ninety ninety five percent of the case the hillsborough county sheriff's office office prevailed in summary judgment there was one small issue that we did not prevail on the reason this came up to appeal prior to trial was because we did raise a limit the however this matter is very different from that matter because in this matter the function at issue was a sheriff's office acting on behalf of the department of children and families under state agreement with them under state statutes where that powers vested in the sheriff's office and provided by state funds soley through the c f so that's not county money it's nothing like that abuse aid was decided the way it was because it was deputies enforcing a local ordinance this is at it again but this time instead of looking at it globally as it's a county sheriff they're never going to get eleventh amendment immunity they looked at this specific function at issue when doing so under hiring and firing deputy sheriffs they found the statutes under georgia law where that powers vested through the state to the county sheriff and this court basically reversed keane the prying and pelletier of the prime said you will get the eleventh amendment immunity you get so yes i do agree with you that typically county sheriffs in in florida are our county agencies however in this specific function again we go back to chapter thirty nine which falls under d c s and the powers in dependenc you know that's one's a tiny piece of that one tiny sentence within that grant agreement there's other instances in the green agreement that i've highlighted both the summary judgment and in the briefs where it shows where the state maintains substantial control over the sheriff's office where d c s maintain substantial control over the sheriff's office similar share of prine we can't just willy nilly in hire investigators and train them we have to follow the minimum standards of the state of d c s of chapter thirty nine to retain them to keep them employed to keep them certified your position is the contract itself doesn't answer the question the question is what function was being performed the function being performed on him was a chapel we would also look to how the state characterizes the sheriff so with in so far as we look abstractly enough at the question the sheriff is a county officer under florida law in so far as we look at particular function being performed here the sheriff is performing a function by agreement that is a state function normally performed by d c wreck your honor so what what's the more significant part of that first issue how florida law defines it the abstract position of the sheriff as being a county not a state officer or the fact that in this case the county officer in fact is exercising a state function pursuant to state law it would be the second your honor which is what prine as we've looked at both of those issues look at both you look at our cases we've referenced the constitution of the state of georgia may characterize the sheriff as a state officer who we've looked at in test second part of the talking the four factors or europe i'm talking about the does the greve state control over the sheriff's office in performing the function and that's what i was speaking of prior thirty nine point three zero six five three b talks about the minimum training requirements for hiring chopped up investigators it also gives us the minimum performance standards and outcomes for the division so it's not things that the sheriff's office creates and has control over it's we're following the state statutes st there's enormous interest in making sure that that they're doing their job the way it's supposed to be done in order to avoid liability it's not that a fair statement that would be a fair statement on a but they're also  kind of goes to other arguments we have in this case things of that nature fall under the care managers which are under h k i which was previously pseudonymous lawsuit but settled out those are functions that the sheriff's office doesn't do the sheriff's office only does you and removal you know correct your honor as to the third function which was conceded both by the district court and and and the plaintiff in this matter source of funds there's no dispute that soley this money comes from d c s under statute the sheriff's office has to keep this state d c s money apart from its regular county treasury correct your honor that there's really nothing to argue on that one however we go to the fourth factor responsibility for ebbers judgments and again all the evidence in the record shows that any judgment that would get paid out of this matter or any other matter that child protective vest gaiters or the division will get sued under has to come soley out of that state funding where does it say that i understand that you have a statement from major below are saying that if there was a money judgment in the case who would be paid out of d c assume the sheriff plainly behaves illegally and it'll awfully in the execution of this otherwise state function you know it would have to come out of that budget because under thirty nine three zero six five these two budgets have to remain separate no i understand the budgets have to remain separate but where does it say that the state is a blockage to pick up the bill for misconduct by the sheriff in executing the function what would happen other than polarised saying that it would be paid out of d c s money what is there in the statute that suggests that that's right or put differently what would have happened if the d c have said no in payment you know the way it would work i hear that would be odd because obviously the c f settled paid up etc but i'm asking a more general question is there anything in the law that the state to pay for the misconduct of the sheriff in executing this otherwise they'd function and i go back to the money has to remain separate accounting other than the fact that the money is maintained in a separate bank account or whatever right but there are major blair it shows that how the budget works is they would have to go into that budget to pay any monies they may have a shortfall in their budget minus of that which would then require the  way was there any evidence was d c s ever asked in words or substance who pays the freight if the county sheriff loses a lawsuit who funds it do you do it all the time do you generally do it does it may depend on the nature of the dispute and then the judgment was the state d c s ever asked we don't know what they have to who works the budget no no that's a county officer body part one right of it that's the sheriff's guy saying well quite frankly at this point your honor everyone that works over there is falling under the state i know i need to stand that but d c f was never asked in d c of follows the prime case and i agree under in florida under florida law that was of correct decision however this is a very different circumstance this isn't the share of doing detention functions or long fright but we say on ambiguously in  stanley quote no provision of florida law provides for ins to a florida sheriff to satisfy a judgment against the sheriff and that neither the state nor the county will be required to directly pay for any adverse judgment against the sheriff's office is there any indemnification provided for in the grant agreement yet and there's not it's because it's we get the money from the