "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C.  12131(1)(B) (emphasis added). In construing a statute, especially a remedial one which must be construed broadly to effectuate its purpose," '[t]he word "any" is generally used in the sense of "all" or "every" and its meaning is most comprehensive.'" Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 115 (3d Cir.1992) (quoting McCormick v. Columbus Conveyor Co., 564 A.2d 907, 910 (Pa.1989)) (construing Pennsylvania statute of repose); see also, United States v. Rosenwasser, 323 U.S. 360, 362-63 (1945) ("any" employee as used in Fair Labor Standards Act includes all employees unless specifically excluded). Defendants do not dispute that the Michigan Department of Corrections is a program receiving federal Copr. C West 1996 No claim to orig. U.S. govt. works 17 01-07215 ---F.Supp.--- Page 7 (Cite as: 1996 WL 588217, *7 (E.D.Mich.)) assistance. Because it is a program receiving federal assistance, it is one of any such programs covered by section 504. Likewise it is clear, and defendants do not dispute, that MDOC is a department of the State of Michigan. See, e.g., Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir.1993). Because MDOC is a department of the State of Michigan, it clearly comes under the definition of "public entity" in 42 U.S.C.  12131 and is therefore subject to Title II of the ADA. In addition, plaintiffs state claims of retaliation against defendants, pursuant to 42 U.S.C.  12203. By its clear terms this statutory provision applies to any person who discriminates against an individual in retaliation for attempting to enforce rights under the ADA. [FN6] C. The Department of Justice Regulations Implementing Section 504 and the ADA. *8 The regulations promulgated by the Department of Justice implementing both section 504 and Title II of the ADA make it clear that they both apply to state prisons. Section 504 applies to "any program receiving Federal financial assistance." 29 U.S.C.  794. The regulations interpreting this provision define program as "the operations of the agency or organizational unit of government receiving or substantially benefiting from the Federal assistance awarded, e.g., a...department of corrections." 28 C.F.R.  42.540(h)(1995) (emphasis added). Similarly, the regulations promulgated under the ADA charge the Department of Justice to enforce compliance in "[a]ll programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions." 28 C.F.R.  35.190(b)(6) (1995) (emphasis added); see also 28 C.F.R. Part 35, Appendix A, at 460-61 (1995) (explaining that under 28 C.F.R.  35.130(b)(8), a public entity need not provide attendant care or similar assistance "except in special circumstances, such as where the individual is an inmate of a custodial or correctional institution."). [FN7] "[C]onsiderable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984). In fact, such regulations are entitled to "controlling weight" unless they are "arbitrary, capricious or manifestly contrary to the statute." Id. at 844. As the Supreme Court has noted, the regulations implementing the Rehabilitation Act provide "an important source of guidance on the meaning of S 504." Alexander v. Choate, 469 U.S. 287, 304 n. 24 (1985); see also, School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 (1987). The same is true of the regulations promulgated under the ADA: "Because Title II was enacted with broad language and directed to the Department of Justice to promulgate regulations [thereunder], the regulations which the Department promulgated are entitled to substantial deference." Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.) (citing Blum v. Bacon, 457 U.S. 132, 141 (1982)), cert. denied, 116 S.Ct. 64 (1995). Accordingly, the Court should conclude that section 504 and the ADA apply to state prisons. D. The Case Law Applying Section 504 and the ADA 1. Case Law Under Section 504 A long line of cases applies section 504 to state prisons. Thus, it is clear that "the Rehabilitation Act applies with the same force and effect in corrections institutions as it does in other federally funded programs." Austin v. Pennsylvania Dep't of Corrections, 876 F.Supp. 1437, 1465 n. 17 (E.D.Pa.1995); accord Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir.1994); Harris v. Thigpen, 941 F.2d 1495, 1522 n. 41 (11th Cir.1991); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988); Journey v. Vitek, 685 F.2d 239, 242 (2d Cir.1982); Sites v. McKenzie, 423 F.Supp. 1190, 1197 (N.D.W.Va.1976). *9 Contrary to defendants' assertion, Gates v. Rowland, 39 F.3d 1439 (9th Cir.1994) does not limit the Bonner decision. In Gates, the Ninth Circuit specifically reaffirmed its Bonner holding that the Rehabilitation "Act is Copr. C West 1996 No claim to orig. U.S. govt. works 18 01-07216 ---F.Supp.