Chisolm v. Manimon

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

12-28-2001

Chisolm v. Manimon

Precedential or Non-Precedential:

Docket 00-1865

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Filed December 28, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1865

RONALD CHISOLM

Appellant

v.

PATRICK MCMANIMON, JR., DIRECTOR OF MERCER

COUNTY DETENTION CENTER;

MERCER COUNTY COURT,

Appellees

UNITED STATES OF AMERICA,

Intervenor

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 95-cv-00991)

District Judge: Honorable Mary Little Cooper

Argued on July 24, 2001

Before: ROTH, BARRY and AMBRO, Circuit Judges

(Opinion filed December 28, 2001)

Clara R. Smit, Esquire

Turnpike Metroplex

190 Highway 18 North, Suite 200

East Brunswick, NJ 08816

Marc Charmatz, Esquire

Mary Vargas, Esquire (Argued)

Sarah Geer, Esquire

Claudia Gordon, Esquire

National Association of the

Deaf Law Center

814 Thayer Avenue

Silver Spring, MD 20910

Attorneys for Appellant

Andrew J. Schragger, Esquire

Ashley Bostic-Hutchinson, Esquire

(Argued)

Office of County Counsel,

County of Mercer

640 South Broad Street

McDade Administration Building

Trenton, NJ 08650

Doulgass L. Derry, Esquire (Argued)

Office of Attorney General of

New Jersey

Department of Law & Public Safety

Richard J. Hughes Justice Complex

Trenton, NJ 08625

John J. Farmer, Jr.

Attorney General of New Jersey

Nancy Kaplen

Assistant Attorney General

Diane M. Lamb

Deputy Attorney General

Office of Attorney General of

New Jersey

25 Market Street

Trenton, NJ 08625

Attorneys for Appellees

2

Seth M. Galanter, Esquire

United States Department of Justice

Civil Rights Division

P.O. Box 66078

Washington, DC 20035-6078

Attorney for Intervenor

OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, we must resolve two issues. First, we

consider whether the Eleventh Amendment bars suit

against a county court, based on an alleged failure to

provide interpretive services, where the judicial, but not all

the administrative, functions of the court have been merged

by steps into a unified state court system. Under the facts

here, we hold that suit is not barred. Second, we review

whether the District Court properly granted summary

judgment, dismissing claims brought by a disabled inmate

under Title II of the Americans with Disabilities Act, 42

U.S.C. SS 12131-12135 ("ADA"), Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. S 794 ("Rehabilitation

Act"), 42 U.S.C. S 1983 and the New Jersey Law Against

Discrimination, N.J. Stat. S 10:5-4.1 (NJLAD). Because we

conclude that there are genuine issues of material fact, we

will reverse the granting of summary judgment by the

District Court and remand this case for further proceedings

consistent with this opinion.

I. Factual and Procedural History

A. Ronald Chisolm's Detention at the Mercer County

Detention Center

On Saturday, September 10, 1994, while driving in

Mercer County, New Jersey, Ronald Chisolm, a deaf person

who communicates primarily through American Sign

Language (ASL), was stopped by officers of the Princeton

Police Department. The officers arrested Chisolm pursuant

to a Bucks County, Pennsylvania, bench warrant. The

3

bench warrant was issued in 1990 because Chisolm failed

to attend an intoxicated driver resource program. The

program was required as part of his sentence following a

1987 guilty plea to driving under the influence. After

Chisolm's arrest, he was taken to the Mercer County

Detention Center (MCDC) to await extradition to Bucks

County. He was admitted to MCDC at 3:40 p.m on

Saturday afternoon.

MCDC, which has since closed, was a maximum security,

pretrial detention facility located in Trenton, New Jersey. It

housed detainees who were awaiting extradition to other

states or were awaiting trial on indictable charges, ranging

from murder to narcotics-related offenses. When inmates

arrived at MCDC during the week, they were generally

processed within a few hours. Processing occurred at the

intake unit (4 North Living Unit) and involved a

classification assessment to determine the inmate's security

threat, custody status, and appropriate placement within

MCDC. However, the MCDC's classification staff worked

only Monday through Friday. On weekends, newly arrived

detainees were "locked-down" in their cells either in the 4

North Living Unit or in the Receiving and Discharge Unit

(R&D) to keep them apart from the general inmate

population before classification. These unclassified

detainees consumed their meals in their cells and did not

have television or telephone privileges.

When Chisolm arrived at MCDC on Saturday afternoon,

an MCDC employee attempted to interview him. Chisolm

indicated to the employee that he was deaf and could not

understand her. Chisolm then requested an ASL interpreter

and a TDD.1 In addition, he asked that his hearing

roommate, Kenneth Knight, be contacted. Chisolm

contends that MCDC failed to provide the requested aids

and failed to contact Knight. He also claims that MCDC did

not provide him with any initial intake information, such as

_________________________________________________________________

1. A TDD is a machine that allows those with hearing disabilities to

communicate with others by telephone. The TDD translates spoken

words into written text for the deaf user. The deaf user then responds by

typing his message into the TDD which transforms the typed message

into spoken words.

4

the reason for his detention or the rules and regulations of

the facility.

Later that afternoon, Chisolm was taken to an MCDC

nurse. Chisolm claims that he was upset, but, without an

ASL interpreter, he could not explain why he was upset.

MCDC asserts, however, that Chisolm was given paper and

a pencil in order to communicate with MCDC personnel.

The MCDC nurse conducted a medical evaluation of

Chisolm and determined that he might be a suicide risk.

MCDC contends that Chisolm's behavior caused concern

that he might harm himself.

Chisolm was kept in solitary lock down in cell 304 of

R&D from Saturday, September 10, until Tuesday,

September 13. During this time, he did not have access to

a television set because there wasn't one in R&D. Moreover,

pursuant to MCDC policies, Chisolm could not have access

to a telephone until he was classified.

