David UPDIKE, Plaintiff-Appellant, v. MULTNOMAH COUNTY, a municipal corporation; State of Oregon, Defendants-Appellees, and City of Gresham, Defendant.
No. 15-35254
United States Court of Appeals, Ninth Circuit.
Filed August 31, 2017
870 F.3d 939
Argued and Submitted June 7, 2017, Portland, Oregon
Jacqueline Kamins (argued), Assistant County Attorney; David N. Blankfeld,
Peenesh Shah (argued), Assistant Attorney General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Oregon Department of Justice, Salem, Oregon; for Defendant-Appellee State of Oregon.
Before: A. WALLACE TASHIMA, RONALD M. GOULD, and JOHNNIE B. RAWLINSON, Circuit Judges.
OPINION
GOULD, Circuit Judge:
David Updike, who has been deaf since birth, uses American Sign Language (“ASL“) as his primary language. He brings this action against Defendants the State of Oregon (“State“) and Multnomah County (“County“), alleging that the State and the County did not provide him with an ASL interpreter at his arraignment on criminal charges, and that the County did not provide him with an ASL interpreter and other auxiliary aids in order for Updike to effectively communicate while he was in pretrial detainment and under pretrial supervision. Updike brings claims for violations of Title II of the Americans with Disabilities Act (“ADA“),
I
A
David Updike has been deaf since birth and communicates primarily through ASL, which is his native language and preferred method of communication. Updike does not consider himself to be bilingual in English and does not read or speak English well. Updike is not proficient at reading lips because he has never heard English words—in these circumstances, it is difficult to know the shape that lips make to produce certain words. All of Updike‘s friends are deaf and Updike‘s ex-wife is deaf. Updike explains that he “live[s] in the deaf world.”
In the early afternoon of January 14, 2013, officers from the Gresham Police Department arrived at Updike‘s home to respond to a 911 call reporting a disturbance. The 911 caller told the operator that the disturbance1 involved deaf individuals, but the officers did not bring an ASL interpreter with them. The officers arrested Updike and took him to Multnomah County Detention Center (“MCDC“) for booking.
MCDC has a telecommunications device for the deaf (“TDD“) available. MCDC staff, including corrections deputies and medical providers, can request an ASL interpreter as needed. The County has a contract with Columbia Language Services, Inc. to provide interpreting services, including “Interpretation for the Deaf,” “Interpretation for the Deaf/After Hours,” “Remote/Electronic Interpretation,” “Interpreter Services/Normal Hours/ASL,” and “Interpreter Services/After Hours/ASL.”
At booking, a female corrections officer removed Updike‘s handcuffs and spoke to Updike. Updike tried to read her lips and could not understand her statements. Deputy Kessinger, a booking deputy, completed Updike‘s intake. Updike was also photographed and fingerprinted. Updike requested an ASL interpreter during the booking process but was not given one.
After booking, Updike was placed in a holding room. Updike saw other inmates making telephone phone calls, and he wanted to call an attorney and his mother. He asked a corrections officer for a TTY, by saying “TTY,” and motioned his hand to his ear to mime a telephone. The officer instructed Updike to sit down and gestured for Updike to sit down. Updike stated and signed “I need an interpreter,” but the officer did not respond to this request. Updike then spoke the word “paper” and made a writing gesture. The officer denied the request for paper and a writing instrument, and told Updike to sit down.
After the booking process, Updike again asked to use a TTY by gesturing typing and by making a verbal request to a different corrections officer. The officer denied the requests and instructed Updike to sit down and wait.
Still at MCDC, Updike met with Nurse Nielsen and asked for an ASL interpreter. Updike wanted to communicate that officers hurt his neck and back during the course of his arrest, but the nurse did not request or provide an interpreter despite his request. The nurse pointed to questions on a health intake form, but Updike could not read the form very well and used body language to answer the questions the best he could. The nurse did not examine his neck and back, and Updike could not communicate that those areas hurt.
