United States District Court, Middle District of Pennsylvania
December 14, 1999
RONALD R. YESKEY, PLAINTIFF,
COMMONWEALTH OF PENNSYLVANIA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Caldwell, District Judge.
This case presents the question whether the physical exercise
required by a penal boot camp program is a "major life activity"
under the Americans With Disabilities Act (ADA). 42 U.S.C. § 12131-12165.
The plaintiff, Ronald R. Yeskey, sued under Title II of the
ADA, claiming that Pennsylvania prison officials violated the Act
when they disqualified him from participating in Pennsylvania's
boot camp program on the basis of high blood pressure, thereby
preventing him from significantly shortening his period of
The defendants are: the Commonwealth of Pennsylvania,
Department of Corrections (Department); Joseph D. Lehman, former
secretary of the Department; Jeffrey A. Beard, former
superintendent of the State Correctional Institution at Camp Hill
(SCI-Camp Hill); and Jeffrey K. Ditty, director of the Central
Diagnostic and Classification Center, Unit No. 2 at SCI-Camp
By way of some procedural background, we had previously
dismissed this case, ruling that the ADA did not apply to state
prisons. The Third Circuit reversed, 118 F.3d 168 (3d Cir. 1997),
and the Supreme Court affirmed the Third Circuit's decision.
524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).
We are considering the defendants' motion for summary judgment,
which among other things, argues that the plaintiff has no ADA
claim because the physical exercise required by the boot camp
program is not a major life activity under the Act. Since boot
camp exercise is not a "major life activity," an essential
element of an ADA claim, the plaintiff has no cause of action for
his exclusion from the boot camp program, a cause of action based
on the plaintiff's belief that the defendants regarded his high
blood pressure as substantially limiting the major life activity
We will examine the motion under the well-established standard.
See Showalter v. University of Pittsburgh Medical Center,
190 F.3d 231, 234 (3d Cir. 1999).
Based on the parties' submissions, the following is the
background to this litigation. In June 1992, the Department began
operating a boot camp pursuant to Pennsylvania's Motivational
Boot Camp Act. See 61 P.S. §§ 1121-1129 (Purdon 1999). The boot
camp program requires a qualifying inmate to complete a six-month
program of rigorous physical activity, intensive regimentation
and discipline. See 61
P.S. § 1123. The inmate also does manual labor on public projects
in a wilderness area around the boot camp. In return for
successfully completing the program, the inmate is guaranteed
parole at the end of the six months, regardless of any minimum
sentence imposed. 61 P.S. § 1127. Acceptance into the program
thus has an obvious benefit for an inmate.
As the name of the program makes clear, it imitates a military
boot camp. The inmates are awakened at 5:30 a.m. to a heavily
regimented day, which includes physical exercises taken from the
United States Army and the United States Marine Corps manuals on
physical fitness. The inmates also attend school and drug and
alcohol therapy sessions.
Led by a trained physical fitness drill instructor, the
physical-exercise sessions are conducted twice a day, seven days
a week, for about one hour to a hour and 15 minutes each time.
Typical exercises are jumping jacks, squat thrusts, mountain
climbers and push-ups in multiple repetitions. For variety, the
boot camp manual suggests "grass drills" as alternative exercises
but cautions that there should be a 10 to 15 minute time limit on
these drills since they are so strenuous. There is also
instruction for marching in formation, but that takes up very
little of each session's time compared to the exercises. Each
session is followed by a minimum two-mile run in a military
"double-time" formation, a pace of an eight and one-half minute
mile for each mile run. An inmate is expected to improve on the
two-mile distance as the training progresses.
Inmates are also assigned to work crews five days a week. The
work crews are assigned manual labor jobs in wilderness areas
surrounding the boot camp. Examples are stream restoration
projects creating dams that involve cutting down large trees with
nonpower saws, clearing plots of scrubs and small trees for elk
feeder plots, and hauling stone and sand in wheel barrels.
On May 20, 1994, plaintiff began serving an 18 to 36 month
sentence at SCI-Pittsburgh, with a recommendation from the
sentencing judge that he be assigned to the boot camp program.
