Spencer v. Earley , 278 F. App'x 254 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6248
MICHEAL LEE SPENCER, SR.,
Plaintiff - Appellant,
versus
MARK L. EARLEY, Office of the Virginia
Attorney General; COMMONWEALTH OF VIRGINIA,
Department of Corrections; BRUNSWICK
CORRECTIONAL CENTER; OFFICE OF HEALTH
SERVICES; ERIC M. MADSEN; RONALD J. ANGELONE;
GENE M. JOHNSON,
Defendants - Appellees,
and
UNITED STATES OF AMERICA,
Intervenor.
No. 07-6418
MICHEAL LEE SPENCER, SR.,
Plaintiff - Appellant,
versus
MARK L. EARLEY, Office of the Virginia
Attorney General; COMMONWEALTH OF VIRGINIA,
Department of Corrections; BRUNSWICK
CORRECTIONAL CENTER; OFFICE OF HEALTH
SERVICES; ERIC M. MADSEN; RONALD J. ANGELONE;
GENE M. JOHNSON,
Defendants - Appellees,
and
UNITED STATES OF AMERICA,
Intervenor.
No. 07-6460
UNITED STATES OF AMERICA,
Intervenor - Appellant,
and
MICHEAL LEE SPENCER, SR.,
Plaintiff,
versus
MARK L. EARLEY, Office of the Virginia
Attorney General; COMMONWEALTH OF VIRGINIA,
Department of Corrections; BRUNSWICK
CORRECTIONAL CENTER; OFFICE OF HEALTH
SERVICES; ERIC M. MADSEN; RONALD J. ANGELONE;
GENE M. JOHNSON,
Defendants - Appellees,
2
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:01-cv-01578-CMH)
Argued: March 18, 2008 Decided: May 16, 2008
Before KING and DUNCAN, Circuit Judges, and Jane R. ROTH, Senior
Circuit Judge of the United States Court of Appeals for the Third
Circuit, sitting by designation.
Affirmed in part, reversed in part, and remanded with instructions
by unpublished opinion. Judge Duncan wrote the opinion, in which
Judge King and Senior Judge Roth joined.
ARGUED: Hannah Polikov, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant. Sarah Elaine Harrington, UNITED
STATES DEPARTMENT OF JUSTICE, Civil Rights Division, Appellate
Section, Washington, D.C., for Intervenor United States. William
Eugene Thro, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees. ON BRIEF: Erwin Chemerinsky, James
Coleman; Students Brian Andrews, Christine N. Appah, Heather H.
Harrison, Lauren Tribble, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant. Rena J. Comisac, Acting Assistant
Attorney General, Diana K. Flynn, UNITED STATES DEPARTMENT OF
JUSTICE, Civil Rights Division, Appellate Section, Washington,
D.C., for Intervenor United States. Robert F. McDonnell, Attorney
General of Virginia, Stephen R. McCullough, Deputy State Solicitor
General, William C. Mims, Chief Deputy Attorney General, Mark R.
Davis, Senior Assistant Attorney General, J. Michael Parsons,
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
3
DUNCAN, Circuit Judge:
While incarcerated at the Brunswick Correctional Center in
Lawrenceville, Virginia, in 2001, Appellant Micheal Lee Spencer,
Sr. (“Spencer”) filed this pro se civil action against the Virginia
Department of Corrections, former Virginia Attorney General Mark
Earley, and several other state entities and actors (collectively
“defendants” or “Virginia”). In his complaint, Spencer alleged
more than twenty violations of Title II of the Americans with
Disabilities Act (“Title II”), 42 U.S.C. § 12131, and § 504 of the
Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C.
§ 794(a), and advanced as well several constitutional claims
against individual defendants under 42 U.S.C. § 1983. After a
complex procedural history which we recount below, the state
defendants moved to dismiss for lack of subject matter
jurisdiction. The district court granted the motion and dismissed
Spencer’s complaint in its entirety. Spencer appealed only the
district court’s decisions with respect to § 504 of the
Rehabilitation Act and Title II of the ADA.
