# GENESS v. COUNTY OF FAYETTE

> District Court, W.D. Pennsylvania · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10416076

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** November 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CRAIG GENESS : CIVIL ACTION
:
v. : NO. 16-876
:
COMMONWEALTH OF :
PENNSYLVANIA :

MEMORANDUM

KEARNEY, J. November 30, 2020

Our Court of Appeals twice agreed with our concern systemic deficiencies at the juncture
of the Commonwealth’s criminal justice and mental health systems played a role in intellectually
impaired Craig Geness spending over nine years in custody on a 2006 homicide charge while
incompetent to stand trial. Fayette County prosecutors and public defender, the Commonwealth’s
Department of Human Services, private lawyers, and Commonwealth judges seemingly
contributed to Mr. Geness’s lost liberty without a finding of guilt. Following the December 2015
withdrawal of all charges, he seeks damages under the Americans with Disabilities Act and
Fourteenth Amendment. The issue is who may be responsible.
Following voluntary and involuntary dismissals of several persons seemingly playing a
role in this breakdown, we today review whether the Commonwealth may be responsible after
fulsome discovery and reviewing cross-motions for summary judgment. We find the
Commonwealth cannot invoke sovereign immunity. While it is vicariously liable for its judges’
discriminatory conduct towards Mr. Geness, it does not enjoy judicial immunity just because
judges cannot be sued for discriminating against disabled persons. But we must decline entering
summary judgment for Mr. Geness as a matter of law today as there are genuine issues of
material fact concerning Commonwealth judges’ deliberate indifference to Mr. Geness after
learning in September 2011 he would not be competent to stand trial but still keeping him in an
institution under ankle monitoring. Mr. Geness remained in custody until December 2015 when
the Fayette County prosecutor dismissed the charges. The state court trial judge then seemingly
volunteered his view of affixing blame for the case “languishing for years” on defense lawyers.

A fact finder must evaluate the credibility of this position as it relates to deliberate indifference
and determine whether the Commonwealth may be responsible to Mr. Geness in damages for its
role in the systemic deficiency leading to this undisputed tragedy.
I. Adduced facts.1
Ronald Fiffick suffered fatal injuries after falling down the porch steps of his assisted
living facility over fourteen years ago. Paramedics arriving to the facility in November 2006
spoke to Mr. Fiffick’s wife, who reported Mr. Fiffick “walked out on [the porch] and fell down
approx[imately] 5 steps head first.”2 Dr. Laurie Pemberton examined Mr. Fiffick when he
arrived at the hospital and noted Mr. Fiffick presented as mentally disabled, “unsteady,” and “not
supposed to go down the stairs.”3 There is no eyewitness testimony or medical evidence he had

been pushed.
But Mr. Fiffick’s daughter suspected foul play and asked the Uniontown police to
investigate her father’s fall.4 Detective Jason Cox investigated and identified co-resident Craig
Geness as a person of interest.5 Mr. Geness has an IQ in the “extremely low range,”
schizoaffective personality disorder, and intermittent explosive disorder.6 Detective Cox
questioned Mr. Geness without an attorney present at a psychiatric hospital where Fayette
County temporarily committed Mr. Geness.7 Mr. Geness confessed to pushing Mr. Fiffick and
Detective Cox arrested Mr. Geness for aggravated assault.8 The Fayette County district attorney
elevated the charges to homicide after Mr. Fiffick succumbed to his injuries.9
President Judge John Wagner orders Mr. Geness’s transfer to a mental health facility
and a competency evaluation.
Magisterial District Judge Blair arraigned Mr. Geness on November 20, 2006.10 Judge
Blair initially scheduled Mr. Geness’s preliminary hearing for November 28, 2006, but he
continued the hearing three times, eventually holding the hearing over four months later on
April 3, 2007.11 Judge Blair held the case for trial.12
Three months later (seven months after Mr. Geness’s arrest), President Judge John
Wagner of the Fayette County Court of Common Pleas held a motions hearing on June 18, 2007
and issued an order finding Mr. Geness “is not at the present time competent to stand trial;
however, we do not find him to be severely mentally disabled.”13 He ordered “the Warden of the
Fayette County Jail and/or Sheriff of Fayette County [to] deliver [Mr. Geness] to the State
Institution at Mayview, PA for a period not to exceed sixty days.”14 He further ordered the State

Institution at Mayview to “report to this Court at the expiration of sixty days as to [Mr. Geness’s]
capacity to stand trial and whether or not a probability exists that [Mr. Geness] will regain
competency within a reasonable period of time.”15
Despite President Judge Wagner’s Order, neither the warden nor the sheriff transferred
Mr. Geness to Mayview because it did not have beds available. Mr. Geness instead remained in
the Fayette County Jail. On August 13, 2007, Judge Wagner issued another order, reiterating his
June 18, 2007 Order in its entirety and noting space at Mayview was “now available.”16 He
further ordered the Commonwealth to “have [Mr. Geness] examined by Dr. Brice Wright while
[Mr. Geness] is being cared for at the State Institution in Mayview.”17 Three days later, on

August 22, 2007, Public Defender Jeffrey Whiteko moved to continue all motions outstanding in
Mr. Geness’s case, including a habeas corpus motion, until Mr. Geness became competent.18
Judge Ralph Warman continued the case on August 22, 2007, and directed Public Defender
Whiteko to “file a motion requesting hearing be rescheduled at such time as [Mr. Geness] is
deemed competent to proceed.”19
The Commonwealth then transferred Mr. Geness to Mayview in September 2007. The
medical professionals at Mayview evaluated Mr. Geness.20 They administered a “Competency

Assessment for Standing Trial for Defendant with Mental Retardation” test to assess
Mr. Geness’s understanding of the legal system.21 Mr. Geness scored lower than the mean for
mentally handicapped individuals deemed incompetent to stand trial.22 The medical
professionals created a “Comprehensive Individualized Treatment Plan” specifically for Mr.
Geness, which established the criteria Mr. Geness should meet before he should be discharged
from Mayview and returned to Fayette County Jail.23 The treatment plan included adjusting his
medication, keeping him under observation, and placing him in educational groups focused on,
among other things, coping and legal skills.24 Notwithstanding this criteria, the medical
professionals concluded by finding Mr. Geness “remained incompetent to stand trial” and he
“will be transferred to Fayette County Jail according to security arrangements.”25 There is some

evidence in the record Mr. Geness returned to the Fayette County Jail because the Mayview
facility may have been closing.26 The medical professionals did not determine whether Mr.
Geness could, at some point, gain competency if he continued to undergo mental health
treatment and educational training.
All activity in Mr. Geness’s case ceases while Mr. Geness remains in the Fayette
County Jail until November 2010.
Nothing happened in Mr. Geness’s case between August 2007 and November 2010.
Public Defender Whiteko did not make a single motion on Mr. Geness’s behalf during these
thirty-nine months and the docket does not reflect activity between August 22, 2007 and
November 17, 2010.27
While Mr. Geness’s case stagnated, the Court of Common Pleas held a monthly “Call of
the Criminal Trial List.” From the transcripts of these proceedings, it appears the district
attorney, the defense attorneys, and the presiding judge would discuss pending cases and
determine which cases would be trial ready in the upcoming month.28 On a given month, the list

of pending criminal cases contained between 180 and 250 active defendants, many of whom had
been deemed incompetent to stand trial.29 It appears the parties would not discuss each case on
the list every month, but rather the district attorney would call the judge’s attention to a handful
of specific cases, and the defense attorneys would provide additional context for the cases as
necessary.30 The parties often skipped over entire pages of the list.31
The adduced evidence includes transcripts from fourteen call of the list proceedings
between August 2007 and November 2010. The transcripts do not mention Mr. Geness.32
Public Defender Whiteko, Judge Wagner, and Judge Solomon attempt to have
Mr. Geness transferred to Torrance and evaluated for competency.

