Gorman v. Bartch

• Decision Date: 20 August 1998
• Docket Number: No. 97-4323,97-4323
• Citation: 1998 WL 498601,152 F.3d 907
• Parties: 8 A.D. Cases 751, 13 NDLR P 157 Jeffrey GORMAN, Plaintiff-Appellant, v. Floyd BARTCH; Steven Bishop, Chief, Kansas City Missouri Police Department; Emanuel Cleaver II; John Dillingham; Jack Headley; Jacqueline Paul; Bailus Tate; Donna Boley; Neil Becker; Stacey Daniels, Dr.; James F. Ralls, Jr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 907

152 F.3d 907

8 A.D. Cases 751, 13 NDLR P 157

Jeffrey GORMAN, Plaintiff-Appellant, v. Floyd BARTCH; Steven Bishop, Chief, Kansas City Missouri Police Department; Emanuel Cleaver II; John Dillingham Jack Headley; Jacqueline Paul; Bailus Tate; Donna Boley Neil Becker; Stacey Daniels, Dr.; James F. Ralls, Jr. Defendants-Appellees.

No. 97-4323.

United States Court of Appeals Eighth Circuit.

Submitted May 14, 1998.

Decided Aug. 20, 1998.

Connie Knight Sieracki, Davis, CA, argued (John M. Simpson, Kansas City, MO, Michael L. Hodges, Lenexa, KS, on the brief), for Plaintiff-Appellant.

Lisa S. Morris, Kansas City, MO, argued (Dale H. Close, Kansas City, MO, on the brief), for Defendants-Appellees.

Before BEAM, LOKEN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Jeffrey Gorman, a paraplegic who uses a wheelchair, was injured while being transported after his arrest by Kansas City police officers. He brought this action against the members of the Kansas City Board of Police Commissioners, the chief of police, and the officer who drove the transport vehicle, claiming discrimination based on his disability in violation of Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12132, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). ¹ The district court granted summary judgment to the defendants, and Gorman appeals from the judgment. We affirm in part and reverse in part.

I.

Each side characterizes the facts in the record quite differently, but on our de novo review of the grant of summary judgment, we state them in the light most favorable to Gorman, the non-moving party. Gerdes v. Swift-Eckrich, Inc., 125 F.3d 634, 637 (8th Cir.1997). A severe spinal cord injury requires Gorman to use a wheelchair, and in the early hours of May 31, 1992 he became involved in a disagreement at a Kansas City bar known as Guitars and Cadillacs. When he and a friend began descending the steps to the dance floor, a bar employee told him he could not go down onto the dance floor. Gorman protested that he was entitled to go there, but the employee told him "you're out of here" and began to pull his wheelchair up the steps. Gorman was evicted from the bar. When he demanded to be readmitted, employees at the door refused. Gorman then approached two police officers to tell them what had happened and to request their help in getting back into the bar. He began to argue with them, and they eventually arrested him for trespassing and called for transportation to take him to the police station.

In response to the call officer Neil Becker arrived with a patrol wagon that was not equipped with a wheelchair lift or wheelchair restraints. Gorman told the police that the van was not properly equipped for him to ride in it, and that due to his use of a urine bag it would be necessary for him to go to the bathroom before he was transported. The officers lifted Gorman from his chair and placed him on a bench inside the van. Gorman states that they complied with his instructions on how to lift him from his chair, but not with his requests that he be allowed to go to the bathroom prior to transport or that they place the seat cushion from his wheelchair underneath him to help support his legs. Because of his paraplegia Gorman was not independently able to maintain himself upright on the bench, and the police tied him with his belt to a mesh wall behind the bench and also fastened a seatbelt around him. During the drive to the station the belts came loose, and Gorman fell to the floor. The fall injured his shoulders and back severely enough to require surgery and also broke his urine bag, leaving him soaked in his own urine.

Gorman filed this action, alleging violation of his rights under the ADA and the Rehabilitation Act and negligence in his handling. Gorman sued police chief Steven Bishop; commissioners Emmanuel Cleaver, John Dillingham, Jack Headley, Jacqueline Paul, and Bailus Tate; and police officer Neil Becker. Donna Boley, Stacy Daniels, and James Ralls were added when they replaced Paul, Dillingham, and Tate as members of the board of police commissioners, as was Floyd Bartch when he succeeded Bishop as chief of police. Gorman alleged that the board members and the chief failed to provide a proper transportation vehicle to accommodate his condition, to modify department policies and procedures dealing with arrest and transportation to accommodate individuals with spinal cord injuries, and to institute proper training for Kansas City police officers on how to handle such arrestees. He claimed that the manner of his post-arrest handling and transportation evidenced unlawful discrimination by all the defendants, including Becker who drove the police van that took him to the station. His complaint sought compensatory damages for physical and mental injuries, punitive damages, injunctive relief compelling the defendants to comply with the statutes, and attorney fees and costs.

