City and County of San Francisco, California v. Sheehan Decided

Previously, I have blogged on the Sheehan case and its oral argument before the United States Supreme Court. Yesterday, the United States Supreme Court came down with the decision in this case, which can be found here:

As expected, they decided with respect to the ADA matter, that the writ of certiorari had been improvidently granted. That is, the issue of how title II of the ADA might apply to arrests is not answered or even addressed. Justice Alito noted that how the ADA applies to arrests is an important question and one that would benefit from briefing and adversarial presentation. However, the way the case got argued before the court, all of the parties believed that the ADA did apply to arrests. Accordingly, it was imprudent to decide the question.

The court also noted that all the parties agree that a public entity can be held vicariously liable for money damages for violating title II of the ADA for the purposeful or deliberately indifferent conduct of its employees, but that is a point of law that has never been decided by the Supreme Court as to whether that is correct and the court declined to do so in the absence of adversarial briefing.

They did decide to address the question of whether the officers could claim qualified immunity for violating the fourth amendment. The Supreme Court held in a decision by Justice Alito that the law in the area is so uncertain with respect to how police officers needed to behave given the facts of this case, that therefore, it was proper to grant the police officers qualified immunity. For qualified immunity to be waived, the law would have to be crystal clear so that the police would know how to conform their conduct, which wasn’t the case here. Also, the police acted reasonably under the circumstances with respect to fourth amendment jurisprudence.

Justice Scalia and Justice Kagan concurred and dissented. They concurred that the court was correct to dismiss the ADA question as being improvidently granted. They go further and accused the City and County of San Francisco of bait and switch. That is, setting up the system so that the court would grant certiorari and then switching it once the court grants it. These two Justices say that such a practice should not be encouraged and that by deciding the second issue they have given a victory to the City and County of San Francisco despite their engaging in inappropriate practices before the United States Supreme Court. Accordingly, they would have dismissed the second question as being improvidently granted as well so as to avoid being snookered and to deter future snookering.

Importantly, they note that the City and County of San Francisco will still be subject to liability under the ADA if the trial court determines that the facts demanded accommodation because the Court of Appeals vacated the District Court’s judgment that the ADA was inapplicable to police arrests of violent and nondisabled persons, and remanded for the accommodation determination.


1. With respect to the fourth amendment, the police officers behaved reasonably in this case, and the police officers were allowed to exercise qualified immunity because of the uncertainty in the law at the time of their behavior, which uncertainty still remains after this decision.

2. The court leaves open the question of whether a public entity can be vicariously liable for damages under title II for the purposeful or deliberately indifferent conduct of its employees. One would think that the answer would be yes, since title II is tied into the Rehabilitation Act with respect to remedies, and under the Rehabilitation Act, vicarious liability does exist as noted in this blog entry .

3. Since the first question was improvidently granted and the Ninth Circuit vacated the District Court’s judgment that the ADA was inapplicable to police arrest of violent and disabled persons, the ADA case and San Francisco’s liability for ADA violations remain very much alive. San Francisco got a lot of heat for pursuing the case at the Supreme Court, and one wonders what that means with respect to fully defending the ADA suit in the District Court. One also wonders if the switch at the Supreme Court was not a result of that heat rather than something more nefarious as suggested by the dissenters.

Iqbal/Twombly Pushback and When Might All of Operations of a Private Entity Have To Comply with the Rehabilitation Act

Today’s case is a two fer. We explore two questions. First, if a complaint as originally drafted does not meet Iqbal/Twombly standards, whatever that is:-), does the plaintiff get the right to amend? Second, just what must be alleged in order to survive a motion to dismiss with respect to alleging that a private entity’s entire operations are subject to the Rehabilitation Act. The case is Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, a Seventh Circuit decision decided May 8, 2015. As is typical, I have divided the blog entries into categories: facts; court’s reasoning with respect to the proper approach for motion for leave to amend complaints; court’s reasoning with respect to just what must be alleged to bring entire operations of a private entity within the scope of the Rehabilitation Act; and takeaways. The reader is free to concentrate on any or all of the categories.


