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Marc NORFLEET, Plaintiff-Appellant, v. Roger E. WALKER, Jr., et al., Defendants-Appellees

United States Court of Appeals for the Seventh Circuit2012-07-02No. No. 11-2137
684 F.3d 688

Summary

Holding. The judgment dismissing the plaintiff's Rehabilitation Act claim was vacated and the case remanded because a wheelchair-bound prisoner stated sufficient allegations that prison officials denied him recreational access based on his disability, a program or activity covered by federal disability law.

An Illinois prisoner in a wheelchair sued prison officials, claiming they violated the Americans with Disabilities Act by enforcing a rule requiring at least nine disabled inmates to request outdoor recreation before allowing any single disabled inmate to participate. The prisoner alleged he was denied such recreation for seven consecutive weeks. The district court dismissed the complaint before the defendants responded. The court concluded that while the Americans with Disabilities Act claim may face immunity issues, the plaintiff's claims are properly brought under the Rehabilitation Act, which applies to state agencies receiving federal funding. The prisoner's disability and the denial of recreational programming based on that disability constitute actionable allegations under federal law.

The court also addressed a procedural issue concerning the plaintiff's appellate brief, which incorporated by reference his district court brief rather than presenting arguments directly. Although this typically violates appellate rules, the court excused the violation because the incorporated material was fully included within page limits, the plaintiff was proceeding pro se (without counsel), and no harm resulted from the technical deviation.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a prisoner in a wheelchair states an actionable claim under the Rehabilitation Act when denied outdoor recreation
  • Whether state prisoners can sue under the Americans with Disabilities Act
  • Appropriate pleading standards for pro se prisoner litigation
  • Reasonableness of a quorum requirement restricting disabled inmates' access to recreation

Procedural posture

The plaintiff appealed the district court's dismissal of his complaint for failure to state a claim.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

POSNER, Circuit Judge.

The plaintiff is an Illinois prisoner who alleges that he is confined to a wheelchair because of a “nerve condition” not further defined. He brought this suit against several of the prison’s employees, complaining among other things that by refusing to allow him to engage in any physical outdoor recreational activity they have both subjected him to cruel and unusual punishment and violated his rights under the Americans with Disabilities Act. All the claims except the statutory claim were properly dismissed for reasons adequately explained by the district judge. We confine our discussion to that claim.

The plaintiff alleges — as yet without contradiction, because the district judge dismissed the suit before the defendants filed anything — that the defendants won’t allow a disabled inmate to engage in outdoor recreation unless at least nine other disabled inmates want to do so as well and that as a result of this quorum requirement (cf. Garza v. Miller, 688 F.2d 480, 483, 486-87 (7th Cir.1982)) he went seven consecutive weeks without any such recreation.

The quorum rule seems arbitrary, especially since re creation, including aerobic exercises that cannot be performed in a cell (the plaintiff is in segregation, meaning he’s confined to his one-person cell 23 hours a day), is particularly important to the health of a person confined to a wheelchair. E.g., James H. Rimmer, “Exercise/Fitness: Resistance Training for Persons with Physical Disabilities” (National Center on Physical Activity and Disability, Dec. 21, 2005), www.ncpad.org/exercise/ fact_sheet.php?sheet=107 (visited June 26, 2012). “Aerobic training promotes weight loss, increases energy and improves cardiovascular conditioning---- Activities that can be performed are wheelchair basketball, wheelchair volleyball and wheelchair tennis. A recommended aerobic sport can be wheelchair racing. The benefits of this activity are that you can perform the race at your own pace. Wheelchair racing can be done by pushing your wheelchair on a running track or in a neighborhood. Start out each workout with light intensity to warm up the muscles. As you feel more comfortable add more intensity to the workout by racing at a faster pace.” Matthew Potak, “Exercise Routine for Disabled People Wheelchairs,” http://voices.yahoo.com/exercise-routinedisabled-people-8467447.html (visited June 26, 2012); see also Jae Ireland, Livestrong.com, “Exercises for People in Wheelchairs,” Apr. 29, 2012, www. livestrong.com/article/108802-exercisespeople-wheelchairs/ (visited June 26, 2012). Whether seven weeks without such recreation can result in serious harm to someone in the plaintiffs condition is a separate question not yet addressed in the litigation.