--- Page 8 (Cite as: 1996 WL 588217, *9 (E.D.Mich.)) applicable to prisons receiving federal financial assistance." Gates, 39 F.3d at 1446. The question in Gates was not whether the Rehabilitation Act applied, but how it applied. Thus, it did not limit Bonner at all. Nor is Williams v. Meese, 926 F.2d 994 (10th Cir.1991) persuasive. In Williams, the court held that section 504 does not apply to federal prisoners "since the Federal Bureau of Prisons does not fit the definition of 'programs or activities' governed by this section." Williams, 926 F.2d at 997. However, the court merely made this blanket assertion without discussion of the relevant statutory language, history of the Act, or regulations promulgated thereunder; nor did the court discuss the reasoning behind its conclusion. For this reason, Williams is not persuasive. Thus, the case law strongly favors application of section 504 to state prisons. 2. Case Law Under the ADA A number of courts have held, either explicitly or implicitly, that the ADA applies to state prisons and that state prisoners may bring suit under the ADA. Clarkson v. Coughlin, 898 F.Supp. 1019, 1035-37 (S.D.N.Y.1995) (reasoning that section 504 applies to prisons and recognizing similarity between section 504 and ADA); Love v. McBride, 896 F.Supp. 808 (N.D.nd.1995) (allowing inmate's suit under ADA although not explicitly addressing the issue); Rewolinski v. Morgan, 896 F.Supp. 879, 881 (E.D.Wis.1995) (same); Noland v. Wheatley, 835 F.Supp. 476, 483 (N.D.nd.1993)(same); Outlaw v. City of Dothan, Ala., No. CV 92-A- 1219-S, 1993 WL 735802, at *4 (M.D.Ala. Apr. 27, 1993) ("The court holds that the Americans with Disabilities Act required the City of Dothan to make the shower in its jail readily accessible to and usable by the plaintiff."). Nonetheless, there are several cases, cited by defendants, holding that the ADA is not applicable to state prisons. Because the cases cited by defendants are either distinguishable or unpersuasively reasoned, the Court should conclude that the ADA is applicable to state prisons. The case principally relied on by defendants is Torcasio v. Murray, 57 F.3d 1340 (4th Cir.1995). Torcasio did not decide the question now under consideration. Rather, the court held only that the prison official defendants in that case were entitled to qualified immunity from plaintiff's ADA and section 504 claims because, at the time of the defendants' actions, "it was not then clearly established that either statute applied to state prisons," thus entitling defendants to qualified immunity. Torcasio, 57 F.3d at 1352. Thus, any discussion of whether the ADA applies to prison settings at all is, at best, dicta. Even this dicta, however, is unpersuasive. *10 The Torcasio court stated that, because of the compelling state interest involved in maintaining its own prisons, "Congress must speak unequivocally before we will conclude that it has 'clearly' subjected state prisons to its enactments." Id. at 1346. However, no such rule of statutory construction seems to support this proposition. Indeed, the long line of prisoner civil rights cases filed under 42 U.S.C. S 1983 would seem to belie this reasoning. Section 1983 does not, by its explicit terms, "clearly" state that prison officials are subject to an action under the statute. Yet, it cannot be doubted that prisoners are protected by and may file suit under S 1983. McCollum v. Mayfield, 130 F.Supp. 112, 116 (N.D. Cal. 195 S) ("an imprisoned felon ... is empowered to due in the federal courts under this section."); Siegel v. Ragen, 88 F.Supp. 996, 998 (N.D.Ill.1949) ("The fact that plaintiffs are incarcerated in a penitentiary under convictions for felonies, does not deprive them of the right to invoke the provisions of the Civil Rights Act."), aff'd, 180 F.2d 785 (7th Cir.), cert. denied, 339 U.S. 990 (1950); Gordan v. Garrson, 77 F.Supp. 477, 479 (E.D.Ill.1948). Similarly, the Religious Freedom Restoration Act (RFRA), 42 U.S.C. S 2000bb-1, does not explicitly state that it proscribes the conduct of state prison officials or that state prisoners are protected by it. Yet, since its adoption, courts have routinely applied the RFRA to prisoner claims. E.g., Werner v. McCotter, 49 F.3d 1476, 1479 (10th Cir.1995); Bryant v. Gomez, 46 F.3d 948, 948 (9th Cir.1995) (per curiam); Copr. C West 1996 No claim to orig. U.S. govt. works 19 01-07217 --- F.Supp. ---- Page 9 (Cite as: 1996 WL 588217, *10 (E.D.Mich.)) Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir.1994); Muslim v. Frame, 891 F.Supp. 226, 229 (E.D.Pa.1995); Woods v. Evatt, 876 F.Supp. 756, 761 (D.S.C.1995); Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y.1994). As the application of these statutes shows, there is simply no support for the Torcasio court's conclusion that state prisons must have been "clearly" subjected to the provisions of the ADA. In a similar vein, the Torcasio court also relied on the Supreme Court's language in Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), which states: "If Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.'" Id. at 65 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)); see Torcasio, 57 F.3d at 1344. Contrary to the conclusion of the Torcasio court, however, Congress did make it "unmistakably clear" that it was altering the balance between the states and the federal government. By its very terms, Title II of the ADA proscribes the conduct of a state government and its department and agencies. 42 U.S.C.  12131, 12132. Further, as discussed above, Congress clearly abrogated the states' Eleventh Amendment immunity. 42 U.S.C.  12202. These statutory provisions make "clear and manifest" Congress' intention "to pre-empt the historic powers of the States" by enactment of the ADA. Will, 491 U.S. at 65 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Thus, the ADA satisfies the Will requirements. In short, the reasoning of the Torcasio court is unpersuasive in light of the plain language, legislative history, the regulations promulgated thereunder, and the policies sought to be advanced by the ADA. [FN8] *11 Defendants also rely on Pierce v. King, 918 F.Supp. 932 (E.D.N.C.1996). This case is likewise distinguishable. Pierce dealt with the application of the ADA to prison employment. Unlike visitation rights or telephone access, prison employment does not constitute the provision of a "service" under the meaning of Title II of the ADA. Rather, discrimination in employment comes within the ambit of Title I. Whether an inmate qualifies as an employee under the meaning of Title I is doubtful. See, e.g., Harker v. State Use Indus., 990 F.2d 131, 133 (4th Cir.) (state prisoners not entitled to minimum wage under Fair Labor Standards Act because they are not within the meaning of the word "employee" as used in the Act), cert. denied, 114 S.Ct. 238 (1993); Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir.1992) (same); but cf. Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir.1984) (adopting "economic reality" test, which in theory could permit a prisoner to qualify as an employee). However, this question is quite different from the questions presented here: whether state prison officials can deny services to qualified individuals on the basis of a disability, and whether state prison officials can retaliate against persons seeking to enforce their rights under the ADA. Thus, Pierce has little, if anything, to contribute to the resolution of this case. Also troubling is the Pierce court's rejection of the Fourteenth Amendment basis for this legislation. The court stated: Although framed in terms of addressing discrimination, the Act's operative remedial provisions demand not equal treatment, but special treatment tailored to the claimed disability. In this respect, the ADA differs radically from traditional anti- discrimination laws, such as Title VII, which seek only a state of affairs where individuals are treated in a neutral manner without regard to race, sex, age, etc. Unlike anti- discrimination laws, the ADA demands entitlement in order to achieve its goals. This the Fourteenth Amendment does not authorize. Pierce, 918 F.Supp. at 940 (emphasis in original) Yet, this approach was rejected by the Supreme Court in Alexander v. Choate, 469 U.S. 287 (1985), in which the Court noted: Our use of the term "affirmative action" in this context has been severely criticized for failing to appreciate the difference between affirmative action and reasonable accommodation; the former is said to refer to a remedial policy for the victims of past Copr. C West 1996 No claim to orig. U.S. govt. works 20 01-07218 --- F.Supp. ---- Page 10 (Cite as: 1996 WL 588217, *11 (E.D.Mich.)) discrimination, while the latter relates to the elimination of existing obstacles against the handicapped. Regardless of the aptness of our choice of words in [Southern Community College v.] Davis [, 442 U.S. 397 (1979) ], it is clear from the context of Davis that the term "affirmative action" referred to those "changes," "adjustments," or "modifications" to existing programs that would be "substantial," 442 U.S. at 410, 411, n. 10, 413, or that would constitute "fundamental alteration[s] in the nature of a program ...," id., at 410, rather than those changes that would be reasonable accommodations. *12 Alexander, 469 U.S. at 300-01 n. 20 (citations omitted). Thus, in Alexander "the Court clarified that reasonable accommodation was a nondiscrimination, not an affirmative action, obligation..." Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second- Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413, 431 n. 96 (1991). Accordingly, the Pierce court's Fourteenth Amendment concerns are unfounded. E. Policy Considerations Of course, the above discussion is not intended to diminish the conflicting policy considerations at issue. On the one hand, Congress clearly sought to "provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C.  12101(b)(1). This was based on Congress' finding that "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations [and] subjected to a purposeful history of unequal treatment," id. S 12101(a)(7), but who, "unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, ... have often had no legal recourse to redress such discrimination." Id. S 12101(a)(4). President Bush described the ADA as "the world's first comprehensive declaration of equality for people with disabilities." President George Bush, Remarks by the President During Ceremony for the Signing of the Americans with Disabilites Act of 1990, 2 (July 26, 1990), quoted in Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413, 413-14. The ADA is the culmination of a long, arduous struggle on the part of persons with disabilities to attain equal treatment through the civil rights laws. See generally, Heather K. by Anita K. v. City of Mallend, Iowa, 887 F.Supp. 1249, 1263-66 (N.D.Iowa 1995); Burgdorf, supra, at 413-34; Jones, Overview and Essential Requirements of the Americans with Disabilities Act, 64 TEMP. L. REV. 471, 472-75 (1991). Balanced against these policy concerns are the states' strong interests in the maintenance of state penal institutions, an interest traditionally accorded strong deference by federal courts. See, e.g., Turner v. Safley, 482 U.S. 78, 89 (1987) ("[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."); Procunier v. Martinez, 416 U.S. 396, 412; Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973); Price v. Johnston, 334 U.S. 266, 285 (1948) ("Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights."). Relying on this line of Supreme Court precedent, the Torcasio court stated: There can be little doubt that application of the ADA and Rehabilitation Act would have serious implications for the management of state prisons, in matters ranging from cell construction and modification, to inmate assignment, to scheduling, to security procedures. *13 Torcasio, 57 F.3d at 1346. However, application of the Rehabilitation Act and the ADA to state prisons would not bring about the horrors portended by the Torcasio court. Under both the ADA and section 504, an individual is qualified to receive the protections of the statute only if he or she meets the eligibility requirements for the particular service or program in question either as the program exists, or as it would exist with "reasonable modification." 42 Copr. C West 1996 No claim to orig. U.S. govt. works 21 01-07219 --- F.Supp. ---- Page 11 (Cite as: 1996 WL 588217, *13 (E.D.Mich.)) U.S.C.  12131(2); see 29 U.S.C.  794. [FN9] By its very definition, "reasonable" would take into account the nature of the modification sought and the circumstances in which the modification is sought. See, e.g., BLACK'S LAW DICTIONARY 1265 (6th ed.1990) (defining reasonable as "fair, proper, just, moderate, suitable under the circumstances) (emphasis added). Thus, for example, a modification which would seriously jeopardize the security of other inmates or of prison officials would not be "suitable under the circumstances," and would therefore not by "reasonable." Particularly persuasive is the Sixth Circuit's recent decision in Sandison v. Michigan High School Athletic Ass'n, 64 F.3d 1026 (6th Cir.1995). In Sandison, the court considered whether the Michigan High School Athletic Association's (MHSAA) age-eligibility rule violated section 504 and Title II of the ADA as applied to a student who, because of a learning disability, was two grades behind his age group. The MHSAA rule in question prohibited any person who was 19 years old on or before September 1 or the school year in question could not participate in high school athletics. Plaintiff filed suit under, among other statutes, section 504 and Title II of the ADA. Id. at 1028-29. The court found that the age restriction is "a necessary requirement of the interscholastic sports program" because it safeguards other, younger competitors from injury