LIPEZ, Circuit Judge.
Appellant Matthew Kiman, formerly incarcerated at the New Hampshire State Prison, appeals the district court's grant of summary judgment in favor of the New Hampshire Department of Corrections and numerous individuals sued in their individual and official capacities. Kiman, who has amyotrophic lateral sclerosis ("ALS" or "Lou Gehrig's Disease"),
Kiman appealed, arguing that the district court erred by granting the defendants' motion because material facts are in dispute. After carefully reviewing the record, we agree that the district court failed to address admissible record evidence that may suffice to create genuine issues of material fact as to whether the defendants violated Title II of the ADA. We therefore vacate the judgment of the district court and remand for further proceedings. On remand, the district will need to address the issues left unresolved by its earlier holding, including an assessment of which defendants would be liable for the Title II violations, whether the state's sovereign immunity has been validly abrogated,
We present the evidence in the light most favorable to Kiman, the party opposing summary judgment. See Parker v. Universidad de Puerto Rico, 225 F.3d 1, 3 (1st Cir.2000). Kiman was incarcerated at
After he was released from incarceration in Massachusetts, Kiman returned to New Hampshire to reside at Calumet House, a halfway house. In April 1998, he made an appointment with Dr. Jay Smith at Manchester Community Health Center. Dr. Smith examined Kiman, noting the atrophy in his muscles and fasciculation (involuntary contractions and twitching) along both sides of his body. He recommended that Kiman consult a neurologist right away. When Dr. Smith discovered during a second appointment with Kiman several days later that Kiman had yet to see a neurologist, he speculated that "something in our system has broken down as I made the recommendation that we get him in with a neurologist . . . as soon as possible."
Two weeks later, Kiman met with Dr. Daniel Botsford, Jr. of Neurology Associates of Southern New Hampshire. Dr. Botsford arranged for electromyography and nerve conduction studies. He believed that Kiman might have a motor neuron disease or muscular dystrophy but did not reach a conclusive diagnosis. He ordered more testing and suggested that his partner, Dr. Mark Biletch, a neuromuscular specialist, examine Kiman. Kiman missed two appointments, however, and Dr. Botsford did not, at that time, diagnose Kiman with ALS. Instead, he told Kiman that he might have ALS or some form of muscular dystrophy.
Kiman returned to the New Hampshire State Prison on a parole violation in September 1998. He was initially assigned to the Reception and Diagnostics unit ("R & D"). In R & D, staff typically place an inmate in "quarantine" for one week, where they test the inmate for infectious diseases, assess the inmate's physical condition and medical needs, and obtain any medical records from the inmate's treating physician. While in quarantine, inmates may only leave their cells once each day to use the shower.
While in R & D, Kiman informed prison medical staff that he believed that he had muscular dystrophy. He met with Campbell for physical therapy sessions. Campbell instructed Kiman to do certain exercises, including walking. Kiman requested access to the weight room, but Campbell denied the request. Campbell did not have Kiman's medical records at the time and did not think that weight training was necessarily appropriate for his condition. Kiman continued to make these requests, which Campbell denied, until she issued him a pass for hand weights only in November 1998.
During his initial R & D screening in late September 1998, Kiman made several requests for the cane that he had begun using to help him walk while on parole. He received his cane on October 2, 1998. The defendants explained that the delay was due to their need to verify Kiman's need for a cane, for medical and security purposes. The defendants also noted that, because Kiman was in quarantine, he did
Kiman was housed in the R & D unit from September 23, 1998 until October 19, 1998. On September 24, 1998, Nurse Hoffstede issued Kiman a bottom bunk pass that was in effect the entire time he was incarcerated. According to Kiman, after receiving the bottom bunk pass, he was nonetheless kept in a top bunk except for when he was housed at the Minimum Security Unit. There was no ladder to get on the top bunk, so Kiman hoisted himself up to the bunk, sometimes gaining leverage on the edge of the latrine or sink in the cell. Because of Kiman's condition, he often had to rely on his cellmate to get to the top bunk. Kiman also stated in his deposition that, while housed in R & D, he requested to be placed on a lower tier but was placed on the third tier, requiring him to use the stairs to get to the meal area.
