David Updike v. Multnomah County , 870 F.3d 939 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID UPDIKE, No. 15-35254
Plaintiff-Appellant,
D.C. No.
v. 3:13-cv-01619-
SI
MULTNOMAH COUNTY, a municipal
corporation; STATE OF OREGON,
Defendants-Appellees, OPINION
and
CITY OF GRESHAM,
Defendant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted June 7, 2017
Portland, Oregon
Filed August 31, 2017
Before: A. Wallace Tashima, Ronald M. Gould,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gould
2 UPDIKE V. MULTNOMAH COUNTY
SUMMARY *
Americans With Disabilities Act / Rehabilitation Act
The panel affirmed in part and reversed in part the
district court’s summary judgment orders, and remanded, in
a case in which David Updike, who has been deaf since birth,
alleged that the State of Oregon and Multnomah County did
not provide him with an American Sign Language interpreter
at his arraignment on criminal charges, and that the County
did not provide him with an ASL interpreter and other
auxiliary aids in order for Updike to effectively
communicate while he was in pretrial detainment and under
pretrial supervision, in violation of Title II of the Americans
with Disabilities Act and § 504 of the Rehabilitation Act.
The panel held that Updike lacks standing to pursue his
claims for injunctive relief against the State because it is no
more than speculation and conjecture that the State will not
provide an ASL interpreter and auxiliary aids if Updike
makes an appearance as a pretrial detainee again, and lacks
standing to pursue his claims for injunctive relief against the
County because the possibility of recurring injury remains
speculative.
The panel affirmed the district court’s summary
judgment in favor of the State on Updike’s claims under the
ADA and § 504 because there is no evidence that the State’s
failure to provide an ASL interpreter was the result of
deliberate indifference.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UPDIKE V. MULTNOMAH COUNTY 3
The panel reversed the district court’s summary
judgment in favor of the County on Updike’s ADA and
§ 504 claims for damages. The panel held that a reasonable
jury could find that the County was deliberately indifferent
and violated Title II and § 504 when it did not conduct an
informed assessment of Updike’s accommodation needs and
did not give primary deference to Updike’s requests or
context-specific consideration to his requests; and when
County employees failed to provide Updike with an ASL
interpreter in a multitude of interactions with County
employees, did not offer use of a TTD, and did not turn on
closed captioning.
COUNSEL
Carl L. Post (argued), John Burgess, and Daniel Snyder, Law
Offices of Daniel J. Snyder, Portland, Oregon, for Plaintiff-
Appellant.
Jacqueline Kamins (argued), Assistant County Attorney;
David N. Blankfeld, Multnomah County Attorney; Office
of Multnomah County Attorney, Portland, Oregon; for
Defendant-Appellee Multnomah County.
Peenesh Shah (argued), Assistant Attorney General;
Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,
Attorney General; Oregon Department of Justice, Salem,
Oregon; for Defendant-Appellee State of Oregon.
4 UPDIKE V. MULTNOMAH COUNTY
OPINION
GOULD, Circuit Judge:
David Updike, who has been deaf since birth, uses
American Sign Language (“ASL”) as his primary language.
He brings this action against Defendants the State of Oregon
(“State”) and Multnomah County (“County”), alleging that
the State and the County did not provide him with an ASL
interpreter at his arraignment on criminal charges, and that
the County did not provide him with an ASL interpreter and
other auxiliary aids in order for Updike to effectively
communicate while he was in pretrial detainment and under
pretrial supervision. Updike brings claims for violations of
Title II of the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12101–12213, and § 504 of the Rehabilitation
Act, 42 U.S.C. §§ 701–796I, negligence, and false arrest.
Updike appeals the district court’s grant of summary
judgment to Defendants on all claims. We affirm in part,
reverse in part, and remand this case for further proceedings.
I
A
David Updike has been deaf since birth and
communicates primarily through ASL, which is his native
language and preferred method of communication. Updike
does not consider himself to be bilingual in English and does
not read or speak English well. Updike is not proficient at
reading lips because he has never heard English words—in
these circumstances, it is difficult to know the shape that lips
make to produce certain words. All of Updike’s friends are
deaf and Updike’s ex-wife is deaf. Updike explains that he
“live[s] in the deaf world.”
UPDIKE V. MULTNOMAH COUNTY 5
In the early afternoon of January 14, 2013, officers from
the Gresham Police Department arrived at Updike’s home to
respond to a 911 call reporting a disturbance. The 911 caller
told the operator that the disturbance 1 involved deaf
individuals, but the officers did not bring an ASL interpreter
with them. The officers arrested Updike and took him to
Multnomah County Detention Center (“MCDC”) for
booking.
MCDC has a telecommunications device for the deaf
(“TDD”) available. MCDC staff, including corrections
deputies and medical providers, can request an ASL
interpreter as needed. The County has a contract with
Columbia Language Services, Inc. to provide interpreting
services, including “Interpretation for the Deaf,”
“Interpretation for the Deaf/After Hours,”
“Remote/Electronic Interpretation,” “Interpreter
[Services]/Normal Hours/ASL,” and “Interpreter
Services/After Hours/ASL.”
At MCDC, Updike signed for an ASL interpreter and a
teletypewriter (“TTY”) 2 and tried to speak the word
“interpreter,” but was denied these requests. Instead, Officer
Ozeroff showed Updike statements written by the other
person involved in the disturbance and a witness, and wrote
Updike a note asking Updike to write down what happened.
Updike had trouble writing down what happened because
written English is not his preferred form of communication.
No ASL interpreter was provided.
1
Updike explains that a deaf guest in his home assaulted him after
he refused to give the guest money.
2
TDD and TTY are used interchangeably by Updike and throughout
this opinion.
6 UPDIKE V. MULTNOMAH COUNTY
At booking, a female corrections office removed
Updike’s handcuffs and spoke to Updike. Updike tried to
read her lips and could not understand her statements.
Deputy Kessinger, a booking deputy, completed Updike’s
intake. Updike was also photographed and fingerprinted.
Updike requested an ASL interpreter during the booking
process but was not given one.
After booking, Updike was placed in a holding room.
Updike saw other inmates making telephone phone calls,
and he wanted to call an attorney and his mother. He asked
a corrections officer for a TTY, by saying “TTY,” and
motioned his hand to his ear to mime a telephone. The
officer instructed Updike to sit down and gestured for
Updike to sit down. Updike stated and signed “I need an
interpreter,” but the officer did not respond to this request.
