Kiman v. New Hampshire Department of Corrections

United States Court of Appeals
For the First Circuit

No. 05-1998

MATTHEW KIMAN,

Plaintiff, Appellant,

v.

NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS; MICHAEL CUNNINGHAM,
Individually and Officially as Warden, New Hampshire State
Prison; BERNADETTE CAMPBELL, Individually and Officially as a
Physical Therapist; MICHAEL CAPANO, Individually and Officially
as Corrections Officer; BRIAN GAUTHIER, Individually and
Officially as a Corrections Officer; JOHN HANEY, Individually and
Officially as a Corrections Officer; MICHAEL CORRIRA,
Individually and Officially as a Corrections Officer; DAVID
SOUTHARD, Individually and Officially as RNC; MICHAEL KENNEY,
Individually and Officially as a Corrections Officer; BRIAN
DUNHAM, Individually and Officially as a Corrections officer;
MICHAEL POULICAKOS, Individually and Officially as a Corrections
Officer; ROGER DUGRE, Individually and Officially as a
Corrections Officer; JANETTE HOFFSTEDE, Individually and
Officially as a Nurse Practioner; CHARLES WARD, Individually and
Officially as the Prison Physician,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul Barbadoro, U.S. District Judge]

Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Nancy S. Tierney for the appellant.
Mary E. Malony, Attorney, New Hampshire Dept. of Justice, with
whom Kelly A. Ayotte, New Hampshire Attorney General, was on brief
for the appellees.
June 28, 2006
 LIPEZ, Circuit Judge. Appellant Matthew Kiman, formerly

incarcerated at the New Hampshire State Prison, appeals the

district court's grant of summary judgment in favor of the New

Hampshire Department of Corrections and numerous individuals sued

in their individual and official capacities. Kiman, who has

amyotrophic lateral sclerosis ("ALS" or "Lou Gehrig's Disease"),1

argues that the defendants violated Title II of the Americans with

Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165,2 by failing to

properly treat his disease and by failing to reasonably accommodate

his resulting disability. He also raises state law negligence

claims. The parties filed cross-motions for summary judgment, and

the district court granted the defendants' motion and denied the

plaintiff's motion. Concluding that no violation of the ADA had

occurred, the district court did not reach the issue of whether

Title II of the ADA validly abrogated the state's sovereign

immunity, and declined to exercise supplemental jurisdiction over

Kiman's state law claims.

Kiman appealed, arguing that the district court erred by

granting the defendants' motion because material facts are in

1
ALS is a progressive neurodegenerative disease that causes motor
neurons in the brain and spinal cord to die, affecting the brain's
ability to initiate and control muscle movement. ALS eventually
leads to paralysis and death. See "About ALS: What is ALS?," at
http://www.alsa.org/als/what.cfm (last visited June 23, 2006).
2
Title II of the ADA applies to state prisons. See Pa. Dep't of
Corr. v. Yeskey, 524 U.S. 206 (1998).

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dispute. After carefully reviewing the record, we agree that the

district court failed to address admissible record evidence that

may suffice to create genuine issues of material fact as to whether

the defendants violated Title II of the ADA. We therefore vacate

the judgment of the district court and remand for further

proceedings. On remand, the district will need to address the

issues left unresolved by its earlier holding, including an

assessment of which defendants would be liable for the Title II

violations, whether the state's sovereign immunity has been validly

abrogated,3 and whether summary judgment on Kiman's state law

claims is appropriate.

I.

A. Factual History

We present the evidence in the light most favorable to

Kiman, the party opposing summary judgment. See Parker v.

Universidad de Puerto Rico, 225 F.3d 1, 3 (1st Cir. 2000). Kiman

was incarcerated at the New Hampshire State Prison for two relevant

periods: April 2, 1997 through January 8, 1998, and September 23,

1998 through January 28, 1999. Kiman first exhibited signs of a

disability while incarcerated in 1997. He reported experiencing

numbness and pain in his left leg and left buttocks and met with

Nurse Janette Hoffstede, as well as the prison's physical

3
On the issue of sovereign immunity, the district court will be
guided by the Supreme Court's recent decision in United States v.
Georgia, 126 S. Ct. 877 (2006).

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therapist, Bernadette Campbell, several times between October and

December 1997. On December 17, 1997, Kiman reported having

weakness and pain in his left shoulder. However, his appointment

with Campbell was cancelled when he was paroled to serve a sentence

in Massachusetts on January 8, 1998. While incarcerated in

Massachusetts, Kiman did not see a specialist for his leg and

shoulder problems.

After he was released from incarceration in

Massachusetts, Kiman returned to New Hampshire to reside at Calumet

House, a halfway house. In April 1998, he made an appointment with

Dr. Jay Smith at Manchester Community Health Center. Dr. Smith

examined Kiman, noting the atrophy in his muscles and fasciculation

(involuntary contractions and twitching) along both sides of his

body. He recommended that Kiman consult a neurologist right away.

When Dr. Smith discovered during a second appointment with Kiman

several days later that Kiman had yet to see a neurologist, he

speculated that "something in our system has broken down as I made

the recommendation that we get him in with a neurologist . . . as

soon as possible."

Two weeks later, Kiman met with Dr. Daniel Botsford, Jr.

of Neurology Associates of Southern New Hampshire. Dr. Botsford

arranged for electromyography and nerve conduction studies. He

believed that Kiman might have a motor neuron disease or muscular

dystrophy but did not reach a conclusive diagnosis. He ordered

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more testing and suggested that his partner, Dr. Mark Biletch, a

neuromuscular specialist, examine Kiman. Kiman missed two

appointments, however, and Dr. Botsford did not, at that time,

diagnose Kiman with ALS. Instead, he told Kiman that he might have

ALS or some form of muscular dystrophy.

Kiman returned to the New Hampshire State Prison on a

parole violation in September 1998. He was initially assigned to

the Reception and Diagnostics unit ("R&D"). In R&D, staff

typically place an inmate in "quarantine" for one week, where they

test the inmate for infectious diseases, assess the inmate's

physical condition and medical needs, and obtain any medical

records from the inmate's treating physician. While in quarantine,

inmates may only leave their cells once each day to use the shower.