After three years of inactivity, Public Defender Whiteko filed a flurry of motions on
November 17, 2010, including: a petition for involuntary commitment; a motion for residential
treatment; and a motion for a release to Mr. Geness’s own recognizance bond (an “ROR
bond”).33 Mr. Geness’s name appears for the first time on the transcript for the Call of the
Criminal Trial List held on November 20, 2010 with Judge Leskinen presiding. District
Attorney Heneks notified the Court Mr. Geness and two other defendants on the first page of the
list were incompetent to stand trial.34 The transcript does not show what happened next, but
rather goes “off the record” and says “at this time, the above titled matter was concluded.”35 A
few days later, Public Defender Whiteko also moved to continue Mr. Geness’s case until he is
found competent.36 Judge Wagner scheduled a hearing for the petition for involuntary
commitment for November 29, 2010.37
After the hearing, Judge Wagner issued an order denying the motion for an ROR bond,
the petition for involuntary commitment, and treatment pending the results of the evaluation.38
He further ordered “the Warden of the Fayette Co. Prison and/or the Sheriff of Fayette County
[to] deliver [Mr. Geness] to the State Institution at Torrance, PA, for a period not to exceed
ninety (90) days or any other relevant statutory period.”39 He ordered the transfer for two

purposes: (1) to “determine [Mr. Geness’s] capacity to stand trial at the present time; and (2) to
determine whether or not a probability exists that [Mr. Geness] will regain competency within a
reasonable period of time.”40 Judge Wagner further ordered “upon motion of counsel, the Court
will schedule an additional hearing” and “[s]hould an additional hearing be necessary, the
Commonwealth may have [Mr. Geness] examined by Dr. Bruce Wright, or any other appropriate
individual, while in the care of the SI or upon his return to the Fayette Co. Prison, but in a timely
fashion so as to not delay a hearing on the ultimate issue.”41
Despite Judge Wagner’s Order, neither the warden nor the sheriff could transfer
Mr. Geness to Torrance State Hospital because Torrance refused to admit him, citing a lack of
available beds.42 As Torrance did not accept him, Mr. Geness did not undergo the competency

evaluation ordered by Judge Wagner.43
On July 25, 2011, approximately six months after Judge Wagner’s Order, Public
Defender Whiteko moved to set bail for an release bond. Court of Common Pleas Judge
Gerald R. Solomon held a hearing on Public Defender Whiteko’s motion for the bond on August
17, 2011. Public Defender Whiteko, counsel for the Commonwealth, and Judge Solomon all
agreed the situation with Mr. Geness was unacceptable and they needed to do something about it.
Judge Solomon remarked, “Something needs to be done, this situation cannot continue to
exist.”44 But the parties were at a loss as to what they could do given: (1) the Torrance facility
refused to accept Mr. Geness despite Judge Wagner’s Order; (2) neither the court nor the parties
had yet received an evaluation definitively saying Mr. Geness would never be competent to stand
trial; and (3) the Commonwealth believed Mr. Geness could pose a danger to society if released
on his own recognizance.45

Public Defender Whiteko and Judge Solomon appeared to agree Torrance would be the
“best place” for Mr. Geness46 because, if the medical professionals at Torrance deemed him
incompetent, the facility could commit Mr. Geness for appropriate mental health treatment until
he became competent.47 Having reached this understanding, Judge Solomon told the parties,
“[m]y inclination at this point is entering an order directing that [Mr. Geness] be taken to
Torrance and further Order that Torrance is to receive him and do an evaluation and if he
continues to be incompetent to stand trial, then commit for him for appropriate treatment until he
becomes competent.”48 Judge Solomon further told the parties, “I don’t know what affect [sic] it
will have, but I will enter the order.”49 Public Defender Whiteko told Judge Solomon he
“appreciate[d] that” and added, “[w]e have to do something.”50 At no point during the hearing

did Public Defender Whiteko argue Mr. Geness should be released because he would never be
competent to stand trial, nor did he argue the Commonwealth had insufficient evidence to sustain
homicide charges against Mr. Geness.
Judge Solomon then denied the public defender’s motion for a release bond without
prejudice and ordered Mr. Geness “be delivered to SCI Torrance.”51 Judge Solomon further
ordered, “should it be determined that [Mr. Geness] is not competent to function in society, he
shall be admitted to the State Institution of Torrance for appropriate treatment.”52 A week later,
Judge Solomon amended his Order “to reflect that, at the direction of the State Institution at
Torrance, PA, the determinations to be made as to . . . Craig A. Geness, may be made at the
Fayette Co. Prison.”53 It appears Judge Solomon amended his Order because Torrance told him it
did not have enough beds to accept Mr. Geness, and it would be more expeditious to send their
professionals to the Fayette County Jail for evaluation.54
Dr. Chaudhary determines Mr. Geness will probably never become competent, and Judge
Wagner orders Mr. Geness committed to Long Term Structured Release.

Dr. Safdar I. Chaudhary evaluated Mr. Geness at the Fayette County Jail citing Judge
Solomon’s Order as the reason for the assessment.55 On September 4, 2011, Dr. Chaudhary
found Mr. Geness incompetent to stand trial and “not likely to regain competency in the
foreseeable future.”56 He further found Mr. Geness “not likely to benefit from any additional
psychiatric interventions that will restore him to a high level of functioning.”57
Twenty-one days after Dr. Chaudhary completed his assessment, Judge Wagner declared
Mr. Geness incompetent to stand trial and directed Mr. Geness be involuntarily committed to
Long Term Structured Release through Chestnut Ridge Counseling Services, Inc., “there to
remain without contact with the general public, under the supervision of Clinton Anderson, to be
returned to the Fayette County Jail upon completion of his therapeutic program or a
determination that he is competent to stand trial, whichever comes first.”58 Chestnut Ridge
Counseling Services’ website advertises its purpose is to “allow[] you to transition back into the
community with the support and skills necessary to be successful in your recovery journey.”59
Mr. Geness wore an ankle monitor at Chestnut Ridge.60 It is not clear who decided

Mr. Geness would wear an ankle monitor as Judge Wagner’s Order is silent as to ankle
monitoring.
Following Judge Wagner’s September 21, 2011 order declaring Mr. Geness incompetent
to stand trial, Mr. Geness’s name appears on the transcripts of the call of the list proceedings
three times in late 2011 and early 2012 after Judge Wagner transferred Mr. Geness to Long Term
Structured Release: (1) on October 31, 2011 with Judge Leskinen presiding;61 (2) on
November 28, 2011 with Judge Vernon presiding;62 and (3) on January 30, 2012 with Judge
Warman presiding.63 All three times, District Attorney Heneks mentioned Mr. Geness and two
other Defendants were awaiting competency proceedings or had been declared incompetent and
the transcript went off the record immediately.64 There is no evidence of steps taken by the

judges, prosecutor, or defense lawyer to get a better understanding of Mr. Geness’s status.
Attorney Tummons takes over Mr. Geness’s defense.
In 2012, Mental Health Program Manager Anderson contacted Ms. Bernadette
Tummons,65 a private defense attorney who had previously worked in the public defender’s
office,66 and asked her to investigate Mr. Geness’s case. Attorney Tummons decided to take over
Mr. Geness’s case pro bono67 and entered her appearance in March 2012.68 Attorney Tummons
obtained a court order requiring Public Defender Whiteko to give her Mr. Geness’s file.69 The
file contained only publicly-filed court documents.70 It did not contain Mr. Geness’s jail records,
medical records from Mr. Geness or Mr. Fiffick, or discovery material.71 Public Defender
Whiteko told Attorney Tummons Mr. Geness’s jail records had been “destroyed.”72 Attorney

Tummons also requested discovery from District Attorney Heneks beginning in August 2012.
Attorney Tummons “called Mr. Heneks’s office approximately six (6) times to request
discovery” and “visited Mr. Heneks’s office approximately 6 times to request discovery.”73
District Attorney Heneks did not produce any of the requested discovery until June 18, 2014.74
District Attorney Heneks repeatedly failed to turn over discovery. Attorney Tummons
moved to dismiss, sought a writ of habeas corpus, and filed an omnibus pre-trial motion on
May 13, 2015.75 Nine days later, Judge Leskinen scheduled a competency hearing for July 15,
2015.76 Attorney Tummons then moved to compel discovery after District Attorney Heneks
stonewalled her for three years.77 Judge Wagner granted her motion less than two weeks after
she filed it. Attorney Tummons had all relevant discovery materials by the end of the May
2015.78
Meanwhile, as Attorney Tummons sought discovery from District Attorney Heneks, the

judges of the Court of Common Pleas continued presiding over the Call of the Criminal Trial
List each month. From August 2012 to July 2014, Mr. Geness’s name appears on the Call of the
Criminal Trial List transcripts three times: (1) on August 27, 2012 with Judge Capuzzi
presiding;79 (2) on May 28, 2013 with Judge Wagner presiding;80 and (3) July 28, 2014 with
Judge Wagner presiding.81 On August 27, 2012, District Attorney Heneks states Mr. Geness and
three other defendants are “accounted for” and the transcripts go “off the record.”82 On May 28,
2013, District Attorney Heneks mentions Mr. Geness and another defendant are not competent,
and again the transcript goes off the record.83 On July 28, 2014, the district attorney states Mr.
Geness and several others are not competent and the proceedings go off the record.84 The parties
do not adduce evidence of these regrettable “off the record” decisions affecting Mr. Geness’s

liberty after the judges know he will never be competent for trial and they continue to hold him
in custody.
Transcripts of the Call of the Criminal Trial List proceedings reveal the judges and
attorneys often faced difficult procedural questions regarding what to do with defendants deemed
incompetent to stand trial including after Attorney Tummons began representing Mr. Geness. For
example, during the August 2013 call of the list, Judge Wagner learned a different incompetent
defendant was incarcerated at the Fayette County Jail, awaiting trial. Judge Wagner said the jail
was “the worst place” the defendant “could be right now” and asked the attorneys, “[s]o why
aren’t we at least getting him to Torrance, and then work out whatever you want to work out?” 85
When the attorneys explained there was a hold up at the Attorney General’s office, Judge
Wagner replied, “[b]ut he shouldn’t be [at the Fayette County Jail] where he gets no services
whatsoever” and continued “why can’t we simply do an order and have him transferred to
Torrance, and whatever you and the AG want to do after that I could care less . . .”86 The

defense attorney and district attorney alike told Judge Wagner there was nothing he could do
without Attorney General’s consent.87
Judge Leskinen determines Mr. Geness will never be competent to stand trial and District
Attorney Heneks withdraws the criminal charges.

