                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-2001

Chisolm v. Manimon
Precedential or Non-Precedential:

Docket 00-1865




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Filed December 28, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1865

RONALD CHISOLM

       Appellant

v.

PATRICK MCMANIMON, JR., DIRECTOR OF MERCER
COUNTY DETENTION CENTER;
MERCER COUNTY COURT,
       Appellees

UNITED STATES OF AMERICA,
       Intervenor

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 95-cv-00991)
District Judge: Honorable Mary Little Cooper

Argued on July 24, 2001

Before: ROTH, BARRY and AMBRO, Circuit Judges

(Opinion filed December 28, 2001)

       Clara R. Smit, Esquire
       Turnpike Metroplex
       190 Highway 18 North, Suite 200
       East Brunswick, NJ 08816
Marc Charmatz, Esquire
Mary Vargas, Esquire (Argued)
Sarah Geer, Esquire
Claudia Gordon, Esquire
National Association of the
 Deaf Law Center
814 Thayer Avenue
Silver Spring, MD 20910

 Attorneys for Appellant

Andrew J. Schragger, Esquire
Ashley Bostic-Hutchinson, Esquire
 (Argued)
Office of County Counsel,
 County of Mercer
640 South Broad Street
McDade Administration Building
Trenton, NJ 08650

Doulgass L. Derry, Esquire (Argued)
Office of Attorney General of
 New Jersey
Department of Law & Public Safety
Richard J. Hughes Justice Complex
Trenton, NJ 08625

John J. Farmer, Jr.
 Attorney General of New Jersey
Nancy Kaplen
 Assistant Attorney General
Diane M. Lamb
 Deputy Attorney General
Office of Attorney General of
 New Jersey
25 Market Street
Trenton, NJ 08625

 Attorneys for Appellees

                           2
       Seth M. Galanter, Esquire
       United States Department of Justice
       Civil Rights Division
       P.O. Box 66078
       Washington, DC 20035-6078

        Attorney for Intervenor

OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, we must resolve two issues. First, we
consider whether the Eleventh Amendment bars suit
against a county court, based on an alleged failure to
provide interpretive services, where the judicial, but not all
the administrative, functions of the court have been merged
by steps into a unified state court system. Under the facts
here, we hold that suit is not barred. Second, we review
whether the District Court properly granted summary
judgment, dismissing claims brought by a disabled inmate
under Title II of the Americans with Disabilities Act, 42
U.S.C. SS 12131-12135 ("ADA"), Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. S 794 ("Rehabilitation
Act"), 42 U.S.C. S 1983 and the New Jersey Law Against
Discrimination, N.J. Stat. S 10:5-4.1 (NJLAD). Because we
conclude that there are genuine issues of material fact, we
will reverse the granting of summary judgment by the
District Court and remand this case for further proceedings
consistent with this opinion.

I. Factual and Procedural History

A. Ronald Chisolm's Detention at the Mercer County
       Detention Center

On Saturday, September 10, 1994, while driving in
Mercer County, New Jersey, Ronald Chisolm, a deaf person
who communicates primarily through American Sign
Language (ASL), was stopped by officers of the Princeton
Police Department. The officers arrested Chisolm pursuant
to a Bucks County, Pennsylvania, bench warrant. The

                                  3
bench warrant was issued in 1990 because Chisolm failed
to attend an intoxicated driver resource program. The
program was required as part of his sentence following a
1987 guilty plea to driving under the influence. After
Chisolm's arrest, he was taken to the Mercer County
Detention Center (MCDC) to await extradition to Bucks
County. He was admitted to MCDC at 3:40 p.m on
Saturday afternoon.

MCDC, which has since closed, was a maximum security,
pretrial detention facility located in Trenton, New Jersey. It
housed detainees who were awaiting extradition to other
states or were awaiting trial on indictable charges, ranging
from murder to narcotics-related offenses. When inmates
arrived at MCDC during the week, they were generally
processed within a few hours. Processing occurred at the
intake unit (4 North Living Unit) and involved a
classification assessment to determine the inmate's security
threat, custody status, and appropriate placement within
MCDC. However, the MCDC's classification staff worked
only Monday through Friday. On weekends, newly arrived
detainees were "locked-down" in their cells either in the 4
North Living Unit or in the Receiving and Discharge Unit
(R&D) to keep them apart from the general inmate
population before classification. These unclassified
detainees consumed their meals in their cells and did not
have television or telephone privileges.

When Chisolm arrived at MCDC on Saturday afternoon,
an MCDC employee attempted to interview him. Chisolm
indicated to the employee that he was deaf and could not
understand her. Chisolm then requested an ASL interpreter
and a TDD.1 In addition, he asked that his hearing
roommate, Kenneth Knight, be contacted. Chisolm
contends that MCDC failed to provide the requested aids
and failed to contact Knight. He also claims that MCDC did
not provide him with any initial intake information, such as
_________________________________________________________________

1. A TDD is a machine that allows those with hearing disabilities to
communicate with others by telephone. The TDD translates spoken
words into written text for the deaf user. The deaf user then responds by
typing his message into the TDD which transforms the typed message
into spoken words.

                               4
the reason for his detention or the rules and regulations of
the facility.

Later that afternoon, Chisolm was taken to an MCDC
nurse. Chisolm claims that he was upset, but, without an
ASL interpreter, he could not explain why he was upset.
MCDC asserts, however, that Chisolm was given paper and
a pencil in order to communicate with MCDC personnel.
The MCDC nurse conducted a medical evaluation of
Chisolm and determined that he might be a suicide risk.
MCDC contends that Chisolm's behavior caused concern
that he might harm himself.

Chisolm was kept in solitary lock down in cell 304 of
R&D from Saturday, September 10, until Tuesday,
September 13. During this time, he did not have access to
a television set because there wasn't one in R&D. Moreover,
pursuant to MCDC policies, Chisolm could not have access
to a telephone until he was classified.

