                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           FEB 27, 2009
                            No. 08-15036                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                 D. C. Docket No. 06-00158-CV-RWS-2

TIMOTHY RYLEE,

                                                          Plaintiff-Appellant,

                                 versus

SHERIFF CHARLES CHAPMAN, in his official
capacity as Sheriff of Banks County,
BANKS COUNTY, a municipal subdivision
of the State of Georgia,
JOSEPH CHAPMAN,
C. WAY,
B. LORD,
JOHN DOE,

                                                       Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                    _________________________

                          (February 27, 2009)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant Timothy Rylee (“Rylee”), an individual with a hearing

impairment, alleges that his rights were violated by Defendant-Appellees Charles

Chapman, Joseph Chapman, Cary Way, Brian Lord, John Doe, and Banks County,

Georgia (collectively “Appellees”), throughout the course of his arrest, booking,

interrogation, and first appearance hearing. Rylee brought claims against

Appellees under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131,

et seq., the Rehabilitation Act (“RA”), 19 U.S.C. § 794, and 42 U.S.C. § 1983.

Following discovery, the district court granted summary judgment in favor of the

defendants on all claims.

                                        I. Facts

      On the evening of November 1, 2005, twelve-year-old Kevin Rylee called

Banks County 911 and told the operator that he needed assistance because his

father, Timothy Rylee, “would not leave [his] mom alone.” Rylee’s then-wife,

Susan Rylee, got on the line and told the 911 operator that she needed officers to

come to her residence because her husband had, amongst other things, threatened

to kill her, grabbed her around her throat, threw her against a wall, threw glass jars

full of fruit at her, and threw a chair at her as she fled down the stairs. At the time



                                            2
of the call, Mrs. Rylee reported that she and her two children were outside the

house, hiding from Rylee amongst some trees. She told the 911 operator that her

husband was hearing-impaired and did not know sign language, but could read lips

and understand someone when they spoke slowly to him.

       Appellees Cary Way and Brian Lord, both patrol deputies with the Banks

County Sheriff’s Office, were dispatched to Rylee’s residence. While they were en

route, the 911 dispatcher told the deputies that Rylee was hearing impaired, but

could read lips. When the deputies arrived, they did not see anyone in the front

yard and began to approach the house. The front door was open and Rylee’s dog

was outside. The dog approached the deputies, the deputies pointed their pistols at

the dog, and Rylee came outside yelling, “don’t shoot the dog.” Once Rylee was

on the front lawn, the deputies proceeded to question him, including whether he

knew the location of his wife and children. At no point did Rylee ask for an

interpreter or for any other accommodations in order to help him communicate

with or understand the deputies.

       During or after this exchange, Mrs. Rylee and her two sons emerged from

the woods. Deputy Lord escorted Mrs. Rylee into her residence, where he and

Sergeant Jimmy Hubbard,1 who had recently arrived on the scene, questioned Mrs.


       1
          Sergeant Hubbard was originally a defendant in this case; however, following his death,
the district court granted Rylee’s motion to dismiss the claims against Sergeant Hubbard.

                                                3
Rylee. Mrs. Rylee gave a statement reciting allegations of violence that were

similar to those that she told the 911 operator. She also told the officers that Rylee

previously had thrown a carton of ice cream at her and showed the officers the

bruise that allegedly resulted from that incident. Inside the house, Sergeant

Hubbard noticed that a chair was overturned, consistent with Mrs. Rylee’s story

that her husband threw a chair at her.

       Sergeant Hubbard ordered Rylee arrested. He was taken into custody on

charges of simple battery, simple assault, and second degree cruelty to children.

Deputy Lord drove Rylee to the Banks County Jail, turned him over to the booking

officer, and informed the booking officer that Rylee had a hearing impairment. Jail

documents bear the notation that Rylee is “deaf, but can read lips.”

       During the booking process, Rylee asked one booking officer to hand-write

her questions and statements to him. She complied with this request. Rylee also

asked a jail officer if he could use his cellular telephone so that he could contact his

family, but the officer confiscated the phone, along with Rylee’s other personal

property.2 Later that evening, however, a jail officer contacted one of Rylee’s

relatives to let them know his whereabouts. After booking, Rylee spent the night


       2
         Although Rylee’s complaint and brief are vague, we assume that the “John Doe” against
whom suit was brought is the officer that confiscated Rylee’s phone. This officer appears, based
on the facts alleged by Rylee, to be the only unnamed individual against whom there is at least
an arguable cause of action.

