Latest First Circuit Decision in Kiman

Yesterday, the First Circuit issued an opinion in Kiman v. New Hampshire Department of Corrections. The case is an ADA Title II case filed by a former New Hampshire prisoner with ALS. Kiman claims that the state failed to accommodate his disability in various ways while he was incarcerated. The case has been bouncing around the courts for a while now (and I provided some assistance to Kiman's counsel at an earlier stage of the case). The district court first dismissed on sovereign immunity grounds, then a divided panel of the First Circuit reversed and held that the ADA validly abrogated state sovereign immunity, then the court took the case en banc and ultimately split 3-3 (thus affirming the district court's dismissal), then the Supreme Court vacated and remanded in light of Tennessee v. Lane. The First Circuit sent the case back down to the district court, and the district court granted summary judgment to the state on the ground that Kiman had not presented sufficient evidence to raise a triable issue that the state had violated the ADA. In yesterday's opinion, the First Circuit reversed the district court's decision and sent the case back down once again. The court ruled that Kiman had raised triable issues of fact on a number of aspects of his ADA claim. It remanded for consideration of that claim, as well as consideration whether, in light of United States v. Georgia, the ADA does validy abrogate New Hampshire's sovereign immunity in this case.