Updike met with Recognizance Officer Iwamoto from Multnomah County Pretrial Services Program. Updike had trouble reading the officer‘s lips and requested an ASL interpreter. The officer did not provide one. Updike also requested a TTY, but was not given one. Updike then learned that he would be held overnight and would appear in court the next day. Officer Iwamoto assured Updike that Iwamoto would notify the court that Updike would require an interpreter at his arraignment.
Officer Iwamoto‘s practice is to communicate with deaf people in custody by writing notes. Officer Iwamoto testified that if Updike was again arrested, he would likely not be given an ASL interpreter for his recognizance interview, and that he believed this practice needed to change. Iwamoto stated that he felt that written communication was sufficient to complete Updike‘s recognizance interview in order to make a release determination. Iwamoto‘s summary of his interview with Updike noted that the interview was conducted by writing, but that Updike would “need a sign language interpreter for court.” This information became part of the court‘s records, and went to the judge, the district attorney‘s office, and the defense attorney. The information was also made available to
While at MCDC, Updike also met with Deputy Waggoner, a classification deputy. Waggoner‘s notes said that Updike was deaf; this notation was made so corrections staff could give Updike accommodations, including getting the TTD machine for Updike to make phone calls. However, Deputy Waggoner did not call for an ASL interpreter during his triage interview with Updike because Waggoner did not think that Updike needed one and felt that Updike communicated fine using written English. Waggoner has never been trained on the necessary steps to obtain an interpreter for a deaf person during booking, and does not know how to get an ASL interpreter if he had trouble with a deaf inmate during a triage interview. Waggoner indicated in the Classification Summary Report that he believed Updike read fine, but also noted that Updike answered “yes” to the question asking whether Updike had a disability that would impact his ability to understand instructions while detained.
During Updike‘s time at MCDC, he was not given access to an ASL interpreter, a computer, a TTY, video relay services, or pen and paper. He could not call a lawyer or his family members without a TTY device. He was not able to watch television because there was no video relay service and no closed captioning.
On the evening of January 14, 2013, Updike was transferred to Multnomah County Inverness Jail (“MCIJ“). At MCIJ, an officer gave Updike a toothbrush, toothpaste, a comb, some blank paper and a pen, and a copy of MCIJ‘s Inmate Manual. Updike wrote to the officer that his neck and back hurt, and he requested pain medication, but no medical provider examined Updike.
Updike remained at MCIJ from January 14 through January 16, 2013. He made many requests for a TTY so he could make phone calls, as he saw that other inmates were freely able to use telephones during their free time. He was denied these requests. Updike also wrote a note requesting that an officer turn on closed captioning, but that request was not honored. MCIJ uses a loudspeaker system to address inmates, but Updike did not hear any of the announcements made while at MCIJ.
On January 15, 2013, Updike appeared at his arraignment by video. MCIJ arranges arraignment by video, and inmates are not transported to court. During the arraignment, Updike could see but not read Judge Kathleen Dailey‘s lips and noticed that an interpreter was not in the courtroom. Upon learning that Updike was deaf, Judge Dailey postponed Updike‘s arraignment to the following day when an ASL interpreter would be available. Updike was thus held for another night at MCIJ.
The County‘s Pretrial Release Office conducts pretrial release interviews, including an assessment of the language needs of an individual, such as whether an individual needs an ASL interpreter, or whether the individual requires some other accommodation for hearing loss. This information is transmitted to the staff of the Oregon Judicial Department (“OJD“) prior to arraignment. Updike‘s pretrial release documents received by OJD employees noted that Updike required an ASL interpreter. If staff do not determine whether an interpreter is required, the issue is not addressed until the court appearance. Typically, OJD staff prepare for arraignments by looking only at the booking register and
On January 16, 2013, Updike again appeared in court by videoconference. An ASL interpreter was provided for Updike, and Updike was released that day. Updike again requested a corrections officer to supply him with a TTY so he could call for his daughter to pick him up. He received a TTY for the first time, and left jail late that evening.
