Niece v. Fitzner

Citation941 F.Supp. 1497
Decision Date10 October 1996
Docket NumberCivil Action No. 94-CV-70718-DT.
PartiesLinda Gail NIECE and Grant H. Hendrick, on behalf of all other similarly situated people with disabilities, Plaintiffs, 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, Defendants.
CourtU.S. District Court — Eastern District of Michigan

Daniel E. Manville, P.C. by Michael J. Steinberg, Ann Arbor, MI, for plaintiffs.

Frank J. Kelly, Attorney General for the State of Michigan by A. Peter Govorchin, Assistant Attorney General, Lansing, MI, for defendants.


BORMAN, District Judge.

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.


KOMIVES, United States Magistrate Judge.


The Court should deny defendants' motion to dismiss plaintiffs' claims under the Americans with Disabilities Act and the Rehabilitation Act of 1973.

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.1

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 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

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, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 472-73, 107 S.Ct. 2941, 2945-46, 91 L.Ed.2d 389 (1987) (plurality opinion). This immunity is based on a two part presupposition: (1) 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, ___ U.S. ___, ___, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 688-89, 121 L.Ed.2d 605 (1993); Hans, 134 U.S. at 13, 10 S.Ct. at 506. 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, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); see also, Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). Further, as the Supreme Court made clear in Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (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, ___ U.S. at ___, 116 S.Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (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, ___ U.S. at ___, 116 S.Ct. at 1123 (quoting Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 786, 111 S.Ct. 2578, 2584, 115 L.Ed.2d 686 (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, 105 S.Ct. 3142, 3149, 87 L.Ed.2d 171 (1985); accord Blatchford, 501 U.S. at 786 n. 4, 111 S.Ct. at 2585 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, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989); see also, Welch, 483 U.S. at 474, 107 S.Ct. at 2946.

a. Abrogation of Immunity Under the ADA

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 Atascadero 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 Atascadero State Hospital). "Accordingly, the Eleventh Amendment does not prevent plaintiffs from making claims against defendants under § 504 of the...

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