c f and it stays words and i corrected recalling that or the county part of the sheriff's office it is for the child protection vesa geisha division par and you can find you can see it in the documentation i think it was through  function correct and that's again to keep that money separate so while the sheriff's office is self insured as far as all its law enforcement attention functions job protection has bought insurance with the state money to cover those claims so they're not having to mix and match the monies these good morning your honor as they may please the court my name is matthew dietz and i was lisa goodman represent they would have to ask for the money which basically has no it's a it's a speculative issue however it's not even a point in this case in should it be a point in this issue because the sheriff's office receives federal financial assistance and that was one of the points that i brought up in my brief for the fact that in a summary judgment on a rule fifty six for the not to put an  they do not that the specific c p i office does not receive federal financial assistance defies rule fifty six and it didn't even give me an opportunity to to do a response to that and it did not allow me to comply with rule fifty six and that cork relied on a footnote in a whole section involving the rehabilitation act to state that they don't receive money for this specific issue i argue that this is not an issue of material fact because the issue is whether or not the entity as a whole receives federal financial assistance and that fact was never made this is similar to the case that that judge cho flats released today the sierra vs city hialeah case it's like saying that the city hialeah is internet department does not get any federal financial assistance so therefore the is is such a with regards to lane with regard to the other constitutional issues involved in this case involving the fourteenth amendment and even the nature of the a b a itself is an equal protection issue but back to rule fifty six answering a summary judgment and denying facts is not like looking for waldo in a where's waldo book as this court has said even for courts hunting for facts in a record is not a game is it is not like trying to find truffles in a brief and that was the issue but with it that that's the legal standard but explain to me like why have their own child on the extent of that right and we were about to have a trial and if this court from man to this court is just going to remand on the one issue involving the oem stead rights of a miss for a not to have her child be sent to to a nursing home and and subsequently dying it is tied in with with the with the issue of sovereign immunity and the importance of the overall issue under the eleventh amendment argument to go on is whether or not there was a violation of pursuant to a standard which which the court was did not apply the correct standard rule on the eleventh amendment community can claim it would seem to me mr dietz that if there's a loving from them an immunity then we'd have to get to the question of whether there was a way and if we got to that question then it seems to me to be you'd have an argument that the questions were inextricably bound together but if we w conclude there is no eleventh amendment immunity i'm not sure that i see why we would reach out for pendent jurisdiction appellate jurisdiction because it doesn't strike me that answering those merits questions are inextricably bound up with what we were answering do you follow what i'm i am so i'm asking what you're saying judge marcus the irony is if you're right about one you're wrong about the other i follow what i'm so maybe she address this if you're right that there is no sovereign immunity that the sheriff is basically a county officer not a state officer then i don't have to get to abrogation under the a da which otherwise would seem to me that make the question the merits and the jurisdictional question inextricably bound up but if i don't have to do that because you're right that there's that this is a county officer then i'd have no occasion to answer this question they'd be no reason for me to reach out to it because i don't think i have to in order to answer the first question i would just say sheriff is a county officer because of one three four and of story am i missing something here no you're absolutely correct judge marcus i don't think you're missing anything and we were prepared to go to trial and we would have been able to go to that's a close question at least for me whether there is or is not some things point one way something's point the other way you're going to argue it either way but if the district court got it right this county office no eleventh amendment immunity then i would have no one cation to answer the merits question it seems to me might be interesting might save some time down in the district court but why would i reach out for that if this court does make a decision with regards to to eleventh amendment immunity that then it would be partnered if this court is not going to make a decision with regards to to eleventh amendment immunity then  and then the question becomes whether they be a provides a remedy right right but if your right if we were to agree with you about the question of eleventh amendment immunity and we were to say county office not state office then i don't see why we would be reaching out for these other issues i don't see how they would be inextricably bound up there they would they would clarify the issues for the court as we go i think they would clarify the issues for the district court but that's not the standard by which we determine whether we're going to reach out on an interlocutory appeal and scoop up some other questions that we otherwise would take up later we were you've got to show  and if you're right i don't see how you can the other problem would be scooping up claims that are still alive down there and subject to all kinds of rulings by the district  this is not what we do to that to the extent that they say this is not what we do the fact is that this court should say this is you are balland this is a statute that covers you with regards to programs and services that you offer in and doing chapter thirty nine to that extent it may be something that's necessary in saying that whether or not it's covered by sovereign immunity or whether or not it's covered by by eleven amendment to me ask your slightly different question since we moved away from the straw restriction a question of the eleventh amendment and veered into merits merits question grettir the a doesn't impose an obligation to provide a reasonable accommodation unless an accommodation has been requested what accommodation was requested and how was it requested here in this case the court directly requested on behalf of the persons with disabilities in order to fully a court ruling a request from an applicant for an accommodation there's no reason why it couldn't and this court has said that many times over this court said that in hunt v this court said that it in and not in it in most notably and united states versus city hialeah when when they know that they have an obligation under the statute to do something when they have knowledge of it right correct what evidence is there though that the request assuming that that was sufficient maybe was what evidence is there to suggest that there was a denial of