At the July 15, 2015 competency hearing, licensed psychotherapist Dr. Scott Tracy
testified as to Mr. Geness’s competency and his ability to give a voluntary confession.88
Dr. Tracy evaluated Mr. Geness in June 2015 and reviewed his earlier competency evaluations.89
Dr. Tracy concluded Mr. Geness would never be able to live independently and will likely need
to live under supervision in a group home for people with disabilities for the rest of his life.90
Attorney Tummons asked Dr. Tracy if Mr. Geness had ever been, or would ever be, able to
participate in his defense.91 Dr. Tracy testified he did not believe Mr. Geness would ever be able
to participate in his defense.92 Attorney Tummons went further, asking “is there any possibility
in the normal course of living and treatment and medicine and counseling that he would ever be
restored to a mental capacity that would allow him to assist in his defense in this criminal
case?”93 Dr. Tracy responded, “barring a miracle drug,” treatment and counseling would not
likely work on Mr. Geness.94 Dr. Tracy further testified Mr. Geness would pose a danger to
society if released from Chestnut Ridge.95
Dr. Tracy also testified as to Mr. Geness’s “confession” leading to his arrest almost nine
years earlier. Dr. Tracy explained Mr. Geness is highly susceptible to suggestion.96 Mr. Geness
does not initiate conversation, but rather “respond[s] back” to what he “receiv[es] in.”97 For
example, Dr. Tracy suggested the weather was nice on the day of the evaluation, and Mr. Geness
agreed with him even though the weather was not.98 He explained, like others with a similar IQ
range, Mr. Geness is “agreeable when prompted.”99
Judge Leskinen stated, “I take it at this point there really is no contest to finding by the

Court that the defendant remains incompetent and to the extent that I am permitted to find that he
is incompetent, it appears likely that he will remain incompetent for the duration of his life.”100
Judge Leskinen then posited whether a Pennsylvania statute required periodic review of this
ruling, and Attorney Tummons informed him the Mental Health Act gives the court discretion
and offered to provide a copy to the court. 101 Judge Leskinen told Attorney Tummons to ask for
the order she wanted and provide the authority saying the court could enter the order
requested.102
District Attorney Heneks then stated, “I would like to explore the resolution of the
criminal charges . . . the nature of the incident and the competency and the mental state of the
defendant would make it difficult for the Commonwealth to proceed even if he were
competent.”103 Judge Leskinen told the parties to file a joint motion or reach an agreement within

thirty days dealing with all remaining issues in Mr. Geness’s case, including the disposition of
the criminal charges, Mr. Geness’s living arrangements, and the discontinuation of ankle
monitoring.104 Judge Leskinen asked District Attorney Heneks whether thirty days would
provide sufficient time to consult with Mr. Fiffick’s family; District Attorney Heneks confirmed
it would be sufficient.105 The parties disputed whether the court had authority to grant a habeas
petition of an incompetent defendant, but neither party was “ready to present evidence on” the
habeas issue.106 Attorney Tummons told Judge Leskinen she would reserve the habeas issue “for
another day.”107 There is no record of the parties filing the joint motion within thirty days as
ordered by Judge Leskinen.
Attorney Tummons renewed her motion to dismiss, her habeas motion and her omnibus
pre-trial motions on September 9, 2015, and within a week Judge Leskinen scheduled a hearing
for over two months later, November 10, 2015.108

Before the hearing, District Attorney Heneks provided an update on Mr. Geness’s case
during the monthly Call of the Criminal Trial List on October 24, 2015 with Judge Wagner
presiding. District Heneks said, “[n]ext is Craig Geness and that will be resolved. There’s going
to be a guardianship appointed and once that’s done we will move to dismiss those charges.”109
On November 25, 2015, Judge Leskinen held another hearing.110 District Attorney
Heneks disclosed he planned to nolle prosequi the charges against Mr. Geness, have a guardian
appointed, and have the guardian civilly commit Mr. Geness.111 He explained he spoke with
Mr. Fiffick’s daughter, and she agreed the Commonwealth should not proceed with Mr. Geness’s
case.112 He visited Mr. Geness and arranged for his relocation to another residential facility
through the Department of Public Welfare.113 He told Judge Leskinen he worked with the

Behavioral Health Administration to make guardianship arrangements for Mr. Geness given his
lack of family.114
Attorney Tummons objected to this plan, arguing Judge Leskinen should grant her habeas
petition rather than allowing District Attorney Heneks to nol pros the charges because the
Commonwealth had no evidence against Mr. Geness.115 Judge Leskinen did not see the harm in
allowing the Commonwealth to nol pros the charges, and indicated he planned to grant the nol
pros petition and moot the habeas petition.116 On the November 30, 2015 Call of the Criminal
Trial List with Judge Wagner presiding, District Attorney Heneks stated he had “presented [Mr.
Geness] for nol pros.”117
On December 10, 2015, Judge Leskinen approved the Commonwealth’s request for leave
to enter a nol pros and dismissed the charges against Mr. Geness without prejudice.118 Judge

Leskinen found Mr. Geness “remains incompetent to stand trial, and has been incompetent since
approximately the time he was first referred for evaluation & treatment.”119 Judge Leskinen
continued, “[a]lthough the defense has recently been pursuing a dismissal aggressively, this
matter languished for years while [Mr. Geness] was being evaluated for competency . . . [a]ll
delay is attributable to the defense.”120
Mr. Geness brings this case.

On June 17, 2016, Mr. Geness sued the City of Uniontown, Fayette County, Detective
Cox, and the owners of Mr. Geness’s assisted living facility.121 He brought federal claims under
the Americans with Disabilities Act,122 the Fourteenth Amendment, and the Fourth Amendment.
His Fourteenth Amendment claims included malicious prosecution, false arrest, false
imprisonment, reckless investigation, and a violation of his right to equal protection as a disabled
person.123 He also brought a state law claim for intentional infliction of emotional distress.
Detective Cox and the City of Uniontown moved to dismiss.124 Mr. Geness withdrew his
claims against Uniontown during oral argument, and we dismissed Uniontown.125 Detective Cox
answered Mr. Geness’s complaint, denying all claims and asserting affirmative defenses.126
Mr. Geness’s counsel withdrew his claim against Fayette County before it responded to the
allegations.127 On February 10, 2017, we referred the case to mediation.128 The parties did not
resolve the case.129
Mr. Geness seeks to add the Commonwealth as a Defendant.
On March 1, 2017, Mr. Geness voluntarily dismissed the owners of the assisted living
facility, leaving only Detective Cox as a defendant.130 Mr. Geness sought leave to amend his
complaint to add an Americans with Disabilities Act claim against the Commonwealth.131 We

denied Mr. Geness leave to amend, determining Mr. Geness’s motion to be both unduly delayed
and futile.132 We reasoned Mr. Geness’s amendment would be futile because he sought to hold
the Commonwealth liable for the decisions of individual Pennsylvania judges, and the Rooker-
Feldman doctrine barred us from second guessing the state court judges’ rulings.133 Mr. Geness
filed his amended complaint naming only Detective Cox.134 We granted Detective Cox’s motion
for summary judgment and closed the case.135 Mr. Geness appealed.136 He sought to reverse our
dismissal of the civil rights claims and reverse our decision denying him leave to amend to add
the Commonwealth as a defendant on the disabilities claim.
Geness v. Cox (“Geness I”).137
Our Court of Appeals affirmed our dismissal of Mr. Geness’s civil rights and malicious
prosecution claims, but reversed our denial of Mr. Geness’s request to amend.138 The Court of

Appeals held Mr. Geness’s proposed amendment, adding an Americans with Disabilities Act
claim against the Commonwealth, would not be futile.139 It remanded to allow Mr. Geness to
“reinstate his claims against the Commonwealth.”140
In determining Mr. Geness’s amendment would not be futile, our Court of Appeals
explained Mr. Geness must plead four elements to state a claim under Title II of the Americans
with Disabilities Act against the Commonwealth: “(1) he is a qualified individual; (2) with a
disability; (3) who was excluded from participation in or denied the benefits of the services,
programs, or activities of a public entity, or was subjected to discrimination by any such entity;
(4) by reason of his disability.”141 The Court of Appeals found Mr. Geness satisfied all four
elements and focused its analysis on the third and fourth elements. The Court of Appeals
reasoned the Commonwealth had the following responsibilities:
• to “ensure inmates or detainees with disabilities are housed in the most integrated
setting appropriate to the needs of the individuals”;

• not to “place inmates or detainees with disabilities in inappropriate security
classifications because no accessible cells or beds are available”;

• to timely transfer a detainee in need of a mental health evaluation to a mental
health facility;

