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Windham v. Harris County

United States Court of Appeals, Fifth Circuit

November 13, 2017

WILLIAM WINDHAM, Medical Doctor, Plaintiff-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, OWEN, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge

         Two Harris County sheriff's deputies detained plaintiff William Wind-ham on suspicion of driving while impaired. Windham filed suit against the officers and the County, contending that a standard field sobriety test injured him as a result of his preexisting neck condition. He now appeals the district court's grant of summary judgment for defendants on his failure-to-accommo-date claim under Title II of the Americans with Disabilities Act ("ADA"), and on his claims for unjustified detention, excessive use of force, and municipal liability under 42 U.S.C. § 1983 and the Fourth Amendment. We affirm.


         On May 30, 2011, Deputy Thomas Pasket was called to investigate an accident reportedly caused by an intoxicated driver. When he arrived at the scene around 2:49 p.m., he learned that Windham had rear-ended another car. The other car's passenger reported that Windham appeared to be under the influence of drugs or alcohol and had fallen asleep behind the wheel while waiting for the police. Pasket observed that Windham's eyes were bloodshot, that he appeared confused, and that he had not been aware that he had hit another car. Windham explained that he had taken a prescription painkiller at 3:00 a.m. and had been awake for twenty hours.

         Windham suffered from cervical stenosis. As a result, his neck involuntarily assumed a flexed, downward-looking position. He carried an explanatory doctor's note. The note stated that Windham's stenosis "place[d] him at risk for strenuous activities and particularly for driving in the unpredictable event of an accident." It added that "[b]ecause of [Windham's] risk of neurologic injury from neck extension, he should also consider delaying his thyroid surgery until such time as his cervical spine issues have been addressed." And it concluded by asking the reader to "[k]indly afford [Windham] the opportunity to address these issues in whatever way that you can help him." The note gave no further details, however, as to the nature of Windham's "issues" or the accommodations they required. Pasket read the note and assured Windham that "nobody w[ould] extend [his] neck."[1]

         Pasket then sought Windham's permission to administer certain standard field sobriety tests. Although Windham declined to perform some, he "promptly agreed" to a gaze nystagmus test.[2] That test involves waiving a stimulus in front of the subject's face and tracking his eye movements. Pasket performed the test without injuring Windham. The results were negative or inconclusive. Pasket determined that he needed to call a certified drug recognition expert, Deputy Matthew Dunn, to gauge Windham's impairment.[3]

         Dunn responded to Pasket's call as quickly as he could, arriving at 4:01 p.m. He spoke first with Pasket for about ten minutes. The officers then approached Windham together. The dash cam on Dunn's patrol car recorded their interaction. To the extent the parties' recollections differ from the video account, we credit the video. See Scott v. Harris, 550 U.S. 372, 380-81 (2007).

         According to the video, Windham began by telling Dunn that he "do[es]n't drive at all" because he has "cervical stenosis with radiculopathy in both [his] legs." He added, "It's right here on my surgical..." before trailing off and handing Dunn a stack of papers, including the doctor's note. Dunn held the papers at arm's length and glanced at the topmost page for about three seconds. No one mentioned the note.

         Dunn asked Windham if he would perform some field sobriety tests. Windham responded, "Yeah I'm not gonna be able to do them." Dunn asked, "So are you refusing to do any?, " and Windham quickly assured him, "No." Dunn sought clarification: "So you said you will or you won't?" Windham replied, somewhat enigmatically, "No I will. But I'm not gonna be able to." Dunn remarked "okay" and began administering a gaze nystagmus test.

         When Dunn instructed Windham to "look up at me" and "put your head up, " Windham promptly did so, but added: "It hurts to lift my head up this high." Dunn asked if he had any head injuries and Windham answered, "No, but the neck hurts." Windham never indicated that he could not complete the test or asked Dunn to stop. He also never asked Dunn to administer the test differently or to use another test instead. To the contrary, he completed the gaze nystagmus test without further complaint. He held his head in the requested position for about forty-five seconds. He then completed the walk-and-turn test and the one-leg-stand.

         Dunn concluded that Windham was insufficiently impaired to justify arrest and released him around 4:18 p.m. The entire encounter lasted approximately ninety minutes. The district court determined, and no one now disputes, that a reasonable jury could find that Windham suffered injury as a result of Dunn's administration of the gaze nystagmus test. Windham sued Pasket, Dunn, and the County, all of whom secured summary judgment on the relevant claims. See Windham v. Harris Cty., No. 4:13-cv-1576, 2016 WL 4939563 (S.D. Tex. Sept. 13, 2016). Windham timely appealed.


         We review the district court's grant of summary judgment de novo, applying the same standards as the district court. Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir. 2007). Summary judgment is proper only if the movant shows both that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Although we view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor, SEC v. Kahlon, 873 F.3d 500, 504 (5th Cir. 2017), summary judgment remains appropriate if the evidence is "merely colorable" or "not significantly probative, " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We may affirm a grant of summary judgment on any ground the record supports. United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 323 (5th Cir. 2017).


