RONALD CHISOLM v. PATRICK MCMANIMON, JR., DIRECTOR OF MERCER COUNTY DETENTION CENTER; MERCER COUNTY COURT
No. 00-1865
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
December 28, 2001
2001 Decisions. Paper 302
Before: ROTH, BARRY and AMBRO, Circuit Judges
UNITED STATES OF AMERICA, Intеrvenor; Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 95-cv-00991); District Judge: Honorable Mary Little Cooper; Argued on July 24, 2001
Turnpike Metroplex
190 Highway 18 North, Suite 200
East Brunswick, NJ 08816
Mary Vargas, Esquire (Argued)
Sarah Geer, Esquire
Claudia Gordon, Esquire
National Association of the Deaf Law Center
814 Thayer Avenue
Silver Spring, MD 20910
Attorneys for Appellant
Andrew J. Schragger, Esquire
Ashley Bostic-Hutchinson, Esquire (Argued)
Office of County Counsel, County of Mercer
640 South Broad Street
McDade Administration Building
Trenton, NJ 08650
Doulgass L. Derry, Esquire (Argued)
Office of Attorney General of New Jersey
Department of Law & Public Safety
Richard J. Hughes Justice Complex
Trenton, NJ 08625
John J. Farmer, Jr. Attorney General of New Jersey
Nancy Kaplen Assistant Attorney General
Diane M. Lamb Deputy Attorney General
Office of Attorney General of New Jersey
25 Market Street
Trenton, NJ 08625
Attorneys for Appellees
United States Department of Justice Civil Rights Division
P.O. Box 66078
Washington, DC 20035-6078
Attorney for Intervenor
OPINION OF THE COURT
ROTH, Circuit Judge:
In this appeal, we must resolve two issues. First, we consider whether the Eleventh Amendment bars suit against a county court, based on an alleged failure to provide interpretive services, where the judicial, but not all the administrative, functions of the court have been merged by steps into a unified state court system. Under the facts here, we hold that suit is not barred. Second, we review whether the District Court properly granted summary judgment, dismissing claims brought by a disabled inmate under Title II of the Americans with Disabilities Act,
I. Factual and Procedural History
A. Ronald Chisolm‘s Detention at the Mercer County Detention Center
On Saturday, September 10, 1994, while driving in Mercer County, New Jersey, Ronald Chisolm, a deaf person who communicates primarily through American Sign Language (ASL), was stopped by officers of the Princeton Police Department. The officers arrested Chisolm pursuant to a Bucks County, Pennsylvania, bench warrant. The
MCDC, which has since closed, was a maximum security, pretrial detention facility located in Trenton, New Jersey. It housed detainees who were awaiting extradition to other states or were awaiting trial on indictable charges, ranging frоm murder to narcotics-related offenses. When inmates arrived at MCDC during the week, they were generally processed within a few hours. Processing occurred at the intake unit (4 North Living Unit) and involved a classification assessment to determine the inmate‘s security threat, custody status, and appropriate placement within MCDC. However, the MCDC‘s classification staff worked only Monday through Friday. On weekends, newly arrived detainees were “locked-down” in their cells either in the 4 North Living Unit or in the Receiving and Discharge Unit (R&D) to keep them apart from the general inmate population before classification. These unclassified detainees consumed their meals in their cells and did not have television or telephone privileges.
When Chisolm arrived at MCDC on Saturday afternoon, an MCDC employee attempted to interview him. Chisolm indicated to the employee that he was deaf and could not understand her. Chisolm then requested an ASL interpreter and a TDD.1 In addition, he asked that his hearing roommate, Kenneth Knight, be contacted. Chisolm contends that MCDC failed to provide the requested aids and failed to contact Knight. He also claims that MCDC did not provide him with any initial intake information, such as
Later that afternoon, Chisolm was taken to an MCDC nurse. Chisolm claims that he was upset, but, without an ASL interpreter, he could not explain why he was upset. MCDC asserts, however, that Chisolm was given paper and a pencil in order to communicate with MCDC personnel. The MCDC nurse conducted a medical evaluation of Chisolm and determined that he might be a suicide risk. MCDC contends that Chisolm‘s behavior caused concern that he might harm himself.