On Monday, September 12, Chisolm was taken to penal
counselor Jennifer Rubin for custody classification. Rubin
gave him a numeric assessment of 10, which resulted in a
custody classification of "medium."2 Notwithstanding the
fact that Chisolm had worked for the U.S. Postal Service for
13 years and had lived at the same address for 3 years,
Rubin described him as an unemployed "vagrant." This
error added 2 points to Chisolm's assessment, resulting in
his medium custody classification. Without this error,
Chisolm's custody classification would have been
"minimum."

Also on the morning of September 12, Warden
McManimon informed another penal counselor, Donna
_________________________________________________________________

2. In processing and classifying Chisolm pursuant to MCDC policies,
Rubin reviewed the following factors used to determine an inmate's
custody status: 1) severity of the current offense; 2) assaultive offense
history; 3) history of institutional violence; 4) any assaults occurring
within the six months preceding detention; 5) disciplinary reports; 6)
current detainer; 7) amount of bail; 8) inmate's sentence; 9) stability
factor; and 10) inmate's employment status. For male inmates, a
numeric assessment of 15 or more points resulted in maximum custody
classification; 10-14 points resulted in medium custody classification;
and 9 points or less resulted in minimum custody classification.

                               5
Walker, that a hearing impaired inmate had been admitted.
Walker attempted to communicate with Chisolm through lip
reading and writing notes. Chisolm asked Walker to contact
Knight and again requested a TDD. Although MCDC did not
have a TDD, Walker did contact Knight who brought
Chisolm's own TDD to MCDC that same day. MCDC,
however, had to log in and examine the TDD before
releasing it to Chisolm. For that reason, Chisolm did not
receive it until Tuesday, September 13. Because of his
hearing disability and the failure of MCDC to provide him
with a TDD, Chisolm was not able to use a telephone on
Monday, September 12.

On September 13, Chisolm was transferred to cell 24 of
4 North Living Unit, where he remained until his discharge
the next day. This unit had a television set equipped with
closed captioning. Warden McManimon stated that if
Chisolm wanted to have the closed captioning activated,
Chisolm only needed to request the service. Chisolm
contends, however, that he did not request closed
captioning because he did not know that it was available.
While in 4 North Living Unit, Chisolm was able to place
telephone calls using his own TDD. MCDC did not impose
its time limit of 15 minutes for telephone use on Chisolm
because of the additional time necessary to type and read
text on the TDD.

B. Chisolm's Appearance Before the Mercer County
       Vicinage

On September 14, 1994, Chisolm was brought before the
Mercer County Vicinage for an extradition hearing. There
was no ASL interpreter present to aid Chisolm. For this
reason, the judge postponed the extradition hearing and
sent Chisolm back to MCDC. The hearing was rescheduled
for September 20, which was the earliest date that the
Vicinage's ASL interpreter was available. After his return to
MCDC, Chisolm called Knight by TDD. Knight contacted an
attorney, Clara Smit.

Smit arranged to have an ASL interpreter available the
next morning to interpret court proceedings. Smit also
contacted the Bucks County District Attorney's office and
had Chisolm's bench warrant quashed. Chisolm was then

                                6
released from MCDC that same day, and the court hearing
was canceled. The parties agree that, but for the
intervention by Smit, Chisolm's hearing would have been
rescheduled for September 20.

C. Relevant History of the Vicinage3

The Vicinage originally was organized as one of many
locally-funded county courts authorized under Article IV of
the New Jersey Constitution. See N.J. Const. art.VI, S 4,
P 1-5 (amended 1978). However, pursuant to constitutional
amendments passed in 1978, 1983 and 1992, the Vicinage
and other county courts have been merged gradually into
New Jersey's state-based Superior Court system. See N.J.
Assembly Concurrent Resolution No. 38 (filed July 25, 1978)
(abolishing county courts); N.J. Assembly Concurrent
Resolution No. 84 (filed Feb. 10, 1983) (authorizing the
transition by which county court judges became New Jersey
Superior Court Judges without nomination or
confirmation); N.J. Senate Concurrent Resolution No. 58,
1992 N.J. Sess. Law Serv. A-3 (West) (setting forth plan by
which New Jersey became responsible for certain judicial
costs and fees, and county judicial employees became
employees of the State, on or before July 1, 1997).

In connection with the transition from a county court
system to a state court system and in order to implement
the 1992 Amendment, the New Jersey legislature enacted
the State Judicial Unification Act, N. J. Stat.SS 2B:10-1 to
2B:10-9 (2001) (SJUA). Pursuant to the SJUA, the State of
New Jersey assumed certain judicial costs and related
liabilities of the Vicinage. See N.J. Stat.S 2B:10-7 (2001).
Significantly, however, the Vicinage retained liability for
"any tort claim . . . where the date of loss was prior to
January 1, 1995." Id. at 2B:10-7(c)(2). Additionally, a New
Jersey statute requires individual counties to provide
_________________________________________________________________

3. A history of the incorporation of New Jersey's county courts into its
unified state court system is set forth in Board of Chosen Freeholders v.
New Jersey, 732 A.2d 1053 (N.J. 1999). We will recite only that portion
of this history relevant to our analysis of the sovereign immunity of the
Vicinage.

                               7
necessary interpreting services for the hearing impaired in
court proceedings. See id. at 2B:8-1.4

D. Procedural History

On March 6, 1995, Chisolm filed a complaint in United
States District Court for the District of New Jersey against
McManimon in his capacity as Warden of MCDC and
against the Vicinage. He alleged that MCDC discriminated
against him, while he was detained, by failing to provide
him with an ASL interpreter, a TDD, and television
captioning service, in violation of Title II of the ADA, Section
504 of the Rehabilitation Act, 42 U.S.C. S 1983, and the
NJLAD. He alleged that the Vicinage discriminated against
him by failing to provide him with an ASL interpreter for his
extradition hearing, when initially scheduled, in violation of
the same statutes. Chisolm sought compensatory and
punitive damages.