On Monday, September 12, Chisolm was taken to penal

counselor Jennifer Rubin for custody classification. Rubin

gave him a numeric assessment of 10, which resulted in a

custody classification of "medium."2 Notwithstanding the

fact that Chisolm had worked for the U.S. Postal Service for

13 years and had lived at the same address for 3 years,

Rubin described him as an unemployed "vagrant." This

error added 2 points to Chisolm's assessment, resulting in

his medium custody classification. Without this error,

Chisolm's custody classification would have been

"minimum."

Also on the morning of September 12, Warden

McManimon informed another penal counselor, Donna

_________________________________________________________________

2. In processing and classifying Chisolm pursuant to MCDC policies,

Rubin reviewed the following factors used to determine an inmate's

custody status: 1) severity of the current offense; 2) assaultive offense

history; 3) history of institutional violence; 4) any assaults occurring

within the six months preceding detention; 5) disciplinary reports; 6)

current detainer; 7) amount of bail; 8) inmate's sentence; 9) stability

factor; and 10) inmate's employment status. For male inmates, a

numeric assessment of 15 or more points resulted in maximum custody

classification; 10-14 points resulted in medium custody classification;

and 9 points or less resulted in minimum custody classification.

5

Walker, that a hearing impaired inmate had been admitted.

Walker attempted to communicate with Chisolm through lip

reading and writing notes. Chisolm asked Walker to contact

Knight and again requested a TDD. Although MCDC did not

have a TDD, Walker did contact Knight who brought

Chisolm's own TDD to MCDC that same day. MCDC,

however, had to log in and examine the TDD before

releasing it to Chisolm. For that reason, Chisolm did not

receive it until Tuesday, September 13. Because of his

hearing disability and the failure of MCDC to provide him

with a TDD, Chisolm was not able to use a telephone on

Monday, September 12.

On September 13, Chisolm was transferred to cell 24 of

4 North Living Unit, where he remained until his discharge

the next day. This unit had a television set equipped with

closed captioning. Warden McManimon stated that if

Chisolm wanted to have the closed captioning activated,

Chisolm only needed to request the service. Chisolm

contends, however, that he did not request closed

captioning because he did not know that it was available.

While in 4 North Living Unit, Chisolm was able to place

telephone calls using his own TDD. MCDC did not impose

its time limit of 15 minutes for telephone use on Chisolm

because of the additional time necessary to type and read

text on the TDD.

B. Chisolm's Appearance Before the Mercer County

Vicinage

On September 14, 1994, Chisolm was brought before the

Mercer County Vicinage for an extradition hearing. There

was no ASL interpreter present to aid Chisolm. For this

reason, the judge postponed the extradition hearing and

sent Chisolm back to MCDC. The hearing was rescheduled

for September 20, which was the earliest date that the

Vicinage's ASL interpreter was available. After his return to

MCDC, Chisolm called Knight by TDD. Knight contacted an

attorney, Clara Smit.

Smit arranged to have an ASL interpreter available the

next morning to interpret court proceedings. Smit also

contacted the Bucks County District Attorney's office and

had Chisolm's bench warrant quashed. Chisolm was then

6

released from MCDC that same day, and the court hearing

was canceled. The parties agree that, but for the

intervention by Smit, Chisolm's hearing would have been

rescheduled for September 20.

C. Relevant History of the Vicinage3

The Vicinage originally was organized as one of many

locally-funded county courts authorized under Article IV of

the New Jersey Constitution. See N.J. Const. art.VI, S 4,

P 1-5 (amended 1978). However, pursuant to constitutional

amendments passed in 1978, 1983 and 1992, the Vicinage

and other county courts have been merged gradually into

New Jersey's state-based Superior Court system. See N.J.

Assembly Concurrent Resolution No. 38 (filed July 25, 1978)

(abolishing county courts); N.J. Assembly Concurrent

Resolution No. 84 (filed Feb. 10, 1983) (authorizing the

transition by which county court judges became New Jersey

Superior Court Judges without nomination or

confirmation); N.J. Senate Concurrent Resolution No. 58,

1992 N.J. Sess. Law Serv. A-3 (West) (setting forth plan by

which New Jersey became responsible for certain judicial

costs and fees, and county judicial employees became

employees of the State, on or before July 1, 1997).

In connection with the transition from a county court

system to a state court system and in order to implement

the 1992 Amendment, the New Jersey legislature enacted

the State Judicial Unification Act, N. J. Stat.SS 2B:10-1 to

2B:10-9 (2001) (SJUA). Pursuant to the SJUA, the State of

New Jersey assumed certain judicial costs and related

liabilities of the Vicinage. See N.J. Stat.S 2B:10-7 (2001).

Significantly, however, the Vicinage retained liability for

"any tort claim . . . where the date of loss was prior to

January 1, 1995." Id. at 2B:10-7(c)(2). Additionally, a New

Jersey statute requires individual counties to provide

_________________________________________________________________

3. A history of the incorporation of New Jersey's county courts into its

unified state court system is set forth in Board of Chosen Freeholders v.

New Jersey, 732 A.2d 1053 (N.J. 1999). We will recite only that portion

of this history relevant to our analysis of the sovereign immunity of the

Vicinage.

7

necessary interpreting services for the hearing impaired in

court proceedings. See id. at 2B:8-1.4

D. Procedural History

On March 6, 1995, Chisolm filed a complaint in United

States District Court for the District of New Jersey against

McManimon in his capacity as Warden of MCDC and

against the Vicinage. He alleged that MCDC discriminated

against him, while he was detained, by failing to provide

him with an ASL interpreter, a TDD, and television

captioning service, in violation of Title II of the ADA, Section

504 of the Rehabilitation Act, 42 U.S.C. S 1983, and the

NJLAD. He alleged that the Vicinage discriminated against

him by failing to provide him with an ASL interpreter for his

extradition hearing, when initially scheduled, in violation of

the same statutes. Chisolm sought compensatory and

punitive damages.