Prison medical staff prescribed Kiman medications to treat his symptoms, including Baclofen (a muscle relaxant) and Trazodone (an anti-depressant), on an "as-needed" basis. His first prescriptions for Baclofen and Trazodone were issued for September 24, 1998 through October 24, 1998. Kiman had trouble receiving his medication consistently and was experiencing intermittent pain and severe muscle cramping. He filed an "inmate request slip"
On October 19, 1998, Kiman was transferred to the Special Housing Unit ("SHU") after he received a disciplinary report for "inciting a riot."
When Kiman was initially transported to the SHU, he was handcuffed behind his back and escorted by two corrections officers. Kiman filed an inmate request slip to complain about the handcuffing behind his back, which caused him shoulder pain. He also complained about a lack of medications and exercise. Campbell issued him a front handcuff pass on October 21, 1998. Kiman stated in his deposition that the corrections officers never honored the pass and continued to cuff him behind his back. Kiman issued one inmate request slip complaining about an incident in which a corrections officer cuffed him behind his back because Kiman did not have his pass with him. Kiman stated that the officer himself had Kiman's pass and knew of his medical condition. Prison officials stated that the accusation that the officer had taken Kiman's pass "was found to be untrue" and that prison policy required Kiman to carry the pass with him. However, on at least one occasion prior to the issuance of the pass, Campbell observed that Kiman had arrived to a physical therapy appointment handcuffed in front and using his cane.
On November 6, 1998, Kiman was moved from SHU to the Closed Custody Unit ("CCU"), where he remained until November 24, 1998. Kiman did not need to take the stairs in the CCU because everything was on one level. He filed several inmate request slips reporting severe pain in his shoulder and arm, lack of exercise, and low doses of medications. He was told to report to sick call for medical treatment. He also inquired about a consultation with Dr. Biletch. Dr. Ward responded, explaining that, in his opinion, a consultation was not necessary because the prison had received the records regarding Kiman's neurological testing from earlier in the year. However, after Kiman filed another request, Dr. Ward ordered a consultation with Dr. Biletch.
Kiman was moved to the Minimum Security Unit ("MSU") on November 24, 1998. While housed in the MSU, Kiman was permitted to get his medications himself during designated times (rather than waiting for their delivery) and could use his cane. The beds were not bunked and thus were accessible from ground level.
Kiman was sent back to R & D on January 4, 1999, pending review of a disciplinary infraction for disruptive behavior. On January 5, 1999, Kiman reported that he had fallen in the shower and had not received adequate care. He requested a shower chair. A shower seat was left near the showers for his use. However, according to Kiman's deposition, the security guards used the chair and would not give him the chair despite his requests. The lack of a shower chair or handlebars in the shower made it difficult for Kiman to take a shower. The changes in water temperature would sometimes trigger cramping in Kiman's muscles, causing him at times to either fall or, if he felt himself becoming disoriented, sit down on the shower floor to prevent a fall. When he fell, other inmates would help him up.
According to his deposition, Kiman also often had trouble maintaining proper hygiene due to problems with the sink in his cell. The sink in his cell required him to
On January 6, 1999, Kiman requested an "early chow" pass (also known as a "slow movement" pass). He found it difficult to wait in long lines, particularly in cold weather, for food. However, because inmates housed in R & D are either quarantined or otherwise restrictively confined, they do not eat their meals at the same time as other inmates. For this reason, prison staff do not issue early chow passes to inmates housed in the R & D, but will allow them to take their meals in their cells, a process known as a "cell feed." Kiman did not request a cell feed while he was in R & D. Later, when Kiman was to be returned to MSU, where early chow was permitted, Dr. Ward issued him an early chow pass.