Because the district court erred in dismissing Spencer’s
claims under § 504 of the Rehabilitation Act, we reverse and remand
with instructions to reinstate those claims. As to the Title II
claims, however, counsel informed the court at oral argument that
Spencer agreed to their dismissal. We therefore decline to reach
4
the question of the constitutionality of Title II’s abrogation of
sovereign immunity for claims against state entities not alleging
constitutional violations argued in Spencer’s brief. See Lyng v.
Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A
fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions in
advance of the necessity of deciding them.”).
I.
Spencer is currently an inmate in the federal correctional
system. According to his complaint, he suffers from a variety of
mental and physical ailments, including a “seizure disorder,
neurological damage, infarction (in the brain), involuntary
movement disorder, memory deficit disorder, cognitive dysfunction,
mobility disability, and a myriad of non-psychotic mental
disorders.” J.A. 19.
In 2001, while incarcerated by the Virginia Department of
Corrections (“VDOC”) at the Brunswick Correctional Center, Spencer
filed a complaint in the Eastern District of Virginia seeking
damages and injunctive relief against the former Virginia Attorney
General Mark Earley, the former and current Directors of VDOC, VDOC
itself, the Brunswick Correctional Center Office of Health
Services, and prison psychologist Eric Madsen. He contended that
defendants discriminated against him because of his disabilities,
5
in violation of Title II of the ADA, § 504 of the Rehabilitation
Act, and the United States Constitution. Spencer’s twenty-four
claims assert an extensive pattern of wrongful behavior. For
example, Spencer alleges that he was locked in the building during
a fire drill, despite defendants’ knowledge of his disabilities,
and threatened with disciplinary action for delaying and
interfering with the drill. He also contends that he was
improperly denied single-cell housing and the medical services
accommodations necessitated by his disabilities.
In May 2003, the district court dismissed Spencer’s complaint
in its entirety. The court concluded that: (1) his Title II claims
against state entities and individuals in their official capacities
were barred by the Eleventh Amendment; (2) his claims for
injunctive relief were moot as he had been released from VDOC
custody; (3) his Title II claims against named defendants in their
individual capacities were improper because there is no individual
liability under the ADA; (4) his Rehabilitation Act claims lacked
factual support; and (5) he failed to successfully allege a
violation of the Constitution, as is required to sustain a claim
under 42 U.S.C. § 1983. On appeal, this court summarily affirmed
the dismissal “for the reasons stated by the district court.”
Spencer v. Earley, 88 Fed. Appx. 599, 600 (4th Cir. 2004).
Spencer then filed a petition for a writ of certiorari, asking
the Supreme Court to review the portion of our decision finding
6
that the Eleventh Amendment barred his claims against the state
entities under Title II of the ADA. The Supreme Court granted
certiorari, vacated this court’s judgment, and remanded the case
for further proceedings in light of Tennessee v. Lane, 541 U.S. 509(2004), in which the Court held that Title II validly abrogates
states’ Eleventh Amendment immunity in the context of access to
judicial services. See Spencer v. Earley, 543 U.S. 1018 (2004).
This court, in turn, remanded the case to the district court with
the same instruction. See Spencer v. Earley, No. 037037 (4th Cir.
Jan. 20, 2005). On remand, Virginia filed a motion to dismiss,
asserting its Eleventh Amendment sovereign immunity to suit. The
district court subsequently stayed all proceedings pending the
outcome of the Supreme Court’s decision in United States v.
Georgia, 546 U.S. 151 (2006), which presented the question of
whether Title II validly abrogates states’ sovereign immunity from
suit in the prison context.