On January 17, 2013, Updike reported to pretrial supervision as ordered by Judge Dailey. Updike met with Michale Sacomano, a case manager for the Multnomah County Department of Community Justice‘s Pretrial Services Program. Sacomano conducted intake by written communication, despite the fact that Updike did not agree to conduct intake by writing and had requested—by both signing and speaking—an ASL interpreter and signed requesting an ASL interpreter. Sacomano denied the request, and explained that Updike should write all of his requests.3 Updike had a series of miscommunications with Sacomano, and felt that Sacomano believed Updike used his hearing impairment as an excuse to violate conditions of his pretrial release.4
The trial on Updike‘s criminal charge was postponed until April 22, 2013. After the jury was impaneled, the district attorney moved for dismissal.
B
On September 13, 2013, Updike filed his complaint, alleging claims against the City of Gresham, Multnomah County, and the State of Oregon. In early 2014, the City of Gresham settled. On June 1, 2014, Updike filed his first amended complaint. Updike brought several claims: ADA discrimination claims against the State and the County, violations of
The State filed its motion for summary judgment on April 23, 2014, which the district court granted on October 15, 2014.
Updike timely appealed. He does not challenge the grant of summary judgment on his negligence and false arrest claims.
II
We have jurisdiction under
III
The parties do not dispute that Updike satisfies the general standing requirements of
A
Updike offers no evidence of a “real or immediate threat” that he would be “wronged again” by way of the State‘s failure to provide an ASL interpreter at future court appearances. Lyons, 461 U.S. at 111. Evidence in the record further indicates that this wrongful conduct will likely not occur again, given that information about necessary accommodations are now noted in the booking registers—the documents relied upon by OJD to set hearing dates—rather than the pretrial release reports.
B
Although certain facts slightly alter our calculus in considering the threat of future harm from the County, we also hold that the possibility of recurring injury remains speculative such that Updike also lacks standing to pursue injunctive relief against the County.
Updike has been booked at MCDC on five previous occasions, and avers that he had been held overnight in a Multnomah County detention facility before and was then denied an ASL interpreter and a TTY although he requested auxiliary aids and services. Record evidence also shows that a County officer had communicated with other deaf people in custody by writing notes, and that another County officer admitted to now knowing how to get an ASL interpreter if he had difficulties communicating with a deaf inmate.
Although “past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury,” O‘Shea, 414 U.S. at 496, “past wrongs do not in themselves amount to [a] real and immediate threat of injury necessary to make out a case or controversy,” Lyons, 461 U.S. at 103. Updike‘s past injury is insufficient to establish that the risk of recurring injury is more than speculative. He has not identified specific County policies and practices that would subject Updike to a realistic possibility that the County would subject him to the injurious acts again in the future. Compare id. at 108-110 (holding that the plaintiff did not have standing because it was no more than conjecture that he would be subject to another unconstitutional chokehold in the future), with Armstrong v. Davis, 275 F.3d 849, 864 (9th Cir. 2001) (explaining that the California Board of Prison Term‘s consistent practice of denying appropriate accommodations warranted holding that the plaintiff class established standing), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504-05 (2005). Further counseling against standing for injunctive relief is the assumption that Updike will likely conform his activities within the law such that he would not be arrested and detained in the future. See O‘Shea, 414 U.S. at 497 (“We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.“). Updike has not shown “there is ‘sufficient immediacy and reality’ to [his] allegations of future injury to warrant invocation” of jurisdiction. Id.
In sum, Updike does not have standing to pursue his claims for injunctive relief against the State and County. We turn next to the merits of his claims for compensatory damages.
IV
A
Updike challenges the district court‘s grant of summary judgment in favor of the
The ADA was enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.”
[N]o 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.
“Title II of the ADA was expressly modeled after
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .
Title II and
As to persons with a hearing disability, implementing regulations for Title II provide that a public entity must “take appropriate steps to ensure that communications” with disabled persons “are as effective as communications with others.”
(b) (1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.
(2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the
individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing[.]
The Appendix to the ADA regulations also makes clear that the public entity has a duty to ensure effective communications and establishes a required deference that must normally be given to a disabled person‘s personal choice of aid and service:
The public entity shall honor the choice [of the individual with a disability] 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.
One limitation on this duty, however, provides that a public entity is not required “to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.”