• not to subject a detainee to involuntary competency restoration treatment for an
unreasonable period of time.142

The Court of Appeals held Mr. Geness adequately pleaded the Commonwealth failed to
carry out these responsibilities, and these alleged failures deprived Mr. Geness of the benefits of
procedural safeguards designed to protect him.143 The Court of Appeals held Mr. Geness
adequately pleaded a Title II claim.144 The Court of Appeals further held “[t]hese same
circumstances are also sufficient to sustain Geness’s claim that he was ‘deprived . . . of normal
benefits of criminal procedure and due process of law . . . both as to his protracted incarceration
without prompt transfer to a mental health facility, and his protracted institutionalization without
a realistic prospect of trial.”145
Geness v. Administrative Office of Pennsylvania Court (“Geness II”).146

Mr. Geness filed an amended Complaint on October 8, 2018 against the Administrative
Office of Pennsylvania Court (the “AOPC”) and the Commonwealth.147 Six months later, we
allowed Mr. Geness to amend his complaint to add the Pennsylvania Department of Human
Services (“DHS”).148
The AOPC moved to dismiss the Title II and Fourteenth Amendment claims against it,
arguing it had immunity under the Eleventh Amendment.149 We held Mr. Geness adequately
pleaded his Title II and Fourteenth Amendment claims and the Eleventh Amendment did not
shield the AOPC from suit.150 We also held the AOPC could not invoke quasi-judicial immunity
because the AOPC is an entity, and only individuals being sued in their individual capacity can
invoke absolute immunity.151 The AOPC appealed our ruling on sovereign immunity, but not our
ruling on judicial immunity. Our Court of Appeals reversed our ruling on sovereign immunity
and did not directly address our ruling on judicial immunity.
Applying the United States v. Georgia152 analysis, which requires courts to examine

whether the AOPC’s conduct violated Title II as a threshold inquiry to whether the Eleventh
Amendment applies, our Court of Appeals determined Mr. Geness did not adequately plead a
Title II claim against the AOPC and therefore, the AOPC could invoke sovereign immunity.153
To plead a Title II claim, the Court of Appeals explained Mr. Geness must allege he “was
excluded from participation in or denied the benefits of services, programs, or activities of a
public entity, or was subject to discrimination by any such public entity.”154 Satisfying this
element of a Title II claim requires identifying specific “services, programs, or activities of a
public entity.”155 Our Court of Appeals interpreted Mr. Geness’s allegations as pleading two
potential “services, programs or activities”: (1) the AOPC’s duty to “intervene directly with the
Fayette County Court to ensure the Plaintiff’s case moved forward,” and (2) its duty to “seek
intervention for such result by the Pennsylvania Supreme Court.”156
Regarding the AOPC’s duty to intervene directly in his case, the Court of Appeals noted
Mr. Geness did not specify precisely which actions the AOPC could have taken to move his case
along beyond inquiring about his case, which the AOPC did repeatedly.157 The Court concluded

“[t]hus, Geness’s allegation of AOPC’s failure to directly intervene with the county court in
some unspecified manner, beyond its repeated inquiries to the court administrator, cannot sustain
his claim under Title II of the ADA.”158
The Court of Appeals then addressed the AOPC’s duty to ask the Pennsylvania Supreme
Court to intervene in Mr. Geness’s case.159 Our Court of Appeals reasoned Mr. Geness’s view of
this duty to intervene would require the AOPC to “closely monitor, deeply evaluate, and consider
intervening in every criminal case pending in the Commonwealth.”160 In essence, it would
require the AOPC to meddle in judicial decision-making, which our Court of Appeals
determined the AOPC has no duty or power to do.161 It further reasoned even if the AOPC did

have a duty to seek intervention from the Pennsylvania Supreme Court, Mr. Geness does not
plead it failed to do so “by reason of his disability.”162 Our Court of Appeals thus concluded
Mr. Geness failed to satisfy the Georgia elements and ordered us to dismiss the claims against
the AOPC.163
Mr. Geness petitioned for en banc review of the Court of Appeals’ Geness II decision on
September 22, 2020,164 which the Court of Appeals denied on October 29, 2020.165
Before the Court of Appeals ruled on the AOPC’s appeal, the Commonwealth and
Mr. Geness cross-moved for summary judgment. We stayed the cross-motions during the
pendency of the AOPC appeal. After the Court of Appeals issued Geness II, we granted the
parties leave to file supplemental briefing on their cross-motions possibly addressing the Court
of Appeals’ opinion.166
The DHS settles the claims against it and obtains a release.
While the Court of Appeals considered the AOPC’s appeal, the DHS and Mr. Geness

agreed the DHS would pay Mr. Geness $375,000 in exchange for Mr. Geness’ release of the
DHS.167 We approved the settlement agreement on July 14, 2020 after finding Mr. Geness’s
counsel’s supplemental materials and the newly appointed guardian ad litem’s opinion credible
and persuasive.168 We dismissed the DHS two weeks later after confirming payment logistics.169
II. Analysis
After voluntarily dismissing Fayette County (employer of the prosecutor and public
defender) before it responded to the Complaint and releasing the DHS in exchange for
consideration we found to be fair, Mr. Geness is now left with two claims against the
Commonwealth: (1) acting through the AOPC, the Fayette County Court of Common Pleas and
numerous judges, violated his rights under Title II of the Americans with Disabilities Act and the

Fourteenth Amendment; and, (2) acting through the DHS, violated his rights under Title II of the
Americans with Disabilities Act and the Fourteenth Amendment.
In reversing our first denial of potential claims against the Commonwealth, our Court of
Appeals shared our concern with a systemic breakdown in the Commonwealth’s criminal justice
and mental health systems. But it reached this observation based on allegations. We have the
benefit today of a fulsome record to examine whether Mr. Geness adduced evidence warranting
judgment against the Commonwealth either today or after the fact-finder considers genuinely
disputed issues of material fact.
The Commonwealth initially sought summary judgment on two grounds: (1) the Eleventh
Amendment bars Mr. Geness’s Fourteenth Amendment Due Process Claims; and (2) Mr. Geness
cannot establish a claim under Title II of the Americans with Disabilities Act because he cannot
establish the Commonwealth acted with deliberate indifference to his rights.170 In its

supplemental memorandum following Geness II, the Commonwealth argued Mr. Geness “cannot
establish a basis for liability against the Commonwealth independent and apart from his claims
against the other defendants in this action . . . [a]nd now that those claims have been definitively
resolved with respect to those other defendants, nothing remains to establish or support liability
against the Commonwealth.”171
Mr. Geness argued in his initial (pre-Geness II) motion (1) he did not seek to assert a
standalone Fourteenth Amendment claim; and (2) he adduced sufficient evidence to establish the
Commonwealth violated Title II of the Americans with Disabilities Act.172 In his supplemental
briefing, Mr. Geness argued the Court of Appeals’ ruling in Geness I and subsequent affirmation
of the binding nature of Geness I in Geness II makes clear the Commonwealth cannot invoke
sovereign immunity.173

We held oral argument on the parties’ cross-motions for summary judgment to clarify the
issues after Geness II. 174 Oral argument clarified the issues as whether: (1) the Commonwealth
can be held liable for the conduct of the Court of Common Pleas judges; (2) the Commonwealth
can invoke sovereign or judicial immunity; and (3) Mr. Geness established deliberate
indifference as a matter of law subject to a damages determination by the fact-finder.
A. We grant the Commonwealth’s motion for summary judgment in part and
deny in part.

The Commonwealth argues Mr. Geness cannot proceed against it as a matter of law
because “nothing remains to establish or support liability against the Commonwealth” following
our dismissal of the claims against the AOPC and the DHS.175 We agree we must dismiss claims
against the Commonwealth to the extent they are predicated entirely on the claims against the
AOPC and the DHS. But dismissing these claims would not dispose of the Commonwealth’s
potential liability altogether. The Commonwealth overlooks Mr. Geness’s allegations regarding

the judges of the Fayette County Court of Common Pleas, one of the cogs in the systemic
breakdown recognized by our Court of Appeals in Geness I.