Chisolm was kept in solitary lock down in cell 304 of R&D from Saturday, September 10, until Tuesday, September 13. During this time, he did not have access to a television set bеcause there wasn‘t one in R&D. Moreover, pursuant to MCDC policies, Chisolm could not have access to a telephone until he was classified.
On Monday, September 12, Chisolm was taken to penal counselor Jennifer Rubin for custody classification. Rubin gave him a numeric assessment of 10, which resulted in a custody classification of “medium.”2 Notwithstanding the fact that Chisolm had worked for the U.S. Postal Service for 13 years and had lived at the same address for 3 years, Rubin described him as an unemployed “vagrant.” This error added 2 points to Chisolm‘s assessment, resulting in his medium custody classification. Without this error, Chisolm‘s custody classification would have been “minimum.”
Also on the morning of September 12, Warden McManimon informed another penal counselor, Donna
On September 13, Chisolm was transferred to cell 24 of 4 North Living Unit, where he remained until his discharge the next day. This unit had a television set equipped with closed captioning. Warden McManimon stated that if Chisolm wanted to have the closed captioning activated, Chisolm only needed to request the service. Chisolm contends, however, that he did not request closed captioning because he did not know that it was available. While in 4 North Living Unit, Chisolm was able to place telephone calls using his own TDD. MCDC did not impose its timе limit of 15 minutes for telephone use on Chisolm because of the additional time necessary to type and read text on the TDD.
B. Chisolm‘s Appearance Before the Mercer County Vicinage
On September 14, 1994, Chisolm was brought before the Mercer County Vicinage for an extradition hearing. There was no ASL interpreter present to aid Chisolm. For this reason, the judge postponed the extradition hearing and sent Chisolm back to MCDC. The hearing was rescheduled for September 20, which was the earliest date that the Vicinage‘s ASL interpreter was available. After his return to MCDC, Chisolm called Knight by TDD. Knight contacted an attorney, Clara Smit.
Smit arranged to have an ASL interpreter available the next morning to interpret court proceedings. Smit also contacted the Bucks County District Attorney‘s office and had Chisolm‘s bench warrant quashed. Chisolm was then
C. Relevant History of the Vicinage3
The Vicinage originally was organized as one of many locally-funded county courts authorized under Article IV of the New Jersey Constitution. See
In connection with the trаnsition from a county court system to a state court system and in order to implement the 1992 Amendment, the New Jersey legislature enacted the State Judicial Unification Act,
D. Procedural History
On March 6, 1995, Chisolm filed a complaint in United States District Court for the District of New Jersey against McManimon in his capacity as Warden of MCDC and against the Vicinage. He alleged that MCDC discriminated against him, while he was detained, by failing to provide him with an ASL interpreter, a TDD, and television captioning service, in violation of Title II of the ADA, Seсtion 504 of the Rehabilitation Act,
On June 11, 1997, the District Court granted summary judgment in favor of the Vicinage on Chisolm‘s ADA, Rehabilitation Act, and
On May 18, 2000, the District Court granted summary judgment for MCDC (McManimon in his official capacity) on Chisolm‘s ADA, Rehabilitation Act and NJLAD claims and dismissed all of Chisolm‘s claims.6 Chisolm v. Manimon, 97 F.Supp.2d 615 (D. N.J. 2000). The court concluded that “any rational trier of fact would find that reasonable accommodations were provided to Chisolm by defendant, and that any requested accommodations which were not provided . . . would not have been reasonable in the setting of a correctional institution.”
Chisolm timely appealed.