Updike then spoke the word “paper” and made a writing
gesture. The officer denied the request for paper and a
writing instrument, and told Updike to sit down.
After the booking process, Updike again asked to use a
TTY by gesturing typing and by making a verbal request to
a different corrections officer. The officer denied the
requests and instructed Updike to sit down and wait.
Still at MCDC, Updike met with Nurse Nielsen and
asked for an ASL interpreter. Updike wanted to
communicate that officers hurt his neck and back during the
course of his arrest, but the nurse did not request or provide
an interpreter despite his request. The nurse pointed to
questions on a health intake form, but Updike could not read
the form very well and used body language to answer the
questions the best he could. The nurse did not examine his
neck and back, and Updike could not communicate that
those areas hurt.
UPDIKE V. MULTNOMAH COUNTY 7
Updike met with Recognizance Officer Iwamoto from
Multnomah County Pretrial Services Program. Updike had
trouble reading the officer’s lips and requested an ASL
interpreter. The officer did not provide one. Updike also
requested a TTY, but was not given one. Updike then
learned that he would be held overnight and would appear in
court the next day. Officer Iwamoto assured Updike that
Iwamoto would notify the court that Updike would require
an interpreter at his arraignment.
Officer Iwamoto’s practice is to communicate with deaf
people in custody by writing notes. Officer Iwamoto
testified that if Updike was again arrested, he would likely
not be given an ASL interpreter for his recognizance
interview, and that he believed this practice needed to
change. Iwamoto stated that he felt that written
communication was sufficient to complete Updike’s
recognizance interview in order to make a release
determination. Iwamoto’s summary of his interview with
Updike noted that the interview was conducted by writing,
but that Updike would “need a sign language interpreter for
court.” This information became part of the court’s records,
and went to the judge, the district attorney’s office, and the
defense attorney. The information was also made available
to pretrial release services. Iwamoto stated that he made this
determination because arraignment occurred by video
conference, and not because he himself had difficulties
communicating with Updike by writing during the
recognizance interview.
While at MCDC, Updike also met with Deputy
Waggoner, a classification deputy. Waggoner’s notes said
that Updike was deaf; this notation was made so corrections
staff could give Updike accommodations, including getting
the TTD machine for Updike to make phone calls. However,
8 UPDIKE V. MULTNOMAH COUNTY
Deputy Waggoner did not call for an ASL interpreter during
his triage interview with Updike because Waggoner did not
think that Updike needed one and felt that Updike
communicated fine using written English. Waggoner has
never been trained on the necessary steps to obtain an
interpreter for a deaf person during booking, and does not
know how to get an ASL interpreter if he had trouble with a
deaf inmate during a triage interview. Waggoner indicated
in the Classification Summary Report that he believed
Updike read fine, but also noted that Updike answered “yes”
to the question asking whether Updike had a disability that
would impact his ability to understand instructions while
detained.
During Updike’s time at MCDC, he was not given access
to an ASL interpreter, a computer, a TTY, video relay
services, or pen and paper. He could not call a lawyer or his
family members without a TTY device. He was not able to
watch television because there was no video relay service
and no closed captioning.
On the evening of January 14, 2013, Updike was
transferred to Multnomah County Inverness Jail (“MCIJ”).
At MCIJ, an officer gave Updike a toothbrush, toothpaste, a
comb, some blank paper and a pen, and a copy of MCIJ’s
Inmate Manual. Updike wrote to the officer that his neck
and back hurt, and he requested pain medication, but no
medical provider examined Updike.
Updike remained at MCIJ from January 14 through
January 16, 2013. He made many requests for a TTY so he
could make phone calls, as he saw that other inmates were
freely able to use telephones during their free time. He was
denied these requests. Updike also wrote a note requesting
that an officer turn on closed captioning, but that request was
not honored. MCIJ uses a loudspeaker system to address
UPDIKE V. MULTNOMAH COUNTY 9
inmates, but Updike did not hear any of the announcements
made while at MCIJ.
On January 15, 2013, Updike appeared at his
arraignment by video. MCIJ arranges arraignment by video,
and inmates are not transported to court. During the
arraignment, Updike could see but not read Judge Kathleen
Dailey’s lips and noticed that an interpreter was not in the
courtroom. Upon learning that Updike was deaf, Judge
Dailey postponed Updike’s arraignment to the following day
when an ASL interpreter would be available. Updike was
thus held for another night at MCIJ.
The County’s Pretrial Release Office conducts pretrial
release interviews, including an assessment of the language
needs of an individual, such as whether an individual needs
an ASL interpreter, or whether the individual requires some
other accommodation for hearing loss. This information is
transmitted to the staff of the Oregon Judicial Department
(“OJD”) prior to arraignment. Updike’s pretrial release
documents received by OJD employees noted that Updike
required an ASL interpreter. If staff do not determine
whether an interpreter is required, the issue is not addressed
until the court appearance. Typically, OJD staff prepare for
arraignments by looking only at the booking register and not
by reviewing the pretrial release report. But if a booking
register notes a need for an accommodation, OJD staff would
take appropriate action. At some time after Updike’s
arraignment, the County modified the format of the booking
register so that the booking register notifies the court of a
need for an accommodation. As a result of this change, OJD
staff are now alerted that a person needs an ASL interpreter
or a foreign language interpreter through the booking
register.
10 UPDIKE V. MULTNOMAH COUNTY
On January 16, 2013, Updike again appeared in court by
videoconference. An ASL interpreter was provided for
Updike, and Updike was released that day. Updike again
requested a corrections officer to supply him with a TTY so
he could call for his daughter to pick him. He received a
TTY for the first time, and left jail late that evening.
On January 17, 2013, Updike reported to pretrial
supervision as ordered by Judge Dailey. Updike met with
Michale Sacomano, a case manager for the Multnomah
County Department of Community Justice’s Pretrial
Services Program. Sacomano conducted intake by written
communication, despite the fact that Updike did not agree to
conduct intake by writing and had requested—by both
signing and speaking—an ASL interpreter and signed
requesting an ASL interpreter. Sacomano denied the
request, and explained that Updike should write all of his
requests. 3 Updike had a series of miscommunications with
Sacomano, and felt that Sacomano believed Updike used his
hearing impairment as an excuse to violate conditions of his
pretrial release. 4
3
Sacomano disputes whether Updike requested an ASL interpreter
at this meeting. Because this is an appeal from the grant of summary
judgment to Defendants, we construe the facts in the light most favorable
to Updike as the non-moving party. See Olsen v. Idaho State Bd. of Med.,
363 F.3d 916, 922 (9th Cir. 2004).
4
Sacomano’s log entries noted that Updike’s case was dismissed,
that Updike had poor reporting during his time with pretrial services, that
Updike used his hearing impairment as the reason for not complying with
the conditions of supervision, and that their interactions were
challenging because Updike “argued” everything. The “hearing
impaired, learning impaired, and developmentally disabled individuals
engage in a range of coping mechanisms that can give the false
impression of uncooperative behavior or lack of remorse.” Armstrong v.
