Appellate Case: 22-3243 Document: 010111072041 Date Filed: 06/28/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 28, 2024 _________________________________ Christopher M. Wolpert Clerk of Court CHRIS HAULMARK,
Plaintiff - Appellant,
v. No. 22-3243 (D.C. No. 6:21-CV-01182-EFM-TJJ) CITY OF WICHITA; BRANDON (D. Kan.) WHIPPLE, in his official capacity as the Mayor of the City of Wichita,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BALDOCK, and McHUGH, Circuit Judges. _________________________________
Pro se Plaintiff-Appellant Chris Haulmark, who is deaf, sued the City of
Wichita and its mayor, Brandon Whipple, under Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12132. He alleged they had deprived him of the
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-3243 Document: 010111072041 Date Filed: 06/28/2024 Page: 2
benefits of services, programs, and activities provided to the public through the
City’s official social media pages and the mayor’s personal campaign Facebook page.
The district court (1) denied Mr. Haulmark’s motion to compel discovery
concerning the mayor’s personal campaign Facebook page, (2) granted summary
judgment to the Defendants, and (3) denied Mr. Haulmark’s motion for leave to
amend his complaint. As part of its reasoning, the court said the mayor’s campaign
page was not a service, program, or activity of the City under the ADA.
After Mr. Haulmark appealed, the Supreme Court decided Lindke v. Freed,
601 U.S. 187 (2024). There, the Court determined that “a public official’s social-
media activity constitutes state action under [42 U.S.C.] § 1983 . . . if the official
(1) possessed actual authority to speak on the State’s behalf, and (2) purported to
exercise that authority when he spoke on social media.” 601 U.S. at 198. We
requested supplemental briefing. In their briefs, both sides acknowledge that Lindke
may be relevant here but disagree about how it should apply.
We conclude that (1) the district court should not have granted summary
judgment on Mr. Haulmark’s claims involving the City’s social media pages, and
(2) Lindke calls for the district court to reconsider its rulings concerning the mayor’s
personal campaign Facebook page.
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Exercising jurisdiction under 28 U.S.C. § 1291, we reverse summary judgment
in part, vacate the district court’s judgment in part, and remand for further
proceedings.1
I. BACKGROUND
A. Mr. Haulmark’s Claims
Mr. Haulmark claimed that (1) the City’s social media pages and (2) the
mayor’s campaign page denied him access to public benefits and services in violation
of Title II of the ADA. The complaint named the mayor only in his official capacity.
We briefly recount the claims.
The City’s Social Media Pages
Mr. Haulmark’s complaint alleged that the City’s official Facebook and
YouTube pages denied him and other deaf and hard-of-hearing individuals “access to
. . . benefits that . . . individuals without hearing disabilities are able to take
advantage of.” ROA at 345.
Facebook and YouTube provide auto-captioning for certain videos posted on
their platforms, including videos posted on the City’s social media pages. In
addition, before receiving notice of Mr. Haulmark’s complaint, the City’s pages
contained captioning provided by a third-party vendor for pre-recorded and live
videos. After Mr. Haulmark filed his complaint, the City purchased in-house
1 Mr. Haulmark proceeds pro se, so “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
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captioning equipment. It claimed this equipment achieved full functionality by
November 2021.
Although Mr. Haulmark did not dispute the Defendants’ facts concerning the
City’s efforts to provide captioning, see ROA at 236-37 (City’s statement of
undisputed facts 7, 10-12); id. at 330 (Haulmark’s response admitting City’s factual
statements), he claimed that some of the City’s online videos lacked captions, see id.
at 345, and that the captioning the City did provide inadequately communicated to
deaf and hard-of-hearing individuals.
The Mayor’s Campaign Page
The mayor’s Facebook campaign page was (and currently is) accessible at
https://www.facebook.com/VoteWhipple.2 In their summary judgment briefing, the
Defendants asserted:
(1) the page included “an email address and phone number that are not associated with Defendant City of Wichita,”
(2) its banner picture included “Defendant Whipple’s three children, as well as a smaller picture of Defendant Whipple and his wife,” and
(3) the page was linked to a donation and support page for the mayor as a political candidate.
ROA at 237.
Mr. Haulmark complained that the mayor performed his official duties on the
campaign page through live video streams that provided information about City
2 Last visited June 27, 2024 - https://perma.cc/3NJU-M3ES.
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police department reform, transportation issues, and the COVID pandemic. ROA at
341-42. In opposing summary judgment, Mr. Haulmark said the mayor provided
“critical health and safety information” and “responses from a variety of local, state,
and federal level authorities.” ROA at 337. The mayor also allegedly “solicit[ed]
audience questions” and the public’s “thoughts and opinions.” ROA at 337-38. Mr.