II Jurisdiction and Standard of Review
The District Court had jurisdiction over this case pursuant to
We exercise plenary review over the grant of summary judgment, applying the same standard that the lower court should have applied. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
A. Sovereign Immunity of the Vicinage
Before turning to the merits of Chisolm‘s claims against MCDC and the Vicinage, we must address whether, under the Eleventh Amendment to the U.S. Constitution, the Vicinage is immune from Chisolm‘s suit. Having raised the issue sua sponte, the District Court held that the Vicinage did not enjoy Eleventh Amendment sovereign immunity. Although we reach the same conclusion as the District Court, we do so for different reasons.7 Specifically, we hold that the Vicinage cannot assert sovereign immunity in this case because at the time of the actions giving rise to this suit and at the time this suit was brought, the Vicinage did not qualify as an entity that is an arm of the state. So holding, we need not address (1) whether the Vicinage waived the immunity defense by its conduct in litigation or (2) whether Congress validly abrogаted Eleventh Amendment immunity when enacting Title II of the ADA.
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
While Eleventh Amendment immunity may be available for states, its protections do not extend to counties. See Lincoln County v. Luning, 133 U.S. 529 (1890). Rather, for Eleventh Amendment immunity to apply, a court must determine that a state is a real party-in-interest. See, e.g., Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464 (1945). Accordingly, Eleventh Amendment immunity will not be available to a state merely by virtue of the fact that such state is named formally as a defendant. See, e.g., Ex parte New York, 256 U.S. 490, 500 (1921) (“As to what is to be deemеd a suit against a State, . . . it is now established that the question is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record.“). Conversely, Eleventh Amendment immunity may be available to a state party-in-interest notwithstanding a claimant‘s failure to formally name the state as a defendant. See, e.g., Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978); Ford Motor, 323 U.S. at 464.
In determining whether an entity is an arm of the state and, therefore, entitled to Eleventh Amendment immunity, we consider the following three factors: (1) whether payment of a judgment resulting from the suit would come from the state treasury, (2) the status of the entity under state law, and (3) the entity‘s degree of autonomy. See Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (en banc). A party asserting Eleventh Amendment immunity bears the burden of proving its applicability. See Christy v. Pennsylvania Turnpike Comm‘n, 54 F.3d 1140, 1144 (3d Cir. 1995). Although no single factor is dispositive, we have often held that the most important factor is whether a judgment
Application of the Fitchik factors to the Vicinage must be viewed in the context of the unification of the New Jersey court system. The events giving rise to Chisolm‘s suit against the Vicinage, as well as the filing of the suit itself, transpired during the Vicinage‘s transition from a county court to a state court. The extent to which the Vicinage may be considered an arm of the state — as opposed to a county entity — is complicated by this transition. We conclude that under the circumstances of this case, the Vicinage was not acting as an “arm of the state” under Fitchik.8
With respect to the second Fitchik factor, status under
From the above we can see that the Vicinage performs different functions, judicial and administrative, in different capacities. The Vicinage has performed many of its judicial functions in its capacity as a state entity under New Jersey law. However, when the Vicinage provides, or fails to provide, interpretive services, it performs, or fails to perform, a function which is the administrative responsibility of a county under New Jersey law. When we apply the second Fitchik factor, we must consider the capacity in which the entity was acting when its actions gave rise to the plaintiff‘s claim. See Carter v. City of Philadelphia, 181 F.3d at 353 (holding that although a district attorney may be deemed a state actor with regard to prosecutorial functions, she was a local policymaker with respect to administrative matters). Because Chisolm‘s claim against the Vicinage is based on its failure to provide interpretive services, this suit relates to the Vicinage‘s function as a county entity under state law. Accordingly, the second factor also weighs against the Vicinage‘s claim of sovereign immunity.
The third and final Fitchik factor is the Vicinage‘s degree of autonomy. According to the New Jersey Constitution,
Balancing the Fitchik factors discussed above, we conclude that the Vicinage was not acting as an “arm of the state” either at the time of the alleged discrimination or at the time that the suit against it was filed. For these reasons, we conclude that Chisolm‘s suit against the Vicinage is not barred by the Eleventh Amendment.
B. Review of Summary Judgment
We turn now to our consideration of the propriety of granting summary judgment in favor of MCDC and the Vicinage. Title II of the ADA 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.
