from the United States District Court for the Southern
District of Texas
SMITH, OWEN, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge
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.
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.
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]
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. 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
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).
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.
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
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
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.
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).
Title II of the ADA
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.
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
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). 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.
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. 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. 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. 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).
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,
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.
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.
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 ...