UPDIKE V. MULTNOMAH COUNTY 11
The trial on Updike’s criminal charge was postponed
until April 22, 2013. After the jury was impaneled, the
district attorney moved for dismissal.
B
On September 13, 2013, Updike filed his complaint,
alleging claims against the City of Gresham, Multnomah
County, and the State of Oregon. In early 2014, the City of
Gresham settled. On June 1, 2014, Updike filed his first
amended complaint. Updike brought several claims: ADA
discrimination claims against the State and the County,
violations of § 504 of the Rehabilitation Act against the State
and the County, common law negligence against the State
and the County, and false arrest against the County. He
sought compensatory damages, injunctive relief, and
attorneys’ fees and costs.
The State filed its motion for summary judgment on
April 23, 2014, which the district court granted on October
15, 2014. The County filed its motion for summary
judgment on November 26, 2014, which the district court
granted on March 24, 2015. The district entered final
judgment on March 24, 2015.
Updike timely appealed. He does not challenge the grant
of summary judgment on his negligence and false arrest
claims.
Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds
by Johnson v. California, 543 U.S. 499, 504–05 (2005). As a result, it is
likely that such individuals may have difficulty interacting with
personnel who supervise them. Id. This is one basis that may explain
why the interactions between Sacomano and Updike were challenging.
12 UPDIKE V. MULTNOMAH COUNTY
II
We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a district court’s grant of summary judgment.
Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644,
648 (9th Cir. 2016). On review, we determine—viewing the
evidence in the light most favorable to Updike, the non-
moving party—whether there are any genuine issues of
material fact and whether the district court correctly applied
the relevant substantive law. Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004); see Fed. R. Civ. P.
56. “Summary judgment is improper if ‘there are any
genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in
favor of either party.’” Simo v. Union of Needletrades,
Indus. & Textile Emps., 322 F.3d 602, 610 (9th Cir. 2003)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)). We review de novo the district court’s decision
regarding standing. Fair Hous. of Marin v. Combs, 285 F.3d
899, 902 (9th Cir. 2002).
III
Article III of the Constitution limits federal courts to
hearing only cases and controversies. To establish standing
to sue, a plaintiff must show: (1) an injury that is concrete
and particularized and actual or imminent; (2) a causal
connection between the injury and defendant’s challenged
action; and (3) redressability. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992). Apart from this, standing for
injunctive relief requires that a plaintiff show a “real and
immediate threat of repeated injury.” O’Shea v. Littleton,
414 U.S. 488, 496 (1974); see also City of Los Angeles v.
Lyons, 461 U.S. 95, 107–08 (1983).
UPDIKE V. MULTNOMAH COUNTY 13
The parties do not dispute that Updike satisfies the
general standing requirements of Article III, 5 but instead
dispute whether Updike has shown a real and immediate
threat that the injury will be repeated—which is necessary
for standing to seek injunctive relief.
A
Updike offers no evidence of a “real or immediate
threat” that he would be “wronged again” by way of the
State’s failure to provide an ASL interpreter at future court
appearances. Lyons, 461 U.S. at 111. Evidence in the record
further indicates that this wrongful conduct will likely not
occur again, given that information about necessary
accommodations are now noted in the booking registers—
the documents relied upon by OJD to set hearing dates—
rather than the pretrial release reports.
Updike has not met his burden of showing that the
State’s allegedly wrongful behavior will likely recur.
Moreover, Updike’s evidence is insufficient to establish that
any such wrongful behavior is likely to recur against him,
i.e., that he is likely again to be a pretrial detainee. Updike
lacks standing to pursue his claims for injunctive relief
against the State because it is no more than speculation and
conjecture that the State will not provide an ASL interpreter
5
Nor could the County or State really dispute this: The State and
County’s alleged failure to provide Updike with an ASL interpreter or
the use of auxiliary services constitute concrete and particularized
injuries sufficient to satisfy Article III. Further, Updike’s inability to
effectively communicate with corrections staff or even communicate at
all with his lawyer or family was caused by the Defendants’ failure to
provide him with accommodation and meaningful access. Finally, a
decision favorable to Updike would redress his injuries. See Lujan,
605 U.S. at 560–61.
14 UPDIKE V. MULTNOMAH COUNTY
and auxiliary aids if Updike makes an appearance as a
pretrial detainee again. See id. at 103, 107–08.
B
Although certain facts slightly alter our calculus in
considering the threat of future harm from the County, we
also hold that the possibility of recurring injury remains
speculative such that Updike also lacks standing to pursue
injunctive relief against the County.
Updike has been booked at MCDC on five previous
occasions, and avers that he had been held overnight in a
Multnomah County detention facility before and was then
denied an ASL interpreter and a TTY although he requested
auxiliary aids and services. Record evidence also shows that
a County officer had communicated with other deaf people
in custody by writing notes, and that another County officer
admitted to now knowing how to get an ASL interpreter if
he had difficulties communicating with a deaf inmate.
Although “past wrongs are evidence bearing on whether
there is a real and immediate threat of repeated injury,”
O’Shea, 414 U.S. at 496, “past wrongs do not in themselves
amount to [a] real and immediate threat of injury necessary
to make out a case or controversy,” Lyons, 461 U.S. at 103.
Updike’s past injury is insufficient to establish that the risk
of recurring injury is more than speculative. He has not
identified specific County policies and practices that would
subject Updike to a realistic possibility that the County
would subject him to the injurious acts again in the future.
Compare id. at 108–110 (holding that the plaintiff did not
have standing because it was no more than conjecture that
he would be subject to another unconstitutional chokehold
in the future), with Armstrong v. Davis, 275 F.3d 849, 864
(9th Cir. 2001) (explaining that the California Board of
UPDIKE V. MULTNOMAH COUNTY 15
Prison Term’s consistent practice of denying appropriate
accommodations warranted holding that the plaintiff class
established standing), abrogated on other grounds by
Johnson v. California, 543 U.S. 499, 504–05 (2005).