Plaintiff, who is deaf, was active in a Girl Scout troop run by defendant Girl Scouts of Greater Chicago and Northwest Indiana, the largest regional Girl Scout organization in the United States. For several years the plaintiff benefited from sign language interpreters provided by the Girl Scouts enabling her to participate fully in the troop’s activities. The Girl Scouts then stopped providing interpreters. When her mother complained, the Girl Scouts disbanded the entire troop. The plaintiff alleged that the Girl Scouts violated the Rehabilitation Act by refusing to provide her with sign language services and then by disbanding her troop because her mother complained. The District Court dismissed the case under Rule 12(b)(6) finding that the plaintiff had failed to allege that the Girl Scouts was subject to the Rehabilitation Act. Further, thinking that amendment would be futile under its interpretation of the Rehabilitation Act, the District Court dismissed the case without leave to amend. For the reasons that follow below, the Seventh Circuit reverses.

Court’s Reasoning (Proper Approach for Motion for Leave to Amend Complaints)

1. The District Court erred in saying that the plaintiff needed to allege in their complaint facts supporting specific legal theories. Neither Twombly nor Iqbal has such a requirement. That is, a complaint need contain only factual allegations giving the defendant fair notice of the claim for relief and showing that the claim has substantive plausibility. Further, the federal Rules of Civil Procedure do not require complaints to specify the legal theory or statute supporting the claim for relief.

2. Denying a plaintiff the opportunity to amend carries with it a high risk of being deemed an abuse of discretion by the appellate court. While the District Court said that amending the complaint would be futile, that conclusion was based on a novel and erroneous interpretation of the Rehabilitation Act.

3. It has been repeatedly said in the Seventh Circuit that ordinarily a plaintiff whose original complaint has been dismissed under Rule 12(b)(6), should be given at least one opportunity to try to amend her complaint before the entire action is dismissed.

4. A denial by a District Court of giving a plaintiff the opportunity to amend a complaint will be reviewed rigorously on appeal. Such a rigorous review is appropriate because except in unusual circumstances, it is unlikely that the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a claim. Those unusual circumstances, “clear futility at the outset,” are a very rare occurrence, which is not present in this case. Further, having a liberal standard for amendment is even more important where the law is not clear. That is, the Seventh Circuit specifically notes that Twombly and Iqbal have created considerable uncertainty and variation among the lower court’s as to just how demanding pleading standards have become. Accordingly, in the face of that uncertainty, applying a liberal standard for amending pleadings, especially in the early stages of the lawsuit, represents the best way to ensure the cases will be decided justly and on their merits.

5. In this case, the District Court took the unusual step of entering judgment at the same time it dismissed the complaint. In that situation, it is not necessary for an appellate court to find other extraordinary circumstances before allowing a pleading to be amended and instead the liberal standard for amending pleadings applies. In other words, it is not possible for District Court to nullify the liberal right to amend under Rule 15(a)(2)- Rule 15(a)(2) covers post dismissal leave to amend requests-by entering judgment prematurely at the same time it dismisses the complaint that would be amended.

6. It is true, that an absolute right to amend per Rule 15(a)(1) expires 21 days after serving it or if the pleading is one where responsive pleading is required, 21 days after service of a responsive pleading for 21 days after service of a motion under Rule 12(b),(e), or (f) whichever is earlier. However, just because a right is guaranteed at that point does not mean in light of how uncertain Twombly and Iqbal are, that if a motion to dismiss is granted the liberal right to amend does not exist.

7. It was perfectly reasonable for the plaintiff to stand on her original complaint because of the uncertainty of just when the Rehabilitation Act applies to the entire operations of a private entity and because of the uncertainty of the Iqbal/Twombly standards. Further, considering the uncertainties, it was reasonable for the plaintiff to avoid the considerable expense of further litigation, which would involve exploring all of the Girl Scouts’ activities, until she was sure that she failed to survive a motion to dismiss leaving her with no choice but to pursue leave to amend under Rule 15(a)(2).

