                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                    DUSTIN DEROSIER, a married man,
                           Plaintiff/Appellant,

                                        v.

    STATE OF ARIZONA, a governmental entity; CHARLES RYAN,
     in his official capacity as Director of the Arizona Department of
                                 Corrections,
                             Defendants/Appellees.

                             No. 1 CA-CV 14-0145
                                FILED 8-6-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2010-032990
                The Honorable J. Richard Gama, Judge

   AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                   COUNSEL

Robbins & Curtin, PLLC, Phoenix
By Anne E. Findling
Counsel for Plaintiff/Appellant

Shorall McGoldrick Brinkmann, Phoenix
By Scott M. Zerlaut
Counsel for Defendants/Appellees
                        DEROSIER v. STATE/RYAN
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.


B R O W N, Judge:

¶1            Dustin DeRosier appeals the trial court’s judgment in favor of
the State of Arizona and Charles Ryan, director of the Arizona Department
of Corrections (collectively, “the State”) relating to serious injuries inflicted
on DeRosier by other inmates while in prison. DeRosier argues the court
erred in granting the State’s motion for summary judgment on his claims
arising under the Arizona Civil Rights Act (“ACRA”), the federal
Americans with Disabilities Act (“ADA”), and the federal Rehabilitation
Act of 1973 (“RA”). DeRosier also asserts the court should not have
dismissed his gross negligence against the State claim because it was not
included in the summary judgment proceedings, a point the State concedes.
We therefore vacate that portion of the judgment to the extent it purports
to dismiss DeRosier’s gross negligence claim against the State and remand
for proceedings consistent with this decision. As to the remaining claims,
we affirm.

                              BACKGROUND

¶2            After DeRosier’s probation grant was revoked and he rejected
another probation grant, DeRosier was ordered to serve a ten-month
mitigated prison term for a conviction of child abuse, a class six
undesignated offense.        DeRosier’s incarceration with the Arizona
Department of Corrections (“ADOC”) started on August 7, 2009, at the
Arizona State Prison Complex Phoenix Alhambra Reception Center
(“ASPC-Phoenix”). DeRosier was immediately transferred to the mental
health unit to receive treatment for a preexisting mental illness.

¶3            ADOC offered a program (“the Program”) to house inmates
convicted of sex crimes or child abuse separately from the general
population because such inmates may have a greater risk of being assaulted
by other inmates given the nature of their crimes. Three days after he was
transferred to the mental health unit, DeRosier was provided a housing
form that gave him the option of electing to be placed either in the “Sex
Offender yard” or with the general prison population. DeRosier signed the


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                       DEROSIER v. STATE/RYAN
                          Decision of the Court

housing form in the space provided adjacent to the option that indicated he
was “NOT requesting placement in a Sex Offender yard” and that he
“wish[ed] to be placed in a GENERAL POPULATION yard.”

¶4            In December 2009, DeRosier was released from the mental
health unit and transferred to the general prison population at ASPC-Lewis
consistent with his selection on the housing form. Within hours of arriving
at ASPC-Lewis, DeRosier was assaulted by inmates who discovered that
DeRosier had been convicted of child abuse. DeRosier sustained severe
permanent injuries and underwent multiple surgeries.

¶5             In December 2010, DeRosier filed a complaint against the
State, alleging it acted with gross negligence because it knew or had reason
to know that it was placing DeRosier in “circumstances creating an
unreasonable risk of bodily harm with a high probability that substantial
harm would result.” DeRosier also alleged, as a disabled individual, the
State violated his rights under the ACRA, the ADA, and the RA by failing
to implement policies and train employees to deal with inmates who have
mental disabilities. DeRosier further alleged that the State needlessly
endangered him because it knew he would likely be a victim of inmate
violence based on his disability.

¶6             In August 2013, the State moved for summary judgment,
arguing no reasonable jury could find that the State discriminated against
DeRosier in violation of the ACRA, the ADA, or the RA. The State also
argued the gross negligence claim against Ryan should be dismissed
because he was entitled to absolute immunity under Arizona Revised
Statutes (“A.R.S.”) section 31-201.01(F). In response, DeRosier argued that
his participation in the Program was “limited by his mental illness and no
accommodation was made for his disability.” He asserted that if he had
been “fully able” to participate in the Program, the assault would not have
occurred.