While in R&D, Kiman informed prison medical staff that he

believed that he had muscular dystrophy. He met with Campbell for

physical therapy sessions. Campbell instructed Kiman to do certain

exercises, including walking. Kiman requested access to the

weight room, but Campbell denied the request. Campbell did not

have Kiman's medical records at the time and did not think that

weight training was necessarily appropriate for his condition.

Kiman continued to make these requests, which Campbell denied,

until she issued him a pass for hand weights only in November 1998.

During his initial R&D screening in late September 1998,

Kiman made several requests for the cane that he had begun using to

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help him walk while on parole. He received his cane on October 2,

1998. The defendants explained that the delay was due to their

need to verify Kiman's need for a cane, for medical and security

purposes. The defendants also noted that, because Kiman was in

quarantine, he did not have the opportunity to walk outside his

small cell except for a daily trip to the shower.

Kiman was housed in the R&D unit from September 23, 1998

until October 19, 1998. On September 24, 1998, Nurse Hoffstede

issued Kiman a bottom bunk pass that was in effect the entire time

he was incarcerated. According to Kiman, after receiving the

bottom bunk pass, he was nonetheless kept in a top bunk except for

when he was housed at the Minimum Security Unit. There was no

ladder to get on the top bunk, so Kiman hoisted himself up to the

bunk, sometimes gaining leverage on the edge of the latrine or sink

in the cell. Because of Kiman's condition, he often had to rely on

his cellmate to get to the top bunk. Kiman also stated in his

deposition that, while housed in R&D, he requested to be placed on

a lower tier but was placed on the third tier, requiring him to use

the stairs to get to the meal area.

Prison medical staff prescribed Kiman medications to

treat his symptoms, including Baclofen (a muscle relaxant) and

Trazodone (an anti-depressant), on an "as-needed" basis. His first

prescriptions for Baclofen and Trazodone were issued for September

24, 1998 through October 24, 1998. Kiman had trouble receiving his

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medication consistently and was experiencing intermittent pain and

severe muscle cramping. He filed an "inmate request slip"4 on

October 8, 1998, complaining that the corrections staff were not

delivering the medications to him. He also requested a higher

dosage of Baclofen and asked for a prescription for Topomax. He

filed two other similar requests over the next few days. Dr.

Charles Ward responded to Kiman's requests by notifying him that he

was scheduling a doctor's appointment for him before ordering a

change in his medication dosages. In responding to Kiman's

complaints about the irregular delivery of his medications,

corrections staff informed Kiman that he was responsible for

requesting renewals of prescriptions when they expired. Kiman did

request the renewal of his prescription for Baclofen on two

occasions, and when his Trazodone ran out, he said he was willing

to try Prozac instead, but then chose not to continue taking it.

4
Under the prison's Policy and Practice Directive (PPD) 1.16, an
inmate who wants to make a request or file a complaint related to
a medical issue must fill out an inmate request slip or request a
"sick call." If unsatisfied with the prison's response, the inmate
may file a grievance with the Warden, and may appeal the Warden's
decision to the Commissioner.
According to Kiman, who described the process of submitting
inmate request slips in his deposition, inmates would place the
request slips in the barrier doors of the cell, and wait for a
corrections officer to pick them up. Usually, a guard would pick
up the request slip at some point each day, but sometimes a few
days would go by before a guard picked up the request. Once the
appropriate prison staff member received the request, a copy of the
request would usually be sent back to the prisoner with a reply.
On some occasions, according to Kiman, he would receive no reply to
his requests.

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However, he continued to complain about the irregular delivery of

his medications, submitting additional inmate request slips on

November 8 and 23, 1998, and complaining to medical staff during

appointments on November 11 and 17, and December 3, 1998.

On October 19, 1998, Kiman was transferred to the Special

Housing Unit ("SHU") after he received a disciplinary report for

"inciting a riot."5 He remained at SHU until November 6, 1998.

While housed in the SHU, Kiman took all of his meals in his cell

and was permitted to leave only to use the shower or for

recreation. Prison staff did not permit Kiman to use his cane

while housed in the SHU because, they explained, it posed too great

a security risk in the maximum security unit. Because Kiman did

not have his cane, he was not allowed to participate in recreation

in the SHU yard. Instead, Dr. Ward issued him a pass to use the

dayroom for recreation, which, in the SHU, was on the same floor as

both Kiman's cell and the showers.

When Kiman was initially transported to the SHU, he was

handcuffed behind his back and escorted by two corrections

officers. Kiman filed an inmate request slip to complain about the

handcuffing behind his back, which caused him shoulder pain. He

also complained about a lack of medications and exercise. Campbell

issued him a front handcuff pass on October 21, 1998. Kiman stated

5
According to the disciplinary report, Kiman had become
"disruptive and belligerent," making disparaging remarks towards
corrections officers while in the R&D yard.

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in his deposition that the corrections officers never honored the

pass and continued to cuff him behind his back. Kiman issued one

inmate request slip complaining about an incident in which a

corrections officer cuffed him behind his back because Kiman did

not have his pass with him. Kiman stated that the officer himself

had Kiman's pass and knew of his medical condition. Prison

officials stated that the accusation that the officer had taken

Kiman's pass "was found to be untrue" and that prison policy

required Kiman to carry the pass with him. However, on at least

one occasion prior to the issuance of the pass, Campbell observed

that Kiman had arrived to a physical therapy appointment handcuffed

in front and using his cane.

On November 6, 1998, Kiman was moved from SHU to the

Closed Custody Unit ("CCU"), where he remained until November 24,

1998. Kiman did not need to take the stairs in the CCU because

everything was on one level. He filed several inmate request slips

reporting severe pain in his shoulder and arm, lack of exercise,

and low doses of medications. He was told to report to sick call

for medical treatment. He also inquired about a consultation with

Dr. Biletch. Dr. Ward responded, explaining that, in his opinion,

a consultation was not necessary because the prison had received

the records regarding Kiman's neurological testing from earlier in

the year. However, after Kiman filed another request, Dr. Ward

ordered a consultation with Dr. Biletch.

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 Kiman was moved to the Minimum Security Unit ("MSU") on

November 24, 1998. While housed in the MSU, Kiman was permitted to

get his medications himself during designated times (rather than

waiting for their delivery) and could use his cane. The beds were

not bunked and thus were accessible from ground level.