On January 8, 1999, Kiman submitted an inmate request slip to complain that he was being denied access to the weight room and to request access to a handicapped shower. He also complained that he had still not been seen by Dr. Biletch. Dr. Ward explained to Kiman that Dr. Biletch had to reschedule his appointment due to a conflict. Dr. Ward did not respond to Kiman's request for a handicapped shower because he noted that the infirmary had issued Kiman a shower chair pass. Dr. Ward denied Kiman's request to use the weight room. Kiman wrote more inmate request slips, requesting that his passes be renewed and complaining of a lack of physical therapy. Campbell responded by stating that she was seeing him on a regular basis. Dr. Ward stated that all of Kiman's passes would be renewed.
Dr. Biletch examined Kiman in Manchester on January 21, 1999. Dr. Biletch conclusively diagnosed Kiman with ALS and added a medication, Riloteck, to Kiman's prescriptions. Kiman returned to MSU where he remained until he was paroled on January 28, 1999. Dr. Ward did not order Riloteck for Kiman because the parole board informed him that Kiman was being released the following week. Prison medical staff did order that Kiman's other medications be continued until two weeks after the date of his release.
On April 29, 1999, Kiman initiated this action by filing a charge against the New Hampshire Department of Corrections ("DOC") with the New Hampshire Human Rights Commission. The Commission informed him that it lacked jurisdiction over Title II of the ADA and referred him to the United States Department of Justice ("DOJ"). On May 24, 1999, Kiman filed a complaint under Title II of the ADA with the Civil Rights Division of the DOJ. The DOJ ultimately decided not to take action on his behalf. On April 16, 2001, Kiman filed suit in federal court.
The defendants moved to dismiss on August 10, 2001, arguing that Kiman could not state a claim under Title II because Congress had exceeded its power under § 5 of the Fourteenth Amendment when it purported to abrogate the states' Eleventh Amendment immunity by adopting Title II. They also argued that Title II does not provide a cause of action against state officers in their individual capacities.
The district court granted the defendants' motion to dismiss, holding that Title II of the ADA was not a valid exercise of Congress's power to abrogate the states' Eleventh Amendment immunity. Kiman v.
Following discovery, the parties filed cross-motions for summary judgment. The defendants also filed a motion for late entry of answer, three years after the answer was initially due, which prompted the plaintiff to file a motion for default judgment. The magistrate judge granted the defendants' motion for late entry and denied the plaintiff's motion for a default judgment. The plaintiff did not file written objections to the magistrate's orders. The district court denied the plaintiff's motion for summary judgment and granted the defendants' summary judgment motion, concluding that the undisputed evidence established that the defendants did not violate Title II of the ADA. In so doing, the district court declined to reach the issue of whether, in light of recent Supreme Court jurisprudence, Kiman's Title II claims against the defendants are barred by the Eleventh Amendment. Having ruled against Kiman's ADA challenge, the district court opted not to exercise supplemental jurisdiction over Kiman's state law claims. Kiman then appealed.
During the pendency of the appeal, the Supreme Court clarified the Eleventh Amendment sovereign immunity issue in United States v. Georgia, ___ U.S. ___, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), an ADA suit for damages brought by Tony Goodman, a paraplegic prisoner in the Georgia state prison system. The Court held that "insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity." Id. at 882. The Court noted that many of Goodman's claims—involving the state prison's alleged failure to accommodate Goodman's needs regarding mobility, medical care, and hygiene—"were evidently based, at least in large part, on conduct that independently violated the provisions of § 1 of the Fourteenth Amendment [incorporating the Eighth Amendment's prohibition against cruel and unusual punishment]." Id. at 881. The Court remanded the case for further consideration.
Thus, we begin our analysis by examining whether the district court properly determined that Kiman failed to establish any genuine issue of material fact on Title II violations of the ADA. Concluding that Kiman has offered admissible evidence in support of his Title II allegations that the district court failed to consider, we then discuss the remaining issues that the district court will have to resolve on remand involving the liability of specific defendants, the abrogation of sovereign immunity
"We review a district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmovant." States Res. Corp. v. Architectural Team, Inc., 433 F.3d 73, 80 (1st Cir.2005) (internal quotation marks omitted). 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). "Neither party may rely on conclusory allegations or unsubstantiated denials . . . to demonstrate either the existence or absence of an issue of fact." Magee v. United States, 121 F.3d 1, 3 (1st Cir.1997); see also Quinones v. Houser Buick, 436 F.3d 284, 289 (1st Cir. 2006).