1. We grant the Commonwealth’s motion for summary judgment as to
DHS’s obligations.

We grant the Commonwealth’s motion for summary judgment as to DHS’s conduct
because Mr. Geness concedes his settlement with the DHS released the Commonwealth from
liability for this claim.176 In light of Mr. Geness’s concession, we grant the Commonwealth’s
motion dismissing claims relating to DHS’s direct obligations.177
At oral argument, Mr. Geness explained the DHS is the party responsible for the first two
of the four “services” our Court of Appeals identified in Geness I: “ensur[ing] inmates or
detainees with disabilities are housed in the most integrated setting appropriate to the needs of
the individuals”; and not “plac[ing] inmates or detainees with disabilities in appropriate security
classifications because no accessible cells or beds are available.”178 In releasing the
Commonwealth for liability for claims based on the DHS’s conduct, Mr. Geness released the
Commonwealth for liability stemming from the repeated failures of Torrance and Mayview to
admit Mr. Geness and conduct a competency evaluation when ordered to do so.
2. We grant in part and deny in part the Commonwealth’s motion for
summary judgment based solely on AOPC’s conduct.
As our Court of Appeals instructed in Geness II, Congress has not validly abrogated the
Commonwealth’s sovereign immunity for claims based on the AOPC’s conduct.179 We grant
summary judgment to the Commonwealth on claims predicated solely on the AOPC’s conduct.
But this does not end our inquiry. We must assess whether the Commonwealth can be

held liable based on the conduct of the Court of Common Pleas judges. To determine whether to
grant the Commonwealth’s motion for summary judgment, we must assess whether:
(1) Congress validly abrogated the Commonwealth’s sovereign immunity for Americans with
Disabilities Act claims based on the judges’ conduct; (2) the Commonwealth can be held
vicariously liable for the conduct of its judges; 180 and (3) the Commonwealth can invoke judicial
immunity.
i. The Commonwealth is not entitled to sovereign immunity for
Mr. Geness’s Americans with Disabilities Act claims.

Under Geness I, the Commonwealth cannot invoke sovereign immunity against
Mr. Geness’s Americans with Disabilities Act claims based on the conduct of the Court of
Common Pleas judges. “To determine whether Congress validly abrogated sovereign immunity
for [Mr.] Geness’s Title II and Fourteenth Amendment claim against [the Commonwealth], we
must apply the three-part Georgia test.”181 Under Georgia, we must assess: “(1) which aspects of
the State’s alleged conduct violated Title II; (2) to what extent such conduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate
the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as
to that conduct is nevertheless valid.”182
To assess the first prong of the Georgia test, we must determine if the Commonwealth,
acting through its judges, violated Title II. To establish the Commonwealth violated Title II,
Mr. Geness must prove: “(1) he is a qualified individual; (2) with a disability; (3) who was
excluded from participation in or denied the benefits of the services, programs, or activities of a
public entity, or was subjected to discrimination by any such entity; (4) by reason of his
disability.”183 The Commonwealth does not dispute Mr. Geness is a qualified individual with a
disability.184 The question before us now is whether the Commonwealth “excluded [him] from

participation in or denied [him] the benefits of the services, programs, or activities of a public
entity, or . . . subjected [him] to discrimination . . . by reason of his disability.”185
Our Court of Appeals in Geness I determined the following responsibilities consisted of
“services” under Title II: (1) “ensur[ing] that inmates or detainees with disabilities are housed in
the most integrated setting appropriate to the needs of the individuals”; (2) not “plac[ing] inmates
or detainees with disabilities in inappropriate security classifications because no accessible cells
or beds are available”; (3) transferring a detainee in need of inpatient examination to a mental
health facility; and (4) limiting involuntary competency restoration to a reasonable period of
time.186 While Mr. Geness concedes the DHS is responsible for the first and for the second of the
“services” identified by our Court of Appeals, he argues the Court of Common Pleas judges are

seemingly responsible for the third and fourth “services.” Our Court of Appeals in Geness I
further found Mr. Geness adequately pleaded the Commonwealth denied him these services “by
reason of his disability.”187 Mr. Geness does not offer other “services” for our consideration.
Our Court of Appeals and our earlier decisions did not have the benefit of a developed
record. We must assess whether the record establishes the Commonwealth deprived Mr. Geness
of these services by reason of his disability. We find the Commonwealth, acting through its
judges, did not deprive Mr. Geness of the Commonwealth’s services on account of his disability
by failing to transfer him, but did violate his rights by failing to limit his competency restoration
to a reasonable period of time.
With respect to the failure to transfer Mr. Geness from the Fayette County Jail to a
mental health facility, the record establishes the judges repeatedly tried to have Mr. Geness
transferred to a mental health facility, and each time, the mental health facilities refused to accept
him because the DHS failed to allocate sufficient beds. We have no evidence the

Commonwealth, acting through its judges, violated the Americans with Disabilities Act because
Torrance and Mayview refused to comply with the judges’ orders. While Mr. Geness adduced
evidence the DHS likely violated his rights when the Commonwealth held him in prison, rather
than a mental health facility, Mr. Geness already released the appropriate party, the DHS, for this
failure to be transferred and he conceded the Commonwealth has been released for claims arising
from the DHS’s conduct. He offers no evidence the Commonwealth had some separate
connection to this claim.
We find a different fact pattern as to the identified “service” of avoiding protracted
involuntary restoration treatment. Dr. Chaudhary told the judges Mr. Geness would never
become competent in 2011. Despite presumably knowing Dr. Chaudhary’s undisputed opinion,

Judge Wagner ordered Mr. Geness transferred to Long Term Structured Release without outside
contact until he either became competent or completed a program. Upon either event, Judge
Wagner required the Commonwealth return Mr. Geness to Fayette County Jail. Judge Wagner
did not set a date for review, despite the fact the attorneys had demonstrated they could not be
trusted to timely seek relief for Mr. Geness. Had Mental Health Program Administrator
Anderson never contacted Attorney Tummons and asked her to take on Mr. Geness’s case, we
query whether Mr. Geness would still be in Long Term Structured Release wearing an ankle
monitor. As the facts regarding Judge Wagner’s commitment of Mr. Geness to Long Term
Structured Release are not in dispute, we find Mr. Geness established the Commonwealth’s
conduct violated Title II as a matter of law under Geness I. He satisfies the first prong of the
Georgia test.
To assess the second prong of the Georgia test, we must determine the extent to which
the alleged conduct also violates the Fourteenth Amendment. Again our Court of Appeals

addressed this issue in Geness I, finding, “[t]hese same circumstances are also sufficient to
sustain Geness’s claim that he was ‘deprived . . . of the normal benefits of criminal procedure
and due process of law . . . both as to his protracted incarceration without prompt transfer to a
mental health facility, and his protracted institutionalization without a realistic prospect of
trial.”188 As discussed above, Judge Wagner played a critical role in Mr. Geness’s protracted
institutionalization by ordering Mr. Geness to Long Term Structured Release for competency
restoration treatment despite having received a report Mr. Geness would never become
competent.
As the alleged conduct “actually violates” the Fourteenth Amendment, we need not
assess the third prong of the Georgia test to find the Commonwealth cannot invoke sovereign

immunity.
Having satisfied the Georgia test, Mr. Geness has shown the Commonwealth cannot
invoke sovereign immunity.
3. The Commonwealth may be vicariously liable for the judges’ conduct.

The Commonwealth argues we cannot hold it liable for the conduct of its judges in
institutionalizing Mr. Geness for an undefined period in 2011 after learning Mr. Geness would
never become competent to stand trial because the Americans with Disabilities Act does not
provide for vicarious liability.189 We disagree.
The Supreme Court recently declined to weigh in on the issue of whether a public “entity
can be held vicariously liable for money damages for the purposeful or deliberately indifferent
conduct of its employees” under Title II of the Americans with Disabilities Act,190 and our Court
of Appeals has never addressed the issue. But every district court judge in our Circuit confronted

with this question has determined public entities are vicariously liable for the conduct of their
employees under Title II of the Americans with Disabilities Act.191 At least two judges have
held, “Title II of the ADA . . . provide[s] for vicarious liability and do[es] not permit liability for
individuals.”192 This reasoning in our Circuit is in accord with the reasoning from courts of
appeals in other circuits. The Court of Appeals for the Ninth Circuit has held, “[w]hen a plaintiff
brings a direct suit under . . . Title II of the ADA against a municipality (including a county), the
public entity is liable for the vicarious acts of its employees.”193 The Court of Appeals for the
Fifth Circuit has also held, “when a plaintiff asserts a cause of action against an employer-
municipality, under either the ADA or the RA, the public entity is liable for the vicarious acts of
any of its employees.”194

Some courts have applied a different standard finding we may not hold a public entity
liable under a strict respondeat superior theory, but may hold an entity liable under the standard
set forth in Gebser v. Lago Vista Independent School District.195 In Gebser, the Supreme Court
addressed when a court may hold a school district liable under Title IX for a teacher’s abuse of a
student.196 The Court held, “in cases like this one that do not involve official policy of the
recipient entity, we hold that a damages remedy will not lie under Title IX unless an official who
at minimum has authority to address the alleged discrimination and to institute corrective
measures . . . has authority to address the alleged discrimination and institute corrective measures
on the [entity’s] behalf has actual knowledge of discrimination in the [entity’s] programs and
fails to adequately respond.”197
We need not decide which approach is correct because under either a respondeat superior
theory or under Gebser, we may hold the Commonwealth liable for the conduct of the Court of

Common Pleas judges under the Americans with Disabilities Act. The Commonwealth concedes
the individual judges and the Court of Common Pleas as a whole are “instrumental[ities] of the
Commonwealth.”198 The record establishes the judges “had actual knowledge of” at least some
of the “discrimination in the entity’s programs” and “ha[d] authority to address the alleged
discrimination and institute corrective measures on the [Commonwealth’s] behalf.”199 When
medical professionals first determined Mr. Geness would never be competent for trial in 2011,
Judge Wagner transferred him to Long Term Structured Release. Judge Leskinen ultimately
corrected this decision. If the judges are found to have been deliberately indifferent to
Mr. Geness’s rights under the Americans with Disabilities Act, the Commonwealth may be held
vicariously liable for the judges’ conduct.