Kiman was sent back to R&D on January 4, 1999, pending

review of a disciplinary infraction for disruptive behavior. On

January 5, 1999, Kiman reported that he had fallen in the shower

and had not received adequate care. He requested a shower chair.

A shower seat was left near the showers for his use. However,

according to Kiman's deposition, the security guards used the chair

and would not give him the chair despite his requests. The lack of

a shower chair or handlebars in the shower made it difficult for

Kiman to take a shower. The changes in water temperature would

sometimes trigger cramping in Kiman's muscles, causing him at times

to either fall or, if he felt himself becoming disoriented, sit

down on the shower floor to prevent a fall. When he fell, other

inmates would help him up.

According to his deposition, Kiman also often had trouble

maintaining proper hygiene due to problems with the sink in his

cell. The sink in his cell required him to press down a dial

constantly to get water flow, which Kiman was sometimes too weak to

do. He often relied on his cellmates to help him with grooming and

was sometimes unable to shave on his own. Inmates who were not

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groomed were not allowed to go to meals, and Kiman missed several

meals over the course of his imprisonment.

On January 6, 1999, Kiman requested an "early chow" pass

(also known as a "slow movement" pass). He found it difficult to

wait in long lines, particularly in cold weather, for food.

However, because inmates housed in R&D are either quarantined or

otherwise restrictively confined, they do not eat their meals at

the same time as other inmates. For this reason, prison staff do

not issue early chow passes to inmates housed in the R&D, but will

allow them to take their meals in their cells, a process known as

a "cell feed." Kiman did not request a cell feed while he was in

R&D. Later, when Kiman was to be returned to MSU, where early chow

was permitted, Dr. Ward issued him an early chow pass.

On January 8, 1999, Kiman submitted an inmate request

slip to complain that he was being denied access to the weight room

and to request access to a handicapped shower. He also complained

that he had still not been seen by Dr. Biletch. Dr. Ward explained

to Kiman that Dr. Biletch had to reschedule his appointment due to

a conflict. Dr. Ward did not respond to Kiman's request for a

handicapped shower because he noted that the infirmary had issued

Kiman a shower chair pass. Dr. Ward denied Kiman's request to use

the weight room. Kiman wrote more inmate request slips, requesting

that his passes be renewed and complaining of a lack of physical

therapy. Campbell responded by stating that she was seeing him on

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a regular basis. Dr. Ward stated that all of Kiman's passes would

be renewed.

Dr. Biletch examined Kiman in Manchester on January 21,

1999. Dr. Biletch conclusively diagnosed Kiman with ALS and added

a medication, Riloteck, to Kiman's prescriptions. Kiman returned

to MSU where he remained until he was paroled on January 28, 1999.

Dr. Ward did not order Riloteck for Kiman because the parole board

informed him that Kiman was being released the following week.

Prison medical staff did order that Kiman's other medications be

continued until two weeks after the date of his release.

B. Procedural History

On April 29, 1999, Kiman initiated this action by filing

a charge against the New Hampshire Department of Corrections

("DOC") with the New Hampshire Human Rights Commission. The

Commission informed him that it lacked jurisdiction over Title II

of the ADA and referred him to the United States Department of

Justice ("DOJ"). On May 24, 1999, Kiman filed a complaint under

Title II of the ADA with the Civil Rights Division of the DOJ. The

DOJ ultimately decided not to take action on his behalf. On April

16, 2001, Kiman filed suit in federal court.

The defendants moved to dismiss on August 10, 2001,

arguing that Kiman could not state a claim under Title II because

Congress had exceeded its power under § 5 of the Fourteenth

Amendment when it purported to abrogate the states' Eleventh

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Amendment immunity by adopting Title II. They also argued that

Title II does not provide a cause of action against state officers

in their individual capacities.

The district court granted the defendants' motion to

dismiss, holding that Title II of the ADA was not a valid exercise

of Congress's power to abrogate the states' Eleventh Amendment

immunity. Kiman v. N.H. Dep't of Corr., No. 01-134, 2001 U.S.

Dist. LEXIS 21894 (D.N.H. Dec. 19, 2001). Kiman appealed. A

divided panel of this court reversed and remanded the decision.

Kiman v. N.H. Dep't of Corr., 301 F.3d 13 (1st Cir. 2002)

("Kiman I"). After the defendants filed a petition for rehearing

en banc, an equally divided en banc court withdrew the panel

opinion, Kiman v. N.H. Dep't of Corr., 310 F.3d 785 (1st Cir.

2002), and affirmed the district court's decision without opinion.

Kiman v. N.H. Dep't of Corr., 332 F.3d 29 (1st Cir. 2003) (en

banc). Kiman then petitioned for a writ of certiorari, which the

Supreme Court granted. Kiman v. N.H. Dep't of Corr., 541 U.S. 1059

(2004). The Court remanded the case for further consideration in

light of its decision in Tennessee v. Lane, 541 U.S. 509, 533

(2004) (holding that "Title II, as it applies to the class of cases

implicating the fundamental right of access to the courts,

constitutes a valid exercise of Congress' § 5 authority to enforce

the guarantees of the Fourteenth Amendment"). We then remanded the

case to the district court for further consideration.

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 Following discovery, the parties filed cross-motions for

summary judgment. The defendants also filed a motion for late

entry of answer, three years after the answer was initially due,

which prompted the plaintiff to file a motion for default judgment.

The magistrate judge granted the defendants' motion for late entry

and denied the plaintiff's motion for a default judgment. The

plaintiff did not file written objections to the magistrate's

orders. The district court denied the plaintiff's motion for

summary judgment and granted the defendants' summary judgment

motion, concluding that the undisputed evidence established that

the defendants did not violate Title II of the ADA. In so doing,

the district court declined to reach the issue of whether, in light

of recent Supreme Court jurisprudence, Kiman's Title II claims

against the defendants are barred by the Eleventh Amendment.

Having ruled against Kiman's ADA challenge, the district court

opted not to exercise supplemental jurisdiction over Kiman's state

law claims. Kiman then appealed.