The Supreme Court held in Georgia that Title II does abrogate
such immunity in the prison context for claims that also allege
constitutional violations. Georgia, 546 U.S. at 158-59. The
Supreme Court declined, however, to decide the extent to which
sovereign immunity is vitiated for non-constitutional Title II
claims because the lower courts had not yet determined whether the
claims in that case asserted independently viable constitutional
claims or purely statutory ones. The Supreme Court instructed on
7
remand that the lower courts must determine, “on a claim-by-claim
basis, (1) which aspects of the State’s alleged conduct violated
Title II; (2) to what extent such misconduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct violated
Title II but did not violate the Fourteenth Amendment, whether
Congress’s purported abrogation of sovereign immunity as to that
class of conduct is nevertheless valid.” Id. at 159.
On the heels of the decision in Georgia, the state defendants
filed, and the district court granted, the motion to dismiss which
forms the basis of this appeal.1 To frame our analysis, we set
forth the district court’s rationale in some detail.
The district court first found that the Supreme Court’s prior
order in this case, and the decisions in Tennessee v. Lane and
United States v. Georgia, did not call “into question” the district
court’s previous dismissal of (1) Spencer’s claims for injunctive
relief; (2) his Title II claims against named defendants in their
individual capacities; (3) Spencer’s Rehabilitation Act claims; or
(4) his § 1983 claims, which were previously dismissed for failure
to allege a constitutional violation. Spencer v. Earley, No. 1:01-
cv-01578, *5-6 (E.D. Va. Jan. 30, 2007). With respect to Spencer’s
Rehabilitation Act claims, the district court elaborated further
1
While the district court’s ruling was pending, the United
States intervened as an appellant, pursuant to 28 U.S.C. § 2403, to
defend the constitutionality of Title II of the ADA, as applied in
the prison context, and § 504 of the Rehabilitation Act.
8
and reiterated its view that Spencer failed to present evidentiary
support for his allegations. See id. at *5.
Turning to Spencer’s Title II claims against the state
entities and actors in their official capacities, the district
court applied the framework mandated by the Supreme Court in
Georgia. In doing so, it first concluded that Spencer had stated
twelve valid Title II claims.2 The court then found, however, that
2
Briefly stated, Spencer’s valid Title II disability
discrimination claims consisted of the following:
B. Defendants denied Spencer’s reasonable request to use books to
complete the required Breaking Barriers program in his cell because
his disabilities prevented him from attending the classroom
sessions;
D. Defendants denied Spencer’s reasonable request to have meetings
with his psychologist recorded for future use because his
disabilities prevented him from taking notes;
F. Spencer was denied “single-cell housing and medical services
accommodations,” as necessitated by his disabilities, and the
warden denied his reasonable request pertaining to access to the
general population mess hall;
H. Defendants required Spencer to “perform feats, which by reason
of his disabilities placed him at substantial risk of irreparable
physical injury” by requiring him to stand in an outdoor medication
dispensing line on thirty occasions;
K. Defendants locked Spencer in his building during a fire drill,
despite knowledge of his disabilities, and threatened him with
disciplinary action for delaying and interfering with the drill;
M. Spencer was “denied authorization to display placards used to
motivate and remind him to attend to his personal hygiene”;
N. He was denied access to the law library and refused assistance
with obtaining books, instead being insulted for his disabilities;
O. He was inappropriately refused him the single cell
accommodations required by his physical and mental disabilities;
P. He was housed in the residential building farthest from all
inmate services making it very difficult and painful for him to
obtain such services;
S. Spencer was thrown in administrative segregation under false
pretenses because a certain officer “did not want a disabled
individual with Spencer’s disabilities in his building”;
W. Defendants denied Spencer’s request to be placed in single-
9
none of the twelve claims alleged an actual constitutional
violation, and Title II does not “validly abrogate[] [Eleventh
Amendment] state sovereign immunity in the prison context for
[Title II] claims not based on unconstitutional conduct.” Spencer
v. Earley, No. 1:01-cv-01578, *16 (E.D. Va. Jan. 30, 2007).
Accordingly, the court dismissed Spencer’s remaining Title II
claims, and this appeal followed.
II.
We now consider the dismissal of Spencer’s claims under § 504
of the Rehabilitation Act. We review the granting of a motion to
dismiss de novo. See Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.
