Opinion
CASE NO. 01cv2313 BTM(POR)
September 29, 2003
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Richard P. Loritz II has filed a motion for summary judgment. Defendant Thomas Hornung has filed a cross-motion for summary judgment. For the reasons discussed below, Plaintiff's motion is DENIED and Defendant's motion is GRANTED.
I. BACKGROUND
Plaintiff is a state prisoner proceeding pro se. At the time of the events in question, Plaintiff was incarcerated at R.J. Donovan Correctional Facility ("RJD"), where Hornung was acting warden.
CMT Blues is a private company that manufactures T-shirts. CMT Blues employs inmates at RJD to manufacture its goods under the Joint Venture Program ("JVP"). A JVP is "a contract entered into between the Director of Corrections and any public entity, nonprofit or for profit entity, organization, or business for the purpose of employing inmate labor." Cal. Penal Code § 2717.1.
Pursuant to a stipulation and order thereon entered on July 3, 2003, CMT Blues and Pierre Sleiman were dismissed with prejudice. Plaintiff's motion for summary judgment is denied as moot as to these defendants.
On July 24, 2000, Pierre Sleiman, owner of CMT Blues, interviewed Plaintiff for a position with CMT Blues. (Sleiman Decl. (Exh. I to Defendant's Memorandum), ¶ 2.) On or about July 27, 2000, Sleiman's assistant, Sana Kabban, prepared a memorandum to prison officials, which set forth a list of inmates and stated: "CMT Blues interviewed these inmates and would like you to send them to classification and have them on CMT waiting list so we can hire them as soon as possible." (Exh. B to Sleiman Decl.) Loritz was included in the list of inmates.
On August 15, 2000, Plaintiff was brought before a classification committee for a program review. (Notice of Classification Hearing (Plaintiff's Memorandum, p. 16).) Plaintiff alleges that Facility Captain Sandlin looked in his Central File and informed him that because he was a participant in the Correctional Clinical Case Management System ("CCCMS") program, he was ineligible for the Joint Venture Program. (Loritz Decl. (attached to Plaintiff's Memorandum), ¶ 6.)
CCCMS is a program which assists in identifying, treating and monitoring healthcare for inmates who require the delivery of certain outpatient mental health services and medications. Plaintiff was in the CCCMS program to receive medical treatment for his insomnia. (Loritz Decl., ¶ 3.)
The Criteria for Placement in the Joint Venture Program ("Criteria") in existence at the time (set forth in the California Department of Corrections ("CDC") Operations Manual, RJDCF Operational Supplement, § 53140.8) explicitly excluded inmates on CCCMS status from the JVP. (Exh. 1 to Hornung Decl.) The Criteria also provided that inmates "[m]ust not require classification override prior to, or within one (1) year of initial assignment to JVP."
The Criteria were revised on March 5, 2001 to allow inmates on CCCMS status to participate in the JVP program.
On May 23, 2000, Lortiz appeared before the Unit Classification Committee ("UCC"), for his annual classification review. (McGruer Decl. (Exh. H to Defendant's Memorandum), ¶ 11.) Based on Plaintiff's work performance and behavior, the UCC reduced Plaintiff's classification score from 30 points to 22 points, which equates to a Level II classification score. (Id.) RJD is a Level III institution. (McGruer Decl., ¶ 5.) The UCC referred Plaintiff's case to the Classification Staff Representative ("CSR"), with a recommendation that Plaintiff be transferred to a Level II institution. (Exh. 1 to McGruer Decl.) On June 28, 2000, the CSR issued an override to retain Plaintiff at RJD with a classification score of 22 points on the ground that Plaintiff had a mental condition that requires special treatment or limits placement options. (McGruer Decl., ¶ 12.) Override decisions are good only until an inmate receives his next annual classification review. (McGruer Decl., ¶ 10.)
Plaintiff claims that the sole reason he was excluded from the JVP was his CCCMS status. Defendant counters that even if Plaintiff were not in the CCCMS program, he would not have been eligible for the JVP because of his override.
After pursuing administrative remedies, Plaintiff filed this action on December 17, 2001. Plaintiff's First Amended Complaint alleges violations of the of the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794, and the California Fair Employment Housing Act ("FEHA"), Cal. Gov't Code § 12900, et seq. Plaintiff seeks compensatory damages for lost wages and emotional distress, punitive damages and "other such relief as may be necessary."
In an order filed on July 23, 2002, the Court granted in part and denied in part a motion to dismiss filed by Defendant Hornung. As a result of the Court's order, the only surviving claims against Defendant Hornung are the ADA Title II claim and the RA claim.
II. DISCUSSION
A. Title I of the ADA
Defendant argues that the Court should grant summary judgment in his favor on Plaintiff's claim under Title II of the ADA because this claim is actually a Title I claim, which is barred under the Eleventh Amendment. The Court rejected this argument in its Order Granting in Part and Denying in Part Defendant's Motion to Dismiss filed on July 23, 2002. Defendant has not persuaded the Court that its prior ruling was erroneous.