Court’s Reasoning (Just What Must Be Alleged to Bring Entire Operations of a Private Entity within the Scope of the Rehabilitation Act)

1. There are two ways per 29 U.S.C. § 794 for a private entity to be subject to the Rehabilitation Act with respect to its entire operations. First, the private entity could receive federal funds as a whole (a hard thing to show). Second, showing that the private entity is principally engaged in the business of providing education, healthcare, housing, social services, or parks and recreation.

2. Private organizations are not categorically exempt from coverage under the Rehabilitation Act. If Congress wanted to categorically exempt private organizations from the scope of the Rehabilitation Act, they could have done so as they have done so with respect to other laws, and legislative history is not to the contrary.

3. Due to the grammatical structure of the list of activities contained in § 794(b)(3)(A)(ii), it will be up to the plaintiff to eventually show that the defendant engages in any one of those activities. In this particular case, the plaintiff chose to focus on education and social services provided by the Girl Scouts.

4. Since formal educational systems are covered by a separate provision of the Rehabilitation Act, being principally engaged in education would not be limited to the sort of instruction received in a traditional educational setting.

5. With respect to what might constitute social services, that would refer to an activity designed to promote social well-being, such as organized philanthropic assistance of the sick, destitute, or unfortunate.

6. In a footnote, the Seventh Circuit says that the plaintiff also pointed to some girl scout projects involving providing healthcare and parks and recreation.

7. With respect to what principally engaged might mean, in other situations, it has been interpreted to mean the primary activities of a business, excluding only incidental activities. Further, if any one of the designated activities are principal, that is sufficient to bring all of the operations of the private entity within coverage of the Rehabilitation Act.

8. A private organization also falls within the statute where it engages in a mix of the statutorily enumerated services where that mix in the aggregate makes up the primary activities of the private organization because there was no reason to think Congress laid out mutually exclusive conditions when it listed the activities it did. Such an interpretation also ensures that organization focusing on providing more than one of the activities without committing to just one are still covered. Such an interpretation also makes it unnecessary to engage in the classification of activities that are a hybrid of more than one activity.

9. Plaintiff’s complaint cited numerous instances where the defendant characterized itself and its programs as educational. The fact that she attached exhibits to the complaint indicating as such was perfectly okay and did not mandate that the court convert the motion into one for summary judgment.

10. In fact, the proposed amended complaint of the plaintiff listed several programs of the defendant that could be plausibly classified as providing education, healthcare, social services, or parks and recreation. Accordingly, the allegations in the complaint exceed what is needed to allege plausibly that the defendant was principally engaged in the business of providing the services listed in the Rehabilitation Act that would subject its entire operations to the Rehabilitation Act, and it would not have been futile to allow the plaintiff to amend.

11. The level of detail provided by the plaintiff’s proposed amended complaint is not the level of detail necessary (she went beyond what was necessary), for every plaintiff to withstand a motion to dismiss. Rather, plaintiff’s pleading burden need to be commensurate with the amount of information available to them at the time (publicly available).


1. I once heard a federal magistrate say that Iqbal/Twombly was a moving target and that it was very difficult to know when that target is satisfied. It is interesting to see that the Seventh Circuit acknowledges that fact. Since it is very unclear as to how there could ever be much clarity to the standard, the Seventh Circuit says that there needs to be a liberal amendment policy for when a complaint get dismissed under Rule 12(b)(6). That liberal amendment policy also applies to request for leave to amend made post judgment under Rule 15.

2. With respect to hitting the moving target that is Iqbal/Twombly, one approach that you might consider is alleging sufficient facts to put the defendant on notice as to what the nature of the claim is (the approach that has been used in Illinois for some time). Keep in mind, it is the facts that are important and not the theory of the case.

3. The decision should go a long way to discouraging District Court judges from dismissing complaints and then disallowing a leave to amend.

