In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3764

Hershel R. Stanley,

Plaintiff-Appellant,

v.

Jon E. Litscher, Secretary, Wisconsin Department
of Corrections, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-C-533-S--John C. Shabaz, Chief Judge.


Submitted March 15, 2000--Decided May 16, 2000



  Before Bauer, Easterbrook, and Ripple, Circuit Judges.

  Easterbrook, Circuit Judge. Hershel Stanley, an
inmate in Wisconsin’s prison system, wants to
participate in a program for sex offenders,
believing that successful completion will give
him a boost when seeking parole or work release
and reduce the chance that he will be civilly
committed at the end of his criminal sentence.
See Wis. Stat. sec.sec. 980.01 to 980.13. Stanley
contends that, by rejecting his application to
participate in the program, defendants (officials
of Wisconsin’s Department of Corrections)
violated the Americans with Disabilities Act, the
Rehabilitation Act, and multiple parts of the
Constitution. The district judge dismissed the
complaint under 28 U.S.C. sec.1915A(b)(1) for
failure to state a claim on which relief may be
granted; as a result, the defendants have not
been served with process and have not
participated in this appeal.

  Stanley alleges--and we must take his word for
it, because all we have to go on are the
complaint, its attachments, and his appellate
brief--that prison officials deem him ineligible
for intra-prison programs designed for sex
offenders, drug abusers, and the like, because he
is a psychopath. A psychologist’s report relates:

The results of the evaluation support a
diagnosis of psychopathy. Consequently, Mr.
Stanley is not appropriate for treatment
or programs offered by DOC. Research
demonstrates that traditional treatment or
programs do not benefit individuals with
psychopathy. In some cases, such
interventions have been demonstrated to be
contraindicated.

Stanley does not disagree with the assessment
that he displays the characteristics of
psychopathy, a word mental-health professionals
apply to a personality disorder manifested in
aggressive, perverted, criminal, or amoral
behavior. Rather, he contends that federal
statutes and the Constitution require prisons to
admit psychopaths to their programs.

  As a constitutional claim, this goes nowhere.
It is far from clear that psychopathy is a mental
disease or disability of any kind, as opposed to
a complex of traits associated with antisocial
conduct. But let us assume (given the posture of
the suit) that psychopathy is a disability rather
than just a description of lawlessness.
Distinctions on the ground of disability are
proper as long as they are rational. Cleburne v.
Cleburne Living Center, Inc., 

, 439-
42 (1985); Heller v. Doe, 

, 319-21
(1993); United States v. Harris, 

,
873-76 (7th Cir. 1999). A state rationally could
conclude that psychopaths do not benefit from
intra-prison programs, that they spoil the
programs for less aggressive inmates, or both.
What is more, admission to the programs cannot be
described as a liberty or property interest. No
fixed set of criteria entitles anyone to
admission, and exclusion leaves the prisoner with
the normal attributes of confinement. Sandin v.
Conner, 

(1995); Meachum v. Fano, 

(1976); Wallace v. Robinson, 

(7th Cir. 1991) (en banc); Higgason v.
Farley, 

(7th Cir. 1996).

  Stanley errs in thinking that the eighth
amendment requires the state to "treat" his
psychopathy more aggressively--if that condition
is treatable in any way other than penal
confinement. Papers attached to his complaint
show that he saw a psychiatrist, who concluded on
May 17, 1999, that he does not require "acute
treatment." It is difficult, at all events, to
conceive of psychopathy as a "serious medical
need" within the scope of Estelle v. Gamble, 

(1976). Psychopaths are dangerous to
others, not to themselves. Equally unavailing is
Stanley’s invocation of the Ex Post Facto Clause.
Stanley does not point to any state law or
policy, adopted after his crimes, that increases
the authorized punishment.
  Invoking the due process clause and the first
amendment, Stanley contends that prison officials
retaliated against him for complaining about his
non-admission to the intra-prison programs. The
alleged retaliation took the form of transfer to
an out-of-state prison, which by itself violates
none of Stanley’s rights. Olim v. Wakinekona, 

(1983); Pischke v. Litscher, 

(7th Cir. 1999). Retaliation is a potential
wrong, however, even when a transfer does not
involve a liberty or property interest. See
Haymes v. Montanye, 

(2d Cir. 1976).
But on this subject Stanley pleaded himself out
of court, for his filings show that the
supposedly retaliatory event preceded the
grievances that Stanley filed. Time’s arrow means
that this sequence cannot have been retaliatory.
(Stanley does not contend that prison
administrators saw a grievance coming and shipped
him out of state to prevent its filing. Actually,
it is not clear from his complaint whether a
transfer was completed, as opposed to
recommended.) Lumping all of defendants’ acts
together, adding the word "conspiracy," and
citing 42 U.S.C. sec.1985 adds nothing. Ryan v.
Mary Immaculate Queen Center, 

(7th
Cir. 1999).