Kiman argues that the district court erred by granting summary judgment in this case because material facts are in dispute.
A plaintiff seeking relief under Title II "must establish: (1) that he is a qualified individual with a disability; (2) that he was excluded from participating in, or denied the benefits of a public entity's services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of his disability." Parker, 225 F.3d at 5. In cases where the alleged violation involves the denial of a reasonable modification/accommodation,
The defendants do not contest that Kiman is a "qualified individual with a disability." 42 U.S.C. § 12132. Rather, they argue that they complied with Title II's requirements, providing Kiman with the reasonable modifications that he requested, except where accommodating his requests would endanger prison security. The district court agreed with the defendants and concluded that Kiman had presented no admissible evidence showing a violation of Title II.
Specifically, the district court rejected Kiman's argument that the defendants inadequately diagnosed and treated his disability. The court found that Kiman's doctors at the prison followed the relevant diagnostic protocol and properly treated his condition, and that any delays in diagnosis were due to scheduling conflicts and other issues beyond the defendants' control. The district court did not directly address Kiman's claims that the defendants denied him access to his prescription medications, but noted that the defendants renewed the prescriptions for these medications several times while he was incarcerated.
The district court also rejected Kiman's argument that the defendants failed to provide him with certain reasonable modifications. Kiman argued that the defendants had violated the ADA by denying his
As we explain in further detail below, while we agree with many of the district court's conclusions, we conclude that Kiman has presented admissible evidence that may demonstrate four genuine issues of material fact on whether prison officials failed to (1) provide Kiman with regular access to his prescription medications; (2) provide Kiman with access to a shower chair or accessible shower facilities; (3) honor Kiman's front cuff pass; and (4) honor Kiman's bottom bunk pass or accommodate his request to be placed on a lower tier. We begin by addressing the district court findings with which we agree, and then focus on the four aforementioned issues.
1. No Genuine Issue of Material Fact
a. Diagnosis and Treatment of Kiman's ALS
Kiman challenges many of the decisions that the defendants made regarding his medical care and treatment after his ALS symptoms first appeared. He argues that his condition worsened because the defendants were incompetent in diagnosing him, failed to seek a specialist consultation promptly, failed to provide him with the appropriate physical therapy, prescribed inadequately low dosages of his medications, and failed to provide him with regular access to his medications.
Medical care is one of the "services, programs, or activities" covered by the ADA. See Georgia, 126 S.Ct. at 881 (stating that the "deliberate refusal of prison officials to accommodate [the plaintiff's] disability-related needs in such fundamentals as . . . medical care . . . constituted `exclu[sion] from participation in or . . . den[ial of] the benefits of' the prison's `services, programs, or activities'" (quoting 42 U.S.C. § 12132)). However, courts have differentiated ADA claims based on negligent medical care from those based on discriminatory medical care. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir.2005) ("[P]urely medical decisions . . . do not ordinarily fall within the scope of the ADA or the Rehabilitation Act."); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) ("The ADA does not create a remedy for medical malpractice."). As we have previously explained,
Lesley v. Chie, 250 F.3d 47, 55 (1st Cir. 2001) (internal quotation marks and citations omitted) (concluding that doctor's decision to refer HIV-positive patient to another hospital was not so unreasonable as to constitute discrimination under the Rehabilitation Act).