4. The decision brings a great deal of clarification as to when the entire operations of a private entity might be subject to the Rehabilitation Act and how the plaintiff can survive a motion to dismiss when making such allegations. The steps would be (the below assumes that the private entity takes federal funds and that it does not take federal funds as a whole):

A. Is the private entity engaged in any one of the following activities: education (includes education outside of the traditional educational setting), healthcare, housing, social services (an activity designed to promote social well-being), or parks and recreation or any combination thereof?

B. If the answer to paragraph IV(4)(A) is yes, are those activities or combination of those activities the primary activities of the business?

C. Research and then attach to the complaint as exhibits whatever information is publicly available to support IV(4)(A),(B)

D. If District Court still grants the motion to dismiss after you have done everything under IV(4), request a leave to amend and repeat the steps in IV(4) if leave to amend is granted. If leave to amend is not granted, then appeal and when the leave to amend is reversed, which under this decision could very well happen in most cases, repeat IV(4).

5. If you are a private entity taking federal funds, get prepared for a lot of litigation over whether the entire operations of your private entity are subject to the Rehabilitation Act. On a preventive level, you may want to consider acting as if that is already the case and proceed accordingly per the Rehabilitation Act provisions.

6. This case opens up a whole new realm of possibilities for private entities that would not be subject to title III of the ADA (to be subject to title III of the ADA, it must be a place of public accommodation), but under this decision, can now have all their operations subject to the Rehabilitation Act.

7. For those private entities receiving federal funds and already subject to the Title III of the ADA, this decision does lead to the possibility that such an entity could be subject to damages (though not punitives per this case), providing deliberate indifference could be shown, under the Rehabilitation Act when such damages would not be a possibility under title III of the ADA.

8. This is a case with a huge impact with respect to both pleading practice and the scope of the Rehabilitation Act (the panel was Easterbrook, Sykes, and Hamilton with Hamilton writing the decision). It definitely bears watching in terms of how it fares in other jurisdictions.

ADA, Sovereign Immunity, and the County Jail


One of the most complicated topics around is the doctrine of sovereign immunity, which comes from England and says that the King cannot be sued without his consent. We have carried over this doctrine into our 11th amendment to the U.S. Constitution. As we have discussed previously numerous times, there are situations where a State can be sued without its consent. For that to be true, Congress has to do two things. First, it has to state in the law that States are waving their sovereign immunity. Second, the law has to be a proportional response to the harm seeking to be redressed. Whether the law is a proportional response to the harm being addressed, depends entirely upon what equal protection classification the group falls in. Depending upon the classification, the legislators get more discretion to come up with comprehensive schemes to remedy the past harms. As you may recall, there are varying levels of equal protection classification: rational basis (for everyone not in the intermediate or strict scrutiny class); intermediate scrutiny (gender); and strict scrutiny (race). It is unclear as to where Gays and Lesbians will fall. On that, we may know more when the pending gay marriage decisions come down from the United States Supreme Court. As is typical for my blog entries, I have divided the blog entry into categories: introduction; facts; court’s reasoning (supervisory liability of the state); court’s reasoning (sovereign immunity of the sheriff); and takeaways. The reader is free to focus on any or all of the categories.

Case of the Week, Zemedagegehu v. Arthur, 2015 U.S. Dist. LEXIS 55603 (E.D. Va. April 28, 2015)