and prevents unfair competitive advantage to older participants. Id. at 1035. The court further reasoned that lifting the age restriction would not be a "reasonable accommodation" as required under section 504: Aside from the necessity of the program's requirement, the other question in the otherwise qualified inquiry is "'whether some "reasonable accommodation" is available to satisfy the legitimate interests of both the grantee and the handicapped person. And since it is part of the "otherwise qualified" inquiry, our precedent requires that the "reasonable accommodation" question be decided as an issue of fact.'" Id. at 1034 (quoting Doherty v. Southern College of Optometry, 862 F.2d 570, 575 (6th Cir.1988) (quoting Brennan v. Stewart, 834 F.2d 1248, 1261-62 (5th Cir.1988)), cert. denied, 493 U.S. 810 (1989)) (emphasis added). The court then noted that "[g]enerally, an '[a]ccomodation is not reasonable if it either imposes undue financial and administrative burdens on a grantee, or requires a fundamental alteration in the nature of [the] program.'" Id. at 1034 (quoting Arline, 480 U.S. at 287 n. 17 (citations omitted) (internal quotation omitted)). Applying these rules, the court found that the only possible accommodation would be to lift the age restriction, and such an accommodation would fundamentally alter the sports program. Id. at 1034-35. Accordingly, the age restriction did not violate section 504. Id. at 1035. With respect to the plaintiff's claim under Title II of the ADA, the court found that the same analysis applies to the "reasonable modification" language of 42 U.S.C. S 12131(2), "add[ing] only that the word 'modification' 'connotes moderate change.'" Id. at 1037 (quoting MCI Telecommunications Corp. v. AT & T Co., 114 S.Ct. 2223, 2230 (1994). *14 As Sandison clearly illustrates, accommodations or modifications under section 504 and Title II of the ADA must be reasonable, and "reasonable" depends upon the nature of the service or program and the type of modification in question. The policy concerns inherent in the maintenance of state correctional facilities, such as security, discipline, and rehabilitation, will not be frustrated by application of either section 504 or the ADA to state prisons. Cf., Gates, 39 F.3d at 1447 (indicating that under the ADA, as under the Constitution a regulation "'is valid if it is reasonably related to legitimate penological interests.'") (quoting Turner, 482 U.S. at 89). Accordingly, a consideration of the policy interests involved weighs in favor of applying section 504 and the ADA to state prisons. IV. CONCLUSION In light of the foregoing, the Court should Copr. C West 1996 No claim to orig. U.S. govt. works 22 01-07220 ---F.Supp.---- Page 12 (Cite as: 1996 WL 588217, *14 (E.D.Mich.)) conclude that Congress has properly abrogated the states' Eleventh Amendment immunity, and thus plaintiffs' claim is not barred by that Amendment. Further, the Court should conclude that the provisions of Title II and Title IV are applicable to state prisons. Accordingly, because plaintiffs' have stated a claim upon which relief may be granted, the Court should deny defendants' motion to dismiss. 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 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not 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 & Human Services, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections 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 be not 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. FN1. The relevant facts alleged in the complaint are set forth in detail in my Report & Recommendation of August 25, 1995, at pages 1-6. Accordingly, they are not set forth in detail again here. Judge Borman's Order and my Report are reported at Niece v. Fitzner, 922 F.Supp. 1208 (E.D.Mich.1996). FN2. Although Congress did not explicitly state that it was enacting the Rehabilitation Act or the abrogation of Eleventh Amendment immunity under 42 U.S.C. S 2000d-7 pursuant to its enforcement powers under the Fourteenth Amendment, this can be fairly inferred from the findings and purposes behind the Rehabilitation Act, see 29 U.S.C. S 701, and from the Senate Report relating to 42 U.S.C. S 2000d-7. "The ... constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948). Accordingly, the Supreme Court has noted: It is in the nature of our review of congressional legislation defended on the basis of Congress' powers under  5 of the Fourteenth Amendment that we be able to discern some legislative purpose or factual predicate that supports the exercise of that power. That does not mean, however, that Congress need anywhere recite the words "section 5" or "Fourteenth Amendment" or "equal protection".... Equal Employment Opportunity Comm'n v. Wyoming, 460 U.S. 226, 243 n. 18 (1983). Thus, it is proper for the Court to infer that Congress intended to invoke its Fourteenth Amendment enforcement powers in enacting the Rehabilitation Act. FN3. In McCulloch v. Maryland, 17 U.S. (4 Wheat. 