Matthew Kiman v . NH DOC CV-01-134-B 12/19/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Matthew Kiman

v. Civil No. 01-134-B Opinion No.

New Hampshire Department of Corrections, et al.

MEMORANDUM AND ORDER

The United States Supreme Court is in the midst of a

reassessment of its Eleventh Amendment jurisprudence that began

with Seminole Tribe of Fla. v . Florida,

4 , 59-66

(1996), and finds its most recent expression in Bd. of Trustees

of the Univ. of Ala. v . Garrett,

(2001). In

Garrett, the Court held that Congress did not effectively

abrogate Eleventh Amendment immunity with respect to Title I of

the Americans with Disabilities Act of 1990 (“ADA”). See

In

doing s o , the Court expressed no opinion as to whether the

Eleventh Amendment also bars damage claims based on Title II of

the ADA. See

at 3 6 0 , n.1. Defendant’s motion to dismiss

squarely presents this question left open in Garrett. Garrett provides specific guidance as to how a court should

evaluate a claim that Congress has abrogated Eleventh Amendment

immunity. See, e.g., Garrett,

. Three circuit

courts have applied Garrett’s methodology to claims based on

Title I I . See Reickenbacker v . Foster,

(5th Cir.

2001); Garcia v . S.U.N.Y. Health Sciences Center of Brooklyn,

(2d Cir. 2001); Thompson v . Colorado,

(10th Cir. 2001). All three have concluded that the claims

before them were barred by the Eleventh Amendment. See

Reickenbacker,

, at * 5 - 7 ; Garcia,

; Thompson,

. After carefully

reviewing these decisions and the parties’ memoranda in this

case, I am satisfied that the Eleventh Amendment deprives the

court of jurisdiction to consider plaintiff’s Title II claim. No

purpose would be served by recapitulating the analyses provided

by the Second, Fifth, and Tenth Circuits.1

1 The Second Circuit has suggested that the Eleventh Amendment does not bar a Title II claim if the plaintiff alleges and proves that the defendant was motivated by discriminatory animus or ill will based on disability. See Garcia,

. Because the plaintiff in this case does not allege that he was the victim of intentional discrimination, I need not determine whether the Second Circuit’s conclusion on this point is correct.

-2- Defendant’s motion to dismiss (doc. n o . 11) is granted. I

decline to exercise supplemental jurisdiction over plaintiff’s

state law claims. See

(c)(3).

SO ORDERED.

Paul Barbadoro Chief Judge

December 1 9 , 2001

cc: Nancy S . Tierney, Esq. Andrew B . Livernois, Esq.

-3-