Under both Title II of the ADA and
A public entity may be liable for damages under Title II of the ADA or
The parties do not dispute that Updike is a qualified individual with a disability and that, as a detainee at the detention facility, he was otherwise qualified to receive the services and benefits of the public entity. Instead, the parties dispute whether Updike was intentionally discriminated against when his requested accommodations were denied or when accommodation was not provided. Because Updike‘s ADA and
B
The thrust of Updike‘s allegations against the State is that the State failed to arrange for an ASL interpreter at Updike‘s first criminal court appearance. As a result, Updike had to stay at MCIJ for an additional evening, and he complains that he could have been released earlier if an ASL interpreter had been provided on January 15, 2013, the date of his first arraignment hearing. The district court concluded that Updike did not show that the State acted with deliberate indifference. The State gave evidence that in setting Updike‘s arraignment, it reviewed the booking register, which did not note his need for an interpreter, but not the pretrial release report, which did note Updike‘s need for an interpreter.
Updike relies on Robertson v. Las Animas County Sheriff‘s Department, 500 F.3d 1185, 1199 (10th Cir. 2007) and Chisolm v. McManimon, 275 F.3d 315, 330 (3d Cir. 2001) to argue that he was denied the ability to participate at the January 15, 2013 arraignment. Both cases involved deaf or hearing impaired individuals who made court appearances without ASL interpreters. But neither out-of-circuit case discussed our circuit‘s heightened requirement for a plaintiff to establish that the discrimination was committed with deliberate indifference in order to recover monetary damages under the ADA or
Because in some instances events may be attributable to bureaucratic slippage that constitutes negligence rather than deliberate action or inaction, we have stated that deliberate indifference does not occur where a duty to act may simply have been overlooked, or a complaint may reasonably have been deemed to result from events taking their normal course. Rather, in order to meet the second element of the deliberate indif-
ference test, a failure to act must be a result of conduct that is more than negligent, and involves an element of deliberateness.
We conclude that the district court correctly granted summary judgment for the State on this issue. This case reflects an absence of effective communication and coordination between the County‘s pretrial services and employees at OJD about the need for an interpreter at Updike‘s arraignment. While it is regrettable that it appears that Updike spent an extra night in jail that he likely would not have had to spend had he been provided an ASL interpreter the first time he appeared before Judge Dailey, there is no evidence that the State deliberately failed to order an interpreter at the January 15, 2013 arraignment. Instead, the evidence shows “bureaucratic slippage that constitutes negligence rather than deliberate action or inaction.”
There is no evidence that the State‘s failure to provide an ASL interpreter was the result of deliberate indifference. We accordingly affirm the district court‘s holding that summary judgment in favor of the State is appropriate on Updike‘s claims under the ADA and
C
Along with alleging that the County failed to arrange for an ASL interpreter at Updike‘s arraignment, Updike alleges that the County did not provide him with an ASL interpreter and other auxiliary aids in order to effectively communicate while he was in pretrial detainment and under pretrial supervision. The district court held that Updike could have, but did not, provide the County notice of this conduct that allegedly violated the ADA and
1
“Federal Rule of Civil Procedure 8(a)(2) requires that the allegations in the complaint ‘give the defendant fair notice of what the plaintiff‘s claim is and the grounds upon which it rests;‘” Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). “[S]ummary judgment is not a procedural second chance to flesh out inadequate pleadings.” Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006).
The district court found that Updike raised several specific factual allegations in his declaration opposing the County‘s motion for summary judgment, submitted after the close of discovery, that were not previously raised in his complaint, including:
Plaintiff‘s requests: (1) for an auxiliary aid to make telephone calls; (2) for an ASL interpreter to speak with Nurse Julie Nielson; (3) for closed captioning to be turned on for the [j]ail televisions; and (4) for an ASL interpreter for his meetings with pre-trial services.
We disagree. Although the primary focus of Updike‘s complaint was on the ASL interpreter that was not provided at his arraignment on January 15, 2013, Updike‘s complaint gave sufficient factual allegations describing the County‘s failure to provide auxiliary aids and services while Updike was detained and under pretrial supervision to put the County on notice that those inactions would be at issue. For example, Updike‘s complaint stated that while Updike was at MCDC he requested an ASL interpreter and a TTY but neither was provided. He further alleged that he was directed to write a statement without the accommodations of a TTY or an ASL interpreter. The complaint went on to allege that the County did not provide Updike with an ASL interpreter while he was held at MCIJ.