                                               4
in jail. While incarcerated, Rylee acknowledged in writing that he received the

Banks County Jail’s Inmate Handbook, which specified the jail’s grievance

procedures.

      On the morning following the arrest, Appellee Joseph Chapman, an

investigator for the Banks County Sheriff’s Office, met with Rylee to interview

him. Before the start of the interview, Rylee acknowledged in writing that he had

received Miranda3 warnings. Investigator Chapman asked Rylee whether he could

read lips, to which he responded “yes,” and noted that he could also read and write.

During the interview, Investigator Chapman wrote down his communications for

Rylee. At no point did Rylee ask for an interpreter. At Rylee’s request,

Investigator Chapman wrote a statement based on his account, which Rylee signed.

The statement alleged that Rylee defended himself after his wife came at him with

a knife.

      Investigator Chapman thereafter obtained a warrant charging Rylee with

simple battery and second degree cruelty to children, and transported Rylee to a

bond hearing before a magistrate judge. Rylee was met at court by his uncle, a

retired attorney. The magistrate judge, having found probable cause for the

charges, spoke with Rylee’s uncle in chambers and reached a bond agreement.



      3
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                5
Bail was set, the bond was posted, and Rylee was released.

       Rylee thereafter brought the instant suit against Appellees. Following

discovery, both parties moved for summary judgment. The district court denied

Rylee’s motion for summary judgment and granted summary judgment in favor of

Appellees on the following grounds: (1) Sheriff Chapman is entitled to official

immunity from all claims; (2) the RA claims fail because Rylee did not identify

any federal funding;4 (3) the ADA claims fail because Rylee did not demonstrate a

prima facie case of disability discrimination, individual defendants cannot be sued

under the ADA, and Banks County did not deny Rylee reasonable

accommodations; and (4) the § 1983 claims fail because Rylee did not show that

his due process or equal protection rights were violated.



                                        II. Discussion

A. Standard of Review

       We review a district court’s grant of summary judgment de novo. Rojas v.

Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). Summary judgment is proper when

the evidence shows there is no genuine issue as to any material fact and the moving


       4
         Rylee’s brief does not address this issue or identify any pertinent federal funding. As
such, Rylee has waived his ability to challenge summary judgment on his RA claims. See
United States v. Nealy, 232 F.3d 825, 830-31 (11th Cir. 2000) (an argument not raised in an
appellant’s brief is deemed waived).

                                                 6
party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986); Fed. R. Civ. P. 56(c). We view “the evidence and all

reasonable inferences drawn from it in the light most favorable to the nonmoving

party.” Battle v. Bd. of Regents for Ga., 468 F.3d 755, 759 (11th Cir. 2006).

B. Sheriff Chapman’s official immunity

      Rylee argues that the district court erred in dismissing his ADA and § 1983

claims against Sheriff Chapman on the basis of official immunity. The Eleventh

Amendment to the United States Constitution bars suit in federal court against an

“arm of the state,” except where such immunity is waived by the state or abrogated

by Congress. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003). Georgia law

recognizes its sheriffs as “arms of the state.” Powell v. Barrett, 496 F.3d 1288,

1304 (11th Cir. 2007). Rylee’s brief makes conclusory allegations that Sheriff

Chapman is not entitled to immunity, but fails to provide any arguments as to

waiver or abrogation. He has therefore waived his opportunity to contest this

issue. See Flanigan’s Enters. Inc. Of Ga. v. Fulton County, Ga., 242 F.3d 976, 978

n.16 (11th Cir. 2001) (a party waives an issue where, although the issue was

mentioned in passing, the party did not elaborate or provide any citation of

authority in support of the issue). For this reason, we conclude that the district

court did not err in granting summary judgment in favor of Sheriff Chapman on the



                                           7
ADA and § 1983 claims, based on official immunity.

C. ADA claims

      a. Individual Appellees

      Rylee argues that the district court erred in finding that individuals may not

be sued under the ADA. We disagree. The ADA prohibits a “public entity” from

discriminating against a “qualified individual with a disability” on account of his

disability. 42 U.S.C. § 12131. By its terms, the ADA only addresses

discrimination by a “public entity.” In the employment context, this court has held

that “the Disabilities Act does not provide for individual liability, only for

employer liability.” Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 2007).