316 (1819), the Court defined the scope of Congressional power under the Necessary and Proper Clause, U.S. CONST. art. I, S 8, cl. 18. Writing for the Court, Chief Justice Marshall established the classic formulation for the reach of Congressional power: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional. McCulloch, 17 U.S. (4 Wheat.) at 421. FN4. Plaintiffs argue that the Court need not decide this issue here because it has already decided the issue in its acceptance of my previous Report & Recommendation. They argue that defendants raised this argument in their objections to that Report, and that Judge Borman's Order accepting Copr. C West 1996 No claim to orig. U.S. govt. works 23 01-07220 ---F.Supp.---- Page 13 (Cite as: 1996 WL 588217, *14 (E.D.Mich.)) that report rejected all of defendants' objections. In addition, they argue, because the Court resolved the substantive issues raised by defendants' first motion to dismiss in their favor, the Court implicitly concluded that the ADA and Rehabilitation Act do apply to state prisons. Thus, they contend, defendants' argument on this issue is barred by the "law of the case" doctrine, which "precludes a court from re-examining an issue previously decided by itself or a higher court." Johns-Manville Corp. v. Guardian Indus. Corp., 116 F.R.D. 97, 101 (E.D.Mich.1987). This doctrine applies whether the issue was decided "explicitly or by necessary inference from the disposition." Coal Resources, Inc. v. Gulf & Western Indus., Inc., 865 F.2d 761, 766 (6th Cir.1989) (internal quotation omitted). While I agree with plaintiffs that my earlier Report & Recommendation and Judge Borman's Order accepting that Report necessarily resolved this issue by implication, I nonetheless discuss the merits of defendants' argument. This is appropriate because: (1) it leads to the same conclusion as application of the law of the case doctrine; and (2) specifically with respect to the ADA, the law on this issue is largely undeveloped, necessitating that the Court make its reasoning on this issue clear and explicit. However, to the extent that defendants raise issues explicitly addressed in my previous Report, such as Hendrick's standing to sue under the ADA or Niece's eligibility to receive a "service" under the ADA, the law of the case doctrine applies and such issues are not reconsidered here. FN5. With respect to plaintiffs' ADA claims, the following discussion focuses primarily on the claims under Title II, 42 U.S.C. S 12132. Plaintiffs' retaliation claims under 42 U.S.C. S 12203 clearly prohibit prison officials from discriminating against an individual in retaliation for her participation in an investigation under the ADA. The plain language applies to any person, and there is no legitimate penological interest served by allowing such retaliation. FN6. In addition, Congress provided that nothing in [the ADA] shall be construed to apply a lesser standard that the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title. 42 U.S.C. S 12201(a). As discussed below, the case law and regulations under the ADA at the time of its enactment held the Rehabilitation Act applicable to state prisons. Because it is assumed that Congress is knowledgeable of the existing law when it enacts legislation, Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990), the Court should assume that Congress intended that the ADA apply to prisons. FN7. In addition, the regulations and case law applicable to interpreting section 504 are applicable in determining the contours of the ADA. See, Patton v. TIC United Corp., 77 F.3d 1235, 1245 (10th Cir.1996); Helen L. v. DiDario, 46 F.3d 325, 330 n. 7 (3d Cir.), cert. denied, 116 S.Ct. 64 (1995). FN8. Defendants also rely on Staples v. Virginia Dep't of Corrections, 904 F.Supp. 487 (E.D.Va.1995) and Little v. Lycoming County, 912 F.Supp. 809 (M.D.Pa.1996). However, because these cases simply rely on the Torcasio reasoning, they are unpersuasive. See Staples, 904 F.Supp. at 490; Little, 912 F.Supp. at 818-19. FN9. Although the language of section 504 itself does not explicitly provide that a person is a "qualified individual" under the section if reasonable accommodation can be made, it has been interpreted thusly. See, e.g., 857 F.2d 1073 (6th Cir.1988) END OF DOCUMENT Copr. C West 1996 No claim to orig. U.S. govt. works 24 01-07221