Defendant relies upon Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169 (9th Cir. 1999), in which the court held that employment by a public agency does not fall within the scope of Title II of the ADA. Title II provides:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by such entity.42 U.S.C. § 12132. The court in Zimmerman reasoned that Title II applies only to the "outputs" of a public agency, not the "inputs," such as employment. Zimmerman, 170 F.3d at 1173-79. The court explained that employment is not commonly thought of as a service, program, or activity of a public entity. Id. at 1174.
As pointed out by the Court in its July 23, 2002 order, Zimmerman is distinguishable. Although the Court does not doubt that the JVP involves employment contracts and employment relations, the JVP also provides other benefits to participating inmates. One of the stated goals for the JVP is to "provide inmates with the skills and work habits necessary to become productive members of society upon their release." Cal. Penal Code § 2727, 2. Similarly, Article 40 of the CDC Department Operating Manual (Exh. Q to Defendant's Memorandum), explains that the JVP is a means by which inmates may "[L]earn skills which may be used upon their return to free society" and "[a]ssist in their own rehabilitation in order to become responsible law abiding citizens upon their release from a State prison or local jail."
The Court finds that the vocational and rehabilitative goals of the JVP render it an "output." A number of cases have found that similar programs fall under Title II. See, e.g., Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998) (holding that an inmate stated a Title II claim based on his exclusion from a motivational boot camp); Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997) (upholding injunctive relief under Title II against California state officials because, among other things, the range of vocational programs provided for disabled inmates was more limited than the range provided for non-disabled prisoners); Clark v. California, 1996 WL 628221 (N.D. Cal. 1996) (holding that Title II claim was stated where prisoner plaintiff's alleged that the defendants denied them access to and the benefits of education, work programs, and other activities because of their disabilities), aff'd by 123 F.3d 1267 (9th Cir. 1997).
B. Eleventh Amendment Immunity
Defendant argues that even if Plaintiff is allowed to proceed under Title II of the ADA, Defendant is entitled to summary judgment on this claim because the abrogation of state immunity under Title II of the ADA is unconstitutional. The Court rejects this argument.
The Ninth Circuit has twice held that Title II validly abrogated the states' sovereign immunity. Dare v. California, 191 F.3d 1167, 1173 (9th Cir. 1999): Clark v. California, 123 F.3d 1267, 1270-71 (9th Cir. 1997). In Bd. of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363 (2001), the Supreme Court held that Congress acted outside the scope of its constitutional powers in abrogating the states' Eleventh Amendment immunity under Title I of the ADA. However, the Supreme Court expressly stated that it "was not disposed to decide the constitutional issue whether Title II, which has slightly different remedial provisions from Title I, is appropriate legislation . . ." Id. at 360 n. 1.
Defendant points out the Supreme Court has granted certiorari on the issue of Title II and Eleventh Amendment immunity. See Tennessee v. Lane, ___ S.Ct. ___, 2003 WL 21180382, 71 USLW 3736 (U.S. Jun 23, 2003) (No. 02-1667). However, until the Supreme Court renders a decision, this Court is bound by Ninth Circuit precedent.
Defendant suggests that the Court stay this action until the Supreme Court renders its decision. The Court declines to do so.
C. Qualified Individual
Defendant argues that it is entitled to summary judgment on Plaintiff's Title II claim and RA claim because Plaintiff cannot establish that he is a "qualified individual with a disability." The Court agrees.
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 any such entity." 42 U.S.C. § 12131(2). A "qualified individual with a disability" means "an individual with a disability, who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the . . . participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). (Emphasis added.)
Section 504 of the RA similarly provides: "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. § 794(a). The term "qualified individual" as used in the RA means "a handicapped person who meets the essential eligibility requirements for the receipt of such services." 45 C.F.R. § 84.3(k)(4).
Defendant contends that even if Plaintiff were not on CCCMS status, he would not have met the "essential eligibility requirements" for the JVP because he was already on override status at the time he sought employment with the JVP. The "minimum criteria" for placement in the JVP provided that inmates "[m]ust not require classification override prior to, or within one (1) year of initial assignment to JVP." (CDC Operations Manual, RJDCF Operational Supplement, § 53140.8.)
Plaintiff does not dispute that when he sought employment with the JVP, he was at RJD on an override. However, Plaintiff argues that because he had already obtained an override, he did not require a classification override prior to assignment to JVP. Plaintiff's narrow reading of this criterium is unsupported.
As explained by Defendant, the purpose of this criterium is twofold: (1) it is designed to avoid complicating transfers of inmates who should be in Level II institutions by preventing such inmates from seeking JVP placement, which would require overrides; and (2) it is intended to stabilize the JVP workforce and prevent the frequent worker turnover that would result from employing inmates who are on override status or who would require an override within a year of placement with the JVP. (Hornung Decl., ¶¶ 5-6.)