4. The Commonwealth cannot invoke judicial immunity.

The Commonwealth cannot invoke judicial immunity because the Commonwealth is an
entity, not an individual. We held in our May 28, 2019 Memorandum an entity, like the
Commonwealth, cannot invoke judicial immunity because judicial immunity protects only
individuals acting in their individual capacities.200 The law of the case doctrine counsels we
refrain from revisiting this holding unless we discover new evidence, the law changes, or we find
our earlier ruling clearly erroneous.201
The Commonwealth argues we should revisit our holding on judicial immunity because
our Court of Appeals implicitly overruled it in footnote 12 of Geness II. Mr. Geness disagrees,
arguing footnote 12 applies only to the AOPC and does not apply to the Commonwealth. He
further argues Geness I directs the Commonwealth’s liability may be premised on judicial
conduct. Our Court of Appeals noted in Geness II:
Geness’s Second Amended Complaint also links AOPC’s alleged wrongdoing to
the conduct of judges in their disposition of his case. See, e.g., App. 43 ¶ 52 (“The
above-described Judges continued to permit Plaintiff’s case to be listed for trial,
despite their actual knowledge of his incompetency.”). Allegations of wrongdoing
based on judicial conduct are omitted here because AOPC’s administrative
functions and the independent role of the judiciary must not be
conflated. See Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (“The
doctrine of judicial immunity is founded upon the premise that a judge, in
performing his or her judicial duties, should be free to act upon his or her
convictions without threat of suit for damages.”). The parties do not present and
we are not aware of any legal authority that would permit AOPC to be found
liable based on judicial conduct. Further, Geness acknowledges that AOPC cannot
be held liable based on judges’ decision-making. Appellee’s Br. 25 (“The AOPC
does not have oversight over criminal cases and the decisions that are required in
each such case to the extent that those are duties to be performed by the Judges of
the Common Pleas Court . . . . AOPC does in fact have the duty to oversee the
actions of those Judges to ensure that, among other things, the courts comply with
the rights of disabled individuals.”).202

We do not read this footnote, or any other language in Geness II, as overruling our
holding on judicial immunity. We read the footnote as focusing on whether the AOPC may be
held liable for judicial decision-making and not addressing whether the Commonwealth may be
held liable for judicial decision-making under the Americans with Disabilities Act. Our Court of
Appeals focused on Mr. Geness’s concession the AOPC had no power over judges’ decision-
making. The Commonwealth, by contrast, concedes the judges are its instrumentalities.
Our Court of Appeals’ instruction in Geness I further supports our position the
Commonwealth may be held liable for judicial conduct. In Geness I, our Court of Appeals held
we erred in denying leave to file an amended complaint to add the Commonwealth as a
defendant as futile. Our Court of Appeals held the “multiple, protracted, and inexcusable delays
in the handling of Geness’s examinations, transfers, and motions—resulting in nearly a decade of
imprisonment and civil commitment before a hearing was finally held on his habeas petition—
are more than sufficient to state a claim under the ADA.”203 While we now know (based on
evidence not available when we considered leave to amend three years ago) we could attribute
much of the delay to Fayette County’s District Attorney Heneks and Public Defender Whiteko,

the record before our Court of Appeals showed responsibility for ordering Mr. Geness’s
examinations, ordering his transfers, and ruling on his motions fell squarely on the Court of
Common Pleas judges. Our Court of Appeals identified the judges as one of the participants in
the systemic failures. We cannot hold our Court of Appeals would preclude liability upon the
Commonwealth for this conduct.
Our interpretation of Geness I draws support from our Court of Appeals’ reliance in
Geness I on Jackson v. Indiana.204 In Jackson, an Indiana Criminal Court judge ordered a
defendant be committed “until sane” when evidence suggested he would never become sane.205
The Supreme Court ruled this indefinite commitment violated the defendant’s due process
rights.206 Neither the Supreme Court in Jackson nor our Court of Appeals in Geness I took issue

with the defendant suing the State of Indiana for the conduct of its judges. We agree with
Mr. Geness and will not disturb our earlier ruling.
B. We deny Mr. Geness’s motion for summary judgment as the fact-finder must
evaluate credibility and decide deliberate indifference.

Although we find Mr. Geness established the Commonwealth violated Title II based on
the one service relating to competency restoration including Judge Wagner’s Order committing
Mr. Geness to Long Term Structured Release in spite of Dr. Chaudhary’s determination
Mr. Geness would never be competent to stand trial, we deny him judgment as a matter of law as
to whether the Commonwealth, through its judges, exhibited deliberate indifference to
Mr. Geness’s rights.207 This decision requires fact finding and evaluating credibility.
As discussed above, Mr. Geness established “he is a qualified individual with a disability,
who was precluded from participating in a program, service, or activity, or otherwise was subject
to discrimination, by reason of his disability.”208 But to establish his claim for compensatory
damages, Mr. Geness “must also show intentional discrimination under a deliberate indifference
standard.”209 To satisfy the deliberate indifference standard, Mr. Geness must establish the

judges: (1) knew “that a federally protected right is substantially likely to be violated” and
(2) “fail[ed] to act despite that knowledge.”210 “Deliberate indifference requires actual
knowledge.”211 Mr. Geness cannot satisfy the deliberate indifference standard by showing the
judges “would have” or “should have known” his rights were substantially likely to be
violated.212 “Deliberate indifference must be a deliberate choice, rather than negligence or
bureaucratic inaction.”213
Mr. Geness argues we can find deliberate indifference as a matter of law because the
facts in this case are largely undisputed. But while the facts may not be in dispute, “a case is not
suitable for summary judgment when there are undisputed facts from which different inferences
might be drawn and as to which reasonable minds might differ.”214 Reasonable minds could

draw different inferences as to the issue of deliberate indifference on the evidence presented.
While Mr. Geness paints a picture of judges who stood idly by as he languished in prison and,
later, in an institution, the record depicts a more complex situation where Public Defender
Whiteko forgot about his client from 2007 to 2010, District Attorney Heneks failed to respond to
discovery requests from 2012 to 2014, Attorney Tummons failed to move to compel discovery
until 2015, and the DHS refused to comply with numerous court orders to have Mr. Geness
transferred to a mental health facility for evaluation. Regarding Judge Wagner’s Order
committing Mr. Geness to Long Term Structured Release, reasonable minds could differ as to
whether Judge Wagner exhibited deliberate indifference.
When the medical professionals from Torrance determined Mr. Geness would likely
never become competent, Judge Wagner ordered Mr. Geness committed to Long Term

Structured Release through Chestnut Ridge Counseling Services, Inc., “to be returned to the
Fayette County Jail upon completion of his therapeutic program or a determination that he is
competent to stand trial, whichever comes first.”215 As discussed supra, under Geness I this act
violated Mr. Geness’s rights under Title II of the Americans with Disabilities Act and the
Fourteenth Amendment. But without evidence of Judge Wagner’s state of mind, we cannot find
as a matter of law he acted with deliberate indifference.
Judge Wagner’s Order provided two alternative scenarios under which Mr. Geness be
“returned to Fayette County Jail”: (1) upon completion of a therapeutic program; or (2) a
determination that he is competent to stand trial.216 A reasonable juror could determine Judge
Wagner believed he was sentencing Mr. Geness to a temporary stay at Chestnut Ridge

Counseling Services to complete a program, which would prepare Mr. Geness for his eventual
release and allow him to receive critical services while his lawyers determined where Mr. Geness
would go. Chestnut Ridge Counseling Services’ website advertises its purpose is to “allow[] you
to transition back into the community with the support and skills necessary to be successful in
your recovery journey.”217 The adduced evidence establishes Mr. Geness is unable to live on his
own, and a “release” would necessarily involve transitioning him to a facility for disabled or
mentally ill adults. As Mr. Geness had neither family nor an appointed guardian when Judge
Wagner entered his order, either the Commonwealth or Mr. Geness’s counsel would need to
make arrangements for this transition and would potentially need to initiate civil commitment
proceedings. A reasonable juror could find Judge Wagner sought to ensure Mr. Geness received
appropriate mental health services while his attorney and the Commonwealth attorneys
determined next steps.218 But a reasonable juror could alternatively determine Judge Wagner
knew the effect of his Order of potentially indefinite involuntary commitment violated the

Fourteenth Amendment. Simply put, at this stage, we have no evidence of Judge Wagner’s state
of mind. We cannot find deliberate indifference as a matter of law.
III. Conclusion

We grant the Commonwealth’s motion for summary judgment on claims arising from
DHS’s role in housing Mr. Geness in suitable facilities. We grant the Commonwealth’s motion
to the extent liability is predicated on the conduct of the AOPC, but we deny the
Commonwealth’s motion for summary judgment to the extent liability is predicated on the
deliberate indifference of the Court of Common Pleas judges. While we find the Commonwealth
violated Title II of the Americans with Disabilities Act and the Fourteenth Amendment as a
matter of law when, after receiving a determination Mr. Geness would never become competent,
Judge Wagner committed him to Long Term Structured Release for an indefinite period of time,
we find reasonable minds could differ as to whether this order and subsequent conduct up to the
December 2015 dismissal of criminal charges exhibited deliberate indifference to Mr. Geness’s
rights.

