Marc Norfleet v. Roger Walker, Jr. , 684 F.3d 688 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2137
M ARC N ORFLEET,
Plaintiff-Appellant,
v.
R OGER E. W ALKER, JR., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-cv-626-JPG-PMF—J. Phil Gilbert, Judge.
S UBMITTED M AY 16, 2012—D ECIDED JULY 2, 2012
Before P OSNER, M ANION, and K ANNE, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff is an Illinois pris-
oner 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 em-
ployees, 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
2 No. 11-2137
claims except the statutory claim were properly dis-
missed 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 recrea-
tion unless at least nine other disabled inmates want
to do so as well and that as a result of this quorum re-
quirement (cf. Garza v. Miller, 688 F.2d 480, 483, 486-87
(7th Cir. 1982)) he went seven consecutive weeks with-
out any such recreation.
The quorum rule seems arbitrary, especially since
recreation, 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, “Exer-
cise/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, wheel-
chair 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 neighbor-
No. 11-2137 3
hood. 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-
routine-disabled-people-8467447.html (visited June 26,
2012); see also Jae Ireland, Livestrong.com, “Exer-
cises for People in Wheelchairs,” Apr. 29, 2012,
www.livestrong.com/article/108802-exercises-people-
wheelchairs/ (visited June 26, 2012). Whether seven weeks
without such recreation can result in serious harm to
someone in the plaintiff’s 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 (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 (2007) (per curiam).
The plaintiff sued the defendants in their official capac-
ity, 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 Rehabil-
itation Act. 29 U.S.C. § 794; Cutter v. Wilkinson, 544 U.S.
4 No. 11-2137
709, 716 n. 4 (2005); Bruggeman v. Blagojevich, 324 F.3d 906,
912 (7th Cir. 2003). To be wheelchair-bound is to be dis-
abled 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 recrea-
tion, 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 plaintiff’s
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 forbid-
den. 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 plaintiff’s
manner of appealing in this case, unconventional as it is.
No. 11-2137 5
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 deny-
ing 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 com-
pliance. 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 plain-
tiff’s 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 (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
6 No. 11-2137
therefore vacate the judgment and remand the case to
the district court for further proceedings consistent
with this opinion.
V ACATED AND R EMANDED.
7-2-12