Because Title II was enacted with broad language and directed the Department of Justice to promulgate regulations as set forth above, the regulations which the Department promulgated are entitled to substantial deference. Blum v. Bacоn, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982). (“[T]he interpretation of [the] agency charged with the administration of [this] statute is entitled to substantial deference.“).
Helen L., 46 F.3d at 331-32 (emphasis added).
Appellees do not dispute that Chisolm is a qualified individual with a disability. Moreover, the fact that he was imprisoned at the time of the alleged discrimination does not preclude him from receiving the benefits of the ADA. Title II of the ADA applies to services, programs and activities provided within correctional institutions. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998). We must determine, therefore, whether, in light of the regulations promulgated by the Attorney General, there are issues of material fact as to whether MCDC and the Vicinage discriminated against Chisolm in violation of Title II.
We have recognized that law developed under the Rehabilitation Act is applicable to Title II of the ADA, see Helen L. v. DiDario, 46 F.3d 325, 330-31 & n.7 (3d Cir. 1995), and that Congress has directed that Title II of the ADA be interpreted to be consistеnt with the Rehabilitation Act. See Yeskey v. Commonwealth of Pennsylvania Dept. of Corrections, 118 F.3d 168, 170 (3d. Cir. 1997). Moreover, New Jersey courts typically look to federal anti-discrimination law in construing NJLAD. Lawrence v. Nat‘l Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir. 1996). Therefore, we will confine our discussion to the ADA with the understanding that the principles will apply equally to the Rehabilitation Act and NJLAD claims.
1. Title II Regulations Applicable to MCDC and the Vicinage
Generally, regulations require public entities to take “appropriate steps” to ensure that communication with a disabled person is as effective as communication with others.
The lone regulatory limitation on this duty is embodied in Section 35.164 of the subpart.
“In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.”
Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD‘s), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.
28 C.F.R. § 35.104(1) . The Appendix to the regulations explains that: [A]lthough in some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Generally, factors to be considered in determining whether an interpreter is required inсlude the context in which the communication is taking place, the number of people involved, and the importance of the communication.28 C.F.R. Pt. 35, App. A .
Chisolm argues that MCDC discriminated against him on the basis of his disability on three separate occasions. First, Chisolm claims that MCDC violated Title II of the ADA, the Rehabilitation Act, and the NJLAD when it failed to provide him with an ASL interpreter during its intake procedure and medical evaluation. Chisolm alleges that this failure deprived him of basic intake information including the reason for his detention and the rules and regulations of MCDC. Further, Chisolm claims that the failure to provide an ASL interpreter during his intake and evaluation resulted in his receiving inappropriate classifications. The second basis for Chisolm‘s claim against MCDC arises out of MCDC‘s failure to provide Chisolm with a TDD device. According to Chisolm, this failure denied him the privilege of placing telephone calls enjoyed by similarly situated
MCDC has asserted that, in reviewing Chislom‘s claims, we must consider the necessity of providing a particular auxiliary aid or service in light of the prison setting. Citing Turner v. Safley, 482 U.S. 78 (1987), MCDC contends that courts must defer to prison management decisions, specifically with respect to security.11 But see Yeskey v. Penna. Dept. of Corrections, 118 F.3d 168, 174-75 & n. 8 (3d Cir. 1997) (declining to decide “the controversial and difficult question” of whether the Turner standard for judicial deference should be applied to statutory as well as constitutional claims), aff ‘d on other grounds, 524 U.S. 206 (1998). Although at least one court has adopted the Turner test for judicial deference to prison management decisions in the ADA context, see Gates v. Rowland, 39 F.3d 1439, 1446-1447 (9th Cir. 1994), we need not reach the issue here. MCDC‘s repetition of the word “security” in its brief and general references to “security” issues in the warden‘s deposition are not supported by any showing that “security” in fact is implicated in making available to an inmate at appropriate times the services and aids that Chisolm requested.