¶7             Following oral argument, the trial court accepted the parties’
stipulation that the gross negligence claim against Ryan should be
dismissed. The court then granted the State’s motion, finding that DeRosier
had failed to meet his burden of showing that a reasonable jury could infer
that anyone at ADOC “deliberately discriminated against him because of
his disability or that any such discrimination was the product of deliberate
indifference.” DeRosier timely appealed.




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                        DEROSIER v. STATE/RYAN
                           Decision of the Court

                                DISCUSSION

¶8             A motion for summary judgment should only be granted if
“there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a); see also Orme
Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). We review the
trial court’s grant of summary judgment de novo, viewing the facts and
reasonable inferences therefrom in the light most favorable to the
nonmoving party. Link v. Pima County, 193 Ariz. 336, 340, ¶ 12, 972 P.2d
669, 673 (App. 1998).

¶9              As applicable here, the ACRA, the ADA, and the RA prohibit
discrimination in specified circumstances against individuals with
disabilities.1 Title II of the ADA addresses discrimination by a public entity,
which includes a “State or local government [or] . . . any department [or]
agency . . . of a State . . . or local government[.]” 42 U.S.C. § 12131(1)(A)-(B).
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. § 12132.

¶10           To establish a prima facie claim under Title II of the ADA, a
plaintiff must show:

            1) he is an individual with a disability; (2) he is
            otherwise qualified to participate in or receive the
            benefit of some public entity’s services, programs, or
            activities; (3) he was either excluded from
            participation in or denied the benefits of the public
            entity’s services, programs, or activities, or was
            otherwise discriminated against by the public


1       The ACRA provides that all public buildings and facilities shall
comply with the ADA. A.R.S. § 41-1492.01. The ACRA prohibits
discrimination “on the basis of disability” regarding the provision of goods,
services, privileges, advantages, and accommodations. A.R.S. § 41-1492.02.
DeRosier suggests that the ACRA should be construed more broadly, and
thus grant greater protections, than the ADA; however, he did not raise that
contention in the trial court. See Dillig v. Fisher, 142 Ariz. 47, 51, 688 P.2d
693, 697 (App. 1984) (explaining a party waives an argument by failing to
raise it in the trial court and cannot raise it for the first time on appeal). We
therefore analyze his ACRA claim and ADA claim by the same legal
standards.


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                       DEROSIER v. STATE/RYAN
                          Decision of the Court

           entity; and (4) such exclusion, denial of benefits, or
           discrimination was by reason of [his] disability.

Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (citation
omitted). Title II of the ADA applies to the operation of state prisons. Castle
v. Eurofresh, Inc., 731 F.3d 901, 909-10 (9th Cir. 2013). States “must ensure
that disabled prisoners are not discriminated against with regard to the
provision of the benefits of their services, programs, or activities on account
of a prisoner’s disability.” Id. at 909 (internal quotations omitted).

¶11           Similarly, under the RA, “no otherwise qualified individual
with a disability . . . shall, solely by reason of his or her disability, be
excluded from 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). To establish a prima facie claim under the
RA, a plaintiff must show:

           (1) he is an individual with a disability; (2) he is
           otherwise qualified to receive the benefit; (3) he was
           denied the benefits of the program solely by reason
           of his disability; and (4) the program receives federal
           financial assistance.

Weinreich v. L.A. County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.
1997) (internal quotations and emphasis omitted).

¶12           For purposes of the summary judgment proceedings, the
State does not dispute that Arizona is a public entity and recipient of federal
funding. See 42 U.S.C. § 12132; 29 U.S.C. § 794(a). Nor does the State
dispute that (1) DeRosier’s mental illness is a qualifying disability under the
ACRA, the ADA, and the RA; and (2) he was eligible to be housed in a
separate prison facility based on his conviction for child abuse. Thus, we
address only whether DeRosier has presented genuine issues of disputed
material facts that the State discriminated against him by denying
participation in the Program and it did so because of his disability.

¶13           DeRosier argues the court erred because it failed to
acknowledge that the State excluded him from participation in the Program
or denied him the benefit of the Program. Stated differently, DeRosier
asserts that the State made no attempt to accommodate his disability
(schizophrenia, paranoia, and other psychotic disorders) or address his
mental instability at the time of the intake process to ensure that he made a
knowing and voluntary decision when he signed the housing form.



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                       DEROSIER v. STATE/RYAN
                          Decision of the Court

According to DeRosier, he was incapable of making an election at that time
given the instability attributed to his disability.