The only statute cited by the plaintiff, the Americans with Disabilities Act, may not be available to him, because it is an open question whether state officers are immune from suits under that Act. United States v. Georgia, 546 U.S. 151, 158-59, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006). But the Rehabilitation Act, 29 U.S.C. § 701 et seq., is available to him, and courts are supposed to analyze a litigant’s claims and not just the legal theories that he propounds, Hatmaker v. Memorial Medical Center, 619 F.3d 741, 743 (7th Cir.2010); McManus v. Fleetwood Enterprises, Inc., 320 F.3d 545, 551 (5th Cir.2003) — especially when he is litigating pro se. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam).

The plaintiff sued the defendants in their official capacity, and so the lawsuit is against a state agency — and one that happens to receive federal financial assistance, which brings the agency within the scope of the Rehabilitation Act. 29 U.S.C. § 794; Cutter v. Wilkinson, 544 U.S. 709, 716 n. 4, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005); Bruggeman v. Blagojevich, 324 F.3d 906, 912 (7th Cir.2003). To be wheelchair-bound is to be disabled within the Act’s meaning. 29 U.S.C. § 705(9)(B); 42 U.S.C. § 12102(1)(A). And the plaintiff alleges that it was because of his disability that he was denied recreation, which is a “program or activity” under the Act. Crawford v. Indiana Department of Corrections, 115 F.3d 481, 483 (7th Cir.1997); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996). So the suit was dismissed prematurely.

The only obstacle to our reversing is that the plaintiffs brief in this court mainly just directs us to the brief he filed in the district court seeking reconsideration of the judge’s dismissal of his complaint. The incorporation of arguments by reference in an appellate brief is forbidden. Albrechtsen v. Board of Regents, 309 F.3d 433, 436 (7th Cir.2002); United States v. Soto-Beniquez, 356 F.3d 1, 43-44 (1st Cir.2003); Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448, 452 (6th Cir.2003). The main reasons are to prevent evasion of the limits on the length of such briefs and to ensure that the party’s arguments engage with the findings and analysis in the decision appealed from. Fleming v. County of Kane, 855 F.2d 496, 498 (7th Cir.1988) (per curiam); Prudential Ins. Co. v. Sipula, 776 F.2d 157, 161 n. 1 (7th Cir.1985); Northland Ins. Co. v. Stewart Title Guaranty Co., supra, 327 F.3d at 453. A subordinate reason is that the appellate judges may not have immediate access to the brief in which the arguments incorporated by reference appear.

None of these concerns is presented by the plaintiffs manner of appealing in this case, unconventional as it is. He copied into his appellate brief the brief that he asks to be incorporated, and the entire appellate brief, including the incorporated brief, does not exceed our page limits. The incorporated brief is sharply focused on the district court’s decision; it is a brief in support of a motion for reconsideration, and the judge’s order denying reconsideration did not significantly supplement his original discussion of the recreation issue. A proper appellate brief would be materially identical to that brief.

The reported cases that recite and enforce the rule against incorporation do not involve pro se litigants, who can be excused from full compliance with technical procedural rules provided there is substantial compliance. Correa v. White, 518 F.3d 516 (7th Cir.2008) (per curiam); Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir.2010). We are inclined therefore to forgive the plaintiffs violation of the rule forbidding incorporation by reference — a violation that can’t have caused any harm to anybody, that was therefore merely technical, and that did not prevent substantial compliance.

There are unanswered questions about the statutory claim, and if the plaintiff were represented we might deem the complaint insufficient under the enhanced pleading standard imposed by Ashcroft v. Iqbal, 556 U.S. 662, 680-81, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). But as a pro se (as well as a prisoner and thus severely limited in his ability to conduct the kind of precomplaint investigation required by Iqbal ), the plaintiff has pleaded enough to avert dismissal. Cf. Munson v. Gaetz, 673 F.3d 630, 632-33 (7th Cir.2012); Maddox v. Love, 655 F.3d 709, 718 (7th Cir.2011). We therefore vacate the judgment and remand the case to the district court for further proceedings consistent with this opinion.

Vacated and Remanded.