During the pendency of the appeal, the Supreme Court

clarified the Eleventh Amendment sovereign immunity issue in United

States v. Georgia, 126 S. Ct. 877 (2006), an ADA suit for damages

brought by Tony Goodman, a paraplegic prisoner in the Georgia state

prison system. The Court held that "insofar as Title II creates a

private cause of action for damages against the States for conduct

that actually violates the Fourteenth Amendment, Title II validly

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abrogates state sovereign immunity." Id. at 882. The Court noted

that many of Goodman's claims -- involving the state prison's

alleged failure to accommodate Goodman's needs regarding mobility,

medical care, and hygiene -- "were evidently based, at least in

large part, on conduct that independently violated the provisions

of § 1 of the Fourteenth Amendment [incorporating the Eighth

Amendment's prohibition against cruel and unusual punishment]."

Id. at 881. The Court remanded the case for further consideration.

Thus, we begin our analysis by examining whether the

district court properly determined that Kiman failed to establish

any genuine issue of material fact on Title II violations of the

ADA. Concluding that Kiman has offered admissible evidence in

support of his Title II allegations that the district court failed

to consider, we then discuss the remaining issues that the district

court will have to resolve on remand involving the liability of

specific defendants, the abrogation of sovereign immunity in light

of the United States v. Georgia decision, and Kiman's state law

claims.

II.

"We review a district court's grant of summary judgment

de novo, viewing the facts in the light most favorable to the

nonmovant." States Res. Corp. v. Architectural Team, Inc., 433

F.3d 73, 80 (1st Cir. 2005) (internal quotation marks omitted).

Summary judgment is appropriate "if the pleadings, depositions,

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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). "Neither party may

rely on conclusory allegations or unsubstantiated denials . . . to

demonstrate either the existence or absence of an issue of fact."

Magee v. United States, 121 F.3d 1, 3 (1st Cir. 1997); see also

Quinones v. Houser Buick, 436 F.3d 284, 289 (1st Cir. 2006).

A. Title II

Kiman argues that the district court erred by granting

summary judgment in this case because material facts are in

dispute.6 The defendants argue that Kiman has not provided any

admissible evidence establishing that material facts are in

dispute. After carefully considering the record, we conclude that

the district court failed to consider admissible evidence that may

-- depending on the resolution of the issues discussed infra --

6
As part of this argument, Kiman contends that the district court
could not have granted summary judgment in favor of the defendants
while simultaneously denying summary judgment for the plaintiff on
the ground that there were disputed issues of fact. This
contention is wrong. The movant for summary judgment has the
initial burden of demonstrating the absence of disputed issues of
material fact. See Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000). One party may be able to
meet its burden on its motion for summary judgment even if the
other party does not meet its burden on its cross-motion.
Moreover, the facts relied on by one party in order to prevail on
its motion may well be different than the facts relied on by the
other party in order to prevail on its cross-motion.

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establish genuine issues of material fact on whether prison

officials violated Title II of the ADA.7

Title II 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. Federal

regulations implementing Title II require public entities to "make

reasonable modifications in policies, practices, or procedures when

7
While certain issues remain for the district court to consider,
we can dispatch two of the plaintiff's arguments challenging the
district court's judgment. First, he argues that he is entitled to
default judgment due to the defendants' late filing of an answer.
However, Kiman did not file written objections to the magistrate
judge's orders granting the defendants' motion for late entry of
answer and denying the plaintiff's motion for default judgment. As
such, we will not consider his argument now. See 28 U.S.C.
§ 636(b)(1)(C); Negron v. Celebrity Cruises, Inc., 316 F.3d 60, 61
(1st Cir. 2003) (refusing to consider party's claims where party
failed to file timely objection to magistrate judge's order).
Second, Kiman argues that the district court erred by ruling
on the summary judgment motions based on an incomplete record.
However, Kiman's counsel conceded at oral argument that she did not
file a Rule 56(f) motion for an extension of the summary judgment
deadline. See Fed. R. Civ. P. 56(f) ("Should it appear from the
affidavits of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify the
party's opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may
make such other order as is just."). Since Kiman proceeded to
oppose summary judgment without filing a Rule 56(f) motion with the
district court, he cannot now argue that the district court's
ruling was incorrect due to insufficient discovery. See Rodriguez-
Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 23 (1st Cir. 1999)
("Ordinarily, a party may not attempt to meet a summary judgment
challenge head-on but fall back on Rule 56(f) if its first effort
is unsuccessful.") (internal quotations marks omitted).

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the modifications are necessary to avoid discrimination on the

basis of disability, unless the public entity can demonstrate that

making the modifications would fundamentally alter the nature of

the service, program, or activity." 28 C.F.R. § 35.130(b)(7).8

A plaintiff seeking relief under Title II "must

establish: (1) that he is a qualified individual with a disability;

(2) that he was excluded from participating in, or denied the

benefits of a public entity's services, programs, or activities or

was otherwise discriminated against; and (3) that such exclusion,

denial of benefits, or discrimination was by reason of his

disability." Parker, 225 F.3d at 5. In cases where the alleged

violation involves the denial of a reasonable

modification/accommodation,9 "the ADA's reasonable accommodation

requirement usually does not apply unless 'triggered by a

request.'" Reed v. Lepage Bakeries, Inc., 244 F.3d 254, 261 (1st

Cir. 2001) (discussing the request requirement in the Title I

context). This is because a person's "disability and concomitant

need for accommodation are not always known . . . until the

8
"Because Congress explicitly authorized the Attorney General to
promulgate regulations under the ADA, see 42 U.S.C. § 12134(a), the
regulations 'must [be given] legislative and hence controlling
weight unless they are arbitrary, capricious, or plainly contrary
to the statute.'" Parker, 225 F.3d at 5 n.5 (quoting United States
v. Morton, 467 U.S. 822, 834 (1984)).
9
Generally, the cases construing "reasonable accommodations" are
persuasive authority with respect to cases involving "reasonable
modifications." See McGary v. City of Portland, 386 F.3d 1259,
1266 n.3 (9th Cir. 2004).

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[person] requests an accommodation." Id. However, "sometimes the

[person]'s need for an accommodation will be obvious; and in such

cases, different rules may apply." Id. at 261 n.7.