On June 11, 1997, the District Court granted summary
judgment in favor of the Vicinage on Chisolm's ADA,
Rehabilitation Act, and 42 U.S.C. S 1983 claims, and
dismissed the NJLAD claim for lack of subject matter
jurisdiction. See Chisolm v. Manimon, Civ. No. 95-0991 (D.
N.J. filed Jun. 11, 1997).5 The District Court held that
Chisolm's ADA and Rehabilitation Act claims must fail
because he was never excluded from a program by reason
of his disability, i.e., his extradition hearing never occurred.

The District Court also raised sua sponte the issue of the
Vicinage's sovereign immunity under the Eleventh
Amendment to the United States Constitution. Finding that
Congress validly abrogated the states' Eleventh Amendment
immunity in enacting Title II of the ADA, the District Court
_________________________________________________________________

4. After the judicial unification, Section 2B:8-1 was amended to clarify
that "interpreting services" included interpreters for the hearing
impaired. See 1995 N.J. Laws c. 98, S 1 (effective May 9, 1995). The
statute does not, however, require the state to pay for these services.
See
id. Significantly, responsibility for providing interpreters was kept with
the counties. See N.J. Stat. S 2B:8-1 (2001).

5. The case was captioned improperly as "Ronald Chisolm v. Patrick
Manimon, Jr." In this opinion, we use the proper spelling of the warden's
name, "McManimon."

                               8
ruled that the Vicinage was not immune from Chisolm's
suit.

On May 18, 2000, the District Court granted summary
judgment for MCDC (McManimon in his official capacity) on
Chisolm's ADA, Rehabilitation Act and NJLAD claims and
dismissed all of Chisolm's claims.6 Chisolm v. Manimon, 97
F.Supp.2d 615 (D. N.J. 2000). The court concluded that
"any rational trier of fact would find that reasonable
accommodations were provided to Chisolm by defendant,
and that any requested accommodations which were not
provided . . . would not have been reasonable in the setting
of a correctional institution." Id.

Chisolm timely appealed.

II Jurisdiction and Standard of Review

The District Court had jurisdiction over this case
pursuant to 28 U.S.C. S 1331. We have jurisdiction
pursuant to 28 U.S.C. S 1291.

We exercise plenary review over the grant of summary
judgment, applying the same standard that the lower court
should have applied. See Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 278 (3d Cir. 2000). 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). Facts
are "material" if they could affect the outcome of the suit
under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). We must view the facts in the light most
favorable to the non-moving party, see Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw"all
justifiable inferences in [its] favor." Anderson, 477 U.S. at
255.
_________________________________________________________________

6. The court also granted summary judgment in favor of MCDC on
Chisolm's Section 1983 claim, finding no facts supporting a procedural
due process claim.

                               9
III. Discussion

A. Sovereign Immunity of the Vicinage

Before turning to the merits of Chisolm's claims against
MCDC and the Vicinage, we must address whether, under
the Eleventh Amendment to the U.S. Constitution, the
Vicinage is immune from Chisolm's suit. Having raised the
issue sua sponte, the District Court held that the Vicinage
did not enjoy Eleventh Amendment sovereign immunity.
Although we reach the same conclusion as the District
Court, we do so for different reasons.7 Specifically, we hold
that the Vicinage cannot assert sovereign immunity in this
case because at the time of the actions giving rise to this
suit and at the time this suit was brought, the Vicinage did
not qualify as an entity that is an arm of the state. So
holding, we need not address (1) whether the Vicinage
waived the immunity defense by its conduct in litigation or
(2) whether Congress validly abrogated Eleventh
Amendment immunity when enacting Title II of the ADA.

The Eleventh Amendment provides:

       The Judicial power of the United States shall not be
       construed to extend to any suit in law or equity,
_________________________________________________________________

7. The District Court concluded that Congress had abrogated Eleventh
Amendment immunity with respect to suits arising out of the ADA and
the Rehabilitation Act. See id. at 4-10. See also Seminole Tribe of
Florida
v. Florida, 517 U.S. 44, 55 (1996) (setting forth the test by which a
court
must determine whether Congress has abrogated the states' sovereign
immunity from suit).

After the District Court decided the immunity issue, the United States
Supreme Court held that Congress did not abrogate the states' sovereign
immunity by enacting Title I of the ADA in Board of Trustees of the
University of Alabama v. Garrett, 531 U.S. 356 (2001); see also Lavia v.
Pennsylvania Dept. of Corrections, 224 F.3d 190 (3d Cir. 2000) (holding
that Congress did not validly abrogate states' Eleventh Amendment
sovereign immunity from suit under ADA's Title I). Significantly,
however, the Garrett Court did not address whether Congress abrogated
Eleventh Amendment immunity in the context of suits brought under
Title II of the ADA. See id. at 960 n.1 (noting a split among the Courts
of Appeals on this issue but declining to resolve the split without the
benefit of briefing). Accordingly, the District Court's opinion is not
invalidated expressly by Garrett.

                               10
       commenced or prosecuted against one of the United
       States by Citizens of another State, or by Citizens or
       Subjects of any Foreign State.

U.S. Const. amend. XI. The Supreme Court has interpreted
the Eleventh Amendment to provide each state with
immunity not only from suits brought by citizens of other
states, but also from suits brought by its own citizens. See,
e.g., Hans v. Louisiana, 134 U.S. 1 (1890).

While Eleventh Amendment immunity may be available
for states, its protections do not extend to counties. See
Lincoln County v. Luning, 133 U.S. 529 (1890). Rather, for
Eleventh Amendment immunity to apply, a court must
determine that a state is a real party-in-interest. See, e.g.,
Ford Motor Co. v. Department of Treasury of Indiana , 323
U.S. 459, 464 (1945). Accordingly, Eleventh Amendment
immunity will not be available to a state merely by virtue of
the fact that such state is named formally as a defendant.
See, e.g., Ex parte New York, 256 U.S. 490, 500 (1921) ("As
to what is to be deemed a suit against a State, . . . it is now
established that the question is to be determined not by the
mere names of the titular parties but by the essential
nature and effect of the proceeding, as it appears from the
entire record."). Conversely, Eleventh Amendment immunity
may be available to a state party-in-interest
notwithstanding a claimant's failure to formally name the
state as a defendant. See, e.g., Monell v. New York City
Dept. of Social Servs., 436 U.S. 658, 690 (1978); Ford Motor,
323 U.S. at 464.