Haulmark claimed the mayor characterized his campaign page as an “official page.”
ROA at 340.
Mr. Haulmark further alleged that the campaign page is inaccessible to deaf
and hard-of-hearing individuals and that the mayor had banned him from the page for
raising accessibility issues. He claimed that because the mayor conducted official
City business on this page and because that page provides access to “services,
programs, or activities” of the City, § 12132, he suffered an ADA Title II violation.3
B. District Court Orders
On appeal, Mr. Haulmark challenges three district court orders.
Denial of Mr. Haulmark’s Motion to Compel Discovery
Mr. Haulmark moved to compel discovery concerning the mayor’s campaign
page. His motion sought information about the page’s content, changes made to it,
3 Brandon Whipple is no longer the Wichita mayor. The campaign page claim is not moot because Mr. Haulmark sued Mayor Whipple in his official capacity and seeks damages. See ROA at 35; Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir. 2006) (claim for compensatory damages for past conduct was not moot).
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persons blocked from it, the individuals responsible for managing it, and
communications between the mayor and others through the page.
A magistrate judge denied his motion, concluding Mr. Haulmark had “not
shown that his discovery requests relating to [the mayor’s] personal campaign
finance Facebook page are relevant to this [ADA] case.” ROA at 185.
The district court upheld the magistrate judge’s order, stating that
(1) it could find no case law suggesting that the mayor’s activities on his campaign page had denied Mr. Haulmark the benefit of the City’s services;
(2) the City had not violated ADA regulations that prohibited entities from discriminating through contractual, licensing, or other arrangements, because “to consider communications on a public employee’s campaign page as services of the public entity is a bridge too far,” ROA at 229; and
(3) even if Mr. Haulmark sought only to ensure that the video or audio recordings relevant to the City’s business that were posted to the campaign page met ADA standards, “[t]here is simply no support in the law for [his] assertion that Title II requires public entities to fund accessibility services on employees’ personal social media accounts or campaign pages simply because the employees reference the entity’s official business.” ROA at 230.
Summary Judgment for the City and Mayor
The district court granted summary judgment on both claims.
a. The City’s social media pages
On the claim concerning the City’s Facebook and YouTube pages, the district
court found that before Mr. Haulmark filed his complaint, the City had already
provided (1) “captioning for both pre-recorded and live videos through a third-party
service provider” and (2) automatic captioning for some videos through Facebook
and YouTube. ROA at 923. It further found that after Mr. Haulmark filed his
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complaint, the City “purchased in-house captioning equipment, bringing these
systems up to full functionality by November 2021.” Id.
The district court determined that Mr. Haulmark had “presented no evidence of
the City’s failure to provide reasonable accommodations to deaf individuals.” ROA
at 929. It pointed to the captioning the City had provided and concluded that the
defendants “offered [Mr.] Haulmark reasonable accommodations and . . . [he] simply
failed to take advantage of them.” ROA at 930 (quotations omitted).
b. The mayor’s campaign page
On the campaign page claim, the court cited the ADA’s definition of a “public
entity,” which includes “any State or local government; [or] any department, agency,
special purpose district, or other instrumentality of a State or States or local
government.” 42 U.S.C. § 12131(1). Based on this definition, it noted that neither
the mayor nor the campaign page is a public entity and thus the mayor “cannot be
held liable under Title II for denying his own private services to others or
discriminating against others.” ROA at 928. The court also determined that neither
the mayor’s campaign nor his campaign page is a “public entity’s service, program,
or activity,” and the page therefore poses no barrier under Title II to the City’s
services, programs, and activities. Id.
Denial of Mr. Haulmark’s Motion to Amend
Six months after the scheduling order deadline had passed for amending the
complaint, Mr. Haulmark moved to amend. His motion identified six additional
claims, including “Section 1983 claims relating to free speech, petitioning the
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government, and retaliation, and to add [the mayor] in his individual capacity as a
new party.” ROA at 277.
The district court denied the motion. It found that
(1) Mr. Haulmark had offered no adequate explanation for his six-month delay in seeking to amend after the deadline had expired;
(2) allowing him to add the new claims while the defendants’ motion for summary judgment was pending would prejudice the defendants; and
(3) he had presented no new evidence to support his new claims and had made no showing of diligent efforts to meet the scheduling order deadline.
II. DISCUSSION
We reverse the district court’s summary judgment concerning the City’s
social media pages. We further conclude the summary judgment decision on
the mayor’s campaign Facebook page should be vacated and remanded in light
of the Supreme Court’s recent decision in Lindke v. Freed and of any related
need for additional development of the factual record. We also vacate the
rulings on the motions to compel discovery and for leave to amend and remand
for reconsideration.
