Raymond W. Aswegan v. Captain Bruhl Lieutenant Birdsell C/o Gary Rea C/o Roush Lieutenant Bowden Roger Lawson Charles Harper John Emmett

113 F.3d 109

65 USLW 2816, 6 A.D. Cases 1254, 9
NDLR P 346

Raymond W. ASWEGAN, Plaintiff-Appellee,
v.
Captain BRUHL; Lieutenant Birdsell; C/O Gary Rea; C/O
Roush; Lieutenant Bowden; Roger Lawson; Charles
Harper; Defendants,
John Emmett, Defendant-Appellant.

No. 96-3499SI.

United States Court of Appeals,
Eighth Circuit.

Submitted Feb. 12, 1997.
Decided May 2, 1997.
Rehearing and Suggestion for Rehearing En Banc Denied June 18, 1997.

Gordon Eugene Allen, Des Moines, Iowa, argued for defendant-appellant (Thomas J. Miller, Attorney General of Iowa, and Kristin W. Ensing, Assistant Attorney General, on the brief).

Paul D. Burns, Des Moines, Iowa, argued for plaintiff-appellee (H. Richard Smith, on the brief).

Before FAGG, HEANEY, and JOHN R. GIBSON, Circuit Judges.

FAGG, Circuit Judge.

1

Raymond W. Aswegan, a life sentence inmate at the Iowa State Penitentiary (ISP), brought this lawsuit contending his prison infirmary cell lacks cable television reception in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213 (1994). The district court ruled in Aswegan's favor and ordered John Emmett, the ISP security director, to install a cable television outlet in Aswegan's cell. Emmett appeals, and we reverse.

2

Although general population inmates are permitted to purchase television sets that can be connected to the cable television outlets in their cells, infirmary inmates who own televisions lack this amenity because the infirmary cells were designed without cable television hookups. Instead, infirmary inmates entertain themselves by watching television in the infirmary's community room where two cable-equipped televisions (with ample headphones) are available on a daily basis. As we understand the situation, "[c]able service is necessary for adequate television reception at [the] ISP." More v. Farrier, 984 F.2d 269, 270 (8th Cir.1993).

3

Under the ADA, no qualified individual with a disability can be denied "the benefits of the services, programs, or activities of a public entity." 42 U.S.C. § 12132. Despite the fact that Aswegan is ambulatory and his cell is hardly fifty feet from the infirmary's communal television room, the district court decided Aswegan was a qualified disabled person who was denied the benefits of cable television because he routinely lost petty disputes about channel selections with the other infirmary inmates. Believing the ADA applies to the ISP and entitles Aswegan to have unlimited access to the television programs of his choice, the district court ordered the installation of a cable television outlet in Aswegan's cell.

4

Contrary to the district court's view, Aswegan has no viable claim for relief under section 12132 because the cable television sought by Aswegan is not a public service, program, or activity within the contemplation of the ADA. We thus reverse the district court's holding that Aswegan was entitled to access to cable television beyond that already provided in the infirmary's television room. Because the relief Aswegan seeks is not covered by section 12132, we need not decide, and the district court should not have decided, whether correctional facilities are subject to the ADA.

5

We thus reverse the decision of the district court.