Crawford v. Indiana Dept. of Corrections

• Decision Date: 02 June 1997
• Docket Number: No. 96-3123,96-3123
• Citation: 115 F.3d 481
• Parties: , 6 A.D. Cases 1416, 22 A.D.D. 22, 10 NDLR P 70 Ricky CRAWFORD, Plaintiff-Appellant, v. INDIANA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 481

115 F.3d 481

65 USLW 2830, 6 A.D. Cases 1416, 22

A.D.D. 22, 10 NDLR P 70

Ricky CRAWFORD, Plaintiff-Appellant, v. INDIANA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

No. 96-3123.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 13, 1997.

Decided June 2, 1997.

John Emry (argued), Franklin, IN, for Plaintiff-Appellant.

Jon B. Laramore (argued), Office of the Attorney General, Indianapolis, IN, for Defendant-Appellee.

Before POSNER, Chief Judge, and ROVNER and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

The plaintiff, a former state prisoner, seeks damages from the state prison administration under the part of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., that governs the provision of public services. Title II, Subtitle A, 42 U.S.C. §§ 12131-12134. He also seeks damages under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, but this claim need not be discussed separately. The Rehabilitation Act is materially identical to and the model for the ADA, Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir.1996); McDonald v. Pennsylvania Dept. of Public Welfare, 62 F.3d 92, 94 (3d Cir.1995); Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir.1996), except that it is limited to programs that receive federal financial assistance--which the Indiana prison system admittedly does. Since the ADA has a broader scope, we shall confine our discussion to it.

The district court dismissed the suit on the pleadings, on the ground that the Act is inapplicable to prison inmates--a question of first impression in this circuit, having been expressly left open in Bryant v. Madigan, supra, and Love v. Westville Correctional Center, 103 F.3d 558, 559 (7th Cir.1996). The circuits that have addressed the question disagree about the proper answer. Compare White v. Colorado, 82 F.3d 364, 367 (10th Cir.1996) (holding that neither the ADA nor the Rehabilitation Act applies to prison employment), and Torcasio v. Murray, 57 F.3d 1340, 1344-52 (4th Cir.1995) (holding that the ADA's applicability to prisons is not clearly established, but strongly hinting that it is inapplicable), with Duffy v. Riveland, supra, 98 F.3d at 454-55 (holding the ADA and the Rehabilitation Act applicable); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988) (holding Rehabilitation Act applicable); Harris v. Thigpen, 941 F.2d 1495, 1522 n. 41 (11th Cir.1991) (same); and Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir.1994) (same). So we are on our own. And all that we have to go on for facts is the complaint, according to which the plaintiff is blind and because of his blindness was denied access to a variety of programs, activities, and facilities at the prison that are routinely available to the prison's population, including educational programs, the library, and the dining hall.

The Americans with Disabilities Act confers rights on "qualified individual[s] with a disability" who are denied access to "services, programs, or activities of a public entity." 42 U.S.C. § 12132. (See 29 U.S.C. § 794(a) for the parallel language of the Rehabilitation Act.) A "qualified individual" is defined as someone who with or without a reasonable accommodation has the physical and mental capacity to participate in the program or activity in question, 42 U.S.C. § 12131(2); and in the present posture of this case we must assume that the plaintiff satisfies this criterion. The statute defines "public entity" as either a state or local government or any department or other instrumentality of a state or local government, so the Indiana Department of Corrections is covered. Incarceration itself is hardly a "program" or "activity" to which a disabled person might wish access, Bryant v. Madigan, supra, 84 F.3d at 249, but there is no doubt that an educational program is a program, and when it is provided by and in a state prison it is a program of a public entity. Schroeder v. City of Chicago, 927 F.2d 957, 962 (7th Cir.1991). The use of a library is, equally clearly, an activity, and so, only a little less clearly, is the use of the dining hall. Love v. Westville Correctional Center, supra, 103 F.3d at 559. So if the statute is read literally, the plaintiff has stated a claim under it. It might not be a good claim; the prison might be able to show that there was no reasonable accommodation that would have enabled the plaintiff to participate in the programs and activities in question or that making the necessary accommodation would place an undue burden on the prison system. Id. at 561; Gates v. Rowland, supra, 39 F.3d at 1446-48; cf. Turner v. Safley, 482 U.S. 78, 87, 107 S.Ct. 2254, 2260-61, 96 L.Ed.2d 64 (1987). But these things cannot be determined on the bare pleadings. If the statute is applicable to prisoners, the judgment for the defendant was premature and must be reversed.