¶14            At the outset, DeRosier asserts that the trial court’s ruling is
undermined by erroneous factual statements in the minute entry granting
summary judgment for defendants. Admittedly, the court erred when it
stated that DeRosier completed the housing form after he was “deemed
psychologically stable.” The evidence shows he was given the housing
form within three days after being placed in the mental health unit and at a
time he had not been deemed psychologically stable. The court also erred
in stating that DeRosier was unable to identify any apparent motive for the
attack, as DeRosier identified evidence supporting a reasonable inference
he was attacked because had been labeled a “baby beater.”

¶15            Notwithstanding these inaccuracies, DeRosier has failed to
identify evidence in the record indicating that the State denied him the
benefits of the Program. Instead, the record shows that DeRosier waived
the benefits of the Program (separate housing) when he elected to be placed
in the general prison population and signed the housing form. DeRosier
cites no authority supporting his assertions that the State was obligated,
under the ACRA, the ADA or the RA, to take affirmative measures to
ensure that he made a knowing and voluntary decision regarding
participation in the Program apart from presenting him with the housing
form for his consideration.

¶16            To the contrary, relevant case law holds that the “reasonable
accommodation” requirement of a public entity is not triggered unless both
the disability and the need for an accommodation is patently obvious or a
request for accommodation has been made. See Shedlock v. Dep’t of Corr.,
818 N.E.2d 1022, 1031, 1034 (Mass. 2004) (holding “[p]rison officials are not
required to anticipate a prisoner’s unarticulated need for accommodation
or to offer accommodation sua sponte,” and concluding the state was not
liable for failing to offer accommodation (of a first-floor cell) before an
inmate obtained a medical order verifying the need for such
accommodation, notwithstanding that the inmate’s serious physical
injuries were confirmed at prison intake and the inmate always used a cane
to walk); see also Robertson v. Las Animas County Sherriff’s Dep’t, 500 F.3d
1185, 1197 (10th Cir. 2007) (explaining that a public entity “must have
knowledge that an individual’s disability limits her ability to participate in
or receive the benefits of its services”); Brown v. County of Nassau, 736 F.
Supp. 2d 602, 618 (E.D.N.Y. 2010) (holding a genuine issue of material fact
existed as to whether a deaf inmate’s need for accommodation (to contact
his attorney and participate in a probable cause hearing via closed-circuit


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                       DEROSIER v. STATE/RYAN
                          Decision of the Court

television) was patently obvious, thereby precluding summary judgment
in favor of the state on the inmate’s ADA claims).

¶17           Here, the record reflects that the State was aware of
DeRosier’s disability, having been placed in the mental health unit for
schizophrenia and paranoia, but there is no evidence that, based on either
his presentation at intake or other information, the State was aware of a
need to provide an accommodation to ensure that he made a knowing and
voluntary decision to decline to participate in the Program. Thus, DeRosier
has not met his burden of establishing the existence of a genuine issue of
material fact as to whether the State discriminated against him by denying
him the opportunity to participate in the Program.

¶18            Furthermore, DeRosier has not directed us to any evidence in
the record showing he was excluded from the Program based on his
disability or that he was treated differently than any other inmate. See Doe
v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998) (“[I]t is important to bear in mind
that the purposes of [the ADA and RA] statutes are to eliminate
discrimination on the basis of disability and to ensure evenhanded
treatment between the disabled and the able-bodied.”). DeRosier was
eligible for participation in the Program, but declined to request that he be
housed in a separate facility. Under the ACRA, the ADA or the RA,
DeRosier has failed to establish a prima facie case of discrimination and
therefore the State is entitled to judgment as a matter of law on those
claims.2




2     Given our resolution of the case, we need not address the parties’
competing views of whether a plaintiff can recover money damages under
the ADA or the RA absent proof of intentional discrimination by the
defendant, or whether the standard is “deliberate indifference.”


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                      DEROSIER v. STATE/RYAN
                         Decision of the Court

                             CONCLUSION

¶19           We affirm the trial court’s judgment in favor of the State on
DeRosier’s ACRA, ADA, and RA claims. DeRosier has neither met his
burden of establishing that he was excluded from the Program nor shown
that his exclusion was due to his disability. We vacate, however, that
portion of the judgment purporting to dismiss DeRosier’s claim of gross
negligence against the State, and remand for further proceedings.




                                   :RT




                                    8