On June 11, 1997, the District Court granted summary

judgment in favor of the Vicinage on Chisolm's ADA,

Rehabilitation Act, and 42 U.S.C. S 1983 claims, and

dismissed the NJLAD claim for lack of subject matter

jurisdiction. See Chisolm v. Manimon, Civ. No. 95-0991 (D.

N.J. filed Jun. 11, 1997).5 The District Court held that

Chisolm's ADA and Rehabilitation Act claims must fail

because he was never excluded from a program by reason

of his disability, i.e., his extradition hearing never occurred.

The District Court also raised sua sponte the issue of the

Vicinage's sovereign immunity under the Eleventh

Amendment to the United States Constitution. Finding that

Congress validly abrogated the states' Eleventh Amendment

immunity in enacting Title II of the ADA, the District Court

_________________________________________________________________

4. After the judicial unification, Section 2B:8-1 was amended to clarify

that "interpreting services" included interpreters for the hearing

impaired. See 1995 N.J. Laws c. 98, S 1 (effective May 9, 1995). The

statute does not, however, require the state to pay for these services.

See

id. Significantly, responsibility for providing interpreters was kept with

the counties. See N.J. Stat. S 2B:8-1 (2001).

5. The case was captioned improperly as "Ronald Chisolm v. Patrick

Manimon, Jr." In this opinion, we use the proper spelling of the warden's

name, "McManimon."

8

ruled that the Vicinage was not immune from Chisolm's

suit.

On May 18, 2000, the District Court granted summary

judgment for MCDC (McManimon in his official capacity) on

Chisolm's ADA, Rehabilitation Act and NJLAD claims and

dismissed all of Chisolm's claims.6 Chisolm v. Manimon, 97

F.Supp.2d 615 (D. N.J. 2000). The court concluded that

"any rational trier of fact would find that reasonable

accommodations were provided to Chisolm by defendant,

and that any requested accommodations which were not

provided . . . would not have been reasonable in the setting

of a correctional institution." Id.

Chisolm timely appealed.

II Jurisdiction and Standard of Review

The District Court had jurisdiction over this case

pursuant to 28 U.S.C. S 1331. We have jurisdiction

pursuant to 28 U.S.C. S 1291.

We exercise plenary review over the grant of summary

judgment, applying the same standard that the lower court

should have applied. See Farrell v. Planters Lifesavers Co.,

206 F.3d 271, 278 (3d Cir. 2000). Summary judgment is

appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). Facts

are "material" if they could affect the outcome of the suit

under the governing substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d

202 (1986). We must view the facts in the light most

favorable to the non-moving party, see Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw"all

justifiable inferences in [its] favor." Anderson, 477 U.S. at

255.

_________________________________________________________________

6. The court also granted summary judgment in favor of MCDC on

Chisolm's Section 1983 claim, finding no facts supporting a procedural

due process claim.

9

III. Discussion

A. Sovereign Immunity of the Vicinage

Before turning to the merits of Chisolm's claims against

MCDC and the Vicinage, we must address whether, under

the Eleventh Amendment to the U.S. Constitution, the

Vicinage is immune from Chisolm's suit. Having raised the

issue sua sponte, the District Court held that the Vicinage

did not enjoy Eleventh Amendment sovereign immunity.

Although we reach the same conclusion as the District

Court, we do so for different reasons.7 Specifically, we hold

that the Vicinage cannot assert sovereign immunity in this

case because at the time of the actions giving rise to this

suit and at the time this suit was brought, the Vicinage did

not qualify as an entity that is an arm of the state. So

holding, we need not address (1) whether the Vicinage

waived the immunity defense by its conduct in litigation or

(2) whether Congress validly abrogated Eleventh

Amendment immunity when enacting Title II of the ADA.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

_________________________________________________________________

7. The District Court concluded that Congress had abrogated Eleventh

Amendment immunity with respect to suits arising out of the ADA and

the Rehabilitation Act. See id. at 4-10. See also Seminole Tribe of

Florida

v. Florida, 517 U.S. 44, 55 (1996) (setting forth the test by which a

court

must determine whether Congress has abrogated the states' sovereign

immunity from suit).

After the District Court decided the immunity issue, the United States

Supreme Court held that Congress did not abrogate the states' sovereign

immunity by enacting Title I of the ADA in Board of Trustees of the

University of Alabama v. Garrett, 531 U.S. 356 (2001); see also Lavia v.

Pennsylvania Dept. of Corrections, 224 F.3d 190 (3d Cir. 2000) (holding

that Congress did not validly abrogate states' Eleventh Amendment

sovereign immunity from suit under ADA's Title I). Significantly,

however, the Garrett Court did not address whether Congress abrogated

Eleventh Amendment immunity in the context of suits brought under

Title II of the ADA. See id. at 960 n.1 (noting a split among the Courts

of Appeals on this issue but declining to resolve the split without the

benefit of briefing). Accordingly, the District Court's opinion is not

invalidated expressly by Garrett.

10

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

U.S. Const. amend. XI. The Supreme Court has interpreted

the Eleventh Amendment to provide each state with

immunity not only from suits brought by citizens of other

states, but also from suits brought by its own citizens. See,

e.g., Hans v. Louisiana, 134 U.S. 1 (1890).

While Eleventh Amendment immunity may be available

for states, its protections do not extend to counties. See

Lincoln County v. Luning, 133 U.S. 529 (1890). Rather, for

Eleventh Amendment immunity to apply, a court must

determine that a state is a real party-in-interest. See, e.g.,

Ford Motor Co. v. Department of Treasury of Indiana , 323

U.S. 459, 464 (1945). Accordingly, Eleventh Amendment

immunity will not be available to a state merely by virtue of

the fact that such state is named formally as a defendant.