In determining whether an entity is an arm of the state
and, therefore, entitled to Eleventh Amendment immunity,
we consider the following three factors: (1) whether
payment of a judgment resulting from the suit would come
from the state treasury, (2) the status of the entity under
state law, and (3) the entity's degree of autonomy. See
Fitchik v. New Jersey Transit Rail Operations, Inc. , 873 F.2d
655, 659 (3d Cir. 1989) (en banc). A party asserting
Eleventh Amendment immunity bears the burden of
proving its applicability. See Christy v. Pennsylvania
Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995).
Although no single factor is dispositive, we have often held
that the most important factor is whether a judgment

                               11
resulting from the suit would be paid from the state
treasury. See, e.g., Carter v. City of Philadelphia, 181 F.3d
339 (3d Cir. 1999); Christy, 54 F. 3d at 1140; Fitchik, 873
F.2d at 659-660. We conclude that the Vicinage has not
met its burden of demonstrating entitlement to Eleventh
Amendment immunity. Specifically, the Vicinage has not
proved that it is an arm of the state under the Fitchik
factors.

Application of the Fitchik factors to the Vicinage must be
viewed in the context of the unification of the New Jersey
court system. The events giving rise to Chisolm's suit
against the Vicinage, as well as the filing of the suit itself,
transpired during the Vicinage's transition from a county
court to a state court. The extent to which the Vicinage may
be considered an arm of the state -- as opposed to a county
entity -- is complicated by this transition. We conclude that
under the circumstances of this case, the Vicinage was not
acting as an "arm of the state" under Fitchik.8

Section 2B:10-7(c)(2) of the SJUA directly addresses the
first of the three Fitchik factors: whether a judgment would
be paid out of the state treasury. Chisolm's claims against
the Vicinage, brought in March 1995 as a result of the
alleged discrimination during September 1994, clearly were
tort claims for which the date of loss pre-dated January 1,
1995. Section 2B:10-7(c)(2) expressly provides that, even
after the transition of the Vicinage to a state court, any
such claims were the liabilities of Mercer County. Because
Mercer County -- and not the State of New Jersey-- would
satisfy any judgment entered for Chisolm, the "funding
factor" weighs heavily against the Vicinage's assertion of
sovereign immunity.

With respect to the second Fitchik factor, status under
_________________________________________________________________

8. The Vicinage's transition from a county entity to a state entity raises
another interesting question: At what time must a defendant be an "arm
of the state" in order to be eligible for Eleventh Amendment immunity?
Should we apply the Fitchik factors to the Vicinage as of the time of
Chisolm's alleged injury in September 1994 or as of the time Chisolm
brought suit in March 1995? Because we find that the Vicinage was not
an "arm of the state" under Fitchik at either of these times, we need not
resolve this question here.

                               12
state law, our analysis is more difficult. Since the state
takeover of administrative authority and responsibility for
the unified, state-based court system on January 1, 1995,
state law generally has treated the Vicinage as a state
entity. Indeed, the New Jersey Constitution provides that
the Superior Court is the state's trial court of original
jurisdiction and that the Chief Justice of the Supreme
Court is the administrative head of all courts within the
state. See N.J. Const. Art. VI, S7, P 1. These facts seem to
suggest that the Vicinage's status under state law changed
from a county entity to a state entity in connection with the
judicial unification. On the other hand, the Vicinage was
funded, administered and operated by Mercer County at the
time of the alleged discrimination. See N.J. Stat. S 2B:10-2
(2001) (describing county administration of county courts
prior to the enactment of the SJUA). More importantly, New
Jersey state statutes continue to make the counties
responsible for providing interpretive services. See id. at
2B:8-1.

From the above we can see that the Vicinage performs
different functions, judicial and administrative, in different
capacities. The Vicinage has performed many of its judicial
functions in its capacity as a state entity under New Jersey
law. However, when the Vicinage provides, or fails to
provide, interpretive services, it performs, or fails to
perform, a function which is the administrative
responsibility of a county under New Jersey law. When we
apply the second Fitchik factor, we must consider the
capacity in which the entity was acting when its actions
gave rise to the plaintiff 's claim. See Carter v. City of
Philadelphia, 181 F.3d at 353 (holding that although a
district attorney may be deemed a state actor with regard to
prosecutorial functions, she was a local policymaker with
respect to administrative matters). Because Chisolm's claim
against the Vicinage is based on its failure to provide
interpretive services, this suit relates to the Vicinage's
function as a county entity under state law. Accordingly,
the second factor also weighs against the Vicinage's claim
of sovereign immunity.

The third and final Fitchik factor is the Vicinage's degree
of autonomy. According to the New Jersey Constitution,

                               13
Superior Court judges are nominated and appointed by the
Governor with the consent and advice of the state senate.
See N.J. Const. Art. VI, S 6, P 1. As such, the court is an
independent branch of New Jersey's state government. The
Vicinage's degree of autonomy is mitigated somewhat by the
state's assumption of certain costs and liabilities of county
government in connection with the SJUA. See N.J. Stat.
SS 2B:10-1 et seq. (2001). However, because the county is
charged by law to provide interpretive services, and is not
regulated by the state in performing this function, the
Vicinage was autonomous in respect to the conduct which
is the basis for Chisolm's claim. See Carter v. City of
Philadelphia, 181 F.3d at 352 (distinguishing between
district attorney's state prosecutorial and county
managerial functions)

Balancing the Fitchik factors discussed above, we
conclude that the Vicinage was not acting as an"arm of the
state" either at the time of the alleged discrimination or at
the time that the suit against it was filed. For these
reasons, we conclude that Chisolm's suit against the
Vicinage is not barred by the Eleventh Amendment.