1 Unlike our earlier review of pleadings, we today have the benefit of a fulsome record
supporting cross-motions for summary judgment. Mr. Geness’s counsel dismissed Fayette
County without explanation, released the Commonwealth as to its liability for the conduct of its
Department of Human Services in exchange for a fair settlement, and our Court of Appeals held
the Administrative Office of Pennsylvania Courts cannot be directly liable. He now continues his
claims against the Commonwealth.
Our Policies require a Statement of Undisputed Material Facts (“SUMF”) and an appendix in
support of a motion for summary judgment. Each party prepared an appendix in support of their
cross-motions for summary judgment. The Commonwealth filed a statement of undisputed facts
at ECF Doc, No. 261 and an appendix at ECF Doc. No. 262. Mr. Geness filed an errata
statement of undisputed facts at ECF Doc. No. 272 and an errata appendix at ECF Doc. No. 273.
Mr. Geness also filed a counterstatement of Material Facts at ECF Doc. No. 280 and an appendix
to his counterstatement of facts at ECF Doc. No. 281.The Commonwealth filed an errata
response to Mr. Geness’s statement of undisputed facts at ECF Doc. No. 299 and an appendix to
the response to Mr. Geness’s statement of material facts at ECF Doc. No. 300. References to the
appendices are by ECF document number and the corresponding Bates number, for example,
“1a.”
2 ECF Doc. No. 262 at 309a.
3 Id. at 288a.
4 Id. at 2a.
5 Id. at 3a.
6 ECF Doc. No. 273-1 at 496a, 498a.
7 Id.
8 Id.
9 Id.
10 ECF Doc. No. 262 at 8a.
11 Id.
12 Id.
13 Id. at 14a.
14 Id.
15 Id.
16 Id. at 300a-301a.
17 Id.
18 Id. at 15a.
19 Id.
20 ECF Doc. No. 273-1 at 495a.
21 Id. at 496a-497a.
22 Id. at 497a.
23 Id.
24 Id. at 498a.
25 Id.
26 Id. at 303a.
27 ECF Doc. No. 262 at 15a.
28 The Fayette County Rules of Criminal Procedure contain little detail regarding the Call of the
Criminal Trial List procedures, and thus, we glean our understanding from the transcripts of the
proceedings. See generally, ECF Doc. No. 273-1, Ex. 7B.
29 See generally, Id., Ex. 7a; see e.g., 1191a.
30 See generally, Id. Ex. 7b.
31 See, e.g., id. at 1078a (“What pages do the cases start on? . . . They start at Case Number
Thirty, Your Honor, on page three. The extraneous matters are all before that.”)
32 While it is not entirely clear from the record, it appears these transcripts are excerpts.
33 ECF Doc. No. 262 at 15a-16a.
34 ECF Doc. No. 273 at 1104a.

35 Id.
36 ECF Doc. No. 262 at 16a.
37 Id.
38 Id.
39 Id.
40 Id. at 16a.
41 Id.
42 Id. at 304a.
43 Id. at 306a.
44 Id.
45 Id. at 305a.
46 Id. at 304a.
47 Id.
48 Id. at 306a-307a.
49 Id.
50 Id.
51 Id. at 17a.
52 Id.
53 Id.
54 ECF Doc. No. 273-1 at 552a.
55 ECF Doc. No. 262 at 285a.
56 Id. at 287a.
57 Id. at 298a.
58 Id. at 273a. Clinton Anderson then served as a Mental Health Program Manager for the Fayette
County Behavioral Health Administration. Id. at 290a.
59Crossroads-Term Structured Release, Chestnut Ridge Services, Inc.,
https://www.crcsi.org/services/ltsr/ (last visited Nov. 29, 2020). We take judicial notice of this
website as a matter of public record. Hena v. Vandegrift, No, 18-762, 2020 WL 1158640, at *25
(W.D. Pa. Mar. 10, 2020).
60 ECF Doc. No. 292 at 314a, 338a.
61 ECF Doc. No. 273 at 1128a-29a.
62 Id. at 1130a-31a.
63 Id. at 1134a-35a.
64 Id. at 1129a, 1131a, 1135a,
65 ECF Doc. No. 292 at 185a.
66 Id. at 187a.
67 Id. at 186a.
68 Id. at 18a.
69 Id. at 196a.
70 Id.
71 Id. at 191a, 196a.
72 Id. at 191a.
73 ECF Doc. No. 281-1 at 1282.
74 Id. at 1283a.
75 ECF Doc. No. 262 at 19a.
76 Id.
77 Id. at 21a.
78 ECF Doc. No. 281-1 at 1284a.
79 ECF Doc. No. 273 at 1154a-55a.
80 Id. at 1155a.
81 Id. at 1228a-29a.
82 Id. at 1179a-80a.
83 Id. at 1180a.
84 Id. at 1229a.
85 Id. at 1191a.
86 Id. at 1192a.
87 Id.
88 Id. at 506a.
89 Id. at 513a, 515a, 516a.
90 Id. at 524a.
91 Id.
92 Id.
93 Id. at 524a-25a.
94 Id. at 525a.
95 Id. at 529-30.
96 Id. at 518a.
97 Id.
98 Id. at 528a.
99 Id.
100 Id. at 535a.
101 Id. at 536a.
102 Id.
103 ECF Doc. No. 273-1 at 537a.
104 Id.
105 Id.
106 Id. at 511a.
107 Id.
108 ECF Doc. No. 262 at 22a.
109 ECF Doc. No. 273 at 1267a-68a.
110 ECF Doc. No. 262 at 326a.
111 Id. at 329a-331a.
112 Id. at 327a.
113 Id at 328a.
114 Id.
115 Id. at 331a, 337a.
116 Id. at 336a, 339a.
117 ECF Doc. No. 273 at 1269a-70a.
118 ECF Doc. No. 262 at 24a.
119 Id.
120 Id. at 23a.
121 ECF Doc. No. 1.
122 42 U.S.C. § 12131 et seq.
123 ECF Doc. No. 1.
124 ECF Doc. No. 15.
125 ECF Doc. No. 30.
126 ECF Doc. No. 36.
127 ECF Doc. No. 33. Mr. Geness’s counsel voluntarily dismissed Fayette County although both
parties now advise it is the entity responsible for the prosecutors and public defender. As
Mr. Geness’s counsel never sought our approval of dismissing a party arguably in the center of
this tragedy, we do not know whether counsel somehow released the County or if the County
paid for its release. Mr. Geness now has the benefit of an experienced guardian ad litem for
purposes of this case and we query whether this voluntary dismissal served Mr. Geness’s
interests as his counsel admitted Mr. Geness could not evaluate the fairness of dismissing the
DHS and we wonder how he could evaluate the fairness of voluntarily dismissing Fayette
County.
128 ECF Doc. No. 64.
129 ECF Doc. No. 99.
130 ECF Doc. No. 74.
131 ECF Doc. No. 76.
132 ECF Doc. Nos. 92, 93.
133 ECF Doc. No. 93 at 7-8.
134 ECF Doc. No. 100.
135 ECF Doc. Nos. 110, 111.
136 ECF Doc. Nos. 113, 115.
137 902 F.3d 344 (3d Cir. 2018) (“Geness I”).

138 Id. at 349, 355.
139 Id at 360.
140 Id. at 365.
141 Id. at 362 (quoting Haberle v. Troxell, 885 F.3d 170, 178-79 (3d Cir. 2018)).
142 Id.
143 Id.
144 Id.
145 Id. at 363.
146 974 F.3d 263 (3d Cir. 2020) (“Geness II”).
147 ECF Doc. No. 121. Mr. Geness later withdrew his claims against the judges of the Court of
Common Pleas of Fayette County and one claim against the Administrative Office of
Pennsylvania Courts. ECF Doc. No. 150. We wonder how Mr. Geness could have fairly
evaluated his counsel’s decision to dismiss the judges when his counsel later admitted Mr.
Geness could not fairly evaluate the fairness in dismissing the DHS.
148 ECF Doc. No. 183.
149 ECF Doc. No. 188.
150 ECF Doc. No. 198.
151 Id. at 7-8.
152 546 U.S. 151 (2006).