Considering the purpose of the criterium, there can be no doubt that it precludes JVP placement of inmates who are already on override status in addition to those who need an override immediately prior to placement. Therefore, even if Plaintiff were not on CCCMS status, Plaintiff would not have met all of the stated requirements for participation in the JVP.
The pivotal question is whether the criterium at issue is an "essential eligibility requirement" within the meaning of the ADA and the RA. In determining whether a requirement is an "essential eligibility requirement," courts examine the importance of the requirement to the program. See, e.g., Pottgen v. Missouri State High School Activities Assoc., 40 F.3d 926 (8th Cir. 1994) (holding that an age limit is an essential eligibility requirement in a high school interscholastic program).
The Court finds that the criterium is of sufficient importance to the program and the broader interests of the institution to constitute an "essential eligibility requirement." The requirement is essential to the stability of the JVP workforce. It also furthers the institutional interests in the orderly administration of inmate classification and transfers.
Plaintiff contends that Defendant does not consistently enforce the requirement. If there were evidence that Defendant does not strictly enforce the requirement, the Court would deem this evidence relevant to the issue of whether the requirement is "essential." However, Plaintiff has not provided the Court with any admissible evidence to this effect.
Plaintiff identifies Dan Palm and Mark Rogowski as fellow prisoners who participated in JVPs even though they were on override status. However, Defendant offers evidence that Rogowski was not on an override at the time he was assigned to CMT Blues. (McGruer Decl. (attached to Defendant's Reply), ¶ 12.) Defendant also offers evidence that Palm was a unique situation. According to Defendant, on August 16, 2000, Palm was transferred to California Men's Colony when his classification points dropped to Level II. (McGruer Decl., ¶ 8.) After Palm appealed his transfer based on family hardship, Palm was transferred back to RJD based on a family hardship override. (Id.) According to Defendant, Palm's transfer back to RJD constituted a "permanent placement decision that Palm would remain at RJD for the remainder of his prison term regardless of his classification level. . . ." (Id.) Due to his special situation, Defendant determined it would have been unreasonable and unfair to deny Palm JVP employment. (McGruer Decl., ¶ 9.)
Plaintiff disputes that Palm's override is a permanent placement decision. According to Plaintiff, Palm has to go to classification every year and has to submit new evidence regarding the family hardship. However, Plaintiff has not established that he has personal knowledge of these facts. It appears that Plaintiff's information is based on communications with Palm and his family which constitute inadmissible hearsay. Plaintiff has not proffered any documents or other evidence supporting his claim.
Hornung declares that he is "unaware of any instance in which an inmate has been placed in a JVP at RJD in violation of the policy set forth in the RJD operational supplement explained in paragraph 5 and exhibit 1." (Hornung Decl., ¶ 6.) Inmates Flores, Alvarado, and Jefferson, who were included in the list of inmates recommended by Sleiman and appear to have been on override based upon Sleiman's notes, have not been classified for or assigned to any JVP employment programs at RJD. (McGruer Decl. (attached to Defendant's Reply), ¶ 13.)
If an inmate is already working for a JVP employer and has proven to be unusually able or productive, the employer may request the RJD Warden to retain the inmate on override in the event that the inmate is reclassified as to Level II. These requests are not automatically granted by the CDC. (Hornung Decl., ¶ 6.)
Plaintiff also argues that Defendant has not consistently enforced its requirement that "[i]nmates with life sentences without a date are excluded from JVP." (CDC Operations Manual, RJDCF Operational Supplement, § 53140.8.) However, whether this particular requirement was strictly enforced does not bear on whether the criterium at issue qualifies as an essential eligibility requirement. Moreover, based on the evidence submitted by Defendant, it appears that since the implementation of the requirement on January 14, 1998, Defendant has precluded inmates with life sentences without a date from JVP participation. (McGruer Decl. (attached to Defendant's Reply), ¶¶ 5, 10-12.) The one exception to this rule is Kevin Roberts, and it is likely that his assignment to a JVP program on March 18, 1998 was due to prison officials overlooking the newly implemented requirements (McGruer Decl. ¶ 11.)
In sum, even if the only reason given by Defendant for Plaintiff's exclusion from the JVP was his CCCMS status, Plaintiff failed to satisfy an essential eligibility requirement as a result of his override status. Plaintiff would have needed a new override within one year of his potential hire by CMT Blues as the overrides were only effective for one year. Plaintiff was given an override on June 28, 2000, which was good for one year. (McGruer Decl. ¶¶ 10 and 12). Plaintiff alleges that on August 15, 2000 he was brought to the classification committee for placement with CMT Blues. He alleges that he was denied participation with CMT Blues because of his mental CCCMS status. Notwithstanding that decision, he was ineligible for the CMT Blues employment because he would need an override within a year. Therefore, Plaintiff was not a "qualified" individual and his Title II and RA claims fail.
III. CONCLUSION
For the reasons discussed above, Defendant Hornung's Motion for Summary Judgment [79-1] is GRANTED and Plaintiff's Motion for Summary Judgment [58-1] is DENIED. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.