Plaintiff is deaf with no functional ability to speak English or read lips (it is a myth that all deaf people are capable of reading lips. I happen to be fortunate that I can get 50% of what is said on the lips, which is the absolute best a deaf person could do in any event, but I am not typical). Plaintiff was born and raised in Ethiopia and became a United States citizen in 2008. His knowledge of English is limited as a result of courses he took through Gallaudet University but he struggles to read, write, and understand even basic English sentences. His primary language is ASL, and his employment history is limited to manual labor jobs not requiring proficiency in spoken or written English. On February 2, 2014, plaintiff was arrested at Ronald Reagan Washington National Airport after he went there to find somewhere warm to sleep. From there, things went downhill in a big way. Shortly after his arrest, in the early morning hours of February 3, 2014, he was transported to the jail where he started the booking process. While there he attempted to communicate with the national airport police officers and jail personnel using gestures and in writing. He also requested an ASL interpreter but one was not provided. As a result, plaintiff had no idea why he had been arrested nor did he understand why he was being detained in the jail. The plaintiff also appeared in front of a judge via videoconference, but he could not signal to the judge that he was deaf because jail personnel instructed him to remain still. As part of the booking process, he underwent a medical evaluation where he made additional request for assistance. His requests were again denied. Since he did not have an ASL interpreter, he did not understand the medical evaluation process and refused to sign a consent form that he could not read. Even so, jail personnel forced the needle into his arm without his consent and placed him in isolation. Scared and confused, the plaintiff banged on the cell door repeatedly gesturing for assistance still being unaware as to why he was being incarcerated. He then had a negative skin reaction to the fourth medical procedure and underwent an additional medical procedure, but still did not understand what was happening. It was only at his arraignment because he had the assistance of an ASL interpreter, that he learned he had been arrested and incarcerated for allegedly stealing an IPad. He then returned to the jail after his arraignment and remain incarcerated for nearly 6 weeks. During that period of incarceration, defendant refused to provide effective means for plaintiff to communicate, and consequently, plaintiff missed private meals, recreation, and rehabilitative services at various times. As if that wasn’t enough, the jail also failed to provide plaintiff with inadequate accommodation for telephone access. While the jail did offer plaintiff a TTY, that was ineffective because of the plaintiff’s limited knowledge of the English language. The jail did not have videophone or any device equipped with a video phone software allowing plaintiff to be able to make telephone calls. As a result, plaintiff was unable to make a telephone call for the duration of his incarceration at the jail. He also could not regularly communicate with the court appointed attorney via telephone unlike other inmates and had to rely on in person visit made on the attorney’s own accord.

Plaintiff sued both the local Sheriff and the State for violating title II of the ADA and § 504 of Rehabilitation Act and sought both declaratory and compensatory relief. Interestingly enough, no claims of constitutional violations were made. Both the Sheriff and the State defended on the grounds of sovereign immunity. The State also defended on the ground that they were not liable as supervisors for the acts that occurred in the jail, which is run solely by the Sheriff (prisons are usually run by the state while jails are usually run by the county).

Court’s Reasoning (Supervisory Liability of the State)

1. With respect to supervisory liability of the State, the court was not buying it. For such liability to occur, you need to find inaction or deliberate indifference on the part of the State that affirmatively causes the particular constitutional injury the plaintiff suffers. Further, that inaction or deliberate indifference must be a direct cause of the injury. Since the State of Virginia clearly has a separate set up for county jails versus prisons, the court concluded that Virginia does not supervise the sheriff in the manner necessary to make a prima facie case of supervisory liability. Therefore, the State was dismissed from the case because a sufficient showing could not be made that the state was liable as a supervisor.

Court’s Reasoning (Sovereign Immunity of the Sherrif)

1. The ADA unequivocally expresses Congress intent to waive sovereign immunity under title II of the ADA.

2. While it is true, that the Supreme Court has said that sovereign immunity is waived by the State with respect to ADA violations that rise to a violation of the 14th amendment, the plaintiff did not make any 14th amendment claims.

3. Title II of the ADA is a proportionate response to the harm seeking to be redressed in this situation (failure to comply with title II of the ADA with respect to the pretrial, temporary detention setting of the local jail), because:

A. Citing Tennessee v. Lane, the court said that title II was enacted in response to a pattern of unconstitutional disability discrimination by States and non-State governmental entities with respect to the provision of public services.

B. Plaintiff was a qualified individual with a disability. That is, the plaintiff was deaf and he was also capable with the provision of auxiliary aids and services of meeting the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the jail.