  This leaves for discussion only Stanley’s
arguments under the ADA and the Rehabilitation
Act. The Supreme Court has held that the ADA
applies to prisons, see Pennsylvania Department
of Corrections v. Yeskey, 

(1998),
and its reasoning is equally applicable to the
Rehabilitation Act. But given Erickson v. Board
of Governors for Northeastern Illinois
University, 

(7th Cir. 2000), and
Stevens v. Illinois Department of Transportation,
No. 98-3550 (7th Cir. Apr. 11, 2000), Stanley
must raise his claims under the ADA in state
court. Erickson and Stevens hold that sec.5 of
the fourteenth amendment does not provide
Congress with authority to enact the ADA. Because
it rests on the Commerce Clause rather than
sec.5, the eleventh amendment precludes private
litigation against the state in federal court.
Seminole Tribe v. Florida, 

(1996).
Walker v. Snyder, No. 98-3308 (7th Cir. May 16,
2000), added that suits under Title II of the ADA
(as this is) proceed against the public entity--
either in its own name, or through suits against
its officers in their official capacities.

  Stanley’s claims differ from Walker’s in two
respects. First, unlike Walker, Stanley does not
seek an accommodation of his condition but wants
the state to disregard it when deciding who may
participate in programs. Second, Stanley has
raised a claim under the Rehabilitation Act. The
first difference is potentially important, given
the emphasis Erickson placed on the accommodation
requirements in Title I of the ADA. But Erickson,
Stevens, and Walker, following Kimel v. Florida
Board of Regents, 

(2000), also
observe that the ADA exceeds the sec.5 power to
the extent it forbids states to consider aspects
of disability that are rationally related to
legitimate objectives of government. That was
what Kimel held for the traditional anti-
discrimination provisions of the Age
Discrimination in Employment Act, and as we
concluded in Erickson and Stevens that reasoning
is no less applicable to the ADA. Because we have
already held that Wisconsin did not act
irrationally in excluding psychopaths from
programs within its prisons and therefore did not
violate the Constitution, it follows that it is
the Commerce Clause, rather than sec.5, that
provides the basis of the rules Stanley seeks to
invoke.

  As for the Rehabilitation Act, 29 U.S.C.
sec.794: we agree with Kilcullen v. New York
State Department of Labor, 

, 79-80 (2d
Cir. 2000), and Garrett v. University of Alabama,

, 1218 (11th Cir. 1999), cert.
granted on a different issue, No. 99-1240 (Apr.
17, 2000), that the ADA and the Rehabilitation Act
are identical for purposes of sec.5. But the
Rehabilitation Act also is a condition on the
receipt of federal funds, and legislation under
the spending power is not affected by Kimel. See
Oak Park Board of Education v. Kelly E., 

, 935 (7th Cir. 2000). The Rehabilitation Act
is no different in this respect from the IDEA,
which Oak Park held adequate to support
litigation against states in federal court.
Accord, Little Rock School District v. Mauney,

, 831-32 (8th Cir. 1999). We
therefore agree with the fourth, ninth, and
eleventh circuits that the Rehabilitation Act is
enforceable in federal court against recipients
of federal largess. Litman v. George Mason
University, 

, 553 (4th Cir. 1999);
Clark v. California, 

, 1271 (7th
Cir. 1997); Sandoval v. Hagan, 

, 493-
94 (11th Cir. 1999). The only contrary decision,
Bradley v. Arkansas Department of Education, 

(8th Cir. 1999), has been vacated and
reheard en banc under the name Jim C. v. Arkansas
Department of Education, 

(argued
Jan. 14, 2000), and appears to be based on a
misreading of the Rehabilitation Act’s coverage.

  Stanley’s major hurdle on the merits under the
Rehabilitation Act is demonstrating that he is an
"individual with a disability" as that term is
defined in 29 U.S.C. sec.706(8), a definition
different from the one in the ADA. Section
706(8)(F) excludes from the protected class
persons who suffer from "sexual behavior
disorders" or compulsive criminality, yet
Stanley’s claims arise from those behavioral
characteristics. He wants admission to programs
that he believes would help him overcome his
sexual behavior disorder and his persistently
antisocial behavior, but these very disorders
preclude him from obtaining benefits under the
Rehabilitation Act.

  The judgment of the district court is affirmed,
except to the extent that court addressed on the
merits Stanley’s claims under the ADA. The
judgment is vacated in part, and the case is
remanded with instructions to dismiss for want of
jurisdiction the claims under that statute.