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Updike v. Multnomah County

United States Court of Appeals, Ninth Circuit

August 31, 2017

David Updike, Plaintiff-Appellant,
Multnomah County, a municipal corporation; State of Oregon, Defendants-Appellees, and City of Gresham, Defendant.

          Argued and Submitted June 7, 2017 Portland, Oregon

         Appeal from the United States District Court for the District of Oregon, No. 3:13-cv-01619-SI Michael H. Simon, District Judge, Presiding

          Carl L. Post (argued), John Burgess, and Daniel Snyder, Law Offices of Daniel J. Snyder, Portland, Oregon, for Plaintiff-Appellant.

          Jacqueline Kamins (argued), Assistant County Attorney; David N. Blankfeld, Multnomah County Attorney; Office of Multnomah County Attorney, Portland, Oregon; for Defendant-Appellee Multnomah County.

          Peenesh Shah (argued), Assistant Attorney General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Oregon Department of Justice, Salem, Oregon; for Defendant-Appellee State of Oregon.

          Before: A. Wallace Tashima, Ronald M. Gould, and Johnnie B. Rawlinson, Circuit Judges.


         Americans With Disabilities Act / Rehabilitation Act

         The panel affirmed in part and reversed in part the district court's summary judgment orders, and remanded, in a case in which David Updike, who has been deaf since birth, alleged that the State of Oregon and Multnomah County did not provide him with an American Sign Language interpreter at his arraignment on criminal charges, and that the County did not provide him with an ASL interpreter and other auxiliary aids in order for Updike to effectively communicate while he was in pretrial detainment and under pretrial supervision, in violation of Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act.

         The panel held that Updike lacks standing to pursue his claims for injunctive relief against the State because it is no more than speculation and conjecture that the State will not provide an ASL interpreter and auxiliary aids if Updike makes an appearance as a pretrial detainee again, and lacks standing to pursue his claims for injunctive relief against the County because the possibility of recurring injury remains speculative.

         The panel affirmed the district court's summary judgment in favor of the State on Updike's claims under the ADA and § 504 because there is no evidence that the State's failure to provide an ASL interpreter was the result of deliberate indifference.

         The panel reversed the district court's summary judgment in favor of the County on Updike's ADA and § 504 claims for damages. The panel held that a reasonable jury could find that the County was deliberately indifferent and violated Title II and § 504 when it did not conduct an informed assessment of Updike's accommodation needs and did not give primary deference to Updike's requests or context-specific consideration to his requests; and when County employees failed to provide Updike with an ASL interpreter in a multitude of interactions with County employees, did not offer use of a TTD, and did not turn on closed captioning.



         David Updike, who has been deaf since birth, uses American Sign Language ("ASL") as his primary language. He brings this action against Defendants the State of Oregon ("State") and Multnomah County ("County"), alleging that the State and the County did not provide him with an ASL interpreter at his arraignment on criminal charges, and that the County did not provide him with an ASL interpreter and other auxiliary aids in order for Updike to effectively communicate while he was in pretrial detainment and under pretrial supervision. Updike brings claims for violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and § 504 of the Rehabilitation Act, 42 U.S.C. §§ 701-796I, negligence, and false arrest. Updike appeals the district court's grant of summary judgment to Defendants on all claims. We affirm in part, reverse in part, and remand this case for further proceedings.



         David Updike has been deaf since birth and communicates primarily through ASL, which is his native language and preferred method of communication. Updike does not consider himself to be bilingual in English and does not read or speak English well. Updike is not proficient at reading lips because he has never heard English words-in these circumstances, it is difficult to know the shape that lips make to produce certain words. All of Updike's friends are deaf and Updike's ex-wife is deaf. Updike explains that he "live[s] in the deaf world."

         In the early afternoon of January 14, 2013, officers from the Gresham Police Department arrived at Updike's home to respond to a 911 call reporting a disturbance. The 911 caller told the operator that the disturbance[1] involved deaf individuals, but the officers did not bring an ASL interpreter with them. The officers arrested Updike and took him to Multnomah County Detention Center ("MCDC") for booking.