B. Review of Summary Judgment

We turn now to our consideration of the propriety of
granting summary judgment in favor of MCDC and the
Vicinage. Title II of the ADA provides that "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. S 12132.9 Regulations promulgated by the
_________________________________________________________________

9. The Rehabilitation Act provides that a qualified disabled person shall
not, "solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance. . . ." 29 U.S.C. 794(a) (2001). The NJLAD provides that "[a]ll
persons shall have the opportunity to obtain . . . all the
accommodations, advantages . . . and privileges of any place of public
accommodation" without discrimination on the basis of disability. N.J.
Stat. Ann.S S 10:5-4, 10:5-4.1.

                                14
United States Attorney General require that public entities
take certain pro-active measures to avoid the
discrimination proscribed by Title II. See id. at 12134(a)
(directing the Attorney General to promulgate regulations
necessary to implement Title II); 28 C.F.R. SS 35.101 et seq.
(1991). Furthermore, we have held that:

       Because Title II was enacted with broad language and
       directed the Department of Justice to promulgate
       regulations as set forth above, the regulations which
       the Department promulgated are entitled to substantial
       deference. Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct.
       2355, 2361, 72 L.Ed.2d 728 (1982). ("[T]he
       interpretation of [the] agency charged with the
       administration of [this] statute is entitled to substantial
       deference.").

Helen L., 46 F.3d at 331-32 (emphasis added).

Appellees do not dispute that Chisolm is a qualified
individual with a disability. Moreover, the fact that he was
imprisoned at the time of the alleged discrimination does
not preclude him from receiving the benefits of the ADA.
Title II of the ADA applies to services, programs and
activities provided within correctional institutions. See
Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206
(1998). We must determine, therefore, whether, in light of
the regulations promulgated by the Attorney General, there
are issues of material fact as to whether MCDC and the
Vicinage discriminated against Chisolm in violation of Title
II.
_________________________________________________________________

We have recognized that law developed under the Rehabilitation Act is
applicable to Title II of the ADA, see Helen L. v. DiDario, 46 F.3d 325,
330-31 & n.7 (3d Cir. 1995), and that Congress has directed that Title
II of the ADA be interpreted to be consistent with the Rehabilitation Act.
See Yeskey v. Commonwealth of Pennsylvania Dept. of Corrections, 118
F.3d 168, 170 (3d. Cir. 1997). Moreover, New Jersey courts typically look
to federal anti-discrimination law in construing NJLAD. Lawrence v. Nat'l
Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir. 1996). Therefore,
we will confine our discussion to the ADA with the understanding that
the principles will apply equally to the Rehabilitation Act and NJLAD
claims.

                               15
       1. Title II Regulations Applicable to MCDC and the
       Vicinage

Generally, regulations require public entities to take
"appropriate steps" to ensure that communication with a
disabled person is as effective as communication with
others. 28 C.F.R. S 35.160(a). Furthermore,"[w]here
necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, a
service, program, or activity," a public entity must furnish
"appropriate auxiliary aids and services." Id. at
35.160(b)(1).

The lone regulatory limitation on this duty is embodied in
Section 35.164 of the subpart. Section 35.164 provides that
a public entity may be relieved of its duty only upon
proving that, considering all funding and operating
resources available, the proposed action would result in
either (1) a fundamental alteration in the nature of the
service, program or activity or (2) undue financial or
administrative burdens. To qualify for the Section 35.164
exemption, a public entity must provide a written statement
explaining its conclusions. A public entity claiming the
exemption must also take alternative action not resulting in
such an alteration or burden, but nevertheless ensuring, to
the maximum extent possible, that disabled individuals
receive the public entity's benefits and/or services.

"In determining what type of auxiliary aid and service is
necessary, a public entity shall give primary consideration
to the requests of the individual with disabilities." Id. at
35.160(b)(2).10 For deaf and hearing-impaired persons,
auxiliary aids and services include:
_________________________________________________________________

10. That a public entity must give preference to a disabled person's
choice of auxiliary aid over an alternative is echoed in the Appendix to
the regulations. In relevant part, the Appendix provides:

       [t]he public entity must provide an opportunity for individuals
with
       disabilities to request the auxiliary aids and services of their
choice.
       This expressed choice shall be given primary consideration by the
       public entity (S 35.160(b)(2)). The public entity shall honor the
choice
       unless it can demonstrate that another effective means of
       communication exists or that use of the means chosen would not be
       required under S 35.164. Deference to the request of the individual
       with a disability is desirable because of the range of
disabilities, the
       variety of auxiliary aids and services, and different circumstances
       requiring effective communication.

28 C.F.R. Pt. 35, App. A (emphasis added).

                               16
       Qualified interpreters, notetakers, transcription
       services, written materials, telephone handset
       amplifiers, assistive listening devices, assistive listening
       systems, telephones compatible with hearing aids,
       closed caption decoders, open and closed captioning,
       telecommunications devices for deaf persons (TDD's),
       videotext displays, or other effective methods of making
       aurally delivered materials available to individuals with
       hearing impairments.

28 C.F.R. S 35.104(1). The Appendix to the regulations
explains that:

       [A]lthough in some circumstances a notepad and
       written materials may be sufficient to permit effective
       communication, in other circumstances they may not
       be sufficient. For example, a qualified interpreter may
       be necessary when the information being
       communicated is complex, or is exchanged for a
       lengthy period of time. Generally, factors to be
       considered in determining whether an interpreter is
       required include the context in which the
       communication is taking place, the number of people
       involved, and the importance of the communication.