The defendants do not contest that Kiman is a "qualified

individual with a disability." 42 U.S.C. § 12132. Rather, they

argue that they complied with Title II's requirements, providing

Kiman with the reasonable modifications that he requested, except

where accommodating his requests would endanger prison security.

The district court agreed with the defendants and concluded that

Kiman had presented no admissible evidence showing a violation of

Title II.

Specifically, the district court rejected Kiman's

argument that the defendants inadequately diagnosed and treated his

disability. The court found that Kiman's doctors at the prison

followed the relevant diagnostic protocol and properly treated his

condition, and that any delays in diagnosis were due to scheduling

conflicts and other issues beyond the defendants' control. The

district court did not directly address Kiman's claims that the

defendants denied him access to his prescription medications, but

noted that the defendants renewed the prescriptions for these

medications several times while he was incarcerated.

The district court also rejected Kiman's argument that

the defendants failed to provide him with certain reasonable

modifications. Kiman argued that the defendants had violated the

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ADA by denying his request for the use of his cane, denying his

request for an early chow pass, handcuffing him behind his back

despite a prison pass permitting him to be handcuffed in front,

refusing to provide him with a shower chair or accessible shower

facilities, housing him on the third tier of the prison, requiring

him to sleep on the top bunk, and failing to provide accessible

facilities in his cell. The district court found that the

defendants' decisions to withhold the cane, early chow pass, and

front handcuffing for certain periods were based on security

concerns and did not violate Title II requirements. The district

court also found that the defendant failed to provide any

admissible evidence that he submitted an inmate request slip

requesting to be housed on a lower tier, that he filed a complaint

that his bottom bunk pass was not being honored, or that he

requested handicapped facilities in his cell.

As we explain in further detail below, while we agree

with many of the district court's conclusions, we conclude that

Kiman has presented admissible evidence that may demonstrate four

genuine issues of material fact on whether prison officials failed

to (1) provide Kiman with regular access to his prescription

medications; (2) provide Kiman with access to a shower chair or

accessible shower facilities; (3) honor Kiman's front cuff pass;

and (4) honor Kiman's bottom bunk pass or accommodate his request

to be placed on a lower tier. We begin by addressing the district

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court findings with which we agree, and then focus on the four

aforementioned issues.

1. No Genuine Issue of Material Fact

a. Diagnosis and Treatment of Kiman's ALS

Kiman challenges many of the decisions that the

defendants made regarding his medical care and treatment after his

ALS symptoms first appeared. He argues that his condition worsened

because the defendants were incompetent in diagnosing him, failed

to seek a specialist consultation promptly, failed to provide him

with the appropriate physical therapy, prescribed inadequately low

dosages of his medications, and failed to provide him with regular

access to his medications.

Medical care is one of the "services, programs, or

activities" covered by the ADA. See Georgia, 126 S. Ct. at 881

(stating that the "deliberate refusal of prison officials to

accommodate [the plaintiff's] disability-related needs in such

fundamentals as . . . medical care . . . constituted 'exclu[sion]

from participation in or . . . den[ial of] the benefits of' the

prison's 'services, programs, or activities'" (quoting 42 U.S.C.

§ 12132)). However, courts have differentiated ADA claims based on

negligent medical care from those based on discriminatory medical

care. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144

(10th Cir. 2005) ("[P]urely medical decisions . . . do not

ordinarily fall within the scope of the ADA or the Rehabilitation

-22-
Act."); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) ("The

ADA does not create a remedy for medical malpractice."). As we

have previously explained,

a plaintiff's showing of medical
unreasonableness [under the Rehabilitation
Act] must be framed within some larger theory
of disability discrimination. For example, a
plaintiff may argue that her physician's
decision was so unreasonable -- in the sense
of being arbitrary and capricious -- as to
imply that it was pretext for some
discriminatory motive, such as animus, fear,
or apathetic attitudes. Or, instead of
arguing pretext, a plaintiff may argue that
her physician's decision was discriminatory on
its face, because it rested on stereotypes of
the disabled rather than an individualized
inquiry into the patient's condition -- and
hence was unreasonable in that sense.

Lesley v. Chie, 250 F.3d 47, 55 (1st Cir. 2001) (internal quotation

marks and citations omitted) (concluding that doctor's decision to

refer HIV-positive patient to another hospital was not so

unreasonable as to constitute discrimination under the

Rehabilitation Act).10

Kiman has not established that the defendants' actions

regarding his diagnosis, medical consultations, physical therapy,

or medical dosages were so unreasonable as to demonstrate that they

were discriminating against him because of his disability. As the

10
Because Title II of the ADA is modeled on § 504 of the
Rehabilitation Act, Pub. L. No. 93-112, 87 Stat. 355 (1973)
(codified as amended in scattered sections of 29 U.S.C.), "we rely
interchangeably on decisional law applying § 504." Parker, 225
F.3d at 4.

-23-
district court noted, prison medical staff sought Kiman's medical

records, arranged an outside specialist consultation, and made

reasoned medical judgments about the types of treatment and

physical therapy that they thought were appropriate in his case.

Kiman presents no evidence, beyond his conclusory arguments, that

the defendants' medical treatment decisions violated Title II of

the ADA. When the decision being challenged is "simply a reasoned

medical judgment with which the patient disagreed," it is more

appropriate for the patient to turn to "state medical malpractice

law, not [the ADA]." Lesley, 250 F.3d at 58.

b. Request for a Cane

Kiman argues that the defendants violated Title II by

denying him the use of his cane for two periods: (1) when he

returned to prison and was "quarantined" in September 1998 and (2)

when he was housed in SHU, a high security unit. While the

district court noted that Kiman requested the use of his cane

during these periods, it concluded that the prison had appropriate

reasons for denying his requests.

The district court found that, during the initial

quarantine period, the defendants were attempting to verify Kiman's

need for the cane for both medical and security reasons. Kiman had

not used a cane when he was previously in the prison and, at the

time he reentered the prison in 1998, was able to walk without it.

The defendants emphasize that, during his initial quarantine

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period, Kiman was confined to his cell at all times except for a

short daily walk to and from his shower. The defendants argue that

his medical need for the cane was not obvious and that corrections

officers would have been available to help Kiman on his walk to his

shower, if he had requested their assistance. On these facts, we

agree that the defendants' delay in permitting Kiman the use of his

cane while they verified his need for it was not a violation of

Title II.