Kiman has not established that the defendants' actions regarding his diagnosis, medical consultations, physical therapy, or medical dosages were so unreasonable as to demonstrate that they were discriminating against him because of his disability. As the district court noted, prison medical staff sought Kiman's medical records, arranged an outside specialist consultation, and made reasoned medical judgments about the types of treatment and physical therapy that they thought were appropriate in his case. Kiman presents no evidence, beyond his conclusory arguments, that the defendants' medical treatment decisions violated Title II of the ADA. When the decision being challenged is "simply a reasoned medical judgment with which the patient disagreed," it is more appropriate for the patient to turn to "state medical malpractice law, not [the ADA]." Lesley, 250 F.3d at 58.
b. Request for a Cane
Kiman argues that the defendants violated Title II by denying him the use of his cane for two periods: (1) when he returned to prison and was "quarantined" in September 1998 and (2) when he was housed in SHU, a high security unit. While the district court noted that Kiman requested the use of his cane during these periods, it concluded that the prison had appropriate reasons for denying his requests.
The district court found that, during the initial quarantine period, the defendants were attempting to verify Kiman's need for the cane for both medical and security reasons. Kiman had not used a cane when he was previously in the prison and, at the time he reentered the prison in 1998, was able to walk without it. The defendants emphasize that, during his initial quarantine period, Kiman was confined to his cell at all times except for a short daily walk to and from his shower. The defendants argue that his medical need for the cane was not obvious and that corrections officers would have been available to help Kiman on his walk to his shower, if he had requested their assistance. On these facts, we agree that the defendants' delay in permitting Kiman the use of his cane while they verified his need for it was not a violation of Title II.
Kiman was eventually permitted to use his cane, but during his stay at the SHU (a maximum security unit), the defendants took away his cane for security reasons. Inmates in the SHU left their cells only for showers and recreation. The defendants again explain that corrections officers would have been available to help Kiman walk to the shower, if he had requested their assistance. Without his cane, however, Kiman was not permitted to visit the prison yard for outdoor recreation. Upon learning of this, his doctor issued Kiman a day pass to use the dayroom for recreation. The district court noted that Kiman does not point to any other prison program or service that he was unable to participate in because he did not have a cane, which the district court noted could be used as a weapon. We agree that Kiman has failed to establish that the defendants violated Title II by
c. Request for Early Chow Pass
On January 6, 1999, Kiman requested an "early chow" or "slow movement" pass, which would have allowed him to bypass the long lines for meals. At the time of his request, Kiman was housed in the R & D unit pending administrative review of an alleged disciplinary infraction. Due to heightened disciplinary concerns, inmates housed in the R & D do not eat their meals at the same time as the rest of the inmate population. Thus, "slow movement" passes are not available to them. Instead, inmates may request a "cell feed," i.e., the option of eating their meals in their cells. Kiman has presented no evidence that he requested a cell feed. We agree with the district court that Kiman has not established a triable issue of fact with regard to this requested accommodation.
2. Potential Issues of Material Fact
We are not without sympathy for the district court, which was faced with a ponderous record and insufficient help from counsel. Nevertheless, we conclude that the district court erred in failing to consider evidence that may create a genuine issue of material fact related to the defendants' denial of Kiman's access to prescription medications, a shower chair or accessible shower facilities, front cuffing, and bottom tier and bunk placements. We address these issues in turn.
a. Access to Prescription Medications
Kiman argues that corrections officers routinely failed to provide him access to the medications prescribed by his doctors. Kiman issued inmate request slips on October 8, 12, 14, and 19, 1998, complaining of the failure of corrections officers to deliver his medications on a timely and regular basis. Prison medical staff responded by informing Kiman that it was his responsibility to request a renewal of his prescriptions after they had expired. The district court noted this fact. However, according to the affidavit of Judith LaForest, Department of Corrections Director of Pharmacy, Kiman's initial prescriptions were valid from September 24 through October 24, 1998, and thus had not expired during the period of time he complained that he was not receiving the medications. Kiman also continued to complain about the irregular delivery of his medications, submitting additional inmate request slips on November 8 and 23, 1998, and mentioning the problem with medical staff during appointments on November 11 and 17, and December 3, 1998. According to Kiman's deposition, he experienced problems receiving his medication off and on throughout his time in prison.