See, e.g., Ex parte New York, 256 U.S. 490, 500 (1921) ("As

to what is to be deemed a suit against a State, . . . it is now

established that the question is to be determined not by the

mere names of the titular parties but by the essential

nature and effect of the proceeding, as it appears from the

entire record."). Conversely, Eleventh Amendment immunity

may be available to a state party-in-interest

notwithstanding a claimant's failure to formally name the

state as a defendant. See, e.g., Monell v. New York City

Dept. of Social Servs., 436 U.S. 658, 690 (1978); Ford Motor,

323 U.S. at 464.

In determining whether an entity is an arm of the state

and, therefore, entitled to Eleventh Amendment immunity,

we consider the following three factors: (1) whether

payment of a judgment resulting from the suit would come

from the state treasury, (2) the status of the entity under

state law, and (3) the entity's degree of autonomy. See

Fitchik v. New Jersey Transit Rail Operations, Inc. , 873 F.2d

655, 659 (3d Cir. 1989) (en banc). A party asserting

Eleventh Amendment immunity bears the burden of

proving its applicability. See Christy v. Pennsylvania

Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995).

Although no single factor is dispositive, we have often held

that the most important factor is whether a judgment

11

resulting from the suit would be paid from the state

treasury. See, e.g., Carter v. City of Philadelphia, 181 F.3d

339 (3d Cir. 1999); Christy, 54 F. 3d at 1140; Fitchik, 873

F.2d at 659-660. We conclude that the Vicinage has not

met its burden of demonstrating entitlement to Eleventh

Amendment immunity. Specifically, the Vicinage has not

proved that it is an arm of the state under the Fitchik

factors.

Application of the Fitchik factors to the Vicinage must be

viewed in the context of the unification of the New Jersey

court system. The events giving rise to Chisolm's suit

against the Vicinage, as well as the filing of the suit itself,

transpired during the Vicinage's transition from a county

court to a state court. The extent to which the Vicinage may

be considered an arm of the state -- as opposed to a county

entity -- is complicated by this transition. We conclude that

under the circumstances of this case, the Vicinage was not

acting as an "arm of the state" under Fitchik.8

Section 2B:10-7(c)(2) of the SJUA directly addresses the

first of the three Fitchik factors: whether a judgment would

be paid out of the state treasury. Chisolm's claims against

the Vicinage, brought in March 1995 as a result of the

alleged discrimination during September 1994, clearly were

tort claims for which the date of loss pre-dated January 1,

1995. Section 2B:10-7(c)(2) expressly provides that, even

after the transition of the Vicinage to a state court, any

such claims were the liabilities of Mercer County. Because

Mercer County -- and not the State of New Jersey-- would

satisfy any judgment entered for Chisolm, the "funding

factor" weighs heavily against the Vicinage's assertion of

sovereign immunity.

With respect to the second Fitchik factor, status under

_________________________________________________________________

8. The Vicinage's transition from a county entity to a state entity raises

another interesting question: At what time must a defendant be an "arm

of the state" in order to be eligible for Eleventh Amendment immunity?

Should we apply the Fitchik factors to the Vicinage as of the time of

Chisolm's alleged injury in September 1994 or as of the time Chisolm

brought suit in March 1995? Because we find that the Vicinage was not

an "arm of the state" under Fitchik at either of these times, we need not

resolve this question here.

12

state law, our analysis is more difficult. Since the state

takeover of administrative authority and responsibility for

the unified, state-based court system on January 1, 1995,

state law generally has treated the Vicinage as a state

entity. Indeed, the New Jersey Constitution provides that

the Superior Court is the state's trial court of original

jurisdiction and that the Chief Justice of the Supreme

Court is the administrative head of all courts within the

state. See N.J. Const. Art. VI, S7, P 1. These facts seem to

suggest that the Vicinage's status under state law changed

from a county entity to a state entity in connection with the

judicial unification. On the other hand, the Vicinage was

funded, administered and operated by Mercer County at the

time of the alleged discrimination. See N.J. Stat. S 2B:10-2

(2001) (describing county administration of county courts

prior to the enactment of the SJUA). More importantly, New

Jersey state statutes continue to make the counties

responsible for providing interpretive services. See id. at

2B:8-1.

From the above we can see that the Vicinage performs

different functions, judicial and administrative, in different

capacities. The Vicinage has performed many of its judicial

functions in its capacity as a state entity under New Jersey

law. However, when the Vicinage provides, or fails to

provide, interpretive services, it performs, or fails to

perform, a function which is the administrative

responsibility of a county under New Jersey law. When we

apply the second Fitchik factor, we must consider the

capacity in which the entity was acting when its actions

gave rise to the plaintiff 's claim. See Carter v. City of

Philadelphia, 181 F.3d at 353 (holding that although a

district attorney may be deemed a state actor with regard to

prosecutorial functions, she was a local policymaker with

respect to administrative matters). Because Chisolm's claim

against the Vicinage is based on its failure to provide

interpretive services, this suit relates to the Vicinage's

function as a county entity under state law. Accordingly,

the second factor also weighs against the Vicinage's claim

of sovereign immunity.

The third and final Fitchik factor is the Vicinage's degree

of autonomy. According to the New Jersey Constitution,

13

Superior Court judges are nominated and appointed by the

Governor with the consent and advice of the state senate.

See N.J. Const. Art. VI, S 6, P 1. As such, the court is an

independent branch of New Jersey's state government. The

Vicinage's degree of autonomy is mitigated somewhat by the

state's assumption of certain costs and liabilities of county

government in connection with the SJUA. See N.J. Stat.

SS 2B:10-1 et seq. (2001). However, because the county is

charged by law to provide interpretive services, and is not

regulated by the state in performing this function, the

Vicinage was autonomous in respect to the conduct which

is the basis for Chisolm's claim. See Carter v. City of

Philadelphia, 181 F.3d at 352 (distinguishing between

district attorney's state prosecutorial and county

managerial functions)

Balancing the Fitchik factors discussed above, we

conclude that the Vicinage was not acting as an"arm of the

state" either at the time of the alleged discrimination or at

the time that the suit against it was filed. For these

reasons, we conclude that Chisolm's suit against the

Vicinage is not barred by the Eleventh Amendment.