Kiman was eventually permitted to use his cane, but

during his stay at the SHU (a maximum security unit), the

defendants took away his cane for security reasons. Inmates in the

SHU left their cells only for showers and recreation. The

defendants again explain that corrections officers would have been

available to help Kiman walk to the shower, if he had requested

their assistance. Without his cane, however, Kiman was not

permitted to visit the prison yard for outdoor recreation. Upon

learning of this, his doctor issued Kiman a day pass to use the

dayroom for recreation. The district court noted that Kiman does

not point to any other prison program or service that he was unable

to participate in because he did not have a cane, which the

district court noted could be used as a weapon. We agree that

Kiman has failed to establish that the defendants violated Title II

by denying him the use of his cane while he was placed in the SHU.

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 c. Request for Early Chow Pass

On January 6, 1999, Kiman requested an "early chow" or

"slow movement" pass, which would have allowed him to bypass the

long lines for meals. At the time of his request, Kiman was housed

in the R&D unit pending administrative review of an alleged

disciplinary infraction. Due to heightened disciplinary concerns,

inmates housed in the R&D do not eat their meals at the same time

as the rest of the inmate population. Thus, "slow movement" passes

are not available to them. Instead, inmates may request a "cell

feed," i.e., the option of eating their meals in their cells.

Kiman has presented no evidence that he requested a cell feed. We

agree with the district court that Kiman has not established a

triable issue of fact with regard to this requested accommodation.

2. Potential Issues of Material Fact

We are not without sympathy for the district court, which

was faced with a ponderous record and insufficient help from

counsel. Nevertheless, we conclude that the district court erred

in failing to consider evidence that may create a genuine issue of

material fact related to the defendants' denial of Kiman's access

to prescription medications, a shower chair or accessible shower

facilities, front cuffing, and bottom tier and bunk placements. We

address these issues in turn.

-26-
 a. Access to Prescription Medications

Kiman argues that corrections officers routinely failed

to provide him access to the medications prescribed by his doctors.

Kiman issued inmate request slips on October 8, 12, 14, and 19,

1998, complaining of the failure of corrections officers to deliver

his medications on a timely and regular basis. Prison medical

staff responded by informing Kiman that it was his responsibility

to request a renewal of his prescriptions after they had expired.

The district court noted this fact. However, according to the

affidavit of Judith LaForest, Department of Corrections Director of

Pharmacy, Kiman's initial prescriptions were valid from September

24 through October 24, 1998, and thus had not expired during the

period of time he complained that he was not receiving the

medications. Kiman also continued to complain about the irregular

delivery of his medications, submitting additional inmate request

slips on November 8 and 23, 1998, and mentioning the problem with

medical staff during appointments on November 11 and 17, and

December 3, 1998. According to Kiman's deposition, he experienced

problems receiving his medication off and on throughout his time in

prison.11 At no time did prison officials address his complaints

11
In response to questions about receiving medication in his
deposition, Kiman stated that "my medications were so sporadic I
couldn't even begin to tell you when I got my medications because
there was days I didn't get them and possibly even weeks" and that
"there was no . . . time at prison that I ever received my
medication properly on a daily basis or the right dosage."

-27-
except to tell Kiman that he should renew his medications when they

expire.12

Access to prescription medications is part of a prison's

medical services and thus is one of the "services, programs, or

activities" covered by the ADA. See Georgia, 126 S. Ct. at 881.

Unlike the defendants' decisions regarding the diagnosis and

treatment of Kiman's ALS, the defendants' failure to give him

access to his medications is not, on these facts, a medical

"judgment" subject to differing opinion -- it is an outright denial

of medical services. Kiman has presented evidence supporting his

assertions that he was not receiving his medication on a regular

basis, that he informed prison officials, and that they did not act

despite his repeated requests. Given the defendants'

acknowledgment of Kiman's serious disability and his acknowledged

need for these medications, Kiman may have demonstrated a triable

issue of fact as to whether some corrections officers and prison

medical officials failed to provide him with access to his

prescription medications in violation of Title II of the ADA.

12
The prison apparently does not keep records on whether prisoners
are receiving their medications on a timely basis. Instead,
according to LaForest's affidavit, the prison pharmacy keeps track
of how much medication prisoners return to the pharmacy as a means
of tracking prisoner compliance. For example, if no pills are
returned to the pharmacy, pharmacy staff assume that the prisoner
has taken all of his medication. Of course, the other possibility
is that the prisoner did not receive his medication. LaForest
noted that only two tablets of Baclofen and none of the Trazodone
were returned to the pharmacy from September 24 through October 24,
1998.

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 b. Access to a Shower Chair or Accessible Shower
Facilities

Kiman argues that corrections officers prevented him from

using a shower chair that had been provided for him and did not

respond to his requests for accessible shower facilities. The

district court concluded that "Kiman . . . has presented no

admissible evidence that corrections officers prevented him from

using a shower chair. All he offers is an unsubstantiated

allegation on this point." The district court acknowledged that

Kiman had requested accessible shower facilities, but noted that

Dr. Ward did not respond to this request because he knew that Kiman

had been issued a shower chair pass. The court thus rejected

Kiman's claims regarding this accommodation.

However, after carefully reviewing the record, we

conclude that Kiman has presented admissible evidence that

corrections officers prevented him from using the chair. Kiman

stated in his deposition that a shower chair was brought near the

showers in R&D for his use, but corrections officers would sit on

the chair and refuse to allow him to use it despite his repeated

requests.13 Kiman also stated in his deposition that there was one

13
Q: And did you ever receive a shower chair?
A: I never received a shower chair.
Q: Was a shower chair ever brought to the shower area?
A: There was a shower chair brought when I was in R&D, not in my
unit, but where a guard would sit when people were out on meal time
or guard. He used my shower chair.
Q: He used your shower chair? And did you ask him if you could