that request on account of mrs freres disability as opposed to the just wasn't any money to fund home care and they couldn't find a local facility to house the child answer is yes it was a reasonable necessary accommodation the next question that this court should ask or any court should ask and that was the issue with this district court they didn't follow that they didn't follow the test is whether or not obtaining  did they if it was a reasonable and necessary accommodation why didn't they get it it was not a fundamental alteration it was not an undue burden the question that this court is asking is whether or not they deliberately were indifferent to their rights by not providing the accommodation there's no question that they could they were told by a person don't bother getting it h k i had the care ready and available and there and they said don't bother because you're not going to get it from the medicaid never takes twenty four seven care which and they never brought it up to the judge and the and the issue is that was not even correct so they never they had the ability to do it it was not an undue burden it was not a fundamental alteration the test that the court did and this is the this is the error of the court is it's not whether they tr it's not whether or not their attempts were successful or not because in many times they're not that goes into whether or not there was deliberate indifference in this court has this court is discussed that many times in the cases that i've been here before this court whether it was mccollum or whether it was crane or whether it was or whether it was the silver case whether they didn't provide an interpreter one interpreter could have been provided is is whether is not the denial of the way it's the denial of deliberate indifference in this case was deliberate indifference and that's a question for the jury but the court mixed up its question of whether or not it was a reasonable accommodation whether or not it was an undue burden or a fundamental alteration and then whether or not there was deliberate indifference and that's why that's a question for the jury and that's why i believe that that this was fit for a time thank you others just want to hit a couple things and mr dietz hit on this incredible point as fast as i can as far as the footnote to the federal financial assistance in the summary judgment that put it also referred to other parts of the summary judgment such as the source of funds on the eleventh amendment argument the court saw very clearly the court ruled on it the fact that the plaintiffs did in didn't respond at summary judgment that's not our fault but the court did note at the court found it and again that footnote also said look here look to page twenty four i believe it was the summary judgment when we talk about where the funding comes from to show that we don't get federal financial assistance there's been no evidence in this in this case that the sheriff's office receives it and there won't be any mr deeds parent other reasons whilst it doesn't apply almost it doesn't apply when the state's treatment professionals decide that community based care less restrictive treatment is needed in this case all the medical people said this child needs to be in a skill facility so again that's another reason why instead doesn't apply as far as jurisdictional question goes why why is this a da claim the association had a claim it's the one piece that survived summary judgment we believe that it is intertwined with the eleventh the men immunity as that in their brief it correctly that this court doesn't need to get to the eleventh amendment argument if there is non constitutional claims and applied the evidence to at the undisputed there's no dispute as to the evidence in this matter i think this court would find that eleven the member issue doesn't even need be reached because this court can rule on a non constitutional ground the associ accommodation came from the shelter order or in the judge at the shelter hearing saying they get this twenty four hour care from midnight to seven am in the home that was made to h k i the resource specialist was at the hearing and the transcripts in the record the court can see where the resource specialist stepped up spoke to the judge spoke to her own supervisor via telephone and said we'll try to get it done the corps never said you will get it done under all sort of the court said great try to get it done it was put in the order that it was a conditional reunification if that can happen the child can then return home h b i tried they were unable to get it done any indication that it was the sheriff's office or any sheriff's office employ the top aide cannot to do it is incorrect and flatly against the record evidence what the record evidence shows is that the h k our resource specialists spoke to a nurse from c m s who had been working with this family prior to our involvement who had been with the family when they requested this twenty four hour service before our involvement and it got denied by medicaid at that time they had the chance to appeal the family had the chance to appeal to the pediatric doctor had the chance to  with that nurse had the chance to appeal a p d had the chance to appeal everyone had the chance to appeal they did not do it that's why this nurse told each k i it's not going to happen even their own expert said it wasn't going to happen in tw with all the cost freeze and all that so any indication it was the sheriff's office that caused that twenty four hour care not to go in the home is flatly flatly wrong it was h d i who does placement was a chatty services talking about the placement issue again h k i was involved all record evidence all emails shows each guy working with c m s working with the man working with the g h social worker to find that placement the only person that tried to keep the child local was the c supervisor from the sheriff's office she's the only one that made efforts to try to keep the kid place locally up until the morning of the transfer to miami also as far as opportunity to have a hearing the c p s supervisor from the office also the only one who made efforts to notify this farai to notify the attorney general's office to notify everyone so that e mails went around the fact that there wasn't a hearing wasn't because of the sheriff's office yourself the only person and c supervisor who tried to make sure everyone was aware of what was going on so they could ask for a hearing had they wanted to again as the opportunity for hearing one more thing i like them so i am on my time one more point i'd like to make real quick a big issue was whether  the transfer was a placement issue or a medical care issue all the evidence in the case shows it is a placement issue the judge found differently in mr dietz's brief he states that their big concern with the kid going with the child going to miami was that she would be able to visit again that doesn't show and the fact that the mother was willing for her to stay at the facility in tampa doesn't show that she was adverse to the child going to facility it was a matter of where which is placement that's what the mother concern was if she goes to miami it's hard for me to visit if she goes to tampa it's fine and that's why we are trying to keep her in tampa so again it began this sheds light on this was a placement issue thank your honour's and i apologise for going over