A. Title II of the ADA
To state a claim under Title II of the ADA, a plaintiff must allege:
(1) he is a qualified individual with a disability;
(2) he was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and
(3) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.
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Crane v. Utah Dep’t of Corr., 15 F.4th 1296, 1312 (10th Cir. 2021) (quotations
omitted).
A “public entity” includes any State or local government, department, agency,
special purpose district, or other instrumentality of a State or States or local
government. § 12131(1). And “an agency’s services, programs, and activities refer
to the ‘outputs’ it provides some public constituency.” Elwell v. Okla. ex rel. Bd. of
Regents, 693 F.3d 1303, 1306 (10th Cir. 2012).4 To satisfy Title II, a public entity
must provide meaningful access to programs and services, making reasonable
modifications where necessary. See Robertson v. Las Animas Cnty. Sheriff’s Dep’t,
500 F.3d 1185, 1195 (10th Cir. 2007).
The regulations implementing Title II state that a public entity must “take
appropriate steps to ensure that communications” with deaf or hard-of-hearing
persons “are as effective as communications with others.” 28 C.F.R. § 35.160(a).
The regulations further provide:
(b) (1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants,
4 Only public entities are subject to the ADA’s provision barring discrimination based on disability in public services, programs, and activities. See City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 610 (2015). It follows that an individual cannot be held liable under Title II. See generally id. Because Mr. Haulmark sued the mayor in his official capacity, the campaign page claim is effectively a claim against the City. See Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (“Suing individual defendants in their official capacities . . ., we’ve recognized, is essentially another way of pleading an action against the county or municipality they represent.”); see also Aubrey v. Koppes, 975 F.3d 995, 1004 (10th Cir. 2020) (treating ADA claims against county clerk and recorder sued in her official capacity as claims against the county).
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participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. (2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. Id. § 35.160(b); see also Robertson, 500 F.3d at 1195-96 (quoting regulation).
We have stated that “[t]he only limitation on these duties is that a public entity
is not required ‘to take any action that it can demonstrate would result in a
fundamental alteration in the nature of a service, program, or activity or in undue
financial and administrative burdens.’” Robertson, 500 F.3d at 1196 (quoting
28 C.F.R. § 35.164) (emphasis added).
The regulation refers to “appropriate” and “necessary” aids and services that
provide “effective” communication. Courts have held that although a reasonable
accommodation must be “effective,” it need not be “a perfect accommodation or the
very accommodation most strongly preferred” by the individual. Noll v. Int’l Bus.
Machs. Corp., 787 F.3d 89, 95 (2d Cir. 2015) (rejecting, in ADA employment
discrimination case, deaf employee’s claim that he was entitled to have captioning or
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a transcript available for every video or audio file when file was posted to corporate
intranet).5
The reasonable accommodation inquiry is necessarily fact-specific because a
given technology may fall short of being reasonable in a particular individual’s case.
See, e.g., Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1137 (9th Cir. 2001).6 Also, the
plaintiff is in the best position to determine what type of aid or service will be
effective. See Argenyi v. Creighton Univ., 703 F.3d 441, 446 (8th Cir. 2013).
B. Summary Judgment Rulings
We review the district court’s grant of summary judgment de novo, applying
the same standard the district court used. Harvest Grp., LLC v. Love’s Travel Stops
& Country Stores, Inc., 90 F.4th 1271, 1280 (10th Cir. 2024). “The court shall grant
5 See also 28 C.F.R. pt. 35, app. A, § 35.160 (noting that although public entities must “give primary consideration to the requests of individuals with disabilities,” public entities need not provide the precise form of auxiliary aid requested so long as they “can demonstrate that another effective means of communication exists” (quotations omitted)); Petersen v. Hastings Pub. Sch., 31 F.3d 705, 708-09 (8th Cir. 1994) (rejecting plaintiffs’ argument that school district violated Title II by refusing to utilize the “signing system” of plaintiffs’ choice). 6 In Duvall, the court held that a genuine issue of material fact existed concerning whether an assistive listening device was sufficient as a reasonable accommodation to provide access to court proceedings, because even together with plaintiff’s assignment to a courtroom designed for hearing-impaired persons, the system’s “earbuds . . . would provide only general amplification and would impede his natural hearing ability,” 260 F.3d at 1131, and the plaintiff had demonstrated a genuine factual issue concerning whether a different accommodation—real-time transcription—would have been available and appropriate. See generally Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir. 2021) (“The determination of whether a requested accommodation is reasonable must be made on the facts of each case taking into consideration the particular individual’s disability.”).