MCDC also contends generally, and the District Court found as a matter of law, that because Chisolm was incarcerated for only four days, MCDC was not obligated to provide aids or services applicable in cases involving “longer term” inmates. See e.g., Duffy, 98 F.3d at 455 (involving a deaf inmate incarcerated for over ten years); Clarkson v. Coughlin, 898 F. Supp. 1019, 1045-46 (S.D.N.Y. 1995) (finding that long term state inmates were entitled to sign language interpreters for reception, testing, and classification process resulting in permanent assignments to prisons). However, MCDC does not cite any regulation, statute or case either distinguishing between the needs of
In addition, with respect to the first two bases of Chisolm‘s claim, the failure to provide an ASL interpreter and the failure to promptly provide a TDD, MCDC argues that it employed alternative but effective auxiliary aids. The most obvious problem with this argument is that it conflicts with the regulatory mandate that a public entity honor a disabled person‘s choice of auxiliary aid or service. See
Generally, the effectiveness of auxiliary aids and/or services is a question of fact precluding summary judgment. Compare Randolph v. Rodgers, 170 F.3d 850, 860 (8th Cir 1999) (reversing grant of summary judgment to deaf inmate because whether provision of a sign language interpreter during disciplinary hearing was an appropriate auxiliary aid was a fact question) and Duffy v. Riveland, 98 F.3d 447, 454, 455 (9th Cir. 1996) (holding that the qualifications of an interpreter and the deaf inmate‘s ability to communicate in prison disciplinary hearing were fact questions precluding summary judgment) with McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 855 (5th Cir. 1993) (granting summary judgment to defendant law school, despite questions of fact as to requested aid, because requested aid would fundamentally modify program). As discussed more
Nor does the record suggest that MCDC is exempted under
Having addressed the general arguments raised by MCDC in response to Chisolm‘s claim, we now turn to MCDC‘s specific responses to the individual bases of Chisolm‘s claim.
a. Failure to Provide an ASL Interpreter
Chisolm claims that MCDC violated Title II of the ADA when it failed to provide him with an ASL interpreter during his intake and classification. That MCDC did, in fact, fail to provide Chisolm with an ASL interpreter is not in dispute. However, MCDC responds to this claim by suggesting that its personnel were able to communicate with Chisolm effectively by lipreading and writing on a pad of paper.
In determining that MCDC demonstrated the effectiveness of these alternative auxiliary aids provided to Chisolm, the District Court did not resolve all reasonable factual inferences in favor of Chisolm, the non-moving party. Chisolm presented evidence indicating that ASL was his primary language of communication and that he was not proficient in either lipreading or written English.12 From
In support of its conclusion that the combination of lipreading and note writing was an effective auxiliary aid, MCDC cites to a single statement made by Chisolm during a deposition. In this statement, Chisolm confirms that the MCDC personnel with whom he was communicating did everything that he requested in writing.
Finally, there is no indication in the record that, under
b. Failure to Provide a TDD
MCDC also resists Chisolm‘s claim that MCDC unlawfully discriminated against him by failing to promptly provide him with access to a TDD. To the extent that other, non-disabled inmates had access to communication by telephone, MCDC was required to provide Chisolm with such access on nondiscriminatory terms. See
Citing McManimon‘s affidavit, MCDC argues that a TDD machine and/or its constituent parts could be used as a weapon and that Chisolm would pose a security risk if allowed “unrestricted access to his TTD on the living unit.” Like MCDC‘s broad characterization of Chisolm‘s request for an ASL interpreter, this statement may overstate the safety or security threat posed by Chisolm‘s request for an auxiliary aid. It is not clear that Chisolm requested -- or would have needed -- “unrestricted” access to a TDD. Furthermore, we do not know whether this auxiliary aid could have been provided somewhere other than “on the living unit.” Chisolm argues that he merely wanted access to a TDD so that he could place calls like other detainees.
In lieu of providing Chisolm with his choice of auxiliary aid upon request, MCDC made two exceptions to its institutional rules in an effort to accommodate Chisolm‘s needs. First, MCDC permitted Donna Walker to place a telephone call to Knight on Chisolm‘s behalf. Second, after Chisolm was provided with an TDD, MCDC allowed Chisolm to place calls in excess of the usual fifteen minute
c. Failure to Activate Closed Captioning
In response to Chisolm‘s claim that MCDC discriminated against him when it failed to activate closed captioning on a prison television, both MCDC and the District Court note that Chisolm failed to request closed captioning. Citing Randolph, 170 F.3d at 858, the District Court and MCDC maintain that MCDC had no obligation to activate the closed captioning absent a specific request from Chisolm.