Upon arrival at the prison, he was given a physical examination.
His blood pressure reading was 140/96, considered high. On May
25, 1994, his blood pressure was taken again and read 145/100.
After this second reading, a doctor diagnosed plaintiff with mild
hypertension (high blood pressure) and prescribed Tenormin for a
On May 27, 1994, the plaintiff was transferred from
SCI-Pittsburgh to SCI-Camp Hill. He was interviewed for the boot
camp and met all the qualifications except one. A prison doctor
medically disapproved him based on his high blood pressure.
A boot camp selection committee chooses the inmates for the
program, but it cannot override a doctor's medical decision. On
June 16, 1994, the committee, including defendant Ditty,
unanimously decided that Yeskey was ineligible for the boot camp
program for two reasons. First, the plaintiff was medically
disapproved because of a history of hypertension. Second, he had
an outstanding detainer for the offenses of driving under
suspension and driving under the influence. The detainer was
apparently a mistake and was removed from Yeskey's records on
June 30, 1994. Nonetheless, the plaintiff's blood pressure denied
him entry into the boot camp.
Yeskey served his sentence in state prison, being paroled four
months before his maximum sentence date. While incarcerated,
plaintiff did not suffer from any impairment or ailments that
limited his ability to engage in any programs, activities, or
institutional work assignments that were available to all inmates
within the general prison population.
A. Whether the Individual Defendants Can Be Liable Under the
The defendants argue that the individual defendants cannot be
held liable for
violations of Title II of the ADA. In support, they cite
Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir.
1999) (en banc), petition for cert. filed, 68 U.S.L.W. 3164
(U.S. Sept. 8, 1999) (No. 99-423); Montez v. Romer,
32 F. Supp.2d 1235, 1240 (D.Colo. 1999); Smith v. University of the
State of New York, 1997 WL 800882 (W.D.N.Y.); and Randolph v.
Rodgers, 980 F. Supp. 1051, 1060 (E.D.Mo. 1997), vacated, rev'd,
and remanded on other grounds, 170 F.3d 850 (8th Cir. 1999). All
of these cases have held that individuals cannot be liable for
violations of Title II of the ADA. But see Niece v. Fitzner,
922 F. Supp. 1208 (E.D.Mich. 1996).
The plaintiff has not opposed this aspect of the defendants'
motion, and we agree with the cited cases. As reasoned by the
Eighth Circuit in Alsbrook, individuals are not liable under
Title II because it prohibits discrimination in programs of a
"public entity" or discrimination "by any such entity,"
42 U.S.C. § 12132, and "public entity" is not defined in Title II's
definitional section, 42 U.S.C. § 12131, to include individuals.
184 F.3d at 1005 n. 8. The individual defendants are therefore
entitled to summary judgment on this basis.*fn1
B. Whether the Physical Exercise Required By a Penal Boot Camp
Program Is a "Major Life Activity" Under the ADA.
Tracking the language of section 12132, we note that to
establish a claim under Title II of the ADA, the plaintiff must
show that he is a qualified individual with a disability who has
been denied participation in the boot camp program by reason of
the disability. In pertinent part, section 12132 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.
Establishing a disability requires the plaintiff to show one of
three things: "(A) a physical or mental impairment that
substantially limits one or more of the major life activities;
(B) a record of such an impairment; or (C) being regarded as
having such an impairment." 42 U.S.C. § 12102(2). As the last
provision shows, a plaintiff need not have an impairment, just be
regarded as having one. See Murphy v. United Parcel Service,
Inc., 527 U.S. 516, 119 S.Ct. 2133
, 2137, 144 L.Ed.2d 484 (1999)
("a person is `regarded as' disabled within the meaning of the
ADA if a covered entity mistakenly believes that the person's
actual, nonlimiting impairment substantially limits one or more
major life activities").