28 C.F.R. Pt. 35, App. A.

       2. MCDC

Chisolm argues that MCDC discriminated against him on
the basis of his disability on three separate occasions. First,
Chisolm claims that MCDC violated Title II of the ADA, the
Rehabilitation Act, and the NJLAD when it failed to provide
him with an ASL interpreter during its intake procedure
and medical evaluation. Chisolm alleges that this failure
deprived him of basic intake information including the
reason for his detention and the rules and regulations of
MCDC. Further, Chisolm claims that the failure to provide
an ASL interpreter during his intake and evaluation
resulted in his receiving inappropriate classifications. The
second basis for Chisolm's claim against MCDC arises out
of MCDC's failure to provide Chisolm with a TDD device.
According to Chisolm, this failure denied him the privilege
of placing telephone calls enjoyed by similarly situated

                               17
inmates without hearing disabilities. Finally, Chisolm
claims that MCDC's failure to activate closed captioning
capabilities available on a prison television discriminated
against him.

MCDC has asserted that, in reviewing Chislom's claims,
we must consider the necessity of providing a particular
auxiliary aid or service in light of the prison setting. Citing
Turner v. Safley, 482 U.S. 78 (1987), MCDC contends that
courts must defer to prison management decisions,
specifically with respect to security.11 But see Yeskey v.
Penna. Dept. of Corrections, 118 F.3d 168, 174-75 & n. 8
(3d Cir. 1997) (declining to decide "the controversial and
difficult question" of whether the Turner standard for
judicial deference should be applied to statutory as well as
constitutional claims), aff 'd on other grounds, 524 U.S. 206
(1998). Although at least one court has adopted the Turner
test for judicial deference to prison management decisions
in the ADA context, see Gates v. Rowland, 39 F.3d 1439,
1446-1447 (9th Cir. 1994), we need not reach the issue
here. MCDC's repetition of the word "security" in its brief
and general references to "security" issues in the warden's
deposition are not supported by any showing that"security"
in fact is implicated in making available to an inmate at
appropriate times the services and aids that Chisolm
requested.

MCDC also contends generally, and the District Court
found as a matter of law, that because Chisolm was
incarcerated for only four days, MCDC was not obligated to
provide aids or services applicable in cases involving "longer
term" inmates. See e.g., Duffy, 98 F.3d at 455 (involving a
deaf inmate incarcerated for over ten years); Clarkson v.
Coughlin, 898 F. Supp. 1019, 1045-46 (S.D.N.Y. 1995)
(finding that long term state inmates were entitled to sign-
language interpreters for reception, testing, and
classification process resulting in permanent assignments
to prisons). However, MCDC does not cite any regulation,
statute or case either distinguishing between the needs of
_________________________________________________________________

11. To support this proposition, MCDC also cites Inmates of Allegheny
County Jail v. Wecht, 93 F.3d 1124, 1136 (3d Cir. 1996),
notwithstanding the fact that the opinion was vacated. See id. at 1146.

                               18
short term and long term inmates or suggesting that short
term facilities are exempted from compliance with Title II.
Furthermore, we have been unable to locate any such
authority. The length of Chisolm's detention may impact a
factfinder's determination of whether MCDC discriminated
in violation of the regulations promulgated under the ADA.
However, a facility such as MCDC that houses detainees for
an average of 60 days is not excluded automatically from
Title II of the ADA. We see no basis then to recognize as a
matter of law any distinction regarding the appropriateness
of an auxiliary aid or service based upon the duration of an
ADA claimant-inmate's detention.

In addition, with respect to the first two bases of
Chisolm's claim, the failure to provide an ASL interpreter
and the failure to promptly provide a TDD, MCDC argues
that it employed alternative but effective auxiliary aids. The
most obvious problem with this argument is that it conflicts
with the regulatory mandate that a public entity honor a
disabled person's choice of auxiliary aid or service. See 28
C.F.R. Pt. 35, App. A. Accordingly, to support the District
Court's grant of summary judgment with respect to these
two bases, the record must show that either (1) the
alternative aid and/or service provided was effective or (2)
provision of the requested aid and/or service would not be
required under Section 35.164. See id.

Generally, the effectiveness of auxiliary aids and/or
services is a question of fact precluding summary
judgment. Compare Randolph v. Rodgers, 170 F.3d 850,
860 (8th Cir 1999) (reversing grant of summary judgment
to deaf inmate because whether provision of a sign
language interpreter during disciplinary hearing was an
appropriate auxiliary aid was a fact question) and Duffy v.
Riveland, 98 F.3d 447, 454, 455 (9th Cir. 1996) (holding
that the qualifications of an interpreter and the deaf
inmate's ability to communicate in prison disciplinary
hearing were fact questions precluding summary judgment)
with McGregor v. Louisiana State Univ. Bd. of Supervisors,
3 F.3d 850, 855 (5th Cir. 1993) (granting summary
judgment to defendant law school, despite questions of fact
as to requested aid, because requested aid would
fundamentally modify program). As discussed more

                               19
particularly below, Chisolm has presented evidence
sufficient to raise genuine issues of material fact regarding
the effectiveness of the alternative aids provided by MCDC.

Nor does the record suggest that MCDC is exempted
under 28 C.F.R. S 35.164 from the regulatory obligation to
provide a requested auxiliary aid and/or service. MCDC
argues that providing Chisolm with an ASL interpreter and
TDD would have caused either undue burden to or
fundamental alteration of MCDC. However, it is not clear
from the record that MCDC complied with the requirements
of Section 35.164. Specifically, there is no indication that
MCDC issued written statements of its reasons for denying
Chisolm's requested auxiliary aids. See 28 C.F.R. S 35.164
(2001). Additionally, whether the alternative aids protected
Chisolm's interests "to the maximum extent possible"
without unduly burdening MCDC or fundamentally altering
its programs presents an unresolved question of fact. Id.

Having addressed the general arguments raised by MCDC
in response to Chisolm's claim, we now turn to MCDC's
specific responses to the individual bases of Chisolm's
claim.

       a. Failure to Provide an ASL Interpreter

Chisolm claims that MCDC violated Title II of the ADA
when it failed to provide him with an ASL interpreter during
his intake and classification. That MCDC did, in fact, fail to
provide Chisolm with an ASL interpreter is not in dispute.
However, MCDC responds to this claim by suggesting that
its personnel were able to communicate with Chisolm
effectively by lipreading and writing on a pad of paper.