C. Title II of the ADA authorizes the Attorney General to promulgate regulations implementing title II of the ADA. Those particular regulations makes clear that qualified inmates or detainees with disabilities cannot be subject to disability-based discrimination, and that jails and prisons are also required to furnish appropriate auxiliary aids and services where necessary so inmates and detainees with disabilities have an equal opportunity to participate in, and enjoy the benefits of, or service, program or activity of the jail. Auxiliary aids and services do include qualified ASL interpreters as well as video remote interpreting services.

D. Inmates possess a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the 14th amendment.

E. The Due Process Clause of the 14th amendment and the Confrontation Clause of the sixth amendment, which is applied to the States via the 14th amendment, both guarantee to a criminal defendant the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings. Since the deaf detainee was eligible to participate in the hearing, title II applied and he was denied the ability to participate in the hearing to the same extent as a person without a disability.

F. Not only did the plaintiff not understand the judicial proceeding, the jail personnel actively prevented his participation thereby frustrating his right to be present at all stages of the trial.

G. Factual allegations support the claim that the plaintiff was prevented from seeking and receiving the assistance of counsel throughout his six week period of detention in violation of his sixth amendment right to counsel.

H. The allegations also implicate plaintiff’s constitutional rights under the 14th amendment as the legislative history of the ADA indicates congressional intent to specifically remedy differential treatment of inmates in local jails. Accordingly, public entities do have the obligation under title II of the ADA to accommodate access to the most basic jail services for deaf pretrial detainees such as ensuring access to medical procedure information, access to the courts, and counsel. Failure to do so falls short of the guarantees of the 14th amendment.

I. Title II is also proportional because it only requires reasonable modification to services, programs, activities and nothing more.

J. There is an important distinction between being incarcerated in the state prison after conviction and temporary pretrial detention at the local jail because due process requires that a pretrial detainee not be punished. On the other hand, a sentenced inmate can be punished although that punishment may not be cruel and unusual. I would also add that it should be kept in mind that prisons are subject to Title II of the ADA per this case.


1. This case focuses on pretrial detention in the county jails.

2. Keep in mind, as mentioned above, prisons are also subject to the ADA.

3. Interesting that no constitutional violations were alleged in this case even though as the court discussed many of them may be present. Also, keep in mind, that many of the first 10 amendments to the U.S. Constitution have been incorporated into the 14th amendment. Therefore, a violation of one of the amendments that has been incorporated into the 14th amendment would also be a violation of the 14th amendment. That is important to know because per U.S. v. Georgia, a violation of the 14th amendment waives sovereign immunity.

4. Since showing that title II of the ADA is a proportional response means trying to find the most egregious things that could’ve been violated so that even if a person with a disability is in the rational basis class, the response is still proportional because of the rights (such as constitutional ones), being violated.

5. Since showing a proportional response means searching for the most egregious things that could have been violated, why not, on the plaintiff’s side, allege constitutional violations as well in addition to § 504 violations and ADA violations? Further, since the court lays out many constitutional violations, one wonders if the plaintiff will not now seek to amend the complaint to add various constitutional violations.

6. The proportional response exercise has to be gone through every time a person with a disability sues a state entity where they have not expressly consented to being sued for disability discrimination since, per Tennessee v. Lane, persons with disabilities classification vis a vis equal protection jurisprudence varies depending upon the facts. As mentioned in other blog entries of mine dealing with sovereign immunity, I am not aware of any other group of people whose classification for equal protection jurisprudence varies depending upon the facts.

7. It is never wise to engage in stereotyping. That is, don’t make the assumption that a TTY will allow a deaf person to effectively communicate because ASL is a visually-based language with a different grammatical structure than English and many deaf people are just not all that familiar with English, though quite a few certainly are. Also keep in mind, the effective communication regulations as well.

8. The impact of this case is potentially huge. I can’t tell you how many times you see ADA disputes involving prisons or jails. In any given week, I would say almost half of the cases that I see in my Lexis alert involve matters involving disability discrimination complaints against prisons or jails.