Everson v. Leis

KEVIN EVERSON, Plaintiff-Appellant, v. SIMON LEIS, Hamilton County Sheriff; Deputy ALBERT WITTICH; JOHN DOE, Sherriff Deputy JOHN DOE, Employee of Northgate Mall, Defendants-Appellees.

No. 09-4355

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED February 10, 2011

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

LEONARD GREEN, Clerk

On Appeal from the United States District Court for the Southern District of Ohio

Before: BOGGS, MOORE, and SUTTON, Circuit Judges.

BOGGS, Circuit Judge. Shortly after suffering an epileptic seizure at a mall, Kevin Everson was restrained, placed under arrest, and charged with criminal offenses. Those charges were ultimately dropped. In district court, Everson brought claims against defendants under Title II of the Americans with Disabilities Act ("ADA"). Everson alleges that defendants intentionally discriminated against him in the manner they responded to his seizure. The district court granted summary judgment in favor of defendants, and we affirm.

I

On April 19, 2003, Everson experienced an epileptic seizure in the bathroom at Northgate Mall in Hamilton County, Ohio. Appellant's Br. at 3. Shortly thereafter, Hamilton County Deputy Sheriff Albert Wittich received a call requesting assistance for a person at the mall having a seizure.

When Wittich arrived, two EMS employees and two other deputies, responding to the same call, were already at the scene.

Everson remembers that he was approached by individuals in uniform after exiting the bathroom, and that he asked them whether he could sit down. Everson also remembers being on the ground, although he otherwise lacks any recollection of his interaction with these uniformed individuals until after his epsiode ended with him restrained on a cot. Everson v. Leis, 556 F.3d 484, 489-90 (6th Cir. 2009). This loss of memory is typical for Everson, who stated that he can remember what happens before and after—but not what happens during—a seizure. Id. at 489.

Because Everson has no further memories of the interaction at issue, the defendants' version of events is undisputed and should be accepted for the court's purposes here.Wysong v. City of Heath, 260 F. App'x 848, 856 (6th Cir. 2008) (deciding summary judgment based on officer's version of events when plaintiff, due to disability, could not recall what happened) (citing Wertish v. Krueger, 433 F.3d 1062 (8th Cir. 2006)). This court summarized defendants' version of events as follows:

Everson threatened to swing at mall security staff and local EMS. He kicked and swung at individuals as they approached him. When Deputy Wittich attempted to retrieve [Everson's] identification, Everson became violent and kicked the deputy. After being placed on the ground, Everson continued to kick and fight. When an EMS worker tried to obtain a blood sugar reading, Everson pushed the worker away.

Everson v. Leis, 556 F.3d at 489-90. The only additional discovery following Everson's first appeal—Deputy Wittich's deposition—confirms these events.

Putting an end to this ruckus, Wittich restrained Everson, placed him on an EMS cot, and transported him outside the mall. Appellees' Br. at 6. Wittich placed Everson under arrest andsubsequently prepared a criminal complaint, charging him with both assault and disorderly conduct under the Ohio Revised Code. Everson claims that he experiences involuntary muscle movements during and after seizures, and that all of his aggressive actions were caused by his seizure. Accordingly, the charges were dismissed when Everson's attorney provided the prosecutor with medical documentation of Everson's disability. Appellant's Br. at 6.

Nearly two years later, on February 11, 2005, Everson filed claims against Sheriff Simon Leis, Wittich, a John Doe Deputy, Northgate Mall, and John Doe employees of the mall. In his complaint, Everson asserted multiple claims under 42 U.S.C. §§ 1983 and 1985, an equal protection claim under the Fourteenth Amendment, an emotional distress claim under Ohio law, and a claim under Title II of the ADA.