Access to prescription medications is part of a prison's medical services and
b. Access to a Shower Chair or Accessible Shower Facilities
Kiman argues that corrections officers prevented him from using a shower chair that had been provided for him and did not respond to his requests for accessible shower facilities. The district court concluded that "Kiman . . . has presented no admissible evidence that corrections officers prevented him from using a shower chair. All he offers is an unsubstantiated allegation on this point." The district court acknowledged that Kiman had requested accessible shower facilities, but noted that Dr. Ward did not respond to this request because he knew that Kiman had been issued a shower chair pass. The court thus rejected Kiman's claims regarding this accommodation.
However, after carefully reviewing the record, we conclude that Kiman has presented admissible evidence that corrections officers prevented him from using the chair. Kiman stated in his deposition that a shower chair was brought near the showers in R & D for his use, but corrections officers would sit on the chair and refuse to allow him to use it despite his repeated requests.
The defendants acknowledged, through the issuance of a shower chair pass, Kiman's serious disability-related needs. Yet Kiman has presented evidence that corrections officers prevented him from using the shower chair or accessible shower facilities despite his repeated requests. We therefore conclude that Kiman has presented admissible evidence regarding his access to a shower chair and facilities. See Schmidt v. Odell, 64 F.Supp.2d 1014, 1033 (D.Kan.1999) (denying defendants' summary judgment motion, concluding that "there is a genuine issue of fact as to whether the defendants failed to make reasonable accommodation for plaintiff's disability, including by . . . failing to timely provide a shower chair"); Kaufman v. Carter, 952 F.Supp. 520, 532-33 (D.Mich.1996) (denying defendants' summary judgment motion where plaintiff provided evidence that prison failed to provide him with a shower chair or accessible shower facilities).
c. Request for Front Cuff Pass
Kiman argues that it was a violation of Title II for corrections officers to handcuff him behind his back. Because of the cramping of muscles in his shoulders, handcuffing him behind his back caused him pain, and also prevented him from using his cane to support himself as he walked. Campbell issued a front cuff pass for him. The district court stated that "[t]he record reveals only one instance in which Kiman was handcuffed behind his back after Bernadette Campbell issued him a front cuff pass shortly after he requested one." The district court noted that prison staff conducted an investigation of the incident and determined that Kiman had not been carrying his front handcuff pass with him at the time and thus it was reasonable for them to cuff him behind his back due to the lack of verification of his needs.
However, Kiman presented evidence through his deposition testimony that corrections officers would not honor his front cuff pass during the times they cuffed him.
The evidence indicates Kiman had informed the defendants that, on that occasion, the corrections officer who would not cuff him in front knew that he had a pass and in fact had taken the pass from him. The defendants' statement that Kiman's accusation "was found to be untrue," without more, does not demonstrate the absence of a triable issue of fact on this issue. See Magee, 121 F.3d at 3 ("Neither party may rely on . . . unsubstantiated denials . . . to demonstrate either the existence or absence of an issue of fact."). Furthermore, one can infer from Kiman's deposition statements that corrections officers failed to honor his front pass on more than that one occasion. On these facts, we believe that there is a dispute as to whether corrections officers refused to honor Kiman's front cuff pass and requests for front cuffing.
d. Request for a Bottom Bunk Pass, a First Tier Assignment, and Accessible Cell
Kiman also argues that he was forced to reside on the third tier of the prison and sleep in a top bunk. The district court found that Kiman never formally requested accommodations, emphasizing the requirement that Kiman submit an inmate request slip or file a formal complaint. "Kiman has presented no evidence that he submitted either a proper request to be moved from the third tier or a complaint that his bottom bunk pass, issued the day after he returned to prison, was not being honored. Similarly, there is no record evidence that he ever asked to be housed in a cell equipped with handicapped bathroom and shower facilities."
The district court is correct that the record does not indicate whether Kiman requested to be placed in an accessible cell. However, there is evidence, in the form of Kiman's deposition testimony, that he requested to be placed on a bottom tier and in a bottom bunk, but was not accommodated.