In determining that MCDC demonstrated the
effectiveness of these alternative auxiliary aids provided to
Chisolm, the District Court did not resolve all reasonable
factual inferences in favor of Chisolm, the non-moving
party. Chisolm presented evidence indicating that ASL was
his primary language of communication and that he was
not proficient in either lipreading or written English.12 From
_________________________________________________________________

12. The parties do not dispute that Chisolm communicates primarily
through ASL. According to his unrebutted expert report, Chisolm's

                               20
this evidence, a reasonable trier of fact could infer that
these alternative aids were ineffective. Indeed, the
erroneous classification of Chisolm as an unemployed
vagrant creates a reasonable inference that the
communication aids employed by MCDC were not, in fact,
effective.

In support of its conclusion that the combination of
lipreading and note writing was an effective auxiliary aid,
MCDC cites to a single statement made by Chisolm during
a deposition. In this statement, Chisolm confirms that the
MCDC personnel with whom he was communicating did
everything that he requested in writing. Id. While this
statement may influence a trier of fact's assessment of
whether the pad of paper and pencil were effective auxiliary
aids, it does not show their effectiveness as a matter of law.
Necessarily, Chisolm's ability to make written requests was
dependent upon his ability to write in English. When
considered in a light most favorable to Chisolm and
together with the evidence that Chisolm is not proficient in
written English, the deposition statement is not dispositive
of the issue of effectiveness.

Finally, there is no indication in the record that, under
Section 35.164, MCDC was exempt from the requirement to
provide Chisolm with an ASL interpreter. MCDC argues
that allowing an ASL interpreter "onto the living unit" of
MCDC would conflict with safety and security concerns
regarding the "orderly function of MCDC." Safety and
security concerns likely were implicated by Chisolm's
request for an ASL interpreter. Nevertheless, by suggesting
that an ASL interpreter would be placed "onto the living
unit," MCDC interprets Chisolm's request as an extremely
broad one. Factual issues exist as to whether MCDC could
have provided an ASL interpreter at critical points,
including intake, medical evaluations, and classification,
_________________________________________________________________

lipreading skills are "extremely limited" and he misinterprets unexpected
utterances as expected ones. The report also notes that his written
English "exhibits characteristics of an partially learned second
language." Similarly, his ability to read English is limited by his poor
mastery of grammar and vocabulary.

                                21
while still taking into account legitimate safety and security
concerns.

       b. Failure to Provide a TDD

MCDC also resists Chisolm's claim that MCDC unlawfully
discriminated against him by failing to promptly provide
him with access to a TDD. To the extent that other, non-
disabled inmates had access to communication by
telephone, MCDC was required to provide Chisolm with
such access on nondiscriminatory terms. See 42 U.S.C.
S 12132. Both Chisolm and his roommate, Kenneth Knight,
requested that a TDD be provided as an auxiliary aid.
Nevertheless, MCDC cites safety concerns as justifying its
failure to promptly provide a TDD and suggests that it
provided alternative, but effective, auxiliary aids. The
District Court found MCDC's refusal to promptly provide a
TDD "reasonable" as a matter of law. Chisolm, 97
F.Supp.2d at 623-24. However, in reaching this conclusion,
the District Court resolved various factual disputes against
Chisolm.

Citing McManimon's affidavit, MCDC argues that a TDD
machine and/or its constituent parts could be used as a
weapon and that Chisolm would pose a security risk if
allowed "unrestricted access to his TTD on the living unit."
Like MCDC's broad characterization of Chisolm's request
for an ASL interpreter, this statement may overstate the
safety or security threat posed by Chisolm's request for an
auxiliary aid. It is not clear that Chisolm requested -- or
would have needed -- "unrestricted" access to a TDD.
Furthermore, we do not know whether this auxiliary aid
could have been provided somewhere other than "on the
living unit." Chisolm argues that he merely wanted access
to a TDD so that he could place calls like other detainees.

In lieu of providing Chisolm with his choice of auxiliary
aid upon request, MCDC made two exceptions to its
institutional rules in an effort to accommodate Chisolm's
needs. First, MCDC permitted Donna Walker to place a
telephone call to Knight on Chisolm's behalf. Second, after
Chisolm was provided with an TDD, MCDC allowed
Chisolm to place calls in excess of the usual fifteen minute

                               22
limit to account for the delays associated with typing into
a TDD. The District Court found as a matter of law that
these alternative concessions made by MCDC in lieu of
providing Chisolm with a TDD were "reasonable" in light of
safety and security concerns in the prison setting. Chisolm,
97 F.Supp.2d at 623-24. However, in so finding, the
District Court once again resolved factual disputes against
Chisolm. Chisolm's contention that he "could not contact
his attorney, friends, or family" for lack of a TDD raises a
reasonable factual inference that MCDC's alternative aids
were not effective. Furthermore, there is no indication that
MCDC complied with the requirements of Section 35.164
when it refused to promptly provide Chisolm with a TDD.

       c. Failure to Activate Closed Captioning

In response to Chisolm's claim that MCDC discriminated
against him when it failed to activate closed captioning on
a prison television, both MCDC and the District Court note
that Chisolm failed to request closed captioning. Citing
Randolph, 170 F.3d at 858, the District Court and MCDC
maintain that MCDC had no obligation to activate the
closed captioning absent a specific request from Chisolm.