His complaint also alleged that while he awaited trial, he was under the supervision of employees of the County. He had requested an ASL interpreter to aid his communication, but the County did not accommodate this request. Updike repeated these allegations throughout his complaint:
Defendant County denied Plaintiff the benefits of Defendant‘s services and programs through failure to provide an ASL interpreter and failure to promptly provide a TTD while Plaintiff was in custody. Defendant County also failed to provide an ASL interpreter during Plaintiff‘s pretrial release while he was under the supervision of Defendant County‘s employees.
The complaint specifically alleged that the County denied Updike “effective communication by refusing to provide him with a qualified interpreter in circumstances involving the following types of communication which would be normal in criminal investigations and the arrest of a suspect.” These circumstances included:
explaining to the police the details of the incident and the alleged crime; discussing injuries; discussing damage to and loss of personal property; conveying and understanding one‘s rights as a crime victim; conveying and understanding one‘s rights as an arrestee and pretrial detainee; asserting the right to effective communication during booking and being held by a jail or correctional facility; asserting the right to an ASL interpreter for appearances in court; and asserting the right to effective communication with supervising County employees during pretrial release.
Updike complied with the notice pleading requirement of
2
The district court also granted summary judgment on the alternative ground that there was insufficient evidence of intentional discrimination by the County against Updike.
The County argues that not providing Updike with his preferred form of commu-
It is well-settled that Title II and
We also reverse the district court‘s grant of summary judgment on the ground that there are disputed issues of material fact as to whether, at each of Updike‘s requests for accommodation, the County‘s failure to provide an accommodation was done with deliberate indifference, rather than merely negligence.6
These are the individual bases for Updike‘s ADA and
Failure to provide an ASL interpreter or TTY during the booking process: During the booking process, Updike re-
Failure to provide a TTD to make phone calls: Updike made many requests for corrections staff to provide him with a TTD or TTY device so he could call his mother or an attorney but avers that no such aid was ever provided. As the district court noted, the parties do not dispute that a TTY machine was available for inmates to use for telephone calls, and that Updike was never provided with a TTY machine until after the January 16, 2013 arraignment when he was released from custody. The district court reasoned that Updike failed to present any evidence that the County actually refused to provide him with a TTY machine. We disagree with the district court‘s conclusion that the County did not act with deliberate indifference in denying the request for a TTD or TTY. That Updike repeatedly requested a TTD, which was physically available at the jail, but was never provided such a device to assist making phone calls is evidence that the County denied him use of a TTD, creating a genuine issue of material fact on this issue. A trier of fact could conclude that the County acted with deliberate indifference in denying direct requests for this accommodation, which would permit Updike to use telephones, a service routinely made available to non-deaf inmates.
Failure to turn on closed captioning on jail televisions: Updike asked MCDC officials to turn on closed captioning several times while in the custody of the County, but avers this request was not accommodated. Although the district court attributed this to an “unintentional oversight,” Updike has introduced evidence that County jail employees were aware of Updike‘s disability, yet ignored his repeated requests to turn on closed captioning. Again, there is a genuine factual dispute on deliberate indifference.