This analysis is flawed for three reasons. First, there is no evidence that Chisolm knew that closed captioning services were available. Second, even if wе did adopt the Eighth Circuit‘s Randolph rule, cited by the District Court, it would be inapplicable if MCDC had knowledge of Chisolm‘s hearing disability but failed to discuss related issues with him. See Randolph, 170 F.3d at 858-59 (“While it is true that public entities are not required to guess at what accommodations they should provide, the requirement does not narrow the ADA or RA so much that the [public entity] may claim [the disabled person] failed to request an accommodation when it declined to discuss the issue with him.“). Finally, the adequacy of MCDC‘s communication with Chisolm lies unresolved at the heart of this case. As such, whether Chisolm even could have communicated a request for closed captioning presents a question of fact that has not yet been resolved.
For the above reasons, we conclude that the District Court improperly granted summary judgment in favor of McManimon.
Chisolm argues that the Vicinage discriminated against him when it failed to arrange for and provide an ASL interpreter for his scheduled extradition hearing on September 14, 1994. Chisolm argues that by postponing the hearing until an ASL interpreter was available and remanding Chisolm to MCDC, the Vicinage injured him in connection with the alleged discrimination. For the reasons stated below, we hold that the District Court erred in granting summary judgment in favor of the Vicinage with respect to this claim.
The District Court granted summary judgment to the Vicinage reasoning that, because no extradition hearing was held, the Vicinage did not exclude Chisolm from any programs. See Chisolm, Civ. No. 95-0991 at 12. This conclusion ignores the broad language of the statutes under which Chisolm brings his claims against the Vicinage. Without showing that the Vicinage excluded him from an extradition hearing, Chisolm may bring his claim under the theory that the Vicinage denied him an extradition hearing. See
The District Court found, and we agree, that extradition hearings are “programs” within the definition of the ADA
The Vicinage argues that its “affirmative measures” to locate an ASL interpreter, in fact, “complied fully with” the regulations. However, it is up to the trier of fact to determine whether the Vicinage provided a sufficient auxiliary aid and/or service when it rescheduled Chisolm‘s hearing and ordered him remanded into custody for a further six days until an ASL interpreter could be present. See Randolph, 170 F.3d at 859; Duffy, 98 F.3d at 455-56.
The Vicinage also argues that the failure to provide an auxiliary aid and/or service upon Chisolm‘s scheduled extradition hearing was justified because the Vicinage lacked notice of Chisolm‘s disability. Although not expressly framed as such, this argument appears to invoke the
Assuming arguendo that it would have been unduly burdensome for the Vicinage to provide Chisolm with an
Moreover, to the extent that the Vicinage argues a “lack of notice” of Chisolm‘s disability, that lack of notice may demonstrate a failure of the Vicinage to discharge its statutory responsibility of providing interpretive services for the deaf. The provision of such services must include some reasonable meаns of determining when they will be needed.
IV. Conclusion
We conclude that, for purposes of determining whether the Vicinage may assert sovereign immunity, it was not acting as an “arm of the state.” Therefore, the Eleventh Amendment to the United States Constitution does not provide the Vicinage with immunity from Chisolm‘s suit.
As for summary judgment, Chisolm has demonstrated that genuine issues of material fact remain for trial. Thus, the trial court erred in granting summary judgment in favor of defendants. We will reverse the judgments in favor of McManimon and the Vicinage and remand this case to the District Court for further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit
Notes
[t]he public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice. This expressed choice shall be given primary consideration by the public entity (§ 35.160(b)(2)). The public entity shall honor the choice unless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under § 35.164. Deference to the request of the individual with a disability is desirable because of the range of disabilities, the variety of auxiliary aids and services, and different circumstances requiring effective communication.
28 C.F.R. Pt. 35, App. A (emphasis added).