This analysis is flawed for three reasons. First, there is
no evidence that Chisolm knew that closed captioning
services were available. Second, even if we did adopt the
Eighth Circuit's Randolph rule, cited by the District Court,
it would be inapplicable if MCDC had knowledge of
Chisolm's hearing disability but failed to discuss related
issues with him. See Randolph, 170 F.3d at 858-59 ("While
it is true that public entities are not required to guess at
what accommodations they should provide, the requirement
does not narrow the ADA or RA so much that the [public
entity] may claim [the disabled person] failed to request an
accommodation when it declined to discuss the issue with
him."). Finally, the adequacy of MCDC's communication
with Chisolm lies unresolved at the heart of this case. As
such, whether Chisolm even could have communicated a
request for closed captioning presents a question of fact
that has not yet been resolved.

For the above reasons, we conclude that the District
Court improperly granted summary judgment in favor of
McManimon.

                               23
       3. The Vicinage

Chisolm argues that the Vicinage discriminated against
him when it failed to arrange for and provide an ASL
interpreter for his scheduled extradition hearing on
September 14, 1994. Chisolm argues that by postponing
the hearing until an ASL interpreter was available and
remanding Chisolm to MCDC, the Vicinage injured him in
connection with the alleged discrimination. For the reasons
stated below, we hold that the District Court erred in
granting summary judgment in favor of the Vicinage with
respect to this claim.

The District Court granted summary judgment to the
Vicinage reasoning that, because no extradition hearing
was held, the Vicinage did not exclude Chisolm from any
programs. See Chisolm, Civ. No. 95-0991 at 12. This
conclusion ignores the broad language of the statutes
under which Chisolm brings his claims against the
Vicinage. Without showing that the Vicinage excluded him
from an extradition hearing, Chisolm may bring his claim
under the theory that the Vicinage denied him an
extradition hearing. See 42 U.S.C. S 12132. Furthermore,
each of the relevant statutes, Title II of the ADA, the
Rehabilitation Act, and the NJLAD, proscribes
discrimination on the basis of disability without requiring
exclusion per se. See id. ("[N]o qualified individual with a
disability shall, by reason of such disability . . . be
subjected to discrimination by any [public] entity."); 29
U.S.C. S 794(a) (providing that a qualified disabled person
shall not, "solely by reason of her or his disability . . . be
subjected to discrimination under any program or activity
receiving Federal financial assistance"); N.J. Stat. S 10:5-4.1
("All of the provisions of the act . . . shall be construed to
prohibit any unlawful discrimination against any person
because such person is or has been at any time
handicapped . . . ."). The record, when viewed in a light
most favorable to Chisolm, raises a genuine issue as to
whether or not the Vicinage either discriminated against
Chisolm on the basis of his disability or otherwise denied
him the benefits of an activity, program or service.

The District Court found, and we agree, that extradition
hearings are "programs" within the definition of the ADA

                               24
and the Rehabilitation Act. See Chisolm, Civ. No. 95-0991
at 12, n.7 (citing Duffy, 98 F.3d at 455). A reasonable trier
of fact could find that the Vicinage denied Chisolm the
ability to participate in an extradition hearing to the same
extent non-disabled individuals are able to participate. The
Vicinage does not dispute that Chisolm's extradition
hearing would have occurred as scheduled on September
14, 1994, were it not for Chisolm's inability to communicate
without an auxiliary aid and/or service. Therefore, Chisolm
faced an additional six days of incarceration solely because
of the Vicinage's inability to provide him with an auxiliary
aid or service at his scheduled extradition hearing.

The Vicinage argues that its "affirmative measures" to
locate an ASL interpreter, in fact, "complied fully with" the
regulations. However, it is up to the trier of fact to
determine whether the Vicinage provided a sufficient
auxiliary aid and/or service when it rescheduled Chisolm's
hearing and ordered him remanded into custody for a
further six days until an ASL interpreter could be present.
See Randolph, 170 F.3d at 859; Duffy, 98 F.3d at 455-56.

The Vicinage also argues that the failure to provide an
auxiliary aid and/or service upon Chisolm's scheduled
extradition hearing was justified because the Vicinage
lacked notice of Chisolm's disability. Although not expressly
framed as such, this argument appears to invoke the
Section 35.164 exception to the general rule that a public
entity must provide a disabled individual with a requested
auxiliary aid and/or service. Section 35.164 exempts public
entities from providing a requested aid or service only if
doing so would cause a "fundamental alteration" to the
entity's programs or would create undue financial or
administrative burdens. 28 C.F.R. S 35.164. Providing
Chisolm with an ASL interpreter would not fundamentally
alter the extradition hearing, as is evidenced by the fact
that a New Jersey statute expressly mandates this service.
See id.; N.J. Stat. 2B:8-1 (2001). Therefore, the Vicinage
could avoid providing Chisolm with an ASL interpreter only
if doing so would create "undue financial and
administrative burdens." 28 C.F.R. S 35.164.

Assuming arguendo that it would have been unduly
burdensome for the Vicinage to provide Chisolm with an

                               25
ASL interpreter on such short notice, it is not clear from
the record that the Vicinage complied with Section 35.164.
Specifically, there is no indication that the Vicinage issued
a written statement of its reasons for denying Chisolm's
requested auxiliary service. Additionally, whether
remanding Chisolm into custody for six additional days
ensured Chisolm's access to an extradition hearing"to the
maximum extent possible" without unduly burdening the
Vicinage is an unresolved question of fact.

Moreover, to the extent that the Vicinage argues a"lack
of notice" of Chisolm's disability, that lack of notice may
demonstrate a failure of the Vicinage to discharge its
statutory responsibility of providing interpretive services for
the deaf. The provision of such services must include some
reasonable means of determining when they will be needed.

IV. Conclusion

We conclude that, for purposes of determining whether
the Vicinage may assert sovereign immunity, it was not
acting as an "arm of the state." Therefore, the Eleventh
Amendment to the United States Constitution does not
provide the Vicinage with immunity from Chisolm's suit.

As for summary judgment, Chisolm has demonstrated
that genuine issues of material fact remain for trial. Thus,
the trial court erred in granting summary judgment in favor
of defendants. We will reverse the judgments in favor of
McManimon and the Vicinage and remand this case to the
District Court for further proceedings consistent with this
opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               26