Further counseling against standing for injunctive relief is
the assumption that Updike will likely conform his activities
within the law such that he would not be arrested and
detained in the future. See O’Shea, 414 U.S. at 497 (“We
assume that respondents will conduct their activities within
the law and so avoid prosecution and conviction as well as
exposure to the challenged course of conduct said to be
followed by petitioners.”). Updike has not shown “there is
‘sufficient immediacy and reality’ to [his] allegations of
future injury to warrant invocation” of jurisdiction. Id.In sum, Updike does not have standing to pursue his
claims for injunctive relief against the State and County. We
turn next to the merits of his claims for compensatory
damages.
IV
A
Updike challenges the district court’s grant of summary
judgment in favor of the State and the County on his ADA
and § 504 claims.
The ADA was enacted “to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities” and “to
provide clear, strong, consistent, enforceable standards
addressing discrimination against individuals with
disabilities.” 42 U.S.C. § 12101(b)(1)&(2). Title II of the
ADA provides:
16 UPDIKE V. MULTNOMAH COUNTY
[N]o qualified individual with a disability
shall, by reason of such disability, be
excluded from participation in or be denied
the benefits of the services, programs, or
activities of a public entity, or be subjected to
discrimination by any such entity.
Id. § 12132. To prove that a public program or service
violated Title II of the ADA, Updike must show that: “(1) he
is a ‘qualified individual with a disability’; (2) he was either
excluded from participation in or denied the benefits of a
public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and
(3) such exclusion, denial of benefits, or discrimination was
by reason of his disability.” Duvall v. Cty. of Kitsap, 260
F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of
reh’g en banc (Oct. 11, 2001). This provision extends to
discrimination against inmates detained in a county jail. See
Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)
(concluding that “[s]tate prisons fall squarely within the
statutory definition of ‘public entity,’ which includes ‘any
department, agency, special purpose district, or other
instrumentality of a State or States or local government.’”
(quoting 42 U.S.C. § 12131(1)(B))).
“Title II of the ADA was expressly modeled after § 504
of the Rehabilitation Act.” Duvall, 260 F.3d at 1135.
Section 504 of the Rehabilitation Act provides:
No otherwise qualified individual with a
disability . . . shall, solely by reason of her or
his disability, be excluded from the
participation in, be denied the benefits of, or
be subjected to discrimination under any
UPDIKE V. MULTNOMAH COUNTY 17
program or activity receiving Federal
financial assistance . . . .
29 U.S.C. § 794. To bring a § 504 claim, Updike must show
that “(1) he is an individual with a disability; (2) he is
otherwise qualified to receive the benefit; (3) he was denied
the benefits of the program solely by reason of his disability;
and (4) the program receives federal financial assistance.”
Duvall, 260 F.3d at 1135.
Title II and § 504 include an affirmative obligation for
public entities to make benefits, services, and programs
accessible to people with disabilities. See id. at 1136; Pierce
v. District of Columbia, 128 F. Supp. 3d 250, 266–67
(D.D.C. 2015) (citing 42 U.S.C. § 12131(2) and 28 C.F.R.
§ 35.130(b)(1)(ii)), reconsideration denied, 146 F. Supp. 3d
197 (D.D.C. 2015).
As to persons with a hearing disability, implementing
regulations for Title II provide that a public entity must “take
appropriate steps to ensure that communications” with
disabled persons “are as effective as communications with
others.” 28 C.F.R. § 35.160(a). These regulations, squarely
on point here, provide:
(b) (1) A public entity shall furnish
appropriate auxiliary aids and services where
necessary to afford individuals with
disabilities, including applicants,
participants, companions, and members of
the public, an equal opportunity to participate
in, and enjoy the benefits of, a service,
program, or activity of a public entity.
(2) The type of auxiliary aid or service
necessary to ensure effective communication
18 UPDIKE V. MULTNOMAH COUNTY
will vary in accordance with the method of
communication used by the individual; the
nature, length, and complexity of the
communication involved; and the context in
which the communication is taking place. In
determining what types of auxiliary aids and
services are necessary, a public entity shall
give primary consideration to the requests of
individuals with disabilities. In order to be
effective, auxiliary aids and services must be
provided in accessible formats, in a timely
manner, and in such a way as to protect the
privacy and independence of the individual
with a disability.
Id. § 35.160(b). For deaf and hearing-impaired persons,
auxiliary aids and services include:
Qualified interpreters on-site or through
video remote interpreting (VRI) services;
notetakers; real-time computer-aided
transcription services; written materials;
exchange of written notes; telephone handset
amplifiers; assistive listening devices;
assistive listening systems; telephones
compatible with hearing aids; closed caption
decoders; open and closed captioning,
including real-time captioning; voice, text,
and video-based telecommunications
products and systems, including text
telephones (TTYs), videophones, and
captioned telephones, or equally effective
telecommunications devices; videotext
displays; accessible electronic and
information technology; or other effective
UPDIKE V. MULTNOMAH COUNTY 19
methods of making aurally delivered
information available to individuals who are
deaf or hard of hearing[.]
Id. § 35.104(1).
The Appendix to the ADA regulations also makes clear
that the public entity has a duty to ensure effective
communications and establishes a required deference that
must normally be given to a disabled person’s personal
choice of aid and service:
The public entity shall honor the choice [of
the individual with a disability] unless it can
demonstrate that another effective means of
communication exists or that use of the
means chosen would not be required under
§ 35.164. Deference to the request of the
individual with a disability is desirable
because of the range of disabilities, the
variety of auxiliary aids and services, and
different circumstances requiring effective
communication.
Id. pt. 35, App. A (alteration in original) (quoting 28 C.F.R.
pt. 35, App. A (2009)). The Appendix goes on to explain
that “the type of auxiliary aid or service necessary to ensure
effective communication will vary with the situation.” Id.
These regulations “require effective communication in
courts, jails, prisons, and with law enforcement officers.” Id.
One limitation on this duty, however, provides that a
public entity is not required “to take any action that it can
demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial
and administrative burdens.” Id. § 35.164; see also id. pt.
20 UPDIKE V. MULTNOMAH COUNTY
35, App. A. Yet the mere payment for an ASL interpreter
and the payment for a TTY or similar device cannot be
considered an undue burden.