153 Geness II, 974 F.3d at 273-78, n.9.
154 Id. at 274.
155 Id. at 275.
156 Id. at 276.
157 Id.
158 Id.
159 Id.
160 Id. at 278.
161 Id.
162 Id.
163 Id.
164 Pet. For Rehearing, Geness II, No. 19-2253, ECF Doc. No. 68 (3d Cir. Sept. 22, 2020).
165 Order, Geness II, No. 19-2253, ECF Doc. No. 79 (3d Cir. Oct. 29, 2020).
166 ECF Doc. No. 333.
167 ECF Doc. No. 326.
168 Id.
169 ECF Doc. No. 329.
170 ECF Doc. No. 260.
171 ECF Doc. No. 335 at 2.
172 ECF Doc. No. 264.
173 ECF Doc. No. 334.
174 Summary judgment is proper when “the movant shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “Material facts are those ‘that could affect the outcome’ of the proceeding, and ‘a
dispute about a material fact is ‘genuine’ if the evidence is sufficient to permit a reasonable jury
to return a verdict for the non-moving party.’” Pearson v. Prison Health Serv., 850 F.3d 526, 534
(3d Cir. 2017) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). On a motion
for summary judgment, “we view the facts and draw all reasonable inferences in the light most
favorable to the nonmovant.” Pearson, 850 F.3d at 533-34 (3d Cir. 2017) (citing Scott v. Harris,
550 U.S. 372, 378 (2007)). “The party seeking summary judgment ‘has the burden of
demonstrating that the evidentiary record presents no genuine issue of material fact.’” Parkell v.
Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting Willis v. UPMC Children’s Hosp. of
Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)). If the movant carries its burden, “the nonmoving
party must identify facts in the record that would enable them to make a sufficient showing on
essential elements of their case for which they have the burden of proof.” Willis, 808 F.3d at 643
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If, after adequate time for
discovery, the nonmoving party has not met its burden, pursuant to Federal Rule of Civil
Procedure 56, the court must enter summary judgment against the nonmoving party.” Willis, 808
F.3d at 643 (citing Celotex Corp., 477 U.S. at 322-323).
175 ECF Doc. No. 335 at 2.
176 “Plaintiff and Defendant Department of Human Services (“DHS”) have entered into a
settlement of the claims raised against DHS in Count II of Plaintiff’s Second Amended
Complaint. The claims set forth in Count II of the Second Amended Complaint, are therefore, no
longer an issue in this case. Therefore, to the extent that the Commonwealth was named as a
party in Count II, the Commonwealth’s liability for issues raised in that Count is extinguished.”
ECF Doc. No. 263 at 1 n.1

177 See, e.g., Blythe v. Del. Cnty. Bd. of Prison Inspectors, No. 16-4673, 2018 WL 1620980, at *2
(E.D.Pa. Apr. 4, 2018) (granting summary judgment where plaintiff concedes it is appropriate as
to certain defendants).
178 Geness I, 902 F. 3d at 361-62.
179 Geness II, 974 F.3d at 278.
180 During oral argument, Mr. Geness’s counsel argued his theory of liability against the
Commonwealth is a direct theory, not a respondeat superior or a vicarious liability theory. But
when asked to explain why we should hold the Commonwealth liable, he said the
Commonwealth admitted the judges are its instrumentalities and the judges violated Mr.
Geness’s rights. This, by definition, is a vicarious liability theory. Simmons v. Simpson House,
Inc., 224 F. Supp. 3d 406, 413 (E.D. Pa. 2016) (“Vicarious liability ‘is a policy-based allocation
of risk’ that holds one party liable for the actions of another due to a pre-existing relationship
between the two parties.” (quoting Crowell v. City of Phila., 613 A.2d 1178, 1181 (Pa. 1992))).
181 Geness II, 974 F.3d at 273.
182 Id. at 274 n.9 (citing United States v. Georgia, 546 U.S. 151, 159 (2006)).
183 Id. (internal citations and quotation marks omitted).
184 ECF Doc. No. 299 ¶¶ 1-2.
185 Geness II, 974 F.3d at 273.
186 Geness I, 902 F.3d at 361-62.
187 Id.
188 Id. at 363-64.
189 ECF Doc. No. 259-60.
190City and Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1773-74 (2015) (“[T]he parties
agree that [a public] entity can be held vicariously liable for money damages for the purposeful
or deliberately indifferent conduct of its employees . . . [b]ut we have never decided whether that
is correct, and we decline to do so here, in the absence of adversarial briefing.”)
191 Waters v. Amtrak, 456 F. Supp. 3d 666, 671 (E.D. Pa. 2020) (“When a public entity like
Amtrak is sued under Title II, the entity is vicariously liable for the acts of its employees.”);
Sharrow v. Bailey, 910 F. Supp. 187 (M.D. Pa. 1995) (denying motion to dismiss vicarious
liability Americans with Disabilities Act claim against a hospital based on the conduct of a
physician).
192 Gunyup v. Lancaster Cnty., No. 06-4315, 2008 WL 4771852, at *1 (E.D.Pa. Oct. 29, 2008);
see also Zimmerman v. Berdanier, No. 07-818, 2008 WL 11503557, at *6 n.10 (M.D. Pa. Jan.
25, 2008) (“Only public entities, rather than individuals, may be liable for violations of Title II of
the ADA.”)
193 Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001) (“When a plaintiff brings a
direct suit under . . . Title II of the ADA against a municipality (including a county), the public
entity is liable for the vicarious acts of its employees).
194 Delano–Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574–75 (5th Cir.2002) (holding “when a
plaintiff asserts a cause of action against an employer-municipality, under either the ADA or the
RA, the public entity is liable for the vicarious acts of any of its employees”); Casas v. City of El
Paso, 502 F. Supp. 2d 542, 552 (W.D. Tex. 2007) (“A plaintiff, however, need not show that the
intentional discrimination was the result of an official policy or attributable to a policymaker. . .
Rather, a public entity is vicariously liable for the discriminatory acts of its agents.”)
195 524 U.S. 274, 290 (1998). See e.g., Ravenna v. Village of Skokie, 388 F Supp. 3d 999, 1008
(N.D. Ill. 2019) (“For these reasons, the Court holds that in order to succeed on her Title II claim
Ravenna must prove, in accordance with Gebser, that a Skokie ‘official who at a minimum has
authority to address the alleged discrimination and to institute corrective measures on [Skokie's]
behalf ha[d] actual knowledge of discrimination in [Skokie's] programs and fail[ed] to
adequately respond.” (quoting Gebser., 524 U.S. at 290)).
196 Gebser, 524 U.S. at 277.
197 Id. at 276.
198 ECF Doc. No. 146 at 13.
199 Gebser, 524 U.S. at 290.
200 ECF Doc. No. 198 at 7-10.
201 Pub. Int. Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.
1997).
202 Geness II, 974 F.3d at 274 n.12.
203 Geness I, 902 F. 3d at 362.
204 Id. at 363-64 (discussing Jackson v. Indiana, 406 U.S. 725 (1972)).
205 406 U.S. at 725.
206 Id. at 731.
207 During oral argument, the Commonwealth argued the Commonwealth as an entity cannot
have the scienter required for deliberate indifference. The Commonwealth did not cite authority
for this proposition, and our research indicates a state may be held liable for the deliberate
indifference of its judges. See, e.g., Reed v. Ill., 119 F. Supp. 3d 879 (N.D. Ill. 2015) (dismissing
judges as defendants but allowing the Americans with Disabilities Act claim against the state of
Illinois to go forward where the complaint adequately pleaded deliberate indifference of state
judges).
208 See supra, Part III.A.2.i; see also Furgess v. Pa. Dep’t of Corrs., 933 F.3d 285, 288-89 (3d
Cir. 2019).
209 Furgess, 933 F.3d at 289.
210 S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 266 (3d Cir. 2013).
211 Id. at 266 n.26 (emphasis in original).
212 Id.
213 Chambers v. School Dist. of Phila. Bd. of Educ., 537 Fed. App’x 90, 96 (3d Cir. 2013)
(quoting Durrell, 729 F.3d at 263).
214 People’s United Equip. Fin. Corp. v. Napcon, Inc., No. 11-0771, 2013 WL 1856654, at *3
(M.D. Pa. 2013) (quoting Moore's Federal Rules Pamphlet 2013 § 56.8[2].)).
215 ECF Doc. No. 262 at 95a.
216 Id.
217Crossroads-Term Structured Release, Chestnut Ridge Services, Inc.,
https://www.crcsi.org/services/ltsr/ (last visited Nov. 29, 2020).
218 The adduced evidence may support this inference regarding Judge Wagner’s state of mind.
For example, during a monthly call of the list on August 26, 2013, almost two years after Judge
Wagner ordered Mr. Geness to Long Term Structured Release, Judge Wagner learned the county
incarcerated a different incompetent defendant at the Fayette County Jail awaiting trial. Judge
Wagner said the jail was “the worst place” the defendant “could be right now.” ECF Doc. No.
273-8 at 1191a. Judge Wagner then asked the attorneys, “[s]o why aren’t we at least getting him
to Torrance, and then work out whatever you want to work out?” Id. When the attorneys
explained there was a hold up at the Attorney General’s office, Judge Wagner replied, “[b]ut he
shouldn’t be over here where he gets no services whatsoever” and continued “why can’t we
simply do an order and have him transferred to Torrance, and whatever you and the AG what to
do after that I could care less . . .” Id. at 1192a.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416076. Public record. Not legal advice.