         MCDC has a telecommunications device for the deaf ("TDD") available. MCDC staff, including corrections deputies and medical providers, can request an ASL interpreter as needed. The County has a contract with Columbia Language Services, Inc. to provide interpreting services, including "Interpretation for the Deaf, " "Interpretation for the Deaf/After Hours, " "Remote/Electronic Interpretation, " "Interpreter [Services]/Normal Hours/ASL, " and "Interpreter Services/After Hours/ASL."

         At MCDC, Updike signed for an ASL interpreter and a teletypewriter ("TTY")[2] and tried to speak the word "interpreter, " but was denied these requests. Instead, Officer Ozeroff showed Updike statements written by the other person involved in the disturbance and a witness, and wrote Updike a note asking Updike to write down what happened. Updike had trouble writing down what happened because written English is not his preferred form of communication. No ASL interpreter was provided.

         At booking, a female corrections office removed Updike's handcuffs and spoke to Updike. Updike tried to read her lips and could not understand her statements. Deputy Kessinger, a booking deputy, completed Updike's intake. Updike was also photographed and fingerprinted. Updike requested an ASL interpreter during the booking process but was not given one.

         After booking, Updike was placed in a holding room. Updike saw other inmates making telephone phone calls, and he wanted to call an attorney and his mother. He asked a corrections officer for a TTY, by saying "TTY, " and motioned his hand to his ear to mime a telephone. The officer instructed Updike to sit down and gestured for Updike to sit down. Updike stated and signed "I need an interpreter, " but the officer did not respond to this request. Updike then spoke the word "paper" and made a writing gesture. The officer denied the request for paper and a writing instrument, and told Updike to sit down.

         After the booking process, Updike again asked to use a TTY by gesturing typing and by making a verbal request to a different corrections officer. The officer denied the requests and instructed Updike to sit down and wait.

         Still at MCDC, Updike met with Nurse Nielsen and asked for an ASL interpreter. Updike wanted to communicate that officers hurt his neck and back during the course of his arrest, but the nurse did not request or provide an interpreter despite his request. The nurse pointed to questions on a health intake form, but Updike could not read the form very well and used body language to answer the questions the best he could. The nurse did not examine his neck and back, and Updike could not communicate that those areas hurt.

         Updike met with Recognizance Officer Iwamoto from Multnomah County Pretrial Services Program. Updike had trouble reading the officer's lips and requested an ASL interpreter. The officer did not provide one. Updike also requested a TTY, but was not given one. Updike then learned that he would be held overnight and would appear in court the next day. Officer Iwamoto assured Updike that Iwamoto would notify the court that Updike would require an interpreter at his arraignment.

         Officer Iwamoto's practice is to communicate with deaf people in custody by writing notes. Officer Iwamoto testified that if Updike was again arrested, he would likely not be given an ASL interpreter for his recognizance interview, and that he believed this practice needed to change. Iwamoto stated that he felt that written communication was sufficient to complete Updike's recognizance interview in order to make a release determination. Iwamoto's summary of his interview with Updike noted that the interview was conducted by writing, but that Updike would "need a sign language interpreter for court." This information became part of the court's records, and went to the judge, the district attorney's office, and the defense attorney. The information was also made available to pretrial release services. Iwamoto stated that he made this determination because arraignment occurred by video conference, and not because he himself had difficulties communicating with Updike by writing during the recognizance interview.

         While at MCDC, Updike also met with Deputy Waggoner, a classification deputy. Waggoner's notes said that Updike was deaf; this notation was made so corrections staff could give Updike accommodations, including getting the TTD machine for Updike to make phone calls. However, Deputy Waggoner did not call for an ASL interpreter during his triage interview with Updike because Waggoner did not think that Updike needed one and felt that Updike communicated fine using written English. Waggoner has never been trained on the necessary steps to obtain an interpreter for a deaf person during booking, and does not know how to get an ASL interpreter if he had trouble with a deaf inmate during a triage interview. Waggoner indicated in the Classification Summary Report that he believed Updike read fine, but also noted that Updike answered "yes" to the question asking whether Updike had a disability that would impact his ability to understand instructions while detained.