-29-
shower available for individuals with disabilities in the MSU, but

the defendants did not give him access to that shower despite his

requests.14

The defendants acknowledged, through the issuance of a

shower chair pass, Kiman's serious disability-related needs. Yet

Kiman has presented evidence that corrections officers prevented

him from using the shower chair or accessible shower facilities

use your shower chair?
A: Every day, all the time, whenever I was out to take a shower,
I would ask to use that chair.
Q: And what would his response be?
A: And when I say he, I mean whoever was on. I don't mean one
person. . . . I never got the chair.
Q: Did they say anything to you?
A: Not much, no.
Q: They just refused to give up the chair?
A: Yeah, exactly.
Q: And so how did you shower?
A: Same way I always did, just get in and get out, just, feel
something coming on, just sit down before you fall in.
Q: Now, you were in, when you fell in the shower, were there any
handicapped rails or –
A: No.
Q: No? Were there any hand, were you ever offered the use of any
handicapped showers?
A: No.
Q: Were you ever offered the use of any handicapped facilities?
A: No.
14
Q: Were there ever any handicapped facilities in any of the cells
you inhabited at the prison?
A: My only recollection of wherever I was in that prison, it was
like there might have been one shower or something in MSU that had
a little thing on it. That's it. Other than that, no.
Q: Were you allowed to use that shower at MSU?
A: If somebody was in it, you don't get it.
Q: Did you have to make a special request?
A: As I did regularly.
Q: And was it honored?
A: No.

-30-
despite his repeated requests. We therefore conclude that Kiman

has presented admissible evidence regarding his access to a shower

chair and facilities. See Schmidt v. Odell, 64 F. Supp. 2d 1014,

1033 (D. Kan. 1999) (denying defendants' summary judgment motion,

concluding that "there is a genuine issue of fact as to whether the

defendants failed to make reasonable accommodation for plaintiff's

disability, including by . . . failing to timely provide a shower

chair"); Kaufman v. Carter, 952 F. Supp. 520, 532-33 (D. Mich.

1996) (denying defendants' summary judgment motion where plaintiff

provided evidence that prison failed to provide him with a shower

chair or accessible shower facilities).

c. Request for Front Cuff Pass

Kiman argues that it was a violation of Title II for

corrections officers to handcuff him behind his back. Because of

the cramping of muscles in his shoulders, handcuffing him behind

his back caused him pain, and also prevented him from using his

cane to support himself as he walked. Campbell issued a front cuff

pass for him. The district court stated that "[t]he record reveals

only one instance in which Kiman was handcuffed behind his back

after Bernadette Campbell issued him a front cuff pass shortly

after he requested one." The district court noted that prison

staff conducted an investigation of the incident and determined

that Kiman had not been carrying his front handcuff pass with him

-31-
at the time and thus it was reasonable for them to cuff him behind

his back due to the lack of verification of his needs.

However, Kiman presented evidence through his deposition

testimony that corrections officers would not honor his front cuff

pass during the times they cuffed him.15 Given that he was often

cuffed when taken out of his unit to and from prison programs and

services, the pain caused by the lack of front cuffing affected his

access to a variety of the "services, programs, or activities"

covered by Title II of the ADA. 42 U.S.C. § 12132. The defendants

acknowledged the importance of this accommodation by issuing the

15
Kiman stated repeatedly during his deposition that his hands were
not cuffed in the front after the issuance of the front cuff pass:
Q: [D]o you recall ever having a physician's order indicating
how your hands should be cuffed because of your disorder?
A: I know there was one issued eventually. . . . I actually
had a handcuff pass similar to that bottom bunk pass.
Q: And were they handcuffed in the front?
A: No.
...
Q: [T]here was an order that your cuffs, were to be, you
would be cuffed in front; is that correct?
A: Right.
Q: And were you cuffed in front?
A: No.
Q: Was there any acknowledgment or any, did they pay any
attention to that physician's order?
A: No. My physician's order was never paid attention to at
all.
. . .
Q: Were you, at any point in time when you were in CCU, cuffed
with your hands in the inappropriate cuffing position for you?
A: Oh, yeah. If you ever left the unit to go somewhere,
you're being cuffed.
Q: Did they cuff it according to your doctor's orders?
A: No.
Q: Okay. So that order was ignored?
A: That order was ignored . . . .

-32-
front cuff pass. However, they argue that prison policy required

that Kiman carry his pass with him at all times and that, at least

in one instance, Kiman was not carrying his pass.

The evidence indicates Kiman had informed the defendants

that, on that occasion, the corrections officer who would not cuff

him in front knew that he had a pass and in fact had taken the pass

from him. The defendants' statement that Kiman's accusation "was

found to be untrue," without more, does not demonstrate the absence

of a triable issue of fact on this issue. See Magee, 121 F.3d at

3 ("Neither party may rely on . . . unsubstantiated denials . . .

to demonstrate either the existence or absence of an issue of

fact."). Furthermore, one can infer from Kiman's deposition

statements that corrections officers failed to honor his front pass

on more than that one occasion. On these facts, we believe that

there is a dispute as to whether corrections officers refused to

honor Kiman's front cuff pass and requests for front cuffing.

d. Request for a Bottom Bunk Pass, a First Tier
Assignment, and Accessible Cell

Kiman also argues that he was forced to reside on the

third tier of the prison and sleep in a top bunk. The district

court found that Kiman never formally requested accommodations,

emphasizing the requirement that Kiman submit an inmate request

slip or file a formal complaint. "Kiman has presented no evidence

that he submitted either a proper request to be moved from the

-33-
third tier or a complaint that his bottom bunk pass, issued the day

after he returned to prison, was not being honored. Similarly,

there is no record evidence that he ever asked to be housed in a

cell equipped with handicapped bathroom and shower facilities."

The district court is correct that the record does not

indicate whether Kiman requested to be placed in an accessible

cell. However, there is evidence, in the form of Kiman's

deposition testimony, that he requested to be placed on a bottom

tier and in a bottom bunk, but was not accommodated.16 Kiman has

presented evidence that he informed the defendants of the serious

nature of his disability and they had acknowledged, by issuing the

bottom bunk pass and cane pass, that Kiman had mobility problems

that required certain accommodations. Yet, according to Kiman's

deposition, corrections officers nonetheless failed to respond to

his request for a lower tier or his complaint that he was being

kept on a top bunk. This presents an issue of fact regarding

16
Q: You told me that you were in a bottom bunk in MSU, right?
A: I was in a single bed, yes.
. . .
Q: [W]as there any other time when you were allowed a bottom bunk?
A: I cannot recollect that. All my paperwork, and from what I
remember, I was always on a top bunk. I might have been on a
bottom bunk once, but –
Q: Do you remember?
A: Like I say, I requested to go to the bottom. I requested . .
. to go to the bottom tier. They put me on a third tier. I
requested that I can't get up in my bunk without help from a
cellmate, and I was kept on a top bunk.