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summary judgment if . . . there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We (1) reverse summary judgment on Mr. Haulmark’s city pages claim and
(2) vacate summary judgment on his campaign page claim and remand.
Although the City asserted that its captioning reasonably accommodated
Mr. Haulmark, the record reveals genuine disputes of material fact.
a. Summary judgment record
i. The City’s evidence
The record provides few specifics about the City’s captioning and the level of
accessibility it provides. The City relied exclusively on the affidavit of Tyler
Schiffelbein, its Communications Manager. He stated that before the City received
notice of Mr. Haulmark’s complaint, which was filed in July 2021, it “already offered
captioning services for all pre-recorded and live videos [it] posted” on its Facebook
and YouTube pages. ROA at 252. He said that beginning in 2009, the City used a
third-party vendor, now called VITAC, to provide captioning services. The City did
not provide an example of VITAC’s captions or further evidence about the VITAC
system.
The remainder of Mr. Schiffelbein’s affidavit is unclear about whether and
how the VITAC system or some other in-house system provided captions for all or
part of the City’s social media videos from 2009 onward. He said the City’s
YouTube pages have been closed captioned since 2010, but mentioned only
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YouTube’s auto-captioning, ROA at 253, and did not say how VITAC captioning
may have provided supplemental captioning before November 2021. Mr.
Schiffelbein also stated the City used Facebook’s auto-captioning, but only beginning
in 2020, and that the City then shifted to using its own captioning equipment for the
Facebook videos in November 2021. Finally, he stated that in October 2021, the City
purchased captioning hardware from Link Electronics that became operational in
November 2021. See id. The affidavit thus does not clearly explain which
captioning systems were used for YouTube and Facebook videos and when between
2009 and November 2021, or what level of service the captioning provided.
ii. Mr. Haulmark’s evidence
In response to the City’s motion, Mr. Haulmark’s affidavit identified two
deficiencies in the City’s captioning. First, he claimed that “[m]any online videos on
the City’s Facebook pages are missing captions,” and that the captioning the City did
provide on its YouTube channel was inadequate. ROA at 375. Second, he stated that
the “automatic machine-generated captioning” on the City’s videos “frequently
contain[ed] errors,” sometimes did not “show [him] who the dialogue lines belong
to,” and “[made] it impossible for [him] to determine whether a dialogue line is a
statement or a question.” Id. at 374-75.
Mr. Haulmark also provided evidence that the City’s captioning did not
reasonably accommodate his needs. For example, he supplied a screenshot of the
City’s YouTube channel page, which provides links to programs called “What’s Up
Wichita With Mayor Brandon Whipple” and “ICT Council Chat.” ROA at 380. All
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of the ICT Council Chat video links are marked “CC,” suggesting they are closed
captioned, but only three of the five “What’s Up Wichita” video links contain the
“CC” designation. Id.
Mr. Haulmark also submitted a July 29, 2021, email message from Mr.
Schiffelbein stating the City’s “current provider” was “only captioning city council
meetings.” ROA at 401 (emphasis added). In a July 1, 2021, message, Mr.
Schiffelbein stated that with Link Electronics, the City “would be able to caption a
lot more than [it was] currently doing” and that the new system would be ADA
compliant. ROA at 403.
b. Genuine disputes of material fact
The foregoing evidence shows a genuine dispute of material fact at least over
whether the City posted some social media videos without any captioning. Whether
the captioning the City did provide reasonably accommodated the needs of deaf and
hard-of-hearing persons also amounts to a genuine factual dispute.
The district court did not evaluate whether the City took appropriate steps
through its captioning to ensure that communications with Mr. Haulmark were “as
effective as communications with others.” § 35.160(a). Instead, it simply concluded
that he failed to cite evidence to support his argument that the City’s captioning is
ineffective. ROA at 930. But Mr. Haulmark submitted examples of City videos with
transcripts of captioning that appear to provide only ambiguously worded, bare-bones
captions that he says he cannot adequately understand. See, e.g., ROA at 434-38,
447-515. These captions did not indicate who was speaking or whether a question
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was being asked. According to Mr. Haulmark, the automatic, machine-generated
captions “ma[de] it difficult or impossible for [him] to understand the information
being provided on issues of public concern.” ROA at 374-75.
Many of Mr. Haulmark’s examples date from after the City says it installed
ADA-compliant captioning in November 2021. ROA at 447-515. Mr. Haulmark also
provided a set of captions from another county’s social media page that he claims did
not contain the defects he identified on the City’s pages, see ROA at 516-34,
suggesting better captioning may be reasonably available. See Osborne v. Baxter
Healthcare Corp., 798 F.3d 1260, 1273 (10th Cir. 2015) (discussing plaintiff’s
burden to show facially reasonable accommodation).