Failure to provide an ASL interpreter during his medical evaluation: Under Updike‘s evidence, which should be credited on summary judgment, Updike requested an ASL interpreter while meeting with Nurse Nielsen, and could not convey that he had neck and back pain because of an inability to communicate. He also explained that he could not read well the form the nurse used and that he could not respond or give input. Although the County asserts that Updike was very literate, and that an accommodation through writing was sufficient to comply with the ADA, the County has not put forth evidence showing that it looked into whether his
The district court dismissed this claim because there was no evidence in the record that Updike was denied any specific benefit or service that is regularly offered to other inmates. The lack of an ASL translator, however, may have denied Updike the opportunity to communicate effectively during the medical evaluation provided by the County. Medical evaluations often will be the type of complex and lengthy situation in which an ASL interpreter should be provided. See Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir. 1996) (“[A] qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time.” (quoting
Failure to provide an ASL interpreter during the recognizance interview: During Updike‘s recognizance interview, he requested an ASL interpreter and a TTY device, was not given either, and Updike said that he had difficulty reading the officer‘s lips. Officer Iwamoto disputed this, believing that he was able to communicate effectively with Updike through written English and that Updike communicated clearly through written notes. But again, the County introduced no evidence that it ascertained what accommodations might be needed, and instead relies on self-serving observations that its employees believed they were effectively communicating with Updike. Whether the County‘s accommodation was sufficient requires sifting through a number of facts. See
Failure to provide an ASL interpreter and other auxiliary aids during interactions with pretrial services: Updike and Sacomano dispute whether Updike requested an interpreter. Although the record shows that Sacomano was aware that Updike is deaf, the County did not put forward evidence that she looked into providing Updike with an ASL interpreter during their meetings. The district court focused on whether Updike was actually denied services or whether his interactions “actually caused him harm” in dismissing this aspect of Updike‘s claim. The district court should have instead focused on whether Updike could effectively communicate with Sacomano while under supervision of the County and whether the County gave Updike reasonable accommodations. Considering the evidence in the light most favorable to Updike, a reasonable jury could conclude that Sacomano did not adequately address Updike‘s need for accommodation.
Failure to timely arrange for an ASL interpreter at arraignment: Updike inquired with County staff whether an ASL interpreter would be available at arraignment, yet no interpreter appeared at his January 15, 2013 arraignment. The County, however, timely communicated Updike‘s need for an ASL interpreter before his January 15 arraignment by noting
* * *
The County‘s employees knew that Updike was deaf but did not provide Updike with an ASL interpreter, TTY device, or closed captioning for television, despite his repeated requests for these accommodations. Updike put forth evidence that he made repeated requests for an ASL translator and other auxiliary services with respect to various aspects of his time in custody and under pretrial supervision. The County was also on notice that Updike believed that his disability would impact his ability to understand instructions while detained. Updike contends that the County‘s failure to provide auxiliary aids and services limited his ability to communicate effectively, speak with his attorney and family members, and enjoy other programs and services on par with non-hearing impaired inmates.
Updike disputes the County‘s assertion that he was able to communicate fine using pen and paper, and instead contends that communication between him and corrections staff during the course of his detention and supervision were ineffective. Even if a jury ultimately determines that the County is correct—a matter that must be left to the jury where, as here, there are disputes of material fact—summary judgment was improper because the County never meaningfully assessed Updike‘s limitations and comprehension abilities. At no time was Updike assessed to determine to what extent he would need accommodation to ensure that he could communicate effectively with others during his time in custody and under pretrial supervision. Yet “[w]hen an entity is on notice of the need for accommodation, it ‘is required to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation.‘” A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1207 (9th Cir. 2016) (quoting Duvall, 260 F.3d at 1139). Nor did the County present evidence that it engaged in any inquiry as to why an ASL interpreter or TTY would be unreasonable or could not be accommodated.7 The record sets forth that it was not until his January 16, 2013 arraignment that Updike was provided with an ASL interpreter, and that it was not until Updike was released from custody that he was provided with a TTY. For these reasons, the district court erred in granting summary judgment in favor of the County on Updike‘s ADA and
The district court, in granting summary judgment in favor of the County, concluded that Updike was not actually excluded from services that similarly-situated non-deaf individuals also accessed. We emphasize, however, that a public entity can be liable for damages under Title II and
In this case, a reasonable jury could find that the County was deliberately indifferent and violated Title II and
V
We affirm in part and reverse in part the district court‘s summary judgment orders. We affirm the district court‘s grant of summary judgment in favor of the State. We also affirm the district court‘s conclusion that Updike lacks standing to pursue his claims for injunctive relief. We reverse the district court‘s grant of summary judgment in favor of the County on
AFFIRMED in part; REVERSED in part; and REMANDED. Each party shall bear its own costs on appeal of the summary judgment order entered in favor of the State. We award costs to Updike on appeal of the summary judgment order entered in favor of the County.