         I. Title II of the ADA

         Title II of the ADA provides: "[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." 42 U.S.C. § 12132. It further defines "public entities" to include local governments. § 12131(1)(A). And it creates a private right of action against them for monetary and equitable relief. See § 12133. These provisions allow individuals to sue local governments for disability discrimination committed by police in non-exigent circumstances. See Delano-Pyle v. Victoria Cty., 302 F.3d 567, 570-71, 574-76 (5th Cir. 2002); Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000).[4]

         To make out a prima facie case under Title II, a plaintiff must show "(1) that he is a qualified individual within the meaning of the ADA; (2) that he is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of his disability." Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004). The County does not dispute that a reasonable jury could find for Windham on the first two prongs. Our analysis concerns only whether a reasonable jury could find that the County discriminated against Windham "by reason of his disability."[5]

         Windham attempts to satisfy the third prong on a theory of "failure to accommodate." That theory is expressly codified in Title I of the ADA (governing employment), which defines "discriminat[ion] . . . on the basis of disability" to include "not making reasonable accommodations [for a disabled employee's] known physical or mental limitations." 42 U.S.C. § 12112(b)(5)(A). Although Title II contains no similarly explicit definition, see 42 U.S.C. §§ 12131, 12132, our cases recognize that a public entity's failure reasonably to accommodate the known limitations of persons with disabilities can also constitute disability discrimination under Title II. See Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 & n.11 (5th Cir. 2005) ("[Title II] impose[s] upon public entities an affirmative obligation to make reasonable accommodations for disabled individuals." (citing 42 U.S.C. § 12131)); see also Jin Choi v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 633 Fed.Appx. 214, 215 (5th Cir. 2015) (adapting the failure-to-accommodate standard from Title I to Title II); Ball v. LeBlanc, 792 F.3d 584, 596 n.9 (5th Cir. 2015) (same).[6] We have also recognized Title II claims in the specific context of police officers who fail reasonably to accommodate the known limitations of disabled persons they detain.[7]

         A critical component of a Title II claim for failure to accommodate, however, is proof that "the disability and its consequential limitations were known by the [entity providing public services]." Jin Choi, 633 Fed.Appx. at 215 (quoting Neely v. PSEG Tex., Ltd. P'ship, 735 F.3d 242, 247 (5th Cir. 2013)); accord Ball, 792 F.3d at 596 n.9.[8] Mere knowledge of the disability is not enough; the service provider must also have understood "the limitations [the plaintiff] experienced . . . as a result of that disability." Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir. 1996) (emphasis added); accord Patton v. Jacobs Eng'g Grp., Inc., ___ F.3d ___, ___, 2017 WL 4784586, at *5 (5th Cir. Oct. 24, 2017); Jin Choi, 633 Fed.Appx. at 216.[9] Otherwise, it would be impossible for the provider to ascertain whether an accommodation is needed at all, much less identify an accommodation that would be reasonable under the circumstances.[10] Taylor, 93 F.3d at 164. Thus, because "[t]he ADA does not require clairvoyance, " Hed-berg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995), the burden falls on the plaintiff "to specifically identify the disability and resulting limitations, " Taylor, 93 F.3d at 165, and to request an accommodation in "direct and specific" terms, Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001).[11]

         When a plaintiff fails to request an accommodation in this manner, he can prevail only by showing that "the disability, resulting limitation, and necessary reasonable accommodation" were "open, obvious, and apparent" to the entity's relevant agents. Taylor, 93 F.3d at 164; accord Jin Choi, 633 Fed.Appx. at 216 (applying standard to Title II); Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1197 (10th Cir. 2007) (collecting cases across circuits); see, e.g., id. at 1198 (reasonable jury could infer that deaf arrestee's inability meaningfully to participate in his probable-cause hearing was sufficiently obvious to put officers on notice of the need for a hearing aid). The parties dispute what type of knowledge is required (although neither provides any citation or analysis): the County couches its arguments in terms of what "would have alerted a reasonable officer, " whereas Windham asserts that the inquiry is subjective. Although our caselaw speaks generally in terms of the entity's subjective knowledge, [12] we do not appear to have confronted this question directly. Nor must we do so now. As explained below, we would reach the same conclusion on either party's view of the law.

         In this case, Windham contends that the County failed reasonably to accommodate his neck disability in Dunn's administration of the gaze nystagmus test. That test required Windham to raise his head into a neutral, forward-looking position for about forty-five seconds. The County does not challenge the district court's conclusion that a reasonable jury could find that, because of Windham's disability, doing so caused him injury.

         But Windham never asked the officers for any accommodation. Far from requesting, for example, that the gaze nystagmus test not be performed or that it be administered from a lower angle, Windham made no requests of the officers whatsoever. He also expressly confirmed that he was not refusing to perform the test. Although Windham did express vague skepticism about whether he would "be able to do" the tests, that statement can hardly be construed as a "request" for anything. It does not constitute the kind of clear ...

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