Rylee has provided no reasons why this rule should be any different in the context

of an arrest. The ADA imposes respondeat superior liability on the employer for

the discriminatory acts of its employees. See id. at 1010. We therefore conclude

that the district court did not err in granting summary judgment in favor of the

individually named Appellees.

      b. Banks County

      Rylee’s ADA claim against Banks County involves allegations of

discrimination by Banks County’s employees throughout various portions of

Rylee’s arrest, booking, and first appearance. In substance, Rylee argues that the



                                           8
officers intentionally discriminated against him and denied him reasonable

accommodations that he needed in order to effectively communicate with the

officers and magistrate judge.5

       To establish a prima facie case under the ADA, the plaintiff must show:

       (1) that he is a qualified individual with a disability; (2) that he was
       either excluded from participation in or denied the benefits of a public
       entity’s services, programs, or activities, or was otherwise
       discriminated against by the public entity; and (3) that the exclusion,
       denial of benefit, or discrimination was by reason of the plaintiff’s
       disability.

Bircoll v. Miami-Dade County, 480 F.3d 1072, 1083 (11th Cir. 2007). A plaintiff

can proceed on theories of intentional discrimination, disparate treatment, or failure

to make reasonable accommodations. Schwarz v. City of Treasure Island, 544

F.3d 1201, 1212 n.6 (11th Cir. 2008). In cases alleging a failure to make

reasonable accommodations, the defendant’s duty to provide a reasonable

accommodation is not triggered until the plaintiff makes a “specific demand” for

an accommodation. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361,

1363 (11th Cir. 1999).

       Rylee acknowledges that his wife told the 911 operator that Rylee had a


       5
         Although Rylee’s brief states that he should have received a sign language interpreter,
he admits that he does not know sign language. He and his family developed some signs in
order to aid communication, but there is no reason to believe that a professional interpreter
would have known these signals. As such, Rylee does not show he would have benefitted from
the services of a interpreter.

                                                9
hearing impairment, but could read lips. This information was relayed to Deputies

Way and Lord, who spoke with Rylee on his lawn. Rylee has presented no

evidence from which one could infer that the deputies knew or believed that Rylee

could not read lips or that Rylee requested an interpreter or the aid of a family

member. Once at the police station, Rylee only once asked an officer to write

down her questions for him, and that officer complied with Rylee’s request.

During Investigator Chapman’s meeting with Rylee, not only did Rylee answer

“yes” when asked if he could read lips, but he affirmatively told Investigator

Chapman that he could read and write. Investigator Chapman wrote his questions

to Rylee and, at Rylee’s request, drafted his statement of the events that transpired

at his home the night before. At his first appearance hearing the next morning,

Rylee did not request an interpreter. In fact, on appeal Rylee acknowledges that he

did not need one because he “furnished his own” by having his uncle present at the

hearing.

      The only instance of even arguable discrimination was when, during the

booking process, an unnamed officer denied Rylee’s request to use his cellular

telephone and confiscated the telephone. Rylee, however, produced no evidence to

refute Appellees’ claims that this was typical booking procedure. Moreover,

despite receiving the jail’s grievance procedures, Rylee did not take advantage of



                                          10
these procedures during his incarceration. Absent contrary evidence, the district

court was correct to conclude that the simple confiscation of a cellular telephone

during a brief twenty-four hour detention was insufficient to establish a prima facie

case of disability discrimination.

       Because Rylee did not present any evidence of intentional discrimination,

denial of services on account of his disability, or refusal to make requested

reasonable accommodations, we conclude that summary judgment was properly

granted as to Rylee’s ADA claim against Banks County.