Under both Title II of the ADA and § 504 of the
Rehabilitation Act, Updike must show that he was excluded
from participating in or denied the benefits of a program’s
services or otherwise discriminated against.
“[C]ompensatory damages are not available under Title II or
§ 504 absent a showing of discriminatory intent.” Ferguson
v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998), as
amended (Oct. 8, 1998); see Duvall, 260 F.3d at 1138. To
show intentional discrimination, this circuit requires that the
plaintiff show that a defendant acted with “deliberate
indifference,” which requires “both knowledge that a harm
to a federally protected right is substantially likely, and a
failure to act upon that . . . likelihood.” Duvall, 260 F.3d at
1139. “When the plaintiff has alerted the public entity to his
need for accommodation (or where the need for
accommodation is obvious, or required by statute or
regulation), the public entity is on notice that an
accommodation is required, and the plaintiff has satisfied the
first element of the deliberate indifference test.” Id. To meet
the second prong, the entity’s failure to act “must be a result
of conduct that is more than negligent, and involves an
element of deliberateness.” Id.A public entity may be liable for damages under Title II
of the ADA or § 504 of the Rehabilitation Act “if it
intentionally or with deliberate indifference fails to provide
meaningful access or reasonable accommodation to disabled
persons.” Mark H. v. Lemahieu, 513 F.3d 922, 937–38 (9th
Cir. 2008). The “failure to provide reasonable
accommodation can constitute discrimination.” Vinson v.
Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). A public
UPDIKE V. MULTNOMAH COUNTY 21
entity may not disregard the plight and distress of a disabled
individual.
The parties do not dispute that Updike is a qualified
individual with a disability and that, as a detainee at the
detention facility, he was otherwise qualified to receive the
services and benefits of the public entity. Instead, the parties
dispute whether Updike was intentionally discriminated
against when his requested accommodations were denied or
when accommodation was not provided. Because Updike’s
ADA and § 504 claims do not differ in any respect relevant
to resolving this appeal, and no party asserts that any
distinctions are material, we address the ADA and § 504
claims together. See Duvall, 260 F.3d at 1135–36.
B
The thrust of Updike’s allegations against the State is
that the State failed to arrange for an ASL interpreter at
Updike’s first criminal court appearance. As a result,
Updike had to stay at MCIJ for an additional evening, and
he complains that he could have been released earlier if an
ASL interpreter had been provided on January 15, 2013, the
date of his first arraignment hearing. The district court
concluded that Updike did not show that the State acted with
deliberate indifference. The State gave evidence that in
setting Updike’s arraignment, it reviewed the booking
register, which did not note his need for an interpreter, but
not the pretrial release report, which did note Updike’s need
for an interpreter.
Updike relies on Robertson v. Las Animas County
Sheriff’s Department, 500 F.3d 1185, 1199 (10th Cir. 2007)
and Chisolm v. McManimon, 275 F.3d 315, 330 (3d Cir.
2001) to argue that he was denied the ability to participate at
the January 15, 2013 arraignment. Both cases involved deaf
22 UPDIKE V. MULTNOMAH COUNTY
or hearing impaired individuals who made court appearances
without ASL interpreters. But neither out-of-circuit case
discussed our circuit’s heightened requirement for a plaintiff
to establish that the discrimination was committed with
deliberate indifference in order to recover monetary
damages under the ADA or § 504. See Duvall, 260 F.3d at1138–39. We have explained deliberate indifference as
follows:
Because in some instances events may be
attributable to bureaucratic slippage that
constitutes negligence rather than deliberate
action or inaction, we have stated that
deliberate indifference does not occur where
a duty to act may simply have been
overlooked, or a complaint may reasonably
have been deemed to result from events
taking their normal course. Rather, in order
to meet the second element of the deliberate
indifference test, a failure to act must be a
result of conduct that is more than negligent,
and involves an element of deliberateness.
Id. at 1139.
We conclude that the district court correctly granted
summary judgment for the State on this issue. This case
reflects an absence of effective communication and
coordination between the County’s pretrial services and
employees at OJD about the need for an interpreter at
Updike’s arraignment. While it is regrettable that it appears
that Updike spent an extra night in jail that he likely would
not have had to spend had he been provided an ASL
interpreter the first time he appeared before Judge Dailey,
there is no evidence that the State deliberately failed to order
UPDIKE V. MULTNOMAH COUNTY 23
an interpreter at the January 15, 2013 arraignment. Instead,
the evidence shows “bureaucratic slippage that constitutes
negligence rather than deliberate action or inaction.” Id.Since Updike’s first arraignment, the County and State have
reviewed their procedures and taken the appropriate
corrective action, such that this “bureaucratic slippage” is
likely to be avoided in the future. Similarly, pretrial services
has modified their procedures such that the booking register
now provides the necessary notice for accommodations.
There is no evidence that the State’s failure to provide an
ASL interpreter was the result of deliberate indifference. We
accordingly affirm the district court’s holding that summary
judgment in favor of the State is appropriate on Updike’s
claims under the ADA and § 504.
C
Along with alleging that the County failed to arrange for
an ASL interpreter at Updike’s arraignment, Updike alleges
that the County did not provide him with an ASL interpreter
and other auxiliary aids in order to effectively communicate
while he was in pretrial detainment and under pretrial
supervision. The district court held that Updike could have,
but did not, provide the County notice of this conduct that
allegedly violated the ADA and § 504 and that summary
judgment was warranted on this ground. The district court,
however, went on to review Updike’s allegations and found
that there was no evidence in the record creating a genuine
issue as to whether the County intentionally violated the
ADA or the Rehabilitation Act. As to Updike’s ADA and
§ 504 claims for damages against the County, we reverse.
24 UPDIKE V. MULTNOMAH COUNTY
1
“Federal Rule of Civil Procedure 8(a)(2) requires that the
allegations in the complaint ‘give the defendant fair notice
of what the plaintiff’s claim is and the grounds upon which
it rests.’” Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d
963, 968 (9th Cir. 2006) (quoting Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 512, (2002)). “[S]ummary judgment is
not a procedural second chance to flesh out inadequate
pleadings.” Wasco Prods., Inc. v. Southwall Techs., Inc.,
435 F.3d 989, 992 (9th Cir. 2006).
The district court found that Updike raised several
specific factual allegations in his declaration opposing the
County’s motion for summary judgment, submitted after the
close of discovery, that were not previously raised in his
complaint, including:
Plaintiff’s requests: (1) for an auxiliary aid to
make telephone calls; (2) for an ASL
interpreter to speak with Nurse Julie Nielson;
(3) for closed captioning to be turned on for
the [j]ail televisions; and (4) for an ASL
interpreter for his meetings with pre-trial
services.