2002).3 The district court summarily dismissed these claims on the
occupancy housing and the inmate honor housing program, which
provides single-occupancy housing to some non-disabled inmates;
X. Defendants penalized Spencer for his inability to complete the
Breaking Barriers program despite their refusal to make reasonable
accommodations to allow Spencer to participate in the program.
J.A. 21-28, 41-51, 83-85.
3
Although Virginia argues vigorously on appeal that even if
Spencer has stated valid claims under § 504 of the Rehabilitation
Act they are nevertheless barred by state sovereign immunity, its
contentions in this regard are foreclosed by circuit precedent.
This court has previously held that state agencies that knowingly
and willingly accept clearly conditioned federal funding validly
waive their Eleventh Amendment immunity with respect to claims for
damages under § 504 of the Rehabilitation Act. Constantine v.
Rectors and Visitors of George Mason Univ., 411 F.3d 474, 495-96
(4th Cir. 2005). Virginia does not dispute that it receives
federal funding for its prison system and the programs therein.
Thus, Spencer’s Rehabilitation Act claims are not barred by the
Eleventh Amendment. See id.
10
grounds that Spencer failed to present arguments in support of
them.4 Both Appellants, Spencer and the United States, respond
that “[b]ecause Title II of the ADA and [§ 504 of] the
Rehabilitation Act provide for identical causes of action, all of
. . . Spencer’s [twelve] claims that made out a prima facie case
under [Title II of] the ADA also state a claim under the
Rehabilitation Act.” Appellant’s Br. at 58. For the reasons that
follow, we agree.
A.
Rule 8(a)(2) requires that a complaint contain only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court
has recently emphasized that the purpose of this rule is to provide
the defendant with “fair notice of what . . . the claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 127
S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957). Thus, while a complaint comprised solely of labels and
conclusions is insufficient to satisfy this rule, specific facts,
elaborate arguments, or fanciful language are not necessary.
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).
4
Although it is not completely clear from the district court’s
opinion, we assume that the court dismissed Spencer’s
Rehabilitation Act claims for “failure to state a claim upon which
relief can be granted.” See Fed. R. Civ. P. 12(b)(6).
11
More specifically, the Supreme Court has repeatedly held that
in the context of a motion to dismiss, a district court must
construe a pro se complaint liberally. Such a complaint, “however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Id. (internal quotations
omitted). Dismissal of a pro se complaint such as Spencer’s for
failure to state a valid claim is therefore only appropriate when,
after applying this liberal construction, it appears “beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Haines v. Kerner, 404
U.S. 519, 521 (1972) (internal quotations omitted) (emphasis
added).
Viewing Spencer’s complaint under this standard, its dismissal
was inappropriate. Spencer plainly provides the defendants with
notice of his claims and the grounds therefor. It could scarcely
be clearer that he is alleging overlapping disability
discrimination claims under § 504 of the Rehabilitation Act and
Title II of the ADA, and he sets forth in some detail the alleged
conduct giving rise to such claims. For example, Spencer’s
original complaint is entitled, “Complaint Under Title II of the
Americans With Disabilities Act/§ 504 of the Rehabilitation Act of
1973,” J.A. 18, and he refers throughout to the defendants’
violations of his rights under the “RA,” or Rehabilitation Act.
See, e.g., J.A. 21, 46. Perhaps the strongest refutation of the
12
district court’s conclusion can be found in Claim B of Spencer’s
complaint, in which he states the following:
B. (1). Spencer’s March 2001 “Institutional Treatment
Plan” at [Brunswick Correctional Center] indicated that
he needed to complete a so-called “Breaking Barriers”
program. Due to Spencer’s Disabilities, i.e., memory
deficit disorder, cognitive dysfunction, anxiety [and]
panic disorder, (others omitted) he is unable to attend
a classroom setting, Spencer submitted a request . . .
for “reasonable accommodation” under the ADA and RA
([Rehabilitation Act]) to borrow the programs books and
study them in his cell or a private room, in April 2001.
