Appeal from the United States District Court for the District of New Jersey (D.C. No. 94-cv-01296) District Judge: Hon. Nicholas H. Politan
Before: Scirica, Chief Judge, Fisher and Aldisert,
The opinion of the court was delivered by: Aldisert, Circuit Judge
This appeal by Oliver Cochran, a legally blind inmate in New Jersey's South Woods State Prison ("South Woods"), requires us to decide whether the operation of the Eleventh Amendment precludes a claim for damages against New Jersey under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134 (2000). The gravamen of Cochran's complaint is that while an inmate at two penal institutions of the State, the New Jersey Department of Corrections temporarily denied him access to talking books, a talking watch, a useable lock and his walking cane.
Cochran appeals from summary judgment in favor of the New Jersey Department of Corrections and various state officials (collectively "DOC"). The United States District Court for the District of New Jersey held that Congress did not validly act within its constitutional authority in abrogating the State's immunity for claims brought by individuals against them under Title II of the ADA. (D.C. Op. at 5.)*fn1
Title II of the ADA provides that "no 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 such entity." 42 U.S.C. § 12132. It also provides that "[a] State shall not be immune under the eleventh amendment [sic] to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter." § 12202. In Tennessee v. Lane, 124 S.Ct. 1978 (2004), the Court held that "Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress' § 5 authority to enforce the guarantees of the Fourteenth Amendment." Id. at 1994. The Court was very specific in limiting its holding to cases implicating the fundamental right of access to the courts, indicating that an individual analysis would have to be performed for subsequent Title II cases involving a different scenario. We are persuaded that a different scenario is present here.
In considering Cochran's appeal from the district court's order granting summary judgment in favor of the DOC we must follow the analytical format set out by the Court in City of Boerne v. Flores, 521 U.S. 507, 529 (1997), to determine when Eleventh Amendment Immunity will permit suits for money damages against state agencies. Because our application of this test must take full account of the policy of judicial restraint in prisoners' rights cases as set forth in Turner v. Safley, 482 U.S. 78, 85 (1987), we decide that the holding of Tennessee v. Lane is not applicable to these facts. We will affirm the judgment of the district court.
Appellant, Oliver Cochran, is a legally blind inmate currently incarcerated in South Woods in Bridgeton, New Jersey. Cochran is serving a life sentence for murder and robbery. In 1988, Cochran was transferred from the Florida prison system to the custody of the New Jersey DOC. When he arrived in New Jersey, he was suffering from end stage glaucoma and was legally blind.
From 1988 to 1996, Cochran was incarcerated at East Jersey State Prison ("EJSP"). In September 1996, he was transferred to Bayside State Prison ("Bayside"). In early 1998, Cochran was transferred from Bayside to South Woods, where he is currently incarcerated.
Cochran alleges that, from 1992 to 1996, while incarcerated at EJSP, the DOC discriminated against him by taking away the talking books and special tape player he requires in order to access literature. While in the Administrative Close Security Unit ("ACSU") at EJSP for approximately two months, Cochran was not permitted to have these privileges. The ACSU is the area of the prison in which security is of utmost importance; placement in the ACSU is intended to be punitive. He alleges that his talking books were not returned to him until two years after his release from the ACSU.
He further alleges that when the DOC transferred him to Bayside, it confiscated his walking cane, which he had been permitted to use at EJSP. Upon arriving at Bayside, Cochran requested that the DOC return his cane, and alleges that he did not receive his cane until June of 1997, nine months after his arrival there. The DOC disputes this, asserting that Cochran was denied access to his walking cane only during an institutional State of Emergency following the murder of a corrections officer by an inmate. In the posture of summary judgment, we must accept Cochran's version.
At Bayside, the DOC also refused to let him possess a "talking watch," which audibly states the time, and a useable lock to secure his personal belongings. After arriving at South Woods, where he is now an inmate, Cochran was permitted to possess all the articles that he claims were denied to him at EJSP and Bayside. He makes no claims about conditions in South Woods. The heart of his case is the denial of these specific items for a discrete period of time at EJSP and Bayside.