The district court concluded that Updike’s failure to provide
the County with adequate notice of additional allegations
warranted summary judgment on Updike’s ADA and § 504
claims on these allegations.
We disagree. Although the primary focus of Updike’s
complaint was on the ASL interpreter that was not provided
at his arraignment on January 15, 2013, Updike’s complaint
gave sufficient factual allegations describing the County’s
failure to provide auxiliary aids and services while Updike
UPDIKE V. MULTNOMAH COUNTY 25
was detained and under pretrial supervision to put the
County on notice that those inactions would be at issue. For
example, Updike’s complaint stated that while Updike was
at MCDC he requested an ASL interpreter and a TTY but
neither was provided. He further alleged that he was
directed to write a statement without the accommodations of
a TTY or an ASL interpreter. The complaint went on to
allege that the County did not provide Updike with an ASL
interpreter while he was held at MCIJ.
His complaint also alleged that while he awaited trial, he
was under the supervision of employees of the County. He
had requested an ASL interpreter to aid his communication,
but the County did not accommodate this request. Updike
repeated these allegations throughout his complaint:
Defendant County denied Plaintiff the
benefits of Defendant’s services and
programs through failure to provide an ASL
interpreter and failure to promptly provide a
TTD while Plaintiff was in custody.
Defendant County also failed to provide an
ASL interpreter during Plaintiff’s pretrial
release while he was under the supervision of
Defendant County’s employees.
The complaint specifically alleged that the County
denied Updike “effective communication by refusing to
provide him with a qualified interpreter in circumstances
involving the following types of communication which
would be normal in criminal investigations and the arrest of
a suspect.” These circumstances included:
explaining to the police the details of the
incident and the alleged crime; discussing
injuries; discussing damage to and loss of
26 UPDIKE V. MULTNOMAH COUNTY
personal property; conveying and
understanding one’s rights as a crime victim;
conveying and understanding one’s rights as
an arrestee and pretrial detainee; asserting the
right to effective communication during
booking and being held by a jail or
correctional facility; asserting the right to an
ASL interpreter for appearances in court; and
asserting the right to effective
communication with supervising County
employees during pretrial release.
Updike complied with the notice pleading requirement
of Federal Rule of Civil Procedure 8. Updike alleged
sufficient facts that the County did not accommodate his
requests for an auxiliary aid to make telephone calls or for
an ASL interpreter while in custody, such that the County
should have been “on notice of the evidence it need[ed] to
adduce in order to defend against [Updike’s] allegations.”
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir.
2000). Coupled with Updike’s deposition testimony, the
County was put on notice of the evidence it would need to
defend against Updike’s ADA and Rehabilitation Act
claims. See id.2
The district court also granted summary judgment on the
alternative ground that there was insufficient evidence of
intentional discrimination by the County against Updike.
The County argues that not providing Updike with his
preferred form of communication is not, by itself, a violation
of the ADA or the Rehabilitation Act. The County
emphasizes that each of the County employees believed
Updike could effectively communicate without the use of an
UPDIKE V. MULTNOMAH COUNTY 27
ASL interpreter or TTD/TTY device. Whether Updike
could effectively communicate in English is disputed as
Updike avers that ASL is his primary language, he does not
consider himself to be bilingual in English, he does not read
or speak English well, and he is not proficient at reading lips.
He contends that he was not able to communicate effectively
with correctional staff because they did not provide
appropriate accommodations. Other disputes central to this
case include whether the County undertook “a fact-specific
investigation to determine what constitutes a reasonable
accommodation,” Duvall, 260 F.3d at 1139, and gave
“primary consideration” to Updike’s requests, 28 C.F.R.
§ 35.160(b)(2).
It is well-settled that Title II and § 504 “create a duty to
gather sufficient information from the [disabled individual]
and qualified experts as needed to determine what
accommodations are necessary.” Duvall, 260 F.3d at 1139(alteration in original) (quoting Wong v. Regents of the Univ.
of Cal., 192 F.3d 807, 818 (9th Cir. 1999)). Thus, a public
entity “must consider the particular individual’s need when
conducting its investigation into what accommodations are
reasonable.” Id. As explained above, to meet the deliberate
indifference test for compensatory damages, the public
entity must be on notice that an accommodation is required,
and that the entity’s failure to act involved an element of
deliberateness. Id. A denial of a request without
investigation is sufficient to survive summary judgment on
the question of deliberate indifference. See id. at 1140
(“[Plaintiff] provided sufficient evidence to create a triable
issue as to whether [defendants] . . . had notice of his need
for the accommodation involved and that they failed despite
repeated requests to take the necessary action.”). Here, there
is no dispute that County employees were aware of Updike’s
disability. There is also no record evidence that the County
28 UPDIKE V. MULTNOMAH COUNTY
properly investigated Updike’s need for accommodation.
We reverse the district court’s grant of summary judgment
on the ground that the County’s failure to provide
accommodations proceeded without conducting an adequate
investigation of Updike’s disability and the efficacy of other
ways to communicate.
We also reverse the district court’s grant of summary
judgment on the ground that there are disputed issues of
material fact as to whether, at each of Updike’s requests for
accommodation, the County’s failure to provide an
accommodation was done with deliberate indifference,
rather than merely negligence. 6
These are the individual bases for Updike’s ADA and
§ 504 claims:
Failure to provide an ASL interpreter or TTY during
the booking process: During the booking process, Updike
requested an ASL interpreter and also requested a TTY
device so he could make phone calls to his attorney and his
mother. The district court dismissed this aspect of Updike’s
6
Updike also contends that an inmate with a communication-related
disability “often lacks the ability to communicate his need for
accommodation.” See, e.g., Pierce, 128 F. Supp. 3d at 269 (“[Defendant]
does not explain how inmates with known communications-related
difficulties (such as [Plaintiff]) are supposed to communicate a need for
accommodations, or, for that matter, why the protections of Section 504
and Title II should be construed to be unavailable to such disabled
persons unless they somehow manage to overcome their
communications-related disability sufficiently enough to convey their
need for accommodations effectively.”). Our case law is clear on this
point: there may be situations where a public entity’s duty to look into
and provide a reasonable accommodation may be triggered when “the
need for accommodation is obvious,” and the public entity is on notice
about a need for accommodation. Duvall, 260 F.3d at 1139.