-34-
whether the corrections officers failed to provide him with these

reasonable accommodations.

In summary, we conclude that Kiman has presented evidence

establishing factual disputes that might, depending on the

resolution of the issues discussed infra, be material and,

therefore, suffice to resist summary judgment on whether

defendants denied him access to (1) his prescription medications,

(2) a shower chair or accessible shower facilities, (3) front

cuffing, and (4) lower tier and bottom bunk placements, in

violation of Title II.

B. Remaining Issues for Consideration

As discussed above, evidence from Kiman's deposition, not

addressed by the district court, and viewed in Kiman's favor as it

must be on summary judgment, may permit a factfinder to conclude

that Kiman's rights under Title II of the ADA were violated by

prison officials. For this reason, remand is warranted. However,

having identified these issues, we recognize that there are still

significant hurdles for Kiman to overcome.

1. Defendants' liability

Several courts have held that Title II does not provide

for suits against state officials in their individual capacities.

See, e.g., Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002);

Garcia v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98, 107

-35-
(2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005

n.8 (8th Cir. 1999). The district court did not reach this issue

in its opinion, nor did the parties present it on appeal. Earlier

in the long proceedings in this case, the plaintiff stated that he

would drop suit against the prison officials in their individual

capacities, see Kiman I, 301 F.3d at 17, but this has not

happened.17 On remand, the district court will have to consider

this issue.

If the various defendants can be sued in their individual

capacities, a discrete analysis of their respective roles in the

four claims still at issue would be necessary to determine which

defendants should remain subject to potential liability (and on

which claims). If an individual was not involved in one or more of

those claims, the district court must grant his or her motion for

summary judgment to that extent (or, if a defendant was not

involved in any of the claims, totally).

Regardless of whether the defendants can be sued in their

individual capacities, a discrete analysis of the claims still at

issue would be necessary to establish the state's ultimate

17
We assume that Kiman's statement was made with respect to his
Title II claims against the defendants. Assuming his state law
claims are viable, Kiman could pursue those claims against some of
the defendants in their individual capacities.

-36-
responsibility for the individuals' actions.18 The defendants argue

that they were not on notice of Kiman's problems due to his failure

to pursue the full grievance procedure in several instances. It is

an open question whether Kiman must have formally complied with the

prison's grievance procedure, in addition to any informal

complaints made to prison guards and staff, in order to pursue

claims of Title II violations against the prison. Under the ADA,

a person normally must make a specific request for the modification

in question, see Reed, 244 F.3d at 260, and the New Hampshire State

Prison crafted its grievance procedures so that it could address

prisoners' complaints. If a prison is faithful in utilizing its

grievance procedure and inmates clearly recognize that compliance

with that procedure is the only acceptable method for airing their

complaints, it may well be that a prisoner must follow that

procedure before pursuing a Title II claim. However, in the Eighth

Amendment context, the lack of formal compliance with a grievance

procedure is not a defense to liability for those prison officials

who were aware of a prisoner's serious medical needs and refused to

help. See Alsina-Ortiz v. Laboy, 400 F.3d 77, 82 (1st Cir. 2005)

(noting that prisoner's failure to file a formal complaint of

inadequate care "hardly negates the possibility that he was

18
Suing state officials in their official capacities is tantamount
to suing the state. See New Eng. Reg'l Council of Carpenters v.
Kinton, 284 F.3d 9, 14 n.1 (1st Cir. 2002).

-37-
manifestly in need of attention" and that a prison official knew of

his needs yet refused to assist him or advise other staff, in

violation of his Eighth Amendment rights). We have not addressed

this issue in the Title II context. On remand, the district court

will have to consider this issue carefully.

2. Sovereign Immunity

The district court will also have to address the issue of

sovereign immunity. The defendants argued that the state's

sovereign immunity was not validly abrogated by Title II of the

ADA. The district court did not address this issue in its opinion.

The Supreme Court's recent decision in Georgia clarifies the

appropriate inquiry on remand. The district court will have to

determine, on an issue-by-issue basis, "to what extent [the alleged

Title II violations] also violated the Fourteenth Amendment" and

"insofar as such misconduct violated Title II but did not violate

the Fourteenth Amendment, whether Congress's purported abrogation

of sovereign immunity as to that class of conduct is nevertheless

valid." See Georgia, 126 S. Ct. at 882.19

19
Kiman did not argue that the defendants' conduct violated his
constitutional rights in his briefs before the district court or on
appeal. He argued more generally that Congress could abrogate the
state's sovereign immunity through Title II of the ADA, without
regard to the distinction between alleging violations of
constitutional rights or violations of Title II that are
prophylactic in nature. We will not fault him for failing to
anticipate the Supreme Court's precise holding in Georgia. The
district court should examine whether a reasonable factfinder could
conclude that the defendants' conduct violated Kiman's rights under

-38-
 3. State law claims

Because the district court granted summary judgment in

favor of the defendants on Kiman's ADA claim, the court declined to

exercise supplemental jurisdiction over his state law claims.

Assuming that, after the analysis outlined above, some of Kiman's

Title II claims against the defendants remain viable, the district

court will have to assess his state law claims as well.

III.

After carefully reviewing the record, we conclude that

Kiman presented relevant evidence on his Title II claims, which, at

this point, precludes a conclusion that the defendants have carried

their burden of establishing the absence of genuine issues of

material fact. In order to determine whether they have carried

that burden, the district court will need to address the issues we

have highlighted. We intimate no view as to how the court should

resolve those issues or as to how it ultimately should rule on the

vital question of whether any or all of the defendants have shown

an entitlement to summary judgment.

Because we conclude that summary judgment was

improvidently granted, we vacate the district court's order and

remand for proceedings consistent with this opinion.

the Fourteenth Amendment, including his Eighth Amendment rights.
See Georgia, 126 S. Ct. at 881.

-39-
So ordered. Costs are awarded to the appellant.

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