At the start of this litigation, the plaintiff proceeded under
the theory that he did have a disability and that the defendants
had discriminated against him by not making a reasonable
accommodation for his high blood pressure. Then the Supreme Court
decided Sutton v. United Air Lines, Inc., 527 U.S. 471, 119
S.Ct. 2139, 144 L.Ed.2d 450 (1999), which ruled that an
impairment corrected by medication or other measures is not a
disability as defined in the ADA because it would not
substantially limit a major life activity.
The plaintiff now proceeds solely on the theory that, even
though he was not disabled, the defendants mistakenly regarded
him as having a disability and thus refused him entry into the
boot camp program. Specifically, he argues that they regarded his
high blood pressure as an impairment limiting the major life
activity of exercise. In support, he cites Rouse v. Plantier,
997 F. Supp. 575 (D.N.J. 1998), vacated on other grounds,
182 F.3d 192 (3d Cir. 1999); Mendez v. Gearan, 956 F. Supp. 1520
(N.D.Cal. 1997); Abbasi v. Herzfeld & Rubin, P.C., 1995 WL
303603 (S.D.N.Y.); and Turco v.
Hoechst Celanese Chemical Group, Inc., 906 F. Supp. 1120
(S.D.Tex. 1995), as cases which have recognized exercise as a
major life activity.
In moving for summary judgment, the defendants contest Yeskey's
position that exercise satisfies this essential element of his
claim. In their view, exercise is not a major life activity. The
term "major life activity" is not defined in the statute, so the
defendants begin with the regulatory definition of the term
"major life activities" promulgated by the Attorney General for
cases arising under Title II. The definition sets forth a
nonexhaustive list of "functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working," 28 C.F.R. § 35.104(2), all
functions that can be grouped together as required for daily
The defendants then rely on judicial interpretations of the
statutory term "major life activity" as it appears in the
Act.*fn2 In Reeves v. Johnson Controls World Services, Inc.,
140 F.3d 144 (2d Cir. 1998), the court stated:
In the absence of a statutory definition, we
construe statutory terms such as "major life
activities" in accordance with their ordinary and
natural meaning. See Smith v. United States,
508 U.S. 223, 228, 113 S.Ct. 2050, 2053-54, 124 L.Ed.2d
138 (1993). The term "major life activit[y]," by its
ordinary and natural meaning, directs us to
distinguish between life activities of greater and
lesser significance. See Runnebaum, 123 F.3d at 170
("[A]n activity qualifies under the statutory
definition as one of the major life activities
contemplated by the ADA if it is relatively more
significant or important than other life
activities."); Abbott, 107 F.3d at 940 (dictionary
definitions of the term "major" "strongly suggest
that the touchstone for determining an activity's
inclusion under the statutory rubric [of major life
activity] is its significance").
Id. at 151 (brackets in original). See also Bragdon v.
Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2205, 141 L.Ed.2d 540
(1998) (the word "major" denotes "comparative importance" and
suggests the activity must have "significance") (quoted case
In Reeves, the court also noted that, in contrast to
determining whether a disability exists, what constitutes a major
life activity should not be decided on a case-by-case basis as it
relates to a particular plaintiff; to do so would lessen the
burden of showing a substantial limitation. Instead, a major life
activity is determined independently of the plaintiff's
situation. As the court put it: "We do not think that such major
life activities as seeing, hearing, or walking are major life
activities only to the extent that they are shown to matter to a
particular ADA plaintiff." Reeves, supra, 140 F.3d at 152;
Colwell, supra, 158 F.3d at 642; Pack v. Kmart Corp.,
166 F.3d 1300, 1305 (10th Cir. 1999), cert. denied, (___ U.S. ___,
120 S.Ct. 45, 145 L.Ed.2d 40 (1999)).
Employing these principles, the defendants argue that:
[P]articipation in Pennsylvania's boot camp program
is not a major life activity. Engaging in rigorous
squat thrusts, push-ups, jumping jacks, mountain
climbers and two-mile military style formation runs
are hardly comparable to the per se major life
activities of caring for one's self, performing
walking, seeing, hearing, speaking, breathing,
learning and working.
(Defendants' supporting brief at p. 11) (brackets added).