On 4-13-01 by written response to Spencer’s ADA/RA
reasonable accommodations request to participate in said
program, [the Assistant Warden of Programs] illegally
discriminates against Spencer and illegally excludes him
from said program by reason of his disabilities, by
denying him access/accommodation to participate in the
program.
J.A. 21 (emphasis added); see § 504 of Rehabilitation Act, 29
U.S.C. § 794(a), (prohibiting exclusion from programs “solely by
reason” of one’s disabilities). After setting forth evidence
supporting the allegation that he was excluded from the program
“solely by reason” of his disability, Spencer concludes Claim B by
asserting that he was injured as a result of such exclusion and
seeking damages and relief of any “type as may be found to be
merited after trial.” J.A. 21-22. Further, in the amendments to
his complaint, Spencer, again, specifically alleges that defendants
violated his rights “under the Rehabilitation Act,” and repeatedly
cites § 504. J.A. 45-47. Thus, we reject the district court’s
13
contention that Spencer made “no arguments” under § 504 of the
Rehabilitation Act.5
Spencer’s complaint, with respect to the twelve claims at
issue, also contained “enough facts to state a claim to relief
[under § 504 of the Rehabilitation Act] that is plausible on its
face.” Twombly, 127 S. Ct. at 1974. Our conclusion in this regard
is reinforced by the district court’s finding that those claims
successfully alleged violations of Title II of the ADA. Both § 504
of the Rehabilitation Act and Title II of the ADA were enacted, in
part, to prohibit public entities from subjecting any person to
discrimination on the basis of disability. See Baird v. Rose, 192
F.3d 462, 469 (4th Cir. 1999). 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. § 12132. Similarly, § 504 of the Rehabilitation Act
provides that “[n]o otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability,
be excluded from the participation in, or be denied the benefits
5
Curiously, after concluding that “Spencer presented no
arguments” under the Rehabilitation Act, the district court, in the
same opinion, notes several times that Spencer “allege[s] that
defendants’ conduct violated . . . § 504 of the Rehabilitation
Act.” Spencer v. Earley, No. 1:01-cv-01578, *5, 7, 12 (E.D. Va.
Jan. 30, 2007) (memorandum opinion).
14
of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a).
This court has repeatedly held that “[t]he ADA and
Rehabilitation Act generally are construed to impose the same
requirements,” and “[b]ecause the language of the Acts is
substantially the same, we apply the same analysis to both.”
Baird, 192 F.3d at 468 (quoting Doe, 50 F.3d at 1264 n. 9). Thus,
although the two statutes have minor differences, in general, a
plaintiff seeking recovery under “either statute” must allege that
(1) he has a disability; (2) he is otherwise qualified to receive
the benefits of a public service, program, or activity; and (3) he
was “excluded from participation in or denied the benefits of such
service, program, or activity, or otherwise discriminated against,
on the basis of h[is] disability.” Constantine, 411 F.3d at 498.
While Spencer may not mention § 504 of the Rehabilitation Act
in each of his successfully pleaded Title II claims, he initially
states that his claims are brought under both statutes and none of
the Acts’ established differences are implicated.6 Thus, the
6
“Despite the overall similarity of . . . Title II of the ADA
and § 504 of the Rehabilitation Act, the language of these two
statutory provisions regarding the causative link between
discrimination and adverse action is significantly dissimilar.”
Baird, 192 F.3d at 469. However, the failure to show causation was
not the basis of the district court’s dismissal of Spencer’s
Rehabilitation Act claims. Spencer’s complaint plainly alleges
both that he was discriminated against “solely by reason” of his
disability, as required by the Rehabilitation Act, and that he was
“otherwise qualified” for the program or protection at issue, as
required by Title II. We do not hold here that every successfully
15
district court’s finding that Spencer successfully pleaded twelve
claims under Title II should have foreclosed the blanket dismissal
of the same twelve claims brought pursuant to § 504 of the
Rehabilitation Act.
B.