UPDIKE V. MULTNOMAH COUNTY 29
claim, explaining that Updike did not explain how the
booking process would have been different in any material
respect had he been provided with his preferred
accommodation. This analysis, however, disregards the
County’s affirmative obligations to provide reasonable
accommodations. Employees for the County were aware
that Updike was deaf, and that Updike had requested an ASL
interpreter and other auxiliary services. Furthermore, the
County has a contract with Columbia Language Services for
interpreting services. Taken together, a reasonable trier of
fact could conclude that the County acted with deliberate
indifference in denying a reasonable accommodation. See
id. at 1136; Wong, 192 F.3d at 819 (explaining that the denial
of a request for accommodation “without consulting
[plaintiff] or any person at the University whose job it was
to formulate appropriate accommodations” was “a
conspicuous failure to carry out the obligation
‘conscientiously’ to explore possible accommodations”). A
reasonable jury could conclude that an accommodation, such
as an ASL interpreter or use of a TTY, was necessary for
effective communication during the booking process.
Failure to provide a TTD to make phone calls: Updike
made many requests for corrections staff to provide him with
a TTD or TTY device so he could call his mother or an
attorney but avers that no such aid was ever provided. As
the district court noted, the parties do not dispute that a TTY
machine was available for inmates to use for telephone calls,
and that Updike was never provided with a TTY machine
until after the January 16, 2013 arraignment when he was
released from custody. The district court reasoned that
Updike failed to present any evidence that the County
actually refused to provide him with a TTY machine. We
disagree with the district court’s conclusion that the County
did not act with deliberate indifference in denying the
30 UPDIKE V. MULTNOMAH COUNTY
request for a TTD or TTY. That Updike repeatedly
requested a TTD, which was physically available at the jail,
but was never provided such a device to assist making phone
calls is evidence that the County denied him use of a TTD,
creating a genuine issue of material fact on this issue. A trier
of fact could conclude that the County acted with deliberate
indifference in denying direct requests for this
accommodation, which would permit Updike to use
telephones, a service routinely made available to non-deaf
inmates.
Failure to turn on closed captioning on jail
televisions: Updike asked MCDC officials to turn on closed
captioning several times while in the custody of the County,
but avers this request was not accommodated. Although the
district court attributed this to an “unintentional oversight,”
Updike has introduced evidence that County jail employees
were aware of Updike’s disability, yet ignored his repeated
requests to turn on closed captioning. Again, there is a
genuine factual dispute on deliberate indifference.
Failure to provide an ASL interpreter during his
medical evaluation: Under Updike’s evidence, which
should be credited on summary judgment, Updike requested
an ASL interpreter while meeting with Nurse Nielsen, and
could not convey that he had neck and back pain because of
an inability to communicate. He also explained that he could
not read well the form the nurse used and that he could not
respond or give input. Although the County asserts that
Updike was very literate, and that an accommodation
through writing was sufficient to comply with the ADA, the
County has not put forth evidence showing that it looked into
whether his request for accommodation could be granted
without undue burden. Further, Updike disputes that the
method of communication through writing was effective.
UPDIKE V. MULTNOMAH COUNTY 31
The district court dismissed this claim because there was
no evidence in the record that Updike was denied any
specific benefit or service that is regularly offered to other
inmates. The lack of an ASL translator, however, may have
denied Updike the opportunity to communicate effectively
during the medical evaluation provided by the County.
Medical evaluations often will be the type of complex and
lengthy situation in which an ASL interpreter should be
provided. See Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir.
1996) (“[A] qualified interpreter may be necessary when the
information being communicated is complex, or is
exchanged for a lengthy period of time.” (quoting 28 C.F.R.
pt. 35, App.); 28 C.F.R. § 35.160(b)(2) (“The type of
auxiliary aid or service necessary to ensure effective
communication will vary in accordance with the method of
communication used by the individual; the nature, length,
and complexity of the communication involved; and the
context in which the communication is taking place.”). A
trier of fact can weigh these factors in deciding whether
written communication, rather than an ASL translator, was
an appropriate accommodation.
Failure to provide an ASL interpreter during the
recognizance interview: During Updike’s recognizance
interview, he requested an ASL interpreter and a TTY
device, was not given either, and Updike said that he had
difficulty reading the officer’s lips. Officer Iwamoto
disputed this, believing that he was able to communicate
effectively with Updike through written English and that
Updike communicated clearly through written notes. But
again, the County introduced no evidence that it ascertained
what accommodations might be needed, and instead relies
on self-serving observations that its employees believed they
were effectively communicating with Updike. Whether the
County’s accommodation was sufficient requires sifting
32 UPDIKE V. MULTNOMAH COUNTY
through a number of facts. See 28 C.F.R. § 35.160(b)(2).
And here too, a reasonable jury could conclude that written
communication was not adequate to ensure that Updike
could communicate as effectively as non-hearing-impaired
individuals or that the County provided the appropriate
accommodation.
Failure to provide an ASL interpreter and other
auxiliary aids during interactions with pretrial services:
Updike and Sacomano dispute whether Updike requested an
interpreter. Although the record shows that Sacomano was
aware that Updike is deaf, the County did not put forward
evidence that she looked into providing Updike with an ASL
interpreter during their meetings. The district court focused
on whether Updike was actually denied services or whether
his interactions “actually caused him harm” in dismissing
this aspect of Updike’s claim. The district court should have
instead focused on whether Updike could effectively
communicate with Sacomano while under supervision of the
County and whether the County gave Updike reasonable
accommodations. Considering the evidence in the light most
favorable to Updike, a reasonable jury could conclude that
Sacomano did not adequately address Updike’s need for
accommodation.
Failure to timely arrange for an ASL interpreter at
arraignment: Updike inquired with County staff whether
an ASL interpreter would be available at arraignment, yet no
interpreter appeared at his January 15, 2013 arraignment.
The County, however, timely communicated Updike’s need
for an ASL interpreter before his January 15 arraignment by
noting it in his pretrial release report. That OJD staff looked
at the booking register but not the pretrial release report in
setting calendar, does not show that the County was
deliberately indifferent to Updike’s need for an ASL
UPDIKE V. MULTNOMAH COUNTY 33
interpreter. As discussed earlier, this sequence of events
shows “bureaucratic slippage that constitutes negligence
rather than deliberate action or inaction.” Duvall, 260 F.3d
at 1139. Summary judgment was appropriate on this facet
of Updike’s claim.