D. Section 1983 claims against all remaining Appellees

       Section 1983 permits a plaintiff to obtain civil damages from any person

who deprives him of constitutional rights, so long as that person is acting under

color of state law. 42 U.S.C. § 1983. Rylee argues that the district court erred in

granting summary judgment on his § 1983 claims, which are premised on the

officers’ alleged violations of his Fourteenth Amendment equal protection and due

process rights.6



       6
          Rylee also argues that he is entitled to relief under § 1983 for claims regarding
violations of his Fourth and Eighth Amendment rights. Rylee only mentions his Eighth
Amendment claim in passing in his brief and fails to make any argument as to the substance of
this claim. This claim is therefore abandoned. See Love v. Deal, 5 F.3d 1406, 1407 n.1 (11th
Cir. 1993) (an issue raised, but not argued, is deemed abandoned). Moreover, neither the Fourth
nor Eighth Amendment claims were raised in Rylee’s complaint before the district court. Thus,
these issues may not be considered on appeal. See Atlanta Prof’l Firefighters Union, Local 134
v. City of Atlanta, 920 F.2d 800, 806 (11th Cir. 1991).

                                              11
      a. Equal protection

      The Equal Protection Clause of the Fourteenth Amendment requires the

government to treat similarly situated people alike. Campbell v. Rainbow City,

Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). “Unless the challenged classification

burdens a fundamental right or targets a suspect class, the Equal Protection Clause

requires only that the classification be rationally related to a legitimate state

interest.” Lofton v. Sec’y of Dep’t of Children and Family Servs., 377 F.3d 1275,

1277 (11th Cir. 2004). The Supreme Court has held that the disabled are not a

suspect class, and thus a government’s differential treatment of them is only

entitled to rational basis review. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.

432, 446 (1985). Under rational basis review, there is no equal protection violation

so long as “there is a rational relationship between the disparity of treatment and

some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320 (1993).

      In the present case, Rylee has failed to establish any differential treatment.

Instead, he proposes that he should receive preferential governmental treatment.

For example, he argues that: (1) because of his hearing-impairment, the arresting

deputies should have let him spend the night at a relative’s home and surrender

himself in the morning; and (2) he should have been permitted to use his cellular

telephone, even though he has not established that this privilege is available to



                                            12
individuals without hearing impairments. Because Rylee fails to establish a

disparity of treatment, his equal protection claim therefore fails.7

       b. Due process

       Rylee finally argues that his substantive due process rights were violated

“[t]hrough a warrantless arrest, incarceration that effective[ly] isolated him from

the world, and interrogation without [the] benefit of counsel or an interpreter.”

       “Conduct by a government actor will rise to the level of a substantive due

process violation only if the act can be characterized as arbitrary or

conscience-shocking in a constitutional sense.” Davis v. Carter, __ F.3d __,

2009 WL 152707, at *2 (11th Cir. Jan. 23, 2009). The Supreme Court has noted

that this is a steep standard, wherein “conduct intended to injure in some way

unjustifiable by any government interest is the sort of official action most likely to

rise to the conscience-shocking level.” County of Sacramento v. Lewis, 523 U.S.

833, 849 (1998).

       We find Rylee’s arguments to be without merit. Although he was arrested

without a warrant, the statements of Mrs. Rylee and her children gave the officers

probable cause to believe that Rylee committed the crimes for which he was

       7
          The district court based summary judgment on the fact that Banks County had a rational
basis for treating Rylee differently than other detainees. We need not reach this issue because
we conclude that Rylee was not subjected to any differential treatment. See Koziara v. City of
Casselberry, 392 F.3d 1302, 1306 n.2 (11th Cir. 2004) (this court may affirm on any grounds
supported by the record).

                                               13
arrested. See Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2006) (“Probable

cause exists when ‘the facts and circumstances within the officers’ knowledge, of

which he or she has reasonably trustworthy information, would cause a prudent

person to believe, under the circumstances shown, that the suspect has committed,

is committing, or is about to commit an offense.’”) (citation omitted). Rylee did

not invoke his right to counsel or request an interpreter and he has presented no

evidence creating a genuine issue of material fact as to whether any of Appellees

engaged in behavior that is so egregious that it “shocks the conscience.” As such,

we find that summary judgment was properly granted on his § 1983 due process

claims.

E. Conclusion

      For the reasons stated, we conclude that the district court did not err in

granting summary judgment in favor of Appellees on all claims.

      AFFIRMED.




                                          14