Nonetheless, Virginia contends that the law of the case
doctrine precludes our review of the district court’s decision
regarding Spencer’s Rehabilitation Act claims. It asserts that
“[b]ecause Spencer did not seek Supreme Court review of the
dismissal of the § 504 [of the Rehabilitation Act] claims, these
claims are not implicated in the Supreme Court’s subsequent
decision to grant certiorari, vacate, and remand [this case] to
this [c]ourt.” Appellee’s Br. at 37. Contrary to this assertion,
however, the law of the case doctrine cannot pose an insurmountable
obstacle to our reaching the conclusion here.
The law of the case doctrine “posits that when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case.” Arizona v.
California, 460 U.S. 605, 618 (1983). After the district court’s
first dismissal of his claims, Spencer appealed them all, including
his § 504 claims, to this court. This court, with no independent
analysis, summarily affirmed “for the reasons stated by the
pleaded claim under Title II of the ADA necessarily states a valid
claim under § 504 of the Rehabilitation Act.
16
district court.” See Spencer v. Earley, 88 Fed. Appx. at 600. The
Supreme Court granted certiorari, vacated this court’s entire
opinion, including the decision with respect to § 504 of the
Rehabilitation Act, and remanded the case to this court for
reconsideration. See Spencer v. Earley, 543 U.S. 1018 (2004).
This court, in turn, vacated and remanded the district court’s
decision. See Spencer v. Earley, No. 037037 (4th Cir. Jan. 20,
2005). Given this procedural history, we are hard-pressed to find
any remaining, decided “law of the case” from this court’s earlier
opinion.7 Cf. Johnson v. Bd. of Educ. of City of Chicago, 457 U.S.
52, 53-54 (1982) (“Because we have vacated the Court of Appeals’
judgments in this case, the doctrine of the law of the case does
not constrain either the District Court or, should an appeal
subsequently be taken, the Court of Appeals.”); Adams v. Aiken, 41
F.3d 175, 179 (4th Cir. 1994) (“Inasmuch as the Supreme Court
vacated our judgment, we are not precluded from reconsidering
[another issue not affected by the Supreme Court’s mandate] in the
light of the Court's most recent opinion.”).
7
The district court appears to have been operating under the
same assumption. Rather than concluding that it was precluded by
the law of the case doctrine from considering Spencer’s
Rehabilitation Act claims, as Virginia contends, the district court
merely concluded that its previous ruling on this subject had not
been “call[ed] . . . into question,” and then proceeded to make
findings and, again, issue a ruling on the subject. See Spencer v.
Earley, No. 1:01-cv-01578, *5-6 (E.D. Va. Jan. 30, 2007)
(memorandum opinion).
17
Assuming for argument’s sake, however, that the law of the
case doctrine does apply here, it still does not “limit th[is]
court’s power” to review the dismissal of Spencer’s Rehabilitation
Act claims. Castro v. United States, 540 U.S. 375, 384 (2003)
(internal quotations omitted). It is well established that the law
of the case doctrine “merely expresses the practice of courts
generally to refuse to reopen what has been decided, [and is] not
a limit to their power.” Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817 (1988) (internal citations and quotations
omitted). “A court [therefore] has the power to revisit prior
decisions of its own or of a coordinate court in any circumstance,”
and should readily do so where, as here, “the initial decision was
clearly erroneous.” Id. (emphasis added and internal quotations
omitted).
Thus, we reverse the district court’s decision as to Spencer’s
Rehabilitation Act claims and remand with instructions to the
district court to reinstate the twelve claims found to properly
allege violations of Title II of the ADA.8 As previously noted,
Spencer has abandoned his appeal of the district court’s dismissal
of his claims under Title II of the ADA. We therefore decline to
answer the constitutional questions implicated in those claims, and
8
We refer here to the claims designated by both Spencer and
the district court as claims B, D, F, H, K, M, N, O, P, S, W, and
X.
18
instead affirm that portion of the district court’s judgment on
abandonment grounds.
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS.
19