In summary, we conclude that Kiman has presented evidence establishing factual disputes that might, depending on the resolution of the issues discussed infra, be material and, therefore, suffice to resist summary judgment on whether defendants denied him access to (1) his prescription medications, (2) a shower chair or accessible shower facilities, (3) front cuffing, and (4) lower tier and bottom bunk placements, in violation of Title II.
As discussed above, evidence from Kiman's deposition, not addressed by the district court, and viewed in Kiman's favor as it must be on summary judgment, may permit a factfinder to conclude that Kiman's rights under Title II of the ADA were violated by prison officials. For this reason, remand is warranted. However, having identified these issues, we recognize that there are still significant hurdles for Kiman to overcome.
1. Defendants' liability
Several courts have held that Title II does not provide for suits against state officials in their individual capacities. See, e.g., Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir.2002); Garcia v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir.2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999). The district court did not reach this issue in its opinion, nor did the parties present it on appeal. Earlier in the long proceedings in this case, the plaintiff stated that he would drop suit against the prison officials in their individual capacities, see Kiman I, 301 F.3d at 17, but this has not happened.
If the various defendants can be sued in their individual capacities, a discrete analysis of their respective roles in the four claims still at issue would be necessary to determine which defendants should remain subject to potential liability (and on which claims). If an individual was not involved in one or more of those claims, the district court must grant his or her motion for summary judgment to that extent (or, if a defendant was not involved in any of the claims, totally).
Regardless of whether the defendants can be sued in their individual capacities, a discrete analysis of the claims still at issue would be necessary to establish the state's ultimate responsibility for the individuals' actions.
2. Sovereign Immunity
The district court will also have to address the issue of sovereign immunity. The defendants argued that the state's sovereign immunity was not validly abrogated by Title II of the ADA. The district court did not address this issue in its opinion. The Supreme Court's recent decision in Georgia clarifies the appropriate inquiry on remand. The district court will have to determine, on an issue-by-issue basis, "to what extent [the alleged Title II violations] also violated the Fourteenth Amendment" and "insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid." See Georgia, 126 S.Ct. at 882.
3. State law claims
Because the district court granted summary judgment in favor of the defendants on Kiman's ADA claim, the court declined to exercise supplemental jurisdiction over his state law claims. Assuming that, after the analysis outlined above, some of Kiman's Title II claims against the defendants remain viable, the district court will have to assess his state law claims as well.
After carefully reviewing the record, we conclude that Kiman presented relevant evidence on his Title II claims, which, at this point, precludes a conclusion that the defendants have carried their burden of establishing the absence of genuine issues of material fact. In order to determine whether they have carried that burden, the district court will need to address the issues we have highlighted. We intimate no view as to how the court should resolve those issues or as to how it ultimately should rule on the vital question of whether any or all of the defendants have shown an entitlement to summary judgment.
So ordered. Costs are awarded to the appellant.
According to Kiman, who described the process of submitting inmate request slips in his deposition, inmates would place the request slips in the barrier doors of the cell, and wait for a corrections officer to pick them up. Usually, a guard would pick up the request slip at some point each day, but sometimes a few days would go by before a guard picked up the request. Once the appropriate prison staff member received the request, a copy of the request would usually be sent back to the prisoner with a reply. On some occasions, according to Kiman, he would receive no reply to his requests.
Second, Kiman argues that the district court erred by ruling on the summary judgment motions based on an incomplete record. However, Kiman's counsel conceded at oral argument that she did not file a Rule 56(f) motion for an extension of the summary judgment deadline. See Fed.R.Civ.P. 56(f) ("Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."). Since Kiman proceeded to oppose summary judgment without filing a Rule 56(f) motion with the district court, he cannot now argue that the district court's ruling was incorrect due to insufficient discovery. See Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 23 (1st Cir.1999) ("Ordinarily, a party may not attempt to meet a summary judgment challenge head-on but fall back on Rule 56(f) if its first effort is unsuccessful.") (internal quotations marks omitted).