On August 1, 2006, Leis and Wittich filed a motion for summary judgment. Everson's counsel did not reply to the motion and ultimately withdrew for personal reasons. Everson's new counsel requested that the district court reopen discovery, and the court granted the request on October 11, 2007. Leis and Wittich filed an interlocutory appeal of the order to reopen discovery, and in Everson v. Leis, this court decided that appeal, holding that Leis and Wittich were entitled to qualified immunity on all §§ 1983 and 1985 claims against them in their individual capacities. 556 F.3d at 491-92. Because Leis and Wittich had not moved for qualified immunity from the ADA claim against them in their individual capacities, the court did not reach the merits of the ADA claim and remanded to the district court for further proceedings. Id. at 501.

Everson voluntarily dismissed his equal protection and emotional distress claims, choosing to proceed with only his Title II claim against Leis and Wittich in their official capacities. On October 6, 2009, the district court granted summary judgment to the defendants on Everson's sole remaining claim. The court assumed for purposes of summary judgment that Everson's actions were involuntary and caused by his epilepsy, but nonetheless concluded that any discrimination was unintentional and thus not actionable under the ADA.

Everson filed this timely appeal of the district court's order of summary judgment, and this court has appellate jurisdiction under 28 U.S.C. § 1291.

II

This court reviews orders granting summary judgment de novo. Havensure, L.L.C. v. Prudential Ins. Co. of America, 595 F.3d 312, 315 (6th Cir. 2010). Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate only where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Havensure, 595 F.3d at 315 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party has the burden of establishing a lack of a genuine issue of material fact, and if the moving party meets this burden, the nonmoving party must set forth specific facts indicating the existence of a genuine issue. Univ. of Pittsburgh v. Townsend, 542 F.3d 513, 522 (6th Cir. 2008).

Finally, when reviewing the record for a genuine issue of material fact, the court must draw all reasonable inferences in the light most favorable to the non-moving party.Richland Bookmart, Inc. v. Knox Cnty., Tenn., 555 F.3d 512, 520 (6th Cir. 2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986)).

Title II of the ADA provides: "no 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. To establish a claim of discrimination under Title II, a plaintiff must prove that: "(1) she has a disability; (2) she is otherwise qualified; and (3) she is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely¹ because of her disability." Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th Cir. 2005) (citing Jones v. City of Monroe, 341 F.3d 474, 477 (6th Cir. 2003)). The plaintiff must also prove that the disability discrimination was intentional as it relates to the service, activity, or program.Tucker v. Tennessee, 539 F.3d 526, 535 (6th Cir. 2008) ("[E]ach [plaintiff] must show that he or she was intentionally discriminated against solely because of his or her disability in the context of that public service, activity, or program....").

Defendants argue that Title II does not apply to arrests. Appellees' Br. at 8. While whether Title II applies to arrests is an open question in this Circuit, we need not decide it here. Tucker, 539 F.3d at 534-35 (noting the open question and assuming, without deciding, the applicability of Title II to arrests in disposing of the case for a lack of intentional discrimination); Scozzari v. City of Clare, 723 F. Supp. 2d 945, 971 (E.D. Mich. 2010) (noting that the Sixth Circuit has not decidedwhether Title II applies to arrests). Because we hold that Everson fails to establish a genuine issue of material fact as to whether defendants intentionally discriminated against him because of his disability, we affirm the grant of summary judgment in favor of defendants without deciding whether Title II applies to arrests. Tucker, 539 F.3d at 534-35; Shultz v. Carlisle Police Dep't, 706 F. Supp. 2d 613, 626 (M.D. Pa. 2010) (noting the lack of Third Circuit guidance on the same issue and disposing of an ADA claim for a lack of intent).

III

Because we must draw all inferences in the light most favorable to Everson, the nonmoving party, we consider the following facts and inferences for the purpose of determining whether, as the district court found below, there is "no genuine issue as to any material fact and [defendants are] entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Richland Bookmart, 555 F.3d at 520.

Everson has epilepsy, and his epilepsy caused all of his behavior during his interaction with defendants.

From the call that dispatched him to the scene, Wittich knew that Everson had recently suffered a seizure and had been unconscious. And at the time Wittich entered the scene, Wittich knew that Everson was acting in a semi-conscious state of mind. Everson v. Leis, 556 F.3d at 499 ("It is a fair inference, then, that the deputy should have known that Everson's actions were made with, at...