The defendants filed several motions in the district court, including motions for summary judgment, and the parties submitted affidavits and deposition testimony from Gorman, several defendants, and other witnesses. The district court disposed of the issues on summary judgment in two separate orders. The first order dismissed all the negligence claims ²; dismissed all claims against the defendants in their individual capacities on the basis of qualified immunity; and dismissed all other claims against former commissioners Dillingham, Paul, and Tate, as well as former police chief Bishop. ³ The only claims which remained after the first order were therefore the statutory claims against the remaining defendants in their official capacities. The second order concluded that the two federal statutes did not cover Gorman's claims because he did not fit the ADA definition of a "qualified individual with a disability." Such a qualified individual must meet "the essential eligibility requirements for the receipt of services" of the public entity, and the court construed this statutory language to mean services voluntarily sought, which would not include those incident to an arrest. The court also reasoned that Congress had not shown it intended to extend the statute to a core state function such as police work, citing in support Torcasio v. Murray, 57 F.3d 1340 (4th Cir.1995) (qualified immunity for state prison officials sued under the ADA). A final judgment was not entered until after Gorman's initial attempt to appeal, ⁴ and the court's order for judgment added a citation to Aswegan v. Bruhl, 113 F.3d 109 (8th Cir.1997), cert denied sub nom Aswegan v. Emmett, --- U.S. ----, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997) (leaving open the question of whether the ADA applied to state prisons, but rejecting the claim that an individual cable television hookup in an infirmary cell was a public service to which the plaintiff was entitled where cable television was available in the infirmary recreation area adjacent to his cell).

On appeal Gorman argues that he is a qualified individual with a disability, that the statutes do not distinguish between public services that are voluntarily sought and those that are not, that transporting arrestees is a program or activity covered by the ADA and the Rehabilitation Act, that he was discriminated against by not receiving transportation that was safe in light of his disability, and that the defendants are not entitled to qualified immunity since the applicable law was clearly established at the time of his arrest and transportation. ⁵ The police defendants argue in response that Gorman is not a qualified individual with a disability since he did not voluntarily seek police transportation, that such transportation is not a service or activity covered by the statutes, that Gorman was not discriminated against based on his disability, and that they are entitled to qualified immunity.

The task before this court then is essentially twofold: to determine (1) whether Gorman has presented claims cognizable under the ADA and the Rehabilitation Act, and (2) whether the defendants sued in their individual capacities are entitled to qualified immunity.

II.

Analysis of whether Gorman's allegations can be pursued under Title II of the ADA and § 504 of the Rehabilitation Act must begin with the language of the statutes themselves, Watt v. Alaska, 451 U.S. 259, 101 S.Ct. 1673, 1677, 68 L.Ed.2d 80 (1981), and their plain language must be given effect. Connecticut National Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992).

The Rehabilitation Act became effective in 1973, and § 504 of the act provides that "[n]o otherwise qualified individual with a disability" shall "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). The reach of this statutory language is demonstrated by the definition of "program or activity" to include "all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local government." 29 U.S.C. § 794(b). To prevail on a claim under § 504, a plaintiff must demonstrate that: (1) he is a qualified individual with a disability; (2) he was denied the benefits of a program or activity of a public entity which receives federal funds ⁶, and (3) he was discriminated against based on his disability. 29 U.S.C. § 794(a); Layton v. Elder, 143 F.3d 469, 472 (8th Cir.1998). Defendants may demonstrate as an affirmative defense that a requested accommodation would constitute an undue burden. 29 U.S.C. § 794a(a)(1); Barth v. Gelb, 2 F.3d 1180, 1183 (D.C.Cir.1993). Plaintiffs who prevail on Rehabilitation Act claims are entitled to the full spectrum of legal and equitable remedies needed to redress their injuries. Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir.1994); Rodgers v. Magnet Cove Public Schools, 34...