For these reasons, we reverse the grant of summary judgment concerning the
City’s social media pages.
As the district court observed, little or no authority addresses whether a city
official’s personal social media activity can be a program, service, or activity under
Title II. The issue is whether the mayor’s use of his campaign page to conduct
official business “excluded” Mr. Haulmark “from participation in or . . . denied the
benefits of” the City’s “services, programs, or activities.” § 12132.
a. Lindke v. Freed
Lindke concerned a Facebook page that Mr. Freed created several years before
becoming the city manager of Port Huron, Michigan. Lindke, 601 U.S. at 191. Like
Mayor Whipple’s page, Mr. Freed’s included both private and official features:
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For his profile picture, Freed chose a photo of himself in a suit with a city lapel pin. In the “About” section, Freed added his title, a link to the city’s website, and the city’s general email address. He described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” As before his appointment, Freed operated his Facebook page himself. And, as before his appointment, Freed posted prolifically (and primarily) about his personal life. He uploaded hundreds of photos of his daughter. He shared about outings like the Daddy Daughter Dance, dinner with his wife, and a family nature walk. He posted Bible verses, updates on home-improvement projects, and pictures of his dog, Winston. Freed also posted information related to his job. He described mundane activities, like visiting local high schools, as well as splashier ones, like starting reconstruction of the city’s boat launch. He shared news about the city’s efforts to streamline leaf pickup and stabilize water intake from a local river. He highlighted communications from other city officials, like a press release from the fire chief and an annual financial report from the finance department. On occasion, Freed solicited feedback from the public—for instance, he once posted a link to a city survey about housing and encouraged his audience to complete it.
Id. at 191-92.
Mr. Freed posted information to Facebook about the COVID-19 pandemic.
See id. at 192. A constituent, Mr. Lindke, posted comments critical of Mr. Freed’s
management of pandemic issues. Mr. Freed deleted these comments and ultimately
blocked Mr. Lindke from his page. See id. at 193. Mr. Lindke sued Mr. Freed under
§ 1983 for violating his First Amendment rights. The district court granted summary
judgment, concluding Mr. Freed had not acted in a public capacity in managing his
Facebook page. The Sixth Circuit affirmed. See id. 16 Appellate Case: 22-3243 Document: 010111072041 Date Filed: 06/28/2024 Page: 17
The Supreme Court vacated the Sixth Circuit’s summary judgment and
remanded for further proceedings. The Court said the case required analysis of
“whether a state official engaged in state action or functioned as a private citizen.”
Id. at 196 (emphasis omitted). It noted that although state officials act under the
authority of the state, they also “have private lives and their own constitutional
rights.” Id. at 197. To balance these interests, the Court adopted a two-part test,
holding that “a public official’s social-media activity constitutes state action under
§ 1983 only if the official (1) possessed actual authority to speak on the State’s
behalf, and (2) purported to exercise that authority when he spoke on social media.”
Id. at 198.
The Court further stated that “[a]n official cannot insulate government
business from scrutiny by conducting it on a personal page” and emphasized that
where the personal and official nature of a page is “ambiguous,” categorizing posts to
that page “is a fact-specific undertaking in which the post’s content and function are
the most important considerations.” Id. at 202 n.2, 203.
b. Remand
Without the benefit of Lindke, the district court focused on the ownership and
control of Mayor Whipple’s campaign page rather than the mayor’s possible exercise
of a governmental function on that page. The district court’s summary judgment on
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the campaign page claim should be reconsidered in light of Lindke. We vacate that
ruling and remand.7
C. Motions to Compel and for Leave to Amend
Lindke addressed an issue analogous to Mr. Haulmark’s campaign page
claim, but it also may be relevant to his motion to compel because the Supreme Court
in Lindke prescribed a fact-based approach that may warrant further discovery. See
601 U.S. at 203. Less clear is whether Lindke would affect Mr. Haulmark’s motion
to amend his complaint. We vacate the district court’s orders on these issues and
remand to ensure they receive full consideration.
III. CONCLUSION
We reverse the district court’s summary judgment concerning the City’s
social media pages. We vacate the court’s summary judgment on Mr.
Haulmark’s claim about the mayor’s campaign Facebook page, and the court’s
denial of his motions to compel and to amend his complaint. We remand for
further proceedings consistent with this order and judgment.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge
7 In denying summary judgment on this claim, the district court said the mayor is not a public entity, but, as noted above, the mayor was sued in his official capacity, making the claim one against the City. See note 4, supra.