B. Review of Summary Judgment

We turn now to our consideration of the propriety of

granting summary judgment in favor of MCDC and the

Vicinage. Title II of the ADA provides that "no qualified

individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such

entity. 42 U.S.C. S 12132.9 Regulations promulgated by the

_________________________________________________________________

9. The Rehabilitation Act provides that a qualified disabled person shall

not, "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. . . ." 29 U.S.C. 794(a) (2001). The NJLAD provides that "[a]ll

persons shall have the opportunity to obtain . . . all the

accommodations, advantages . . . and privileges of any place of public

accommodation" without discrimination on the basis of disability. N.J.

Stat. Ann.S S 10:5-4, 10:5-4.1.

14

United States Attorney General require that public entities

take certain pro-active measures to avoid the

discrimination proscribed by Title II. See id. at 12134(a)

(directing the Attorney General to promulgate regulations

necessary to implement Title II); 28 C.F.R. SS 35.101 et seq.

(1991). Furthermore, we have held that:

Because Title II was enacted with broad language and

directed the Department of Justice to promulgate

regulations as set forth above, the regulations which

the Department promulgated are entitled to substantial

deference. Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct.

2355, 2361, 72 L.Ed.2d 728 (1982). ("[T]he

interpretation of [the] agency charged with the

administration of [this] statute is entitled to substantial

deference.").

Helen L., 46 F.3d at 331-32 (emphasis added).

Appellees do not dispute that Chisolm is a qualified

individual with a disability. Moreover, the fact that he was

imprisoned at the time of the alleged discrimination does

not preclude him from receiving the benefits of the ADA.

Title II of the ADA applies to services, programs and

activities provided within correctional institutions. See

Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206

(1998). We must determine, therefore, whether, in light of

the regulations promulgated by the Attorney General, there

are issues of material fact as to whether MCDC and the

Vicinage discriminated against Chisolm in violation of Title

II.

_________________________________________________________________

We have recognized that law developed under the Rehabilitation Act is

applicable to Title II of the ADA, see Helen L. v. DiDario, 46 F.3d 325,

330-31 & n.7 (3d Cir. 1995), and that Congress has directed that Title

II of the ADA be interpreted to be consistent with the Rehabilitation Act.

See Yeskey v. Commonwealth of Pennsylvania Dept. of Corrections, 118

F.3d 168, 170 (3d. Cir. 1997). Moreover, New Jersey courts typically look

to federal anti-discrimination law in construing NJLAD. Lawrence v. Nat'l

Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir. 1996). Therefore,

we will confine our discussion to the ADA with the understanding that

the principles will apply equally to the Rehabilitation Act and NJLAD

claims.

15

1. Title II Regulations Applicable to MCDC and the

Vicinage

Generally, regulations require public entities to take

"appropriate steps" to ensure that communication with a

disabled person is as effective as communication with

others. 28 C.F.R. S 35.160(a). Furthermore,"[w]here

necessary to afford an individual with a disability an equal

opportunity to participate in, and enjoy the benefits of, a

service, program, or activity," a public entity must furnish

"appropriate auxiliary aids and services." Id. at

35.160(b)(1).

The lone regulatory limitation on this duty is embodied in

Section 35.164 of the subpart. Section 35.164 provides that

a public entity may be relieved of its duty only upon

proving that, considering all funding and operating

resources available, the proposed action would result in

either (1) a fundamental alteration in the nature of the

service, program or activity or (2) undue financial or

administrative burdens. To qualify for the Section 35.164

exemption, a public entity must provide a written statement

explaining its conclusions. A public entity claiming the

exemption must also take alternative action not resulting in

such an alteration or burden, but nevertheless ensuring, to

the maximum extent possible, that disabled individuals

receive the public entity's benefits and/or services.

"In determining what type of auxiliary aid and service is

necessary, a public entity shall give primary consideration

to the requests of the individual with disabilities." Id. at

35.160(b)(2).10 For deaf and hearing-impaired persons,

auxiliary aids and services include:

_________________________________________________________________

10. That a public entity must give preference to a disabled person's

choice of auxiliary aid over an alternative is echoed in the Appendix to

the regulations. In relevant part, the Appendix provides:

[t]he public entity must provide an opportunity for individuals

with

disabilities to request the auxiliary aids and services of their

choice.

This expressed choice shall be given primary consideration by the

public entity (S 35.160(b)(2)). The public entity shall honor the

choice

unless it can demonstrate that another effective means of

communication exists or that use of the means chosen would not be

required under S 35.164. Deference to the request of the individual

with a disability is desirable because of the range of

disabilities, the

variety of auxiliary aids and services, and different circumstances

requiring effective communication.

28 C.F.R. Pt. 35, App. A (emphasis added).

16

Qualified interpreters, notetakers, transcription

services, written materials, telephone handset

amplifiers, assistive listening devices, assistive listening

systems, telephones compatible with hearing aids,

closed caption decoders, open and closed captioning,

telecommunications devices for deaf persons (TDD's),

videotext displays, or other effective methods of making

aurally delivered materials available to individuals with

hearing impairments.

28 C.F.R. S 35.104(1). The Appendix to the regulations

explains that:

[A]lthough in some circumstances a notepad and

written materials may be sufficient to permit effective

communication, in other circumstances they may not

be sufficient. For example, a qualified interpreter may

be necessary when the information being

communicated is complex, or is exchanged for a

lengthy period of time. Generally, factors to be

considered in determining whether an interpreter is

required include the context in which the

communication is taking place, the number of people

involved, and the importance of the communication.