The defendants acknowledge that it mattered greatly to the
plaintiff that he enter the boot camp but, based on the foregoing
cases, argue that the importance of an activity to an individual
plaintiff is not sufficient. In their view, the physical activity
required by the boot camp is not a major life activity because it
is not significant or important that a person be able to perform
The plaintiff has two responses to this argument. First, as
noted above, he argues that exercise has been held to be a major
life activity. Second, he contends that the boot camp is not very
rigorous, that it is "more like the description embodied in a
memo from Jeffrey Ditty in which he depicted it as `a more
regimented and structured incarceration, which includes standing
at attention, learning basic facing movements (about face, left
face, right face, etc.)' and attending classes." (Opposition
brief at p. 4) (footnote omitted).
We reject the plaintiff's first argument. None of the cases he
cites support it. They do mention exercise but in a context with
other activities that are major life activities under the ADA;
none of them address exercise alone as major life activity.
Additionally, in some of these cases the mention of exercise
refers to the exercise of daily living.
For example, in Rouse, supra, a class of diabetic prison
inmates were challenging the alleged denial of program
participation. In deciding that the inmates had stated a claim
for injunctive relief under the ADA, the court did note that the
plaintiffs "may . . . be substantially limited in the exercise
regime which they can engage in," 997 F. Supp. at 581, but it also
noted other life activities diabetes may impair: the types of
foods the prisoners could eat, and, "perhaps most importantly,"
id., activities affected "by the numerous special complications
diabetes presents for them," id., such as mobility and
eyesight. Id. at 582.
This case does not assist the plaintiff because the court did
not address whether exercise alone was a major life activity and
the court did not specify what kind of exercise regime would be a
major life activity. Indeed, it considered mobility and eyesight
as more important activities.
The other cases can be similarly distinguished. In Mendez,
supra, the plaintiff's depression "affected her ability to work,
learn, socialize, sleep," as well as "exercise." 956 F. Supp. at
1524. In Abbasi, supra, the plaintiff alleged not only an
inability to engage in work and "strenuous physical exercise,"
1995 WL 303603 at *2, but also that he could "no longer walk up
flights of stairs, stand for long periods of time, or carry heavy
boxes or files." Id. Finally, in Turco, supra, the
plaintiff's diabetes "rendered him unable to walk, to ride a
bike, or to do any other type of physical exercise . . ." 906
F. Supp. at 1129.
We also reject the plaintiff's second argument that the boot
camp program does not require strenuous physical exercise and
that it is mostly just marching in parade. The support for this
allegation, a line or two taken from a memo written by defendant
Ditty, is taken out of context and does not reflect the true
nature of the program. There is some marching in military
formation, but the uncontested deposition of the deputy commander
at the boot camp establishes that the program is indeed rigorous.
As noted above, it consists of about two hours of calisthenics
and two runs of two miles or more seven days a week.
We agree with the defendants that this is strenuous physical
exercise and that it is not a major life activity within the
meaning of the ADA. As noted above, a major life activity must be
significant or important relative to other activities. Strenuous
physical exercise is not significant or important when compared
to other life activities designated as major, such as walking,
seeing, hearing, speaking, breathing, learning, and working.
As the defendants have argued, "[a] major life activity also
must be `a basic activity that the average person in the general
population can perform with little or no difficulty.'" McAlindin
v. County of San Diego, 192 F.3d 1226, 1233 (9th Cir.
1999) (quoting Pack, supra, 166 F.3d at 1305). The average
person in the general population would not be able to perform the
exercise required by the boot camp. Hence, it is not a major life
Additionally, while the boot camp was an activity important to
the plaintiff, an activity's importance to an individual
plaintiff does not make it a major life activity under the ADA.
Reeves, supra, 140 F.3d at 152; Colwell, supra, 158 F.3d at
642; Pack, supra, 166 F.3d at 1305.
Since the plaintiff has not satisfied one of the elements of
his ADA claim, the claim must fail. "The statute is not operative
. . . unless the impairment affects a major life activity."
Bragdon, supra, 524 U.S. at ___, 118 S.Ct. at 2204, 141 L.Ed.2d
540. We will issue appropriate order.