* * *
The County’s employees knew that Updike was deaf but
did not provide Updike with an ASL interpreter, TTY
device, or closed captioning for television, despite his
repeated requests for these accommodations. Updike put
forth evidence that he made repeated requests for an ASL
translator and other auxiliary services with respect to various
aspects of his time in custody and under pretrial supervision.
The County was also on notice that Updike believed that his
disability would impact his ability to understand instructions
while detained. Updike contends that the County’s failure
to provide auxiliary aids and services limited his ability to
communicate effectively, speak with his attorney and family
members, and enjoy other programs and services on par with
non-hearing impaired inmates.
Updike disputes the County’s assertion that he was able
to communicate fine using pen and paper, and instead
contends that communication between him and corrections
staff during the course of his detention and supervision were
ineffective. Even if a jury ultimately determines that the
County is correct—a matter that must be left to the jury
where, as here, there are disputes of material fact—summary
judgment was improper because the County never
meaningfully assessed Updike’s limitations and
comprehension abilities. At no time was Updike assessed to
determine to what extent he would need accommodation to
ensure that he could communicate effectively with others
during his time in custody and under pretrial supervision.
34 UPDIKE V. MULTNOMAH COUNTY
Yet “[w]hen an entity is on notice of the need for
accommodation, it ‘is required to undertake a fact-specific
investigation to determine what constitutes a reasonable
accommodation.’” A.G. v. Paradise Valley Unified Sch.
Dist. No. 69, 815 F.3d 1195, 1207 (9th Cir. 2016) (quoting
Duvall, 260 F.3d at 1139). Nor did the County present
evidence that it engaged in any inquiry as to why an ASL
interpreter or TTY would be unreasonable or could not be
accommodated. 7 The record sets forth that it was not until
his January 16, 2013 arraignment that Updike was provided
with an ASL interpreter, and that it was not until Updike was
released from custody that he was provided with a TTD. For
these reasons, the district court erred in granting summary
judgment in favor of the County on Updike’s ADA and
§ 504 claims.
The district court, in granting summary judgment in
favor of the County, concluded that Updike was not actually
excluded from services that similarly-situated non-deaf
individuals also accessed. We emphasize, however, that a
public entity can be liable for damages under Title II and
§ 504 if it intentionally or with deliberate indifferences does
not provide a reasonable accommodation to a deaf or
hearing-impaired person. See Duvall, 260 F.3d 1138–39;
Mark H., 513 F.3d at 938.
In reversing the grant of summary judgment in favor of
the County on Updike’s claims for damages, we do not hold
that Updike necessarily was entitled to have an ASL
7
The County makes no argument that providing Updike with an
interpreter or providing other auxiliary services, such as a TTD, would
have been unduly burdensome. Nor would this argument have much
weight, given their existing contract with Columbia Language Services
to provide those in custody with ASL interpreter services.
UPDIKE V. MULTNOMAH COUNTY 35
interpreter as a matter of course to achieve effective
communication with County employees or that the County
should be subject to liability for failing to provide one.
However, whether the County provided appropriate
auxiliary aids where necessary is a fact-intensive exercise.
Upon notice of the need for an accommodation, a public
entity must investigate what constitutes a reasonable
accommodation. See Duvall, 260 F.3d at 1139. Regulations
require that public entities give primary consideration to the
requests of the deaf individual with respect to auxiliary aid
requests and give deference to such requests. 28 C.F.R.
§ 35.160(b)(2). And the type of auxiliary aid or service that
will be appropriate should take into account the context in
which the communication is taking place. Id. If the public
entity does not defer to the deaf individual’s request, then the
burden is on the entity to demonstrate that another effective
means of communication exists or that the requested
auxiliary aid would otherwise not be required. See 28 C.F.R.
pt. 35, App. A. A public entity must “take appropriate steps
to ensure that communications” with a person with a
disability is “as effective as communications with others.”
Id. § 35.160(a)(1). To deny a deaf person an ASL
interpreter, when ASL is their primary language, is akin to
denying a Spanish interpreter to a person who speaks
Spanish as their primary language. An ASL interpreter will
often be necessary to ensure communication with a deaf
person who has become enmeshed in the criminal justice
system. At a minimum, officials must conduct an adequate
investigation into what accommodations may be necessary
to permit effective communication of the deaf while
incarcerated.
In this case, a reasonable jury could find that the County
was deliberately indifferent and violated Title II and § 504
when it did not conduct an informed assessment of Updike’s
36 UPDIKE V. MULTNOMAH COUNTY
accommodation needs, when it did not give primary
deference to Updike’s requests or context-specific
consideration to his requests, when County employees failed
to provide Updike with an ASL interpreter in a multitude of
interactions with County employees, when County
employees did not offer use of a TTD, and when County
employees did not turn on closed captioning. Thus, we
reverse the district court’s holding that no evidence in the
record created a genuine issue of material fact on whether
the County violated the ADA or the Rehabilitation Act by
inaction and conduct undertaken with deliberate indifference
to Updike’s legitimate needs as a deaf individual. Stated
another way, the County may not turn a blind eye to a deaf
ear. Whether it has done so here cannot be resolved at this
stage of the proceedings before the consideration of relevant
testimony and other evidence that may be offered at trial, and
before a jury or the district court has made findings of fact
based on trial proceedings. We reverse the grant of summary
judgment in favor of the County on Updike’s compensatory
claims under Title II of the ADA and § 504 of the
Rehabilitation Act. On the genuine factual disputes that we
have identified, the case should proceed to trial.
V
We affirm in part and reverse in part the district court’s
summary judgment orders. We affirm the district court’s
grant of summary judgment in favor of the State. We also
affirm the district court’s conclusion that Updike lacks
standing to pursue his claims for injunctive relief. We
reverse the district court’s grant of summary judgment in
favor of the County on Updike’s ADA and § 504 claims for
compensatory damages. We remand the case for further
proceedings consistent with this opinion.
UPDIKE V. MULTNOMAH COUNTY 37
AFFIRMED in part; REVERSED in part; and
REMANDED. Each party shall bear its own costs on appeal
of the summary judgment order entered in favor of the State.
We award costs to Updike on appeal of the summary
judgment order entered in favor of the County.