28 C.F.R. Pt. 35, App. A.

2. MCDC

Chisolm argues that MCDC discriminated against him on

the basis of his disability on three separate occasions. First,

Chisolm claims that MCDC violated Title II of the ADA, the

Rehabilitation Act, and the NJLAD when it failed to provide

him with an ASL interpreter during its intake procedure

and medical evaluation. Chisolm alleges that this failure

deprived him of basic intake information including the

reason for his detention and the rules and regulations of

MCDC. Further, Chisolm claims that the failure to provide

an ASL interpreter during his intake and evaluation

resulted in his receiving inappropriate classifications. The

second basis for Chisolm's claim against MCDC arises out

of MCDC's failure to provide Chisolm with a TDD device.

According to Chisolm, this failure denied him the privilege

of placing telephone calls enjoyed by similarly situated

17

inmates without hearing disabilities. Finally, Chisolm

claims that MCDC's failure to activate closed captioning

capabilities available on a prison television discriminated

against him.

MCDC has asserted that, in reviewing Chislom's claims,

we must consider the necessity of providing a particular

auxiliary aid or service in light of the prison setting. Citing

Turner v. Safley, 482 U.S. 78 (1987), MCDC contends that

courts must defer to prison management decisions,

specifically with respect to security.11 But see Yeskey v.

Penna. Dept. of Corrections, 118 F.3d 168, 174-75 & n. 8

(3d Cir. 1997) (declining to decide "the controversial and

difficult question" of whether the Turner standard for

judicial deference should be applied to statutory as well as

constitutional claims), aff 'd on other grounds, 524 U.S. 206

(1998). Although at least one court has adopted the Turner

test for judicial deference to prison management decisions

in the ADA context, see Gates v. Rowland, 39 F.3d 1439,

1446-1447 (9th Cir. 1994), we need not reach the issue

here. MCDC's repetition of the word "security" in its brief

and general references to "security" issues in the warden's

deposition are not supported by any showing that"security"

in fact is implicated in making available to an inmate at

appropriate times the services and aids that Chisolm

requested.

MCDC also contends generally, and the District Court

found as a matter of law, that because Chisolm was

incarcerated for only four days, MCDC was not obligated to

provide aids or services applicable in cases involving "longer

term" inmates. See e.g., Duffy, 98 F.3d at 455 (involving a

deaf inmate incarcerated for over ten years); Clarkson v.

Coughlin, 898 F. Supp. 1019, 1045-46 (S.D.N.Y. 1995)

(finding that long term state inmates were entitled to sign-

language interpreters for reception, testing, and

classification process resulting in permanent assignments

to prisons). However, MCDC does not cite any regulation,

statute or case either distinguishing between the needs of

_________________________________________________________________

11. To support this proposition, MCDC also cites Inmates of Allegheny

County Jail v. Wecht, 93 F.3d 1124, 1136 (3d Cir. 1996),

notwithstanding the fact that the opinion was vacated. See id. at 1146.

18

short term and long term inmates or suggesting that short

term facilities are exempted from compliance with Title II.

Furthermore, we have been unable to locate any such

authority. The length of Chisolm's detention may impact a

factfinder's determination of whether MCDC discriminated

in violation of the regulations promulgated under the ADA.

However, a facility such as MCDC that houses detainees for

an average of 60 days is not excluded automatically from

Title II of the ADA. We see no basis then to recognize as a

matter of law any distinction regarding the appropriateness

of an auxiliary aid or service based upon the duration of an

ADA claimant-inmate's detention.

In addition, with respect to the first two bases of

Chisolm's claim, the failure to provide an ASL interpreter

and the failure to promptly provide a TDD, MCDC argues

that it employed alternative but effective auxiliary aids. The

most obvious problem with this argument is that it conflicts

with the regulatory mandate that a public entity honor a

disabled person's choice of auxiliary aid or service. See 28

C.F.R. Pt. 35, App. A. Accordingly, to support the District

Court's grant of summary judgment with respect to these

two bases, the record must show that either (1) the

alternative aid and/or service provided was effective or (2)

provision of the requested aid and/or service would not be

required under Section 35.164. See id.

Generally, the effectiveness of auxiliary aids and/or

services is a question of fact precluding summary

judgment. Compare Randolph v. Rodgers, 170 F.3d 850,

860 (8th Cir 1999) (reversing grant of summary judgment

to deaf inmate because whether provision of a sign

language interpreter during disciplinary hearing was an

appropriate auxiliary aid was a fact question) and Duffy v.

Riveland, 98 F.3d 447, 454, 455 (9th Cir. 1996) (holding

that the qualifications of an interpreter and the deaf

inmate's ability to communicate in prison disciplinary

hearing were fact questions precluding summary judgment)

with McGregor v. Louisiana State Univ. Bd. of Supervisors,

3 F.3d 850, 855 (5th Cir. 1993) (granting summary

judgment to defendant law school, despite questions of fact

as to requested aid, because requested aid would

fundamentally modify program). As discussed more

19

particularly below, Chisolm has presented evidence

sufficient to raise genuine issues of material fact regarding

the effectiveness of the alternative aids provided by MCDC.

Nor does the record suggest that MCDC is exempted

under 28 C.F.R. S 35.164 from the regulatory obligation to

provide a requested auxiliary aid and/or service. MCDC

argues that providing Chisolm with an ASL interpreter and

TDD would have caused either undue burden to or

fundamental alteration of MCDC. However, it is not clear

from the record that MCDC complied with the requirements

of Section 35.164. Specifically, there is no indication that

MCDC issued written statements of its reasons for denying

Chisolm's requested auxiliary aids. See 28 C.F.R. S 35.164

(2001). Additionally, whether the alternative aids protected

Chisolm's interests "to the maximum extent possible"

without unduly burdening MCDC or fundamentally altering

its programs presents an unresolved question of fact. Id.

Having addressed the general arguments raised by MCDC

in response to Chisolm's claim, we now turn to MCDC's

specific responses to the individual bases of Chisolm's

claim.

a. Failure to Provide an ASL Interpreter

Chisolm claims that MCDC violated Title II of the ADA

when it failed to provide him with an ASL interpreter during

his intake and classification. That MCDC did, in fact, fail to

provide Chisolm with an ASL interpreter is not in dispute.