         During Updike's time at MCDC, he was not given access to an ASL interpreter, a computer, a TTY, video relay services, or pen and paper. He could not call a lawyer or his family members without a TTY device. He was not able to watch television because there was no video relay service and no closed captioning.

         On the evening of January 14, 2013, Updike was transferred to Multnomah County Inverness Jail ("MCIJ"). At MCIJ, an officer gave Updike a toothbrush, toothpaste, a comb, some blank paper and a pen, and a copy of MCIJ's Inmate Manual. Updike wrote to the officer that his neck and back hurt, and he requested pain medication, but no medical provider examined Updike.

         Updike remained at MCIJ from January 14 through January 16, 2013. He made many requests for a TTY so he could make phone calls, as he saw that other inmates were freely able to use telephones during their free time. He was denied these requests. Updike also wrote a note requesting that an officer turn on closed captioning, but that request was not honored. MCIJ uses a loudspeaker system to address inmates, but Updike did not hear any of the announcements made while at MCIJ.

         On January 15, 2013, Updike appeared at his arraignment by video. MCIJ arranges arraignment by video, and inmates are not transported to court. During the arraignment, Updike could see but not read Judge Kathleen Dailey's lips and noticed that an interpreter was not in the courtroom. Upon learning that Updike was deaf, Judge Dailey postponed Updike's arraignment to the following day when an ASL interpreter would be available. Updike was thus held for another night at MCIJ.

         The County's Pretrial Release Office conducts pretrial release interviews, including an assessment of the language needs of an individual, such as whether an individual needs an ASL interpreter, or whether the individual requires some other accommodation for hearing loss. This information is transmitted to the staff of the Oregon Judicial Department ("OJD") prior to arraignment. Updike's pretrial release documents received by OJD employees noted that Updike required an ASL interpreter. If staff do not determine whether an interpreter is required, the issue is not addressed until the court appearance. Typically, OJD staff prepare for arraignments by looking only at the booking register and not by reviewing the pretrial release report. But if a booking register notes a need for an accommodation, OJD staff would take appropriate action. At some time after Updike's arraignment, the County modified the format of the booking register so that the booking register notifies the court of a need for an accommodation. As a result of this change, OJD staff are now alerted that a person needs an ASL interpreter or a foreign language interpreter through the booking register.

         On January 16, 2013, Updike again appeared in court by videoconference. An ASL interpreter was provided for Updike, and Updike was released that day. Updike again requested a corrections officer to supply him with a TTY so he could call for his daughter to pick him. He received a TTY for the first time, and left jail late that evening.

         On January 17, 2013, Updike reported to pretrial supervision as ordered by Judge Dailey. Updike met with Michale Sacomano, a case manager for the Multnomah County Department of Community Justice's Pretrial Services Program. Sacomano conducted intake by written communication, despite the fact that Updike did not agree to conduct intake by writing and had requested-by both signing and speaking-an ASL interpreter and signed requesting an ASL interpreter. Sacomano denied the request, and explained that Updike should write all of his requests.[3] Updike had a series of miscommunications with Sacomano, and felt that Sacomano believed Updike used his hearing impairment as an excuse to violate conditions of his pretrial release.[4]

         The trial on Updike's criminal charge was postponed until April 22, 2013. After the jury was impaneled, the district attorney moved for dismissal.


         On September 13, 2013, Updike filed his complaint, alleging claims against the City of Gresham, Multnomah County, and the State of Oregon. In early 2014, the City of Gresham settled. On June 1, 2014, Updike filed his first amended complaint. Updike brought several claims: ADA discrimination claims against the State and the County, violations of § 504 of the Rehabilitation Act against the State and the County, common law negligence against the State and the County, and false arrest against the County. He sought compensatory damages, injunctive relief, and attorneys' fees and costs.

         The State filed its motion for summary judgment on April 23, 2014, which the district court granted on October 15, 2014. The County filed its motion for summary judgment on November 26, 2014, which the district court granted on ...

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