In 1994, Cochran filed suit pro se against the DOC, alleging that it had violated Title II of the ADA. See 42 U.S.C. § 12132. Subsequently, the court appointed an attorney for him. Thereafter, the DOC moved for summary judgment, claiming that the Title II claim violated the Eleventh Amendment of the Constitution. The district court stayed the motion pending the outcome of the Supreme Court's decision in University of Alabama Board of Trustees v. Garrett, 531 U.S. 356 (2001). The DOC then made a second motion for summary judgment which the district court granted. After the district court's decision, the Supreme Court decided Tennessee v. Lane, holding that Title II of the ADA, as it applies to classes of cases implicating the fundamental right of access to courts, constitutes a valid exercise of Congress' § 5 authority to enforce guarantees of the Fourteenth Amendment. 124 S.Ct. at 1994. Cochran now appeals. *fn2
The purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). The statute prohibits discrimination against individuals with disabilities in the areas of employment (Title I); public services, programs and activities (Title II); and public accommodations (Title III). See Lane, 124 S. Ct. at 1984.
Title II provides that "no 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 such entity." § 12132. It provides also that "[a] State shall not be immune under the eleventh amendment [sic] to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter." § 12202.
The Eleventh Amendment of the Constitution bars individuals from suing States for monetary relief based on violations of federal law. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54 (1996). There are two exceptions to Eleventh Amendment Immunity: (1) when a State specifically consents to being sued; or (2) when Congress abrogates immunity through legislation. Id. at 55-56. To determine whether Congress' abrogation for a specific claim is proper, it is necessary to ask two questions: whether Congress: (1) unequivocally expressed its intent to abrogate the immunity; and (2) acted "pursuant to a valid exercise of power." Id. (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).
Here, New Jersey has not consented to being sued. We must therefore decide whether Congress properly abrogated Eleventh Amendment Immunity by operation of Title II under the facts alleged here.
To decide this, the Court in Boerne provided a road map that we must follow. The first step in the Boerne analysis is to "identify with some precision the scope of the constitutional right at issue." Garrett, 531 U.S. at 365. Second, the court must examine whether Congress "identified a history and pattern of unconstitutional employment discrimination by the States against the disabled." Id. at 368. Third, if (and only if) there is a pattern of unconstitutional conduct on the part of the State, the court determines whether the abrogation constitutes a proportionate response to the constitutional violation. See Fla. Prepaid Secondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 646 (1999).
In Garrett, the Court applied the Boerne test to Title I of the ADA, the provision dealing with employment discrimination, and held that the Eleventh Amendment bars private suits for money damages for State violations of Title I. 531 U.S. at 374. The Court reasoned that Congress' exercise of its prophylactic § 5 power was unsupported by a relevant history and pattern of constitutional violations by States against disabled individuals in the workplace. "Neither the ADA's legislative findings nor its legislative history reflected a concern that the States had been engaging in a pattern of unconstitutional employment discrimination." Lane, 124 S.Ct. at 1987 (citing Garrett, 531 U.S. at 368, 374). Title I's broad remedial scheme was deemed inadequate and inappropriate to prevent unconstitutional discrimination in public employment. In Garrett, the Court left open the question of whether the Eleventh Amendment bars private suits for money damages for violations of Title II of the ADA.
In Tennessee v. Lane, the Court answered this question. It decided that Title II of the ADA, as it applies to classes of cases implicating the fundamental right of access to courts, constitutes a valid exercise of Congress' § 5 authority to enforce the guarantees of the Fourteenth Amendment. 124 S.Ct. at 1994. In Lane, two paraplegics, Lane and Jones, alleged that they were unconstitutionally denied access to a Tennessee State court building because of their disabilities. Id. at 1979. Because there was no elevator in the courthouse, Lane had to crawl up to a second floor courtroom to answer his criminal charges. Jones, a court reporter, was unable to gain access to the second floor courtroom and, as a result, lost work.
Lane and Jones filed suit against the State, the defendant moved to dismiss and the district court denied the motion. On appeal, the Court of Appeals for the Sixth Circuit, sitting en banc, remanded Lane for further proceedings, having interpreted Garrett to bar private ADA suits against States based on equal ...