However, MCDC responds to this claim by suggesting that

its personnel were able to communicate with Chisolm

effectively by lipreading and writing on a pad of paper.

In determining that MCDC demonstrated the

effectiveness of these alternative auxiliary aids provided to

Chisolm, the District Court did not resolve all reasonable

factual inferences in favor of Chisolm, the non-moving

party. Chisolm presented evidence indicating that ASL was

his primary language of communication and that he was

not proficient in either lipreading or written English.12 From

_________________________________________________________________

12. The parties do not dispute that Chisolm communicates primarily

through ASL. According to his unrebutted expert report, Chisolm's

20

this evidence, a reasonable trier of fact could infer that

these alternative aids were ineffective. Indeed, the

erroneous classification of Chisolm as an unemployed

vagrant creates a reasonable inference that the

communication aids employed by MCDC were not, in fact,

effective.

In support of its conclusion that the combination of

lipreading and note writing was an effective auxiliary aid,

MCDC cites to a single statement made by Chisolm during

a deposition. In this statement, Chisolm confirms that the

MCDC personnel with whom he was communicating did

everything that he requested in writing. Id. While this

statement may influence a trier of fact's assessment of

whether the pad of paper and pencil were effective auxiliary

aids, it does not show their effectiveness as a matter of law.

Necessarily, Chisolm's ability to make written requests was

dependent upon his ability to write in English. When

considered in a light most favorable to Chisolm and

together with the evidence that Chisolm is not proficient in

written English, the deposition statement is not dispositive

of the issue of effectiveness.

Finally, there is no indication in the record that, under

Section 35.164, MCDC was exempt from the requirement to

provide Chisolm with an ASL interpreter. MCDC argues

that allowing an ASL interpreter "onto the living unit" of

MCDC would conflict with safety and security concerns

regarding the "orderly function of MCDC." Safety and

security concerns likely were implicated by Chisolm's

request for an ASL interpreter. Nevertheless, by suggesting

that an ASL interpreter would be placed "onto the living

unit," MCDC interprets Chisolm's request as an extremely

broad one. Factual issues exist as to whether MCDC could

have provided an ASL interpreter at critical points,

including intake, medical evaluations, and classification,

_________________________________________________________________

lipreading skills are "extremely limited" and he misinterprets unexpected

utterances as expected ones. The report also notes that his written

English "exhibits characteristics of an partially learned second

language." Similarly, his ability to read English is limited by his poor

mastery of grammar and vocabulary.

21

while still taking into account legitimate safety and security

concerns.

b. Failure to Provide a TDD

MCDC also resists Chisolm's claim that MCDC unlawfully

discriminated against him by failing to promptly provide

him with access to a TDD. To the extent that other, non-

disabled inmates had access to communication by

telephone, MCDC was required to provide Chisolm with

such access on nondiscriminatory terms. See 42 U.S.C.

S 12132. Both Chisolm and his roommate, Kenneth Knight,

requested that a TDD be provided as an auxiliary aid.

Nevertheless, MCDC cites safety concerns as justifying its

failure to promptly provide a TDD and suggests that it

provided alternative, but effective, auxiliary aids. The

District Court found MCDC's refusal to promptly provide a

TDD "reasonable" as a matter of law. Chisolm, 97

F.Supp.2d at 623-24. However, in reaching this conclusion,

the District Court resolved various factual disputes against

Chisolm.

Citing McManimon's affidavit, MCDC argues that a TDD

machine and/or its constituent parts could be used as a

weapon and that Chisolm would pose a security risk if

allowed "unrestricted access to his TTD on the living unit."

Like MCDC's broad characterization of Chisolm's request

for an ASL interpreter, this statement may overstate the

safety or security threat posed by Chisolm's request for an

auxiliary aid. It is not clear that Chisolm requested -- or

would have needed -- "unrestricted" access to a TDD.

Furthermore, we do not know whether this auxiliary aid

could have been provided somewhere other than "on the

living unit." Chisolm argues that he merely wanted access

to a TDD so that he could place calls like other detainees.

In lieu of providing Chisolm with his choice of auxiliary

aid upon request, MCDC made two exceptions to its

institutional rules in an effort to accommodate Chisolm's

needs. First, MCDC permitted Donna Walker to place a

telephone call to Knight on Chisolm's behalf. Second, after

Chisolm was provided with an TDD, MCDC allowed

Chisolm to place calls in excess of the usual fifteen minute

22

limit to account for the delays associated with typing into

a TDD. The District Court found as a matter of law that

these alternative concessions made by MCDC in lieu of

providing Chisolm with a TDD were "reasonable" in light of

safety and security concerns in the prison setting. Chisolm,

97 F.Supp.2d at 623-24. However, in so finding, the

District Court once again resolved factual disputes against

Chisolm. Chisolm's contention that he "could not contact

his attorney, friends, or family" for lack of a TDD raises a

reasonable factual inference that MCDC's alternative aids

were not effective. Furthermore, there is no indication that

MCDC complied with the requirements of Section 35.164

when it refused to promptly provide Chisolm with a TDD.

c. Failure to Activate Closed Captioning

In response to Chisolm's claim that MCDC discriminated

against him when it failed to activate closed captioning on

a prison television, both MCDC and the District Court note

that Chisolm failed to request closed captioning. Citing

Randolph, 170 F.3d at 858, the District Court and MCDC

maintain that MCDC had no obligation to activate the

closed captioning absent a specific request from Chisolm.