The state concedes that the statute is applicable to prisons, as distinct from prisoners, and thus that its protections are applicable to guards and other prison employees, as assumed in Miller v. Illinois Dept. of Corrections, 107 F.3d 483 (7th Cir.1997), and, by deeming a visit to a prison or a prisoner in the prison an "activity," to visitors as well. Pack v. Arkansas Valley Correctional Facility, 894 P.2d 34, 39 (Colo.App.1995). But the state asks us to draw the line at prisoners. The difficulty is that the statute furnishes us with no implement for drawing the line there. (See 28 C.F.R. § 35.102(a), a Department of Justice regulation that explains that Subpart A of the ADA is applicable to "all services, programs, and activities provided or made available by public entities," except certain public transportation services.) The only criterion of eligibility is that the individual be "qualified" in a sense unrelated to his jural status. Nothing in the legislative history indicates a desire to except prisons or prisoners. When the Americans with Disabilities Act was passed in 1990, the Rehabilitation Act--basically the same statute, only limited to programs receiving federal assistance, so that what the ADA did in essence was generalize the Rehabilitation Act to the entire economy--had been on the books for 17 years, and there were several cases holding that Act applicable to prisons and prisoners. Bonner v. Lewis, supra; Harris v. Thigpen, 727 F.Supp. 1564, 1582-83 (M.D.Ala.1990), aff'd. (on this point), 941 F.2d 1495 (11th Cir.1991); Sites v. McKenzie, 423 F.Supp. 1190, 1197 (N.D.W.V.1976). Nevertheless, Congress did not attempt, by altering the language that it was borrowing from the old statute as the template for the new one, to prevent the new one from being interpreted the same way the old one had been interpreted; nor did it amend the Rehabilitation Act to extinguish the old interpretation. Of course, Congress may not have been aware of the cases interpreting that Act. Still, the state is asking us to create an exception to these statutes on grounds of policy rather than to interpret ambiguous language, plug a gap, resolve a conflict, or, in short, "interpret" in any sense that makes the judge subservient to the expressed intentions and visible designs of the legislators. Realistically, the state is asking us to amend the two statutes.

Realistically, judges do this, or something like it, at times. An example much emphasized by the state in this case is the exclusion of prisoners employed in a prison from the minimum-wage and maximum-hours provisions of the Fair Labor Standards Act. See, e.g., Vanskike v. Peters, 974 F.2d 806 (7th Cir.1992), and other cases cited in Bryant v. Madigan, supra, 84 F.3d at 248; Nicastro v. Reno, 84 F.3d 1446 (D.C.Cir.1996) (per curiam); Danneskjold v. Hausrath, 82 F.3d 37 (2d Cir.1996). The FLSA defines "employee" sweepingly, see 29 U.S.C. § 203(d), (e)(1), (g); Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 1349-50, 117 L.Ed.2d 581 (1992) (remarking the "striking breadth" of the statutory definition); prisoners fall within its literal scope; and there is no express exception for or applicable to prisoners. There are a host of other examples of judge-made statutory exceptions so weakly rooted in the statute as to be fairly described as judicial amendments. A famous one is the Feres doctrine, which excludes military personnel from the Federal Tort Claims Act. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950); United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987). Then there are the cases that construe the union-shop provision of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), which permits a collective bargaining agreement to require all employees in the bargaining unit to join the union, as requiring only that the employees must pay a portion of the union dues, without their having to join the union. E.g., Radio Officers' Union v. NLRB, 347 U.S. 17, 39-42, 74 S.Ct. 323, 335-37, 98 L.Ed. 455 (1954); Communications Workers of America v. Beck, 487 U.S. 735, 745, 108 S.Ct. 2641, 2648-49, 101 L.Ed.2d 634 (1988).

But courts do not create exceptions to statutes every time it seems that the legislature overlooked something. The legislative role of the courts is more confined than that of the legislature. E.g., Seminole Tribe of Florida v. Florida, --- U.S. ----, ----, 116 S.Ct. 1114, 1133, 134 L.Ed.2d 252 (1996); Commissioner v. Asphalt Products Co., 482 U.S. 117, 121, 107 S.Ct. 2275, 2277-78, 96 L.Ed.2d 97 (1987) (per curiam). The judges will create a statutory exception only when as in the union-shop cases, it is necessary to save the statute from being held unconstitutional (see also, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 73, 115 S.Ct. 464, 469-70, 130 L.Ed.2d 372 (1994)), or when they have great confidence that the legislature could not have meant what it seemed to say, as may be the explanation for the Feres doctrine. The first criterion is really included in the second; the legislature presumably would not have wanted ...