This analysis is flawed for three reasons. First, there is

no evidence that Chisolm knew that closed captioning

services were available. Second, even if we did adopt the

Eighth Circuit's Randolph rule, cited by the District Court,

it would be inapplicable if MCDC had knowledge of

Chisolm's hearing disability but failed to discuss related

issues with him. See Randolph, 170 F.3d at 858-59 ("While

it is true that public entities are not required to guess at

what accommodations they should provide, the requirement

does not narrow the ADA or RA so much that the [public

entity] may claim [the disabled person] failed to request an

accommodation when it declined to discuss the issue with

him."). Finally, the adequacy of MCDC's communication

with Chisolm lies unresolved at the heart of this case. As

such, whether Chisolm even could have communicated a

request for closed captioning presents a question of fact

that has not yet been resolved.

For the above reasons, we conclude that the District

Court improperly granted summary judgment in favor of

McManimon.

23

3. The Vicinage

Chisolm argues that the Vicinage discriminated against

him when it failed to arrange for and provide an ASL

interpreter for his scheduled extradition hearing on

September 14, 1994. Chisolm argues that by postponing

the hearing until an ASL interpreter was available and

remanding Chisolm to MCDC, the Vicinage injured him in

connection with the alleged discrimination. For the reasons

stated below, we hold that the District Court erred in

granting summary judgment in favor of the Vicinage with

respect to this claim.

The District Court granted summary judgment to the

Vicinage reasoning that, because no extradition hearing

was held, the Vicinage did not exclude Chisolm from any

programs. See Chisolm, Civ. No. 95-0991 at 12. This

conclusion ignores the broad language of the statutes

under which Chisolm brings his claims against the

Vicinage. Without showing that the Vicinage excluded him

from an extradition hearing, Chisolm may bring his claim

under the theory that the Vicinage denied him an

extradition hearing. See 42 U.S.C. S 12132. Furthermore,

each of the relevant statutes, Title II of the ADA, the

Rehabilitation Act, and the NJLAD, proscribes

discrimination on the basis of disability without requiring

exclusion per se. See id. ("[N]o qualified individual with a

disability shall, by reason of such disability . . . be

subjected to discrimination by any [public] entity."); 29

U.S.C. S 794(a) (providing that a qualified disabled person

shall not, "solely by reason of her or his disability . . . be

subjected to discrimination under any program or activity

receiving Federal financial assistance"); N.J. Stat. S 10:5-4.1

("All of the provisions of the act . . . shall be construed to

prohibit any unlawful discrimination against any person

because such person is or has been at any time

handicapped . . . ."). The record, when viewed in a light

most favorable to Chisolm, raises a genuine issue as to

whether or not the Vicinage either discriminated against

Chisolm on the basis of his disability or otherwise denied

him the benefits of an activity, program or service.

The District Court found, and we agree, that extradition

hearings are "programs" within the definition of the ADA

24

and the Rehabilitation Act. See Chisolm, Civ. No. 95-0991

at 12, n.7 (citing Duffy, 98 F.3d at 455). A reasonable trier

of fact could find that the Vicinage denied Chisolm the

ability to participate in an extradition hearing to the same

extent non-disabled individuals are able to participate. The

Vicinage does not dispute that Chisolm's extradition

hearing would have occurred as scheduled on September

14, 1994, were it not for Chisolm's inability to communicate

without an auxiliary aid and/or service. Therefore, Chisolm

faced an additional six days of incarceration solely because

of the Vicinage's inability to provide him with an auxiliary

aid or service at his scheduled extradition hearing.

The Vicinage argues that its "affirmative measures" to

locate an ASL interpreter, in fact, "complied fully with" the

regulations. However, it is up to the trier of fact to

determine whether the Vicinage provided a sufficient

auxiliary aid and/or service when it rescheduled Chisolm's

hearing and ordered him remanded into custody for a

further six days until an ASL interpreter could be present.

See Randolph, 170 F.3d at 859; Duffy, 98 F.3d at 455-56.

The Vicinage also argues that the failure to provide an

auxiliary aid and/or service upon Chisolm's scheduled

extradition hearing was justified because the Vicinage

lacked notice of Chisolm's disability. Although not expressly

framed as such, this argument appears to invoke the

Section 35.164 exception to the general rule that a public

entity must provide a disabled individual with a requested

auxiliary aid and/or service. Section 35.164 exempts public

entities from providing a requested aid or service only if

doing so would cause a "fundamental alteration" to the

entity's programs or would create undue financial or

administrative burdens. 28 C.F.R. S 35.164. Providing

Chisolm with an ASL interpreter would not fundamentally

alter the extradition hearing, as is evidenced by the fact

that a New Jersey statute expressly mandates this service.

See id.; N.J. Stat. 2B:8-1 (2001). Therefore, the Vicinage

could avoid providing Chisolm with an ASL interpreter only

if doing so would create "undue financial and

administrative burdens." 28 C.F.R. S 35.164.

Assuming arguendo that it would have been unduly

burdensome for the Vicinage to provide Chisolm with an

25

ASL interpreter on such short notice, it is not clear from

the record that the Vicinage complied with Section 35.164.

Specifically, there is no indication that the Vicinage issued

a written statement of its reasons for denying Chisolm's

requested auxiliary service. Additionally, whether

remanding Chisolm into custody for six additional days

ensured Chisolm's access to an extradition hearing"to the

maximum extent possible" without unduly burdening the

Vicinage is an unresolved question of fact.

Moreover, to the extent that the Vicinage argues a"lack

of notice" of Chisolm's disability, that lack of notice may

demonstrate a failure of the Vicinage to discharge its

statutory responsibility of providing interpretive services for

the deaf. The provision of such services must include some

reasonable means of determining when they will be needed.

IV. Conclusion

We conclude that, for purposes of determining whether

the Vicinage may assert sovereign immunity, it was not

acting as an "arm of the state." Therefore, the Eleventh

Amendment to the United States Constitution does not

provide the Vicinage with immunity from Chisolm's suit.

As for summary judgment, Chisolm has demonstrated

that genuine issues of material fact remain for trial. Thus,

the trial court erred in granting summary judgment in favor

of defendants. We will reverse the judgments in favor of

McManimon and the Vicinage and remand this case to the

District Court for further proceedings consistent with this

opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26